With Supreme Court poised to overturn Roe, Vermont’s congressional delegation says it’s time to change filibuster rules

From left: Bernie Sanders, Peter Welch and Patrick Leahy. File photos by Glenn Russell/VTDigger

Updated at 7:39 p.m.

With the U.S. Supreme Court poised to overturn a pair of decades-old rulings that protected the right to abortion, all three members of Vermont’s congressional delegation say it’s time to scrap the filibuster — at least to legislate nationwide access to abortions.

That includes U.S. Sen. Patrick Leahy, D-Vt., who has served in the Senate since 1975 and has historically resisted calls to change parliamentary Senate rules. Leahy told VTDigger on Tuesday that he would support bypassing the filibuster in order to get a bill protecting abortion access to President Joe Biden’s desk.

Politico first reported a leaked draft opinion from the nation’s highest court late Monday. In it, Justice Samuel Alito declares that Roe v. Wade and Planned Parenthood v. Casey — two landmark cases for reproductive health care decided in 1973 and 1992, respectively — “must be overruled.”

Alito, a George W. Bush appointee, drafted the reported majority opinion, writing, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” or state governments.

Less than two hours after the leak was published, Vermont’s U.S. Sen. Bernie Sanders, an independent, and U.S. Rep. Peter Welch, a Democrat, took to Twitter to call on Senate Democrats to use their last resort: Abolish the filibuster and pass nationwide abortion protections.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sanders tweeted. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”

Under the U.S. Senate’s longstanding parliamentary filibuster rule, major legislation requires 60 votes to pass, not a simple majority. Senate Democrats hold the slimmest of majorities — 51-50, including a tie-breaking vote from Vice President Kamala Harris — and have battled internally over whether to scrap the rule to pass the Democrats’ priority legislation. 

The fear is that, should Republicans clinch a majority come November, such a rule change could come back to bite Democrats.

“Keep in mind, it’s a two-way street,” Leahy told VTDigger.

Vermont’s senior senator said that he was “just devastated” by the news, and that the time has come to begin forcing votes on the Senate floor on abortion legislation. The House passed the Women’s Health Protection Act of 2021 in September by a 218-211 vote, but the Senate has refused to take it up.

Over the course of his nearly 50-year tenure in office, Leahy has witnessed nearly the entire lifespan of the Roe decision and Republicans’ yearslong efforts to overturn it. Leahy has served on the Senate Judiciary Committee for decades and participated in the confirmation hearings of every sitting member of the Supreme Court. On Tuesday, he told VTDigger that the court’s leaked draft decision was the culmination of years of Republicans’ strategizing to pack the court with anti-abortion access justices.

For years, Leahy has lamented the Senate’s politicization of the court and the long-term potential to undermine Americans’ trust in the highest court. On Tuesday, he questioned, “What's going to be next?”

“Is it going to be on marriage rules? On divorce? On health care? All of these things,” he said. “Americans ought to be very, very concerned.”

The senator has historically voiced concern over the potential repercussions of abolishing the filibuster. On Tuesday, he warned that if the maneuver were scrapped, and if Republicans were to clinch a majority come November, they could “easily” pass a nationwide abortion ban.

Even so, Leahy said, this is an instance in which he would vote in favor of changing the rules in order to allow abortion protections to pass. But he doesn’t believe enough of his Senate colleagues would vote to change the rules.

“That's an easy thing to say. The doing it will be far, far more difficult,” he said. “Of course, it's an option that has to be considered, but you also have to get enough votes to do that.”

Welch, who is running to succeed Leahy in the Senate, said in a Tuesday phone interview that the draft decision is a “staggering infringement” on constitutional rights, with the potential to create “enormous division” among Americans and undermine their trust in the court.

And with the draft opening the door to overturn other landmark case precedent, Welch said, “it’s an indication of a court gone wild.”

“It’s a devastating decision,” he said. “It's also an extraordinarily divisive decision, and it's the greatest infringement on the freedom of women to control their own reproductive decisions in generations.”

Welch said he fully supports abolishing the filibuster. Whether it gets done, though, and Congress successfully passes abortion protections, is another question: “With the current Senate, I doubt it,” he said.

“Women around the country, and men, are mobilized by this infringement of their constitutional rights and we in Congress have to do every single thing we can to make certain that the freedom that women have enjoyed continues,” Welch said. “But with this court, with the present composition of the Senate, with the filibuster, we have an uphill fight.”

Welch said he doesn’t currently favor adding more seats to the Supreme Court bench, because “when does that end?” But he supports imparting staggered term limits on justices. Republicans have a “stacked deck,” he said, and term limits could level the playing field.

Former U.S. Attorney for Vermont Christina Nolan, who is likely to be Welch’s Republican opponent in November’s Senate election, said in a written statement Tuesday that abortion case precedent has been settled for nearly 50 years and “should be honored and respected, and the right to abortion that it establishes should be respected and preserved.”

Yet on Tuesday night, Senate Minority Leader Mitch McConnell of Kentucky — who Welch dubbed “the architect of the court packing scheme” — was scheduled to headline a campaign fundraising event for Nolan in Washington. Nolan refused to make herself available for an interview Tuesday.

If the ruling goes into effect, abortion would remain legal in Vermont. The Legislature in 2019 passed H.57, which guarantees the right to abortion at the state level. And in November, Vermonters are set to vote on Proposal 5, also known as the Reproductive Liberty Amendment, which would enshrine the right to abortion and other reproductive health care services in the Vermont Constitution.

Early Tuesday, Vermont Gov. Phil Scott, a Republican, said in a written statement that, should Alito’s draft opinion go into effect, “I want Vermonters to be assured that this state has prepared for this possibility.”

“Three years ago, we enacted a law that affirms the fundamental rights of all women and ensures reproductive health decisions remain between a woman and her health care provider — totally free from government interference,” he said. “It is important for Vermonters to know this will remain true in Vermont regardless of what happens with the Supreme Court.”

Scott also said at his weekly press conference on Tuesday that he plans to vote ‘yes’ on Proposal 5 in November.

Lucy Leriche, who led efforts to pass H.57 and Proposal 5 as vice president of public affairs at Planned Parenthood Vermont Action Fund, said in an interview that laws such as H.57 can be rescinded if Vermont were to see an anti-abortion majority in the Legislature down the line. A constitutional amendment is a more permanent guarantee, she said.

“A lot of people are like, ‘Well, we're fine in Vermont, because we have this law on the books. … We're covered. We have it in our state law,’” she said. “So people might feel some comfort from that. And what I say to that is, we have seen unprecedented changes in our democracy in this country.”

She continued, “Even though it seems like it wouldn't happen to a lot of Vermonters, things can flip.”

As for members of Congress, Leriche said it’s “infuriating” that a nationwide abortion law is being held up on the basis of parlimentary rules. She said she believes lawmakers are “using their traditions and their rules as an excuse not to act.”

“It's time to codify reproductive rights in United States law, at the very least,” Leriche said. “I think that is the least they can do in this moment, is to grow the spine to pass some kind of abortion rights law that would apply to everyone equally in the nation.”

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Sarah Mearhoff

About Sarah

Sarah Mearhoff is one of VTDigger's political reporters, covering the Vermont statehouse, executive branch and congressional delegation. Prior to joining Digger, she covered Minnesota and South Dakota state politics for Forum Communications' newspapers across the Upper Midwest for three years. She has also covered politics in Mississippi, New York, Pennsylvania and Washington, D.C. Born and raised in Pennsylvania, she is a proud alumna of the Pennsylvania State University where she studied journalism.

Email: [email protected]

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