Senate fails to advance bill protecting abortion rights ahead of Supreme Court decision

The Senate on Wednesday failed to advance a bill bolstering abortion rights nationwide, with all Republicans and one Democrat tanking the Democratic-led effort to protect abortion access on the federal level after a draft Supreme Court opinion indicated the high court may overturn Roe v. Wade.

The procedural vote failed, as expected, by a vote of 49 to 51, with Democratic Sen. Joe Manchin of West Virginia joining all 50 Republicans in opposing the effort to move the bill, called the Women's Health Protection Act, forward. Vice President Kamala Harris presided over the vote.

Democratic leaders pressed ahead with the test vote even as it was evident they would fall short of the 60-vote threshold needed to overcome a filibuster. With an eye toward November's midterm elections, Schumer argued the need to bolster abortion rights at the federal level is too urgent to ignore.

"This is not a theoretical exercise, oh no. Protecting the right to choose at this critical moment is one of the most consequential votes we could possibly take, and the American people are watching," Schumer said on the Senate floor just before the vote. "The public will not forget which side of the vote senators fall on today, they will not forget who voted to protect their freedoms, and they will not forget those responsible for the greatest backslide of individual liberties in half a century."

Despite the margins in the evenly divided Senate presenting obstacles for advancing the legislation, Schumer announced last week the Senate would vote to move the bill forward days after the draft majority opinion from the Supreme Court was leaked and published. 

"This failure to act comes at a time when women's constitutional rights are under unprecedented attack – and it runs counter to the will of the majority of American people," President Biden said in a statement moments after the vote. "To protect the right to choose, voters need to elect more pro-choice senators this November, and return a pro-choice majority to the House. If they do, Congress can pass this bill in January, and put it on my desk, so I can sign it into law."

Manchin confirmed earlier Wednesday he would vote against the bill, saying its provisions go further than simply writing Roe v. Wade into law. The West Virginia senator was the sole Democrat to join Republicans in blocking the measure when it was taken up by the Senate in February, and he told reporters ahead of Wednesday's vote that he would support legislation that solely enshrines Roe's protections, which he said would be the "reasonable, rational thing to do."

"Make no mistake, it is not Roe v. Wade codification," he said of the Women's Health Protection Act. "It is an expansion. It wipes 500 state laws off the books, it expands abortion, and with that, that's not where we are today. We should not be dividing this country further than we're already divided, and it's really the politics of Congress that's dividing the country."

Another Democrat who opposes abortion, Sen. Bob Casey of Pennsylvania, announced Tuesday he would vote to advance the measure and support the bill if there is a vote on final passage. The House passed the bill along party lines in September.

Even in the face of the GOP's unified opposition, Schumer said the possibility that the Supreme Court reverses its 1973 decision in Roe warranted an immediate response by the upper chamber.

"Americans strongly oppose getting rid of Roe, and they will be paying close attention from now until November to Republicans who are responsible for its demise," the New York Democrat said earlier Wednesday. "So, to my Republican colleagues who have spent the last week trying to talk about anything other than Roe, it's time to go on record. I ask my colleagues to think carefully about their vote, and to reckon deeply about the consequences of a world where Roe is a thing of the past."

The White House supported passage of the bill and said in a statement that it's "evident that the constitutional rights protected for nearly 50 years are now in severe jeopardy."

"The urgency to protect women's health, their fundamental right to control their reproductive choices, and the freedom of all people to build their own future has never been greater," the White House budget office said.

The Women's Health Protection Act would ensure access to abortion across the country, free from many restrictions enacted already by states, and prohibit certain limits on providers. But two Republican senators who support abortion rights, Susan Collins of Maine and Lisa Murkowski of Alaska, opposed the measure because of its breadth.

Instead, the pair have introduced their own, more tailored legislation that would enshrine into federal law protections established under Roe and Planned Parenthood v. Casey, the 1992 Supreme Court decision that reaffirmed Roe's central holding and said states cannot enact restrictions that impose an undue burden on a woman's right to an abortion before fetal viability.

Asked last week why he is not considering the GOP senators' proposal, Schumer told reporters Democrats "are not looking to compromise on something as vital as this."

Echoing criticisms about the scope of Democrats' abortion access bill, Senate Minority Leader Mitch McConnell called it "extreme and radical."

"It ignores modern science. It is tone-deaf to public opinion," he said on the Senate floor before the vote. "Nothing about their bill merely codifies the current case law on this issue. Their extreme proposal goes way, way beyond codifying the status quo."

Disclosure of the draft opinion last week sent shockwaves throughout the nation, sparking protests in major cities and outside the homes of several Supreme Court justices in the Washington, D.C.,-area. The document, written by Justice Samuel Alito and confirmed by the court as authentic, was circulated among the justices in February and indicated a majority of the court had voted to overturn Roe, which legalized abortion nationwide.

While the Supreme Court said the document did not represent a decision or the final position of its members, Politico reported Wednesday that Alito's opinion remains the court's only circulated draft in the pending case involving a Mississippi law that bans abortion after 15 weeks of pregnancy. None of conservative justices who sided with Alito initially – Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – have changed their votes, according to Politico.

The justices are set to meet for a closed-door conference Thursday, their first since the bombshell leak, which Chief Justice John Roberts called a "betrayal of the confidences of the court."

If the Supreme Court strikes down its 1973 decision in Roe, at least half the states are certain or likely to curtail abortion access, according to the Guttmacher Institute, a research organization that supports abortion right.