The Supreme Court draft ruling puts Henry Cuellar in hot seat over abortion votes ahead of runoff election

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

When Jessica Cisneros released the first TV ad of her Democratic primary runoff last week, it highlighted how her opponent, U.S. Rep. Henry Cuellar of Laredo, was the only House Democrat to vote against legislation to codify Roe v. Wade.

“But on May 24, you can have the last word,” the ad said as it flashed images of women’s faces.

Then, on Monday night, Politico published a leaked draft opinion by the U.S. Supreme Court indicating it plans to overturn the landmark abortion rights case.

With only three weeks to go until the May 24 election, abortion rights have reclaimed the national stage. The tight race between Cuellar, a moderate Democrat who famously opposes abortion, and Cisneros, a young progressive, represents the most vivid illustration of how the leaked opinion could reshape a number of the fast-approaching runoffs.

It “just really ups the ante about why we need to be involved in this race,” said Kristin Ford, a spokesperson for NARAL Pro-Choice America, which supports Cisneros. The leaked opinion “increases the urgency and is yet another ominous sign of what’s to come.”

The Supreme Court on Tuesday confirmed the authenticity of the leaked opinion but said it does not represent a final vote of the court.

Cuellar was quiet on the news most of Tuesday before issuing an evening statement that said he opposes abortion but also denounced the likely ruling, saying it was without precedent and would “further divide the country during these already divisive times.”

“I do not support abortion, however, we cannot have an outright ban. There must be exceptions in the case of rape, incest, and danger to the life of the mother,” he said. “My faith will not allow me to support a ruling that would criminalize teenage victims of rape and incest. That same faith will not allow me to support a ruling that would make a mother choose between her life and her child’s.”

Texas’ runoffs are in 21 days, but many Democrats are already looking to harness the energy for the November election. The Democratic nominee for governor, Beto O’Rourke, was among the first major Texas politicians to react to the Politico story Monday night, tweeting that it has “never been more urgent to elect a governor who will always protect a woman’s right to abortion.”

If the Supreme Court does overturn Roe v. Wade, President Joe Biden said in a statement, “it will fall on voters to elect pro-choice officials this November.”

“Winning political power is the … only way to overcome this,” O’Rourke said during an Instagram Live broadcast Tuesday afternoon with Cecile Richards, the former head of Planned Parenthood who serves as his national finance chair.

Later Tuesday afternoon, O’Rourke announced a “rally for abortion rights” Saturday in Houston.

But before the general election are the Texas runoffs, and they provide some clear choices for voters who care about abortion rights.

Cuellar is the last outlier among House Democrats on abortion.

By the time Cuellar joined Congress in 2005, the U.S. House’s influence on abortion was mostly relegated to arguments over whether government money should be used to fund abortions, both domestically and abroad.

In those debates, Cuellar often joined a small group of Democrats in siding with Republicans. For instance, in early 2012 he and 13 other Democrats gathered in support to watch President Barack Obama sign an exective order clarifying that no federal funds would be used to pay for abortions under his 2010 health care law. Only three of the Democrats who were there that day are still in office.

Nearly all of Cuellar’s like-minded Democrats from that era have since retired, lost reelection or moved more in line with the rest of the party on abortion.

The culmination of his isolation on abortion came in September. In response to the Texas abortion law, which essentially bans abortions after about six weeks of pregnancy, the U.S. House passed the Women’s Health Protection Act that would codify the right to an abortion at the federal level. It has not passed the Senate.

Cuellar was the lone Democrat to vote against it and did not shy away from his vote.

“It’s called conscience,” Cuellar told the Laredo Morning Times in October. “I am a Catholic, and I do believe in rights and right to life. … Sometimes people vote because of political [views], they think this is a Democratic or Republican issue. To me, it’s a matter of conscience.”

The leaked opinion came ahead of a major campaign event for Cuellar: a Wednesday rally in San Antonio with House Majority Whip Jim Clyburn, R-S.C.,the No. 3 House Democrat.

In a phone interview with The Texas Tribune, Cisneros described breaking a personal rule on Monday night of staying off social media in the evenings in order to check out the latest fashion trends at the Met Gala. She was stunned to discover instead that the Supreme Court was postured to go further than expected in rolling back abortion rights.

