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Biden DOJ attacks SCOTUS abortion decision, vows to protect loophole

U.S. Attorney General Merrick Garland (Screenshot)
June 24, 2022

President Joe Biden’s Attorney General Merrick Garland released a statement attacking the Supreme Court’s decision to overturn Roe v Wade on Friday, vowing to protect access to the FDA-approved abortion pill, which currently provides a loophole to abortions. The statement is the Justice Department’s second unusual political outcry against the Judicial Branch this week.

The Supreme Court released its decision on Dobbs v. Jackson Women’s Health on Friday, revealing a 6-3 vote which held that abortion is not a constitutionally protected right, thus overturning Roe v. Wade. In response, Garland vowed that the historically apolitical Department of Justice will “use every tool at our disposal to protect reproductive freedom,” and specifically referenced safeguarding abortion pills.

“The Justice Department strongly disagrees with the Court’s decision. This decision deals a devastating blow to reproductive freedom in the United States. It will have an immediate and irreversible impact on the lives of people across the country. And it will be greatly disproportionate in its effect – with the greatest burdens felt by people of color and those of limited financial means,” Garland’s statement read.

Garland added that states cannot ban the abortion pill Mifepritstone based on disagreement with the federal government over the medication’s safety or efficacy. The medication was approved by the Food and Drug Administration to induce abortions for up to 10 weeks of pregnancy. In December, the FDA lifted restrictions to permit doctors to prescribe abortion pills remotely and mail them to patients.

The Supreme Court’s ruling does not explicitly include abortion medications, though nearly half of all U.S. states have already enacted bans or restrictions on abortion pills. Without clear legal precedent on abortion pills, it’s likely that state laws restricting them will be a challenge that returns to the courts.

According to the Guttmacher Institute, 54% of abortions in 2020 were conducted via abortion pills, an increase from 17% in pre-COVID era 2017.

The three dissenting justices wrote on Friday that the ruling “invites a host of questions about interstate conflicts” such as sending abortion pills through the mail. “Today’s ruling will give rise to a host of new constitutional questions” and “puts the Court at the center of the coming ‘interjurisdictional abortion wars,’” the dissenting justices warned.

Garland asserted that federal agencies “may continue to provide reproductive health services to the extent authorized by federal law” and federal employees who do provide “such services must be allowed to do so free from the threat of liability.”

“It is the Department’s longstanding position that States generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law. Additionally, the Department’s Office of Legal Counsel has determined that federal employees engaging in such conduct would not violate the Assimilative Crimes Act and could not be prosecuted by the federal government under that law,” he said. “The Justice Department is prepared to assist agencies in resolving any questions about the scope of their authority to provide reproductive care.”

Garland went on to say that the Justice Department “will work tirelessly to protect and advance reproductive freedom.”

“Under the Freedom of Access to Clinic Entrances Act, the Department will continue to protect healthcare providers and individuals seeking reproductive health services in states where those services remain legal. This law prohibits anyone from obstructing access to reproductive health services through violence, threats of violence, or property damage,” he continued.

Garland also encouraged Congress to codify so-called “reproductive rights,” a euphemism for abortion, and said the department supports “other legislative efforts to ensure access to comprehensive reproductive services.”

“And we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” Garland said.  

“The ability to decide one’s own future is a fundamental American value, and few decisions are more significant and personal than the choice of whether and when to have children,” Garland added. “Few rights are more central to individual freedom than the right to control one’s own body.”

Yesterday, after the Supreme Court issued a decision finding New York’s restrictions on obtaining a concealed carry permit unconstitutional, the Department of Justice responded with a swipe at the court’s assessment.

“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense,” Justice Department spokeswoman Dena Iverson said in a statement issued by the department.