They only had the votes for a less-extreme abortion bill than the one activists wanted.
They only had the votes for a less-extreme abortion bill than the one activists wanted.
F ollowing the Supreme Court’s decision to overturn Roe v. Wade and restore the power of states to set their own abortion policies, some progressives are demanding to know: Why didn’t Democrats pass a federal law codifying Roe when they controlled the White House and had overwhelming majorities in Congress?
Some reporters and pundits have said that Democrats in Congress simply lacked the votes to ever enshrine in federal statute a right to abortion. But a closer look at the last two unified Democratic governments — the first under the Clinton presidency in 1993 and 1994 and the second under the Obama presidency in 2009 and 2010 — shows there very likely were congressional majorities in support of a federal right to abortion. There just weren’t enough votes to enshrine a right as expansive as the one that activists wanted.
After Democrats swept to power in 1992, the same year that the Supreme Court upheld Roe by a 5–4 vote in its Casey decision, there was a concerted effort in Congress to codify Roe by passing the Freedom of Choice Act (FOCA).
“In the weeks following Bill Clinton’s election, abortion rights groups said they were confident that a bill to codify a woman’s right to an abortion would become law within the first few months of the 103rd Congress,” Congressional Quarterly reported in May 1993. FOCA had passed out of committee in the Senate, but by May of 1993 divisions had emerged that threatened the bill: Supporters of the bill “feared a flood of floor amendments that they said would undermine the bill’s intent.”
As CQ explained:
[FOCA] would have the effect of overturning existing state laws that require 24-hour waiting periods and would nullify some parental notice and consent laws for minors. Many House members and senators want to allow precisely those types of restrictions on abortion. But abortion rights groups and their allies in Congress are adamantly opposed to such limits.
FOCA’s legislative text made plain that no state could restrict abortion “at any time” in pregnancy so long as the procedure was needed to protect the “health” of the mother. The term “health” was left undefined, and an open amendment process could have narrowed its meaning, so that the bill would protect only those with serious physical — as opposed to psychological — health issues.
“I’m firmly pro-choice for the first three months of pregnancy,” Democratic congressman Paul McHale of Pennsylvania told CQ. “But I have a great deal of difficulty as a matter of conscience accepting elective termination [of pregnancy] at that last stage in the gestational process.”
“The position we’re caught in is allowing no amendments and having people vote against it because of that, and allowing amendments that make the bill unacceptable to pro-choice people,” Republican congresswoman Olympia Snowe of Maine said in the same report.
The Freedom of Choice Act thus never came up for a vote before the full House or Senate during the first two years of Clinton’s presidency, when Democrats had complete control of the government.
On the campaign trail, presidential candidate Barack Obama said that signing FOCA into law would be the “first thing” he’d do as president. But though he swept to power with a 60-seat Senate majority and a 256-seat House majority, there was no legislative movement on FOCA during the first two years of Obama’s presidency.
Matthew Yglesias claimed today on Twitter that without scrapping the Senate filibuster, Democrats would have had no hope of codifying Roe at that time. But a close look shows that there were in fact 60 senators who supported a nationwide right to abortion back then.
From April 2009 to January 2011, Democrats held either 59 or 60 Senate seats. In 2009, every Senate Democrat, with the exceptions of Ben Nelson of Nebraska and Bob Casey Jr. of Pennsylvania, supported a right to abortion. Democrats in other conservative states, including Mary Landrieu of Louisiana, Robert Byrd of West Virginia, and Blanche Lincoln of Arkansas, had voted in favor of a resolution expressing support for Roe in 1999.* Harry Reid had voted against that resolution but subsequently made his peace with progressives in order to become majority leader. Democratic senator Mark Pryor of Arkansas said of his position on abortion that he was “somewhere … in the middle of that issue.” Even if Pryor, Nelson, and Casey had defected on an abortion vote, there were three Republican senators who supported Roe: Lisa Murkowski of Alaska, Susan Collins of Maine, and Olympia Snowe of Maine. Their votes would have gotten some federal abortion bill the 60 votes it needed to overcome a Senate filibuster. (Another pro-Roe Republican, Scott Brown of Massachusetts, filled the Senate seat formerly held by Democrat Ted Kennedy in January of 2010.)
What about the House at that point? There was likely majority support there for some federal right to abortion — just not for a right as expansive as the one in FOCA.
House Democrats were divided over the issue of taxpayer funding of abortion during that Congress. The House and Senate passed a bill allowing Medicaid funding of elective abortions in Washington, D.C., but Reid and Pelosi needed to compromise with a small group of pro-life Democrats to secure final passage of the Affordable Care Act. (The version of the ACA that became law required state exchanges to offer at least one plan that covered elective abortions, unless a state passed a law banning such plans from its exchange.)
But the issue of taxpayer funding of abortion is not a great proxy for support of Roe. There were many Democrats back then, including Joe Biden, who opposed taxpayer funding but supported Roe, just as Joe Manchin does today. There were at least 20 pro-choice House Democrats who voted for an amendment limiting taxpayer funding, and at least three House Republicans who supported Roe (Charlie Dent of Pennsylvania, Mary Bono Mack of California, and Rodney Frelinghuysen of New Jersey).
If Pelosi had the muscle to get Obamacare through the House, why didn’t she try to ram through a bill protecting Roe? Three factors were at play. First, there were six sitting Supreme Court justices who supported Roe. Second, it had taken significant political capital to pass Obamacare, and a vote on FOCA would have been politically painful. Third, the same sorts of divisions that had killed FOCA in 1993 were still at play in Congress in 2009 — there was likely majority support for some right to abortion, just not for one as broad as FOCA’s.
In the years since, of course, the parties have become even more polarized on the issue, and in September 2021, shortly after Texas effectively banned most abortions beyond the point when an unborn baby’s heartbeat can be detected, Pelosi finally pushed a sweeping abortion bill through the House. The successor to FOCA, the Women’s Health Protection Act (WHPA), was just as radical on the issue of late-term abortion as FOCA and managed to go several steps beyond FOCA (for example, the WHPA supersedes conscience laws and the Religious Freedom Restoration Act). Pelosi didn’t allow amendments to be made to the bill, and only one House Democrat (Henry Cuellar of Texas) ended up voting against it.
Activists who insisted on holding out for a more extreme bill are partly responsible for the fact that there is no federal law establishing a right to abortion, but Pelosi and other Democrats are now promising to give them what they always wanted: Congressional Democrats and President Biden are campaigning on enacting a bill that would create a right to abortion in all 50 states through all nine months of pregnancy if they keep their House majority and increase their Senate majority by two seats in November.
*Correction: This article originally incorrectly reported that Democratic senator Mark Pryor of Arkansas had voted for a resolution in support of Roe. Pryor, in fact, had a mixed record on abortion.