May 10, 2022

Democrats should take the Murkowski-Collins abortion bill

They are choosing posturing over legislating (and real pressure).

I'm Isaac Saul, and this is an excerpt from Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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In the wake of the Roe v. Wade opinion leak, which revealed that the Supreme Court is ready to overturn its previous rulings on abortion rights, the political blowback has been swift. Protesters have gathered outside the homes of Supreme Court justices, members of Congress have proposed bills to codify abortion rights, and state legislatures have, depending on the state, moved to enshrine (or restrict) legal abortion before the ruling comes down.

Late last week, Republican Senate Minority Leader Mitch McConnell told reporters it was "possible" his caucus could move on a nationwide abortion ban if they took control of Congress in the midterms, although he (and other Republican senators) shot the idea down in subsequent interviews. Yesterday, McConnell backtracked, and also ruled out ending the legislative filibuster (which requires 60 votes to pass major legislation) to pass abortion restrictions, telling Politico "I will never support smashing the legislative filibuster on this issue."

Instead, Republicans insist they want to leave the issue to the states and have mostly avoided any victory laps on the potential end of Roe v. Wade as they wait to see what the final Supreme Court ruling looks like once it is released towards the end of the Court’s term in June. Whether that is a political calculus or apprehension about the pending nature of the ruling is something we’ll find out later this year.

Democrats, meanwhile, are forcing a vote on legislation now, even though they expect to fail on the federal level. Sen. Richard Blumenthal (D-CT) introduced the Women's Health Protection Act of 2022 (WHPA), which Senate Majority Leader Chuck Schumer (D-NY) said will be brought to the floor for a vote this week. Schumer is hoping to get every senator on record in what Democrats expect will create valuable political talking points heading into the midterms.

If passed, the Women's Health Protection Act would cement a sweeping right to access and perform abortions into federal law and would supersede nearly all state laws banning or limiting abortions. It would ban states from prohibiting abortion services before or after fetal viability if a health care provider determines the pregnancy poses a risk to the patient's life or "health." It would prohibit burdensome rules restricting access to abortions, like waiting periods and ultrasound requirements. At least 33 states require patients to receive counseling before an abortion, and 14 require it in person, a practice the bill would end.

The bill would also prohibit governmental measures that restrict access to abortion services unless a state government can prove the measure significantly advances the health of patients or safety of abortion services. It would allow the Department of Justice, abortion providers, or individuals to file lawsuits against violations of the bill, regardless of whether the abortion restrictions came before or after the law was implemented. In some cases, the bill could also override religious exemptions for hospitals and health care providers, forcing them to provide abortion services.

The bill passed the House in February by a vote of 218-211, with every Democrat except Henry Cuellar of Texas voting in favor and Republicans unanimously opposing it. Shortly thereafter, it failed in the Senate (46-48) after a Republican filibuster, with six senators missing the vote.

Right now, the WHPA has 48 Democratic sponsors in the Senate, with Sens. Joe Manchin (D-WV) and Bob Casey (D-PA), who both describe themselves as pro-life, opposing the bill. Republican Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), who support abortion rights, say they're opposed to the bill because it overrides state law and have proposed their own narrower piece of legislation.

I'm of two minds on the Democrats' proposed legislation.

On the one hand, I understand their sense of urgency and desire to just do something. As I wrote last week, Roe v. Wade being struck down would be a frightening turn of events for many different reasons. That’s my personal view, but also one shared by many Americans. Democrats, who represent most pro-choice Americans, can't simply sit around and do nothing, especially while they have a majority. Bringing forward a federal bill that has already passed the House is not the worst idea. And this bill does precisely what Democrats say: It protects the right to abortion in nearly all cases across the country, and would amount to a sweeping solidification of a woman's right to choose — one that goes far beyond current law.

On the other hand, politically, this seems like one of the worst decisions possible. As I've noted before, abortion polling is really messy. I could make a good argument that the current state of abortion law — where it is broadly protected as a right early on in pregnancies while some states have created significant burdens to having one — is actually pretty much in line with American sentiment.

But there is very little indication that a bill essentially green lighting all abortion nationally would be popular. Most Americans support some abortion restrictions in the second and third trimester (just 28% of Americans say abortion should be “generally legal” in the second trimester). That means even Americans you might think of as “pro-choice” are probably not going to be supportive of a bill that would essentially prevent any state legislation from restricting access in any way. Even less popular is a law that would supersede nearly all state restrictions and force religious-affiliated hospitals into performing abortions. Predictably, Republicans are already having a field day with this bill, and I suspect their message is going to be received well by voters in the middle of the issue.

It's especially confounding when you consider there is another bill with two Republican votes on board — one that may be able to win over Democratic Sens. Manchin and Casey. Some Democrats have argued that either bill will fail, so they are reluctant to join hands with Republicans and would rather mark the distinction between the two parties. That’s certainly, um, an angle to choose.

But choosing a bill failing 48-52 with two members of your own party objecting is a bizarre strategy when you could rally behind a bill that has the potential to grab a 52-48 majority, with every member of your caucus on board and support from two Republicans. On top of that, the Murkowski-Collins bill does essentially protect abortion rights as they exist now, a la Roe v. Wade in a democratic fashion, which is simple enough messaging.

In other words: Democrats are opting for political posturing over actually legislating, even when the latter option neatly fits into their desire to once again highlight a time when the legislative filibuster is stopping them from passing what would be broadly popular legislation. I'm uncertain why they wouldn't take this opportunity to add fuel to that fire.

Even worse, there are real questions about whether the WHPA would even be legal or survive Supreme Court scrutiny (I'm skeptical). Gov. Whitmer's approach, to file a lawsuit in her own state and try to leverage the state's Supreme Court to enshrine abortion rights, is novel and clever, but there are a limited number of states where it will work. I'll be curious if other Democratic governors follow suit.

As Weissmann pointed out, there are few good options on the table for Democrats if this ruling comes down even remotely close to what was in the leaked draft. What Democrats really need is a majority of Supreme Court justices, but that is decades away. Or they need 60 Democratic senators, which seems nearly impossible thanks to the institutional advantage Republicans have in the Senate. Or they need control of more state legislatures, but they appear to be losing power in most purple and red states — not gaining it. Of course, they could also try to abolish the filibuster, which they don’t have the votes in their party to do, and which wouldn’t help them pass the WHPA anyway.

None of this is to imply Democrats should do nothing. If (or when) Republicans take control of Congress and the White House, there is good reason to believe they'll push for a nationwide abortion ban, even if they're saying right now that they won't. Antiabortion activists are already calling for such a ban, the draft from Alito seems to leave the door open for one, and 19 senators and more than 100 Republican representatives have already cosponsored legislation that would grant legal personhood from conception.

Like the WHPA, all of this would be an affront to many Americans who are generally moderate on this issue, so if Democrats want to simultaneously take the political high ground and align themselves with the moral compass of most Americans, they should embrace the Murkowski-Collins bill while throwing whatever else they can against the wall and hoping something sticks.

This is an excerpt from Tangle, and independent and non-partisan politics newsletter that summarizes the best arguments from across the political spectrum. You can subscribe to our newsletter below and read the full article here.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.