In 1973, the Supreme Court created a right to abortion in Roe v. Wade.
On its face, all the court’s 2022 Dobbs decision does is rescind that right. What the court giveth, it taketh away. Which leaves abortion to federal and state legislation.
If you follow this string all the way back to the huge ball of string (photo, right) I’m using here to symbolize the tangled interplay of federal and state laws, the normal rules of statutory interpretation (federal preemption, etc.) should apply.
Those rules are complicated, and results vary. Sometimes federal law overrides state laws, other times they operate in parallel, and still other times federal courts apply state laws in federal lawsuits.
This, needless to say, is fertile ground for mischief. However, the rules governing which law controls were worked out long ago. So it’s a question of whether those rules are followed.
Courts, including the Supreme Court, adhering to the rule of law will follow those rules. So the question becomes, is the Supreme Court still a court of law, or is it now another political branch, competing with the other two political branches for supremacy? (See articles here and here.) We may soon find out.
Since 1986 there’s been a federal law concerning emergency medical care. On Monday, July 11, 2022, the Biden administration said it “preempts state abortion bans when emergency care is needed,” and, “the federal government can penalize … providers that fail to provide abortions as needed to treat medical emergencies.” (See story here.)
In short, he insists medically necessary abortions are still legal in all 50 states, no matter what state laws say. And not only that, but hospitals and doctors who refuse to provide them will face hefty fines.
This obviously puts hospitals and doctors in a bind where states have banned abortions. They’re caught between a rock (federal regulators) and a hard place (state prosecutors). It’s kind of like your house being located between the German and French armies in August 1914. Most people would wish they were somewhere else.
Speaking for federal regulators, HHS Secretary Xavier Becerra said, “Under the law, no matter where you live, women have the right to emergency care — including abortion care, [and] in no uncertain terms, we … expect providers to continue offering these services, and … federal law preempts state abortion bans when needed for emergency care.” In addition, Attorney General Garland “issued a statement saying states cannot ban mifepristone, a medication used to end early pregnancy that has FDA approval.”
The Republicans who enacted NO EXCEPTIONS state abortion bans, including abortion pills, won’t like this. If they were willing to make reasonable exceptions, they would have made them.
What happens if a doctor in one of those states who complies with the federal law to avoid being fined is arrested and prosecuted by the state? Does Biden send the 82nd Airborne Division to bust him out of the county jail?
Normally, an issue like this is thrashed out in the courts, and the Supreme Court would have the last word. But what if the current crop of justices don’t follow the rules? And the administration says, we’ve had enough, and tells them to suck eggs? And red-state governors begin activating their National Guard units?
What then? Forget the constitutional crisis. If I’m a doctor practicing in Texas or Florida, I’m not going to stick around to find out. I’ll pack up my medical license and stethoscope right now, and move to a state where I’m not a pawn in a civil war.
Related story: High school counselors report co-eds are shunning colleges located in states that ban abortions (see story here).
Video below: Billionaire investor Ray Dalio talks about states refusing to follow court orders and populations relocating over values as possible preludes to a civil war.