WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

The Harms of Abortion Restrictions During the COVID-19 Pandemic

By Beatrice Brown

Several states, including Texas, Ohio, and Alabama, have dangerously and incorrectly deemed abortions a non-essential or elective procedure during the COVID-19 pandemic. The stated reason for these orders is to conserve personal protective equipment (PPE), a scarce, important resource for protecting health care workers treating COVID-19 patients.

However, these policies restricting abortion are unlikely to conserve PPE, and more importantly, they mischaracterize the nature and importance of abortions.

Forcing women to carry unwanted pregnancies would likely result in more, not less, PPE being used.

While “surgical abortions are typically brief, day procedures requiring minimal numbers of staff and PPE,” prenatal visits — which are “urgent and cannot be performed remotely” — are required every four weeks during the first 28 weeks of gestation and would still necessitate PPE to protect health care workers and patients, as Erica Turret et al. explain in a recent Health Affairs blog post. Additionally, PPE would be required for labor and delivery, as well as for medical emergencies that may result from women engaging in home abortions out of desperation.

PPE concerns aside, abortions are essential because they are: 1) time-sensitive; and 2) critical for the well-being and equality of women.

In their position statement on abortion access during the pandemic, the American College of Obstetrics and Gynecology (ACOG) echoes this logic and argues: “Abortion is an essential component of comprehensive health care.”

In opposition, the directors of several pro-life medical organizations released their own statement, claiming abortions are not essential because “elective abortion treats no disease process.”

However, this statement misunderstands what makes a procedure essential — time-sensitivity and risks are just as determinative of a procedure’s necessity, and the lack of alleviation of disease in and of itself does not make a procedure elective. Unlike other procedures being considered non-essential, like knee replacements, abortions are particularly time-sensitive—in part due to legal restrictions related to the point of gestation—and uniquely and greatly affect the trajectory of a woman’s life course.

Some may argue that the government can limit certain constitutional rights during public health emergencies. However, we must consider the downstream effects of these limitations to determine their permissibility.

For instance, the restriction on one’s constitutional right to liberty imposed by isolation or quarantine is justified since these measures are only a temporary liberty restriction: they only briefly modify choices immediately available to individuals. Furthermore, any negative consequences of these measures are outweighed by the public health benefits of slowing disease spread.

However, restricting someone’s right to an abortion during a pandemic is unjustified, especially comparatively. Restricting abortion is a more permanent liberty restriction because pregnancy affects a woman’s long-term opportunities, not just the choices immediately available to her. Furthermore, this liberty restriction is not likely to carry public health benefits but will likely cause harm to women.

Additionally, we cannot limit fundamental, constitutional rights without thinking critically about any messages sent by these restrictions. The language surrounding abortion in these restrictions expresses an attitude or judgment about the necessity of the procedure but does not make an accurate factual claim. To call abortions non-essential or elective degrades the fundamental nature of this right by suggesting that constitutional protection is misguided.

Discourse during COVID-19 is not occurring inside a vacuum; how we discuss abortion throughout this pandemic will inevitably impact future abortion discourse.

Many of these states calling abortions non-essential or elective have proposed other legislation restricting a woman’s constitutional right to abortion in recent years. For example, Ohio tried to enact a “heartbeat bill,” which would have banned abortions once a fetal heartbeat was detectable, which occurs before many women know they are pregnant. Language like “non-essential” and “elective” will only embolden these efforts to slowly chip away at abortion rights, especially given imminent judicial challenges.

This term, the Supreme Court will rule on June Medical Services v. Gee, determining the constitutionality of a Louisiana abortion law imposing admitting privilege requirements, meaning a provider must have admitting privileges to a hospital within a 30 mile radius from the abortion facility. Although Whole Woman’s Health v. Hellerstedt set a precedent for the unconstitutionality of such laws in 2016 because of the undue burden they pose, this case may demonstrate the Supreme Court’s willingness to reconsider abortion precedent. Now more than ever, we must use language that demonstrates the importance of abortion.

Moreover, efforts to restrict abortion during the pandemic by states that have, in the past, attempted to curtail access to abortion raise questions about the motivations behind these new restrictions. Concerns about PPE may be a convenient excuse for a greater legislative and moral agenda. We cannot, and should not, tolerate the use of a pandemic to leverage a political cause that endangers the well-being of women.

Several federal district courts have temporarily prevented these bans from going into effect, and the Supreme Court likely will have to rule on the constitutionality of these bans. To preserve the right to abortion, all of these existing bans should be reversed, and the Supreme Court ought to deem that these measures  unconstitutionally pose an undue burden to the right to abortion, following precedent from Planned Parenthood v. Casey, to prevent further bans from being implemented.

To combat the message of states singling out abortion as non-essential or elective, states that support the right to abortion should enact policies that make clear that abortions remain essential. Several states — including New Jersey, Virginia, and Washington — have explicitly stated that their executive orders halting non-essential procedures do not apply to abortions. Other states should follow suit. There is certainly a need to conserve PPE, but it should not come at the cost of a woman’s right to self-determination.

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Beatrice Brown

Beatrice (Bea) Brown is a Research Assistant for the Program On Regulation, Therapeutics, and Law (PORTAL) within the Division of Pharmacoepidemiology and Pharmacoeconomics at Brigham and Women's Hospital. She received her Master of Bioethics (MBE) from Harvard Medical School in 2020 and her BA in Ethics, Politics, & Economics from Yale University in 2019. During the 2019-2020 academic year, Bea was a Petrie-Flom Student Fellow and wrote a research paper proposing a new argument for a constitutional right to physician-assisted death by redefining what it means to heal.

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