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If Joe Biden wins a second term, his team says that his No. 1 priority will be restoring abortion rights across America.

“First of all: Roe,” as Biden’s deputy campaign manager Quentin Fulks put it on NBC’s Meet the Press in early January. “It is unfathomable that women today wake up in a country with less rights than their ancestors had years ago,” he said.

Fulks is right: It is unfathomable, although pregnant women across red America have certainly spent the last year and a half fathoming it. Since the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization in June 2022 and ended the era of legal abortion nationwide, thousands upon thousands of women have had to flee their home states to end their pregnancies, or have ordered abortion pills online and taken them clandestinely. Many others have been forced into unwanted motherhood. Still others have nearly lost their lives after doctors would not—legally could not—provide them with the same level of care they would have received in more liberal states.

Americans overwhelmingly dislike this new “pro-life” normal, in which doctors are threatened with prison time if they help desperately ill patients, women may be criminally prosecuted for allegedly mishandling the aftermath of their miscarriages, conservative legislators try to force women into motherhood, child rape victims are refused abortions and turned into public spectacles, women with wanted but doomed pregnancies are told they must carry to term and birth a baby who will die in minutes, and pregnant women with serious complications have to turn septic or otherwise be on death’s door before they can have a legal termination. Indeed, only about 1 in 10 Americans—a small minority—agree with most major anti-abortion groups that abortion should always be illegal, which is roughly the same proportion who think that the Earth is flat.

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And abortion has been winning at the ballot box, including in red states. Voters in Kentucky, Kansas, Ohio, Michigan, and California have been given the option to vote directly on the question of abortion rights, and all have voted in favor. These votes cross partisan lines: Many Republicans support abortion rights, or at least want the government to stay out of it. The anti-abortion movement seems so spooked by these outcomes that it is putting pressure on legislators in conservative states to get rid of citizen-led ballot initiatives entirely.

Even outside of direct votes, politicians who support abortion rights have been smoking anti-abortion ones. The pattern is so obvious that Republicans who were previously fire-and-brimstone abortion opponents are now curiously mum. Former President Donald Trump, whose appointment of far-right justices to the Supreme Court ushered in the demise of Roe v. Wade, has characteristically tried to play all sides, calling state restrictions “terrible” while also boasting that the “miracle” of overturning Roe was to his credit; he has also said he supports some very limited exceptions to general abortion bans (ever the amoralist, he says he just wants “to get something where people are happy”). Trump’s position may be ever-wavering, but he seems to understand one thing the anti-abortion movement doesn’t: The long-held GOP opposition on abortion is really, really unpopular, and this has given Democrats a significant advantage.

One question is whether top Democrats understand that, too.

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Clearly, the message is at least getting partly through, which is why Biden’s top campaign officials are saying that the president will treat abortion rights with the utmost urgency if he wins a second term. The pitch is clear: If you want abortion rights to be back in the hands of women and doctors, vote for Biden in November.

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But Biden was in the White House when the Supreme Court overturned Roe. He has been in the White House for the entire period in which harsh red-state abortion bans have been in place. So why hasn’t restoring abortion rights been the No. 1 priority of this term?

The Biden administration has tried to protect abortion rights, but its abilities are limited. The president has issued executive orders to protect abortion and contraception, but those do not invalidate state abortion bans or potential contraception bans. The Department of Health and Human Services issued an important directive on the long-standing Emergency Medical Treatment and Labor Act, confirming that hospitals receiving federal Medicaid dollars have to care for and stabilize any patient who comes through their doors, regardless of that patient’s ability to pay.

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EMTALA, HHS has reiterated, applies to pregnant patients as well: If a pregnant woman is extremely ill, shows up in the ER, and the best or only way to stabilize her or save her life is through a termination of the pregnancy, doctors are obligated to provide her with a medically necessary abortion regardless of whether abortion is banned in their state or not. It should be unobjectionable: Doctors have to treat pregnant women like any other emergency patient, taking necessary steps to stabilize them and save their lives.

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Abortion opponents disagree. Anti-abortion groups and the state of Texas have already sued over this directive, and the 5th U.S. Circuit Court of Appeals has sided with them, saying that EMTALA does not supersede state law. If a state bans abortion in nearly all cases and would, say, not allow abortion even in cases where a woman is set to suffer a major brain injury or lose a limb or lose her uterus or develop a systemwide infection—this is the case in Idaho, for example, which has no health exception to its abortion ban—then that’s simply too bad. Emergency room physicians, the 5th Circuit and the anti-abortion movement say, must abide by state law, not the federal rule that physicians have to try to stabilize and save their patients first.

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This administration has challenged the Idaho ban for conflicting with EMTALA, in a case that is now going to the Supreme Court. They have fought anti-abortion attempts to undo the Food and Drug Administration’s approval of mifepristone, an abortion-inducing drug with a decadeslong safety record, and have kept in place COVID-era rules allowing for abortion pills to be prescribed via telemedicine. They tout many other efforts to make abortion and contraception more accessible. And this week, on the anniversary of Roe, Vice President Kamala Harris will kick off an abortion-rights tour around the U.S., although coverage of the vice president has generally been scant.

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But it’s hard to say that restoring abortion rights has been the No. 1 priority of Biden’s administration, because, while he has made some statements supporting abortion rights, the president simply hasn’t made it a cornerstone of his campaign.

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He has instead primarily emphasized the threat that Trump poses to democracy—a crucial point to be sure, but one also indelibly tied to abortion. Biden has not been consistently and repeatedly clear on that link: that when liberal democracy expands, so do abortion rights; when authoritarianism takes hold, abortion rights and women’s rights tend to come under attack and contract. Thanks to Trump, the U.S. is in the ignoble company of only a handful of nations that have restricted rather than expanded reproductive rights in recent years. And in all of them, those rollbacks of reproductive rights have come alongside rollbacks of democratic norms and the rise of authoritarian leaders.

