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Why Democrats probably won’t get rid of the filibuster for abortion

Majority Leader Charles E. Schumer (D-N.Y.) on May 5 said the Senate would vote on legislation to codify abortion rights but would not outline procedural steps. (Video: The Washington Post)
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Though the conservative Supreme Court appears poised to strike down Roe v. Wade, Democrats control slim majorities in both chambers of Congress, and they have a president in the White House supportive of abortion rights. They also have public opinion on their side. But one thing stops them from passing a federal law protecting abortion rights and codifying Roe into law: the filibuster.

The filibuster is a Senate rule that requires 60 votes to pass most legislation. Most controversial legislation is passed on party-line votes these days, and it’s very rare for parties to have 60 senators. Democrats only have 50 right now.

Here’s what the filibuster means for federal abortion rights — and how it could be manipulated by either side.

Will Democrats get rid of the filibuster to pass abortion protections?

Probably not.

In the Senate, Republicans can and will stop Democrats from codifying abortion rights. They already did so with a bill Democrats voted on in February.

Democrats can get rid of the filibuster, or make a carve-out for abortion-related issues, with just a majority vote. After Politico published a draft Supreme Court opinion indicating that Roe will be overturned later this spring, Sen. Bernie Sanders (I-Vt.) almost immediately called for Democrats to do that.

But there are two reasons Sanders’s proposal is unlikely:

  1. Democrats don’t have 50 votes among themselves to change the filibuster for abortion. Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) explicitly said this week that they opposed changing the filibuster for abortion. The two blocked Democrats’ effort a few months ago to eliminate the filibuster to pass voting rights legislation. “The filibuster is the only protection we have in democracy,” Manchin told reporters this week. “We’ve protected women’s rights with the filibuster.” Sinema called the filibuster and other Senate rules “more important now than ever.”
  2. Manchin doesn’t support codifying Roe v. Wade into law anyway; he is one of the few remaining Democrats in Congress who doesn’t support abortion rights. (Sinema does.) So even if Democrats could eliminate the filibuster for abortion, they probably wouldn’t have the votes to expand federal abortion protections.

Despite knowing a vote to extend federal abortion protections will fail, Senate Democrats will hold one next week. When asked Thursday by reporters if Democrats would be willing to get rid of the filibuster to pass this legislation, Senate Democratic leaders didn’t answer. “We’re having a vote next week,” Senate Majority Leader Charles E. Schumer (D-N.Y.) told reporters. “We’ll see where everyone stands.”

What about Republicans who support abortion rights?

There are two in the Senate: Susan Collins of Maine and Lisa Murkowski of Alaska. They voted for most of Donald Trump’s nominees to the Supreme Court, and they made pretty clear this week that they wouldn’t be happy if those justices now voted to overturn Roe v. Wade. Collins didn’t mince words in her statement about the two Trump-nominated justices she voted for: “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.”

So if Democrats somehow managed to get rid of the filibuster for abortion, would an aggrieved Collins and Murkowski join them to support federal abortion protections? Probably not.

As The Post’s Mike DeBonis and Seung Min Kim report, both senators voted against a Democratic bill in February to protect the right to have an abortion up to about 24 weeks, which is what Roe does. They offered a narrower bill extending some abortion protections, but Democrats feared it would still allow 15-week bans, like the Mississippi law at issue in the Supreme Court’s current case. Like most attempts at compromise on such a divisive issue, Collins’s and Murkowski’s bill has no public support in the Senate from either side.

On Thursday, Collins reaffirmed she doesn’t support a national bill essentially keeping Roe in place. She argues it would supersede state laws in ways she’s not comfortable with.

Could Republicans curb the filibuster to ban abortion?

Let’s talk about the flip side: Republicans regaining power and carving out an exception to the filibuster to pass a nationwide abortion ban. The Post’s Caroline Kitchener reports that some congressional Republicans are working with antiabortion activists on this, in anticipation of Republicans possibly taking back control of both chambers of Congress in November’s midterm election.

It is possible that Republicans would vote to get rid of the filibuster to ban abortion, but it doesn’t look likely right now. Senate Minority Leader Mitch McConnell (R-Ky.) reiterated his support for the filibuster this week. He left himself very little wiggle room to change his mind. “We don’t want to break the Senate,” he said of getting rid of the filibuster, even just for one issue. “And that’s breaking the Senate.”

Senate Minority Leader Mitch McConnell (R-Ky.) said on May 3 that Republicans would support the legislative filibuster if abortion rights were to be overturned. (Video: The Washington Post)

Both Democrats and Republicans slashed the filibuster for presidential appointments — under McConnell, Republicans voted to end the filibuster for Supreme Court nominees so Trump could put his picks on the court over Democratic objections.

But McConnell and Republicans have vociferously criticized Democrats’ attempts last year to alter the legislative filibuster. If Republicans changed the rule to pass an abortion ban, Democrats could throw their language right back in Republicans’ faces.

And it would take a lot of effort to pass a nationwide ban when the Supreme Court already undid the only nationwide protection for abortion, opening the door for states to set their own policies.

This has been updated with the latest news.