Biden encounters obstacles as he searches for options to protect abortion access

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• Lisa Desjardins:

  This week, President Biden confronted two realities about abortion in America and his pledge to protect access to it. First, a political reality, meeting with governors, Friday, the President admitted he lacks the votes right now from within his own party to reform the filibuster and legalize abortion nationally.

  Joe Biden, (D) U.S. President: Congress is going to have to act to codify the Roe under federal law. And there's a lot of stake here. In the meantime, I want to hear what the governors are doing, talk about my plans and discuss what we can do as everyone until Congress acts. This is not over. It's not over.

• Lisa Desjardins:

  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 and 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 Litman, University of Michigan: 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 regulations, 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 Desjardins:

  Part of this, too, is that some Democrats are calling for the President to declare a national emergency, a national health emergency. Can you talk about how that plays in and this is a President that the courts didn't even agree with a mask mandate? Where do we think the courts might side on this kind of idea?

• Leah Litman:

  Well, I think that's a very real concern. The reality is that the 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 Desjardins:

  Would declare in a national health emergency effect that either way in the courts?

• Leah Litman:

  It's not clear given that it's not clear whether a declaration of the 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 Desjardins:

  Yeah, 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 not viable at all?

• Leah Litman:

  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 on to 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 Desjardins:

  I want to ask 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 Litman:

  I don't think that President Biden is exactly in a position now absent major reforms to the Supreme Court, in particular in 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 Desjardins:

  Leah Litman, thank you so much for joining us. We appreciate it.

• Leah Litman:

  Thank you.