With the Supreme Court on the verge of returning to the state and federal legislatures the power to regulate abortion, an effort is emerging in Congress to arrive at a grand bargain to preserve at least some of the central features promulgated in Roe v. Wade and subsequent litigation.

Spurred by the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson’s Women’s Health Organization, the scramble is on to find a workable national legal regime that reflects the reality that more than half of Americans support the right to abortion during the first trimester as well as some restrictions afterwards. 

The effort in Congress is designed to pre-empt legislation in the states that, in some cases, would impose strict new rules such as haven’t been permitted since Roe was handed down in 1973. Congress is scrampering as protesters, some in the red regalia borrowed from “The Handmaid’s Tale,” are preparing for a day of action Saturday under the banner: “Bans Off Our Bodies.”

Into this maelstrom comes a bipartisan plan being crafted by Senators Collins, Kaine, and Murkowski that attempts to forge something like a compromise — in contrast to a purely Democratic effort that this week not only failed to recruit one Republican but also saw Senator Manchin cross the aisle to vote no. “The Women’s Health Protection Act” went down in a 51-49 vote.

The WHPA would have gone further than Roe in prohibiting “governmental restrictions on the provision of, and access to, abortion services.” It would also have blocked recourse to the Religious Freedom Restoration Act, which bans legislation that burdens freedom of religion except in cases where the law is narrowly tailored in pursuit of a compelling government interest.   

Senator Schumer, who spearheaded RFRA’s passage and is now majority leader, labeled the failed attempt to pass the Woman’s Health Protection Act “one of the most consequential” votes in the upper chamber in decades. Both he and President Biden are focused on the salience of abortion as a political issue ahead of the midterm elections.   

In the wake of WHPA’s failure, Mrs. Collins told the press that she was “trying to come up with a more focused bill that would accomplish the goal of ensuring that if the Supreme Court does rule to overturn Roe v. Wade and Planned Parenthood v. Casey that there would be no change in a woman’s right to choose.”

A crucial component of the national approach being spearheaded by Senator Collins, according to Lisa DeJardins of PBS NewsHour, is an allowance for religious conscience exemptions on a state-by-state basis. Senator Kaine, a Catholic, has in the past explained that he is personally opposed to abortion but supports it as a matter of public policy.

While Mr. Kaine was standing for vice president, his support for the Hyde Amendment, which blocks Medicare funds from covering abortion, was a subject of controversy. The carve-outs he and Mrs. Collins and others are eyeing would ostensibly enshrine a federal right to abortion while also allowing for state level variations.

“Obviously,” Mrs. Collins says, “I think it’s going to be difficult to get a consensus.”

This work of compromise was legislatively afoot even before Justice Alito’s memo leaked. In February, Senators Collins and Murkowski introduced the “Reproductive Choice Act,” which aimed to “codify the essential holdings” of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey..

In recent weeks, Mrs. Collins has often found herself at the center of the abortion storm. She called the Bangor Police Department over the weekend in reaction to a message being chalked onto the sidewalk in front of her home: “Susie, please…Mainers want WHPA —–> vote yes, clean up your mess.” 

Mrs. Collins also made waves by noting in reference to the Alito draft that if it “is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”

In their open testimony both Justice Gorsuch and Justice Kavanaugh acknowledged that Roe was a precedent but also were careful not to disclose how they would vote in future cases. 

Justice Gorsuch said he would have walked out of his meeting with President Trump if forced into such an ultimatum, and Justice Kavanaigh maintained “judges do not make decisions to reach a preferred result.” After hearing these responses, Mrs. Collins voted to confirm both justices.    

One Democrat who is emphatically not joining the bipartisan consensus that Mrs. Collins is endeavoring to create is Senator Warren, who insisted, “We should not be compromising on women’s equal protection under law.” Mr. Schumer agrees, declaring, “we are not looking to compromise on something as vital as this.” 

That refusal to compromise might come into focus in a different light, however, in an America where Roe is no longer the law of the land. Unless the Congress comes up with a national grand compromise, after all, the matter could be left to individual states, some 13 of which have already passed legislation curbing abortion as soon as the Supreme Court overturns, if it does overturn, Roe v. Wade.