RUTHFULLY YOURS

If the Supreme Court, as expected, overturns Roe v. Wade later this month, the battle over abortion should return to the states. With Roe’s federal court-imposed national “solution” finally revealed as a fraud and a failure, each state will be free to ban abortion, to enshrine a right to abortion, or to find some middle ground between those two options. Some states already have pro-life or pro-choice amendments in their state constitutions, and some will have them on the ballot this year (or in 2023 or 2024). Others may choose a path on the issue legislatively, or have those choices made for them by state courts.

Or, that’s how it should be, anyway: Senate Democrats and the Biden administration are now openly plotting to undermine those democratic choices if and when the Court overturns Roe.

If the federal government abides by current law, it will have little say in the regulation of abortion in the states. Congress has not passed any law banning or protecting abortion nationwide outside of the Partial-Birth Abortion Ban Act of 2003 (which was upheld by the Supreme Court in 2007). Neither party has anywhere near the votes right now to pass further federal abortion laws. So, even aside from its desirability in the abstract, federal regulation one way or the other should be off the table unless and until there is a congressional majority sufficiently large enough to pass it, and a president willing to sign it.

Existing federally funded programs should likewise play only a minor role in what abortion laws states can enforce. The Hyde amendment bars federal funding of abortions in most federal programs, a prohibition that is incorporated by statute in some of those programs; states wishing to fund abortions have to do so with their own money. The Hyde amendment does not completely prohibit the federal government from funding or performing abortions, but the exceptions are limited in scope: The federal government currently provides abortions to military personnel and federal employees, prisoners, immigrant detainees, and members of a few other categories of people more or less in federal custody or on the federal payroll. Again, changing any of this ought properly to be done through Congress, whether by legislation or appropriations. Simply giving health-insurance coverage to federal employees does not override laws against using that coverage for abortions in states where abortions are illegal.

Pro-choice states, of course, are currently free to make themselves havens for those seeking abortions. But pro-life states are also free to govern their own residents without the interference of other states. That’s federalism. Pro-lifers should not be precluded from pursuing a more expansive national agenda through the proper congressional channels (more on that another day), but a decent respect for our system of government ought to begin with the states’ working out their own abortion policies, rather than using outside forces — the federal executive, other states, pressure from the business community, mobs, violence — to impose their preferred policies on the nation at large.

This is not how Democrats see things, however. Many are already planning a campaign of massive resistance to prevent any state from becoming a pro-life state, regardless of what its voters may choose. The Biden administration is even openly considering a number of unilateral executive actions to that end.

As with many bad progressive ideas, this emerged out of the fever swamps of the left-wing commentariat: Elie Mystal of the Nation has been pounding this drum for a while, even to the point of arguing that “abortion providers [could be] made federal officials—call them ‘privacy protectors’—who were deemed to be operating under the authority of the [federal] government” and immune to state law. Mystal also calls for Biden to use his war powers against pro-life states: “If the president orders the military to protect, on their bases, abortion providers giving out services for free, or to provide safe passage to women seeking abortions in other states, there is nothing congressional funders could do to stop him.” He also proposes simply ignoring the Hyde amendment.

The Garland Justice Department, which is nothing if not willing to run half-baked left-wing social-policy ideas up the flagpole, fired the first shot in this campaign with its ill-considered lawsuit against Texas. That suit claimed that federal funding for abortions gave DOJ standing to sue to stop the entirety of Texas’s so-called heartbeat law. It received the back of the hand from the Supreme Court.

Now, 25 Democratic senators have signed a letter calling on Biden to use executive orders to deploy a “a national plan to defend Americans’ fundamental reproductive rights, including their right to an abortion”:

As President of the United States, you have the unique power to marshal the resources of the entire federal government to respond. You have already mobilized the full weight of the federal government on behalf of several key Administration priorities. . . . Now is the time for equally bold action to protect the right to an abortion. . . . The entirety of the federal government must be engaged in the Administration’s efforts and must act as swiftly as possible.

A press release from the office of New Hampshire senator Maggie Hassan calls this a demand to use “the full force of the federal government.” Notably, the letter’s reference to the “entirety of the federal government” does not seem to contemplate asking the consent of the legislative branch — the branch to which these senators were elected by the people of their states — to such a nationalized lawmaking effort. Hassan is one of eight signatories facing reelection this fall, but the other seven are from significantly bluer states: Tammy Duckworth of Illinois, Patty Murray of Washington, Ron Wyden of Oregon, Richard Blumenthal of Connecticut, Chris Van Hollen of Maryland, Alex Padilla of California, and Brian Schatz of Hawaii.

