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Senate blocks bill to codify right to abortion

Women’s Health Protection Act failed as expected, but Democrats say the move is about mobilizing voters, not passing legislation

The Senate voted 49 to 51 to block the Women’s Health Protection Act on May 11. The bill would have codified the right to have an abortion into federal law. (Video: The Washington Post)

The Senate on Wednesday did not advance legislation that would write a constitutional right to abortion into federal law — a symbolic gesture that Democrats cast as a first step in a larger strategy to mobilize Americans around reproductive rights as the Supreme Court considers overturning Roe v. Wade and related decisions.

Wednesday’s vote was 51 to 49 and well short of the 60 votes necessary under Senate rules. It was largely a reprise of a failed February vote staged by Senate Democratic leaders, but the issue has new resonance after last week’s leak of a draft opinion from Justice Samuel A. Alito Jr. suggesting that the high court is poised to overturn Roe and curtail guaranteed nationwide access to abortions.

All 50 Republicans and Sen. Joe Manchin III (D-W.Va.) opposed moving ahead on the bill. President Biden said in a statement afterward that the vote “runs counter to the will of the majority of American people” and that congressional Republicans, who cast the Democratic bill as a radical overreach, “have chosen to stand in the way of Americans’ rights to make the most personal decisions about their own bodies, families and lives.”

Senate Majority Leader Charles E. Schumer (N.Y.) and other Democrats have acknowledged that the move was about mobilizing voters, not passing legislation in a Congress where Democrats hold majorities but do not have the votes to defeat Republican filibusters or change the Senate rules to eliminate them.

“Elect more pro-choice Democrats if you want to protect a woman’s freedom and right to choose,” Schumer said after the vote. “Elect more MAGA Republicans if you want to see a nationwide ban on abortion, if you want to see doctors and women arrested, if you want to see no exceptions for rape or incest.”

Democrats expressed their disappointment after the Senate failed to pass legislation that would codify Roe v. Wade into federal law on May 11. (Video: Hadley Green/The Washington Post)

What would happen if Roe v. Wade were overturned

Alexis McGill Johnson, president of Planned Parenthood Action Fund, said in a statement that the fight for abortion rights was at “a tipping point” and promised a nationwide campaign of voter engagement, starting with rallies Saturday in dozens of U.S. cities. “We will not back down, and we will not forget those who put politics over our health and rights,” she said.

But signs abounded this week that, despite displays of anger and pledges to take action, Democrats have yet to coalesce around a strategy to spark and sustain a public backlash capable of pushing abortion rights back to center stage in American political life and motivating voters to turn out for the November midterms — and beyond — to elect candidates willing to defend them.

The lack of a long-range plan of action has become especially conspicuous after the leak of the draft opinion, which represented the culmination of a nearly 50-year effort by conservatives to reverse Roe and pave the way for state efforts to severely restrict or prohibit abortion. The frustration was captured last week by California Gov. Gavin Newsom (D), who responded to the opinion by asking, “Where the hell’s my party? … Where’s the counteroffensive?”

In another internecine squabble, many Democrats responded to the draft opinion by calling on the Senate to again debate eliminating the filibuster — the 60-vote supermajority rule that allows a united minority to block most legislation — even though a January test vote on voting rights legislation showed that there is not enough support for it among Democratic senators.

A group of lawmakers has begun meeting to plan next steps on related measures, thinking about what the Democrats can advance via legislation or administration action. The effort is being led by Sen. Patty Murray (D-Wash.) and includes other female lawmakers in Democratic leadership: Sens. Debbie Stabenow (Mich.), Elizabeth Warren (Mass.), Catherine Cortez Masto (Nev.), Amy Klobuchar (Minn.) and Tammy Baldwin (Wis.), according to a Senate Democratic aide, who spoke on the condition of anonymity to describe internal discussions.

But interviews with lawmakers this week revealed clashing views over how best to highlight the looming threat to abortion over the coming months, including whether to hold votes on narrower bills that would protect only a portion of the rights secured by Roe and related cases but could serve to more sharply highlight the depth of the Republican opposition.

Liberals aim to channel anger over Roe toward GOP

One such decision was to call up a bill Wednesday, the Women’s Health Protection Act, that is substantively identical to the legislation that failed in February rather than consider alternatives that could have won support from the Senate’s two Republican supporters of abortion rights, Susan Collins (Maine) and Lisa Murkowski (Alaska), or Manchin, who has campaigned as an abortion rights opponent but signaled Wednesday that he would be open to preserving the status quo.

Collins and Murkowski objected to a lack of religious freedom protections in the Democratic bill — a notion Democratic leaders contest — and no serious effort was made to address their concerns, senators and aides involved in the issue said.

However, party leaders agreed to drop some fact-finding language from the bill, softening some of its partisan edges. On Tuesday, one Democrat who previously had withheld public support for the bill, Sen. Robert P. Casey Jr. (Pa.), announced his backing. Manchin, however, did not, telling reporters Wednesday that the current bill “expands” abortion rather than preserving it.

The approach has perplexed Republicans, who have settled on a strategy of casting Democrats as the extremists and seeking to refocus attention on other issues on which the GOP thinks it is on more solid footing with the public, such as inflation and crime. In his daily floor speech Wednesday, Senate Minority Leader Mitch McConnell (R-Ky.) gave lengthy remarks panning Democratic policies “that fueled this runaway inflation” before turning his attention to the abortion rights bill, which he decried as “extreme and radical.”

