Marbury v. Biden
Will Joe Biden challenge the Supreme Court?
Joe Biden isn’t brave enough to refuse to follow a Supreme Court decision, as liberals suggest. The matter is not obvious.
The real biggest change since Roe is the availability of chemical abortions. Already, pre-Dobbs, over 50 percent of all abortions were performed chemically, with the mother taking one or two pharmaceuticals to induce a miscarriage. Miscarriages are usually performed under medical supervision. However, miscarriages may cause dangerous bleeding that can be fatal for the mother. A single pill taken on its own by a woman will most likely kill her baby.
According to many abortion advocates, this is what will replace the horrible “coat hanger” abortions of the pre-Roe days. America excels at smuggling drugs between states. Therefore, “abortion pills”, even if illegally, will likely be available to women in all non-abortion countries.
This means, then, in the crudest of terms, that it is unclear how many women will not have access to an abortion post-Dobbs. Biden is under pressure to reject a Supreme Court decision.
Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite the existence of state laws restricting such drugs. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public-health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.
Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. The letter stated that “While it’s impossible to instantly undo the damages inflicted on by the Supreme Court repealing Roe ,, the Biden-Harris Administration should use every tool within their power to fight back.” We urge you to declare a national emergency and public health crisis regarding access to reproduction care for Americans.
The PREP Act would protect doctors and pharmacies from legal liability when they provide abortion pills to citizens across the nation. This law has been used to protect Covid drug and treatment manufacturers from liability to ensure that vaccines are quickly deployed. It was supported by a large majority of the public. However, it would be extremely controversial to use such a law in order to increase presidential power against a Supreme Court decision to the contrary.
If Biden made such a decision it would place him in legal conflict immediately with states that regulate chemical abortions and more importantly with the Supreme Court. It was just that the Court ruled it was in each state’s right to decide their own abortion laws. Nixon chose to resign rather than comply with the Court’s orders during Watergate, when he was ordered to turn over evidence incriminating him. Many were concerned that Trump might refuse to comply with the Court’s orders in face-offs. However, the Cassandras proved wrong and no fights took place.
America circa 1789 did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Court history, was the first U.S. case to apply the principle of “judicial review”–the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in putting the Supreme Court on par with Congress and the executive.
The actual facts surrounding Marbury are irrelevant to the abortion discussion. The relevant point is that, even though James Madison was found to have acted in violation of the Constitution, the core matter between the executive branch and the judiciary were resolved and the doctrine remained. After Marbury, there are only three ways to push back against a Supreme Court decision: Congress can pass a new law (in this case, legalizing abortion at the national level), the Constitution itself can be amended, or the Court can overturn its own ruling, as it did with Dobbs.
If Biden tries to pursue option 4, executive action, he will be unsuccessful. Biden will be sitting in a Texas government box, with a complete challenge ready for any action. This would mean that a lower court could almost immediately stop Biden from moving until things are sorted. That is what happened to some of Trump’s early immigration legislation, the so-called “Muslim ban,” giving the false impression of early victory to progressives angrily hanging around airports.
The challenge to Biden would quickly find its way back to the Supreme Court, which would uphold its power. The same result is likely should Biden try some sort of clever end-around, such as placing abortion clinics on federal land. Preparing for abortion would not only invite legal challenges over declaring a public-health emergency, but it would also undermine public faith in public healthcare.
Any action Biden takes is for display. It is unlikely that anyone will be able to cross a state’s border in order to provide abortion services. The House passed legislation recently affirming interstate travel to abort, despite the fact that the Constitution supports interstate commerce. No state law has been changed. Ohioans cannot be arrested for playing in Vegas while on the way back.
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Criminalizing out-of-state activity, or restricting interstate travel, is effectively prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred.
Moreover, Bigelow v. Virginia dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… Under the pretense of internal police power, it may not prohibit a citizen from another state disseminating information regarding an activity that’s legal there. “
Just because a declaration of a PREP emergency does nothing, it doesn’t mean that Democrats will find this gesture attractive as they enter what looks to be an extremely difficult midterm election. Biden does not appear to be the type of person who would like to go down as the president who snubbed the highest court in the country–and for nothing.