I got Sen. Michael Bennet out of his sickbed the other day — he’s recovering from a bout with COVID-19, which he might have contracted on his first post-mask, Senate-recess flight home from Washington — to talk about the sad fate of Roe v. Wade and the tenuous future of abortion rights in America, a topic sure to make him feel only worse.
We did talk about the fate of Roe, of course, and of the 50-year war to overturn it and of Sam Alito’s leaked draft opinion that, with the support of the three Trump-appointed Supreme Court justices, has apparently just enough votes to make it happen.
But it turned out, we ending up talking just as much about a related topic — the expanded child-tax-credit bill that Bennet helped write, the one that was passed last year with a one-year sunset clause, the one that successfully lifted millions of children out of poverty, the one that, upon expiration last December, impoverished those same children all over again.
It was a bill that Bennet was sure would be renewed because who doesn’t want to help blameless poor kids. And according to the new tell-all book — “This Will Not Pass,” by New York Times reporters Jonathan Martin and Alexander Burns — Bennet wasn’t alone in his thinking.
According to Martin and Burns, Senate Minority Leader Mitch McConnell told friends he was worried that even if Republicans took back the House in 2022, the law would be too popular to overturn. Because, you know, the kids.
McConnell was wrong and Bennet was wrong. The bill is no longer law, and the chances of it becoming law any time soon are not good.
The way to understand the relationship between Roe and the expanded child tax credit begins with the old Democratic saw — that Republicans care about children only until the moment they’re born. If enough people actually do believe that — and there’s an argument to be made here — the future could look a little different.
First, we need to take an alternative history tour. Let’s go back to 2014. That was the year of “Mark Uterus,” when Mark Udall was ridiculed for talking so much about Cory Gardner and his past support for personhood. You remember personhood, right?
Gardner won that race, barely, arguing that it was crazy to think he’d ever play any role as a senator in upending abortion rights.
And then, well, you know what happened. McConnell blocked, with Gardner’s help, Barack Obama’s Supreme Court nominee Merrick Garland from even getting a hearing in Obama’s last year. And then, again with Gardner’s help, McConnell was able to rush the nomination of Amy Coney Barrett through the Senate in the Trump presidency’s final weeks.
Gardner voted for all three Trump appointees. Udall would have voted against all three.
There’s alternative history for you. If we had known that Gardner would, in fact, play a role in ending Roe v. Wade, do you think he would have beaten Udall?
Roe, as you might have heard, is what they call settled law, meaning, in theory, that something should have had to change before the Supreme Court would consider overturning it. All that changed were three Trump appointees.
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“If you had asked me 20-30 years ago, back when I was in law school, whether we’d be having this conversation today, I’d have thought it was impossible,” Bennet said of overturning Roe.
Those were such innocent times, I guess, long before anyone could imagine that Trump, the renowned carnival barker, could someday be president or that McConnell — yeah, him again — would somehow see to it that Trump would get to appoint three Supreme Court justices in just four years.
Of course, no one could have dreamed any of that. And now, Bennet was telling me, it appears that overturning Roe will be Trump and McConnell’s “legacy” despite the fact that “a very substantial majority of the American people don’t want Roe v. Wade to be overturned.”
But you know what? It might not be as simple as that. Because Bennet is right — a very substantial majority of Amercans do support Roe.
And yet, there’s every reason to believe that Democrats will lose control of the House in November’s midterm elections and plenty of reason to believe they might also lose the Senate. The party in power almost always loses seats in the midterms and especially when the president’s approval ratings are somewhere in the low 40s.
Since Bennet is up for re-election this year, that puts him squarely in the middle of the fight. His two possible Republican opponents — whose primary will be decided in June — are both anti-abortion. Bennet is, course, a sure pro-choice vote.
One possible opponent, state Rep. Ron Hanks, who is so far to the right he makes Lauren Boebert sound like Bernie Sanders, opposes any abortion, anytime, under any circumstances — rape, incest, health of mother, whatever.
The other, businessman Joe O’Dea, has said he’s pro-life but doesn’t want Roe to be overturned. I’m still not clear on his reasoning, but I couldn’t reach him to ask. O’Dea also said he wouldn’t have voted for the bill passed this year in the state legislature to keep abortion legal in Colorado whatever the Supreme Court rules. He called the bill “reckless.”
According to O’Dea’s spokesman, it was reckless because it didn’t specifically preclude late-term abortions, which make up less than 1% of all abortions, and O’Dea won’t vote for late-term abortions.
In the coming week, the Senate will likely vote on codifying Roe before the Supreme Court can do its worst.
The problem is, Democrats are sure to lose that vote. They’ll lose because Republicans will filibuster, meaning the 50-50 Senate would need 10 Republicans to cross the line, which would never happen. And because, in a 50-50 Senate, Democrats don’t have the votes to set the filibuster aside. And because, in a 50-50 Senate, there’s one Democrat, Joe Manchin, who won’t vote for the bill or to amend the filibuster.
But sometime in June probably, the Supreme Court will almost certainly overturn Roe. We don’t know what the final opinion will look like, but it probably will closely resemble the leaked version, in which Alito wrote that the Roe decision, guaranteeing a woman’s right to control her own body, was “egregiously” wrong.
That so-called egregiously wrong decision came with a 7-2 majority from a court composed of five justices appointed by Republican presidents.
And it looks as if the so-called egregiously wrong decision will be overturned by a 5-4 vote, meaning four justices would have to be egregiously wrong again.
“In the wake of that,” Bennet said, “it is very important that we keep a Democratic majority in the Senate and in the House.”
In the wake of that, if enough young people were to vote in the midterms and enough suburban women were to, once again, vote Democratic, it’s possible that the Supreme Court decision isn’t the only history that gets changed. I mean, whatever else, Bennet will be heavily favored to win back his Senate seat in a state that went for Biden by 13 points two years ago.
Roe would still be gone. But adding Democrats could mean not only passing the child-tax-credit bill back into law, but also — just maybe — a bill that would restore at least some of what will be lost in Roe.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.