Texas is on the wrong side of history

The state is using COVID-19 as an excuse to halt “nonessential” procedures like abortions

Published April 17, 2020 5:58PM (EDT)

Pro-choice activist (Pete Marovich/Getty Images)
Pro-choice activist (Pete Marovich/Getty Images)

In recent weeks, the state of Texas has tried to revert women's abortion rights to the last century. The restrictions didn't work then and won't work now.

Claiming a need for medical supplies during an emergency, Texas last month ordered a stop to nonessential medical procedures, which the state said included abortions — unless they were necessary to preserve the life or health of a pregnant woman.

After two rounds at the district court level and three rulings from the U.S. Fifth Circuit Court of Appeals, early-term medication abortions are now allowed, though hundreds of women likely missed the 10-week window during the weeks over which the legal battle raged on.

If a Texas woman will be 22 weeks pregnant before the nonessential medical procedure ban is lifted, she can have an abortion now under the court rulings. Gov. Greg Abbott said today that the ban on nonessential medical procedures will expire as planned on April 21. 

Women who are more than 10 weeks pregnant but not more than 20, however, remain in limbo — especially if the order is extended.

Put aside for a moment the fact that this move is blatantly political, and that it will be life-altering for women who desperately seek an abortion as their pregnancies progress day by day. The reality is that determining whether an abortion is medically necessary is more complex than it seems.

Does it matter if the patient has high blood pressure? That she is genuinely suicidal? Or must she be hemorrhaging in an emergency room?

What if she has or had the novel coronavirus, whose impact on pregnant women is unknown?

Ironically, it was exactly this kind of restrictive language about preserving a woman's life that led doctors, lawyers, clergy and women's activists to aggressively push for legalizing abortion beginning in the 1950s. And it is this kind of language that states trying to ban abortion are working to reinstate should the U.S. Supreme Court ever overturn Roe v. Wade.

Formal abortion bans were enacted in the U.S. between the middle and late 1800s. Typically,  the only exception was to preserve the woman's life.


Even so, white women with connections got relatively safe ones from skilled practitioners. Poor women and women of color tried to abort themselves or went to cheap providers in back alleys. By some estimates, thousands of women each year died, before antibiotics improved the outcomes. 

In the 1940 and 1950s, hospitals tried to formalize the process. Women who wanted an abortion had to be evaluated by multiple doctors. Then a therapeutic abortion committee of three or more doctors—almost always men—decided if she qualified for a legal abortion.

Some hospitals, especially public hospitals, rejected nearly everyone. Some required women who got an abortion to also be sterilized, so she wouldn't ask for another one. Private hospitals were more likely to allow abortions in cases of rape or incest or if a woman had been exposed to rubella, which frequently caused serious birth defects — even though none of those threatened her life.

Dr. Alan Guttmacher, a prominent obstetrician at New York's Mount Sinai Hospital, wrote in Redbook in 1959, "I am convinced that abortion laws in the United States make hypocrites of all of us."

At the same time, doctors who worked outside of the hospital establishment were considered illegal providers. Dr. Edgar B. Keemer was arrested in the mid-1950s for performing abortions. At his trial, he argued that his work alleviated his patients' physical and mental suffering and saved their lives. He was convicted and spent 14 months in prison.

In the 1960s, following a recommendation of the American Law Institute, states added exceptions for rape, incest, the mental and physical health of the woman and fetal deformities. But once again, someone other than the woman and her doctor decided whether she qualified.

Even with the change, an estimated 1 million women a year sought illegal abortions and thousands ended up in emergency rooms.

"We tried to change a cruel, outmoded inhuman law," said Richard Lamm, then a Colorado state representative and later the state's governor, "and what we got was a cruel, outmoded, inhuman law."

The Janes in my book, "Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights," had their own personal experiences. One of the leaders of the Chicago collective Jane, a group of women who took to performing abortions themselves, was initially denied a hospital abortion while she was in cancer treatment. Dr. Jane Hodgson, a prominent St. Paul, Minn., obstetrician, was arrested and convicted in 1970 for performing a hospital abortion on a woman who had been exposed to rubella.

By then, many activists were looking to the courts for help. The historic lawsuit Roe v. Wade, with the anonymous Jane Roe as the plaintiff, was filed in Dallas federal court in March 1970, one of many lawsuits seeking to overturn state abortion laws.

The Supreme Court's decision on Jan. 22, 1973, declared that women, in consultation with their doctors, have a constitutional right to abortion. In 1992, a conservative-leaning Supreme Court affirmed that constitutional right, though it also opened the door to many restrictions, including waiting periods and mandatory sonograms.

Texas is arguing that halting abortions now would preserve masks and gloves needed in hospitals and free up space. But most abortions today take place in clinics, not hospitals, and medication abortions don't require special gear. Federal courts have blocked similar efforts in other states.

If she has the means, a Texas woman whose pregnancy is more than 10 weeks along can fly or drive to a state where abortion isn't restricted, risky as that is right now. But low-income women and women of color who likely are raising children as single mothers rarely have that option, especially since their children are not in school or daycare because of the crisis. Instead, the state forces them to continue unwanted pregnancies until they are close to the cut-off, when abortions are riskier, more time-consuming and more expensive.

Those too late for a medication abortion often turn to the Internet for ways to abort themselves. Scammers may offer dangerous services. Throughout recorded history, abortions have never gone away. There have only been safe ones or dangerous ones.

Karen Blumenthal is the author of "Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights."

By Karen Blumenthal

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Abortion Rights Commentary Health Pandemic Pro-choice Texas