GOP’s midterm bet: Voters will care more about inflation than abortion

“They’re not even attempting to nuance this at all,” Sen. John Thune (R-S.D.) said. “It’s all, you know, abortion up to the point of birth … which doesn’t even attempt to try and win over people who might be persuadable if they were a little less aggressive in their approach. They’ve decided they’re going full monty on this.”

The Democratic bill outlaws any limitation on abortion before fetal viability, while allowing abortions after viability “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Many Democratic lawmakers said Wednesday’s vote should be the first of many, arguing that House and Senate votes on even partial protections that have no chance of becoming law are a reliable way to focus public attention on abortion issues over the next six months before voters cast their midterm ballots. Before the vote, dozens of House Democratic women marched across the Capitol chanting “My body, my decision.”

“This will be in the papers all over the country. It’ll be on the nightly news. It’ll be on talk radio,” said Rep. Cheri Bustos (D-Ill.), a former chair of the Democratic Congressional Campaign Committee. “I think of the old saying: It’s important to be caught trying, and we’re going to try really hard to do everything we can to highlight this.”

Some others, however, said they were not inclined to water down their efforts — at least not at first.

“Let’s start with the bill that fully protects women who need access to abortion,” Warren said Tuesday. “Starting by chopping down on that is the wrong direction. Women deserve full citizenship, full liberty, and our bill tomorrow will provide exactly that.”

Warren said she favored highlighting access to medication abortion, which comes as a spate of Republican-led states have pushed to place restrictions on prescribing and shipping the pills. She said a Senate vote was one option, which would be just as likely to fail as Wednesday’s measure, but she also suggested that executive actions from President Biden could be more appealing.

“Votes are an important part of it, but it will not be the only actions that we should be focused on,” she said, noting the Food and Drug Administration’s authority over medication abortions: “Right now, the rules are too restrictive. Women need better access, so there’ll be lots of things we’ll be talking about over the next six months.”

Sen. Elizabeth Warren (D-Mass.) on May 3 accused Republicans of “cultivating” Supreme Court Justices after a draft opinion signaling the end of Roe v. Wade was leaked. (Video: SKY via AP)

Holding votes on even narrower guarantees of abortion rights is also under consideration, several Democrats said — such as measures guaranteeing access to abortion in cases of rape or incest or in cases where the health of the mother is at risk. But many said they were wary of moving in that direction before the Supreme Court issues its final ruling, and some acknowledged privately that holding “show votes” on narrower bills could actually benefit Republicans by allowing some senators to distance themselves from the GOP’s most conservative elements.

Sen. Richard Blumenthal (D-Conn.), the lead author of the Democratic abortion rights bill, said he would be “very surprised” if Alito’s opinion — which holds that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision” — is ultimately adopted by the court.

“It is so strident, so brash and unjudicial that I would be surprised if any court, let alone the United States Supreme Court, issues this decision without softening the edges and modifying the extremist language,” he said. “But the result will be the same. The result is radical and extreme, and we need to keep pushing that result.”

What the Supreme Court justices have said about abortion and Roe v. Wade

One option that Blumenthal and some other Democrats are floating is to hold votes protecting other rights besides abortion that have been secured by Supreme Court decisions rooted in the same legal theory as Roe — rights that are not enumerated in the Constitution but have been inferred from the due process clause of the 14th Amendment. Those include, among other things, the right to contraception and same-sex marriage.

“I can’t tell you right now all the different ways that we should be highlighting what a danger this poses for other rights that are based on the right to privacy,” Sen. Mazie Hirono (D-Hawaii) said. “There’s an entire range of issues, constitutional protections that will, I think, be in jeopardy.”

House Majority Leader Steny H. Hoyer (D-Md.) told reporters Wednesday “there may well be additional legislation we need to pursue,” citing in particular the potential threat to contraceptive rights. But he said any such decision would not be made until the high court rules.

The legislative strategy on Capitol Hill is being hashed out in tandem with a broader strategy on how to harness grass-roots distress at the looming threat to Roe. Planned Parenthood and its action arm reported a tenfold increase in people signing up to volunteer for mobilization efforts less than 24 hours after Politico first published Alito’s draft opinion. NARAL Pro-Choice America, an abortion rights group, netted its largest amount in a single day, garnering a 1,403 percent increase in donations compared with the day before the leak.

Scores of lawmakers and some abortion rights groups, including NARAL, have pushed for eliminating the filibuster to codify Roe. NARAL President Mini Timmaraju said in a statement that her group “supports passing the Women’s Health Protection Act by any means necessary, including ending the filibuster,” while 114 House Democrats signed a letter Monday pushing Schumer to do the same.

But the mathematics of the 50-50 Senate — as well as a rising recognition among Democrats that the filibuster is preventing a future Republican majority from passing nationwide abortion restrictions just as much as it is preventing Democrats from passing nationwide abortion protections — has dampened enthusiasm for any such fight.

Sen. Richard J. Durbin (Ill.), the top Democratic vote counter, said there has been “no serious discussion” about whether to eliminate the filibuster after Wednesday’s developments. And Sen. Angus King (I-Maine), who publicly advocated this year for ditching the filibuster to pass voting rights legislation, said Tuesday that he was not convinced it should be jettisoned under the current circumstances.

“Today’s annoying obstruction is tomorrow’s priceless shield, and we’ve got to think about it that way,” King said, raising the prospect of a national abortion ban. “We’ve got to think more than a month or two weeks ahead.”

Leigh Ann Caldwell and Marianna Sotomayor contributed to this report.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.

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