Why Didn't the Democrats Codify Roe in 2009?

Democrats are currently running an unusual campaign for the midterms, specifically when it comes to abortion rights.  President Biden & Senator Schumer have basically stated that while Biden might be able to issue executive orders that would override Roe to a degree, codifying abortion rights is not possible currently.  Despite the Democrats having the White House, Senate, and House, two Democratic senators (Kyrsten Sinema of Arizona and Joe Manchin of West Virginia) have point-blank refused to eliminate the filibuster to codify Roe into law, and based on current Senate rules, the Democrats cannot pass the bill under a bare majority in the Senate, which there are not enough pro-choice votes to do even if the Democrats were able to find a bill that might appeal to nominally pro-choice Republicans like Susan Collins and Lisa Murkowski.

The big question that Democrats have been throwing around in recent days has been "why didn't Democrats codify Roe when they had the chance?"  This isn't a bad question.  Democrats have had a trifecta multiple times since 1973, and as a result would've had opportunities to push for Roe becoming national law, potentially preventing the type of overreach the Roberts Court committed recently.  This dismisses, though, the historical reality of how much the Democratic Party has changed, and so I wanted to take a look today at specifically the brief period in 2009, the last time that the Democrats had the White House, House, and a filibuster-proof majority in the US Senate.

In order to break the filibuster (without eliminating the filibuster) you need sixty votes, and for a small window during President Obama's first term in office, the Democrats had that.  While they won overwhelming majorities in 2008 in the White House, Senate, & House, the mythology about the filibuster-proof trifecta is a bit exaggerated in terms of how long they actually had 60-votes.  This is due to three factors.  First, Al Franken won the 2008 election by a bare majority (312 votes), and wasn't seated in the Senate until July 7, 2009.  Second, Arlen Specter wasn't a Democrat the entire term-he switched parties on April 28, 2009, to the Democrats, but for the first three months of the Senate he was a Republican.  And third, Sen. Ted Kennedy died on August 25, 2009, and wasn't replaced by Paul Kirk until September 24, 2009.  Kirk would eventually be replaced (he didn't stand for election) by Republican Scott Brown on February 4, 2010.  This means that the Democrats only had a 60-seat majority from 7/7-8/25/09 and from 9/24/09-2/4/10, or about 6 months.  During that time Senate Democrats did pass a lot of legislation, most notably the Affordable Care Act and the confirmation of Sonia Sotomayor to the Supreme Court.  But in a slow-moving Senate, they had a very brief window to be able to pass this without the filibuster.

The reason I bring this up is because overturning the filibuster to pass legislation didn't really become en vogue until the Trump years.  Before that, while it was oftentimes discussed for judicial blocks (i.e. the nuclear option), it wasn't something that either party wanted to get toward.  Overturning it for something like the ACA wasn't really on the table, and codifying Roe, which was considered "safe" by pretty much all Democrats, was too big of a political risk.  It's not clear if you could've gotten 40 votes to remove the filibuster, much less fifty.

So assuming that you were just going to go in this window, the biggest problem with codifying Roe would be that there weren't actually 60 votes to pass it even with a majority.  Let's assume President Obama would have signed legislation codifying Roe into law (an easy assumption for a very pro-choice president) and that the House would've found the votes (a bigger leap given the number of southern conservatives still in the body, but given Nancy Pelosi's legendary whip-counting abilities & the size of the majority, probably would've been achievable).  But you still need 60 Senate votes, and I can't find the math to get there.

Sen. Ben Nelson (D-NE)

For starters, at least one Democratic senator was anti-choice: Ben Nelson.  It's hard for modern people looking at politics to grasp, but 2009 was around the first time in American history where all of the Democrats were to the left of the most moderate Republican.  In 2004, for example, Democrats would've had a senator like Zell Miller who was deeply conservative (to the point of voting almost always with the Republicans), while the Republicans would have Lincoln Chafee, a senator so liberal that he'd eventually become a Democratic candidate for president.  Ben Nelson would make Joe Manchin look like Chuck Schumer by comparison.  A popular former governor of Nebraska, he was very against abortion rights, to the point where he was endorsed by Right to Life in his 2006 reelection campaign.  Nelson would've been a very tough, if not impossible get for the Democrats in codifying Roe.

