The Supreme Court declined to block a Texas law prohibiting most abortions, in a late-night opinion on Tuesday, igniting fears among abortion rights activists that the conservative-majority court will overturn the landmark Roe v. Wade decision establishing access to the procedure as a constitutional right.
Five conservative justices, including President Donald Trump’s nominees to the court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—ruled that the law could stand while it is being challenged in court. Chief Justice John Roberts, a conservative who is now the court’s closest thing to a swing vote, joined the three liberal justices in arguing that the law should have been blocked amid ongoing litigation.
“The Court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissenting opinion. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
If Roe is overturned, millions of women will be without easy access to legal abortions unless they are willing to travel hundreds of miles: an impossibility for many poor women, who are disproportionately likely to have an unwanted pregnancy. Abortion would not be legally protected in more than half of all states, and several would likely ban the procedure altogether.
In the wake of the Supreme Court’s decision, President Joe Biden announced that he was launching a “whole-of-government” response to try to safeguard access to abortions in Texas. Theoretically, the Democrat-controlled Congress could also play a role: It could codify Roe by passing a bill establishing the right to an abortion. Congressional Democrats have introduced the Women’s Health Protection Act, which would create the statutory right for health care providers to provide and patients to obtain abortions, and would bar states from enacting laws that restrict access to the procedure. The bill was introduced by Representative Judy Chu in the House and Senator Richard Blumenthal in the Senate, and has dozens of Democratic co-sponsors in both houses.
With Democrats in control of both houses of Congress as well as the White House, passing this bill would seem on the surface to be an easy task. But there’s a complicating factor: the filibuster.
Now it’s time for the requisite description of the filibuster, that omnipresent legislative precedent and scourge of progressives. Most legislation requires 60 votes to advance in the Senate. Democrats hold a razor-thin majority of 50 seats, meaning that they would need support from at least 10 Republicans for the Women’s Health Protection Act or any similar bill to pass. (This is assuming that all 50 Democrats would support the WHPA, which is far from certain. Two Democrats, Senators Joe Manchin and Bob Casey, have previously identified as pro-life, even as they opposed Trump’s Supreme Court nominees. Manchin and Casey are the only two Democratic senators who are not co-sponsors of the WHPA.) Republican Senators Susan Collins and Lisa Murkowski support the right to an abortion, but two Republican votes are hardly enough to pass the bill, even if it had universal Democratic support.
Multiple Democrats pushed for Congress to pass the WHPA in the wake of the Texas law going into effect and the Supreme Court’s opinion. Speaker Nancy Pelosi said in a statement that the House would take up Chu’s bill upon its return from recess “to enshrine into law reproductive health care for all women across America.”
Representative Pramila Jayapal, the chair of the Congressional Progressive Caucus, and Representatives Dina DeGette and Barbara Lee, the co-chairs of the Pro-Choice Caucus, said in a statement that Congress must “immediately take action to enshrine the right to access abortion into federal law.” Blumenthal wrote on Twitter that Congress must “urgently pass the Women’s Health Protection Act to ensure abortion access, regardless of zip code.”
But as with many other Democratic priorities, from voting rights to LGBTQ equality, the best hope for passing a bill codifying the right to an abortion would be eliminating the filibuster and allowing legislation to pass with a simple majority. But this is also an unlikely scenario, given the public opposition by Manchin and Senator Kyrsten Sinema to ending the practice, as well as private concerns by several other Democratic senators. Senate Majority Leader Chuck Schumer promised in a tweet on Tuesday that “Democrats will fight against [the Texas law] and for Roe v. Wade” but declined to offer specifics about how that battle would be waged.
Senate Judiciary Committee Chair Dick Durbin announced on Friday that the committee would hold a hearing to “examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative Court’s abuse of the shadow docket”—but holding a hearing does not amount to taking legislative action.
