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Biden says he supports an ‘exception’ to the Senate's rules to allow Democrats to pass abortion protections

The president said at a news conference in Madrid that he would support carving out the Senate's 60-vote threshold to pass most legislation to protect the right to privacy.

WASHINGTON — President Joe Biden said Thursday that he would support making an exception to the Senate's rules to codify Roe v. Wade's protections for a woman's right to an abortion and privacy rights.

"I believe we have to codify Roe v. Wade into law. And the way to do that is to make sure that the Congress votes to do that, and if the filibuster gets in the way, it's like voting rights, it should be ... an exception ... to the filibuster for this action to deal with the Supreme Court decision," Biden said at a news conference in Madrid when he was asked whether he would declare a public health emergency in response to the Supreme Court's ruling overturning the landmark 1973 decision.

The Senate’s filibuster requires 60 votes to pass most pieces of legislation. Progressive Democrats have been pushing to eliminate the filibuster to pass major pieces of Biden’s agenda.

Asked to clarify his position further Thursday, Biden said he would support making an exception to the filibuster to protect the right to privacy; that right was central to the Supreme Court’s decision in favor of abortion rights in Roe v. Wade.

Biden's comments signal that his view of the filibuster is shifting. Biden, a longtime senator from Delaware, had defended the rule, arguing that it's integral to how the upper chamber operates and that it is part of its tradition. In March 2021, Biden said he would support a "talking filibuster," which would change the rule to require a senator to talk on the floor to block legislation. A few months later, in July, Biden again stood by the filibuster, saying at a CNN town hall that getting rid of it would spark "chaos" in Congress and that "nothing at all will get done."

When a draft of the Supreme Court's opinion to reverse Roe was leaked in early May, Sen. Bernie Sanders, I-Vt., for example, called for ending the filibuster to codify the right to an abortion so it could pass with a simple majority.

It's not that simple, however. Democrats likely don't have 50 votes anyway to make that a reality.

Moderate Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona remain opposed to getting rid of the filibuster, and neither of them has joined Democratic colleagues in calling for a carve-out to codify Roe v. Wade.

When Democrats controlled the Senate in 2013, they invoked the "nuclear option" to get rid of the 60-vote filibuster to confirm executive branch nominees and judicial nominees other than those for the Supreme Court. In 2017, Senate Republicans did it for Supreme Court nominees to confirm President Donald Trump's pick Neil Gorsuch without Democratic votes.

In January of this year, Biden said he supported adding an exception to the filibuster to allow passage of federal voting rights legislation. At the funeral of Rep. John Lewis, D-Ga., the civil rights icon, former President Barack Obama called for getting rid of the 60-vote threshold to pass voting rights legislation, calling the filibuster a "Jim Crow relic."

House Democrats, meanwhile, are considering legislation to protect women’s intimate and personal data, to make it clear that Americans have a "right to travel freely and voluntarily" and to pass the Women’s Health Protection Act, which would protect abortion rights, again.

Since the Supreme Court released its opinion last week overturning Roe, Biden and other top Democrats have made it clear that abortion is on the ballot in November’s midterm elections, urging Democrats and supporters of those rights to turn out and vote.