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Marbury v. Biden

Will Joe Biden defy the Supreme Court?

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(Luca Perra/Shutterstock)

Joe Biden doesn't have the guts to do what liberals are suggesting he do, namely, refuse to abide by a Supreme Court ruling. It’s not clear it would matter anyway.

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. While typically done under professional supervision, since miscarriages can result in dangerous bleeding and can even be fatal to the mother, a single pill taken by a woman on her own will in most cases kill the baby without harming the mother. 

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According to many abortion advocates, this is what will replace the horrible "coat hanger" abortions of the pre-Roe days. And if America is good at anything, it is smuggling drugs across state lines. So certainly "abortion pills" will be readily available to many woman in non-abortion states, albeit illegally, the same way other drugs smuggled across borders are illegal.

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, for his part, is being pushed to refuse to respect a decision of the Supreme Court.

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. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.”

The PREP Act would shield doctors, pharmacies, and others from liability for providing abortion pills to people across the country. The same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such a law to expand presidential power, in contravention of a decision by the Supreme Court to the contrary, however, would be devastatingly controversial.

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If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions, and, more importantly, with the Supreme Court itself. The Court just ruled it was the states' right to make their abortion laws. Nixon resigned rather than follow or resist the Court's order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in various face-offs, in the end the Cassandras were wrong and the fights never happened.

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. Relevant, however, is that even though the case found Secretary of State James Madison acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial branches, and the doctrine stood. 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.

Should Biden try for option four, executive action, his quest will fail. Sitting in some Texas government outbox is no doubt a completed challenge to any such action, ready to file, meaning a lower court would almost immediately stay Biden's move as things got sorted out. 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. The use of PREP would also invite a legal challenge over the declaration of a public-health emergencies, and would, in the wake of Covid, undermine what's left of popular faith in public health.

Any action Biden takes will be for show. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution's unambiguous support for interstate commerce, the House recently passed legislation affirming the legality of interstate travel for abortion, and no state has any law on its books to the contrary. Ohioans are not arrested for gambling on their way home from Vegas.

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... It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state."

That a gesture like declaring a PREP emergency accomplishes nothing does not mean it will not be politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as a president who thumbed his nose at the nation's highest court—and all that for nothing gained. 

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