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THERE IS ONLY ONE WAY FOR BIDEN TO FULFILL HIS PROMISE TO “RESTORE
ROE”  
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Elie Mystal
February 20, 2024
The Nation
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_ If the president truly wants to protect reproductive rights, he’s
going to have to do what he’s so far refused even to consider:
expand the Supreme Court. _

President Joe Biden speaks during a campaign rally to “Restore
Roe” in Manassas, Va,, on January 23, 2024., Saul Loeb / AFP via
Getty Images

 

At a campaign rally in Manassas, Va., on the night that Donald Trump
effectively locked up the Republican Party’s nomination by winning
the New Hampshire primary, President Joe Biden and Vice President
Kamala Harris kicked off their reelection campaign. They focused on a
single issue: abortion rights. The two incumbents, and their spouses,
gave speeches about the need to “restore _Roe_” and put the blame
for its revocation squarely at Trump’s feet. “Let there be no
mistake,” Biden said. “The person most responsible for taking away
this freedom in America is Donald Trump. The reason women are being
forced to travel across state lines for healthcare is Donald Trump….
The reason their fundamental right has been stripped away is Donald
Trump.”

Biden’s decision to make abortion rights central to his campaign is
unquestionably right. Trump, who can’t help putting his name on
things like a boy pissing his initials in the snow, is happy to claim
responsibility for the tragedies and human rights violations we’ve
seen since the Supreme Court’s 2022 decision in _Dobbs v. Jackson
Women’s Health Organization_. If he’s elected, Trump might sign a
national abortion ban
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by a Republican Congress. Biden would not. That is all the information
I need to secure my vote for Biden this November.

Yet Biden’s insistence on blaming Trump for _Dobbs_, while
empirically true, is also fundamentally misleading. The actual reason
we’ve lost access to reproductive healthcare in this country is the
Supreme Court. Yes, Trump nominated three of the six justices who
voted to overturn _Roe v. Wade_, but literally any Republican who was
president during the past 30 years would have done the same. I can
prove that easily, because the three justices who joined the Trump
ones in _Dobbs_ were, in fact, appointed by different Republican
presidents—and that includes the one who actually wrote the decision
overturning _Roe_: Samuel Alito, a George W. Bush appointee.

Crediting Trump with taking away abortion rights is like saying George
H.W. Bush “won the cold war.” Trump’s not the guy who
orchestrated this: he’s just the simpleton who was in charge when
the wall came down.

Blaming Trump as the one true villain may feel satisfying—and it
probably makes political sense—but it also allows Biden to avoid
talking about the real problem and lets him and the senators running
on his coattails sidestep the only real solution: expanding the
Supreme Court. There is simply nothing the elected branches of
government—the president and Congress—can do to
“restore _Roe_” without expanding the Supreme Court. Legislation
and executive orders are of no use in the face of an extremist
Republican judiciary willing to prohibit care and let people who are
pregnant die.

You cannot be for abortion rights but against the Supreme Court’s
expansion anymore. The two are now inextricably linked. Biden and
other establishment Democrats are essentially lying to you when they
pretend that they can restore through legislation what the court took
by fiat. Either we expand the Supreme Court and break the conservative
supermajority, or we accept that women and pregnant people are
second-class citizens who will lack equal access to healthcare for a
generation. That is the world we live in, and the people who deny it
are selling you a fantasy.

The Biden administration’s new “actions”
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protect reproductive rights—offered on the 51st anniversary of
the _Roe_ decision—show just how useless executive power is on
this issue as long as conservatives control the courts. The
administration announced plans to expand access to contraceptives
under the Affordable Care Act, which is good. But the announcement
didn’t include plans to expand access to mifepristone, one of the
key drugs in the most widely used method
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terminating pregnancies. And that’s because the Supreme Court is
poised to make a major ruling
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this pill, which would supersede any access to the medication that
Biden might like to provide.

Biden also announced a plan to “educate” patients and healthcare
providers about their rights under the Emergency Medical Treatment and
Labor Act, which mandates
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hospitals and emergency rooms provide lifesaving care regardless of a
person’s insurance or ability to pay. Biden says
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EMTALA covers abortions in situations where the mother’s life is at
risk, but states like Idaho and Texas say it doesn’t. The two
states have sued the Biden administration
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and the Supreme Court recently agreed
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hear Idaho’s case.

Biden can “educate” patients and doctors all he wants, but who is
going to tell Idaho and Texas that they’re wrong—Congress, which
wrote the law? The president, who enforces it? No, the Supreme Court
will decide whether Idaho and Texas can jail doctors who attempt to
provide lifesaving care in emergency rooms, while the Biden
administration sits back and accepts the ruling of six conservative
extremists that nobody voted for.

Both the mifepristone case and the EMTALA case will likely be decided
by the Supreme Court in June, before the presidential election. If the
court moves to further restrict reproductive rights, you’ll probably
hear a lot about it at the Democratic National Convention in Chicago
this August. But what you won’t hear are promises from the
Democratic candidates to actually fix the problem. They’ll cry and
moan and blame Trump and the MAGA Republicans, and they’ll promise
“action” if they’re elected to office. But they will avoid
talking about expanding the Supreme Court, which is the one action
that can be taken to stop the torrent of anti-abortion rulings being
issued by this court.

Look, I get that Trump is the easier target. He’s the perfect poster
boy for the misogyny and filth that animate conservative rulings
against reproductive rights. And I get that in our low-information,
attention-deficient, celebrity-obsessed society, pretending that a
president can single-handedly “restore _Roe_” is perhaps a
necessary fiction. But abortion rights and access to lifesaving
reproductive care will never again be allowed in the United States as
long as conservative justices are allowed to control the Supreme
Court.

And conservative justices will control the court, for the rest of my
life and yours, as long as the Democrats refuse to commit to a
platform of court expansion. There are simply no other options. The
electoral binary is not “Biden” or “Trump”; it’s “expand
the court” or “let pregnant people die.”

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
reprinted without permission
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Distributed by PARS International Corp
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_Founded by abolitionists in 1865, The Nation has chronicled the
breadth and depth of political and cultural life, from the debut of
the telegraph to the rise of Twitter, serving as a critical,
independent, and progressive voice in American journalism._

_Please support progressive journalism. Get a digital subscription
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The Nation for just $24.95!_

* Roe v. Wade
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* Supreme Court
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* Joe Biden
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* abortion rights
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