Last Tuesday, Senate Minority Leader Mitch McConnell was asked whether he would try to pass a national abortion ban if the Supreme Court overturned Roe v. Wade, as it appeared poised to do, according to the leaked draft opinion that had been publicized the night before. The Kentucky lawmaker dodged the question, insisting that the takeaway from the SCOTUS draft was not the obliteration of abortion protections it forecasted but “the fact that the draft was leaked”—a fixation for many Republican lawmakers over the week. “You need, it seems to me, a lecture to concentrate on what the news is today,” McConnell told reporters, per Politico.
By Thursday, however, McConnell was apparently willing to say the quiet part out loud. Asked by USA Today whether a national ban “is something worthy of a debate,” the top Senate Republican said Republicans might indeed entertain the idea, according to the interview, which was published on Saturday. “If the leaked opinion became the final opinion, legislative bodies—not only at the state level but at the federal level—certainly could legislate in that area,” McConnell said. “And if this were the final decision, that was the point that it should be resolved one way or another in the legislative process. So yeah, it’s possible.”
As NBC News pointed out, “It’s unlikely that any legislation to outlaw abortion—or enshrine it nationwide—would gain 60 votes in the Senate in the near future”—circumstances that render Democrats’ plan to force a vote to codify abortion rights into federal law this week all but doomed. Some Democrats, such as Sen. Bernie Sanders, have proposed changing the filibuster in order to pass legislation that codifies Roe into law with a majority vote. But “even if Democrats could somehow eliminate the filibuster and muster 51 votes to codify Roe,” The New York Times notes, “the move could backfire; a Republican majority in Congress and a Republican president could then ban abortion nationwide with 51 votes—with no need to change Senate rules that Republicans have maintained are sacrosanct.”
In his USA Today interview, McConnell insisted that if Republicans retake the Senate in this year’s midterm elections, he would not end the filibuster to pass legislation on abortion. “No carve out of the filibuster—period,” he said. “For any subject.” But McConnell could change his mind on the filibuster at any point. He has already spent years helping remake the judiciary that now, according to Supreme Court Justice Samuel Alito’s draft opinion, appears likely to strike down the 1973 landmark decision guaranteeing a woman’s right to choose. And in 2017, under his leadership, Republicans scrapped the 60-vote threshold for Supreme Court nominees to advance the confirmation of Neil Gorsuch, Donald Trump’s first pick. (Democrats have also altered the filibuster for presidential appointments, the Washington Post notes.)
Democrats have seized on the fear of a nationwide abortion ban to galvanize voters ahead of November’s elections. “Mitch McConnell confirmed what voters have long known: Republicans will use every tool they can, from the courts to Congress, to make abortion illegal everywhere and strip away a woman’s right to make our own decisions,” Democratic Senatorial Campaign Committee (DSCC) said in a statement Saturday, in response to USA Today’s reporting. “For voters, the stakes of protecting and expanding our Democratic Senate majority in 2022 have never been higher.”
Several Senate Republicans, including Sens. Mitt Romney and Cynthia Lummis, told NBC News last Thursday that abortion restrictions should be left up to states, though others, including Sens. Josh Hawley and Kevin Cramer, weren’t willing to rule out a push for federal action. Neither was Sen. Joni Ernst, a member of the GOP leadership. “We’re debating now. We’re going to continue to debate that,” she told the outlet.