The fall of Roe v. Wade has been as chaotic and disastrous as doctors and advocates on the ground predicted.
Courts initially blocked many of the abortion bans that popped up immediately after the Supreme Court overturned Roe. However, in eight states, including Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, Texas, and Wisconsin, abortion is now completely banned—and a Georgia law banning abortion after six-weeks went into effect yesterday.
These bans can mean life or death for pregnant people. Reporting from the New York Times found that many doctors in states like Texas are now afraid to perform abortions even when the pregnancy isn’t viable and poses a risk to the pregnant person’s life.
It’s sort of unarguable at this point that when it comes to access to abortion care, we’re in the midst of an emergency. That’s where President Joe Biden and the powers of the executive office come-in.
Last week, over 80 House Democrats signed a letter urging the president to declare abortion a public health emergency under the Public Readiness and Emergency Preparedness Act—a.k.a. the PREP Act.
On Wednesday, Politico reported that Biden is considering declaring a limited public health directive under the PREP Act as a compromise to the emergency declaration democrats are hoping he’ll consider. We don’t have full details on what this would look like or if it’s meaningfully different from what advocates want, but what I can do is tell you more about the PREP Act.
For the uninitiated, the PREP Act, which George W. Bush signed into law in 2005, allows the Health and Human Services Secretary to declare a public health emergency and gives immunity to manufacturers and distributors of specified medications. For some bonus context, last year, Biden used his powers under PREP several times to help tackle to the COVID-19 pandemic
Declaring an emergency would allow out-of-state providers to prescribe medication abortion pills to anyone in the United States, which would help a lot of people get access to abortion care in states without clinics and where the procedure is currently banned.
Medication abortions account for the majority of all abortions in the United States, according to the Guttmacher Institute, a reproductive health care research organization. These stats are way up from just over ten years prior, when medication abortions accounted for less than a quarter of all abortion procedures.
And it totally makes sense why folks would want to go this route. Even before the fall of Roe, the war on abortion shuttered clinics across the country, requiring pregnant people in need of abortion care to sometimes drive hundreds of miles. But abortion pills, can be taken safely from the comfort of your home. And less than .4% of patients experience serious complications, according to Guttmacher.
Medication abortion isn’t for everyone. It only works within the first 11 weeks of pregnancy.
But having access to medication abortion pills could still make a world of difference for folks seeking abortions in the first-trimester, which accounts for 90% of all abortions in the US.
Opening-up access could have the greatest impact for for Black women, who are expected to see the highest rise in maternal mortality due to lack of access to abortion, according to a University of Colorado Boulder study. Lower-income Black pregnant people often face the greatest obstacles to getting out of state abortions due to having less flexible work schedules, and not being able to afford the cost of child care and the cost of travel overall, according to advocates.
So if declaring this emergency could help pregnant people across the country, especially lower-income Black folks, what’s the downside?
That depends on who you ask. According to Politico, senior white house aides worry that the declaration could open Biden up to bad-faith lawsuits from conservatives. But as any casual observer of politics or the Supreme Court in the last few years could tell you, bad-faith litigation is sort of inevitable.
So we’re left with just two options: do nothing in the face of an obvious crisis to avoid an unknown/inevitable consequence of being a Democrat in office, or call the emergency what it is and do something.