Senate Democrats fail in effort to codify Supreme Court Roe decision into law

Senate Democrats’ effort to codify Roe v. Wade into federal law failed Wednesday.

An unprecedented leak of a draft opinion from the Supreme Court last week suggested that the court may soon strike down its own 1973 decision in Roe that legalized abortion nationwide. In response, Senate Democrats brought legislation to the floor they said would codify the standard set by the decision into federal law.

But the effort was doomed from the start, as they did not have the votes to meet the 60-vote filibuster threshold to clear a procedural vote to advance the bill. Critics of the bill said the legislation would not have simply codified Roe but would go beyond what Roe currently permits by overriding nearly every state-level abortion restriction, including those that have been held up by courts with Roe intact.

SENATE DEMOCRATS’ BILL TO CODIFY ROE GOES BEYOND MANY BLUE STATES ON ABORTION

The House passed the Women’s Health Protection Act last year, but it failed to advance in the Senate earlier this year. The effort was revived after the leak from the court. A group of House Democrats marched through the Capitol to the Senate earlier Wednesday, chanting, “My body, my decision.”

Democrats argued outrage about a Roe reversal would send voters to the polls in November’s elections and could change their prospects in an election cycle analysts predict will favor Republicans due to President Joe Biden’s low approval ratings and rising inflation.

Sen. Joe Manchin (D-WV) was the lone Democrat to oppose the bill. Sen. Bob Casey (D-PA), the only other Democrat who did not sign on as a sponsor of the bill earlier this year, came out in favor of it this week, arguing that a potential reversal changes the circumstances. Casey’s father, Gov. Robert Casey, was a notable anti-abortion Democrat and the namesake behind Planned Parenthood v. Casey, the 1992 Supreme Court decision that affirmed Roe’s “essential holding.”

Senate Majority Leader Chuck Schumer said in remarks on the floor that “unelected judges” in a “courtroom across the street” should not send “women’s rights back to the Stone Age.”

Schumer argued the legislation is “straightforward” and would “codify what Americans already believe.”

Appearing to address criticism the effort was merely a show vote, Schumer said, “This is not a theoretical exercise.” He added, “The American people are watching.”

All 50 Republicans opposed the bill, including the pro-abortion rights Sens. Susan Collins and Lisa Murkowski. Democrats did not consider an alternate, more narrow bill offered by the Alaska and Maine GOP senators that they said would have offered more protections for those with religious or other moral objections to abortion.

Collins issued a statement Wednesday blasting the effort as a partisan bill designed to fail.

“I support codifying the abortion rights established by Roe v. Wade and affirmed by Planned Parenthood v. Casey. That’s not what the Women’s Health Protection Act would do,” Collins said.

“Contrary to claims from Senate Democratic leaders that their bill would not infringe upon the religious rights of individuals and religious institutions, the WHPA explicitly invalidates the Religious Freedom Restoration Act in connection with abortion and supersedes other longstanding, bipartisan conscience laws, including provisions in the Affordable Care Act, that protect health care providers who choose not to offer abortion services for moral or religious reasons,” Collins added. “After today’s vote fails, I plan to continue working with my colleagues on legislation to maintain — not expand or restrict — the current legal framework for abortion rights in this country.”

In remarks on the Senate floor, Sen. Ben Sasse (R-NE) said the debate over abortion is unique due to its “moral weight.”

Sasse pointed to state-level restrictions the bill would undo as evidence for his argument that the legislation is extreme.

“There is no moderation in this bill,” he said. “Just brutal indifference hiding behind euphemisms. Fortunately, it won’t pass.”

Sasse argued the Senate should instead consider ways to support women facing unplanned or crisis pregnancies.

“We can and we must build support across the country for an ethic that protects life,” he said. “I want to lock arms with pro-life Democrats and work to build a culture of life. If we can pair the pro-life laws with increased spending on prenatal care and safety nets for struggling moms, count me in for that kind of big new coalition. Let’s do it.”

“The pro-life cause must start with active compassion for moms and babies, and especially women whose first thought upon learning that they were pregnant was, ‘I can’t do this,’” Sasse added.

Senate Minority Whip John Thune (R-SD) said in remarks on the Senate floor that the bill is “extreme” and criticized Democrats for holding another vote “mere weeks after it was defeated in the Senate.”

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“But I guess when the abortion lobby calls, our Democrat colleagues come running,” Thune said.