The Senate’s doomed vote on abortion rights, explained

Protesters carry a banner that reads “Repro freedom for all.”
Abortion-rights advocates march in the street to stage a protest outside the house of Supreme Court Associate Justice Samuel Alito in the Fort Hunt neighborhood of Alexandria, Virginia, on Monday, May 9, 2022. | Kent Nishimura/Los Angeles Times via Getty Images

Why the Senate is voting on an abortion bill that’s sure to fail.

In March, a Senate vote on an abortion rights bill failed 46-48. This week, lawmakers are about to take the same vote, and ultimately get a similar outcome.

The new vote, however, comes nine days after a bombshell report from Politico revealed that the Supreme Court could be on the verge of overturning Roe v. Wade. Because of this report, Democrats see a vital need to vote on the issue again, underscoring where they — and vulnerable Republicans — stand ahead of the midterms.

“People in our country need to know where we all stand on the issue of protecting a woman’s right to control her own body. That’s it,” Sen. Mazie Hirono (D-HI) told Vox.

This week’s vote will be the second on the Women’s Health Protection Act (WHPA), which would guarantee providers’ ability to perform an abortion and individuals’ right to access one. It’s widely expected to fail, given the filibuster and internal divides among Democrats about abortion rights. While Sen. Bob Casey (D-PA), a longtime holdout on abortion rights legislation, has announced that he’ll back the bill, Sen. Joe Manchin (D-WV) still hasn’t indicated where he stands.

Because it probably won’t pass, the vote is meant to rally the Democratic base while giving Democrats ammunition to use against Republican challengers in the 2022 midterms.

“Republicans have made their position clear: They want to end abortion,” says Sara Spain, a national press secretary for advocacy group Emily’s List. “The WHPA vote is yet another reminder that Democrats stand with the voters and our rights while Republicans are on the other side.”

Already, candidates in battleground states like Wisconsin and New Hampshire have cited Republicans’ stances on abortion in campaign ads. Democrats have seized, too, on comments Senate Minority Leader Mitch McConnell recently made signaling openness to a national abortion ban, and used them as an example of why it’s important for Democratic voters to show up this November. Democrats also hope this vote will show voters that they are trying to pass protections on the issue.

“Republicans will have two choices. They can own the destruction of women’s rights, or they can reverse course and work to prevent the damage,” Senate Majority Leader Chuck Schumer said in a speech last week.

What the bill would do

The Women’s Health Protection Act would enshrine into federal law the right to access and perform an abortion, and it would supersede state laws on the issue. It would effectively neutralize laws in 19 states that have sought to severely curb access to abortion or ban it altogether.

Specifically, the act would bar six-week and 20-week bans on abortions. It would also prohibit policies, like ultrasound requirements and waiting periods, that attempt to make it more burdensome to obtain an abortion. The legislation’s text makes it clear that it’s a direct response to what the bill’s sponsors say are more than 500 state and local laws limiting abortion access implemented in some way since 2011.

Such restrictions have disproportionately harmed low-income people — particularly Black and Hispanic people — who are already less likely to have health care coverage for abortions, and who face more obstacles accessing alternative options if their states erect barriers.

While the WHPA would provide sweeping abortion protections, it wouldn’t supersede laws addressing insurance coverage for abortions. There have been strict limits on Medicaid coverage of abortions because of the Hyde Amendment’s restrictions on the use of federal funding for such health care. Democrats had hoped to get rid of the rule, which typically hitches a ride on appropriations legislation, but couldn’t get the Republican votes they needed to do so.

Why Democrats haven’t been able to pass the bill

Democrats face two challenges when it comes to passing an abortion rights bill in Congress: the Senate filibuster and their own disagreements on the issue.

Due to the legislative filibuster, most bills need 60 votes to pass, meaning Democrats would have to get their entire caucus on board and 10 Republicans to join them. Even with Casey’s support — and even if Manchin votes yes — 10 GOP senators voting to protect abortion rights is not going to happen.

