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Biden is weighing a public health emergency over abortion, but experts are skeptical

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(WASHINGTON) — President Joe Biden has said he is looking into 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 a woman’s right to abortion.

The Center for Reproductive Rights told ABC News that implementing a public health emergency over abortion would be crucial for the secretary of Health and Human Services to include in the plan Biden directed the department to create.

The CFRR said the emergency declaration would narrowly focus on abortion medication, which is approved at the federal level for pregnancies up to 10 weeks, allowing people to not have to travel across state lines to get access to abortions.

Experts told ABC News it is unclear how the Biden administration plans on using a public health emergency or whether they would be able to use it to increase access to abortion or abortion services.

Experts and the CFRR agree that there are a lot of potential legal challenges the Biden administration could face in taking this action.

“It’s clear to me and to a lot of experts, that what we are facing here is a true public health emergency. So I’m not worried about the ability of the administration to declare a public health emergency here and use authority,” Katherine Gillespie, acting director of the Senior Federal Policy Counsel at the CFRR told ABC News in an interview.

Gillespie added: “I think, unfortunately, we are we are in a situation where any option that the administration, or even Congress for that matter, would take will be subject to some legal challenge. But I think that there, the fact that there’s some legal risk, it doesn’t mean that the administration shouldn’t take this important action.”

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 appropriated specifically for health emergencies and it gives the administration, particularly the secretary of Health and Human Services, a fair amount of authority to shorten and wave 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, lasting just 90 days. After that period is over, the administration could choose to renew.

The status of how many dollars are currently in those funds is unclear, according to several experts.

“We have been using all those dollars already for COVID and those are the same pots of money that one would use, should a hurricane or tornado hit a community and you had to respond for other health emergencies,” Benjamin said.

“The administration has been actively trying to find money for the next generation COVID vaccines and next generation medications for COVID. So, my understanding is that they pretty much have scoured almost all that money that they had that they can move around,” he said.

Lawrence Gostin, the faculty director of the O’Neil Institute for National and Global Health Law at Georgetown Law, told ABC News that, on the margins, under one emergency statute, Health and Human Services could provide immunity to people who provide abortion services or abortion medications.

However, this would likely face many legal challenges as the authority to decide who is licensed to practice medicine lies with states, not the federal government.

“It would be very, very hard to win that kind of case in court,” he said.

Gostin warned that the declaration would “utterly politicize public health.”

“The CDC and other public health agencies have already been battered and bruised from the COVID 19 pandemic and this would utterly make them political bodies and public trust in the CDC would go even lower,” Gostin added.

Even though he agrees that abortion has become a medical emergency, and the avalanche of state laws limiting or banning abortions will result in hundreds of thousands of women dying every year, Gostin said it is unlikely the declaration would do much.

“Emergency powers would do very little to help ordinary women in red states, it would unleash very low amounts of funding and powers. And the downsides of litigation and of loss of public trust and politicizing public health is, I believe, a step too far,” Gostin said.

“And you can be sure that if President Biden declares an emergency over abortion access, then the next Republican incumbent the Oval Office, will declare an emergency for fetuses and the right to life and the politicization of public health will be endless,” he added.

Legal Challenges

Gostin said Biden would face rapid and multiple legal challenges that could end up before the same conservative supermajority that overturned Roe.

There are three or four different statutes that Biden could use to declare a public health emergency, all of which would be “on very vulnerable legal ground,” Gostin said.

Despite supporting any action that would expand access to abortion, Benjamin said there are a lot of legal issues that the administration would need to address before they make this move.

Medication-prescribing physician practices 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 have to validate that physicians are authorized providers under that umbrella, Benjamin said.

Benjamin said this could come to the forefront of abortion when it comes to telemedicine appointments across state lines.

“If I’m up here in a state where abortion is legal, I do a telemedicine visit with a patient in a state that were there as abortion restriction. Am I practicing across state lines? Is it legal? Does that still relieve the patient of their legal liability?” Benjamin said.

Benjamin also said there is a risk of attorneys general taking that administration to court, as they have done for mask and vaccine mandates, which could deal federal agencies losses.

He also highlighted that a judge has already said that the CDC does not 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 wildcard here,” he said.

Benjamin said the administration could take action to make sure that insurance plans cannot deny patients coverage for abortions. Biden could also make sure that adequate coverage is available and that there is reimbursement for providers.

The administration could also make sure that providers under the federal umbrella, like military providers, allow for a full range of reproductive services.

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