Impact of the COVID-19 pandemic on abortion in the United States

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Amid the COVID-19 pandemic, anti-abortion government officials in several American states enacted or attempted to enact restrictions on abortion, characterizing it as a non-essential procedure that can be suspended during the medical emergency. The orders have led to several legal challenges and criticism by abortion-rights groups and several national medical organizations, including the American Medical Association. Legal challenges on behalf of abortion providers, many of which are represented by the American Civil Liberties Union and Planned Parenthood, have successfully stopped some of the orders on a temporary basis, though bans in several states have not been challenged.

Contents

Background

During the COVID-19 pandemic in the United States, many non-essential medical procedures were temporarily suspended to preserve medical resources like protective equipment (PPE). In the context of these orders, several Republican officials and anti-abortion advocates argued that abortion should be considered non-essential, leading to orders in multiple states explicitly prohibiting the procedure. [1] [2] [3] [4]

Several medical organizations and human rights groups issued statements critical of the restrictions. The American Medical Association characterizing them as "exploiting this moment to ban or dramatically limit women's reproductive health care." [5] [6] The American College of Obstetricians and Gynecologists, the American Board of Obstetrics and Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological and Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine issued a joint statement that "abortion should not be categorized as [a procedure that can be delayed during the pandemic]. Abortion is an essential component of comprehensive health care. It is also 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." [7] [8] [9] [10]

Plan C, a website that provides information about online abortion pill vendors, noted that its traffic had doubled by March 23 and tripled by April 8. [11] The publication Jewish Currents said that by mid-March its viewership for an article on how to induce an abortion was "off the charts". [11]

Impact based on states

Alabama

A March 2020 order by the State Health Officer required that "all elective dental and medical procedures shall be delayed". [12] [1] The Alabama Department of Public Health initially stated that abortion providers were not affected by this order. The order was amended on March 27 to ban any medical procedure except those which treat an "emergency medical condition", with Alabama Attorney General Steve Marshall clarifying that abortion clinics were not exempt. [1] The American Civil Liberties Union of Alabama, representing Alabama abortion providers and clinics, challenged the order, requesting a temporary restraining order. On March 30, U.S. District Judge Myron Herbert Thompson granted the temporary restraining order, saying the attorney general's interpretation of the March 27 order was overly broad, potentially causing undue burden on abortion access. [13] The restraining order was set to expire on April 13, 2020, [1] with Thompson issuing a preliminary injunction on April 12 to maintain abortion access. [14] The state lost an appeal on April 23, meaning that abortion services are still legal. [15]

Alaska

In March, a mandate was issued to limit non-urgent medical procedures until after June 15. On April 6, the mandate was clarified to include surgical abortions. Specifically, no abortions could be performed "unless the life or physical health of the mother is endangered by continuation of the pregnancy during the period of postponement". [3] However, on April 28, the ACLU reported that abortions were still happening in Alaska. The temporary ban issued in March only lasted for a week before it was replaced with a new order. [16]

Arkansas

The Arkansas Department of Health issued an order that all medical procedures that can be safely postponed should be rescheduled. Attorney General Leslie Rutledge said that the order was inclusive of "any type of abortion that is not immediately medically necessary to preserve the life or health of the mother". Penalties for not following the order were not detailed, though Rutledge assured "decisive action". [2] The state health department sent a cease and desist letter to one of the state's two abortion clinics for violating the order. On April 13, the ACLU sued the state of Arkansas, requesting that a district court block the ban on abortion services. [17] A federal judge temporarily blocked the state's ban, but on April 22, the United States Court of Appeals for the Eighth Circuit overturned the decision and ruled that the state could restrict most surgical abortions. The prohibition on medication abortions was overturned. [18]

On April 27, an order by the Arkansas Department of Health went into effect that stated all people seeking an elective surgery, including abortion, must test negative for COVID-19 in the 48 hours before the procedure. On May 1, the ACLU filed another lawsuit against the state, saying that some women cannot easily access testing and thus the order deprives them of their right to have an abortion. [19] On May 7, federal judge Brian Stacy Miller rejected the ACLU's motion, calling the decision "agonizingly difficult", but saying that the restriction of individual liberties could be justified during a worldwide health crisis. [20]

