Top aides to President Joe Biden say that the publishing of a draft majority opinion on abortion rights from Justice Samuel Alito has made their jobs easier: Even if the final decision ends up backtracking from the full overturning of Roe v. Wade, there’s no hiding the Supreme Court’s intent.
Advisers to the President who were divided about how hard to lean into talking about abortion rights as a top issue are now united. Democrats around the country are lit up. And the political response, as well as the limited executive actions, that Biden aides had been planning for months have become much easier to roll out.
“The simplicity of this makes it a lot easier to mobilize and communicate,” a Biden adviser told CNN, emerging from scrambled meetings in a West Wing that, like everywhere else, was caught off guard by Politico publishing Alito’s draft opinion. Aides thought they’d have to do the work convincing voters that any adjustment to abortion rights was, in effect, a ban on Roe. Alito’s draft did that for them.
“No matter what nuance they add into it,” the adviser said, “it’s overturning Roe.”
Rarely in politics does a moment like this come along, in which the abstract is suddenly made very real – when incremental change is replaced by a lightning bolt that immediately zaps everything into a new reality.
Biden advisers, over a dozen leading Democratic politicians and top party strategists tell CNN they doubt that this alone can redefine an election year, which seems completely soured against them. But, they say, if anything can change 2022 politics, this is it. They’re hoping it spikes passion among the voters that Democrats need most: Suburban women who are many of the traditional swing voters and the younger voters and disaffected Democrats who may have barely cared about the midterms – if they knew the elections were happening at all.
The harshness of Alito’s language in the draft decision, coupled with the turnaround from his and other justices’ confirmation hearing statements that Roe was settled precedent, also has the White House and Democrats at all levels set to argue that abortion rights are just the beginning. Biden and others will argue that everything from birth control to gay marriage is now under threat.
“They are not going to stop at choice,” Laphonza Butler, the Emily’s List president, warned this week at the annual gala for the Democratic women’s group devoted to electing pro-abortion rights women.
A calculated response scrambled by a lightning bolt
The President’s inner circle and other leading Democratic strategists had envisioned the court’s decision would be a politically savvier approach to a monumental question, expecting the Republican-appointed justices to legally eviscerate abortion rights without being quite as explicit.
Upholding the Mississippi law banning abortion after 15 weeks, the Supreme Court case is about, Biden aides felt, could have come across as common sense and not quite outrageous, despite the cascade of legal consequences that could have had the same practical effect.
White House aides had planned to release a number of executive actions and other moves after the Supreme Court decision, expected in June, showing that the Biden administration is taking action in defense. External allies who’ve been in conversation with aides have floated potential responses that could range from the Justice Department to the US Food and Drug Administration.
When the draft opinion was published Monday, the significance of what the Supreme Court seems on track to do suddenly minimized anything that Biden or other officials could come up with.
“Honestly,” the Biden adviser said, “this is all around the margins, given what taking down Roe means.”
Realistically, their recourse is at the ballot box – which means convincing base voters not to give up on Democrats because there’s no immediate response on Capitol Hill, as there’s little appetite among recalcitrant senators in their caucus to abolish the filibuster to codify Roe.
The President’s own views made the preparation trickier inside the White House.
Abortion rights are perhaps the most complicated issue for Biden personally, and not just because he holds his deep Catholic faith in concert with a commitment to abortion rights laws. Like many of his advisers, he came of age politically in the 1970s, ’80s and ‘90s when Democrats largely believed that talking about their abortion rights positions was a liability and worked hard to avoid the topic.
That contrasts with younger aides in the West Wing, who have been pointing to clear results in recent polling that show huge opposition to banning abortion – despite significant remaining support for restrictions like the post-15 weeks ban – and Democratic voters eager to reward politicians who stand up forcefully for abortion rights.
The starkness of the draft opinion ended that debate, starting from the moment White House chief of staff Ron Klain called to tell the President about it being published to when he huddled with staff the next morning. In that meeting, Biden said, according to his adviser, that he thinks Alito’s logic is precisely worded to have far-reaching impact, despite language in the draft about the decision being constrained to overturning Roe. He went at points into constitutional law professor mode, marveling at going against what had seemed to be 50 years of settled law.
Biden advisers expect that he’ll be talking about abortion rights intensely through November, leaning on news from Republican-majority state legislatures that convene sessions following the decision to pass new restrictions, and keeping close watch on Republican officials who will keep expressing their excitement over Alito’s leadership and those who may stumble into viral gaffes.
