Since the U.S. Supreme Court overturned Roe v. Wade in June, Democrats have made strengthening the right to abortion care central to their pitch to voters as the midterm elections approach. “Here’s the promise I make to you and the American people,” President Joe Biden said earlier this week. “The first bill I will send to the Congress will be to codify Roe v. Wade. And when Congress passes it, I’ll sign it.”
Before a nine-justice Court controlled by a six-justice conservative supermajority, legislation like this would be, at best, on thin jurisprudential ice. But advocates for expanding the Court in order to avoid decades of extremist far-right rule picked up a key ally this week: During a debate with his Republican opponent in the race to represent New York’s 17th Congressional District, Democratic Congressman Sean Patrick Maloney endorsed the idea of adding justices to the Court to protect the right to abortion care.
“I would absolutely consider expanding the Court if it meant getting reproductive freedoms back,” Maloney said, according to coverage from David McKay Wilson of the Times Herald-Record. Maloney added that his support for reform stemmed from his worry that the legal justification the Court used to overturn Roe implicates other fundamental rights like same-sex marriage and sexual privacy, too.
Maloney’s announcement is notable because of his position within party leadership: As chair of the Democratic Congressional Campaign Committee, he is the highest-ranking elected Democrat to date to publicly support Court expansion. (Maloney’s position stands in sharp contrast to that of his Republican opponent, who argued that states should be in charge of deciding whether to confer bodily autonomy upon their residents because, he explained, “states are closest to the people.”)
The Judiciary Act of 2021, which would add four seats to the Court, now has 59 Democratic co-sponsors in the House—a little more than a quarter of the caucus. (This does not include Maloney, who has yet to join as a co-sponsor.) If Democrats are serious about passing a law that will both protect the right to abortion care and survive judicial review, they’ll need more members who are willing to do what it takes to accomplish those goals.
