Several Democratic lawmakers, including Sen. Elizabeth Warren (D-Mass.), have called on Biden in recent days to declare a public health emergency to signal the seriousness with which the administration views the overturning of abortion rights and the impact it will have on women across the country. The letter from 81 Democratic lawmakers further adds to the pressure Biden has been facing from his party to mount a more fulsome response to conservative rollbacks and to channel the anger and fear that millions of women are feeling.
Doctors and abortion rights advocates have warned that bans on the procedure and on the abortion pill will create a health crisis for millions, including those seeking care for miscarriages. Biden signed an executive order last week to safeguard access to abortion medication and emergency contraception.
“Abortion bans can unnecessarily impede lifesaving medical procedures in the event of pregnancy complications or loss. Health experts warn that in the aftermath of this disastrous ruling, the U.S. maternal mortality rate — which is already the highest in the developed world — is certain to rise, with disproportionate impacts on communities of color,” the lawmakers wrote.
Biden on Sunday said he was weighing whether to consider declaring abortion access a public health emergency. “That’s something I’ve asked the … medical people in the administration to look at, whether … I have the authority to do that and what impact that would have,” Biden said when asked about the declaration.
But some in his administration have expressed reservations about such a step, arguing it would not unlock significant new funds or authorities nor have a significant impact on abortion access for women who live in states that have restricted or banned the procedure. Other officials, including within HHS, have supported the step because it would signal that the White House takes the issue seriously and could help the president politically.
Some legal experts cast doubt on whether a declaration of national emergency and public health emergency would make a significant difference in what the administration could do. They also note that an emergency must end at some point and that, without congressional legislation, there is no end in sight.
The declarations could unlock new funds, but how those funds would be distributed or used remains unclear. But such a step would almost certainly be legally challenged by Republican attorneys general and could end up facing the same Supreme Court justices who voted to strike down Roe v. Wade, said Lawrence Gostin, a professor of medicine at Georgetown University and faculty director of its Institute for National and Global Health Law.
“I think [advocates] overstate the kinds of funding and power it would unleash, and that there would be enormous adverse consequences to doing it,” Gostin said. “It invites the courts to actually limit the use of emergency powers even in a genuine emergency. … The legal side is full of peril for the administration.”
A national emergency declaration, under the Stafford Act, is typically used in response to natural disasters, such as floods or hurricanes, and is administered by the Federal Emergency Management Agency. Both the Trump and Biden administrations also used it for the coronavirus pandemic, but the declaration has not been used for a longstanding health-care challenge like abortion. Legal experts have questioned its efficacy in addressing abortion access.
A public health emergency declaration, issued by the Health and Human Services secretary, could provide new funding, but its impact on policy is unclear.
HHS issued updated guidance on Monday making clear that federal law trumps state abortion bans and protects clinicians’ judgment when administering treatment, including in terminating a pregnancy if doing so is necessary to stabilize a patient in an emergency situation.
Lawmakers applauded Biden’s executive order but said the administration’s work was not over yet.
“The president’s executive order was a good place to start, but not a good place to stop,” Fletcher said. “To respond effectively, we need to use every tool available to protect patients and health-care providers, and declaring a public health emergency provides valuable tools.”