Emily
Editor, Senior Moderator
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7509580/
Rebouché R. Abortion opportunism. J Law Biosci. 2020;7(1):lsaa029. Published 2020 May 18. doi:10.1093/jlb/lsaa029
I. INTRODUCTION
Twelve states issued executive orders suspending abortion care in response to COVID-19.[SUP]1[/SUP] State officials claim that they will preserve medical supplies, hospital space, and healthcare capacity by classifying abortion as an elective, nonessential surgery that can be delayed. Advocacy groups representing abortion providers sued in several states to enjoin these bans.[SUP]2[/SUP] What emerged was is a fight that ignores medical evidence and threatened to exacerbate the current public health emergency.
The Executive Order issued in Texas offers an example. Though the issue now may be settled there, opinions from the U.S. Court of Appeals for the Fifth Circuit provide a worrisome roadmap for suspending constitutional rights as a health emergency measure.
This essay first focuses on the Texas case, paying attention to courts’ descriptions of medication abortion and describing state and federal laws that restrict telehealth approaches to abortion. The current landscape of regulatory constraints undermines the Fifth Circuit’s conclusion that abortion suspensions are reasonable measures to curb the pandemic rather than political pretext for antiabortion animus. State and federal regulation of medication abortion is untethered to sound health policy during ordinary times, but it is especially unresponsive to the challenges posed by the pandemic.
...
On March 31, the Fifth Circuit issued a temporary stay blocking Judge Yeakel's order and, on April 7, a divided panel overturned Judge Yeakel’s order.[SUP]7[/SUP] The Fifth Circuit ruled that the district court failed to apply the ‘framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago’.[SUP]8[/SUP] The Fifth Circuit relied on Jacobson v. Massachusetts, a 1905 Supreme Court case, which upheld a mandatory smallpox vaccination as a reasonable regulation to protect public health.[SUP]9[/SUP] The Supreme Court in Jacobson wrote that legislators can choose the means by which they exercise emergency health authority unless the ‘regulations [are] so arbitrary and oppressive…as to justify the interference of the courts to prevent wrong and oppression’.[SUP]10...[/SUP]
Rebouché R. Abortion opportunism. J Law Biosci. 2020;7(1):lsaa029. Published 2020 May 18. doi:10.1093/jlb/lsaa029
I. INTRODUCTION
Twelve states issued executive orders suspending abortion care in response to COVID-19.[SUP]1[/SUP] State officials claim that they will preserve medical supplies, hospital space, and healthcare capacity by classifying abortion as an elective, nonessential surgery that can be delayed. Advocacy groups representing abortion providers sued in several states to enjoin these bans.[SUP]2[/SUP] What emerged was is a fight that ignores medical evidence and threatened to exacerbate the current public health emergency.
The Executive Order issued in Texas offers an example. Though the issue now may be settled there, opinions from the U.S. Court of Appeals for the Fifth Circuit provide a worrisome roadmap for suspending constitutional rights as a health emergency measure.
This essay first focuses on the Texas case, paying attention to courts’ descriptions of medication abortion and describing state and federal laws that restrict telehealth approaches to abortion. The current landscape of regulatory constraints undermines the Fifth Circuit’s conclusion that abortion suspensions are reasonable measures to curb the pandemic rather than political pretext for antiabortion animus. State and federal regulation of medication abortion is untethered to sound health policy during ordinary times, but it is especially unresponsive to the challenges posed by the pandemic.
...
On March 31, the Fifth Circuit issued a temporary stay blocking Judge Yeakel's order and, on April 7, a divided panel overturned Judge Yeakel’s order.[SUP]7[/SUP] The Fifth Circuit ruled that the district court failed to apply the ‘framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago’.[SUP]8[/SUP] The Fifth Circuit relied on Jacobson v. Massachusetts, a 1905 Supreme Court case, which upheld a mandatory smallpox vaccination as a reasonable regulation to protect public health.[SUP]9[/SUP] The Supreme Court in Jacobson wrote that legislators can choose the means by which they exercise emergency health authority unless the ‘regulations [are] so arbitrary and oppressive…as to justify the interference of the courts to prevent wrong and oppression’.[SUP]10...[/SUP]