Wake Forest Law Review
19Sep

Taking Stock of the Comstock Act: Legal Relic or Courtroom Crusade?

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Anna Duong-Harrison

History

            In 1873, Congress passed the Act for the Suppression of Trade in, and Circulation of, Obscene Articles of Immoral Use––the colloquial Comstock Act.[1] This Act criminalized the circulation of contraceptives and birth control-related information through the mail, including medical textbooks and magazines.[2] Even instruments that could be used to perform abortions were considered obscene.[3] The Act also forbade the sale of contraceptives across state lines.[4] The guilty recipients of these so-called “obscene” materials faced up to ten years in prison.[5] Twenty-four states quickly followed the federal government’s lead with their own Comstock laws.[6]

Anthony Comstock, a Christian zealot, inspired this wave of broad, unforgiving legislation.[7] After successfully lobbying Congress to pass the Act, Comstock regularly scoured New York City for people to arrest.[8] Equipped with funds from the New York Society for the Suppression of Vice, Comstock contributed to the arrest of hundreds of people, including prominent women’s rights advocates.[9] Comstock and others’ “campaign against obscenity” reflected fears that contraception and related materials may scandalize their children, promote immorality, and disincentivize marriage.[10]

Even though critics challenged the constitutionality of Comstock laws, the Supreme Court staunchly held that the First Amendment did not protect obscenity.[11] However, by the early 1900s, judicial enforcement of Comstock laws tapered off as courts recognized the challenges of applying such a broad statute.[12] For example, in U.S. v. One Package, the Second Circuit held the Act inapplicable to mailed contraceptive materials if the intended purpose was not “unlawful.”[13] The court reasoned that even though the legislators intended “unlawful” to be synonymous with “abortion” in the Act, modern changes in medicine required a new interpretation of the term to mean unlawful abortions.[14] Then, in 1972, the Supreme Court finally answered the hotly debated question of how to define obscenity, which further narrowed qualifying materials under the Act.[15] Finally, two hallmark Supreme Court cases, Griswold v. Connecticut and Roe v. Wade essentially rendered the Act null, since both contraception and abortion became legal.[16]

Can a Literal Interpretation of The Comstock Act Impact Abortion Care in North Carolina?

The strict nature of the original 1873 Comstock Act eventually morphed into today’s 18 U.S.C. §§ 1461 and 1462.[17] These statutes prohibit the mailing and importation of “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”[18] As legal scholars have noted, the Supreme Court’s decision to remove the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization has potentially harkened a return of the Comstock Act.[19]

A literal interpretation of the Comstock Act could restrict FDA approval of mifepristone and misoprostol and arm the Department of Justice (DOJ) with more discretion under a conservative administration.[20] A literal interpretation of the Comstock Act would prohibit the mailing of any items related to abortion, regardless of sender intent.[21] This means FDA approved mifepristone and misoprostol would be inaccessible to doctors, even in states where abortion is legal.[22] The breadth of the Act could even limit the mailing of medical instruments like dilators, gloves, and speculums, which are used in a variety of obstetric procedures, including abortions.[23]

While some may view this application of the Comstock Act as reactive political rhetoric, five cities have already passed local ordinances that criminalize the shipping and receiving of abortion medications under §§ 1461 and 1462.[24] In recent oral arguments, Supreme Court Justices Clarence Thomas and Samuel Alito asked attorneys if the FDA violated the Comstock Act by approving mifepristone and misoprostol.[25] By raising this issue, the Justices signaled an openness to revive a legal relic. Republican Vice-presidential candidate J.D. Vance has also voiced his direct support for enforcing the Comstock Act.[26] In January 2023, Vance joined a group of legislators in a letter to the DOJ urging it to apply the Comstock Act to mailed abortion pills, which are also used for miscarriage healthcare.[27] The letter echoed Vance’s shared position that the Act had been misinterpreted and misapplied by the federal government.[28] Thus, it is not far-reaching to wonder if the Act will make a reappearance under a Trump/Vance administration.

