Center Lawsuits to Protect Abortion Access During the COVID-19 Pandemic Are Working

05.05.2020

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The flurry of lawsuits filed since March by the Center for Reproductive Rights and its partners are succeeding in protecting access to abortion care during the COVID-19 pandemic.

In eight states, officials have used the COVID-19 health crisis as an opportunity to block access to abortion. The lawsuits, filed on behalf of abortion providers, are part of a multi-state effort to challenge those state restrictions and ensure that patients can continue to access essential, time-sensitive abortion care during the pandemic. 

“These emergency abortion bans are an abuse of power and part of an ongoing effort to use sham justifications to shut down clinics and make an end run around Roe v. Wade,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “These same states have tried to ban abortion access for years; no one should be fooled that this is warranted by the current crisis. We will use every legal means to ensure that abortion care remains available during this critical time.” 

In recent developments, through either court rulings or agreements, abortion care was allowed to continue during the pandemic in Louisiana, Oklahoma, Tennessee and Texas. (See state-by-state updates below.)    

According to the American Medical Association and the American College of Obstetricians and Gynecologists, abortion is an essential, time-sensitive procedure, and delaying this care could “profoundly impact a person’s life, health, and well-being.” Both groups filed an amicus brief in the Texas case, stating that an abortion ban “is likely to increase, rather than decrease, burdens on hospitals and use of PPE. At the same time, it will severely impair essential health care for women, and it will place doctors, nurses, and other medical professionals in an untenable position by criminalizing necessary medical care.”

See the Center's COVID-19 Resources page here for information about COVID-19 and reproductive health.

State-by-State Lawsuit Updates:

Louisiana

On May 1, the Center resolved a lawsuit filed in federal district court challenging Louisiana’s attempt to close down abortion clinics in the state under a Notice issued by the state health department directing medical providers to postpone medical care unless it falls under certain exceptions. The move came after the attorney general announced “that elective abortions are not essential procedures” under the Notice and publicly announced his intention to close the state’s abortion clinics. The Center was able to reach an agreement that would allow abortion care to remain fully accessible throughout the COVID-19 pandemic.

The lawsuit had claimed that “Defendants’ interpretation of the Notice as applied to previability abortion violates Plaintiff’s patients’ rights to privacy, liberty, and bodily integrity and autonomy guaranteed by the Fourteenth Amendment to the U.S. Constitution” and that it violated the clinics’ equal protection rights by treating them differently than other health-care providers. It also brought a Fourth Amendment challenge against Defendants’ actions attempting to illegally search clinics and copy patient charts.

Commenting when the suit was filed, Kathaleen Pittman, clinic administrator for Hope Medical Group for Women, said “The Attorney General’s recent actions have thrown our patients into a state of fear and panic. There are women in Louisiana who need an abortion today—they cannot wait.” Now, as Nancy Northup, CEO of the Center stated,  “Our client, Hope Medical Group for Women, will remain open and able to provide care to their patients. We are relieved that patients in Louisiana will not be denied essential, time-sensitive abortion services as they have been in other states during this public health crisis.”

The lawsuit was filed April 14 by Center for Reproductive Rights attorneys Jenny Ma, Caroline Sacerdote, and Arielle Humphries and Ellie Schilling of Schonekas, Evans, McGoey & McEachin as local counsel on behalf of Hope Medical Group for Women. The full complaint is available here.

The Center is currently litigating three cases in Louisiana to defend access to reproductive health care, including June Medical Services v. Russo—a case argued before the Court in early March and awaiting a decision—that challenges a TRAP law that would close two of the state’s three abortion clinics. 

Texas 

On April 22, the state of Texas abandoned its legal fight and agreed to allow abortion care to resume in full. In papers filed in the case, Texas clarified that its new executive order taking effect the same day--which exempts any health care facility that certifies to the health department that they will set aside 25% of hospital capacity for COVID-19 patients and won't request personal protective equipment (PPE) from governmental sources--also exempts abortion clinics, allowing them to resume care.

Nancy Northup, President and CEO of the Center for Reproductive Rights, said, “Finally, women in Texas can get the time-sensitive abortion care that they are constitutionally guaranteed.  Women never should have had to go to court to get essential health care. We will be vigilant in ensuring there are no future interruptions to services, including by assessing the appropriate next steps to take in the case.”

