Marbury v. Madison v. Joe Biden v. Abortion

August 6, 2022

Tags: 2022, abortion, chemical abortion, COVID, Dobbs, Marbury v. Madison, PREP, Roe
Posted in: Biden, Democracy, Trump

Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.

Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…

The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.

The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.

If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.

Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.

Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.

If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.

The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.

That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.

As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.

Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”

That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.

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