Published December 15, 2022
Earlier this year, in the landmark case Dobbs v. Jackson Women’s Health Organization, the Supreme Court finally overruled Roe v. Wade. Nearly fifty years after Roe, five Justices had the moral courage, despite harassment, death threats, and even an assassination attempt, to correct Roe’s grievous error. Writing for the majority, Justice Samuel Alito stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the rule of law demand.”
At long last, after tireless work by the pro-life movement, Roe and Planned Parenthood v. Casey are overruled. Dobbs corrected the perversion of law created by Roe and perpetuated in Casey and its progeny. But the fight to protect life and uphold the rule of law is far from over. The Biden Administration is using nearly every lever of the administrative state to use the power and purse of the federal government to promote and provide abortions.
The Biden Administration’s Post-Dobbs Response Creates a New Perversion of Law
While the Supreme Court rid itself of the stain of Roe, the Biden Administration has doubled downed on its support for killing innocent and vulnerable children in the womb—all in the name of “equality” and “health care.”
In President Biden’s response to Dobbs, he claimed that abortion “is essential to justice, equality, and our health, safety, and progress as a Nation.” This dangerous distortion of the nature of abortion turns the Declaration of Independence’s promise of the right to life on its head.
Rather than leaving the issue of abortion to “the people’s elected representatives,” the Biden Administration has demonstrated a zealous commitment to its radical pro-abortion agenda via presidential and executive fiat. In doing so, it is creating a new perversion of law.
Until recently, there was bipartisan agreement that federal taxpayer dollars should not pay for abortion (with a few narrow exceptions). This agreement has been reflected for decades by Congress in various statutes and budget appropriation provisions, including the so-called Hyde Amendment. Breaking with the longstanding position and in violation of Congressional direction, the Biden Administration is using the federal government to facilitate and provide abortions—all through the taxpayers’ dollars.
In the weeks following the Dobbs decision, there were many pro-abortion executive orders issued by President Biden and statements of abortion priorities issued by federal agency officials (which I document in depth here). These public statements probably were designed more to appease the Democratic Party’s pro-abortion base than to be decisive action steps. But in the subsequent months, the Biden administration acted repeatedly and unlawfully to further abortion access.
Both pre- and post-Dobbs, abortion advocates floated obscure and creative legal theories detailing how the federal government could promote abortion access (especially via abortion-inducing drugs), preempt state abortion laws, and use federal land to provide abortions. While the Biden Administration has yet to adopt the most extreme proposals, it has explored how each and every federal agency can advance its pro-abortion policy, regardless of any existing statutory restrictions.
For example, in September 2022, the Department of Veterans Affairs (VA) issued an interim final rule to provide taxpayer funded abortions for pregnant veterans and qualifying beneficiaries, claiming that Dobbs created “serious threats” and “urgent risks to the lives and health” of women.Never mind that no state prohibits an abortion if it is necessary to preserve a woman’s life. Indeed, the VA failed to identify a single woman who faced a “serious threat” or “urgent risk” in the intervening months since the Dobbs opinion, undercutting its own rationale for immediate action.
The VA’s rule blatantly violates a federal law that prohibits the VA from providing abortions. Nevertheless, the VA claims that the law was “effectively” and silently “overt[aken]” by a later VA health care act. This interpretation was conveniently rubberstamped by the Department of Justice’s (DOJ) Office for Legal Counsel (OLC). But OLC cannot override the will of Congress carte blanche.
OLC, once a respected entity for its non-partisan legal analysis, has devolved under President Biden and Attorney General Merrick Garland to providing fig leaf cover for unlawful actions by the Administration. (Recall, in 2016, Garland was nominated to the Supreme Court by President Barack Obama and, if confirmed, could have provided a decisive fifth vote for abortion in the Dobbs case!)
The VA claims that its rule—which bypassed the normal public input process to go into immediate effect based on “good cause”—preempts any conflicting state abortion laws. This claim would effectively allow the VA to provide, and require taxpayers to fund, abortion on demand until birth, even in pro-life states. Dobbs did not create an emergency, much less permit the Biden Administration to ignore the rulemaking process or the need to pass authorizing legislation. Fifteen state attorneys general have called out the Biden Administration’s “lawless and hasty abortion rule,” vowing to uphold and defend their state laws protecting life.
The Biden Administration has asserted other novel claims regarding federal law preempting state abortion laws. For instance, after the Department of Health and Human Services (HHS) , under Secretary Xavier Becerra, issued several documents that declared that the Emergency Medical Treatment & Labor Act (EMTALA) could require a medical professional to perform an abortion, DOJ strategically sued the State of Idaho in federal district court under the theory that the state’s abortion law is preempted and invalid under EMTALA. This theory is particularly strange insofar as EMTALA explicitly protects a mother and “her unborn child” (a fact conveniently ignored by DOJ) and merely requires hospitals receiving federal funding to medically screen, stabilize, and appropriately transfer an individual with an “emergency medical condition.” While the Idaho district court judge accepted DOJ’s legal theory, a Texas district court judge ruled against the Biden Administration in a different lawsuit challenging HHS’s EMTALA guidance.
In another novel legal theory, conveniently discovered post-Dobbs, the Biden Administration asserts that it can use taxpayer dollars to fund abortion travel notwithstanding the Hyde Amendment—a longstanding appropriations provision that restricts federal health dollars from paying “for any abortion.” In a politically expedient and highly suspect opinion, OLC blessed the Biden Administration’s interpretation. As I and my colleague, Natalie Dodson, explain, “If the Hyde Amendment allows for abortion travel funding as the OLC opinion and the Biden administration suggests, it is surprising other pro-abortion rights Democratic administrations failed to recognize and capitalize on this giant loophole.”
Apart from funding abortion travel, DOJ is targeting, and attempting to intimidate and silence, pro-life protestors by bringing charges in federal court under the Freedom of Access to Clinic Entrances (FACE) Act. The FACE Act prohibits anyone from obstructing access to “reproductive health services” or churches through violence, threats of violence, or property damage, with “reproductive health services” defined as services “relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” This definition is broad enough to cover pro-life pregnancy centers. So far over twenty-five pro-lifers have been charged with FACE Act violations this year.
In stark contrast, since May 2022, when the Supreme Court’s draft Dobbs decision was leaked, well over 100 pro-life pregnancy centers and churches have been vandalized, firebombed, or graffitied with statements like “if abortions aren’t safe, neither are you.” It took until November for DOJ to even admit that these attacks “can be prosecuted.” No FACE Act charges have yet been brought against a pro-abortion advocate.
The Biden Administration’s blatant disregard for laws prohibiting both taxpayer funding and federal facilitation of abortion, coupled with the apparent selective enforcement by DOJ to target pro-life individuals, is a new perversion of the rule of law by the federal government. We are left to wonder what law won’t this Administration sacrifice on the altar of abortion?
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on 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.