President Joe Biden has said he is considering declaring a public health emergency over abortion, nearly a month after the Supreme Court majority voted to overturn Roe v. Wade – landmark legislation that established federal protections for women’s right to abortion.
The Center for Reproductive Rights told ABC News that implementing a public health emergency on abortion would be crucial for the Secretary of Health and Human Services to include in the plan Biden asked the Department of Health. create.
The CFRR said the emergency declaration would focus narrowly on abortion drugs, which are federally approved for pregnancies up to 10 weeks, allowing people to not have to cross state lines to have access to abortions.
Experts told ABC News it was unclear how the Biden administration planned to use a public health emergency or whether it would be able to use it to increase access to abortion or abortion services.
Experts and the CFRR agree that there are plenty of potential legal challenges the Biden administration could face in taking this step.
“It’s clear to me and to many experts that what we’re facing here is a real public health emergency. So I’m not concerned about the administration’s ability to declare a public health emergency here and to use his authority,” Katherine said. Gillespie, acting director of Senior Federal Policy Counsel at CFRR, told ABC News in an interview.
Gillespie added: “I think, unfortunately, we’re in a situation where any option that the administration, or even Congress for that matter, would take would be subject to legal challenge. But I think there the fact that there are some legal risks, that doesn’t mean the administration shouldn’t take this important step.”
In a statement to ABC News, the White House said the Biden-Harris administration will never stop fighting to protect access to abortion care.
What can a public health emergency do?
Declaring a public health emergency does two things: it frees up money from a range of funds earmarked specifically for health emergencies and it gives the administration, particularly the Secretary of Health and Human Services, a good authority to curtail and overrule rules or regulations. that exist under federal law, according to Georges Benjamin, executive director of the American Public Health Association.
But public health emergencies are temporary and only last 90 days. After this period, the administration could choose to renew.
The status of how many dollars are currently in those funds is unclear, according to several experts.
“We’ve already used all of these dollars for COVID and these are the same pots of money that one would use if a hurricane or tornado hit a community and you had to respond to other health emergencies,” Benjamin said.
“The administration has been actively trying to find money for next-gen COVID vaccines and next-gen drugs for COVID. So my understanding is that they’ve pretty much used up almost all of that money they had. that they could move,” he said. .
Lawrence Gostin, faculty director of the O’Neil Institute for National and Global Health Law at Georgetown Law, told ABC News that on the sidelines, under emergency law, health and social services could grant immunity to people who provide abortion services or abortion drugs.
However, this would likely face many legal challenges, as the power to decide who is allowed to practice medicine rests with the states, not the federal government.
“It would be very, very difficult to win this kind of case in court,” he said.
Gostin warned that the statement would “completely politicize public health.”
“The CDC and other public health agencies have already been battered and bruised by the COVID 19 pandemic and that would completely render them political bodies and public confidence in the CDC would further diminish,” Gostin added.
While he agrees that abortion has become a medical emergency and that the flurry of state laws limiting or prohibiting abortions will result in the deaths of hundreds of thousands of women every year, Gostin said it’s unlikely the statement does much.
“Emergency powers would do very little to help ordinary women in red states, it would free up very small amounts of funding and powers. And the downsides of litigation and loss of public trust and politicization of the public health are, I believe, a step too far,” Gostin said.
“And you can be sure that if President Biden declares an emergency on abortion access, then the next Republican incumbent, the Oval Office, will declare an emergency on fetuses and the right to life and the politicization of public health will be endless,” he added. .
Gostin said Biden will face quick and multiple legal challenges that could end up before the same conservative supermajority that unseated Roe.
There are three or four different statutes Biden could use to declare a public health emergency, all of which would be “on very vulnerable legal ground,” Gostin said.
While he supports any action that would expand abortion access, Benjamin said there are plenty of legal issues the administration would need to resolve before making that decision.
The practices of physicians prescribing drugs are regulated at the state level, but the federal government has, in the past, given physicians the authority to practice medicine across state lines under a federal umbrella. But states still need to validate that doctors are licensed providers under that umbrella, Benjamin said.
Benjamin said this could be at the forefront of abortion when it comes to telemedicine appointments across state lines.
“If I’m here in a state where abortion is legal, I’m doing a telemedicine visit with a patient in a state that was there as an abortion restriction. Do I practice across the borders of the state? Is it legal? Does it still relieve the patient of their legal liability?” Benjamin said.
Benjamin also said there was a risk that attorneys general would take this administration to court, as they did for the mask and vaccine mandates, which could result in losses for federal agencies.
He also pointed out that a judge once said the CDC doesn’t have the authority to require people to wear masks, which he thinks the agency has very clear authority to do.
“The courts are a real wild card here,” he said.
Benjamin said the administration could take steps to ensure insurance plans cannot deny patients coverage for abortions. Biden could also ensure that adequate coverage is available and that there is reimbursement for providers.
The administration could also ensure that providers under the federal umbrella, such as military providers, allow for a full range of reproductive services.