The abortion crisis is about to become a “public health emergency” if the White House gets its way. The Biden administration is seriously considering invoking the president’s powers under the Public Readiness and Emergency Preparedness (PREP) Act to protect “doctors, pharmacies and others from liability for providing abortion pills to people across the country — even those who live in states that have outlawed or severely restricted the procedure,” according to Politico.
This is actually a far milder course of action than the abortion radicals want. They want nothing less than a declaration that abortion access itself is a public health emergency.
The White House has stressed repeatedly that it has little power to singlehandedly preserve abortion rights, arguing instead that the only way to restore Roe’s protections is to elect more Democrats to Congress, who could then pass legislation codifying a right to an abortion. What unilateral steps it has taken have been carefully calibrated and tempered by fears over the legal implications.
But the administration is under intense pressure from congressional Democrats and party activists to take more aggressive action in the interim — arguing that at the very least, it’s politically important for Biden to show he’s doing all he can to fight the court’s ruling.
After Democratic lawmakers and prominent reproductive rights groups coalesced earlier this month around a demand that the White House declare abortion access a public health emergency, Biden agreed to re-examine the idea. He also declared he would support waiving the Senate’s filibuster rules to allow for passage of legislation on abortion rights.
But even declaring an emergency over access to abortion pills is highly fraught and of dubious legality.
Related: Biden Will Sign Meaningless Executive Orders on Abortion After Massive Pressure by Democrats
Josh Blackman of The Volokh Conspiracy likens any executive order on abortion to the Biden administration’s fiasco in maintaining an eviction moratorium long after any “public health emergency” ended.
First, the Court already signaled in the eviction moratorium litigation that it would not allow the President to leverage “emergency” powers to accomplish controversial domestic policy goals. While the pandemic may credibly be called an emergency–at least in its early stages–the aftermath of Dobbs would not meet that standard. Indeed, almost a month has elapsed since Dobbs. Every day that passes, the case for an emergency fades.
Second, since the eviction moratorium case, the Court decided West Virginia v. EPA. This case seems to be yet another major question that should be resolved by Congress, and not the executive branch unilaterally. Really, is there any question that is more major than abortion!? The Dobbs case has fractured the nation–far more than some mundane climate change regulations. Has Congress ever even hinted that it would regulate abortion in this fashion?
Third, this proposed order is a transparent effort to flout Dobbs. I suspect even the Chief Justice would blanche at this stratagem.
Abortion pills accounted for about half of all abortions in the United States last year, according to the CDC. States are gearing up to ban their sale at pharmacies, but what about through the mail? The FDA and the USPS say states cannot interfere with lawful prescriptions or prevent mail from being delivered. This would appear to be the next battleground in the abortion fight as pro-life states seek to extend their bans.
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