Conclusion

Ultimately, it would take a literal interpretation of the Comstock Act by both the DOJ and the Supreme Court to reach North Carolina. To do so, the Act would have to restrict FDA approval of mifepristone and misoprostol, receive DOJ support, and find Supreme Court backing. It is more likely that a reemergence of the Act would impact access to mailed abortion medication in states where abortion is illegal. Yet, the possibility of the Act reaching North Carolina is not implausible, and the possibility of the Comstock Act’s revival from relic to reality may be looming in the near future.

[1] David Schultz & John R. Vile, The Encyclopedia of Civil Liberties in America, 87–88 (Taylor & Francis Group, 2005).

[2] Id. at 88; Mabel Felix, et al., The Comstock Act: Implications for Abortion Care Nationwide, Kaiser Family Found. (Apr. 15, 2024), https://www.kff.org/womens-health-policy/issue-brief/the-comstock-act-implications-for-abortion-care-nationwide/.

[3] Id.

[4] Id.

[5] See id.

[6] Anthony Comstock’s “Chastity” Laws, The Pill, https://www.pbs.org/wgbh/americanexperience/features/pill-anthony-comstocks-chastity-laws/#:~:text=Anthony%20Comstock%20was%20jubilant%20over,trade%20on%20a%20state%20level.&text=New%20England%20residents%20lived%20under%20the%20most%20restrictive%20laws%20in%20the%20country.

[7] See id.

[8] See Schultz, supra note 1, at 207.

[9] Id.

[10] Schultz, supra note 1, at 208.

[11] See id.

[12] See id. at 14–40.

[13] See United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936).

[14] See id. at 739–40.

[15] See Miller v. California, 413 U.S. 15, 24 (1973) (limiting obscene material to the confines of a strict three-part test).

[16] Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Roe v. Wade, 410 U.S. 113, 165 (1973).

[17] See Ebba Brunnstrom, Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs, 55 Colum. Human Rights L. Rev. 1, 3 (2024).

[18] 18 U.S.C. §§1461–62.

[19] See supra, note 17.

[20] E.g.,Felix, supra note 2.

[21] See id.

[22] Annalies Winny, The Threat to Abortion Rights You Haven’t Heard Of, Johns Hopkins Bloomberg School of Public Health (May 31, 2024), https://publichealth.jhu.edu/2024/how-the-comstock-act-threatens-abortion-rights.

[23] See supra, note 2.

[24] Id.

[25] See transcript of Oral Argument at 26–91, FDA v. All. for Hippocratic Med., 144 S. Ct. 1540 (2024).

[26] Alison Durkee, JD Vance and Project 2025 Want to Use This 19th Century Law to Ban Abortion Without Congress, Forbes (Jul. 18, 2024), https://www.forbes.com/sites/alisondurkee/2024/07/18/jd-vance-and-project-2025-want-to-use-this-19th-century-law-to-ban-abortion-without-congress/.

[27] Letter from J.D. Vance, et al., U.S. S. to Hon. Merrick B. Garland, Att’y Gen. (Jan. 25, 2023), https://www.documentcloud.org/documents/24834197-20230123-letter-on-comstock-to-doj.

[28] See id.

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25Mar

Sofia Vergara: In Vitro Fertilization and the Right Not to Procreate

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By Megan E. Cobb

After six years, Sofia Vergara has been granted a permanent injunction preventing her ex-partner, Nick Loeb, from using the frozen embryos they created together without her explicit written permission.[1]  This decision is just one step in a long court battle between the two which dates back to 2014, when Loeb filed suit in Santa Monica, California, “to protect the frozen embryos” he created with Vergara.[2]  In April 2015, Loeb wrote an op-ed in the New York Times that claimed that, in his opinion, Vergara’s desire to keep their two embryos frozen indefinitely was tantamount to killing them.[3]  The judge in the Los Angeles Superior Court ruled that Loeb breached a contract signed by both himself and Vergara by setting up a trust for the embryos and suing for custody on behalf of the embryos in Louisiana.[4]  As for Loeb’s Louisiana suit, Judge Regina Bartholomew-Woods stated that it is clear that Loeb was engaging in forum shopping, and that he and his counsel engaged in behavior which “makes a mockery of the Louisiana legal system and the bar and is abhorrent.”[5]  While at first blush this seems to be simply a private dispute between previous partners, this case and the rhetoric surrounding it touch on important questions regarding personhood, when life begins, and the importance of consent in matters regarding bodily autonomy.

