The path forward for congressional action on abortion rights remains unclear on Wednesday as a sweeping Democratic-led bill is poised to fail in the U.S. Senate.
The attempts to codify abortion rights at the federal level come as the Supreme Court is likely to overturn Roe v. Wade this year, according to a draft court decision reported by Politico last week. But they also underscore differences among Democrats and also between them and Sen. Susan Collins, R-Maine, who is unique in her party for her public support of the Roe v. Wade.
Collins and Sen. Lisa Murkowski, R-Alaska, have put forward a narrower bill that seeks to codify the language of Roe v. Wade and the 1992 Planned Parenthood v. Casey decision, which upheld abortion rights while allowing for some restrictions on access.
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Neither bill has a clear path forward in Congress due to the 60-vote legislative filibuster. But both highlight disparate understandings of the next steps on abortion between Collins, who is largely looking to maintain the status quo under Roe v. Wade, and most Democrats, who are looking to preserve the 1973 decision while also targeting restrictions on abortion rights that have already limited access to the procedure in conservative states.
The Democratic-led bill, known as the Women’s Health Protection Act, passed the U.S. House along mostly party lines last year with Reps. Chellie Pingree and Jared Golden, both Democrats from Maine, voting in favor. Sen. Angus King backed it in the Senate, while Collins was opposed.
It aims to enshrine the right to an abortion in federal law and limit states’ ability to to restrict access. The bill would have relatively few effects in Maine, where legal protections for abortion are already strong, compared to other states but would limit the effects of a potential Supreme Court decision overturning Roe v. Wade and could force states with stringent restrictions on abortion access to continue to allow the procedure regardless of the court’s upcoming decision.
Republicans including Collins have argued the bill is too broad and could force Catholic health care providers to perform abortions despite religious objections. Democrats have contested that claim, saying the bill limits states from imposing restrictions on abortion rights but does not force providers to perform the procedure.
The legislation goes further than current court decisions in other ways. For example, it explicitly bars states from requiring women to make in-person visits to an abortion provider that are not medically necessary, a provision that would target current laws in some conservative states that call for a waiting period after a patient first visits a provider before receiving an abortion. Those laws have been upheld under the current Roe v. Wade framework.
The alternative bill from Collins and Murkowski would restrict states from placing a “undue burden” on women seeking an abortion prior to fetal viability, drawing from language of the 1992 Planned Parenthood v. Casey decision. It specifies that “unnecessary” health regulations that present a “substantial obstacle” to women seeking an abortion constitute an undue burden. Courts would apply that standard to determine which regulations could remain.
It specifies that “unnecessary” health regulations that present a “substantial obstacle” to women seeking an abortion constitute an undue burden, but would likely allow states to maintain some restrictions at the discretion of the courts.
Collins and Murkowski have pointed to laws requiring parental notification for minors seeking an abortion and bans on abortions based on the sex of the fetus — which have been struck down in some states but allowed to stand in others — as among the regulations that could be undermined by the Women’s Health Protection Act but would likely stand under their bill.
Democrats have generally looked at the Collins-Murkowski bill with skepticism. Abortion rights advocates have raised concerns that it would not halt a Texas law, characterized by Collins as “extreme,” that effectively prohibits abortions after six weeks of pregancy, using private lawsuits as an enforcement mechanism. That law continues to face challenges but has remained in effect so far, although Collins argues it could be unlawful under her bill.
Wednesday’s vote is unlikely to be the end of the abortion rights discussion in Congress. Collins’ office confirmed on Tuesday that she had discussed a possible compromise with Sen. Tim Kaine, D-Virginia.
Even such a compromise could still face trouble in the Senate, where 60 votes are needed to overcome the filibuster. No Republicans other than Collins and Murkowski have indicated publicly that they are likely to support congressional efforts to enshrine abortion rights.
Senate Republicans and a handful of Democrats have expressed skepticism of changing the filibuster to codify the right to an abortion. A Collins spokesperson confirmed Tuesday the Maine senator continues to oppose filibuster changes.