By Katie Yoder
As the Supreme Court considers a case that directly challenges Roe v. Wade’s 1973 ruling that legalized abortion nationwide, legal experts are exploring strategies to protect abortion access. One such option proposes placing abortion clinics on federal land within states that restrict or ban abortion.
The idea is that these clinics would fall under federal governance, rather than state law.
States could soon determine abortion access within their respective borders if the Supreme Court does not uphold Roe when it decides Dobbs v. Jackson Women’s Health Organization later this year. The case involving a 2018 Mississippi law centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb.
In the event that President Joe Biden wields executive power to try to bypass states that restrict or ban abortion, Republicans say they will speak out.
“When it comes to executive overreach that President Biden is considering, that’s something that Republicans would oppose adamantly,” House Republican Conference Chair Rep. Elise Stefanik (R-NY) said at a Feb. 8 House GOP press briefing.
Her comments came after EWTN’s Capitol Hill correspondent, Erik Rosales, expressed the concern of pro-life organzations that Biden “may use executive orders, such as possibly putting clinics on federal land.”
Is this a real possibility?
Rosales’ question followed a report published by The 19th on Feb. 7 citing experts who say the president could could use executive powers to protect abortion. One suggested that the government could lease federal land to abortion clinics.
“It is possible that clinics can operate on federal lands without having to follow state law. That has to be explored,” David Cohen, a professor at Drexel University’s Kline School of Law who focuses on constitutional law and gender, told The 19th. “It’s not a slam-dunk legal argument, but these are the kinds of things that need to be tried.”
Gerard V. Bradley, a professor of law at the University of Notre Dame, where he teaches legal ethics and constitutional law, found the strategy impractical — on the surface.
“It is fanciful to think that Planned Parenthood, for example, could operate an abortion clinic free of local state regulations just because Uncle Sam is its landlord,” he told CNA. “But the more basic idea behind that particular thought is not at all fanciful. It is that federal law in our constitutional system is ‘supreme’ over incompatible state laws.”
He outlined the role of federal law in this situation.
“No state law banning abortion in the wake of a Supreme Court ruling overturning Roe could override a federal law which specifically permitted abortions,” he said. “It is surely within the power of the federal government to say, for instance, that in federal prisons and on military bases there shall be access to lawful abortion notiwthstanding any state law which prohibits it.”
Bradley questioned President Biden’s breadth of authority.
“Exactly how much authority of this kind the executive branch possesses on its own, and how much of this authority would have to be exercised by Congress, is often debatable,” he explained, “even in situations where it is clear that, as a whole, the federal government has the power to act.”
As an example of what he called a “complex problem,” Bradley pointed to the recent Supreme Court cases regarding the Covid-19 vaccine. In January, the court blocked Biden’s vaccine-or-test mandate issued by the Occupational Safety and Health Administration for large businesses, while allowing a new federal rule to go forward that requires millions of health care workers to be fully vaccinated.
“In the OSHA mandate case pertaining to large employers, the Court basically said that Congress had the constitutional power to mandate vaccines, and that Congress could have delegated the authority to OSHA to mandate vaccines,” Bradley summarized. “But, the Court held, Congress had not actually done so, and so OSHA acted without the requisite legal authority.”
Bradley examined the legislative branch’s authority regarding abortion.
“The brue constitutional fact is that, under existing Court interpretations of the extent of Congressional power, Congress could legislate permissive abortion across the United States,” he said, adding that politicians and pundits sometimes describe this as “codifying Roe.”
This, he added, is unlikely.
“The present Senate is not going to do that, of course, and the Senate elected this coming November is even less likely to do so,” he added. “That is why the extent of Executive authority — starting with our ‘pro-choice Catholic’ President — to make abortion available is so important.”
But he pointed to the judicial branch as the solution.
“The only way to put a stop to all of this, and thus the only way to truly end legal abortion, is for the Supreme Court to hold as they should but probably won’t in Dobbs,” he said. “The Court should hold that the constitutional guarantee that all ‘persons’ have the equal protection of laws against being killed extends all the way to conception, because that is when ‘persons’ begin.”
