Texas’ Legal Arguments for Banning Abortion During COVID-19 Are Hot Garbage

Special Report: COVID-19

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Commentary My Body. My Rules.

Texas’ Legal Arguments for Banning Abortion During COVID-19 Are Hot Garbage

Imani Gandy

Texas' arguments about abortion care during the COVID-19 pandemic leading to overtaxed health-care systems, depleted resources, and further spreading of the virus are patently ridiculous.

For continuing coverage of how COVID-19 is affecting reproductive health, check out our Special Report.  

Texas Republicans are swinging for the fences when it comes to using the COVID-19 pandemic as an excuse to do what the U.S. Supreme Court has repeatedly said it cannot do: ban abortion.

Gov. Greg Abbott (R)—with an assist from his faithful sidekick, the indicted Attorney General Ken Paxton (R)—has declared that abortion care is not an essential health-care service and is therefore banned until April 22 at the earliest. And advocates in Texas, who recognize that actually yes, abortion care is essential health care, and that patients must be able to access abortion care despite the COVID-19 pandemic, are fighting Abbott in federal court.

Abbott and Paxton are advancing a cynical anti-abortion agenda during a global pandemic that has already claimed thousands of lives, saying that this agenda is actually for the good of Texas. Banning abortion will help contain the virus in Texas and free up resources to fight it, you see.

But they’re wrong. It won’t. Their arguments are silly.

And to demonstrate just how silly Texas’ arguments are, I present to you a list debunking the five most daft arguments that Texas is making to defend its abortion ban.

But before I get to the list, some background is in order:

On March 22, Gov. Abbott issued Executive Order GA-09, which bans all elective surgeries and medical procedures that are not immediately necessary to correct a serious medical condition or to preserve the life of a patient. The order, which is set to expire at 11:59 p.m. April 21, applies to all licensed health-care practitioners and facilities.

The next day on March 23, Paxton issued a press release threatening criminal penalties, including jail time, for those who violate the law. The press release singles out abortion providers specifically—“Health Care Pro­fes­sion­als and Facil­i­ties, Includ­ing Abor­tion Providers, Must Imme­di­ate­ly Stop All Med­ical­ly Unnec­es­sary Surg­eries and Pro­ce­dures to Pre­serve Resources to Fight COVID-19 Pandemic”—and states that the executive order applies to any type of abortion that is not medically necessary to preserve the life or health of the mother, presumably including medication abortion. According to the press release, the “COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus.” Notably, medication abortion doesn’t require hospital beds or personal protective equipment.

On March 25, a group of providers filed suit against Abbott, challenging the executive order as it applies to abortion care, arguing that it’s an undue burden on the constitutional right to obtain a pre-fetal viability abortion (which it absolutely is). They sought a temporary restraining order blocking enforcement of the executive order and won.

U.S. District Judge Lee Yeakel, apparently frustrated by Texas’ anti-abortion shenanigans, blocked the executive order and dropped this gem:

Regarding a woman’s right to a pre-fetal viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. The court will not speculate on whether the Supreme Court included a silent except-in-a-national-emergency-clause in its previous writings on this issue.

Unhappy with Yeakel’s ruling, Texas appealed to the U.S. Court of Appeals for the Fifth Circuit, which paused Yeakel’s ruling–thus allowing Abbott’s executive order to go into effect–until the court could hear arguments from both parties, as well as a handful of officials in other states who are planning to file amicus briefs because they, too, want to use a global pandemic as an excuse to ban abortion.

The arguments Texas has made in court documents filed with the District Court and the Fifth Circuit are simply illogical. Here are the five most daft arguments Texas is making to defend its abortion ban.

New York is on fire, so we have to ban abortion

In their court filings, attorneys for Texas carry on about the horrific situation in New York, noting that “footage of overflowing emergency rooms in New York is sobering” before detailing the number of infections, deaths, and hospitalizations in New York as if that is somehow related to Texas’ preposterous decision to ban abortion. The situation in New York is terrible and heartbreaking. COVID-19 is spreading through New York City like wildfire.

But do you know what New York lawmakers haven’t done as they combat COVID-19?

Ban abortion. 