Nelson wouldn't have been the only problem for the Democrats.  While Nelson was the only truly anti-choice Democrat in the caucus, many other Democrats were very much to the right of what we'd expect for the Democrats to do on abortion rights.  Mark Pryor (AR), Robert Byrd (WV), Evan Bayh (IN), Kent Conrad (ND), & Arlen Specter (PA) all had mixed views on abortion, and would've been difficult to get to support the same bill.  Even Bob Casey, who is a current senator whose views on abortion rights would indicate he'd likely now codify Roe, was much more conservative on abortion rights in 2009-10.  The Democrats likely would've needed to peel off at least a couple of Republicans, and while there were five GOP members who were pro-choice to some degree during that Congress (Susan Collins (ME), Lisa Murkowski (AK), Olympia Snowe (ME), Kay Bailey Hutchison (TX), & Scott Brown (MA)) it's hard to imagine that they would've bucked their party leadership to codify Roe in that scenario.

This is because Roe wasn't really considered that vulnerable at the time.  While the Supreme Court had 5 conservatives and 4 liberals, it was a very different makeup than we have today.  While all of the liberals (Ginsburg, Breyer, Souter/Sotomayor, Stevens/Kagan) were very proudly pro-Roe, only three Republicans (Scalia, Thomas, Alito) seemed certain to overturn Roe.  Chief Justice Roberts was viewed as an institutionalist, and the Democrats had a very certain fifth vote for Roe in Anthony Kennedy.  Roe didn't look to be in immediate danger, particularly if Obama could get more appointments in his final three Congresses (Ginsburg, Kennedy, & Scalia all being older).  We know how that turned out, but in 2009 there was more concern over fixing the economy & passing the ACA than on Roe.

Sen. Barbara Boxer (D-CA)

One last thing to remember is also what codifying Roe would look like, but it's also worth remembering that the left flank has very different views on abortion than some of the moderate pro-choice voters.  In 2009, we were not super far away from the "Partial-Birth Abortion Act of 2003" where Republicans banned late-term abortions.  31 Democrats and 3 Republicans (Collins, Snowe, Chafee) all voted against this bill.  It's probable that several of the most liberal/pro-choice members of the Senate in 2009 (think people like Barbara Boxer (CA), Patty Murray (WA), Barbara Mikulski (MD), Bernie Sanders (VT), Mark Udall (CO) and Russ Feingold (WI)) wouldn't have allowed a codification of Roe that likely would've required limitations on abortion access.  In all likelihood, they would've pressed for at least some overturning of the 2003 act, setting up a game of chicken that it's hard-to-tell who would've won, particularly considering that there wasn't an obvious end-date for Roe being legal given Kennedy was on the bench, and so "doing nothing" was the probable outcome in such a standoff.

In retrospect, the Democrats should've been wearier.  Many assumed that the 2003 "partial-birth" legislation would be overturned by the Court.  After all, a similar piece of legislation had been overturned in 2000 in Stenberg v. Carhart had done just that but in 2007 when the case made it to the Supreme Court (Gonzalez v. Carhart) it was held up 5-4.  The biggest difference didn't appear to be the legislation itself, but instead that Sandra Day O'Connor, a pro-choice jurist, had been replaced by Samuel Alito, decidedly anti-choice; this focus on the composition of the Court and not the merits of the legislation would be what eventually caused Roe to be overturned via Dobbs 16 years later.  However, given the gargantuan economic recession, the opportunity to pass the biggest expansion of healthcare since the 1960's, and the seemingly "safe" (it would, to be fair, stand for another 13 years without issue) status of Roe resulted in Democrats not codifying in what was surely their best opportunity to do so until present-day.