Last week, Politico published a draft Supreme Court opinion that would overturn Roe v. Wade and Planned Parenthood v. Casey and end 50 years of constitutional protections for the right to choose. The decision, written by Justice Samuel Alito, would leave it up to state legislatures to regulate and criminalize abortion as they see fit. Given that Republicans control a disproportionate number of state legislatures, the practical effect of this result would be to deny essential healthcare to millions of people.
Unless Congress takes action. The Women’s Health Protection Act would protect the right to access abortion across the country, codifying the right to choose that the Court announced in Roe. Last September, the Act passed the Democratic-controlled House of Representatives by a 218-211 vote.
In a 50-50 Senate that Democrats control only by virtue of Vice President Kamala Harris’s tie-breaking vote, however, the legislation has ground to a halt. Neither West Virginia Senator Joe Manchin nor Pennsylvania Senator Bob Casey signed on to the Senate version of the bill, which has 48 co-sponsors. In a February vote to move the bill forward, Democrats were only able to wrangle 46 votes. California Senator Dianne Feinstein, Georgia Senator Raphael Warnock, and New Mexico Senator Ben Ray Lujan were not present. West Virginia Senator Joe Manchin voted no.
The Dobbs leak, however, underscored the urgency of the moment. Days later, Casey announced that he’d vote for the WHPA, noting that “circumstances around the entire debate on abortion” had changed in the interim. On May 11, Senate Majority Leader Chuck Schumer again held a vote to advance the WHPA; again, it failed, 51-49. All 50 Republicans opposed it; Manchin was the lone Democrat to join them.
Even if Democrats were united on substance, there remain procedural hurdles to codifying Roe: The Senate filibuster, which requires that a supermajority of 60 senators agree to end debate on a bill, would prevent the WHPA from going forward. By simple majority vote, Democrats could modify the filibuster to force a vote on the WHPA. To date, though, they have been unwilling to do so, for the WHPA or for any other major progressive legislation.
With the midterm elections looming, unless Democrats take action now to protect the right to choose, that right could disappear very soon. Unless you think Democrats are going to win a 60-senator, pro-choice, filibuster-proof majority anytime soon, a 50-something-senator pro-choice Democratic majority that is willing to amend the filibuster is the only way forward for abortion rights.
The WHPA’s passage would not necessarily end the conservative assault on abortion rights; if the WHPA were to become law, this Court’s 6-3 conservative supermajority is likely to find a reason to strike it down. But a presumed legal challenge does not mean Democrats should abandon one of the party’s ostensibly bedrock values altogether. Besides, the benefits of a theoretical filibuster-free Senate would extend beyond any particular piece of legislation: Without this archaic 60-vote requirement in place, Democrats would have the ability to take on meaningful Supreme Court reform proposals, too, if only they can summon the courage to do so.
In the wake of the Dobbs leak, we reviewed the public statements of all 50 Democratic senators and contacted their offices to see where each one stands on changing or ending the filibuster to enact the WHPA—and how the Dobbs leak might have changed their decisionmaking calculus. Here’s what we found out.
Unless otherwise noted, this information comes from the offices of Democratic senators. We’ll update as necessary.
