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THE RECENTLY bolstered conservative majority on America’s Supreme Court is famously unfriendly to abortion. Many expect the five Republican appointees to forge a retreat from Roe v Wade, the 1973 case recognising a woman’s right to terminate her pregnancy, when a ruling on access to clinics in Louisiana arrives later this spring.
Yet in the wake of a new threat to Roe occasioned by the covid-19 pandemic—bans on abortion in Texas and several other states—April 11th brought a curious development. Abortion providers are pinning their hopes on the pro-life Supreme Court to protect pregnant Texans’ constitutional rights. If those hopes are dashed, states hostile to abortion—including Alabama, Ohio and Oklahoma, where judges have partially lifted similar bans—will in effect have free rein to suspend Roe under the pretext of an emergency. That could deny thousands of women the right to terminate their pregnancies for as long as the virus plagues America.
On March 22nd Texas’s Republican governor, Greg Abbott, issued an executive order barring all medical procedures that are “not immediately medically necessary”, in order to save hospital beds and protective gear like masks and gloves for covid-19 patients. (The order, due to expire on April 21st, is expected to be renewed.) The next day, Ken Paxton, the state’s attorney-general, determined that this prohibition applied to all abortion-care except when the woman’s “life or health” was in danger. Planned Parenthood, an abortion provider, the Centre for Reproductive Rights, an advocacy group, and the Lawyering Project, a social venture, won a temporary restraining order against the ban on March 30th at a federal district court in Austin. But the conservative Fifth Circuit Court of Appeals in New Orleans promptly reversed Judge Lee Yeakel’s order by a 2-1 vote and restored the ban.
The abortion providers and their lawyers gave it another go, this time persuading Judge Yeakel to prune the ban by permitting early-term “medication abortions”—terminations spurred by taking two pills—and surgical abortions for women nearing 22 weeks’ gestation. On April 10th, in a provisional ruling, the same three-judge panel on the Fifth Circuit nixed the medication carve-out. They agreed, though, to make an exception regarding surgical abortions for women past the mid-point of their pregnancies.
Rather than wait up to another week for a full decision from the Fifth Circuit, the plaintiffs made an emergency application to the Supreme Court. The justices’ “intervention is urgently needed”, the organisations wrote, as “virtually all Texas residents with unplanned pregnancies are unable to access early abortion care through medication abortion and must instead wait until they reach a more advanced stage of pregnancy”. Pointing to hundreds of women whose appointments have already been cancelled, the plaintiffs asked the court to lift Texas’s ban on pill-based termination during the first ten weeks of pregnancy.
This narrower request seems tactically astute. Governor Abbott’s emergency order, the plaintiffs point out, explicitly exempts “surgeries and procedures that do not deplete the capacity” of personal protective equipment (PPE) or hospital beds. As pill-based abortions require neither protective gear nor—except very rarely—hospital stays, there seems to be little reason to ban them. A mere “0.31 percent of medication abortions”, the brief claims, go awry and result in “hospitalisation, surgery or blood transfusion”.
By forcing women with unwanted pregnancies to wait out the pandemic, Texas may be worsening the very problem the ban purports to address. Abortions have higher complication rates later in pregnancy. Procedures require providers to don scarce protective gear. And by foreclosing nearby options for medication abortions, the ban pushes “anxious patients [to] fly or drive hundreds of miles across state lines to attempt to obtain abortion services”. Travel ”as far away as Colorado and Georgia” increases the risk of contracting or spreading the virus. The Fifth Circuit’s ruling risks “exacerbating the current public health crisis”.
The Supreme Court does not seem to be in quite the hurry it was in a week ago, when a pandemic-inflected dispute over absentee ballots in Wisconsin reached the justices. On April 4th, the court asked Democrats for a response less than 90 minutes after Republicans filed their application. It ruled on April 6th. The Texas dispute is not as time-bound—there is no hard deadline of an approaching election—but every day of deliberation marks another day women in Texas lack access to abortion. The justices typically issue a call for additional briefs within 24 hours of an emergency application and act within days. A resolution from the court could come by the end of this week.
Once the court tackles the dispute, how might it rule? The law is thin. A ruling from 1886, Ex parte Milligan, implies that Americans retain constitutional rights during crises. But in 1905, the Supreme Court found in Jacobson v Massachusetts that the smallpox epidemic justified mandatory vaccinations. The Fifth Circuit cited Jacobson to uphold Texas’s ban, while the abortion providers point to the same decision’s admonition that public-safety measures may not be “unreasonable, arbitrary [or] oppressive”.
Cross-cutting considerations make prediction difficult. The conservative justices’ hostility to Roe may make them unreceptive to the plaintiffs’ pleas. Mary Ziegler, a legal historian at Florida State University College of Law, says the public-health emergency may give the majority “political cover to reach a result that might otherwise produce more backlash”. During President George W. Bush’s “war on terror” nearly two decades ago, Ms Ziegler observes, the justices “signed off on the erosion of rights because of an emergency”.
Yet the supposed link between halting pill-based abortion and preserving PPE is “tenuous at best”, Ms Ziegler says. She thinks it’s “possible” that the court’s chief justice, John Roberts, may vote with the liberal justices to partially lift the ban. Abortion-rights supporters could stake hope in the chief, then, and perhaps even in some colleagues to his right. Suspending one constitutional right during a crisis could clear the way for states to deny others, and it would raise conservatives’ hackles if blue-state governors used covid-19 as a pretext for (say) targeting gun stores or churches. Even with their sharpening divisions on other matters, the justices may agree that the pandemic should not provide cover for arbitrarily shelving constitutional rights.■