Abortion Access Shifting in Some States Amid COVID-19

Tara Haelle

March 31, 2020

Every US state has declared a state of emergency due to the coronavirus pandemic, but the restrictions included in those executive orders vary greatly across the country. Although many require the cancellation or postponement of non-essential medical procedures to preserve personal protection equipment (PPE), an increasingly confusing aspect of these orders is how they apply to abortion.

On Friday, Oklahoma, Alabama, and Iowa joined Texas and Ohio in banning most surgical abortions in their states. The status of medical abortions is unclear and also appears to vary across these states.

Texas clinics had halted both surgical and medical abortions. However, a group of abortion providers filed a joint lawsuit on Friday to ensure women had access to the procedure during the COVID-19 pandemic. In a response issued late Monday, the US district court in the Western District of Texas granted abortion providers a temporary restraining order that, for now, allows abortion services to continue during the pandemic.

Further, a lawsuit filed March 30 challenges Oklahoma's ban on abortions following a March 27 clarification from the governor's office that all abortions, including medical abortions, are not defined as medical emergencies and, thus, are not allowed during coronavirus-related restrictions on medical procedures.

Additional lawsuits were filed Monday challenging similar bans in Alabama, Iowa, and Ohio.

The actions of these states, and indications from a handful of others that they may issue similar restrictions, have elicited a host of furious responses from medical groups and abortion providers reinforcing the message that surgical abortions cannot be considered "elective."

Using Pandemic and Need for PPE Is Not Legit, Critic Says

A March 18 statement from the American College of Obstetricians and Gynecologists and other physician organizations stresses that abortion should not be categorized as a procedure that can be delayed during the COVID-19 pandemic.

"Abortion is...a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person's life, health, and well-being," the statement notes.

And Daniel Grossman, MD, who is director, Advancing New Standards in Reproductive Health at the University of California, San Francisco, outlines in a Twitter thread why he believes the Texas ban on abortion to preserve PPE is a "baseless argument."

"Using a pandemic, and the need for personal protective equipment, to ban abortion is not a legitimate argument — as the data prove," he says. "This is just another attempt to circumvent the law and make abortion inaccessible for all, particularly during a global public health crisis."

He and others also stress that continuing a pregnancy actually requires more PPE than does a surgical abortion, especially if a cesarean delivery is planned. Plus, banning this procedure increases the likelihood that people will attempt "backstreet" abortions and experience serious complications, as detailed in a recent NEJM paper on which Grossman was co-author.

Other knock-on effects of the COVID-19 pandemic that are impacting the ability of such clinics across the United States to provide services include the fact that many physicians travel across state lines to perform abortions, but now many of them have their movement curtailed.

And restricting abortions will also cause increased travel as women go out of state to seek abortion care, organizations say.

Texas Providers Awaiting Response to Lawsuit

In Texas, according to the Attorney General Ken Paxton's office, "abortion that is not medically necessary to preserve the life or health of the mother" is among the medical procedures that are currently prohibited, following Texas Governor Greg Abbott's March 22 executive order that healthcare providers and facilities "postpone all surgeries and procedures that are not immediately necessary."

Calls to several Texas clinics confirmed that they had temporarily stopped doing surgical abortions, but until Friday afternoon, most were continuing to provide medical abortion to women no more than 10 weeks gestation after the state's required ultrasound and 24-hour waiting period.

"Access to abortion care is critical and cannot be postponed for 90, 60, or 30 days," said Autumn Katz, JD, senior counsel for the Center for Reproductive Rights, which is representing the Texas clinics along with Planned Parenthood Federation of America and the Lawyering Project. She noted that any pregnancy-related care, whether abortion or childbirth, will inevitably involve some PPE use, "so singling out women who have made the decision to have an abortion and preventing them from accessing abortion care for some unknown period of time is just unconscionable because it subjects women to increased health risk" and they potentially lose the opportunity altogether to decide.

