By Swapna Reddy, Shetal Vohra-Gupta, April Shaw, Nina Patel, Liana Petruzzi*
As U.S. states elevate restrictions to contain the spread of coronavirus, many have enacted measures to restrict “nonessential” surgeries and procedures during the COVID-19 pandemic. Following Texas and Ohio’s leads, several states (Alabama, Iowa, Oklahoma, and Mississippi) have used these directives to stop surgical and even medical abortions under the pretense that abortion constitutes a nonessential procedure. Since then, federal judges in Ohio and Alabama denied their respective states’ requests and the legality of the Texas directive is actively being determined through rulings at the federal district court and the Fifth Circuit Court of Appeals. These directives, issued during an unprecedented global health crisis, add new fuel to the flames in the national conversation on reproductive rights.
The state directives are in response to federal guidelines attempting to ration valuable medical resources for health care professionals treating COVID-19. Language in the Texas order states that “procedures that are not immediately medically necessary to correct a serious medical condition” or to “preserve the life of a patient” do not qualify as “essential” health procedures and the Texas Attorney General pledged that violations of the Order “will be met with the full force of the law”: $1000 fine or 180 days of jail time. State proponents of classifying abortions as “nonessential” claim that doing so is vital to protecting public health and preserving necessary supplies like masks, gloves, hospital beds, and ventilators by postponing elective procedures like dermatologic, ophthalmological, dental, and orthopedic surgeries.
The move to ban abortion as a “nonessential” procedure has been met with strong opposition by reproductive rights advocates, abortion providers and health professional groups such as the American College of Obstetricians and Gynecologists (ACOG). One clinic reports that the new directive has already resulted in 150 cancelled appointments. Opponents argue that abortion should not be included in the list of medical procedures that can be postponed, due to its time-sensitive nature, and that these directives are misguided and thwart comprehensive women’s health care.
The interpretation and enforcement of the orders by the Texas and Ohio Attorney Generals possess potentially dangerous implications for women’s access to safe and legal abortions. Proponents are utilizing a legitimate public health crisis to unnecessarily advance a political agenda. These COVID-19 based measures are particularly concerning as they infringe on women’s constitutional rights and their ability to seek otherwise legal health services. Such measures also exacerbate health disparities as they disproportionately impact low-income, rural, and minority women.
A Constitutionally Protected & Time-Sensitive Essential Health Procedure
Although neither order explicitly prohibits abortion, the directives in Texas and Ohio both opened the door for broad interpretations of what might constitute non-essential procedures by generally defining “essential” procedures as those that are necessary to save an individual’s life or to address serious or severe symptoms. Many abortion procedures do not fall within these exceptions. It is clear, however, that abortion is a time-sensitive medical procedure. Additionally, any delay imposed on a woman’s ability to obtain an abortion must also factor in the numerous delays that are already imposed under state law in Texas and Ohio, including waiting periods, mandatory physical exams, ultrasounds, and counseling requirements.
What Texas and Ohio have ignored is that the right to an abortion is a constitutionally protected right. As such, it is fundamentally different than other medical procedures states have limited as non-essential. As recently reaffirmed in Whole Woman’s Health v. Hellerstedt, a state may not impose an undue burden on a woman seeking an abortion. Although we have seen restrictions on certain constitutional rights during the COVID-19 epidemic (like the right to assemble), the right to an abortion is unique. The viability standard means that any delay can easily mean that a woman’s ability to exercise her right to an abortion will be absolutely lost.
For now, the Fifth Circuit is the only appellate court that has permitted a state (Texas) to keep its directive in place. It does this by applying Jacobson v. Commonwealth of Massachusetts, which it reads as holding that a state can reasonably restrict all constitutional rights during a public health crisis, and the right to abortion is no exception. The court also downplays the time-sensitive nature of abortion by refusing to characterize the directive as an outright pre-viability ban. Instead, the court holds that it is merely a “delay” of non-essential abortion procedures. And, under the court’s reasoning, there is nothing to indicate that Texas cannot continue to extend the ban for weeks or even months to address the current COVID-19 crisis.
