Will Women’s Healthcare Clinics on Federal Lands, be a Post-Roe Reality in 2022 and Beyond?
When doctors have to call their lawyers before giving care – we are in an era that pits medicine against law – creating an ethical quagmire for doctors who take the hippocratic oath to uphold specific ethical standards. This line, which was relatively clear under Roe, is now murky at best. Regarding ethics, one must ask, Is it ethical for a woman to suffer untold pain to bring a child into the world without a brain, without a spinal cord, who will die shortly after birth? Is it ethical to make a woman suffer to deliver a child that was conceived in rape?
Since Roe was overturned, many women are now coming forward, speaking of the unspeakable horrors they faced before Roe, when abortion was illegal. The pain, the shame, putting their lives on the line in back alleys and hotel rooms, wondering if they would live or die, or ever be able to conceive a child again. No woman, no law-abiding American, should ever be put in that situation ever again.
So where do women turn, When a Supreme Court goes rogue – that is, disregards long established precedent as well as disregards the will of the vast majority of the US population who wanted abortion to remain legal? There are a few options. One may lie in the codification of Roe – although it is unlikely with the political blockade by Republicans in Congress. Another option maybe setting up clinics on Federal lands in states that have banned or will be banning the procedure. Federal courts hear lawsuits that occur on federal land, and any federal law would control – including laws already on the books that allow the free-flow of medication that can induce abortion. But of course, nothing is without limits.
The Supremacy Clause of the US Constitution Gives Direction When Laws Conflict
What happens when state law conflicts with federal law? The answer relies on the doctrine of federal preemption.
The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the “supreme law of the land.” What this means, is that judges in every state must follow the Constitution, laws, and treaties of the federal government in matters and in issues which are directly or indirectly within the government’s control. Under the doctrine of preemption, which is based on the Supremacy Clause of the US Constitution, federal law preempts state law – that is federal law controls – even when the state and federal laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.
But in the absence of federal law, or when a state law would provide more protections: such as for consumers, employees, and other residents than what is available under existing federal law, state law controls. Such an example could be a federal anti-discrimination law which does not include LGBTQ individuals as a protected class. Compare to where there is a judicially recognized protected class such as “race” which would be afforded far more protection than the LGBTQ individuals similarly situated. This lack of ‘federally protected class status’ would for example, allow state law to control – such that an openly gay employee in Kansas could be lawfully fired just for being gay. However, an Illinois employee could sue under state law for wrongful termination if their sexual orientation or gender identity (either actual or presumed) was a factor in the firing.
It’s All About Preemption
It is said that Congress “occupies the field” when it preempts state authority in an area of law through federal law is so pervasive, that there is a reasonable inference that Congress intended to supersede state law – that is, by leaving no room for it.
Even though state law is sometimes applied in federal cases – this may not be the case where federal law already controls – or occupies the field – such as in the interstate flow of medication – some of which can be used to induce abortions. But of course, it only takes one scenario to make logic and reason depart.
So the question remains, Where will this Congress and this US Supreme Court take us? Hopefully not back to the dark ages, where back alley abortions in seedy motel rooms had been the norms – to a time where women and young girls, victims of sexual assault and violence were once again revictimized – paying for political expediency with their own lives.
For those who want to help women and girls reclaim their freedom – to be the master of their own bodies, below is a short list of organizations devoted to helping women reclaim their liberty – their right of personal autonomy and self-governance.
Note: The following information is provided as a courtesy, and is not an endorsement or promotion of any of the organizations.
https://www.aclu.org/other/links-other-reproductive-freedom-sites
Copyright 2022, Mary Kay Elloian, Esq. The Legal Edition – All Rights Reserved.