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A Glimpse at the Possibility of a
Ana Brennan, J.D. | 09 April 2020
The current pandemic has brought once-unimaginable changes to our country in general and individuals specifically. One incredible and unforeseen impact of the virus has been the attempted and temporary cessation of abortion by several states.
To help alleviate pressure on the medical community created by the virus, a number of governors have issued executive orders prohibiting all “non-essential” medical procedures freeing up much needed medical resources. In some states, such as Virginia, the Governor specifically labeled abortion as an “essential” medical procedure; thereby exempting it from any prohibition of non-essential medical procedures. Other states, such as Texas, Oklahoma, Louisiana, Indiana, Ohio, Iowa, and Mississippi,[i] have classified abortion as a “non-essential” medical procedure and subject to prohibition. In the blink of an eye, with just one signature on an executive order, at least thirteen states have ushered in, albeit temporary, a post-Roe world.
As expected, Planned Parenthood and other abortion advocates have gone to court to protect the availability of abortion. The different states are at various stages of litigation. So far in Ohio, Iowa, and Oklahoma, the courts have blocked the executive orders allowing abortion to continue. While in Texas, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the state’s right to ban elective abortions during the current crisis.[ii]
The Court states, "When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”[iii]
Abortion advocates argue that abortion is a constitutional right and cannot be interfered with. But as acknowledged by the Fifth Circuit, for better or worse, the government has very broad powers during exigent circumstances. As we are all accurately aware, over the past few weeks our First Amendment rights to freedom of assembly, association, and religion[iv] have been severely restricted. For the sake of argument, conceding that abortion is a constitutional right, the government can still interfere with it under certain circumstances.
It has been noted when some states prohibited the sale of guns, the Trump Administration stepped in and ordered the states to allow for the purchase of firearms. Just like with abortion, it was argued that there is a constitutional right to own a gun, and the government cannot interfere with that right. Why is this a legitimate argument to allow guns but not abortion? Emergencies do not nullify the Constitution. Any infringement of our rights must be justified in relation to the government’s ability to address the emergency. The curtailment of our First Amendment rights and the “right” to abortion is directly related to the government’s ability to fight this virus; the 2nd Amendment is not.
Constitutional arguments aside, abortion advocates still argue that abortion is an essential medical procedure, so it should still be allowed. Abortion is an elective medical procedure. Labeling it as essential would be giving it special treatment over other medical procedures. During this unprecedented time, surgeries for cancer, to relieve pain, and even kidney transplants have been deemed non-essential and postponed.
The true colors of our opposition are on full display here. First, it shows that abortion advocates prioritize a non-essential medical procedure over saving lives and stopping the coronavirus. Medical resources are best used in abortion clinics, not hospitals overwhelmed by a pandemic. Abortion is essential because having a baby is worse than dying from a virus. Second, it exposes the “choice” lie. Choice, by its nature, is elective. If abortion is essential – the inability to not obtain an abortion is a fate worse than death - then abortion sounds more like a necessity than a choice.
Regardless of the legal conclusion of these orders, this is a win for the pro-life movement. I know I was shocked when I first heard a governor suspended the performance of abortion in his state. The fact that politicians dared to implement these orders in the first place is mind-blowing. These governors had the courage to point out the obvious, that abortion is not an essential medical procedure, because of the groundwork pro-life activists have been laying for years. Because of the efforts of pro-life activists, these politicians are aware of the strength of their pro-life constituents. The actions of these governors demonstrate the power of incrementalism. These executive orders did not come out of the blue but are a logical progression of our efforts.
Ana Brennan, J.D., is Vice-President of the Society of St. Sebastian and Senior Editor of the Journal of Bioethics in Law & Culture Quarterly.