Updated May 11, 2:30 p.m. PST
As most states halt nonessential surgeries to create capacity for a rush of COVID-19 patients, governors and other state officials across the U.S. have been deciding whether abortion care is an “essential” health-care service.
Abortion Bans Enacted
Lawmakers in the following twelve states have tried to ban abortion by classifying it as a non-essential procedure: Alaska, Alabama, Arkansas, Indiana, Iowa, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee, Texas and West Virginia.
Legislators in Kentucky passed a bill to allow the Attorney General to block abortion access during COVID-19, but the Kentucky governor vetoed the bill.
Abortion Bans Lifted
Courts have blocked the bans in Alabama, Iowa, Ohio, Oklahoma and Tennessee.
In Louisiana, the state lifted the ban after clinics sued.
Texas finally lifted its ban after multiple court decisions see-sawed back and forth for weeks, forcing pregnant women to travel hundreds of miles to other states to obtain abortion case.
Abortion Bans Still in Effect
The Eighth Circuit Court of Appeals has upheld a ban in Arkansas. Bans have not been challenged in Alaska, Indiana nor Mississippi, whereas a clinic in West Virginia has filed a challenge to a ban in that state.
Below, we break down the latest in these coronavirus-era legal battles, state-by-state.
Alabama
On March 19, Governor Kay Ivey issued a statewide order which stopped all medical procedures except for emergencies or those needed to “avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.” Abortion was included in the ban.
On March 13, four Alabama reproductive health clinics filed a lawsuit challenging the ban.
On April 12, U.S. District Judge Myron Thompson granted a preliminary injunction barring enforcement of the limitation on abortion procedures. The judge stated that “efforts to combat COVID-19 do not outweigh the lasting harm imposed by the denial of an individual’s right to terminate her pregnancy, by an undue burden or increase in risk on patients imposed by a delayed procedure, or by the cloud of unwarranted prosecution against providers.”
On April 21, an historic coalition of women’s rights, civil rights, human rights and reproductive justice groups filed an amicus brief 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.
On April 23, the 11th Circuit Court of Appeals denied Alabama’s appeal of the lower court’s preliminary injunction.
Alaska
On March 19, Governor Mike Dunleavy issued an order requiring the postponement or cancelation of all non-urgent or elective procedures until June 15.
On April 7, Alaska revised its COVID-19 response policy to specifically prohibit surgical abortion.
As of April 27, no legal challenges had been filed against Alaska’s abortion ban.
Arkansas
On April 10, the Arkansas Department of Health ordered abortion clinic Little Rock Family Planning to halt surgical abortions except those to protect a patient’s life or health.
On April 14, U.S. District Judge Kristine Baker granted a temporary restraining order against the state of Arkansas’ order to halt elective abortions.
On April 22, the Eighth Circuit Court of Appeals reversed the lower court, allowing the state to halt surgical abortion.
On May 7, U.S. District Judge Brian Miller denied a request from the only procedural abortion clinic in Arkansas to block a state rule that requires people to have a negative coronavirus test before having an abortion, the Associated Press reports.
Indiana
On March 30, Indiana governor Eric Holcomb signed an executive order prohibiting “elective and non-urgent” surgical procedures, specifically mentioning abortion clinics.
As of April 27, no legal challenges had been filed against Indiana’s abortion ban.
Iowa
Governor Kim Reynolds issued an order March 30 classifying abortion as an elective procedure and banning them during the pandemic.
That same day, the American Civil Liberties Union of Iowa filed a lawsuit against the state’s order.
Iowa Solicitor General Jeffrey Thompson responded to the petition by clarifying that the order was not a blanket ban, but would take medical factors into consideration, including the timing of the pregnancy.
Planned Parenthood has resumed providing abortion in the state.
Kentucky
On April 15, Kentucky legislators passed a bill to give the state’s anti-choice Attorney General David Cameron power to block abortion access during the pandemic.
On April 24, Democratic Governor Andy Beshear vetoed the bill.
Louisiana
The Louisiana Department of Health on March 21 ordered all medical and surgical procedures be postponed until further notice, with exceptions for emergencies.
On April 13, abortion clinics in the state—represented by the Center for Reproductive Rights—sued to block the measure.
Louisiana’s governor announced he would lift the state’s COVID-19-related restrictions on certain medical procedures, including abortion, on April 27.
Mississippi
On April 10, Mississippi Governor Tate Reeves issued an executive order banning all “elective” medical procedures, including abortions, with the order expiring April 27.
Ohio
On March 17, Ohio’s Department of Health ordered a halt on surgical abortions as “non-essential” medical procedures during the pandemic.
On March 30, Ohio abortion clinics filed a lawsuit challenging the ban and U.S. District Court Judge Michael Barrett issued a temporary restraining order on that policy.
On April 6, the 6th Circuit Court of Appeals affirmed Judge Barrett’s order, allowing abortion clinics to continue operating during the COVID-19 pandemic.
On April 23, U.S. District Court Judge Michael Barrett issued a preliminary injunction blocking enforcement of the state’s order and allowing surgical abortions to be performed if the provider determines on a case-by-case basis delaying that delaying the abortion would push the patient past the point of “viability” under Ohio law.
Oklahoma
On March 24, Governor Kevin Stitt issued an executive order halting non-essential surgeries and minor medical procedures in the state during the COVID-19 pandemic.
