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Senate Democrats look to write abortion rights into law, but may lack votes

Earlier effort stalled, but leaked opinion changes things, Schumer says

Senate Majority Leader Charles E. Schumer, D-N.Y., walks back into the Capitol on Tuesday after speaking on the Senate steps about a leaked draft opinion indicating the Supreme Court will overturn Roe v. Wade.
Senate Majority Leader Charles E. Schumer, D-N.Y., walks back into the Capitol on Tuesday after speaking on the Senate steps about a leaked draft opinion indicating the Supreme Court will overturn Roe v. Wade. (Bill Clark/CQ Roll Call)

Senate Democrats plan to try to pass a narrowly focused bill making abortion rights part of federal law even though they don’t appear to have the votes to change the chamber’s rules to eliminate the filibuster threat.

“It’s a different world now. The tectonic plates of our politics on women’s choice and on rights in general are changing,” Senate Majority Leader Charles E. Schumer said Tuesday. “Every senator now under the real glare of Roe v. Wade being repealed by the courts, is going to have to show which side they are on.”

The tectonic shift Schumer was reacting to came from the leak, reported by Politico, of a draft opinion from Supreme Court Associate Justice Samuel A. Alito Jr. upholding a strict anti-abortion law in Mississippi and effectively returning legal power to regulate abortion to the states.

The New York Democrat said he would take procedural steps to introduce and expedite new legislation to the floor this week to codify the landmark abortion rights ruling Roe v. Wade. That would appear to be a somewhat narrower approach to the issue than a House-passed bill that stalled in the Senate in February.

Asked Tuesday whether the anticipated decision would be a reason to get rid of the filibuster, Sen. Joe Manchin III, D-W.Va., appeared skeptical. “There’s been a lot of times we’ve protected women’s rights with the filibuster, so we have to look at it, but the bottom line is it’s the only check and balance we have,” Manchin said. 

Collins, Murkowski alternative

Sen. Susan Collins, R-Maine, who has drafted legislation with Alaska GOP Sen. Lisa Murkowski to put protections from the Roe v. Wade decision and the Planned Parenthood v. Casey decision into law, said earlier Tuesday that she was optimistic about getting Manchin on board with that measure. Schumer said he had not reviewed the text from the two Republicans.

Murkowski couched her reaction in the tentative nature of the news — the Alito draft, dated February, is not a formal opinion, and negotiations with his fellow justices could result in changes in what the full court actually does. Still, the Alaskan, who supports abortion rights, was leaning toward Senate action.

“If in fact this draft is where the court ends up being … the words I used is ‘it’s rocked my confidence in the court’ and that is because I think there were some representations made with regards to precedent,” Murkowski told reporters.

‘Completely inconsistent’

Collins, in a statement responding to the draft opinion, said if it turns out to be true then she had been misled by two of President Donald Trump’s Supreme Court nominees, Neil M. Gorsuch and Brett M. Kavanaugh.

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said. “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

Collins voted to confirm both Gorsuch and Kavanaugh and had expressed publicly that she believed they would respect precedent.

Sen. Amy Klobuchar, D-Minn., said the Alito draft, which Politico said was supported by Gorsuch, Kavanaugh and two others on the court, demonstrated “Neanderthal views” that pushed the country backward.

“I hope my colleagues who did not want to change the filibuster for the voting rights see the urgency of doing this now,” Klobuchar said. “This is a moment to look at the filibuster and then the final thing is if they won’t do it, we’re heading to the ballot box in the elections and 80 percent of Americans are with us.”

But President Joe Biden seemed to acknowledge the reality of the votes.

“At the federal level, we 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,” Biden said in a statement.

Biden said that “if the Court does overturn Roe, 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.”

Senate tried before

That recognizes that the House and Senate have already tried to act, in this Congress, and the votes were not there in the Senate to get legislation favored by Democrats to codify abortion rights to the president’s desk. A bill passed the House by a vote of 218-211 in September 2021, but when Schumer called up a test vote in February, it did not get a simple majority.

The Senate voted 46-48 to reject an effort to break a filibuster on a motion to proceed to the measure, which would have needed 60 votes to advance. Collins and Murkowski voted against that cloture motion while crafting their own alternative.

In any case, it remains unlikely that a coalition of 50 senators would come together, with the assistance of Vice President Kamala Harris, to change Senate precedents and upend the legislative filibuster.

Schumer and Speaker Nancy Pelosi, in a statement Monday night, went further than Collins in criticizing Gorsuch and Kavanaugh. 

“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century,” Pelosi and Schumer said.

Leak infuriates GOP

Republicans, who have for decades called for reversing the Roe decision and worked methodically to install a court that would do that, were more focused Tuesday on finding the source of the leaked decision than discussing what comes next for the country.

“The disgraceful statements by President Biden, Speaker Pelosi and Leader Schumer refuse to defend judicial independence and the rule of law and instead play into this toxic spectacle,” Senate Minority Leader Mitch McConnell said Tuesday. “Real leaders should defend the Court’s independence unconditionally.”

Schumer, in remarks on the Senate floor, said he intends to hold a Senate vote on legislation to codify the right to an abortion and said that “the elections this November will have consequences, because the rights of 100 million women are now on the ballot.”

Avery Roe contributed to this report.