WASHINGTON — As the Supreme Court considers a case that directly challenges Roe vs. WadeFollowing the 1973 ruling that legalized abortion nationwide, legal minds are exploring strategies to protect access to abortion. One such option is to place abortion facilities on federal lands in states that restrict or prohibit abortion.
The idea is that these facilities would fall under federal governance rather than state law.
States could soon determine access to abortion within their respective borders if the Supreme Court does not uphold deer when he decides Dobbs v. Jackson Women’s Health Organization Later this year. The case involving a 2018 Mississippi law centers on “whether all pre-viability bans on elective abortions are unconstitutional” or whether states can ban abortion before a fetus can survive in outside the womb.
In the event that President Joe Biden wields executive power to try to circumvent states that restrict or ban abortion, Republicans say they will speak out.
“As far as the executive overreach that President Biden envisions, that’s something Republicans would categorically oppose,” said House Republican Conference U.S. Representative Elise Stefanik, RN. Y. during a February 8 press briefing on the House GOP.
His comments came after EWTN Capitol Hill correspondent Erik Rosales expressed concern from pro-life organizations that Biden “could use executive orders, like possibly putting clinics on federal land.”
Is this a real possibility?
Rosales’ question follows a report published by 19thNews.org on Feb. 7 citing legal minds who say the president could use executive powers to protect abortion. One suggested the government could lease federal land to abortion centers.
“It is possible that clinics could operate on federal land without having to follow state law. It needs to be explored,” said David Cohen, a professor at Drexel University’s Kline School of Law, who focuses on constitutional law and gender. The 19. “It’s not a slam dunk legal argument, but it’s the kind of stuff that needs to be tried.”
Gerard Bradley, a law professor at the University of Notre Dame, where he teaches legal ethics and constitutional law, found the strategy impractical — at first glance.
“It’s fanciful to think that Planned Parenthood, for example, could operate an abortion clinic without local state regulation just because Uncle Sam owns it,” he told CNA. “But the most fundamental idea behind this particular thought is not at all fanciful. It is that federal law in our constitutional system is ‘supreme’ over incompatible state laws.
He pointed to the role of federal law in this situation.
“No State Law Banning Abortion Following Supreme Court Ruling Overturning deer could override a federal law that specifically allowed abortions,” he said. “It is certainly within the power of the federal government to say, for example, that in federal prisons and on military bases there will be access to legal abortion notwithstanding any state law prohibiting it.”
Bradley questioned the extent of President Biden’s powers.
“Exactly how much authority of this kind the executive branch possesses on its own, and how much of that authority should be exercised by Congress, is often debatable,” he explained, “even in situations where it is clear that, as a whole, the federal government has the power to act.
As an example of what he called a “complex issue,” Bradley cited recent Supreme Court cases involving the COVID-19 vaccine. In January, the court blocked Biden’s vaccine or test warrant issued by the Occupational Safety and Health Administration for large businesses, while allowing the application of a new federal rule that requires that millions of healthcare workers are fully immunized.
“In the OSHA large employer mandate case, the court essentially said that Congress had the constitutional power to mandate vaccines and that Congress could have delegated authority to OSHA to mandate vaccines. vaccines,” Bradley summed up. “But, according to the court, Congress failed to do so, and therefore OSHA acted without proper legal authority.”
Bradley examined the authority of the legislature in matters of abortion.
“The real constitutional fact is that, based on existing judicial interpretations of the scope of Congressional power, Congress could legislate permissive abortion across the United States,” he said, adding that politicians and experts sometimes describe this as “codifying deer.”
That, he added, is unlikely.
“The current Senate won’t do that, of course, and the Senate elected next November is even less likely to do that,” he added. “That’s why the extent of executive power — starting with our ‘pro-choice Catholic’ president — to make abortion available is so important.”
But he indicated that the judiciary was the solution.
“The only way to end all of this, and therefore the only way to truly end legal abortion, is for the Supreme Court to rule as it should, but probably won’t in Dobbs,” he said. “The court should consider that the constitutional guarantee that all ‘persons’ have equal protection under the laws against murder extends to conception, because that is when the “people” start.”
