In the wake of a leaked draft of a Supreme Court opinion that would overturn Roe v. Wade, the mainstream press is already telling its readers that legislation codifying abortion rights has no chance of passing in the current Senate. That may be true, but it’s true only because the Senate is an anti-majoritarian institution designed not to express the popular will of the citizenry, but to protect inherited hierarchies across class, race, and – crucially, in this context – gender. And the popular will of the country is to protect abortion rights.

The vast majority of people in the United States explicitly want Roe to stand, or support abortion remaining legal in practice, according to several recent polls. In January, CNN reported that 69% of respondents opposed overturning Roe. Gallup put that number at 58% in May 2021. That same month, Pew found that 59% of “U.S. adults say abortion should be legal in all or most cases.” 

Many print and web outlets had rolling coverage and multiple stories about the draft opinion, but in those that focused specifically on the Senate, many left out relevant polling. Several of the country’s biggest outlets framed those stories by saying Democratic senators want to pass legislation protecting the right to abortion by getting around the filibuster, “but the reality is that no such move is likely,” according to one New York Times story. Another Times story repeated: “That is unlikely to happen.” 

“While it is possible that a narrower bill could attract some GOP moderates such as [Susan] Collins and garner a majority, attempts to eliminate the 60-vote supermajority threshold have persistently fallen flat in the current Senate, which is split 50-50 between the party caucuses,” reported The Washington Post in its lead story on the subject.

Politico published at least three pieces, two newsletters and a web story, with the same message. The site’s influential morning newsletter Playbook included a tweet from its congressional bureau chief that read, “There is really no scenario where the 50-50 Senate gets rid of the filibuster for abortion legislation this year.” Another Politico newsletter noted opposition to codifying abortion rights in the Senate. “There’s almost no chance that the evenly split Senate would nix the 60-vote threshold that’s required to pass most bills,” Politico reported in a story about the draft opinion’s effect on the midterms. 

Axios reported that “there’s no realistic scenario for the Senate eliminating the filibuster for abortion rights.” 

None of those stories included any data on the broad popularity of protecting abortion rights and access among the American public. Without including the important, but complicated, polling on the issue of abortion rights, the press is subtly conveying that there’s no political will – to use a Beltway term – to protect a person’s right to end a pregnancy.

One of the only pieces that covered the likely future of abortion rights in the Senate that did include polling came from The Wall Street Journal, a Murdoch outlet. The paper’s lead story noted that ending the filibuster is a long shot, because “even obtaining a majority” of support in the upper chamber is “unlikely.” But several paragraphs down, the paper told their readers: “A variety of polls have found strong opposition to the prospect of the Supreme Court overturning Roe, but also that views of abortion are complex, with the nation divided on whether abortion is morally acceptable.”

The overall dynamic at play here is a familiar one. The Beltway press prefers to focus on process and optics rather than substance, and it affects an above-it-all attitude that rewards savvy operators over everything else. That ideology defined the press’s approach to the crucially important hearings of Justice Brett Kavanaugh, which they saw as a foregone conclusion. As a result, the media was apathetic to credible allegations that Kavanaugh had lied under oath in his 2004 and 2006 federal appeals court confirmation hearings.   

The issue here is not whether the Senate is likely to codify Roe. That is obviously incredibly unlikely, as these stories all correctly note. But without explicitly including polling that shows the popularity of Roe, and, in general, a strong preference for safe and legal abortion, these outlets signal to their readers that that Roe lacks political support beyond the protection conferred by the Supreme Court. 

In reality, there is overwhelming political support for at least maintaining existing abortion rights and access -- although in practice it is already difficult for many to access abortion care. The problem is that the Senate is working exactly as it's supposed to work.