July 14, 2022

Emergency Declarations Could Unlock Key Federal Resources and Authorities to Safeguard and Improve Access to Reproductive Care

Today, U.S. Senator Chris Van Hollen (D-Md.) joined Senators Elizabeth Warren (D-Mass.), Cory Booker (D-N.J.), and Alex Padilla (D-Calif.) in writing to President Biden and Health and Human Services (HHS) Secretary Xavier Becerra, urging them to immediately declare national and public health emergencies over Americans’ access to reproductive care. 

Millions of Americans have been endangered by the Supreme Court’s reckless decision to overturn Roe v. Wade and eliminate the constitutional right to an abortion. In state after state, Republican lawmakers have implemented extremist abortion bans and restrictions. Health care providers have already been forced to withhold lifesaving care. And the maternal mortality crisis, mental health outcomes, and economic disparities are bound to worsen, especially if rightwing extremists follow through on their public calls for a nationwide abortion ban. 

“As President of the United States and Secretary of Health and Human Services, you have the authority to declare a national emergency and public health emergency over these attacks on Americans’ reproductive rights. . . . These authorities have been used by the Biden-Harris Administration—and other presidential administrations—to address public health crises ranging from the COVID-19 pandemic to the opioid epidemic,” wrote the lawmakers.

The lawmakers outlined six powerful flexibilities and resources that could be unlocked by emergency declarations to safeguard and improve access to reproductive care across the country. By declaring a national and public health emergency, the administration could:

  • Allow doctors licensed in one state to provide reproductive care in other states. Using waivers of Section 1135 of the Social Security Act, the federal government could waive licensing requirements under Medicaid, Medicare, and the Children’s Health Insurance Program as long as doctors have equivalent licensing in other states.
  • Enable state Medicaid programs to more easily accept out-of-state patients seeking reproductive care. Disaster-Relief State Plan Amendments could enable states to expand the pool of people covered by their Medicaid programs, including out-of-state residents who leave their home states for medical reasons.
  • Facilitate reproductive care for people who need emergency assistance. In support of Secretary Becerra’s directive to ensure care under the Emergency Medical Treatment and Labor Act, Section 1135 waivers could facilitate the transfer of patients who need emergency lifesaving care—including abortions—for conditions such as pregnancy loss.
  • Permit the deployment of federal, state, and local medical personnel. During a public health emergency, the HHS Secretary has the authority to deploy the National Disaster Medical System, the Volunteer Medical Reserve Corps, and Commissioned Corps Officers, as well as reassign federally-funded state and local public health officials to address the emergency.
  • Protect patient access to medication abortion. Under the Public Readiness and Emergency Preparedness Act, the HHS Secretary can protect those involved in the administration or use of “covered countermeasures”—a term which could encompass medication abortion—from certain state restrictions, claims, and lawsuits, as the Department did during the COVID-19 pandemic.
  • Expedite research, information-gathering, and demonstration projects on reproductive care. Public health emergency authority could enable HHS to more quickly gather information about the reproductive care crisis in the country (e.g., through surveys and research) and deploy Medicaid demonstration projects to respond (e.g., by enabling states to finance the travel of low-income women in anti-abortion states to access reproductive care). 

“While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” concluded the lawmakers. “Your leadership during this unprecedented crisis for women is more important than ever.”

The letter was signed by 18 Senators in total, including Senators Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawai’i), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.), Ed Markey (D-Mass.), Tina Smith (D-Minn.), Jeff Merkley (D-Ore.), Sherrod Brown (D-Ohio), Amy Klobuchar (D-Minn.), Tammy Duckworth (D-Ill.), Sheldon Whitehouse (D-R.I.), Tammy Baldwin (D-Wisc.), Ron Wyden (D-Ore.), and Dianne Feinstein (D-Calif.).

As the right to abortion is under attack by an extremist Supreme Court and rightwing state legislatures, Senator Van Hollen has called on the government to use every tool to protect reproductive freedom: 

  • On July 12, Senator Van Hollen joined his Senate colleagues in introducing the Freedom to Travel for Health Care Act of 2022. This legislation would make it crystal clear that it is illegal for anti-choice states to limit travel for abortion services and would empower the Attorney General and impacted individuals to bring civil action against those who restrict a woman’s right to cross state lines to receive legal reproductive care.
  • On June 25, 2022, Senator Van Hollen joined his Senate colleagues in sending a letter to President Joe Biden urging “bold action” to protect abortion access after the conservative wing of the Supreme Court overturned Roe v. Wade and Republicans made this generation of women the first with fewer rights than their mothers.
  • On June 17, 2022, Senator Van Hollen joined his Senate and House colleagues in sending a letter to the CEO of Alphabet Inc. and its subsidiary Google, Sundar Pichai, urging him to take action to prevent misleading Google search results and ads that lead to anti-abortion clinics.
  • On June 7, 2022, Senator Van Hollen joined his Senate colleagues in sending a letter to President Biden urging him to immediately issue an executive order directing the federal government to develop a national plan to defend Americans’ fundamental reproductive rights, including their right to an abortion.
  • On May 10, 2022, Senator Van Hollen spoke on the floor of the U.S. Senate on the need to protect Americans’ constitutional right to reproductive freedom as Senate Republicans filibustered the Women’s Health Protection Act, legislation that the Senator cosponsors and that would codify the protections in Roe v. Wade. 

