The White House is currently considering a number of executive actions President Joe Biden could take if Roe v. Wade is overturned by the Supreme Court including declaring a public health emergency to shield doctors from legal liability if they provide abortions in states where they are not licensed, according to a report.
The New York Times, citing senior administration officials, says that the Biden’s top aides are weighing a number of options as the high court is anticipated to overturn the landmark 1973 case which effectively legalized abortion in the United States.
While several states have stringent abortion restrictions in place, full bans on abortion have never stood up in federal courts in large part thanks to Roe, and dozens of states would automatically ban abortion if the case is overturned.
The high court, which currently has a conservative majority, has been expected to weaken or fully overturn Roe as it considers a challenge to a Mississippi abortion regulation, but the unprecedented leak of a draft opinion indicating the justices will vote to overturn has propelled the issue to the forefront of the political scene this spring.
The Times reports that, among options such as readying the Justice Department and Food and Drug Administration to combat state regulations on abortion travel or drugs the administration is considering declaring a public health emergency to protect abortion access in states where it would remain legal.
“One idea is for the Department of Health and Human Services to declare a public health emergency based on expected patient surges at clinics in border states where abortion remains legal, and to use that emergency to invoke a 2005 law that shields doctors from legal liability for treating patients in a state where they are not licensed,” the report reads.
The administration is also looking into how to help women in states where abortion is banned to access abortion pills and its FDA could declare that its regulation involving such medication would pre-empt state laws banning abortion.
However, as the Times notes, “Both moves would rely on aggressive interpretations of the power Congress granted those agencies, and are likely to draw immediate court challenges, raising the possibility of rulings that limit the government’s flexibility under public health and drug safety laws.”
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