Indiana

In March, Indiana governor Eric Holcomb signed an executive order prohibiting elective medical procedures, though the orders did not mention abortions. [21] [22] The order went into effect April 1. The order was unclear on whether or not surgical abortions were still permissible. [23] As of April 23, no legal challenges had been filed against Indiana's abortion ban. [24]

Elective procedures were allowed to resume April 27. [25]

Iowa

Governor Kim Reynolds included abortion as a nonessential medical procedure and temporarily banned it in response to the pandemic. Abortion providers filed a petition requesting an emergency injunction against the order, arguing that it violated women's rights under the state Constitution and "severely jeopardizes their health, safety and welfare." [26] Iowa Solicitor General Jeffrey Thompson responded to the petition by clarifying that the order was not a blanket ban but would take medical factors into consideration, including the timing of the pregnancy. [26] The providers withdrew the petition based on his explanation. Planned Parenthood announced that it "will resume seeing patients for in-clinic procedures, in compliance with Gov. Kim Reynolds' proclamation", while Reynolds was said to be "pleased that her proclamation remains in full effect and that surgical abortions will not be exempted from this suspension of non-essential and elective surgeries". [26] [14]

Louisiana

In March, the Louisiana Department of Health issued a directive to limit non-emergency medical procedures, though abortions were not specifically mentioned. [27] In early April, state Attorney General Jeff Landry began an investigation to determine if the state's three abortion clinics were complying with the order. [28] On April 14, Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union brought a federal lawsuit in an attempt to block Louisiana's statewide ban. [29] The Department of Health directive has no set expiration date. [27]

Mississippi

In March, a Mississippi directive to temporarily ban elective, non-essential medical procedures went into effect. Governor Tate Reeves said he would enact "whatever action we need to protect the not only the lives of unborn children, but also the lives of anyone who may contract this particular virus". [30] The Center for Reproductive Rights confirmed that Jackson Women’s Health Organization, the lone abortion clinic in Mississippi, was still open and performing procedures. [14]

Ohio

On March 17, Amy Acton, Director of the Ohio Department of Health, issued an order prohibiting nonessential surgeries to preserve PPE. [31] Governor Mike DeWine said abortions should not be performed during the pandemic except when the pregnant woman's life is at risk. [32] Attorney General Dave Yost and Deputy Attorney General Jonathan Fulkerson sent letters to abortion clinics instructing them to "immediately stop performing non-essential and elective surgical abortions", defined as "those that can be delayed without undue risk to the current or future health of a patient". [33] [34] [35] Two Planned Parenthood clinics responded to the letters with a statement saying they were following the order, describing surgical abortions as necessary procedures still allowed under the emergency rules. [35]

The state's abortion providers challenged the order, represented by attorneys from the ACLU, Planned Parenthood, the ACLU of Ohio, and Gerhardstein & Branch Co. [36] Planned Parenthood filed a motion for a temporary restraining order, which was granted by US District Court Judge Michael Barrett on April 1 for 14 days. In his ruling, he said that the patient's doctor and not state government should determine whether or not an abortion is essential, and that the state failed to prove that banning surgical abortions would "result in any beneficial amount of net saving of [PPE] in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion". [14] [37] [36]

Amicus briefs were filed by the Republican Attorneys General of fifteen states, including neighboring Kentucky, Indiana, and West Virginia, in support of Ohio's efforts to restrict abortion during the pandemic. [31] [36] Yost appealed Barrett's decision, clarifying in a court filing on behalf of the Ohio Department of Health that the order does allow medical abortion, and that "doctors remain free to perform surgical abortions necessary for a mother's health or life, and also surgical abortions that cannot be delayed without jeopardizing the patient's abortion rights." [31] Barrett declined a request by the State of Ohio to put a hold on his order pending an appeals court decision. [36] On April 6, the State's request for an appeal was dismissed by the United States Court of Appeals for the Sixth Circuit. [38] On April 23, Barrett issued another preliminary injunction saying that surgical abortions could proceed if a provider determines that delaying the procedure would cause the pregnancy to become viable, and thus prevent access to an abortion. Ohio law prohibits abortion past the twenty-second week of gestation. [39]

