The death of Roe v. WadeAnyone who cares about bodily autonomy or access to reproductive health care should feel this as a sharp right hook to their gut. The reaction from liberals to the left can be broadly divided into 2 camps. Second are those who are simply updating their usual “vote blue” spiel to add references to abortion.
I’m in the former camp. I want abortion rights to be preserved, now. The good news is that the Democrats have a plan. They have the votes. They have the power. All they need now is courage.
Let’s first look at how many Senate votes are availableAnd committed to at least some kind of nationwide abortion protections. The Democrats held one vote already, on the Women’s Health Protection Act, an expansive bill that sought to enact worthy new rights while also enshrining into law the central holdings of both Roe and Casey v. Planned Parenthood That vote failed in the Senate 49-51 (after passing in the House), with the Democrats losing corporate “centrist” Sen. Joe Manchin of West Virginia and gaining no Republicans.
There is an alternate bill that would gain not only Senator Manchin’s support but also that of the two Republicans who introduced it: Senators Susan Collins of Maine and Lisa Murkowski of Alaska. The Protection Act is more restrictive than that of the Reproductive Choice Act. It would establish nationally that no state may place an “undue burden” on anyone seeking to terminate a pregnancy before fetal viability, and would preserve post-viability protections for legal abortion if the life or health of the parent is threatened.
No question — the Choice Act is a problematicThe bill could possibly allow states to adopt abortion bans after only fifteen weeks. From a policy perspective the Protection Act is more comprehensive and would represent a positive move forward for abortion rights. But let’s get real. It is clear that the Choice Act would establish a legal system far superior to the horrifying alternative: an absolute and complete ban on abortion in. almost half the country. If this is what you can get, then we must take it.
How can we do it? We know the Choice Act has at least 52 votes in favor — all Democrats plus Senators Collins and Murkowski. Despite this, we know that the Senate does not have the votes necessary to end the filibuster. Without 60 votes, the bill will be filibustered. So… that’s it, right? Are we at a dead end?
Not quite. The Democrats still have a powerful weapon to force the Choice Act to pass the Senate, provided they are willing and able to exercise some political muscle. This weapon is reconciliation.
Here’s your quick reconciliation primer: For bills dedicated to budgetary issues — spending and taxing — Senate rules provide an easier way to passage. A simple Senate majority is necessary, and the bill cannot then be filibustered.
Bills moving through the reconciliation process are subject to what is colloquially known as the “Byrd Rule,” named after former Sen. Robert Byrd. Under the Byrd Rule, so-called “extraneous” provisions of budgeting bills — those not directly related to the nation’s budget — are, in theory, stricken.
The Byrd Rule has stalled Democrats twice in the Biden administration. One time when Democrats tried to increase the minimum wages and another time when they attempted to reform immigration. Both times, the Senate parliamentarian — who issues advisory opinions on Byrd Rule issues — opined that the provision in question was extraneous, and any change in revenue was “merely incidental” to the policy at issue.
Abortion is, of course, an economic issue and therefore a budgetary one, and a broad ban on it would devastate women and marginalized people’s ability to participate in the work force. A huge body of workThis conclusion is supported. Janet Yellen, Treasury Secretary, supported this conclusion last month. sounded the alarmWages will fall if abortion is illegalized in large swathes across the country. Poverty and unemployment will increase. To reduce it to raw dollars by banning abortion, tax revenue losses will occur in the tens of billions per year, as well substantially higher outlays to social welfare programs.
Further, it’s not only people who can give birth who are affected: Research shows that access to abortion substantially reduces child poverty, neglect and abuse and the anti-poverty effect continues throughout the child’s life into adulthood. This is a budgetary issue by any means.
To pass measures with a lower direct budgetary impact than protecting abortion, reconciliation has been used. Former President Bill Clinton used reconciliation to pass the Personal Responsibility and Work Opportunity Act, also known as “welfare reform,” which contained such tangential provisionsThis includes banning drug-related convictions from collecting food stamps, and mandating that states do a better task collecting child support. These laws had at best a vague connection with federal spending levels.
All this is to say, there is a non-zero probability that the parliamentarian would allow reconciliation to pass the Reproductive Choice Act. Even if the parliamentarian issued a negative opinion — it’s just that, an opinion, and one that can be overruledwithout any additional vote, by the Senate’s presiding Officer (Vice President Kamala Harris). Alternately the parliamentarian can be dismissed, which is possible through Trent Lott, Republican Majority leader. did in 2001 when rulings didn’t go the way he preferred.
President Joe Biden, bowing under progressive pressure, is to his credit. come out in favorA filibuster Carveout for Abortion Rights. That doesn’t help anyone now, with Senators Sinema (and Senators Manchin) firmly opposed to filibuster tweaking (and Senators CollinsAnd MurkowskiMirroring their objections. And of course, there’s no guarantee that even a theoretical future Democratic Senate would have the votes to eliminating the filibuster — remember, it’s not just Manchin and SinemaThose who are skeptical about taking this step.
If the Democrats are serious about protecting people’s right to manage their own reproductive destinies, reconciliation is the path they must take. It is not foolproof — but it’s got a real shot.
Unfortunately, Democrats seem determined not to act. The administration has already ruled out clinics on federal landAnd court packing. Nancy Pelosi, House Speaker quickly pivotedIn November, she asked for votes to continue her already tone deaf fundraising pitches that were sent less than an hours after the killing of the right-to-abortion. President Biden summed up the Democrats’ new mantra in a primetime address, throwing in the towel on any immediate legislative action and declaring, “This fall, Roe is on the ballot.” Sen. Amy Klobuchar was probably the bluntest, telling us that there was but “one answer” to restoring Roe, you guessed it, “VOTE.”
Democrats in Congress are dealing with the death RoeIt was more of a fundraising opportunity than a national emergency. They have been unable to think creatively and have not shown any willingness to cooperate. That’s why crowds of angry protesters are now chanting, “Democrats we call your bluff, voting blue is not enough.” That’s why young women are telling MSNBCTheir rights are more than just another fundraising opportunity.
The Democrats’ studied defeatism is unwarranted. Failing to take action on abortion now, and cynically keeping the issue alive for political advantage, would be a terrible betrayal to the party’s base and frankly, a craven, reprehensible moral calculation. Democrats must develop a spine and use the legal powers they have to codify the rights that they are entitled to. RoeThey must be made law before they lose power.