A bill to codify abortion rights failed to move forward in the U.S. Senate on Wednesday, with Democratic lawmakers warning that the only way to protect abortion access is to add to their numbers in the November midterm elections. 

It was the second time Democrats in the evenly divided, 100-seat Senate attempted to take up the Women’s Health Protection Act (WHPA) and the second time it did not get the 60 votes needed to overcome the Senate filibuster. The only Democrat who voted against it was Sen. Joe Manchin of West Virginia. No Republicans backed the measure, which passed the Democratic-controlled House of Representatives last year. Vice President Kamala Harris, who can act as a Senate tie breaker, presided over the 49-51 vote. 

Wednesday’s vote came just over a week after Politico published a draft Supreme Court opinion in a case called Dobbs v. Jackson Women’s Health Organization that would overturn Roe v. Wade. The 1973 ruling established the right to an abortion before fetal viability, generally around 22 to 25 weeks of pregnancy. The court’s final decision in Dobbs is expected in June or July. 

Republican lawmakers in many states are preparing to limit abortion access as soon as the court rules. Democratic-led state legislatures and governors are trying to shore up abortion access but say they may be unprepared for the surge of patients from other states. 

Democratic Sen. Kirsten Gillibrand praised her state of New York for moving to become an abortion “safe haven” in response to the expected Dobbs ruling. She also called for the repeal of the Hyde Amendment, which prohibits the use of federal funds for abortion care. 

“We have to fight as hard as we possibly can to protect the right to an abortion by other means,” Gillibrand told reporters ahead of Wednesday’s vote. “First and foremost, that means winning elections. Democrats must turn out in record numbers this November and beyond to elect more pro-choice candidates who can work to protect abortion access at the national and local levels.”

Roughly a third of Senate seats are up for reelection this year, and while Republicans are defending more seats, Democrats are seen as more vulnerable in key races. Democrats in competitive Senate bids immediately pointed to the leak of the draft opinion as a sign of what’s at stake in November, given that as many of half of all U.S. states are poised to immediately restrict abortion access if the court overturns Roe v. Wade. 

Sen. Elizabeth Warren, a Massachusetts Democrat, said in an impassioned floor speech Tuesday that “every American will know exactly where their elected representatives in Congress stand” once the vote occurred.

“For everyone who says we don’t have the votes in the Senate to get this done, I say: ‘Then get in the fight and give us the senators who will get it done.’ Don’t tell us what we can’t do to stop Republican extremism. Get in the fight to help us beat these abortion restrictions into the dirt,” Warren said. 

The Democratic Senatorial Campaign Committee (DSCC), which supports Democrats in Senate races, launched its first advertisement Wednesday related to the Supreme Court’s draft ruling overturning Roe. The ad took over the MSNBC.com homepage and says: “If Senate Republicans win in November, they will light women’s rights on fire.”

Earlier this week, American Bridge 21st Century, a Democratic super PAC, launched a public tool that will allow voters to track Republicans’ positions on abortion access. 

In Washington, Republican leaders have sought to play down the potential impact of the court’s Dobbs ruling, and many have instead focused publicly on who leaked the draft. But Senate Minority Leader Mitch McConnell seemingly opened the door to pursuing a national abortion ban, telling USA Today that if it “became the final opinion, legislative bodies — not only at the state level but at the federal level — certainly could legislate in that area.” 

For Republicans to pass a national abortion ban — or any other legislation limiting abortion access — they too would need to pick up Senate seats. Either party would need either 60 votes to overcome the filibuster or a majority that supported changing the filibuster rules. Neither party has the votes to change filibuster rules. 

A majority of Americans consistently oppose overturning Roe, though views on abortion are nuanced. A June 2021 survey from the public opinion polling firm Gallup showed that 58 percent of Americans oppose overturning the ruling and 32 percent favor it, mirroring public opinion in 1989. Among respondents who identified as “Republican or lean Republican,” 46 percent said they supported overturning Roe. 

The only potential point of bipartisan compromise in the Senate is a measure offered by Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — the chamber’s two remaining Republicans who support abortion rights. Collins and Murkowski did not support the Women’s Health Protection Act, saying it would enshrine more abortion rights than currently ensured by Roe and subsequent court rulings. Most Democrats said they preferred voting on their own bill before negotiating. It is unlikely even a narrower bill could get 60 votes to overcome the filibuster.

Sen. Tim Kaine, a moderate Democrat from Virginia, told reporters Wednesday that he approached Collins last week to discuss her concerns with the WHPA and the alternative bill. He called the conversations “productive,” but the timing for any agreement — or whether it could pass — is uncertain.

“If a bill gets introduced, would it have 60 votes like that? No. But you could see a dynamic in which the court comes out with a decision … [and] it may take it completely out of the abstract and put it into ‘OK, we need to do something,'” Kaine said.