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Last updated Nov 29, 2025
Episodes / E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
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Sacks @ 01:06:16Right
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If Roe v. Wade is overturned along the lines of the leaked Alito draft, Democrats in Congress will attempt to codify Roe in federal law, but that effort will fail because they will not obtain the votes needed to overcome or eliminate the Senate filibuster; thereafter, abortion policy will default to state control.
What that will mean is then, like Tom said, we'll have a vote in Congress. The Democrats will see if they can basically uphold Roe by through a law which Biden would then sign. I think the issue there is they have to get enough votes to break the filibuster, and I don't know if they're willing to do that. So let's assume that fails. Then it goes to the states.View on YouTube
Explanation

  1. Condition met: Roe overturned along lines of leaked Alito draft. On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, explicitly overruling Roe v. Wade and Planned Parenthood v. Casey and returning abortion regulation to “the people and their elected representatives.” Analyses note the final majority opinion was substantially similar to the earlier leaked Alito draft. (en.wikipedia.org)

  2. Democrats in Congress attempted to codify Roe. The Women’s Health Protection Act (WHPA), designed to enshrine Roe/Casey-style abortion protections in federal statute, passed the House in September 2021 (218–211) and again on July 15, 2022 (219–210) after Roe was overturned. (en.wikipedia.org) These were explicit attempts by congressional Democrats to “codify Roe” in federal law.

  3. Those efforts failed due to lack of votes to overcome/eliminate the Senate filibuster. In the Senate, WHPA failed on key cloture/advancement votes. On May 11, 2022, the bill to codify abortion protections received 49–51, far short of the 60 votes needed to overcome a filibuster. (wboi.org) President Biden later publicly supported a filibuster exception to codify Roe, but Senators Manchin and Sinema maintained their opposition to changing filibuster rules, and Biden acknowledged Democrats did not have the votes to alter the filibuster. (washingtonpost.com) No federal law codifying Roe has been enacted since.

  4. Post-Roe, abortion policy has defaulted to state control in practice. The Dobbs majority expressly stated that Roe and Casey are overruled and that “the authority to regulate abortion is returned to the people and their elected representatives,” with the decision “devolving to state governments the authority to regulate any aspect of abortion that federal law does not preempt.” (en.wikipedia.org) After Dobbs, a patchwork of state laws emerged: some states implemented near-total bans via trigger laws or revived old statutes, while others protected or expanded access, confirming that abortion policy is now largely determined at the state level absent a federal codification. (en.wikipedia.org)

Taken together, the predicted sequence occurred: Roe was overturned along the lines of the draft; Democrats tried and failed to codify Roe because they lacked the votes to overcome or scrap the filibuster; and in the aftermath, abortion regulation has effectively defaulted to state control. Hence the prediction is right.