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White House debates declaring abortion access a ‘health emergency’

Many Biden aides believe such a declaration would be ineffective. But they face enormous pressure to show they are fighting for abortion rights every way they can.

Protesters gather at the White House earlier this month to pressure President Biden to take executive actions protecting abortion rights. (Astrid Riecken for The Washington Post)

White House officials are actively debating whether to formally declare abortion access a public health emergency, pitting the belief of many Biden advisers that such a move would be counterproductive against the overwhelming political pressure to show they are fighting hard for abortion rights.

Several top Biden aides have expressed internal reservations about declaring an emergency, saying it would give the administration little money and few new powers, according to a White House official and two people familiar with the conversations. And outside legal experts advising the administration have warned that an emergency declaration would face inevitable legal challenges, potentially giving conservative judges an opportunity to cut back on the administration’s emergency authority.

Chief of staff Ron Klain and senior adviser Anita Dunn are among those who do not see a compelling argument for the move, but Klain has told others he would be open to it if he can be persuaded it would allow the administration to do more, according to the three people, who spoke on the condition of anonymity to discuss internal deliberations.

Since the Supreme Court overturned Roe v. Wade last month, President Biden has faced enormous pressure from liberal activists and Democratic lawmakers to push his executive authority to the limit in protecting abortion access. Biden has been criticized for responding too tepidly to the ruling, though he has used more forceful rhetoric and issued a number of actions in recent days, issuing an executive order last week to safeguard access to abortion medication and emergency contraception.

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Biden has said repeatedly he believes the best way to protect reproductive rights is to elect more Democrats to Congress, so a federal law could be enacted legalizing abortion. But many Democrats are furious at the Supreme Court ruling and want to see the president hit back hard now.

A growing number of lawmakers have urged Biden to declare a public health emergency to signal how seriously he views the threat, and to potentially unlock new funding and authorities. More than 80 Democratic lawmakers on Tuesday signed a letter to Biden urging such a declaration. Sen. Elizabeth Warren (D-Mass.) and several reproductive rights groups, including Planned Parenthood and NARAL, have also called for the move.

“The administration should use all the emergency and disaster authorities and tools available to them, including immediately declaring a public health emergency,” Laurel Sakai, national director of public policy and government at Planned Parenthood Federation of America, said in a statement. “A crisis of this magnitude necessitates that all avenues are considered and explored as the administration continues to respond to the barrage of attacks on our reproductive freedom.”

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Biden on Sunday said he was debating whether to declare 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.

Public health emergency declarations officially come from the Health and Human Services secretary, Xavier Becerra. They are typically used to address disease outbreaks and weather disasters, enabling the HHS secretary to move around department funds more easily. During the coronavirus pandemic, the declaration also relaxed health-care rules in significant ways, for example making it easier for doctors to conduct telehealth appointments.

But it is far less clear how such a declaration would play out on an issue such as abortion, in part because the “emergency” may not end in the foreseeable future. Further complicating the issue is the Hyde Amendment, which prohibits the use of federal funds for abortion except if a pregnant person’s life is in danger or if the pregnancy resulted from rape or incest.

“The key for the president and our entire team is making a real difference, which is why we’re always continuing to explore a wide range of options, and a public health emergency,” a White House official, who spoke on the condition of anonymity to discuss internal deliberations, said in a statement. “There are limitations and drawbacks we’re all aware of, but the North Star for everyone is having the right impact, which is how we’re looking at every tool to protect women’s rights.”

Besides Klain and Dunn, others within the White House who have expressed concerns about the move include deputy chief of staff Jennifer O’Malley Dillon and Jennifer Klein, co-chair of the White House Gender Policy Council.

Still, a high-profile emergency declaration, announced defiantly by Biden, could help the White House politically by showing activists and lawmakers that it is pursuing every option available. Doctors and abortion advocates have argued that abortion bans and restrictions, enacted by Republican-led states across the country, will place millions of women in danger by cutting off access to lifesaving medical treatments, including for those experiencing miscarriages.

A public health emergency declaration for covid-19 has been in place for more than two years, tying up a large amount of emergency health funds. That means only tens of thousands of dollars would be available if the declaration were made for abortion, the White House official said. It also remains unclear to senior White House officials what kinds of new authorities the declaration would provide.

And the move would inevitably face legal challenges from Republican state attorneys general, likely ending up in front of the same Supreme Court justices who overturned the constitutional right to an abortion. Legal experts warn that the justices — or conservative lower-court judges — could end up curbing federal emergency powers in response to a public health emergency declaration for an issue such as abortion.

The Supreme Court has struck down significant parts of Biden’s covid-19 agenda, including a vaccine mandate for businesses with more than 100 employees. A conservative federal judge also overturned a federal mask mandate on public transportation, a ruling that health and legal experts warn may call into question the authority of the Centers for Disease Control and Prevention during a health crisis.

Even with all the complications, White House officials have not yet ruled it out an emergency declaration. They are still trying to determine whether there is a version of such a move that would let the administration take meaningful action, the White House official said.

While Biden officials want to implement every policy they can to protect abortion access, the official added, many on Biden’s team believe they have not yet heard a compelling case for the move.

That is not the view of liberal groups such as the Congressional Progressive Caucus, which held a virtual meeting with Becerra on Wednesday.

Rep. Judy Chu (D-Calif.), a member of the group, said she is among those who have been pushing for the White House to declare a public health emergency for abortion access, and that she directly asked Becerra about it during the meeting.

“I raised it with Secretary Becerra today, and the response is that they are looking into it,” Chu said. “They are looking at it more deeply, and I just hope that they come up with a positive declaration on this, because women in America are looking for something bold to protect them. And I think this would be a bold step.”

Rachel Roubein contributed to this report.