This week, federal health officials announced that doctors and hospitals must provide abortions under federal law if a pregnant woman is in an emergency situation and needs the procedure to be stabilized.
The Wall Street Journal reported Monday that the U.S. Department of Health and Human Services said Monday that performing an abortion if the doctor deems it necessary in a medical emergency is mandated even if the procedure is not legal under state law.
“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Health and Human Services Secretary Xavier Becerra said in a statement to health care providers. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care."
"Protecting both patients and providers is a top priority, particularly in this moment,” Becerra wrote. “Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”
The HHS’ announcement is the latest in a series of responses from the federal government after the Supreme Court overturned landmark abortion case Roe v. Wade. In the majority opinion in the case, Dobbs v. Jackson Women’s Health Organization, the justices wrote that there is no protection for abortion in the U.S. Constitution and Roe and Planned Parenthood v. Casey were wrongly decided.
"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives," the opinion stated.
"Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe."
The language in the majority opinion was similar to the language in Mississippi Attorney General Lynn Fitch’s amicus brief filed last summer in the Dobbs case asking the justices to overturn Roe and Casey. The case surrounded a 15-week abortion ban in Mississippi.
“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” Fitch said in the brief. “So the question becomes whether this Court should overrule those decisions. It should.”
“The Constitution does not protect a right to abortion. The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits States from restricting it,” Fitch continued in the brief. “Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life.’”
A spokeswoman for the Fitch’s office told the WSJ said their state’s pro-life law includes an exception for life-threatening emergencies. The spokesperson dismissed the guidance from the HHS “as a bid by the Biden administration to appease his base.”