Abortion bans prompt legal battles amid coronavirus pandemic

CNA Staff, May 4, 2020 / 03:00 pm (CNA).- Arkansas’ only remaining abortion clinic is suing over a state rule that patients must test negative for COVID-19 within 48 hours of any elective surgery, claiming that a lack of testing is preventing women from availing themselves of abortions before the state’s 20-week limit.

Arkansas Governor Asa Hutchinson had on April 3 suspended all elective surgeries throughout the state, with “non-medically necessary surgical abortions” included in that prohibition. Arkansas already has a 72 hour waiting period for abortions.

On April 27, the state modified the order to allow asymptomatic patients to have elective surgeries if they have had a negative COVID-19 NAAT (Nucleic Acid Amplification) test within 48 hours prior to the beginning of the procedure.

The requirement for COVID-19 testing applies across the board to all elective surgeries, Hutchinson has said.

The American Civil Liberties Union of Arkansas claims that the abortion clinic has contacted more than 15 testing locations but has been “unable” to find one that will test asymptomatic people and have results within 48 hours.

Despite the initial state order halting abortions, Arkansas health department inspectors on April 9 arrived at Little Rock Family Planning Services unannounced and found that the clinic was still performing surgical abortions.

The next day, the health department sent the clinic a cease-and-desist letter ordering a stop to surgical abortions “except where immediately necessary to protect the life or health of the patient.”

The Diocese of Little Rock’s Respect Life Office told CNA on April 16 of a “particularly troubling” increase in abortions at the clinic, especially by women traveling from neighboring Texas and Louisiana, states which have halted elective abortions.

Though a federal district court had on April 14 put a temporary restraining order on the state order stopping abortions, a federal appeals court on April 22 allowed the state order to go into effect.

Amid national lockdowns and stay-at-home orders, abortion has become a subject of national debate.

Pennsylvania governor Tom Wolf on May 2 vetoed a bill promoting the use of telemedicine during the pandemic because it did not include provisions for at-home abortions.

An amendment to SB 857 banned the use of telemedicine for procedures that are not approved under the Food and Drug Administration's Risk Evaluation and Mitigation Strategy (REMS).

The abortion pill is not approved under REMS and thus would not be allowed via telemedicine under the new bill. At-home medical abortions are already banned under Pennsylvania law.

At least eight states have enacted temporary bans on abortion during the coronavirus pandemic and are subsequently contending with legal challenges. Judges have prevented many of the temporary bans from coming into effect, and some of the temporary orders simply have expired.

Last month in Texas, the US Court of Appeals for the Fifth Circuit ruled that the state's ban on elective abortions, including medical abortions, could be reinstated, though the order lasted only until April 22.

In Alaska, there was a move by state officials in early April to “delay” abortions until June, but Governor Mike Dunleavy on April 14 allowed elective procedures to resume in the state.

On April 12, a federal judge ruled that the state of Alabama cannot move to limit abortion procedures through measures intended to focus medical resources on fighting coronavirus. Governor Kay Ivey had issued a statewide order March 19 which stopped all medical procedures except for emergencies or those needed to “avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.”

On April 17, a federal judge ruled that despite Tennessee’s temporary ban on nonessential medical procedures, the state must allow abortions to continue.

Governor Kevin Stitt of Oklahoma issued an executive order halting non-essential surgeries and minor medical procedures in the state during the COVID-19 pandemic, though that order only lasted until April 30.

In Ohio and Iowa, most surgical abortions are currently allowed despite state efforts to restrict them.

The Louisiana Department of Health on March 21 ordered all medical and surgical procedures be postponed until further notice, with exceptions for emergencies. Abortion clinics in the state have sued to block the measure.

Mississippi Governor Tate Reeves issued an executive order April 10 banning all “elective” medical procedures, including abortions, with the order expiring April 27.