Abortion Rights in Swing States Will Determine Who Controls the Senate in 2021

With the Democrats blocked from codifying the protections provided to women by the Supreme Court’s Roe vs. Wade decision, they must now turn their attention to organizing state-level elections this coming November. But not in all states — only in those with reasonably winnable seats.

The Democrats’ strategy of relying on national polls, even accurate and reliable, would continue to lead to defeats in the Senate. As I argued in To Save Roe in Congress, the D’s Must Change Their Strategy, that strategy fails to target critical races that can sustain or enlarge the Democrat’s presence in Congress. It also fails to recognize that being pro-abortion does not mean the same thing to all who oppose banning abortion.

The D’s must consider how the abortion issue affects the Democrats to keep control of the Senate. They need to protect four incumbents listed by the non-partisan Roll Call website as the most vulnerable Democrats to lose in November: Mark Kelly in Arizona, Cortez Masto in Nevada, Raphael Warnock in Georgia, and Maggie Hassan in New Hampshire. Biden won all four states only by slim margins.

If the status of all Senate seats is not changed, losing just one of these races will turn control of the Senate over to the Republicans. To obtain a margin of safety, the Democrats must gain seats. They have a reasonable chance of taking three seats from the Republicans. Wisconsin’s Ron Johnson holds the most likely seat. Two incumbent Republicans chose not to run for reelection: Ohio’s moderate Republican Rob Portman and Pennsylvania’s conservative Pat Toomey.

Although an abortion ban will happen almost immediately in four of these seven states, Arizona, Georgia, Ohio, and Wisconsin, a national future prohibition would apply to all states. That is a real possibility if the Republicans gain 60% of the seats in the Senate or if the filibuster is removed by the Republicans. With they increase their seats by one above their current number they could amend the filibuster rule without Democrats blocking them.

Democrats must frame their abortion position as protecting constitutionally protected personal rights. However, embracing the right to have an abortion any time before birth may lose those Senate elections. An MSNBC poll shows that while 58% of voters oppose overturning the Roe decision, support for abortion dramatically decreases with having an abortion in the third trimester. Support for legal abortion in most or all cases is at 61% for the 1st trimester, 34% for the 2nd trimester, and 19% for the 3rd trimester.

In approaching future elections, the debate over the right to have an abortion has become a cultural war between the parties. The Republicans accuse the Democrats of murdering human life, a position that Justice Alito references as common law. The Democrats accuse the Republicans of returning women to being second-class citizens.

Organizers, mostly from Planned Parenthood, UltraViolet, and MoveOn, initiated more than 380 protest events demanding that the right to an abortion is a protected right under the constitution. The immediate intensity and national breadth of support for retaining Roe demonstrate the energized core of pro-choice voters. If organized, they could replace anti-abortion Republicans with pro-abortion Democrats.

The anti-abortion movement has not ignited similar massive rallies to Justice Alito’s leaked majority opinion. Although his opinion validates conservatives’ belief that the Roe decision was “egregiously wrong,” as Alito opined, protest rallies have garnered a much larger response than celebrations. Democrats’ more visible demonstrations are evidence of greater passion but not as proof that more Republicans will be voted out of office for their anti-abortion stance.

Nevertheless, polling shows that the Republicans’ overthrowing the Roe decision may motivate more Democrats to vote in November. Ayman Muhyiddin of MSNBC shared a new poll on May 6 showing that overturning Roe would make 45% of Democrats more energized to vote in November. Still, only 25% of Republicans will be more energized. If that poll is correct, it will help the Democrats overcome some strong headwinds. According to conservative columnist Marc A. Thiessen, the Ds “face a massive 17-point enthusiasm gap going into the midterm elections. The last time Republicans demonstrated so much more zeal was in 2010 when Democrats lost more than 60 seats in the House.”

But getting more Democrats to vote may not be enough to win elections, considering that independents and former Trump supporters helped elect Biden in 2020 by a very slim margin. So will they vote again for Ds based primarily on abortion rights?

Emma Hurt in Axios reports how Georgia swing voters in the latest Axios Engagious/Schlesinger focus groups strongly support abortion rights. However, they say that issue alone probably won’t decide who they support in November’s midterm elections.

The focus groups consisted of 13 Georgians, all from the greater Atlanta metro region, who voted for Donald Trump in 2016, then Joe Biden in 2020. Three identified as Democrats, six as Republicans, and four as independents. Although focus groups are not statistically reliable, they reveal subtleties that raw data often miss. For instance, consider a recent poll taken by the University of Massachusetts Amherst.

The UMass poll was conducted immediately following the Supreme Court leak of Alito’s opinion. A nationwide sample of a thousand people gauged their feelings following that leaked opinion recommending that Roe be overturned. Fifty percent of the respondents thought the Supreme Court should not overturn Roe v. Wade and 40% were unhappy if they made that ruling.

However, there is not a clear path ahead because while 45% said they want to see a law passed that would make abortion legal in all 50 states, 39% want to see that decision left up to individual states. Polling results based on aggregate totals do not help guide political strategy if you do not know from which political districts and states they originate.

Those most committed to the cause lead the charge into battle in most wars. But unfortunately, that while passion may win a particular action it may not win the war. Such is the case in the current abortion battles. The side that has the most to lose is the side that succumbs to being led by those that are most adamant about pursuing a total victory.

The Republicans are being led down that path by the Republican leaders that make no exception to abortion for pregnancies resulting from incest or rape. Oklahoma Gov. Kevin Stitt and Nebraska Gov. Pete Ricketts came out to support a no-exemptions ban on abortions.

Stitt later agreed to allow them if a police report was filed. But now, he is preparing to sign a new law bill that would ban abortions from the moment of “fertilization,” which would effectively prohibit almost all abortions in the state.

Total rejection of abortions goes against traditional Republican policy. Every Republican president since Ronald Reagan, including former President Donald Trump, said that there should be exceptions to abortion bans in the case of rape, incest, or the health of the mother. In addition, Republicans, in the past, had adhered to the principle of “vulnerability” for living outside the womb not fertilization as the threshold for not proceeding with an abortion.

The Democrats, meanwhile, need to avoid taking a position that defines abortion as being completely unrestricted. If the Republicans successfully tag Senate Democrat candidates as supporting abortion up to the time of birth, Democrats retaining control of Congress diminishes dramatically.

Should the Democrats maintain control of Congress, they may be able to codify the Roe and the subsequent Casey rulings. It’s a conservative position in that it preserves a law that has been depended on for half a century. On the other hand, should the Republicans take control, they may be able to pass a national abortion ban, which would be a radical position — placing women in a role that they have not been in since the 1800s.

The challenge for Senate Democrat candidates in these seven swing states is to rationally discuss abortion rights outside of the cultural framework of only accepting perfect solutions. If the Democrats are the more reasonable party, they will win.

Nick Licata is author of Becoming A Citizen Activist, and has served 5 terms on the Seattle City Council, named progressive municipal official of the year by The Nation, and is founding board chair of Local Progress, a national network of 1,000 progressive municipal officials.