Leaving Abortion to the States Requires Federal Action


Published April 23, 2024

Wall Street Journal

Leave it to the states. That’s Donald Trump’s new position on abortion. “My view,” he said in an April 8 statement, “is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both. And whatever they decide must be the law of the land—in this case, the law of the state.”

Some pro-life leaders criticized the statement. But setting aside the debate over federal pro-life laws, it’s important to note that Mr. Trump’s “law of the state” position still requires presidential action. That’s because President Biden is using the executive branch unilaterally and unlawfully to impose his radical pro-abortion agenda on the American people, undermining pro-life states’ ability to set their own abortion policies. As a federal judge wrote last year, the Biden administration has “openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates,” which amounts to “a breach of constitutional constraints.”

A month after the Dobbs decision, the Health and Human Services Department warned hospitals that the federal Emergency Medical Treatment and Labor Act, or Emtala—which requires them to stabilize pregnant mothers and their unborn children—could require physicians to perform and complete abortions. The following month the Justice Department sued Idaho, claiming Emtala pre-empted the state’s pro-life law. Under this theory, many state abortion restrictions would be unenforceable. (On Wednesday the Supreme Court will hear oral arguments in Moyle v. U.S., in which Idaho seeks to stay an injunction against the law’s enforcement.)

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Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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