Think Out Loud

U.S. Senator Jeff Merkley, an Oregon Democrat, says he is ‘fighting like hell’ to protect abortion rights

By Sheraz Sadiq (OPB)
May 4, 2022 5:18 p.m. Updated: May 11, 2022 11:20 p.m.

Broadcast: Wednesday, May 4

On Monday, Politico released a draft of a U.S. Supreme Court opinion showing that the conservative majority would vote to overturn Roe v. Wade, the landmark ruling that has protected the legal right to obtain an abortion nationwide for nearly 50 years. A final opinion on the case currently before the court concerning abortion isn’t expected until the term ends in late June or July, however. Nonetheless, Democratic lawmakers from Oregon have been swift to condemn overturning Roe v. Wade, which would effectively leave it up to individual states to ban or allow abortion procedures. We speak with U.S. Senator Jeff Merkley, a Democrat from Oregon, to hear about efforts coalescing on Capitol Hill to protect abortion rights, including Merkley’s longstanding campaign to end the filibuster.


The following transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. Given the recent news that the Supreme Court is likely to overturn Roe v Wade, attention has shifted once again to the possibility that abortion access could be protected in federal law. In fact the US House of Representatives voted to do just that, last fall, but the Bill went nowhere in the Senate. It couldn’t even get a bare majority, let alone a filibuster proof majority. For more on the possible future of legislative action on abortion access, we start today with Oregon’s Junior Democratic US Senator, Jeff Merkley. Senator Merkley, welcome back.

Senator Jeff Merkley: Thanks so much, Dave. It’s good to be with you.

Dave Miller: What went through your mind when you saw the Politico report on Monday evening?

Senator Merkley: Well the first was that this was an extraordinary breach of Senate conduct for anything to be leaked out and it’s not Senate conduct but of Supreme Court conduct to be to be leaked. But the second was that it was the type of decision that I have been anticipating, that many of us have been anticipating from the right wing Court.

Miller: What path forward do you see right now in terms of a legislative response to the potential end of Roe V Wade?

Senator Merkley: You know, Dave, as I think about that question, I first think about all of the folks who have been calling my office, so many incredibly distressed, almost entirely women, calling the office saying, ‘What does it mean for us? How is it that the Court can take away a fundamental right of privacy, how can the Court take away the fundamental ability of me to make healthcare decisions in partnership with my doctor and my spiritual counselor? How could it be that they want big government to intervene in the private decisions of some of the most difficult decisions of my life?’ And so I just want to acknowledge the enormous amount of stress and distress that is being generated by this conversation. We have in Oregon a state law that has essentially said women will have access to full reproductive rights regardless of what the Supreme Court does. But of course, people also realized there could be federal legislation that overrides state legislation. There is not an ironclad guarantee.


Miller: And they’re obviously there are two big directions that could go in federal, allowing protections of abortion at the federal level or restrictions. So let’s take these one by one. As I noted in passing, that the house approved the Women’s Health Protection Act last year. But the vote to end debate on it in the Senate didn’t come close to 60 votes. It went down by a vote of 46 to 48; to look at some of the people in particular, Kirsten Sinema does not seem in favor of ending the filibuster for an abortion protection bill, Joe Manchin is definitely not on board, Republicans like Susan Collins and Lisa Murkowski who say they’re in favor of abortion rights, don’t seem interested in passing this particular bill, let alone ending the filibuster for it. So where does that leave you?

