Limited access to healthcare during the COVID-19 pandemic severely curtailed the ability of pregnant persons to access abortion services. At a time when abortion access was especially critical, mobility and quarantine measures were widely used as pretenses to delay services. Under the guise of protecting frontline workers, saving PPE kits, and allowing only essential medical services to continue, legislators imposed several crackdowns to restrict abortion that, in fact, had failed to address the concerns raised in the first place. Given abortion’s time-sensitive nature, this further exacerbated existing inequalities within society in terms of race and socio-economic status, and created a vacuum for essential services that were of utmost importance to basic health care.
I. Curtailing Abortion During a Pandemic
During the growing COVID-19 crisis, it became evident that the United States had a serious lack of PPE kits available for use while treating patients. To efficiently address the issue, several state governments announced a temporary halt of elective health care activities. Some states, like Alabama, issued a very basic executive order that asked people to postpone their elective health care procedures. Other states chose to define “elective” services, providing examples of procedures considered elective by the state, or more often specifying surgeries that could be delayed for a certain number of months without affecting the health of the patient. Additionally, the government reasoned that restricting hospital visits to absolutely necessary procedures would also reduce the rate of community transmission of this contagious virus.
State governments’ strict demarcation between elective/essential or non-elective/non-essential medical services, however, did not always clarify the appropriate classification for abortion and other family planning services. Some states, like New Mexico, specifically mentioned that the “full suite of family planning services” were to be exempt from the executive order even though many consider reproductive services to be non-essential. Other states issued clarifications that allowed exemptions like procedures that were of urgent medical need and could affect the health of the patient but completely left abortion in the lurch. Yet some states like Arkansas, Tennessee, Ohio, West Virginia, and Iowa went even further by carefully drafting orders and laws that delayed the provision of abortion services for an indeterminate period of time equal to the duration of those laws, notwithstanding the fact that abortion is a time sensitive issue.
However, abortion services rarely require hospitalization and do not use PPE kits. In light of this, the conventional argument that abortion access restrictions were predicated on reducing community transmission or conserving essential medical equipment seems less persuasive because certain states, like Alabama, continued to require women to appear for in-person counseling prior to getting an abortion procedure during an emergency. Ohio, on the other hand, was deliberate in granting free speech rights to the press and religious freedom rights such as public gatherings, both of which arguably involve a higher degree of contact between people than an abortion procedure. A few exceptions were made for “time sensitive” procedures but no such considerations were made for abortion. Texas, too, had a COVID strategy that helped move most medical consultations online but specifically provided against it for abortions.
II. Implications of Inaccessible Abortion Services
The consequences of such severe curtailment of reproductive services reveals the dire situations specific categories of pregnant persons found themselves in. Firstly, there was blatant sexual injustice because a blanket ban on non-essential medical services that does not address abortion fails to adequately consider the social implications of such a ban. Making exceptions for “time sensitive” procedures, but omitting abortion as one of them reinforces traditional notions of reproductive services as “therapeutic” or “elective”, which perceives medical procedures required by pregnant persons as a “luxury.” It also sends a message suggesting the silent acquiescence to motherhood that is usually societally expected of a woman. In terms of an intersection of sex and disability, disabled women who were restricted by mobility issues and didn’t have access to the required employment or funding may not have been able to procure an abortion at all because of the cost of traveling to a state that may grant more leniency to reproductive services. There already exists a maternal health crisis amongst mothers of color, and this coupled with the overburdened hospital systems in communities of color relegates them to inequitable health care access. Racial differences in income inequality also means that women of color earn significantly less than other women, limiting their ability to travel to procure abortions or even utilize private hospitals (where the systems may not be as overburdened) due to the intersection of race, sex and socio-economic standing.
When states did manage to provide an “exemption” to abortion, it essentially meant that the deference granted to abortion provider doctors to decide whether to proceed with surgeries was more restrictive than that granted to other physicians. States, thus, could impose regulations that would decide for the doctor whether surgery was permissible and was often allowed exclusively for preserving the life of the woman, keeping abortion tightly within in the realm of state control.
III. The Failure of Judicial Review
In the aftermath of these restrictions, Planned Parenthood and other abortion providers challenged the orders in court, citing an “unconstitutional ban on previability abortion” which would violate a pregnant person’s “constitutional right to essential healthcare and self-determination.” Abortion providers argued that the state had ulterior motives behind restricting abortion on the putative claims of saving essential medical equipment. This was evidenced by an amicus brief that had been submitted by doctors, which insisted that providing abortion services would not burden the hospitals. In fact, abortions might have alleviated the burden from the hospitals that would otherwise have to be engaged in birthing procedures for pregnancies that were forced to be carried to term.
