Democrats search for path forward if Supreme Court strikes down Roe v. Wade

Washington — A bombshell draft opinion in the biggest abortion case to land before the Supreme Court in decades that was published by Politico late Monday sparked protests and outrage from abortion rights supporters, and swiftly reignited calls on Capitol Hill for Democrats to take action to protect abortion access.

Written by Justice Samuel Alito and reportedly circulated among the justices in February, the draft opinion indicated that a majority of justices appears ready to overturn Roe v. Wade, the landmark 1973 decision that established the right to an abortion. Such a move by the Supreme Court would upend 50 years of abortion rights and lead to a patchwork of state laws where access depends on where a person lives.

The Supreme Court confirmed the authenticity of the document on Tuesday, but said it “does not represent a decision by the Court or the final position of any member on the issues in the case.”

While the opinion is a draft and it’s possible for the justices to change their votes before a decision is handed down — before the end of the court’s term in late June or early July in this case — the document has led to calls from Democrats to mobilize in response, both at the ballot box and in the Capitol.

“Make no mistake, the blame for this decision falls squarely on Republican senators and the Senate Republicans as a whole who spent years pushing extremist judges, spent years confirming three far-right justices to the Supreme Court but who claim somehow this day would never come,” Senate Majority Leader Chuck Schumer said in remarks on the Senate floor Tuesday. “But this day has come and we will fight it all the way.”

In a statement Tuesday morning before the court confirmed its authenticity, President Biden noted that he doesn’t know “whether this draft is genuine, or whether it reflects the final decision of the Court,” but said his administration “will be ready when any ruling is issued” and urged voters to elect lawmakers who would codify abortion rights into law.

“[I]f the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November,” the president said. “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

TV camera crews stationed in front of the Supreme Court on May 3, 2022, in Washington, D.C. Getty Images

Last year, the House passed legislation bolstering abortion access nationwide, but the evenly divided Senate failed to advance the measure in February with a 46 to 48 vote that fell far short of the 60 votes needed for legislation to move forward. 

In the wake of Politico’s report, a slew of Democrats in both chambers called for the Senate to pass the measure, called the Women’s Health Protection Act. But it faces headwinds given the 60-vote threshold to overcome a filibuster, as 10 Republicans would have to join with Democrats to advance the abortion rights bill, and none voted to do so earlier this year. Sen. Joe Manchin, a moderate Democrat from West Virginia, also voted with GOP senators against advancing the proposal.

Still, Schumer said he plans for the Senate to vote again on legislation codifying the right to an abortion into law.

“A vote on this legislation is not an abstract exercise. This is as urgent and real as it gets,” he said. “We will vote to protect a women’s right to choose, and every American is going to see on which side every senator stands.”

Two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, are supportive of abortion rights, but have said the Women’s Health Protection Act is too broad. Instead, the pair introduced their own legislation in February that would codify the abortion rights established by Roe.

To get the abortion rights bill to Mr. Biden’s desk, Democratic senators have again said the upper chamber should change its rules and do away with the legislative filibuster. 

“If #SCOTUS is going to legislate from the bench and turn back the clock 50 years on #RoeVWade, then the Senate needs to pass my Women’s Health Protection Act, and if we need to eliminate the filibuster to get it done, we should do that too,” Sen. Tammy Baldwin, a Wisconsin Democrat, tweeted.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders, an independent from Vermont who caucus with Democrats, said on Twitter. “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.”

House Democrats, too, advocated for eliminating the filibuster to protect abortion rights. But even that step is up against steep odds, as both Manchin and Sen. Kyrsten Sinema, an Arizona Democrat, oppose ending the filibuster. 

Outside the bounds of the Capitol, Democrats said the draft opinion as it is currently written underscores the importance of elections.

“To the American people I say this: the elections this November will have consequences, because the rights of 100 million women are now on the ballot,” Schumer said. “To help fight his court’s awful decision, I urge every American to make their voices heard this week and this year. I urge Americans to call their members, to write their members, to email their members, to text their members and most of all, to cast their ballots.”

Sen. Patty Murray, a Democrat from Washington, said the release should galvanize voters ahead of the November midterms, when Democrats will seek to keep hold of their majorities in the House and Senate.

“After ringing these alarms, for years now: it’s time to break the glass. It’s time for every single person — in every single state — to realize this impacts you, your choices, your rights,” she said in a statement. “It’s not happening to someone else, in some other state — it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment. We need to fight back with everything we’ve got right now.”

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