The US Senate voted 51-49 to reject a federal abortion rights law that would protect the right to privacy and guarantee that freedom for women that suddenly appears to be in jeopardy after almost half a century of constitutional protections from forced pregnancy.
The draft opinion from the Supreme Court that was leaked recently shows the six justices who comprise a conservative majority—five of whom were appointed by Republican presidents elected to the White House without a majority of the popular vote—are ready to overturn Roe v. Wade, which made abortion legal in America almost 50 years ago.
The decades-long fight to restrict abortion is going to have wide-ranging political consequences as it reveals that Republicans are out of touch with the 70 percent of Americans who believe women should not be subjected to forced pregnancy.
More Americans say abortion should be legal in all or most circumstances (61%) than illegal in all or most circumstances (37%).
The defeat of the Women’s Health Protection Act was expected, but Democrats say the vote was a symbolic gesture that is the first step in a larger strategy about mobilizing voters, not passing the legislation.
Democrats have signaled that they plan to use the coming decision as a rallying cry for voters to reject Republicans, but it is unacceptable that establishment politicians failed to protect the most fundamental right of women after 50 years because that kept the issue alive as a political football useful for raising money.
All 50 Republicans and West Virginia’s Democratic Sen. Joe Manchin III opposed the bill. The support of at least 60 senators would have been needed for it to pass.
But Democratic Senate majority leader Chuck Schumer insisted on pressing ahead with the doomed vote in order to put Republican senators on record.
“Every American will see how they voted,” Schumer said. “And I believe the Republican Party, the MAGA Republican Party, will suffer the consequences electorally when the American people see that.”
“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.”
“Five Supreme Court Justices who want to take away our abortion rights~which have support from 70% of Americans~were appointed by Presidents who got a minority of the popular vote,” said progressive Democrat Lisa McCormick. “It’s a classic case of minority rule, or tyranny.”
McCormick faulted New Jersey’s senators for failing to protect the fundamental human right of women to control their own bodies, and for raising money on the issue without protecting the freedom of choice.
“While this was just a draft and abortion care remains legal today, it may just be a matter of weeks until the Court hands down an official ruling to strike down Roe v. Wade,” said Sen. Cory Booker in a fundraising email. “Overturning Roe v. Wade would be an outrageous attack on a fundamental constitutional right. Abortion care is health care and the right to access it must be protected. I am dedicated to working every day to protect that right in Congress.”
“I’m devastated by this news. The women of New Jersey – and around the country – deserve better than this Republican cruelty,” said Sen. Bob Menendez in his own fundraising email. “Reproductive choice should be a cornerstone of this country, yet it would seem that the Court is prepared to throw it by the wayside.”
“When they say ‘Bob Menendez is in the Senate, doing everything in his power to support the right to choose,’ it is a flat out lie because our civil rights are now in danger not only as a result of the proposed Supreme Court ruling but also because of the inaction and disregard of politicians like Booker and Menendez,” said McCormick.
Polls have shown that an overwhelming majority of voters don’t want to see the Supreme Court overturn the 1973 Roe v Wade ruling that protected abortion rights, and Democrats view the issue as a vote-winner ahead of November’s crucial midterm elections.
In the 7-2 Roe decision in 1973, the top court found that the due process clause of the 14th Amendment protects the right to privacy from state action, including a woman’s right to choose to have an abortion.
The Roe decision said that during the first trimester, the woman had full discretion to abort. During the second trimester, the state could regulate, but not outlaw, abortions. In the third trimester, the government could regulate or outlaw abortions, with some exceptions for medical reasons. A subsequent case that was decided in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey, generally upheld the right to an abortion but moved away from strict adherence to the trimester system. It moved to a system by which restrictions on abortion would be allowed unless they were determined to place an “undue burden” on the woman seeking an abortion.
Overturning Roe, as the leaked draft would do, would get rid of the national right to an abortion and leave it up to each state to decide on what its policy should be.
Some states have already acted to protect abortion access by enacting their own laws, while others have adopted “trigger” laws that would severely restrict abortion if Roe were overturned.
A majority of Americans say abortion should be legal in all or most cases, but many are open to restrictions, while many who oppose abortion say it should be legal in some circumstances.
In a rare occurrence, Vice President Kamala Harris presided over the 49-51 vote.
Within minutes of the vote, President Joe Biden released a statement that “this failure to act comes at a time when women’s constitutional rights are under unprecedented attack – and it runs counter to the will of the majority of American people.”
Biden also said 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.”
“We will continue to defend women’s constitutional rights to make private reproductive choices as recognized in Roe v. Wade nearly half a century ago, and my administration will continue to explore the measures and tools at our disposal to do just that,” Biden said, without providing details.
Majority Leader Chuck Schumer said last week the Senate would be a vote on the bill after a leaked draft opinion from Supreme Court Justice Samuel Alito revealed that the court is likely to overturn the 50-year-old protections of abortion rights granted under the 1973 Roe v. Wade case.
“I think it’s really important to have this vote to show where everyone stands,” Democratic Sen. Amy Klobuchar of Minnesota.
But Senate Minority Leader Mitch McConnell’s comments over the weekend that Republicans might try to move legislatively on a nationwide abortion ban also upped the stakes for Democrats.
The draft opinion from the court would not issue a national ban, but it would allow states to do so.
Focus could now turn to efforts from more moderate Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska who are drafting a narrower approach to the WHPA legislation. That bill would also aim to codify Roe in some form, but it has restrictions that many Democrats do not support.
Democratic Senator Tim Kaine of Virginia said he’s having “productive discussions” with Collins about that legislation but he acknowledged that even that bill, should it come together, would not immediately have enough support to pass.
“I’ve worked on things with Lisa and Susan before and negotiated and often find an answer that we can live with,” Kaine said. “So I’m in that spirit. That’s the spirit of the discussions.”
And while the WHPA failed to pass Wednesday, Democrats did manage to get support from Pennsylvania Sen. Bob Casey, who is one of the few anti-abortion Democrats in office.
Casey’s father, Bob Casey Sr., was Pennsylvania governor during the 1992 Supreme Court case Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld Roe but paved the way for abortion restrictions.
In a statement, the younger Casey said the circumstances around abortion rights in the country have changed over the last few months. He cited the leaked draft opinion from the Supreme Court and the possibility that Republicans might try to codify a national ban on abortions.
“During my time in public office, I have never voted for — nor do I support — such a ban,” Casey said.
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