White House Consults with Law Professors in Anticipation of Dobbs Ruling (Updated)
The Biden Administration is reportedly considering a range of executive actions to safeguard abortion rights if, as anticipated, the Supreme Court overturns Roe v. Wade in the Dobbs case this term. The New York Times reports that the White House has been consulting with various legal academics on various steps the Administration could take. The White House also disclosed that Vice President Kamala Harris met with a group of constitutional law professors on Tuesday.
From the NYT:
Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications pre-empt any state bans, the officials said. . . .
No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.
Most of these strategies would require particularly aggressive assertions of executive power. As noted, one idea is to declare that FDA regulations would preempt state laws limiting access to abortifacient drugs. When the Bush Administration took a similar view of FDA authority (albeit to constrain tort litigation, not state regulations), many progressives and libertarians objected on the grounds only Congress may preempt state laws. Now the shoe could be on the other foot.
Laurence Tribe, a Harvard Law School professor wh
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