November 1, 2022
Abortion rights have always been a contentious topic of debate amongst Americans. Historically, the Supreme Court has upheld Roe v. Wade, a court case which created the legal precedence for abortion rights under the 14th amendment right to privacy. Roe v. Wade created a federal law stating abortion rights could not be denied during the first trimester of pregnancy, with regulations on abortion allowed during the second and third trimester.[i] Even with regulations on abortion, the law made it clear that a woman’s right to an abortion could not be denied at any time if there was a risk to her health. Despite this precedent, the court overturned Roe v. Wade with the ruling of Dobbs v. Jackson Women’s Health Organization, giving states the power to enact their own abortion laws.[ii] Due to this ruling, the right to abortion is no longer recognized within the Constitution of The United States.
As we enter a post-Roe era in The United States, abortion rights have become at the forefront of policy issues. At the time Roe v. Wade was overturned many states had trigger laws in place, meaning when the court reached their decision states would immediately replace existing abortion laws with a more stringent law. States like Texas and Arkansas have enacted a complete ban of abortions, with an expectation to save the life of the pregnant person.[iii] Other states like Oregon allow abortion throughout pregnancy and the right to abortion is protected by state law.[iv] Since states are now in charge of their own abortion laws, the midterm election in November is a key factor in the fight for abortion rights. Democrats must preserve their majority in The Senate and House to protect abortion rights. To do this, Democratic candidates must maintain momentum and make abortion right at the core of their campaign.
Following the overturning of Roe v. Wade questions of “what can we do?” have arisen in the public. People have pushed for Congress to react to the overturning of Roe v. Wade by protecting the right to abortion. Some have called for the codifying of Roe v. Wade,[v] expanding the number of justices on the court, and protecting those who travel out of state for an abortion from impediment.[vi] While the legality of some of these options are in question,[vii] a key fact remains, the Senate does not have enough of a Democratic majority to pass these laws.[viii]
While the midterm creates a possibility for Democrats to gain more senate seats, leading to a bigger majority in the Senate, the filibuster proves a challenge.[ix] The use of a filibuster, a tactic used to block the passage of a bill into law and extending the period of debate to hinder the bill from moving into a vote,[x] has been successful in impeding the ability of Democrats to pass laws despite their majority. A way to end the filibuster is using a 60-vote majority ending the debate, moving The Senate to a vote for the bill’s passage. The final vote of a bill to pass through the Senate only requires a 51 majority. With Democrats only having a 50-50 presence and a tie breaking vote through the Vice President, passage of a law protecting abortion rights in Congress seems unattainable with the filibuster.
Despite this, there is an option to get around the filibuster called the nuclear option.[xi] The nuclear option would change Senate rules to pass legislation with a simple majority. This would essentially bypass the filibuster and only require the majority 51 vote. However, Democratic Senators Joe Manchin and Kyrsten Sinema do not support the use of the nuclear option.[xii] Manchin and Sinema both address the dangers of using the nuclear option, and how this might affect policies moving forward. A fear for the two moderate Democrats is how Republicans could potentially use the nuclear option as well, and the harmful polices this could produce.[xiii] Despite this other Democrats have voiced favor for the use of the nuclear option and the elimination of the filibuster all together, especially with the overturning of Roe v. Wade. Therefore, to use the nuclear option Democrats would need to gain two additional seats in the senate, making the Senate race incredibly important. States such as Georgia, Wisconsin, Ohio, Florida, Pennsylvania, and North Carolina are particularly notable, due to the presence of a Republican incumbent with their seat of up election.[xiv] In Pennsylvania, John Fetterman, who is the Democratic candidate for Senator, has used strong rhetoric in support of abortion rights stating, “Send me to DC, and I will proudly cast that 51st vote to eliminate the filibuster and codify the right to an abortion into law.”[xv] Fetterman’s rhetoric here cleary shows a support for enshrining abortion rights into law through elimination of the filibuster and a clear representation of Democrats using abortion rights as a key motivator in their campaign.
