Senate Democrats slowly consider their options after Roe

Originally published in Vox on July 7, 2022.
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When the draft Supreme Court opinion on Dobbs v. Jackson Women’s Health leaked in early May, Democratic lawmakers in the Senate scrambled to figure out a response.

They settled on a vote on a bill that had already failed to pass in February, the Women’s Health Protection Act — a bill that would both codify access to abortion and invalidate existing state restrictions on the procedure. But in the wake of the draft opinion, the bill, which the House passed last fall, failed again in the Senate, 49-51. Supporters of the legislation brushed off the failure, stressing the point was to galvanize voters behind a vision that could be realized by electing more Democrats and overturning the filibuster.

Two months later, the Supreme Court has overturned Roe v. Wade. But Democrats in Congress are still negotiating their next move to protect abortion rights.

Democratic senators, led by Patty Murray (WA) and Elizabeth Warren (MA), have been pushing for a bolder response from the executive branch. Aside from pressuring the administration, the closest thing congressional Democrats have to a strategy is asking voters to help them maintain their House majority and elect two more senators in November. If they do, Democrats could scrap the filibuster for abortion bills, surmounting both Republican opposition and resistance from Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

Behind the scenes, a debate among Democratic leaders, strategists, and reproductive rights groups that began with the draft opinion leak is still playing out.

Should Democrats hold votes on various angles of the abortion debate that poll well with voters — for example, a vote upholding abortion access nationally in cases of rape or incest, or threat to a mother’s life? These measures likely wouldn’t get 60 votes to pass, but they might get support from a few Republicans, would force others to take potentially unpopular positions ahead of the midterm elections, and could demonstrate majority support for some forms of abortion rights.

“I think a rape, incest, health-of-the mother exception gets probably 52 to 53 votes in favor, and from a morale standpoint there’s just a huge difference seeing something with 52 votes in favor rather than 49,” said a senior Democratic aide, one of several aides who spoke on condition of anonymity.

But other prominent Democratic leaders argue that such votes would be theatrical wastes of time, and possibly even counterproductive: They could give moderate Republicans an opportunity to distance themselves from their extremist party, or undermine the case for broadly protecting abortion rights by deeming some abortions more worthy than others.

In interviews, aides and lawmakers suggested Democrats are also considering another path: introducing reproductive health bills through a process called unanimous consent. This parliamentary tactic could allow Democrats to bring up abortion issues often and blame Republicans when measures — even moderate or popular ones — fail. But only one senator is needed to block unanimous consent bills, so this wouldn’t get every lawmaker on record or offer the televised drama of a full vote.

Still, two weeks after Roe fell, there remains no organized plan. The Supreme Court decision came down on the morning of Friday, June 24. Lawmakers left for recess that weekend and do not return until July 11.

“Given that we had a leak draft of the opinion, I don’t know why there wasn’t an outline of all the things that we’d be voting on if Roe were overturned,” said a senior Democratic Senate aide. “If you could have gotten consensus around having a vote around a rape, incest, or health exception bill, or a bill on medication abortion, or on IVF, or contraception access, that all could have been ready to go the day the Supreme Court ruled.”

The Women’s Health Protection Act is Democrats’ effort to codify Roe

For the past year, Democrats have rallied around the Women’s Health Protection Act, legislation that lawmakers say would codify Roe into law, but would also override many state restrictions to make abortion more accessible.

Since the Supreme Court’s 1992 Planned Parenthood v. Casey decision, states have been allowed to enact abortion restrictions as long as the restrictions do not present an “undue burden” on someone seeking to end a pregnancy. (What constitutes an “undue burden” is vague and heavily contested.) Nearly 500 restrictions have been passed by state and local governments since 2011, and the Women’s Health Protection Act would override most of these laws by invalidating medically unnecessary state restrictions, such as requirements for ultrasounds, parental consent, mandatory waiting periods, and admitting privileges at nearby hospitals.

Mary Ziegler, a legal historian at Florida State University, told the 19th News in February that while it’s difficult to say whether the Women’s Health Protection Act is broader than Roe, it “definitely disallows more restrictions than the current interpretation of Roe/Casey.”

Reproductive health groups have been all-in on the bill, including urging the overturn of the Senate filibuster if necessary to get it passed. But in February, it failed 46-48, with almost all present Democrats voting in favor of opening debate on the bill, and no Republicans doing so. In the wake of the leaked draft overturning Roe, it hardly fared better, not reaching majority support.

