The U.S. Capitol is seen in Washington, D.C., in September 2022. (Photo by Lynne Terry/Oregon Capital Chronicle)
WASHINGTON — U.S. Senate Democrats appear lukewarm about pursuing reproductive rights legislation in a divided Congress, even as a federal judge in Texas considers overturning access to abortion pills nationwide.
Interviews by States Newsroom with Democrats who control the Senate by a narrow margin found little optimism they could counter a ruling that could potentially overturn the U.S. Food and Drug Administration’s approval of mifepristone after more than two decades, or change when and how it is used. The FDA is the federal agency that regulates everything from prescription drugs to certain foods to tobacco products.
The case in U.S. District Court for the North District of Texas has gained nationwide attention since the federal judge’s ruling would apply to the entire country, possibly restricting access to medication abortion even in states where lawmakers or voters have kept abortion legal.
Democratic senators, while underlining their support for reproductive rights, did not seem to have a plan in mind if the judge ends access to medication abortion, which accounts for more than half of pregnancy terminations in the United States.
That would leave any federal response up to the White House and the FDA.
Vermont independent Sen. Bernie Sanders, chair of the U.S. Senate Health, Education, Labor and Pensions Committee, said Democrats should “be as strong as we possibly can” in order to ensure that “the issue of abortion is a woman’s issue, not a governmental issue.”
When asked specifically what the Senate should do on medication abortion, Sanders replied, “I don’t have an answer to that,” adding that Democrats should “be as strong and vigorous as we can.”
The ruling is expected any day in the lawsuit filed by anti-abortion medical organizations. It’s likely the suit will eventually go before the same U.S. Supreme Court that struck down the constitutional right to an abortion last year in the Dobbs v. Jackson Women’s Health Organization ruling.
Democratic senators who spoke to States Newsroom saw little future in Congress for a response to a ruling that affects access to medication abortion, part of a larger debate over reproductive rights that has stalled in Washington.
Michigan Sen. Debbie Stabenow, chair of the chamber’s Democratic Policy & Communications Committee, said “we’ll see” when asked if Senate Democrats would move a bill on medication abortion, if the judge rules to revoke access. The medication is FDA-approved for up to 10 weeks.
“It’s very important that women have access to medication abortion, and so we’ll have to see what our options are,” Stabenow said.
Others saw the issue in the hands of states, where many led by Republicans have moved in the past year to restrict reproductive rights. “What we should do is what we’re doing in Ohio, and that’s a ballot issue,” said Sen. Sherrod Brown.
“I’m not gonna get sucked into ‘Will the House pass it?’ because the House won’t,” Brown added. “They won’t pass anything that’s pro-women’s rights ever with McCarthy and the House run by the far right.”
Abortion rights groups in Ohio, Brown said, are trying to gather more than 400,000 signatures to get a ballot question in front of voters.
But Republican state lawmakers are trying to raise that threshold in an attempt to block the question from going before Ohio voters, a move Brown denounced.
“They want to change the constitution (so) that ballot issues now need 60% instead of 50 plus one,” Brown said. “It’s the most corrupt state government in the country.”
Virginia Sen. Tim Kaine said Senate Democrats are unlikely to get the Republican backing they need to move their centerpiece abortion rights bill, known as the Women’s Health Protection Act, through the 60-vote legislative filibuster.
Senate Majority Leader Chuck Schumer, a New York Democrat, brought that abortion rights bill to the Senate floor twice last year. Each time it was unable to garner the bipartisan backing needed to move past the 60-vote legislative filibuster.
Democrats also tried to pass legislation that would have guaranteed access to birth control, though Republicans blocked it from passing the U.S. Senate, arguing it went too far.
Kaine, who co-authored a bipartisan abortion rights bill last year with Maine Republican Sen. Susan Collins, Alaska GOP Sen. Lisa Murkowski and Arizona independent Sen. Kyrsten Sinema, said that bill also isn’t likely to get the votes needed to move toward passage in the Senate.
There should be bipartisan support to protect access to the abortion pill, Kaine said, though he added getting enough support would be an uphill climb.
“I’m sure there’d be a little bit of bipartisan support in the Senate on it, but whether we could get 10 or nine, that’d be a lift,” Kaine said, referring to the number of Republicans needed to get at least 60 votes for the bill to move to final passage.
“But I think we may make an effort on that because when you actually get a bill like that ready, you might be surprised at some who will vote yes,” Kaine said.
Looking for opportunities
Arizona Sen. Mark Kelly said Democrats’ main abortion rights bill would ensure access to medication abortion, though he said if the judge overturns access to the abortion pill throughout the country, Democrats may need to look for a different path.
“I think the bill we have would address that, but we’ve got to look for opportunities to … restore these rights,” Kelly said, noting that he has “two daughters and a granddaughter that now have fewer rights than my grandmother had.”
Rhode Island Sen. Sheldon Whitehouse said he believes Democrats should try to protect access to medication abortion if the Texas federal judge moves to restrict access.
“Depending on what the judge does, yeah,” he said.
Oregon Sen. Ron Wyden said he supports establishing abortion access in “black letter law” while calling on the FDA to ignore any changes or restrictions the federal judge may place on medication abortion.
“The first thing we’ve got to do is to make sure that people realize that the Food and Drug Administration has the authority to ignore the ruling that is coming out from this judge in Texas, who … after all the states’ rights discussion is going to say, on a national basis, that he wants to override the FDA,” Wyden said.
Michigan Sen. Gary Peters, chair of Senate Democrats’ campaign arm, said he didn’t know if Democrats would move abortion access legislation to the floor.
“We’ll see how things evolve in the coming months. But, you know, it’s pretty clear where everybody is on that issue, and there’s no question it will be on the ballot again next year,” Peters said. “Voters will have an opportunity to make their voice heard.”
Minnesota Sen. Tina Smith and Missouri Rep. Cori Bush introduced legislation in early February intended to bolster protections for medication abortion, including for access via telehealth and without an in-person dispensing requirement.
The measure, which has garnered fewer than 30 co-sponsors, would also bolster protections for certain certified pharmacies to dispense mifepristone through the mail.
Smith said in a written statement announcing the bill’s introduction that it would be “a critical step to protect what remaining access exists to reproductive health care.”
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