Campaign officials at the House Democrats’ campaign arm have already built files on Republicans with every vote they ever cast to defund Planned Parenthood and scans of every handwritten questionnaire from they could find of the candidates telling advocacy groups that they support repealing Roe. College campuses will have organizing drives in the fall.
“You have layers and layers of fight and focus and attention here,” the Biden adviser said.
The President himself will also use the decision, as he did on Wednesday morning, to amp up the argument he’d already been planning on making into the fall: That the Republicans are extremists who can’t be trusted with power, no matter how unpopular voters find Biden and his agenda. After months of failing to get many people around the country to care much about the January 6, 2021, insurrection, Democrats say, this could be the opening.
“You had these right-wing Republicans chipping away, pushing the courts as far as they could. If it’s gone, then they can do anything they want,” said Roy Cooper, the governor of North Carolina and the chair of the Democratic Governors Association. “It builds on each other. You have Republicans who had tried to destroy democracy. Now you have them trying to take away women’s reproductive freedom.”
Harris resisting a new role
For months, informal advisers to Vice President Kamala Harris had been urging her to make abortion rights her mission for the midterms, arguing that this could provide her with the footing that she and her inner circle struggled to find over her first year in office.
Abortion rights, she was told, is an ongoing fight and one extremely popular with the Democratic base – much different from politically losing issues in her portfolio like handling migration diplomacy with Northern Triangle countries, which allowed Republicans to turn her into the point person on the border crisis, and taking on the White House’s false start on a big voting rights push last year.
Leading the charge against any abortion decision, she was advised from the outside, could help her connect with voters that the party needs now and that she would need for an expected future presidential run of her own, several people familiar with operations in her office told CNN.
On Tuesday morning, the written statement about the draft decision Harris’ office released had been watered down from an original version. But by Tuesday evening, Harris herself rewrote the text of a speech she’d by happenstance been scheduled months ago to give at the gala for Emily’s List.
“Those Republican leaders who are trying to weaponize the law,” she said. “How dare they? How dare they tell a woman what she can do and not do with her own body?”
Harris’ sharp speech recalled some of her more popular breakthrough moments on the campaign trail, rather than the middling mush for which she has often been mocked.
“What folks are looking for is a fierce advocate and a vocal advocate at the highest level of government that this is something we have to fight for,” said one person familiar with her thinking, the morning after the speech. “That’s who they know her to be.”
An issue rooted in women’s rights and a legal fight would seem a natural fit for a former district attorney and attorney general who is now the highest-ranking woman in American history, and who notably hosted the first-ever White House meeting with abortion providers last September. In her Emily’s List speech on Tuesday night, she even referenced one of her breakout moments – questioning Brett Kavanaugh during his Supreme Court confirmation hearings, complete with a mocking imitation of him stammering in response.
“It’s an historic moment and she is right to speak up. The first woman VP should be out front leading this fight,” a former adviser said after the Emily’s List speech, hopeful that this moment could help fuel a reboot.
Standing in the way of that plan for the moment is Harris herself. Reflecting bigger issues that the vice president has been running into within the administration, Harris and aides are wary of outshining, or even being interpreted as trying to outshine, Biden. She doesn’t want to get stuck again being the public face of a fight she has no actual policy authority over, which to her translates as being set up to fail.
More than any of that, though, is Harris’ reluctance to be cast as just a woman fighting on a women’s issue – though at one point during her presidential campaign, she directly attacked Biden for originally supporting the Hyde Amendment, which prevents government funds from being used on most abortions. She recoils at that sort of tokenism on the part of the administration, adamant in private meetings that overturning Roe should be talked about in the larger legal context of eliminating other rights that reach far beyond women.
Harris supporters hope that will shift as she and her staff continue to absorb how much has shifted – if not immediately, then by the time the actual decision is issued.
“She can talk about infrastructure, and she should. And sure, she can talk about vaccines and maternal health, and she should,” said one person close to Harris, referencing some of the vice president’s other priorities. “But you can’t talk about maternal health in this moment without talking about abortion. You just sound silly.”
“My sense,” the person said, “is that they are just going to do it because they can’t not.”
Biden’s own team, meanwhile, is eager to keep the focus on him.
“She’s going to have a huge part in this, but I think it’s important that the President’s going to keep communicating on this,” the Biden adviser said. “This is a whole of government effort.”
Meanwhile, one notable other figure from the administration is already leaping in.
