Texas abortion law could hurt Republicans in 2022 midterm elections, experts say

·14 min read

WASHINGTON – As the United States pulled out of Afghanistan and chaos ensued, Republican lawmakers were swift to condemn President Joe Biden's handling of the withdrawal.

The violence that erupted in Kabul gave GOP officials an opening to attack the Democratic president, whose approach to the withdrawal was later met with disapproval in national polls. It quickly became political campaign fodder for Republicans who need a net gain of only five seats in the House and one in the Senate to recapture total control of Congress in next year's midterm elections.

Weeks later, conservatives were handed a victory when the Supreme Court sided with Texas Republicans in not blocking the most restrictive abortion law in the nation – in one of the United States' largest red states. But, unlike Afghanistan, it was met with a dim response from high-profile conservatives, most of whom didn't publicly celebrate the law that experts said could spell trouble for congressional Republicans when voters head to the polls next year.

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Political strategists and academics pointed to a shifting narrative for people in the "middle" on abortion, and some suggested the new law may tilt too far to the right for even some in the Republican base.

"Republicans have been bleeding support among suburban women throughout the Trump era," Republican pollster Whit Ayers told USA TODAY. "(Texas) makes that problem worse, not better."

A divided Supreme Court last week denied an effort by abortion rights groups to halt the new Texas law that bans people from having the procedure after six weeks of pregnancy.

The Texas law, known as SB 8 and signed by Republican Gov. Greg Abbott in May, bans abortions when a fetal heartbeat is detected, usually at about six weeks. The law doesn't include traditional exceptions for abortion such as for rape or incest but allows women to have the procedure for "medical emergencies."

'Near-total ban': Texas doctors, women assess nation's strictest abortion law

The GOP base is largely religious and mostly anti-abortion. Around 8 in 10 Republican registered voters are Christian, and 63% of Republicans and those who lean Republican say abortion should be illegal in all or most cases, according to Pew Research.

Brian Conley, professor of political science and director of the political science graduate program at Suffolk University, said that especially after the Texas ruling and possibly others to come, the law may benefit the left because it may mobilize single-issue pro-choice voters.

"It's galvanizing and solidifying as a single issue for a lot of folks because it appears as though we're on the precipice, if you will, of some type of meaningful change, some type of significant change in abortion rights in United States."

Conley noted Afghanistan could have "really been a very big win for (Republicans), but then all of a sudden there's this other issue which, if you will, will probably displace discussions about Afghanistan."

New law may be too extreme

Although abortion remains one of the thornier debates in the country, surveys have shown a consistent consensus among most Americans who favor certain restrictions but oppose throwing out Roe v. Wade as a whole.

Asked a month before the 2020 president contest whether the Supreme Court should “overturn” abortion or “let it stand,” 62% of likely voters in a Fox News poll said the high court should let it remain.

Charles Bullock, a University of Georgia political science professor, said similar surveys showed the same thing.

A Quinnipiac University poll released during that time period found 66% of likely voters said they agreed with the 1973 decision establishing a woman’s right to terminate a pregnancy. And a Kaiser Family Foundation poll published in October 2020 showed 69% of Americans disagree with overturning Roe, including 76% of independents.

Bullock said given the slim majorities controlling Congress, Republicans are pausing to calculate how the electorate will respond.

“Because while it may play very well in Texas, or at least in some legislative districts in Texas, (SB 8) may be a net loser nationwide,” he said.

If allowed to remain in force, the Texas law would be the most dramatic restriction on abortion rights in the U.S. since Roe v. Wade. Citing Roe, federal courts have shot down similar bans in other conservative states for years.

Pro-choice activists supporting legal access to abortion protest during a demonstration outside the US Supreme Court in Washington, D.C., in 2020.
Pro-choice activists supporting legal access to abortion protest during a demonstration outside the US Supreme Court in Washington, D.C., in 2020.

But what makes the Texas law more controversial, and has rankled women's reproductive health advocates and providers – and may be difficult for Republicans to navigate in more moderate electorates – is a provision in the measure that deputizes citizens as the chief enforcer of the new anti-abortion rules.

Under that provision, private citizens can sue abortion providers and anyone involved in "aiding and abetting" abortions, including someone driving a person to an abortion clinic. A successful plaintiff could be entitled to at least $10,000 in damages, according to the law.

Shana Kushner Gadarian, chair of political science at Syracuse University's Maxwell School of Citizenship and Public Affairs, said that within the Republican Party the average voter does not necessarily support such bills, "even though they're more supportive of restricting access, or moving the timeline of when women can access abortion back."

"This kind of very extreme ban is not super-popular," she said.

Imani Gandy, senior editor of law and policy at Rewire.News, said it's hard to imagine the legal ramifications if the Supreme Court or lower federal bench doesn't move against that piece of the law.

