Joe Biden on Saturday recalled his criticism to the Supreme Court, a day after justice issued a historic decision that reversed a decision that had guaranteed the constitutional right to abortion for nearly half a century.
“The Supreme Court has made some scary decisions,” Biden said at an event where he signed a bipartisan gun control bill last week into law. The president said that he and the first woman, Jill Biden, knew “how painful and harmful the decision was for many Americans” and vowed that his government would focus on how the country implements that decision.
But the White House has limited options, prompting constitutional and legal experts to warn Saturday that there is no short-term way beyond the law to restore federal guarantees on women’s rights to abortion after the U.S. Supreme Court rejected Roe v Wade on the day Friday.
The opportunity to challenge a judge’s decision or present again a constitutional law argument based on the same rights is currently limited.
“We are a long, tangled, chaotic and, in terms of human suffering, a horribly costly struggle,” says Harvard constitutional law professor Lawrence Tribe, who has described Friday’s decision as “unprincipled”.
Tribe told the Guardian that it would take several generations to restore abortion rights but there seems to be an opportunity to minimize the effects of the decision.
One is for Congress to give power to the Department of Health and Human Services or the Food and Drug Administration to override state laws. The problem arose on Friday when the attorney general, Merrick Garland, stated in a statement that states cannot ban mifepristone, a drug used for abortion, based on disagreements with the federal government about its safety and efficacy.
Mifepristone and misoprostol, other drugs used to induce abortion, have been approved by the FDA for use in the first 10 weeks of pregnancy. But several states, including Louisiana, have adopted laws to ban doctors from sending drugs.
In a statement, Garland said the justice department “strongly supports efforts by Congress to codify Americans’ reproductive rights, which it retains the authority to do.” But federal law isn’t clear whether states can ban medications, and the question seems to be awful back to the same bench that issued Friday’s decision.
Some scholars have gone back to Roe v Wade to find out where the decision was to give the majority now on the bench to vacate the decision.
One idea that has come up is that the original fatwa talked about independence but not the same.
“It’s really foolish to try to explain why the fatwa wouldn’t get the highest class in the constitutional law class,” says Tribe, who has been quoted four times in Friday’s fatwa. “The court should speak about equality, there is no question, but it also speaks of freedom and independence to realize the same idea.”
One way that can be more favorable to fix the right to abortion is in the constitution of a country that has its own protections on freedom and equality.
“I expect creative litigants to challenge state law banning abortion based on the state’s own constitution. If state courts, which in many cases are elected, see this from the same lens as those done by the Supreme Court, they won’t be anywhere.
“But it is possible that in some states there are more liberal, liberal or pro-gender equal state courts that will interpret the state constitution as giving more rights to women than they have been granted in the federal constitution,” Tribe added.
Kevin O’Brien, a partner at Ford O’Brien Landy, a boutique law firm, points out that Roe v Wade was written 50 years ago – long in terms of constitutional law.
“It was written in a benignly liberal era where there was no ideological tension. Under Warren’s court, the writing was quite casual and the judges wrote a broad gesture. They inserted Roe in this rather vague assumption that there was an implicit privacy interest in the constitution.
O’Brien cites the late justice Ruth Bader Ginsburg who stated that Roe vs. Wade argued about privacy rights, rather than women’s rights. “Roe isn’t about women’s choices, is he?” Ginsburg once said. They held, of course, until no. “It doesn’t seem to require much argument among civilized people that people got autonomy in their own bedrooms and women got the right to control their own bodies but then we got this revolution in thinking among conservative judges.”
While the federal and several state governments are working to navigate the new legal hurdles, private companies have indicated that they will try to protect the gap. Some of the best -known U.S. companies, including JPMorgan Chase, Meta (parent of Facebook and Instagram), Walt Disney, Tesla and Apple, have come forward to show that they will extend coverage to employees who need access to safe legal abortions.
Conservative lawmakers have warned that companies can face legal action if they support employee abortion travel. Citigroup was warned by Texas lawmakers that under the state’s abortion laws the bank can face criminal charges. In those concurring Justice Brett Kavanaugh in Friday’s court decision, justice-appointed Trump said states cannot deter their citizens from traveling to seek abortions.
But, as Tribe points out, beyond legislative law guarantees abortion rights that little believe is possible without, limited options. “If you intend to recourse to completely restore before the ruling it could take generations,” he says. “If you mean minimizing decision damage, taking steps along the margins to reduce decision damage, that’s right, it’s definitely doable.”