Progressives in Congress and outside advocacy groups have put pressure on moderate Democrats to eliminate the filibuster. Jayapal, DeGette, and Lee said in their statement that they “urge the Senate to do whatever is necessary to send it to the President’s desk.” Chu wrote on Twitter that “step one” to protecting the right to an abortion is ending the filibuster. The Progressive Caucus said in a tweet that “it’s the filibuster or reproductive freedom.”
“The fact is Dems CAN act now to protect our democracy, voting rights, integrity of our courts, and end minority rule. The Dem Senators in the way need to get on board. The stakes are too high. We must end the filibuster, expand the court, stop dark money & protect voting rights,” Representative Alexandria Ocasio-Cortez tweeted on Tuesday.
Senator Ed Markey called for an end to the filibuster and for Congress to pass his bill adding seats to the Supreme Court, an idea that has gained traction among progressives in recent years.
“We need to restore balance to the Court after Donald Trump and Senator Mitch McConnell blatantly stole the seats of Justice Scalia and Justice Ginsburg,” Markey said in a statement on Thursday. (As Senate majority leader, McConnell blocked President Barack Obama from filling the vacant seat left by the death of Justice Antonin Scalia in 2016, offering the excuse that it was an election year. Trump nominated Gorsuch to fill this seat. McConnell then allowed for the seat vacated by the death of Justice Ruth Bader Ginsburg to be filled by Barrett just weeks before the 2020 election.)
Expanding the court has been championed by progressive advocacy groups like Demand Justice and Take Back the Court. However, most Democrats are wary about adding seats to the Supreme Court, and Republicans have shown their willingness to seize upon it as a campaign issue.
Democrats will likely lose their opportunity to pass legislation codifying Roe in the near future, as Republicans are structurally advantaged to retake one, if not both, houses of Congress. But with the filibuster in place—and support from all Democrats uncertain—the WHPA will likely stall in the Senate.
While Congress considers what actions to take, the law in Texas has already gone into effect. The measure bans abortions after six weeks of pregnancy, even though many women may not even know that they are pregnant at that point, and does not make exceptions for rape or incest. It also permits private citizens to sue abortion providers and anyone else who aids a woman attempting to obtain an abortion—including those who drive a woman to a clinic or provide financial assistance, and even potentially clergy or social workers who counsel women considering terminating a pregnancy. People who successfully sue an abortion provider could receive up to $10,000 and do not have to prove any connection to those they are suing.
The law’s opponents say that the ban violates the constitutional guarantee that states may not place an undue burden on women’s right to terminate their pregnancies before viability. Abortion rights advocates consider this decision an ill omen ahead of the court’s upcoming consideration of a Mississippi statute that outlaws most abortions after 15 weeks, which may result in a decision overruling Roe. Several Republican-led states have implemented increasingly restrictive abortion measures in recent years in the hopes of kicking lawsuits over the legislation up to the Supreme Court and receiving a favorable ruling from the conservative majority. State legislatures under Republican control may also now rush to implement laws similar to the one upheld in Texas; the president of the Florida state Senate told local station WFLA that “there is no question” the Florida legislature will consider a bill like the one in Texas in the upcoming legislative session.
President Joe Biden said in a statement on Thursday that he was directing his Gender Policy Council and the Office of the White House Counsel to take up the matter and see what the Department of Health and Human Services and the Department of Justice can do to “ensure that women in Texas have access to safe and legal abortions as protected by Roe.”
Meanwhile, multiple lawsuits challenging the Texas measure are underway. “This case is not over, and we will be continuing to fight in court until this law is struck down,” said Nancy Northrup, the president and CEO of the Center for Reproductive Rights, in a statement. Abortion rights groups are also expected to organize demonstrations against the Texas bill as well as other anti-abortion measures in the coming months.
In an interview with MSNBC on Tuesday, Senator Elizabeth Warren urged Americans to contact their representatives and advocate for enshrining abortion rights into law.
“Push your senators, push your representatives to say, ‘It is time that our elected representatives don’t just put in judges who are extremists, who don’t support what most Americans want. You get out there, pass the laws, protect Roe, make Roe the law of the land,’” she said.