Alex Padilla U.S. Senator for California

Emergency declaration could unlock key federal resources and authorities to safeguard and improve access to reproductive care

WASHINGTON, D.C. — U.S. Senators Alex Padilla (D-Calif.), Elizabeth Warren (D-Mass.), Cory Booker (D-N.J), led over a dozen Senate Democrats in a letter 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. The letter outlines several actions the President can take to improve access to reproductive care across the country, including allowing licensed doctors in one state to provide care in another, facilitating reproductive care for people who need emergency assistance, and deploying federal, state, and local medical personnel to address the emergency.

“A post-Roe America puts people’s lives in danger and we strongly urge the President to declare a public health emergency,” said Senator Padilla. “The Dobbs decision has created a public health crisis for millions of Americans as extreme Republican state legislatures across the country implement dangerous abortion bans. We must act urgently and use every tool at our disposal to protect reproductive health care.”

“By overturning Roe v. Wade, the Supreme Court decided that the government – not the person who is pregnant – should determine private health care decisions, denying women the right to control their own bodies and exacerbating the nation’s shameful maternal mortality crisis,” said Senator Warren. “This is an emergency – and we need to treat it like one. Declaring a national and public health emergency will help ensure that abortion and other reproductive care is accessible, affordable, and available.”

“The U.S already has the highest rate of maternal mortality among its peer countries. Health experts agree that the outrageous Dobbs ruling will increase maternal mortality rates, with a disproportionate impact on Black, Indigenous and other communities of color. The federal government should do everything in its power to ensure all Americans have access to the reproductive care they need. Declaring a national and public health emergency underscores the urgency of this crisis and opens new options to protect Americans’ reproductive rights,” said Senator Booker.

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).

Padilla is a champion for reproductive rights and is a cosponsor of the Women’s Health Protection Act, which would guarantee access and the right to provide abortion services in the United States. He also introduced the Freedom to Travel for Health Care Act of 2022 to make it clear that it is illegal for anti-choice states to limit travel for abortion services. Padilla secured commitments from SafeGraph and Placer.ai, two data brokers, to permanently stop selling the location data of people who visit abortion clinics. This week, he also urged President Biden to prioritize health equity for people of color, and low-income, immigrant, and tribal communities in any executive actions to address the recent Dobbs decision. Padilla recently questioned witnesses on the impacts the decision will have on reproductive health equity and what the decision means for other constitutionally protected rights.

In addition to Padilla, Warren, and Booker, the letter was signed by Senators Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaiii), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.), Ed Markey (D-Mass.), Chris Van Hollen (D-Md.), 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.).

Full text of the letter is available 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,

###