A National Abortion Rights Law that Can Pass the Senate

What would a national abortion rights law that can get 60 votes in the Senate look like?

With the Supreme Court poised to overturn Roe v. Wade and Planned Parenthood v. Casey, that is the vital question supporters of abortion rights should be asking themselves. Sadly, that doesn't seem to be where most of us are—at least not yet.

We don't just need anger and outrage. We need an achievable solution that preserves abortion rights as much as possible in all states of Union.

Roe and Casey Won't Become Federal Law

The Senate will likely soon vote on legislation to make the abortion rights created by Roe and Casey federal law to some degree. That vote will fail to clear the 60-vote threshold to stop a filibuster by a large margin.

Perhaps 49 Senate Democrats and Independents—all Democrats but pro-life Joe Manchin of West Virginia—will vote in favor.  Perhaps pro-choice GOP Senators Susan Collins of Maine and Lisa Murkowski of Alaska will also vote in favor. Likely all other Republican Senators will vote against. The measure will still be at least nine votes short of clearing the filibuster.

Senate Majority Leader Chuck Schumer says "every American is going to see which side every senator stands" with this vote. But, as my prior paragraph notes, it's already pretty clear where every senator stands.

More importantly, it's unlikely any pro-life senator will pay a political price by casting a vote against abortion legislation as permissive as Roe/Casey. These days, GOP senators are most worried about looking like a RINO in a Republican primary. Alienating pro-choice voters who probably never supported them is much lower on their list of concerns.

Calls to scrap the Senate filibuster and pass Roe/Casey legislation with a simple Senate majority are misguided. Manchin, Democratic Sen. Kyrsten Sinema of Arizona, and GOP senators are against scrapping the filibuster for any reason. And, Manchin certainly won't help kill it for pro-choice legislation. The votes to end the filibuster simply aren't there. (Democrats may also be glad they have the filibuster if they lose control of the Senate this year or in 2024.)

So, we will end up with a contentious vote on Roe/Casey legislation that fails to clear the filibuster, further embitters both sides, likely has no effect on which senators win reelection, and does nothing to protect abortion rights. This is not how abortion rights advocates should expend their energy.

A Different Legislative Path

We need to create a national abortion rights law that can pass the Senate with 60 votes. While that may sound impossible, with some painful compromise by all sides, it may be achievable.

The compromise I suggest below may seem heretical to many pro-choice proponents and a long shot to attract enough Republican votes. However, we clearly cannot continue to rely on the Supreme Court to protect an unenumerated right to abortion in the Constitution.

If we continue on our current path, abortion rights will soon disappear in Red states. Republicans will also continue to push federal judicial nominations and laws that attempt to curtail abortion rights nationally. Now, while Democrats control the Presidency, House, and Senate, we must push for a bold deal with Senate Republicans on abortion rights.

I propose a compromise where the legal time limit for unrestricted abortion is moved earlier in pregnancy. (I'll talk about new time limit specifics in a bit.) This time limit change would be made in return for new social policies and major government spending that:

• Reduce unwanted pregnancies through non-abstinence based sex education and improved access to contraception.
• Make pregnancy and childbirth easier for women with low incomes through paid or heavily-subsidized medical care.
• Guarantee access to abortion clinics in all states for women wishing to use them within the bounds of the law.
• Protect pregnant women by legally guaranteeing they may have an abortion at any time if their pregnancy endangers their health or if their fetus has fatal abnormalities.
• Make raising a child easier through programs for all families like paid maternity/paternity leave and universal Pre-Kindergarten and means-tested programs like expanded Child Tax Credits and paid or heavily-subsidized child care.
• Properly resource foster care and adoption systems so that children in them have better care and a chance at more rapid adoption.

