Why Democrats are not pursuing a constitutional amendment for abortion rights

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As some raise concerns that a federal bill to codify abortion rights may not be constitutional, another avenue to enshrine abortion rights – a constitutional amendment – does not appear to be open for Democrats. 

"Constitutional amendments are something that the parties use as messaging opportunities," R Street Institute senior fellow for governance James Wallner told Fox News Digital. "They're not serious efforts to amend the Constitution."

The process for a constitutional amendment is extremely arduous, and there is effectively no chance of an amendment enshrining abortion rights making it past any of the several steps involved. Wallner said even the decades-long process of changing the balance of the Supreme Court is easier. 

"It's a lot easier to win an election, get a president in office, to nominate a judge, to get that judge on the bench, and then find sympathetic litigants to mount a case that goes through the federal court system, that ends up in the Supreme Court, and then they change the Constitution," he said. 

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The Supreme Court last month overturned Roe v. Wade, shifting the decision on whether abortion should be legal back to the political branches of government. (Fox News Digital/Lisa Bennatan)

To amend the Constitution, an amendment must be proposed by two-thirds of both the House and Senate. A constitutional convention could also be called by two-thirds of the states to propose an amendment. 

However, the Senate already cannot pass abortion legislation over its 60-vote filibuster threshold, meaning it is extremely unlikely it could get 67 votes for the same policy. It is also unlikely more than a couple of House Republicans would vote for such a bill, and almost certainly not the more than 70 that would be needed to pass an amendment. 

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Further, there are already 20 states with severe restrictions or an outright ban on abortion, according to Planned Parenthood. Republicans hold majorities in more than 60% of legislative chambers, according to the National Conference of State Legislatures. It is not likely those states would be willing to support an amendment that would undermine their laws. 

Even if one of those hurdles was cleared, an amendment must be ratified by three-fourths of the states, before its expiration, in order to take effect. Wallner said an amendment "is just by definition not going to happen."

"You can't pass a constitutional amendment if you can't pass a bill," Wallner said. "And Democrats don't even have 51 votes to pass a bill right now, setting aside their willingness to put in the effort to overcome a filibuster, which they also don't have."

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Both sides commonly propose constitutional amendments, largely for messaging purposes. Republicans, as recently as this year, touted the idea of a balanced budget amendment. Democrats, on the other hand, do not appear set on using that strategy in the wake of the Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and the constitutional right to abortion and returning the issue to the states.

A Senate Democratic aide told Fox News Digital that it is possible a member could bring up the idea of a constitutional amendment as Democrats deal with the Dobbs fallout. That aide said there is no plan for any coordinated effort among Democrats to push for such an amendment, or try to bring it to the floor for a vote. 

In the House, a senior Democratic aide said members of that chamber are not currently planning to push a constitutional amendment on abortion rights. 

However, the aide told Fox News Digital, other bills Democrats plan to vote on, including data protection for women, the right to travel to get an abortion and the Women's Health Protection Act (WHPA), will put a squeeze on Republicans. It will be interesting, the aide said, to see how Republicans vote on these issues in a post-Roe world, when they are "playing with live ammo."