You might think that in the midst of a terrifying worldwide pandemic and resulting global economic meltdown politicians would be too busy to meddle with abortion rights.
You would be wrong.
All across the country, as the coronavirus pandemic has disrupted every aspect of life and pushed millions of people into an increasingly precarious economic position, anti-choice legislators have used the upheaval as an excuse to interfere in reproductive decision-making and curtail access to abortion.
COVID-19 Relief Package Briefly Delayed Over Abortion Fight
The attempts began early, with the Families First Coronavirus Response Act (FFCRA), the second of the three coronavirus relief packages Congress has passed so far (there is talk of a fourth package, but as of our press deadline, no details were available). The FFCRA provided billions in funding for family and medical leave, expanded coronavirus testing, and extended unemployment benefits. It made no references to reproductive health care.
The fundamentals of the package had been agreed to, but a vote was delayed when some anti-choice lawmakers began claiming that the bill contained unspecified “loopholes” that could be used to fund abortion services. They insisted that Hyde Amendment language explicitly prohibiting federal funding for abortion had to be included. After a day of wrangling, pro-choice representatives agreed (one suspects there was eye-rolling involved) to channel the money through a division of the Department of Health and Human Services (HHS) that is covered by Hyde.
States Attempt to Block Abortion Access Amid Coronavirus Outbreak
Some state governors have been more direct in their approach. On March 20, Ohio’s attorney general sent a letter to the state’s abortion clinics ordering them to stop providing procedures to preserve medical supplies like surgical masks. Multiple states, including Alabama, Arkansas, Indiana, Iowa, Louisiana, Oklahoma, Tennessee, and Texas, have followed suit, some barring all procedures and others drawing distinctions between those abortions deemed “medically necessary” and those considered “elective.”
Abortion rights groups have filed suit in every state, arguing that unlike a colonoscopy or other elective procedure, abortion is both a constitutional right and time-sensitive—unnecessary delays put patients at greater risk. It isn’t possible to list here the actions and outcomes in every state; any attempt would double the length of this column, as well as be out of date almost immediately, given the fast-moving pace of litigation. It seems probable, however, that this issue will eventually wind up before the Supreme Court in some form.
Trump Releases FY 2021 Budget
On February 10, the Trump administration released its proposed FY 2021 budget. As in previous years, it issues massive cuts to global health funding—nearly $4 billion, including a 61-percent decrease in international family planning funding and a continued zeroing out of funding for the United Nations Population Fund (UNFPA). As in previous years, we do not expect this budget proposal to have much influence on the congressional budget appropriations process. It remains, however, a sign of the disdain with which the administration views global health and development programs.
Appeals Courts Split on Trump Title X Rule
In February, an 11-judge panel of the 9th Circuit Court of Appeals ruled 7–4 that part of Trump’s Domestic Gag Rule could remain in effect. HHS put the restrictions into place more than a year ago.
The provision at issue in this case was a ban on Title X health care centers offering referrals for abortion services. Health centers are allowed (but not required) to provide “nondirective counseling” on all pregnancy options, including abortion.
In his dissent from the ruling, Circuit Judge Richard Paez wrote that the majority’s ruling “sanctions the agency’s gross overreach and puts its own policy preferences before the law.”
In March, however, the 4th Circuit Court of Appeals ruled in a Maryland case that HHS could not enforce the ban in that state. The split means that it is likely the Supreme Court will eventually be asked to settle the dispute.
“In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law. Women and their families will suffer for it. I strongly dissent.”
–Circuit Judge Richard Paez
Supreme Court Hears Louisiana Abortion Case
On March 4, the Supreme Court heard oral arguments in June Medical Services, LLC v. Russo (originally June Medical Services, LLC v. Gee, but amended due to a staffing change at the Louisiana Department of Health), which involves a 2014 Louisiana law requiring abortion providers to have hospital admitting privileges. The law in question is virtually identical to a Texas law ruled unconstitutional in 2016, but back in September 2019, a three-judge panel from the 5th U.S. Circuit Court of Appeals nevertheless determined that the facts in the Louisiana case were “remarkably different” than in the Texas case and allowed the law to stand. The decision was a stark example of conservative justices ignoring a precedent they didn’t like and hoping the Supreme Court would back them up. The full 5th Circuit voted not to rehear the case, leading providers and patient advocate groups to appeal to the Supreme Court.
During oral arguments, Louisiana’s Solicitor General, Elizabeth Murrill, was unable to answer factual questions about the law without undermining her own case, and could not offer any evidence of health benefits provided by Louisiana’s law. Court watchers reported that Chief Justice John Roberts seemed particularly irritated by the blatant bad faith on display, leading to some hope that he might vote with the court’s liberal wing to strike the law down. It’s possible. But counting on John Roberts to save abortion rights in America is not a comfortable place to be. A decision is expected sometime in June.