Wednesday, August 12, 2020
Jessie Hill (Case Western Reserve University), Essentially Elective: The Law and Ideology of Restricting Abortion During the COVID-19 Pandemic, 106 Va. L. Rev. Online 99 (2020):
The COVID-19 pandemic has put on full display the physical and doctrinal isolation of abortion from health care more generally. In early 2020, several states proclaimed that abortions had to be stopped or delayed for lengthy or indefinite periods of time in order to help fight the pandemic. Those actions provoked litigation seeking emergency relief to keep abortion clinics open. No similar lawsuits have been necessary to protect access to other medical procedures. So why was abortion singled out for disparate treatment?
This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the
authority of executive orders limiting “non-essential,” “non-urgent,” or “elective” medical and surgical procedures. It argues that “abortion exceptionalism”—that is, “the tendency of legislatures and courts to subject abortion to unique, and uniquely burdensome, rules”—came into play in two ways. First, the COVID-19 crisis allowed anti-abortion officials to rely on the narrow meaning of “elective” in the abortion context, as well as underlying ambiguity about the meaning of “elective,” to argue that abortions are medically unnecessary and can be halted indefinitely during a pandemic. Second, and relatedly, they used the exceptional treatment of abortion and the longstanding ambivalence about the place of abortion within health care to argue that abortion providers’ demands to be treated like every other health care provider under these executive orders was in fact a claim for special treatment. This Essay ends by suggesting that, for long-term protection of abortion rights, abortion must be reframed as a medically necessary and appropriate treatment, and it must be rhetorically re-incorporated into health care more generally.