One issue in the case between Loeb and Vergara is that these are two people with strikingly different opinions on the topic of personhood.  Loeb is of the opinion that these embryos are babies, and thus are humans entitled to the protection of the court and with rights of their own.[6]  In a statement released by Loeb, he said, “It’s sad that Sofia, a devout Catholic, would intentionally create babies just to kill them.”[7]  Vergara, on the other hand, has never stated that she wants the embryos to be destroyed, wanting instead to “leave the embryos frozen indefinitely.”[8]  She does not seem to view the embryos as humans, and embryos are not recognized as having constitutional Fourteenth Amendment rights.[9]  However, some state law does recognize rights inherent to unborn human fetuses.[10]  Currently, thirty-eight states have fetal homicide laws, and at least twenty-nine of those states have laws which apply to the earliest stages of fetal development.[11]

Under the law of some states, such as Missouri, frozen embryos are not human life, but marital property.[12]  Judge Robert Clayton III, in a 2016 decision, stated that a bid to apply a state’s law defining life as beginning at conception would be at odds with a non-consenting donor’s rights to privacy, freedom from government interference, and freedom not to procreate.[13]  In McQueen v. Gadberry,[14] a marriage dissolution proceeding, two frozen embryos were found to be marital property, and the embryos were awarded to the husband and wife jointly.[15]  In this case, the wife appealed for custody of the embryos in order to possibly implant them at a later date.[16]  This Missouri decision is in line with the decision in Vergara’s case, because the court in both cases awarded joint custody to both parties, meaning that neither could make any decision regarding the embryos without the consent of the other.[17]

Some lobbying groups and religious organizations do view frozen embryos as human life.[18]  These groups promote the belief that life begins at fertilization (also known as “fetal personhood”).[19]  If such groups are successful at lobbying Congress to pass bills which guarantee fundamental constitutional rights to embryos at fertilization,[20] obstetricians, gynecologists, and infertility specialists warn that infertility treatments such as in vitro fertilization (“IVF”) may become impossible to perform.[21]  These doctors are also concerned that “personhood” legislation could put doctors in danger of criminal liability when dealing with issues such as ectopic pregnancies.[22]  These complications would make IVF, already cost-prohibitive to many couples,[23] much more difficult to access.

Another issue the case between Vergara and Loeb raises is a person’s right to decide what to do with parts of their own body.  For instance, a living person’s decision to donate an organ “must be completely voluntary and free from pressure.”[24]  While in Vergara’s case, the tissue donated has already been removed from her body, it is still her egg that was used to create the embryo.[25]  If a living person must consent completely voluntarily and free from pressure to donate a kidney,[26] should a decision regarding the use of an embryo be any different?  It would seem so: cases involving embryos also bring in the question of an individual’s right not to procreate.

In 1992, the Tennessee Supreme Court decided the case of Davis v. Davis.[27]  In Davis, the court stated that the right to procreational autonomy involves two rights of equal significance: the right to procreate and the right to avoid procreation.[28]  The court also found that the state’s interest in potential human life is not sufficient to justify an infringement on an IVF egg or sperm donor’s procreational autonomy,[29] and that “an interest in avoiding genetic parenthood can be significant enough to trigger the protections afforded to all other aspects of parenthood.”[30]

