Roe v. Wade: Can Congress pass a version of the landmark court opinion?

Senate Democrats will be introducing legislation to make abortion rights federal law, Senate Majority Leader Chuck Schumer, D-New York, said Tuesday.

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“It is my intention for the Senate to hold a vote on legislation to codify the right to abortion in law,” he said, calling it “a dark and disturbing morning for America” if the draft reflects the final ruling.

Schumer made the announcement after the news that a leaked draft opinion indicated the Supreme Court could soon overturn the 1973 Roe v. Wade decision that established the constitutional right to abortion.

The Supreme Court confirmed the authenticity of the draft. Chief Justice John Roberts said the court will investigate the leak.

However, it is unlikely that Democrats can pass such legislation in the Senate because they would need all the Democrats, the two independents who caucus with them, plus at least 10 Republicans to meet the 60 votes needed to pass such a bill.

In September, the House passed the Women’s Health Protection Act by a vote of 218-211. Every Democrat but one voted for the act while every House Republican voted against it.

The bill moved to the Senate, where in February it was blocked by a filibuster, as a motion to proceed on a vote on the bill was defeated 46-48. All the Democrats present, except for Sen. Joe Manchin of West Virginia, voted in favor of the bill.

No Republican present voted for it. Six senators were not there to vote.

“I think we need to once again bring the Women’s Health Protection Act up for a vote that would guarantee that Roe v. Wade would be the law of the land,” Sen. Amy Klobuchar, D-Minnesota, said Tuesday on CBS News.

“Our Republican colleagues have, very sadly for the women of America, been blocking that from coming up to a vote. But I believe we need to immediately call it up for a vote again.”

Republicans on Tuesday focused more on the leak of the draft report rather than the specifics of the document.

“If the leaked draft opinion reflects the final outcome, it is a decision I support. The sanctity of human life is a foundational American principle. Laws regarding abortion would now be returned to the people and their elected representatives,” Sen. Mitt Romney, R-Utah, said.

“The breach of the Court’s deliberative process, however, is an appalling affront against a critical institution and should be fully investigated and those responsible should be punished,” he added.

How would codifying Roe work?

Following the failure of the Women’s Health Protection Act, Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska introduced a bill that would make the protections offered by the 1973 Roe v. Wade ruling the law.

The Reproductive Choice Act would embrace what the courts allowed with Roe and would “provide reassurance to women that the reproductive rights they have relied on for nearly 50 years will continue to be the law of the land,” Collins wrote.

President Joe Biden on Tuesday also called for Congress to codify Roe v. Wade, saying that “if the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”

Why can’t the Senate pass a bill that would codify Roe v. Wade?

When a bill is coming up for a vote, the majority leader calls for “unanimous consent,” by asking if any of the 100 senators object to ending the debate on the bill and moving on to a vote.

If no one objects, the Senate proceeds to a vote. If someone objects, the leader will file a “cloture” motion. A cloture motion is a call to end debate on a bill and places a time limit on the debate.

It takes 60 votes to adopt the cloture motion. If there are not 60 votes to support a cloture motion, then the measure has been filibustered and it dies.

Some in the Senate have talked about eliminating the filibuster.

On Monday, Sen. Bernie Sanders, I-Vermont, urged Senate Democrats to eliminate the filibuster so a bill on reproductive rights could move through the Senate.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,” he tweeted on Monday evening.

Democrats Manchin and Sen. Kyrsten Sinema, D-Arizona, have in the past said they will not support setting aside the filibuster. In addition to most other Republicans, Collins and Murkowski say they oppose weakening the 60-vote threshold.

Senate Minority Leader Mitch McConnell, R-Kentucky, said Tuesday that Republicans would support the legislative filibuster if abortion rights were to be overturned by the Supreme Court.

How would you eliminate the filibuster rule?

The most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22, the cloture rule that requires 60 votes to end a debate on legislation.

However, to end a debate on a resolution that changes a Senate rule requires two-thirds of the members to be present and voting.

It is unlikely those numbers can be reached to make a change to a Senate rule.

Another way to change the rule on filibusters is to create a new Senate precedent. This option, sometimes called the nuclear option, can come about by a senator raising a point of order. If the presiding officer agrees with the point of order, that ruling establishes a new precedent.

The Senate has done this twice in recent years. In 2013 and 2017, the Senate used the nuclear option to reduce the number of votes needed to end debate on certain nominations.

However, most Republicans express no interest in changing the Senate rule.