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The opinion, written by Justice Samuel Alito and reportedly representing the sentiments of a five-member conservative majority, would end the federal recognition of abortion rights that has existed for nearly 50 years ― and that conservatives have been trying to undo for nearly as long.
But Republicans haven’t been basking in the glory of victory. They’ve been trying to change the subject, as HuffPost’s Igor Bobic and Arthur Delaney chronicled on Tuesday, by focusing on the leak itself, urging voters to focus on other issues like inflation, or downplaying the opinion’s likely impact.
It’s not hard to figure out what’s going on here.
The majority of Americans think abortion should be legal, as polls have shown consistently. That’s why Republicans have until recently focused on more limited causes like banning so-called late-term abortions, which polls better. But their agenda has always been to make abortion illegal, with state-level Republicans increasingly willing to ban it in all circumstances, including ― as HuffPost’s Alanna Vagianos has documented ― cases of rape or incest.
Now they are on the verge of making such bans possible ― depending in part on whether Chief Justice John Roberts, reportedly the one conservative justice who doesn’t support Alito’s maximalist position, can persuade one of the other five conservatives to join him in a narrower ruling.
“Right now is a moment when people are shocked, grieving and angry. We want to be sure that ... folks understand where and how they can fight back.”
But even a scaled-back decision could effectively end abortion access in large swaths of the country, risking a major political backlash for Republicans ― one big enough to mitigate and maybe even offset the huge political advantage they have going into the midterms.
Back in November, Hart Research tested messages focusing on Republican efforts to overturn Roe. Not only did the attacks convince some swing voters to support Democrats, they also energized ambivalent Democratic voters, making them more likely to vote.
This has always been the great political hope of abortion rights supporters: that once the threat becomes real, once a decision comes down, it will convince the long-silent majority to act.
But political movements don’t succeed if they don’t have clear objectives, including goals that they can actually attain within the foreseeable future.
“Right now is a moment when people are shocked, grieving and angry,” Leah Greenberg, co-founder of the progressive organizing group Indivisible, told HuffPost. “We want to be sure that as part of processing, folks understand where and how they can fight back ― and where they can have an impact on what is happening, whether that is at the state level, at the electoral level, or in their community.”
Greenberg can speak to this with expertise because that’s roughly what happened after the election of President Donald Trump in November 2016, when Indivisible helped to lead a backlash that defeated many of Trump’s initiatives and eventually turned control of Congress and the White House back to the Democrats.
So what are the practical, concrete objectives now? Is there a way to protect abortion rights, at least for some people, when the Supreme Court has taken away the federal guarantee and there are no short-term prospects for changing its membership?
The answer is yes, there are things that can be done. Here are a few:
1. Pass A Federal Law Codifying Roe.
Senate Majority Leader Chuck Schumer (D-N.Y.) has said he will hold a vote on a version of the Women’s Health Protection Act, which the House has already passed. The bill would protect abortion before viability and in cases where the mother’s health is at risk. (You can read the details from HuffPost’s Sara Boboltz.)
Nobody expects it to pass, because at least one Democratic senator, Joe Manchin of West Virginia, doesn’t support it. And Manchin certainly isn’t going to change his vote.
There is another possibility: an alternative bill from the two Republican senators who support abortion rights, Susan Collins of Maine and Lisa Murkowski of Alaska. It’s a lot weaker than what abortion rights advocates have in mind and, even if 48 Democrats got behind that bill, they’d still have to waive filibuster rules to pass it ― which is something neither Collins nor Murkowski has been inclined to do.
Then again, both lawmakers expressed anger after the Politico story broke and, no less important, both could feel pressure from supporters to do something once a decision comes down.
2. Change Laws, Win Elections In The States
A decision invalidating Roe would leave abortion restriction to the states. And that is where advocates for abortion rights probably have their best chance to make an immediate impact.
As of now, laws restricting abortion are on the books in nearly half of the states, according to the Guttmacher Institute. That includes both old, currently unenforceable bans in nine states and 13 “trigger” laws that would ban abortion in all or nearly all circumstances once Roe is no longer in effect.
Michigan is one of those states. A 1931 law bans abortion in all circumstances. If Roe goes away, officials in the state can enforce it again. Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats, have said they won’t. But their ability to deliver on that promise depends on their ability to stay in office ― and both are up for reelection in November.
Even if they get another four years, county prosecutors can act on their own ― and at least some are prepared to bring cases, according to new reporting by Craig Mauger and Beth LeBlanc in The Detroit News.
