Congress Is Not Going To Step In To Save Roe V. Wade

“Unfortunately, many of us said the sky was going to fall, and it did.”

Hundreds of people rallied in front of the Supreme Court steps deep into the night Monday to protest the leaked draft ruling that could overturn Roe v. Wade.

The crowd swelled over several hours as some protesters cried and hugged each other. Many waved signs, locked arms, and chanted protest slogans. Above all, they called for action to save the landmark abortion rights law.

“Women are actually going to die because of this,” said Kim Mohabir, an abortion provider who works in Virginia. "What happens to the woman who is at 24 weeks and doesn’t want to deliver a baby that she knows will not survive past an hour? All of the women have a story."

Mohabir said she has already seen an uptick in people coming in from states like Texas and Oklahoma for abortion procedures, and she expects that to increase further if Roe is overturned.

Protesters told BuzzFeed News they wanted to see reforms to the Supreme Court, such as adding new seats or instituting term limits. But the most common demand was for Congress to pass a law codifying abortion access as a right nationwide.

By midday Tuesday, the chances of Congress stepping in to save Roe evaporated. Democrats expressed outrage at the draft decision by Justice Samuel Alito on behalf of the court’s conservative majority. But some conceded they cannot stop it because Democrats currently do not have the votes to pass a bill enshrining universal abortion rights. While such a bill could potentially pass the House, it is currently doomed in the Senate, which is infamously designed for obstructing and killing legislation.

“Unfortunately, many of us said the sky was going to fall, and it did,” said Sen. Chris Murphy of Connecticut, a Democrat.

Republicans remain overwhelmingly in favor of repealing Roe v. Wade and can use the Senate filibuster — the threshold that requires 60 votes to pass a bill instead of a simple majority — to block any abortion rights bill. That leaves Democrats just one option — changing Senate rules to do away with the filibuster.

They currently do not have enough votes to pull off that maneuver. It would require Democrats voting unanimously in the evenly split chamber, or persuading enough Republicans to vote with them to make up for any defectors. When the issue has come up in the past, two Democrats, West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, have refused to change the chamber rules. On Tuesday, Manchin again defended the filibuster, saying it is “the only protection we have of Democracy.”

“I’m thinking there’s been a lot of (cases) where we’ve protected women’s rights with the filibuster,” Manchin said. “The bottom line is it’s the only check and balance we have.”

Sinema also released a statement defending the filibuster, arguing it had been used in the past to block bills that would have eroded abortion rights.

Senate Majority Leader Chuck Schumer vowed to bring an abortion rights bill for a floor vote regardless. “Every American is going to see on which side every senator stands,” Schumer said. This January, Schumer similarly forced a vote on a voting rights package despite knowing that it would be blocked by a Republican filibuster.

Democrats potentially have two allies in pro–abortion rights Republican Sens. Susan Collins and Lisa Murkowski. Both expressed betrayal at Trump-appointed Supreme Court justices who they say indicated in private meetings during the Senate confirmation process that they would not vote to overturn Roe.

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice (Neil) Gorsuch and Justice (Brett) Kavanaugh said in their hearings and in our meetings in my office,” Collins in said a press release.

Murkowski said that if the draft opinion ends up being final, “It’s rocked my confidence in the court. That is because I think there were some representations made with regards to precedent. … Comments were made to me and to others about Roe being settled.”

But neither has indicated they would side with Democrats to circumvent the filibuster to pass an abortion rights bill. “I am not going to talk about the filibuster or process,” Murkowski said. “I’m just not going to talk about that.”

Collins voted to confirm both Gorsuch and Kavanaugh. Murkowski voted to confirm Gorsuch but not Kavanaugh. Both senators opposed Amy Coney Barrett’s nomination because it was so close to the 2020 election, though Murkowski ultimately voted to confirm Barrett. These three Trump nominees, along with Alito and Justice Clarence Thomas, make up the majority who could be behind the decision to overturn Roe, according to Politico.

Democrats are now trying to find ways to mitigate the effects of Roe possibly being overturned. Murphy said the party will look at what executive actions President Joe Biden could take. He added that everyone in the Senate either did or should have expected President Donald Trump’s Supreme Court nominees to vote to overturn the landmark abortion rights ruling. “Everybody knew that those votes were votes to overturn Roe,” he said.

Republicans, meanwhile, mostly did not discuss the substance of the ruling and focused their anger on the fact that the draft ruling was leaked to begin with. Senate Minority Leader Mitch McConnell said the leak was an attack on the court’s independence. He called for an investigation and, potentially, criminal charges. It is not clear that any crime has been committed, and McConnell did not specify what law was broken.

Removing the Senate filibuster would also open up the door to Republicans trying to restrict abortion access even further the next time they control Congress and the White House. The most extreme option would be passing a bill to ban abortion nationwide. Republican senators downplayed that idea Tuesday. Some said that abortion is an issue best left to the states to regulate. Others said a nationwide ban is unrealistic.

“There’s not 60 votes for that, and I don’t intend to change the filibuster,” said Sen. Lindsey Graham of South Carolina.

But would he support such a bill? “Let’s see how it shakes out,” he said.

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