WASHINGTON — If the Supreme Court overturns or guts abortion rights in a major case that was argued Wednesday, the Democratic-led Congress is unlikely to have the votes to counteract it legislatively.
The fallback plan, Democrats say, is to take the issue to voters in the 2022 elections and argue that Republican victories in Congress and states could fuel restrictions on or even outlaw abortions.
“I think the country hasn't seen the rage of women speaking out,” said Rep. Jackie Speier, D-Calif., arguing that laws like Mississippi’s ban on abortions after 15 week are “intended to be misogynistic” and say nothing about the “responsibility of the impregnator.”
Rep. Pramila Jayapal, D-Wash., who has spoken about her harrowing decision in the past to end a pregnancy, said: “It's insulting, it's dangerous, and it's outrageous. And so I think it's going to mobilize people to go to the polls. You will see an outcry like you've never seen before.”
The House passed the Women’s Health Protection Act in September to codify abortion rights nationally. But the bill is likely to face a dead end in the Senate, where Democrats have a 50-50 majority and need 60 votes to defeat a probable Republican filibuster. The bill has only 48 Senate co-sponsors, with two Democratic exceptions, Joe Manchin of West Virginia and Bob Casey of Pennsylvania.
Senate Majority Leader Chuck Schumer, D-N.Y., said Wednesday that the House bill would get a vote in the Senate. “Abortion is a fundamental right. We will not let right-wing ideologies tell women what to do,” he said. “It won't be an easy fight, but we will not back down.”
Asked about Manchin’s position, a spokesperson said only that he hasn’t signed on to it and hasn’t indicated how he would vote if it were brought to the floor. A spokesperson for Casey, who personally opposes abortion, didn’t return messages seeking comment.
One Republican, Sen. Susan Collins of Maine, supports codifying Roe v. Wade protections into law but wants a narrower proposal than the Women's Health Protection Act, her office said.
Even if the Senate finds 50 votes to codify abortion rights, the filibuster is likely to stay. Manchin has been resolute against changing the rules to eliminate the 60-vote threshold or to create issue-based carve-outs. Sen. Kyrsten Sinema, D-Ariz., a co-sponsor of the abortion rights bill, strongly supports the filibuster rule and has opposed weakening it for certain issues.
“If the Senate doesn't act? Then we have November,” said Rep. Barbara Lee, D-Calif.
Lee added that dismantling Roe would “be a shock” to many people who don't know a world without abortion rights protections.
Lt. Gov. John Fetterman, the front-runner in the Democratic Senate primary in Pennsylvania, called on Democrats in a statement to “immediately scrap the filibuster and pass the Women’s Health Protection Act to protect abortion rights.”
A new era of abortion wars?
A Supreme Court decision is expected by the end of June, in the heat of the midterm elections. Oral arguments indicated that the six conservative justices on the nine-member court appeared willing to at least uphold the 15-week abortion ban in Mississippi, if not go a step further and overturn Roe v. Wade and its precedents.
Republican opponents of legal abortion sounded optimistic, particularly after conservative Justice Amy Coney Barrett replaced the late liberal icon Ruth Bader Ginsburg, who died in the waning stages of Donald Trump’s presidency.
“And after listening to the argument, I believe this could be the case that finally reverses the great injustice of Roe,” said Sen. Josh Hawley, R-Mo. “It may all come down to Amy Barrett.”
Such a decision would punt the issue to the political arena, giving states the chance to chip away at legal abortion and potentially handing Congress more power to outlaw it.
Surveys have found that a majority of Americans favor the right to terminate a pregnancy. An NBC News poll in August found that 54 percent of adults want abortion to be mostly or always legal, while 42 percent say it should be mostly or entirely illegal. Support was high among suburban voters and college-educated whites, two coveted demographics.
But the right to an abortion has appeared secure for decades, making some proponents complacent and leaving opponents of legal abortion more motivated to vote on the issue. Democrats are counting on backlash if the right is curtailed or ended to awaken voters in a cycle in which Republicans are historically favored to make gains.
A survey conducted by the Democratic Congressional Campaign Committee from Nov. 8 to 12, the results of which were viewed by NBC News, found that denying a Republican-controlled Congress the chance to outlaw abortion was one of the party's three strongest messages. It motivated core Democrats and gave the party's candidates an edge among swing voters.
“In the competitive House districts, this is a really powerful negative for House Republicans. They’re going to have to own it,” said Chris Hayden, a spokesman for the committee. “It works with swing voters and our base voters.”
Some Senate Democrats in swing states are also highlighting it.
Sen. Catherine Cortez Masto, D-Nev., a top Republican target next fall, took to the Senate floor to “sound the alarm” and warn that “there’s every reason to think that extreme justices on the Supreme Court are poised to either overturn Roe or fatally undermine it.”
She predicted that many states would quickly outlaw or restrict abortion.
“It’s even possible that a future Republican Congress would try to restrict abortion nationally,” she said.