Democrats Didn’t Protect Abortion Rights When They Could

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Democrats Didn’t Protect Abortion Rights When They Could; Such Federal Legislation Is Much Less Likely to Pass Now

Protecting Abortion Rights

WASHINGTON, D.C. (May 4, 2022) – Many members of Congress – especially Democrats – are now highly critical of what they believe is a pending Supreme Court decision to overturn Roe v. Wade, so they are suggesting the need for a federal law which, through federal preemption under the Constitution’s Supremacy Clause, would guarantee pregnant women the right to an abortion even in states which try to limit or prohibit them.

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But why did they wait until it is seemingly too late for such a step, asks public interest law professor John Banzhaf, who suggests that Democrats must share in any blame if abortions are outlawed or even severely limited in many states.

He notes that in the almost 50 years since the Roe decision, there have been at least three Congresses - the 95th (1977-79), 103rd (1993-1995), and the 111th (2009-2011) - where Democrats controlled both Houses of Congress and had a president in the White House; a so-called federal government trifecta.

This includes at least two periods when 60 or more Senators were Democrats, so that even a united Republican opposition could not block passage of a federal abortion rights bill in the upper chamber.

The Democrats, and many groups supporting women's abortion rights, surely knew that Row was and would remain under attack, and there were many discussions over the years by pro-life organizations of obtaining at least five sympathetic justices on the Supreme Court to reverse it.

The Women's Health Protection Act

It was also clear during all this time that if the Supreme Court overruled or even severely limited Roe, the only way to protect millions of women who would need abortions in numerous pro-life states would be a federal statute establishing that right nationally.

But now that any constitutional right to an abortion appears doomed by a new majority of conservative justices, the Washington Post reports that "Democrats plead for action to codify Roe v. Wade." But, says Banzhaf, it appears to be too little and too late.

Since the Senate this February refused to pass just such a bill - the Women's Health Protection Act - with Democrat Joe Manchin voting against it, and moderate Republicans Lisa Murkowski and Susan Collins refusing to support it, it's now even less likely that such legislation will pass.

This is especially true now that a forthcoming Republican majority in one or possible both houses in being widely predicted, and much Democratic time, effort, and political capital is being focused on the January riot.

So those who bemoan the apparently impending denial of abortion rights in many states should blame not just the Republicans who oppose abortions, but also Democrats who favor abortion rights but failed to protect them when they had a good chance, says Banzhaf.