WASHINGTON, D.C. (LifeSiteNews) — Health and Human Services Secretary Xavier Becerra told Axios Monday that he was considering the possibility of declaring a public health emergency to promote access to abortions.
According to Becerra, declaring a public health emergency is only one of the options that the Biden administration is looking at. “There are discussions on a wide range of measures … that we can take to try to protect people’s rights,” Becerra told the outlet.
“There are certain criteria that you look for to be able to declare a public health emergency. That’s typically done by scientists and those that are professionals in those fields who will tell us whether we are in a state of emergency and based on that, I have the ability to make a declaration,” he said.
Becerra also noted that the Department of Health and Human Services (HHS) has yet to complete a full assessment of a declaration, its conditions, or whether the declaration would be merited. The assessment is ongoing.
Should the HHS declare a public health emergency for abortion access, the declaration would potentially shield abortion providers from liability, according to Rachel Rebouché, a professor of law at Temple University. Speaking to Ms. Magazine, Rebouché also noted that “states would be preempted from applying their own laws to the actions of these providers working under a public health emergency.”
The declaration would also allow the administration to pay the travel expenses of women seeking abortions, Mary Ziegler, a professor of law at the University of California, told Axios. Ziegler also told the outlet that “It would be hard to imagine a federal court challenge to [the declaration] … ending well for the administration, but by the same token, it might have some value in the short term.”
A spokesperson for the HHS also told Axios that “We are constantly exploring additional actions we can take to protect and expand access to reproductive health care, including abortion care, and are prioritizing the actions that can give us the highest impact and most durable solutions.”
The HHS has the power to declare a public health emergency if there is a “disease or disorder that presents a public health emergency,” National Review reported.
Reacting to Becerra’s statement, Republican Sen. Rand Paul of Kentucky noted the questionable legality of a declaration, telling the Daily Signal that “Such a move would clearly violate the Dobbs decision sending the abortion debate back to the states and, therefore, clearly be unconstitutional.”
Becerra has been asked to consider a public health declaration with regard to abortion twice last year. In July, 83 congressional Democrats sent a letter to Becerra and President Joe Biden asking them to declare a public health emergency to protect abortion. White House Gender Policy Council director Jen Klein, however, said at the time that while the declaration was “definitely not off the table,” it did not “seem like a great option.”
“When we looked at the public health emergency, we learned a couple things,” Klein said during a news briefing. “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.”
Meanwhile, Biden signed an executive order that month directing Becerra to “take additional action to protect and expand access to abortion care, including access to medication that the FDA approved as safe and effective over twenty years ago.” Biden also told reporters the following week that his administration was considering a public health emergency declaration with regard to abortion.
Since the U.S. Supreme Court overturned Roe v. Wade last June, the Biden administration has taken several measures in an attempt to expand access to abortion, such as allowing Veterans Affairs (VA) facilities to operate as abortion clinics in an attempt to circumvent state laws limiting or banning abortion. Last month, the Food and Drug Administration (FDA) allowed retail pharmacies to sell abortion pills, as LifeSiteNews previously reported.
Responding to the new rule, 22 state attorneys general wrote a letter to FDA Commissioner Dr. Robert Califf demanding the agency rescind the rule, and both Florida and South Dakota told pharmacies that the new rule did not override preexisting state laws limiting the sale of abortion pills.