As we wait for the Supreme Court decision in June Medical Services v. Russo, a nearly identical fact pattern to a 2016 decision,[1] we should take stock of ongoing battles over reproductive healthcare. In the midst of a global pandemic, several states used the cover of a state of emergency to block access to the constitutional right to abortion care. In March, Texas attempted to ban any abortion “not medically necessary to preserve the life or health of the mother,” with violators subject to a 180 day prison sentence and revocation of their medical license.[2] Bans in Alabama, Arkansas, Iowa, Ohio, Oklahoma, and Tennessee, Louisiana, Mississippi, and West Virginia followed.[3] Some states outlawed not only surgical but also medical abortion—a pill that requires no contact with health professionals—though seventeen states have mandated a physician be present when the medication is dispensed.[4] Rather than adapting healthcare provision to the medical realities of COVID-19, these states used their previous barriers to abortion as pretextual justification for outright bans. Like so many developments throughout the pandemic, these bans hit those in poverty the hardest.

 

As the American College of Obstetricians and Gynecologists explains, “[a]bortion is…a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.”[5] Half of all those who receive abortion care live in poverty.[6] When clinics close and distance to healthcare facilities increases, those with the least means to travel are disproportionately impacted. In Texas the ban forced women to travel 20 times further to obtain an abortion, from an average distance of 12 miles to 243 miles.[7] Mass lay-offs and unemployment, loss of childcare due to school closures, and decreased public transportation services due to the virus compound this problem. Many cannot afford to travel to an out-of-state clinic. Childbirth is more medically dangerous, requires far more contact with medical professionals, and, unlike abortion, requires the type of protective medical gear these bans purport to conserve.[8]

 

Limiting access to abortion during the pandemic also depresses women’s future economic security in the long term. Abortion access increases women’s participation in the workforce, with even stronger effects for Black women.[9] In the COVID-19 economic depression, labor participation is even more precarious among all demographics, and denying access to abortion care during this time exacerbates long-term economic insecurity.

 

Legal challenges overturned abortion bans in most states, but the immediate effects created profound disruption across the nation. In Texas, for example, hundreds of abortion appointments were cancelled over just three days.[10] While the District Court in Texas halted the ban,  the Fifth Circuit overturned that decision in a 2-1 ruling, keeping the ban in place until restrictions on medical care eased in May.[11] The Eighth Circuit also upheld the Arkansas ban, finding that constitutional rights could be infringed during a health crisis. Characterizing the ban as “delay,” despite the failure to create any exemption for those who would pass the state’s 20-week gestational limit during the duration of the order, prevented some from ever accessing care.[12] In Alabama, the ACLU successfully secured a temporary restraining order (TRO), which noted the “vast majority” of abortions in Alabama require only medication.[13] The district court found substantial likelihood of success on the merits due to patients’ right to privacy under the Fourteenth Amendment. It found an outright ban on abortion to be plainly prohibited by the Supreme Court’s ruling in Planned Parenthood v. Casey, “before viability, the State’s interests are not strong enough to support a prohibition of abortion.”[14] In Ohio, the court also granted a TRO, finding that “enforcement creates a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access.”[15] The decision in Ohio characterized this question as a “novel intersection” between constitutional guarantees of reproductive freedom and the state interest in protecting citizens during the COVID-19 emergency. As the pandemic continues while states re-open across the country, all eyes will be on the Supreme Court to see if its new members since Hellerstedt move the goalposts and undermine precedent, or if it will continue to uphold the constitutional right to abortion care.

 

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[1] See Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016).

[2] Press Release, Attorney General of Texas, Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (March 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all.

[3] Abortion Bans Amid COVID-19, MedicineNet, https://www.medicinenet.com/script/main/art.asp?articlekey=229809 (last visited April 6, 2020); Jordan Smith, The Fight to Protect Abortion Access Amid the Pandemic, The Intercept (June 15, 2020 3:00 AM), https://theintercept.com/2020/06/15/coronavirus-pandemic-abortion-access/.

[4] Id.

[5] Id.

[6] Sabrina Tavernise, Why Women Getting Abortions Now Are More Likely to Be Poor, N.Y. Times (July 9, 2019), https://www.nytimes.com/2019/07/09/us/abortion-access-inequality.html.

[7] John Kruzel, Texas women forced to travel 20 times farther for abortion under coronavirus ban: report, The Hill (April 3, 2020 12:43 PM), https://thehill.com/homenews/state-watch/491023-texas-women-forced-to-travel-20-times-farther-for-abortion-under.

[8] Christina Cauterucci Abortion Care Is Essential Health Care, Slate (March 23, 2020 6:08 PM), https://slate.com/technology/2020/03/coronavirus-abortion-ban-texas-ohio.html.

[9] Anna Bernstein & Kelly M. Jones, Ctr. On the Economics of Reproductive Health, The Economic Effects of Abortion Access: A Review of the Evidence 8 (2019), https://iwpr.org/publications/economic-effects-abortion-access-report/.

[10] Jordan Smith, The Fight to Protect Abortion Access Amid the Pandemic, The Intercept (June 15, 2020 3:00 AM), https://theintercept.com/2020/06/15/coronavirus-pandemic-abortion-access/.

[11] Mark Joseph Stern, Federal Appeals Court Lets Texas Resume Abortion Ban, Slate (March 31, 2020 4:37 PM), https://slate.com/news-and-politics/2020/03/fifth-circuit-texas-coronavirus-abortion-ban.html.

[12] Max Brantley, 8th Circuit reinstates Arkansas’s ban on surgical abortions, Arkansas Times (April 22, 2020 10:49 AM), https://arktimes.com/arkansas-blog/2020/04/22/8th-circuit-reinstates-arkansass-ban-on-surgical-abortions.

[13] Robinson v. Marshall, No. 2:19-cv-00365-MHT-JTA (M.D. Ala. 2020) (order granting temporary restraining order) (accessed at https://www.aclu.org/sites/default/files/field_document/robinson_v_marshall_-_order_granting_tro.pdf).

[14] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).

[15] Preterm-Cleveland v. Attorney General of Ohio, No. 1:19-cv-00360 (S.D. Ohio 2020) (order granting temporary restraining order) (accessed at https://www.documentcloud.org/documents/6821524-OH-TRO.html).