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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

By Mike DeBonis
and 
Rachel Roubein
 
May 11, 2022|Updated May 11, 2022 at 7:51 p.m. EDT
Senate votes down Women’s Health Protection Act
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.


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)
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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.

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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.”

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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 advance
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.

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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.

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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.

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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.”

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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.”

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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.

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“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.

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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.

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“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.

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“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.


MORE ON THE STATUS OF ROE V. WADE

Roe v. Wade threatened: A majority of the Supreme Court is prepared to overturn
the right to abortion established nearly 50 years ago in Roe v. Wade, according
to a leaked draft of the opinion published by Politico and confirmed by Chief
Justice Roberts. Read our annotated analysis of the opinion.

What would happen? If the Supreme Court overturns the 1973 precedent, the
legality of abortion will be left to individual states. That likely would mean
52 percent of women of childbearing age would face new abortion limits.

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.

Supreme Court justices: Here’s what we know about where each justice stands on
the issue of abortion.

Who was Jane Roe, and how did she transform abortion rights? “Jane Roe” was a
pseudonym for Norma McCorvey, who as a 22-year-old unmarried woman in Dallas in
1970 wanted to terminate her pregnancy. Her case against a Dallas County
district attorney went to the Supreme Court. They ruled in her favor, 7-2, in
1973.

The Post wants to hear how this decision might impact you. What does the draft
opinion mean for Roe? Ask our reporters.

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The U.S. fight over abortion
HAND CURATED
 * For women, despair and joy as overturning of Roe appears imminent
   
   News•
   
   May 4, 2022
 * Antiabortion groups electrified but cautious after draft court ruling
   
   News•
   
   May 4, 2022
 * Overturning Roe v. Wade could upend the midterms
   
   Analysis•
   
   May 3, 2022

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