On Monday afternoon, Texas Attorney General Ken Paxton posted a warning to “all licensed health care professionals and all licensed health care facilities, including abortion providers,” that they must “postpone all surgeries and procedures that are not immediately medically necessary.”
The legal opinion came less than 24 hours after Gov. Greg Abbott issued an executive order loosening regulations to help increase capacity in the state’s hospitals. The order, slated to remain in effect until April 21, called for health care providers to postpone “surgeries and procedures that are not immediately medically necessary.”
The order mimics guidance regarding elective surgeries released by the Centers for Medicare and Medicaid Services on March 18. Neither that guidance nor Abbott’s order specifies a list of banned procedures.
Still, Abbott’s order was met with a quick response from the anti-abortion group Texas Right to Life, which declared that the governor’s action would “stop all surgical elective abortions.” The group claimed that the “abortion industry” was partly responsible for worsening conditions for providers on the front lines of the coronavirus epidemic and accused it of “hoarding medical supplies.”
“Texas Right to Life is grateful that the loss of life during the Covid-19 outbreak will be decreased thanks to the halt in abortions,” the group said, also calling for a ban on medication abortion.
Paxton’s warning followed quickly.
In reality, however, Abbott’s order does not mention abortion. The order is designed to help health care professionals stay safe while expanding their ability to provide care, for example, by allowing hospitals to increase patient-room capacity. And while it says providers “shall” halt procedures that are not necessary to “correct a serious medical condition” or prevent “serious adverse medical consequences or death, as determined by the patient’s physician,” it also provides a caveat: It does not apply to any procedure that “performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the Covid-19 disaster.”
Medical experts say abortion fits squarely into the category of procedures that should not be affected by such an order. “Abortion is an essential component of comprehensive health care,” reads a statement released last week by the American College of Obstetricians and Gynecologists, the American Board of Obstetrics and Gynecology, and six other groups representing reproductive health providers. “It is also 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.”
Abbott’s order, primarily an attempt to address hospital-based procedures and free up additional PPE, is being weaponized by anti-abortion groups and politicians trying to further their ideological cause in the midst of a pandemic.
Indeed, it appears that Texas’s anti-abortion crusaders are taking their cues from a controversy playing out in Ohio.
In the wake of a March 17 order from Ohio Department of Health Director Amy Acton telling providers that they should end “non-essential surgery,” a lawyer in Attorney General Greg Yost’s office penned a series of letters to abortion providers. The letters, sent out on March 20 and 21, said that the state had received “a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE.” The letters demanded that the providers “stop performing non-essential and elective surgical abortion. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient.” If the providers failed to comply, “the Department of Health will take all appropriate measures.”
A lawyer for Planned Parenthood Southwest Ohio immediately responded to the letter, according to a statement from PPSWO and Planned Parenthood of Greater Ohio, which operate two of the three clinics contacted by the AG’s office. They assured the state that they were complying with the content of Acton’s order. “Abortion is an essential, time-sensitive medical procedure,” the statement reads. Under the order, “Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to offer other health care services that our patients depend on. Our doors remain open for this care.”
Politicians opposed to reproductive autonomy in both Texas and Ohio have already made sure that access to abortion is frighteningly limited. A series of draconian measures Texas passed in 2013 led to the closure of half the state’s abortion facilities before the laws were deemed unconstitutional by the U.S. Supreme Court in 2016. Last spring, Ohio Gov. Mike DeWine signed a ban on all abortion after six weeks of pregnancy — long before many women even know they’re pregnant. A federal judge blocked that law from taking effect last summer, describing it as “unconstitutional on its face.”
Both states require coercive (and often medically inaccurate) patient “counseling” and a 24-hour waiting period before abortions can be carried out, which means two separate clinic trips. They also severely limit abortion coverage in health insurance policies and mandate extra, medically unnecessary ultrasound examinations. Texas bans telemedicine for the provision of medication abortion.
Ninety-three percent of Ohio counties do not have an abortion provider; 55 percent of the state’s women live in those counties. Ninety-six percent of Texas counties, home to 43 percent of the state’s women, are without an abortion provider.
“Abortion care is a time-sensitive service that cannot be significantly deferred without profound consequences for women and their families,” the National Abortion Federation stated. “It is an essential health service.”
“An individual and family decide to end a pregnancy for a complex constellation of reasons that include the impact of pregnancy and birth on their health, ability to work, and strained economic circumstances,” the National Abortion Federation stated on March 17. “These are conditions that do not go away — and are likely heightened — in pandemic conditions. Denying or deferring abortion care places an immediate burden on patients, their families, and the health care system, and can have profound and lasting consequences.” Roughly half of all U.S. pregnancies are unplanned and nearly 20 percent of pregnancies end in abortion.
A spokesperson for the Ohio attorney general wrote in an email to The Intercept that the AG’s actions have not been politically driven. “This is not an abortion issue,” Bethany McCorkle wrote, noting that the office had also sent a letter to a “urology group that was allegedly performing elective surgeries.”
Nonetheless, it appears that another Texas anti-abortion group, Texas Alliance for Life, is actively seeking to gin up complaints that can be filed with the state health department in a similar effort to shutter abortion clinics across the state. In a tweet posted Sunday night the group encouraged its followers to gather intel. “If you know of abortions performed at abortion facilities anywhere in Texas, please contact us with info and documentation.”