Answering a question on Wednesday night during an appearance at the University of Chicago’s Institute of Politics, Transportation Secretary Pete Buttigieg delivered an answer that echoed many of the themes of his 2020 presidential primary run.
“For as long as I’ve been alive and a lot longer than that, the general path of social and political life in America and the general path of jurisprudence in this country has been toward more freedom, more liberty and more rights,” he said. “And the question that I think has now been called is, did we just live to see the high watermark of liberty and freedom and rights in this country? The moment that will be remembered as the furthest we got before things started moving the other way? Or will that wave recede and we’ll get even further?”
Democrats see an existential moment
The Democratic Legislative Campaign Committee, which helps coordinate strategy and fundraising for statehouse candidates around the country, saw a spike in online donations and a 1,200% increase in traffic on its site after Politico’s story posted. Similarly, Planned Parenthood Federation of America and Planned Parenthood Action Fund said in a statement that their volunteer sign-ups for mobilization events increased by ten-fold starting Monday night, with major activity and fundraising online. An aide to the Democratic Senatorial Campaign Committee told CNN that fundraising emails since Monday night “broke cycle-long fundraising records within mere hours of being sent.”
If Roe is overturned, state legislatures will be where abortion rights are either codified or wrenched back to the point of penalizing women who receive them, raising hopes they might now be able to get Democrats to care as much about these local races as Republicans have for years.
“It’s a key wedge issue that’s been elevated. Voters are looking to see if this is a Republican they can identify with, or is this a Republican that’s a bad apple,” said DLCC President Jessica Post. “It’s like all of the apples have gone bad – not just the orange one.”
For months, gubernatorial candidates have been preparing to argue that abortion rights are central to their campaigns, particularly in states where Republicans have majorities in the legislatures.
“Our Democratic governor’s veto pen is really the only thing we have to protect the right to choose here in Pennsylvania,” said Josh Shapiro, the attorney general and Democratic nominee for governor in the state, said in a phone call with reporters the morning after the draft opinion was published.
Previewing how the radical nature of the overturned precedent could play into other races, a Democratic strategist recalled a focus group in Bucks County, Pennsylvania, in 2010 – a key territory in the last Republican wave year. During that group, a college-educated White woman in her late 30s or late 40s, a mother, explained that she wasn’t concerned about the Republican candidate’s anti-abortion rights position, despite supporting abortion rights herself.
It wasn’t like abortion was ever actually going to be illegal, the woman told the moderator.
With Biden leading the charge, Democrats are going to seize on every comment regarding abortion, big and small, that every Republican has ever made.
“Republicans have been giving away the cheap and easy stuff to the base because they didn’t think it would matter,” said a national Democratic strategist who was in the room for that focus group. “Now it’s going to matter.”
The Biden adviser echoed that thinking, previewing how the President himself will continue talking.
“This issue doesn’t require gadgets and widgets and extraordinary measures,” the adviser said. “The reality is that it’s so significant that I think you can just be straight on it.”
This will be a visceral, direct campaign against Republicans, said Sen. Gary Peters of Michigan, the chair of the Senate Democrats’ campaign arm. Democrats will ask what Republicans propose to do if a 17-year-old girl was raped and lives in a state now without access.
“There was always the backstop of Roe v. Wade,” Peters said. “Now this is a completely different environment.”
Democrats have been failing so far to make voters feel that they are doing enough to address their worries about inflation and the economy. Talking about abortion won’t replace the work they know they need to do on that, Biden aides and other top Democrats said, but it will give them another argument.
“This is the first time in history rights have been taken away,” Peters said.
And this won’t be just about appealing to women, said Peters. He recalled a story – one that he first shared publicly in 2020 – about how a massive problem with his first wife’s desired pregnancy forced them to seek an abortion at four months. Though Peters and his wife had wanted to have a child, their doctor had said the fetus wouldn’t survive.
Michigan has a 1931 law banning all abortions, which will be triggered if and when Roe is overturned. He considered what they would have done then if Roe hadn’t been law. Would she have died? Would they have had to figure out how to get to another state as she was struggling? Would they have had to find their way to a backroom clinic where a doctor would have, without full medical access, performed the procedure illegally?
Every abortion story, Peters argued, is bound up in questions like these.
“To force people to do things that are extreme when they’re under emotional distress is unconscionable,” he said.
Peters is a 63-year-old White man who makes a $174,000 salary as a senator. But he said the way the draft decision has affected him will inform how he and other Democrats make their case through the year.
“Obviously, women are front and center,” Peters said, “but it’s a family issue.”