The global pandemic wrought by COVID-19 has brought unprecedented chaos to virtually every aspect of our lives. As people deal with illness and death, the isolation of social distancing and stay-at-home orders, lost jobs, closed schools, food and supply shortages, financial devastation, and numerous other disruptions to daily life, lawmakers in several states have seized on the opportunity to advance their anti-abortion agendas.
The governors of several states have issued executive orders prohibiting doctors from performing abortions during the pandemic quarantine. Every state with such an order is already being sued—and the legal rulings are coming at a furious pace. The practical availability of abortion is changing, in some cases, more than once in a single day. The result is that pregnant women seeking abortion care are on a legal and medical roller coaster with no certain end. This is so even though the bans are unconstitutional. In this column, we consider the nature and scope of the executive orders on abortion, the legal challenges to those orders, and the connection between the COVID-19 abortion bans and the broader fight over abortion rights.
COVID-19 Abortion Bans
As COVID-19 began to spread far and wide in the United States, states and the federal government passed a flurry of emergency measures designed to deal with the crisis. These measures took many forms but focused on meeting the medical needs of those infected and reducing further spread of the disease. Social distancing mandates forced the closure of many workplaces, schools, stores, playgrounds, and other places where people congregate with non-household members. Many of the state emergency orders also suggested or mandated the suspension of non-essential medical appointments, treatments, and surgeries in order to preserve providers and hospital beds for COVID-19 patients, as well as to save personal protective equipment (PPE) for their providers.
After states began rolling out their general emergency plans, a few issued separate orders banning all abortion procedures indefinitely.
For example, the Texas Attorney General issued a press release on March 23, 2020, entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources.” Under this order, doctors were prohibited from performing surgical and medication abortions unless necessary to save the life of the pregnant woman. (The difference between surgical and medical abortions is explained here.) This purported to be an interpretation of Governor Greg Abbott’s executive order (GA-09) that imposed a variety of restrictions in order to preserve hospital capacity for COVID-19 patients, which itself followed a more general declaration of a state of emergency. Ohio, Alabama, Iowa, and Oklahoma announced similar bans.
The impact of these bans is self-evident. A total ban on abortion means that a woman seeking to terminate a pregnancy will either be forced to carry the pregnancy to term, travel to another state where abortion has not been banned, or wait in the hope that the ban will be lifted before she reaches the gestational stage where her state no longer permits abortion (and when the procedure will be more expensive and less safe). Needless to say, all of these outcomes are burdensome to pregnant women, and each increases the risk to her health and life. Even without a pandemic, women are fourteen times more likely to die in childbirth than due to an abortion procedure; with one, the inherent risk of childbirth is exacerbated by the risk of exposure to COVID-19 during every trip to the doctor or hospital, or even the store to buy supplies. Traveling to another state—during a time when all non-essential travel is prohibited or strongly discouraged—certainly increases the risk of contracting COVID-19. And while abortion is generally a very safe procedure, later abortions are more dangerous than earlier ones.
Constitutional Protection for Abortion
To understand the extreme nature of these recent bans, we need to consider briefly the existing constitutional protection for abortion.
In 1973, the Supreme Court held in Roe v. Wade that women had a constitutional right to terminate a pregnancy before a certain point. The right was situated within the right to privacy, protected by the Fourteenth Amendment’s Due Process Clause. The majority opinion, written by Justice Blackmun, embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. The Court rejected the idea that the fetus is a person with independent constitutional rights. Under Roe, state laws banning or restrictively regulating abortion were invalid.
After two decades of backlash and maneuvering by the anti-abortion movement (including violence against clinics and providers), the Court revisited Roe in Planned Parenthood v. Casey (1992). States, including Pennsylvania, had begun successfully passing restrictive abortion laws that were deliberately in tension, if not outright inconsistent, with, Roe. As is true again now, conservative voters and legislators hoped that a newly composed Supreme Court would simply overturn the ruling in Roe—and return the issue of abortion to the states, many of which would have chosen to criminalize all or virtually all abortions.
Considering the validity of several restrictions contained in the Pennsylvania Abortion Control Act, the Court reaffirmed the basic principle in Roe that women have a constitutional right to terminate a pregnancy within certain constraints, but reformulated the trimester framework. Under the standard announced in Casey, a state can regulate pre-viability abortion only as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother.
