Instead, Republicans focused on the unprecedented nature of the leak itself, calling for repercussions against the leaker and expressing concern about what such a breach of trust within the court would mean for legitimacy of the justices.
When asked if he took pride for the apparent demise of Roe, which wouldn’t be possible without him, Senate Minority Leader Mitch McConnell (R-Ky.) bristled at the suggestion.
“That’s not the story for today,” McConnell insisted to reporters at a weekly press conference on Capitol Hill.
Republicans have been working for decades to overturn Roe, an effort that culminated in the appointment of three Supreme Court justices by former President Donald Trump, who promised to nominate only justices who opposed abortion rights.
One would think that Republicans would be openly celebrating their apparent victory before the court like Rep. Marjorie Taylor Greene (R-Ga.), who was shedding tears of joy following the news on Monday. But GOP leaders pointedly refrained from doing so, something Democrats chalked up to the coming midterm elections.
“They spent decades trying to repeal Roe and now they won’t even own up to it …Their spin masters are telling them to avoid the subject and they did,” Senate Majority Leader Chuck Schumer (D-N.Y.) said Tuesday. “They’re like the dog that caught the bus ... They know they’ll pay consequences in the 2022 elections.”
Polling has long suggested that most voters don’t favor overturning Roe v. Wade, the 1973 Supreme Court precedent that legalized abortion nationwide. Fifty-four percent of Americans think Roe should be upheld, while 28% believe it should be overturned, a 2-1 margin, according to a recent Washington Post/ABC poll.
“They know that this is bad for them,” pollster Molly Murphy, president of Impact Research, said Tuesday at an EMILY’s List conference. “They know that this is not an issue they should be talking about.”
Schumer said it is his intention to hold a vote on a bill that would enshrine abortion access in federal law, but Republicans are almost certain to block it. Democrats also lack the support within their caucus to eliminate the filibuster to pass it on their own.
Republicans could retake the Senate in this fall’s midterm elections, giving them a chance to hold a vote on abortion legislation on their own. Anti-abortion advocates have pushed for a nationwide ban; already, 26 states are either likely or certain to outlaw abortion if Roe is overturned, according to the Guttmacher Institute.
On Tuesday, HuffPost interviewed more than a dozen Republican senators. Most declined to comment on future abortion legislation, saying they were more focused on the impropriety of someone leaking a draft Supreme Court opinion.
“I am going to focus right now on the leak,” Sen. Joni Ernst (R-Iowa) said. “That’s what we’re talking about right now. Let’s let the Supreme Court go through their deliberations first, go through the proper process.”
Ernst is planning to introduce legislation banning abortion nationwide, according to an anti-abortion activist interviewed by The Washington Post.
Only Sen. James Lankford (R-Okla.) said he still supported an abortion ban, but lamented that such a proposal probably lacked enough support.
“There’s not the votes for a federal abortion ban at this point, but I think every child is valuable and I think we will get there eventually,” Lankford said.
In the draft opinion, which the Supreme Court has confirmed as authentic but said is not final, Associate Justice Samuel Alito wrote that it “is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” meaning state legislatures.
Several Republicans agreed with Alito, saying that if the Supreme Court ultimately does overturn Roe, lawmakers in each state should decide whether abortion should be legal or illegal.
“If the court makes the right decision and strikes down Roe, the result would not be that abortion would be illegal everywhere,” Sen. Ted Cruz (R-Texas) said. “In bright blue states like California and New York, at least in the short term, abortion almost surely would remain universally available. In redder states like my home state of Texas, we would see more significant restrictions.”
Cruz has supported federal anti-abortion bills in the past, such as bans on “partial birth” abortion. He said voters can “vote in new representatives” if they disagree with state or federal laws.
Thirteen states have “trigger” laws on the books that will immediately go into effect if Roe is overturned. Trigger laws have never actually been implemented so the legality and court challenges surrounding them are unclear. Most trigger laws have limited exceptions for rape and incest, while some only include exceptions if the pregnant person’s life is at risk. Several trigger laws, like in Tennessee and Kentucky, would make it a felony for a doctor to perform an abortion. All trigger laws exempt people seeking abortion from being criminalized, at least for now.
In a campaign messaging memo obtained by Axios on Tuesday, the National Republican Senatorial Committee advised Republicans to a compassionate consensus-builder on abortion policy.
“Republicans DO NOT want to throw doctors and women in jail. Mothers should be held harmless under the law,” the document says.
Most Republican senators co-sponsored a symbolic bill last year that would impose criminal penalties and prison time for doctors who fail to provide care for an “infant born alive after an abortion.”
On Tuesday, some Republicans suggested that the Supreme Court leaker should maybe be thrown in jail.
“Everyone who had access to this document should be interviewed and asked if they leaked it,” Sen. John Kennedy (R-La.) said. “And then the leaker is going to have to make a decision whether to tell the truth or lie to an FBI agent.”
Alanna Vagianos and Amanda Terkel contributed reporting.