President Joe Biden said Sunday that his administration is considering declaring a “public health emergency” regarding abortion access after the Supreme Court overturned Roe v. Wade last month.
“I don’t have the authority to say that we’re going to reinstate Roe v. Wade as the law of the land,” Biden said to reporters during a stop on a bike ride near his family’s Delaware beach house.
The president added that he had asked White House staffers to determine “whether [he has] the authority” to issue a public health emergency for abortion access and what the impacts might entail.
“Keep protesting. Keep making your point. It’s critically important. We can do a lot of things to accommodate the rights of women,” the president continued. “My ultimate goal is to reinstate Roe v. Wade as a national law by passing it through the United States Congress, and I’ll sign it the moment that happens.”
Biden’s comment came after he issued an executive order on July 8 to “protect access to reproductive health care services.”
Also on July 8, the executive director of the White House Gender Policy Council, Jen Klein, downplayed the feasibility of a public health emergency related to abortion access.
“When we looked at the public health emergency, we learned a couple of things. One is that it doesn’t free very many resources. It’s what’s in a public health emergency fund, and there’s very little money, tens of thousands of dollars in it. So that didn’t seem like a great option. And it also doesn’t release [a] significant amount of legal authority,” Klein said at a White House press briefing.
Legal experts also doubt whether a public health emergency declaration would make a significant difference.
The declaration would almost certainly be legally challenged by Republican attorneys general, and the case could reach the same Supreme Court that voted to strike down Roe v. Wade, said Lawrence Gostin, a professor of medicine at Georgetown University and the faculty director of its Institute for National and Global Health Law.
“I think [advocates] overstate the kinds of funding and power it would unleash, and that there would be enormous adverse consequences to doing it,” Gostin said. “It invites the courts to actually limit the use of emergency powers even in a genuine emergency. … The legal side is full of peril for the administration.”
On Tuesday, 83 Democratic lawmakers signed a letter to President Biden and Health and Human Services Secretary Xavier Becerra, urging the administration to declare a public health emergency and issue a national emergency declaration. U.S. Reps. from Texas, Lizzie Fletcher (Houston) and Lloyd Doggett (Austin), were the chief authors of the letter.
“The Supreme Court’s radical and dangerous decision in Dobbs v. Jackson Women’s Health Organization has precipitated a full-scale reproductive health crisis across our nation,” the lawmakers wrote. “It has also plunged our health system into a state of uncertainty and upheaval that threatens patients’ lives.”
In the court’s majority opinion, Justice Samuel Alito wrote that the “Constitution makes no reference to abortion.” He argued that only state legislatures should have the power to regulate the procedure.
“No such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment,” Alito wrote. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'”
“The right to abortion does not fall within this category,” Alito concluded.
Jonathan Covey, Director of Policy for Texas Values, criticized the Biden administration’s consideration of declaring a public health emergency related to abortion.
“While President Biden is working on ways to kill babies, we are looking for ways to help families and pregnant mothers by preserving the culture of life,” Covey said in an email to The Dallas Express. “We support pregnancy resource centers and the vital work they do, as well as life-affirming alternatives such as adoption.”