Impact of overturning Roe on the midterms? Look at Kavanaugh‘s impact on 2018 elections

In the 2018 midterms, 40 U.S. House seats flipped from Republican to Democrat; 38 of those races had public polling. In 27 of those, the Republican candidate led in September and/or October, coinciding with Supreme Court Justice Brett Kavanaugh’s Senate confirmation hearings; those 27 Republican candidates went on to lose in November.

In considering how the overturning of Roe v. Wade might impact the 2022 midterms, we must understand 2018. 

Many have sought to make sense of the last midterms — how they were a check on former President Trump’s power or how winning over older voters was key. These are rational, supportable arguments. They’re also slow-burn issues.

Because Democrats were girding for the 2018 midterms beginning in the early morning hours of Nov. 9, 2016 — after the unexpected happened. It took time. In Gallup’s first presidential poll of Trump during his first week in office, he received 13 percent support from Democrats and 42 percent from independents. Over the next two years, he never again earned that much support from either group. In the final Gallup poll begun right before the midterms, Trump garnered 5 percent support from Democrats and 34 percent from independents.

So, yes, a majority of the country had had enough, and history showed first-term presidents often lost House seats in the first midterms. But Democrats needed to take back 24 seats. Even with Trump’s approval rating in the 30s, Democratic victory was nowhere close to assured, even if they won all seats that presidential candidate Hillary Clinton won “or that Trump won by less than three percentage points.”

So, what would cause 27 Republican House candidates to lose in November despite polling well in September and/or October? An unexpected spark. A closely watched, political galvanizing event that hardens views and spurs action.

On the eve of Christine Blasey Ford’s Senate testimony, in which she claimed Kavanaugh had sexually assaulted her, 32 percent of respondents in an NPR-PBS NewsHour-Marist poll stated that they believed Ford, while 26 percent believed Kavanaugh; 42 percent were undecided, and 58 percent said they planned to follow the Senate proceedings “closely or very closely.”

After Ford’s testimony, those who believed her jumped to 45 percent, compared to only 33 percent who believed Kavanaugh. The trust gap between these two had doubled. And much of America was engaged.

This is when the midterms were decided. Everything leading up to it was, for many Americans, a gradual erosion of political and societal norms. But nonetheless, it was gradual. Often politically imperceptible. A general state of unease favoring the status quo over an electoral revolution. But Republicans giving an accused sexual predator a lifetime appointment on the nation’s highest court was the lightning rod that struck the political life out of 27 House Republicans who, up to that point, had had a good shot at winning in November and keeping the chamber in GOP hands.

Nearly four years later, the overarching circumstances are comparable, though the stakes are infinitely higher. 

After more than a year of Democratic malaise that has sapped President Biden of a significant percentage of Democratic and independent support, the U.S. Supreme Court has overturned Roe v. Wade. Conservatives are now gunning for a contraception ban and the elimination of LGBTQ rights. The midterms are less than five months away.

Just as a substantive plurality of Americans sided with Ford over Kavanaugh, a substantive majority of Americans support abortion rights, including in many red states such as Florida, Iowa, and Alaska.

Since the draft ruling was leaked nearly two months ago, the question has remained the same: Will Democrats make the 2022 midterms a referendum on whether women or the government have ultimate control over women’s bodies?

Friday’s Supreme Court ruling presents a road map for how Democrats can help sustain electoral fervor. The majority opinion states, “A law regulating abortion” is valid “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” The jurists proceed to argue that “legitimate interests” include “the prevention of discrimination on the basis of race, sex, or disability.”

In arguing that the government has ultimate control over women’s bodies, the court implies that stripping women of their freedoms has nothing to do with gender discrimination — that women’s lack of bodily autonomy can coexist with “the prevention of discrimination.”

What this ruling lacks in justification, it makes up for in appendices: a bizarrely constructed list of “statutes criminalizing abortion” intended to bolster the majority’s arguments. Except these statutes are not plucked from recent state law. They span the periods between 1825 to 1919, probably not coincidentally brushing up against the date of the ratification of the 19th Amendment (women’s suffrage). The referenced 1848 Virginia statute, for example, begins with “Any free person” — because the best way to rally America to your cause is to base your arguments on a time when Black people were considered cattle and wives were servants.

The ruling is a dog whistle to systemic misogynists who praise zygotes one day and then lobby against any help for them nine months later. 

It’s also an electoral battle cry to the majority of Americans who refuse to allow the moral norms of 1848 to influence the legal standards of today.

Today it’s women’s autonomy; tomorrow it will very likely be gay rights and birth control.

For Democrats to win — and perhaps win big — in November, they already have everything they need: They simply need to make the 2022 midterms a referendum for the majority of citizens who recognize 19th-century immoral norms don’t belong in 21st-century America.

B.J. Rudell is a longtime political strategist, former associate director for Duke University’s Center for Politics, and recent North Carolina Democratic Party operative. In a career encompassing stints on Capitol Hill, on presidential campaigns, in a newsroom, in classrooms, and for a consulting firm, he has authored three books and has shared political insights across all media platforms, including for CNN and Fox News.