Three weeks after the fall of Roe v. Wade and the end to the national right to have an abortion, abortion-rights activists have been sorely disappointed with the slow-moving Democratic Party’s response.
Abortion legislation in Congress has stalled, and the White House has shot down measures such as building abortion clinics on federal land, infuriating activists. Democrats have instead focused on keeping control of Congress in the November midterms, even as Republicans are heavily favored to take back the House of Representatives.
But we did not get to this point overnight.
While Republicans have spent decades chipping away at the right to abortion, Democrats have helped them by spending decades de-prioritizing it, thanks to a big-tent approach at the expense of ideological consistency, a hostility toward “litmus tests,” and an assumption that the Supreme Court would always remain a bulwark against Republican attacks on abortion rights.
“There was a certain feeling we had before [Supreme Court Justice] Sandra Day [O’Connor] left that the court would never, never, never, never, never overturn Roe, because as the years went on, it became precedent,” former Sen. Barbara Boxer told VICE News, referencing the first woman on the Supreme Court, who co-authored the court’s plurality opinion in the case Planned Parenthood of Southeastern Pennsylvania v. Casey.
Ironically, Congressional Democrats are now—finally—closer than they’ve ever been to codifying Roe v. Wade. In September 2021, the House passed the Women’s Health Protection Act, which would prohibit state and local restrictions on abortion, on a nearly party-line vote with just one House Democrat opposing, Rep. Henry Cuellar of Texas.
But it’s too late to save Roe. The question now is whether abortion will finally become and stay a priority for Democratic politicians and voters—and what the consequences will be if it doesn’t.
Biden entered the Senate just weeks before the Roe decision was handed down in January 1973, and soon said that the decision went “too far.”
Throughout the four Democratic presidencies between the Roe decision and now, the Democratic Party chose not to enshrine or reinforce the protections granted by Roe—in part because it owed those majorities to anti-abortion Democrats.
For much of the history of abortion rights since the landmark 1973 ruling, the Democrats have had a loud caucus of abortion opponents, a remnant of the New Deal coalition. For example: The “Casey” in the 1992 Casey case where the Supreme Court weakened Roe by allowing states to implement onerous restrictions on providers and people seeking abortions, was Pennsylvania’s Democratic governor at the time, Bob Casey Sr.
President Jimmy Carter, who took office four years after the Roe decision, wrote in a 2006 memoir that “every abortion is an unplanned tragedy, brought about by a combination of human errors” and said that while he “accepted my obligation to enforce the ‘Roe v. Wade’ Supreme Court ruling,” he also “attempted in every way possible to minimize the number of abortions.” (The Carter Center, which Carter and former First Lady Rosalynn Carter founded in 1982, denounced the Dobbs ruling last month.)
Roe decision ‘too far’
Biden entered the Senate just weeks before the Roe decision was handed down in January 1973, and soon said that the decision went “too far” and that women shouldn’t have the “sole right” over their own bodily autonomy. Biden, a Catholic, voted for a 1982 bill that would have overturned Roe and returned the issue of abortion to state legislatures, but later began to embrace a more moderate line.
Boxer, who served with Biden in the Senate for 15 years, told VICE News that she and other women in the Senate persuaded Biden to support legal abortion rights, even though he was still personally opposed. “We worked very hard to explain to him that we totally understood his personal religious objection to abortion, but then saying not everyone shares that religion or shares that view,” Boxer said. “And he changed totally.”
But this evolution appears to still be ongoing. When the president first announced his campaign in 2019, he reiterated his support for the Hyde amendment, which bans the use of federal funding for abortions, including women receiving coverage and healthcare through Medicaid, the Indian Health Service, and the Department of Veterans Affairs. It was only after severe backlash that Biden revoked his long support of the regulation limiting abortion access, saying he “can no longer support an amendment that makes that right dependent on someone’s zip code.”
Even after his election, Biden only publicly uttered the word “abortion” for the first time since becoming President in May, according to didbidensayabortionyet.com, a website operated by the abortion storytelling organization We Testify.
After the Casey decision was handed down, some Democrats in Congress began pushing harder to defend the basic protections that were then still provided by Roe. In 1993, two years before Republicans took control of Congress, 41 senators (including Biden) and 142 House members, mostly Democrats but several Republicans, signed onto the Freedom of Choice Act, a bill that would have effectively made Roe’s protections federal law.
“Bill Clinton and his allies said, ‘OK, well, it would be great if we could codify abortion rights, but if we can’t, the Supreme Court isn’t going to overturn Roe.’”
But the bill was never brought to the floor for a vote, despite the insistence of then-Senate Majority Leader George Mitchell. Mary Ziegler, a Florida State University professor and legal historian of reproductive rights, said that Democrats were not alarmed by the weakening of Roe in the Casey decision, but rather relieved that the Supreme Court had once again affirmed Roe’s basic principles.
‘It wasn’t a priority’
“There was this idea that the Supreme Court would salvage things, and so it wasn’t a priority,” Ziegler told VICE News. “So Bill Clinton and his allies said, ‘Okay, well, it would be great if we could codify abortion rights, but if we can’t, the Supreme Court isn’t going to overturn Roe.’”
