Essential Politics: Congress enters the abortion battle as Supreme Court prepares to hear a new case

The facade of the Supreme Court
The Supreme Court this fall will consider whether to overturn its landmark Roe vs. Wade decision.
(J. Scott Applewhite / Associated Press)

As Washington wrestles with an infrastructure package, an expiring eviction moratorium and a chain of urgent COVID-19 crises, a generation-defining legal and political question is closing in on the horizon.

The Supreme Court this fall will consider whether to overturn its landmark Roe vs. Wade decision in a case challenging a Mississippi law prohibiting abortion after 15 weeks of pregnancy.

For the record:

11:53 a.m. Aug. 4, 2021An earlier version of this story said President Biden was the last Democrat to embrace repeal of federal funding for abortion in the 2020 primary. Biden was the last Democrat to embrace repeal of the ban on federal funding for abortion.

In recent days, GOP lawmakers and states have lined up behind Mississippi, asking the court to allow states to determine their own abortion laws. A similar showing is expected from Democrats in support of the abortion provider, Jackson Women’s Health Organization, which is seeking to convince the justices to jettison the statute, which has been put on hold pending a Supreme Court ruling.


While Republicans’ opposition to Roe as well as Democrats’ support for it are well established, the case will come before the court amid a dramatic shift in abortion politics. Both parties have grown more militant in their positions, as they enact far-reaching legislation and eschew elected officials who defy the party line. The case will carry repercussions for President Biden (who was the last Democrat to embrace repeal of the ban on federal funding for abortion in the 2020 primary) and for Democrats in Congress in next year’s midterm.

Already this year, states – largely those led by Republicans – have enacted more abortion restrictions than in any year since the Roe decision, according to the Guttmacher Institute, a research group that supports abortion rights. The 90 restrictions were enacted largely in states that the group already considers hostile to abortion.

Democrats in the U.S. House last month passed a spending bill that does not include a prohibition on the federal funding of abortion in government programs such as Medicaid. The restriction is called the Hyde amendment, which reproductive justice groups have long claimed disproportionately affects low-income women and women of color.

Though such groups have long hoped to eliminate the Hyde amendment, mainstream abortion rights groups until as recently as 2015 were hesitant to rock the boat on what had long been considered a compromise on abortion. Jettisoning the amendment is now a central policy plank of the Democratic Party.

The effort is almost surely to fail in the Senate, where support for Hyde is stronger.

Both parties have in recent years grown increasingly reluctant to embrace members who defy the party’s position on abortion. The last two House Republicans who supported abortion rights retired from the chamber more than two years ago, and there is only one remaining Democrat who opposes abortion (Rep. Henry Cuellar of Texas). There are only a handful of senators who regularly or even occasionally break party ranks on the issue.

Last week, more than 230 Republican members of Congress asked the court to overturn Roe, a move that would likely criminalize the procedure in many states. Only three GOP senators and about two dozen House Republicans did not sign the amicus brief.

Oral arguments have not yet been scheduled but are expected in the late fall. The court typically holds its most controversial opinions until the following June.


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The view from Washington

— It’s finally, quite possibly, Infrastructure Week in Washington. The Senate is hoping to wrap up its work on a bipartisan infrastructure bill this week if it can navigate a series of Republican amendments. While the bill has rare bipartisan support, many senators won’t pass up a chance to attach their pet priorities to a bill they know will land on Biden’s desk. And Republicans are eager to force votes on difficult amendments.

Senate Majority Leader Charles E. Schumer (D-N.Y.) is using the Senate’s August recess — which was supposed to start this Friday, a deadline that’s already been blown — as motivation to wrap up the work. He is also threatening to keep lawmakers in town through the upcoming weekend. Few people want to be in Washington in August. Family vacations loom, the air is thick and swampy. And now, there is a renewed COVID-10 threat, as Sen. Lindsey Graham (R-S.C.) reported a rare breakthrough case despite being vaccinated.

The vast majority of Democrats began masking back up late last week and the vast majority of Republicans were not. But since Graham’s announcement, more, though not the majority of, Republicans have re-masked in the halls of Congress.

— That’s not the only tension on Capitol Hill. The already frosty relationship between Speaker Nancy Pelosi (D-San Francisco) and Minority Leader Kevin McCarthy (R-Bakersfield) reached new lows in recent days, as my colleague Sarah D. Wire reports. Pelosi called him a “moron” for questioning the science behind wearing masks. And he said it “will be hard not to hit” her with the speaker’s gavel if Republicans win control of the House in next year’s midterm.

— The White House is feeling the heat from Capitol Hill, too. Rep. Cori Bush (D-Mo.), who experienced homelessness before she was a member of Congress, has been leading a protest on the Capitol steps while demanding an extension of the expired moratorium on evictions. She spent three nights outside the Capitol to bring attention to the cause. Reps. Jimmy Gomez (D-Los Angeles) and Alexandria Ocasio-Cortez (D-N.Y.) spelled her for Monday night’s shift. On Tuesday evening, the White House announced a new, more narrow moratorium that would last another two months.

— As violence in Afghanistan soars, the Biden administration said Monday it was expanding the pool of endangered Afghans who can receive refugee visas, but the system’s complexities may limit who can benefit. The new visa program comes amid demands from Congress, news organizations and human rights groups for greater protection for tens of thousands of Afghans who worked with U.S. entities during the two-decade war and face potential retaliation from Taliban forces advancing swiftly as U.S. and NATO troops withdraw.

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The view from California

— Gov. Gavin Newsom on Friday publicly asked President Biden to ensure California can continue to access the Pentagon’s sensitive military satellite information as part of a program to help spot and track wildfires. The two-year-old program, called FireGuard, relies on access to the military’s infrared satellites that regularly scan the U.S. skies for enemy missiles. The satellite images are shared with firefighters, who can use them to make on-the-ground decisions about evacuations and controlling blazes. Under an existing military agreement regarding the classified information, access to the satellite information is due to expire Sept. 30.


Newsom’s recall stage is set, my colleague Seema Mehta reports. Nearly four dozen candidates will appear on the ballot as potential replacements, according to the secretary of state’s office. A new poll shows that while most Californians oppose recalling Newsom, the voters most passionate about casting ballots in September are nearly evenly divided on whether to oust the Democratic governor.

Remarkably, if more than 50% of voters say that Newsom should be recalled, the top vote-getter in the second question will serve the rest of Newsom’s term, regardless of how few votes that candidate gets.

Sign up for our California Politics newsletter, coming in August, to get the best of The Times’ state politics reporting, including full coverage of the recall election and the latest action in Sacramento.

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