However, other states have passed legislation that holds a person’s right to procreate at a higher level of sanctity than another’s right not to procreate.  Arizona’s Embryo Statute went into effect in August 2018.[31]  Under the Embryo Statute, courts tasked with the disposition of frozen embryos must award the embryos to the spouse who intends to allow the embryos to develop to birth.[32]  Note the must in the sentence above: even if the spouses previously agreed to a disposition of the embryos, courts must award the embryos to the spouse who intends to allow the embryos to develop to birth.[33]  The statute attempts to alleviate concerns of unwanted parenthood, stating that if the spouse who is not awarded the embryos does not consent to being a parent, the resulting child will not be a child of that spouse and will have no rights, obligations, or interests with respect to the non-parent.[34]  Proponents of this statute and others like it argue that “the decision to procreate takes place at the time of the creation of the embryo, not at its implantation.”[35]  Such assertions could confound the “freedom not to procreate” argument made in cases such as McQueen.[36] 

The questions a court must answer here are far-reaching, despite the issue of frozen embryo custody most often arising in divorce cases.[37]  Enshrining fetal personhood in law could have negative repercussions for women’s healthcare, force doctors to limit access to abortions, and put women in danger of prosecution if they have a miscarriage.[38]  Today, fetuses and frozen embryos do not have constitutional rights under the Fourteenth Amendment.[39]  A question must be asked by states: Is an embryo created for IVF its own entity, or should it be viewed as a combination of the tissue of two separate individuals, each with their own rights and opinions on its disposition?  Unless the Supreme Court finds that embryos do have such constitutional rights, it will continue to be up to the states to determine the best way to move forward with laws surrounding the disposition of frozen embryos, and whether one parent’s right not to procreate outweighs another’s right to bring the embryos to term.

[1] Ally Mauch, Sofia Vergara Wins Court Battle: Judge Rules that Ex Nick Loeb Can’t Use Embryos Without Consent, People (Mar. 3, 2021, 1:59 PM), https://people.com/tv/sofia-vergara-judge-rules-ex-nick-loeb-cant-use-embryos-without-consent/.

[2] Complaint, Doe v. Doe, SS02458 (Cal. Super. Ct. Aug. 24, 2014).

[3] Nick Loeb, Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live, The New York Times (Apr. 29, 2015), https://www.nytimes.com/2015/04/30/opinion/sofiavergaras-ex-fiance-our-frozen-embryos-have-a-right-to-live.html?auth=login-google.

[4] Ian Mohr, The Battle for Sofía Vergara and Nick Loeb’s Embryos May Finally Be Over, Page Six (Mar. 3, 2021, 12:16 PM), https://pagesix.com/2021/03/03/sofia-vergara-wins-big-in-frozen-embryos-suit-against-nick-loeb/.

[5] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *84 (La. Ct. App. Jan. 27, 2021).

[6] Mauch, supra note 1.

[7] Id.

[8] Melody Chiu, Sofia Vergara’s Ex Nick Loeb Defends Frozen Embryo Lawsuit: I’ve Dreamed of Being a Dad, People, https://people.com/celebrity/sofia-vergaras-ex-nick-loeb-defends-frozen-embryo-lawsuit-ive-dreamed-of-being-a-dad/ (last updated Apr. 29, 2015, 9:35 PM).

[9] Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

[10] State Laws on Fetal Homicide and Penalty-enhancement for Crimes Against Pregnant Women, National Conference of State Legislatures (May 1, 2018), https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx.

[11] Id.

[12] Jim Suhr, Frozen Embryos Are Property, Not Humans, Court Rules, KQED (Nov. 8, 2016), https://www.kqed.org/futureofyou/283679/frozen-embryos-are-property-not-humans-court-rules.

[13] Id.

[14] 507 S.W.3d 127 (Mo. Ct. App. 2016).

[15] Id.

[16] Id. at 134.

[17] Id.

