by Gabe Fleisher
Good morning! It’s Wednesday, May 4, 2022. Election Day 2022 is 188 days away. Election Day 2024 is 916 days away.
How Washington reacted to the SCOTUS leak
Tuesday was Primary Day in Ohio and Indiana. Normally, the election results from the two states would have been buzzed about in Washington and received close scrutiny. (And don’t worry, I’ll be recapping the results later on in the newsletter.)
But this week, all anyone is able to talk about across town is the stunning Politico report that the Supreme Court is on the verge of overturning Roe v. Wade, the landmark precedent that has protected U.S. abortion rights since 1973.
It truly was the “SCOTUS scoop of the century,” as one veteran journalist put it.
How exactly have different leaders in Washington responded to the news? And what does that tell us about what’s next for the fight over abortion? Let’s take a look:
→ Throughout his time in public life, President Biden has had a complicated relationship with abortion policy. Even as president, the devout Catholic (and slow convert to the pro-Roe cause) had shied away from using the word “abortion” before Monday’s news.
That changed on Tuesday, when he used the word for the first time as president, while also blasting the draft Supreme Court opinion as a “fundamental shift in American jurisprudence.”
As the Washington Post wrote, Biden now “finds himself the country’s highest-ranking champion of abortion rights.” But if the Supreme Court decides to move forward with overturning Roe, there is little he can do about it.
Pressed by reporters on Tuesday, Biden declined to say whether he supported changes to the Senate filibuster or to the structure of the court. Instead, he issued a statement announcing that he had directed the White House Gender Policy Council to “prepare options for an Administration response” to the pending Supreme Court decision, a much more limited response than pro-choice advocates have urged.
→ On the other hand, Democratic lawmakers are theoretically in a position to do something. House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer were quick to condemn the draft opinion, which they said would would “go down as an abomination” if made the official decision of the court.
Schumer also announced that he will bring a bill codifying Roe v. Wade to the Senate floor this week. What are its odds of passage? Very low.
The House has already passed a bill codifying Roe, the Women’s Health Protection Act, which the Senate voted on in February. The bill needed 60 votes to break a filibuster; it failed 46-48, with opposition from Democratic Sen. Joe Manchin as well as from pro-choice Republican Sens. Susan Collins and Lisa Murkowski. (Three Democrats and three Republicans did not vote.)
Collins and Murkowski have introduced their own bill to codify Roe that Collins says Manchin would also support — but even if that is the one Schumer puts up for a vote next week, it would still only be guaranteed 51 or 52 votes in favor, far short of the 60 it would need. (Sen. Bob Casey, one of the last pro-life Democrats and the son of the “Casey” in Planned Parenthood v. Casey, is a variable.)
Manchin and Collins both reaffirmed on Tuesday that their opposition to modifying the filibuster had not changed, the final hope for abortion advocates in Congress. Sen. Kyrsten Sinema, similarly pro-choice and pro-filibuster, said the same, while Murkowski declined to answer.
“The filibuster is the only protection we have of democracy right now,” Manchin told reporters, noting that the Senate procedure would also protect against anti-abortion legislation in a future Republican Congress.
→ Moving across the aisle, most Republican lawmakers had a different strategy in responding to the leaked news that the Supreme Court was preparing to overturn abortion rights.
Although many in the GOP have labored for decades to make this moment a reality, Republicans in Congress largely refrained from celebrating the development — instead focusing most of their attention on the leak itself.
“This lawless action should be investigated and punished as fully as possible,” Senate Minority Leader Mitch McConnell said in a statement. Other Republicans called for a Justice Department probe and even for the leaker’s prosecution, even though it is unclear what crime had been committed and most experts said it was unlikely the DOJ would intervene.
Perhaps because overturning Roe would be unpopular — only about 30% of Americans are in support, depending on the poll — or simply because the decision is not yet final, most Republicans (at least for now) have trained their focus on condemning the leak rather than weighing in on the prospective decision.
To be sure, some Republicans broke this mold and openly cheered the draft ruling. Sen. Josh Hawley, for example, said on Twitter that it would be “one of the greatest opinions in Supreme Court history” if it ends up being made official. “It will save millions of lives,” Hawley added.
