Tuesday, January 12, 2021
Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)
At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.
The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.
Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.