Is Biden's Guidance on Abortions an Effort to Galvanize Dems’ Base & Take on SCOTUS?

Texas sued the US government on July 14 after the Biden administration instructed hospitals across the country on Monday to provide abortions if the procedure is necessary to save a mother’s life under the Emergency Medical Treatment and Labor Act regardless of state laws. The row erupted after the Supreme Court overturned the Roe abortion ruling.

"Everyone in the US lives under overlapping state and federal legal systems," says David Levine, professor of law at the University of California Hastings College of Law. "Most of the time it is clear which rules have to be followed in a particular situation, but sometimes it is necessary for a court to declare what to do when legal rules appear to overlap. The Emergency Medical Treatment and Labor Act (EMTALA) was passed by Congress in 1986. It requires hospitals participating in Medicare (nearly every hospital in the US) to provide emergency care to anyone. The Biden Administration is reminding these hospitals of their obligation to provide 'emergency' care, including abortions when required."

On July 8, President Joe Biden issued an executive order on Protecting Access to Reproductive Healthcare Services in an effort to shield abortions following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning the landmark 1973 Roe v. Wade ruling which stipulated that access to abortion is a constitutional right.

The Democratic Party blasted the overturning of Roe v. Wade as nothing short of an attack on women's rights. Last year, House Speaker Nancy Pelosi and her party fellows tried to "codify" Roe v. Wade into law, but to no avail.

On July 11, the Department of Health and Human Services sent a letter to healthcare providers stating that if abortion is a necessary treatment to stabilize the patient, it must be done under EMTALA. The Biden administration also issued guidance to the nation’s retail pharmacies, warning them to stop denying patients medications for abortion, birth control, or other drugs that could be used to end a pregnancy. The Democratic majority in the House of Representatives passed two bills on July 15 aimed at safeguarding abortion access.

"The federal government gives hospitals and states money on the condition they obey certain guidelines," says Professor Mark Graber, a scholar of constitutional law at the University of Maryland Francis King Carey School of Law. "The federal government has the right to determine those guidelines. The law says you cannot turn away a patient with a life-threatening condition. The federal government gets to determine what constitutes a life-threatening condition."

However, Texas Attorney General Ken Paxton argues in the state's lawsuit that the guidance of the Biden administration is unlawful, since EMTALA does not cover abortions. According to Paxton, the federal government is seeking "to transform every emergency room in the country into a walk-in abortion clinic."

Earlier, Texas passed the "Heartbeat Act" that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The president's recent guidance clearly contradicts the Texas state law. In its lawsuit, Texas insists the new guidance “forces hospitals and doctors to commit crimes and risk their licensure under Texas law,” and the state will likely not be the last to sue over the new guidance.

"What the administration has done strikes me as a purely political response to the Dobbs case, and a means for the Biden administration (which is falling dramatically in the polls and which has done dismally in its economic policy) to rally its base for the coming midterms," argues Stephen B. Presser, leading American legal historian and professor of law at Northwestern University.

Presser points out that the Democrat voter base is, in general, committed to the availability of abortion. According to him, "this new guidance appears to be a way to assure Democrats that the Biden administration will do what it can to minimize the effect of the Dobbs case."

Federal Interference in State Laws

The spat between Texas and like-minded Republican strongholds on the one side and the Biden administration on the other may translate into a precedent for the federal government to interfere in a state's legislation, according to the legal observers.

"If the case goes beyond the federal district court to the Fifth Circuit and/or the Supreme Court, then it could become a precedent in helping to explain where existing federal law can still play a role after Dobbs," says Levine. "But the overall concept of overlapping state and federal law in our federal system of government is nothing new. The Supremacy Clause in the US Constitution says that if there is a conflict between state and federal law, federal law prevails. But the courts are needed to determine if there is truly a conflict in any given situation."

Furthermore, the federal government can insist that if you take federal money, you must follow federal rules, echoes Graber. The SCOTUS' Dobbs ruling says states may choose not to allow abortions, but similarly states can choose not to take federal funds, argues the professor.

"The court might argue that this is coercing states by a funding requirement they did not anticipate," he notes. "But it seems all the Biden administration is doing is defining an emergency."

Still, Presser suggests that there is more to the case than meets the eye:

"[O]ne would think that this could be a precedent for undercutting state legislation, and the guidance is obviously intended to do just that," the academic says. "What is at stake here is the important Constitutional principle of 'Federalism,' expressed in the 10th Amendment to the Constitution, which reserves to the states and their people the powers not explicitly granted to the federal government."

According to Presser, there will be myriad challenges to the new guidance, which is likely to exacerbate divisions over abortion and contribute to undermining the rule of law. Furthermore, the Biden health guidance appears to be "a frontal attack on the Supreme Court," the academic highlights. The Democratic leadership has repeatedly criticized the SCOTUS' conservative majority and even considered "packing" the court with more liberal justices.

"These things can't easily be quantified, of course, but there will surely be further polarization, and this looks like the action of a reckless administration, which is likely to go down in the history books as one of our nation's worst," Presser concludes.