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Biden may declare public health emergency to secure abortion rights as Roe decision looms

Speaking with late night show host Jimmy Kimmel last week, Biden said "There’s some executive orders I could employ, we believe. We’re looking at that right now."

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Hannah Nightingale Washington DC
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President Joe Biden and his administration is reportedly weighing the option of taking executive action regarding abortion if a Supreme Court decision in Dobbs v Jackson Women's Health, regarding a Mississippi abortion clinic ultimately ends up overturning Roe v Wade in the coming weeks.

One option he is considering is the declaration of a public health emergency, according to the New York Times. Biden’s aides are weighing this decision, and whether he would be able to pull it off legally.

Additional options being considered, officials said, include preparing the Justice Department to fight attempts made by individual states to criminalize travel for the purpose of getting an abortion, and declaring that regulations put forth by the Food and Drug Administration regarding abortion medications pre-empt state bans.

Speaking with late night show host Jimmy Kimmel last week, Biden said "There’s some executive orders I could employ, we believe. We’re looking at that right now."

Notably, Biden issued a whopping 77 executive orders in his first year, many of which occurred during his first day in office. In his second year so far, he has signed 14 orders. For comparison, former Presidents Donald Trump and Barack Obama issued 55 and 38 orders in their first years, respectively.

The decision is expected in the coming weeks, with tensions rising after a draft opinion was leaked in early May indicating that a majority of Supreme Court justices would vote to overturn the 1973 decision regarding abortion.

According to the New York Times, some suggestions put for the by the administration take drastic steps in order to provide abortions to these in states that may ban it.

"One calls for Mr. Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply," the New York Times reported.

Proposals like this and others raise questions on whether they would abide by the Hyde Amendment, which prevents the usage of federal taxpayer funds for abortion.

The administration has reportedly asked the Justice Department’s Office of Legal Counsel as to whether this law also bars the usage of these funds for other abortion-related expenses, like travel.

The administration is also reportedly looking into ways to allow women in stated that have banned abortion to obtain abortion medications during the first 10 weeks of their pregnancies from pharmacies located out of state.

In December, the FDA approved sending abortion medications through the mail, allowing telemedicine visits for their prescriptions.

The New York Times notes though that a potential complication comes from licensing of doctors, and the fact that operating in a state where a doctor does not possess a license is a crime.

"To provide doctors with legal cover, some supporters are urging the Biden administration to take several steps that would reimpose a degree of federal control over abortion law," the New York Times reported.

To combat this, it has been suggested that the Department of Health and Human Services declare a national public health emergency, and use the emergency to invoke a law passed in 2005 "that shields doctors from legal liability for treating patients in a state where they are not licensed," the outlet reported.

Many of these moves though could be met with court challenges, like in the case of an executive order passed by Biden last year extending a pandemic-related ban on evicting renters.

Courts swiftly struck down the measure, allowing little impact of the extension.

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