Roe reality check: Why Democrats face an uphill battle to codify abortion rights

Codifying abortion rights might take at least a decade, even if public opinion is on Democrats’ side

Anti-abortion activists march during the 49th annual March for Life rally on the National Mall on January 21, 2022 in Washington, DC. The rally draws activists from around the country who are calling on the U.S. Supreme Court to overturn the Roe v. Wade decision that legalized abortion nationwide. (Getty Images)

This weekend marks the 50th anniversary of Roe v Wade, the Supreme Court decision that enshrined the right to seek an abortion, which the court overturned in its Dobbs v Jackson decision last June. The date means that many anti-abortion activists will converge in Washington for the March for Life with a tone of triumph.

The decision plunged the credibility of the Supreme Court into crisis and served as a firewall against Democrats losing an overwhelming number of seats in the House of Representatives in the midterm elections. They also added a Senate seat in Pennsylvania to their majority.

President Joe Biden, Vice President Kamala Harris and plenty of other Democratic politicians will mark the day pledging to codify the protections in Roe v Wade.

But the fact of the matter is that even though Democrats have won in the arena of public opinion, the prospects of codifying abortion rights will likely take years, if not decades.

For one, Republicans control the House of Representatives, which rules out the possibility of it happening during this Congress. Similarly, while newly minted Senator John Fetterman of Pennsylvania supports getting rid of the filibuster and codifying abortion rights, Democratic Senator Joe Manchin opposed the Women’s Health Protection Act last year and supports the filibuster.

Senator Kyrsten Sinema of Arizona, who defected from the Democratic Party last month, also still supports the 60-vote threshold, despite her support for abortion rights. Democrats failed to flip other seats in Wisconsin or North Carolina that would have given them the padding to do so in a future Congress.

But even if Democrats were to flip the House of Representatives in 2024, they risk losing up to seven Senate seats, including three in states that former president Donald Trump won twice (Ohio, West Virginia and Montana); three in states where he won in 2016 but lost in 2020 (Wisconsin, Pennsylvania and Michigan); and one in the perpetual swing state of Nevada. And this does not even count Ms Sinema’s seat since she’s an independent.

They also don’t have many chances to flip a Senate seat come 2024, except for longshot efforts in Texas and Florida, states that have moved hard to the right in restricting abortion.

The only way for them to even have a shot at codifying Roe by 2025 is if they miraculously hold the White House, keep their losses to only one Senate seat and replace Ms Sinema with a Democrat who would be comfortable getting rid of the filibuster. Such a prospect is not out of the question – Montana, where Senator Jon Tester is undecided about running again, voted against a referendum to restrict abortion last year – and Democrats pulled off the unthinkable last year.

But this would be a herculean task for which there is little guarantee. This might be why Democratic governors such as Tony Evers in Wisconsin and Gretchen Whitmer in Michigan (a potential future presidential candidate) have promoted abortion rights as they begin their new terms.

Such straight talk doesn’t the inflame the passions of base voters. It’s hard to tell voters who feel strongly about something so personal as abortion that this will not be an overnight victory.

But Democrats and pro-choice activists could probably learn something from their counterparts on the right, who waited 49 years for an eventual victory that required everything going right for them.