Visibly shaking with fury and brandishing megaphones and posters, thousands of women defending reproductive rights in America thronged below the marbled columns of the US supreme court to protest against what appears to be the imminent demise of the 1973 Roe v Wade ruling recognizing abortion as a constitutional right.
“Do something, Democrats,” the crowd chanted at one point.
In the hours that followed, Democrats, who currently control the House, the Senate and the White House, echoed their outrage and vowed a response.
The urgency follows a leak late on Monday evening of a draft opinion from the court that a majority of the nine judges on the bench – all conservative-leaning appointees of Republican presidents – support not just more restrictions on abortion services but the overturning of the landmark Roe ruling that guarantees the right to abortion when final opinions are issued in June.
“I am furious – furious that Republicans could be this cruel, that the supreme court could be this heartless, that in legislatures across the country, extreme Republicans are ready for their trigger bans to go into effect,” Senator Patty Murray, a Democrat of Washington and a longtime advocate of women’s reproductive rights, said.
Speaking from the steps of the US Capitol, she was referring to states that have legislative bans on abortion prepared and waiting to be “triggered” into effect as soon as Roe is overturned.
“It is craven and we won’t stand for it,” she said. “I’m not going to sit quietly and neither should any of you.”
Yet, infuriatingly for the pro-choice voters who helped elect Joe Biden and a Democratic Congress, the party finds itself largely powerless at present, without a legislative path forward to protect abortion rights in the likely event the court reverses its decision in Roe.
Biden said it would be a “radical decision” by the court and called on Congress to act to enshrine the rights afforded by Roe into federal law via legislation.
And Vice-President Kamala Harris, speaking to attendees at a gala hosted by Emily’s List, which works to elect Democrats who support abortion rights, railed that a ruling overturning Roe would be a “direct assault on freedom” in America.
Barring swift legislative action, nearly half of US states are likely to ban abortion or severely restrict access to the procedure.
But the reality of Democrats’ thin congressional majorities is that they don’t have enough support in the evenly divided US Senate to codify abortion protections, nor do they have the votes to eliminate the so-called filibuster rule, thus allowing legislation to pass with a simple majority.
Biden has resisted pressure from progressives to use his bully pulpit to call for eliminating the filibuster, following recent demands to do so to pass voting rights legislation. And on Tuesday, he said he was “not prepared” to do so to protect reproductive rights.
Nevertheless, the Senate majority leader, Chuck Schumer, a New York Democrat, vowed to forge ahead with a vote on current legislation that is stalled in Congress but, if it could be passed would enshrine a woman’s right to end her pregnancy.
But the measure, a version of which passed the Democratic-controlled House last year, was already rejected once this year, when it fell far short of the 60 votes needed to break a filibuster. It didn’t even win the support of all 50 Democrats, so even if the filibuster were scrapped the bill, called the Women’s Health Protection Act, would not have passed in the Senate.
Senator Joe Manchin, an anti-abortion Democrat from West Virginia, voted with Republicans to block consideration of the bill. The bill also failed to attract the support of two pro-choice Senate Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, who have introduced separate legislation that they say would codify Roe.
Yet Schumer argued that it was important to put every senator on the record.
“A vote on this legislation is no longer an abstract exercise. This is as urgent and real as it gets,” he said.
The leaked draft decision, written by the conservative justice Samuel Alito, would shift the question of whether abortion should be legal to the individual states.
The effect would dramatically alter the US landscape almost overnight, with restrictions and bans going into effect across much of the south and midwest while abortion would remain legal in many north-eastern and western states.
Emboldened by the supreme court’s conservative super-majority, Republican legislatures have enacted a flurry of new abortion laws as conservative activists begin to lay the groundwork for a nationwide ban.
On Tuesday, as the country reeled from the revelation that the supreme court was likely to dismantle Roe, Oklahoma’s Republican governor signed into law a bill that would ban abortions after six weeks of pregnancy, a copycat version of a Texas law enacted last year.
Meanwhile, liberal states have moved to safeguard abortion protections. Last week, Connecticut lawmakers approved a bill that would protect abortion providers in the state. And states like California and New York have vowed to be a “sanctuary” for people seeking reproductive care from places where the procedure is banned.
With few options, Democrats have implored Americans shocked and angered by the seemingly impending loss of abortion rights to vote in the midterm elections. Majorities of Americans say they want abortion to remain legal in some or most cases. Few say they want the court to overturn Roe.
But Democrats face steep headwinds in November, weighed down by Biden’s low approval ratings, rising inflation and a sour national mood.
The Republican reaction to the news that the nation’s highest court was prepared to strike down Roe was relatively subdued. In the Senate, lawmakers were far more focused on the source of the leaked document than the decision, which is the culmination of a decades-long drive by the conservative movement to overturn Roe.
The response suggested that there may be some concern that Republicans are worried about provoking a political backlash among more moderate and independent voters who broadly support a constitutional right to abortion.
“There’s an answer,” the Illinois senator Dick Durbin, the majority whip, said at a press conference. “The answer is in November.”
But many Democrats and activists believe November is too late for millions of women in states where abortion will banned almost immediately. They want the party – from the president on down – to throw every ounce of their political capital at finding a legislative solution.
“People elected Democrats precisely so we could lead in perilous moments like these- to codify Roe, hold corruption accountable, & have a President who uses his legal authority to break through Congressional gridlock on items from student debt to climate,” Congresswoman Alexandria Ocasio-Cortez, a progressive Democrat from New York, wrote on Twitter. “It’s high time we do it.”