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Analysis Law and Policy

How COVID-19 Could Bring the End of ‘Roe v. Wade’

Jessica Mason Pieklo

Republicans have stacked the federal courts with ideologues willing to entrain any bad faith argument designed to overturn Roe—even the COVID-19 pandemic.

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

It turns out conservative lawmakers didn’t need a U.S. Supreme Court stacked with conservative justices to overturn Roe v. Wade. A global health pandemic might do the trick. 

That’s the picture emerging from the conservative U.S. Court of Appeals for the Fifth Circuit in the fight over Texas’ attempt to ban legal abortion during the COVID-19 outbreak. In a brief filed Wednesday night, attorneys for the state argued that abortion providers are looking for “special treatment” by challenging the declaration by Gov. Greg Abbott (R) and indicted Attorney General Ken Paxton (R) that abortion is not an “essential” medical service and therefore would be suspending along with other “elective” medical procedures as part of the states virus mitigation efforts.

They accuse abortion providers of failing to adequately protect staff and patients and invited the Fifth Circuit judges to use this case to expand the power of states to ban abortion outright. 

Sex. Abortion. Parenthood. Power.

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“The Supreme Court in Roe considered only whether the States’ interest in fetal life was sufficient to justify a complete ban on elective previability abortions,” Texas argues in its brief. “It did not consider the possible impact of a public-health crisis.”

That question—whether states can use a public health crisis to ban abortion, and if so, for how long— has emerged as the most dire threat to Roe v. Wade yet. Not surprisingly, Republican state attorneys general are lining up behind Texas to claim they too can use the worst public health crisis in a century to eradicate legal abortion.

“Neither Roe nor any post-Roe abortion cases evaluates risk to women and the public at large posed by providers seeking to be categorically exempt from life-saving measures that are required to respond to a growing epidemic,” Louisiana Attorney General Jeff Landry (R) argues in an amicus brief in support of the Texas ban. “To the extent they do apply, the balance of interests is firmly on the side of the States.”

The ways in which the states work together to advocate for Texas’ ban before the conservative judges of the Fifth Circuit are important. Paxton takes the firm line of arguing for raw state power here—both to ban abortion and to be insulated from judicial review in its decision to do so. That frees up Landry to appeal to discuss all the other difficult decisions states face in managing the COVID-19 outbreak.

“In the COVID-19 crisis, governors are making extremely difficult choices, with far-reaching consequence,” the amicus brief states. 

Closing schools burdens parents who have to stay home with their children and experience lost leave time, income, and potentially their jobs. Graduations, bar exams, and criminal trials are on hold. Medical testing, housing, and treatment of individual in prisons, nursing homes, juvenile facilities, and foster homes must be considered. Some cities will receive floating Navy hospitals and in New Orleans, a field hospital is being set up in a convention center to address the expected shortage of hospital beds. At the same time, state first responders are becoming ill. The shutdown of businesses leads to unemployment. The homeless must be evaluated, housed, tested, and treated. School lunches must be distributed so school children can eat.

Louisiana identifies a lot of difficult decisions for states to navigate in responding to COVID-19. None of these difficult decisions Paxton or Abbott have made, by the way—Texas remains one of a handful of states without a stay-at-home order as part of its response to the COVID-19 outbreak. 

If conservative lawmakers were really concerned with effectively addressing the worst public health crisis this country has faced in at least a generation, they would drop this latest attack on abortion rights, they would rescind the legal challenge to the Affordable Care Act (ACA) pending before the Supreme Court, and they would ease the myriad of barriers already in place for accessing abortion care.

Instead, Republicans are doing what they always do: exploiting a moment of crisis for political gain. Louisiana’s brief opens by citing the possibility of 2 million people dying in this country from COVID-19 without a hint of irony. There’s no mention of the Mardi Gras festivities that continued in the face of the spreading threat. There’s not a word of the ongoing conservative attacks on the ACA and exacerbating the effect those attacks have on the public health crisis. 

Ultimately, what is so dangerous about the COVID-19 fight and abortion is that like the virus itself: It has happened in this country at exactly the worst time. Republicans have spent the past three years stacking the federal courts with ideologues willing to entrain any bad faith argument designed to overturn Roe. And conservatives have found a whole new crop of bad faith arguments in the COVID-19 pandemic to do so. 

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