On April 13, 2020, Mary turned to her obstetrician (OB/GYN) questioning whether to go through with her pregnancy in the time of COVID-19. “I would do it . . . I mean, in different circumstances I might continue the pregnancy. But now?” The OB/GYN is empathetic, though its effect hidden behind a surgical mask.3 Mary continues, “[h]ow could I be pregnant during this pandemic . . . [h]ow could I even get to appointments . . . what if I got sick?” With three children at home, Mary’s presence at an abortion clinic during the pandemic not only affects the health and safety of herself and her pregnancy but also the health and wellbeing of her family.
Women in Mary’s position face unique complications during the recent pandemic. Though the American College of Obstetricians and Gynecologists considered abortion an essential “time-sensitive service,” some state governors issued executive orders suspending the practice in the early weeks of the pandemic. Because of safety concerns, people may increasingly favor self-managed abortion procedures without in-person consultation. According to Aid Access, the only online abortion telemedicine service in the United States, requests for self-managed medication abortions in the United States increased 27% between March 20 and April 11 of 2020. This phenomenon may stem from fears of infection by the COVID-19 virus as well as an inability to access abortion clinics due to childcare or transit disruptions. The World Health Organization (WHO) recommends telemedicine and self-managed abortion care during the pandemic, but this requires changing medical abortion policies for in-person dispensing of mifepristone, a drug used in medical abortions.
On May 27, 2020, counsel for the American College of Obstetricians & Gynecologists filed a complaint for preliminary injunctive relief against the Food & Drug Administration (FDA) to forego the in-person dispensing requirement during a global pandemic. Plaintiffs argue that this mandatory in-person dispensing policy unduly burdens patients’ constitutional right to seek an abortion. While the pandemic brings uncertainty to many in Mary’s situation, there is also a growing uncertainty regarding the judiciary’s interpretation of the constitutional right to safe and legal abortion.
In the wake of Roe v. Wade, the United States Supreme Court greatly expanded constitutional protection for women by establishing a fundamental right to obtain a safe and legal abortion in the first trimester of gestation without governmental interference. Nineteen years later, in Planned Parenthood v. Casey, the Court reaffirmed a woman’s fundamental right to a safe and legal abortion but allowed government regulation in the first trimester, effectively limiting the constitutional protection afforded to abortion. “Only where state regulation[s] impose[] an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart” of this fundamental right.
In Whole Woman’s Health v. Hellerstedt, the Supreme Court again expanded the constitutional protection for a woman’s right to a safe and legal abortion by requiring a deeper judicial look into the medical effects of a law regulating abortion under Casey’s undue burden standard. Last year, the Court’s plurality opinion in June Medical Services L.L.C. v. Russo indicated that the justices could no longer agree on the proper interpretation of Casey.
The realization of women’s fundamental right to abortion not only faces uncertainties brought by a global pandemic, but also uncertainties in judicial interpretation and application of that right. In this article, I will examine the Supreme Court’s jurisprudence on abortion rights. Then, I will review whether growing disagreements in applying Casey’s undue burden standard would again limit constitutional protections to the fundamental right to abortion in the time of COVID-19 and in future cases.