Lisa: This week, president Biden
confronted two realities about
abortion in America and
protecting access to it.
First, a political reality --
meeting with governors Friday,
the president admitt he lacks
the votes right now from within
his own party to reform the
filibuster and legalize abortion
nationally.
Pres. Biden: Congress is going
to have to act to codify roe
into federal law.
There's a lot at stake here.
In the meantime, I want to hear
what the governors are doing,
talk about my plans, and discuss
what we can do until congress
acts.
This is not over.
It's not over.
Lisa: But, the president also
faces a legal reality --
whatever action he takes, he is
limited by the letter of the
law.
To walk us through those legal
limits on the president, as many
watch what actions he may take,
we turn to Leah Litman.
She's an assistant professor of
law at the university of
Michigan, and hosts the podcast,
"Strict scrutiny."
Leah, let's start with
medication abortion used to end
early pregnancy that has been
the method of abortion used in
the majority of cases in recent
years.
The president has vowed that the
federal government will take
action if any state tries to
block abortion pills.
But what exactly can he and the
federal government do?
Leah: So what the federal
government has the authority to
do is adopt and enact federal
regulations that permit the use
of drugs for certain purposes.
And they also have the authority
to preempt state laws that stand
as an obstacle to the
accomplishment of the federal
regulation's objectives.
So, here, if a state tried to
ban the drugs used for
medication abortion, the food
and drug administration could
argue that the state law is
standing as an obstacle to the
accomplishment, and in conflict
with the federal regulation.
Lisa: Part of this, too, is that
some Democrats are calling for
the president to declare a
national emergency, national
health emergency.
Can you talk about how that
plays in?
This is a president that the
courts didn't even agree with on
a mask mandate.
Where do we think the courts
might side on this kind of idea?
Leah: Well, I think that's a
very real concern.
The reality is that this is a
supreme court, in particular,
that is very skeptical of
administrative agencies and the
executive branch's authority to
adopt regulations on important
policy questions that decide
important matters.
And, I think there is real
concern that the supreme court
would not allow the current food
and drug administration to say
states can't restrict the uses
of mifepristone, one of the
drugs used for medication
abortion.
That is, they might say that
question whether medication
abortion should be permitted is
a major question that has to be
decided by congress, rather than
by an administrative agency.
Alternatively, they might say
that all states are doing is
restricting certain uses of
mifepristone, rather than
banning it entirely, and
therefore, the state
restrictions don't completely
undermine the fda's regulations.
Lisa: Would declaring a national
health emergency affect that,
either way in the courts?
Leah: It's not clear, given that
it's not clear whether a
declaration of a national health
emergency would give the
president any additional powers
to block or preempt state laws
that are undermining federal
regulations.
The supreme court has been very
clear that there needs to be
clear and explicit statutory
authorization in order for an
agency and the executive branch
to decide a major question, and
the reality is that this court
probably believes that the
lawfulness of abortions,
including medication abortion,
is such a major question.
Lisa: You know, the federal
government is a very large land
owner, one of the largest
landowners, especially west of
the Mississippi.
Can you talk about whether the
idea of allowing abortion
clinics on federal land is that
viable at all?
Leah: So, that's something that
the president could do, but it's
not at all clear that that would
actually ensure access to safe
and legal abortion, because it's
not clear if that would insulate
abortion providers from criminal
liability.
There's a federal statute called
the assimilative crimes act that
actually incorporates the law of
every state onto where the
federal property and federal
land is located.
So, what that would mean is, in
a state that prohibits abortions
and imposes criminal penalties
on abortion providers, doctors
who perform abortions on federal
lands would still technically
face federal criminal liability
under that federal law.
Now obviously, the Biden
administration wouldn't have any
plans to prosecute individuals
for performing abortions on
federal lands, but there is a
five year statute of limitations
that gives the federal
government five years to bring
charges.
So, if and when another
Republican administration were
elected, a Republican president
might choose to bring criminal
charges under the assimilative
crimes act against doctors who
perform abortions on federal
lands.
Lisa: Going to ask you a big
picture question -- roe V. Wade,
that precedent stood for 50
years.
Looking at the courts and
president Biden's potential to
influence the federal courts,
how long do you think this
precedent could stand?
Leah: I don't think that
president Biden is exactly in a
position now, absent major
reforms to the supreme court, in
particular, and the federal
courts more broadly, to change
this particular case.
I think, if the democratic party
continues along with the Biden
administration's
institutionalist approach to the
federal courts, this case, and
this area of law, isn't likely
to change for a pretty long
period of time.
Lisa: Leah Litman.