"Consider the challenge accepted, Court." Those defiant words by President Joe Biden last week were meant to rally a possibly anemic political base to, in the words of the president, "vote, vote, vote, vote."
Ironically, it was the only part of the president's remarks that is consistent with what the Supreme Court actually said in its decision in Dobbs v. Jackson Women’s Health Organization. In overturning Roe v. Wade, the court ruled that millions of citizens, not nine justices, must now decide the question of abortion.
In its decision, the court said that in 1973 "Roe abruptly ended (a) political process" of states dealing with the issue of abortion. It now has returned the matter to the states and said basically "have at it." The court did not outlaw abortion or favor any particular outcome beyond telling people to vote, vote, vote, vote.
Biden attacks Supreme Court for positions it rejected
There are good-faith objections to the court's interpretation of the Constitution. Many believe that the Constitution implicitly does protect this right. What is striking, however, is how the president and other Democratic politicians and pundits have attacked the decision for positions that it expressly rejected or clearly did not support. Indeed, parts of the president's abortion response plan are based on nonexistent threats to rights not imperiled by the decision.
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Take travel. The president, political allies and law professors have stressed the need to "protect the right of women to travel." The right to travel for medical procedures is unambiguously protected.
While a few legislators have suggested such laws, restricting travel has been tried before with consistently ruinous results before the Supreme Court. Justices, for example, unanimously struck down a law in Edwards v. California that attempted to keep indigent people from entering the state. Discriminating against nonresidents of a state has repeatedly been held as unconstitutional under the Privileges and Immunities Clause.
The right to travel also can be based on cases under the dormant Commerce Clause, which prevents states from discriminating against or unduly burdening interstate commerce. The court has long defended the "right of free ingress into other states, and egress from them."
More important, the majority of justices in the Dobbs decision rejected this travel claim. In his concurrence, Justice Brett Kavanaugh called this claim “not especially difficult as a constitutional matter" and said that any such ban would fail “based on the constitutional right to interstate travel.”
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With Chief Justice John Roberts, this means that five justices clearly view laws that ban travel as unconstitutional, and the expectation is that a decision on any such law could be unanimous or nearly unanimous. Making this a focus of the federal response is about as significant as expressly prohibiting indentured servitude. The court is likely to say been there, done that.
Biden also continued to raise the specter of bans on contraception, which was also expressly and repeatedly rejected by the court. The court stated, “Abortion is fundamentally different, as both Roe and (Planned Parenthood v.) Casey acknowledged."
Nevertheless, the majority of justices said some critics of the Dobbs decision would make this claim and noted that "perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights."
Even Justice Clarence Thomas, who called for a re-examination of the constitutional basis for rights like contraception, expressly stated, "I agree that 'nothing in (the court’s) opinion should be understood to cast doubt on precedents that do not concern abortion.'”
Biden is not alone in seeking to exploit a problem not created by the opinion. For example, many Democratic politicians have claimed that the decision would make it difficult or impossible for women to get medical treatment for ectopic pregnancies.
AOC mocks harassment of justice
Last week, Rep. Alexandria Ocasio-Cortez, D-N,Y., argued that a supposed ban on the procedure was justification for harassing Justice Kavanaugh at a restaurant in Washington, D.C. She tweeted: "Poor guy. He left before his soufflé because he decided half the country should risk death if they have an ectopic pregnancy within the wrong state lines."
And professors like Harvard's Laurence Tribe have given credence to this claim.
It is utterly untrue.
When a pregnancy implants in the fallopian tube, it is not a viable pregnancy and its treatment is not an abortion subject to these bans. The procedures and medication are entirely different. Moreover, laws in Louisiana, Oklahoma, Texas and other states restricting abortions expressly exempt such procedures.
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Nevertheless, Biden announced that he is contemplating declaring a national health emergency. If he did, he would extend the use of a public health emergency beyond any prior invocation and beyond what his administration states is a measure to be used when "1) a disease or disorder presents a PHE, or 2) a PHE, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists."
Jennifer Klein, executive director of the White House Gender Policy Council, admitted to reporters that they looked at this option and did not see any material benefit from taking the unprecedented step because there were only “tens of thousands of dollars” in the government’s public health emergency fund, and that declaring an emergency “doesn’t release a significant amount of legal authority.” It would also unleash potential legal challenges.
However, the value of declaring a public health emergency is primarily meant to address a political emergency for Biden. Recent polling shows Biden's approval rating as low as 30%. And 64% of Democrats, according to a New York Times poll, want someone other than Biden as their party's candidate for president in 2024.
The Dobbs decision offers Democrats a glimmer of hope for the midterms, and some leaders in the party believe they must “scare the crap out of (voters) and get them to come out,” said MSNBC analyst John Heilemann.
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The president doesn't need to defend unthreatened rights or invoke unsupported powers to campaign on abortion rights. The right to choose remains a powerful constitutional question without undermining that campaign with a parade of supposed horribles that disperses on closer examination.
The president's call to "vote, vote, vote, vote" is the same as the court's call. However, the result might not be clear as the president suggests in a country where only 34% support abortion in the second trimester and only 19% in the third trimester.
As Biden said, "This is a choice. This is a moment." In time, we will know what that choice will be and what this moment will mean for the country.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley
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This article originally appeared on USA TODAY: Abortion and contraception: Biden wrong about effects of Roe decision