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Democrats plan to bid to codify Roe, but lack the votes to succeed

WASHINGTON—Sen. Chuck Schumer, DN.Y., the majority leader, moved Thursday to set up a vote next week on a bill to codify abortion rights into federal law, acting quickly in the wake of a leaked Supreme Court draft decision overturning Roe v. Wade, despite clear evidence that the measure lacks the support to be enacted.

The plan is little more than an effort to send a political message before midterm elections and a seismic ruling that could have major legal, cultural and electoral consequences, with deep significance for voters across the political spectrum.

The legislation is all but certain to be blocked by Republicans, falling short of the 60 votes needed to advance past a filibuster. It also appears to lack even the simple majority it would need to pass the 50-50 Senate, given that Sen. Joe Manchin, the centrist Democrat from West Virginia who opposes abortion rights, voted against bringing up a nearly identical measure in February and has shown no signs that he has shifted his position from him.

Even if Manchin did change his mind on the bill, he has adamantly opposed altering Senate rules to eliminate the filibuster, leaving Democrats short of the 50 votes they would need to do so and get their measure past a Republican blockade.

Still, Schumer said the vote Wednesday would be one of “the most important we ever take,” framing it as an opportunity to emphasize to voters — who polls show widely favor at least some legal abortion — that elections matter, and that Democrats are the ones fighting to preserve reproductive rights.

More about the Supreme Court and abortion

“Senate Republicans spent years packing our courts with right-wing judges,” Schumer said in a speech on the Senate floor. “Will they now own up to the harm they’ve caused, or will they try to undo the damage? The vote next week will tell.”

He added: “Republicans can run but they can’t hide from the damage they’ve created.”

Even if Democrats have no real path to passing a bill to enshrine Roe into federal law, the vote will give them a chance to show their progressive core supporters that they are trying to do so. They also hope the action stokes a backlash against Republicans by swing voters, including college-educated suburban women, who might be alienated by the GOP’s opposition to abortion rights.

“We are going to make every senator show where they stand,” said Sen. Patty Murray, D-Wash.

But party leaders had little to say about what they would do after that.

“The first step is to have a vote in the Senate,” Schumer said when pressed about how Democrats would go forward if the vote failed, as is expected.

Sen. Mitch McConnell, R-Ky., the minority leader, and other top Republicans have mostly refrained from boasting about the impending demise of Roe since the draft opinion surfaced, focusing instead on the unprecedented Supreme Court leak. Their responses suggest that they, too, see the potential for a battle over abortion rights to hurt their party before midterm congressional elections, and are working to reframe the issue to their advantage by portraying Democrats as extreme on the subject.

Democrats on Thursday dismissed the leak as a minor infraction compared with the substance of the document that was revealed. More concerning them than a breach at the court, they said, was the fact that Trump-appointed Supreme Court justices appeared to have misled them during their confirmation hearings when they stated that Roe v. Wade was an important precedent.

“If you want to talk about process, I would focus on that process,” said Sen. Kirsten Gillibrand, DN.Y., referring to statements made by Justice Brett Kavanaugh and others on the issue of abortion rights as “fraudulent testimony.”

Democrats said their bill had gained urgency since the last time they tried to take it up in February. Back then, the threat to abortion rights was more theoretical. Now, they said, it has taken on new significance with the end to a constitutional right suddenly imminent.

They have also altered the measure in an effort to garner more support among Republicans who back abortion rights, removing a lengthy series of findings, including passages that referred to abortion restrictions as “a tool of gender oppression” and as being “rooted in misogyny. ” Also scrapped was a section clarifying that while the bill refers to women, it is meant to protect the rights of “every person capable of becoming pregnant,” including transgender men and nonbinary individuals.

But the fundamentals of the bill remain the same. It states that health care providers have a legal right to perform abortions, and patients to receive them, and would expressly nullify a wide range of requirements, restrictions and bans.

Democrats had hoped that removing the nonbinding findings could win over Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two Republicans who support abortion rights.

But Collins said Thursday that she still opposed the bill, because it went beyond simply codifying Roe v. Wade, which she supports, and lacked provisions that would allow Catholic hospitals to refuse to perform abortions.

Democrats said they were not interested in finding a compromise that might be acceptable to Collins and Murkowski, who have introduced a narrower bill that would bar states from imposing an “undue burden” on a woman’s right to obtain an abortion before her fetus is viable.

The Democrats’ bill is more prescriptive, explicitly invalidating any abortion ban or restriction before viability, which it defines as the point at which the treating physician judges the fetus has “a reasonable likelihood” of “sustained” survival outside the womb.

“We’re not cutting back; we’re not compromising,” Schumer said at a news conference when asked if he would consider taking up the Republican bill. “We’re not looking to compromise on something as vital as this. This has been American law for 50 years.”

Appearing beside him with the Senate’s Democratic women, Sen. Mazie Hirono of Hawaii gave a blunt preview of the message her party wanted voters to take away from the abortion-rights fight when they went to the polls in November.

“Fundamentally,” Hirono said, “Republicans don’t give a rip about women.”

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