Capitol Hill Reacts to the Leaked SCOTUS Draft

Amid long-shot calls to nuke the filibuster and codify Roe, Democrats focus on this year’s midterms.

Published May 3, 2022

Good afternoon. We’ll have one extra edition of Uphill for you this week, coming tomorrow. The story we were going to publish today got pushed back because of, well … events.

Leaked SCOTUS Opinion Shakes Capitol Hill

According to a leaked draft majority opinion, the Supreme Court may strike down Roe v. Wade and Planned Parenthood v. Casey, two landmark cases that established a constitutional right to abortion. The news, published in a story by Politico Monday night, sent shockwaves around Capitol Hill and thrust abortion laws back into public eye. The high court is expected to hand down the opinion later this summer, but the draft opinion does not represent a final decision.

Democrats on Tuesday pledged to hold a vote on legislation codifying abortion rights and renewed calls for lowering the threshold to pass such legislation in the Senate. But neither course of action is likely: An abortion rights bill failed earlier this year in the Senate without enough support to pass even if the rules were changed, and key moderate Democrats reaffirmed their opposition to changing the Senate rules despite the draft opinion.

Those political realities left Democrats pointing to November’s upcoming elections as their primary recourse if Roe is overturned.

Codifying Roe

In September, the House of Representatives passed The Women’s Health Protection Act, which would establish a broad right to abortion. All but one Democrat, Rep. Henry Cuellar of Texas, supported it. All Republicans who voted opposed it.

But it ran into a dead end in the Senate in February, when an attempt to advance the measure failed 46-48—well short of the 60-vote threshold, needed to overcome a filibuster, a procedural rule that allows a minority of lawmakers to slow or stop bills from making it through the chamber. In practice, it means most bills need to reach a 60-vote threshold to pass. But that February vote was also below the simple majority Democrats would need even if they did kill the filibuster.

The Women’s Health Protection Act would block many restrictions states have passed, including ultrasound requirements, mandatory waiting periods, informed consent laws, bans on abortifacients sent in the mail, as well as other health and safety requirements on abortion clinics. It would also undo restrictions on late-term abortions or sex-specific abortions. (Read a helpful piece by National Review’s John McCormack about the bill here.)

Senate Majority Leader Chuck Schumer pledged Tuesday to hold another vote on legislation to codify abortion rights.

“We will vote to protect a woman’s right to choose and every American is going to see which side every senator stands,” he said.

Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who both support Roe, thought the Democratic bill too sweeping. So, they introduced their own, more limited bill that would also codify the abortion rights framework established by Roe and Casey. The Reproductive Choice Act includes conscience protections for health care workers who do not want to perform abortions. It also leave intact state laws such as informed consent requirements or parental notification for underage women seeking abortions.

Collins pointed to her own legislation Tuesday, calling the Democratic bill a “nonstarter.”

“They don’t protect people whose conscience don’t allow them to perform abortions or participate in any way,” Collins said of the Democratic bill.

Moderates Stand By Filibuster

Even though Democrats likely don’t even have the votes to advance their own abortion bill, some are still calling for an end to the filibuster, using the leaked draft opinion as their motive.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders of Vermont, an Independent who caucuses with Democrats, said Tuesday after the draft was published. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”

But changing the filibuster isn’t a simple matter of political pressure. As the current Senate lineup stands, Democrats simply don’t have the math on their side. In January, the Senate took a vote considering whether to change the filibuster rules in a lead-up to another vote on election and voting rights reform. The vote failed 48-52, with both West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema—both Democrats—voting against it.

Manchin and Sinema have opposed those calls since President Joe Biden took office, and they remained unmoved less than 24 hours after Monday night’s Supreme Court leak.

Manchin told reporters Tuesday the filibuster is the “only protection we have of democracy right now.”

Sinema said she believes overturning Roe v. Wade endangers the health and wellbeing of women across the country, but she likewise stood by her opposition to changing the Senate rules. She pointed out that the Senate filibuster has prevented anti-abortion bills from passing over the past decade.

