Rash Senate Vote Fails To Codify Roe After SCOTUS Draft Leak, but the Battle To Save Defenseless Babies Is Not Over


Jordan Sekulow

May 12

3 min read

Pro Life



The Senate’s vote to attempt to codify Roe v. Wade in federal law through the so-called Women’s Health Protection Act (WHPA) has FAILED. The WHPA needed 60 votes to make Roe permanent, but faltered in a 51 – 49 vote, drawing a no vote from every Republican, and one Democrat, Senator Joe Manchin.

As we told you, the stolen Supreme Court draft opinion in Dobbs v. Jackson Women's Health Organization, which would overrule Roe v. Wade, the flawed 1973 SCOTUS case that manufactured a right to abortion, was leaked to the mainstream media and “triggered a meltdown of epic proportions” on the Left. Senate Majority Leader Chuck Schumer feverishly pushed for this vote in response to the leaked draft, which indicated that Roe may finally be overturned.

We closely examined the WHPA, as well as the Reproductive Choice Act (RCA), and we identified serious constitutional defects in both bills. While the WHPA purports to be an exercise of congressional authority granted by the Commerce Clause, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause, our legal analysis shows that none of these justifications would be valid if Roe is overturned. The WHPA would also sweep away all federal and state laws protecting the conscience rights of health care providers.

We’ve also pointed out serious Tenth Amendment issues that would arise should the draft opinion indeed become the final Dobbs decision. For example:

[The] Tenth Amendment. It is a fundamental principle of our political system that the federal government is a government of enumerated, that is, limited powers. This means, among other things, that the Federal Government may act only where the Constitution authorizes it to do so. Printz v. United States, 521 U.S. 898, 936-37 (Thomas, J. concurring).

Should Dobbs reverse Roe and Casey and hold that there is no constitutional right to abortion under the Fourteenth Amendment (or any other constitutional provision), the Tenth Amendment is clear as to which authority within our “system of dual sovereignty” belongs the responsibility of legislating abortion: the states. Since both the WHPA and RCA are attempts to usurp states’ authority to regulate abortion, they violate the Tenth Amendment.

The bottom line is that the WHPA wouldn’t just codify Roe, it would expand it, making abortion on demand, even up to the moment of birth, the law of the land. This attempt failed, but it was only ROUND ONE. There will be another bill, likely some version of the RCA, which is also unconstitutional, and another vote – probably sooner than later. Given that Senator Manchin indicated a willingness to support a narrower codification of Roe – an idea that Republican Senators Susan Collins and Lisa Murkowski have in fact introduced – it is all but certain that Leader Schumer is already negotiating a path forward legislatively. Make no mistake – codification of Roe should be opposed at every turn.

President Biden quickly made it clear in a statement that despite this initial vote, his Administration is committed to codifying Roe and expanding abortion. And Senator Schumer has already promised more votes to come.

So while this vote is a victory, the battle is FAR FROM OVER. Countless defenseless babies are still in danger. We need YOU.