Open/Close Menu وکیل | مشاوره رایگان | وکالت | وکیل آنلاین

Below is my Hill column on how the next round of litigation will become more focused after Roe. At the center of the fight is the question of who controls the doctors in each state.

Here is the column:

Supreme Court throughout its history, as recently Women’s Health Organization Dobbs v. Jackson. Such changes as shifting tectonic plates, creating earthquakes and volcanic eruptions are legal in the lithosphere. In law, adjustment can take years as collateral doctrines and applications oscillate along new fault lines.

The trend has been fueled by new litigation in the post-Roe era that has brought these conflicts into greater focus, including the fight over who ultimately controls doctors and health care providers in the United States. .

like the Desired by the courtMuch of the abortion debate is now up to citizens to decide in a democratic process. Still, there will be legal challenges — and legal ones, nearly a month after Dobbs’ ruling.ring of fireIt is shaped by a large eruption in Texas last week.

Texas from Biden The government on the new directive that was issued after the Dobbs decision. President Biden Announced that “the only way we can guarantee a woman’s right to choose … is for Congress to restore the protections of Roe v. Wade as federal law.” He then announced unilateral measures designed to lessen the impact of the decision. This mission was carried out by the Minister of Health and Human Services Xavier Besra, The World Health Organization Stated that “we have no right to do ‘mild’. And so we will be aggressive and go all the way.”

The “aggressive” measure included requiring doctors and hospitals to provide emergency abortion services under the Emergency Medical Treatment and Active Labor Act (EMTALA). The law was created to prevent “patient dumping,” whereby hospitals turned away patients who could not pay for treatment. It does not mention abortion.

This change only deals with A preparation Regarding “emergency medical care” and “stabilizing treatments” in the case of abortion, although the former category can be any “medical condition presenting itself with acute symptoms of sufficient severity (including severe pain)” that “reasonably could be expected to result in to have an abortion” to cover. ) placing the person’s health (or, in relation to a pregnant woman, the health of the woman or her unborn child) in serious danger, (ii) seriously impairing the function of the body, or (iii) seriously impairing the function of the body or part thereof.”

Leaving aside the potential reach of that provision, the Texas lawsuit represents the first major test of who controls doctors and health care providers in a particular state.

Biden administration Announced When “a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws that exception more narrowly than EMTALA’s definition of a medical emergency—the state law preempts.”

That bottom line may give Texas and other states the strongest claims for legal standing to challenge the law. It also raises a possible conflict with the law itself which Specifies that EMTALA “does not preempt any requirement of local or state law, except to the extent that such requirement is directly inconsistent with the [EMTALA]”

That raises a new challenge to whether the Biden administration overstepped its authority after the trial Abolished climate control regulations. Not only is the government accused of again overstepping its authority, it also failed to comply with federal notice and comment requirements under the Administrative Procedure Act (APA).

The government may have weakened its case by announcing the new policy as part of an aggressive campaign. While the government has sidelined the “mild” measures out of court, it has argued in court that it is part of an existing policy — not a major new change that would require congressional approval or notice-and-comment procedures. However, Biden and Besra’s words are already there cited in the lawsuit by challengers

The most important struggle going on among the states is mentioned in another part of the instructions. Biden administration warned Retail pharmacies that must fill prescriptions for pills that can cause abortion under federal law. Most abortions are done at home using those pills.

This could pose a challenge with far-reaching implications. Physicians are subject to federal and state laws, including state licensing laws. In 2000, the FDA approved the abortion drug Mifepristone, and six years later, it approved it for use in combination with another widely used drug, Misoprostol. As of 2018, more than 3.7 million women have used these drugs to end early pregnancies.

Immediately after the Dobbs decision, some of us Determined the availability of these tablets As the most important issue of the future. Since most women likely live in states where abortion services are available, the pill can be used by women in states where abortion is prohibited. Indeed, Attorney General Merrick Garland moved quickly after this comment to announce that “States may ban Mifepristone based on disagreement with the FDA’s expert judgment regarding its safety and efficacy.”

Governor of Michigan Gretchen Whitmer (d) has He called President Biden so that pills are available without a prescription.

The problem is that states can ban doctors from prescribing these pills and ban their importation. For example, the governor of South Dakota. Christie Nome (R) Announced that he seeks to ban mail order abortion pills. Conversely, the federal government may rely on telemedicine to allow women to obtain prescriptions.

Because states generally do not want to prosecute pregnant women, they will focus on state licensing and practice rules for doctors. This pits interstate federal authorities over drugs against state authorities over doctors. A Biden administration will again be in largely uncharted territory. Just as the court struck down the agency’s sweeping action on climate control, it could do the same on abortion rights.

This is just one part of a federal litigation movement in which pro-choice advocates will try to establish federal protections for abortion.

At the state level, pro-life and pro-choice groups will shift in orientation. Pro-life attorneys general, who have spent 50 years on the offensive, must now defend themselves to maintain the ground they have gained in the Dob.

On the pro-choice side, some still seek Biden’s “Hail Mary” approach to federal abortion. This week, the House passed the Women’s Health Protection Act of 2022 to codify the decision, but the Senate doesn’t appear to pass it — and if it does, it will be challenged, according to Dobbs, who The question is returned to it. States (Congress) also passed the Abortion Access Guarantee Act to protect a patient’s right to travel for a legal abortion. A right already protected under the Constitution and is not in danger with Dobbs’ decision.)

If violated, pro-choice advocates may be left with the previous pro-life strategy of skirting the edges of these laws.

One thing is clear: In announcing his “aggressive” measures, Minister Becerra insisted that the country “can no longer trust the Supreme Court.” However, in this first round of the main event, it looks like it’s headed that way.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

Write a comment:

*

Your email address will not be published.

logo-footer