Jul 13, 2022 - Politics & Policy

Congress eyes showdowns on birth control, marriage equality

Illustration of traffic cones surrounding a statue of Lady Justice.

Illustration: Maura Losch/Axios

Still reeling from the Supreme Court's decision to end Roe v. Wade, congressional Democrats are readying legislation to codify nationwide contraceptive access, LGBTQ marriage and parenting rights — and even potentially long-settled precedent on interracial marriage. The question: Will Republicans go along, or block them?

Driving the news: In interviews Wednesday with Axios, more than 20 Senate Republicans — including several seen as moderates or bipartisan dealmakers — declined to commit to a position.

Why it matters: Democrats' strategy serves a dual purpose. If the measures pass, it's a significant assurance for millions of Americans worried that conservative state legislatures are coming for them next.

  • If the measures stall, it may give Democrats — the clear underdogs heading into November — more potent ammunition to retain and turn out voters.

What we're hearing: Whether the House of Representatives will vote on these bills before or after they break for a lengthy August recess has yet to be decided, according to Majority Leader Steny Hoyer (D-Md.).

  • "I do believe that we should move with urgency," Rep. Hakeem Jeffries (D-N.Y.), chair of the House Democratic Caucus, told Axios.
  • Senate Democratic Whip Dick Durbin (D-Ill.) said if such bills pass the House, "That would be a priority for me. I've talked about it with [Senate Majority Leader Chuck] Schumer to see if we can do it."

How we got here: In a concurring opinion in Dobbs v. Jackson Women's Health — the ruling last month that ended federal abortion rights protections — conservative Justice Clarence Thomas wrote justices should "reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell."

  • In other words, he called for the Supreme Court to take another look at contraception, same-sex intimacy and same-sex marriage.
  • Thomas was the lone justice to advocate for this. But House Speaker Nancy Pelosi responded by saying the opinion "confirmed many of our deepest fears about where this decision may lead," vowing to "codify freedoms which Americans currently enjoy."

Bills are still being hammered out by Democrats on the House Judiciary Committee, members of the panel told Axios. Chair Jerrold Nadler (D-N.Y.) said they're "looking at all the rulings Justice Thomas referenced."

  • Rep. David Cicilline (D-R.I.) cited a repeal of the Defense of Marriage Act as one potential avenue for codifying gay marriage.
  • Rep. Deborah Ross (D-N.C.) said she's seen language around protecting access to contraception, and that the panel will discuss these issues at a hearing on Thursday.

Several members even said they may introduce legislation to codify Loving v. Virginia, the 1967 decision legalizing interracial marriage, which was not listed in Thomas' opinion.

  • "Loving may be in the crosshairs," said Rep. Sheila Jackson Lee (D-Texas). "So, frankly, I believe it's all doors open."
  • Asked if he thought Democrats could move to codify Loving, Nadler said, "Yes, I do."

These bills would likely pass the House. The real question is whether they could get the 10 GOP Senate votes needed to bypass the filibuster.

The bottom line: Even if the bills don’t pass, Democrats say they see the political value in squeezing Republicans by putting them on the record.

  • "Republicans should be accountable for this MAGA Supreme Court ruling that has called into question everything," said Rep. Sean Patrick Maloney (D-N.Y.), chair of the Democratic Congressional Campaign Committee. It "sure as hell ought to" hurt Republicans to vote no, he added.
  • "It's always good for people to know exactly where folks are on these issues that are important to the American people," said Maloney's Senate counterpart, Sen. Gary Peters (D-Mich.).
Clarence Thomas and Mitch McConnell
Justice Clarence Thomas (left) and Senate Minority Leader Mitch McConnell at the Heritage Foundation on Oct. 21, 2021. Photo: Drew Angerer/Getty Images

What they're saying

Senate Minority Whip John Thune (R-S.D.), asked if such bills could get 10 Republican votes, told Axios: "It's hard to say. I haven't looked at them. ... I haven't even given any thought to that."

Sen. Rick Scott (R-Fla.), chair of the National Republican Senatorial Committee, said Democrats are "grasping at straws" in an election that will be about inflation and rising costs. He declined to say how he'd vote, telling Axios that first "I want to see the bills."

