A Longshot To Save Nationwide Abortion Rights

[ Posted Thursday, December 2nd, 2021 – 16:59 UTC ]

The Supreme Court has put America on notice. Once again, it is about to roll back a basic constitutional right for a major part of the country's population. They did so previously on voting rights when they gutted the Voting Rights Act, and they're about to do so again on the right to an abortion. The clock is now ticking on Roe v. Wade, and time will run out whenever they issue their opinion on the Mississippi case before them, which is expected to happen next June (at the end of their yearly term).

There is no appeal from a Supreme Court decision, of course. It's right there in the name -- the word "supreme." But there is a check and/or a balance for unpopular and blatantly-partisan court opinions: legislation. Thankfully, there are two bills which would address the problem, one of which has already passed the House of Representatives. The "Women's Health Protection Act" (W.H.P.A.) was first introduced in 2013 and finally passed this year. From the text of the bill, it would outlaw abortion restrictions which: "are more burdensome than those restrictions imposed on medically comparable procedures... do not significantly advance women's health or the safety of abortion services, and... make abortion services more difficult to access." This would overturn virtually all of the onerous and unnecessary laws red states have passed over the years, which have all chipped steadily away at a woman's right to choose.

There is also a second bill, the "Equal Access To Abortion Coverage In Health Insurance Act" (the "EACH Act") which would: "reverse the Hyde Amendment and other insurance-related abortion coverage restrictions. The bill would largely benefit low-income or poor people, who account for 75% of those seeking abortion care." However, this bill hasn't even made it out of its House committee yet, so it probably faces a more daunting path to passage.

Getting even the W.H.P.A. through the Senate is going to be challenging, and that's actually an understatement. As NPR pointed out back in September:

The bill passed the House mainly along party lines, 218-211, with one Democrat voting with Republicans. The vote was largely symbolic as the bill is unlikely to advance in the Senate, where 10 Republicans and all Democrats would need to back the bill in order to meet the 60-vote threshold to beat a filibuster.

The Senate version of the bill, sponsored by Connecticut Democrat Richard Blumenthal, has 47 co-sponsors, although it's unlikely to garner the support of Pennsylvania Democrat Bob Casey, who has previously voted for abortion restrictions, and West Virginia moderate Joe Manchin.

But perhaps this bill isn't as doomed as it might first seem. It is conceivable that such a bill (or something at least along the same lines) might pick up the two votes it would need for a majority of the Senate to vote for it. Currently, Senator Susan Collins says she couldn't vote for the W.H.P.A., but she might be inclined to vote for a less-sweeping version. As NBC reports:

Sen. Susan Collins, the moderate Republican from Maine, favors passing legislation to enshrine the protections of Roe v. Wade into law, her office said Wednesday.

"Senator Collins supports the right to an abortion and believes that the protections in the Roe and Casey decisions should be passed into law. She has had some conversations with her colleagues about this and is open to further discussions," a spokeswoman, Annie Clark, said in an email.

The main concern Collins seems to have with the W.H.P.A. is that she wants to continue "protections afforded to health care providers who refuse to perform abortions on religious or moral grounds" -- which might actually leave the core part of the bill intact. It sounds like a negotiable request, in other words, where a compromise piece of legislation could possibly be agreed upon.

Of course, even with Collins, that would still only add up to 49 votes. This bill would not be eligible for the budget reconciliation process, so currently it would require 60 votes to overcome the inevitable filibuster attempt. Which, given the nature of the Senate Republicans, is completely impossible to even hope for. However, getting to 50 might be possible, if one other Republican got on board (assuming Casey and Manchin stay firm in their opposition). Perhaps a Republican about to retire, who will never have to face the wrath of Republican voters again?

But to have the bill pass with only a majority (with Vice President Kamala Harris casting the tiebreaking vote) would mean reforming the filibuster rules. And getting any Republicans to vote for that might also be impossible.

I did read one interesting idea today which might be worth exploring, though. From Jennifer Rubin, a former conservative Republican at the Washington Post, comes the following scheme:

Sen. Susan Collins (R-Maine), who was apparently snookered into putting anti-choice justices on the Supreme Court (or, more likely, did so to avoid a primary challenge), now wants to pass a statute preserving abortion rights in federal law. Talk about locking the barn door after the horse is out. Such a bill will never find 10 Republican votes; if she is serious about repairing the damage she has done to reproductive rights, she too should be amenable to a filibuster workaround.

What would that look like? It could, for example, allow the Senate and House to pass legislation by simple majority to correct or reverse a discredited Supreme Court decision affecting constitutional rights. This would allow Congress to restate the parameters of Section 2 of the Voting Rights Act, thereby negating Justice Samuel A. Alito Jr.'s made-up "guideposts" that undermine voting rights legislation. And it would allow Congress to reauthorize Section 5 of the V.R.A., which Chief Justice John G. Roberts Jr. erroneously decided was unnecessary, since states with a history of voting discrimination were supposedly beyond that sort of thing. And should the court gut abortion rights, the House and Senate by a simple majority would be able to pass a statute preserving the constitutional right to an abortion in federal law.

This is a good way to go about filibuster reform, by framing the issue as a critical issue of checks-and-balances between the three branches of government. If we're going to be forced to put previously-enjoyed basic constitutional rights up for a vote, then at the very least that vote should be carried by a simple majority -- just as the Constitution dictates (the filibuster is nowhere to be found in the Constitution, of course).

Admittedly, it's a longshot -- at best. But at this point I don't really see any other way to check or balance an out-of-control partisan Supreme Court which seems to revel in gutting basic constitutional rights. Up until this point, codifying voting rights has been the rallying cry for those wishing to at least reform the Senate's filibuster rules. But after next June, this is likely to become a wider issue, as yet another constitutional right is gutted by the highest court in the land for nakedly political reasons.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


2 Comments on “A Longshot To Save Nationwide Abortion Rights”

  1. [1] 
    John M from Ct. wrote:

    This is the most "inside baseball" column in a long time. So the Senate is supposed to pass an exception to the filibuster that addresses ONLY "discredited" Supreme Court decisions that affect constitutional rights.
    This sounds like the non-starting proposal to abolish the filibuster only in the area of 'voting rights' except it's even more abstruse. When is a Supreme Court decision 'discredited'? Which Supreme Court decisions affect 'constitutional rights'? What the heck are constitutional rights, anyway? The constitution doesn't actually mention the right to have an abortion, so is the 14th amendment really enough to drag abortion rights over the line to the point where the filibuster must be abolished so the Supremes aren't the final arbiters, according to this new filibuster rule?

    As Grandpa said in 'Moonlight': "I'm confused!"

  2. [2] 
    C. R. Stucki wrote:

    What the hell CW, you may be about to "lose a right", but it sure as hell ain't a "constitutional right"!

    The last time I read the list of constitutional rights, I found "the right to life", but NOT "the right to take a life"!!

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