The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Politico reports that the Biden Administration has potentially settled on an executive-action response to Dobbs:
White House officials plotting the administration's post-Roe response are weighing a narrow public health directive aimed at safeguarding nationwide access to abortion pills, three people familiar with the discussions told POLITICO.
The Biden team has zeroed in on that authority in recent days. They consider it the most feasible of the White House's limited options for protecting abortion rights, and have concluded that it could have the most immediate on-the-ground impact while also quelling Democrats' demands for stronger action. . . .
The proposal would rely on powers under the Public Readiness and Emergency Preparedness (PREP) Act reserved for public health emergencies to shield doctors, pharmacies and others from liability for providing abortion pills to people across the country — even those who live in states that have outlawed or severely restricted the procedure. . . .
Abortion pills can be used up to the (roughly) ten-week mark. According to the Guttmacher Institute, more than half of all American abortions were performed with pills.
Politico observes that some members of the administration are nervous:
Yet such a move still faces deep skepticism from senior aides who are unconvinced it would survive the inevitable legal challenges, and who worry conservative judges will seize on any opportunity to further limit President Joe Biden's executive power.
"It's the only one that's had a reasonably decent amount of support [internally]," one of the people familiar with the discussions said of a PREP Act declaration. "But there's no one that's gung ho."
Rightfully so! Who knew that Public Readiness and Emergency Preparedness Act of 2005 gave the President the power to establish a federal right to abortion at the ten-week mark.
This move is very risky.
First, the Court already signaled in the eviction moratorium litigation that it would not allow the President to leverage "emergency" powers to accomplish controversial domestic policy goals. While the pandemic may credibly be called an emergency--at least in its early stages--the aftermath of Dobbs would not meet that standard. Indeed, almost a month has elapsed since Dobbs. Every day that passes, the case for an emergency fades.
Second, since the eviction moratorium case, the Court decided West Virginia v. EPA. This case seems to be yet another major question that should be resolved by Congress, and not the executive branch unilaterally. Really, is there any question that is more major than abortion!? The Dobbs case has fractured the nation--far more than some mundane climate change regulations. Has Congress ever even hinted that it would regulate abortion in this fashion?
Third, this proposed order is a transparent effort to flout Dobbs. I suspect even the Chief Justice would blanche at this stratagem.
I suspect that career attorneys in the federal government are worried that this order would further weaken the executive branch's toolkit to manage actual emergencies. Will the Biden Administration be able to resist the temptation? Or will they look for "better" lawyers?