A federal judge has barred the state of Tennessee from preventing abortions during a temporary ban on non-essential medical procedures to slow the spread of Covid-19.
US district judge, Bernard Friedman, said the defendants didn’t show that any appreciable amount of personal protective equipment (PPE) would be saved if the ban was applied to abortions.
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How did abortions become legal in the US?
In 1873 Congress passed the federal Comstock Act, a law to make contraceptives illegal, which included abortion. Nevertheless, illegal abortions were common, and dangerous.
The Food and Drug Administration approved the birth control pill in 1960, and many officials stopped enforcing Comstock laws. However, contraceptives were still illegal. In 1965, the Griswold v Connecticut supreme court case ruled the Comstock laws unconstitutional, because married women had a right to privacy.
The Roe v Wade case followed in 1973. It provided women the constitutional right to obtain an abortion before a foetus is “viable”, or can live outside the womb. It was based in part on the privacy arguments of Griswold.
However, in 1992 the Planned Parenthood v Casey supreme court case tightened abortion access, finding states had a “compelling interest” in protecting life, and could restrict abortion if it did not place “undue burden” on women’s constitutional rights.
How are states trying to restrict abortions?
States have bought in a series of laws that aim to either restrict the availability of abortions to extremely early in pregnancy, or which aim in effect to restrict access to abortion clinics. In 2016 a supreme court case found a Texas law requiring doctors to have difficult-to-obtain hospital access was unconstitutional. The court took up a nearly identical Louisiana case in 2020, called June Medical Services LLC v Gee. It again ruled that the law was unconstitutional..
Are abortion rights unpopular in America?
No. Polls consistently show a majority of Americans support the right to an abortion. But the anti-abortion movement in America is organised, motivated and well funded. It has also been emboldened by the rhetoric of Donald Trump, who sees white evangelical Christians as a core part of his base.
The anti-abortion movement often passes multiple, similar laws that push constitutional boundaries, in an effort to provoke favourable decisions from federal courts.
If Roe v Wade is overturned, as many as 22 states stand ready to ban abortion. With the confirmation of Amy Coney Barrett to the supreme court tipping it to a 6-3 conservative majority, some Republicans believe the dream of rolling back abortion rights is close. The leaked supreme court initial majority opinion written by Justice Samuel Alito and circulated in the court on 10 February 2022 appears to confirm that they will achieve their goal.
In a hearing by phone on Friday, attorneys representing several state abortion clinics argued that Tennessee women would face immediate harm if the ban on abortions was not lifted.
Alex Rieger, arguing for the Tennessee attorney general’s office, said abortions were not being singled out but treated like any other procedure that was not necessary to prevent death or serious bodily injury. The Tennessee governor, Bill Lee, issued an emergency order on 8 April banning those procedures for three weeks.
The aim of the ban was to preserve the limited supply of PPE for doctors fighting Covid-19 and to help prevent the community spread of the disease by limiting patient-provider interactions, Rieger said. The two sides disagreed over whether halting abortions would help or hinder that goal.
Several other states are grappling with similar issues. Judges in the past week have ruled to allow abortions to continue in Arkansas, Oklahoma, Ohio and Texas.
Genevieve Scott, an attorney with the Center for Reproductive Rights, argued that all pregnant women needed care. About one in five pregnant women require hospital visits before labour, and 15-20% of pregnancies end in miscarriages. Even women without problems require prenatal care and tests. All of that requires providers to use PPE and interact with patients, Scott said.
Rieger argued that most of what Scott described would take place a couple of months down the road and that “every piece of PPE we use now is a piece that is not available when this disease reaches its peak.”
Scott disputed that idea, saying the needs were immediate. She also noted that there was no guarantee the executive order would not be extended.
“Nothing in their arguments today suggests they really believe that in three weeks the issue will be resolved,” she said.
Abortion clinics have already turned away dozens of patients, Scott said, adding that the longer an abortion was delayed, the greater chance of complications. Also, the delay could prevent some women from having an abortion altogether by pushing them past 20 weeks gestation, after which abortions are generally not available in Tennessee.
Rieger asserted that Tennessee has the power to restrict abortions in a public health emergency, citing a 1905 US supreme court case in which the court held that requiring citizens to be vaccinated for smallpox was a legitimate exercise of the state’s police powers to protect the health and safety of its citizens.
He suggested abortion providers didn’t want to play by the rules that everyone else has to abide by.
“They want abortion to carry on in Tennessee as if Covid had never happened,” Rieger said. “Tennesseans are making extraordinary sacrifices. Abortion providers don’t want to sacrifice.”
Scott argued that abortion had been recognised as a constitutional right. She added medical groups, including the College of Surgeons, which the state relied upon in crafting its executive order, recognised that abortion was essential care that should not be delayed.
“The state is singling out abortion as the only essential care excluded by the executive order,” she said.
Tennessee’s Republican governor often speaks of his Christian faith and has said he wants to enact some of the strictest abortion laws in the nation, including banning women from undergoing the procedure once a fetal heartbeat is detected.