Earlier in the week, the Fifth Circuit Court of Appeals ruled against Texas abortion providers, vacating a lower court’s ruling that allowed medication abortion to continue. As a result, most abortions were again prohibited in Texas, except for those who would pass the state’s gestational limit by April 22, when Governor Greg Abbott’s emergency order banning “non-essential procedures” during the COVID-19 pandemic was due to expire.

Commenting on that decision, Northup said, The appellate court is creating chaos and uncertainty for women seeking abortions in Texas. Patients who had appointments scheduled will now be thrown into a state of panic yet again. It’s clear this abortion ban has nothing to do with the pandemic. Texas has been trying to restrict abortion for decades and this is part of that larger strategy. We will continue to fight for the rights of the women of Texas.”

The week before, the Fifth Circuit had lifted its stay of a lower court’s temporary restraining order that protected access to medication abortions. The appeals court ruled after Texas abortion providers — represented by the Center for Reproductive Rights, the Lawyering Project, and Planned Parenthood Federation of America — filed an emergency application  asking the U.S. Supreme Court to restore a district court’s temporary restraining order blocked by the Fifth Circuit that would allow patients to access medication abortion. 

In late March, Governor Abbott issued an executive order postponing all surgeries and procedures not deemed immediately medically necessary. The order was interpreted by the state attorney general to include “any type of abortion that is not medically necessary to preserve the life or health of the mother.” 

Timeline of Texas Legal Actions

  • March 25: Texas abortion providers sued Governor Greg Abbott and other state officials to ensure that patients can continue to access abortion services during the COVID-19 pandemic. 
  • March 30: A federal district judge granted a temporary restraining order to allow abortion services to continue for the time being.
  • March 31: The 5th Circuit Court of Appeals stayed the temporary restraining order granted by the district court while it reviewed the district court's order. 
  • April 7: A panel of the 5th Circuit Court of Appeals reversed the district court’s temporary restraining order, allowing Texas to continue blocking access to abortion.
  • April 9: A federal district court granted a second temporary restraining order against the Governor’s executive order, allowing providers to resume medication abortion as well as abortion procedures for patients who would be unable to access abortion due to their gestational age.
  • April 10: For the second time, the 5th Circuit Court of Appeals ruled against abortion providers,  granting a stay reversing in part the district court’s latest temporary restraining order. 
  • April 11: Abortion providers asked the U.S. Supreme Court to take emergency action to restore medication abortion services while the case proceeds.
  • April 13: The 5th Circuit denied Texas's request to stay the second temporary restraining order as to medication abortion.
  • April 20: The 5th Circuit vacated a lower court’s ruling that allowed medication abortion to continue.
  • April 22: Texas abandoned its legal fight and agreed to allow abortion care to resume in full under a new executive order. 

Oklahoma 

On April 27, the Tenth Circuit Court of Appeals ruled in favor of abortion providers, denying Oklahoma’s request to stay a lower court’s ruling from last week that blocked the state’s ban on abortion care during the COVID-19 pandemic. The decision means that abortion clinics can continue providing care as the case continues.

In the lower court decision on April 20, a federal district judge granted a preliminary injunction allowing most abortion care to continue. That decision extended the relief granted by a temporary restraining order until the case concludes, and allowed all abortion care to resume on April 24.

The request for emergency relief came from the Center for Reproductive Rights and Planned Parenthood Federation of America on behalf of Oklahoma abortion providers.

Northup stated, For the past month, Governor Stitt has exploited this pandemic to try to ban abortion, but the courts have repeatedly ruled against him. In the wake of this latest ruling, it’s past time for Oklahoma to respect the essential needs of women seeking abortion care. This attempt to ban abortion is an abuse of emergency powers. It has nothing to do with legitimate public health efforts to address the pandemic and everything to do with politics. There is no question that abortion care is time-sensitive and cannot be delayed.” 

Earlier in the case, on April 13, the 10th Circuit Court of Appeals allowed abortion care to continue in Oklahoma when it let stand a lower court’s decision temporarily blocking Governor Kevin Stitt’s ban on abortion care during the COVID-19 pandemic. The appeals court denied the state’s request to block a temporary restraining order issued by the federal district court on April 6. Oklahoma abortion providers then sought a preliminary injunction from the district court to continue to block the ban from taking effect until the case concludes. 

