COVID-19 Resource Center
COVID-19 Resource Center
April 13, 2020
5 min read
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COVID-19 ignites new debate regarding abortion access

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Governors and attorneys general in at least four states — citing a need to conserve medical resources during the COVID-19 pandemic — recently tried to ban some abortions in their respective states.

“These actions will help us preserve the personal protective equipment as well as our health care workforce,” Iowa Gov. Kim Reynolds, said during a news conference March 26. Leaders of Alabama, Ohio and Texas also made similar announcements.

However, legal and health experts said the states’ decisions violate the law, jeopardize women’s health and in some instances took steps to reinstate the states’ original abortion laws.

“Ordering the cancellation or indefinite postponement of abortions constitutes an outright ban on abortion,” Rebecca B. Reingold, JD, senior associate at the O'Neill Institute for National and Global Health Law at Georgetown University Law Center, told Healio Primary Care.

 

She said the states’ actions violate previous Supreme Court rulings — Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey — that prohibited bans before the fetus was viable.

Temporary bans challenged

The Des Moines Register in Iowa, the Montgomery Advertiser in Alabama and the Columbus Dispatch reported that governors and attorneys general in those states sought to only allow abortions in which the life of the baby’s mother was in jeopardy.

Ken Paxton, attorney general of Texas, said his state’s ban in a statement on March 23.“applies throughout the state and to all surgeries and procedures that are not immediately medically necessary.”

“Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals,” he explained.

The temporary bans were quickly challenged. Federal judges in Alabama and Ohio had struck down the proposed bans. In Iowa, lawyers and the American Civil Liberties Union came to an agreement to allow abortions that protect the life of the baby’s mother to continue.

In Ohio, the Columbus Dispatch reported that on April 10, a federal judge in that state extended for 2 weeks a temporary restraining order blocking that state’s ban on all abortions, citing the COVID-19 pandemic.

In Texas, the ban continues while a circuit court weighs arguments from both sides. Paxton said he applauds the circuit court’s decision. “The temporary stay ... justly prioritizes supplies and personal protective equipment for the medical professionals in need,” he said in a statement. On April 11, Planned Parenthood announced in a press release that Texas abortion providers — represented by the Center for Reproductive Rights, the Lawyering Project, and Planned Parenthood Federation of America — had asked the U.S. Supreme Court to take emergency action to “restore essential, time-sensitive medication abortion services while the case proceeds.”

Reingold said that even amid a pandemic, state governments are legally obligated to follow the Constitution.

“State restrictions on abortion must comply with U.S. Supreme Court precedent — the Supremacy Clause of the U.S. Constitution establishes that the Constitution takes precedence over state laws,” she said. “While states can lawfully impose temporary restrictions on nonessential or elective surgeries and procedures, they cannot categorize abortion as a nonessential or elective surgery or procedure. Abortions are time-sensitive procedures — many women who are prohibited from accessing them for the duration of the COVID-19 pandemic will be unable to access them altogether.”

Health organizations take a stance

The American College of Obstetricians and Gynecologists (ACOG) and the AMA were among health organizations that spoke out against efforts to ban abortions.

Skye Perryman
Skye Perryman

“ACOG cautions that time-sensitive obstetrical and gynecologic procedures for which a delay will negatively affect or harm patient health and safety should not be considered elective,” Skye Perryman, JD, chief legal and policy officer of ACOG, said in a statement. “These procedures, including abortion, should not be delayed or canceled in COVID-19 response efforts.”

Studies have shown various health effects of abortion restrictions on women. A 2015 analysis in Psychological Medicine showed that women who tried to get an abortion and could not do so had worse anxiety, self-esteem and life satisfaction than women who were able to get an abortion. In a 2017 Perspectives on Sexual and Reproductive Health article, interviews with 29 women living in states where abortion access was limited or restricted revealed that delaying abortions also led them to consider self-induced abortion via misoprostol, herbs or home remedies or blunt-force trauma.

Reingold said any court that sides with states seeking bans is upholding “substantial obstacles in the path of a woman seeking an abortion,” which the previous Casey Supreme Court ruling also prohibited before viability.

She said the states trying to ban abortions during the COVID-19 pandemic should consider other legislative proposals to find a solution to the shortages caused by the U.S. outbreak.

“They should consider removing outright bans on and other legal barriers to physicians using telemedicine to prescribe abortion medication remotely,” Reingold said. “The use of telemedicine for medication-induced abortion would allow many patients to access an abortion sooner and, as a result, reduce the number of surgical abortions — which require the use of more medical supplies — performed during the COVID-19 pandemic.” – by Janel Miller

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References:

AMA. AMA statement on government interference in reproductive health care. March 30, 2020. https://www.ama-assn.org/press-center/ama-statements/ama-statement-government-interference-reproductive-health-care. Accessed April 2, 2020.

Foster DG, et al. Psychol Med. 2015;doi:10.1017/S0033291714003213.

Jerman J, et al. Perspect Sex Reprod Health. 2017;doi:10.1363/psrh.12024.

Lyman B. Coronavirus: Federal judge rules abortion procedures can continue during outbreak. Montgomery Advertiser. March 30, 2020. https://www.montgomeryadvertiser.com/story/news/2020/03/30/coronavirus-federal-judge-blocks-alabama-attempt-stop-abortions-during-outbreak/5091465002/. Accessed April 2, 2020.

Office of Texas Attorney General. AG Paxton applauds fifth circuit decision temporarily upholding governor’s order halting unnecessary medical procedures. March 31, 2020. https://www.texasattorneygeneral.gov/news/releases/ag-paxton-applauds-fifth-circuit-decision-temporarily-upholding-governors-order-halting-unnecessary. Accessed April 2, 2020.

Office of Texas Attorney General. 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. Accessed April 2, 2020.

Pfannenstiel B. ‘Essential’ abortions can continue in Iowa despite coronavirus outbreak, the state and advocates agree. Des Moines Register. April 1, 2020. https://www.desmoinesregister.com/story/news/politics/2020/04/01/coronavirus-in-iowa-essential-abortions-can-continue-covid-19/5103533002/. Accessed April 2, 2020.

Planned Parenthood. BREAKING: Texas abortion providers ask Supreme Court to urgently restore medication abortion during pandemic; abortion services remain virtually inaccessible under Gov. Abbott’s COVID-19 Order. https://www.plannedparenthood.org/about-us/newsroom/press-releases/breaking-texas-abortion-providers-ask-supreme-court-to-urgently-restore-medication-abortion-during-pandemic-abortion-services-remain-virtually-inaccessible-under-gov-abbotts-covid-19-order. Accessed April 13, 2020.

Rowland D. Columbus Dispatch. Capitol Insider: Yost orders clinics to stop ‘non-essential and elective’ surgical abortions. https://www.dispatch.com/news/20200321/capitol-insider-yost-orders-clinics-to-stop-rsquonon-essential-and-electiversquo-surgical-abortions. Accessed April 13, 2020.

Weyrich L. Federal restraining order on Ohio’s COVID-19 abortion ban extended. https://www.dispatch.com/news/20200410/federal-restraining-order-on-ohiorsquos-covid-19-abortion-ban-extended. Accessed April 13, 2020.

Disclosure: Reingold reports no relevant financial disclosures.