If Democrats override the 60-vote requirement to codify abortion rights, can the GOP overturn the law if they get back the power in the Senate? Where does it end? It seems like a circular firing squad. — asks our reader George from South Carolina.
Many Democrats — including, as of Thursday morning, President Biden — are willing to end the Senate’s filibuster, the rule that requires 60 votes in the chamber to pass a piece of legislation, to codify abortion rights into law. With no filibuster, Democrats would need only a simple majority, which they have now in the Senate, to pass such a measure.
The thing about ending the filibuster is that, if Republicans gain back control of the Senate, they can undo whatever laws Democrats pass with a simple majority. That Senate-passed bill would go to the president’s desk. If a Democrat is in the White House, they can veto the legislation. Republicans could override the veto only by a two-thirds vote in the Senate and the House.
But if a Republican is in the White House, which could happen in 2025, a measure overturning abortion rights passed by a GOP-led Congress could cruise through without the threat of a veto.
There’s one House-passed measure in the Senate’s hands that would codify abortion access into law: the Women’s Health Protection Act. Biden said Thursday that he’d support a push to end the filibuster to pass this bill.
Separately, as Amanda Hollis-Brusky writes, if the WHPA passed, and the Supreme Court upheld it and ruled that Congress has the power to protect abortion through legislation, Congress would have the power to prohibit abortion through legislation:
As Chief Justice John Marshall famously concluded in an 1824 Commerce Clause case, the power to regulate necessarily includes the power to prohibit.