The Senate votes today on codifying Roe v. Wade. While there are bipartisan proponents for the concept, window-dressing disagreements unrelated to women’s rights dim the prospects for passage.
The House has already adopted a bill that would preserve Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey. Senatorial give-and-take to preserve the right to choose would be easy if Republicans Susan Collins and Lisa Murkowski were truly committed to women’s right to choose.
Two competing Senate bills afford an opportunity for compromise to protect Roe and Casey. Those settled Supreme Court decisions are in imminent jeopardy, as was confirmed by the leak last week of a draft majority opinion by Justice Samuel Alito overturning them.
The dueling bills contain two differences in language with no real-world consequences. Underlying the conflict is a more real disagreement: the filibuster. More on that after looking at why the variations in language are so superficial.
One Senate bill is sponsored by Collins and Murkowski. It expressly incorporates the Supreme Court’s standard in Casey: “A State may not impose an undue burden on the ability of a woman to choose whether or not to terminate a pregnancy before fetal viability.”
The Democrats’ proposal invalidates “any abortion ban or restriction before viability.” The differing Collins-Murkowski language, Democrats argue, would allow the Supreme Court to permit abortions to be restricted after only 15 weeks, as Mississippi’s statute does, rather than the current viability standard of approximately 24 weeks.
But wait. Without congressional legislation, the Supreme Court is about to allow states to ban all abortions. And Democrats have not been paying attention if they think their bill’s language would prevent the Court from upholding Mississippi-type statutes. Why fight over next to nothing?
The second difference is that the Collins-Murkowski bill includes an express provision shielding medical providers with religious objections to abortion: “Nothing in this Act shall be construed to have any effect on laws regarding conscience protection.”
Collins says she won’t support the Democrats’ bill because it “does not protect . . . Catholic hospitals.” Schumer says that any assertion that his bill jeopardizes their rights is false.
Goodness, with or without the Collins-Murkowski language, this Supreme Court majority is certain to allow Catholic medical providers to refuse to perform abortions. In the last year, the Court has upheld the constitutional rights of Catholic Philadelphia foster agencies to refuse to provide services to LGBTQ couples and struck down California COVID-19 crowd size restrictions against those conducting religious services.
Again it looks like the two sides are shadow-boxing.
That brings us to the real disagreement: Collins’s and Murkowski’s apparent opposition to creating a “carve-out” in the filibuster, which requires 60 votes to pass a measure.
Such a carve-out would not, as Collins has said previously, “irreparably harm the Senate” any more than the Senate was harmed by more than 100 previous carve-outs.
A Collins’s spokeswoman announced last week that the Senator has not changed her position. If that is the case for her and Murkowski, Democrats have no incentive to compromise. Even if they wholly accepted the Republican senators’ bill, it would not become the law.
Notwithstanding research showing that banning abortion would raise pregnant women’s deaths by more than 20%, it looks like reproductive freedom is not important enough for the two Republican senators to make an exception. If it were, they have a ready explanation.
Let’s start with Collins. Following the Alito opinion leak, she was the subject of severe, renewed criticism for having voted to confirm Neil Gorsuch and Brett Kavanaugh. Collins defended herself by suggesting that she got hoodwinked. She stated that the draft decision is “completely inconsistent with what [they] said in their hearings and in our meetings.”
Collins going all-in on legislation codifying Roe would prove wrong her skeptics who say she doesn’t put her vote where her pro-choice mouth is.
Murkowski is in a similar boat. She stated that the draft decision overturning Roe “was not . . . the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”
Murkowski, too, has reason to prove that her support for women’s reproductive freedom is more than a fig leaf. Her vote for Amy Coney Barrett came despite the now-Justice having said in her confirmation hearings that Roe is “not a case that everyone has accepted,” having joined lower court dissents that signaled her antipathy to abortion, and having signed a letter advocating the end of Roe.
These facts have created an enormous credibility gap for Murkowski and Collins. Their votes for a filibuster “carve-out” would close the gap and ensure that Roe and Casey remain the law of the land, regardless of what Democratic filibuster-supporters Joe Manchin and Kyrsten Sinema do, especially with Democratic Pennsylvania Senator Bob Casey just announcing that he would support Schumer’s bill.
Unless Collins and Murkowski are willing to codify Roe and vote to exempt the bill from the filibuster, the Republican senators’ claims that Supreme Court nominees misled them will look as hollow as a drum banged a few hundred times too many. Their votes today will likely tell us that they care more about staying in step with McConnell’s Marching Band than about protecting women’s reproductive freedom.