Biden could declare a public health emergency to expand abortion access, but it would face a tremendous legal fight

President Joe Biden is weighing whether to declare a public health emergency to expand access to abortion after the Supreme Court overturned Roe v. Wade, though some White House officials have said it’s not the best option to help women with unwanted pregnancies.

Biden told reporters on Sunday he asked U.S. health officials to look at whether the administration has the legal authority to declare a public health emergency to protect abortion access and what the impact would be if he used those emergency powers. Jen Klein, director of the White House Gender Policy Council, said the administration hasn’t used these powers because they wouldn’t bring much more legal or financial power to address abortion access.

“When we looked at the public health emergency, we learned a couple things. One is that it doesn’t free very many resources. It’s what’s in the public health emergency fund, and there’s very little money — tens of thousands of dollars in it,” Klein told reporters on Friday.  “So that didn’t seem like a great option. And it also doesn’t release a significant amount of legal authority. And so that’s why we haven’t taken that action.”

But the nation’s leading reproductive rights groups are calling for the White House to use every power at its disposal to defend access to abortion. In a statement to CNBC, Planned Parenthood said the Biden administration should immediately declare a public health emergency.

“We are in a national health crisis,” said Laurel Sakai, Planned Parenthood’s public policy head. “That’s why the administration should use all the emergency and disaster authorities and tools available to them, including immediately declaring a public health emergency.”

Pressure for the administration to do more is also building in Congress. More than 80 House Democrats, in a letter this week, called on Biden and Health and Human Services Secretary Xavier Becerra to use emergency public health powers to address what they called “a full-scale reproductive health crisis across our nation” that “threatens patients’ lives.”

An HHS spokesperson, when asked whether the agency is considering declaring a public health emergency for abortion, said the department is “exploring many options” and assessing “what’s possible, in consultation with leading experts at the department.”

James Hodge, one of the nation’s leading experts on public health law at Arizona State University, disagreed with White House officials, though he said there are legal and political risks in tapping emergency powers to protect abortion rights.

“There are real definitive legal things that could be triggered by that specific public health emergency declaration,” Hodge told CNBC.

The Center for Reproductive Rights said the administration should use its public health emergency powers to protect access to the abortion pill, mifepristone. The Food and Drug Administration approved mifepristone more than 20 years ago as a safe and effective way to end a pregnancy before the 10th week. In December, the FDA permanently allowed licensed pharmacists to prescribe and send the pills by mail.

Becerra could declare a public health emergency under the Public Health Service Act and then also activate the Public Readiness and Emergency Preparedness (PREP) Act, Hodge said. These are the two key emergency powers the federal government has used in the past to respond to the Covid-19 pandemic over the past two years.

Under the PREP Act, the HHS secretary can issue a declaration that a countermeasure — a drug, device or biological product — is needed to respond to “a disease or other health condition or other threat to health” that constitutes a public health emergency. The health secretary would define the countermeasure and the population that needs it. The federal declaration would preempt any state law that is in conflict with it and also provide liability protection for health care providers that administer the countermeasure.

In theory, Becerra could declare that the drastically reduced access to abortion in the wake of the high court’s ruling poses a threat to the lives of pregnant women. He could then identify the abortion pill, mifepristone, as the necessary countermeasure to address that threat. That would preempt state laws banning the pill, provide liability protection to pharmacists and physicians, and provide for a way for women in those states to maintain some access to medication abortions early on in their pregnancies.

The administration would immediately face litigation, which carries the risk that a federal court would block its efforts, Hodge said, but the White House would be free to appeal an injunction. The PREP Act, however, defines countermeasures as interventions that are under emergency use authorization by the FDA. Mifepristone has been a fully approved drug for more two decades, which means using the pill as a countermeasure might not hold up to judicial scrutiny.

HHS might have a stronger case if it defines another drug used in the abortion process, misoprostol, as a countermeasure. That drug hasn’t been formally approved by the FDA as a stand-alone abortion pill, so the agency could use its emergency powers to approve it for off-label use for early terminations, according to a memo by the Network for Public Health Law. Misoprostol is used in conjunction with mifepristone in the U.S. to induce contractions that end early pregnancies, but the World Health Organization has said misoprostol can be used on its own as a safe way to terminate an early pregnancy.

Declaring a public health emergency under the Public Health Service Act in conjunction with the PREP Act could also allow doctors in states where abortion is legal to prescribe the abortion pills across state lines. Although the FDA currently allows the abortion pill by mail, women in states that have banned the procedure do not have access to it through telemedicine unless they travel to a state where where abortion remains legal.

The patient’s physical location generally governs which state’s law applies in the context of telemedicine. In other words, a woman in Oklahoma currently can’t receive the abortion pill via telemedicine from a provider in a state where the procedure remains legal, such as Illinois.

“That would have an enormous impact because the reality is people in states that ban abortion are going to be seeking to get medication abortion, and it would be really important for them to be able to get it through telemedicine from other states,” Nancy Northup, CEO of the Center for Reproductive Rights, told reporters during a press call earlier this month.

Without a way for pregnant women living in states with abortion bans to receive the pill, many will likely turn to overseas providers. Aid Access, a telemedicine abortion provider in Europe, has said it will continue providing consultations and mailing pills to women in states with abortion bans.

There are also many foreign websites that mail the pills without prescriptions or consultations. The abortion rights group Plan C has tested pills from some of these websites and found they were real, but the drugs are not subject to FDA inspection and there’s no guarantee that every foreign website will always send genuine medication, which carries risks.

It is illegal to import medication from abroad for personal use, though individuals generally are not held liable. The FDA, in a statement to CNBC, said it “does not recommend purchasing mifepristone over the internet because it means patients are bypassing important safeguards designed to protect their health.”

