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Democrats' Plan for a Federal Law to Protect Abortion Rights Faces Huge Hurdles in Congress

Michael Mccoy | Reuters
  • A leaked draft Supreme Court opinion that would overturn Roe v. Wade has added new urgency to the Democratic effort to pass a federal law to protect abortion rights.
  • To do so, Democrats would first need to get 50 senators to agree to change Senate rules so they could pass the law with just a simple majority. But at least two senators have said in the past that they oppose this move, as has President Joe Biden.
  • Even if this change were to pass, West Virginia Democrat Joe Manchin has already voted this year against a bill to protect abortion rights under federal law. And there are no indications he would change his position.

WASHINGTON -- A leaked draft Supreme Court opinion that would overturn Roe v. Wade has added new urgency to the ongoing Democratic effort to pass a federal law in Congress to protect abortion rights.

"Now that the Court is poised to strike down Roe, it is my intention for the Senate to hold a vote on legislation to codify the right to an abortion in law," said Senate Majority Leader Chuck Schumer, D-N.Y., on Tuesday, 12 hours after Politico published the bombshell draft opinion.

Other Democrats were more insistent. "Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW," said Vermont independent Sen. Bernie Sanders. "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."

As Sanders notes, in order to pass such a law, Democrats will first need to get 50 senators to agree to change the Senate's filibuster rule. Only then can they pass an abortion rights protection law with a simple majority.

But even changing the filibuster looks near impossible.

U.S. Senator Elizabeth Warren (D-MA) reacts during a protest outside the U.S. Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, May 3, 2022.
Evelyn Hockstein | Reuters
U.S. Senator Elizabeth Warren (D-MA) reacts during a protest outside the U.S. Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, May 3, 2022.

Already this year, two Democratic senators said they opposed changing the filibuster to pass voting rights legislation: West Virginia's Joe Manchin and Arizona's Krysten Sinema.

In the case of voting rights, President Joe Biden had signaled he would go along with changing the rules if a bill could pass the Senate. But in other instances, Biden has also said he opposes changing the Senate filibuster rules.

The president often argues that if Democrats change the rules to pass a bill they consider sacrosanct, like voting rights or abortion rights, then Republicans will have free rein to do the same the next time they control the Senate.

This could open a Pandora's box of potential consequences that Biden has warned Democrats about both in public and in private.

It's not difficult to imagine a Republican-controlled Senate passing some version of a nationwide federal abortion restriction using only a 50-vote threshold — or likewise, passing a nationwide voter ID law that could severely limit access to the polls.

Nonetheless, many progressives reject Biden's justification for hanging on to the filibuster rule as an overly cautious and procedural response to what they say are monumental threats to basic constitutional rights.

Still, both legal scholars and political analysts note that Biden's fear of unleashing a conservative free-for-all looks more justified today than it might have a few years ago.

For much of the Trump era, Democrats were on the ascent. They retook first the House in 2018 and then the Senate in 2020.

But now those roles are reversed. Republicans are currently favored to win control of both the House and the Senate in November's midterms. if current trends hold, a Republican would have a good chance to win the presidency in 2024.

Even if a filibuster reform bill could pass the Senate, the current legislation in Congress to protect abortion rights, the House-passed Women's Health Protection Act, still faces an enormous hurdle: Manchin, again.

Senator Joe Manchin (D-WV) exits the U.S. Capitol following a vote, on Capitol Hill in Washington, February 9, 2022.
Tom Brenner | Reuters
Senator Joe Manchin (D-WV) exits the U.S. Capitol following a vote, on Capitol Hill in Washington, February 9, 2022.

A self-described pro-life Democrat, Manchin was the only member of his party in the Senate to vote against advancing the Women's Health Protection Act earlier this year.

On Tuesday, Manchin refused to answer questions about whether he would now support either changing the filibuster or codifying abortion rights into law.

And without Manchin on board to pass the final abortion protection legislation, going to great lengths to suspend the filibuster begins to look pointless.

This could help explain why Biden stopped well short of calling for filibuster reform following the release of Monday's draft opinion.

If the Supreme Court overturns Roe, Biden said, "it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose."

"And it will fall on voters to elect pro-choice officials this November."

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