Defining Essential Services in a State of Emergency: Abortion Access and the COVID-19 Pandemic
In 1973, Roe v. Wade(1) asserted that access to safe and legal abortions was a constitutionally protected right in the United States. Each year, roughly one million(2) women make the choice to terminate their pregnancy in the United States. Despite precedent being upheld numerously over the years, state governments have consistently exercised their authority to limit women’s right to have an abortion. Hundreds of state laws(3) are passed each year that seek to restrict or eliminate a woman’s access to such services. While it is no surprise that states are once again exercising their authority to limit constitutional precedent, doing so amid a global pandemic has added a new facet. The current situation all but equates to partisan politics being employed under the guise of emergency response.
As much of the nation hunkers down in their homes, practices social distancing, and anxiously awaits the day that the COVID-19 pandemic subsides, many state lawmakers saw these uncertain times as an opportunity to restrict abortion services further. On March 22nd, Texas Governor Greg Abbott led the charge by signing Executive Order No. GA-09.(4) He stated that “all licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.”(5) The order relegated both medication and surgical abortions(6) as non-essential, elective medical procedures unless they were necessary to save the mother’s life. He claimed this was necessary to slow the spread of the virus and preserve vital healthcare resources. He claimed this while yet, abortion by medication is a procedure that even healthcare officials themselves(7) state is ridiculous. To restrict abortion by medication involves no surgical process whatsoever. Medication abortion requires a woman to take two pills, mifepristone and misoprostol,(8) orally over 48 hours. State officials disagree, claiming that because there is a slight risk of complications associated with the medications, they too, must be restricted. It should be noted that, to date, no other medications have seen their availability restricted whatsoever during the COVID-19 pandemic. Arkansas, Alabama, Iowa, Louisiana, Ohio, Oklahoma, and Tennessee followed suit, with several other states announcing their intentions to do the same.(9)
Overnight, thousands of women across the country were told their access to abortions was eliminated. They saw their right to choose obliterated, all in the name of COVID-19. This, for many, was another obstacle in a long line of laws passed that aim to do nothing more than annihilate a woman’s right to choose whether pregnancy is right for them. Further, the orders left much up in the air. While enacting abortion restrictions, some states have also included language that enabled medical professionals to execute their judgments concerning abortion services.(10) Does this mean that providers could continue to perform abortions if they felt it was in the best interest of their patient’s heath? Would providers have to justify such procedures and, if so, what were the mechanisms the state would also impose? These and many other questions linger in the wake of these announcements.
With Texas at the forefront, the legal battle rages on as abortion providers(11) are now requesting the Supreme Court review the Fifth Circuit’s second stay upholding Governor Abbott’s Executive Order. In their petition to the Supreme Court, abortion providers across the country argue that such orders are unconstitutional and will inflict “irreparable harm to those seeking time-sensitive care”(12) during the current pandemic. Despite carving out a narrow exception enabling Texas women to obtain “time-sensitive”(13) abortions, the court upheld the decision to categorize abortions as “elective procedures”. This decision effectively eliminates a woman’s access to early pregnancy abortion services. Further, the choice to include medication abortion within the order is baffling. The order patently aims to restrict abortion access further at which a woman may be too far along to obtain one. Even with the time-sensitive exception, Texas, like many states who have passed similar orders, have, in recent years, passed many laws that have forced hundreds of abortion providers to close their doors altogether. These laws have forced women to either drive hundreds of miles to obtain a legal abortion, or worse, undergo unsafe, illegal, and potentially lethal abortions by whatever means they can.
The COVID-19 crisis has exposed numerous flaws and shortcomings within the American healthcare system. The severe impediments that inhibit access to abortion services is no different. Despite what lawmakers hope to achieve with these restrictive executive orders, the need for abortion services does not diminish, even in a global pandemic. An individual doesn’t decide against an abortion if access to one is difficult. Instead, they choose other options which often have lethal consequences. The orders, as implemented, ignore the time-sensitive nature of abortions by stating that such emergency rules are effective until the Governor-imposed state of emergencies are lifted. To date, we have seen almost all orders extended consistently throughout the country. What does that mean for those in need of abortion services? It seems only time will tell as the Supreme Court has yet to announce whether they will review the case.
(13) Id., at 7.