Oklahoma

In March, Governor Kevin Stitt signed an executive order to limit elective medical procedures, later confirming that all types of abortion services were included, except for those necessary in a medical emergency or to "prevent serious health risks" to the pregnant woman. On April 6, federal judge Charles Barnes Goodwin blocked the executive order, ruling that the state acted in an arbitrary, unreasonable, and oppressive way, which posed an undue burden on abortion access in Oklahoma. [40] The Oklahoma State Department of Health’s news release "Issues Guidance for Resuming Elective Surgical Procedures in Oklahoma April 24" states that patients should receive a negative COVID-19 test result within 48 hours of the scheduled elective procedure. [41]

Tennessee

On March 23, Governor Bill Lee signed an executive order to prohibit non-essential medical procedures until April 13. Lee's spokesperson Gillum Ferguson said, "Gov. Lee believes elective abortions aren’t essential procedures and given the state of PPE in Tennessee and across the country his hope and expectation would be that those procedures not take place during this crisis." [42] The executive order did not specifically name abortion as a non-essential medical procedure, and no penalties were specified for failure to comply with the order. [11] Lee signed another executive order on April 8, which abortion clinics said effectively banned surgical abortions. Tennessee abortion providers stated that the order was unconstitutional and added their claim to an existing federal lawsuit. The state's abortion clinics are represented by the American Civil Liberties Foundation of Tennessee, Barrett Johnston Martin & Garrison LLC, Jessee & Jessee, Kramer Levin Naftalis & Frankel LLP, the Center for Reproductive Rights, the American Civil Liberties Union Foundation, and the Planned Parenthood Federation of America. [4] Lee's executive order is scheduled to end on April 30. [29] The ban was overturned on April 17 by district judge Bernard A. Friedman, who said that the state did not indicate that any significant amount of PPE would be preserved by banning abortions. [43]

Texas

In Texas, Governor Greg Abbott issued an executive order on March 22 that temporarily banned elective medical procedures. Attorney General Ken Paxton warned on March 23 that all abortions were now prohibited, except those necessary to "preserve the life or health" of the pregnant woman. [14] Those found in violation of the ban could be fined up to $1,000, jailed for 180 days, and have their medical license revoked. [44] [45] Planned Parenthood, the Center for Reproductive Rights, and The Lawyering Project challenged the order on behalf of the state's abortion providers. [46] U.S. District Judge Lee Yeakel ruled in favor of the clinics on March 26, saying that the temporary ban on abortions "prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable". [45] This ruling was overturned on March 31, 2020, when the United States Court of Appeals for the Fifth Circuit allowed Texas to reinstate the ban. [44] On April 11, the state's abortion providers asked the US Supreme Court to intervene and stop the ban. On April 13, the U.S. Court of Appeals for the Fifth Circuit walked back part of its prior decision, determining that medication abortions were allowable. [47] This was reversed once more on April 20, when the Fifth Circuit once again said that the state could block access to medication abortions. The executive order blocking procedures that are not immediately medically necessary expired April 21. [48] On April 22, the state announced that surgical and medication abortions could resume. [49] The Supreme Court issued an order on January 25, 2021, to reverse the Fifth Circuit's decision and remand the case to the Fifth Circuit as to declare it moot in light of the state's revised orders. [50]

West Virginia

Governor Jim Justice signed an executive order temporarily barring elective medical procedures. On April 2, state Attorney General Patrick Morrisey stated that the order included abortions, and implied legal consequence's against the state's lone clinic if abortions proceeded. [51] On April 25, a lawsuit was filed by the ACLU, ACLU of West Virginia, and Wilmer Cutler Pickering Hale and Dorr on behalf of Women's Health Center of West Virginia in an attempt to block the temporary abortion ban. [52]

See also

Related Research Articles

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Earl Leroy Yeakel III, also known as Lee Yeakel, is a former United States district judge of the United States District Court for the Western District of Texas.