The Center and its partners filed a challenge on March 30 to the Governor’s executive order issued requiring all “elective” medical and surgical procedures be postponed, after the Governor singled out abortion care and claimed that the order prohibited all abortions in the state.  

The state of Oklahoma “has acted in an ‘unreasonable,’ ‘arbitrary,’ and ‘oppressive’ way—and imposed an ‘undue burden’ on abortion access—in imposing requirements that effectively deny a right of access to abortion,” wrote federal district Judge Charles Goodwin in granting a temporary restraining order against the Governor’s order.

Timeline of Oklahoma Legal Actions

  • March 24: Governor Stitt issued an order to postpone all elective surgeries and minor medical procedures.
  • March 27: Governor Stitt declared that the order prohibits all abortions in the state, forcing all health centers to halt abortion services. 
  • March 30: The Center for Reproductive Rights and Planned Parenthood Federation filed this lawsuit challenging the Governor’s order. 
  • April 6: District Court Judge Charles Goodwin granted a temporary restraining order allowing abortion care--specifically medication abortion and abortion procedures for patients who would otherwise pass the state’s gestational limit--to continue in Oklahoma until April 20. 
  • April 13: The 10th Circuit denies the state’s request to stay the temporary restraining order.
  • April 20: The district court grants a preliminary injunction, allowing most abortion care to continue effective immediately, and allowing abortion care to resume fully starting April 24.
  • April 27  The 10th Circuit rules in favor of abortion providers, denying Oklahoma’s request to stay the  district court ruling. 

Tennessee

On April 24, the Sixth Circuit Court of Appeals affirmed a preliminary injunction granted by a lower court that allowed Tennessee abortion clinics to continue providing abortion care.

In its decision, the appellate court wrote, “The State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. This is unsurprising because, as far as we can tell, every serious medical or public health organization to have considered the issue has said the opposite.”

“This decision sends a clear message to Tennessee: You cannot use a public health crisis to cut off abortion access,” said Northup. “In the last month, courts across the country have ruled that states cannot use emergency powers to deny women the right to end a pregnancy. It’s time for states to stop exploiting this pandemic.” 

A federal district court allowed procedural abortion care to continue in Tennessee when, on April 17, it granted an emergency motion to block the state’s order restricting abortion access. Late that day, the state filed a notice of appeal, requesting for a stay of the order. In granting the motion, Federal District Court Judge Bernard Friedman wrote, “Moreover, abortion is a time-sensitive procedure. Delaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether. Therefore, plaintiffs have demonstrated that enforcement of EO-25 causes them irreparable harm.”

The district court decision was in response to a lawsuit filed April 14 on behalf of Tennessee abortion providers by the Center for Reproductive Rights, Planned Parenthood Federation of America, the ACLU and the ACLU of Tennessee challenging a state order issued by Tennessee Governor Bill Lee on April 8 in response to the COVID-19 pandemic, limiting “non-emergency” health care procedures. Under the order, patients were unable to receive procedural abortions, but were permitted to obtain medication abortions if less than 11 weeks pregnant--although the state bans telehealth for medication abortions.

Alabama, Iowa and Ohio 

The Center for Reproductive Rights was joined by partner organizations who filed lawsuits and motions on behalf of abortion providers in Alabama, Iowa and Ohio on March 30 to stop those states’ attempts to block access to essential abortion care. That same day, Alabama and Ohio issued temporary restraining orders allowing abortion care to proceed.

Each state has used the COVID-19 pandemic to deny access to time-sensitive abortion care by declaring abortion care non-essential.  

Plaintiffs are being represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union, The Lawyering Project, and other local and national firms. 

“These emergency abortion bans are an abuse of power and part of an ongoing effort to use sham justifications to shut down clinics and make an end run around Roe v. Wade,” said Northup. “These same states have tried to ban abortion access for years; no one should be fooled that this is warranted by the current crisis. We will use every legal means to ensure that abortion care remains available during this critical time.”  

Legal filings in these cases: 

COVID-19 Resources:

See the Center's COVID-19 Resources page here for fact sheets and other information about COVID-19 and reproductive health.