The coronavirus pandemic has impacted every facet of American life. It poses an existential threat to the hospitality, restaurant, and retail industries. It has put millions of people out of work. And if a number of Republican officials across the country have their way, something else might go out of business too: access to surgical abortions in red states.
In recent weeks, state and local officials across the country have pushed to limit non-essential medical procedures in the wake of COVID-19. That’s been necessary to save space for patients infected by the virus, as hospitals prepare for a surge of new cases, and to ensure that life-saving equipment, already in short supply, can be used on those who need it most.
But in a handful of GOP-controlled states, there has been a targeted push to classify abortions as “non-essential,” thereby imposing new restrictions on the procedure. In some cases, those directives have come from executive orders, leaving abortion clinics to fear whether performing the operation will put them in legal jeopardy.
Medical officials, however, argue that abortions are time-sensitive and thus an essential procedure. Skye Perryman, the general counsel for the American College of Obstetricians and Gynecologists, said Monday that “using the COVID-19 pandemic to push political agendas is unconscionable, and it is harmful to the health of patients, and women.” In other words, anti-choice Republicans are taking advantage of a global pandemic to suppress women’s reproductive rights.
It’s a form of coronavirus opportunism—and it’s been working. Since these states’ directives were announced, women across the country have been blocked from getting abortions. Clinic operators had to cancel hundreds of appointments since bans took effect last week, according to clinic representatives. Nancy Northup, the president of the Center for Reproductive Rights, said that many Texas patients seeking care had traveled to Oklahoma. But then, Oklahoma enacted its own mortarium. Now, those women don’t know where to turn, and the next closest state with safe access to an abortion could be hundreds of miles away.
Some people might have seen this coming. “It’s not surprising that the states that are now using the COVID crisis to stop people from getting abortion care are the very same states that have a history of passing laws to ban abortions or using sham rationale to shut down clinics,” said Jennifer Dalven, the director of the American Civil Liberties Union’s Reproductive Freedom Project.
Still, advocacy groups are gearing up for an extended legal challenge. On Monday, the American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights filed lawsuits in Alabama, Ohio, Iowa, and Oklahoma, arguing that surgical abortion bans during a public health emergency are a violation of Roe v. Wade. The lawsuits demand an “emergency stay” on those orders, which would allow clinics to remain open and provide care to patients. A similar lawsuit was filed in Texas on March 26. In the meantime, however, millions of women are left to live in agonizing uncertainty.
In some states, legal challenges to these moves have led to early—if temporary—successes for advocates and clinics.
Litigation has worked in Ohio, where a March 17 health department order required the cancellation of non-essential surgical procedures. Following the order, the state’s deputy attorney general, Jonathan Fulkerson, sent letters to three abortion clinics instructing them to “immediately stop performing non-essential and elective surgical abortions.” On Monday, District Court Judge Michael Barrett sided with groups who challenged the ban and issued a two-week temporary restraining order, said Jessie Hill, a cooperating attorney with the Ohio chapter of the ACLU. Following an appeal by the state, a federal judge on Thursday upheld Barrett’s ruling, allowing abortions to continue to be performed in the state.
But litigation hasn’t worked out everywhere. In Texas, Attorney General Ken Paxton instructed all medical facilities on March 23 to stop all “medically unnecessary surgeries or procedures” in response to the coronavirus outbreak and an executive order. District Court Judge Lee Yeakel granted a temporary restraining order Monday to consider the underlying legal issues. But then Yeakel’s order was struck down on Tuesday, when a three-judge panel of the Fifth Circuit Court of Appeals allowed Texas Governor Greg Abbott to continue restricting abortion access through his COVID-19 executive order.
Oklahoma Governor Kevin Stitt also announced an executive order that suspends elective medical procedures through April 7—including abortions, except when one can be proved necessary to prevent health risks to the patient. Stitt’s order, issued on March 24, is being challenged in court.
Perhaps no state has more of a recent history of trying to tamper with abortion rights than Alabama. Last year, the governor signed into law one of the most far-reaching restrictions on abortion rights in the nation. It included a ban on abortion procedures after eight weeks of pregnancy, but the legislation was temporarily blocked by the courts before it could be implemented.
Now, Alabama is using the coronavirus outbreak to further its original goal. The governor ordered a temporary shutdown of non-essential medical procedures on March 27, including abortions. District Court Judge Myron Thompson, however, suspended the state’s ban with a temporary restraining order until April 13.
Iowa Governor Kim Reynolds has tried to do the same thing. She signed an order on March 27 to halt all elective and non-emergency medical procedures—abortions included. Advocates and state officials reached an agreement on Wednesday, however, that women would be able to obtain “essential” abortions in the state, making the procedure available if a delay would pose a health risk to the patient. Otherwise, they have to wait until the ban is lifted on April 16. The ACLU subsequently withdrew its request for an emergency injunction.
Progressive activists in other red states are gearing up for similar bans. Indiana Governor Eric Holcomb issued an order on Monday to “cancel or postpone elective and non-urgent surgical or invasive procedures,” which was confirmed to include abortions. Governors in Kentucky and Mississippi have also said they believe abortion should be included on the list of banned “non-essential” medical procedures due to COVID-19.
Abortions are hard enough to get as it is. Conservative politicians in red states have sought for years to place undue burdens on women who seek them—and to challenge their legality in the judiciary. As different legal decisions are made in district or appellate courts throughout the nation, the issue may soon come before the Supreme Court.
Heather Shumaker, Senior Counsel for Reproductive Rights & Health at the National Women’s Law Center, said that COVID-19 just serves to compound the issues with abortion access, particularly as they impact lower-income individuals, as well as young people, people of color, and those in rural areas.
If anti-choice officials are successful, more and more women seeking abortions will be left unsure of their rights. Some will flat out be denied them.
“The really frustrating thing about these kinds of unconstitutional actions is that they can have such a chilling effect on patients seeking needed health care that they can’t delay,” said Hill, the Ohio attorney. “You can’t delay an abortion until the end of this pandemic.”