However, the problem that presented itself in these cases was choosing which standard of analysis to apply. Planned Parenthood v. Casey provided an undue burden test which allowed states to impose regulations on abortion unless they posed an undue burden on pregnant persons from accessing abortion. Whole Woman’s Health v. Hellerstedt furthered this analysis and held that the courts were not to defer uncritically to the legislature while determining the benefits of a particular abortion regulation. However, while Casey seemed to be the applicable standard, the district court in Texas did take into consideration that the COVID-19 situation was a public health emergency. This meant the closest applicable case law was Jacobson v. Massachusetts. In the Jacobson court’s analysis of the mandatory smallpox vaccine, the court was highly deferential to the legislature in determining what was required for public welfare because of the public health emergency at hand.
Generally, the more important the right, the more justification a government needs to restrict the right. Fundamental rights, like free speech, require the satisfaction of “strict scrutiny.” The government has to show a compelling interest and a narrow tailoring of the law in question to achieve that interest. On the other hand, rights not deemed to be fundamental are tested on “rational review,” which requires a rational nexus between a legitimate state interest the means to achieve it. There also exists a middle ground of “intermediate scrutiny,” requiring the government to show an important purpose and that the means employed are substantially likely to achieve that purpose.
The problem with falling back on Jacobson is that this approach is improper. Judicial review is an important aspect of constitutional analysis. Relegating abortion restrictions to a lower standard of analysis merely because of the public emergency at hand means that governments do not need to tailor their policies to address a particular concern. This also allows judges to selectively uphold bans they agreed with politically by deferring to the legislature. Due to the continuing nature of the COVID-19 pandemic, the temporary suspension of judicial review could last indefinitely. Judicial review, in this situation, is crucial to ensure a check on the government and create precedent to be used as the basis for future public health emergencies.
In essence, ordinary judicial review would have been sufficient to evaluate the constitutionality of the abortion ban during the pandemic. Jacobson did not propose a new standard of analysis during state emergencies. The court used a balancing test to analyze the state’s use of police powers on a reasonable basis. This reasonability analysis, however, reads more like heightened scrutiny instead of rational review. Even if Jacobson were interpreted as having set a different standard of review during public health emergencies, new legal theories of scrutiny develop over time. Thus, the standards in Casey and Whole Woman’s Health, which came after Jacobson, could easily have been applied. Further, Casey’s undue burden test already takes into consideration situations like public health emergencies because the regulations in place, which the state is free to make, are constrained only by the condition that it cannot place an undue burden in accessing abortion. In other words, the benefits of the temporary abortion ban has to have more weight than other laws that allow abortion.
IV. Abortion as an Exercise in Equal Protection
The inconsistency by the courts in applying an apt standard of analysis could have been resolved by looking at abortion through a different lens. Equal protection analysis could possibly solve this confusion. Especially in the context of the pandemic, discarding a substantive due process argument and arguing on the basis of equal protection could help not only to support a finding that these bans are unconstitutional but also increase access to abortion services during the pandemic.
The undue burden test would still have favored the state because of the simple requirement of not placing a substantial embargo on the woman’s right to choose while enacting regulations. Under an equal protection analysis, where there is a claim of sex discrimination, the standard of review is not a rationality review but intermediate scrutiny. This test requires a proper “fit to the state interest.” With respect to the amicus brief submitted by doctors, the state would therefore not be able to justify restricting abortion to ensure availability of medical equipment. Additionally, an equal protection analysis can help bring to light how sex discrimination impacts the public’s understanding of abortion, pregnancy, and motherhood in general and how laws that fail to pass muster under such an analysis influence socio-economic inequalities. Looking at abortion through the lens of due process does not place an affirmative duty on the state to create an environment that ensures the realization of the right. Broadening the scope of the analysis to equal protection places an affirmative duty on the state to “facilitate the process of self-determination.”
The issuance of government orders banning abortion amount to a tacit attempt to control women’s bodies. The court’s attempt at intervening and ruling on standards of review for public health emergencies is still based heavily on the language of substantive due process. Considering equal protection arguments during a pandemic could help reinstate strong abortion rights protections post-pandemic as well. By changing the reproductive rights jurisprudence and establishing different standards of review for public health emergencies, abortion rights in the post-pandemic era have a better chance of being uncompromised.
About the Author Aaditi Pradeep is a dual degree candidate for the B.A L.L.B/ J.D program at Cornell Law School. She works as a Research Assistant at the Centre for Justice, Law and Society and is involved in working with reproductive justice.
Suggested Citation: Aaditi Pradeep, Twin Crises- Abortion During Covid-19, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (December 6, 2021), http://jlpp.org/blogzine/?p=3826.