[18] See generally Christina Cauterucci, What Should Be the Fate of a Spare Frozen Embryo?, Slate (Jan. 28, 2016, 11:48 AM), https://slate.com/human-interest/2016/01/frozen-embryos-and-the-anti-abortion-activists-who-love-them.html (citing objections to the McQueen v. Gadberry decision by groups such as the Thomas More Society and Missouri Right to Life); What’s Wrong with Fetal Rights, ACLU, https://www.aclu.org/other/whats-wrong-fetal-rights (last visited Mar. 25, 2021) (laying out various issues brought up by bills advocating for fetal rights and personhood).

[19] Andrea Michelson, Experts Say Amy Coney Barrett’s Nomination Could Threaten ICF. Here’s Why, Insider (Oct. 19, 2020, 4:33 PM), https://www.businessinsider.com/amy-coney-barretts-nomination-could-threaten-ivf-experts-explain-2020-10; Richard M. Doerflinger, Human Embryo Research Is Illegal, Immoral, and Unnecessary, United States Conference of Catholic Bishops (Jul. 18, 2001), https://www.usccb.org/issues-and-action/human-life-and-dignity/stem-cell-research/human-embryo-research-is-illegal-immoral-and-unnecessary (testimony of Richard M. Doerflinger on behalf of the Committee for Pro-Life Activities United States Conference of Catholic Bishops before the Subcommittee on Labor, Health and Human Services, and Education Senate Appropriations Committee).

[20] See generally Sanctity of Human Life Act, H.R. 586, 115th Congress (2017) (a bill declaring that “the right to life guaranteed by the Constitution is vested in each human and is a person’s most fundamental right; (2) each human life begins with fertilization . . . at which time every human has all the legal and constitutional attributes and privileges of personhood,” and that Congress, the states, Washington, D.C., and U.S. territories have the authority to protect all human lives as defined in this bill).

[21] See Craig Niederberger, M.D., et al., For the Supreme Court: Choose Another, 114 Fertility & Sterility 941, 941 (Oct. 13, 2020), https://www.fertstert.org/article/S0015-0282(20)32560-7/fulltext (“Legislation that restricts doctors from using the standard treatments today, which carefully manage an egg with a sperm inside, would render those procedures impossible to perform.”).

[22] Rob Mank, Doctors Call Mississippi “Personhood” Initiative Dangerous, CBS News (Nov. 4, 2011), http://www.cbsnews.com/news/doctors-call-mississippi-personhood-initiative-dangerous.

[23] IVF Cost: Analyzing the True Cost of In Vitro Fertilization, CNY Fertility, https://www.cnyfertility.com/ivf-cost/ (last updated Oct. 12, 2020) (“A complete In Vitro Fertilization cycle can cost anywhere from $4,900 to over $30,000.”).

[24] Making the Decision to Donate, National Kidney Foundation, https://www.kidney.org/transplantation/livingdonors/making-decision-to-donate (last visited Mar. 25, 2021).

[25] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *3 (La. Ct. App. Jan. 27, 2021) (“Subsequently, Ms. Vergara and Mr. Loeb underwent several IVF treatments, which resulted in several pre-embryos.”).

[26] See National Kidney Foundation, supra note 24.

[27] 842 S.W.2d 588 (Tenn. 1992).

[28] Id. at 601.

[29] Id. at 602.

[30] Id. at 603.

[31] Ariz. Rev. Stat. § 25-318.03.

[32] Id. § 25-318.03(A)(1).

[33] Id. § 25-318.03(B).

[34] Id. § 25-318.03(D).

[35] Amber Macias-Mayo, Frozen Embryos: The Law at a Crossroads, Walther Bennett Mayo Honeycutt (Feb. 25, 2020), https://www.wbmhlaw.com/2020/02/25/frozen-embryos-the-law-at-a-crossroads/.

[36] See Suhr, supra note 12.

[37] See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016).

[38] See Mank, supra note 22; A Woman’s Rights: Part 1, When Prosecutors Jail a Mother for a Miscarriage, N.Y. Times (Dec. 28, 2018), https://www.nytimes.com/interactive/2018/12/28/opinion/abortion-pregnancy-pro-life.html (discussing a woman charged with abuse of a corpse after miscarrying twins).

