Just as the bases were getting loaded for a grand slam homerun for the Republican team in the 2022 general election, the Supreme Court of the United States (SCOTUS) managed to strike out its own team. Instead of taking control of both Houses of Congress, the GOP will likely end the election cycle with roughly 48 senators and a razor-thin margin, either way, in the House.
Several factors will have played a part in this GOP election debacle, but the major factor will be the SCOTUS majority’s decision overturning Roe v. Wade. The court’s Dobbs decision, which took away a 50-year federal right to abortion, has energized women voters across the country.
Prior to the leak of the Dobbs draft opinion, new voter registrants in 10 selected states were roughly equal between the sexes. Post-Dobbs, female registrations in those states increased over male registrations by between 0.5 percent and 15.9 percent. Kansas experienced the remarkable 15.9 percent jump, which likely contributed to the resounding defeat of the state’s anti-abortion ballot measure in August.
A Quinnipiac University poll released on Aug. 31, disclosed that 57 percent of male registered voters and 62 percent of female voters thought abortion should be legal in most or all cases. And 64 percent of women thought it “very important” that midterm candidates share their view on abortion, compared to 44 percent of men.
The Dobbs decision caught both parties by surprise. Republicans have long used abortion as a powerful vote-getter, particularly in red states, thinking they would never have to explain how they would protect the health of women who experience life-threatening complications during pregnancy.
With the issue of abortion going back to the states, many extreme anti-abortion legislators were caught in a bind. They are no longer able to gain political points by enacting ever-tougher abortion restrictions into state law, knowing that Roe will be there to prevent those laws from going into effect. Republican candidates in purple states, sensing that draconic restrictions are not favored by a majority of voters, have been furiously scrubbing extreme abortion positions from their campaign websites. Women voters will not be fooled by such chicanery.
It will get worse for those GOP candidates. Most women either have experienced a serious pregnancy complication or know someone who has. They know that any number of dangerous conditions can arise during a pregnancy to threaten the life of the woman or viability of the fetus, or both. Between now and Election Day, there will be many heart-wrenching stories about the consequences of the Dobbs decision.
Most pundits were predicting a Republican wave election this year until the Dobbs opinion was released. Some are now cautiously suggesting that Democrats could salvage the Senate and even retain the House, pointing to recent polls that seem to be moving in that direction. Naysayers claim that the polls are too tight and midterm election history is against the Democrats.
Informed soothsayers can safely predict the election of at least 52 Democratic senators and an almost equal number of each party in the House. While other components will figure into those results (a wretched crop of Senate candidates endorsed by former President Trump and an electorate sick of the culture wars being continually stoked by the GOP), the Dobbs decision will be the primary reason for Republican losses.
It was not just the court’s radical departure from what the Trump appointees had claimed was settled precedent during their respective confirmation proceedings. The in-your-face language of the Dobbs opinion and its tortured recitation of the history of abortion in America were unsettling. When taken in context with other precedent-breaking decisions by the court’s ultra-conservative majority on a variety of issues (voting rights, gun rights, religion in school and administrative rules on climate and work-place safety), one could justifiably conclude that the court’s majority is on a mission to remake America to conform with its political and religious outlook.
The SCOTUS majority may have the raw power to advance its agenda, but it certainly does not have the political power to make it stick. The Dobbs decision is a prime example of a law that has stood the test of time — that is, the law of unintended consequences.
The American public has no way of directly calling the court majority to account for this and its other recent decisions, but the voters can and will take out their disapproval on those in federal and state offices who have supported and campaigned in favor of the outcomes arrived at by the court. The SCOTUS majority has overplayed its hand and set the stage for the Republican team to switch from a grand-slam winner to a strike-out loser in the November elections.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.