The Senate has once again failed to pass the Women’s Health Protection Act, a bill that guarantees providers’ ability to perform an abortion and individuals’ right to access one.
The 49-51 vote marks the second time this year the upper chamber has voted on the issue and been unable to advance the legislation. While the outcome was expected, Democrats said the vote was necessary to show where lawmakers stand on abortion rights in the wake of a Politico report that revealed the Supreme Court is on track to overturn Roe v. Wade.
“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 before the vote.
Beyond putting lawmakers on the record, the vote was intended to rally the Democratic base while giving the party 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 demonstrate to 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. If passed, it would supersede state laws on the issue, effectively neutralizing laws in 19 states that have sought to curb this right.
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 women who are already less likely to have health care coverage for abortions, and who face more obstacles accessing alternative options if their states put in barriers. According to an ABC News report, Black and Hispanic women in conservative states will also bear the outsize impact of abortion restrictions in these places because they’ve had higher abortion rates.
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, a highly unlikely prospect.
Another option would be to overturn the filibuster. They’d need all 50 members’ support to eliminate the filibuster on any bill, backing they don’t currently have since Manchin and Sen. Kyrsten Sinema (D-AZ) have long opposed this procedural change. It’s an even longer shot with abortion rights, seeing as Democrats aren’t unified on legislation codifying Roe.
While Sen. Bob Casey (D-PA) — a prior opponent of such legislation — voted for the Women’s Health Protection Act, Manchin has been adamantly opposed to measures he believes would “expand abortion.”
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 weren’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.
Sen. Richard Blumenthal (D-CT), the sponsor of Democrats’ bill, 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.”
Though the support of Collins and Murkowski wouldn’t get 60 votes, there has been pressure on Schumer to consider that bill to make a vote on abortion rights bipartisan. (Sen. Tim Kaine (D-VA) has also said he’s working with both senators on another possible version of the bill.)
Schumer, however, 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.
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.
Update, May 11: This piece has been updated to reflect the outcome of the Senate’s vote on the Women’s Health Protection Act.