declare a public health emergency

 

Opinion

Biden must declare a public health emergency for abortion — immediately

By Nancy Northup

June 30, 2022 at 11:14 a.m. EDT

Abortion rights advocates demonstrate outside the U.S. Supreme Court on June 25. (Craig Hudson for The Washington Post)

Nancy Northup is president and chief executive of the Center for Reproductive Rights, a global legal organization that represented the last abortion clinic in Mississippi in the Supreme Court case Dobbs v. Jackson Women’s Health Organization.

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The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is not only the most damaging setback to the rights of women in our country’s history — it also creates a staggering public health emergency requiring swift and definitive action from all sectors, including the Biden administration.

Soon, abortion will be banned outright or severely limited in about half the states. Some lawmakers will seek to ban patient travel over state lines to receive abortion services, an astonishingly authoritarian and unconstitutional intrusion. In certain states, fear of civil and criminal liability might make hospitals and physicians wait until a miscarriage becomes septic before intervening, or might lead to dangerous delays in treatment for ectopic pregnancies. Across the country, people’s health and lives are at stake.

In his remarks following Friday’s ruling, President Biden said, “I will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision.”

It is in the Biden administration’s power to address this crisis immediately by declaring a public health emergency for abortion.

Such a declaration would give the Department of Health and Human Services power to help patients get vital abortion care wherever they live. Under the declaration, HHS can enable out-of-state prescribing and dispensing of medication abortion for those in states with abortion bans.

Abortion is now banned in these states. Others will follow.

Biden emphasized the importance of access to medications such as mifepristone, which has been approved by the Food and Drug Administration for more than 20 years as a safe and effective way to end early stage pregnancies. The president also directed the secretary of health and human services, Xavier Becerra, to work to make mifepristone as widely accessible as possible.

Mifepristone is permitted for use for up to 10 weeks of pregnancy, and most women having abortions choose it. The FDA has authorized its use via telemedicine. Currently, patients can receive the pills by mail in states where permitted by law and take them at home.

To ensure that medication abortion reaches even those in states that ban abortion outright, Becerra must declare a public health emergency under the Public Readiness and Emergency Preparedness Act. The Prep Act empowers the HHS secretary to issue a declaration that would shield providers, pharmacists, patients and others from liability for their involvement in providing medication abortion in hostile states.

The declaration would be based on the well-documented adverse health consequences of restricted access to abortion care, which include complications and maternal death associated with pregnancy, childbirth and unsafe abortion methods.

To address these harms, the declaration would supersede state abortion bans as applied to medication abortion, because the Prep Act allows for overriding any state law that frustrates the administration of a drug that mitigates the declared public health emergency.

This partial solution to the public health crisis would not require any federal funding or congressional authorization. HHS has the regulatory authority and should exercise it immediately.

This move will be crucial to protecting all who are pregnant, but especially those who already face heavy burdens of health, racial and economic inequality. Black women are nearly three times more likely to die of pregnancy complications than White women. The Centers for Disease Control and Prevention assesses that 2 out of 3 of these deaths are preventable. And the United States has a moral obligation to prevent them.

Reproductive health, rights and justice organizations are doing all we can to provide and support access to care in hostile and sanctuary states. Abortion funds are raising money and supporting pregnant people who must travel out of state. Companies are establishing policies to cover employees’ out-of-state travel for abortion care. States including New York, California, Oregon and Connecticut are strengthening their laws and policies to protect abortion providers and out-of-state patients coming for care. Lawyers throughout the country are lining up to represent those caught in the web of criminal abortion bans.

This will not be enough.

We need a national standard guaranteeing abortion access, which Biden rightly said Congress must legislate. But in the meantime, the administration must take the first step toward restoring national protections: Declare a public health emergency now and ensure that medication abortion is available across the nation.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.