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Louis Jacobson
By Louis Jacobson May 11, 2022

Senate Democrats fail to codify Roe v. Wade, again

Senate Democrats have failed in their efforts to codify abortion rights, even after a leaked draft of a Supreme Court decision indicated that a majority of justices were on the verge of overturning Roe v. Wade, the 1973 decision that assured a right to abortion.

In February, Senate Democrats sought to pass H.R. 3755, the House-passed Women's Health Protection Act, but they fell well short of the required 60 votes to proceed to a final vote.

Then, just days after the May 2 leak, Senate Democrats tried again, and failed.

The bill considered on May 11 was tweaked slightly from the version taken up in the chamber in February. It would have specifically prohibited mandatory ultrasounds, waiting periods, and other measures that critics say pose obstacles to those seeking abortions.

Every Democrat except for Sen. Joe Manchin of West Virginia voted for the measure, while every Republican voted against it. This left the measure not only short of the required 60 votes for final consideration but also, with a final count of 49-51, more votes against than in favor.

Manchin said he wasn't comfortable supporting the Women's Health Protection Act because it "wipes 500 state laws off the books. It expands abortion. … That's not where we are today."

Sen. Lisa Murkowski, a moderate Republican from Alaska also expressed concern that the Democratic bill did not allow Catholic hospitals to refuse to perform abortions.

Democrats, at least for the time being, opted not to seek a vote on a different measure to codify Roe v. Wade that had the backing of at least some moderate Senate Republicans.

That alternative bill — sponsored by one of those Republican moderates, Sen. Susan Collins of Maine — is more concise than the bill that Senate Democratic leaders pursued. It says that states "may not impose an undue burden" or "restrict" the ability of a woman "to choose whether or not to terminate a pregnancy before fetal viability." 

Supporters of that bill said it had the potential to secure a bipartisan majority in the Senate, which they touted as a clear affirmation of abortion rights even if the measure wasn't able to reach the 60-vote required for final consideration. But Democrats against it argued that it had loopholes that anti-abortion advocates would use to retrict abortions.

On the eve of the May 11 Senate vote, some Democrats acknowledged that bringing the measure to the floor was more about seizing a message that would mobilize abortion-rights voters.

"If the decision happens, tens of millions of women will see their right to have control over their own bodies vanish in the blink of an eye," Senate Majority Leader Chuck Schumer, D-N.Y., told reporters.

The White House also made clear beforehand that it understood that the bill was doomed to fail in the Senate.

"That's something the president would be happy to sign into law," said Jen Psaki, the White House press secretary. "At the same time, we certainly recognize that the votes — we don't have the votes."

The Supreme Court is expected to issue its final ruling — which could look significantly different than the leaked version — within weeks.

The battle over abortion rights will likely continue to play out during the rest of Biden's presidency. For now, Democrats' continued inability to codify Roe v. Wade into law leads us to keep this promise at Stalled.

Our Sources

Louis Jacobson
By Louis Jacobson December 14, 2021

House passes bill to enshrine Roe v. Wade, but threats to ruling mount

As a presidential candidate, Joe Biden promised to work to codify Roe v. Wade, the 1973 Supreme Court decision that made abortion legal nationally in many cases. Now the Supreme Court is considering whether to weaken or even overturn this legal precedent, and Democrats have taken up the issue with special urgency.

While the Biden administration and congressional Democrats have made some tangible efforts to bolster abortion rights, oral arguments at the Supreme Court over a Mississippi law that banned most abortions after 15 weeks of pregnancy suggested that a majority of justices were more open to significant changes to Roe than at any time in decades.

In December 2021, the Supreme Court heard oral arguments in a lawsuit that challenged the Mississippi law, which includes a shorter timeline for legal abortions than required under Roe. The Mississippi case offers the justices a clear opportunity to either change what's allowable under Roe or overturn the decision fully, letting states decide to enact more stringent bans on the procedure than would be allowed under Roe.

Legislation to effectively write Roe v. Wade into federal statutes has progressed. On Sept. 24, the House passed H.R. 3755, the Women's Health Protection Act of 2021, which said that health care providers have "a statutory right … to provide abortion services." The bill passed the House, 218-211, with all but one Democrat voting for it and all Republicans voting against it. 

However, the legislation is widely considered a nonstarter in the Senate, where it would require the support of 60 senators to proceed to a vote. Only a handful of Senate Republicans are  considered to be open to supporting a vote on the measure.

Meanwhile, the Justice Department has taken an active role in opposing state laws that could be used to overturn Roe v. Wade.

At the oral arguments over the Mississippi law, U.S. Solicitor General Elizabeth B. Prelogar made the case for striking down the law. 

Effectively overturning Roe by allowing the Mississippi law to stand "would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis," or respect for the Supreme Court's precedents, she said. "The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."

In addition, the Justice Department has filed a lawsuit to stop a different state law that could pose a threat to Roe.

This law, enacted in Texas, bans most abortions after six weeks, effectively blocking the vast majority of abortions in the state. The Texas law also used a novel enforcement mechanism that makes it harder to challenge in court: It allowed private citizens to file lawsuits against abortion providers and others who enabled an abortion after six weeks.

This enforcement mechanism is "an unprecedented" effort whose "obvious and expressly acknowledged intention" was to prevent women from having abortions, said U.S. Attorney General Merrick B. Garland at a news conference.

The Supreme Court has so far allowed the Texas law to remain on the books, but it has said the law can be legally challenged.

Despite the administration's legal efforts to support abortion rights, the ultimate question of whether Roe v. Wade remains in force is something the Supreme Court will decide, not the administration. And unless the longstanding 60-vote requirement in the Senate is eliminated, a change that does not seem imminent, then congressional action to put Roe's abortion standards into statute appears to be at a standstill.

It's possible that a Supreme Court decision to overturn Roe v. Wade could energize supporters of abortion rights, changing the political calculus for Congress. But that result would be speculative. For now, we rate this promise Stalled.

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