The Pandemic Politics of Reproductive Health Care

The campaign to prove that abortion is not health care did not bring with the COVID-19 pandemic, and it won’t end there either. 

The Pandemic Politics of Reproductive Health Care

This piece is part of Women on the Frontlines: COVID and Beyond,” an online symposium examining the political, economic, social and legal status of women.

Sponsored by the Cornell Law Review with the Center for Biotechnology and Global Health Policy and co-hosted by Ms. and others, the symposium brings to light the ways women labor and lead at the forefront of society, constituting the foundation of essential workers, and performing critical services from child to medical care. But during the pandemic, women (especially women of color) suffer persistent economic constraints; health and death disparities; obstruction of rights; and the troubling perceptions of expendability. Join us in a discourse about the role of women and pathways toward a more just society.

“Women on the Frontlines: COVID and Beyond” will take place Oct. 30 at 8 a.m-10 a.m. PST (11 a.m-1 p.m. EST). Register here.

The Pandemic Politics of Reproductive Health Care

It’s easy to think the crisis over reproductive health care and COVID-19 has passed. It was not so long ago that conservative states issued stay-at-home orders that functionally banned abortion. The issue appeared poised for a reckoning at the conservative Supreme Court. And by requiring pregnant people to visit a physician in person, the Food and Drug Administration made sure that medication abortion would not be a solution for women seeking to avoid risky face-to-face contact.

But conservative states rolled back their stay-at-home orders and lifted abortion bans. A district court held that the FDA’s in-person requirement was unconstitutional, and the Supreme Court declined the Trump administration’s request to stop that ruling from going into effect. Advocates in the reproductive health health space had scored a few victories.

But the strategies at work in COVID-19 abortion politics will resonate long after the pandemic. For decades, anti-abortion leaders have sought to argue that reproductive services are not essential—and do not qualify as health care in the first place. By embracing these ideas, the states have sent a powerful message about the value put on pregnant people and their care.  

The Pandemic Politics of Reproductive Health Care
A Planned Parenthood rally in July 2017. (Flickr)

Separating Reproductive Services and Health Care

During the fight for the Hyde Amendment—a ban on the Medicaid funding for abortion—abortion foes began insisting that reproductive services were not real health care.

To normalize a funding ban, anti-abortion leaders insisted that most abortions were unessential. Hyde proponents legitimized a narrow category of abortions: those involving rape, incest and a severe health threat. But labeling some abortions unessential made it all too easy to argue that all procedures were just as bad.

Hyde supporters suggested Medicaid recipients—many of them women of color—would simply lie to get abortions if there were any exceptions to a funding ban. Describing abortion as “unessential,” and as something less than health care, made it possible for the Hyde Amendment to pass.

Today, anti-abortion leaders believe that it will be impossible to overturn Roe unless the Court and the American people believe that women do not want or need abortion to lead more equal lives. They have a reason for thinking that.

In 1992, the Supreme Court saved a right to choose abortion partly because a majority believed that women relied on abortion access in ordering their lives. Ever since, abortion foes have worked to establish that abortion made women not equal but sick. Anti-abortion lawmakers passed laws requiring patients to hear information connecting abortion to everything from post-traumatic stress to breast cancer.

The campaign to prove that abortion is not health care did not bring with the COVID-19 pandemic, and it won’t end there either. 

Treating Reproductive Services as Nonessential

The same is true of the campaign to show that abortion, birth control and other reproductive services are unessential.

The Pandemic Politics of Reproductive Health Care
(ALL / Creative Comons)

The last time the Supreme Court poised to reverse Roe, the anti-abortion movement stressed claims that most pregnant people chose abortion for frivolous or even offensive reasons. Abortion foes tried to pass laws allowing abortion only in cases of rape, incest, or certain severe health threats.

The Hyde Amendment proved that this kind of reasons ban could severely limit access to abortion: After Hyde, the number of Medicaid abortions cratered, even though several exceptions theoretically remained in place.

Now, reasons bans are back. This time, states insist that a non-trivial number of pregnant people have abortions based on the race, sex or disability of the fetus. Both kinds of ban figure in a strategy to establish that most (or all) abortions are unnecessary for the people who choose them.

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And it’s not just about abortion. During battles about the contraceptive mandate of the Affordable Care Act, abortion foes and other conservative Christians have argued that birth control access for employees violates employers’ religious liberty. Dig a little deeper, and these arguments boil down to a judgment that access to contraception is unessential.

Whenever competing values are stake, courts have to strike a balance between conscientious objections and access to care. Historically, that balance depended partly on how closely involved a religious objector had to be. It seems different, for example, to force someone with moral objections to perform an abortion herself than it might to ask that person to cover contraception for employees.

But over time, conservatives have successfully argued that even the most indirect involvement burdens their faith. Why? Because contraceptive services are not that important—or so the argument goes. It doesn’t help that many abortion foes view common forms of contraception, including IUDs and the birth control pill, as abortifacients.

Make no mistake about it: These campaigns have everything to do with the fate of Roe v. Wade. When conservative courts of appeal upheld state COVID-19 orders, they suggested that abortion was a second-class right (if it was a right at all). The Eighth and Fifth Circuit Courts of Appeal relied on a 1916 Supreme Court case, Jacobson v. Massachusetts, that reasoned that states have broad discretion to address public health emergencies, unless there was “a plain, palpable invasion of rights secured by the fundamental law.”

It seems clear enough that there is a right to choose abortion, at least for now. Yet both courts suggested that states could eliminate abortion access—and could do so even though their medical justifications seemed questionable at best. The pandemic has revealed the extent to which courts already denigrate reproductive rights. 

Who Is Essential?

For the moment, COVID-19 abortion orders have expired, and the FDA’s in-person requirement is still on hold. The pandemic is a long way from over, but even after it has passed, we will have learned something important about whom, and what, we treat as essential.

The campaign to distinguish reproductive services and health care has been central to the fight to eliminate Roe v. Wade, but it has been more than that. By treating reproductive care as unessential, too many states have shown just how much they value pregnant people.

It’s a lesson that we can glean from shockingly high maternal mortality rates, especially for Black women. Whether it’s working in higher-risk positions, taking on childcare, or even leaving their jobs to perform work in the home, people of color and women have born more than their share of the burden during the pandemic.

Politicians on both sides of the aisle are fond of thanking essential workers. But when it comes to reproductive services, pregnant people are coming to see how essential lawmakers really think they are.

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Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law. She teaches and writes on the legal history of reproduction and constitutional law, family law and sexuality. Her latest book is Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press 2020).