Will Abortion Kill the Filibuster?

Will abortion be the issue that kills the filibuster?

For now, the fight over federal abortion policy is occurring largely in the courts. Judges have issued opposing rulings over the past week related to mifepristone, a drug used in more than half of U.S. abortions today, and the Supreme Court will probably resolve the conflict in coming days or weeks.

In the long term, however, court decisions are unlikely to have the final word over abortion policy. Legislation will. Judges merely interpret the law — sometimes aggressively, it’s true — but they cannot write new laws. Only legislators, in Congress and at the state level, can pass laws.

The current legal battles over abortion make the point. Each of the court decisions of the past week has interpreted federal laws that affect the use of mifepristone. And Congress could make these cases largely irrelevant by passing a new law that clearly gave — or denied — women access to mifepristone and other drugs used in medication abortions. More court fights would no doubt follow, but they would revolve around different questions.

A 2025 scenario

The current Congress, of course, is not going to pass any sweeping abortion laws. Democrats control the Senate, Republicans control the House, and the two parties disagree on abortion policy. But the next time one party is in charge of both chambers as well as the White House, the pressure to pass abortion legislation will be immense. Both parties are already talking about what such a bill might include.

For Republicans, it could be nationwide restrictions on abortion, perhaps similar to the laws that 13 states have enacted since the fall of Roe v. Wade last year. A less ambitious Republican bill might restrict the mailing of pills like mifepristone, making the current court case redundant. (The shipping of pills is an important issue to abortion opponents because the practice can allow people to circumvent state restrictions, as this Times story about international mail ordering explains.)

For Democrats, a bill could do the opposite: protect the mailing of medications and create a national right to abortion that applies to at least the early stages of pregnancy.

American politics is now so closely divided — with Democrats controlling 51 Senate seats — that neither party seems likely to hold the 60 seats necessary to override a filibuster anytime soon. Still, abortion has become sufficiently contested and salient that it could test the practice in a way no other issue recently has. A simple majority of senators can vote to end the filibuster, which is a Senate tradition and not part of the Constitution or any other law.

Imagine a President Ron DeSantis taking office in 2025, with Republicans in control of Congress, and signing a national abortion ban that many conservatives consider a moral imperative. (Florida legislators yesterday passed one of the country’s most restrictive abortion laws, and DeSantis, the governor, has said he will sign it.)

Or imagine if President Biden were to win re-election while the Democrats kept the Senate and retook the House. In that scenario, the politics of abortion would probably have played a role, given the popularity of at least some abortion access.

In either case, the party in power would have the power to pass a sweeping abortion law — but only if the Senate scrapped or overhauled the filibuster.

Many progressives have long favored ending the filibuster. They argue, accurately, that it stymies Democratic legislation much more often than it does Republican legislation. (I walked through the history in a previous newsletter.) The reason is simple: Conservatives tend to be happier with less government, while liberals often favor more.

But the filibuster is not likely to die until the debate revolves around a concrete policy rather than theoretical ideas about Senate process. When the filibuster stands in the way of a change to American life that one party passionately supports, the practice will be endangered. Abortion looks increasingly like the issue that might one day fit that description.

As Carl Hulse, The Times’s chief Washington correspondent, told me yesterday, “Pressure continues to mount to jettison the filibuster and the next time either party has the trifecta — White House, Senate, House — I expect the filibuster will be in real jeopardy.”

Until then, the political battle will take place mostly in federal courts and at the state level.

What’s next

On Wednesday night, three Republican-appointed judges on an appeals court panel issued a ruling that would restrict access to mifepristone, but it has not yet gone into effect. Yesterday, a Democratic-appointed judge issued a contrary ruling, ordering the F.D.A. not to restrict access to the drug in certain states.

The Justice Department has announced it will ask the Supreme Court to resolve the dispute. If the court agrees to do so, it will likely happen on a faster timetable than many other cases. “It will be on what critics call ‘the shadow docket,’ which means it won’t be a typical case where the court hears oral arguments,” said Abbie VanSickle, a Times reporter covering the courts. “It will happen quickly, although just how quickly is totally at the discretion of Scotus.”

You can read the details in this Times story.

Related: See where the likely 2024 presidential contenders stand on abortion.

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