On March 27, Stitt issued a press release stating that his executive order prohibited elective abortions.
On March 30, abortion providers in the state challenged the halt to elective abortions in court.
On April 1, Stitt extended the order’s prohibitions until April 30.
On April 6, Judge Charles Goodwin of Oklahoma’s Western District Court put a temporary stay on Stitt’s order, allowing some abortions, including medication abortions, to continue.
On April 13, the 10th Circuit Court of Appeals affirmed the temporary stay.
On April 21, Judge Goodwin issued a preliminary injunction blocking Oklahoma’s COVID-19 abortion ban.
Tennessee
On April 8, Governor Bill Lee issued an emergency order banning abortions for three weeks, with the goal of freeing up protective medical equipment for doctors caring for COVID-19 patients.
On April 13, abortion providers filed a lawsuit challenging the order.
On April 17, U.S. District Court Judge Bernard Friedman ruled that the state must allow abortions to continue because the state had not shown that an appreciative amount of protective medical equipment would be saved by halting abortions in the state.
On April 24, the 6th Circuit Court of Appeals affirmed the lower court ruling allowing abortions in Tennessee.
Texas
On March 22, Governor Greg Abbott issued an executive order banning non-essential medical procedures during the COVID-19 pandemic in order to free up hospital beds for patients and personal protective equipment (PPE) for those on the frontlines of the public health crisis.
The next day, March 23, Texas’s attorney general Ken Paxton issued a press release interpreting Abbott’s order to bar any type of abortion that is “not medically necessary to preserve the life or health of the mother” and stating that violators faced a $1,000 fine, 180 days in prison and a revocation of their medical license.
On March 25, Planned Parenthood and other reproductive health clinics in Texas filed a lawsuit, arguing that abortion is an essential and time-sensitive procedure and that the Governor’s order imposed an “undue burden” on the constitutional right to abortion access. The clinics asked the court to block the ban.
On March 30, a federal court ruled in favor of abortion providers and granted a temporary restraining order to allow abortion procedures to continue during the pandemic.
Judge Lee Yeakel wrote that, “Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order. The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”
The next day, on March 31, the 5th Circuit Court of Appeals issued a stay of the temporary restraining order, again allowing Governor Abbott’s executive order to halt abortion services.
On April 7, the 5th Circuit ruled that the district court should not have granted emergency relief to abortion providers and upheld the ban.
On April 9, the federal district court granted a second temporary restraining order against Governor Abbott’s executive order, allowing providers to perform abortions on those who would be unable to obtain an abortion before reaching 20 weeks, and also allowing them to provide medication abortion. The judge determined that providing medication abortion does not require the use of any PPE.
He also determined that the inability to obtain abortion care in Texas as a result of the Executive Order was causing individuals with unwanted pregnancies to travel by car and airplane to places as far away as Colorado and Georgia, increasing their risk of contracting COVID- 19.
On April 10, the 5th U.S. Circuit Court of Appeals reversed the district’s court ruling, granting another stay and enforcing the COVID-19 abortion ban, with the exception of those who would be unable to access abortion services before they reach 20 weeks due to the ban.
On April 11, abortion providers asked for emergency intervention from the U.S. Supreme Court to allow abortion services while the case continues to be litigated.
On April 13, the 5th U.S. Circuit Court of Appeals ruled that pregnant women may still access medication abortion despite the abortion ban.
Judge James L. Dennis wrote that Texas’s attempt to ban medication abortion “… is a strong indication that the enforcement is pretextual and does not bear a ‘real or substantial relation’ to the public health crisis we are experiencing.”
As a result, abortion providers withdrew their request to the Supreme Court.
On April 17, Gov. Abbott issued a new executive order extending the ban on non-essential procedures until May 8.
On April 20, the 5th Circuit Court of Appeals reversed course and ruled that the state may ban medication abortion—and other abortion procedures—as it sought to slow the use of masks, gowns and other protective medical gear. In a 2-1 decision, the majority said that “the constitutional right to abortion does not include the right to the abortion method of the woman’s (or the physician’s) choice” and that clinics had not proven that PPE would not be used during an examination of a woman seeking a medication abortion.
On April 22, Texas Attorney General Ken Paxton stated that abortion is now exempt from the ban on non-essential procedures under Governor Abbott’s new executive order.
Both medication and procedural abortion are now available in Texas.
West Virginia
Governor Jim Justice signed an executive order temporarily barring elective medical procedures.
On April 2, state Attorney General Patrick Morrisey stated that the order included abortions, and implied legal consequences against the state’s lone clinic if abortions proceeded.
On April 24, the Women’s Health Center of West Virginia filed a lawsuit challenging the state’s temporary abortion ban.
In addition to these states trying to ban abortion, 18 state attorneys general signed an amicus brief supporting Texas’ COVID-19 abortion ban—including Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
The Center for Reproductive Rights has released new fact sheets on how state COVID-19 orders impact abortion access and how medically unnecessary abortion restrictions are exacerbating challenges for women trying to access care during the pandemic.
The coronavirus pandemic and the response by federal, state and local authorities is fast-moving. During this time, Ms. is keeping a focus on aspects of the crisis—especially as it impacts women and their families—often not reported by mainstream media. If you found this article helpful, please consider supporting our independent reporting and truth-telling for as little as $5 per month.
