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Bill to codify Roe protections takes on new urgency for Democrats

Senate Democrats don't have the votes to codify Roe v. Wade protections, but it's worth understanding why they're going to try to pass their bill anyway.


With Republican-approved justices on the Supreme Court poised to overturn Roe v. Wade, President Joe Biden issued a statement yesterday morning, arguing the nation “will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

The idea is straightforward: Since 1973, there have been legal protections in place to shield Americans’ reproductive rights. GOP-backed justices appear to be ready to end those protections, but there’s nothing stopping Congress from passing a federal law that leaves the status quo intact.

For the narrow Democratic majority in the Senate, there are limited options to deal with the upcoming ruling in Dobbs v. Jackson Women’s Health Organization, so senators will apparently go with the only vehicle available. NBC News reported:

A leaked draft of a Supreme Court opinion that would overrule Roe v. Wade has prompted new calls from Democrats to codify abortion rights protections into federal law.... “I think we need to once again bring the Women’s Health Protection Act up for a vote that would guarantee that Roe v. Wade would be the law of the land,” Sen. Amy Klobuchar, D-Minn., said Tuesday on CBS News.

The key phrase in Klobuchar’s quote was “once again.”

As regular readers may recall, it was nine months ago when the Women’s Health Protection Act passed the House, 218 to 211, overcoming the unanimous opposition of the chamber’s Republican members.

In February, Democratic senators tried to follow suit, but the measure predictably failed to overcome a Republican filibuster.

This was a breakthrough of sorts: Legislation to codify Roe had been introduced in every Congress for a decade, but it had never received so much as a vote in committee. In this Congress, however, it passed the House, and received near-unanimous support from Senate Democrats. What’s more, Biden extended his enthusiastic support to the proposal.

The Women’s Health Protection Act went from an afterthought in Democratic politics to a new staple of the party’s legislative agenda — but that didn’t change the fact that the bill didn’t pass.

Now, as the issue takes on greater urgency, the narrow Senate majority is ready to try again.

To be sure, the legislative circumstances have not changed, and the odds of the legislation overcoming a GOP filibuster are zero. But Democrats intend to move forward anyway — party leaders are likely to bring the bill to the floor next week — for a few reasons.

First, the party intends to make clear that nearly every Democrat isn’t willing to give up on reproductive rights. Second, the votes appear designed to pressure Senate Republicans such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, who are nominally abortion rights advocates. Neither one has endorsed the Women’s Health Protection Act, though advocates are hoping Justice Samuel Alito’s draft ruling will push them to give the bill a fresh look.

There was some talk yesterday about a renewed push to change the chamber’s filibuster rules in order to protect reproductive rights, but such a gambit would not work: Not only do Democratic Sens. Joe Manchin and Kyrsten Sinema continue to support the existing rule, but even if they were to change their minds, Manchin doesn’t support abortion rights. Neither does Democratic Sen. Bob Casey of Pennsylvania.

In other words, even if the Women’s Health Protection Act could pass with 50 votes, those votes don’t currently exist.

For what it’s worth — and it may not be worth much — Collins said yesterday that she and Murkowski support a weaker, alternative version of the bill, and she believes Democrats such as Manchin and Casey may be amenable to her proposal.

But even if the Maine Republican were correct, and her bill had majority support, it still wouldn’t matter because it would need 60 votes, not 52.

For ardent reproductive rights advocates, many will probably soon ask, “If Democrats can’t codify Roe, what good are they as allies?” At that point, Democratic leaders will likely respond, “Without us in the majority, Republicans won’t just fail to codify Roe, they’ll pursue a federal abortion ban.”