Senate Democrats’ bill to codify Roe goes beyond many blue states on abortion

In response to a bombshell leak from the Supreme Court suggesting that a reversal of Roe v. Wade may be imminent, Senate Democrats said they will bring legislation to the floor to codify Roe in federal law. But the bill, which has little chance of passing since Senate Democrats cannot meet the 60-vote filibuster threshold to pass it, would go beyond what Roe permits by overriding nearly all state-level restrictions.

“Next week, the U.S. Senate is going to vote on legislation to codify a woman’s right to seek abortion into federal law,” Senate Majority Leader Chuck Schumer said in remarks on the Senate floor, adding the vote set for next Wednesday will be one of the “most important” votes the Senate will take.

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“This is real and as urgent as it gets,” Schumer said.

Politico this week published a leaked draft of a majority opinion that would overturn Roe in a case concerning a Mississippi law banning elective abortions after 15 weeks. The document, which Chief Justice John Roberts said is authentic but does not represent the court’s final opinion, left both sides of the contentious issue bracing for a reversal, which would send the matter back to individual states to legislate. The landmark 1973 ruling in Roe legalized abortion nationwide, but the new case, Dobbs v. Jackson Women’s Health Organization, directly challenged the ruling. The court’s final decision is expected before the end of its term, likely next month.

Senate Democrats swiftly condemned the possibility of the end of Roe, arguing that Roe should be codified into federal law. But their bill to do so goes beyond the Roe standard and would override certain measures in state law courts have held up under Roe, including mandatory waiting periods, restrictions on abortions via telemedicine, and parental consent requirements for minors. It would also grant “health care providers,” a term that includes nondoctors, the right to perform abortions.

Jeanne Mancini, president of March for Life Education and Defense Fund, told the Washington Examiner, “The deceptively named Women’s Health Protection Act is one of the most radical abortion bills ever introduced in Congress.”

“Such a bill would override individual states’ life-affirming laws and the will of the American people, nearly three-quarters of whom believe abortion should be limited after the first three months of pregnancy,” Mancini said. “The bill goes well beyond even Roe v. Wade. It seeks to enshrine into law the right to abortion up until birth for virtually any reason.”

A conservative legal scholar told the Washington Examiner that any effort to codify Roe must establish what the Roe threshold is because there are numerous legal disputes over what it permits. The proposed legislation, this person added, would invalidate some measures in state law that courts permitted with Roe in place.

Democrats currently face steep odds to enact any legislation in response to a reversal of Roe. Although the House previously passed a similar bill, they do not appear to have the votes necessary to pass their proposed measure in the Senate because they cannot either meet or do away with the upper chamber’s 60-vote filibuster threshold.

Democratic Sens. Joe Manchin and Kyrsten Sinema have reiterated their opposition to revoking the filibuster. Manchin also opposed a nearly identical bill earlier this year, while Sinema supported it.

Senate Democrats at a press conference Thursday characterized the bill as a necessary step with access to abortion in question. In apparent acknowledgment that their legislation lacks the votes to pass, several senators said that the vote will show the public where each member of the Senate stands.

“They’re going to have to vote, and we’ll know right where they are,” Sen. Debbie Stabenow (D-MI) said.

Schumer reiterated the same in a tweet.

At the press conference, Schumer denied what some critics of the bill have argued, that it would force religious hospitals to perform abortions. Sens. Susan Collins and Lisa Murkowski, both Republicans who support abortion rights, oppose the bill in part because they said it would supersede the Religious Freedom Restoration Act.

Schumer also rejected the notion that Democrats should compromise on their bill, arguing the vote is the first step they will take.

“The first step is to have a vote in the Senate,” Schumer said, adding, “Which side are you on?”

“You can’t duck it anymore,” he said.

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Schumer said people will “hear more” from Democrats on reproductive rights between now and November, signaling the party has moved to make the issue a campaign one.