[39] See Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

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3Apr

Abortion Rights in the Era of COVID-19

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By Alexandria Montgomery

As the COVID-19[1] pandemic continues to spread across the United States, a new wave of abortion litigation has reached federal courts. In the wake of the ongoing pandemic, several states—including Texas, Ohio, Iowa, Alabama, and Oklahoma—have attempted to restrict women’s access to abortion procedures under the guise of promoting social distancing and conserving healthcare resources.[2] These temporary abortion bans have most commonly come in the form of an executive order from a state’s governor regarding limitations on non-essential medical procedures.[3] This raises several legal questions. May abortion be considered a “nonessential” medical procedure? Moreover, are these abortion bans constitutional given that they are supposedly only temporary? And finally, does the public interest in stopping the spread of COVID-19 and conserving much-needed personal protective gear (“PPG”) for healthcare professionals outweigh a woman’s constitutional privacy interest in obtaining an abortion?

On Monday, March 30, a federal judge halted a temporary abortion ban in Texas.[4] Texas Governor Greg Abbott had issued an executive order (“Executive Order GA-09”) on March 22 that required all health care professionals and facilities to postpone  “all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death . . . .”[5]

The next day, the Attorney General of Texas, Ken Paxton, issued a press release clarifying that the that the Executive Order GA-09 prohibited “any type of abortion that is not medically necessary to preserve the life or the health of the mother.”[6] Of note, the Attorney General’s interpretation, which explicitly prohibited “any type” of abortion, would not only ban surgical abortions, but medication abortions as well—despite the fact that medication abortions do not require any type of surgery or procedure. The Attorney General’s interpretation also made clear that those who did not comply with Executive Order GA-09 could face criminal “penalties of up to $1,000 or 180 days of jail time.”[7]

Several abortion providers (collectively, “Planned Parenthood”) quickly filed a constitutional challenge against the Governor and state officials seeking a temporary restraining order against both the Texas Attorney General’s interpretation of Executive Order GA 09 and the Order itself.  In granting the temporary restraining order, which prohibits Texas from enforcing Executive Order GA-09 as applied to any type of abortion, the court made several determinations.

First, the court stated in no uncertain terms that, “[r]egarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such procedure.” Indeed, for nearly half a century, the Supreme Court has repeatedly and emphatically held that the Due Process Clause of the Fourteenth Amendment includes a right of privacy that protects a woman’s right to make the ultimate decision to terminate a pregnancy at any point prior to viability.[8] Before the point of viability, “a state has no interest sufficient to justify an outright ban on abortion.”[9] In other words, although states may regulate pre-viability abortions, they may not outright ban them.[10]

The court, however, also addressed several factors that are specific to this unprecedented situation caused by the COVID-19 pandemic. Although Texas and some other states have attempted to classify “any type” of abortion as nonessential, abortion is a time-sensitive procedure.[11] Many states such as Texas have placed gestational limits on when a woman may legally obtain an abortion.[12] Because of these limits, even a temporary ban on abortion would allow some women’s pregnancies to progress to a point at which it would no longer be legal to obtain an abortion, effectively stripping some patients of their constitutional right to choose to terminate a pregnancy.[13]

Moreover, it has always been and will continue to be the case that restricted access to abortion services disproportionately impacts low-income women. Long before the COVID-19 pandemic, some of the most common reasons that abortion patients provided for choosing to terminate a pregnancy included the inability to afford raising a child and the belief that continuing the pregnancy would interfere with their ability to work.[14]  And now, in the midst of a pandemic that has already wreaked havoc on the United States economy, the risks of requiring someone to continue an unwanted pregnancy are perhaps even greater.[15] In only a two week time-span, unemployment insurance claims in the United States have increased a shocking 1500%.[16] Labor economists estimate that potentially 14 million workers will lose their jobs due to the pandemic by the summer.[17] In the face of such severe economic distress, it is vital now more than ever that women are able to make deeply personal decisions relating to whether they are in a position to bring a dependent child into the world.

