Even If Roe Falls, Congressional Democrats Will Fail to Protect Abortion Access. Here is why.

Senate Majority Leader Chuck Schumer speaks at a pro-choice rally in front of the U.S. Supreme Court. Photo by Senate Democrats.

On January 22nd of 2022, Roe v. Wade turned 49 years old, but this birthday could be its last. At this moment, there is a case being considered by the United States Supreme Court that could overturn the precedent set by Roe v Wade in 1973.  Dobbs v. Jackson Women’s Health Organization is a pending case that examines the constitutionality of a Mississippi state law that banned abortion after 15 weeks of pregnancy. With the 6-3 conservative majority on the bench, most abortion rights advocates and legal experts are not expecting a win. If the Court does rule against abortion access, it would overturn the 1973 landmark case Roe v. Wade, which famously protects access to abortion within the first trimester of pregnancy. 

Supreme Court has also once again declined to hear a challenge to Texas’s infamous abortion bill. Texas Senate Bill 8, or the “Heartbeat Bill” as it’s been dubbed by proponents, bans abortion after just six weeks of pregnancy. Currently, the case is under review by the 5th Circut Court and has been sent to the Supreme Court, meaning the legal proceeding could take months, a devastating blow for abortion rights advocates.  

These legal defeats have initiated a resurgence of pro-choice activism across the United States that has almost exclusively utilized legal pathways for preserving access to abortion. Issues of reproductive justice are distinct from most other hot-button political issues because preserving these rights at a federal level almost guarantees a Supreme Court case. With the constant barrage of legally-centered activism, it is easy to forget why we consider federal abortion policy to be a court-centered issue and not a legislative one.

In September of 2021, the Democrat-controlled House of Representatives passed the Women’s Health Protection Act (WHPA), and on Thursday, February 18th the Senate’s most powerful Democrat, Majority Leader Chuck Schumer announced that he would be bringing the WHPA to a vote on the Senate Floor. Despite support from the vast majority of the Democratic coalition, the bill failed to receive the votes necessary for passage. This result was not a surprise, Senator Schumer and his allies were aware that the legislation would not pass, but the Majority Leader chose to bring the bill to a vote anyway. The WHPA, like most bills in the Senate, cannot advance to a final vote without the support of at least 60 Senators. Unless this threshold is met, filibustering could allow debate on the matter to continue indefinitely, preventing passage. Democrats have 50 seats in the Senate and there were not ten Republicans willing to support this legislation, meaning that the bill will almost certainly die once it reaches the Senate Floor. 

When he announced this vote, Senator Schumer said he was doing so because “a woman’s right to choose is a fundamental right.” Though this has long been Democrat’s stance on abortion rights, it does not explain why the Majority leader would move forward on legislation he knows will fail, especially since the 2022 midterms are coming quickly and the Democratic party needs to appear as unified as possible. 

The real reason that Senator Schumer made this decision is likely the same reason he brought voting rights legislation to the floor in December of 2021; forcing votes on controversial social justice legislation sends a signal about what the party intends to focus on in the years ahead. It also forces Republicans to vote against a  bill that has support from between 54%- 64% of Americans, depending on the state. Party leadership hopes that Republicans' refusal to support this legislation, despite its popularity, will give Democrats leverage in the upcoming midterms. 

According to polling data from the Washington Post Poll, 60% of Americans support legalized abortion as established in Roe v. Wade, but far fewer lawmakers support the decision, meaning that the Democrats are setting themselves up for what will likely be years, and possibly decades-long, legislative battle. This move also signals that Democrats see abortion as a wedge issue in which they represent the majority of Americans who believe that the rights established in Roe v. Wade should be codified into law. 

If, in fact, Senator Schumer sees the WHPA the same way he sees Voting Rights, then this political move is also meant to place more pressure on the filibuster. As of right now, the Senate retains the 60 votes, supermajority threshold to move forward on most pieces of legislation. Since rules in the Senate are determined by the body itself, the filibuster has been the center of enormous controversy in the last two years. Democrats only need 50 votes to abolish the filibuster altogether but a number of moderate Democrats have refused to support this move. Part of why Schumer forced a vote on the legislation was to highlight that important social justice bills will continue to fail under the Senate’s current rules, even when Democrats have won a majority of seats. 

Senate rules are all subject to change. Either party only needs 50 votes to abolish the filibuster. If Democrats come out of the midterms victorious by retaining their majority in the House and picking up at least one seat in the Senate, then they might be able to finally move forward on prized legislative goals, including protecting abortion access. It is also possible, and more likely, that Republicans will take back the House and the Senate and that they will be the party that finally ends the filibuster. This would leave open the possibility for a future Democratic majority to pass federal pro-choice legislation. For now, most abortion-rights activism will remain in the courts because legislative channels and the current political landscape are not capable of a massive federal overhaul of the country’s abortion laws.

Layne Donovan is a junior at Barnard College studying history who’s interested in reproductive justice and the happenings of the U.S Congress. She is from Wauwatosa, Wisconsin.