The US Government is continuing its fightback against the Supreme Court and the decision in Dobbs vs. Jackson Women’s Health Organization, which overruled Roe vs. Wade. As reported by Reuters, the Biden administration yesterday said healthcare providers must offer abortion services if the life of a mother is at risk, and that procedures conducted under such circumstances would be protected under federal law regardless of various state bans. 

The Department of Health and Human Services said on Monday that physicians must provide treatment if they believe a pregnant woman is experiencing an emergency medical condition as defined by the Emergency Medical Treatment and Active Labor Act (EMTALA), and if abortion is a “stabilizing treatment”. The department said emergency conditions include “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.” 

President Biden already started the fightback against Dobbs last week as he signed an executive order to guarantee abortion access last Friday. The order aimed to protect women against penalties if they cross state lines for an abortion, while protecting access to medications. The order also addresses the transfer and sale of data related to abortion. 

Meanwhile, the President said on Sunday that he has asked his administration to consider whether he has the authority to declare an abortion-related public health emergency. In a nod to November’s midterms, Biden has also reiterated his support for changing congressional debating rules so lawmakers can codify Roe vs. Wade into law. 

The White House may however be fearful of another Supreme Court showdown. According to Adam Cancryn, writing for Politico, officials fear “a more aggressive response from Biden could backfire, further entrench anti-abortion restrictions and open the door to even more severe limits on his executive power.” According to Cancryn, the Biden administration rejected the idea of opening abortion clinics on federal territory because of concerns people travelling for abortions from states which have restricted access could be arrested once they step off federal land. Officials worry it would violate the Hyde Amendment prohibiting the use of federal funds for abortion, and allow a future Republican Government to retroactively punish doctors. 

According to Cancryn, Biden has yet to rule out declaring that FDA regulations approving the use of abortion pills pre-empt state anti-abortion laws, or that the Hyde Amendment does not extend to funding out-of-state travel. But the risk of such moves being struck down by the Supreme Court remains high. The White House is also sceptical of declaring a health emergency since the fund for emergencies is nearly depleted post-COVID, and any move could also invite a legal challenge.

Perhaps the most important issue now will be results of November’s midterms. Data suggests abortion is becoming a major issue for voters after Dobbs, with 66 per cent of voters saying it is now either extremely or very important. According to Gallup, while 37 per cent of Republicans and Republican-leaners say abortion is extremely important, this rises to 48 per cent for Democrats and Democrat-leaners, indicating the pro-abortion vote may be particularly energised. 

Pollsters are showing a definite shift to the Democrats post-Dobbs, including Rasmussen Reports, YouGov/Yahoo News, and Morning Consult/Politico (all +3). Meanwhile, according to data from Pew Research Center, most Americans do not support the Supreme Court decision, with 62 per cent of adults saying abortion should be legal in all or most cases. This may all play to Biden’s favour in his ongoing fightback against the Supreme Court ruling.

In an increasingly divided America meanwhile, US Catholics are also divided. While 51 per cent of Catholics approved of the court’s decision (with 34 per cent strongly approving), 48 per cent disapproved (with 28 per cent strongly disapproving). For Protestants, the figures were 45 per cent (32 per cent), and 52 per cent (35 per cent) respectively. Equally striking, only a minority of US Catholics now believe abortion should be illegal in most or all instances.

The battle for hearts and minds continues.

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