But on Tuesday, the U.S. Court of Appeals for the 5th Circuit allowed the ban in Texas to take effect, letting the state prohibit nearly all abortions during the nation’s public health crisis. As cases move through the courts, women’s access to abortion care in several states hangs in the balance.
It should come as no surprise that some states seized on the pandemic to limit access to abortions. Since the Supreme Court granted women the constitutional right to an abortion in the landmark 1973 case Roe v. Wade, antiabortion activists have worked to undermine women’s right to exercise power over their own health and reproductive decisions. Trying to characterize abortion services as nonessential or not strictly necessary is a tactic that dates to the 1970s, and this latest move to shut abortion providers under the guise of managing the coronavirus is clearly an effort to advance the battle to end legal abortion in the United States.
In 1976, Rep. Henry Hyde (R-Ill.) sponsored an amendment that represented one of the first major gains for the antiabortion movement. Known as the Hyde Amendment, the legislation prohibited Medicaid funding (the federal and state program that provides health coverage for low-income people) for abortion unless a woman’s life was in danger. The Supreme Court upheld this provision in cases including Beal v. Doe and Maher v. Roe. Following the federal government, many states stopped funding “medically unnecessary” abortions, framed by opponents as “abortion on demand.” Of course, there are many personal, medical and economic reasons a person might say abortion is necessary. But the antiabortion movement had successfully set the terms of the debate.
It also targeted the Title X Family Planning Program, the federal grant program that pays for comprehensive family planning and related preventive health services for low-income, uninsured and underinsured women. A bipartisan initiative enacted under President Richard M. Nixon in 1970, Title X was established to address inequities in access to contraceptives and related preventive services, such as gynecological exams and cancer screenings.
Title X funding was never eligible to pay for abortions, and such clinics had to fund those services through other sources. This system reinforced the idea that abortion care was not “essential” — it wasn’t covered by Title X funding.
Nevertheless, social conservatives attacked Title X clinics, seeking to limit not just funding for abortion, but also the very places where women could receive abortions. In 1988, the Reagan administration proposed a new rule that stipulated that doctors at Title X-funded health centers were prohibited from counseling pregnant patients about abortion or referring them to abortion providers, even if patients requested such referrals; that abortion and other health-care services must be physically and financially separate entities, and that Title X-funded sites must provide all pregnant patients with information on prenatal care and social services.
Reagan’s Title X policy therefore reinforced the rationale behind the Hyde Amendment by making clear that unlike other medical procedures that received federal funding, abortion care — including counseling and referrals — was not an essential health service.
All of these measures would have created serious hurdles to women accessing abortion care, framed as nonessential. Dubbing it the “domestic gag rule,” Planned Parenthood and other organizations filed lawsuits challenging the policy, arguing that restricting what information doctors could give patients violated their First Amendment rights. In 1991, the Supreme Court upheld the rule in Rust v. Sullivan, but it never went into effect. President Bill Clinton rescinded it in 1993 once he took office.
Despite this setback, efforts to impose a “gag” on health-care professionals at Title X-funded health clinics continued. Although President George W. Bush maintained and then increased federal funding for the Title X program while in office between 2001 and 2009, the cause was taken up again, with greater success, by the incoming Trump administration in 2016.
Similar to the 1988 proposal, the Trump administration’s policy creates hurdles for women seeking abortion care. It now requires Title X health providers to physically and financially separate abortion from other services that they provide. It bars health-care professionals in the Title X program from referring patients to other abortion providers. These rules reinforce the idea abortion services are not an essential part of comprehensive health care.
As the new rule has made its way through the courts, coming into full effect in March 2020, Title X-funded health centers have had to decide whether to forgo Title X funding to continue offering women full reproductive health services. In August 2019, Alexis McGill, the chief executive and acting president of Planned Parenthood withdrew the organization from the Title X program. Approximately 1,000 other clinics followed because they believe abortion care is essential for their patients who need them.
Without Title X funding, many of these clinics may be forced to close, imperiling access to a full spectrum of health care, including abortion access. According to the Guttmacher Institute, the domestic gag rule has already reduced the Title X family planning network’s capacity to provide women with reproductive services by at least 46 percent, affecting approximately 1.6 million patients. The economic and public health shocks created by the coronavirus pandemic may force more health centers to shutter, imperiling access to health care, including abortion care, for millions.
The argument that abortion care must be suspended to divert resources to treating coronavirus patients is unfounded. Although the need to preserve personal protective equipment (PPE), hospital capacity and resources amid the pandemic is clear, abortion procedures do not require significant amounts of personal protective equipment, and it is extremely rare that a patient has a complication that requires treatment in a hospital.
In addition, the window for abortion care is more limited than for many other health-care procedures. Abortion services are time sensitive and cannot be significantly delayed. With the passage of restrictive abortion laws, such as fetal heartbeat bills, states have already moved to narrow the period in which a woman can obtain an abortion legally. As uncertainty exists over the duration of the current lockdown, closing abortion clinics effectively deprives women of these services indefinitely.
Even if states must close clinics, they could do more to ensure continued access to health care, including abortion. This week, 21 state attorneys general sent a letter to the Department of Health and Human Services demanding increased access to telemedicine reproductive care and drugs. The Food and Drug Administration could allow pharmacies to stock the medication that induces an abortion safely at home, making them easier for women to access in this time of social distancing and lockdown. But the states that have sought to shutter clinics as “nonessential” have also resisted widening access to medical abortions at home, instead using the opportunity to curb abortion access altogether.
Protecting a person’s right to determine whether and when to have children is important in any context, including amid pandemics. Following the 2015 Zika outbreak, for example, there was a rise in cases of extralegal abortion in some countries in South America where access to contraception was limited and abortion was either restricted or outlawed altogether. If women in the United States do not have access to contraception or abortion services in the wake of the coronavirus, they may turn to potentially harmful extralegal methods to end unwanted pregnancies.
Since abortion became legal in the United States, the antiabortion movement has worked to classify abortion as “elective” and “nonessential” to stigmatize the procedure and make it inaccessible, with the ultimate goal of recriminalization. Continuing the tradition of treating abortion care as distinct from other health services, the Trump administration’s new Title X policy has already reduced access to comprehensive reproductive health care, moving abortion opponents closer to their goal. With states now justifying closing abortion clinics for the sake of protecting public health, the pandemic is accelerating the process of gutting legal abortion, moving them closer still.