The Volokh Conspiracy

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Can an Epidemic Justify Temporarily Forbidding Abortions (Except to Protect Life or Health of the Woman)?

Can it justify temporarily forbidding people to buy guns?


Ohio and Texas seem to be including abortion clinics as parts of their general shutdown of "non-essential or elective surgeries and procedures" (to quote the Ohio Deputy Attorney General's letter to a Planned Parenthood affiliate), defined as those "that can be delayed without undue risk to the current or future health of a patient."

This likely is at least a temporary ban on most abortions, for which delay likely doesn't create undue risk to health as such. (All delay creates some risk, but probably not enough to qualify as "undue," and the Texas order allows procedures only to avoid death or "risk for serious adverse medical consequences.") And the restriction may thus completely preclude abortions for those women who are far enough along in their pregnancies that the delay will push them past the currently effective legal deadline, which is viability. Nor would nonsurgical medical abortion be an alternative for such women whose pregnancies are getting close to viability; as I understand it, it is generally not allowed, at least in Ohio, past a relatively early stage in the pregnancy.

The main justification given by both states for this temporary ban is not the risk that the interaction between patients and clinic personnel will risk spreading coronavirus. Rather, it is that the pandemic "has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus," and that this equipment should be saved for only the essential procedures.

Of course, under normal circumstances such a restriction would be unconstitutional. Rightly or wrongly, the Supreme Court has held that it is unconstitutional for the government to create substantial obstacles to women's ability to get an abortion before viability. Even milder regulations have been struck down under this test, because they tended to markedly reduce the number of available clinics and increase travel time and other delays. Perhaps the Court will reverse itself on this, but for now lower courts are bound by the law as the Court has set forth.

But, as I've discussed before, I think public health emergencies can justify many restrictions on constitutional rights (and important statutory rights), especially when those restrictions are parts of across-the-board restraints, rather than targeting the right for special constraint. That is true, for instance, of:

  • The right to assemble, when the government bans all large or even modestly-sized public gatherings.
  • The right to religious exemptions from generally applicable laws (for instance, claimed by those who want to worship together despite such a gathering ban), in the about 2/3 of the states that recognize such a right under a state RFRA statute or a state supreme court's interpretation of the state constitution.
  • The right to live with one's spouse or children, or the right to have sex with one's lover, when one is quarantined and separated from them for some time.

Yet I think these restrictions are permissible in an epidemic because

  1. they leave substantial substitutes for the right (for instance, online communication in place of physical assembly), or briefly delay its exercise in a way that's burdensome but not immense, and
  2. the restrictions closely target behavior that especially risks transmission of disease—activities that tend to bring people close together, in contexts where they tend to interact closely with each other, a habit that can be very hard to completely break.

(For religious worship, some religious believers might believe that they must gather in person, so item 1 might be absent, but item 2 generally would still apply.)

Here, at least for some women, the Ohio and Texas rules wouldn't just substantially burden the right to abortion, but would completely foreclose its exercise. (Likewise, I tend to think that a law that completely shuts down all ways to buy a gun would completely foreclose the exercise of the right to keep and bear arms for those who don't already own guns.)

And I think that for such abortions, as for gun purchases, mechanisms would be available to preserve the core of the right while minimizing the risk of communicating illnesses (or the competition for personal protective equipment). For instance, there can be requirements that the clinic sharply limit the number of people physically present at any one time, even when that causes delays. There can be rules delaying abortions, especially if it is thought that the protective equipment shortage will ease in the weeks to come, so long as the rules apply only to relatively early abortions, where delay will not mean denial. A total ban on all non-life/health-preserving abortions, even as part of a general ban on all non-life/health-preserving surgical proceedings, is therefore not strictly necessary, and should thus be seen as unconstitutional even as a means of combating an epidemic.

Of course, the less restrictive alternatives that I describe might well create considerable burdens on people who want to exercise the right. But such burdens may well be justifiable, and thus not "undue burdens": As the Court has held, courts must consider countervailing "medical benefits" "when considering whether a regulation of abortion constitutes an undue [and therefore unconstitutional] burden"; I think that should include medical benefits in helping control a deadly epidemic and not just medical benefits to the woman.

So abortion rights, like many of our other rights, can be significantly burdened in order to help control the effects of coronavirus. But when we go from a significant burden to outright prohibition, especially of behavior that doesn't involve large-group gatherings of the sort that are particularly likely to spread disease, the prohibitions strike me as no longer constitutional, whether as to the right to get an abortion or the right to get a gun.