|Kyrsten Sinema||Arizona||Opposes ending the filibuster.|
|Mark Kelly||Arizona||Unclear. “If there is a proposal to change the rules, I will make a decision on what is in the best interest of the country and the folks I represent in Arizona.”|
|Dianne Feinstein||California||Did not respond to request for comment.|
|Alex Padilla||California||Supports ending the filibuster to “codify abortion rights.”|
|John Hickenlooper||Colorado||Did not respond to request for comment.|
|Michael Bennet||Colorado||“Believes that 51 senators should be able to move legislation forward.”|
|Richard Blumenthal||Connecticut||Supports ending the filibuster to pass WHPA.|
|Chris Murphy||Connecticut||Supports “ending the filibuster in order to codify Roe v. Wade.”|
|Tom Carper||Delaware||Did not respond to request for comment.|
|Chris Coons||Delaware||Did not respond to request for comment.|
|Jon Ossoff||Georgia||Unclear. “Sen. Ossoff will carefully review any proposed rule changes carefully,” his spokesman said.|
|Raphael Warnock||Georgia||Supports ending the filibuster to “protect access to abortion.”|
|Mazie Hirono||Hawaii||Supports “eliminat[ing] the filibuster in order to make it possible to pass the Women’s Health.”|
|Brian Schatz||Hawaii||Did not respond to request for comment.|
|Dick Durbin||Illinois||Unclear. “If you’ve been here any number of years, the tables can turn…Let’s think long and hard, and we went after voting rights … I supported that and I think that there are possibilities in that regard.”|
|Tammy Duckworth||Illinois||Did not respond to request for comment.|
|Angus King||Maine||Unclear. “What goes around comes around. We could undo the filibuster, pass a nationwide bill that we like, and they could do it next year in the opposite way. I think that’s a concern.”|
|Ben Cardin||Maryland||“Supports changes to the Senate rules, including the filibuster.”|
|Chris Van Hollen||Maryland||Supports ending the filibuster to “take action to codify Roe v. Wade.”|
|Elizabeth Warren||Massachusetts||Supports ending the filibuster to pass progressive legislation, including the WHPA.|
|Ed Markey||Massachusetts||Supports ending the filibuster to pass the WHPA.|
|Debbie Stabenow||Michigan||Supports doing away with the filibuster.|
|Gary Peters||Michigan||Unclear. “Very open” to changing rules.|
|Amy Klobuchar||Minnesota||Supports ending the filibuster “to codify abortion rights protections.”|
|Tina Smith||Minnesota||Supports ending the filibuster “in all cases and would fully support ending the filibuster in order to pass the Women’s Health Protection Act.”|
|Jon Tester||Montana||Unclear. “We’ve been down this road once already. There aren’t enough horses to do it.”|
|Catherine Cortez Masto||Nevada||Supports filibuster reform “in the form of the ‘talking filibuster,’ which would require any Senator who wishes to block legislation to do so by publicly speaking on and holding the Senate floor.”|
|Jacky Rosen||Nevada||Did not respond to request for comment.|
|Jeanne Shaheen||New Hampshire||Supports “eliminating the filibuster to codify Roe v. Wade.”|
|Maggie Hassan||New Hampshire||Supports voting to end the filibuster for WHCA.|
|Robert Menendez||New Jersey||Did not respond to request for comment.|
|Cory Booker||New Jersey||Did not respond to request for comment.|
|Martin Heinrich||New Mexico||Did not respond to request for comment.|
|Ben Ray Luján||New Mexico||“It’s time to abolish the filibuster and vote on the Women’s Health Protection Act, now.”|
|Chuck Schumer||New York||Did not respond to request for comment.|
|Kirsten Gillibrand||New York||Supports ending the filibuster to “codify the right to an abortion into federal law.”|
|Sherrod Brown||Ohio||Unclear. “I don’t know if we can convince them on this one, but we will try.”|
|Ron Wyden||Oregon||Supports ending filibuster. “The right to safe and legal abortion must be codified into law. We cannot let the filibuster stand in the way.”|
|Jeff Merkley||Oregon||The Senate “must reform the secret, silent filibuster that gives the minority a veto over legislation, and move to the public talking filibuster that puts the debate before the American people.”|
|Bob Casey Jr.||Pennsylvania||Did not respond to request for comment.|
|Jack Reed||Rhode Island||Did not respond to request for comment.|
|Sheldon Whitehouse||Rhode Island||Supports “whatever changes in Senate rules allow the Democratic majority to end Mitch McConnell’s rule by obstruction and clear the way to protect the fundamental rights of women.”|
|Patrick Leahy||Vermont||Supports “changing the rules” in order to pass WHPA.|
|Bernie Sanders||Vermont||Supports ending the filibuster to “codify Roe v. Wade”|
|Mark Warner||Virginia||Did not respond to request for comment.|
|Tim Kaine||Virginia||Did not respond to request for comment.|
|Patty Murray||Washington||“Everything has to be on the table to get it done, absolutely—but we need at least 50 votes first. We need more pro-choice voices in the Senate.”|
|Maria Cantwell||Washington||Supports “the codification of Roe v. Wade in any way possible.”|
|Joe Manchin||West Virginia||Does not support ending the filibuster.|
|Tammy Baldwin||Wisconsin||Supports “ending the filibuster to pass WHPA.”|