The rapid spread of COVID-19 in the United States has prompted a consolidation of power by federal, state, and municipal governments to maintain order during an unprecedented crisis. On March 13, 2020, President Trump declared a national emergency to control the spread of COVID-19, which removed legal barriers to a wide variety of bureaucratic processes and allowed for the quick distribution of emergency aid to state and local governments.[1] President Trump can now use the country’s state of emergency to substantiate executive orders that he can claim will contain the spread and minimize the effects of COVID-19.[2]
Historically, presidents have used national emergency declarations to adopt draconian measures in the name of national security and public health. During the Civil War, President Lincoln’s declaration of a national emergency empowered him to suspend habeas corpus.[3] During World War II, President Roosevelt’s proclamation of a national emergency allowed him to establish Japanese internment camps.[4] And after 9/11, President George W. Bush used his declaration of a national emergency as permission to approve the illegal wiretapping of American citizens and the torture of individuals suspected of being affiliated with terrorist organizations.[5] The actions an administration and its agencies take after declaring a national emergency are often evaluated in a different light because a president’s rule-making abilities become more significant when claimed to be protecting public interests.[6]
While state governments do not have the same far-reaching effects as the federal government, they do have the right to declare states of disaster when confronting an identified threat.[7] The Texas Government Code, for example, declares “The governor by executive order or proclamation may declare a state of disaster if the governor finds a disaster has occurred or that the occurrence or threat of disaster is imminent.”[8] Governor Greg Abbott declared a state of disaster in Texas due to COVID-19 on the same day President Trump made his declaration.[9] This declaration gave the governor and the health commissioner John William Hellerstedt broad authority to waive “laws that hinder state agencies’ ability to respond to COVID-19.”[10]
Texas Bans Abortions Due to COVID-19
On March 22, 2020, Greg Abbott signed an executive order stating that all healthcare professionals and facilities must postpone surgeries that “are not immediately, medically necessary to correct a serious medical condition or to preserve the life of a patient.”[11] Texas Attorney General Ken Paxton then issued a press release one day later titled “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.”[12] This interpretation of Abbott’s executive order specified that “any type of abortion that is not medically necessary to preserve the life or health of the mother” were prohibited.[13]
The potential outcomes of the ban were immediately evident. Many women would no longer be considered eligible for medication abortion, and many seeking a first-trimester abortion would be delayed into the second-trimester due to the time-sensitive nature of the procedure. Additionally, the arrangements needed to travel to a clinic would be exceptionally complicated by Abbot’s order, and “it has been found that increasing distance from a facility following clinic closures is associated with a large decrease in the number of abortions.”[14] The Guttmacher Institute cited that “the one-way driving distance to an abortion clinic for a woman of reproductive age in Texas would increase from 12 miles to 243 miles (a 1,925% increase) if legal abortion care in the state were shut down.”[15] These resulting complications exemplify how Abbot’s order proved burdensome to women seeking abortions, and in certain cases, hazardous to their health and quality of life.
Constitutional Protection for Abortion
Measures resulting in gross restrictions on abortion can be interpreted as a violation of a woman’s constitutional right to terminate a pregnancy, as first established in the U.S. Supreme Court’s rulings in Roe v. Wade,[16] and further concreted by Planned Parenthood of Southeastern Pennsylvania v. Casey,[17] Whole Woman’s Health v. Hellerstedt,[18] and June Medical Services v. Russo.[19]
In Roe, the court stated that the Texas criminal abortion statutes were unconstitutional because they violated the Due Process Clause of the Fourteenth Amendment, which protects the right to privacy, including a woman's right to terminate her pregnancy, from state action.[20] Elaborating on the relevance of the Due Process Clause, the Court stated that the clause includes the concept of “personal liberty” in regards to one’s personal, marital, familial, and sexual matters.[21] Under Roe, state laws banning or restrictively regulating abortions for the stages prior to the end of the first trimester were deemed invalid. However, the Court did leave leeway for the states to restrict how a woman could obtain the medical procedure. The Court declared that “The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.”[22]
Casey sought to challenge the bounds of the restrictions that Roe allowed states to place on abortions. Through the ruling, the Court introduced the “undue burden test” to be used when evaluating the constitutional soundness of state restrictions on abortions and effectively weakened the protections guaranteed in Roe. The undue burden standard specified that an undue burden existed on a woman’s ability to obtain an abortion if the purpose of a law or its effects place substantial obstacles in the path of a woman seeking an abortion.[23] Upon introducing this new standard for evaluating laws on abortions, Casey also granted the states a stronger voice in regulating abortions by rejecting “Roe’s rigid trimester framework” and establishing that, as long as these measures were not an undue burden, “To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed.”[24] The establishment of the “undue burden test” and the court’s elaboration on the role of the state weakened the strength of the Roe ruling by providing loopholes through which state regulation could survive constitutional review.