He feared the court would make a “fatal error”.
“The court is likely to ‘overrule’ deer in Dobbs,” he said. “But he’s unlikely to write a truly pro-life review.”
Instead, he predicted, the court “will erroneously hold that our Constitution is ‘silent’ on the subject of abortion and therefore ‘neutral’ on the subject, neither prohibiting nor permitting abortion. . It is not for the courts, but for the states and national government (other than the national court system), to decide. »
Pro-life groups have weighed in on the idea of leasing federal land to abortion centers. Mallory Carroll, vice president of communications for Susan B. Anthony List, criticized the strategy.
“It’s no surprise that pro-abortion activists are tossing around an idea like this,” Carroll told CNA. “The abortion lobby is so afraid of the will of the American people that it will do anything to circumvent state action to protect the lives of unborn children.”
As president and CEO of Americans United for Life, Catherine Glenn Foster told CNA that the strategy points to a larger problem and echoes Bradley’s concern.
“This conversation around what President Biden can or cannot do to promote abortion highlights the problem with the United States Supreme Court that could make abortion a so-called state issue when it will eventually reverse. deer“, she said. “Human rights are not subject to a vote. We need the Supreme Court to declare the clear fact that the Constitution is incompatible with abortion and that justice clearly demands the abolition of abortion in our country.
Located in a state that restricts abortion, Jonathan Saenz, president and attorney for Texas Values, said the Texas Heartbeat Act will stay in place regardless of how President Biden proceeds. The subject of another recent Supreme Court case, the law restricts most abortions after detection of a fetal heartbeat, which typically occurs about six weeks into pregnancy. In December, the Supreme Court ruled that abortion providers could pursue their legal challenge to the law, but that the abortion law would remain in effect in the meantime.
“The Biden administration’s desperate, last-minute efforts to collude with abortion clinics to evade the law and take the lives of babies will not change state law or the application of the Texas Heartbeat Law,” he told CNA.
Law professor Cohen floated the idea of federal lands in pieces last year to Atlantic and for The New York Times which he wrote with Greer Donley, assistant professor at the University of Pittsburgh School of Law, and Rachel Rebouché, acting dean and professor of law at Temple University’s Beasley School of Law.
Together they asked Atlantic“Could the federal government take bold steps to lease property or establish its own abortion clinics on federal lands, such as in federal government offices or in national parks? »
“Could federally recognized Native American tribes do the same?” they added, continuing: “What about the federal government, as one commenter suggested, hiring abortion providers so that they are federal employees and therefore immune from state lawsuits under laws like SB 8?”
The three shared their legal reasoning in The New York Times.
“Only a small set of state civil laws apply on federal lands, and a civil abortion law like Texas’s SB 8 is clearly not part of that group,” they asserted. As for applying state criminal law, where “things are a bit more complicated,” they said it shouldn’t apply if the federal government has spoken on the matter.
“For this, the Biden administration could cite the FDA’s regulations on abortion drugs, as well as the various federal laws that regulate abortion, as evidence that state criminal laws are inapplicable in federal territory,” they said. they added.
Other avenues for executive power
Given the limitations of Congress, law professors have suggested The 19 other executive strategies to protect abortion, ranging from relying on the Food and Drug Administration to expand access to abortion drugs to having the Department of Health and Human Services encourage states to circumvent the Hyde Amendment – which generally prohibits federal Medicaid funds from being earmarked for abortion – using their own respective Medicaid funds.
As The 19, The New York Times and Atlantic articles have listed additional options for Biden to explore, with a focus on the FDA. In December, the FDA lifted restrictions on mifepristone, a drug approved for use in medical abortions. The decision allows doctors to prescribe the drugs online and send the pills, allowing women to perform early abortions – up to 10 weeks gestation – without leaving their homes.
“Imagine if the FDA went further, and not only removed its own restrictions that limit the use of the drug, but also prohibited states from imposing their own restrictions,” the three legal minds wrote in Atlantic. “Would this federal regulation prevent and therefore invalidate state restrictions on medical abortion?”
The White House had no comment at the time of publication. Professor Cohen declined to comment.