Democratic calls to codify abortion rights in the wake of a draft Supreme Court ruling that would strike down Roe v. Wade are facing a buzz saw in the Senate, where centrist Democrats Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) oppose nixing the filibuster.
The leaked draft — which Chief Justice John Roberts confirmed was authentic while not final — poured fuel onto calls for Congress to act quickly to enshrine abortion rights amid new fears that the court could be poised to dramatically remake reproductive health across the country.
Democrats, including Sen. Elizabeth Warren (Mass.), were visibly angry that a decades-long effort by conservatives inside and outside Congress to stack a Supreme Court with right-leaning justices to reverse Roe v. Wade appeared on the edge of success.
But, acknowledging reality, Democrats know they are also short of the votes needed to enshrine it into law.
“We’ll put a vote on the floor to make it clear where every senator stands, but it’s no secret that we don’t have the votes right now to change the rules of the Senate to ensconce Roe v. Wade in law,” said Sen. Chris Murphy (D-Conn.).
Pressed if Democrats would restart their months-long effort to try to move Sinema and Manchin on the filibuster, Murphy said: “I think you’ve seen their statements, so I don’t think I need to add anything more to that.”
The leaked draft, penned by Justice Samuel Alito, would mark a watershed moment in American politics and throw abortion access into limbo for millions of women in states across the country.
“It’s a different world now. The tectonic plates of our politics … are changing,” Senate Majority Leader Charles Schumer (D-N.Y.) said Tuesday.
Conservatives have viewed overturning Roe, which was decided 7-2, as a decades-long goal in their effort to reshape the federal courts. Key steps in that process include then-Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal in 2016 to grant a hearing for Merrick Garland, former President Obama’s nominee to succeed the late conservative Justice Antonin Scalia.
Former President Trump’s surprise election win that fall, as well as Republicans keeping the Senate majority, resulted in three conservative justices being confirmed to the court — all of whom were said to be ready to vote with Alito and conservative Justice Clarence Thomas to cut down Roe v. Wade, according to Monday’s report by Politico on the draft decision.
The third of those Trump appointments, Amy Coney Barrett, replaced liberal Justice Ruth Bader Ginsburg, who died just months before the 2020 presidential election. McConnell and GOP senators worked furiously and quickly to confirm her.
The idea that Roe v. Wade could fall set off serious political reverberations in Washington and beyond, but it is not shifting the dynamic within the Senate Democratic Caucus on changing the chamber’s rules.
Manchin on Tuesday repeatedly declined to weigh in directly on the leaked draft but said “the filibuster is the only protection we have in democracy.”
“[We’ve] protected women’s rights with the filibuster,” Manchin added.
Sinema, in a statement, added that “protections in the Senate safeguarding against the erosion of women’s access to health care have been used half-a-dozen times in the past ten years, and are more important now than ever.”
The filibuster isn’t the only sticking point within the caucus.
A House-passed bill to enshrine Roe failed earlier this year in a 46-48 vote, with Manchin joining with Republicans to oppose the bill. Three other Democratic senators missed the vote.
Schumer is vowing to force another vote on legislation to codify Roe, though he acknowledged on Tuesday that he hadn’t yet spoken with Manchin.
The abortion politics are tricky for Republicans, who largely sidestepped discussing the possibility that Roe could be struck down and instead focused on the leak.
Sen. John Thune (S.D.), the No. 2 Senate Republican, was cagey when pressed on whether 10 Republicans would ever vote to codify Roe, characterizing it as speculation. But he acknowledged that if Schumer forces a second vote it will play out like the first — with all Republicans voting “no.”
“I don’t think there’s any rush to talk about legislation. The Dems want to do that,” Thune said.
The inability to move abortion legislation has sparked tensions with some progressive lawmakers. Rep. Alexandria Ocasio-Cortez (D-N.Y.) called out Sinema’s stance on the filibuster and urged for her to face a primary challenge in 2024, when she is up for reelection.
“We could protect Roe tomorrow, but Sinema refuses to act on the filibuster. Until that changes she can take a seat talking about ‘women’s access to health care,’” Ocasio-Cortez said in a tweet.
“Hold everyone contributing to this disaster accountable, GOP & Dem obstructionists included. She should be primaried,” she added.
Sen. Bernie Sanders (I-Vt.) is pushing for a vote on enshrining Roe and getting rid of the filibuster, even if it doesn’t have 50 votes.
“I think right now as soon as possible we have to bring legislation up which codifies Roe v. Wade. I think we ought to move to end the filibuster at least on that issue and see if we can get 50 votes,” Sanders said.
Sanders, who has previously opened the door to backing primary challengers against Sinema and Manchin, reiterated on Tuesday that he believed Sinema should see a primary opponent.
But some Democrats are also warning against getting pulled into another intraparty fight over nixing the filibuster, particularly since the idea seems no closer to getting the 50 votes needed to become reality compared to before the leaked draft.
“‘Do something now’ is absolutely right, but that’s the MIDTERMS, which are going on NOW. Focusing on what’s wrong with Democrats in the Senate or elsewhere is (another) circular firing squad. We can only end the filibuster, pass real protections for choice IF WE WIN more power,” said Rep. Sean Patrick Maloney (D-N.Y.), the chairman of the Democratic Congressional Campaign Committee.
Warren added that if Democrats don’t currently have the votes to nix the filibuster, they need to make the case to voters that they need to grow their majority in order to enact rules reforms.
“If we don’t have enough votes now to get rid of the filibuster, then that’s what we need to ask the voters for in November,” Warren said, adding that the filibuster is “anti-democratic and it is keeping us from doing the will of the people and we need to get rid of it.”
Democrats could codify Roe without getting rid of the filibuster if they could get 10 GOP senators, as well as Manchin, to support it.
Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) have introduced a narrower bill to codify Roe, but so far they have two formal backers: themselves. Several Democrats, including Schumer, indicated on Tuesday that they hadn’t yet seen the proposal.
“I think that … Joe Manchin, who voted ‘no’ last time, might be more amenable to our version. And Bob Casey made very clear that he was only voting to proceed,” Collins told reporters, asked if other Republicans would support her bill.