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States Restricting Access to Abortion by Wrongly Deeming it as 'Non-Essential' During COVID-19

ACP Chapter Action Tool Kit

Prepared by ACP’s Division of Governmental Affairs and Public Policy

April 17, 2020

Summary

In light of ongoing shortages of medical equipment/personal protective equipment (PPE) and the continued risk of transmitting the coronavirus, numerous states have issued orders requiring non-essential businesses to close and non-urgent medical visits and procedures to be postponed. Some states have interpreted these orders to explicitly prohibit abortion services for the duration of the emergency order. These emergency orders are being issued under the pretext that abortion is a nonessential procedure and takes away from the scarce supply of medical equipment that is being strained by the COVID-19 response. Existing limitations being placed on abortion services include, but are not limited to, the following states:

  • Texas: Attorney General Ken Paxton ordered a ban on all abortions, except for those where the mother’s life is at risk, in line with Governor Greg Abbott’s executive order requiring the postponement of medically unnecessary surgeries and procedures. While the emergency order expires April 21, physicians who participate in a prohibited abortion prior to that date is subject to fines of up to $1,000 or face jail time of up to 180 days. A federal judge issued temporary restraining orders against the abortion prohibition order; however, the state appealed the district court decision to the Fifth Circuit Court of Appeals, which overturned the district court’s ruling and issued a temporary stay while the case was argued. The Fifth Circuit later issued a ruling easing the state’s restrictions, permitting medication abortions as well as surgical abortions for those who would be unable to legally obtain an abortion under the state’s 22 week ban if they had to wait until after the emergency order expired.
  • Ohio: Following a ban on non-essential medical procedures issued by state health officials, the state’s Attorney General issued warning letters to clinics offering abortion services to immediately cease providing elective and non-urgent abortion services. A federal judge issued a temporary two week restraining order on the ban, which was upheld by a panel of judges from the U.S. Sixth Circuit Court of Appeals.
  • Alabama: Alabama’s Department of Public Health issued an order freezing elective medical procedures. In line with the order, the state’s Attorney General implied that providers of abortion services would be impacted by the ban on elective procedures, but declined to provide additional guidance. A federal judge issued a restraining order on the enforcement of the ban; however, it is still possible Alabama could appeal the ruling to the U.S. Eleventh Circuit Court of Appeals.
  • Oklahoma: The state issued an executive order banning elective medical procedures. Governor Kevin Stitt later clarified that the ban included abortion services that were not a medical emergency or would not prevent serious health risks to the mother. A federal judge has blocked the order from taking effect; however, it is still possible Oklahoma could appeal the ruling to the U.S. Tenth Circuit Court of Appeals.  
  • Iowa: Governor Kim Reynolds issued an executive order prohibiting non-essential medical procedures, including surgical abortions. A lawsuit was filed to block implementation of the ban, but was voluntarily withdrawn after an agreement was made with the state to allow physicians to perform abortions that would otherwise become illegal under Iowa’s 20 week abortion ban if the patient had to wait until the order expired to have it performed.
  • Additional states, such as Kentucky, Mississippi, and Indiana have contemplated implementing their own bans, but have yet to issue them.

These emergency orders would interfere with the patient-physician relationship and the interpretation of the orders, lack of guidance, and fear of criminal prosecution would in practice ban evidence-based, safe, and accepted reproductive services for patients. Interfering with the patient-physician relationship impacts trust and open communication between the two parties and directly undermines patient autonomy in making decisions on their health and family planning. The order also has legal consequences for members who offer abortion services in states like Texas during the time the order is active as they risk fines or jail time.

ACP has extensive policy on women’s access to reproductive health care and family planning services and opposing political interference in the patient-physicians relationship. The College does have policy supporting the postponement of elective and non-urgent visits and procedures. However, given the time constraints of a pregnancy, abortion services may not be an elective and non-urgent procedure that can postponed until the order expires.  Unlike many other medical procedures, access to abortion is a constitutionally protected right that would be infringed if it is wrongly designated as a non-essential procedure. Further, the Texas order, for example, exempts procedures that meet clinical standards and do not deplete hospital capacity of personal protective equipment needed to deal with COVID-19. Despite this, some constitutionally protected abortion services that do not deplete PPE and otherwise meet the requirements for an exemption would still be banned.

The College, along with the American College of Obstetricians and Gynecologists and the American Medical Association, has signed onto an amicus curiae brief to the U.S. Fifth Circuit Court of Appeals in the case of Planned Parenthood v. Abbott. We anticipate these cases will continue to play out in the courts and we will be actively monitoring them to weigh in when needed.

Action:

ACP urges chapters to advocate with their state officials and lawmakers to protect women’s access to essential health care services by not discriminating against women’s access to abortion services by wrongly designating it as a non-essential procedure. This applies specifically to states with an existing or pending order prohibiting abortion services.

Resources