Yet the vote’s fate is the latest example of the constraints Democrats face in a 50-50 Senate. While the possible reversal of Roe has some senators calling for a workaround or end to the legislative filibuster to pass abortion rights legislation, there’s zero chance of that happening this Congress given opposition from Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.). Further, even if they could end or amend the filibuster, Democrats don’t appear to even have a simple majority that would vote to enact federal protections for abortion.
February’s vote on a nearly identical bill largely previewed Wednesday’s expected vote tally. Both Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), who support abortion rights, plan to again oppose the Democratic bill. They see that legislation as too expansive and are instead pushing a narrower alternative that would codify the Roe and Casey decisions the Supreme Court is expected to overturn.
And Manchin, who doesn’t support abortion, will oppose the Democratic legislation Wednesday.
Meanwhile, Sen. Bob Casey (D-Pa.), who has previously backed abortion restrictions, announced this week his support for the underlying bill. He had voted to move forward in February.
Advocates on both sides of the abortion fight have considered it inevitable that the Supreme Court would overturn or at least restrict Roe ever since the court took up Mississippi’s challenge to it last year — an assumption strengthened by the court’s oral arguments on the case in December. But Schumer argued Wednesday that the release of the court’s draft opinion amps up the pressure on lawmakers to act, as the issue is no longer theoretical or abstract.
Many Democrats, however, concede their options to protect abortion rights in Congress are limited. They mainly view Wednesday’s vote as fodder for the midterm elections.
Senate Republicans, meanwhile, unanimously oppose the Democratic bill, with many citing that it would allow abortions later in pregnancy.
“Democrats could not have written more extreme legislation,” Senate Minority Leader Mitch McConnell said Wednesday. “It is chilling that anyone would write legislation like this in 2022 … The American people need to see what the far left has become. So I’m glad the Senate will vote today.”
The Democratic legislation, led by Sen. Richard Blumenthal (D-Conn.), would go beyond codifying Roe v. Wade. It would ban states from enacting many kinds of abortion restrictions, including those currently allowed under Roe that are deemed “medically unnecessary,” like mandatory waiting periods and regulations on clinics, known as TRAP laws. In the latest version of the bill, Democrats removed nonbinding language about transgender rights and the disparate racial impacts of abortion restrictions, amid concerns from moderate members of the caucus. The House passed similar legislation last fall.
Democrats have largely dismissed Collins and Murkowski’s legislation — which would allow those kinds of state limits on the procedure to continue — as insufficient. And, so far, they aren’t planning to bring it up for a vote.
“We are focused on solutions that actually meet the moment,” a Senate Democratic aide told reporters on a Monday night call, on condition of anonymity.
By not specifying exactly what kinds of state laws create an unconstitutionally “undue burden” on people seeking an abortion, the aide argued, under the Collins-Murkowski bill the country would “be left to the same chaos in the courts that we see now.”
Collins and Murkowski, meanwhile, view the Democratic legislation as too broad in overriding state laws. Collins also expressed concerns about its potential impact on hospitals and medical workers with religious affiliations — a point Democrats vehemently dispute.
With the Democratic bill set to fail, both Sens. Tim Kaine (D-Va.) and Senate Majority Whip Dick Durbin (D-Ill.) are speaking with Collins about a potential bipartisan path forward.
“She very earnestly wants to codify a national standard that codifies Roe and Casey,” said Kaine, who also supports the broader Democratic bill and abortion rights, though he personally opposes abortion. “We’re having some good discussions. Nothing’s going to happen in the next couple of days but we’re having good discussions.”
With the outcome all but certain, lawmakers and advocacy groups on both sides of the abortion fight headed into Wednesday vowing to make their opponents pay for their vote on the Democratic bill.
Anti-abortion activist groups like the Susan B. Anthony List have been lobbying senators on both sides of the aisle to oppose the bill, and plan to run ads against any vulnerable swing-state Democrats who cast their vote for the legislation.
“We’re focused on Democratic incumbents who are anywhere close to a battleground state,” Marjorie Dannenfelser, the president of SBA List, told reporters on a Tuesday call. “Certainly [Arizona Senator] Mark Kelly would be way up there. We spent, very recently, a million dollars attacking him in Arizona for just this reason — his abortion decision.”
Democrats, meanwhile, are equally confident the vote will help mobilize their base this November.
“Unquestionably, the Roe opinion that has been leaked already and the final opinion that’s likely to come will ignite a firestorm of electoral energy. And I think it will be a major motivating factor,” Blumenthal told reporters.