Roe v. Wade Upends Washington

May 10, 2022

Last week’s publication by Politico of a draft Supreme Court ruling that would overturn the 1973 landmark Roe v. Wade abortion ruling upended the national conversation. If finalized, the draft majority opinion on the Mississippi 15-week abortion ban at the center of the controversy would overturn Roe v Wade and the 1992 Planned Parenthood v Casey, ending the constitutional right to abortions. The Supreme Court confirmed the authenticity of the leaked draft but emphasized that it does not represent the final opinion of the Court or even the current positions of the Justices.

Yet, the disclosure accelerates the issue as a top political fight heading into (and potentially beyond) November’s midterm elections. A decision is expected to be finalized this summer.

Top 2022 Political Issues
Before the draft decision was leaked, a number of polls indicated the biggest issues heading into the midterms were the economy, inflation, Covid-19, crime, immigration, and Ukraine. In March, Gallup reported that zero respondents indicated abortion was the most important problem facing the United States. Yet the shocking disclosure changes that calculus as Democrats and Republicans now scramble to reinforce competing abortion policies and perceived political advantages.

Three Macro Questions
In addition to the policy implications, the disclosure of the draft Supreme Court decision leaves three key questions for the Nation:

1. Who turns out more in November’s midterms?
Both Republicans and Democrats are struggling over how to speak to the issue with voters. A new CNN/SSRS poll finds broad opposition (66%) to completely overturning Roe. However, for now, its impact on the political landscape in general and midterms in particular appears to be muted. The Washington Post reports that “Democrats’ message also in a sense reflects how powerless they have been in Washington, even when they control the levers of power.”

The head of the Senate Republican campaign arm told Punchbowl News: “I think this is an important issue to many people, but so is inflation. So is crime. So is the border.” (See related story in this week’s PCM Update for more information about how fundraising and messaging have changed following the leak.)

2. What does it mean to the Senate filibuster?
Neither the Senate’s Democratic or Republican caucuses are united on the issue of abortion. And while a bill to codify Roe (the Women’s Health Protection Act) received just 46 votes in the Senate at the end of February, Democrats will likely try a second time to codify Roe this week. Debate over the legislative filibuster is also back amid renewed calls from Sen. Bernie Sanders (I-VT) to reduce the Senate’s 60-vote threshold to move legislation. Yet Senators Kyrsten Sinema (D-AZ), Joe Manchin (D-WV), and Susan Collins (R-ME) reiterated that they will not support eliminating the filibuster to pass the bill. Sinema flatly said that the filibuster has protected women’s access to health care “half-a-dozen times in the past ten years.”

3. How does the leak impact the institution of the Supreme Court?
The leak undermines the integrity of the Court and public trust in it, say nonpartisan scholars. Chief Justice John Roberts said the document’s leak would not affect the work of the court “in any way,” but said, “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,” as the Court launched an investigation into the source of the disclosure.

  • Republicans view it as an ‘attack’ on the Supreme Court’s independence. A YouGov poll found that 65% of Republicans believe the draft Supreme Court decision overturning Roe v. Wade was leaked by a Democrat, while 26% of Democrats believe it was a Democrat and 21% believe it was a Republican.

  • Democrats view the revelation as confirming their long-standing concerns that Republican appointments skewed the Court’s balance toward conservative Justices.

Politico reports that Justice Clarence Thomas warned that “you cannot have a free society” without strong institutions, which shouldn’t be “bullied” away from certain outcomes just because people don’t like them.

Further Reading

  • Pew Survey: Over 60% of adults say most abortions should be legal in U.S. – Axios

  • 28% of Americans believe Roe v. Wade should be overturned – The Washington Post

  • 10 key passages from Alito’s draft opinion, which would overturn Roe v. Wade – Politico

  • What would immediately happen in each state if Roe v. Wade is overturned – Axios

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 Justin Ailes
Managing Director, Government Relations
The Supreme Court confirmed the authenticity of the leaked draft but emphasized that it does not represent the final opinion of the Court or even the current positions of the Justices.
The information provided herein is general in nature and for educational purposes only. CRE Finance Council makes no representations as to the accuracy, completeness, timeliness, validity, usefulness, or suitability of the information provided. The information should not be relied upon or interpreted as legal, financial, tax, accounting, investment, commercial or other advice, and CRE Finance Council disclaims all liability for any such reliance. © 2022 CRE Finance Council. All rights reserved.

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