This post was written by Sarah Wetter, Law Fellow at the O’Neill Institute, and Rebecca Reingold.
Across the globe, the COVID-19 pandemic is affecting women’s ability to access abortion services, as governments implement policies to reduce COVID-19 exposure and address medical resource shortages.
In the U.S., at least 11 states have issued policies to restrict access to abortion services by designating them as “nonessential” medical procedures during COVID-19. Lawmakers allege that the restrictions will help save medical resources, like hospital beds and personal protective equipment, for the COVID-19 response. U.S. abortion providers and advocates have brought lawsuits against the orders, emphasizing that abortion services are time sensitive, medically necessary, and constitutionally protected. In Texas, the 5th Circuit Court of Appeals ruled that the state’s ban on essentially all abortions (except to preserve the life or health of the pregnant woman) was within the state’s emergency public health powers. Abortion providers asked the Supreme Court to block the decision, arguing that delayed abortions or childbirth would result in much greater use of medical supplies, and could require patients to travel out of state– heightening the risk of spreading COVID-19. However, they dropped their appeal after the 5th Circuit Court partially reversed its decision to allow medication abortions, and abortions for persons nearing 22 weeks of pregnancy (when Texas outlaws abortions). Still, constitutional questions remain, and a Supreme Court decision on the designation of abortions as “nonessential” may be forthcoming, as lawsuits are continuing to make their way through the courts in other states, including Tennessee and Louisiana.
Alternatively in Canada, though elective surgeries have been cancelled or postponed, leaders of territories and provinces have affirmed that abortion services will continue – largely recognizing them as essential and non-elective. Argentina and Uruguay have taken similar measures to deem abortion as essential, and are taking steps to ensure services remain accessible during the pandemic. The World Health Organization has also released clinical guidance stating that “sexual and reproductive health care should be respected irrespective of COVID-19 status, including access to contraception and safe abortion.” UN Secretary-General Antonio Guterres made a $2 billion appeal to help developing countries during the outbreak, including with sexual and reproductive health services.
In the United Kingdom, the government issued a temporary order that permits the use of telemedicine for medication abortions during the COVID-19 outbreak, allowing patients to receive abortion pills through the mail and take them at home. Reducing women’s in-person interactions with health facilities not only saves health workers’ time and resources, but also reduces the risk of exposure to COVID-19 among patients and health workers alike. In the U.S., attorneys general have urged the Food and Drug Administration to ease restrictions that block patients’ ability to receive Mifepristone (one of two drugs used in FDA-approved medication abortions) through the mail. But even if the FDA took the recommended action, 18 U.S. states would also need to repeal or temporarily suspend laws requiring clinicians to be physically present when abortion medication is distributed.
As emergency measures often get incorporated into routine policy, COVID-19-specific abortion provisions – for better or for worse – could set a precedent on how we handle access to abortion services going forward. Rather than deeming abortion as “nonessential,” the U.S. should follow other countries’ lead and begin to recognize abortion as an essential and non-elective procedure. Further, like the UK, federal and state governments in the U.S. should make it easier for patients to access medication abortion using telehealth – which furthers the goals of conserving resources, protecting patients, and advancing women’s constitutional right to abortion during COVID-19. As these emergency measures are bound to demonstrate safety and efficacy, governments should ensure that they remain in effect following the pandemic, increasing access to essential reproductive health services for the long term.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.