Senate Democrats expressed fear and trepidation Tuesday as the Supreme Court prepares to hear oral arguments in the case that could ravage abortion access across the United States.
“I’m very worried about what this Court will ultimately do,” Sen. Elizabeth Warren (D-MA) told TPM.
“It could be the end of Roe v. Wade,” Sen. Tammy Duckworth (D-IL) said. “And I think that’s a really scary thing for women in this country.”
These senators, along with the vast majority of their caucus, want to take abortion rights out of the hands of a majority-conservative Supreme Court and enshrine them in law. Right now, that’s an impossible feat.
The House passed legislation to codify abortion rights back in September, but it’s dead on arrival in the Senate. The filibuster demands the support of 10 Republicans to pass the bill, a futile notion given that their party largely defines itself by its opposition to abortion access. And on the Democratic side, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have so far refused to reform or eliminate the Senate rule.
Democrats also don’t even have unanimity on preserving abortion access within their own caucus. The Senate version of the bill currently lacks the support of Manchin and Sen. Bob Casey (D-PA), both of whom are anti-abortion.
“We’re going to have to pass some sort of legislation, but we can’t do that in a 50-50 Senate,” Duckworth told TPM. “It really puts more importance on the upcoming election in 2022.”
Without legislation, Sen. Mazie Hirono (D-HI) said, “women in this country are not going to be able to make decisions regarding their own bodies. And I think that is totally inhumane, unacceptable, whatever words you want to use — and that’s where we’re heading.”
The House bill was prompted by a law out of Texas banning abortion after six weeks of pregnancy. The ban is still in place after the Supreme Court heard oral arguments earlier this month. The Court is currently deciding whether to let it stand.
The law attracted national attention, and in many circles, outrage, for its unique enforcement scheme meant to skirt judicial scrutiny: It deputizes individuals to act as bounty hunters and turn in those who “aid and abet” a post-six week abortion in the state.
But the case coming before the Supreme Court on Wednesday, experts say, is even more existentially dangerous to abortion rights in the United States. The case, concerning a 15-week abortion ban out of Mississippi, urges the Court to address the precedent head-on and to overturn the cases that enshrined access to the procedure as a constitutionally-guaranteed right.
“We have a Supreme Court with three Trump justices,” Hirono told TPM. “And he did say that ‘I’m going to nominate justices who will overturn Roe v. Wade.’ Now he’s got three of them up there — how far they will go, I do not know.”
Democrats, seriously worried about what the next few weeks will bring, have little recourse but to hang their hope on the current dynamic somehow changing.
“I think that an adverse Supreme Court ruling will ignite a fire,” Sen. Richard Blumenthal (D-CT), the lead sponsor of the Senate’s abortion rights legislation, told TPM. “I think that the firestorm erupting from women across America will persuade a number of my colleagues, who may be reluctant now, to support it.”
“People have to wake up and recognize that their constitutionally-protected rights are at stake right now,” Sen. Tammy Baldwin (D-WI) said.
If Democrats can convince Sinema and Manchin to get rid of the filibuster, Warren added, all of her colleagues should be forced to publicly state whether they stand with the majority of the country that supports abortion rights.
“Let’s put it up for a vote and find out,” she told TPM, sticking her arm through the closing elevator grilles outside the Senate chamber to make the emphatic point. “People don’t want to do it? Then they should have to go on record.”