By Mary Ziegler
Once again, we’re talking about whether abortion counts as health care. The COVID-19 pandemic has sparked new efforts to limit access, from the government’s unwillingness to lift in-person requirements for medication abortion to the introduction of stay-at-home orders blocking access altogether. The campaign to frame abortion as a moral, not medical, issue began decades ago. The pandemic has revealed the broader stakes of this campaign — and what it might mean for access to care well after the worst of the pandemic is behind us.
For antiabortion leaders, there are obvious strategic reasons to insist that abortion is not health care. The stigma surrounding abortion is real and durable. Notwithstanding recent increases, many obstetric programs do not provide comprehensive abortion training (if they provide any training at all). A 2020 study in Plos One found that a majority of patients believed that they would be looked down upon “at least a little” for having had an abortion. This perceived stigma affects those refused abortions — and causes longer-term adverse mental health outcomes. Stigma has long been an effective tool for the antiabortion movement. The pandemic has done nothing to change that.
But, put in historical context, today’s effort to treat reproductive services as unessential means much more. That campaign is part of a broader agenda to undermine the idea of an autonomy-rooted abortion rights — and lay the groundwork for overturning Roe v. Wade.
The campaign to frame abortion as something other than health care gained ground with the Hyde Amendment, a measure banning Medicaid funding for abortion. Proponents of the ban argued that most patients treated abortion as a matter of convenience and therefore would suffer little if Congress cut funding. Even after the Hyde Amendment passed, the idea that abortion was not a real health service continued to defines the terms of debate. Each year, Congress battled about whether to allow any exceptions, such as for rape and incest. Lawmakers on both sides of the aisle dignified a small handful of abortions but branded the vast majority as frivolous.
Even with exceptions written in, the Hyde Amendment caused the number of Medicaid abortions to plummet dramatically. Patients dreaded an invasive and cumbersome process of self-justification and sometimes avoided even requesting aid. Treating most abortions as unessential also made it easier to argue for an outright ban. Even if lawmakers believed some procedures were justified, abortion foes insisted that women would lie about their true motives for ending a pregnancy.
The Hyde Amendment was a major success for the antiabortion movement. It was no surprise that the antiabortion movement tried to apply its logic more broadly. In the late 1980s and early 1990s, antiabortion leaders championed a bill banning all but a handful of “important” abortions, including those in cases of rape, incest, or a severe health threat. These laws served a political and legal aim, presenting abortion as immoral and delivering up a perfect opportunity to reverse Roe. So-called reasons bans are back, this time, prohibiting abortions chosen based on fetal race, sex, or disability.
Demands for religious liberty in the context of healthcare refusal also rely on the idea that both abortion and contraception are unessential. Conscience claims require courts to strike some balance between the moral qualms of the objector and the policy that offends them. Recently, religious conservatives have described ever more indirect forms of involvement as burdensome. In the context of the Affordable Care Act, this argument has worked because courts and politicians are willing to discount the importance of access to birth control in the first place. Treating other forms of care as unessential will make religious-liberty arguments even more effective.
Most visibly, the campaign to reverse Roe v. Wade relies on claims that abortion is not an essential medical service. In 1992, the Supreme Court turned away a request to reverse Roe, emphasizing that women and pregnant people relied on abortion to take advantage of new opportunities and achieve more equal lives. Ever since, major antiabortion groups like Americans United for Life have worked to show that patients cannot rely on abortion. Why? Abortion foes insist that far from counting as essential health care, the procedure causes everything from an increased risk of cancer to profound psychological distress.
The history of abortion makes one thing clear: no one intends the campaign to frame abortion or contraception as a moral issue — and an unessential service — to end with the COVID-19 pandemic. If antiabortion leaders succeed, those arguments will end with the complete dismantling of abortion rights, and it might not stop there.
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge, 2020).