Democrats in Congress were in a fighting mood on Tuesday. Just hours after Politico published a draft opinion by a Supreme Court majority that would strike down Roe v. Wade, senators issued fiery promises about what Congress must do next to safeguard legal access to abortions.
“I am angry. Angry and upset and determined,” Sen. Elizabeth Warren of Massachusetts declared outside the Court. “The United States Congress can keep Roe v. Wade the law of the land. They just need to do it.”
It just wasn’t clear how. Many Democrats have long pursued two legislative avenues to protect the right to a legal abortion nationwide. “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders tweeted. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Yet in a 50-50 Senate, any effort to pass a law codifying abortion access nationwide would require 60 votes, which Democrats are extremely unlikely to win. And any attempt to end-run that 60-vote limit would require overturning the filibuster—an equally unlikely scenario.
That much was clear in February, when Republican Senators, joined by Democratic Sen. Joe Manchin, blocked a bill known as the Women’s Health Protection Act, which was designed to enshrine the right to abortions in federal law. The measure passed the Democratic-controlled House last September, but never stood a chance of gaining the support of 60 senators.
Democrats in the Capitol acknowledged Tuesday that little has changed, even though the explosive leak from the Court has ratcheted up the urgency.
“We’ll put a vote on the floor to make clear where the senators stand,” says Democratic Sen. Chris Murphy of Connecticut. “It’s no secret that we don’t have the votes right now to change the rules of the Senate to ensconce Roe v. Wade into law.”
At a lunch meeting of Senate Democrats hours after the Roe draft opinion leaked, no one even brought up the filibuster issue, according to Democratic Sen. Bob Menendez of New Jersey. That may be because Manchin and Democratic Sen. Kyrsten Sinema remain opposed to killing it. “The filibuster is the only protection we have of democracy right now,” Manchin told reporters Tuesday. Sinema said in a statement that not eliminating the filibuster is “safeguarding against the erosion of women’s access to health care.”
“The people who don’t want to change the filibuster haven’t changed their minds,” says a Senate Democratic aide. “There will be a push to enact legislative changes, but we simply don’t have the votes.”
In the absence of them, Democrats vowed to put the issue at the center of the midterm elections. “You can be sure in 2022, this will be an issue all throughout the country,” Senate Democratic leader Chuck Schumer told reporters. “We’ve got to go out and make the case to voters to elect more Democrats,” Murphy says.
Democratic lawmakers emphasized a SCOTUS ruling would make real what has long been an abstract fear. “There’s a big difference between threatening to take away women’s reproductive rights and actually doing it,” says Sen. Chris Van Hollen of Maryland. “This is a clarifying moment. This has been part of the right-wing movement for a very long time. Now the American people are waking up to seeing that what was implicit is now explicit.”
Sen. Amy Klobuchar inveighed against the draft opinion, calling it contrary to the will of the American people. “The Supreme Court has been stacked with ultra conservative justices who are literally reversing 50 years of precedent,” Klobuchar intoned in the Senate basement. “They are taking Neanderthal views, pushing America backwards.”
But privately, Democrats on the Hill admitted that in a split Senate, there was little the legislative branch could do at the moment to change the situation.
“We’ll have another vote to codify Roe into law,” according to a senior House staffer, “but that’s just meaningless because of the Senate.”
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