President Joe Biden stepped up his response Thursday to the Supreme Court's radical ruling overturning a half century of a constitutional right to abortion in the United States.
"The most important thing to be clear about is, we have to codify Roe v. Wade into law," Biden told reporters on the final day of the NATO summit in Madrid. "And if the filibuster gets in the way, it's like voting rights, it should be we provide an exception for this—we require an exception to the filibuster for this action to deal with the Supreme Court decision."
In remarks following the ruling last Friday, Biden called congressional action "the only way" to restore abortion protections, but he stopped short of calling for a carve out to the filibuster, the Senate's 60-vote threshold for considering legislation.
Biden, however, did urge voters to have the final say on the matter.
"This fall, we must elect more senators and representatives who will codify a woman’s right to choose into federal law once again," he said last Friday at the White House. "Congress must act. And with your vote, you can act. You can have the final word. This is not over."
Biden's new call for a filibuster carve out for abortion could have bigger implications for the midterm elections than for the immediate push to codify Roe v. Wade into federal law—a bill known as the Women's Health Protection Act that has already cleared the House. The entire Senate Democratic caucus is pro-choice, but not every Senate Democrat is willing to scrap the filibuster to pass pressing legislation. In January, 48 out of 50 senators voted to change the filibuster in order to take up two critical voting rights bills. The two Democratic holdouts are infuriatingly infamous by now—Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia.
The White House almost surely has a whip count by now of which Senate Democrats would similarly agree to a carve out to restore abortion protections. But assuming the legislation codifying Roe is still hung up in the Senate for now, the vote-counting exercise might not be the most important matter at hand. Abortion rights supporters and activists need to see vision, passion, and a path to realizing their goals of restoring the constitutional rights the right-wing Supreme Court stripped from Americans across the country.
If it’s not possible to restore abortion protections with the Congress we have, Biden should tell voters exactly what he needs in order to get it done in the next legislative session. Whatever the deficit is—and it's quite possibly the same two Democratic senators—the president should forcefully pledge to codify Roe next session if he can get more senators and keep the House. Set out a tangible goal with an urgency that matches the moment.
Something like, I promise you, I promise you—I will move with urgency to restore these critical constitutional rights if the American people give me the votes I need in the Senate to do it. (He should pledge the same for voting rights, which are equally as critical to the salvation of this republic.)
Sen. Elizabeth Warren of Massachusetts offered a version of such a pledge Sunday on ABC's This Week, saying Democrats need "two senators who are willing to protect access to abortion and get rid of the filibuster."
Warren then name-checked two Democratic candidates who could provide those votes, surely boosting their name recognition along with their fundraising.
"Yes, John Fetterman, I’m looking at you in Pennsylvania. Mandela Barnes, I’m looking at you in Wisconsin," Warren said. "We bring them in, then we’ve got the votes, and we can protect every woman, no matter where she lives."
House Speaker Nancy Pelosi has taken a different but equally as important midterm tack. On the day of the ruling, Pelosi imagined what Republicans would do if given the majority.
“The Republicans are plotting a nationwide abortion ban. They cannot be allowed to have majority in the Congress to do that. That’s their goal,” she said.
Now Pelosi is expanding out and deepening the political pain for Republicans by planning votes on a whole range of privacy issues. According to a Dear Colleague letter released Monday, House Democrats have been crafting legislation that will protect women's personal data stored in reproductive health apps, make clear that Americans have a constitutional right to travel at will between states, and codify Roe protections by once again passing the Women's Health Protection Act.
But that's not all. In light of Justice Clarence Thomas' clarion call for legal challenges to contraception and in-vitro fertilization access as well as same-sex marriage rights, Pelosi is promising to introduce legislation to "further codify freedoms which Americans currently enjoy."
Pelosi also took direct aim at the filibuster, saying it was essential to expand Democrats' pro-choice majorities in the House and Senate in November in order to "eliminate the filibuster so that we can restore women’s fundamental rights – and freedom for every American."
Championing abortion along with a broader array of privacy rights and forcing Republicans to take uncomfortable votes on them is exactly the aggressive posture Democrats should be taking for the midterms. On that front, the White House and congressional Democrats appear to be on the same page now. In fact, it was the first point the president made Thursday in Madrid before calling for a filibuster carve out.
“The first and foremost thing we should do is make it clear how outrageous this decision was and how much it impacts on not just on a woman's right to choose—which is a critical, critical piece—but on privacy generally,” Biden said.
Democrats may not yet have the majorities they need, particularly in Senate, to protect abortion rights nationwide, but they should tell American voters exactly what they need to get it done. That’s a solid rallying cry for the midterms and a chance for Democrats to make good on a promise that many abortion rights activists desperately want to see enacted.