Why Democrats Call to ‘Code Roe’ Is Unlikely to Save Abortion Rights

  • Democrats quickly rallied around a renewed effort to codify Roe v. Wade in law.
  • Their response comes after a bombastic report by Politico that claims the Supreme Court has votes to overturn abortion rights.
  • But Democrats are unlikely to succeed in their efforts due to Senate obstruction.

Democratic lawmakers quickly unified themselves Monday night in a renewed effort to codify the Supreme Court’s landmark decision Roe v. Wade into law after a bombastic report that the high court has the initial votes to explicitly strike down abortion rights.

Politico said it won a majority opinion draft from the Supreme Court in a pending case over Mississippi law that effectively prohibits all abortions after 15 weeks of pregnancy. The bombastic report says Judge Samuel Alito’s opinion is poised to explicitly overturn the landmark Roe v. Wade and the subsequent decision in Planned Parenthood v. Casey, who upheld the federal right to abortion for decades.

Politico’s report warns that it is just a draft opinion and that judges may still change their minds.

“If #SCOTUS is going to legislate from the bench and go back 50 years on #RoeVWade, then the Senate needs to pass my Women’s Health Protection Act…” Senator Tammy Baldwin, Democrat of Wisconsin, wrote on twitter.

If Democrats try to act in Congress, they are likely to run into the same obstacle that has plagued much of their agenda: Senate obstruction. The procedural hurdle effectively requires that nearly all legislation, including a bill to formally codify federal abortion rights, receive 60 votes.

With the Senate split 50/50 at a time when Republican lawmakers are almost unanimously opposed to abortion, this is extremely unlikely to happen.

However, if their efforts worked, Congress could effectively preempt states that have or would ban abortion. If Congress does not pass such a ban, the current draft Supreme Court opinion would allow individual states to decide their own abortion policy.

At least 21 states are poised to ban or severely limit abortions if the Supreme Court strikes down Roe v Wade through the use of so-called “trigger laws,” NPR previously reported.

On the same day the released draft opinion was leaked, the Washington Post detailed a growing effort by some conservatives to push for a nationwide ban on abortions after six weeks of pregnancy.

Right now, Democrats are focused on the Women’s Health Protection Act as the best vehicle to enshrine the federal right to abortion into law.

The House passed the law last year with a largely partisan vote of 218 to 211, a sign of how few anti-abortion Democrats remain in Congress. Baldwin introduced similar legislation in the Senate but failed to pass an initial procedural hurdle in February.

At that time, the Senate failed to advance the legislation by a vote of 46-48. Republican Senator Susan Collins and Lisa Murkowski, who are usually the only pro-choice Republicans left in the chamber, voted against the bill. They previously said the legislation goes too far and introduced their own competing bill.

Of greater concern to Democrats, Senator Joe Manchin also opposed the bill’s advance.

Baldwin, Senator Bernie Sanders and some other Democrats called for the abolition of obstruction to assert abortion rights, but as Manchin’s opposition illustrates, the party did not have even 50 votes to pass the underlying legislation. Manchin and Senator Kyrsten Sinema, who supported their party’s bill, have repeatedly said they will not support efforts to weaken the obstruction.

Faced with a likely failure, Democrats are forced to resort to a public outcry. They may also be betting on the prospect that outrage over such a decision could bring down the midterm elections, if Politico’s report is true.

“People should take to the streets across the country,” wrote Representative Pramila Jayapal, who chairs the Congressional Progressive Caucus, in a series of messages on Twitter. “We will not accept this sitting down and we will take this to the streets and to the voting booths.”

House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer criticized the Supreme Court over the reported draft opinion, a likely sign of the party’s future response should the bill become the court’s final word.

“If the report is accurate, the Supreme Court is about to inflict the biggest restriction of rights in the last fifty years – not just on women, but on all Americans,” the top Congressional Democrats wrote in a joint statement. “The votes of the Republican-nominated judges to overturn Roe v. Wade would be considered an abomination, one of the worst and most damaging decisions in modern history.”

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