Washington, D.C. – In January of 1973, the United States Supreme Court leapfrogged the legislative process by handing down an opinion that made abortion on-demand legal throughout the United States. In the 50 years that have passed since Roe v. Wade was decided, the nation has been split by a cultural debate that even today shows no signs of subsiding.
The decision sparked a political realignment that started with observant Catholic Democrats leaving the party of JFK to join with the Republicans, who, as they saw it at least, were slowly becoming the party of life. Divisions within the two parties became as sharp as the divide between them on an issue that, over time, grew in importance in everything from the political nominating process to judicial selection.
Then came Donald Trump, who, during the campaign of 2016, promised to appoint judges to the Supreme Court who would vote to overturn Roe as so many among the GOP faithful hoped the justices appointed by Ronald Reagan, George Bush and George Herbert Walker Bush would do during the pitch battles over their nominations.
Taking advantage of what history will record was a rare tactical error by then-Senate Majority Leader Harry Reid, D-Nev., the Democrats moved to abolish the procedural move that could be used to block the confirmation of any judicial or other presidential nominees who had the support of a majority of senators – except for nominees to the highest court in the land.
Reid bungled because he set a precedent – and precedent is the thing that makes the Senate the Senate. It was easy, therefore, with the Republicans back in charge and Trump in the White House, to change the rules one more time to prevent Supreme Court nominations from being blocked with a filibuster.
That freed Trump from having to nominate compromise appointees who would maintain what some legal scholars breathtakingly referred to as “the balance of the court” as though that somehow mattered in a historical or procedural sense. He picked judges who would vote to overturn Roe and – in the case of Dobbs v. Jackson Women's Health Organization – Justices Clarence Thomas and Samuel Alito joined his three appointees to do just that.
The struggle nonetheless continues. While Republicans argue over where the boundaries should be and what abortions if any should be allowed (save for cases where the life of the mother is at risk, when most everyone in both parties agree it should be allowed) the Democrats are trying to put the genie back in the bottle. Their leaders in Congress are pushing legislation that approaches the issue of abortion from an even more expansive position than the one established in Roe. And in state after state, they are trying to force everyone running for everything from governor to dog catcher to state their position on the issue.
The White House has embraced it all with a glad hand. In advance of events marking the 50th anniversary of the Roe decision, the Department of Health and Human Services released a report identifying all the things the Biden-Harris administration has done “to protect reproductive health care.”
It can be read here. In brief, it is a laundry list of everything the Department has done in the post-Dobbs era to address what it calls “the health crisis precipitated by the Dobbs decision.”
“On the 50th anniversary of the Roe v. Wade decision, abortion, contraception, and other forms of reproductive health care are under attack in our nation like never before because the Supreme Court undermined nearly half a century of precedent protecting women's access to this critical care,” HHS Secretary Xavier Becerra said. “As a result, our daughters have fewer rights than their mothers and grandmothers, and women seeking care are being put in dangerous situations with heartbreaking results.”
Becerra, a former member of Congress and California state attorney general, was considered poorly qualified when he was selected to lead the department. His full-throated support for abortion-on-demand and his pandering to the special interest groups who back Democrats because Democrats back abortion rights while most Republicans oppose them makes the reason he was chosen clear.
Claiming somewhat dishonestly that Republican state leaders have engaged in what the report called “unprecedented efforts” at the state and national level to restrict access to abortion and birth control, administration officials bragged they were “using the tools available to them under the Department's jurisdiction” centered on six core priorities:
- Protecting Access to Abortion Services
- Safeguarding Access to Birth Control
- Protecting Patient Privacy
- Promoting Access to Accurate Information
- Ensuring Non-discrimination in Healthcare Delivery
- Evidence-Based Decision Making at FDA
The report also identified a few key actions taken by the administration in pursuit of those goals. One was to reaffirm the Department's commitment to protecting the right to abortion care in emergency settings under EMTALA – the Emergency Medical Treatment and Active Labor Act. Another was to issue guidance to clarify protections for birth control coverage under the Affordable Care Act, while a third is said to safeguard medical privacy by empowering patients to protect their medical information on smartphones and apps.
Joe Biden and his team of political advisers believe the strong pro-abortion rights position he took in the closing days of the 2022 campaign helped turn back the “red tsunami” everyone thought they saw coming. It's more complicated than that, but the issue did work to the Democrat's advantage in some states. The fact that GOP candidates running in many places had little to say other than “We're not for doing what Biden's done” wasn't a smart campaign strategy, nor was it effective, as the results at the polls show.
The Dobbs decision turned one fight into fifty by placing the abortion debate back into the legislative arena where it belongs. It's up to the people to decide what abortion policy should be through their elected representatives, not the courts. Access to abortion is not a right protected by or included in the Constitution, as the high court now acknowledges.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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