Senate Key to Pro-Life and Religious-Freedom Protections

While the outcome still might hinge on a pair of January runoff elections in Georgia, a Republican majority would brake a Biden administration legislatively and on judicial and cabinet appointments.

A demonstrator protests the day after the election near the US Capitol on November 4, 2020 in Washington, DC.
A demonstrator protests the day after the election near the US Capitol on November 4, 2020 in Washington, DC. (photo: Alex Edelman / AFP/Getty)

WASHINGTON — As of Thursday morning, the Republican Party looked poised to retain a slim majority in the U.S. Senate — an outcome that could be highly significant in light of the prospect of a Biden presidency as President Donald Trump’s path to reelection continues to narrow. 

While votes are still being counted in key states and the Trump campaign has filed lawsuits in Pennsylvania, Michigan and Georgia over ballot concerns, a GOP Senate majority will be crucial for religious liberty and pro-life issues in the event of a Biden presidency and to serve as a brake against a pronounced progressive political tilt in other areas as well. 

Going into the election, the Democrats needed to pick up four seats for a majority and three seats for a tie, in which case the party who wins the White House would be the deciding vote, since the vice president is assigned that authority. They had only picked up one seat overall by Thursday morning, with a total of 48 Republicans and 46 Democrats elected, plus two independents who caucus with the Democrats. 

There are four races that have yet to be called as of Thursday morning. Votes were still being counted in Alaska in the race between Republican incumbent Sen. Dan Sullivan and Democrat Al Gross, and while the winner will not be determined until next week, when mail-in ballots are counted, Sullivan was leading by a 63%-32% margin with more than 50% of total ballots counted. In North Carolina, incumbent Sen. Thom Tillis currently leads Democratic challenger Cal Cunningham, who has insisted on waiting for all the ballots to be counted, which means that race will also be determined next week.

Assuming the Republicans hold both seats, control of the Senate will come down to the other two races, both in Georgia, where special elections in January may determine the outcome. One Senate seat there is already headed to a runoff, as neither Republican Sen. Kelly Loeffler nor Democrat Raphael Warnock received more than 50% of the vote. In the race between incumbent Republican Sen. David Perdue and Democrat challenger Jon Ossoff, Perdue held a lead with just over 50% of votes as of Thursday morning. Perdue is virtually certain to finish ahead of Ossoff, but he will nonetheless face a runoff special election if his final tally drops below 50%.

The only likely path for Democrats to take control of the Senate is if both Democratic challengers in Georgia win, resulting in a 50-50 Senate split where, in a Biden presidency, his running mate, Sen. Kamala Harris of California, as vice president would cast the additional, deciding vote.


Impact on Biden Agenda

Provided that the GOP retains at least a 51-seat majority after the votes are counted and special elections conclude in Georgia, it’s clear the Republican Senate would cripple the Biden agenda. The New York Times noted Wednesday, “the Biden-McConnell dynamic could force the new administration to scale back legislative goals on immigration, health care, the environment and economic policy.” 

“Senate Republicans are going to be in a very strong position to steer the next two years,” Sen. John Barrasso of Wyoming, a member of the Republican leadership, told the Times. “Nothing is going to become law without the support of Senate Republicans.”

“If Biden ultimately wins the presidency and Republicans retain the Senate, Biden would become the first president since George H.W. Bush to start his first term without a Congress fully controlled by his party,” The Washington Post said. “That means that a major, signature legislative achievement early in his administration could be out of reach unless there is significant compromise.”

Additionally, Senate Majority Leader Mitch McConnnell, R-Ky., has been a crucial force in pushing through President Trump’s record of more than 200 judicial appointments, including that of Justice Amy Coney Barrett to the U.S. Supreme Court. 

Under a Biden administration, McConnell would be poised to lead Republicans in blocking judicial and cabinet appointments. A source close to McConnell told Axios Thursday that “a Republican Senate would work with Biden on centrist nominees but no ‘radical progressives’ or ones who are controversial with conservatives.”

A Republican-controlled Senate also would be able to thwart any potential effort by a Biden administration to expand the U.S. Supreme Court with progressive judicial appointments, in order to overcome the current 6-3 edge conservative justices now hold as a result of Barrett’s confirmation.


Impact on Pro-Life Movement 

Tom McClusky, president of March for Life Action, told the Register that the Senate is key to the Democrats’ agenda because in “the appropriations process, you need all three levers: You need the White House; you need the Senate; you need the House.” 

“The Democrats had planned on getting rid of all the pro-life provisions, not only the Hyde Amendment but … the Weldon Amendment and all these different pro-life provisions,” he said. “Now the Senate is in position to say what President Trump said after the Democrats took over the House: If you change any pro-life provisions, they won’t accept the bill.” 

