What congressional Democrats can’t do to protect abortion rights – and what they can

This column will describe policy responses to the Supreme Court overruling Roe v Wade that are and aren’t available to congressional Democrats under multiple scenarios both before and after the midterm elections. First the chances of passing legislation under normal existing procedures are assessed. That’s followed by an overview of the prospects for ending the Senate filibuster. And then there’s a look at the most intriguing — and yet publicly the least discussed or even mentioned — scenario: codifying abortion rights into federal law through the budget reconciliation process. 

Enacting the Women’s Health Protection Act under normal procedures

In response to the Court’s ruling, Democrats from Joe Biden and Kamala Harris to Nevada Sens. Catherine Cortez Masto and Jacky Rosen say Congress needs to codify abortion rights in law by passing the Women’s Health Protection Act.

“We cannot underestimate the significance of the upcoming elections and the need for all people who care about this issue to understand that we have to have a pro-choice Congress to pass this law,” Harris told National Public Radio earlier this week.

The bill has passed the Democratically controlled House, but has failed not once but twice to garner the 60 votes needed to overcome a Republican filibuster in the Senate. West Virginia Democratic Sen. Joe Manchin voted with Republicans to oppose the bill both times.

With the Senate split 50-50, and assuming neither Machin nor any of the Republicans who unanimously voted against the bill could be convinced to change their minds, Democrats would likely need to gain at least eleven Senate seats in this year’s midterm elections to get past the filibuster and, as Harris put it, “pass this law.”

The prospect of that happening is ludicrous.

Democrats may or may not hold on to the Senate after the midterms, and if they do it will still be by a small margin. 

Meanwhile, there is a very real possibility Democrats will lose control of the House in the midterms. If that happens, the Women’s Health Protection Act is dead until after the 2024 election at the earliest, no matter who controls the Senate.

Harry Reid still wrong about the filibuster. So far.

Under the Senate’s current 50-50 configuration, Democrats could, with a tie-breaking vote from Harris, kill the filibuster. But several Democratic senators have balked at calling for an outright end to the filibuster, and Manchin and Arizona Democratic Sen. Kyrsten Sinema have all but declared the filibuster sacred.

If Democrats hold the House in the midterm election and pick up at least a couple more seats in the Senate to compensate for Manchin and Sinema’s resistance, they could conceivably get rid of the filibuster and pass the Women’s Health Protection Act (and a lot of other things).

If they wanted to.

Nevada’s aforementioned senators each have demonstrated a very strong and not dissimilar position on getting rid of the filibuster, and that strongly held position is that they would very, very much prefer not to talk about it except in the most temperate, measured terms possible.

Getting rid of the filibuster has been viewed in many quarters, including among many Democrats, as a dramatic step that might be perceived as radical by some voters.

But after the Supreme Court’s ruling, for Democrats to worry about Republicans or anybody else calling them “radical” rather misses the point. In a separate (but concurring of course) opinion on the decision to deprive women in America of rights their grandmothers had, Supreme Court Justice Clarence Thomas floated the idea of also ridding Americans of the right to contraception and same sex relationships.

Radical? That ship has sailed.

In the last few years of his life, Democratic Sen. Harry Reid repeatedly said that getting rid of the filibuster was not a question of if, but when. “I would think two or three months at the most,” Reid said in January 2021 as Joe Biden was about to be inaugurated. Reid felt Democrats, even the likes of Manchin and Sinema, would be moved sooner rather than later by Republican obstruction.

Reid was wrong (not the first time). The obstruction materialized, but the filibuster remains.

If Republican obstruction couldn’t move Democrats to kill the filibuster, perhaps the Supreme Court’s severely politicized, far-right extremist supermajority can. Again, provided Democrats pick up at least a couple Senate seats in the midterms.

Remember reconciliation?

Earlier this month, Manchin and Democratic Senate Majority Leader Chuck Schumer rekindled talks about reaching a budget deal on some pared down slices of the Biden administration’s ill-fated Build Back Better agenda. The key portions being negotiated are reportedly lowering prescription drug prices, raising taxes on the rich, and some measures addressing energy, both clean and – Manchin’s historical preference – other than clean.