The “undue burden standard” was further tested 24 years later in Whole Woman's Health v. Hellerstedt, when the Court struck down parts of a restrictive Texas law that placed “a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and thus violated the Constitution.”[25] This law, if it had passed strict scrutiny, would have restricted the number of abortion clinics in the State of Texas by requiring those clinics to have the same health standards as surgical clinics and for the doctors to have admittance rights to nearby hospitals. The law also would have prevented women from obtaining abortions after 20 weeks of pregnancy.[26]
The Court’s ruling in Whole Women’s Health further exemplified the power and versatility of the undue burden standard introduced in Casey by referring to the case and stating “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”[27] The principle that health regulations themselves do not constitute sufficient reasons for restricting a woman’s right to abortion came into play during the COVID-19 pandemic when the virus and public safety are cited as plausible reasons for postponing abortion procedures.
The Subsequent Legal Battle
The American College of Obstetricians and Gynecologists issued a statement two days before Governor Abbott’s issuance of the executive order, declaring, “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care.”[28] Delaying an abortion can severely affect the health of the mother, and could also prevent the procedure from taking place.[29] A day after Abbott released the order, Planned Parenthood and other reproductive health clinics in Texas filed a lawsuit, citing the American College of Obstetricians and Gynecologists’s statement and stating that Abbott’s order “violates Texans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution.”[30]
On March 30, in response to arguments brought before the United States District Court for the Western District of Texas, Judge Lee Yeakel granted a request from abortion clinics to temporarily prevent Abbott’s ban from taking effect.[31] Judge Yeakel wrote “Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order. The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”[32]
However, on April 7, a panel of judges at the Fifth Circuit Court of Appeals overturned Judge Yeakel’s rulings, thus prohibiting non-emergency abortions from occurring in Texas during the pandemic.[33] The court stated that Abbott’s temporary discontinuation of abortion procedures did not violate Roe v. Wade ruling that Roe did not involve a state’s postponement of services in response to a public health crisis.[34] They also cited that Abbot’s measure did not defy Casey, as the measure did not upset the “Court’s balance between ‘personal autonomy and bodily integrity’” and “governmental power to mandate medical treatment or to bar its rejection”[35] because the State of Texas was simply mandating medical treatment during a global crisis.
Despite this ruling, the fight was not yet over. On April 11, abortion providers asked for emergency relief from the Supreme Court to allow abortions services to continue in Texas while the case was litigated. In regards to the ongoing battle, Nancy Northup, the President of the Center for Reproductive Rights, stated in an interview, “This is not the last word—we will take every legal action necessary to fight this abuse of emergency powers.”[36]
This heated legal fight eventually died out in Texas after Governor Abbott issued another executive order on April 17 that eased restrictions on elective medical procedures, allowing abortions to resume in health care facilities.[37] While the issue may be moot, Governor Greg Abbott’s actions represent the potential abuse of governmental power that may occur during the COVID-19 crisis. These events also demonstrate the urgency for courts to further define what constitutes an “undue burden” on one’s constitutional rights in cases of reproductive rights and abortion access.