Can Biden weaponise the abortion debate to win the mid-terms?

Washington: As expected, the Biden administration has failed to advance legislation to codify US federal abortion rights, once again falling victim to a hostile senate where Democrats don’t have the numbers.

The Supreme Court will decide within weeks whether it will stick to its draft decision to overturn Roe v Wade – the landmark 1973 ruling that gives American women a constitutional right to abortion – so the question now is: What is the next move for pro-choice advocates?

Abortion rights demonstrators outside the US Supreme Court.Credit:Bloomberg

Today’s vote was all but inevitable. Senate Majority Leader Chuck Schumer pitched it as one of the most important votes the chamber would make in decades, but it was always going to be largely symbolic.

It aimed to put to on record those who opposed the bill – all 50 Senate Republicans plus renegade Democrat Joe Manchin – and galvanise the Democrats’ base ahead of the November’s midterm elections.

Manchin, who represents the Trump-loving state of West Virginia and has a propensity to vote his own way, even flagged his intention before the vote, declaring that while he would support a narrower bill to codify Roe v Wade, this one went too far.

“It’s an expansion (of abortion),” he said. “We should not be dividing this country further than we’re already divided.”

But pushing the issue to the forefront of the national debate was one of the few levers the Democrats had.

They can’t shift the balance of power in the Supreme Court, where six out of the nine liberal justices are currently conservative. They can’t change the so-called filibuster rule, which requires at least 60 Senate votes for most laws to pass because there’s no enough support within party ranks to do so.

The best they can do is spend the rest of the mid-term campaign telling voters that if they want to protect the right to abortion they should expand Democrats’ Congressional majority, and work to put in place measures that might improve abortion funding and services in a post-Roe world.

The White House is now attempting to do just that.

“To protect the right to choose, voters need to elect more pro-choice Senators this November and return a pro-choice majority to the House,” Biden said in a tweet in the aftermath of today’s vote.

“If they do, Congress can pass this bill in January, and put it on my desk, so I can sign it into law.”

As pro-choice advocates prepare to the take to the streets for a national day of action on Saturday, the president has asked the White House Gender Policy Council, the Department of Health and Human Services and the White House Counsel’s Office to put together a plan to safeguard women’s rights in the likely event of Roe being overturned.

While the administration is tight-lipped about what’s in store, it has signalled that it is considering using executive orders to boost funding and services, and may also push federal agencies help women get the care they need in the face of tightened restrictions.

For instance, one option on the table is to ask the Food and Drug Authority, which controls prescription drugs in US, to increase the access to the drugs used in medical abortions, which account for about half the abortions in America.

Another option being discussed within Democrat circles is to allocate more Medicaid funds to help lower-income women travel interstate for abortions.

The Justice Department is also looking at ways to protect clinics that provide abortions using existing federal laws. This could involve using the 1994 Freedom of Access to Clinic Entrances Act, which makes it illegal “for a person to use force, threat of force, or physical obstruction to intentionally injure or intimidate” those seeking reproductive healthcare.

“What we’re looking at here is nearly half the country potentially not … allowing women to have access to choices about their own bodies and their healthcare,” said White House press secretary Jen Psaki, who is now leaving her post.

“So I would say there’s a range of considerations that are underway – both by our Counsel’s Office, by the Department of Justice, led by the Gender Policy Council – to take every step we can to protect women’s fundamental rights and protect rights beyond that.”

Such moves would be in response to the 26 US states that have indicated they will ban or severely restrict abortion if Roe v Wade is overturned.

Protesters gather for an abortion rally at the Oklahoma State Capitol.Credit:Farrah Tomazin

Some of them have already curtailed women’s reproductive rights. Last week, I visited Oklahoma as it introduced new laws banning abortions after about six weeks – before many women actually know they are pregnant – along with a bounty-hunting scheme rewarding people with at least $US10,000 if they successfully sue those involved in abortions.

The bill was modelled on laws introduced in Texas last year, which led to thousands of Texans turning to neighbouring states for treatment.

But galvanising voters for the midterm elections will be a significant test for Democrats, particularly as many of their voters are concentrated in states where abortion rights are likely to be guaranteed.

For many Americans, the issue also takes a back seat to hip-pocket concerns such as soaring inflation rates, record high gas prices, and skyrocketing grocery costs.

And then there’s the question of whether the Democrats can unite behind a single message, when unity hasn’t been their strong suit lately.

But as Tamye Cox-Toure from the American Civil Liberties Union said: “This is a wake up call for progressives.

“If they don’t take the steps necessary to protect access, they could lose voters for a very long time. We probably wouldn’t be in the situation we’re in if we had enough pro-choice Democrats in the first place. So we need to fight.”

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