When the U.S. Supreme Court allowed a draconian new Texas abortion law to stand this week, Democrats issued their familiar vows to fight back by advancing legislation in Congress to protect abortion rights nationwide.
But to a growing segment of liberals, “fighting back” by passing another abortion bill that won’t become law is increasingly tantamount to doing nothing.
That’s because any legislation to codify abortion rights—like the bill that Speaker Nancy Pelosi (D-CA) announced on Thursday would get a vote later this month—does not have anywhere close to the 60 votes needed in the U.S. Senate to pass under the longstanding rule known as the filibuster. And many progressives are beginning to argue that heightened threats to abortion access justifies Democrats ending the 60-vote Senate rule.
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For months, progressive activists have been organizing to get rid of the filibuster in order to advance legislation of urgent concern, covering voting protections, LGBTQ rights, gun control, and more. While they’ve made some progress, liberal advocates remain a long way from convincing key holdouts, like Sen. Joe Manchin (D-WV)—or President Joe Biden, for that matter.
“We need to be real. There’s not the votes for that in the U.S. Senate right now,” said Sen. Tina Smith (D-MN), on ending the filibuster. A former executive at Planned Parenthood, Smith told The Daily Beast that she’d “like to believe that my colleagues, to a person, would stand up for the rights of people to decide for themselves what to do with their own bodies.”
Smith said she feared that nothing at this point would budge those colleagues toward ending the 60-vote threshold. But as long as the filibuster is in place, congressional Democrats will be powerless to fight back against abortion restrictions, barring an unexpected and massive pickup of Senate seats in the 2022 election.
Still, Smith said the high court’s decision “creates a galvanizing moment… short of being able to wave a magic wand in the U.S. Senate, we can go out and organize.”
Organizers are certainly hoping that, if nothing else, the court’s decision shakes up a stagnating dynamic on the filibuster, as the clock winds down on Democratic majorities in the House and Senate.
“What the Supreme Court did was put this very high on the list for advocates as an example to point to of how egregious the filibuster is, and the need to reform it,” said Eli Zupnick, spokesperson for Fix Our Senate, an anti-filibuster advocacy group. “This is a very clear wake-up call on an issue that the vast majority of the country stands with Democrats on.”
Any wake-up call, however, didn’t immediately seem to register in Democrats’ initial statements about the Supreme Court ruling. Many lawmakers tweeted support for passing pro-choice legislation as if the filibuster did not exist.
And Biden, in a statement on the ruling, called it an “unprecedented assault on women’s rights,” but didn’t mention any congressional action or the filibuster, instead saying he would direct a “whole-of-government effort to respond to this decision.”
Some Democrats on Capitol Hill weren’t having it.
Rep. Mondaire Jones (D-NY) said he was “rolling his eyes, to say the least” that the initial White House response is “not to do everything [it] can to pass legislation to codify Roe v. Wade” but instead to take executive actions that could simply just “soften the blow” of its gradual erosion.
“Many members of Congress, and the president of the United States, are for the time being lagging behind the American people in their understanding of what is required to end the crisis posed by this far-right supermajority on the Supreme Court,” Jones said.
A handful of lawmakers did seize on a fresh opportunity to push for an urgent end to the filibuster. Sen. Kirsten Gillibrand (D-NY), for example, tweeted on Thursday that “we can’t let the filibuster stand in our way” of countering state-level abortion bans.
And Sen. Ed Markey (D-MA) said the decision amounted to an “urgent call to action” for his colleagues to jettison the filibuster to pass something else: his legislation to expand the number of seats on the Supreme Court, in order to forestall a potential full repeal of Roe v. Wade by a conservative majority on the high court.
“The choice before us today is do we keep the filibuster or do we protect abortion rights?” Markey tweeted. “Do we allow the stolen Republican SCOTUS majority to remain forever or do we protect abortion rights?”
But there are a few problems that might prevent Democratic lawmakers from ending the filibuster, or increasing the size of the Supreme Court.
For one, it’s not apparent that 50 Senate Democrats support the Women’s Health Protection Act, the bill slated for a House vote later this month. Manchin has not said he would support it, and neither has Sen. Bob Casey (D-PA), who has in the past identified as a “pro-life Democrat.” And while a growing number of Senate Democrats support expanding the size of the high court, it’s hardly a critical mass.
In that light, getting 50 Democratic votes to end the filibuster in the name of abortion rights, much less expanding the court, would be a near-impossible scenario.
Beyond that, abortion is the perhaps one area where Democrats have historically found some utility in the filibuster.
If it were not for the 60-vote threshold, past GOP majorities might have effectively overturned Roe long before the Supreme Court did. Some Democrats worry that nuking the filibuster to pass abortion rights legislation would mean that Republicans would simply overturn it immediately upon returning to the majority.
Among major reproductive rights organizations, there’s a reluctance to embrace the kind of full-throated anti-filibuster position that many Democratic lawmakers have.
In a statement to The Daily Beast, a spokesperson for the pro-choice group NARAL said “reproductive freedom is under attack in unprecedented ways and it’s time for courageous action to restore democracy.”
When asked if that action included changing the filibuster, the NARAL spokesperson said that, “We think all options are on the table.”
Progressive organizers consider these groups’ sentiments to be influential in how elected Democrats talk about the filibuster and abortion rights. Smith, for one, said, “for a long time, I was concerned about getting rid of the filibuster because of that question, what could happen to reproductive rights.”
But Smith—who only came out in favor of ending the filibuster this April—said the Senate has a duty to protect those rights. And she also argued that any Republican repeal of Democrat-passed abortion laws would not come without political consequences.
“Politicians can be protected by not being able to do things they say they want to do,” Smith said.
More than anything, however, many progressives feel that if they do nothing, similar rulings and state-level bills will proceed anyway. The threat of GOP reprisals if they muscle through abortion rights legislation on partisan lines, to them, seems less scary than the alternative. Already, other states—such as Florida—are contemplating copycat bills to Texas’, sensing a green light from the Supreme Court.
While court-packing proponents like Jones remain in the minority, they stress that a six-member GOP majority could strike down any federal Democratic abortion legislation, which would inevitably be subjected to legal challenges.
Zupnick, of Fix Our Senate, said it’s a “legitimate point” to be concerned about what GOP majorities in Congress might pass on abortion if the filibuster ends, but at this point, the costs of inaction for Democrats are too high.
“What we saw with the Supreme Court ruling is that Roe is essentially unprotected right now,” he said. “The choice is to do absolutely nothing and let the court and states erode reproductive rights, or do something.”
