Democrats unlikely to pass abortion rights law in Senate

On May 3, 2022

U.S. Senator Majority Leader Chuck Schumer (D-NY) addresses media after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, D.C., U.S., May 3, 2022.

Michael Mccoy | Reuters

WASHINGTON — A leaked draft Supreme Court opinion that would overturn Roe v. Wade has added new urgency to the ongoing Democratic effort to pass a federal law in Congress to protect abortion rights.

“Now that the Court is poised to strike down Roe, it is my intention for the Senate to hold a vote on legislation to codify the right to an abortion in law,” said Senate Majority Leader Chuck Schumer, D-N.Y., on Tuesday, 12 hours after Politico published the bombshell draft opinion.

Other Democrats were more insistent. “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” said Vermont independent Sen. Bernie Sanders. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”

As Sanders notes, in order to pass such a law, Democrats will first need to get 50 senators to agree to change the Senate’s filibuster rule. Only then can they pass an abortion rights protection law with a simple majority.

But even changing the filibuster looks near impossible.

U.S. Senator Elizabeth Warren (D-MA) reacts during a protest outside the U.S. Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, May 3, 2022.

Evelyn Hockstein | Reuters

Already this year, two Democratic senators said they opposed changing the filibuster to pass voting rights legislation: West Virginia’s Joe Manchin and Arizona’s Krysten Sinema.

In the case of voting rights, President Joe Biden had signaled he would go along with changing the rules if a bill could pass the Senate. But in other instances, Biden has also said he opposes changing the Senate filibuster rules.

The president often argues that if Democrats change the rules to pass a bill they consider sacrosanct, like voting rights or abortion rights, then Republicans will have free rein to do the same the next time they control the Senate.

This could open a Pandora’s box of potential consequences that Biden has warned Democrats about both in public and in private.

It’s not difficult to imagine a Republican-controlled Senate passing some version of a nationwide federal abortion restriction using only a 50-vote threshold — or likewise, passing a nationwide voter ID law that could severely limit access to the polls.

Nonetheless, many progressives reject Biden’s justification for hanging on to the filibuster rule as an overly cautious and procedural response to what they say are monumental threats to basic constitutional rights.

Still, both legal scholars…