Essentially Elective: The Law and Ideology of Restricting Abortion During the COVID-19 Pandemic
106 Virginia Law Review Online 99 (2020)
26 Pages Posted: 9 Jul 2020 Last revised: 17 Aug 2020
Date Written: August 2020
During the COVID-19 pandemic, several states adopted orders temporarily suspending elective surgeries and procedures. A subset of those states moved to limit abortions under those orders, provoking emergency litigation to keep abortion clinics open and functioning. No similar lawsuits have been necessary to protect access to other time-sensitive medical procedures. So why was abortion singled out for disparate treatment?
This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders banning non-essential or elective procedures. It argues that abortion was singled out in two ways that reflect deeper ambivalence about the place of abortion within medicine more generally. First, the COVID-19 crisis allowed anti-abortion officials to rely on the narrow meaning of “elective” in the abortion context to argue that abortions are medically unnecessary and can be halted indefinitely during a pandemic. Second, and relatedly, they used the exceptional treatment of abortion and the longstanding ambivalence about the place of abortion within health care to argue that abortion providers’ demands to be treated like every other health care provider under these executive orders was in fact a claim for special treatment. This Essay ends by suggesting that, for long-term protection of abortion rights, abortion must be reframed as a medically necessary and appropriate treatment, and it must be rhetorically re-incorporated into healthcare more generally.
Keywords: abortion, pandemic, Constitution, Jacobson v. Massachusetts, Planned Parenthood v. Casey, elective surge
JEL Classification: K32
Suggested Citation: Suggested Citation