Biden Chastises the Wrong Branch of Government
During His State of the Union Address, President Biden Directly Criticized the Supreme Court over Dobbs, But Misses the Mark
In President Joe Biden's State of the Union address last night, he made a controversial move by directly addressing the Supreme Court justices in the chamber over the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade.
Biden erroneously cited this decision as a per-cursor to a recent Alabama Supreme Court opinion, which held that a 1872 law, which allows parent to sue over the death of a minor child, allows parents to seek civil action against IVF clinics1. It was Alabama State Law that was invoked to reach that conclusion, not the Supreme Court’s ruling in Dobbs. In fact, in the wake of that decision, Alabama lawmakers have advanced legislation aimed at protecting IVF clinics from prosecution and civil lawsuits. Dobbs is simply silent on the issue of IVF.
Biden’s unprecedented act of publicly reprimanding the Supreme Court justices in the from the podium of the Congressional chamber raises concerns about the appropriateness of such confrontations between the executive branch and the judiciary.
The Supreme Court, by design, operates independently of political pressures to endeavor to achieve fair and unbiased interpretation of the Constitution. Biden’s direct criticism, particularly in a setting where the justices cannot respond, raises concerns about on the separation of powers.
It potentially undermines the mutual respect necessary for the functioning of the United States' democratic institutions. While it is within the President's purview to disagree with the Court's rulings, doing so in such a direct and public manner could be seen as disregarding the norms that uphold the judiciary's dignity and independence.
President Biden’s comments implied that the responsibility for the current state of reproductive rights lies primarily with the Supreme Court, particularly through the Dobbs decision. However, this perspective overlooks a critical point:
The Dobbs decision itself does not prevent Congress from passing laws to protect reproductive rights. The Supreme Court’s role is to interpret the Constitution and the legality of laws, not to legislate.
A common misunderstanding about the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization is that it returned the issue of abortion to the states for regulation. However, this interpretation oversimplifies the Court's ruling.
The decision explicitly states that "the authority to regulate abortion is returned to the people and their elected representatives,"2 not just to the state legislatures.
This subtle yet significant distinction means that the power to determine abortion laws is placed in the hands of both state and federal lawmakers, as well as the electorate, allowing for a broader democratic process to shape abortion policy across the United States. Thus, any action or inaction on codifying abortion rights into federal law falls squarely within the Congress's purview.
President Biden’s emphasis on the Supreme Court's role in reproductive rights, while ignoring the legislative branch's capability and responsibility to enact laws, may divert attention from the tangible steps that can be taken to address the issue. His message, arguably, should have been more pointedly directed at the legislators present in the chamber — those who have the power to introduce, debate, and pass federal laws that could secure the reproductive rights Biden champions.
This approach could have framed the discourse around reproductive rights as a legislative issue requiring immediate action from Congress, rather than as a solely judicial matter. By focusing on the judiciary, the President is absolving Congress of its responsibility and shift the public's focus away from legislative remedies,.
Congress's hesitance to legislate on abortion, a reluctance that has, over time, contributed to the judiciary becoming the primary arena for battles over reproductive rights. While Supreme Court decisions have significantly shaped the national discourse on abortion, these judicial interventions are not substitutes for comprehensive legislative action.
Rulings from the bench, by their nature, can only interpret existing law and the Constitution; they cannot proactively establish rights or protections that only legislation can provide. This judicial-centric approach to abortion rights has led to a fragmented and unstable legal landscape, vulnerable to shifts in the Court's composition and judicial philosophy.
Legislators, by passing the responsibility to the courts, have been able to avoid the political repercussions of their positions on abortion, casting votes or making statements that signal their stance without having to bear the full weight of the consequences. This abdication of responsibility not only undermines the democratic process but also places an undue burden on the judiciary to fill legislative voids.
Moreover, when the public's dissatisfaction with decisions on reproductive rights bubbles over, the ire is often misdirected at the judiciary for its rulings. The true accountability for the absence of clear, stable reproductive rights legislation lies with Congress, which has shied away from its duty to legislate on one of the most divisive issues facing the nation.
A more productive approach, as suggested, would involve a renewed call to action for Congress to legislate on reproductive rights. By engaging in the legislative process — debating, drafting, and passing laws that reflect the will of the electorate — Congress can provide the legal clarity and stability that the issue of abortion rights demands.
Such legislative action would re-center the accountability for reproductive rights within the branch of government most directly answerable to the people.
Citizens wield their most direct influence over the laws that shape their lives through the ballot box, electing representatives with the political courage to translate the public will into legislative action.
The reliance on courts to fill the legislative void on contentious issues that Congress wants to avoid undermines this democratic process. Such reliance politicizes the judiciary into creating policy, a role it is neither Constitutionally designed for, nor equipped to handle effectively. This situation reflects a legislative abdication of duty, where the fear of political fallout paralyzes the action that adresses the will of the people.
This ruling stemmed from a case involving three couples whose frozen embryos were destroyed due to an accident at a storage facility. The couples filed wrongful death lawsuits, asserting that the embryos should be considered "extrauterine children." The court's decision was influenced by Alabama's 2018 constitutional amendment, which extended personhood rights to fetuses, thereby allowing the 1872 law that permits parents to sue for the wrongful death of a minor child to apply to all unborn children, irrespective of their location
In *Dobbs v. Jackson Women's Health Organization*, the United States Supreme Court explicitly held: "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives." This statement encapsulates the Court's decisive shift in abortion jurisprudence, emphasizing a return of legislative power over abortion laws to state governments and, by extension, to the electorae.