Assuming he had the votes. Roe was not in jeopardy in '09, on the other hand the economy hung in the balance and there was a once in a generation opportunity to reform health care. The Dem majority in '09 only materialized for maybe three months (took many months for Franken race to be called and shortly after Kennedy's seat was filled with a Republican) and several new Dem seats were in essentially red states and only flipped with disgust over W's Iraq war and cratering economy. These same senators would not vote for public option either.