After the Failed Senate Bill on Abortion

“Every American will see where every senator stands,” Chuck Schumer, the Senate Majority Leader, said last week, in calling for a vote on the Women’s Health Protection Act. The bill would have banned nearly all restrictions on abortion, making it the most permissive abortion bill ever to be considered in Congress. There was no chance that it would pass. In September, it passed only narrowly in the House, and along party lines. (No Republican voted for it, and only one Democrat, Representative Henry Cuellar, of Texas, voted against it.) And on Wednesday, as expected, it failed in the Senate, 49-51, short not only of a simple majority but, more important, of the super-majority of sixty votes required to overcome the inevitable filibuster.

Why hold the Senate vote? The roll call didn’t, in fact, reveal anything about where every senator stands; it showed only how hardened the parties have become, which everyone already knew. (Only the West Virginia Democrat Joe Manchin crossed party lines.) But Schumer is eying the midterm elections. Democrats hope to entice voters to the polls, and to their side of the ballot, in the aftermath of an expected Supreme Court decision, this summer, overturning its landmark 1973 ruling in Roe v. Wade. The Senate vote came barely a week after the leak of a draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, written by Samuel Alito and evidently joined by four other G.O.P.-appointed Justices, which argues that no right to abortion can be found in the Constitution or read into the Fourteenth Amendment, and that, therefore, no such right exists. Alito’s draft is so shabby and benighted that it might just be the straw that breaks originalism’s back. Politically, the consequences are less clear.

Unfortunately for Schumer, the Senate vote on the Women’s Health Protection Act serves Republicans in addition to Democrats, because the bill is out of step with public opinion on abortion; the majority of Americans favor keeping abortion legal, but with some restrictions. You can’t be a little bit pregnant. But you can be something other than uncompromisingly pro-life (opposed to abortion even in cases of rape, incest, or danger to the life of the mother) or unwaveringly pro-choice (permitting abortion into the last weeks of a healthy pregnancy). And in that place in between—a haunted place of difficulty, anxiety, relief, and grief—is where most Americans stand.

Politicians hoping to raise money off this latest battle are keen to depict it as a contest between the two parties, even though the people who have suffered most during this long war are poor women, poor families, and poor children. Structurally, the contest isn’t between Democrats and Republicans but between the people and the Constitution. Women have been trying to gain equal rights since the founding of this country, including by constitutional amendment. The last meaningful amendment to the Constitution—lowering the voting age to eighteen—was ratified in July, 1971. That December, the Court heard arguments in Roe. In March, 1972, Congress passed the Equal Rights Amendment and sent it to the states, where it was expected to be quickly ratified. That May, John George Schmitz, a Republican congressman representing California, introduced on the floor another proposal, the first right-to-life amendment, which would bar the states from depriving any individual of life “from the moment that he is conceived.” In the fifty years since, versions of this amendment have been introduced in Congress more than six hundred times.

If constitutional amendments were ratified by a simple majority of the popular vote (rather than by a two-thirds majority in each chamber of Congress and three-quarters of the states), the Equal Rights Amendment would have passed in the nineteen-seventies, and the right-to-life amendment would have failed. The people, as the political scientist Austin Ranney observed, “are considerably more receptive than members of Congress to constitutional change.” Americans polled in the seventies and eighties supported nine of eleven proposed constitutional amendments, including the direct election of the President, congressional term limits, and prayer in schools. The right-to-life amendment was the only one they absolutely rejected. The numbers have remained steady ever since, with a little under two-thirds opposed, and about a third in favor. Meanwhile, since the seventies, well more than three-quarters of Americans have consistently favored the E.R.A., including through its seeming failure, in 1982.

“All of America will be watching,” Schumer said, ahead of the abortion-bill vote, predicting that Republicans who opposed it would “suffer the consequences electorally.” The Times carried the vote live. Fox News didn’t bother. “Sadly, the Senate failed to stand in defense of a woman’s right about decisions about her own body,” Vice-President Kamala Harris, who presided over the roll call, told the press. “This vote clearly suggests that the Senate is not where the majority of Americans are on this issue.” Except that the legislation, as written, is not exactly where the majority of Americans are on this issue. And, although Senators Lisa Murkowski and Susan Collins, centrist Republicans, gestured toward possible compromises, Democratic leaders, with the exception of Virginia’s Tim Kaine, have shown little interest in working together on narrower legislation. A compromised version, people evidently figured, would just die by filibuster.

If the Democratic response to the Alito draft was largely rhetorical—“Do something, Democrats!” anguished protesters chanted, outside the Supreme Court—was it also a missed opportunity? Republican officials at the federal and state levels have opposed government funding for child care, parental leave, sex education, and contraception, and for reproductive, maternal, neonatal and pediatric health services. In Republican-run Mississippi, where the Dobbs case originated, the rates of child poverty and infant mortality are the highest in the nation. (The U.S. maternal-mortality rate is the highest among developed nations.) Hours before the Senate vote on the Women’s Health Protection Act, Senator Ben Sasse, a Nebraska Republican and sometime Party renegade, implored Democrats to use the moment to press for maternal, infant, and child care. Could they have persuaded Republicans to support measures aimed at helping poor women and children? Unlikely, given the all-or-none state of politics. “Let’s do it,” Sasse said. Here, and only here, is where Democrats and Republicans agreed last week, both answering, in effect, “No, let’s run on this in November instead.” ♦

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