In the wake of Justice Samuel Alito’s leaked draft, as the political world started coming to terms with the looming demise of the Roe v. Wade precedent, President Joe Biden issued a statement 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.”
That, in a nutshell, became the Democratic plan. The governing majority can’t twist Supreme Court jurists’ arms, and they don’t appear ready to expand the number of justices on the high court, but it’s within lawmakers’ power to establish reproductive rights that Republican-appointed justices appear poised to take away.
For now, that legislative vehicle is the Women’s Health Protection Act, passed the House last fall, 218 to 211, overcoming the unanimous opposition of the chamber’s Republican members. In late February, Senate Democrats brought it the chamber floor, where it needed 60 votes. It received 46.
Today, against a backdrop of a looming decision in Dobbs v. Jackson Women’s Health Organization, the Senate majority tried again. Everyone knew in advance that the bill would fall short, and as NBC News reported, it did.
The Senate failed to advance a Democratic-led bill Wednesday that would enshrine broad protections for legal abortion nationwide, a vote triggered by a leaked Supreme Court draft opinion that indicates Roe v. Wade will likely be overturned.... All 50 Republicans and Sen. Joe Manchin, D-W.Va., voted against proceeding to debate.
The final tally was 49 to 51. (Note, this was a procedural vote to proceed with a debate on the legislation, not a vote on the bill itself. Manchin and every GOP senator in the chamber voted to prevent that debate from happening.)
There’s been a fair amount of speculation of late about whether holding a doomed vote was worth senators’ time, but Democratic leaders, eager to prove that they’re at least making an effort and committed to the underlying principle, declared that it was important to get members on the record. They’ve now done exactly that.
But is that all they’ve done? Perhaps not.
The past couple of days have proven to be a bit more informative than many observers, including me, expected. For example, Democratic Sen. Bob Casey, a longtime opponent of abortion rights, announced yesterday that he now supports the Women’s Health Protection Act and the effort to codify the status quo in federal law. (The Pennsylvanian previously voted to begin debate on the bill, but opposed the underlying proposal. Now, in “a major shift,” he’s changed his mind.)
As for Congress’ most conservative Democrat, it’s no secret that Manchin has never been one of Congress’ proponents of reproductive rights, and no one was surprised when the West Virginian voted with the Republican minority today and when the bill first came up a few months ago.
But when announcing his opposition to the bill earlier today, Manchin also told NBC News that he believes a “clean” bill — with no extraneous provisions — to codify the Roe precedent would be “the reasonable rational thing to do.”
He added, “I would vote for a Roe v Wade codification, if it was today. I was hopeful for that. But I found out yesterday in caucus that wasn’t going to be.”
In other words, Manchin balked at the Women’s Health Protection Act because, as he sees it, the bill builds on the rights women currently enjoy. A more narrowly focused proposal could, if the senator’s comments today were sincere, theoretically still receive his support.
As best as I can tell, the conservative Democrat hasn’t been quite this explicit on the issue before.
To be sure, as a legislative matter, the significance is limited. Even if Manchin were persuaded to support a “clean” bill, and he managed to bring along nominally moderate Republicans such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, that would represent a majority of senators, but not a supermajority. The arithmetic is stubborn: 52 is less than 60.
But with Casey backing the bill, and Manchin endorsing the legal status quo, there’s at least something resembling kinetic political activity on the issue in Democratic politics.
What's more, let's not forget that 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.
There’s no reason to think we’ve heard the last of this.