"It really does create this sort of mercenary society where we're a nation of people who are snitching and surveilling each other," she said.

Some GOP pollsters say giving other citizens the right to pursue enforcement could spark privacy concerns among parts of the base that have resisted COVID-19 regulations.

"The enforcement mechanism is truly a bizarre and probably unconstitutional," Ayers said. "The libertarian wing of the party will be appalled by the enforcement mechanism in SB 8."

All the while, abortion is top of mind for voters.

Gallup reported 47% of those polled in May, months before the Supreme Court's decision, said abortion will be one of the most important factors in voting for a candidate of a major office. Simultaneously, 24% say they will vote only for candidates who share their views on abortion. That number is significantly higher than in other years.

Republicans largely silent

Major Republicans and conservative organizations haven't been proactive in voicing support for the bill since it took effect or have not said whether they back the law.

The National Republican Senatorial Committee, the campaign arm for Senate Republicans, did not post about the new Texas law on Twitter in the following days but posted more than 20 times on Afghanistan. The organization did not post a public statement.

The Republican Governor's Association has not made any statement either in the past week, but it has retweeted Abbott's messages about immigration, election security and business and infrastructure investments.

Similarly, the National Republican Congressional Committee, which raises money for House Republicans, did not post about the Texas law on social media, and no public statement was found.

USA TODAY reached out to the Republican party's campaign arms for comment or direction to public statements and was told none were available.

Texas Republican Sens. John Cornyn and Ted Cruz have been mostly silent about the law on social media and posted no public statements.

Sen. John Cornyn R-TX speaks about border security during a press conference with Sen. Ted Cruz R-TX at the  Anzalduas International Bridge in Mission, Tx on Thursday, Jan. 10, 2019. The senators accompanied president President Donald Trump on his trip to the southern border earlier in the day. (Via OlyDrop)
Sen. John Cornyn R-TX speaks about border security during a press conference with Sen. Ted Cruz R-TX at the Anzalduas International Bridge in Mission, Tx on Thursday, Jan. 10, 2019. The senators accompanied president President Donald Trump on his trip to the southern border earlier in the day. (Via OlyDrop)

Cornyn retweeted a few posts analyzing the bill, and USA TODAY was told from his office that there were no further posts. Cruz's office did not point USA TODAY to any public statement.

A spokesman for Senate Minority Leader Mitch McConnell, R-Ky., told USA TODAY his office would forward any statements on the law if the GOP leader made any. But McConnell did offer a brief and reserved reaction about the law when speaking at an event in Kentucky last week.

“I think it was a highly technical decision,” he told reporters. “Whether it leads to a broader ruling on Roe vs. Wade is unclear at this point.”

House Minority Leader Kevin McCarthy, R-Calif., hadn't posted a public statement, either. The official GOP Twitter account also had not mentioned the abortion bill.

Sen. Bill Cassidy, R-La., said on ABC News that he believes the Supreme Court will ultimately overturn the Texas law, despite its refusal to last week.

"I think the Supreme Court will swat it away once it comes to them in an appropriate manner. If it is as terrible as people say it is, it will be destroyed by the Supreme Court," Cassidy said.

As for Democrats, they've attacked the bill with vengeance.

"The Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering," House Speaker Nancy Pelosi, D-Calif., said in a statement. “SB8 delivers catastrophe to women in Texas, particularly women of color and women from low-income communities."

Pelosi said the House will vote later this month on a bill that would protect the right to abortion across the country by codifying Roe v. Wade.

Congress: Pelosi says House will vote on abortion access bill in response to Supreme Court decision on Texas law

The bill brings abortion into high-profile races

The Texas law will likely play a role in next year's battle for the Senate, where there is a 50-50 party breakdown.

In the battleground state of Pennsylvania, for instance, candidates from both sides are rushing to succeed retiring Republican Sen. Pat Toomey.

Democratic candidate Val Arkoosh pounced on the Texas abortion law, tweeting: "Say it with me: End the filibuster. Codify Roe v. Wade. The Senate should come back and do it – now."

The five-person Pennsylvania GOP field, however, has been mostly quiet.

None of the Republican contenders responded to USA TODAY's request for comment except for Craig Snyder, a former chief of staff for the late former Sen. Arlen Specter who is running as an anti-Trump candidate.

Snyder, who said he supports the unborn and "autonomy" of women, said the law is "clearly unconstitutional" based on Supreme Court precedent. He said it represents a sharp departure from what most general-election voters believe about abortion.

"I think it's another victory for extremism over the views of what I think is the American majority," Snyder said.

In other states, Republican candidates have avoided touting Texas' law specifically while still framing the abortion fight as a weakness for Democrats.

One of the high-profile races in 2021 will be Virginia's gubernatorial contest between Republican Glenn Youngkin and Democrat Terry McAuliffe.