Boxer began reintroducing the Freedom of Choice Act during the early 2000s, feeling a renewed sense of urgency following the election of George W. Bush, an abortion opponent. After the passage of the inaccurately-named Partial-Birth Abortion Ban in 2003 (which was supported by dozens of Democrats), and O’Connor’s retirement and replacement by Justice Samuel Alito in 2006, Boxer felt there was real need to pass the bill, she told VICE News.
“When [O’Connor] retired, my heart sank,” Boxer told VICE News. “And when Alito got her seat, I voted against him. I knew he would be terrible on this, but I didn’t know just how cruel he would be.”
But Boxer’s Democratic colleagues didn’t necessarily feel the same way. She introduced the bill in three sessions between 2003 and 2007, but the bill never had more than 19 co-sponsors in the Senate. An amendment to the Partial-Birth Abortion Act expressing support for the Roe decision, authored by Iowa Sen. Tom Harkin and described by Boxer as a way to “test” support for a national abortion rights law, passed with 52 votes—eight short of the filibuster-proof majority.
“We didn’t have the votes,” Boxer said of a bill to legalize abortion at the federal level. “We never had the votes.”
“We didn’t have the votes. We never had the votes.”
It wasn’t just apathy stonewalling an abortion rights bill, however. In the 2000s and early 2010s, the Democrats still had a minority anti-abortion element within the party, which still held substantial sway in Congress.
This was an active choice. The leaders of the Democratic campaign committees, including the future White House chief of staff and Chicago Mayor Rahm Emanuel, made conservative, anti-abortion candidates—such as former NFL quarterback-turned-Rep. Heath Shuler of North Carolina and Sen. Bob Casey of Pennsylvania, the aforementioned Casey’s son—the centerpiece of their recruitment strategy during the 2006 midterms, which saw them take back control of Congress. Emanuel once described the group as “moderate in temperament and reformers in spirit.”
The Democratic Party has only recently caught up to the remarkably steady popularity of abortion in America. In 1975, two years after the Roe decision, 75 percent of Americans supported abortion rights in at least some circumstances, according to Gallup. After Casey in 1992, that number was 82 percent. In May, before the Dobbs decision came down, 85 percent of Americans supported abortion rights in some circumstances, and nearly three times as many people said it should be legal in all circumstances—35 percent vs. 13 percent saying it should be completely illegal.
“Abortion is always popular with people who need abortion,” Dr. Jamila Perritt, the president and CEO of the nonprofit Physicians for Reproductive Health, told VICE News. “It’s something that those who need the care support, and I think that’s the missing piece in the way we talk about it and the way it’s been politicized.”
The vast majority of the anti-abortion conservative Democrats in Congress were wiped out after the 2010 and 2014 elections. The Democrats’ current majority and nearly uniform vote for the WHPA in the House is evidence of how the party has coalesced around choice. Shuler retired from Congress after his district was redrawn; Casey has steadily moved left on the issue in the past 16 years, and in May, announced his support for the Women’s Health Protection Act.
“When you get rid of anti-abortion Democrats, you make space for candidates who have lived experiences that the rest of us have,” Renee Bracey Sherman, the founder and executive director of We Testify, told VICE News.
Rep. Judy Chu, the primary sponsor of the Women’s Health Protection Act, came to Congress in 2009 after winning a special election. She told VICE News that “the caucus has changed tremendously” from where it was then until now.
“It’s true that we had a majority of Democrats in the House and the Senate,” Chu said. “But we did not have a majority of pro-choice Democrats.”
The Democratic campaign committees have still, in recent years, recruited anti-abortion candidates. The DCCC spent years trying to recruit conservative New Jersey state legislator Jeff Van Drew to run for the House before finally succeeding in 2018. Drew had once backed an effort in New Jersey to require parental approval for abortions. Van Drew won his general election, but a year into his term, he switched parties. Despite previously supporting some abortion rights, Van Drew praised the Dobbs decision and said the Supreme Court “made the right decision to return this issue to the states.”
After the North Carolina primary in May, the DCCC endorsed state Sen. Don Davis for a House seat in eastern North Carolina and added Davis to its program focusing on candidates in swing districts. Davis had been criticized by abortion rights groups for several votes he took in the legislature, including one to override Gov. Roy Cooper’s veto of a “born alive” bill requiring medical professionals to treat babies born after failed abortion attempts, something which already required by existing federal and state law. (After the leak of the Dobbs opinion in May, Davis denounced the decision and said the ruling “demonstrates the urgent need to codify Roe v. Wade and protect fundamental freedoms like abortion”).
Abortion vs. the ACA
The last best chance to codify abortion rights, before now, was during the first two years of the Obama administration. In 2008, then-presidential candidate Barack Obama told a crowd at an event hosted by Planned Parenthood that signing the Freedom of Choice Act would be “the first thing I’d do.” But during a press conference three months after he was sworn in—when Democrats had enormous congressional majorities—Obama said the bill was “not my highest legislative priority.” At the same press conference, he announced a plan to convene a task force including people both supportive and opposed to abortion rights with the explicit goal of reducing the number of abortions in America.
