Post-Roe tectonic shifts: Abortion could go to Supreme Court

Throughout its history, the Supreme Court has overturned longstanding precedents, as it did recently in Dobbs v. Jackson Women’s Health Organization. Such changes are like the shifting of tectonic plates, triggering earthquakes and volcanic eruptions in the legal lithosphere. In law, adjustment can take years as collateral doctrines and applications shake along new fault lines.

This process began with new litigation in the post-Roe era, putting more emphasis on these conflicts, including a struggle over who ultimately controls doctors and health care providers in the United States.

As wanted by the court, much of the abortion debate will now be up to citizens to decide through the democratic process. However, there will also be legal challenges – and, about a month after the Dobbs decision, the “ring of fireis taking shape with a major blowout in Texas last week.

Texas is suing the Biden administration over new guidelines issued after the Dobbs decision. President Biden declared that the “only way to guarantee a woman’s right to choose…is for Congress to reinstate Roe’s protections against Wade as federal law.” He then announced unilateral actions intended to mitigate the impact of the decision. This mandate was exercised by the Secretary of Health and Human Services Xavier Becerra, who declared that “we don’t have the right to be ‘soft’. And so we’re going to be aggressive and go all the way.

The “aggressive” decision included requiring doctors and hospitals to continue to provide abortion services in emergency situations under the Emergency Medical Treatment and Active Labor Act (EMTALA). The law was created to prevent “patient dumping”, whereby hospitals would turn away patients who could not afford treatment. It does not mention abortion.

The change only affects one arrangement on “emergency medical care” and “stabilizing treatment” regarding abortion, although the first category may cover any “medical condition manifesting in acute symptoms of sufficient severity (including severe pain) which could “reasonably be expected to result in — (i ) seriously endangering the health of the person (or, in the case of a pregnant woman, the health of the woman or her child at unborn), (ii) a serious impairment of bodily functions, or (iii) a serious malfunction of any bodily function or part.

The possible scope of this provision aside, the Texas lawsuit represents the first major test of who controls doctors and health care providers in any given state.

The Biden Administration declared that where “a state law prohibits abortion and does not include an exception for the life of the pregnant person – or sets the exception narrower than the definition of emergency medical conditions of EMTALA – this state law is pre-empted”.

This last line may give Texas and other states the strongest claims of legal capacity to challenge the law. It also raises a possible conflict with the law itself, which precise that EMTALA does not prejudge any requirement of national or local law, except to the extent that the requirement directly conflicts with a requirement of [EMTALA].”

This poses a new challenge as to whether the Biden administration overstepped its authority after the court invalidated air conditioning regulations. The administration is not only accused of again overstepping its authority, but also of failing to comply with federal notice and comment requirements under the Administrative Procedure Act (APA).

The administration may have undermined its own case by announcing the new policy as part of an aggressive campaign. While rejecting the “soft” measures out of court, the administration will argue in court that this is part of pre-existing policy — not a major new change requiring congressional approval or notification and disclosure procedures. comment. Yet the words of Biden and Becerra are already being cited in the dispute by the challengers.

The biggest fight brewing among the states is referenced in another part of the guidelines. The Biden Administration warned retail pharmacies that they must fill prescriptions for abortion-inducing pills under federal law; the majority of abortions are performed at home with the use of these pills.

This could create a challenge with far-reaching implications. Physicians are subject to federal and state laws, including state licensing rules. In 2000, the Food and Drug Administration approved the abortion drug Mifepristone and six years later approved the drug for use in combination with another widely used drug, misoprostol. In 2018, more than 3.7 million women had used the drugs to end early pregnancy.

Shortly after the Dobbs decision, some of us reported the availability of these pills as the most important issue in the future. Since most women will likely live in states where abortion services are available, the pill could be used by women in states that ban abortion. Indeed, Attorney General Merrick Garland acted quickly on the advice of to declare that “states cannot ban mifepristone due to disagreement with the FDA’s expert judgment on its safety and efficacy”.

Michigan Governor Gretchen Whitmer (D) called President Biden make the pills available over the counter.

The problem is that states could ban doctors from prescribing the pills and prohibit their importation. For example, South Dakota Governor Kristi Noem (R) announcement that she will call for a ban on abortion pills sold by mail order. Conversely, the federal government can rely on telemedicine to enable women to obtain prescriptions.

Since states generally don’t want to prosecute pregnant women, they will focus on state licensing and physician practice laws. This will pit federal interstate drug authority against state physician authority. The Biden administration will again be in largely uncharted territory; just as the court rejected sweeping action by the agency in the area of ​​climate control, it could do the same in the area of ​​abortion rights.

This is just part of the federal litigation movement, in which pro-choice advocates will attempt to restore federal abortion protections.

At the state level, pro-life and pro-choice groups will shift focus. Pro-life attorneys general, who have spent 50 years on the offensive, must now play defense to keep the ground they won from Dobbs.

On the pro-choice side, some still seek Biden’s “Hail Mary” approach to federalized abortion. This week, the House passed the Women’s Health Protection Act of 2022 to codify the decision, but the Senate doesn’t seem likely to pass the law – and, if it did, it would be challenged at the light of Dobbs, referring the matter to the States. (The House also passed the Abortion Access Guarantee Act to protect a patient’s right to travel for legal abortions, a right already protected by the Constitution and not endangered by the Dobbs decision.)

If violated, pro-choice advocates may find themselves continuing the earlier pro-life strategy of cutting corners on these laws.

One thing is clear: in announcing his “aggressive” measures, Secretary Becerra insisted that the country “can no longer trust” the Supreme Court. Yet, in this first round of major litigation, that is precisely where we seem to be heading.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

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