The Hyde Amendment, on which Biden changed his position in June 2019, bans taxpayer funding of abortion. While Republicans appear likely to win some additional seats in the House, it will remain under Democratic control, and House Speaker Nancy Pelosi, D-Calif., signaled this summer that she would be open to doing away with the largely bipartisan, decades-old amendment, saying it “discriminates against poor women.” The Weldon Amendment is an annual appropriations rider that prevents federal, state and local governments receiving federal funds from discriminating against health-care entities that decline to “provide, pay for, provide coverage of, or refer for abortions.” 

McClusky added that part of the Senate’s influence would be “making sure that the Biden cabinet isn’t as radical as some on the left would like it to be, and that could somewhat affect pro-life policy.” 

McClusky said appointments to the Department of Justice could be significant and referenced the campaign promises of Biden’s running mate to “start investigating pro-life laws in the states through the Civil Rights Division of the Justice Department. The way Kamala Harris put it when she was running, if the states were to pass pro-life legislation, it would be up to the Biden justice department to decide if it’s allowed to go into effect or not.” 

During her primary run, Harris said that “states that have a history of passing legislation designed to prevent or limit women’s access to reproductive health care will be required to come before my Department of Justice. Until we determine their laws are constitutional, they will not take effect.”

McClusky also anticipated that a Republican-controlled Senate can “slow down” judicial appointments. “Thanks to the work they’ve done over the last four years, there aren’t going to be a lot of circuit court judges left, but there are some retirements coming up,” he said. 


A ‘Defensive’ Role 

Robert George, the McCormick Professor of Jurisprudence at Princeton University, told the Register that GOP control of the Senate would be a crucial check on legislation that would be harmful to the pro-life cause and to religious freedom.

“Its role would be defensive,” he said. “It would not be in a position to put new legislation through, because, of course, it would be vetoed by President Biden, but it would be in a position to block legislation hostile to religious freedom or the pro-life cause coming up out of the House of Representatives.” 

George gave the example of Biden’s campaign promise of “some sort of federal codification of Roe v. Wadein the event that it’s overturned by the Supreme Court,” which George believed to be “quite possible,” saying, in that scenario, the Senate would be in a position to block that legislation. 

As for religious freedom, George noted that the Senate could block the passage of the “Equality Act,” which “would in the name of ‘LGBT’ rights crush the religious liberty of religious institutions of all sorts, including the Catholic Church and its social-welfare agencies, adoption agencies and shelters and all sorts of other things.” 

Biden declared the Equality Act his No. 1 legislative priority as president last June. The proposed federal legislation would remove the ability under the Religious Freedom Restoration Act (RFRA) to cite religious freedom as a defense against discrimination claims and would add sexual orientation and gender identity to Title VII of the 1964 Civil Rights Act without religious-freedom exemptions. The U.S. Conference of Catholic Bishops opposed the legislation, saying it would “impose sweeping new norms that negatively impact the unborn, health care, charitable services, schools, personal privacy, athletics, free speech, religious liberties and parental rights.” 

“This would be blocked because McConnell wouldn’t let the bill from the House go through the Senate,” George said. “That’s the kind of defensive role that the Senate could play if Republicans do indeed hold it if Biden is elected.” 

George added that while Biden could still do certain things by executive order, “there are limits to what can be done through executive orders even with presidents willing to abuse them. The Democrats would not be able to accomplish for their socially liberal constituencies everything that they would like to accomplish and would be able to accomplish, were it not for the Republican block in the Senate.”

Veteran Church analyst George Weigel told the Register that the impact of a Biden presidency when it comes to abortion and religious freedom legislation would be “minimal, if the Republicans hold the Senate.” In that case, he predicted “all sorts of efforts to roll back some of the conscience protections that have been built into federal regulations of health care, for example, but those can and should be resisted.”

Rick Santorum, a CNN senior political commentator and former two-term U.S. senator from Pennsylvania, discussed the role of a Republican-controlled Senate with the Napa Institute’s executive director, John Meyer, the day after the election. 

“Frankly, if we can hold the Senate, we stop Biden from doing a lot of really bad things, like packing the court, adding D.C. as a state,” said Santorum, who is Catholic.

Santorum suggested that a Biden presidency might actually benefit from Republican control of the Senate, assuming that Biden doesn’t want to accommodate the more extreme demands of Democratic progressives. Biden “got handed a big favor by the Senate Republicans,” he said, because even though “he’ll be frustrated,” he’ll “have an excuse for the left as to why he’s not doing a lot of the things that they want him to do, because he can’t.”

Editor's Note: The outcome of the US 2020 presidential election is yet to be determined. This article will be updated once all votes are tallied.