State Action to Limit Abortion Access During the COVID-19 Pandemic
The response to the COVID-19 pandemic has prompted several states to place restrictions that have effectively banned or blocked the availability of abortion services. While every state has taken action to declare a public health emergency to mitigate the spread of COVID-19, several states have made public health emergency declarations to specifically define abortion as non-essential or elective health procedures and banned abortions until the end of the emergency. States have justified these orders to conserve personal protective equipment (PPE). However, the American College of Obstetricians and Gynecologists (ACOG) and other leading medical professional organizations issued a statement defining abortion as a time sensitive and “essential component of comprehensive health care” and that delay, even days, “may increase the risks or potentially make it completely inaccessible.” The World Health Organization also classifies abortion “essential” to women’s rights and health.
Recent news reports have begun to document the challenges that women living in these states have faced in attempting to obtain abortions during the COVID-19 outbreak. While it is too soon to know the impact of these abortion bans on women, providers have expressed concern that women will delay their abortions, or need to travel long distances, with overnight stays, and sometimes without any support and at high cost. Some worry that women will try to self-manage abortions in ways that are not safe, putting their own health at risk. Abortion providers that are forced to close their services to patients may not be able to reopen after the emergency bans are lifted as was the case after many clinics in Texas closed after a restrictive set of laws were enacted. Although the laws were successfully challenged at the Supreme Court in Whole Women’s Health v Hellerstedt, many of the clinics were unable to reopen after the law was overturned.
Bans in effect
The Arkansas Department of Health ordered Little Rock Family Planning, the only clinic providing “surgical” abortions in Arkansas, to immediately cease and desist the performance of “surgical” abortions, except where immediately necessary to protect the life or health of the patient. On April 13th, the ACLU filed a request in a federal district court in Arkansas for a preliminary injunction to prevent enforcement of the abortion suspension during COVID-19, and April 14th the federal district court granted a temporary restraining order allowing abortion services to resume. But on April 22nd, the 8th Circuit Court of Appeals reversed the lower court’s ruling. The ACLU filed emergency legal action requesting an exemption for patients approaching the state’s legal limit for abortion care. The hearing on the more limited request for a TRO was delayed to be able to consider the forthcoming revised health directive. On April 27th, the Arkansas Department of Health released a new directive on resuming elective surgeries. The Directive allows patients to obtain care, including abortions, only if they “have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.” Given the shortage of tests and the time it takes to obtain a result, patients seeking abortions have not been able to satisfy this requirement. On May 1st, the ACLU filed a new request with the district court for a preliminary injunction for three patients approaching the legal limit to obtain an abortion. On May 7th, a federal district court denied this request, keeping in place the requirement for patients to have a negative result for a COVID-19 test within 48 hours of receiving their abortion. Effective May 18th, the Arkansas Department of Health released another directive modifying the timeframe for a negative test to within 72 hours prior to the elective procedure.
Bans that are currently blocked by court order
Some of these state actions have been successfully challenged by abortion provider groups and reproductive rights advocates. In Alabama, Ohio, and Tennessee, the orders granted by federal district courts have allowed clinics to provide abortion services.
- Alabama: On April 12th, the federal district court in Alabama issued a preliminary injunction allowing providers to determine on a case by case basis if an abortion is necessary to avoid additional risk, expense, or legal barriers. On April 23rd, the 11th Circuit Court of Appeals upheld the preliminary injunction, allowing doctors to use their discretion to decide if an abortion is necessary to avoid additional risk or whether a patient would lose the legal right to an abortion if delayed. Effective April 30th, dental, medical, and surgical procedures were allowed to proceed in Alabama unless the State Health Officer or his designee determines that performing these procedures would reduce access to PPE or other resources necessary to diagnose and treat COVID-19.
- Ohio: The 6th District Court of Appeals denied Ohio’s request to overturn the district court’s Temporary Restraining Order (TRO) allowing abortion services to continue. On April 23rd, the federal district court issued a preliminary injunction allowing physicians in Ohio to determine on a case by case basis that surgical abortion is essential when the “procedure is necessary because of the timing visà-vis pre-viability; to protect the patient’s health or life; and due to medical reasons…” On May 1st, Ohio Department of Health’s Stay Safe Ohio Order allowed non-essential surgeries and procedures to resume.
- Oklahoma: On April 20th, the federal district court issued a preliminary injunction permitting medication abortion services and abortions for pregnancies reaching the legal limit in Oklahoma on April 24th to continue in the state. Reviewing the Governor’s amended executive order allowing some elective procedures to resume on April 24th, the court ruled that all abortion services may resume on April 24th in Oklahoma. On April 27th, the 10th Circuit Court of Appeals upheld the preliminary injunction issued by the district court.
- Tennessee: On April 17th, a federal district court blocked Tennessee’s order to suspend abortions, allowing providers to resume procedures. This decision was upheld by the 6th Circuit Court of Appeals on April 20th. Tennessee’s executive order halting non-essential medical procedures expired on April 30th, allowing elective and non-urgent procedures to resume starting May 1st.
Bans no longer in effect
These bans were either lifted by a settlement outside of court, the state’s new executive order, or governor action.
- Alaska: In Alaska, the governor, the Alaska Department of Health and Social Services, and the chief medical officer for the state of Alaska updated their health mandate on April 7th, to specify that “healthcare providers are to postpone surgical abortion,” without a listed restriction of medication abortion. On May 4th, “non-urgent/non-emergent elective surgeries and procedures” were able to resume.
