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In several states, lawmakers have included elective abortion among the procedures classified as “non-essential,” attempting to cut down on the spread of the novel coronavirus and preserve necessary medical supplies that are in short stock across the country.

According to federal judges, that’s a violation of the constitutional right to abortion.


In Texas, Ohio, and Alabama, federal judges have temporarily suspended these state policies after Planned Parenthood, the Center for Reproductive Rights, the ACLU, and other clinics and abortion-activist groups sued. Similar policies have been put in place in Iowa, Mississippi, and Oklahoma, and abortion providers are challenging them as well.

All three judges insisted in their decisions that any policy that prevents abortions from being carried out is unconstitutional.

“Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” wrote Judge Lee Yeakel in his decision blocking the Texas policy. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”


Texas attorney general Ken Paxton has said his state will appeal the decision “to ensure that medical professionals on the frontlines have the supplies and protective gear they desperately need.”

In Alabama, U.S. district judge Myron Thompson wrote that state lawmakers’ desire to conserve medical supplies doesn’t “outweigh the serious, and, in some cases, permanent, harms imposed by the denial of an individual’s right to privacy.”


Serious and permanent harms is an interesting turn of phrase in this context, given that the outcome of denying abortion to a woman is that she will give birth to her child. This is the dogma of the abortion-rights advocate — that the birth of an “unwanted” child is a grievous harm to be prevented by any means — though Thompson won’t come out and say it explicitly, relying instead on the more palatable notion of privacy rights.

These decisions underscore exactly how damaging the prevailing abortion jurisprudence is. Even at a time of national crisis, as states exercise great discretion and authority to allocate resources as they see fit and shut down hundreds of thousands of non-essential businesses in order to stop the spread of disease, abortion providers are given a free pass from the courts to continue doing business.