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Biden Administration considers declaring a Public Health Emergency on abortion as a way of freeing up federal money

by | Jan 31, 2023

By Dave Andrusko

Xavier Becerra, the pro-abortion Secretary of Health and Human Services, gave an interview Monday to Oriana Gonzalez of Axios which suggested (as the headline to her story reads) “The Biden administration is weighing a plan to declare a public health emergency that would free up resources to help people access abortions.”

This is the latest signal that the Biden Administration is willing to take actions which have scant legal authority. But that is par for the course.

Gonzalez writes

Both abortion rights advocates and Democratic lawmakers have urged the Department of Health and Human Services and President Biden to take such a step in response to the overturning of Roe v. Wade, which they say has created a “full-scale reproductive health crisis” across the U.S.

The lawmakers argued that such a move would allow the administration to help support states that protect abortion, deploy Public Health Services Corps teams and give the government “the ability to accelerate access to new medications authorized for abortion.”

This represents a turnabout from last July on the question of declaring a public health emergency when at a press briefing Jen Klein, the Director of the White House Gender Policy Council, said

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.  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 yet. 

But, Gonzalez wrote, “HHS has the authority when the secretary determines that a ‘disease or disorder presents a public health emergency.’ The designation has been broadly used to respond to natural disasters, the opioid crisis, as well as diseases like the coronavirus, per a report from the Network for Public Health Law.”

 Gonzales goes on to note

An emergency declaration “would potentially make it easier for people who need to travel out-of-state to get abortions or to get abortion medication. It would make available funding that wouldn’t otherwise be there to address those unmet needs,” said Mary Ziegler, a professor of law the University of California, Davis, who specializes in abortion issues.

But, as Ziegler added, such a declaration would be immediately challenged in court. “It would be hard to imagine a federal court challenge to that … ending well for the administration, but by the same token, it might have some value in the short term,” Ziegler told Axios. The strategy of delay–taking an action unilaterally and fighting it out in court for months or years—is customary for the Biden Administration.

Categories: Joe Biden