Sen. Roy Blunt (R-Mo.), asked whether the bills would get 10 Republican votes, said: "I don’t know. I haven’t seen the bills, and I … probably shouldn’t speculate on that without knowing what I’m talking about.” Asked how he would vote, he repeated: "I haven’t seen the bills."

Sen. Lisa Murkowski (R-Alaska) was the only GOP senator to give a firm answer, saying she would "certainly" support codifying the Griswold (contraception rights) and Casey (abortion rights) rulings. She declined to weigh in on gay marriage, saying she's been focused on reproductive health.

Sen. Mitt Romney (R-Utah): "I haven't seen the bills, I can't comment on them until I do."

Sen. Bill Cassidy (R-La.) called codification votes "incredibly stupid." On interracial marriage, in particular, he said there's no risk those rights will be overturned by the Supreme Court, and that such a vote would therefore be "pure messaging. It's wasting the American people's time. It's trying to stir up fear where there is no fear. I mean, my gosh."

Sen. Josh Hawley (R-Mo.): "I think the premise there is that it's somehow likely the Supreme Court is going to overturn basically their entire substantive due process law. ... I think the chances of that are approximately zero. … The premise here is a false premise, so I wouldn’t be inclined to take the bait.”

Sen. Tommy Tuberville (R-Ala.) told Axios he supports interracial marriage and access to contraception in principle but added: "I have to read the bill first. I mean, these bills are thousands of pages long with all kinds of stuff in there." Asked for his position on gay marriage, he said: "I’ve never even thought about that. I’d have to think about that."

Sen. Pat Toomey (R-Pa.): “I haven’t given it any thought. I’m focused on other things right now.”

Sen. Rob Portman (R-Ohio): "I don’t know. I’d have to look at it.”

Sen. Shelley Moore Capito (R-W.Va.): "You’re hitting me with something I haven’t had time for, sorry."

Sen. Lindsey Graham (R-S.C.): "I’d have to look at them. I have no reason to believe these precedents are going to fall. ... I certainly support the idea that people can marry freely.”

Sen. Thom Tillis (R-N.C.): "A lot of the focus should be on the choices that state legislatures make. And I think it would be premature for us to take up those sort of actions now. ... I think if Sen. Schumer's looking at how much time he has to do something good for the American people, he should focus on inflation, he should focus on job crisis — the things that matter."

Sen. Todd Young (R-Ind.): “I have not heard anything about the predicate for your question."

Sen. Chuck Grassley (R-Iowa): “Nothing like that should even be thought about by anybody because it’s not endangered in any way. I don’t know why people would come to that conclusion.”

Sen. Mike Rounds (R-S.D.): "I want to see what they're actually putting into the details of a bill. So I got enough to worry about over here right now, and then to talk about the hypotheticals of something that might come over from the House.”

Sen. Joni Ernst (R-Iowa): "I’d have to see what the legislation entails before I would consider anything."

Sen. Roger Marshall (R-Kan.) withheld his position because "so often legislation has poison pills" and he wants to see the text. He said legislation simply to codify gay marriage "sounds like it’s a bill in search of a problem."

Sen. Kevin Cramer (R-N.D.): "I have to think about it ... seems gimmicky to me." He said he'd be concerned about inadvertently doing "more harm than you can good."

Sen. Mike Braun (R-Ind.): "[U]ntil I see the legislation, I'm ... not going to make a comment on whether I'd support it or not."

Sen. Ted Cruz (R-Texas): "I'll worry about hypotheticals at the time we have it."

Sen. Ron Johnson (R-Wis.): "I’d have to look at them."

Worth noting: Sen. Susan Collins (R-Maine) said in a statement after the Dobbs ruling that she’s working with Sen. Tim Kaine (D-Va.) on a bill to codify rulings protecting abortion and contraception.

Between the lines: Several senators expressed skepticism that they would even have to take these votes, predicting Democratic leadership won’t burn valuable floor time on what they said is likely a doomed effort.

  • “You know the numbers here. That’s not going to come to the floor,” said Tillis.

The bottom line: Republicans would strongly prefer not to have to vote on such highly charged social issues in which the views of their grassroots base diverge from the broader public.

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