Some of their proposals:

Federal agencies could explore opportunities to provide vouchers for travel, child care services, and other forms of support for individuals seeking to access abortion care that is unavailable in their home state. . . .

HHS could explore more aggressively enforcing federal requirements that guarantee Medicaid beneficiaries have the ability to seek family planning services from their provider of choice. . . .

The Department of Justice and all relevant agencies could analyze the types of reproductive health services that could be provided on federal property, especially in states where such services are limited by state law or regulation. . . .

The Office of Personnel Management could explore requirements that all federal employees are provided paid time off and reimbursement for expenses necessary to access abortion.

Charlie Savage of the New York Times reports that executive action is getting serious consideration from this White House:

President Biden’s top aides are weighing whether he can or should take a series of executive actions to help women in Republican-controlled states obtain abortions if the Supreme Court eliminates a woman’s right to end her pregnancy, according to senior administration officials.

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. . . .

One [proposal] calls for Mr. Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply.

Doctors might still face challenges to their state medical licenses. And while the Justice Department under Mr. Biden could decline to pursue charges as a policy matter, control of the department could flip in the 2024 presidential election, and federal prosecutors could then charge people with crimes, like abortion, that happened in the Biden era.

Several other proposals for executive actions raise questions about the scope of the Hyde Amendment, a law that generally prohibits paying for abortions with federal taxpayer funds. The Biden administration is said to have asked the Justice Department’s Office of Legal Counsel whether the law also bars using those funds for expenses related to abortion, like travel.

Biden himself told Jimmy Kimmel last week that: “There’s some executive orders I could employ, we believe. We’re looking at that right now.” Savage notes, in language that shows how progressive media cover disregard for the rule of law when it is undertaken in the service of progressive goals, “In the past, Mr. Biden has adopted a position that his legal team warned him was unlikely to stand up in court, betting that the political benefits of his executive actions outweighed the legal risks.” In blunter terms, that’s called violating his oath of office. Even Laurence Tribe, of all people, told the Times that “some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power.”

Leave aside the legality, and leave aside the political imprudence of using executive action, as if things done by fiat by a president with a 39 percent approval rating cannot simply be undone the same way by his successor. The thought of the president’s thumbing his nose at the Supreme Court and Congress and simply overriding self-government in the states in order to turn Army bases into abortion clinics and spend taxpayer money chauffeuring customers to blue-state abortion clinics ought to appall any American who thinks the president is not a king.

Today is a fitting day to begin this debate; 164 years ago this day, on June 16, 1858, the Illinois Republican Party met to nominate its candidate for the U.S. Senate. The nominee, Abraham Lincoln, gave a famous speech that declared, “A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.”

Lincoln’s speech is sometimes misunderstood as a warning against division, but it was actually the opposite: a warning against federal overreach that would trample the rights of the free states to ban slavery. His argument was that Democrats’ step by step expansion of slavery in the 1850s was meant for only one purpose: stripping the free states of their power to restrict slavery, in service of the “perverted” view “that if any one man, choose to enslave another, no third man shall be allowed to object.” That “choice” would, Lincoln warned, soon be so protected by the Democrats running the government that no state would be permitted to stand against slavery. As Lincoln’s audience knew, the crisis of the 1850s had begun with a new Fugitive Slave Act that empowered federal authorities to enforce slavery in the free states by apprehending runaway slaves even without the cooperation of state governments that passed “personal liberty laws.” At the time, this was a bipartisan compromise, and what followed was “a policy . . . initiated, with the avowed object, and confident promise, of putting an end to slavery agitation,” but which had resulted in the opposite.

Lincoln then traced how the Democrats’ campaign had advanced under the cover of contradictory arguments, first removing federal restrictions on slavery in the territories in the name of local self-determination, then declaring (through the Supreme Court in the Dred Scott case) a supposed constitutional right to choose to carry slaves anywhere in the territories regardless of what the people of those territories voted for:

The logical conclusion [is] that what Dred Scott’s master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State. . . . Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome, or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.

All of this would be done by the federal government, depriving the free states of any say in the matter. Like the Slave Power of the 1850s, today’s abortionists cannot rest if any place in the nation closes itself off to their “choice.” As happened to Franklin Pierce and James Buchanan, Joe Biden is being pushed into an extreme position by fire-breathing Democrats, and everything we have seen of Biden suggests that he will be just as morally malleable as were Pierce and Buchanan.