Although the Supreme Court has decided many important abortion rights cases, the third that bears mentioning here is Whole Woman’s Health v. Hellerstedt (2016). In that case, the Court invalidated Texas’s “TRAP” law, which imposed targeted regulations on abortion providers that were so difficult to meet many of them were forced to close. As discussed here in greater detail, the Court held that because the law had no benefit for women’s health—the state could not show that a single woman had ever benefitted from the rules—and imposed a substantial obstacle to access given the clinic closures, it imposed an unconstitutional undue burden on women’s right to seek pre-viability abortions.
In less chaotic times, there is no question that a ban on pre-viability abortions is unconstitutional under these precedents. States are arguing that the pandemic justifies a temporary suspension of abortion, but, as discussed below, the reasons they offer do not justify the unconstitutional deprivation of rights.
The Legal Roller Coaster
Within days, each of the COVID-19 abortion bans has been challenged in federal court. Although the path has not been smooth, each ban is now subject to court orders that prevent them from being enforced.
In Texas, for example, two days after the abortion ban was announced, a group of abortion providers, patients, and reproductive choice organizations filed a lawsuit challenging the validity of all orders that restricted abortion access on constitutional grounds. The federal district court issued a temporary restraining order (TRO) on March 30, preventing Texas from enforcing the abortion ban pending a hearing on a preliminary injunction. In short, the court concluded that the plaintiffs were likely to succeed on the merits—i.e. they were likely to prove that a ban of all pre-viability abortions violates the Fourteenth Amendment of the U.S. Constitution.
The very same day, the U.S. Court of Appeals for the Fifth Circuit vacated the TRO and permitted the ban to take effect. Immediately, the plaintiffs were back in district court, this time requesting an exemption for medication abortions and abortions for women who were nearing the end of the legal limit on gestational age for abortion. The district court issued a second TRO for that class of women—which the Fifth Circuit again vacated the next day. The plaintiffs then sought emergency relief in the U.S. Supreme Court. While that petition was pending, the Fifth Circuit reconsidered its own ruling and decided to reinstate a portion of the TRO, which means that clinics were once again able to resume medication abortions, which can be used until the tenth week of gestation.
The back-and-forth over the Texas ban has been stressful enough for providers, who go to work each day not knowing whether providing care for their patients might get them in legal hot water. Now imagine what it has been like for pregnant women, who do not know from one day to the next whether they will be permitted to exercise their constitutional right to terminate a pregnancy. Some of those in limbo are minors, who have gone to court to get permission to terminate their pregnancies without parental consent (through the constitutionally mandated judicial bypass process), but still do not have access to abortion care. (One perspective on the unique burden faced by pregnant minors can be found here.) And the uncertainty and stress created by these bans is on top of the stress we all feel because of the pandemic.
Why Now? What About When the Pandemic Ends?
It might be no surprise that anti-abortion lawmakers have tried to ban abortions during the pandemic. After all, the same legislators introduced statutes outlawing all or most abortions just last year, hoping that Brett Kavanaugh’s arrival on the Court would spell the end for Roe v. Wade. We might guess that the coronavirus abortion bans are opportunistic, nothing more and nothing less.
But the history of the abortion debate shows that the COVID-19 abortion bans fit into a larger strategy to unravel abortion rights. The bans do not ask the Court to declare that there is no right to abortion, during the pandemic or otherwise. Instead, states like Alabama, Ohio, and Texas emphasize claims about the facts on the ground, insisting that abortions are not crucial for anyone’s health—and that abortion providers use up badly needed personal protective equipment.
This emphasis on contested facts is no accident. The antiabortion movement organized to champion a fundamental right to life, and after Roe v. Wade came down, abortion foes focused on a constitutional amendment outlawing the procedure nationwide. But that constitutional amendment never made it very far in Congress, and the Supreme Court remained unconvinced by fetal-rights arguments well into the 1980s. To chip away at Roe, anti-abortion leaders needed a new strategy.
The Hyde Amendment, a ban on Medicaid reimbursement for abortion, provided a blueprint for the future. Rather than zeroing in on the rights at stake, abortion foes would defend the benefits of specific restrictions—and insist that abortion itself harmed women, families, and communities. In the early 1980s, anti-abortion activists even proposed a new vehicle for these arguments, a so-called undue-burden test. Abortion foes suggested that if a restriction only harmed providers, or if a regulation protected patients, there could be no burden at all.
