By Amanda Becker /Originally published by The 19th
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The Supreme Court’s rejection this week of the Biden administration’s appeal to weigh in on a dispute over emergency abortion care in Texas foreshadows how the next president could protect or restrict abortion access without signing — or vetoing — federal legislation.
The court’s decision came Monday as early voting was already underway in some states in the first presidential election since the Supreme Court overturned Roe v. Wade, ending federal abortion protections and sending the issue back to the states.
Texas is one of 13 states that currently have total abortion bans in place and another four states cap the procedure after 6 weeks, before many people know they are pregnant.
Restoring Roe’s protections nationwide are central to the case that Democratic nominee Kamala Harris is making against Republican nominee Donald Trump. Headed into the final weeks of the race, polls show abortion gaining on the economy as the top-of-mind issue for voters, particularly in battleground states and for women under 45 years old.
Trump, who as president cemented the conservative bloc on the court that overturned Roe in the case Dobbs v. Jackson Women’s Health Organization, has provided few details about how his administration would approach abortion, saying only that he feels it is an issue best left up to the states and that “everyone knows” he would not sign a federal abortion ban.
Trump has yet to comment on the myriad of other ways a president’s administration can impact abortion access via the federal agency rulemaking process or by prosecuting state bans when they conflict with federal laws, such as in the Texas dispute.
In the Texas case, the Biden administration is arguing that a 1986 law known as EMTALA, which requires most hospitals to provide emergency care, applies to abortion even in states with bans — Texas disagrees. The state’s abortion ban has limited exceptions for patients who have a life-threatening condition or who are at risk of “substantial impairment of a major bodily function” but what constitutes substantial impairment is left undefined.
The Supreme Court’s decision to not hear an appeal at this juncture means that as the case continues, a lower court order will remain in place that says hospitals cannot be required to provide emergency abortions in cases when they might violate Texas’ ban. Legal experts told The 19th that the order could also affect cases in Louisiana and Mississippi, which are also under the jurisdiction of the 5th U.S. Circuit Court of Appeals.
“Let me be clear: Donald Trump is the architect of this health care crisis,” Vice President Harris wrote on the social media site X shortly after the Supreme Court’s decision not to take the case. “I will never stop fighting for a woman’s right to emergency medical care — and to restore the protections of Roe v. Wade so that women in every state have access to the care they need.”
Trump’s campaign did not respond to multiple requests for comment on the Texas case or to provide further information about how his administration would interpret EMTALA as it relates to the state abortion bans that have proliferated since the Dobbs ruling.
Shortly after the Dobbs decision, President Joe Biden’s Department of Health and Human Services issued guidance stating that states with abortion bans could not enforce the parts that conflicted with EMTALA. The administration sued Idaho and the Supreme Court dismissed an appeal from Idaho officials in that case earlier this year, delivering a temporary victory to abortion-rights supporters. Texas challenged the EMTALA guidance and a federal trial and appeals court sided in the state’s favor. The Biden administration appealed to the Supreme Court, pointing to the Idaho case, which paved the way for emergency abortions to continue in that state, at least temporarily.
The Biden administration’s role in interpreting EMTALA, defending its interpretation in the Texas case, and suing Idaho over its abortion ban shows how a president can impact abortion access in ways that are far more nuanced than signing or vetoing legislation. Discussion of a federal abortion ban or national bill with Roe’s protections have dominated the presidential race — the reality is that neither party will likely have the numbers in Congress to enact abortion legislation.
Trump’s Republican Party has long aligned with the anti-abortion movement and the former president still touts the role he played nominating the justices who decided Dobbs. The anti-abortion coalition working to elect Trump — and his stated preference to leave the issue up to the states — would likely inform about how his administration handles abortion-related rulemaking and legal challenges. Trump has not said whether his Justice Department would continue to defend the Biden administration’s EMTALA interpretation; he also has not said whether his Department of Health and Human Services would agree with that interpretation or rescind it.
Trump and his running mate, Sen. JD Vance of Ohio, have not released policies related to reproductive health care. Though they have both tried to distance themselves from a far-right Christian vision for a second Trump term known as Project 2025, crafted by the conservative Heritage Foundation, it provides the most detailed picture about how their administration might approach the issue of abortion across the White House and various federal agencies.
At least 140 people who worked in Trump’s first administration helped craft the 920-page Project 2025. Among other anti-abortion provisions, it urges a Trump-Vance Department of Health and Human Services to rebrand itself as the “Department of Life” and to rescind the Biden administration’s EMTALA guidance. It also encourages the Trump Justice Department to announce a campaign to enforce the long-dormant 1873 Comstock Act, which prohibits the mailing of obscene materials and articles intended for “producing abortion.” These provisions, if implemented, would have nationwide impacts on abortion access.
“To the credit of the authors of Project 2025, they thought through all of these implications of a change in administrations,” said David Cohen, an abortion law expert at Drexel University.
Cohen predicted that if Trump wins in November, his Department of Health and Human Services would “immediately” rescind the Biden administration’s interpretation of EMTALA as it relates to abortion bans. That, in turn, would make the Idaho case “disappear” and the Texas case would be dismissed, he said. The practical impact would be that EMTALA would not protect access to emergency abortions in states with bans unless private parties brought different lawsuits — an unpredictable process that could take years.
“This is just another aspect in which the two administrations would vary drastically,” he added.
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