CHICAGO – Sen. Tammy Baldwin, facing a tough reelection fight in one of the races that will determine control of Congress, has made protecting reproductive rights a cornerstone of her campaign, and she's willing to back that up by pledging to change the Senate filibuster rules if Democrats retain control of the chamber.
The Wisconsin Democrat said taking that step is necessary to ensure that women in every state -– not the government -– can decide for themselves whether to have an abortion. As part of her campaign, she warns that Republicans might also target the filibuster to impose a national abortion ban if they prevail in November.
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“Republicans have shown time and again that they will stop at nothing in their pursuit of controlling women’s bodies – and I believe them,” she said.
Democratic incumbents and challengers running for the Senate this year say they want to restore a national right to abortion, and many, like Baldwin, openly say they would support suspending the filibuster to do so. It’s become a key talking point as they try to capitalize on the nationwide battle over abortion rights that has generally helped Democratic candidates since the Supreme Court overturned constitutional protections two years ago.
Republicans have criticized Democrats for wanting to change the rules and are emphatic they would not do so if they win the presidency and Senate.
Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two prominent Republican supporters of abortion rights, have introduced legislation meant to codify the protections that had been established by Roe v. Wade. In a statement, Collins said she “will oppose any effort to weaken the legislative filibuster” by either party.
Senate rules require 60 votes to end debate over a bill, effectively making it the minimum number of votes needed to pass legislation, as a means to provide a check on the majority. In an era of polarization and political gridlock, this number, as opposed to a simple majority in the 100-member Senate, has been a roadblock for the party in power to promote its agenda on issues such as voting rights and immigration.
But whichever party has control of the Senate can change the rules and carve out exceptions to the filibuster with only a simple majority vote. That step has been referred to as the “nuclear option” in the few times it has been employed.
Democrats, under then-Majority Leader Harry Reid of Nevada, did this for all judicial nominations but the Supreme Court in 2013, when Democrat Barack Obama was president and Republicans had repeatedly blocked Democratic nominees. GOP leader Mitch McConnell of Kentucky said Reid would regret that decision – and Republicans later changed the filibuster rule for Supreme Court nominees when they took back control.
That allowed Republican Donald Trump, while in the White House, to put three conservative justices on the court, including Justice Amy Coney Barrett, who was confirmed about a week before the 2020 election. She helped form the court majority that overturned Roe v. Wade.
While neither party has gone so far as to change the rules for legislation, many Democrats in Senate races this year have enthusiastically supported doing so, especially to protect abortion rights.
“If NASA had the rules of the United States Senate, the rocket ship would never leave the launchpad,” Arizona Sen. Mark Kelly said in an interview this month with NBC News. “So at times, at the appropriate time — I think this is one of them -– I would consider changing those rules to make sure that women can get the health care they need.”
Pennsylvania Sen. Bob Casey said “he has been on the record for years” that the rules should be changed and still supports that position. Minnesota Sen. Amy Klobuchar has repeatedly called for eliminating the filibuster to protect abortion and voting rights since Roe v. Wade was overturned.
Debbie Mucarsel-Powell, who previously served one term in the House and is the leading Democratic Senate candidate in Florida, said in an NBC News interview this month that she is “very much in favor of pausing the filibuster and voting for a woman’s right to choose to codify Roe v. Wade.”
Her opponent, Republican Sen. Rick Scott, railed against Mucarsel-Powell's support for pausing the filibuster. He did not comment on whether he would support pausing the filibuster to restrict abortion nationally but has staunchly defended it in the past, calling it “a vital and necessary rule to protect minority party rights.”
“Should it be ‘paused’ to pass the Green New Deal? What about to stack the Supreme Court or eliminate the Electoral College?” Scott said in a statement to The Associated Press that referenced his opponent. "Should we get rid of it permanently or only pause it when (Senate Majority Leader) Chuck Schumer tells her to? Be honest with the people of Florida about where you draw the line on ‘pausing’ democracy, Congresswoman.”
It's not just Democratic lawmakers and candidates. In 2022, President Joe Biden said he supported a carve-out to the filibuster to codify abortion rights, an idea thwarted by two moderates who decided against running for reelection this year, Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema of Arizona, a Democrat turned independent.
Political experts say there might be heavy pressure from anti-abortion groups to lift the Senate filibuster if the GOP gains full control in Washington, but national organizations have de-emphasized the issue, at least publicly.
When asked last month in a Time magazine interview if he would veto a bill that would impose a federal ban, Trump did not answer directly. Instead, he said “there will never be that chance” because Republicans, even if they take back the Senate in November, would not have the 60 votes needed to overcome a filibuster and bring the bill to a vote.
Kristi Hamrick, spokesperson for Students for Life, said maneuvering around the filibuster is not a “realistic scenario” because the group has not seen coordinated efforts underway to do so. Instead, she said if Trump is elected, the group would push him to consider taking administrative steps to restrict abortion, including banning the mailing and online sale of abortion pills.
Carol Tobias, president of the National Right to Life Committee, said the organization has never taken a position on the question and instead accused Biden of being “intent on circumventing the filibuster.”
Democrats and abortion rights groups say they are skeptical Republicans would not attempt to lift the filibuster rule for a federal ban.
Mini Timmaraju, president of the national abortion rights organization Reproductive Freedom for All, said the GOP and anti-abortion forces “are ready to use every tool in their toolbox to ban abortion nationwide, and that includes circumventing the filibuster.”
Gov. Gretchen Whitmer, D-Mich., also warned of a national ban if Republicans win the presidency and Congress.
“We cannot trust anything that Donald Trump says when it comes to abortion,” Whitmer said recently. “So no one should take any comfort in the fact that yes, he wants an abortion ban but he won’t get it because he doesn’t think we’ll have 60 votes in the Senate. Baloney.”
Trump has voiced conflicting views on the rule, depending on whether his party controlled the Senate. In 2017, his first year as president, he called for an end to the filibuster to move his agenda forward, including repealing the health care law enacted under Obama and building a border wall. But in 2021, a year after he lost his reelection bid and with Democrats controlling Congress, he said removing the filibuster would be "catastrophic for the Republican Party."
Several high-ranking members of the Senate GOP — including Sens. John Thune of South Dakota, John Cornyn of Texas and John Barrasso of Wyoming — have said they are firmly against lifting the filibuster. Thune and Cornyn are running to replace McConnell when he steps down from leadership after the November election.
Sen. Jim Lankford, R-Okla., said this past week that GOP senators have discussed the issue during private meetings, and that he and others have said they want promises from those running for leader that they will not change the rules.
“It is something uniquely American to be able to have a place in government that both sides have to be a part of,” Lankford said.
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Associated Press writer Mary Clare Jalonick in Washington contributed to this report.
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