Democrats Schedule Votes on Abortion Access, but Lack a Legislative Path


WASHINGTON — Democrats in Congress, under pressure to take quick action in response to the Supreme Court’s decision striking down abortion rights, are planning to hold votes this week on legislation that seeks to preserve access to abortions in the post-Roe v. Wade era.

The bills are all but certain to fail in the evenly divided Senate, where broad Republican opposition means they cannot muster the 60 votes to move forward. But Democrats are pushing forward amid a groundswell of pressure from progressives in their ranks who were outraged by the Supreme Court ruling and irate that their leaders appeared to have no plan to respond.

In the immediate aftermath of the decision last month that overturned the nearly 50-year-old precedent that established abortion rights, as protesters gathered outside the Supreme Court demanding action, House Democrats convened on the steps of the Capitol across the street, singing “God Bless America” to celebrate passage of a gun safety bill.

The gesture was widely derided by activists on the left, who denounced the lack of a cogent response from President Biden or from Congress to a ruling that had been anticipated for weeks.

Democrats on Capitol Hill are now moving forward with a plan that is aimed at framing the issue for the midterm elections. Lacking the votes to force action, Democrats are using the debate to show voters where they stand and portray Republicans as out of step with a majority of Americans, who polls consistently show support abortion access.

The first measure, which Speaker Nancy Pelosi plans to bring to a vote this week, would protect the right to travel for abortion services. A second measure, a version of which passed the House last year, would explicitly give health care providers the right to provide abortion services and their patients the right to obtain them, invalidating a variety of restrictions that were enacted in the aftermath of Roe.

Senate Democrats tried and failed in May to take up that legislation, the Women’s Health Protection Act. But Republicans and one Democrat — Senator Joe Manchin III of West Virginia — opposed it, blocking a debate and leaving the measure short of even the simple majority that it would need to clear Congress.

House Democrats also plan to bring up more legislation in the coming weeks that would protect the privacy of patients’ health records, amid concern that law enforcement officials could try to use the data to track pregnancies and enforce abortion restrictions or bans.

Representative Steny H. Hoyer of Maryland, the majority leader, said in a letter to colleagues that leadership would look into more legislative steps “to respond to the Dobbs v. Jackson decision and protect the rights, health and safety of Americans under a court determined to ignore precedent and eager to legislate.”

On Friday, reacting to pressure to respond more forcefully to the Supreme Court decision, Mr. Biden also issued an executive order aimed at ensuring access to contraception and other women’s health services. “A 10-year-old girl shouldn’t be forced to give birth to a rapist’s child,” said Mr. Biden, who grew visibly angry.

On Monday, as a follow-up to the president’s order, the Biden administration instructed hospitals that, even in states where abortion is illegal, federal law required doctors to perform an abortion for a pregnant woman who showed up in the emergency department if they believed it was “the stabilizing treatment necessary” to resolve an emergency medical condition.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Xavier Becerra, Mr. Biden’s health secretary, said in a statement.

Mr. Becerra made his position known in a letter to health care providers, giving them official guidance on their responsibilities under the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, a 1986 law that requires anyone coming to an emergency department to be stabilized and treated, regardless of insurance status or ability to pay.

On Capitol Hill, Democrats plan to debate measures that would preserve as much access to abortion as possible.

One bill, sponsored by Representative Lizzie Fletcher, Democrat of Texas, would prohibit any state from enacting or enforcing a law restricting travel to another state to obtain an abortion.

In Texas, which bans abortion after about six weeks of pregnancy, about 1,400 women are leaving each month seeking abortion care, Ms. Fletcher said. Planned Parenthood health centers in neighboring states have experienced a nearly 800 percent increase in patients seeking abortions since Texas instituted its ban, according to the organization.

“We are hearing legislators in our state already talking about preventing women from leaving the state to obtain abortions, and it’s not just Texas,” Ms. Fletcher said in an interview. “The idea that you can’t leave the state to get reproductive health care in a state where it’s legal makes this is an essential place to start.”

The Senate, however, remains the main blockade to any legislative efforts to codify Roe v. Wade into law. All but two of the chamber’s Republicans oppose abortion rights, leaving little hope that any bill could move forward; with Mr. Manchin also opposed, passage would be all but impossible.

Aware of that reality, Senator Chuck Schumer, Democrat of New York and the majority leader, has turned his focus to the confirmation of circuit judges, unwilling to use his remaining floor time before the midterms on abortion-related bills that have no chance of enactment.

Senator Tim Kaine, Democrat of Virginia, who is a practicing Catholic, and Senator Kyrsten Sinema, Democrat of Arizona, have been working with Senators Susan Collins of Maine and Lisa Murkowski of Alaska, the only two Republican supporters of abortion rights in the Senate, to introduce legislation that would codify the framework of Roe and related cases. But Democrats dismissed an alternative proposal, arguing that it was toothless and lacked clear guidance about what states could and could not do.

Looking for some path to channel the anger felt by many on the left, Senate Democrats are planning to hold hearings in the coming weeks. Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Judiciary Committee, has scheduled a hearing on Tuesday on the legal consequences of the Dobbs decision and “to explore the grim reality of a post-Roe America.” Witnesses include Dr. Colleen P. McNicholas, a Planned Parenthood abortion provider in Missouri and Southern Illinois.

Senator Patty Murray, the chairwoman of the Health, Education, Labor and Pensions Committee, has scheduled another hearing for next week with abortion providers and physicians.

Many progressives say the spate of hearings and votes come too late.

“It’s inexcusable for Democratic leadership to have known for months that this was coming and muster such an anemic, milquetoast response,” said Stephanie Taylor, a founder of the Progressive Change Campaign Committee. “It’s one thing to not show up with the necessary outrage for this kind of news; it’s another not to show up with a battle plan.”

Elected Democrats have also urged Mr. Biden to do more, including declaring a public health emergency to protect abortion access for all Americans; directing federal agencies to increase the accessibility of medication abortion; providing vouchers for travel and child care for people seeking access to abortion care out of state; and using federal property to increase access to abortion.

Some lawmakers also want to focus on the Senate confirmation process for Supreme Court nominees, arguing that the Dobbs decision exposed how broken it is. Representatives Ted Lieu, Democrat of California, and Alexandria Ocasio-Cortez, Democrat of New York, called on Mr. Schumer to formally establish a position on whether Justices Brett M. Kavanaugh and Neil M. Gorsuch lied under oath during their confirmations, misleading senators by saying that Roe v. Wade and Planned Parenthood v. Casey were established precedent and implying that they would not support invalidating them.

“We must call out their actions for what they were before the moment passes,” Mr. Lieu and Ms. Ocasio-Cortez wrote in the letter, “so that we can prevent such a mendacious denigration of our fundamental rights and the rule of law from ever happening again.”

Stephanie Lai and Sheryl Gay Stolberg contributed reporting from Washington.


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