Today, U.S. Senator Kirsten Gillibrand joined 17 of her colleagues in urging the Biden administration to declare a national and public health emergency over Americans’ access to reproductive care. Within weeks of the Supreme Court overturning Roe v. Wade, dozens of states have implemented restrictions on reproductive rights or are moving to do so, forcing doctors to withhold lifesaving medical care from women suffering miscarriages, sepsis, and other pregnancy complications. Amidst an ongoing maternal mortality crisis, these extremist restrictions will worsen outcomes for women, particularly women of color. An emergency declaration issued by the president would unlock new protections and resources for providers and patients, allowing women to access reproductive care even in states that ban or severely limit access to reproductive health care.
“Draconian laws limiting access to care put women’s lives in danger,” said Senator Gillibrand. “Our reproductive freedom is under attack and we have to do everything we can do make sure every woman, regardless of where she lives, can continue to access lifesaving reproductive care. This is a crisis and President Biden must act now to declare a national and public health emergency.”
By declaring a national and public health emergency, flexibilities and resources for federal, state, and local governments to safeguard and improve access to health care across the country could be unlocked. 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 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).
The letter was also signed by Senators Elizabeth Warren (D-MA), Cory Booker (D-NJ), Alex Padilla (D-CA), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Bernie Sanders (I-VT), Ed Markey (D-MA), Chris Van Hollen (D-MD), Tina Smith (D-MN), Jeff Merkley (D-OR), Sherrod Brown (D-OH), Amy Klobuchar (D-MN), Tammy Duckworth (D-IL), Sheldon Whitehouse (D-RI), Tammy Baldwin (D-WI), Ron Wyden (D-OR), and Dianne Feinstein (D-CA).
The full text of the letter is available here or 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,