Biden Weighs Public Health Emergency For Abortion Access—Here’s What That Means

Topline

President Joe Biden said Sunday he has asked his staff to see if he “has the authority” to declare a public health emergency to address abortion access, a move that could release additional funding and give federal health officials more power to respond to state-level abortion restrictions, following calls from progressive Democrats to take sweeping action to protect abortion rights after the Supreme Court’s overturning of Roe v. Wade.

Key Facts

What We Don’t Know

Whether a public health emergency declaration would hold up in court. Emergency declarations normally stem from natural disasters, and the federal government could face impediments due to the Hyde amendment, which prohibits federal dollars from being used for abortions. Becerra told Bloomberg last week the Biden Administration must move more cautiously after the Supreme Court’s ruling. “Anything we do, we know we’re going to be in court the next day,” Becerra said. “And so we have to make it stick.”

Contra

The Congressional Black Caucus asked the White House to declare a public health emergency the morning of the Supreme Court ruling, and the House Pro-Choice Caucus is also urging the administration to move quickly, the Post reported. Reps. Cori Bush (D-Mo.) and Ayanna Pressley (D-Mass.), members of both caucuses, thanked Biden for taking action with his executive order Friday, but urged him to do more to protect abortion rights. “Now let’s build on this & declare a public health emergency,” Pressley said in a tweet. “Everything must be on the table.”

Chief Critic

Lawrence Gostin, a law professor at Georgetown University who specializes in public health law, told the Post declaring a public health emergency may be more of a symbolic move, because the federal government and Democratic states can take steps on their own without the declaration. “The juice isn’t worth the squeeze,” Gostin said. “You face huge legal and political headwinds and you gain very little, if anything, that you couldn’t do without the emergency.” He also warned against politicizing public health, though he told the Post he generally supports federal actions to preserve abortion access.

Key Background

The Supreme Court voted last month to overturn Roe v. Wade, which ensured a nationwide right to abortion, following an unprecedented leak of a draft ruling from the court. Several states banned abortion almost immediately after the decision was released, and more states are expected to restrict abortion. The White House has encouraged Americans to respond by voting in the next few elections, with Biden arguing that maintaining a Democratic majority in Congress is the only way to pass a federal abortion rights law. Biden also called on abortion rights protesters who have gathered outside of the White House to “keep protesting” and “keep making your point,” an approach he described Sunday as “critically important.”

Further Reading

Biden Issues Abortion Executive Order—But Doubles Down On Get-Out-The-Vote Message (Forbes)

Biden Says Voting ‘Only Way’ To Fix Roe V. Wade Ruling—But Here’s What Polls Indicate For Midterms (Forbes)