Democrats are reeling over a strict Texas law that went into effect this week that bars abortions after six weeks, but divisions within their party in Washington – and broad Republican opposition to abortion rights – all but ensure Democrats won’t have the votes to enact new legislation to protect abortion access and send it to President Joe Biden’s desk.
Here are a few of the obstacles facing abortion supporters looking to Congress for help:
The filibuster persists even amid outrage
In the Senate, the 60-vote threshold needed to overcome a filibuster to pass most legislation means that Democrats cannot act unilaterally. Democrats control only the narrowest possible majority in the chamber with a 50-50 partisan split and Vice President Kamala Harris able to break ties, and there is no indication that 10 Republican senators would be willing to cross party lines over the hot-button issue of abortion.
Democrats continue to come under pressure from liberal activists to eliminate the filibuster, but there too they lack the votes with key moderate Senators including Joe Manchin of West Virginia and Kyrsten Sinema of Arizona having made clear they are opposed to such a move and arguing that it would thwart bipartisanship.
That pressure is likely to increase in the wake of what is unfolding in Texas. The Supreme Court has now formally denied a request from Texas abortion providers to freeze a state law that bars abortions after six weeks. The court’s move means that the law – which is one of the strictest in the nation and bans abortion before many people know they are pregnant – will remain on the books.
Under the Texas law, abortion is prohibited when a fetal heartbeat is detected, which is often before a woman knows she is pregnant. There is no exception for rape or incest, although there is an exemption for “medical emergencies.” No other six-week ban has been allowed to go into effect – even briefly.
Democrats have responded to the new law with outrage and promises to take action.
“The Supreme Court’s decision to do nothing and let this appalling Texas law go into effect is an effort to rip away women’s rights, health, and reproductive freedoms. This fight is only just beginning. Democrats will fight against #SB8 and for Roe v. Wade,” Senate Majority Leader Chuck Schumer tweeted.
House Speaker Nancy Pelosi said in a statement that the court’s “cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering.” Pelosi announced that when the House is back in session the chamber will take legislative action and “bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America.”
House Democrats have a narrow majority in the chamber, but any legislation that passes out of the House will confront the filibuster in the Senate.
It’s not clear Senate Democrats have a majority to protect abortion rights
But even if the filibuster were not an obstacle, that still would not ensure passage of any kind of legislation protecting access to abortion because the party is not in lockstep over the issue.
Manchin, who represents the red state of West Virginia, has previously described himself as “pro-life and proud of it” and “a lifelong abortion opponent.” As recently as July, he sent a letter expressing support for the Hyde amendment, which blocks federal funds from being used for most abortions.
Manchin and Democratic Sen. Bob Casey of Pennsylvania have broken with their party on abortion-related votes in the Senate before.
In 2020, Republicans brought two longstanding bills with little chance of passage up for votes before the chamber.
The first bill, the Pain-Capable Unborn Child Protection Act, would ban abortion at 20 weeks based on the scientifically disputed notion that a fetus can feel pain at that point in development. The bill failed 53-44, with Casey and Manchin voting in support of the measure and Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska opposing it.
Confirming new Judicial Branch posts has its own barriers
One other avenue that Democrats in the Senate could take to indirectly impact the fate of abortion laws would be by voting to confirm a new liberal justice to the Supreme Court if a vacancy from the conservative wing of the court were to arise while President Joe Biden is in office.
But there are no signals that is likely to happen.
In light of that, the ideological balance of power of the 6-3 conservative-liberal bench may not change for years to come after former President Donald Trump successfully appointed three justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – to the high court.
Coney Barrett replaced the liberal Associate Justice Ruth Bader Ginsburg, a staunch supporter of abortion rights, who died during the Trump administration while still serving on the high court.
CNN’s Ted Barrett, Manu Raju, Ali Zaslav, Ariane de Vogue and Caroline Kelly contributed to this report.