Senate Majority Leader Mitch McConnell typically doesn’t hold “show” votes on bills that stand little chance of passing the chamber, but he madean exception this week for two bills on a key issue for Republicans in 2020: restricting abortion.
The Senate held a vote but failed to pass a bill Tuesday that would ban abortion after 20 weeks and another called the “Born-Alive Abortion Survivors Protection Act,” which would require medical providers to “exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion.”
Both bills were designed to drive the Republican goal of limiting abortion access — not by overturning Roe v. Wade, the foundational 1973 Supreme Court case establishing a person’s right to an abortion, but by placing more and more restrictions on who and when people can get abortion care. But without the Senate votes to defeat a Democratic filibuster, the bills became an electoral wedge to drive Republican voters in close races this fall.
The 20-week ban, for example, was based on claims that fetuses feel pain at that gestation stage. Limits based on gestation time have become increasingly common at the state level as 10 GOP-controlled states have passed such restrictions over the last two years, with some going as far as to ban abortion after as few as six weeks.
Except, opponents of the federal bill say, those fetal-pain claims may not be backed up by science. The best available research shows that fetuses probably can’t feel pain until well after 20 weeks. The 20-week ban would have significantly curtailed Roe, which found that the government cannot restrict abortion access before fetal viability, which most courts have found isn’t until after 24 weeks gestation.
Similarly, the “Born-Alive” bill was designed to play on misconceptions about later abortion. Conservative interest in the bill increased following controversial comments from Virginia Democratic Gov. Ralph Northam in January 2019 in the midst of debating a bill that would have loosened restrictions on abortion access, including removing a mandatory 24-hour waiting period, and a mandate that second trimester abortions be performed in a hospital.
The governor’s comments spawned the inaccurate Republican claim that Democrats support “infanticide” or “post-birth abortion,” which is already illegal under federal law, and which President Trump repeated in his 2019 State of the Union Address.
Tresa Undem, co-founder of public opinion research firm PerryUndem, told Vox that the “Born-Alive” bill presents an interesting challenge for pro-choice lawmakers. “People don’t really have any knowledge about abortion and they have zero knowledge about why a woman might [have] an abortion later in pregnancy,” she said. “So if President Trump or McConnell is talking about the Born Alive Survivors Act, it’s just like ‘partial birth abortion.’ Unless people are getting the facts about this issue through the news, they’re going to respond in a way that’s supportive of the [bill].”
Like this year, other efforts to pass either bill have failed over recent years; Republicans don’t have the 60 votes needed to overcome a filibuster, even with an occasional moderate Democrat joining their ranks. The “Born-Alive” bill failed to pass a cloture vote last February, while the 20-week ban last failed to pass a vote in February 2018.
Neither bill was expected to pass the chamber this time around either, but in an election year where several of McConnell’s caucus face close reelection races, the votes were a key messaging moment.
Tuesday means some tough votes for Susan Collins and Doug Jones
Mitch McConnell scheduled votes on these bills in order to highlight the stark policy difference between Democrats and Republicans on abortion access. Reproductive freedom has become increasingly polarized along party lines over the last two decades, as Vox’s Anna North noted.
The votes allowed Republican senators to record their anti-choice position in order to play to the party’s religious base and force Democratic senators in vulnerable red states, like Alabama’s Doug Jones, to take a position that either alienates anti-choice independents or his own base.
That has been a traditional Republican election year play for decades, even as the abortion debate has remained a relative stalemate in the chamber. But it also presented a conundrum for senators from states with more mixed populations, like Maine’s Susan Collins.
Maine is one of the most hands-off states in the US when it comes to voter’s feelings about abortion access. A 2014 Pew Research poll found that 64 percent of Mainers prefer abortion be legal in all or most cases, putting the state in the top fifth of the nation.
In turn, Collins has consistently voted against previous iterations of the 20-week abortion ban. But last year she voted for the “Born-Alive” bill. It’s a split that shows the tricky path she’s trying to navigate. She again split her votes on the bills this year, voting against the 20-week ban and for the “Born-Alive” bill.
Most immediately, Collins has to continue boxing out potential primary challengers from the right until after the filing deadline in the state on March 16. Far-right voters in the state are already unhappy with her tendency to sometimes vote against the wishes of party leaders, such as when she voted against a repeal of the Affordable Care Act, and of course, her pro-choice votes.
