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Progressives eye filibuster, Hyde Amendment after Roe v. Wade reversal

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Washington — In response to the Supreme Court’s decision to overturn Roe v. Wade, the landmark 1973 ruling that established the right to an abortion, Democratic lawmakers on the left are demanding their party step up to defend women’s access to the procedure. 

The ruling, released one week ago, upended nearly 50 years of precedent by holding that states have the power to restrict or abolish abortion as their legislatures see fit. With that power delegated to state governments, abortion access will now heavily depend on where a person lives

The opinion of the high court’s conservative majority prompted immediate responses from both advocates and opponents of abortion rights. President Biden called the decision “a realization of an extreme ideology” in remarks that afternoon, but also conceded that without more votes in Congress, he won’t be able to revive abortion protections nationwide.

Though the Democratic-controlled House passed a bill in February to guarantee Roe v. Wade’s old protections, the bill hasn’t passed the Senate, which is split evenly along party lines. The Senate’s filibuster rule means that a supermajority of 60 senators’ votes are needed to enable consideration of nearly any bill. Although many Democratic senators are willing to dispense with the rule and pass abortion protections with a simple majority of just 51 votes, opposition from Democratic Senators Joe Manchin and Kyrsten Sinema, who favor retaining the filibuster, has left the party two votes short.

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“If voters help us maintain our control of the House and expand our majority in the Senate by at least two votes this November, we can make Roe the law all across the country as soon as January,” Senators Elizabeth Warren and Tina Smith wrote in a New York Times-published op-ed last Saturday.

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Democratic leaders agree — House Speaker Nancy Pelosi called the strategy “essential” in a letter to her Democratic colleagues on Monday, and Mr. Biden said Thursday he would support a filibuster “exception” to ensure abortion protections. 

Progressives are also urging the president to be more proactive in pushing back against the court’s decision ahead of the midterm elections, which are still over 100 days away. Rep. Alexandria Ocasio-Cortez tweeted that Democrats’ response “can’t just be one of voting.”

“Past Presidents, from Lincoln to FDR, understood the dangerous stakes of allowing an unchecked Court overreach its authority and threaten our democracy,” Ocasio-Cortez wrote. “The President [and] Dem leaders can no longer get away with familiar tactics of ‘committees’ and ‘studies’ to avoid tackling our crises head-on anymore.”

A letter signed by Senators Warren, Smith, and 18 other Democratic senators urged the Biden administration to explore using federal lands to offer abortion services in states where access has otherwise been restricted. The White House, however, pushed back on this idea. Vice President Kamala Harris said “it’s not, right now, what we are discussing” in an interview Monday with CNN’s Dana Bash.

Any executive orders the Biden administration ultimately pursues will also be constrained by the Hyde Amendment, which prohibits federal funds from being used on abortions. It’s unclear whether the Hyde Amendment prohibits the Biden administration from opening clinics on federal property, or whether an executive order could direct money toward travel for people seeking an abortion out of state.

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“While this proposal is well-intentioned, it could put women and providers at risk,” one White House official said about the idea of leveraging federal lands. “And importantly, in states where abortion is now illegal, women and providers who are not federal employees could be potentially be prosecuted.”

Though scrapping the filibuster is out of reach at least until after the midterms, the Hyde Amendment only requires 51 votes to repeal because it is part of the annual budget. Rep. Ocasio-Cortez called out the amendment by name during her Wednesday night appearance on “The Late Show,” saying its repeal by Democrats is needed for the party to remain credible in the eyes of their voters.

“I believe that [President Biden] should call on Congress to repeal the Hyde Amendment,” she said. “We need to show and demonstrate to the American people that when they vote to give Democrats power, we will use it to the fullest extent possible to defend everybody’s civil, economic, and human rights.”

It seems unlikely that Democrats will take this course of action right now, since Senator Manchin supported the restriction as recently as last fall. Mr. Biden supported the Hyde Amendment up until the 2020 campaign, but his most recent budget proposal tried to exclude the provision before Congress added it back in.

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Warren and Smith’s letter also suggests executive actions are less likely to run afoul of the Hyde Amendment. For instance, the senators urge the administration to protect access to abortion medications like mifepristone. Xavier Becerra, Biden’s Health secretary, responded on Tuesday by saying that his department would work with the attorney general to combat attempted state prohibitions on the pharmaceutical option. In his remarks, he called abortion drugs “critical.”

President Biden, who has spent the week overseas attending the G7 Summit in Europe, is meeting with Democratic governors Friday to discuss their states’ plans for managing abortion policy with Roe v. Wade gone. Officials in Democratic-controlled states expect a surge in demand as women from Republican-controlled states travel in search of an abortion, straining funds and clinical capacity. 

Governors Gavin Newsom of California, Jared Polis of Colorado, Ned Lamont of Connecticut, J.B. Pritzker of Illinois, Michelle Lujan Grisham of New Mexico, Kathy Hochul of New York, Roy Cooper of North Carolina, Kate Brown of Oregon, Dan McKee of Rhode Island, and Jay Inslee of Washington are expected to attend.

Gabrielle Ake and Corey Rangel contributed to this report.


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