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Activists in from top SCOTUS on March 4.
Ephrat Livni
The scene at the high court on March 4, 2020.
ELECTIVES & ESSENTIALS

Abortion access is now either elective or essential depending on the state

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Just last month, when the US was still fully functional and the coronavirus crisis hadn’t shut down the Supreme Court, progressive and conservative activists flooded the sidewalks and crowded the steps of the tribunal chanting for or against abortion access. Their cries reached the courtroom, where justices were hearing arguments in one of the most controversial cases of the term, a matter arising from a Louisiana law that severely restricts access to abortion clinics.

At the time, for anyone following headlines about the pandemic spreading across the globe, it seemed a little weird that reporters were packed like sardines in the courtroom and protesters were amassing in large crowds outside. But it was also typical for an abortion case. Little seems to arouse the passions of the people like the fight over the constitutional right to bodily privacy underlying the legalization of abortion in the US since 1973.

Fast forward four weeks and almost everything else here has changed. The economy has ground to a halt. Hospitals that never foresaw a shortage of basic supplies, like masks, must ration and reuse. Democratic and Republican lawmakers came together to relatively quickly pass a major stimulus bill into law.

Yet the war over abortion continues to rage unabated, now on a new front. The high court justices, momentarily working from home, could soon be faced with a request to rule on a new Texas case about abortion access in a time of pandemic.

To each their own

Republican governors and attorneys general in Texas, Ohio, Mississippi, Louisiana, Oklahoma, and Alabama have declared that abortion is an elective medical procedure that can’t proceed at this time, citing the shortage of supplies and protective gear for healthcare workers. Meanwhile, in New York, New Jersey, and Washington, for example, family planning services have been deemed essential.

The pandemic puts a new and complicated gloss on the controversial topic, one that only emphasizes the ideological divides that have fueled a half-century-long nationwide fight.

On the one hand, it is true that healthcare workers desperately need all the supplies they can get and that other “elective” surgeries have been widely suspended. On the other hand, there is no other medical procedure so tightly intertwined with a constitutional right, and no other time in the US when it was as terrifying to be pregnant for health and economic reasons. It’s very clear that people have reason to fear that they may not be able to fend for their children, put food on the table, and keep them clothed and sheltered, or ensure they are healthy and entering a livable world.

Plus, unlike other elective medical procedures, there is a stark and definitive time limit on this fraught and extremely personal decision, unlike a hip replacement, say. In Texas, abortion is banned after 20 weeks of gestation. Every day that passes without access makes it more likely that women will be forced to ultimately give birth to children they may not be able to care for and protect.

In Texas, the declaration that abortions are non-essential services is premised on the clever argument that abortion rights activists have aways used the language of choice. The pro-life attorney general Ken Paxton trapped the  pro-choice movement with its choice of words, ignoring the fact that “choice” was selected to reflect the complexity of the issue and that support for a woman’s right to decide whether she can remain pregnant isn’t synonymous with being anti-life.

“Abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis,” Paxton stated. “For years, abortion has been touted as a ‘choice’ by the same groups now attempting to claim that it is an essential procedure.”

Last week, a lawsuit in federal court challenged the Texas decision, arguing that abortions are essential and not elective, and a temporary restraining order was ever so briefly granted that would allow clinics to continue to operate. Paxton turned to the Fifth Circuit Court of Appeals and on March 31 two of three judges on the appellate panel stayed the lower court injunction temporarily, meaning that there’s no abortion access for the time being. The parties were instructed to provide additional briefing. The Houston Chronicle in a continually updated article calls it “a ricocheting legal battle.”

Meanwhile, 21 attorneys general—from Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia—wrote a letter to the federal government urging it to lift restrictions on telemedicine and access to reproductive healthcare, including the abortion prescription drug Mifepristone. The drug has been approved by the Food and Drug Administration since 2000 but has been designated subject to a Risk Evaluation and Mitigation Strategy, making it difficult to obtain.

To access the drug, patients must obtain the medication at a physical location, whether a clinic, medical office, or hospital under the supervision of a healthcare provider. The healthcare providers must be registered with the drug manufacturer, and patients must sign a “Patient Agreement” form confirming that they received counseling on the risks associated with the medication. The attorneys general argue that these requirements put women in danger in this extraordinary time of pandemic and have urged the administration to waive or alter the requirements.

Struggling in a time of suffering

This brings us back to the high court and the arguments about Louisiana law that the justices heard last month.

Louisiana had imposed a slew of additional requirements on abortion clinic doctors allegedly intended to ensure the safety of patients but arguably designed to limit access to family planning. A similar Texas law was already found unconstitutional and was invalidated by the justices in 2016. At the March hearing, Ruth Bader Ginsburg continually pointed out that the vast majority of abortions entail no medical complications and that surgery isn’t required—most of the procedures just involve taking “two pills,” as she put it.

However, resistance to abortion access in the pro-life, or anti-abortion, camp isn’t actually premised on concern for the safety and health of women—or that’s what the justices found in 2016 when they ruled that Texas had imposed restrictions on clinic doctors that served no health purpose but limited women’s ability to obtain family planning services.

The real issue is the one that Stephen Breyer articulated as activists of all stripes were shouting outside. “[A] lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” he said. “And…I think personally the court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

We can expect the justices to likely face that question again, this time in the context of the pandemic. Whichever way the Fifth Circuit Court of Appeals ultimately rules after seeing and considering the additional briefs it requested from the parties in Texas, the decision will surely be challenged and the Supreme Court’s struggle with rule of law in a country where people can’t agree on morality will continue indefinitely.

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