Why the Supremacy Clause is the abortion rights movement’s new best friend

It hasn’t even been a month since the Supreme Court overturned Roe v. Wade. But in under four weeks, the court’s decision in Dobbs v. Jackson Women’s Health Organization has resulted in pervasive uncertainty not only about abortion access but also with respect to women’s health generally.

The Washington Post and New York Times each wrote over the weekend about how state abortion bans are delaying — and even obstructing — urgent medical care for pregnant women facing complications or miscarriages. Why? Because doctors are afraid of being prosecuted or losing their medical licenses given their states’ total abortion bans or near-total gestational limits (e.g., the so-called “heartbeat” bans).

The Dobbs effect even extends to women who aren’t pregnant but are perceived as “visibly fertile” while coping with serious, chronic health conditions. For example, some patients with lupus and rheumatoid arthritis, both of which can be treated with a drug that can potentially end some pregnancies, have found their access to that drug, methotrexate, endangered or cut off.

And all of this real-time, real-world impact on individual patients’ lives is occurring against the backdrop of a litigation landscape so fast-moving and changing that even journalists and reproductive health care professionals have trouble keeping up with where abortion is legal, for how long and under what conditions. On Wednesday, a federal appeals court ruled that Georgia’s six-week abortion ban, which had been enjoined by a lower court, can go into effect immediately. In Louisiana, by contrast, a state court judge ruled Thursday that the state cannot enforce its own abortion ban until there’s a trial to decide whether to permanently block the law.

All of this has made abortion rights advocates irate. And it’s led some to point the finger not only at the Dobbs majority, the Senate Republicans whose procedural maneuvering made that majority possible, and the state officials engaged in a perverse race to have their state be more “pro-life” than the next, but also at the Biden administration for simply not doing enough. As reproductive justice activist Renee Bracey Sherman tweeted on July 9, “All this White House has for people who need abortions is empty promises and disrespect.” 

Sherman has hardly been alone in her dismay. Many chafed at President Joe Biden’s suggestion that the most effective response to Dobbs would be through the ballot box. Notwithstanding tepid statements of praise from various abortion rights groups, the response to Biden’s eventual executive order on reproductive health care access was not much different: It was, at best, “vague” on how certain goals would be met, as Politico remarked. At worst, it would have “limited impact in practice,” as Reuters noted earlier this month.

And that’s what made Attorney General Merrick Garland’s press briefing on Wednesday all the more remarkable. Garland is a man already under attack from many sides: experienced former federal prosecutors, progressive lawyers, disaffected conservatives. But collectively, they share a deep skepticism that Garland has the will to investigate or prosecute former President Donald Trump and his inner circle.

In light of that growing concern, some expected Wednesday’s briefing, announced as an update on the Justice Department’s anti-firearms trafficking efforts, would ultimately focus on the DOJ’s Jan. 6 investigation. And, indeed, Garland addressed that investigation. 

But before he did so, he also reflected on the department’s commitment to protect reproductive freedom. Garland pledged the DOJ’s new reproductive health task force would explore “everything from advising federal agencies on their authority to bring affirmative litigation to entering into private lawsuits on the side of private parties with respect to amicus and statements of interest.” 

That in and of itself was newsworthy. Both would be unusual and creative steps for the DOJ. But what really made me perk up and listen was when he committed to fighting back against Texas’ lawsuit against the Department of Health and Human Services.

That lawsuit, filed last week, concerns HHS’s July 11 guidance to health care providers about emergency medical care, a step that Biden directed HHS to consider in his executive order. 

That guidance reminds providers that under the federal Emergency Medical Treatment and Active Labor Act, they are required to provide “stabilizing medical treatment” to any patient with an emergency medical condition, which includes several pregnancy-related developments, from ectopic pregnancies and preeclampsia to miscarriage complications. And it makes clear that such “stabilizing treatments” can include abortion and states that any conflicting state laws are “preempted,” or trumped, by the superior federal law.

Not surprisingly, HHS’s “federal law outweighs your abortion bans” argument was not greeted with universal applause. But no reaction was as strong or immediate as that of Texas Attorney General Ken Paxton, who has already sued the Biden administration nearly 30 times. Lashing out at HHS’s guidance as an unlawful incursion on Texas’ sovereignty, he filed yet another suit. And this latest one isn’t subtle: Paxton charges that HHS is attempting to “transform every emergency room in the country into a walk-in abortion clinic.”

Garland, however, isn’t backing down. He told reporters on Wednesday that the DOJ would move to dismiss the suit because the federal law “could not be more straightforward.” He added:

Garland also briefly elaborated on why the Biden administration should win: Texas’ abortion ban is “expressly preempted” by the federal statute and “our system of federalism expressed by the Supremacy Clause of the U.S. Constitution.” In other words, HHS should win because the plain text of Article VI, Paragraph 2 of the Constitution plainly says so: “[T]he laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”

Whether Garland’s argument will prevail, especially in Texas federal courts now dominated by GOP-nominated, anti-abortion judges, remains to be seen. It’s also worth noting the Texas case could be a test run for future battles between the FDA and states over access to medication abortion, which the FDA has pronounced safe and effective. But the muscular, innovative defense of abortion rights advocates have been looking for came yesterday from an unexpected source: the usually tight lips of one Merrick Garland.