The Senate failed on Wednesday to pass legislation codifying the right to an abortion into law. The 49 to 51 vote fell mostly along party lines, with Sen. Joe Manchin, a Democrat from West Virginia, voting with Republicans to uphold a filibuster blocking the Women's Health Protection Act of 2022 from reaching the chamber floor for an up-or-down vote.
Democratic Sen. Bob Casey of Pennsylvania, however, reversed his long-standing anti-abortion stance and announced his support for the bill. In a statement on Tuesday Casey said that "the circumstances around the entire debate on abortion have changed."
Shortly before the vote, President Joe Biden issued a statement supporting the measure.
"The urgency to protect women's health, their fundamental right to control their reproductive choices, and the freedom of all people to build their own future has never been greater," he said.
Senate Minority Leader Mitch McConnell, a Republican from Kentucky, said Democrats had "decided to line up behind an extreme and radical abortion policy."
Last week, a leak of a draft majority Supreme Court opinion suggested that the court was preparing to overturn Roe v. Wade, the 1973 ruling guaranteeing a constitutional right to terminate a pregnancy.
Oral arguments in Dobbs v. Jackson Women's Health Organization, a challenge to a Mississippi law banning abortion after 15 weeks, were heard in December. The draft, which Chief Justice John Roberts confirmed is authentic, isn't a final opinion, though. That isn't expected until closer to mid-to-late June, when the court recesses, and justices still have the opportunity to change their minds.
For now, the right to an abortion remains constitutionally protected, although several Republican-led states have recently passed or introduced legislation nearly banning or severely curtailing it. Notably, the Supreme Court has allowed the Texas law banning abortion after six weeks to remain in place since it took effect in September.
In all, 26 states have laws restricting or banning abortion that would take effect immediately if Roe is overturned, according to the Guttmacher Institute, a reproductive rights advocacy group.
Senate Majority Leader Chuck Schumer announced that the upper chamber would vote on the abortion rights bill shortly after the draft opinion leaked.
"Americans will see where every single Senator stands," Schumer, a Democrat from New York, tweeted on Thursday.
The House of Representatives passed similar legislation in September in a nearly party-line vote, but Senate Republicans blocked it from advancing in February. On Monday, Schumer filed cloture, a rule allowing a two-thirds majority to overcome a filibuster.
The Women's Health Protection Act would "protect a person's ability to determine whether to continue or end a pregnancy and to protect a health care provider's ability to provide abortion services," according to the text of the bill.
It also would ban government restrictions on a provider's ability to offer abortion services, including via telemedicine, and prohibits laws that "require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services."
In the 1973 majority opinion for Roe v. Wade, Associate Justice Harry Blackmun said that state abortion bans violate the due process clause of the 14th Amendment, which he said protects "the right to privacy, including a woman's qualified right to terminate her pregnancy."