White House officials plotting the administration’s post-Roe response are weighing a narrow public health directive aimed at safeguarding nationwide access to abortion pills, three people familiar with the discussions told POLITICO.
The Biden team has zeroed in on that authority in recent days. They consider it the most feasible of the White House’s limited options for protecting abortion rights, and have concluded that it could have the most immediate on-the-ground impact while also quelling Democrats’ demands for stronger action.
The proposal would rely on powers under the Public Readiness and Emergency Preparedness (PREP) Act reserved for public health emergencies to shield doctors, pharmacies and others from liability for providing abortion pills to people across the country — even those who live in states that have outlawed or severely restricted the procedure.
Prominent Democrats and reproductive rights organizations have pressed the administration to use the authority in the weeks since the Supreme Court struck down Roe v. Wade. And some White House officials have come to view it as a preferred alternative to the expansive public health emergency declaration favored by progressives, because it represents a more limited and better-targeted use of the president’s executive power.
Yet such a move still faces deep skepticism from senior aides who are unconvinced it would survive the inevitable legal challenges, and who worry conservative judges will seize on any opportunity to further limit President Joe Biden’s executive power.
“It’s the only one that’s had a reasonably decent amount of support [internally],” one of the people familiar with the discussions said of a PREP Act declaration. “But there’s no one that’s gung ho.”
A White House spokesperson did not respond to specific questions about the PREP Act debate, saying only that the administration is considering any measures that might “provide meaningful help to women seeking reproductive health care, including abortions.”
“President Biden is going to do everything he can within his legal authority to make sure we continue to protect women’s rights,” the spokesperson said in a statement.
The White House has stressed repeatedly that it has little power to singlehandedly preserve abortion rights, arguing instead that the only way to restore Roe’s protections is to elect more Democrats to Congress, who could then pass legislation codifying a right to an abortion. What unilateral steps it has taken have been carefully calibrated and tempered by fears over the legal implications.
But the administration is under intense pressure from congressional Democrats and party activists to take more aggressive action in the interim — arguing that at the very least, it’s politically important for Biden to show he’s doing all he can to fight the court’s ruling.
After Democratic lawmakers and prominent reproductive rights groups coalesced earlier this month around a demand that the White House declare abortion access a public health emergency, Biden agreed to re-examine the idea. He also declared he would support waiving the Senate’s filibuster rules to allow for passage of legislation on abortion rights.
Top White House aides had previously dismissed the prospect of a broad public health emergency, citing concerns that it wouldn’t provide enough new resources or flexibilities to promote abortion access while inviting lawsuits that could hamstring the government’s ability to respond to a range of future health crises.
Those objections still stand. But the potential for a PREP Act declaration emerged as an alternative.
“It gives a narrow but very discrete power that the administration wants, which is to protect dispensers of abortion medication,” the person familiar with the discussions said.
Senate Democrats led by Elizabeth Warren of Massachusetts and Cory Booker of New Jersey have urged the administration to deploy the authority, noting its frequent past use — most recently to shield manufacturers of Covid drugs and treatments from legal liability.
The Center for Reproductive Rights has also been a chief advocate for using the PREP Act, pressing its case in public and in private discussions with administration officials. The group has argued that it would preempt state law to shore up national protections for what’s become the most popular method of abortion.
More than half of all U.S. abortions in 2020 were done with pills, rather than surgery, according to a survey from the abortion rights group Guttmacher Institute.
Even so, no decision to move ahead with the declaration has been made. Aides and outside legal advisers have cautioned against expecting the courts to side with the Biden administration if the choice is to grant expansive federal powers or protect states’ rights. Skeptical officials also question how long the PREP Act would remain in place for abortion, given that other public health emergencies typically come to an end and restoring national abortion access is almost assuredly a long-term proposition for Democrats.
“They’re under enormous pressure,” the person familiar with the discussions said. “The majority of people still don’t think it’s a good idea. But they’re not taking it off the table.”
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