Biden could declare a public health emergency for access to abortion

WASHINGTON, DC - JULY 11: US President Joe Biden delivers remarks at an event celebrating the bipartisan Safer Communities Act on the South Lawn of the White House on July 11, 2022 in Washington, DC.  Calling for a new law

Following President Joe Biden’s July 8 executive order on abortion rights, he is now considering declaring a public health emergency in an effort to free up federal resources to promote abortion access. But what does that really mean if Biden goes through with it?

Jen Klein, director of the White House Gender Policy Council, told reporters that declaring a public health emergency “doesn’t seem like a great option,” according to CBS News. But Biden asked officials “to consider whether I have the authority to do that and what impact it would have.”

Below is a summary of what declaring a public health emergency could mean for the fight for reproductive rights.

What is a public health emergency?

Historically, a public health emergency (PHE) has been declared in response to an infectious disease outbreak or bioterrorism attack, according to the US Department of Health and Human Services. Once declared, PHEs provide the Department of Health and Human Services with the additional funding necessary to respond to the ongoing crisis.

How could declaring a public health emergency affect?

When a PHE is declared, the administration can access emergency funds allocated for the immediate needs of the crisis, including the Public Health Emergency Fund. Outside of funding, Article 319 of the Law on Public Health Service works limits the liability of certain health care providers — but only to the extent permitted by the laws of the state in which the care is provided.

If a PHE is declared, specifically under the Public Preparedness and Emergency Preparedness (Prep) Act, “it authorizes the Secretary of HHS to issue a declaration that would protect providers, pharmacists, patients and others from liability for their participation in providing medication abortions in hostile states,” according to a Washington Post article written by Nancy Northup, president of the Center for Reproductive Rights. That means medical abortion would still be available to pregnant women in states where abortion is illegal.

So why hasn’t Biden already declared PHE to be pro-abortion? The administration reportedly considered doing so immediately after Roe v. Wade was overturned, but “shelved the idea out of concern that the impact would not justify the inevitable legal battle,” according to Bloomberg. Klein said at a press briefing that he has very little money — tens of thousands of dollars in the PHE fund — and declaring PHE “also doesn’t release a significant amount of statutory authority. And that’s why we haven’t taken that action yet.”

Has this been done before?

Similar efforts were made to address prejudice in the summer of 2020. In July of that year, CDC employees wrote a letter to the federal agency to declare racism a public health crisis. And in response to protests following the killing of George Floyd, the American Public Health Association (APHA) released an analysis on declaring racism a public health crisis.

While declaring a public health crisis does not guarantee access to emergency funding of the kind provided by PHE, the gesture can still have an impact, APHA said. “While the resolutions and formal statements themselves are not necessarily legally enforceable, they are an important first step,” says APHA. “Shifting the narrative in a way that can lead to changes in policies, laws and resource allocation.”

What else has the Biden administration done to defend reproductive rights?

Biden signed an executive order protecting access to reproductive health services, but the order does not prevent the 50 states from setting their own abortion policies. However, it does ask the secretary of Health and Human Services to submit a report to the president with plans to protect against medication abortions, ensure emergency medical care and protect access to contraception, among other things. The attorney general and White House counsel were also asked to work with “private pro bono attorneys, bar associations, and public interest organizations to foster strong legal advocacy for patients, providers, and third parties who lawfully seek or offer reproductive health care services throughout Earth.” The order also calls on the Federal Trade Commission to examine data privacy for those seeking information about reproductive health services.

A Biden declaration of a public health emergency would further emphasize that the recent reversal of Roe v. Wade is an attack on the health and well-being of more than half of the U.S. population—especially those in low-income, rural, and other underserved communities.

In a statement in the July 8 briefing room, he concluded, “Protecting and defending reproductive rights … is critical to justice, equality, and our health, safety, and progress as a nation.”

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