Rachel Rebouché & Adrienne Ghorashi
For the past six weeks, access to abortion in the state of Texas has been unclear at best and unavailable at worst. Dueling court orders between a federal trial court and the district’s federal appeals court lifted the ban on nearly all abortions — which the state considers “non-essential” health care — only to reinstate it days later. After four court orders (and a withdrawn petition to the US Supreme Court), abortion care resumed in the state. But the US battle over abortion access is far from over, and Texans are still fighting the effects of canceled appointments and weeks of delay.
Events unfolded quickly after the Texas Governor’s issuance executive orderwhich postponed non-essential surgeries and procedures until April 22, 2020. The next day, an emergency rule applied the executive order to all non-emergency abortions, including medication abortion. Attorneys representing abortion providers filed suit. A federal court issued a temporary ruling that stopped the executive order from going into effect: the state’s action would cause irreparable harm and was an unconstitutional ban on nearly all pre-viability abortions.
On April 7, a divided division of the court of appeals reinstate the order, reversing the lower court’s decision. In justification, the appeals court relied on a Supreme Court case decided more than 100 years ago, which held that lawmakers can respond to a health crisis with reasonably relevant regulations that are not arbitrary or oppressive. The Court concluded that the Texas executive order was a reasonable means of maintaining medical supplies and hospital capacity. Although medical abortion requires only two pills to be taken and therefore no personal protective equipment (PPE), ultrasound and personal consultation are required for all abortion patients could spend PPE. The court further ruled that hospital beds would be taken if complications arose – a risk that in reality rarely occurs.
In response, the lower court further issued another order clarify that, on its own terms, the executive order should not apply to medication abortion or to abortions after 18 weeks of pregnancy. The medication does not require PPE and, per Texas Medical Board guidelines, the order never applied to ultrasounds or pre-abortion counseling.
Then, in two successive decisions, the the appeals court answered first in the lower court’s opinion finding mixed evidence on whether the executive order applied to medication abortions. However, two days before the executive order expired, the court reinstated the suspension of nearly all abortions, reiterating its deference to the state’s meritless arguments. A new executive order, which expired May 8 and is not subject to the court’s ruling, had an exception that could apply to the state’s abortion providers.
Although abortion is now available in Texas, the appeals court’s willingness to suspend constitutional rights under the guise of protecting public health sets a troubling precedent. Banning abortion care does not protect public health. claims quite a large costs by individuals and health systems. State suspension encouraged people to crossing state lines in search of services, defeating the goal of stopping the spread of the virus. Delayed abortion leads to terminations that occur at later stages of pregnancy, which increases the health risks and economic burden over time. Self-administered abortion can be safe and effective. unsuccessful attempts, however, may result in hospitalization and use of PPE. Most strikingly, carrying pregnancy to term requires prenatal care and extensive reliance on health care resources, resulting in practitioners consuming PPE again and again. In the long run, unplanned parenthood can have significant long-term effects for the health of individuals and their families. These consequences will fall disproportionately on those already marginalized by the inequities of our health care system, with the added struggle of navigating the impact of COVID-19.
State suspensionshaving few (if any) reliable benefitsthey are sham violations of abortion rights rather than reasonable public health measures. Abortion has long been highlighted onerous regulationin stark contrast to comparably safe medical procedures. In 2016, the U.S The Supreme Court rejected a Texas law that threatened to close health centers across the state. The law, which required providers to obtain admitting privileges and clinics to qualify as ambulatory surgery centers, had no reasonable health justification and placed significant barriers to abortion care. The same appeals court that allowed Texas to suspend nearly all abortion care upheld an almost identical law targeting abortion providers in Louisiana just last year. Supreme Court decision in this case, June Medical Services v. Russoexpected this summer.
COVID-19 presents enormous challenges to the delivery of health care services both in the US and abroad. But in this case, Texas has exacerbated the health emergency. Instead of suspending abortion, the state could have relaxed ultrasound and in-person consultation requirements to limit patient-doctor contact. Virginia, for example, recently removed mandatory ultrasound and personal consultation. Telehealth for abortionwhich is currently banned in Texas, should be expanded across the country – a move Planned Parenthood does in its health centers. These are examples of measures that will relieve overburdened health care systems at a critical time—policies that promote the health of all populations and do not exacerbate health care deficiencies and disparities.
Image by Lorie Shaull at Wikimedia Commons
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