Democrats Pushing Federal Abortion Law or Court Packing in Response to Leaked Opinion

Last week’s leak of the Supreme Court’s draft opinion that would overturn Roe v. Wade and restore the authority to regulate or ban abortions to the states has led to renewed demands for Congress and the Biden administration to either codify a right to abortion in federal law or to “pack” the court.

Senate Majority Leader Chuck Schumer (D-NY) took steps last week to set up a Wednesday vote on a bill that would enshrine a federal right to abortion throughout the country. Schumer moved quickly to capitalize on public sentiment after the leak of the draft opinion, although it appeared obvious that the bill lacked the support needed to pass the Senate.

The vote ultimately amounts to a political message before the midterm elections to drum up support and fundraising among the Democrats’ base. It appears to be designed to get a message out before the court’s final opinion in the case is formally announced.

As ordinary legislation, Schumer’s bill will require at least 60 votes to overcome a Republican filibuster and advance to a final vote. It is a virtual certainty the bill will fall short of that threshold.

In any event, it also appears it would lack even the 50 votes needed to get to a majority when the tie-breaking vote of Vice President Kamala Harris could be added in.

Sen. Joe Manchin (D-WV) is a pro-life Democrat and has repeatedly said that he will not support ending the Senate filibuster for the purpose of packing the court with additional Democratic-appointed justices.

Sen. Kyrsten Sinema (D-AZ) is a pro-choice proponent, but has likewise said she will not support ending the legislative filibuster, pointing out the unintended consequences of such a move when Democrats no longer control the Senate.

In his effort to ramp up enthusiasm, Schumer described the Wednesday vote as “one of the most important we will ever take.” He accused Republicans of “packing the court for years,” even though the size of the court has not been changed since the 19th century.

Sen. Ed Markey (D-MA) posted a tweet immediately after the leaked opinion was reported, saying the “stolen, illegitimate, and far-right” court was “set to destroy the right to abortion.” He added that Congress has “no other recourse” and “must expand the court.”

Rep. Adam Schiff likewise wrote on Twitter that “codifying Roe isn’t enough.” He also said Congress “must expand the court.”

Schumer and other Democratic lawmakers appear committed to betting that a majority of Americans think as they do about abortion in the transparent effort to salvage some momentum in the midterm election season. The gamble appears to present a significant risk.