By Dessie Otachliska, J.D.
Limited Access to Elective Medical Procedures During the COVID-19 Pandemic
As the coronavirus ravaged the United States, governors nationwide sprang into action, issuing executive orders mandating masks, social distancing, and the closure of businesses and non-essential services. On March 22, 2020, ten days after the COVID-19 pandemic was declared a national emergency and numerous state and local governments across the country implemented lockdowns and stay-at-home orders, Texas Governor Greg Abbott directed healthcare facilities and providers across the state to postpone all procedures not deemed medically necessary. States across the nation issued similar directives, following guidance issued by the Centers for Medicare & Medicaid Services (CMS) to limit elective surgeries as a means of containing the virus’ spread. However, the day after Governor Abbott’s announcement, Texas Attorney General Ken Paxton clarified that the governor’s order also applied to abortion clinics, which were prohibited from performing abortions unless the mother’s life was in danger. The impact of limiting abortion access in a state as large as Texas was dramatic: the average distance to the next closest out-of-state clinic for the 23 abortion clinics in Texas is 260 miles, with many would-be Texas abortion patients facing significantly longer journeys to obtain the medical care they sought.
Paxton’s announcement was followed by a drastic increase in requests for the “abortion pill,” as more and more women sought so-called medication abortions, which may be performed at home after requesting medication (such as Mifeprex (mifepristone), a progesterone blocker) through the mail. After governments imposed restrictions on elective procedures in response to the spread of the coronavirus, requests for medication abortions began to soar. Between March 20, 2020, and April 11, 2020, the request rate for self-managed medication abortions increased 27% nationwide. In Texas, requests increased a staggering 94%. In Ohio, another state that prohibited clinics from providing elective abortions as a nonessential surgery in order to preserve healthcare resources for COVID patients, requests increased 22%.
One woman in Texas who requested a self-managed medication abortion waited two weeks for her pills to arrive. As a result of this delay, her abortion occurred 10 weeks into her pregnancy, nearly the end of the feasibility period for medication abortions, which are generally available until the pregnancy reaches 11 weeks. With only limited financial means, this woman did not have the resources to travel to a clinic outside of Texas to have the procedure and consequently lacked alternative options for obtaining an abortion as a result of the state’s restrictions on elective procedures. Although the woman had undergone a medication abortion at eight weeks in an earlier pregnancy, the at-home administration of the medication incited complications that sent her to the emergency room, compounding the medical risks of the self-managed abortion with an augmented likelihood of COVID exposure and infection.
Abortion in the United States: An Ever-Narrowing Right
Access to abortion has been recognized as a fundamental American right since 1973, when the Supreme Court decided Roe v. Wade. Numerous state laws and judicial decisions have eroded the availability of affordable, safe elective abortions: 19 states, for example, require abortions to be performed in a hospital. 18 states mandate that patients seeking abortions be counseled on specific aspects of abortion, such as the fetus’ ability to feel pain (13 states) or correlations between abortion and breast cancer (5 states), and 25 states compel a mandatory waiting period between a patient’s receipt of pre-abortion counseling and the performance of the abortion itself. Such restrictions impose significant burdens on availability and ease of access to abortion, severely limiting the ability of those living in rural areas or in poverty[1] to obtain the procedure, as these patients may live too far from a hospital or clinic to conveniently travel to a facility that can legally perform abortions or may lack the financial resources associated with the procedure, such as a hotel room to accommodate a mandated waiting period.
Despite the limitations these laws impose on the accessibility of abortions nationwide, they have been repeatedly sanctioned by courts when challenged on constitutional grounds. In Planned Parenthood v. Casey, decided in 1992, the Supreme Court adopted an “undue burden” standard for evaluating state restrictions on abortion. The Court defined “undue burden” as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” and it upheld many of the restrictions challenged in Casey under this standard. In a 5-4 joint opinion co-authored by Justices Souter, Kennedy, and O’Connor, the Court found that a Pennsylvania abortion law requiring informed consent of the patient seeking an abortion, a 24-hour waiting period before the procedure could be performed, and a parental consent provision for minors seeking abortions to be constitutional under the “undue burden” standard. Although the Court also found that the law’s spousal notification provision did impose an undue burden on abortion seekers because of its potential to prevent women experiencing domestic violence or abuse from seeking abortions, Casey nonetheless empowered states to pass a slew of restrictions on abortion that were found to be constitutional under the undue burden framework.
