Senate Minority Leader Mitch McConnell said in an interview with a reporter for USA Today that, should the leaked SCOTUS opinion become the Court’s final ruling, a national abortion ban would be “possible.”
“All of this puts the cart before the horse,” he said, when pressed by the reporter on whether the Senate would entertain a federal ban.
“If the leaked opinion became the final opinion, legislative bodies — not only at the state level but at the federal level — certainly could legislate in that area,” McConnell said, according to USA Today.
“And if this were the final decision, that was the point that it should be resolved one way or another in the legislative process,” he added. “So yeah, it’s possible. It would depend on where the votes were.”
A segment of the anti-abortion movement sees a federal ban as the next step in its push to restrict abortion nationwide.
But, the Senate minority leader said, he would not create a carveout to the filibuster to pass such a ban. That would suggest — if the minority leader were to stick to that pledge — that a ban would require 60 votes in the Senate.
“No carveout of the filibuster — period,” he told USA Today. “For any subject.”
Some Democrats have contemplated the idea of a filibuster carveout for abortion, which they would seek to use to pass a law protecting the right — often referred to as a codification of Roe. Such a law would likely make use of the Commerce Clause of the Constitution, which gives the federal government the authority to make laws regulating a range of activity between the states.
The current, ultraconservative Supreme Court might strike down such an interpretation of the Commerce Clause.
But, if it upheld it, Republicans would also be able to use a similar interpretation to ban abortion nationwide next time they win control of the White House.
At the moment, Democrats do not have the 50 votes needed for either a filibuster carveout on abortion or for a law codifying Roe.
Republicans have largely sought to avoid commenting on the implications of the Supreme Court striking down Roe — an ironic political posture given that Supreme Court Justice Samuel Alito’s draft is seemingly a big win for a movement whose votes Republicans have long courted.
Yet GOP senators have indicated an awareness that they will soon come under tremendous pressure to push the envelope further on abortion.
“If the court does in fact overturn Roe v. Wade, that doesn’t mean Roe is immediately illegal across the country,” Sen. Ted Cruz said during a Fox Business interview last week, adding: “In bright blue states, at least in the short term, it is certain that abortion will remain universally available on demand.”