Just days into the national surge of coronavirus cases, as an increasing number of states called for nonessential businesses to shut down, some Republican legislators began using the public health crisis as an opportunity to deny health care to patients seeking abortions. The tactic has been replicated in the past couple of weeks, with governors in several states peddling the cynical argument that temporarily banning abortion will help shore up their supply of medical gear for hospitals overwhelmed by the pandemic.
So far, lawmakers in six states — Ohio, Texas, Alabama, Iowa, Oklahoma, and Arkansas — have attempted to halt abortion services indefinitely. In March, providers in Alabama, Iowa, Ohio, and Oklahoma filed lawsuits to prevent the orders from taking effect in their states. A similar lawsuit has been filed in Texas as well. On April 1, injunctions were granted in Ohio, Texas, and Alabama, so that clinics would be able to remain in operation. However, a federal appeals court quickly overturned the Texas injunction, kicking off a legal back-and-forth that has now escalated to the Supreme Court. On April 6, a federal judge in Oklahoma also granted an injunction, and the case against Iowa was dropped on April 1, after it was determined that the state would not ban all abortions.
Anti-abortion legislators are taking advantage of a crisis to further their agenda. Many states are moving to limit nonessential medical procedures, like dental checkups and colonoscopies, in an attempt to conserve protective gear for health-care workers; by labeling abortion, too, as “nonessential,” they hope to institute a de facto temporary ban. This ignores the widespread medical consensus that abortion is an “essential component of comprehensive health care” and that it’s a time-sensitive procedure. Were these directives allowed to stand, they would force women to have to travel hundreds of miles to obtain safe and legal terminations at a time when three-quarters of Americans have been urged or ordered to stay at home.
Here’s a breakdown of what’s happening in each state where government agents have moved to ban or limit abortion access.
In late March, Ohio’s deputy attorney general, Jonathan Fulkerson, issued letters to three abortion providers ordering them to comply with the state’s freeze on nonessential medical procedures. Two of the clinics that received letters announced they would continue to provide abortions because they are essential medical procedures.
On April 1, district court judge Michael Barrett ruled in favor of Planned Parenthood and other reproductive rights groups challenging the state’s new abortion restrictions, ordering that the ban be suspended for two weeks. On Friday, Barrett extended that temporary restraining order for an additional two weeks.
On March 23, Texas’s attorney general, Ken Paxton, issued a warning that, to be in compliance with Governor Greg Abbott’s recent executive order temporarily banning elective medical procedures, “any type of abortion that is not medically necessary to preserve the life or health of the mother” would be prohibited. Providers who didn’t comply with the order could result in fines of up to $1,000 or 180 days in jail — an extraordinarily unsafe prospect at this time, even beyond the carceral system’s routine injustices.
On March 30, a federal judge halted the state’s temporary abortion ban. The following day, however, the Fifth Circuit Court of Appeals overturned the temporary restraining order, reinstating the ban. Paxton celebrated the ruling on Twitter:
The Fifth Circuit affirmed its decision on April 7, allowing the de facto ban to stand. But the same judge who halted the ban in late March then issued a temporary restraining order blocking parts of the measure. As of April 9, medication abortion was once again available in Texas. Patients who risked running up against the state’s gestational limitations before the nonessential-surgery suspension was lifted were also allowed to terminate their pregnancies. The Fifth Circuit came back and blocked the medication-abortion caveat the next day, however, and it looked like the case was headed to the Supreme Court. On Monday night, however, the Fifth Circuit ruled that the medication abortion — which involves a provider handing a patient two pills — did not qualify as a “procedure” and did not eat up crucial medical equipment, and the complainants withdrew their case from SCOTUS on Tuesday.
The American Civil Liberties Union filed a lawsuit on behalf of abortion providers in late March, after Iowa Governor Kim Reynolds listed abortion among nonessential medical procedures temporarily banned across the state in response to the pandemic. However, the suit was dropped right before a scheduled hearing, after the state clarified it would not ban all surgical abortions.
Alabama’s three remaining abortion clinics sought a temporary restraining order after the state’s attorney general, Steve Marshall, implied that the Alabama Department of Public Health’s March 27 order, which suspended elective medical procedures, could apply to patients seeking abortions. According to the lawsuit, Marshall “refused to provide any further guidance as to how [his office] is interpreting the scope of the order other than to make plain that in its view, some — and perhaps most — abortions are not permitted.”
On March 30, Alabama district court judge Myron Thompson issued a temporary restraining order suspending the ban, at least until April 6, when he would hear arguments over video conference. Thompson said in his ruling that “the state’s interest in immediate enforcement of the March 27 order — a broad mandate aimed primarily at preventing large social gatherings — against abortion providers does not, based on the current record, outweigh plaintiffs’ concerns.” On April 12, Thompson issued a preliminary injunction, restoring access.
Several advocacy groups, including the Center for Reproductive Rights, filed a suit at the end of March, seeking a temporary restraining order on Governor Kevin Sitt’s executive order suspending elective medical procedures through April 7. The order would have banned nearly all abortions, except when one could be proved necessary to prevent health risks to the patient.
On April 6, federal judge Charles Goodwin blocked the order, writing in his decision that the state of Oklahoma “has acted in an ‘unreasonable,’ ‘arbitrary,’ and ‘oppressive’ way — and imposed an ‘undue burden’ on abortion access — in imposing requirements that effectively deny a right of access to abortion.”
On April 3, Arkansas Governor Asa Hutchinson ordered all non-essential medical procedures and surgeries be postponed. On Friday, the state’s last remaining abortion clinic — Little Rock Family Planning Services — received a cease-and-desist letter from the health department saying the clinic was in violation of the order, because the state considered abortions that were “not immediately necessary to protect the life or health of the patient” to be elective procedures. Further violations, the letter said, would trigger the suspension of the clinic’s license.
On Monday, April 13, the ACLU filed an emergency lawsuit with the U.S. Court for the Eastern District of Arkansas, arguing that “nothing in the current crisis justifies” suspending abortion access, and further, that “prohibiting abortion during the pandemic will not achieve any of the State’s public-health objectives and is in fact likely to exacerbate the crisis.”
Other states are discussing bans but have not tried to implement them
There have been rumblings of anti-abortion action in Kentucky, too, although no steps to curtail abortion have been taken so far. On March 27, the Courier-Journal reported that the state’s attorney general, Daniel Cameron, asked that the Democratic Governor Andy Beshear categorize abortions as an elective medical procedure to ban them. In a statement, Cameron called on the state’s anti-abortion Republican legislators to join his cause “to protect the health of … patients and slow the spread of coronavirus.”
Beshear’s executive order to ban elective procedures, issued March 23, is vague, leaving the definition of “essential” open to the interpretation of medical professionals. When asked, days later, whether abortion qualifies as essential medical care, Beshear responded, “I leave it to our health professionals to determine what falls into elective and the essential.” Abortion providers in Kentucky are continuing to officer services in compliance with the state’s order and in spite of the AG’s rhetoric.
Only a single clinic providing abortion access remains in Mississippi, and on March 24, the state’s Republican governor, Tate Reeves, reiterated his desire to paralyze it. Reeves repeated the anti-choice line about abortion being an elective procedure and therefore temporarily banned. “It is without question that the lone clinic in Jackson does, in fact, operate doing procedures that are elective and not required,” he said.
Nonetheless, the Center for Reproductive Rights confirmed in an email to the Cut that Mississippi’s abortion clinic, remains open, active, and in compliance with the state’s emergency directives.
This post has been updated with new information.