The lack of guidelines for enforcing the undue burden standard established in Casey resulted in inconsistent application of the undue burden standard by lower federal courts. As a result, a 2016 Supreme Court Case, Whole Woman’s Health v. Hellerstedt, added some specificity to the standard, holding that abortion restrictions whose burdens on abortion seekers outweigh their benefits impose an undue burden under the Casey framework. Despite the case’s adoption of a balancing test to assess undue burdens on abortion, however, the Court’s most recent abortion ruling, June Medical Services v. Russo, decided in June 2020, indicated its willingness to reject the Whole Woman’s Health balancing test and return to a more piecemeal application of Casey. A plurality opinion written by Justice Breyer and joined by the remainder of the Court’s liberal wing (then numbering four justices) rejected a Louisiana law requiring abortion providers to “hold active admitting privileges at a hospital no further than 30 miles from where they performed abortion.” The concurring opinion of Chief Justice Roberts, however, limited June Medical’s holding to the specific provisions of the challenged law and signaled that he was unlikely to find similar constitutional issues with other abortion restrictions. With the replacement of the late Justice Ginsburg by Justice Amy Coney Barrett four months after the ruling in June Medical, it is likely that the Court’s current conservative majority will be more receptive to additional abortion restrictions.
Abortion and COVID: Restriction and Expansion of Access
Texas was not the only state to use a COVID-based restriction on elective surgeries to attempt to limit access to abortion. A total of 11 states[2] issued executive orders that sought to use pandemic-related limitations on medical procedures to ban or substantially limit abortions by designating them “nonessential” procedures. The majority of the states implementing such restrictions were rated “hostile” or “very hostile” to abortion by a national reproductive rights research group. In 6 of the 11 states enacting such limitations, the bans applied only to “procedural” abortions – surgical abortions performed in a healthcare facility – while limitations in the remaining 5 states also encompassed medication abortions, which require minimal or no personal protective equipment (PPE). In response to the restrictions, the American College of Obstetricians and Gynecologists (ACOG) and numerous other professional medical associations issued a joint statement on the time-critical nature of abortion, designating it 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.” The adverse economic impacts and general instability occasioned by the pandemic further contextualize the essentiality of maintaining abortion access: a survey conducted by the Guttmacher Institute found that 36% of women reported wanting to delay having children later than they had originally planned as a result of COVID, while 27% indicated their desire to have fewer children than previously intended.
While many states tried to exploit COVID-related limitations on elective medical services to restrict access to abortion, the efficacy of such efforts was often limited, either temporally or by judicial intervention. As of July 15, 2020, the executive orders restricting access to abortion in all 11 states had either been overturned by court order or expired. While abortions in all states were ultimately allowed to resume, many of the orders nonetheless succeeded in limiting elective abortion for weeks or even months. In some states, including Alabama, Ohio, Oklahoma, and Tennessee, courts blocked the executive orders in response to legal challenges brought by local abortion providers. Nonetheless, even in states where attempted abortion bans were short-lived, the time during which such restrictions were in effect was sufficient to deny abortion access to some would-be patients. Moreover, protracted legal battles in Texas and Arkansas rapidly altered the status of abortion services, resulting in piecemeal and inconsistent implementation of both the initial executive orders and subsequent court orders enjoining or modifying them. These ambiguities created confusion and further limitations on services for abortion seekers. But the limitations imposed by these executive orders only tell half of the national abortion story during the COVID-19 pandemic. Despite the attempted implementation of restrictions on abortion services, 23 states implemented protections for some form of reproductive health services, with 12 states[3] explicitly enshrining protections for abortion services and 20 states protecting other reproductive health services, such as obstetrics and gynecology and midwifery.
FDA v. ACOG: A Bellwether of Reproductive Rights Jurisprudence
In addition to explicit state-level protections, the COVID pandemic appeared poised to deliver another victory for reproductive rights: in July 2020, the United States District Court for the District of Maryland ruled that patients seeking medication abortions could temporarily access mifepristone through the mail, without the in-person restrictions mandated by the FDA’s Risk Evaluation and Mitigation Strategies (REMS) program, which required the drug be obtained at a clinic or doctor’s office, among other regulations. In ACOG v. FDA, District Judge Theodore Chuang decried the “serious burden” the REMS requirements imposed upon patients seeking abortions, requiring them to “decide between foregoing or substantially delaying abortion care[ ] or risking exposure to COVID-19 for themselves, their children, and family members.” However, this victory for reproductive rights was short-lived. On January 14, 2020, the Supreme Court granted the FDA’s application for a stay of the district court’s order, with all three liberal justices dissenting. The ruling is not surprising in light of the court’s altered ideological makeup with the confirmation of Justice Coney Barrett, but the Court’s refusal to relax in-person restrictions on mifepristone reemphasizes its unwillingness to afford reproductive rights additional constitutional protection, even in the midst of an unprecedented public health crisis. In light of this ruling, and its likely indication of a conservative trend in abortion jurisprudence, stronger state-level protections for reproductive rights, such as those enshrined by nearly half of state governments during the pandemic, are more essential than ever.
[1] According to the Guttmacher Institute, a reproductive health research organization, 49% of abortion patients in the United States live below the federal poverty line.
[2] States that issued executive orders limiting access to abortion during the pandemic included Alabama, Alaska, Arkansas, Iowa, Louisiana, Mississippi, Ohio, Tennessee, Texas, and West Virginia.
[3] Delaware, Hawaii, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Oregon, Virginia, and Washington.
This post was originally published on the COVID-19 and the Law blog.
Dessie Otachliska graduated from Harvard Law School in May 2021.