The only Democrat in opposition was Manchin, who says he would support legislation to codify Roe but sees the Women’s Health Protection Act as going beyond the narrower Roe and Casey standards.

Sens. Susan Collins (ME) and Lisa Murkowski (AK), two Republicans who likewise support legislation to codify Roe, have also objected to the fact that the Women’s Health Protection Act would override states that have permitted religious exemptions for abortion providers. Following the overturn of Roe, Collins reiterated her position that abortion should be legal nationwide, though she supports allowing states to “account for regional differences with regulations like parental notification requirements.”

In February, Murkowski and Collins released their own bill, the Reproductive Choice Act, which would codify Roe and Casey, but also ensure that any existing religious conscience exceptions could stay in place. States could continue to enact abortion regulations so long as they don’t “have the purpose or effect of presenting a substantial obstacle to a woman seeking to terminate a pregnancy.”

The bill picked up no co-sponsors, and was blasted as a harmful step backward by Democrats and reproductive health groups. “Senators Collins and Murkowski are trying to muddy the waters by pushing a flimsy bill that claims to codify the right to abortion into law but actually weakens the protections we have under current law,” NARAL Pro-Choice America said in a statement.

Sens. Tim Kaine, Susan Collins, and Lisa Murkowski are working on a bipartisan bill

Democrats argue it’s a waste of time to expect any other Republicans to come on board with the Collins-Murkowski bill. The entire Republican Senate caucus except Collins and Murkowski, for example, recently voted for a measure that would strip federal funding for cancer screenings, STI testing, and birth control from health providers if they refer any patient for an abortion.

“This isn’t like the gun bill,” a Democratic aide said, referring to the bipartisan gun bill President Joe Biden signed into law last month. “There aren’t 10 votes there to find.”

Still, Murkowski and Collins have been working with Sen. Tim Kaine (D-VA) on a potential bipartisan bill, though they have not made anything public so far.

Even if their bill couldn’t reach 60 votes, Kaine has said he thinks there’s value in a compromise measure that could command bipartisan majority support in Congress, especially since courts are still grappling with the issue of abortion rights.

A spokesperson for Kaine told Vox that the senator “is examining the [Supreme Court] opinion and talking to colleagues to determine how best … to find bipartisan support to federally protect reproductive freedom.”

For now, Democrats and reproductive rights groups are skeptical. If Collins and Murkowski are not willing to change the filibuster, then their efforts at drafting a compromise bill are “nothing more than a political stunt that should not be taken seriously,” NARAL president Mini Timmaraju told Vox.

Sen. Tina Smith, a Democrat from Minnesota, said she’d need to know whether the Kaine-Collins-Murkowski proposal would protect people from the kinds of restrictions previously passed in states like Texas, where private citizens can now file lawsuits against providers and anyone suspected to “aid and abet” an illegal abortion.

“Would the bill protect people in those circumstances?” she asked. “And I don’t know the answer to that, but I think that is the question that has to be asked and understood.” Smith said she thinks the focus also needs to stay on how many votes there are.

A spokesperson for Warren declined to say whether she’d vote for a Kaine-Collins-Murkowski bill ahead of November if the filibuster were overturned, and a Murray spokesperson said simply that the senator “has spoken with” Kaine about his work with Collins.

Should Democrats hold votes on bills that won’t pass to get Republicans on record?

A thorny debate on the Democratic side of the aisle is whether to hold more votes that highlight where Republicans stand on reproductive rights, even if the bills have no shot of passage.

Republicans already voted in February and May against the Women’s Health Protection Act, but that was an expansive bill. More people are paying attention now that Roe has been overturned, and there is an election coming up. Could more votes help keep attention on the issues, and drive home more clearly where individual lawmakers stand? What about bills barring criminal penalties for women who seek or obtain abortions? Or barring penalties for friends and acquaintances who might assist them? Or codifying exceptions for rape and incest?

Other Democrats have floated the idea of voting on other rights besides abortion that are not spelled out explicitly in the Constitution, like same-sex marriage and the right to contraception.

For now, most Democratic lawmakers say they are waiting to see what their senior female colleagues want to do, and will take their lead from them. Others say they are waiting to get clearer signals from the reproductive rights advocacy groups, like Planned Parenthood, NARAL, and Emily’s List.

A group of female senators, led by Patty Murray, the health committee chair, started convening in May to explore response options after the draft opinion leaked; on June 7, more than a month later, Murray and Warren led 23 other Democratic senators in sending a letter to the Biden administration, urging the president to lead a national plan to defend reproductive rights. The letter listed seven specific ideas for the administration to consider, including increasing access to abortion pills and exploring travel vouchers for those who might need to go to another state for the procedure.