- Iowa: In Iowa, state officials and the American Civil Liberties Union (ACLU) (who challenged the policy) settled out of court that abortion services could continue.
- Kentucky: The Kentucky Cabinet for Health and Family Services has not declared abortion a non-essential procedure, despite the request of Kentucky’s Attorney General. On April 16th, the last day of the legislative session, the Kentucky State legislature passed a bill, Senate Bill 9, which would provide the Attorney General power to seek injunctive relief against and impose criminal and civil penalties against abortion providers during the public health emergency. On April 24th, the Governor vetoed this bill. The legislature cannot vote to override the veto because the legislative session has ended. The only abortion clinic remaining in Kentucky is continuing to provide abortion services.
- West Virginia: On March 31st, the Governor or West Virginia issued an executive order prohibiting all elective medical procedures not immediately medically necessary to preserve the patient’s life or long-term health. West Virginia’s Attorney General stated that most, if not all, abortion services are impermissible under this executive order. On April 24th, Women’s Health Center of West Virginia, the only abortion clinic in West Virginia, filed a complaint requesting a stay on the ban of elective medical procedures, stating that they have only been able to provide medication abortions to patients at or near 11 weeks LMP and procedural abortions to patients at or near 16 weeks LMP, the latest point at which the clinic can provide these services. The Governor issued another executive order lifting the suspension of all elective procedures, including abortions, April 30th.
- Louisiana: On March 21st, the Louisiana Department of Health issued a directive postponing medical and surgical procedures for 30 days, except those (1) “to treat an emergency medical condition” or (2) “to avoid further harms from underlying condition or disease,” but leaves that determination to the provider’s “best medical judgment.” The clinics in Louisiana contend that they have fully complied with this notice. However, the Attorney General sent his representatives to the clinics to observe compliance with the order and requested confidential patient files. He has threatened to shut down the clinics claiming they have violated the state directive. On April 13th, the clinics filed a legal challenge in federal court to prevent the suspension of abortions in Louisiana. On May 1st, the clinics settled with the state, permitting abortions to continue.
- Mississippi: On April 10th, the Governor of Mississippi issued an executive order requiring the delay of all non-essential adult elective surgeries and medical procedures. Mississippi’s executive order expired on May 11th, allowing “non-emergent, elective medical procedures and surgeries” to resume.
- Texas: In Texas, the state and the providers had been in a complicated legal battle over whether abortions remain available to women in the state during this current crisis. On March 22nd, the Governor issued an Executive Order directing all licensed health care professionals and facilities to postpone all surgeries and procedures that are not immediately, medically necessary until 11:59 PM on April 21st. During the time this executive order was in place, some abortion services were suspended in the court as the litigation jumped from the district court to the 5th Circuit Court of Appeals multiple times. On April 17th, the Governor issued a new executive order allowing elective medical procedures that would “not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster” to resume on 11:59 PM on April 21st through May 8th. On April 22nd, the Attorney General filed a response at the 5th Circuit Court of Appeals stating that abortion services are allowed to resume under the new executive order. After a month of contentious litigation, abortion services have resumed in Texas.
Banning abortions in a geographically large state like Texas posed significant barriers for women, as they would have had to travel to another state to receive abortion services. The average distance to the next closest clinic for the 23 clinics in Texas is 260 miles, or at least a four-hour drive. Consider a scenario that could have been faced by a woman whose nearest abortion provider was Whole Woman’s Health of McAllen, Texas. The next closest clinic she could have potentially gone to is in Shreveport, Louisiana, 585 miles away. Louisiana has a mandatory waiting period of 24 hours, so it would have taken her at least 9 hours to drive there, she would have had to wait 24 hours before getting an abortion, and then drive 9 hours home — a 2 to 3 day trip. If she wanted to go to a clinic in a state without a waiting period, she would have had to drive 803 miles to the nearest clinic in New Mexico. This would have been a 12-hour drive and she may have been able to get an abortion the next day, but this would likely also be a 2 to 3 day trip, driving full days.
Other state actions and factors affecting abortion availability
Some states, such as New Jersey, Virginia, and Washington have specifically protected access to abortion in their executive orders addressing COVID-19 response. Even in states that have not taken action to suspend abortion, access may be limited. This is the case in in South Dakota, where abortion providers are not able to travel to the clinic from out of state, and as a result, patients cannot obtain abortions. The next closest clinic that provides surgical abortions is in Omaha, NE, which is 182 miles away and about a 3-hour drive, and has a 24-hour waiting period. The closest clinic providing medication abortion is in Council Bluffs, IA, which is 175 miles and also about a 3-hour drive (Iowa does not have a mandatory waiting period).
All of the states that have tried to deem abortion a non-essential service have existing gestational age limits on abortion that are more restrictive than the SCOTUS limit of viability, and most have mandatory waiting periods ranging from 24 to 72 hours and other restrictions which create additional challenges for accessing abortion services in a timely manner. For women seeking abortions in those states, access is further challenged by difficulties traveling when a stay at home order is in effect, additional costs related to waiting periods and other delays, the loss of jobs, the risk of exposure to the coronavirus, and the uncertain future of the COVID-19 outbreak.