Ohio Providers Continue to Provide Abortion Services

In Ohio, although the executive order by Governor Mike DeWine does not discuss specific medical procedures, Amy Acton, MD, MPH, director of the Ohio Department of Health (DOH), ordered March 17 that "all non-essential or elective surgeries and procedures that utilized PPE should not be conducted," effective at 5:00 p.m. on March 18.

That order did not mention abortion or other reproductive services, but the Ohio Attorney General's Office issued cease-and-desist letters March 20-21 to four providers, including three women's health clinics — Planned Parenthood of Southwest Ohio, Preterm, and Women's Med Center — ordering them "to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient."

The letters referred to the DOH order for determining whether a procedure is essential.

But as recently as March 26, Ohio clinics remained open and were providing abortions, according to a statement from NARAL Pro-Choice Ohio.

"Abortion care is a time-sensitive medical situation that cannot be significantly delayed without profound consequences. Ohio's abortion clinics are serving patients in compliance with Ohio Department of Health guidelines," it says.

And in a statement provided to Medscape Medical News by Preterm, its executive director, Chrisse France, said that the clinic "is open and continuing to provide abortions." It interprets the Ohio DOH’s order to mean that clinics can "continue providing essential surgeries and procedures, including time-sensitive, essential surgical abortion care."

Regarding medical abortion, research has shown it can be safely and effectively prescribed using telemedicine, but 17 states, including Ohio, effectively bar it by requiring the prescribing physician to be physically present when the medication is dispensed, according to the Guttmacher Institute.

NARAL Pro-Choice Ohio says the state has found a way to comply with their law in this area: "Telemedicine abortion allows for a patient to visit a health care facility in their own area and speak with a physician in another Ohio city. The patient and physician still complete one face-to-face visit as required by Ohio law, and their hometown doctor is able to provide appropriate patient monitoring and after-care, if needed," according to the NARAL statement.

Other States Being Watched

Early press reports suggested that Maryland may also be considering restricting surgical abortion procedures in the face of PPE shortages and the COVID-19 pandemic. However, in a statement to Medscape Medical News, Maryland DOH Deputy Director of Communications Charles Gischlar wrote: "Each medical practitioner should exercise their independent professional judgment in determining what procedures and appointments are urgent."

In Mississippi, Governor Tate Reeves told the Associated Press that Jackson Women's Health Organization, the state's only abortion clinic, "does, in fact, operate doing procedures that are elective and not required" and that he "would be prepared to try to take additional action" if the clinic did not stop elective surgeries.

Jackson Women's Health did not respond to requests for information about whether any procedures have stopped.

Katz, the lawyer from the Center for Reproductive Rights, says they are also closely watching states with a history of restricting access to abortion, such as Louisiana and Oklahoma.

"There's a concern that there could be a loss of access in that whole region, in addition to Texas," she noted.

In addition, rules for certain states that rely on out-of-state providers for abortion services will further impact provision.

For the time being, physicians at South Dakota's only abortion clinic, which relies on out-of-state providers, have been able to continue travel to the clinic in Sioux Falls on a scaled-back basis, a spokesperson at Planned Parenthood North Central States told Medscape Medical News.

Although abortion care remains available at all their clinics, they have reduced some services "to comply with new guidelines that preserve PPE," the spokesperson added.

Meanwhile Rebecca Tong, director of development at Trust Women, which sends doctors across state lines to provide abortions in underserved areas, said their organization has received more calls than usual from patients asking whether their clinics are open and available.

According to Julie Burkhart, founder and CEO of Trust Women, clarification of the Oklahoma order on Friday required the healthcare organization to halt abortions at the Oklahoma clinic and immediately redirect the patients to the organization's Kansas clinic.

"We've been slammed in Kansas," Burkhart told Medscape Medical News. "I had to go outside and turn people away in Oklahoma on Friday, and a lot of the patients we have in Wichita are ones we had on the books in Oklahoma."

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