Lawrence Gostin, an expert on health law at Georgetown University, said it would be a “grave mistake” for the Biden administration to declare a public health emergency over abortion access. Gostin said the Supreme Court ruling on Roe v. Wade that allowed states to ban abortion clearly amounts to a medical emergency that will result in the death of pregnant women.

But the legal risks of using emergency public health powers in the context of abortion are enormous, he said. There will be an avalanche of lawsuits and the case will likely end up before the same conservative majority that overturned Roe v. Wade, he said.

“There’s a risk that you’re inviting a conservative judiciary to curb public health emergency powers in the future. And so this action, while I’m very sympathetic to it, is fraught with risks. And the upsides are not considerable. The downsides can be catastrophic,” said Gostin, who has held discussions with the White House on using public health emergency powers for abortion.

It’s also likely that a conservative judge on a lower federal court might immediately block the implementation of such an emergency declaration, Gostin said, which would negate any real impact in terms of expanding abortion access.

Declaring a public health emergency for abortion would also thrust the nation’s health agencies, already battered and demoralized by the politicization of Covid-19, into the center of the nation’s culture war over abortion and further polarize public health along political lines, he said.

“The bottom line is that if Biden does this, the next Republican incumbent to the Oval Office is just as likely to declare an emergency for the right to life and fetal life. It’s an endless political football,” Gostin said.

But Hodge said the legal risks shouldn’t stop the federal government from “pushing the boundaries of its emergency powers against the backdrop of sure, definitive implications for morbidity and mortality for women who are pregnant across the United States.”

Gostin said the PREP Act is the most promising of the emergency powers on the table and he believes the administration is seriously considering using it.

There are also measures the federal government can take short of declaring a public health emergency, Hodge said. Becerra does have the discretion to deploy federal medical teams to help support abortion clinics and other health care providers that are expecting a surge of patients from states that have banned the procedure, Hodge said.

Although these teams wouldn’t perform abortions due to the Hyde Amendment, they could help provide other reproductive health services to alleviate the pressure on personnel at overwhelmed clinics, Hodge said. The Hyde Amendment restricts federal money for abortion.

“It actually depends on the discretion of Secretary Becerra,” Hodge said. “If he determines that he’s got emergency circumstances, he doesn’t have to declare it a public health emergency. He can implement those disaster teams and federal medical corps to help respond.”

While the Hyde amendment restricts federal money from paying for abortion as a procedure, the White House could provide financial assistance and guidance to women who are travelling to states where abortion remains legal to receive the procedure, according to Rachel Rebouche, an expert on reproductive health law at Temple University. Rebouche and other legal experts laid out Biden’s options to respond to the overturning of Roe in a recent article in Slate.

The Justice Department could also potentially sue states banning medication abortion in federal court, arguing the FDA’s approval of mifepristone preempts the bans, Rebouche said. But the idea is novel and hasn’t been tested in court, she said.

GenBioPro, which makes a generic version of mifepristone, sued Mississippi’s health secretary in 2020 over state restrictions on how the medication is dispensed and administered. The company argued that the FDA’s approval of mifepristone as a safe and effective drug preempts state law. Mississippi has asked the court to dismiss the case in the wake of the high court decision, but the GenBioPro is amending its complaint in an effort to proceed with the litigation.

Rebouche said HHS could also file an amicus brief in the court strongly supporting GenBioPro’s case by clearly arguing that the FDA’s congressionally authorized power as a federal agency preempts state laws that seek to restrict mifepristone’s use.

Attorney General Merrick Garland, in a statement after the abortion access ruling, said states cannot ban mifepristone because they disagree with the FDA’s judgment that it is a safe and effective drug. The Justice Department announced a reproductive rights task force this week and said it will take enforcement actions against states that ban the abortion pill on this basis.

But it’s still not clear what form enforcement will take. Most states that immediately banned the administration or prescription of abortion pills after the ruling have done so on the basis that they terminate pregnancies, not over questions about the pill’s safety or efficacy.

The Justice Department also has said it will protect the right of women to travel to receive an abortion in states where the procedure remains legal.

Last week, Biden signed an executive order directing HHS to issue a report in 30 days on what actions it will take to protect access to medication abortions. The HHS Office for Civil Rights on Wednesday warned retail pharmacies that refusing to prescribe medication used in abortions might violate federal civil rights law in certain circumstances.

On Monday, Becerra told health care providers that under federal law they must provide abortions in medical emergencies where it is necessary to protect the patient’s life. Hospitals that do not provide abortions in medical emergencies could have their Medicare provider agreements terminated and face financial penalties, Becerra said. Texas has already asked a federal court to block the requirement.

The president has repeatedly said electing more members of Congress who support abortion rights during the November midterms is the only way to truly protect the rights that Roe guaranteed for 50 years across the nation. Democrats in the evenly divided Senate do not have the votes to pass such a law right now due to the filibuster rule, which requires 60 lawmakers to end debate and force a final vote on legislation.

Biden recently backed making an exception to the filibuster rule to pass abortion rights legislation, but conservative Democratic Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia are opposed to weakening the 60-vote threshold.

The midterms are in 116 days and the political winds have been blowing against Democrats maintaining even their narrow majorities in both chambers of Congress. Generic polls generally favor the Republicans capturing at least the House, while the Senate is currently viewed as a tossup. Hodge said the public health crisis created by the end of Roe v. Wade is only going to build in the run-up to the midterms as well as the pressure for the administration do more.

“We’re going to be in a very different emergency threat scenario than what we even perceive at this moment in time,” Hodge said. There are risks to using emergency public health powers for abortion, “but the benefits and potential options are also there. And they’re literally trying to weigh them, I think,” Hodge said of the administration’s response.