While the Supreme Court initially showed no interest in this argument, a version of it became the law of the land in 1992 when the justices decided Casey. The Court declined an invitation to reverse Roe and did not adopt the precise version of the undue-burden standard that abortion opponents had developed. Nevertheless, leaders of the anti-abortion movement believed that Casey had identified a way forward. In the short term, abortion opponents could defend restrictions by detailing their benefits (and describing the harms said to result from abortion). And in the long term, contesting the facts could pave the way for the undoing of both Roe and Casey. After all, Casey had saved abortion rights partly because the Court had concluded that many had profoundly relied on the availability of legal abortion in structuring their lives. Over time, leading anti-abortion groups planned to show that women should not and could not rely on a procedure that harmed them. If this gambit was successful, the foundation for abortion rights would crumble.
But what happened if the facts did not support the need for an abortion restriction—or suggested that such a regulation could do considerable harm? In the decades after Casey, anti-abortion groups responded by urging the Court to defer to legislators, especially in cases of scientific uncertainty. This tactical plan had two parts. First, abortion foes tried to illuminate the superior decision-making and fact-finding capabilities of legislators. As important, abortion opponents tried to shape the meaning of scientific uncertainty, insisting that if any experts took their side, states should have more power to restrict abortion. These arguments seemed to sway the Court in Gonzales v. Carhart, the Court’s 2007 decision upholding the federal Partial-Birth Abortion Ban Act. Gonzales, in turn, fueled a new push for restrictions predicated on some claim of scientific uncertainty. States banned abortion at twenty weeks based on largely rejected research on the timing of fetal pain. Lawmakers demanded so-called dismemberment abortion bans—outlawing dilation and evacuation, the most common abortion procedure after the first trimester—by invoking Gonzales. Abortion foes promoted more ambitious targeted regulations of abortion providers (TRAP laws), insisting that abortion providers had a questionable safety record. New informed consent laws claimed that abortion increased the risk of breast cancer, suicidal ideation, and infertility. As more women began using medication abortion, legislators introduced laws outlining a procedure to reverse these abortions—and continued to do so even when researchers suggested that the reversal protocol could seriously injure patients.
The same fact-centered strategy drives COVID-19 abortion bans. Consider Texas’s order. Governor Greg Abbott issued an order postponing any elective medical procedure until April 21 (and likely longer). Ken Paxton, the state’s attorney general, proclaimed that the ban covered all abortions not necessary to save a woman’s life, including medication abortions. What was the justification? Abbott and Paxton argued that the move would free up hospital beds for COVID-19 patients and preserve gloves and masks needed for frontline medical providers. Already, the fight in the courts has turned on whether this reading of the facts is accurate. Do abortion providers use up hospital beds or personal protective equipment? Does it matter how late in pregnancy a procedure is performed—or if a woman might soon run up against state laws banning the procedure later in pregnancy? Should the order apply equally to all kinds of abortions, or do some have less of an impact on the state’s ability to grapple with COVID-19?
The states also have used the pandemic to revive arguments about when and how courts should defer to lawmakers’ interpretation of uncertain facts. States issuing bans have argued that courts should be more willing to defer to legislators at times of emergency. Before the Fifth Circuit allowed medication abortions to go forward, that court relied on the state’s broad police powers during a time of emergency, citing the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. Jacobson rejected a constitutional challenge to a state order mandating vaccinations during a smallpox epidemic. As Texas (and the Fifth Circuit) read it, Jacobson meant that states had more authority during an emergency, especially when the facts were contested.
A claim of emergency authority would seem set to expire whenever the pandemic ends. But the War on Terror should remind us that the administration of an emergency exception is not likely to be so simple. Who would decide what constituted an emergency? Public health authorities, governors, and the federal government agree on the almost unique seriousness of our present pandemic. But what happens if there is a disagreement? How can courts tell if an emergency has ended? Does the state deserve deference on all these questions?
Perhaps most simply, the COVID-19 abortion bans might give states a preview of how the justices will react to an abortion ban, even one introduced in extraordinary times. To be sure, no state defends its ban as a way to outlaw abortion after the pandemic. But if the Supreme Court allowed such a ban to go into effect, states will be emboldened to introduce more sweeping criminal measures like the one Alabama passed in 2019. It is hard to imagine that the Court would allow the states to implement a wholesale ban on the exercise of any other constitutional right during the pandemic. Such a decision might signal that the Court thinks of abortion as less of a right, or not a right at all. Or that, at least, is what antiabortion lawmakers are hoping.
It is still far from clear whether a COVID-19 abortion ban will end up at the Supreme Court—or what the justices will do should one arrive. One thing is clear: whatever happens to these bans will have lasting implications for the abortion debate, well after the pandemic’s end.