Finally, the court noted that because of the pandemic, travelling to other states to obtain an abortion is increasingly risky.[18] The Centers for Disease Control and Prevention has warned that travelling, even within the United States, may increase the possibility of contracting COVID-19.[19]  Accordingly, the court determined that allowing medical providers to resume abortion services would not disserve the public interest.[20] Any benefits of conserving a limited amount of PPG for healthcare providers is outweighed by the harm of allowing a state to ban abortions outright.[21] A woman’s constitutional right must take precedence, especially when paired with the unfortunate current economic circumstances and the increased health risks that travelling to other states to obtain an abortion would pose. In short, a woman’s constitutional right to obtain an abortion continues to survive, even in the midst of an unprecedented pandemic.

[1] COVID-19 is the name of the disease caused by the novel coronavirus (SARS-CoV-2). See Naming the Coronavirus Disease (COVID-19) and the Virus That Causes It, World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (last visited Apr. 1, 2020).

[2] See Kate Smith, Abortion in Texas will resume, despite attorney general orders, CBS News (Mar. 30, 2020, 06:47 PM), https://www.cbsnews.com/news/texas-abortion-ban-halted-federal-judge/.

[3] See, e.g., Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf (prohibiting nonessential surgeries and medical procedures in Texas).

[4] See Smith, supra note 2. In recent days, federal judges have also enjoined similar COVID-19-related abortion bans in both Ohio and Alabama. See Ema O’Connor, Judges Struck Down Three State Bans On Abortions During The Coronavirus Outbreak (Mar. 31, 2010, 10:53), https://www.buzzfeednews.com/article/emaoconnor/judge-struck-down-abortion-ban-texas-coronavirus.

[5] See Tex. Exec. Order No. GA-09, supra note 3.

[6] See Press Release, Ken Paxton, Attorney Gen. of Tex., Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all.

[7] See id.

[8] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (declaring that a state’s regulation is an unconstitutional “undue burden” if the regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”); Roe v. Wade, 410 U.S. 113, 170 (1973); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (reaffirming the central holdings of Roe and Casey that prior to the point of viability, the state may not unduly burden a woman’s constitutional right to obtain an abortion).

[9] Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, slip op. at 6 (W.D. Tex. filed Mar. 30, 2020) (citing Roe, 410 U.S. at 163–64)

[10] See id.  

[11] See Abortion & COVID-19, Nat’l Abortion Federation, https://prochoice.org/abortion-covid-19/ (last visited Mar. 30, 2020).

[12] See Abbott, slip op. at 7 (citing Tex. Health & Safety Code Ann. § 171.044 (West 2017)) (explaining that Texas bans abortions after 20 weeks post-fertilization).

[13] See id.

[14] See Rachel K. Jones et al., Guttmacher Inst., Characteristics of U.S. Abortion Patients, 2008, at 7, 9 (2010) (“Poor women were overrepresented among abortion patients.”).

[15] See Abbott, slip op. at 8.

[16] See Heidi Shierholz, Unemployment Insurance Claims Jumped Nearly 1,500% in Two Weeks, Econ. Policy Inst. (Mar. 26, 2020), https://www.epi.org/press/unemployment-insurance-claims-jumped-nearly-1500-in-two-weeks-i-have-been-a-labor-economist-for-a-very-long-time-and-have-never-seen-anything-like-this/ (stating that there were 3.3 million unemployment insurance claims in the week before March 26).

[17] See id.

[18] See Abbott, slip. op. at 8.

[19] See Coronavirus and Travel in the United States, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html (last updated Mar. 30, 2020). Although the CDC does not typically issue domestic travel restrictions or advisories, it has now issued a travel advisory urging the residents of New York, New Jersey, and Connecticut “to refrain from non-essential domestic travel for 14 days” due to the severity of the COVID-19 outbreak in these states. See id.

[20] See Abbott, slip. op. at 8.

[21] See id.

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