As conservatives debate Trump’s recent abortion comments, the Biden administration has made clear that it views abortion as a national priority.
As conservatives debate Trump’s recent abortion comments, the Biden administration has made clear that it views abortion as a national priority.
W hen former president Donald Trump recently offered his position statement on protecting the sanctity of human life, the Left predictably attacked him as radical and extreme for expressing any inclination to do so. The reaction on the right, however, was split.
Some pro-life advocates voiced disappointment and even outrage that he did not express support for a federal law protecting life in all 50 states. Others took his endorsement of states as the appropriate policy-makers on the subject to be an acknowledgment of the political reality that there is no will on the part of conservatives in Washington to attempt to set a national standard. The sanctity of life is a fundamental human right and should be protected as such.
While pro-life conservatives continue to debate among themselves whether state legislatures, Congress, or the U.S. Supreme Court is the best venue to protect the most innocent and vulnerable people in our country, the Biden administration is forging ahead with its agenda of imposing a top-down national abortion policy by executive-branch fiat.
In 2021, the U.S. Food and Drug Administration (FDA) — having already removed many of the safety standards it once imposed on the chemical-abortion drug mifepristone — removed the requirement of an in-person doctor’s visit for its procurement. In so doing, the FDA put in place a mail-order-abortion regime that has left women to perform their own chemical abortions at home, alone, without ever having visited a doctor for necessary in-person exams. Without even one in-person visit to check for ectopic pregnancies and confirm the gestational age of the unborn baby, the FDA endangered women’s health and safety while acknowledging that emergency-room doctors, not the abortion-drug prescribers, would be forced to deal with the consequences.
After the Supreme Court successfully busted the myth that the U.S. Constitution contained a right to abortion that prevented state or federal lawmakers from enacting measures to protect life, many states, including Idaho, had pro-life laws set to go into effect. But in August 2022, before Idaho’s law could go into effect, the Biden administration sued the state, claiming the ability to use the federal Emergency Medical Treatment and Active Labor Act to preempt Idaho’s Defense of Life Act in the emergency room. Idaho’s law protects the lives of women and the unborn by prohibiting abortion except when necessary to save the life of the mother. EMTALA and Idaho’s law are consistent and share the same goal. The Biden administration’s Herculean feat of semantic contortionism draws an abortion mandate from a federal law that doesn’t mention the word “abortion” but instead mentions protections for “the unborn child” in four separate places.
Both the FDA’s reckless mail-order-abortion regime and the uber-imaginative manipulation of EMTALA have made their way to the U.S. Supreme Court. During oral argument in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, the justices spent considerable time on the question of whether pro-women doctors and medical associations had standing to challenge the FDA’s regulatory malfeasance. In one astonishing exchange, U.S. Solicitor General Elizabeth Prelogar admitted that she couldn’t envision a scenario in which any American individual or organization would have the required legal standing to challenge the FDA’s removal of long-standing safeguards on women’s use of abortion drugs.
On April 24, the State of Idaho will argue in defense of its law at the U.S. Supreme Court. Twenty-two states, 121 members of Congress, and a broad coalition of policy and advocacy groups have filed amicus briefs in support of Idaho.
If the Biden administration’s abuse of EMTALA is allowed to stand, it will invalidate the laws of at least 20 states. The Supreme Court was clear that the people and their elective representatives should be free to protect life, and the administration is trying to override that right. If unelected officials at the FDA can violate the Administrative Procedure Act, undermine state laws that protect women from the FDA’s reckless actions, and avoid any legal challenge to their actions, Americans are without recourse against an agency of our government.
Either of these actions, taken alone, would pose a serious threat to our republican constitutional order of public policy-making. Taken together, the combined impact is much worse. The administration’s assault on federalism, the Constitution’s separation of powers, and the plain meaning of the English language in pursuit of a nationwide abortion-on-demand policy would empower this president and future presidents to impose other policies upon the nation with impunity.
The U.S. Supreme Court would be wise to turn the executive branch back from this Rubicon. If not, then we are ruled by men, not by law.