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An abortion public health emergency could protect access to a key drug nationwide, but it’s a risky move.

Inevitable legal challenges to such a move would risk constraining how the federal government responds to future public health emergencies.

Pressure is mounting on the Biden administration to strengthen protections for medication abortion as legal battles over the pills heat up.

In one fell swoop, Biden could use emergency powers to shield anyone involved in medication abortion — from doctors who prescribe the pills to pharmacists who dispense them — from prosecution under any state law, civil or criminal. Such a move could provide a way of accessing abortion care in even the most restrictive states.

Declaring a public health emergency “would send a signal that what is happening now for reproductive healthcare after Dobbs is of a scale that’s similar to an epidemic,” said Rachel Rebouché, a law professor at Temple University. “It would signal the gravity of the health consequences of Dobbs.”

That’s because such a big move carries big risks. These emergency declarations are usually reserved for outbreaks of infectious diseases or natural disasters, suggesting any declaration will almost certainly be challenged by abortion opponents in court. Biden’s own advisers have reportedly warned these legal challenges would likely roll back the abortion emergency. Any lawsuits could have more far-reaching consequences too, potentially limiting Biden’s — and future presidents’ — ability to respond to future public health threats.

Emergency powers

Enacted in 2005 as part of the George W. Bush administration’s strategy to prepare for the possibility of a future pandemic influenza outbreak, the law grants immunity from liability claims to individuals or organizations who manufacture, distribute or dispense medical countermeasures (like treatments or vaccines) designed to deal with epidemics or pandemics, or chemical, biological or nuclear attacks. It also explicitly states that in situations where state laws conflict with or impede the implementation of those countermeasures, federal interests trump state ones.

During the covid-19 pandemic, the Prep Act explicitly defined covid tests and vaccines as countermeasures, clearing up legal red tape that might have slowed their development and distribution. For example, state laws differ in whether pharmacists can administer vaccines, but through the Prep Act, the federal government shielded pharmacists in restrictive states from liability. It also gave FDA leeway to make vaccines and tests available under emergency authorization, a faster process than the full approval many such products eventually received.

For medication abortion, “there’s potential here, and there’s a problem here,” said Jennifer Piatt, a deputy director for the Network for Public Health Law’s Western Region Office.

“The potential is that you could use the Prep Act to cover abortion drugs as emergency countermeasures to deal with the public health crisis that’s arising out of the [Supreme Court’s] Dobbs decision,” she said. That would protect providers of medication abortion from litigation, both civil and criminal, even in states with strict abortion bans.

The problem is that defining abortion as a public health crisis may be a stretch too far for some. “When you think of a public health emergency, your thoughts go to covid or anthrax or an earthquake or something like that, not to a noninfectious, noncontagious, non-bioterror event,” said Piatt. “That’s one of the fundamental questions that arises — are we immediately going to be hailed into court based on the argument that this just doesn’t constitute a traditional public health emergency.”

Not all public health emergencies are diseases or natural disasters. In 2017, the Trump administration declared a public health emergency over the opioid crisis under a different law (the Public Health Service Act), freeing up money for prevention and response. But given the political polarization around abortion, Piatt expects lawsuits challenging any emergency declaration would be inevitable. Ultimately, those cases would likely reach the Supreme Court, and its ruling could impact far more than access to medication abortion.

Playing with fire

The legal fight against an emergency declaration could start anywhere, but it’s likely that interested parties would choose friendly turf.

If challengers to an emergency declaration got a friendly court, “you might only have this emergency declaration in place for a week or two before you get an immediate injunction,” said Piatt, rendering any liability protections short-lived.

Eventually, the case would likely end up before the Supreme Court. If it meets the same court that overturned Roe v. Wade, it’s likely the court would rule against the administration, ending any liability protection for providers of medication abortion. But the court might not stop there. Its current 6-3 conservative majority overturned several long-standing legal precedents in its last term — including Roe, which had been the law of the land since 1973.

“One fear is that the court interprets the [Prep] Act very narrowly,” said Rebouché. “If the court says the Biden administration does not have power to declare a public health emergency under Prep except for these very narrow circumstances defining what an epidemic is and what it is not, that could have broad-reaching effects for the next public health emergency.”

To some extent, the Prep Act and other federal public health emergency laws don’t define what a public health emergency actually is because such threats are hard to predict. “They leave it very discretionary,” said Piatt, which allows the federal government to respond quickly and robustly to a new threat.

Ultimately, declaring a public health emergency on abortion “could backfire on this administration, and future administrations,” said Piatt.

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