In a Washington Post opinion editorial on June 30, CEO of the Center for Reproductive Rights Nancy Northup called on the Biden administration to declare a public health emergency for abortion in response to the Supreme Court’s Dobbs opinion overturning Roe v. Wade. Northup argued that a public health emergency declaration would allow the U.S. Department of Health and Human Services (HHS) to help patients obtain abortion care, as well as enable out-of-state prescribing and dispensing of medication abortion in states banning abortion.
On July 8, the Biden administration issued an executive order to expand access to abortion healthcare, which Texas immediately challenged in court—but the president has not yet declared a public health emergency.
The Network for Public Health Law has issued a report laying out the U.S. government’s powers to address public health emergencies under several federal laws, including the Public Readiness and Emergency Preparedness Act (the PREP Act), which provides federal preemption of state laws and immunity from lawsuits for those acting to address a declared public health emergency.
Ms. spoke with leading reproductive health law scholar and Temple law professor Rachel Rebouché about the strengths and limitations of a public health emergency declaration for increasing access to abortion healthcare.
Carrie Baker: Would a public health emergency declaration allow for concrete steps to protect abortion access?
Rebouché: The PREP Act is targeted at countermeasures for pandemics and epidemics. Countermeasures are defined under the statute to include, for instance, drugs that help mitigate or treat the effects of an epidemic or pandemic. The idea is that when there’s a public emergency and a communicable disease, you want to be able to deploy things like vaccines quickly. In order to do that, the act shields providers who are delivering these medicines from liability and it preempts state laws that would contradict this work.
Baker: How would this apply to abortion?
Rebouché: The argument is that medication abortion would be a countermeasure needed to mitigate the effects of a health crisis resulting from abortion bans. Providers offering medication abortion as a countermeasure could be shielded from liability and states would be preempted from applying their own laws to the actions of these providers working under a public health emergency. That’s a very tangible way in which abortion access could be shaped by a public health emergency.
Rachel Rebouché
We’re moving from a place of assuming the federal government can do nothing, to the realization that the federal government can do something.
Rachel Rebouché
Baker: Do you think these abortion bans are causing an epidemic or pandemic under the terms of the PREP Act?
Rebouché: The PREP Act doesn’t define an epidemic or pandemic. There’s certainly the argument that the health consequences of unintended pregnancy, such as high maternal mortality and morbidity rates, are a public health crisis. But the PREP Act has only been applied to communicable diseases. While the health consequences of abortion bans are really dire, the PREP Act was designed to target infectious diseases, such as COVID and Zika.
I worry that this would ultimately go before a court to decide if this was the appropriate use of the act, or whether the president and HHS had exceeded their powers. Courts could decide as a matter of statutory interpretation that these abortion medications are not countermeasures and that this is not an epidemic or pandemic.
The other risk is if this gets in front the Supreme Court and they decide to narrow or to block HHS from declaring public emergencies or deploying certain powers. That could have really bad effects for future epidemics—although the Supreme Court might do that anyway. And there are also costs, of course, to a decision by HHS not to intervene.
Baker: Wouldn’t it take a while to get through the courts, so it could be an interim measure to protect people in the meantime, and then folks could be working on other strategies?
Rebouché: It would probably be immediately challenged. Depending on what the court says, you could have a federal court enjoining the declaration quickly. It could last, but it could also be halted pretty quickly by a court. If it’s enjoined while litigation is pending, then that’s the status quo.
Baker: Should we just throw everything against the wall and see what sticks? Is it too much of a far-fetched argument with too much of a possible downside in that a narrow interpretation could hobble future efforts to deal with other kinds of pandemics?
Rebouché: I think the real question is whether there is relief that a public health emergency could provide that something else like an executive order cannot. I guess there’s reason to believe that that’s true, with preempting state laws and shielding providers from liability, but it’s a temporary fix because these laws are written with the idea that the emergency will end and that there’s a sunsetting to these countermeasures. Alternatively, could we get medication abortion through a straight-out preemption argument?
Should we just throw everything against the wall and see what sticks?
Carrie Baker
Baker: Would that protect providers from liability?
Rebouché: It would because if state laws banning medication abortion are preempted, then states shouldn’t be able to punish providers because they’re providing a legal service under federal law. The power of the preemption argument would be that Congress’s intent was to ensure uniformity and a drug’s safety and efficacy. This is an unsettled area of law because states don’t typically ban FDA-approved drugs. By banning an FDA-approved drug, you’re essentially undoing the years and decades of research that the FDA invested to put that drug on the market.
Baker: With Dobbs, the abortion pill makers GenBioPro and Danko will be unable to sell their pills in half the country. Can they sue?
Rebouché: Yes, they have standing to sue. GenBioPro already has a lawsuit in Mississippi.
Baker: So of the two arguments, the PREP Act argument versus the preemption argument, which do you think is stronger?
Rebouché: Both have risks and costs, both could have long-term effects, but both could make meaningful interventions. There are only so many tools in the toolbox. And maybe some of them are going to be sharper or better than others. But it’s not clear to me that we can say which one is the better tool until we see what the real-world effects of using them are.
I think that there are risks to how courts might interpret preemption or public health emergencies, but we’re moving from a place of assuming the federal government can do nothing, to the realization that the federal government can do something. It’s just not necessarily measures that have been tested.
I worry that this would ultimately go before a court to decide if this was the appropriate use of the act, or whether the president and HHS had exceeded their powers.
Rachel Rebouché
Baker: For years, anti-abortion politicians passed laws that were clearly in violation of Roe and courts blocked most of them. Maybe we need a similar strategy—just try it all?
Rebouché: The Texas bounty hunter law, S.B. 8, stood. And now that is actually going to be the enforcement mechanism that Texas will use again to evade federal oversight of future anti-abortion measures.
Baker: Why do you think the Biden administration has not declared a public health emergency?
Rebouché: I think it’s because they worry the second they do it, a court will enjoin it with terrible language not just about what agencies can do, but what Biden can do, and what the executive can do. And we are not out of our current pandemic.
But nothing is going to change without intervention. We don’t have a statute. We don’t have constitutional protection. But the federal government is not powerless on the issue of abortion, and so what are the tools at its disposal? This might be an effective tool.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.
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