Texas’ health-care system will collapse from the sudden influx of COVID-19 patients, so we have to ban abortion 

Actually, banning abortion is likely to increase the influx of infected patients into Texas’ health-care system. The Centers for Disease Control and Prevention (CDC) has said that they don’t have any idea how the coronavirus affects pregnant people: “There is not currently information from published scientific reports about susceptibility of pregnant women to COVID-19.” But the CDC has said that “[p]regnant women experience immunologic and physiologic changes which might make them more susceptible to viral respiratory infections, including COVID-19.”

So Texas’ genius plan is to force pregnant people—who by the very virtue of being pregnant are immunosuppressed and therefore more susceptible to respiratory infections like the coronavirus—to remain pregnant even though medical experts don’t know how or whether the virus affects pregnant people or newborns. Great idea, guys!

Hospital capacity and personal protective equipment are being depleted by medically unnecessary procedures, so we have to ban abortion 

Nope. Abortion does not require extensive use of personal protective equipment. And medication abortion doesn’t require any of that equipment.

Plaintiffs note that for surgical abortions, clinicians use personal protective equipment like gloves, surgical masks, and protective eyewear, but only a few health-care staff members are physically present for the procedure, and therefore only a few staff members even need the equipment. Plaintiffs also point out that clinicians generally don’t use N95 masks—which are the personal protective equipment in the shortest supply—and only do so to protect patients and staff from potential transmission of the coronavirus.

There is no evidence to suggest that banning abortion will lead to some critical mass of available personal protective equipment. Give it a rest, Texas.

Patients with abortion complications are going to flood emergency rooms, so we have to ban abortion 

Again, no. Plaintiffs point out in their complaint—citing a medical study published in BMC Medicine—that abortion-related emergency room visits among women between 15 and 49 constitute a mere 0.01 percent of all emergency room visits in the United States. So no, there will not be a flood of patients suffering complications from abortion who will take up hospital beds that could be used for patients infected with COVID-19.

In fact, both medication abortion and surgical abortion are far safer than continuing a pregnancy to childbirth. The risk of death from childbirth is about 14 times higher than the risk of death from abortion complications. Nice try, Texas.

Abortion clinics will contribute to the spread of COVID-19 if they remain open, so we have to ban abortion 

This claim really grinds my gears. As of this writing, Abbott has refused to issue a shelter-in-place order that public health experts agree will flatten the curve and contain the spread of COVID-19. So Texans are running around willy-nilly, spreading the virus hither and yon, and attorneys for the state have the unmitigated gall to blame abortion providers for contributing to the spread of COVID-19.

Attorneys for Texas argue in their District Court filing that “women travel from other locations to receive abortions at [plaintiffs’] clinics, and traveling to other parts of the State is exactly what is causing the spread of the virus.”

First of all, if Texas wants to contain COVID-19, then Abbott should tell people in Texas to stay the fuck home! Second of all, the reason that women have to travel all over the State to access care is because Texas legislators have been purposefully trying to squeeze abortion out of existence by implementing onerous regulations. That’s not the fault of providers or their patients. That’s the fault of lawmakers.

So here’s an idea: deregulate abortion!

If Texas deregulated abortion so that patients don’t have to make multiple trips to a clinic to obtain a medication abortion, or so that they don’t have to go mandatory counseling and obtain an ultrasound 24 hours before the procedure, the risk of spreading COVID-19 would decrease. Just a thought.

The bottom line: Texas Republicans have tried to ban abortion for decades. And in the middle of a public health crisis, attorneys for the state are trotting out absurd arguments to justify an executive order declaring that abortion is nonessential health care, thus virtually ensuring the onset of another public health crisis.

Texas’ response to the COVID-19 pandemic has been disturbing. While Abbott and his pal Paxton are attacking abortion rights and inexplicably blaming providers for spreading the disease and wasting personal protective equipment and hospital resources, Abbott is refusing to do the one thing that would actually flatten the curve and contain the virus: order Texans to stay home. Instead, Lt. Gov. Dan Patrick (R) has decided that old people should just die already in order to save the economy for future generations.

Texas’ arguments about abortion care during the COVID-19 pandemic leading to overtaxed health-care systems, depleted resources, and further spreading of the virus are patently ridiculous.

But it’s Texas. We’ve come to expect patently ridiculous when it comes to Texas officials’ incessant efforts to ban and even criminalize abortion.