He feared that the court would make a “fateful mistake.”
“The Court is likely to ‘overrule’ Roe in Dobbs,” he said. “But it is not likely to write a truly pro-life opinion.”
Instead, he predicted, the court “will mistakenly mantain that our Constitution is ‘silent’ on the subject of abortion and therefore ‘neutral’ about it, neither prohibiting nor permitting abortion. It is a matter not for the courts, but for the states and the national government (other than the national judiciary) to decide.”
Pro-life groups weighed in on the idea of leasing federal land to abortion clinics. Mallory Carroll, the vice president of communications at the Susan B. Anthony List, criticized the strategy.
“It is no surprise that pro-abortion activists would float an idea like this,” Carroll told CNA. “The abortion lobby is so afraid of the will of the American people that they’ll do anything to circumvent state action to protect the lives of the unborn.”
As the president and CEO of Americans United for Life, Catherine Glenn Foster told CNA that the strategy pointed to a larger problem and echoed Bradley’s concern.
“This conversation around what President Biden may or may not do to promote abortion highlights the problem with the U.S. Supreme Court potentially making abortion a so-called state issue when it finally reverses Roe,” she said. “Human rights don’t get put to a vote. We need the Supreme Court to state the obvious fact that the Constitution is incompatible with abortion, and that justice requires clearly abolishing abortion across our nation.”
Located in a state that restricts abortion, Jonathan Saenz, president and attorney for Texas Values, said that the Texas Heartbeat Act will stay in place regardless of how President Biden proceeds. The subject of another recent Supreme Court case, the law restricts most abortions after the detection of a fetal heartbeat, which typically occurs around six weeks into pregnancy. In December, the Supreme Court ruled that abortion providers could continue their legal challenge against the act, but that the abortion law would remain in effect in the meantime.
“Desperate and last minute efforts by the Biden Administration to collude with abortions clinics to evade the law and take the life of babies will not change state law or the enforcement of the Texas Heartbeat law,” he told CNA.
Cohen floated the federal land idea last year in pieces for the Atlantic and for the New York Times that he wrote with Greer Donley, an assistant professor at the University of Pittsburgh Law School, and Rachel Rebouché, the interim dean and a professor of law at Temple University’s Beasley School of Law.
Together, they asked in the Atlantic, “could the federal government take the bold action of leasing property to or establishing its own abortion clinics on federal lands, such as in federal-government offices or in national parks?”
“Could federally recognized Native American tribes do the same” they added, and “What about the federal government, as one commentator suggested, hiring abortion providers so that they are federal employees and thus immune from state lawsuits under statutes like S.B. 8?”
The three shared their legal reasoning in the New York Times.
“Only a small set of state civil laws apply on federal land, and a civil abortion law like Texas’ S.B. 8 clearly does not fall within this group,” they claimed. As for the application of state criminal law, where “things are a bit more complicated,” they said that it should not apply if the federal government has weighed in on the issue.
“For this, the Biden administration could point to the F.D.A. regulation of abortion medication, as well as the various federal laws that regulate abortion, as evidence that state criminal laws are inapplicable on federal land,” they added.
Other avenues for executive power
Given the limitations of Congress, legal experts suggested to The 19th other executive strategies to protect abortion, from relying on the Food and Drug Administration to expand abortion-drug access to having the Department of Health and Human Services encourage states work around the Hyde Amendment — which generally prohibits federal Medicaid funds from going toward abortion — by using their own respective Medicaid funds.
Like The 19th, the New York Times and the Atlantic pieces listed additional options for Biden to explore, with focus on the FDA. In December, the FDA lifted restrictions on mifepristone, a drug approved for use in medical abortions. The decision authorizes doctors to prescribe the drugs online and mail the pills, allowing women to perform early abortions — up to ten weeks of gestation — without leaving their homes.
“Imagine if the FDA went further, and not only removed its own restrictions that limit the medication’s use but also prohibited states from imposing their own restrictions,” the three legal experts wrote in the Atlantic. “Would that federal regulation preempt and therefore invalidate state restrictions on medical abortion?”
The White House did not comment by time of publication. Professor Cohen declined to comment.