WASHINGTON – The Senate failed Wednesday to pass a bill that would have made Roe v. Wade the law of the land, sinking the first legislative attempt to enshrine a national right to abortion since the leak of a draft Supreme Court opinion that would overturn the landmark decision.
Democrats were unable to overcome a filibuster on the Women’s Health Protection Act of 2022. The effort failed 49-51. Sen. Joe Manchin, D-W.Va., joined every Republican in opposition, meaning the measure would have failed even if it had mustered the 60 votes needed to send the measure to the floor for an up-or-down vote.
“It is not Roe v. Wade codification, it is an expansion,” Manchin said before the vote. “We should not be dividing this country further than we’re already divided.”
The bill was not expected to pass, but Majority Leader Chuck Schumer, D-N.Y., framed the vote as a way to put every member of the Senate on the record about their stance on abortion in the wake of the leaked decision.
Polls show most Americans support abortion rights, and Democrats hope the fight over access drives them to victory in the midterm elections. The vote allows Democrats in the Senate to draw a distinct comparison between themselves and Senate Republicans, most of whom are anti-abortion.
“Protecting the right to choose at this critical moment is one of the most consequential votes we could possibly take,” Schumer said before the vote. “The public will not forget which side of the vote senators fall on today. They will not forget who voted to protect their freedoms. And they will not forget those responsible for the greatest backslide in individual liberties in half a century.”
“Republicans in Congress – not one of whom voted for this bill – have chosen to stand in the way of Americans’ rights to make the most personal decisions about their own bodies, families and lives,” President Joe Biden said in a statement following the vote.
Republicans decried the bill as a radical step that would go much further than what Roe guarantees. Sen. Ben Sasse, R-Neb., said it would have been morally reprehensible to require providers, such as Catholic hospitals, to perform abortions as the bill would have done.
“Any honest conversation about abortion must grapple with the fact that every abortion begins with two lives and destroys one of them,” Sasse said on the Senate floor before the vote. “It’s deeply wrong to ask Americans to participate in an act that takes an innocent life.”
The bill, authored by Sen. Richard Blumenthal, D-Conn., would have made abortion legal nationally, superseding legislation passed by states to severely restrict or ban the procedure. It would have prevented states from passing laws enacting pre-viability abortion bans and stop medically unnecessary restrictions to the procedure, such as waiting periods or counseling requirements.
Though Democrats lacked the 60 votes necessary to overcome the filibuster, they hoped that the leaked decision would increase the urgency of the vote and put pressure on senators to back the measure. Some hoped that their Republican colleagues who support abortion rights, namely Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, could be convinced to back the bill.
Collins and Murkowski voted against it. In a statement before the vote, Collins said, “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 and Murkowski introduced their own abortion legislation this year, the Reproductive Choice Act, which would not go as far as the Women’s Health Protection Act in guarding the right to abortion.
Collins and Murkowski’s bill would prohibit states from imposing “undue burden on the ability of a woman to choose whether or not to terminate a pregnancy before fetal viability.” According to backers of the Women’s Health Protection Act, the alternate bill doesn’t go far enough in explicitly prohibiting pre-viability bans or medically unnecessary restrictions.
Collins said last week that she believed Manchin would support their legislation, but it, too, is unlikely to pass in the evenly split Senate. Tuesday, she said she is working with Sen. Tim Kaine, D-Va., to modify her legislation for a bipartisan compromise.
“She and I both said similar, which is we would both like to codify as a federal protection the basic holdings of Roe, Casey, Griswold and other cases,” Kaine told USA TODAY on Tuesday. “We’re having some good discussions.”
Kaine said they would assess their efforts after the Women’s Health Protection Act vote. Collins said Wednesday, “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.”
Senate Minority Leader Mitch McConnell, R-Ky., told USA TODAY last week that should the leaked Supreme Court opinion hold, “legislative bodies – not only at the state level but at the federal level – certainly could legislate in that area.”
The Republican leader said a national abortion bill is “possible,” but he would maintain the filibuster if Republicans win back control of the Senate. McConnell said Tuesday that within the Republican caucus, the majority sentiment is that abortion should be left to the states.
Democrats’ next steps remain unclear. Schumer said Tuesday, “We’re going to keep fighting, and we will be pursuing the best path forward.”