Senate Democrats have failed in their efforts to codify abortion rights, even after a leaked draft of a Supreme Court decision indicated that a majority of justices were on the verge of overturning Roe v. Wade, the 1973 decision that assured a right to abortion.
In February, Senate Democrats sought to pass H.R. 3755, the House-passed Women's Health Protection Act, but they fell well short of the required 60 votes to proceed to a final vote.
Then, just days after the May 2 leak, Senate Democrats tried again, and failed.
The bill considered on May 11 was tweaked slightly from the version taken up in the chamber in February. It would have specifically prohibited mandatory ultrasounds, waiting periods, and other measures that critics say pose obstacles to those seeking abortions.
Every Democrat except for Sen. Joe Manchin of West Virginia voted for the measure, while every Republican voted against it. This left the measure not only short of the required 60 votes for final consideration but also, with a final count of 49-51, more votes against than in favor.
Manchin said he wasn't comfortable supporting the Women's Health Protection Act because it "wipes 500 state laws off the books. It expands abortion. … That's not where we are today."
Sen. Lisa Murkowski, a moderate Republican from Alaska also expressed concern that the Democratic bill did not allow Catholic hospitals to refuse to perform abortions.
Democrats, at least for the time being, opted not to seek a vote on a different measure to codify Roe v. Wade that had the backing of at least some moderate Senate Republicans.
That alternative bill — sponsored by one of those Republican moderates, Sen. Susan Collins of Maine — is more concise than the bill that Senate Democratic leaders pursued. It says that states "may not impose an undue burden" or "restrict" the ability of a woman "to choose whether or not to terminate a pregnancy before fetal viability."
Supporters of that bill said it had the potential to secure a bipartisan majority in the Senate, which they touted as a clear affirmation of abortion rights even if the measure wasn't able to reach the 60-vote required for final consideration. But Democrats against it argued that it had loopholes that anti-abortion advocates would use to retrict abortions.
On the eve of the May 11 Senate vote, some Democrats acknowledged that bringing the measure to the floor was more about seizing a message that would mobilize abortion-rights voters.
"If the decision happens, tens of millions of women will see their right to have control over their own bodies vanish in the blink of an eye," Senate Majority Leader Chuck Schumer, D-N.Y., told reporters.
The White House also made clear beforehand that it understood that the bill was doomed to fail in the Senate.
"That's something the president would be happy to sign into law," said Jen Psaki, the White House press secretary. "At the same time, we certainly recognize that the votes — we don't have the votes."
The Supreme Court is expected to issue its final ruling — which could look significantly different than the leaked version — within weeks.
The battle over abortion rights will likely continue to play out during the rest of Biden's presidency. For now, Democrats' continued inability to codify Roe v. Wade into law leads us to keep this promise at Stalled.