As the president and CEO of Americans United for Life, Catherine Glenn Foster told CNA that the strategy pointed to a larger problem and echoed Bradley’s concern.
“This conversation around what President Biden may or may not do to promote abortion highlights the problem with the U.S. Supreme Court potentially making abortion a so-called state issue when it finally reverses Roe,” she said. “Human rights don’t get put to a vote. We need the Supreme Court to state the obvious fact that the Constitution is incompatible with abortion, and that justice requires clearly abolishing abortion across our nation.”
Located in a state that restricts abortion, Jonathan Saenz, president and attorney for Texas Values, said that 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 the detection of a fetal heartbeat, which typically occurs around six weeks into pregnancy. In December, the Supreme Court ruled that abortion providers could continue their legal challenge against the act, but that the abortion law would remain in effect in the meantime.
“Desperate and last minute efforts by the Biden Administration to collude with abortions clinics to evade the law and take the life of babies will not change state law or the enforcement of the Texas Heartbeat law,” he told CNA.
Background
Cohen floated the federal land idea last year in pieces for the Atlantic and for the New York Times that he wrote with Greer Donley, an assistant professor at the University of Pittsburgh Law School, and Rachel Rebouché, the interim dean and a professor of law at Temple University’s Beasley School of Law.
Together, they asked in the Atlantic, “could the federal government take the bold action of leasing property to or establishing 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, and “What about the federal government, as one commentator suggested, hiring abortion providers so that they are federal employees and thus immune from state lawsuits under statutes like S.B. 8?”
The three shared their legal reasoning in the New York Times.
“Only a small set of state civil laws apply on federal land, and a civil abortion law like Texas’ S.B. 8 clearly does not fall within this group,” they claimed. As for the application of state criminal law, where “things are a bit more complicated,” they said that it should not apply if the federal government has weighed in on the issue.
“For this, the Biden administration could point to the F.D.A. regulation of abortion medication, as well as the various federal laws that regulate abortion, as evidence that state criminal laws are inapplicable on federal land,” they added.
Other avenues for executive power
Given the limitations of Congress, legal experts suggested to The 19th other executive strategies to protect abortion, from relying on the Food and Drug Administration to expand abortion-drug access to having the Department of Health and Human Services encourage states work around the Hyde Amendment — which generally prohibits federal Medicaid funds from going toward abortion — by using their own respective Medicaid funds.
Like The 19th, the New York Times and the Atlantic pieces listed additional options for Biden to explore, with focus on the FDA. In December, the FDA lifted restrictions on mifepristone, a drug approved for use in medical abortions. The decision authorizes doctors to prescribe the drugs online and mail the pills, allowing women to perform early abortions — up to ten weeks of gestation — without leaving their homes.
“Imagine if the FDA went further, and not only removed its own restrictions that limit the medication’s use but also prohibited states from imposing their own restrictions,” the three legal experts wrote in the Atlantic. “Would that federal regulation preempt and therefore invalidate state restrictions on medical abortion?”
The White House did not comment by time of publication. Professor Cohen declined to comment.
Former Washington, D. C., correspondent Katie Yoder covered pro-life issues, the U.S. Catholic bishops, public policy, and Congress for Catholic News Agency. She previously worked for Townhall.com, National Review, and the Media Research Center.