On March 21, Ohio’s attorney general sent cease and desist letters to abortion facilities that were still operating, saying the center must “immediately stop performing nonessential and elective surgical abortions” which are “those that can be delayed without undue risk to the current or future health of a patient.”
The Texas attorney general issued a similar order the next day. Over the following days, government officials in other conservative states—Alabama, Oklahoma, and Iowa among them—clarified that they would not consider abortions essential. Pro-abortion groups including Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union filed lawsuits over some of the orders, saying officials were using the pandemic to target “abortion rights.”
The abortion groups pointed to an American College of Obstetricians and Gynecologists statement that calls abortion “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.” Not obtaining an abortion, the statement says, could “profoundly impact a person’s life, health, and well-being.” Officials in Michigan, Pennsylvania, and Virginia who also passed bans on nonessential medical procedures have used similar arguments to make exceptions for abortion.
“That’s still not an essential surgery,” Trandem said.
She thinks abortion businesses are pushing because they don’t want to lose revenue during a pandemic. Performing abortions puts women at risk not only of contracting the coronavirus at a still-open and potentially crowded abortion facility, but also of experiencing complications. “It’s actually more risky in general for women to undergo an abortion than continue through to pregnancy,” Trandem said. That means a greater likelihood of ending up in an emergency room, where medical personnel are already short on equipment.
In Alabama, Texas, and Ohio, federal judges halted the states’ orders Monday, saying the restrictions they pose on abortion access is unconstitutional. But by the next day, judges in the 5th Circuit Court of Appeals put a hold on the ruling in the Texas case, saying the court needed more time to consider the evidence. That allows the state to continue enforcing the abortion ban, preserving needed medical equipment for COVID-19 patients.
Steve Aden, chief legal officer for Americans United for Life, said the 5th Circuit Court is likely to uphold Texas’ right to shutter abortion facilities during the pandemic. He also expects the conservative-majority 6th Circuit Court to do likewise in the Ohio case: “Ultimately, the abortion industry faces an uphill fight.” As Texas officials told the 5th Circuit Court, the COVID-19 pandemic is America’s greatest health crisis in 100 years and puts the state at the “apex of its constitutional authority,” said Aden, which means abortion facilities have little chance of getting special treatment in conservative states.
Abortion groups will have the opportunity to petition the Supreme Court, but Aden thinks that’s risky: 93 percent of abortions happen in outpatient clinics like Planned Parenthood, and none of these are medically necessary. Any abortions necessary to save a woman’s life happen in a hospital. So, by default, Planned Parenthood only does elective procedures. “They’re being duplicitous,” said Aden. “They’re claiming that it’s a necessary health service, but on the other hand they’re trying to hide the fact that they only do elective, purely voluntary, abortions.”