Elective procedure, essential fight

As the epicenter of the coronavirus shifted to New York, Mayor Bill de Blasio told CNN on March 29 that the city only had enough medical supplies to last a week. Doctors in some New York hospitals have reportedly resorted to reusing their N95 masks due to the supply shortage, and the nationwide shortfall makes it unlikely that hospitals will be able to meet rising demand as COVID-19 patients continue to flow in.

To prevent other supply shortages, governors in some states have banned all elective or nonessential medical procedures. Some abortion providers flouted the orders and continued to provide abortions. But pro-life groups and some conservative government officials pushed back: In states including Texas, Ohio, and Alabama, pro-life groups took the issue to court to determine the definition of “essential” and which procedures deserve the coveted equipment.

Ohio Gov. Mike Dewine issued his state’s ban of nonessential medical procedures on March 17, becoming one of the first state governments to do so. “By postponing elective hospital procedures that are safe to delay, we can protect patients and providers,” he said. “This will also help us preserve critically short supplies of [personal protective equipment] and preserve inpatient beds and other equipment for critically ill patients.”

According to Dewine’s office, the Ohio Hospital Association estimates the amount of personal protective equipment Ohio needs to fight the state’s COVID-19 cases equals the amount available in the whole country.

“Abortionists usually wear a mask with a face shield, sterile gloves, and a surgical gown,” said Dr. Karysse Trandem, the medical director of pro-life group Save the Storks in Naples, Fla. “This is exactly what is required for taking care of COVID-19 patients, and what most hospitals are now requiring all employees to wear at all times.”

That’s why pro-life groups in the state protested when they discovered local abortion businesses were still open and offering abortions. “If abortion is a choice, then it’s certainly elective,” said Mark Harrington of Created Equal, an Ohio group that called on the governor to hold abortion facilities accountable. Pro-abortion groups have chosen to operate under the language of choice, said Harrington, so “this is the time to hold them accountable for that.”

Emergency surgeries on a woman’s reproductive system usually relate to cancer, Trandem said. Other conditions that fit the bill include hemorrhaging in the uterus, a cesarean section at full-term, or ovarian torsion, in which a twist in the ovary cuts off blood supply. All of these, said Trandem, are life-threatening: “Like, physical life or death. Not just a perceived emotional distress.”

On March 21, Ohio’s attorney general sent cease and desist letters to abortion facilities that were still operating, saying the center must “immediately stop performing nonessential and elective surgical abortions” which are “those that can be delayed without undue risk to the current or future health of a patient.”

The Texas attorney general issued a similar order the next day. Over the following days, government officials in other conservative states—Alabama, Oklahoma, and Iowa among them—clarified that they would not consider abortions essential. Pro-abortion groups including Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union filed lawsuits over some of the orders, saying officials were using the pandemic to target “abortion rights.”

The abortion groups pointed to an American College of Obstetricians and Gynecologists statement that calls abortion “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.” Not obtaining an abortion, the statement says, could “profoundly impact a person’s life, health, and well-being.” Officials in Michigan, Pennsylvania, and Virginia who also passed bans on nonessential medical procedures have used similar arguments to make exceptions for abortion.

“That’s still not an essential surgery,” Trandem said.

She thinks abortion businesses are pushing because they don’t want to lose revenue during a pandemic. Performing abortions puts women at risk not only of contracting the coronavirus at a still-open and potentially crowded abortion facility, but also of experiencing complications. “It’s actually more risky in general for women to undergo an abortion than continue through to pregnancy,” Trandem said. That means a greater likelihood of ending up in an emergency room, where medical personnel are already short on equipment.

In Alabama, Texas, and Ohio, federal judges halted the states’ orders Monday, saying the restrictions they pose on abortion access is unconstitutional. But by the next day, judges in the 5th Circuit Court of Appeals put a hold on the ruling in the Texas case, saying the court needed more time to consider the evidence. That allows the state to continue enforcing the abortion ban, preserving needed medical equipment for COVID-19 patients.

Steve Aden, chief legal officer for Americans United for Life, said the 5th Circuit Court is likely to uphold Texas’ right to shutter abortion facilities during the pandemic. He also expects the conservative-majority 6th Circuit Court to do likewise in the Ohio case: “Ultimately, the abortion industry faces an uphill fight.” As Texas officials told the 5th Circuit Court, the COVID-19 pandemic is America’s greatest health crisis in 100 years and puts the state at the “apex of its constitutional authority,” said Aden, which means abortion facilities have little chance of getting special treatment in conservative states.

Abortion groups will have the opportunity to petition the Supreme Court, but Aden thinks that’s risky: 93 percent of abortions happen in outpatient clinics like Planned Parenthood, and none of these are medically necessary. Any abortions necessary to save a woman’s life happen in a hospital. So, by default, Planned Parenthood only does elective procedures. “They’re being duplicitous,” said Aden. “They’re claiming that it’s a necessary health service, but on the other hand they’re trying to hide the fact that they only do elective, purely voluntary, abortions.”