The White House is still apparently paralyzed over whether or not to declare a public health emergency over abortion access, something President Joe Biden has explicitly said is on the table. His “top aides” are apparently conflicted. Outside legal advisers, according to The Washington Post’s reporting, are giving him the worst reason of all for not doing it, warning “that an emergency declaration would face inevitable legal challenges, potentially giving conservative judges an opportunity to cut back on the administration’s emergency authority.”
Meanwhile, those lawsuits are coming anyway. On Thursday, Texas filed suit against the administration for its new rules requiring abortions be provided in medical emergencies to save the life of the pregnant person. Read that again: Texas is trying to block the federal government from requiring hospitals to save the actual lives of living, breathing, functioning humans.
Like the 19-week-pregnant woman whose water broke and whose life was threatened with an ensuing infection, just hours later. Dr. Mae-Lan Wang Winchester, an OB-GYN in Cleveland, had to call her lawyer to make sure it would be okay to end that woman’s pregnancy in order to save her actual life. “The first person I called is my lawyer to be like … ‘Do I need to do anything different or special? I know what to do medically, but what do I do legally to protect her, protect me?’” Winchester said. This is what the administration attempted to clarify with their order to the states—that this lifesaving care was required of medical personnel.
“It could mean life and death if I’m stopping care when I think this patient needs to go forward, but I want to run it by the lawyer just to make sure that I’m covered,” Dr. Tani Malhotra, a Cleveland-based OB-GYN who works with Winchester, told NBC News. “When people are bleeding, when people are hemorrhaging, when people are getting really sick, a few minutes makes all the difference.”
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The Biden administration was trying to make sure that these providers and their patients were safe from certain state laws when it informed state officials that there is a federal law that “requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary.” It’s federal law, the Emergency Medical Treatment and Labor Act, and the requirement to provide that treatment exists “irrespective of any state laws or mandates that apply to specific procedures.” That’s what the administration reminded the states. Texas, of course, wants that law overturned, too.
“President Biden is flagrantly disregarding the legislative and democratic process—and flouting the Supreme Court’s ruling before the ink is dry—by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions,” the lawsuit said. Texas’criminally indicted attorney general, Ken Paxton (a Republican, of course), accused the administration of “seek[ing] to transform every emergency room in the country into a walk-in abortion clinic.”
And in the White House, there are powerful people in the “don’t pick a legal fight” camp, according to the Post’s sources, including chief of staff Ron Klain and senior adviser Anita Dunn. Meanwhile, state Republicans are bringing the legal fights to the administration anyway. There is no way to avoid conservative courts attempting to curtail the administration’s authority outside of fixing the goddamned courts, including the U.S. Supreme Court.
Taking on those legal fights—at every turn—is the most essential thing President Biden can to do protect the lives of pregnant people, and to secure the fundamental right to bodily autonomy that we should all possess. That includes declaring a public health emergency to make sure that there are medical professionals available everywhere to provide abortion care.
Use that fight to win the Senate in the fall. Use that fight to give Sen. Chuck Schumer a big enough majority that he can tell Joe Manchin and Kyrsten Sinema to take a hike while he gets rid of the filibuster, makes abortion rights the law of the land, and reforms and expands the courts. Because there is no other way that anything in this country gets fixed if that doesn’t happen.