After Dobbs v. Jackson, governors have ‘pretty strong basis’ for enforcing abortion laws: Former federal prosecutor
After the Supreme Court's overturning of Roe v. Wade, former Deputy Assistant Attorney General Tom Dupree weighs in on the legal battle.
With Congress set to return from its Independence Day recess to a political landscape rocked by the Supreme Court decision to overturn Roe v. Wade, Democrats plan to make abortion a top priority in their busy legislative agenda.
In the case Dobbs v. Jackson Women's Health, five justices – three appointed by former President Donald Trump – ruled that elected representatives may make abortion laws, including complete bans of the practice. Republicans rejoiced while Democrats vowed to fight what they said is a half-century backslide on women's rights.
"Today is one of the darkest days our country has ever seen," Senate Majority Leader Chuck Schumer, D-N.Y., said. "Millions upon millions of American women are having their rights taken from them by five unelected Justices on the extremist MAGA court."
"The Supreme Court, in effect, corrected an error when in 1973, the court simply found something in the Constitution that was not there," Senate Minority Leader Mitch McConnell, R-Ky., said of the case. "What this decision does is simply return this very sensitive issue to the people's representatives."
House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer face different landscapes in their respective chambers on how to handle the fallout of Dobbs v. Jackson Women's Health Organization. (Getty Images)
The House of Representatives is already planning a robust response to the ruling. House Speaker Nancy Pelosi, D-Calif., said in a letter last week that Democrats are exploring bills to protect women's online data on health apps and to ensure the right to cross state lines for an abortion. She also said the House is considering repassing the Women's Health Protection Act (WHPA).
A senior House Democratic aide told Fox News Digital they are interested to see how Republicans may vote on some of those bills, considering these conversations are no longer abstract with Roe overturned. They are "playing with live ammo," the aide said, and those bills could put Republicans in a tough position.
Another senior House Democratic aide said many options for legislation are under discussion, but said none are locked in quite yet. That aide said the bills on health app data and right to travel could move fast because of urgency among Democrats to protect women.
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The first senior Democratic aide also said more votes on other bills may be coming, and that multiple hearings are expected too. The House Oversight Committee already announced one.
Pro-choice demonstrators gather outside the Supreme Court in Washington, June 24, 2022. (AP Photo/Jose Luis Magana)
Pelosi also said the House is expected to respond to Justice Clarence Thomas' dissent with legislation targeted at other rights.
"In his disturbing concurrence, Justice Clarence Thomas confirmed many of our deepest fears about where this decision may lead: taking aim at additional long-standing precedent and cherished privacy rights, from access to contraception and in-vitro fertilization to marriage equality," Pelosi said in a letter to fellow Democrats. "Legislation is being introduced to further codify freedoms which Americans currently enjoy."
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Two Senate committees are set to hold hearings in the near future on potential abortion-related legislation. The Senate Judiciary Committee will discuss the ramifications of the Dobbs decision and GOP state abortion laws on "Post-Roe America." The Health Education Labor and Pensions (HELP) Committee will lead a hearing more focused on the medical side of the issue.
"I am not going to stand idly by while Republicans rip away abortion rights, drag this country back by half a century, and gear up for a national abortion ban," HELP Committee Chair Patty Murray, D-Wash., said, announcing her hearing.
President Joe Biden is calling for a Senate filibuster carve-out for abortion rights, but Sens. Joe Manchin and Kyrsten Sinema say they will block any such move by Senate leaders. (AP Photo/Bernat Armangue)
Those hearings will likely serve as a forum for Democrats to highlight what they would like to do to protect abortion rights, hammer Republicans and pressure President Joe Biden to take executive action. However, it is not clear when or to what extent Senate Democrats may start bringing bills to the floor, a Senate Democratic aide said.
There is still the WHPA for Senate Democrats to go back to, the aide said. The chamber voted on this bill earlier this year and did not make it past the filibuster, with bipartisan opposition.
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With President Biden now saying that he supports a filibuster carve-out for abortion rights, the Senate Democratic aide said a nuclear option vote on WHPA or another bill is one of many options currently on the table. That vote would fail, with Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., still vocally supporting the filibuster. However, Democrats forced such a vote previously on election legislation, which was another top tier issue for the party.
"Dems are exploring all potential legislative and non-legislative options to help women impacted by the SCOTUS decision, including ensuring women can travel freely to get the treatments and contraceptive care they need, pressing the administration to take stronger action like utilizing military bases, and are making preparations for the caucus to consider when back in session," a senior Senate Democratic aide familiar with the talks told Fox News Digital.
Sen. Joe Manchin opposes the Women's Health Protection Act and doing away with the Senate filibuster. (Jim Lo Scalzo/EPA/Bloomberg via Getty Images)
"The overwhelming view of the caucus is that Democrats need to do everything they can to highlight – on and off the floor – that the decision is because of MAGA Republicans and elect more pro-choice democrats at every level in November to immediately restore roe and all its protections," the senior Senate Democratic aide familiar with the talks added.
Republicans, meanwhile, plan to emphasize abortion as a fight for the states, and appear unlikely to cooperate with Democrats on this issue.
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"Once again Democrats are wasting valuable floor time on messaging bills with bipartisan opposition," a senior Senate GOP aide said, pointing out that Manchin opposed the WHPA. That aide called Democrat efforts "completely not serious."
Pro-choice Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, may push their own bill, which would codify Roe v. Wade without some additional provisions in the WHPA. That may be shot down by liberals, the Senate Democratic aide said, because pro-choice groups do not want to spend political momentum on something that does not go as far as they otherwise may be able to.
The senior House Democratic aide also said that the WHPA is Democrats' plan to codify Roe, and its provisions are even more important with a "hostile Supreme Court."
A second Senate Democratic aide noted that Collins and Murkowski are working with Sen. Tim Kaine, D-Va., on a bill that would codify both abortion and contraception protections. That aide said a vote on that may be possible if negotiators reach an agreement.
Individual members may also push their own separate proposals, the first Senate Democratic aide said, but it is not clear what could eventually get a vote. The second Senate Democratic aide said that they expect significantly less floor action on the issue than in the House.
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