Dems debate limited options as Roe decision looms

Senate Democrats know they could get a midterm boost by harnessing voter anger over the potential reversal of Roe v. Wade. Exactly how to do that is a bigger conundrum.

The Democratic caucus is floating multiple ideas to keep the public focused on abortion rights before the high court’s ruling, expected next month. Some are pushing the Biden administration to make abortion pills and contraception more easily accessible, while others are focusing on privacy protections for women seeking abortions. Then there’s the small-scale but ongoing bipartisan effort to codify Roe.

Democrats are also preparing for more floor votes on narrower abortion access legislation, though few expect Senate Majority Leader Chuck Schumer to put up any more bills that would fall to a GOP filibuster until the Supreme Court releases its opinion. The caucus’s multi-track approach stems in part from an unanswerable question: How similar will the final ruling be to the draft opinion POLITICO disclosed earlier this month?

“Most of us believe that by the time the opinion is issued, over the next few weeks you’re going to see a pretty substantial national response,” said Senate Majority Whip Dick Durbin (D-Ill.). Until then, Durbin observed: “There’s not much you can do beyond what we’ve done.”

It’s also an acknowledgment of the bitter reality for a party just starting to come to grips with the likelihood that Roe will be overturned. Democrats need a stunning reversal of political fortune in November, one that would expand their House and Senate majorities, to pull off any legislative solution on abortion rights — so all they can do now is message as hard as they can.

“I don’t see any legislative action we can take between now and [the decision],” said Sen. Tina Smith (D-Minn.). “People understand that we don’t have the votes right now. But that doesn’t mean there isn’t a fight to be had and a contrast to be made [with Republicans], and to me that’s the work ahead.”

Smith acknowledged the different options the caucus is considering but said that’s not “necessarily a bad thing right now, because it is such a shock and how people respond to that information as it starts to seep into their daily lives is going to be to me the thing that's really telling."

Democrats are pinning their hopes on the high court decision motivating voters in key swing states like Arizona, New Hampshire, Nevada, Wisconsin and Pennsylvania, suggesting there will be a more forceful impact once it actually comes down. But it’s too early to tell what the effect of overturning Roe will be on the 2022 midterms. And Democrats would need to keep the topic front and center for six more months amid high inflation, supply shortages, the effects of the pandemic and the war in Ukraine.

“We need to take this issue to the American people and keep it alive because the rallies, the protests and all the other expressions of outrage and anger should continue,” said Sen. Richard Blumenthal (D-Conn.) .

Sen. Gary Peters (D-Mich.), chair of the Democratic Senate campaign arm, predicted the Roe decision "will be a major issue in the campaigns, there’s no question."

"We know that some of our key battleground states are strongly pro choice. New Hampshire is perhaps the most pro-choice state in the country and clearly a battleground, and so is Arizona, and so is Nevada," Peters said. When asked about whether the campaign arm plans to invest in ads, Peters responded: "I see that we'll be engaged in the issue. As to what we’re going to be doing will be determined in the months ahead."

So far, the Democratic campaign arm has made a five-figure ad buy. Sen. Maggie Hassan (D-N.H.) has also taken out a digital ad.

Meanwhile, Washington Sen. Patty Murray, the No. 3 Senate Democrat and chair of the Senate HELP Committee, is leading a group of female Democratic senators who are on Schumer’s leadership team, including Sens. Elizabeth Warren (D-Mass.), Debbie Stabenow (D-Mich.), Catherine Cortez Masto (D-Nev.), Amy Klobuchar (D-Minn.) and Tammy Baldwin (D-Wis). Democratic aides described it as an effort to coordinate the caucus’s response, which could include hearings and future votes. The group met twice last week and is expected to meet regularly, according to Warren.

“We’re going to be raising the stories of women that are impacted across the country so that people understand the reality of what this decision means," Murray said.

Between now and the release of the Roe opinion, Democrats are turning their efforts away from the Senate floor and focusing primarily on data privacy and access to abortion pills and birth control.

Warren, along with 13 other Senate Democrats, this week sent a letter to data brokers expressing concern about their selling the cell phone data of women who visited abortion clinics. Democrats are expected to hold hearings on privacy matters related to abortion in the coming weeks.

“It’s critical to make certain that every single person in this country understands the full implications of losing Roe. That means part of what we do over the next few months is keep talking about Roe and privacy protections,” Warren said. “We also need to push forward in highly specified areas like medication abortion and tracking women who travel in order to get health care.”

Democratic senators expect that there will be more floor votes on Roe, despite failing twice in this year alone to move forward on legislation to expand abortion rights. That bill saw opposition not only from Senate Republicans but also from Sen. Joe Manchin (D-W.Va.), who viewed it as too expansive.

Sen. Jon Tester (D-Mont.) suggested that Democrats “ought to run up the flagpole on some stuff on birth control and maybe a motion on rape, incest.” Others want votes to show the public their clear divide with Republicans. But some Democrats are skeptical of how much those actions would resonate with people outside of the Beltway.

On a separate track, Sen. Tim Kaine (D-Va.) is still pushing for a bipartisan path forward with Sen. Susan Collins (R-Maine), one of two Republicans in the Senate who support abortion rights. Kaine said they’re making “some real good progress” but also acknowledged there aren’t enough votes to overcome a Senate filibuster right now.

Like his colleagues, however, Kaine says the impact of the decision is more likely to seep in once the Supreme Court actually releases an opinion. And he argues that could change the dynamic in the Senate, even as his colleagues remain more skeptical that eight more Republicans will join him.

"Would there be 60 votes for a codify Roe bill today? No,” Kaine asked. “But after that happens I don’t think you can say you’re completely sure what the dynamic will be. I think that will be such an earth-shattering new fact on the ground that it could change.”