The rise of Trump, the demise of Roe, the shame of election denial and the January 6 insurrection—these events are tied together as the most salient moments in America’s slide toward authoritarianism.

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It is clear that a second Trump term would be a disaster for both abortion rights and American democracy, possibly the death knell of both. And yet in Biden’s first campaign speech of 2024—a carefully planned democracy-promoting number that reportedly took months to write and that advisers described as the president’s “opening salvo” to his campaign—the word abortion wasn’t mentioned once. Not once!

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It’s tougher still to discern what, exactly, Biden will do differently in a second term, unless the makeup of Congress radically shifts and there is a pro-choice majority in both houses. If that happens and the Biden administration is able to codify Roe and restore abortion rights nationally, that would be a huge victory—but also one Republicans could undo if they once again gained power across Congress and the White House (albeit at a steep political cost).

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A fundamental problem here is one that is both personified by Joe Biden and too late to undo: pre-Dobbs Democratic hesitancy to put abortion rights front and center. Biden, a practicing Catholic, has long been uncomfortable with abortion, preferring to avoid the issue or offer only tepid support. Well before the Dobbs decision, anti-abortion groups and politicians were passing law after law restricting abortion rights or ensuring those rights would be restricted the moment Roe fell; abortion rights groups fought them in court, but Democratic politicians were not going to the mat to enshrine abortion rights in state and federal law.

Pro-choice groups fought to end the Hyde Amendment, which bars federal Medicaid funding from paying for abortion. But they simply did not have support even from Democratic administrations, and as a result, the federal government is extremely limited in how much it can help women in red states get abortions in blue ones. Hillary Clinton sounded the alarm in 2016, but many Democrats were not nearly clear enough about the threat Donald Trump posed to abortion rights, and some even brushed worried feminists off as hysterical abortion obsessives. As the Supreme Court prepared to hear and decide on the Dobbs case, the Democratic Party did not prioritize preparing for the end of Roe and then was caught flat-footed. The party and its leaders made all the right statements, but they really didn’t start to lead with abortion rights until citizen-led abortion rights initiatives and pro-choice candidates started winning at the state level.

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Biden, his team, and the Democratic Party can’t undo the past. But they can certainly learn from it. One key takeaway is that moderate and swing voters may very well be swayed by the argument that another Trump term will mean even more scaling back of abortion rights in the U.S.—more pregnant women losing or almost losing their lives, more children forced to carry a rapist’s baby, more devastated wanting-to-be mothers forced to risk their lives and birth dead or dying babies, more women who simply cannot afford another child being plunged further into poverty and desperation.

And liberal, feminist-minded voters may be galvanized to turn out for a candidate who doesn’t exactly inspire fawning fervor if they believe both that the other guy is far worse and that this guy will push their No. 1 issue forward. (And then they would also be easily persuaded to fill out the rest of their ballot for the congressional Democratic candidates who would make federal abortion protections possible.)

All of that, though, requires that Biden not just pledge to make abortion rights the top priority of his second term but to make them a top priority in this election and in his administration right now. “Saving democracy” and “saving abortion rights” are, after all, not separate issues. They are one and the same.

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Biden’s Entire Candidacy Depends on the One Issue He Still Refuses to Talk About

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22.01.2024
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If Joe Biden wins a second term, his team says that his No. 1 priority will be restoring abortion rights across America.

“First of all: Roe,” as Biden’s deputy campaign manager Quentin Fulks put it on NBC’s Meet the Press in early January. “It is unfathomable that women today wake up in a country with less rights than their ancestors had years ago,” he said.

Fulks is right: It is unfathomable, although pregnant women across red America have certainly spent the last year and a half fathoming it. Since the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization in June 2022 and ended the era of legal abortion nationwide, thousands upon thousands of women have had to flee their home states to end their pregnancies, or have ordered abortion pills online and taken them clandestinely. Many others have been forced into unwanted motherhood. Still others have nearly lost their lives after doctors would not—legally could not—provide them with the same level of care they would have received in more liberal states.

Americans overwhelmingly dislike this new “pro-life” normal, in which doctors are threatened with prison time if they help desperately ill patients, women may be criminally prosecuted for allegedly mishandling the aftermath of their miscarriages, conservative legislators try to force women into motherhood, child rape victims are refused abortions and turned into public spectacles, women with wanted but doomed pregnancies are told they must carry to term and birth a baby who will die in minutes, and pregnant women with serious complications have to turn septic or otherwise be on death’s door before they can have a legal termination. Indeed, only about 1 in 10 Americans—a small minority—agree with most major anti-abortion groups that abortion should always be illegal, which is roughly the same proportion who think that the Earth is flat.

Advertisement

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And abortion has been winning at the ballot box, including in red states. Voters in Kentucky, Kansas, Ohio, Michigan, and California have been given the option to vote directly on the question of abortion rights, and all have voted in favor. These votes cross partisan lines: Many Republicans support abortion rights, or at least want the government to stay out of it. The anti-abortion movement seems so spooked by these outcomes that it is putting pressure on legislators in conservative states to get rid of citizen-led ballot initiatives entirely.

Even outside of direct votes, politicians who support abortion rights have been smoking anti-abortion ones. The pattern is so obvious that Republicans who were previously fire-and-brimstone abortion opponents are now curiously mum. Former President Donald Trump, whose appointment of far-right justices to the Supreme Court ushered in the demise of Roe v. Wade, has characteristically tried to play all sides, calling state restrictions “terrible” while also boasting that the “miracle” of overturning Roe was to his credit; he........

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