→ Finally, we must move to the most tight-lipped of Washington institutions: the Supreme Court itself. According to reports, the usually leak-averse court has been shaken by the publication of Justice Samuel Alito’s draft opinion — a disclosure which lacks precedent in modern history.
“People are anxious in ways they have not been anxious in a long time,” one court insider told the Wall Street Journal, referring to the current atmosphere at the court after the leak.
Chief Justice John Roberts did issue a rare statement on Tuesday, confirming the authenticity of the draft opinion published by Politico and stressing that the ruling is not a “final position.”
Roberts also announced that he had directed the Supreme Court Marshal — who oversees court security — to launch an investigation into the source of the leak, whose identity has already sparked several rounds of speculation.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said.
→ This report has focused on the response in Washington... but if the Supreme Court does overturn Roe (as the leaked decision draft suggests) and Democrats in Congress are unable to legalize abortion nationwide (as the math suggests), it will be the states that claim power over abortion policy.
Each state will be able to make their own laws on abortion, creating a patchwork system in which some states will liberalize their policies and others will make them even stricter.
Already, state politicians are preparing for this power shift. Soon after the draft opinion leaked, California Gov. Gavin Newsom announced plans to propose an amendment that would enshrine the right to abortion in the state’s constitution.
Meanwhile, Republican officials such as Missouri Attorney General Eric Schmitt said that he would “immediately” sign an opinion to “protect the unborn” in his state if Roe is struck down.
Expect fights to shape up state by state in the months ahead as Democrats vie to shore up abortion rights and Republicans vie to limit them. According to the Guttmacher Institute, a pro-abortion group, 23 states currently have laws that would restrict abortion access in a post-Roe world, while 16 states have laws protecting abortion rights.
Ohio primary results to know
Senate: J.D. Vance, the bestselling author of “Hillbilly Elegy,” won a decisive victory in Ohio’s Republican Senate primary on Tuesday. Vance’s victory was largely fueled by an endorsement from former President Donald Trump, a reminder of Trump’s power within the GOP.
- Vance will face Democratic Rep. Tim Ryan (D-OH) in November.
House: In the state’s 11th congressional district, Democratic Rep. Shontel Brown defeated a primary challenge from progressive Nina Turner by 33 percentage points. Turner, a former co-chair of Bernie Sanders’ presidential campaign, had been backed by Alexandria Ocasio-Cortez and other left-wing leaders.
- After two straight House primary defeats, Turner now says she might run for president as an independent in 2024.
Governor: Republican Gov. Mike DeWine beat back a primary challenge from former Rep. Jim Renacci, a Trump ally who failed to nab the ex-president’s endorsement, and will face former Dayton Mayor Nan Whaley in the fall.
What’s happening today
All times Eastern.
President Biden: Receives his daily intelligence briefing (10:15 am). Hosts an event celebrating the Team USA athletes who competed in the 2020 Summer Olympics and the 2021 Winter Olympics (11:30am).
- Then: Delivers remarks on economic growth, jobs, and deficit reduction (2 pm). Receives his weekly economic briefing (3:30 pm).
Vice President Harris: Joins Biden for the Team USA event and the economic briefing.
First Lady Biden: Joins the president for the Team USA event and delivers remarks at the at a gala for the Kuwait-America Foundation (7:15 pm). Convenes
Senate: Likely to vote on a series of “motions to instruct” tied to the U.S. Innovation and Competition Act (USICA). Technically, these are supposed to be (non-binding) directions for the Senate members of the conference committee set up for the bill.
- But: In practice, many of the motions are Republican measures that are unrelated to USICA, designed to force Democrats into taking politically tough votes on issues ranging from climate change to the Iran nuclear deal.
- As a reminder, USICA would seek to increase U.S. competitiveness with China by boosting domestic production of semiconductor chips. Different versions of the bill passed both chambers, so lawmakers will meet in a conference committee to resolve the differences.
House: On recess until May 9.
Supreme Court: No opinions expected until May 16.
What else: Health and Human Services Secretary Xavier Becerra (9:30 am) and Homeland Security Secretary Alejandro Mayorkas (10 am, 2:30 pm) will testify before Senate panels.
- Also: White House press secretary Jen Psaki will hold her daily press briefing (2:30 pm).
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