Senate Democrats’ Effort to Save Abortion Rights Won’t Work

Schumer rallying the troops.
Photo: Kent Nishimura/Los Angeles Times via Getty Images

Since Democrats control the White House and Congress at the moment, one might think they would be able to take some action to protect the constitutional right to an abortion. And in the wake of the leak of a draft Supreme Court opinion by Justice Samuel Alito reflecting a majority’s decision to strike down Roe v. Wade, Senator Bernie Sanders, Representative Alexandria Ocasio-Cortez, and a handful of other lawmakers and 2022 midterms candidates said their party must take immediate action to codify a federal right to abortion.

On Tuesday, Senate Democrats moved to do just that, announcing plans to bring up the Women’s Health Protection Act, which the House passed last year. The proposed law would create a federal right to abortion care, preempting the state restrictions that are expected to take effect in Republican-controlled states when the Court hands down its ruling on Dobbs v. Jackson Women’s Health Organization.

But there is one huge problem with the Democrats’ plan: The bill was blocked by a Republican filibuster in the Senate earlier this year, and despite the radically changed circumstances that make the legislation more urgent, it will be blocked by a Republican filibuster again.

Though the leaked Supreme Court draft reinvigorated Democratic calls to eliminate the Senate filibuster, the dynamics that have defined this Congress haven’t changed. The votes just aren’t there to nuke the filibuster, and nothing important and controversial can get through the Senate without 60 votes. This was true of the Build Back Better legislation and voting-rights-restoration measures, and it’s true of abortion bills.

Anyone hoping that the impending end of Roe had changed things quickly had their hopes dashed once again. On Tuesday, Democratic Senators Joe Manchin and Kyrsten Sinema confirmed that they will not abandon their staunch support of the filibuster in order to facilitate passage of a preemptive abortion law (which Manchin — and for that matter, fellow Democrat Bob Casey — doesn’t support in any event). In theory, Democrats could compensate for the loss of two senators from their conference by recruiting pro-choice Republicans Susan Collins and Lisa Murkowski. But they, too, have indicated that they won’t vote to kill the filibuster for an abortion bill or any other legislation. And in addition, they oppose the Democratic-drafted Women’s Health Protection Act, though they do have their own narrower bill that would codify Planned Parenthood v. Casey’s “undue burden” standard for unacceptable pre-viability state abortion restrictions.

Democrats understandably want to demonstrate their commitment to reproductive rights in this moment of great peril while forcing Republicans to openly defend an action by the Supreme Court that a majority of voters oppose. And the party also hopes to make abortion a 2022 campaign issue at a time when so many other topics and the midterm landscape itself favors Republicans. But as with the failed efforts to enact a sweeping budget-reconciliation bill and to protect voting rights, you have to wonder if another doomed assault on the wall of Republican obstruction will simply make Democrats, with their alleged governing trifecta, look feckless to their own constituencies. It’s unclear whether good intentions leading nowhere will help or harm their argument for retaining power.