<span class="mw-page-title-main">Abortion law in the United States by state</span>

The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly, depending on the laws of each state or other jurisdiction, although there is no uniform federal law. Some states prohibit abortion at all stages of pregnancy, with few exceptions; others permit it up to a certain point in a woman's pregnancy, while some allow abortion throughout a woman's pregnancy. In states where abortion is legal, several classes of restrictions on the procedure may exist, such as parental consent or notification laws, requirements that patients be shown an ultrasound before obtaining an abortion, mandatory waiting periods, and counseling requirements.

Abortion is the termination of human pregnancy, often performed in the first 28 weeks of pregnancy. In 1973, the United States Supreme Court in Roe v. Wade recognized a constitutional right to obtain an abortion without excessive government restriction, and in 1992 the Court in Planned Parenthood v. Casey invalidated restrictions that create an undue burden on people seeking abortions. Since then, there has continued to be an abortion debate in the United States, and some states have passed laws in the form of regulation of abortions but which have the purpose or effect of restricting its provision. The proponents of such laws argue they do not create an undue burden. Some state laws that impact the availability of abortions have been upheld by courts. In 2022, Roe and Casey were overturned by the Supreme Court in Dobbs v. Jackson Women's Health Organization, meaning that states may now regulate abortion in ways that were not previously permitted.

A six-week abortion ban, also called a "fetal heartbeat bill" by proponents, is a law in the United States which makes abortion illegal as early as six weeks gestational age, which is when proponents claim that a "fetal heartbeat" can be detected. Medical and reproductive health experts, including the American Medical Association and the American College of Obstetricians and Gynecologists, say that the reference to a fetal heartbeat is medically inaccurate and misleading, for a conceptus is not called a fetus until eight weeks after fertilization, as well as that at four weeks after fertilization, the embryo has no heart, only a group of cells which will become a heart. Medical professionals advise that a true fetal heartbeat cannot be detected until around 17 to 20 weeks of gestation when the chambers of the heart have become sufficiently developed.

Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016), was a landmark decision of the US Supreme Court announced on June 27, 2016. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. On June 28, 2016, the Supreme Court refused to hear challenges from Wisconsin and Mississippi where federal appeals courts had enjoined the enforcement of similar laws.

Abortion in Oklahoma is illegal unless the abortion is necessary to save the life of a pregnant individual.

Abortion in Texas is illegal in most cases. There are nominally exceptions to save the mother's life, or prevent "substantial impairment of major bodily function", but the law on abortion in Texas is written in such an ambiguous way that life-threatening or harmful pregnancies do not explicitly constitute an exception. Attempts to clarify and codify these exceptions into law have been rejected by Republican lawmakers in Texas.

Abortion in Alabama is illegal. Historically, Alabama's abortion laws have evolved from strict regulations in the late 19th and early 20th centuries to a period of liberalization following the landmark 1973 Supreme Court decision in Roe v. Wade, which legalized abortion nationwide. However, Alabama has consistently enacted legislation aimed at restricting access to abortion.

Abortion is illegal in Kentucky. There were laws in Kentucky about abortion by 1900, including ones with therapeutic exceptions. In 1998, the state passed legislation that required clinics to have an abortion clinic license if they wanted to operate. By the early 2010s, members of the Kentucky Legislature attempted to ban abortion in almost all cases and had also introduced the early abortion bans. Prior to 2019, Kentucky law prohibited abortions after week 22. This changed when the state legislature passed a law that moved the prohibition to week 6 in the early part of the year. A bill passed and made effective in April 2022 lowered the threshold to 15 weeks, the second most restrictive limit in effect in the United States behind Texas, and introduced regulations that made abortion illegal until it was blocked in federal court.

As of July 1, 2023, abortion in North Carolina is currently illegal after 12 weeks of pregnancy. In the case of rape or incest, abortion is legal through the 20th week of pregnancy. In the case of a "life-limiting" fetal abnormality, abortion is legal through the 24th week of pregnancy. If the woman's life is determined by a qualified physician to be at risk, abortion is legal at any stage of pregnancy. North Carolina is destination for many out-of-state women seeking abortions, as most US Southern states have implemented laws banning abortion after six weeks of pregnancy or near-total prohibitions on abortion.

Abortion in Ohio is legal up to the point of fetal viability as a result of abortion rights being placed into the Ohio State Constitution by November 2023 Ohio Issue 1.

