Could The Senate Guarantee Abortion Rights Nationwide? Here’s Why It’s Still Unlikely.

Topline

The Supreme Court appears poised to soon allow states to outlaw abortion by overturning Roe v. Wade, according to a draft opinion obtained by Politico, turning attention to Congress to protect abortion rights nationwide—but passing legislation in the Senate remains a longshot, and even abolishing the Senate’s filibuster rules likely wouldn’t help a bill to guarantee abortion access that’s already cleared the House.

Sens. Susan Collins (R-Maine) (L) and Lisa Murkowski (R-Alaska) on July 21, 2021 in Washington, D.C. … [+]

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Key Facts

The House has already passed the Women’s Health Protection Act (WHPA), which would codify the right to an abortion in federal law and block states from significantly restricting it, but the Senate blocked the bill in February in a 48-46 vote.

Some senators like Sen. Bernie Sanders (I-Vt.) have called for the Senate to get rid of the filibuster in light of the expected decision to overturn Roe, which would lower the threshold needed to pass the bill from 60 votes to a simple majority.

It’s unlikely the WHPA could even get a simple majority, as Sen. Joe Manchin (D-W.Va.) and pro-abortion rights Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) voted against it in February, believing the bill goes too far by superseding existing state-level abortion restrictions that had previously been allowed under Roe.

Collins and Murkowski have introduced legislation that would more narrowly codify the Supreme Court’s rulings in Roe and Planned Parenthood v. Casey, which says states’ abortion restrictions can’t impose an “undue burden”—a proposal that could have a better shot at passing if the filibuster is abolished.

Manchin and Sen. Kyrsten Sinema (D-Ariz.) would need to vote in favor of abolishing the filibuster in order for it to have enough Democratic support to pass, however, and the senators reiterated Tuesday they remain opposed to getting rid of it.

That means even if the Senate votes on Collins and Murkowski’s bill, it would need 60 votes to pass, which is unlikely in a Senate split evenly between Democrats and Republicans.

What To Watch For

Senate Majority Leader Sen. Chuck Schumer (D-N.Y.) said Tuesday the Senate will hold a vote on legislation “to codify the right to an abortion in law.” It remains unclear whether he plans to hold a second vote on the WHPA, or if the Senate would take up a narrower bill after the WHPA already failed to pass.

Crucial Quote

“A vote on this legislation is no longer an abstract exercise. This is as urgent and as real as it gets,” Schumer said Tuesday about legislation to codify abortion rights. “Every American is going to see which side every senator stands on.”

Contra

As Democrats push to preserve abortion access, Republicans are working to curtail it nationwide if they take back control of Congress in the midterm elections. The Washington Post reported Monday GOP senators and anti-abortion rights activists had already been holding discussions on passing a nationwide abortion ban should the Supreme Court overturn Roe. Current proposals would ban the procedure as early as six weeks into a pregnancy, though like WHPA and other legislation to preserve abortion access, it’s also unlikely to garner the 60 votes needed to pass.

Tangent

In a statement Tuesday, President Joe Biden urged lawmakers to pass legislation codifying abortion rights, which he said he’ll “work to pass and sign into law.” The president also said his administration “will be ready” when the court’s final opinion is issued, though it remains unclear what that means or if the White House intends to take any executive action in response.

Key Background

The Supreme Court appears likely to overturn Roe in the coming months, according to a draft opinion from February obtained by Politico, in which Justice Samuel Alito declares the 50-year-old ruling “egregiously wrong.” The ruling is in a case concerning Mississippi’s 15-week abortion ban and, more broadly, whether states can restrict abortion even before the fetus is viable. Chief Justice John Roberts has confirmed the draft’s authenticity, but said Tuesday it “does not represent” the court’s final decision or the “final position” of any justice. The court’s final decision will be released at some point before its term ends this summer, likely in June. Democrats in Congress have been pushing for lawmakers to address abortion rights for months in anticipation of the 6-3 conservative court’s ruling, as Texas and other states have enacted near-total bans on abortion even before the court rules. The House passed WHPA in September in a narrow 218-211 vote, and lawmakers testified to the House Oversight Committee that month about their own experiences with abortion in an effort to force federal action.