Just last month, when the US was still fully operational and the coronavirus crisis had not shut down the Supreme Court, progressive and conservative activists flooded the sidewalks and crowded the court’s steps to chant for or against access to abortion. Her screams reached the courtroom, where judges heard arguments in one of the most controversial cases of the term, a matter stemming from a Louisiana law severely restricting access to abortion clinics.
Back then, it seemed a little strange to anyone following the headlines about the global pandemic that reporters were packed like sardines in the courtroom and protesters were gathering in large crowds outside. But it was also typical of an abortion case. Few things seem to stir people’s passions quite like the struggle over the constitutional right to physical privacy that has underpinned abortion legalization in the United States 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 essential supplies like masks need to ration and recycle. Democratic and Republican lawmakers came together to enact a major stimulus package relatively quickly.
But the abortion war rages on unabated, now on a new front. High Court judges, currently working from home, could soon face a motion to rule on a new case in Texas about access to abortion in the time of a pandemic.
To each his own
Republican governors and attorneys general in Texas, Ohio, Mississippi, Louisiana, Oklahoma and Alabama have said abortion is a voluntary medical procedure that cannot be performed at this time, citing shortages of supplies and protective gear for healthcare workers. Meanwhile, in New York, New Jersey and Washington, for example, family planning services were deemed essential.
The pandemic lends a new and complicated luster to the controversial issue that only emphasizes the ideological rifts that have fueled a half-century nationwide struggle.
On the one hand, it is true that medical personnel urgently need all the materials they can get and that other “elective surgeries” have largely been suspended. On the other hand, there is no other medical procedure so closely intertwined with a constitutional right, and no other time in the United States when being pregnant was so terrifying for health and economic reasons. It is very clear that people have reason to fear that they may not be able to care for their children, put food on the table, provide them with clothing and protection, or keep them healthy and enter a world worth living in.
Also, unlike other elective medical procedures, there is a clear and final time limit to this difficult and highly personal decision, unlike, say, hip replacement. In Texas, abortion is illegal after the 20th week of pregnancy. Every day that goes by without access makes it more likely that women will ultimately be forced to give birth to children they may not be able to care for and protect.
In Texas, the declaration that abortions are nonessential services is based on the shrewd argument that abortion rights activists have always used the language of choice. Pro-Life Attorney General Ken Paxton has trapped the pro-choice movement with his choice of words, ignoring the fact that “choice” was chosen to reflect the complexity of the issue and that a woman’s right to deciding whether she can stay pregnant is not synonymous with anti-life.
“Abortion providers who refuse to obey state law demonstrate a clear disregard for Texans who are suffering this medical crisis,” Paxton said. “For years, abortion has been touted as an ‘option’ by the same groups who are now trying to claim that it is an essential procedure.”
Last week, a lawsuit in federal court challenged the Texas decision, arguing that abortions are essential, not optional, and that a temporary restraining order was issued so briefly that would allow the clinics to continue operating. Paxton appealed to the Fifth Circuit Court of Appeals and on March 31, two of three appeals panel judges temporarily stayed the lower court’s injunction, meaning there is no access to abortion for the time being. The parties have been instructed to provide additional information. The Houston Chronicle, in a constantly updated article, calls it “a rebounding litigation.”
Now 21 attorney generals – 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 health care, including the prescription abortion drug mifepristone. The drug has been approved by the Food and Drug Administration since 2000, but is subject to a risk assessment and mitigation strategy, making it difficult to obtain.
In order to access the drug, patients must receive the drug at a physical location, whether that be at a clinic, doctor’s office, or hospital under the supervision of a healthcare provider. Healthcare providers must be registered with the drug manufacturer, and patients must sign a “patient agreement” confirming that they have received counseling about the risks associated with the drug. Attorneys general argue these requirements put women at risk during this extraordinary time of the pandemic and have urged the administration to waive or change the requirements.
Struggling in a time of suffering
This brings us back to the High Court and the arguments about Louisiana law that the judges heard last month.
Louisiana had imposed a number of additional requirements on doctors at abortion clinics, ostensibly to ensure patient safety but arguably to limit access to family planning. A similar Texas law was previously found unconstitutional and was overturned by judges in 2016. At the March hearing, Ruth Bader Ginsburg repeatedly warned that the vast majority of abortions do not involve any medical complications and that surgery is not required — most procedures just take “two pills,” as she put it.
However, opposition to access to abortion in the pro-life or anti-abortion camp isn’t really based on concerns about women’s safety and health — or so the judges found in 2016 when they ruled that Texas had imposed restrictions Clinicians who served no health purpose but limited women’s ability to use family planning services.
The real problem is what Stephen Breyer articulated as activists of all stripes cried out. “[A] A lot of people morally think it’s wrong, and a lot of people morally think the opposite is wrong,he said. “And… I personally think the court is struggling with the issue of what kind of rule of law you have in a country where both kinds of people live.”
We can bet that judges will likely face that question again, this time in the context of the pandemic. Whatever the Fifth Circuit Court of Appeals ultimately decides after viewing and considering the additional briefs requested by the Texas parties, the decision will certainly be challenged and the Supreme Court’s struggle with the rule of law in a country where the People disagree Morality will endure indefinitely.
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