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Plan to shore up abortion rights in Congress has a filibuster flaw

Democrats say they can head off the Supreme Court's expected reversal of Roe v. Wade, but the numbers are against them.

WASHINGTON (CN) — Reeling from the Supreme Court's newly confirmed draft opinion that would leave abortion rights in states' hands, Democratic lawmakers and President Joe Biden beseeched Congress on Tuesday to intervene.

“This is a dark and disturbing morning for America,“ Senate Majority Leader Chuck Schumer said on the Senate floor Tuesday, referring to a draft opinion leaked the previous evening in which Justice Samuel Alito writes for the Supreme Court's conservative supermajority that the 1973 decision Roe v. Wade "must be overruled."

Chief Justice John Roberts later confirmed that the opinion is authentic albeit not final. The leak of the document to Politico represents a serious breach of secrecy for the famously guarded court, and Roberts has called for an investigation.

On the Capitol steps Tuesday, Schumer held a news conference where he vowed to push for a federal law codifying Americans' right to terminate unwanted pregnancies.

“A vote on this legislation is no longer an abstract exercise," he said. "This is as urgent and as real as it gets. We will vote to protect a woman’s right to choose and every American is going to see where every senator stands."

President Joe Biden made a similar call Tuesday in a scrum with reporters as he boarded Air Force One.

“At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” Biden said.

Presently, however, Democrats don't have the votes to pass such a measure in the 50-50 Senate. Earlier this year, an attempt to guarantee abortion access through the Women's Health Protection Act failed by a vote of 46-48.

On that bill, Democratic Senator Joe Manchin of West Virginia sided with Republicans, making it unlikely that a renewed push for pro-abortion rights legislation would garner even united Democratic support.

Although Republican Senator Susan Collins of Maine supports abortion access, she has long opposed changes to the filibuster — a tactic Republicans can use to block legislation and demand 60 votes in order for a vote to occur.

Referring to reporting by Politico that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all joined Alito in the majority opinion, Collins said in a statement Tuesday that she felt deceived by Gorsuch and Kavanaugh, whom she voted to confirm as Supreme Court justices.

"If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office," Collins said.

Kavanaugh had testified in his confirmation hearing before the Senate Judiciary Committee that Roe v. Wade was "settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis."

Dick Durbin, the Democratic chairman of that panel, echoed Collins' sentiments Tuesday.

“I think we should consider the ethical implications of Supreme Court nominees repeatedly coming before this committee and testifying under oath that they will respect precedent, and then doing exactly the opposite when they’re confirmed,” Durbin said this morning at a committee hearing.

Like the chief justice, meanwhile, Republicans on the Hill appear focused more on how the leak happened.

Senate Minority Leader Mitch McConnell issued a statement calling the leak an "attack on the independence of the Supreme Court." There is no public information to indicate the origin of the leak, but that did not stop the Kentucky Republican from blaming it on the "radical left."

"One of the Court's most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule," McConnell said Tuesday on the Senate floor. "This lawless action should be investigated and punished to the fullest extent possible."

While it is a crime to leak classified government information, it remains unclear whether a drafted Supreme Court opinion qualifies as such.

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