Adding more blue to the Senate is essential to their cause. If the Democratic party were to flip these Senate seats, it could maintain a majority in the Senate. While the outcome of the election will not be known until November, there are predications that Democrats will maintain their majority in The Senate. The FiveThirtyEight project,[xvi] a model that simulates the election 40,000 times is often utilized to show possible Senate election outcomes. Using this model, The FiveThirtyEight project currently predicts that in a sample of 100 simulations the Democrats are expected to win 67 times. In 40,000 simulations Democrats are predicted to have an 80% chance of holding between 47 and 54 seats. Based on this data, there is a decent chance Democrats will retain the majority in The Senate with the possibility of gaining additional Senate seats.
With Democratic division over how to protect abortion rights, and whether the elimination of the filibuster should be used to pass protections for abortion, the focus for Democrats should be on gaining as many seats as possible in the midterm election. While the debate over how to protect abortions rights is ongoing, it is clear little can be done to protect abortion rights without a majority of Democrats in both The Senate and House, and a Democratic President. At the bare minimum, current Democrats and Democratic candidates must unite under a pro-choice and anti-Dobbs v. Jackson stance to mobilize voters in the midterms for a chance at enacting legislation to protect abortion rights.
Edited by Esha Amin, Tabea Schneider, and Elise Romero.
[i] “Roe v. Wade.” Oyez. Accessed October 9, 2022. https://www.oyez.org/cases/1971/70-18.
[ii] National Constitution Center. 2022. Dobbs V. Jackson Women’s Health Organization . Accessed October 9th, 2022. https://constitutioncenter.org/the-constitution/supreme-court-case-library/dobbs-v-jackson-womens-health-organization.
[iii] Manzanetti, Zoe. 2022. Abortion Map 2022: U.S State Laws After Overturning Roe. July 20. Accessed October 9, 2022. https://www.governing.com/now/abortion-map-2022-state-laws-after-overturning-roe.
[iv] (Manzanetti 2022)
[v] Morrison, Alan B., and Sonia M. Suter. 2022. Congress can’t codify Roe: Here’s what it can do. August 8. Accessed October 9, 2022. https://thehill.com/opinion/white-house/3592514-congress-cant-codify-roe-heres-what-it-can-do/.
[vi] Congress.gov. “H.R.8297 – 117th Congress (2021-2022): Ensuring Access to Abortion Act of 2022.” July 18, 2022.
[vii] Morrison, Alan B., and Sonia M. Suter. 2022. Congress can’t codify Roe: Here’s what it can do. August 8. Accessed October 9, 2022. https://thehill.com/opinion/white-house/3592514-congress-cant-codify-roe-heres-what-it-can-do/.
[viii] Foran, Clare. 2021. Congress Could Protect Access to Abortion. Here’s Why its Unlikely to Happen. September 2. Accessed October 9, 2022.
[ix] Foran, Clare. 2021. Congress Could Protect Access to Abortion. Here’s Why its Unlikely to Happen. September 2. Accessed October 9, 2022.
[x] Lau, Tim. 2021. The Filibuster, Explained. April 26. Accessed October 9, 2022. https://www.brennancenter.org/our-work/research-reports/filibuster-explained.
[xi] Oleszek, Walter J. 2016. “Changing the Senate Cloture Rule at the Start of a New Congress.” fas.gov. December 12. Accessed October 9, 2022.
[xii] Lenoard, Kimberly. 2022. Biden’s call for a filibuster carveout for abortion rights unlikely to gain traction because Manchin and Sinema oppose it. June 30. Accessed October 10, 2022. https://www.businessinsider.com/manchin-and-sinema-oppose-ending-filibuster-to-codify-roe-v-wade-2022-6.
[xiii] (Lenoard 2022)
[xiv] Pathe, Simone. 2022. The 10 Senate Seats Most Likley to Flip in 2022. September 6. Accessed October 9th, 2022. https://www.cnn.com/2022/09/06/politics/senate-race-rankings-september-elections/index.html.
[xv] (Lenoard 2022)
[xvi] FiveThirtyEight. 2022. October 9. Accessed October 9, 2022. https://projects.fivethirtyeight.com/2022-election-forecast/senate/?cid=rrpromo.
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