New obstacles have arisen for women seeking abortions in the United States (US). Despite Roe v Wade confirming that women have the right to an abortion under the 14th Amendment to the Constitution, many states have used the COVID-19 pandemic to impose partial or total restrictions on access to abortion.
These restrictions could not have come at a worse time. Contraception shortages and higher rates of sexual violence resulting from national lockdown measures have dramatically increased the demand for abortion. One abortion clinic in New Mexico (a state where no abortion restrictions have been implemented) reported that in May 2020 there was a “tripling to quadrupling of patients coming from Texas,” a state with one of the most draconian abortion restrictions. At a time when providing appropriate medical care is at the forefront of the government’s COVID-19 response, it is unacceptable that women’s reproductive health rights are being violated.
ABORTION DEEMED “NON-ESSENTIAL”
Between March and April 2020, states such as West Virginia, Alaska, and Tennessee deemed abortion a “non-essential” medical procedure as part of their response to the pandemic. This meant that clinics were banned from performing abortions, with some states like Texas threatening fines and imprisonment for breaching this order. These prohibitions are in contravention of international human rights law, as the United Nations (UN) Human Rights Committee recently re-affirmed that abortion is a human right.
In Texas, Governor Greg Abbott issued an executive order on 22 March 2020, prohibiting “any type of abortion that is not medically necessary to preserve the life or health of the mother”. This did not come without legal challenge; in April, the order was blocked and unblocked by courts eight times. Not only did this generate uncertainty, but it meant that women were forced to continue with their pregnancy or perform a dangerous abortion at home. Home abortions present a significant health risk, with subsequent medical intervention often being required. Providing such care to these women reduces the number of health care professionals and medical equipment available for patients with COVID-19, which undermines the alleged purpose of the prohibition.
The alternative option of travelling out of state to an abortion clinic presents its own difficulties. The Guttmacher Institute, a reproductive and sexual health research organisation, found that in Texas the pandemic-related bans increased the average driving distance to the nearest abortion clinic from 12 miles to 447 miles. For many women, this journey would be impossible, as they would be unable to afford to take time off work or make suitable childcare arrangements. These issues are exacerbated by the increase in the number of people being furloughed and made redundant as a result of the pandemic.
THE LASTING IMPACT OF ABORTION RESTRICTIONS
Whilst most prohibitions were eventually lifted – for example, the Texas prohibition expired on 22 April 2020 – the time-sensitive nature of abortion means that the damage was done. It is estimated that over half of the women who would have been eligible for a medicated abortion (an abortion using pills) during the prohibition in Texas will no longer be eligible, given that they are now too far along in their pregnancies. Some pregnancies will now be past the legal time limit for an abortion at all. Many countries and international human rights organisations around the world recognise that forcing a woman to carry an unwanted pregnancy to term is a violation of human rights, in particular the rights to bodily integrity and privacy.
Despite outright bans on abortion being removed, certain US states have implemented further barriers which render abortion virtually inaccessible. In Arkansas, women must receive a negative COVID-19 test result 72 hours before an abortion. Yet access to testing remains a major issue.
The UN Working Group on Discrimination Against Women and Girls condemned the US’s response to the pandemic, declaring that these restrictions constitute human rights violations, and that they are the latest example of “a pattern of restrictions and retrogressions in access to legal abortion care across the country”. Yet the US’s attempt at restricting abortion access extends beyond the country. On 18 May 2020, the US Agency for International Development urged the UN Secretary General to remove the words “sexual and reproductive health services” from the UN’s Global Humanitarian Response plan to COVID-19. Whilst this was rejected, the intended far-reaching consequences of this request expose the extent of the government’s contempt for reproductive rights.
INCONSISTENCIES IN TELEMEDICINE
The general travel restrictions imposed during the pandemic have caused a rapid rise in telemedicine in the US. Telemedicine is the practice of health care professionals diagnosing and treating patients remotely. For many drugs, the Food and Drug Administration (FDA) relaxed the requirement that the drug must be dispensed at a hospital or clinic. This meant that drugs which would usually have to be collected in person could now be posted to the patient. However, this has not been the case for abortion drugs – “out of more than 20,000 drugs regulated by the FDA, mifepristone [the drug used for a medicated abortion] is the only one that patients must receive in person.” Forcing women to travel to hospitals or clinics to obtain this drug puts them at a high risk of contracting COVID-19, in light of the fact that the US currently has the highest number of cases in the world. Again, this undermines efforts to prevent the spread of the coronavirus.
Several medical bodies, including the American College of Obstetricians and Gynecologists, are suing the FDA. The College criticises the inconsistency of the FDA’s relaxations, stating that “mifepristone has long been proven to be safe and effective when prescribed through telemedicine”. It appears that this is yet another example of the US putting abortion further out of reach for women.
The COVID-19 pandemic presented an unfortunate opportunity for the US to create barriers to abortion access. Whilst it is likely that the remaining restrictions will continue to be challenged in court and eventually lifted, the devastating impact of these measures will be felt long after the pandemic subsides.
Beth is a third year LLB Law student at the University of Birmingham, due to graduate in 2020. She was the Chair of her university’s Mooting Society and she is now working on projects with the Freedom Law Clinic and the European Law Students’ Association (ELSA). She hopes to pursue a career at the Bar.