An historic coalition of women’s rights, civil rights, human rights and reproductive justice groups filed an amicus brief yesterday in the 11th Circuit Court supporting the federal district court’s ruling that Alabama cannot ban abortions as part of the state’s response to the coronavirus.
The amicus brief aims to prevent Alabama’s COVID-19 order to deny of abortion access to the women of Alabama and to potentially criminalize abortion providers.
The brief begins:
“COVID-19 is an emergency that warrants emergency measures. It cannot, however, be used as pretext for attacking a constitutional right. Yet that is exactly what Alabama’s COVID-19 Executive Order … does.
“Under the guise of a generally applicable restriction on non-emergency medical services, the Order poses a palpable threat that healthcare providers who determine that an abortion should go forward will be criminally prosecuted.
“In an environment where government processes and enforcement discretion have routinely been weaponized to target abortion providers, the few remaining providers in Alabama face an untenable choice between serving their patients and risking bad-faith criminal prosecution. For Alabama women, the result is an undue burden on their constitutional rights.”
The unified coalition behind the brief includes the National Organization for Women Foundation, the Feminist Majority Foundation (FMF) and Legal Momentum—joined by 18 other organizations, including In Our Own Voice: The National Black Women’s Reproductive Justice Agenda, the Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People (NAACP), the Transformative Justice Coalition and the Lawyers’ Committee for Civil Rights under the Law.
Alabama lawmakers are attempting to use the COVID-19 pandemic to essentially ban abortions in the state. This move would especially harm Black women, low-income women, minors, victims of domestic and sexual violence, and other marginalized groups seeking safe abortion care. For example:
- In Alabama, sixty percent of abortions are sought by Black women, and the majority of all women seeking abortion are low-income women.
- Alabama ranks third in the nation in maternal death rates, and
- Black women in Alabama are nearly five times more likely to die from pregnancy related causes than white women.
- In Alabama, the Black community disproportionately accounts for 37 percent of confirmed COVID-19 cases and a shocking 52 percent of deaths from COVID-19—even though they make up only 27 percent of the state population.
“Outrageously, the women most impacted by this order, Black and low-income women, are also disproportionately victims of the coronavirus,” said Eleanor Smeal, FMF president. “It’s disgusting that the state is using this as a pretext to deny these women abortion. This order must be stopped.”
The amicus brief demonstrates how Alabama’s COVID-19 order—coupled with the state’s lengthy history of harassment and intimidation against abortion providers—allows already hostile non-medical state officials broad latitude to second-guess the medical judgment of physicians, under threat of criminal prosecution, like lead plaintiff OB/GYN Dr. Yashica Robinson, in caring for their patients.
“Alabama lawmakers are using the COVID-19 crisis as a pretext to advance their longstanding obsession against abortion care, the health professionals who provide it, and the women who urgently need it, by labeling abortion non-essential healthcare. But we know that abortion delayed is abortion denied,” said Toni Van Pelt, president of the National Organization for Women Foundation.
Dr. Robinson, a Black physician who has been targeted by this harassment, testified for five hours before the federal district court in opposition to the order that could harm her patients.
The brief urges the 11th Circuit to deny Alabama’s request to overturn District Court Judge Myron Thompson’s careful decision. Judge Thompson’s order created a clear and enforceable standard for physicians to work with and continue providing essential abortion care during this pandemic.
“Judge Thompson was absolutely justified in limiting the enforcement of this blunderbuss and vaguely written Executive Order so that physicians and their patients can make truly individualized determinations about surgical procedures involving pregnancy during the COVID-19 crisis,” said Bradford M. Berry, general counsel of the NAACP. “The Court of Appeals should affirm Judge Thompson’s order.”
Abortion advocates, like those filing the brief, fear this tactic from Alabama is just the latest move in a long fight to end reproductive access for women nationwide and overturn Roe v. Wade—even though polls show support for abortion is higher than ever.
“Alabama’s extremist anti-abortion law underlying this Order is meant to head to the US Supreme Court in hopes that it will overturn Roe v. Wade, punish women, jail physicians and score political points, shredding constitutional reproductive rights and endangering women’s health,” Van Pelt said.
Read the whole brief here, beginning on page 23.
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