The demise of Roe v. Wade landed like a sharp right hook to the gut for anyone who cares about bodily autonomy and access to reproductive health care. The reaction from liberals and the left can be broadly divided into two camps: First are those who are demanding real and immediate action from the Democrats. Second are those who are simply updating their usual “vote blue” spiel to add references to abortion.
Count me in the former camp. I want abortion rights protected, now. The good news is, the Democrats have a way to do it. They have the votes. They have the power. Now all they need is the courage.
Let’s first look at how many Senate votes are available and committed to at least some kind of nationwide abortion protections. The Democrats held one vote already, on the Women’s Health Protection Act, an expansive bill that sought to enact worthy new rights while also enshrining into law the central holdings of both Roe and Casey v. Planned Parenthood. That vote failed in the Senate 49-51 (after passing in the House), with the Democrats losing corporate “centrist” Sen. Joe Manchin of West Virginia and gaining no Republicans.
There is an alternate bill that would gain not only Senator Manchin’s support but also that of the two Republicans who introduced it: Senators Susan Collins of Maine and Lisa Murkowski of Alaska. The Reproductive Choice Act is far more limited than the Protection Act. It would establish nationally that no state may place an “undue burden” on anyone seeking to terminate a pregnancy before fetal viability, and would preserve post-viability protections for legal abortion if the life or health of the parent is threatened.
No question — the Choice Act is a problematic bill that could, possibly, allow states to enact abortion bans after only 15 weeks. From a policy perspective, the Protection Act is more thorough and would represent a positive step forward for abortion rights. But let’s get real. It is indisputable that the Choice Act would set in stone a legal regime far preferable to the terrifying alternative: a complete and total abortion ban in almost half the country. If this is what we can get, we need to take it.
And how can we get it? We know the Choice Act has at least 52 votes in favor — all Democrats plus Senators Collins and Murkowski. That said, we also know that there are not 50 Senate votes to eliminate the filibuster, and without 60 votes, the bill would certainly be filibustered. So… that’s it, right? Are we at a dead end?
Not quite. There remains a powerful weapon that the Democrats can use to force the Choice Act through the Senate, if they are willing to flex some political muscle. That weapon is reconciliation.
Here’s your quick reconciliation primer: For bills dedicated to budgetary issues — spending and taxing — Senate rules provide an easier way to passage. Only a simple Senate majority is required, and the bill cannot be filibustered.
Bills moving through the reconciliation process are subject to what is colloquially known as the “Byrd Rule,” named after former Sen. Robert Byrd. Under the Byrd Rule, so-called “extraneous” provisions of budgeting bills — those not directly related to the nation’s budget — are, in theory, stricken.
Democrats have been stymied by the Byrd Rule twice during the Biden administration, first when trying to increase the minimum wage, and second during their attempt at immigration reform. Both times, the Senate parliamentarian — who issues advisory opinions on Byrd Rule issues — opined that the provision in question was extraneous, and any change in revenue was “merely incidental” to the policy at issue.
Abortion is, of course, an economic issue and therefore a budgetary one, and a broad ban on it would devastate women and marginalized people’s ability to participate in the work force. A huge body of work supports this conclusion. Last month, Treasury Secretary Janet Yellen sounded the alarm: If abortion is made illegal across broad swathes of the country, wages will fall, and unemployment and poverty will rise. To reduce it to raw dollars, banning abortion will mean tax revenue losses in the tens of billions per year, as well as substantially higher outlays for social welfare programs.
Further, it’s not only people who can give birth who are affected: Research shows that access to abortion substantially reduces child poverty, neglect and abuse and the anti-poverty effect continues throughout the child’s life into adulthood. By any measure, this is a budgetary issue.
Reconciliation has been used to pass measures with less of a direct budgetary connection than protecting abortion. Former President Bill Clinton used reconciliation to pass the Personal Responsibility and Work Opportunity Act, also known as “welfare reform,” which contained such tangential provisions as banning people convicted of drug crimes from collecting food stamps and mandating that states do a better job collecting child support. These laws had, at best, only a vague connection to federal spending levels.
This is all to say: There is a non-zero chance the parliamentarian would allow the Reproductive Choice Act to pass under reconciliation. Even if the parliamentarian issued a negative opinion — it’s just that, an opinion, and one that can be overruled by the presiding officer of the Senate (Vice President Kamala Harris) without any additional vote. Alternately, the parliamentarian can be fired, which Republican Majority Leader Trent Lott did in 2001 when rulings didn’t go the way he preferred.
To his credit, President Joe Biden, bowing to progressive pressure, has come out in favor of a filibuster carveout for abortion rights. But that helps nobody now, with Senators Sinema and Manchin resolutely opposed to filibuster tinkering (and Senators Collins and Murkowski mirroring their objections). And of course, there’s no guarantee that even a theoretical future Democratic Senate would have the votes to eliminating the filibuster — remember, it’s not just Manchin and Sinema who are skeptical about taking this step.
If the Democrats are serious about protecting people’s right to manage their own reproductive destinies, reconciliation is the path they must take. It is not foolproof — but it’s got a real shot.
Unfortunately, the Democrats seem determined to not act. The administration has already ruled out clinics on federal land and court packing. House Speaker Nancy Pelosi quickly pivoted to asking for votes in November, following up her already tone-deaf fundraising pitches sent less than an hour after the right to abortion was killed. President Biden summed up the Democrats’ new mantra in a primetime address, throwing in the towel on any immediate legislative action and declaring, “This fall, Roe is on the ballot.” Sen. Amy Klobuchar was probably the bluntest, telling us that there was but “one answer” to restoring Roe, you guessed it, “VOTE.”
Democrats in Congress are treating the death of Roe like a fundraising opportunity instead of a national crisis. To a tee, they have refused to think creatively or throw some elbows. That’s why crowds of angry protesters are now chanting, “Democrats we call your bluff, voting blue is not enough.” That’s why young women are that their rights are not just another fundraising opportunity.
The Democrats’ studied defeatism is unwarranted. Failing to take action on abortion now, and cynically keeping the issue alive for political advantage, would be a terrible betrayal to the party’s base and frankly, a craven, reprehensible moral calculation. The Democrats need to grow a spine, use the powers they have under the law, and codify the rights granted by Roe into law before they lose power.