Whitmer (along with Planned Parenthood) has asked the state Supreme Court to block such actions by declaring the state constitution protects a right to abortion. There’s also a late-developing effort to amend the constitution and add abortion protections explicitly by ballot initiative.
The common element in all of these efforts is that they depend on Michigan voters taking action in Michigan. That’s going to be the story in other swing states, as well ― including Arizona, which just passed severe abortion restrictions, and Virginia, where a Republican governor and Republican House of Delegates may be about to try and do the same.
HuffPost’s Travis Waldron has details on both, along with some other states, and points out that it makes control of state legislatures ― not normally a big focus for most Americans ― hugely important to the future of abortion access.
One other state to watch is Florida. Gov. Ron DeSantis already signed a law banning abortion after 15 weeks and has previously said he would support more sweeping restrictions, which the Republican legislature is likely to consider ― and which might play well with the Republican base he is courting in an apparent run-up to a 2024 presidential bid.
But first DeSantis has to win reelection, and Florida is still a relatively divided state where, as in most states, polls have consistently found majority support for keeping abortion legal.
3. Support Abortion Funds And Similar Nonprofits
One option for people living in states with limited or no abortion access is to go out of state. But that’s expensive ― hundreds of dollars, sometimes more, in order to pay for the procedure and transportation.
The price will only go up in a post-Roe world, especially if ― as expected ― bans take effect across the South, turning the old Confederacy into a no-abortion zone. Residents of Louisiana would have to travel a minimum of 1,730 miles round trip, according to a Guttmacher estimate.
Low-income Americans in particular have a hard time covering those costs, especially because they are usually missing work (and frequently losing out on wages) in order to make the trips.
Their best option may be abortion funds, which are nonprofits that provide financial assistance to cover those expenses. But the funds already struggle to keep up with the demand, which will only increase in a post-Roe world.
That is why many advocates are urging people to donate to the National Network of Abortion Funds, a clearinghouse for these organizations, or some of the individual organizations on the association’s webpage.
4. Make More Use Of Executive Authority
The Biden administration can’t unilaterally override state bans on abortion. But it might have some options for providing at least some access, including two that Shefali Luthra of The 19th News flagged earlier this year.
One would be to fight for wider access to abortion through medication. This is already the way the majority of abortions take place, according to Guttmacher, and many of the state bans would make these abortions illegal ― explicitly or implicitly.
But federal law takes precedence over state law, and because the Food and Drug Administration has approved abortion by medication at any time up to 10 weeks of pregnancy, it’s not clear states have the authority to ban it. The Biden administration could make that argument in court.
“There is some support for the idea that states cannot ban FDA-approved medication,” Greer Donley, an assistant professor at the University of Pittsburgh Law School, told Luthra. “This is a novel legal argument. Maybe it would mean states cannot ban the sale of medication abortion, which would mean states must allow abortion up to 10 weeks.”
A second option would be to let abortion providers rent space on federal lands, including those where states have banned the procedure.
The law is not clear here ― as with an attempt to challenge state bans using FDA authority, the outcome would ultimately depend on the same Supreme Court that’s about to undo Roe. But cases that touch on other constitutional issues, like the supremacy of federal laws, sometimes produce unexpected results with unusual coalitions of justices.
5. Change The Supreme Court’s Composition
This of course is the longest of long shots. Democrats have talked about this for a while, but neither the Biden administration nor Democratic leaders have pursued it seriously ― and, as with a federal law codifying Roe, it would require unanimity within the Senate Democratic caucus that simply doesn’t exist.
But one reason the Supreme Court is about to end the federal guarantee of abortion rights is that conservatives played the long game, working toward a goal that once seemed unattainable. There’s no reason defenders of abortion rights can’t or shouldn’t do the same.
A ruling against Roe would give this cause new urgency ― and, maybe, a stronger argument. As Democrats and their allies have pointed out, there would be no majority to overturn Roe without five judicial appointments from Republican presidents who lost the popular vote and without then-Senate Majority Leader Mitch McConnell refusing to even hold a vote on President Barack Obama’s appointee to replace Justice Antonin Scalia.
The usual argument against enlarging the Supreme Court ― or otherwise changing its composition, whether through term limits or some kind of rotating system that brings in circuit court judges ― is that it would be a break with tradition and norms. Democrats can always counterargue, plausibly, that Republicans have already broken many other traditions and norms.
CORRECTION: A prior version of this story used an incorrect name for the National Network of Abortion Funds.