Will the Supreme Court’s conservatives save Biden in the midterms?

Democrats are hoping the leaked draft of the Supreme Court’s impending decision on abortion will change the fundamental nature of this year’s midterm election. A midterm election is a typically a referendum on the incumbent president — and the result is almost always negative. What Democrats are hoping to do is make this year’s midterm a choice, not a referendum.

What kind of choice? A choice between mainstream Democrats like President Biden and radical Republicans like Donald Trump. That was exactly the choice posed in the 2020 presidential election which — Trump’s protestations to the contrary notwithstanding — Biden won. 

It takes an exceptional circumstance for the president’s party to do well in a midterm election. It happened in 1998 when President Bill Clinton was facing impeachment. The economy was booming, and Clinton supporters rushed to the polls to save their president. Democrats defied expectations and gained five House seats. The Republican House Speaker, Newt Gingrich (R-Ga.), ended up resigning.

It happened again in 2002 when George W. Bush was president and Republicans gained eight House seats. Again, there was an extraordinary circumstance: President Bush was still riding a wave of popularity as a result of the Sept. 11, 2001, terrorist attacks.

Those midterms were exceptions. Since World War II, the president’s party has lost an average of 26 House seats and four Senate seats in midterm elections. Democrats now have a five-seat margin in the House while the Senate is tied, with Vice President Kamala Harris casting the tie-breaking vote.

If anything like the average losses for the president’s party holds true this year, the Democrats’ control of Congress will be doomed. In March, President Biden warned his fellow Democrats, “If we lose the House and the Senate, the only thing I’ll have then is a veto pen.”

Democrats are hoping the abortion issue will be the exceptional circumstance that saves their majorities this year. They are counting on angry pro-choice voters to flood the polls in order to keep Republicans from passing a nationwide abortion ban. President Biden said in a statement, “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”

Under President Trump, the Republican Party has been taken over by the radical right. Asked in a 2016 debate whether he wanted the Roe v. Wade decision reversed by the Supreme Court, Trump said “That will happen automatically in my opinion because I am putting pro-life justices on the Court.” He did, and all three justices he nominated signed the draft opinion leaked this week that would overturn abortion rights.

President Biden often advises voters, “Don’t judge us against the Almighty. Judge us against the alternative.” That is exactly what he is asking voters to do in the midterm. The alternative? “This ain’t your father’s Republican Party by any stretch of the imagination. This is the MAGA [i.e. Trump] party now.”

By nearly two to one (54 to 28 percent) in the late April Washington Post-ABC News poll, Americans said they want the Supreme Court to uphold the Roe decision. The same was true (61 to 36 percent) in a March poll by the Public Religion Research Institute. 

Since 1972, the National Opinion Research Center has been asking people whether a pregnant woman should be able to have a legal abortion under various circumstances. Strong majorities (80 to 90 percent) have consistently supported legal abortions if the woman’s health is seriously endangered, if she has been raped or if there is a strong chance that the baby will have a serious birth defect.

The public has narrowly opposed legal abortions (50 to 60 percent) if the family is poor or doesn’t want any more children, if the woman doesn’t want to get married or if she wants the abortion “for any reason.” Those are all discretionary circumstances. What people have said in these polls is that they do not approve of abortion as a form of birth control. Abortion should be allowed only when there is a compelling moral argument on the other side. To most people, rape, a threat to the life or health of the mother or a serious birth defect in the child are compelling moral arguments.   

It is always dangerous to threaten to take people’s rights away. That’s why Democrats want to frame the midterm as a “choice.” A Democratic strategist described as “close to the White House” told the Washington Post, “The issue of whether a woman has a right to get an abortion or not needs to be wrapped in a broader frame of individual rights and a political party that is geared very much toward bullying and taking away those rights from people.”

If Republicans gain control of the House of Representatives, the Biden administration is reported to be preparing for an “onslaught of congressional investigations.” A Republican House might even impeach President Biden. For what? They’ll come up with something.

Bill Schneider is an emeritus professor at the Schar School of Policy and Government at George Mason University and author of “Standoff: How America Became Ungovernable” (Simon & Schuster).