- Democrats quickly unified around a renewed effort to codify Roe v. Wade into law.
- Their response comes after a bombshell Politico report that claims the Supreme Court has the votes to overturn abortion rights.
- But Democrats are unlikely to succeed in their efforts due to the Senate's filibuster.
Democratic lawmakers quickly unified Monday night on a renewed push to codify the Supreme Court's landmark Roe v. Wade decision into law in the wake of a bombshell report that the high court has the initial votes to explicitly overturn abortion rights.
Politico reported that it obtained a draft Supreme Court majority opinion in a pending case over Mississippi's law that effectively bans all abortions after 15 weeks of pregnancy. The bombshell report says that Justice Samuel Alito's opinion is prepared to explicitly overturn the court's landmark Roe v. Wade decision and subsequent ruling in Planned Parenthood v. Casey that have upheld a federal right to an abortion for decades.
Politico's report cautions that it is just a draft opinion and that justices could still change their minds.
"If #SCOTUS is going to legislate from the bench and turn back the clock 50 years on #RoeVWade, then the Senate needs to pass my Women's Health Protection Act …," Sen. Tammy Baldwin, a Democrat from Wisconsin, wrote on Twitter.
If Democrats do try to take action in Congress, they are likely to run into the same obstacle that has vexed much of their agenda: the Senate filibuster. The procedural hurdle effectively requires almost all legislation, including a bill to formally codify federal abortion rights, to receive 60 votes.
With the Senate split 50/50 in an era when Republican lawmakers are almost unanimously opposed to abortion, this is extremely unlikely to occur.
However, if their efforts worked, Congress could effectively preempt states that have or would ban abortions. If Congress fails to pass such a ban, the current draft Supreme Court opinion would allow individual states to decide their own abortion policy.
At least 21 states are poised to ban or severely limit abortions if the Supreme Court overturns Roe v Wade through the use of so-called "trigger laws," NPR previously reported.
On the same day the reported draft opinion leaked, The Washington Post detailed a growing effort by some conservatives to push a nationwide ban on abortions after six weeks of pregnancy.
Right now, Democrats are focused on the Women's Health Protection Act as the best vehicle to enshrine a federal right to abortion into law.
The House passed the act last year on a largely party-line 218-211 vote, a sign of how few anti-abortion Democrats remain in Congress. Baldwin has introduced similar legislation in the Senate but it failed to pass an early procedural hurdle in February.
At that time, the Senate failed to move forward on the legislation on a 46-48 vote. Republican Sens. Susan Collins and Lisa Murkowski, who are generally speaking the only pro-choice Republicans left in the chamber, both voted against the bill. They previously said the legislation goes too far and have introduced their own competing bill.
Of more concern to Democrats, Sen. Joe Manchin also opposed moving forward on the bill.
Baldwin, Sen. Bernie Sanders, and some other Democrats have called for the filibuster to be abolished in order to affirm abortion rights, but as Manchin's opposition illustrates, the party has previously lacked even 50 votes to pass the underlying legislation. Manchin and Sen. Kyrsten Sinema, who supported her party's bill, have repeatedly said they will not support efforts to weaken the filibuster.
—Bernie Sanders (@SenSanders) May 3, 2022
In the face of a likely failure, Democrats are left to resort to a call for a public outcry. They may also be banking on the prospect that outrage over such a decision could upend the midterm elections, should Politico's report hold true.
"People should take to the streets across the country," Rep. Pramila Jayapal, who chairs the Congressional Progressive Caucus, wrote in a series of messages on Twitter. "We will not accept this sitting down and we WILL take this to the streets and the voting booth."
House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer blasted the Supreme Court over the reported draft opinion, a likely sign of the party's future response should the draft become the court's final word.
"If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years – not just on women but on all Americans," the top congressional Democrats wrote in a joint statement. "The Republican-appointed Justices' reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history."