Congressional Democrats are under intense pressure to pass legislation to codify abortion rights nationwide with a new federal law now that the Supreme Court has overturned Roe v. Wade, the ruling that protected the right to an abortion for 50 years. But passing a bill to make abortion legal nationwide, countering "trigger laws" banning abortion in many red states now that Roe is gone, would require 10 Republican votes to get past a GOP filibuster, and the votes aren't there.
President Biden last week for the first time said he would support suspending the Senate's filibuster rule, which requires 60 votes rather than a simple majority of 51 to advance legislation in the Senate, to protect abortion rights across the United States. At least two moderate Senate Democrats, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, have expressed staunch opposition to making exceptions to the filibuster, potentially preventing any rule change in the 50-50 Senate until at least the November mid-term elections. But Sinema and Manchin also criticized the Supreme Court's decision to scrap Roe v. Wade. Should abortion-rights supporters push for suspending the filibuster to enshrine Roe v. Wade's protections in law?
The filibuster should go to protect abortion rights
Democrats can't undo "the court's brazenly politicized majority, the byzantine Electoral College, gerrymandering or the inherent red-state advantage in the Senate," which have forced the minority's abortion views onto the majority, says the St. Louis Post-Dispatch in an editorial. But they can "end or alter the filibuster immediately to protect abortion rights across America, now, before the GOP has the chance to eliminate those rights nationally" if they regain control of Congress in November. Manchin insists the filibuster promotes bipartisanship. "And how has that been going lately?" Democrats should act fast, because "many Republicans are already salivating to eliminate abortion rights nationally when they next hold Congress." And you're delusional if you think the GOP's chameleon-in-chief, Senate Minority Leader Mitch McConnell (R-Ky.) won't "ditch his supposed reverence for the filibuster and scrap it" the second it gets in his way.
The filibuster should go to preserve democracy
"There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years," says Max Boot in The Washington Post. Especially when that "benighted Supreme Court" has, with a single ruling, put 40 million women on track to lose their reproductive freedom. But small states will block any constitutional amendments to fix the huge "imbalance between power and population" created by the Electoral College, and the two-seats-per-state makeup of the Senate that gives Wyoming (pop. 581,348) the same representation as California (pop. 39.3 million). The filibuster's use "has dramatically expanded in recent years, creating a de facto supermajority requirement that gives a small minority of the population a veto over all legislation." Getting rid of this rule will go a long way toward fixing our broken democracy.
Ending the filibuster would create chaos
Ditching the filibuster won't fix anything, says The Wall Street Journal in an editorial. It will create chaos. Biden says he supports suspending the filibuster for abortion legislation. "Is a carve-out for climate bills next?" The truth is that if Democrats kill the filibuster to push through one priority, "it will go for everything." Remember what happened when Senate Democratic leader Harry Reid in 2013 ditched the filibuster to confirm some appellate judges. Four years later, Mitch McConnell "returned the favor" and nuked the filibuster for Supreme Court nominees. "Three conservative Justices later, Roe v. Wade went on the ash heap." So, careful what you wish for, Democrats. "The legislative filibuster frustrates both parties when they're in power," and if Republicans win back the Senate in November, liberals are going to suddenly wish they had the filibuster to keep a GOP majority in check.
Either way, the Supreme Court will have final say... again
Biden and other Democrats are right to push for codifying Roe's protections in a federal law, says Victoria Nourse in The Atlanta Voice, even if they have to resort to lifting the filibuster to do it. After all, the Supreme Court's conservative majority said itself that its Dobbs v. Jackson Women's Health decision overturning Roe "was returning the abortion question to the people and their elected representatives." But it's naive to think passing such a law will settle things. "Even if Congress passes a law codifying Roe v. Wade, that does not mean that the brazen precedent-busting Dobbs Supreme Court will not have five votes to strike down the new law." The high court has "the power to reverse the people's will as expressed in the actions of Congress," and "now that Dobbs has given 'fetal life' a constitutional interest, it is possible that a law extinguishing that constitutional interest could be considered fatally inconsistent with Dobbs itself."