Schumer is negotiating with Manchin and not Republican Senate Minority Leader Mitch McConnell because the budget deal would be passed the same way the American Rescue Plan Act was passed, and the same way the Build Back Better agenda would have been passed – through the budget reconciliation process which can be passed with only 50 Democrats plus a tie-breaker from Harris.

Why not include legislation codifying reproductive rights in federal law?

Manchin describes himself as “pro life,” but he still evidently feels that overturning Roe was outrageous. Justices Brett Kavanaugh and Neil Gorsuch gave the time-honored response that Roe was “settled law” during their confirmation hearings, and according to Manchin, that was one of the reasons he voted to confirm them. “I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans,” Manchin said after the court’s ruling.

Manchin, remember, voted with Republicans and against the Women’s Health Protection Act, twice. But while he won’t support that bill, he’s indicated that he could support some bill to codify abortion rights.

And yet there is no indication that Democrats are talking with Manchin about including legislation to codify abortion rights through the budget reconciliation process.

One concern that some Senate Democrats would inevitably raise is the Senate parliamentarian. It is entirely possible if not probable that the parliamentarian would rule that neither the Women’s Health Protection Act nor any of the more modest proposals to codify abortion rights have a significant budget impact, and so are ineligible for consideration in a budget bill. The parliamentarian last year used that reasoning to keep a $15 minimum wage out of the American Rescue Plan Act, and immigration reforms out of the Build Back Better proposal.

Official projections for the impact of the court’s ruling on federal spending are evidently still works in progress, but there is a body of analysis from economists on the harmful economic impacts of the Dobbs decision on women. The ruling will unquestionably lead to a need for increased federal spending on Medicaid, TANF, SNAP, housing assistance, and multiple other federally funded or supported services and programs. Just because the forced-birth movement chooses to  neglect the economic impacts of overturning Roe doesn’t mean the U.S. Senate has to.

More importantly, the parliamentarian occupies an unelected office whose rulings can be cast aside by the party that controls the Senate. If that party’s senators want to.

Virtually every Democrat in Congress has responded to the court’s ruling with powerful statements of outrage and forceful vows to take whatever steps possible to confront it. In this time, on this issue, for Democrats to stand on dainty Senate niceties and allow the parliamentarian to set the nation’s agenda would be obscene.

Another reason Democrats are loath to discuss codifying abortion rights through the budget reconciliation process is a not unreasonable political one: If they try it and it doesn’t work, the storyline will yet again be Democrats falling on their faces, flopping, failing to get anything done, etc.

So … make it work?

Alas, there appears to be little appetite among Democratic senators for using the power they have now – while they still have it – to try to protect abortion rights through the reconciliation process.

Rosen’s office, when asked about the prospects of Democratic policy responses to the court overturning Roe, and reconciliation in particular, sent a statement that did not address the issue specifically, saying only that the senator “supports any feasible avenue to get this bill passed to restore reproductive rights.”

Cortez Masto’s office, also asked about securing abortion rights through the reconciliation process, issued a statement that likewise failed to address the subject specifically. Cortez Masto will “continue to push to protect reproductive rights,” the brief statement from her office said before digressing to the senator’s desire to “cut costs for families, lower prescription drug prices, and cap the price of insulin.”

‘Roe is on the ballot’

The expiration date on Democratic control of Congress could be in January, when a new Congress is sworn in after the midterm elections.

“Roe is on the ballot,” Biden has declared.

That’s especially true if congressional Democrats do nothing before the election.

If Democrats do manage to retain control of both houses of Congress, will they then do something? If they gain a slightly bigger edge in the Senate, would Democrats have the nerve to strike the filibuster or codify abortion rights through reconciliation? Can Democratic voters rely on that?

If past results are any indication of future performance, relying on Democrats to use power available to them to take action after the midterms is just as dicey a proposition as hoping they’ll do so before the midterms.

One thing at least is certain. Whatever congressional Democrats do before the midterm election, Democratic voters won’t have to worry about what they’ll do after it if Democratic voters don’t show up and Democrats lose control of Congress.