Senator Merkley: Well, so the Bill is the Women’s Health Protection Act. And to your point, under current rules of the Senate, it would take 60 votes to move the bill to the floor, although that can be, there is a way to bypass that, if it is done as a substitute for a bill that has already gone through both chambers. So it’s not impossible to get it to the floor, but difficult because there’s very few of those options. But If you assume that you are never going to get 60 votes to pass a Bill, and so the minority will make the decision, and you think the majority should make the decision, so that 50 and a Vice President or 51 and a Vice President or 51 or 52 without a Vice President, then you’re really saying, ‘Hey, how do we make sure the Senate works the way the founders intended, which was the majority would make the decisions, not the minority.’ And there have been three basic options about how we proceed. And these options were pretty thoroughly embedded during our debate over voting rights. Option one is the current ability of the minority, by having 41 members not vote to close debate, they can veto any bill from ever getting to a final debate or a final vote. That’s option one – that encourages partisanship and paralysis. That’s what we have right now. Option three – or behind door number three, is elimination of the filibuster, which means the majority could ride over the top of the minority, and it would be a lot like the House of Representatives where it’s kind of like, ‘Well I don’t care what the minority thinks, they don’t have any leverage.’ I opposed both option one and option three, and proposed the ‘talking public filibuster’ as the right option, which means yes, the minority can slow things down by speaking at length, but they have to do it, they have to speak, they have to actually go night and day on the on the floor. The American people can see it and they can weigh in – are they heroes or are they bums? And it would be controlled by the rule of the Senate, which says every Senator can speak at least twice to an issue at any length, but that’s 200 speeches maximum. There is eventually a way to get to a final vote, but it would be a very lengthy, painful way, with both sides having an incentive to compromise, because the minority would say, ‘We’re not sure we can sustain continuous presence on the floor, so we should be looking for a compromise.’

Miller: That argument, that didn’t win the day for the Voting Rights Bill. Do you think that the likely end of Roe v. Wade would change the political calculus enough? That’s something like that middle ground, bringing back what traditionally we thought of as the filibuster, the talking filibuster, do you think that the end of Roe v. Wade would change things enough, to provide some kind of avenue to actually make that happen?

Senator Merkley: I think we have to try, because the current Senate is so deeply paralyzed and partisan on every issue and it’s really harming our ability to address a million issues. So on each major issue, we have to keep coming back and saying, let’s have a way for that middle option to succeed where there’s an incentive for compromise, but there is not an incentive for paralysis, and will this issue do it? Well, I have a feeling that the members of the Republican Party who support reproductive rights are going to think a little bit about this question, but I don’t know, they’ll be under tremendous pressure from their party, and we have members of our party, of the Democratic Party, who are more reticent on the issue of the full range of reproductive rights. So I don’t know, but we have to try. The Senate is a broken institution and American people are demanding that we have the ability to act and test ideas, and if they elect a majority on an agenda and that agenda can never be implemented, then what we have is the equivalent of ‘an eye for an eye,’ which makes the whole world blind, or in this case, an obstruction for an obstruction, makes the whole Senate ineffective and destroys Democratic governance. And we cannot allow ourselves to have destroyed Democratic governance. We need to carry the torch for the world for governance that comes from the people up, not from the authoritarian, down. And so we’ve got to keep trying to fix the Senate.

Miller: You’re talking here about the possibility of enshrining some version of abortion protections into federal law, but the opposite is also possible – the end of of Roe v. Wade, the end of Constitutional finding for those protections could lead to Congress passing nationwide restrictions on abortion. How likely do you think that is?

Merkley: Well, let’s start with the notion that there will be a vote on the Women’s Health Protection Act, or at least proceeding to a vote to proceed to the bill, that essentially, the outcome of that will give the American people a chance to see where their members of the Senate stand, and because of the circumstances of the Supreme Court action, this issue will be on the Ballot in November. So the outcome of what happens in November will give a lot of insight to the point that you’re raising — if there is an overwhelmingly Republican victory for the House and Senate, and if they run on the basis of doing a national ban, like the equivalent of the state bans, then this becomes a possibility. I do not think it is a likelihood that 70% of Americans think women should have control of this very difficult life decision, over an abortion. So when you have more than two thirds of America saying that this should be there, many people who say that they individually might not choose that option, still feel like the right person to make the decision, is the woman being affected, with her partner, with her spiritual counselor, with her doctor, not something that the government should dictate. And so I do not think it likely that Republicans would pursue, would win on that issue and pursue it. But once the Constitutional protection is gone, it is definitely a possibility.

Miller: Jeff Merkley, thanks for joining us.

Senator Merkley: You’re very welcome. Thank you, Dave.

Miller: Jeff Merkley is Oregon’s Junior Democratic US Senator. Coming up after a break, we’ll hear about two Oregon High Schools that were recently put on probation after investigations of racist incidents by the Oregon School Activities Association.

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