“It’s one thing, I guess, bracing yourself, knowing this was going to happen, and then it’s another seeing it actually happen and what’s going to come down the line this summer,” she said, referring to the Supreme Court’s anticipated June ruling.

She said the news would not affect her campaign strategy going forward because abortion has always been central to her case against Cuellar — both this cycle and when she challenged him for the first time in 2020.

“Unfortunately, a future where Roe is overturned is a future that we know Henry Cuellar has been fighting for,” she said.

While other Democratic runoffs may not reflect such a stark divide on abortion rights, the topic is still relevant as advocates have taken sides in hopes of electing the strongest allies possible.

In the Democratic runoff for attorney general, abortion rights group have backed Rochelle Garza, a former attorney for the American Civil Liberties Union, over Joe Jaworski, a Galveston lawyer and former mayor of the city. At the ACLU, Garza represented an undocumented teenager fighting to get an abortion, which she obtained after a federal appeals court ruled in her favor.

“The role of the Texas Attorney General is increasingly important given last night’s SCOTUS developments,” Garza tweeted Tuesday morning. “When Roe is repealed & states are left to cherry-pick their own abortion regulations, Texans’ last line of defense against forced pregnancy will be the AG.”

Jaworksi is also a supporter of abortion rights and responded to the leaked opinion by outlining on Twitter how he would fight back against the end of Roe v. Wade as attorney general.

Ana Ramón, interim executive director of Annie’s List, which supports Garza, said the attorney general’s race is “one of the most crucial” in Texas going forward. She said Garza’s “lived experience” as a mother and lawyer fighting for abortion rights sets her apart in the runoff.

“Of course, [positions on] issues are critical, but outcomes are even more critical,” Ramón said, “and we need that level of experience right now in Texas.”

In the Democratic runoff for what could be the most competitive congressional district in November — the 15th District in the Rio Grande Valley — abortion rights organizations have endorsed Michelle Vallejo, a small-business owner and activist from Alton. Vallejo was quick to react to the Politico story, tweeting that it is “​​time to elect more pro-choice women to congress” and urging voters to “show up to fight” in the runoff.

Vallejo’s opponent, Ruben Ramirez, said in a statement Tuesday that the country “cannot move backwards” on abortion rights and that the leaked opinion “only reconfirms our need to codify Roe v. Wade into law.”

Then there are Democratic primary runoffs for the Texas Legislature where abortion rights could also take on even more signifiance. In Texas Senate District 27 in the Rio Grande Valley, Sara Stapleton-Barrera and Morgan LaMantia are competing to replace retiring Sen. Eddie Lucio Jr., a Democrat who has long split with his party on aborton rights, including voting for the almost-total ban on abortion that became law last year.

Lucio is backing LaMantia, who has said she nonetheless disagrees with him on abortion rights and would have voted against the near-total ban. But some abortion rights advocates see a more stalwart ally in Stapleton-Barrera, who challenged Lucio in 2020 and forced him to a runoff, which she lost by 7 percentage points.

In the Republican runoffs, the leaked opinion is less likely to reverberate given the Texas GOP’s unity on the issue. Republicans in the Legislature virtually all supported the near-total abortion ban and another law last year to automatically outlaw abortion in Texas if the Supreme Court overturns Roe v. Wade.

One state House Republican, Rep. Lyle Larson of San Antonio, had a change of heart after voting for the almost-total ban and introduced a bill to provide exceptions for rape and incest. But it went nowhere, and Larson is not seeking reelection in his solidly red district.

In fact, in some GOP runoffs, Republicans are debating what more they can do to eradicate abortion beyond the new law, which supporters called the “heartbeat bill” because it bans abortions after an ultrasound can detect cardiac activity in an embryo. One of the candidates for Larson’s seat, Mark Dorazio, says on his website that he “fully support[s] Texas’ recent Heartbeat Bill and will continue to support legislation that seeks to end abortion altogether.”

Disclosure: Politico, Planned Parenthood and Annie’s List have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

Help mission-driven journalism flourish in Texas. The Texas Tribune relies on reader support to continue delivering news that informs Texans and engages with them. Donate now to join as a Texas Tribune member. Plus, give monthly or yearly now through May 5 and you’ll help unlock a $10K match. Give and double your impact today.