GOP Response

Republicans on Tuesday largely slammed the leak and urged the court to keep to its course. Others speculated on the draft opinion’s ramifications, both for other court decisions and for the upcoming November midterm elections.

Senate Minority Leader Mitch McConnell said the leak was “an attack on the independence of the Supreme Court” and argued it was, by every indication, “yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

It’s not clear who leaked the document. Chief Justice John Roberts said he has directed the marshall of the court to conduct an investigation into the breach. He confirmed the document’s authenticity but said it does not represent a final decision.

Sen. Josh Hawley, a Missouri Republican, told reporters Tuesday the leak is “really, really bad for the court.”

He called on the justices to issue their decision immediately, to cut off “a public pressure campaign to try and intimidate this court.”

Hawley otherwise praised the draft opinion, saying it will return the issue of abortion laws to the states. “We’re going to have a big, robust national debate about this,” he told reporters. “I support that. I think most Americans do.”

Hawley, who served as attorney general of Missouri, also pushed back on the notion that the arguments in the draft opinion could lead to the court overturning other major cases, like Obergefell v. Hodges, which upheld the right to marry for same-sex couples.

“I don’t think that would happen,” he said.

Hawley didn’t answer directly when pressed on if he personally thinks Obergefell should be overturned. He again expressed skepticism it would occur.

“I think that Obergefell was wrongly decided, but I also think that at this point, it is also settled law in the sense that in order to do it, you’d have to walk through all the same stare decisis factors,” he said. “I’m not aware of any concerted effort to get Obergefell overturned, and I don’t think that this opinion will result in that happening. I’d be shocked if that happened. I just don’t see it.”

Political Implications

Members of both parties said they expect the draft opinion—and the final decision—to play an important role in the upcoming midterm elections.

Democrats were quick to elevate it in their election efforts on Tuesday morning, holding a press conference on the Senate steps during which Schumer said the rights of women are “now on the ballot” and urging people to vote in November.

And President Biden said that “if the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.

“At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codified Roe, which I will work to pass and sign into law,” he added.

Sen. Edward Markey, a Massachusetts Democrat, said the party will have to “fight hard” to pass abortion rights legislation.

“We have to turn this into an issue which is built into every single campaign in the United States in 2022,” Markey told reporters. “Abortion rights for women in America has now been catapulted to the very top of the political agenda, and I think we’re going to begin to see the political, electoral ramifications of that unfold in the very near future.”

Florida Sen. Rick Scott, who heads the GOP’s Senate campaign arm, argued it will be a key issue for voters, “but so is inflation, so is crime, so is the border.”

“The Democrats’ position of late-term abortions and abortion up until the moment of birth and not being responsible for keeping a child alive, that’s not where this country is,” he added.

Sen. Mitt Romney of Utah was circumspect: “I can’t possibly predict what the political implications state-by-state might be.”

On the Floor

The House is out this week. The Senate is in and considering executive nominees.

Key Hearings

Transportation Secretary Pete Buttigieg testified this morning before the Senate Commerce, Science, and Transportation Committee on the Biden administration’s fiscal year 2023 budget request. Information and video here.

The Senate Appropriations subcommittee on defense heard testimony this morning from Defense Secretary Lloyd Austin on funding needs for the upcoming year. Information and video here.

NASA Administrator Bill Nelson appeared before senators this morning to discuss the agency’s funding request for fiscal year 2023. Information and video here.

Health and Human Services Secretary Xavier Becerra will appear before a Senate panel Wednesday morning to examine the department’s funding needs in the coming year. Information and livestream here.

Homeland Security Secretary Alejandro Mayorkas will testify before the Senate Appropriations subcommittee that oversees his department on Wednesday morning. Information and livestream here.

A Senate Judiciary subcommittee will meet Wednesday afternoon for a hearing on the impacts of social media. Information and livestream here.

The Helsinki Commission will hold a hearing Wednesday afternoon on Russian war crimes in Ukraine. Information and livestream here.

Government officials dealing with immigration will appear before the Senate Homeland Security and Governmental Affairs Committee Thursday morning for a hearing on securing the southern border. Information and livestream here.