Fighting Abortion Bans During COVID-19‍

Story by Cynthia Maduka, Communications Intern (Summer 2020)

Abortion has been a polarizing issue since the passage of Roe V. Wade (1973) and there have been several attempts to either restrict or eliminate abortion rights. However, the COVID-19 pandemic has given opponents a new opening as several states issued executive orders in March and April classifying abortion as non-essential healthcare. In order to counteract these measures, the Center for Reproductive Rights filed legal challenges against Texas, Oklahoma, Louisiana and Tennessee.

This type of legal fight is not new for them. For almost 30 years the Center for Reproductive Rights (CRR) has been taking legal action against laws that infringe on reproductive rights.

On March 4, 2020, just weeks before many of these Executive Orders and legal challenges took place, Center For Reproductive Rights staff were presenting oral arguments at the Supreme Court in June Medical Services v. Russo, which ultimately struck down Louisiana abortion restrictions in a 5-4 ruling on June 29, 2020.

A total of seven states filed emergency abortion bans. CRR’s partners Planned Parenthood and the American Civil Liberties Union led litigation against Alabama, Ohio, and Iowa, and they were collectively able to stop the executive orders in most states before they took effect. Texas was the exception.

As many states declared a State of Emergency, “non-essential” medical procedures were temporarily banned in an effort to preserve personal protective equipment (PPE). Texas was one of the states that categorized abortion as “non-essential” and was temporarily able to enact this ban.

CRR and other reproductive rights advocacy groups claimed these measures were an opportunistic attempt by state officials to enforce anti-abortion laws under the guise of conserving PPE.

“There was a study done by Guttmacher Institute, and it found that PPE was often used less during abortion, especially medication abortion as the doctor administering the pill wears a mask,” said Genevieve Oliver, CRR’s Foundations Coordinator. “Abortion does not use as much PPE as childbirth, which uses an incredible amount.”

A statement released by The American College of Obstetricians and Gynecologists reiterated that abortion is an essential service and should remain accessible. The statement also denounced restrictions on abortion access.

"The [states] that banned abortion during these times are the same states that do everything in their power to seek new legal avenues to restrict abortion."

Despite the Center for Reproductive Rights and their partners having success in stopping the bans in other states, Texas proved to be a challenge. Prior to the pandemic, Texas already had some of the strictest abortion laws in the United States. Texas Governor Greg Abbott’s emergency executive order commissioned the ban of both surgical and medication abortion on the basis of preserving PPE.

According to Oliver, although the Center was able to win an initial temporary restraining order from a district court judge in Texas,  the state was able to use a rare loophole in the system to present the case prematurely before the Fifth Circuit Court of Appeals. The Fifth Circuit, which is seen by experts as one of the most conservative Appeals Courts in the country, then blocked the restraining order several times which allowed the abortion ban to be upheld.

In the midst of this intense legal battle, in a surprising twist of events, Abbott and state officials loosened the initial executive order on April 21st, which abortion clinics interpreted as their go-ahead to resume patient care.  

Abortion rights supporters organized by the Center for Reproductive Rights rally as the U.S. Supreme Court hears oral arguments in June Medical Services v. Russo.

In spite of the hardships of blocking the ban in Texas, and the Governor eventually reverting his decision, CRR continues to fight to have the Fifth Circuit’s decision vacated, as it could provide legal precedent if other states attempt to do the same in the future.

“The fact that states like Massachusetts and Illinois affirmed abortion access as essential during the pandemic by increasing telehealth options, while the ones that banned abortion during these times are the same states that do everything in their power to seek new legal avenues to restrict abortion, makes it clear that the bans were political,” said Oliver.

The legal fight to impose further restrictions on abortion is showing no signs of slowing, even in the tumultuous first months of 2020, which is why groups like the Center for Reproductive Rights are crucial in protecting reproductive rights. More information about the Center and how they use the power of the law to advance reproductive rights are available on their website.