A copy of the letter can be found here and below. 

Dear Mr. President and Mr. Secretary:

In the wake of the Supreme Court’s devastating decision in Dobbs v. Jackson Women’s Health Organization, we write to urge you to immediately declare national and public health emergencies over Americans’ access to reproductive care.

Millions of American women have been endangered by the Supreme Court’s reckless decision to overturn Roe v. Wade and eliminate the constitutional right to an abortion. Within days of the release of the Court’s opinion, nine states moved to ban abortion with virtually no exceptions, and over a dozen more states could enact additional abortion bans and restrictions in the coming weeks. Doctors have already been forced to withhold lifesaving care from women facing miscarriages, infection, and sepsis in light of draconian civil and criminal penalties imposed by extremist governors and state legislatures. In the midst of a maternal mortality crisis that disproportionately kills Black and Brown women, research suggests that a nationwide abortion ban—championed by former Vice President Mike Pence, House Minority Leader Kevin McCarthy, and numerous other anti-abortion officeholders in the aftermath of Dobbs—would increase pregnancy-related deaths by 21 percent; in Mississippi, a Black woman is already 118 times more likely to die by carrying a pregnancy to term than by having an abortion. Mental health outcomes and economic disparities for people forced to carry unwanted pregnancies will become even worse.

Simply put, this is an emergency. The Biden-Harris Administration has already taken important steps to defend abortion rights in response to escalating rightwing attacks, including through commitments to expand patient access to medication abortion, protect the right to travel to obtain abortion services, and defend the privacy of patients seeking reproductive care. But you have the power to do more to address this crisis.

As President of the United States and Secretary of Health and Human Services (HHS), you have the authority to declare a national emergency and public health emergency over these attacks on Americans’ reproductive rights. The National Emergencies Act and the Stafford Act confer wide powers for the President to declare a national emergency. The Public Health Services Act and the Public Readiness and Emergency Preparedness Act authorize the Secretary to declare a public health emergency. These authorities have been used by the Biden- Harris Administration—and other presidential administrations—to address public health crises ranging from the COVID-19 pandemic to the opioid epidemic. 

Critically, declaring an emergency over the state of reproductive rights in the United States could unlock powerful flexibilities and resources for federal, state, and local governments to safeguard and improve access to health care across the country. Specifically, this measure could:

  • Allow doctors licensed in one state to provide reproductive care in other states. Using waivers of Section 1135 of the Social Security Act, the federal government could waive licensing requirements under Medicaid, Medicare, and the Children’s Health Insurance Program as long as doctors have equivalent licensing in other states.
  • Enable state Medicaid programs to more easily accept out-of-state patients seeking reproductive care.Disaster-Relief State Plan Amendments could enable states to expand the pool of people covered by their Medicaid programs, including out-of-state residents who leave their home states for medical reasons.
  • Facilitate reproductive care for people who need emergency assistance. In support of Secretary Becerra’s directive to ensure care under the Emergency Medical Treatment and Labor Act, Section 1135 waivers could facilitate the transfer of patients who need emergency lifesaving care—including abortions—for conditions such as pregnancy loss.
  • Permit the deployment of federal, state, and local medical personnel. During a public health emergency, the HHS Secretary has the authority to deploy the National Disaster Medical System, the Volunteer Medical Reserve Corps, and Commissioned Corps Officers, as well as reassign federally-funded state and local public health officials to address the emergency.
  • Protect patient access to medication abortion. Under the Public Readiness and Emergency Preparedness Act, the HHS Secretary can protect those involved in the administration or use of “covered countermeasures”—a term which could encompass medication abortion—from certain state restrictions, claims, and lawsuits, as the Department did during the COVID-19 pandemic.
  • Expedite research, information-gathering, and demonstration projects on reproductive care. Public health emergency authority could enable HHS to more quickly gather information about the reproductive care crisis in the country (e.g., through surveys and research) and deploy Medicaid demonstration projects to respond (e.g., by enabling states to finance the travel of low-income women in anti-abortion states to access reproductive care).

While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back. We urge you to declare national and public health emergencies over Americans’ access to reproductive care. Your leadership during this unprecedented crisis for women is more important than ever. 

Thank you for your attention to this important matter.

Sincerely,

 

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