Another option would be to overturn the filibuster. They’d need all 50 members on board to eliminate the filibuster on any bill, backing they don’t currently have for any issue since Manchin and Sen. Kyrsten Sinema (D-AZ) have opposed it. It’s an even longer shot with abortion rights, seeing as Democrats aren’t unified on legislation codifying Roe.

In the past, Manchin has voted against proceeding to a vote on the Women’s Health Protection Act, though he hasn’t yet revealed where he stands now.

Theoretically, there’s a third option: get a couple of pro-abortion rights Republican senators to join with 48 or 49 Democratic senators to overturn the filibuster to then pass a law codifying Roe. Two Republicans — Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) – are in favor of abortion rights, but they aren’t on board with the Women’s Health Protection Act, arguing it’s too expansive and noting it supersedes certain laws they support.

They’ve proposed an alternative bill that seeks to codify the protections offered by Roe and Planned Parenthood v. Casey. Their bill would ensure that states can’t place an “undue burden” on people seeking an abortion, though it would give states more leeway to impose their own limitations.

Neither has signaled that they’d be willing to eliminate the filibuster to pass legislation codifying Roe, however.

Though the support of Collins and Murkowski wouldn’t get 60 votes, there has been pressure on Schumer to consider that bill to make the vote bipartisan. (Sen. Tim Kaine (D-VA) has also said he’s working with both Senators on another possible version of the bill.)

Schumer, however, has opted to focus on Democrats’ version and argued that lawmakers shouldn’t compromise on the issue. Strategically, voting on the WHPA will allow Democrats to say all Senate Republicans voted against abortion protections, helping them underscore the broad Republican opposition on the issue during the midterms.

Sen. Richard Blumenthal (D-CT), the sponsor of Democrats’ bill, also says Collins and Murkowski’s bill falls short. “The other bill offers no protection,” he told Vox. “It permits states to impose bans using the loopholes and gaps in that law.”

This vote is about messaging for the midterms

Because of the obstacles they face in Congress, Democrats are looking to the midterms as their main recourse to protect their majority — and take action down the line.

Candidates have already started focusing on abortion rights in major Senate races like New Hampshire, Nevada, and Wisconsin, hoping to rally voters since polling has repeatedly shown that most Americans support Roe v. Wade. This doomed vote, ultimately, is intended to motivate Democratic voters, and to reach potential swing voters who think Republicans’ approach to the issue is too extreme.

This cycle, Senate Democrats are defending four incumbents in swing states: Sens. Mark Kelly (AZ), Raphael Warnock (GA), Maggie Hassan (NH), and Catherine Cortez Masto (NV), while Republicans are defending the seats of incumbent Sens. Ron Johnson (WI) and Marco Rubio (FL), as well as open seats in Ohio, North Carolina and Pennsylvania.

Across these races, abortion is becoming a flashpoint. “The Republican men — and yes they are all men — running against me are all pushing an extreme, anti-choice agenda,” Sen. Maggie Hassan (D-NH) tweeted last week. Cortez Masto, too, has called out her opponent, former Nevada Attorney General Adam Laxalt, as “an automatic vote for legislation punishing women for seeking an abortion,” if he were elected. And Wisconsin Democratic candidate Sarah Godlewski has stressed Johnson’s past support for the state’s abortion ban, which would be reinstated if Roe falls.

“Voters won’t forget how anti-choice Republicans in the Senate like Ron Johnson and Marco Rubio helped bring about this crisis — or that they refuse to stand up for their constituents’ freedom to make their own decisions about their families and futures,” says NARAL Pro-Choice America acting communications director Ally Boguhn.

As Axios has reported, Republican candidates in swing states including Georgia, Pennsylvania, North Carolina, New Hampshire, Florida, and Ohio have expressed strong support for abortion bans with limited exceptions.

Democrats have been tying these candidates to the comments McConnell made about the possibility of passing a national abortion ban if Republicans have control of both chambers of Congress as well. They see this week’s vote as adding to the argument they’re making about the differences between the two parties on the issue — and the importance of electing even more Democrats to the Senate.