As the coronavirus pandemic is gathering pace in the US, state governors are struggling to accumulate all the healthcare resources to stem the tide of the disease: On 20 March, Ohio Attorney General Dave Yost ordered two clinics to suspend performing abortions in order to preserve much-needed medical supplies and protective gear amid the COVID-19 outbreak.
Three days later, Texas Attorney-General Ken Paxton followed suit, threatening that failure to comply with the order would result in "penalties of up to $1,000 or 180 days of jail time". In addition, Alabama, Oklahoma, Mississippi and Iowa have either restricted or limited the surgical termination of pregnancy, qualifying it as "non-essential and elective" during the state of emergency.
US Abortion Bans: A Polarising Issue
Meanwhile, left-leaning media outlets, non-profits and pundits have raised the alarm over what they have called the "exploiting of coronavirus crisis" by Republican-held states in order to "spread lies about abortions".
"States are exploiting the pandemic to try and ban abortion," tweeted The New York Times' Lauren Kelly. "It’s completely absurd."
"I guarantee at least some of the Texans about to be denied abortions are going to hop in their cars and leave the state. So, thanks for the virus spread, Texas GOP", noted abortion rights activist Robin Martin.
Michael Shannon, political commentator and Newsmax and Cagle Syndicate columnist, opines that the arguments voiced against Trump and the GOP by American liberals don't hold water.
"I would say hypocrisy is a word that's over-used now - but it's the only one that describes the situation," he notes. "The left claims that President Trump isn't doing enough to save lives from the China-flu. And then in the same breath, they criticised him for preventing them from killing the unborn. Evidently, life only matters to the left if they can vote."
Shannon believes that the left are deliberately fanning the flames, being "obsessed with abortion". He highlights that "while infants may be immune" to coronavirus, they "can't escape the fanatical butchers at Planned Parenthood".
"In Ohio, abortion clinics planned to defy the governor's order and stay open. So we have a situation where in New Jersey, the police threatened to arrest a man for holding a wedding which celebrates life, while abortion mills will continue to operate unimpeded in the service of death. It's just - it’s beyond despicable," he notes.
On Monday, federal judges ruled to lift restrictions and suspend the ban in Texas, Ohio and Alabama. However, the fight over the moratorium on abortions continued in Texas with the Fifth Circuit putting the ruling on hold on 31 March, thus allowing the state's restriction order to be reinstated.
According to Abby Johnson, the former director of a Texas Planned Parenthood clinic, the suspension of abortion procedures is completely justified.
"I’m calling on every governor across the country to shutter abortion clinics as they are providing non-essential, elective procedures and taking up precious resources that need to be used elsewhere", she says. "It’s not just about abortions – all elective surgeries right now should be stopped if they are using up valuable PPE. Hospitals need that protective equipment and it should be used to treat patients who have the coronavirus, not on any elective procedure. Both medical and surgical abortions require PPE."
Johnson argues that as a taxpayer funded business, Planned Parenthood should "donate all of their PPE to hospitals and clinics that are treating patients with the coronavirus". "After all, we paid for it as taxpayers", she stresses.
The spokesperson for Students for Life echoes the anti-abortion activist: "The governors of Ohio and Texas are acting in the best interests of women as well as the sick in requiring that life-saving healthcare comes first."
'Abortion Ban Violates US Constitution'
However, Robert A. Sedler, a distinguished law professor at Wayne State University Law School specialising in US Constitutional law, holds a different stance.
"The term 'non-essential surgical abortion' is a misnomer," he says. "An abortion is a medically necessary procedure in order to prevent an unwanted abortion from coming to term. It is important from a medical standpoint that an abortion be performed as early in the pregnancy as possible, since the potential medical problems with an abortion increase as the fetus grows in size."
The law professor opines that on the other hand, "a ban on a 'non-essential surgical abortion' violates the Due Process Clause of the United States Constitution".
"The United States Supreme Court has held that a woman's right to have an abortion prior to the stage of viability is a fundamental right protected by the guarantee of liberty under the Fourteenth Amendment's Due Process Clause, Roe v. Wade (1973). It has also held that state laws that impose an undue burden on a woman's fundamental right to an abortion violate the Due Process Clause, Whole Women's Health v. Hellerstedt (2016)," Sedler emphasises.
University of California-Hastings law professor David Levine also challenges the idea that abortion is properly classified as an "elective procedure" that can be postponed.
"The motivations of women seeking abortions are too complex – health and safety for example – to easily classify", he says. "Also, the time element is crucial for abortion. It is more complex and less safe if there is substantial delay."
According to him, the states certainly have broad powers to limit "nonessential" or elective medical procedures during this state of emergency which is happening all over the country now. However, given that the abortion issue raises a lot of questions he foresees the upsurge in court filings over the ban.
"The state authorities could try to close or fine the clinics, or the clinics could seek guidance from a court through a motion for declaratory relief to see if they can continue to operate despite the emergency orders," Levine concludes.