Lawrence O. Gostin is a professor and faculty director of the O’Neill Institute for National & Global Health Law at Georgetown Law, director of the World Health Organization Collaborating Center on Public Health Law & Human Rights and author of “Global Health Security.” James G. Hodge is a professor of law and director of the Center for Public Health Law & Policy at the Sandra Day O’Connor College of Law at Arizona State University.
In the wake of the Supreme Court decision to roll back federal constitutional protections for abortion rights, anxious Americans have turned to the executive branch for remedies. With more than half the states instituting abortion restrictions, the Democratic base is publicly pushing President Biden to unlock “critical resources and authority” to meet the demand for reproductive services. On Sunday, Biden said he is weighing whether to declare abortion access a public health emergency, and on Tuesday, more than 80 Democratic House members signed a letter urging him to do just that.
We have no doubt that this ruling constitutes a public health emergency. With well over 6 million pregnancies in the United States every year, including more than 1 million abortions, it affects the health of a huge swath of Americans. Pregnancy brings with it substantial risks, including conditions such as ectopic or nonviable pregnancies that are routinely treated with abortion to avoid harm to a woman’s health or life. It is plausible that maternal deaths could increase by tens of thousands in a post-Roe v. Wade America. And 1 in 8 pregnancies ends in miscarriage, which is managed in ways often indistinguishable from abortion, placing women who miscarry at great risk, too.
The Biden administration should acknowledge, document and act on these risks. And yet, we believe an emergency declaration could be a grave error.
An emergency declaration for abortion access would face formidable legal challenges, potentially tying the administration up in court for months. A single federal judge could enjoin it, pending endless appeals. Eventually, the declaration would almost certainly end up being heard by the same six conservative justices who decided Dobbs v. Jackson Women’s Health Organization. The administration could yet again find itself on the losing side of a high-stakes legal challenge — this time, one that would also give the courts the opportunity to curb emergency powers during a future pandemic.
Even more consequential is the impact on public health agencies. Declaring abortion access a health emergency would further politicize these agencies, which have been battered and demoralized during the coronavirus pandemic. The field would then be entangled in three of the most politically divisive issues in the American culture wars: covid-19 mandates, immigration (via Title 42) and, now, abortion.
Finally, emergencies, such as a major infectious disease epidemic, are supposed to end. Poor health outcomes for pregnant women who lack abortion access won’t be resolved without an act of Congress or reconsideration by the Supreme Court. Neither is projected for the foreseeable future.
If the Biden administration does want to proceed with declaring an emergency, various methods carry their own challenges. There are three different kinds of emergency declarations the White House is likely weighing.
First, Health and Human Services Secretary Xavier Becerra could declare a public health emergency under Section 319 of the Public Health Service Act (PHSA). (Yes, the same law that embroiled the administration in litigation over the transit mask mandate and Title 42 immigration exclusions.) That law, however, is meant to apply for “a disease or disorder” causing an emergency, specifically an infectious disease or bioterrorism attack. It is unclear what “surveillance, resources, or federal contracts” the administration would use, even if the courts allowed the emergency to stand. Covid-19 was the easiest case for a PHSA declaration. Abortion access is the hardest.
Second, Becerra could issue a declaration under the Public Readiness and Emergency Preparedness Act, or PREP Act, to extend liability protections to entities and individuals who manufacture, distribute, or administer covered “medical countermeasures.” In March 2020, during the Trump administration, the office of the secretary issued a PREP Act declaration for coronavirus drugs and vaccines. The HHS claim that abortion medications or other procedures are medical “countermeasures” under the PREP Act would be a heavy lift in the courts. Still, of all the options, a PREP declaration would be the most promising.
Third, the president could declare an emergency under the Stafford Act, which would release disaster assistance to states, tribes, cities and nonprofit organizations. That relief is administered under the Federal Emergency Management Agency, and was clearly intended for natural disasters such as hurricanes, tornadoes, and earthquakes. While Stafford Act emergencies are diverse, Congress couldn’t have had in mind assisting blue states like California, New York, and Illinois in coping with the health-care surge as desperate women pour across state lines.
Progressives are right in thinking that abortion access in a post-Roe world is a medical emergency. The action by the Supreme Court’s conservative supermajority will surely cause a major increase in maternal mortality, especially among the nation’s poorest and most vulnerable women — disproportionately women of color. Maybe the pitfalls would be worth it if it could save thousands of lives. But a declaration that unleashed funding and powers of unclear extent, for what could be a brief duration because of judicial interventions, could have more downsides than advantages.
Finally, if you’re wondering why an emergency declaration might be counterproductive, consider this. If the next incumbent of the Oval Office is a Republican, it’s just as likely the president could declare an emergency for the so-called right to life. For those who care about the lives and safety of Americans, that shows how deeply destructive the politicization of public health can be.
Roe v. Wade and abortion access in America
In June 2022 the Supreme Court struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.
What happens now? The legality of abortion is left to individual states. The Post is tracking states where abortion is banned or under threat, as well as Democratic-dominated states that moved to protect abortion rights enshrined in Roe v. Wade.
Abortion pills: Abortion advocates are concerned a Texas judge’s upcoming abortion pill ruling could halt over half the legal abortions carried out nationwide. Here’s how the ruling could impact access to the abortion pill mifepristone.
Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women, who were and seeking abortions while living in states with strict abortion bans shared also shared their experience with The Post through calls, text messages and other documentation that supported their accounts. Here are photos and stories from across America since the reversal of Roe v. Wade.