IE 11 is not supported. For an optimal experience visit our site on another browser.

Democrats face few options to preserve abortion rights after Supreme Court decision

New legislation has a path in the House but is likely to hit a dead end in the Senate.
Image: Nancy Pelosi
Speaker Nancy Pelosi, shown in June, said Thursday that the House would vote on the Women’s Health Protection Act when it returns from summer recess.Alex Wong / Getty Images

WASHINGTON — Democrats are planning a new push to codify abortion rights protections into federal law after the Supreme Court allowed a Texas law banning most abortions to stand, but it's unclear how effective the effort will be.

"Upon our return, the House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America," House Speaker Nancy Pelosi, D-Calif., said Thursday in a statement.

She blasted the Supreme Court's 5-4 order as a "cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health," saying that the Texas law "necessitates codifying Roe v. Wade."

The legislation has a path to passage in the Democratic-controlled House. But it is likely to hit a dead end in the Senate, where Democrats control the floor with 50 votes and would need to defeat a Republican-led filibuster.

There are 48 sponsors of the Women's Health Protection Act in the Senate — all of them Democrats. The two exceptions are Sens. Joe Manchin of West Virginia and Bob Casey of Pennsylvania.

Two Republicans — Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — have a record of supporting abortion rights.

“I oppose the Court's decision to allow the law to remain in effect for now while these underlying constitutional and procedural questions are litigated,” Collins said Thursday in a statement.

“I’ve cast votes on seven of the nine justices on the Supreme Court. Of those I’ve voted to confirm, three voted with the majority and three voted with the minority. The one I voted against voted with the majority.“

Even if the Senate secures a majority to advance the bill, getting 60 votes is extremely unlikely.

Sen. Kirsten Gillibrand, D-N.Y., called for nuking the filibuster if it stands in the way.

Democrats would need all 50 of their members on board to abolish the filibuster. Two of them — Manchin and Sen. Kyrsten Sinema of Arizona — are outspoken supporters of the 60-vote rule. (Sinema is a co-sponsor of the Women's Health Protection Act.) The pair have held firm in favor of the filibuster rule and it's unclear whether the abortion battle will sway either of them.

A Senate Democratic aide, speaking on the condition of anonymity to discuss a sensitive subject, noted that progressives have used the filibuster under prior Republican majorities to block anti-abortion legislation.

Progressives are also pushing for expanding the Supreme Court, which now has a 6-3 conservative majority after then-President Donald Trump appointed three justices, predicting in 2016 that his nominees would vote to overturn Roe v. Wade.

Rep. Mondaire Jones, D-N.Y., called the court's order "unsurprising" and added that it underscores the need to add seats "in order to preserve fundamental rights and liberties."

Jones is an original co-sponsor of the Judiciary Act of 2021, which would expand the court from nine to 13 seats and enable President Joe Biden to appoint four justices. But that bill doesn't have support from Democratic leaders and lacks the votes to pass in either chamber.

Jones conceded that the bill "does not currently have a majority" in terms of co-sponsors, but said some of his colleagues are "finding the political courage" to support it.

If they fail to add seats, he said, "the future is bleak and dystopian — it is one of minority rule by an extremist demographic in the U.S. with outsize representation on the Supreme Court."

"Democrats should no longer continue to bring knives to gun fights," Jones told NBC News. "We can pass a statute that codifies Roe v. Wade, but we should not fool ourselves that the Supreme Court would not undermine that duly enacted statute, as the court is currently constituted."