Reproductive rights groups had first approached female senators with the idea to urge Biden to declare the overturn of Roe a public health emergency, a suggestion Warren and Smith took up in a New York Times op-ed the day after the Supreme Court decision.

A Warren spokesperson declined to say whether the senator thought there was merit to taking individual votes on aspects of reproductive rights ahead of the November midterm elections, but did say Warren “supports putting everyone on the record with votes and every Republican senator voted against the Women’s Health Protection Act.”

A Murray aide said the senator plans to lead Senate Democrats “in using the floor to continue making clear the stark difference between where Democrats stand and where Republicans stand on every woman’s right to control her own body, calling for unanimous consent on women’s health bills and delivering floor speeches about the devastating impact of the Dobbs decision.” The aide pointed out that Murray also has a health committee hearing planned for July 13 to highlight the effects of the Dobbs decision.

In interviews, aides and lawmakers involved in these discussions said that rather than hold more formal votes, elected officials are leaning toward a Senate procedure known as “unanimous consent” or “UC.”

Unanimous consent moves more quickly: Any senator can bring up a measure for unanimous consent, and any other can block it. A Democratic lawmaker might introduce a bill codifying the right to birth control, for example, seeking unanimous consent. If just one Republican objects, then the legislation can’t move forward through this expedited process, and Democrats could theoretically then blame the whole party for the obstruction.

“Democrats could still credibly say it was Republicans who blocked the bill from moving forward,” said an aide familiar with the discussions.

“Democrats have a lot of bills and are interested in making that contrast between the parties clear, so UC offers an opportunity to highlight that week after week, and not let that momentum fall away,” explained another aide.

Recently introduced legislation includes bills to stop disinformation from crisis pregnancy centersprotect abortion care for military service members, and codify FDA regulations on abortion pills. Sen. Ron Wyden (D-OR) reiterated the need post-Roe to strengthen online privacy laws, and a letter Speaker Nancy Pelosi circulated in the House floated ideas related to targeting personal data stored in period tracking apps, as well as legislation reiterating that Americans have a constitutional right to freely travel.

Still, some lawmakers and staffers say their caucus would be making a mistake in not holding more formal votes, especially on aspects that hold broad appeal among the American public. One downside with unanimous consent is that those tactics generally draw far less notice in the media, and they fail to put everyone on record.

“Has a [television] network ever cut to the floor during a UC?” said an aide who was critical of the strategy. “If we had a motion to proceed vote on a rape-incest-health bill, I guarantee CNN and MSNBC would put it on TV. That’s literally never happening with a UC, that gets dismissed in two seconds.”

These staffers point to disturbing examples mounting in the news of people denied abortion care in the wake of the Dobbs decision — including a 10-year-old rape victim in Ohio. Voting on a rape and incest exception bill could theoretically divide the Republican caucus and underscore how out of step Republicans are with the public.

Plus, one staffer said, framing this as a tactical retreat is not how it was viewed when Democrats voted on narrower pieces of the Affordable Care Act: “We voted on different aspects, like preexisting conditions, the contraceptive piece, the donut hole, and no one ever thought that was harmful in talking about the most popular parts of the law and having those standalone votes.”

But several Democratic aides dismissed the idea that further votes were needed, stressing that Republican opposition to reproductive health care was already clearly demonstrated with the two failed Women’s Health Protection Act votes. Anything above that would be redundant, and could serve to highlight Democrats’ inability to get legislation passed.

“I don’t think anyone in America is confused on where things stand, and do people even pay attention to a bunch of show votes in Congress?” an aide asked. “I just don’t think there’s a huge, compelling case for it, though I don’t think we’re strongly opposed either.”

Smith, of Minnesota, offered something of a middle-ground position. “It’s clear where Republicans stand on reproductive freedom — they are opposed to it. And they’ve made that clear in their votes and in confirming justices committed to overturning Roe, so voters know, and I don’t think we need additional votes,” she told Vox.

Still, Smith acknowledged, there’s value to taking votes.

“I can’t speak for all of my colleagues in the caucus about how they will want to proceed and what we might do, but let me just say that votes in the Senate can help us demonstrate how out of step the Republicans are with what Americans want,” she said. “I don’t think those votes are needed for Americans to understand the fundamental differences between Republicans and Democrats. People, I think, understand that regardless, but I know we will continue to have conversations about what votes we want to have in order to put Republicans on the record again.”

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