Can we get everything on that list at the level we want it in a deal with Republicans? No. But, we could negotiate for a lot because we can offer Senate Republicans things at least some of them will want in return:

1. Unwanted pregnancies will be reduced through better sex education and access to contraception.
2. Pregnant women will choose to have fewer abortions as they will have better social and economic support for having a baby and either raising it or giving it up for adoption.
3. Abortions for non-medical reasons will have an earlier time limit in Blue states. This will be a big win for pro-lifers. More than two-thirds of abortions occur in Blue states despite Roe/Casey currently providing abortion rights in Red states. The percentage of abortions taking place in Blue states post Roe/Casey will likely be even higher. Republicans will care deeply about this.
4. We will help to create a "culture of life" that reduces abortions, supports families in raising children, better supports foster care and adoption, and begins to reverse America's plummeting birth rate.

I'm sure you're already thinking about all the reasons this compromise would never get enough support from either side. Let me address some of the major concerns.

Why Accept A Shorter Time Limit?

I'm a man. I'm suggesting that women give up a degree of bodily autonomy through an earlier legal time limit for unrestricted abortion. I get the optics of that. But, pregnant women living in all states would get a great deal of legal and economic support in return with this compromise.

That support would reduce unwanted pregnancies. It would help with abortions within the new legal time limit and with abortions for medical reasons at any time. It would help with having a baby and giving it up for adoption. It would help with having and raising a baby. Women would still be empowered to make the choices that are best for them and then would be better supported after making those choices.

So, what would the new time limit for unrestricted abortion be? Something between 15 weeks and 20 weeks, depending on how much new social policy and spending Republicans are willing to offer in return.

Your immediate reaction may be that a limit of 15-20 weeks into pregnancy doesn't give enough time for a woman to make an abortion decision and have one. But, it is actually already enough time now in the vast majority of cases.

Pregnant women can currently have unrestricted abortions for up to 24 weeks into pregnancy. That is the generally accepted standard of fetal viability under Casey. However, women rarely wait anywhere near that long. In 2019, 92.7% of abortions were performed at 13 weeks or less, 6.2% were performed at 14–20 weeks, and <1.0% were performed at 21 weeks or more.

Less than 7.2% of abortions in 2019 happened after the 13th week. If we move the time limit for unrestricted abortion to something in the 15-20 week range—still higher than 13 weeks—and maintain protection for medically-necessary abortions, the change would impact a small percentage of abortion seekers.

Those impacted could choose to have earlier abortions with better legal support, still have medically-necessary abortions at any time, or use the new support systems to help have their babies. Also, perhaps some women will have now avoided unwanted pregnancies with better sex education and contraception access.

While I realize an earlier time limit isn't something pro-choice advocates will like, it is manageable for all the reasons above.

Why Would Republicans Agree to This?

Republicans aren't known for supporting abortion rights, social programs, or major government spending. So, yes, this will be a hard sell. I'm not denying that.

But, if Republicans can forge a compromise to reduce abortions, have unrestricted abortions limited at an earlier time nationwide, help parents raise children, and help reduce US population decline, there's a lot of conservative red meat to like there.

Also, polls consistently show that a majority of Americans supports abortion with restrictions. It's one thing for a Republican senator to oppose Roe/Casey. It's another to oppose a compromise that shortens the time limit for unrestricted abortion and helps raise families. By embracing this compromise, Democrats could make Republicans take on unpopular positions if they don't compromise in turn.

Finally, we don't need that many more Senate votes. As noted at the start of this piece, there could be ~51 Senate votes to pass something like Roe/Casey into law now. If the benefits of this compromise can keep those votes and sway nine more, it will clear the filibuster.

Manchin and Utah Republican Mitt Romney have independent streaks and like a good bipartisan deal.

Several Republican senators are retiring this year. So they may be feeling more independent or looking toward their legacies. Roy Blunt (a dealmaker from Missouri), Richard Burr (North Carolina), Rob Portman (a moderate from Ohio), Richard Shelby (a former Democrat from Alabama), and Pat Toomey (Pennsylvania) are all worth approaching.

Republican senators considering a presidential run in 2024 may also consider this compromise if they can sell voters on the conservative benefits of it while looking like a bipartisan leader.

We Must Move Forward

Unsuccessful show votes in the Senate and energizing pro-choice voters aren't enough of a response to what the Supreme Court will soon do to Roe/Casey. We need to pursue a bold legislative compromise on abortion rights. And, we need to do it while Democrats control the Presidency, House, and Senate. The time to act is now.