The Biden administration could declare a public health emergency over abortion access after the COVID-19 pandemic decree ends on May 11.
The Biden administration is weighing the possibility of declaring a public health emergency after the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that abortion is not protected by the U.S. Constitution, Health and Human Services Secretary Xavier Becerra told Axios on January 31.
The Dobb’s decision restored full authority to the states to regulate abortion and 24 states have banned it or are planning to, reports the Guttmacher Institute.
Constitution Paused
The federal government began issuing public health emergency declarations in 2001, after the September 11 attacks and Anthrax scare, Rik Mehta, a former consumer safety officer at the Food and Drug Administration, pharmacist, and an adjunct professor of law at Georgetown University Law Center told the Heartland Daily Podcast on February 16.
“The framework was well intended because those events exposed how under-prepared the public health system was,” said Mehta.
Congress took action to beef up emergency response systems and, most notably, amended the Public Health Service Act, expanding the power of the federal government to declare emergencies, says Mehta, “to aggrandize the federal government and centralize control.”
Public health emergencies have been declared regarding issues that have little to do with health, says Mehta.
“You’ve seen this act now liberally applied, which I don’t think was the original intent of the act, invoked for opioids, homelessness, gun violence has been looked at, and a lot of public health zealots [use these problems] as pretexts to pause people’s constitutional rights,” said Mehta.
‘Circumvent States’ Rights’
A Texas lawsuit seeking to reverse the Food and Drug Administration’s (FDA) approval of chemical abortion pills is the anticipated pretext for a public health emergency declaration for abortion.
“Under the Clinton administration, we interpreted pregnancy as an illness, and therefore unwanted pregnancies can be terminated, allowing for the approval of mifepristone,” said Mehta. “There has never in the history of our country been the approval of any drug that would terminate an unborn child.”
A public health declaration for abortion would allow the marketing of the drug, similar to what happened with the COVID-19 shots, and it could happen while the COVID-19 emergency declaration is still in effect, said Mehta, “And so, you could see the Biden administration using this to circumvent states’ rights which are protected under the TenthAmendment.”
Congress can override the FDA’s actions, says Mehta.
“Under Article 1, the authority to regulate products and interstate commerce, such as drugs and vaccines, falls to Congress,” said Mehta. “The FDA is beholden to them.”
AnneMarie Schieber (amschieber@heartland.org) is the managing editor of Health Care News.