In 2002, she received an endorsement from Planned Parenthood and she carried the statewide election in 2014, the last year she won re-election, by an overwhelming 37 points. Advocates were so happy with her voting record on the issue, she even won an award from Planned Parenthood as recently as 2017.
But those relationships quickly frosted over after Collins’s confirmation votes for Supreme Court Justice Brett Kavanaugh and many of Trump’s other anti-choice judicial nominees.
A Colby College poll released last Wednesday showed the frontrunner in the Democratic primary in the state, current state speaker of the house Sara Gideon, with a narrow one percent lead over Collins in the race. Planned Parenthood and NARAL have already endorsed Gideon. The Colby College poll is the first public poll of the state’s Senate race to be released and it asked slightly more than 1,000 Maine voters for their preferences in the Senate race.
According to the poll, which was conducted from Feb 10-13, only 36 percent of the women polled approved of Collins, and that number dipped to just 25 percent for women under 50.
Like Collins, Jones also has to thread a political difficult needle. Alabama voters generally have a much more restrictive view on abortion access than most states. A 2014 Pew Research poll found that just 37 percent of voters prefer that abortion remain legal in all or most cases, while 58 percent believe that it should be illegal in all or most cases. Alabama was one of the states to pass a highly restrictive abortion ban in May 2018.
But the state’s opposition isn’t monolithic. Even that 2018 bill proved to be unpopular among the states’ voters because it didn’t contain any exceptions for victims of rape or incest, and Undem said the black voters who make up Jones’s Democratic base perceive the issue as one of racial justice. “If you’re talking to black voters in the case of say Alabama, again, they are going to be largely supportive of abortion rights and access and more likely to support a pro choice candidate then.”
For Jones, who is perhaps the most threatened of the Senate Democrats defending their seats this fall, that makes finding a balance nearly impossible. While he voted against Kavanaugh’s confirmation, he previously split his previous two votes on the bills that will see a vote Tuesday. Like Collins, he voted against the 20-week abortion ban in 2018 but for the “Born-Alive” bill the following year. He again split his votes on the bills Tuesday, consistent with his previous record on both.
While neither bill passed Tuesday, the type of pressure Jones felt from having to vote on both bills is exactly why McConnell scheduled the votes in the first place.
Abortion has recently become a motivational issue for Democrats as well as Republicans
McConnell, however, may be looking at a different electorate this go-around.
“Everything has changed in the past few years,” said Undem, who has been researching public attitudes about abortion access for the better part of the last 19 years.
Ten years ago, she said, abortion was viewed as a Republican issue, but now it’s a Democratic issue as well. “Now because we are in a new ‘women’s movement’ or civil rights movement, and these abortion bans have passed, [we see] 7 in 10 voters now think abortion rights and access in our country is at risk,” she said.
Democratic voters have especially taken note of the issue after a rash of state Republican bills restricting abortion access have been passed since Trump took office. In turn, Democratic state legislatures have responded with their own new laws loosening abortion restrictions, as explained by Vox’s Anna North:
After Trump’s inauguration, Republican state legislators began passing increasingly restrictive abortion laws, banning abortion after 15 weeks or even earlier. In many cases, the architects of these laws believed such restrictions would stand a better chance in court than in years past, thanks to a federal bench populated with Trump appointees, both at the Supreme Court and at lower levels. Mississippi, Kentucky, and Georgia lawmakers, for example, have all passed “heartbeat” bills that would ban abortions as early as six weeks, before many women even know they’re pregnant.
The increasingly restrictive laws on the anti-abortion side have been matched, especially in recent months, by efforts by abortion-rights supporters to liberalize state abortion laws. To some extent, these laws are meant to prepare for a potential post-Roe future — if federal protections on the right to an abortion disappear, abortion-rights supporters want to make sure states protect access.
But activists and lawmakers are also responding to Democratic wins at the state level in 2018. A recent law loosening abortion restrictions in New York, for instance, became possible when Democrats took the state Senate for the first time in years.
Democrats, Undem said, have more defined views on abortion as an issue than Republicans. She pointed to a poll her firm conducted last August which showed that 77 percent of Democratic voters and 51 percent of independent voters support rights and access to abortion, while only 55 percent of Republicans oppose rights and access to abortion.
That makes Tuesday’s votes a boon for Republicans in certain states — but they could also ensure that more motivated pro-choice Democrats turn out this fall, too.