The Youngkin campaign fired off a press release Tuesday afternoon chastising McAuliffe for his past comments on abortion, but it made no mention of the Texas law.

Youngkin dodged a CNN reporter when asked three times on Tuesday if a similar six-week ban such as the one in Texas should be made law in Virginia, saying only that he's "pro-life."

Youngkin campaign spokeswoman Macaulay Porter said that from the start of the race Youngkin has been an anti-abortion candidate who "believes in exceptions in the case of rape, incest and when the mother’s life is in jeopardy."

"Terry McAuliffe is trying to divide us and distract from his own extreme, pro-abortion position," she said in a statement. "The Texas law is not something that is here in Virginia. What is in Virginia is Terry McAuliffe’s extreme agenda, which advocates for abortion, all the way up through and including birth.”

The McAuliffe campaign has gone on the offensive with a series of attack ads to remind Virginians about Youngkin's anti-abortion stances. It also revived a video released by a liberal activist in July showing Youngkin telling a voter he is keeping quiet about his anti-abortion views.

McAuliffe said that if elected to another term, he will "enshrine" abortion rights into the state Constitution and fight for new protections. He also expressed confidence that left-leaning and independent voters will come out big this November as a warning shot to Republicans in 2022 about how they have overstepped.

"The future of this country is going to be a battle to protect and preserve woman's rights to make their own decisions about their own body," McAuliffe said.

Supreme Court back in the spotlight?

Democrats see the Texas law as a way to remind voters of the importance of the Supreme Court – and how Senate control plays into that longer game.

Historically, the party not in control of the White House has success in midterms, which could have a direct influence on the court because the Senate is tasked with confirming nominees. With three Donald Trump nominees on the bench, conservatives now hold a comfortable 6-3 majority.

Jazmin Vargas, national press secretary for the Democratic Senatorial Campaign Committee, said Democrats plan on highlighting the abortion ruling over the Texas law and the Supreme Court's power in the midterm elections.

“The freedom for women to make our own health care decisions is on the ballot in 2022 and in key Senate battleground states. Democrats will be holding Republican Senate candidates accountable for their anti-choice record and we will be reminding voters of the stakes in next year’s election – and why we must defend a Democratic Senate majority with the power to confirm or reject Supreme Court justices," she said in a statement to USA TODAY.

The Supreme Court's decision not to interfere with Texas' strict abortion law provoked outrage from liberals and cheers from many conservatives.
The Supreme Court's decision not to interfere with Texas' strict abortion law provoked outrage from liberals and cheers from many conservatives.

The House Democrats' campaign arm also came out swinging on the new law.

“We’re going to make clear to the American people that this type of draconian law – that targets people seeking reproductive care and places bounties on the heads of those who help them – risks becoming the norm under a Republican majority, and Democrats won’t allow that to happen," said Democratic Congressional Campaign Committee spokesperson Nebeyatt Betre.

But CNN political commentator Scott Jennings, a longtime Republican adviser, said Democrats and others should pump their brakes before thinking the lack of a GOP rally in the days after the Texas law took effect represents a tectonic shift in a nearly half-century-old debate.

"Are there any voters out there who don't know that the Republican Party is the pro-life party and the Democratic Party is the abortion party? It's been a clear contour of our elections for a long time," he said.

Jennings said that outside Texas, each conservative candidate at the Senate and gubernatorial level is making their own decision on how to handle the issue but that the GOP isn't going to abandon its anti-abortion base.

"There's an assumption by Democrats that they're going to be able to make an entire election about abortion, when you've got runaway inflation, Afghanistan debacle and COVID is now resurging," he said.

Anti-abortion activists aren't fretting about Republican reticence thus far, saying Texas legislators have inspired leaders in other Republican-controlled state legislatures to say they are looking to mimic the law.

"We are in the early days, so time will tell," said Kristan Hawkins, president of Students for Life of America.

She said social conservative activists are inspired by the "innovative ways to protect life" that Texas Republicans used to enforce the six-week ban, and there is a growing expectation that politicians will follow through.

"Empowering private citizens was a response to a legal and political class failing to do their jobs and enforce the law," Hawkins said.

The Supreme Court's work on abortion isn't over. The court is expected to hear a blockbuster challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy.

That dispute, which could be argued at the court later this year and decided next summer right before the elections, is expected to address central questions about the constitutionality of abortion and restrictions on it imposed by states.

Ayers, the GOP pollster, said abortion will remain an "unresolvable moral issue" but added that Democratic and Republican campaigns are measuring how much Texas has tipped the political scales, even if by inches.

"Americans as a whole view abortion as a moral dilemma that I believe will never be fully resolved to the satisfaction of people on either extreme of the debate."

This article originally appeared on USA TODAY: Texas abortion law may hurt Republicans in 2022 midterms, experts say

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