Abortion in Utah is legally performed under a temporary restraining order blocking enforcement of the state's trigger law, which bans abortion. According to HB136, which is effective state law from June 28, 2022, abortions are banned following 18 weeks of gestation. Abortion was banned following the Supreme Court case, Dobbs v. Jackson Women's Health Organization on June 24, 2022. Utah State Legislation enacted SB 174 in May 2020, which, upon the overturn of Roe v. Wade, made inducing an abortion a second-degree felony. The law includes exceptions for pregnancies "caused by rape or incest," pregnancies that put the mother's life at risk, or "if two doctors say the fetus has a lethal defect." Rape and incest exceptions will only be viable if the crimes were previously reported to law enforcement officials.

Abortion in Wisconsin has been legal since September 18, 2023, and is performed in Madison, Milwaukee and Sheboygan through 22 weeks gestation. However, elective abortions in Wisconsin are under dispute after the overturning of Roe v. Wade by the Supreme Court of the United States on June 24, 2022. Abortion opponents cite an 1849 law that they claim bans the procedure in all cases except when the life of the mother is in danger. However, lower level courts have argued that the law only applies to infanticide and not consensual abortions. The enforceability of the law is disputed and being considered by the state courts. Planned Parenthood of Wisconsin announced that they would resume abortion services in Madison and Milwaukee on September 18, 2023. Planned Parenthood of Wisconsin later announced that they would resume abortion services in Sheboygan on December 28, 2023.

Abortion in Florida is generally illegal after six weeks from the woman's last menstrual period, This law came into effect in May 2024, being approved by Republican Governor Ron DeSantis following its passage in the Florida House of Representatives and the Florida Senate, with only Republican state legislators supporting and only Democratic state legislators opposing. Additionally, pregnant women are generally required to make two visits to a medical facility 24 hours apart to be able to obtain an abortion, in a law approved by Republican Governor Rick Scott in 2015.

Abortion in Guam is legal under territorial law, but the absence of abortion providers in the territory means that it is effectively impossible to receive abortion services.

Abortion in Iowa is illegal after detection of embryonic cardiac-cell activity. Embryonic cardiac-cell activity can be detected from around six weeks after the pregnant individual's last menstrual period, when many people are not yet aware that they are pregnant. Exceptions for the abortion ban after detected embryonic cardiac-cell activity include some instances of rape, incest, fetal abnormalities and threats to the pregnant individual's life.

<span class="mw-page-title-main">COVID-19 pandemic in Ohio</span>

The COVID-19 pandemic was confirmed to have reached the U.S. state of Ohio on March 9, 2020, when the state's first cases were reported. The first death from COVID-19 in Ohio was reported on March 19. Subsequently, records supported by further testing showed that undetected cases had existed in Ohio since early January, with the first confirmed death on March 17. By April 23, Ohio had 656 confirmed deaths; by May 1, there were 1,002 confirmed deaths. Accurate data was difficult to obtain due to limited test availability. By December 12, a total of 553,461 cases had been reported leading to 31,803 hospitalizations and 7,477 deaths.

The government of Texas's initial response to the COVID-19 pandemic in the state consisted of a decentralized system that was mostly reliant on local policies. As the pandemic progressed in Texas and throughout the rest of the country, the Texas government closed down several businesses and parks, and it eventually imposed a statewide stay-at-home order in late May. Then, between May and June 2020, the state government initiated a phased reopening, which was viewed as controversial. The reopening was phased back in June and July 2020 following a new surge of COVID-19 cases in the state. In March 2021, as COVID-19 vaccines began to be administered throughout the U.S., the Texas government reopened the state again.

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  50. ↑ "Supreme Court issues order against Texas abortion ban". UPI . January 25, 2021. Archived from the original on January 25, 2021. Retrieved January 26, 2021.
  51. ↑ Kabler, Phil (April 2, 2020). "Morrisey: Abortions part of suspended surgeries". Charleston Gazette-Mail. Archived from the original on April 24, 2020. Retrieved April 23, 2020.
  52. ↑ Stowers, Shannon (April 25, 2020). "Lawsuit filed to allow access to abortions during coronavirus pandemic". WCHS. Archived from the original on June 3, 2020. Retrieved April 27, 2020.
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