Before the Supreme Court struck down Roe v. Wade, Republicans repeatedly insisted that the 50-year precedent guaranteeing abortion rights was safe. In fact, they said this even as they were taking steps to overturn it.
“I think the likelihood of Roe v. Wade being overturned is very minimal. I don’t see that happening,” Sen. Joni Ernst (R-Iowa) said in September 2020, ahead of the confirmation of Supreme Court Justice Amy Coney Barrett.
Now Republicans are again downplaying the threat to other rights established by the high court, including protections for contraception and same-sex marriage.
“I don’t think it’s a real issue. I just think the Democrats are ginning this up,” Senate Minority Whip John Thune (R-S.D.) told HuffPost on Tuesday when asked about Democratic efforts to protect both rights via legislation. “I don’t think there’s anything percolating out there … I just think this is all theater.”
“What’s the threat? Why don’t they respond to the issues people care about?” said Sen. Marco Rubio (R-Fla.), citing high food and gas costs.
The House passed legislation on Tuesday repealing the Defense of Marriage Act and codifying protections for marriage equality and contraception into federal law. Democrats cited Supreme Court Justice Clarence Thomas’ concurrence in the ruling that overturned Roe as a reason to pass the bills now while those protections remain precedent ― something they failed to do for abortion.
Thomas wrote that justices should specifically reconsider cases protecting contraception access and same-sex relationships, which also rest on the right to privacy.
“Make no mistake: While his legal reasoning is twisted and unsound, it is crucial that we take Justice Thomas ― and the extremist movement behind him ― at their word,” House Speaker Nancy Pelosi (D-Calif.) said in a floor speech on Tuesday.
Thomas was alone among the justices in urging the Supreme Court to reexamine those issues, but he’s not the only conservative suggesting they do so.
Over the weekend, Sen. Ted Cruz (R-Texas) said the Supreme Court “was overreaching” and “clearly wrong” when it legalized same-sex marriage across the country in the 2015 landmark Obergefell v. Hodges decision. Other Republican senators, including John Cornyn (Texas) and Marsha Blackburn (Tenn.), have expressed similar views.
Support for same-sex marriage has steadily increased over the past two decades, including among Republicans. Last month, a Pew Research survey found that a record 71% of Americans believe it should be legal.
The Republican Party has largely moved on from culture wars over same-sex marriage in recent years, in favor of other topics like so-called critical race theory and discussions of gender identity in schools. A handful of Senate Republicans are publicly supportive of same-sex marriage, including Rob Portman (Ohio), Susan Collins (Maine) and Lisa Murkowksi (Alaska). And 47 House Republicans voted to protect gay marriage on Tuesday, which suggests some of their counterparts in the Senate could follow suit.
But it’s not clear whether at least 10 Republicans would vote for a bill to codify marriage equality if one came up for a vote in the Senate. Most GOP senators avoided the question on Tuesday, calling the legislation unnecessary and dismissing it as a messaging exercise from Democrats ahead of the November midterm elections.
“Other than Justice Thomas, I haven’t heard any other justice even imply that they would possibly do something different,” Sen. Kevin Cramer (R-N.D.) told HuffPost on Tuesday.
He added: “I wouldn’t support it if it came over.”
Sen. James Lankford (R-Okla.) said Democrats are trying to “fire up their base” by bringing up legislation to address issues that he described as “factually not true.”
Senate Minority Leader Mitch McConnell (R-Ky.), who often weighs in on House bills, declined to take a position on the matter.
“I’m going to delay announcing anything on that issue until we see what [Senate Majority Leader Chuck] Schumer decides to put on the floor,” McConnell said.
It’s not clear if Democrats will have enough time to put the legislation up for a vote on the floor, according to Senate Majority Whip Dick Durbin (D-Ill.). Democrats are racing to pass bills this summer to boost the semiconductor industry and lower the cost of prescription drugs and health insurance premiums. Some climate advocates want the Senate to take meaningful action to address climate change. And Democrats are under pressure to confirm more judges before this year is done.
“We have more priorities than we have time,” Durbin told reporters on Tuesday.
The Senate’s monthlong August recess, and the quickly approaching November midterm elections, only compound the Democrats’ time crunch. Some Democrats are already pushing for the recess to be shortened, but Durbin noted on Tuesday that agreement from all 50 Democratic senators is needed for that to happen.