Making Vulnerable Women More Vulnerable
A growing body of research indicates that limiting access to abortions contributes to poor health and limited economic and educational outcomes, disparately impacting low-income women of color. Low-income women compromise half of all U.S. women having abortions, with 76% of these occurring for women who have the lowest incomes. Due to overrepresentation among low socio-economic groups, Black women followed by Hispanic women are disproportionately affected when restrictions to abortions, contraception, and other family planning services are implemented. For example, recent changes to Title X means that poor and low-income women in Ohio will likely have even less access to preventative services, like contraception. Differences in abortion rates by race and ethnicity are likely due to gaps in access to affordable healthcare and contraception, as well as other factors tied to this country’s history of racism and discrimination.
Rural women in Texas and Ohio already face many obstacles in their ability to exercise their right to an abortion. A well-known obstacle is significant driving distances. In 2017, 43% of women in Texas, and 55% of women in Ohio lived in counties with no abortion provider. A 2019 study in Texas found that by delaying care due to distance pushes women later into their pregnancy, when care is even less accessible, costs increase and higher health risks remain for mother and child. In Texas, dramatic budget cuts in 2011 led to more than 80 publicly funded family planning clinics in the state to close and later, more than half the abortion clinics closed following sweeping anti-abortion legislation 2013, all of which had the most impact on access for rural and low-income women who were left with minimal to no options. COVID-19 has greatly reduced travel options which further exacerbates access limitations for low-income and rural women seeking abortions during consequential windows of time.
Shortage of Personal Protective Equipment Used as Justification for Executive Orders
National shortages and inconsistent availability of Personal Protective Equipment (PPE) for health care professionals during the COVID-19 crisis is a serious concern and will exacerbate an already stressed health care system’s ability to respond. Nevertheless, using preservation of PPE as justification for the recent Texas and Ohio directives is misguided and not based in evidence. The current Center for Medicare and Medicaid Services (CMS) recommendations advise evaluating clinical situations by analyzing the risk and benefit of any planned procedure while considering resource conservation. While the orders specifically limit nonessential surgeries and procedures in order to preserve PPE, they fail to recognize that 96% of abortion services are provided in outpatient clinic settings, meaning that the vast majority of abortions are not impacting PPE availability in hospitals. Further, approximately 30% of abortions are medication-induced, and therefore do not require surgical procedures or medical equipment at all. While it is undeniable that surgical abortions do require some medical equipment such as gowns and masks, they make up a small percentage of hospital surgeries and are often more time-sensitive than other elective procedures. For example, Texas law bans abortions after 20-weeks post-fertilization; halting abortions for even a 3 week period, which the Texas order does, can be detrimental.
These states can preserve PPE by making medical abortion more accessible through the use of telemedicine, an invaluable tool in the current epidemic. For instance, Texas can waive its physical exam requirement to allow women to use telemedicine to obtain medical abortions. And Ohio, instead of moving to ban the use of telemedicine for medical abortions, could expand telemedicine for that purpose.
The net effect of these directives represent yet another example of aggressive state efforts in recent years to limit reproductive health options by over-regulating health care providers through Targeted Regulation of Abortion Providers (or “TRAP”) laws. Other examples of state restrictions include legislation and policy changes in Louisiana, which resulted in the June Medical Services, LLC v. Russo case currently being determined at the U.S. Supreme Court, and similar laws in Arkansas, Kentucky, and Alabama. These policies not only restrict the constitutional rights of women and reduce access, they also create an inconsistent patchwork set of policies that vary greatly by state. As such, women have vastly different rights and options simply based on geography.
During this national and global pandemic, it is vital that we do not exploit a public health crisis that requires our collective resources and support to advance political and anti-choice agendas that are based in neither evidence nor fact. Texas and Ohio are constitutionally mandated to provide abortion access to their constituents and the current policy directives are thinly veiled attempts to further restrict women’s access to health care. Reproductive health care is not a political pawn, but a part of comprehensive women’s health care, as well as a protected constitutional right.
Swapna Reddy (J.D., M.P.H.) is a Clinical Assistant Professor at Arizona State University’s College of Health Solutions. https://chs.asu.edu/swapna-reddy
Shetal Vohra-Gupta (Ph.D., MSW) is an Assistant Professor at University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/vohra-gupta_shetal/
April Shaw (J.D., Ph.D.) is a Staff Attorney at The Network for Public Health Law and a Research Scholar for Public Health Law & Policy at the Sandra Day O’Connor College of Law. https://www.networkforphl.org/attorneys-and-staff/april-shaw/
Nina Patel is a Millennium Fellow and an undergraduate student at Arizona State University. https://www.millenniumfellows.org/asu/nina-patel
Liana Petruzzi (MSSW) is a doctoral student at the University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/liana-petruzzi/