There was also no bill for him to sign. Boxer and Rep. Jerry Nadler, who sponsored the bill in the House, didn’t even bother to re-introduce the Freedom of Choice Act in 2009, when the Democrats briefly had a filibuster-proof majority in the Senate and a 30-plus seat majority in the House.
Boxer said that the fight over abortion within the Affordable Care Act, Obama’s signature healthcare law, showed her that trying to codify abortion rights at the time would be an exercise in futility.
“Just when we were about to vote, we got word that my Democratic colleague [Nebraska Sen.] Ben Nelson was not going to vote for the [ACA], which would have killed it, because insurance on the exchanges was going to pay for abortion,” Boxer said. “He said, ‘I can’t do it, and I’m not voting.’”
Nelson finally acquiesced after what Boxer described as the “most brutal negotiation,” forcing a provision into the bill that people with plans purchased on the healthcare exchanges would have to pay the part of the premium used to pay for an abortion separately from the rest of the plan.
“We knew if we had to struggle this much, with such a small, insignificant piece, what would happen,” Boxer said. “We wouldn’t have been able to get [the Freedom of Choice Act] passed.”
Obama also signed an executive order banning federal funding for abortions in the ACA, as a way to win support from anti-abortion House Democrats led by Michigan Rep. Bart Stupak. “They traded abortion away for healthcare,” Bracey Sherman says. “And here we are.”
But Boxer ultimately pins the failure to codify Roe on voters.
“Don’t blame Obama, and don’t blame Democrats,” she said. “Blame the whole country that cares about this, that cares about gun [control], and voting rights, for sitting on its rear end.”
“When you get rid of anti-abortion Democrats, you make space for candidates who have lived experiences that the rest of us have.”
More people in the 2020 presidential election voted than ever before, in the most high-turnout election since the passage of the Voting Rights Act. And after the Georgia Senate runoffs, Americans voted to give Democrats unified control of government for the first time in 12 years.
Three Trump judges
This time, there should have been zero expectation that the Supreme Court would save Roe v. Wade. Just a few months before the 2020 election, the Supreme Court’s 5-4 conservative majority became a 6-3 conservative majority when Amy Coney Barrett–who indicated during her Senate confirmation hearing that she didn’t see Roe as a settled precedent–replaced the late Ruth Bader Ginsburg on the Supreme Court.
But even after the draft of the Dobbs opinion leaked in May, Congressional leaders and the White House still, somehow, appeared to be caught off-guard when the ruling was handed down.
In the immediate aftermath of the leak, Democratic House leadership rallied around Cuellar, the one House Democrat who had voted against the Roe codification bill. Cuellar was locked in a tight primary battle with pro-abortion rights lawyer Jessica Cisnero, which he ultimately won by less than 300 votes. House Speaker Nancy Pelosi publicly reiterated her support for Cuellar after the leak, and Majority Whip Rep. Jim Clyburn went to San Antonio to stump with him, where Clyburn made the case that the Democratic Party should have more Cuellars, not fewer.
“We have a big-tent party, and if we’re gonna be a big-tent party, we got to be a big-tent party,” Clyburn told reporters after the rally. “I don’t believe we ought to have a litmus test in the Democratic Party.” (When the Dobbs decision came down last month, Clyburn called it “anticlimactic.”)
Boxer echoed Clyburn, saying that while she likely would have prefered Cisneros in the primary, it’s time to “move on.”
“I believe in primaries, and my attitude in primaries is, ‘let’s see what the people want,’” Boxer said. “If I lived in that district, I would probably support the pro-choice woman. But the people spoke. I don't believe in having litmus tests, because you could lose the House.”
The DCCC, Democratic Senatorial Campaign Committee, and Democratic Governors Association did not respond to questions asking whether they would stop recruiting and supporting anti-abortion candidates in the future.
“To them, abortion is a divisive bargaining chip, instead of the core belief that everyone deserves access to healthcare,” Bracey Sherman said of Democrats who support anti-abortion candidates. “Abortion is not a divisive issue, it’s a gerrymandered issue.”
Ziegler said that ultimately, voters who prioritize and care about abortion rights will likely grudgingly vote for Democrats, especially considering the stated intentions of some Republicans to pursue a federal ban.
“As much as advocates are disappointed with the Democratic Party, a lot of them will come home when the alternative is Republicans potentially passing a nationwide abortion ban.”
Still, Ziegler said Biden—whose approval rating has plummeted to 33 percent while two-thirds of Democrats don’t want him to run for a second term in 2024, according to a recent New York Times poll—risks ceding ground to Republicans if he’s perceived as not doing enough to preserve access.
“The danger for Biden and Democrats and doing nothing is that Republicans will essentially message, ‘they had the White House and Congress, and nothing happened, so if abortion is your issue, do you really want to vote based on that?’”
For Bracey Sherman, the Democrats have to make a more positive case for what they’ll do if they expand their majorities. “There’s been a really bad rupture,” Bracey Sherman said. “I think a lot of people are feeling let down. It can be repaired, but they have to do the hard things.”
“They have to use the word ‘abortion,’ and they have to show up.”
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