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At first glance, U.S. abortion politics seem unrecognizable in the era of COVID-19.
Last week, the Eighth Circuit Court of Appeals upheld most of Arkansas’ COVID-19 abortion ban, setting up a possible showdown in the U.S. Supreme Court. Arkansas is one of more than a half-dozen states with similar bans. All of them claim the pandemic gives the government extraordinary power over the right to an abortion.
But history shows there’s nothing extraordinary about the strategy shaping these Republican-backed bans. That plan reaches back decades, and it focuses on anti-abortion groups using lies to create a new reality about abortion in the United States. The strategy relies on and reproduces doubt about the difference between fact and ideology—and science and spin.
After the Supreme Court decided Roe v. Wade, abortion rights opponents shot for a constitutional amendment banning all abortions, even in blue states. But anyone who’s recently seen Mrs. America knows how hard it is to amend the U.S. Constitution.
Congress’s discriminatory Hyde Amendment, a ban on Medicaid funding for abortion care, turned into an accidental blueprint for what abortion rights opponents could do next. The Hyde Amendment showed that abortion foes could make progress by eliminating access and teeing up opportunities for the Supreme Court to narrow abortion rights. And by focusing on control of the Court, abortion opponents found a new objective. Rather than changing the text of the Constitution, they could try to change the Supreme Court—by fighting to elect Republicans and lobbying them to pick justices who would reverse Roe.
And rather than championing a right to life, these activists could focus on what abortion (and abortion restrictions) were really like—for pregnant people, families, and communities.
This strategy didn’t go away—not even after the Supreme Court rejected a previous attempt to overturn Roe in 1992. Planned Parenthood v. Casey saved a right to abortion but changed the rules that applied to abortion restrictions, holding that they would be unconstitutional only if they had the purpose or effect of creating an undue burden on abortion.
Anti-abortion groups saw an opening for a new attack. The Supreme Court had saved abortion rights partly because women relied on abortion access to achieve equal citizenship. But what if anti-choice groups could show that abortion made pregnant people sick instead of equal? Then the case for abortion rights would crumble.
After Casey, anti-abortion groups intensified efforts to redefine the effects of abortion. They promoted laws linking abortion to an increased risk of suicide, breast cancer, or infertility. The science, of course, did not always help. Elite medical organizations treated the new anti-abortion claims with skepticism or rejected them outright.
And so abortion foes nourished existing distrust of the mainstream media and medical authorities, suggesting that both had a pro-choice agenda that undermined their credibility. Anti-abortion organizations asserted that the truth about abortion was uncertain. Anti-abortion activists hired their own experts, founded their own organizations, and gathered their own evidence. In the abortion wars, the difference between science and spin became harder to see.
Even the Supreme Court muddied the distinction between fact and ideology. When anti-abortion leaders promoted bans on dilation and extraction abortions, abortion-rights leaders insisted on the need for a health exception. Anti-abortion organizers sought to create uncertainty about the need for that exception. They claimed that when the facts were uncertain, legislators should have the freedom to restrict abortion. In Gonzales v. Carhart, the Supreme Court agreed.
Ever since, anti-abortion organizations have worked to cast doubt on the facts about abortion care—the safety of clinics and the need for medically unnecessary TRAP laws (targeted regulations of abortion providers), the potential of reversing medication abortions, and much more.
The same strategy lies at the heart of the COVID-19 bans. The bans rely on claims about the reality of abortion on the ground—falsely charging that abortion patients use up hospital beds and providers hoard personal protective equipment needed to fight the pandemic.
As the COVID-19 bans make their way to the Supreme Court, remember that their fate will reshape abortion rights well after the pandemic ends. We will see how the courts respond when states claim the power to roll back rights in the name of an emergency. And we will see how much judges buy into arguments about the costs and benefits of abortion. The same kind of claim is before the Supreme Court in June Medical Services v. Russo, a major abortion rights case likely to be decided by this summer.
The forces behind June Medical Services and the COVID-19 abortion bans understand the same thing. It won’t be easy to get rid of abortion rights in the United States, but the best chance may be to convince the Court that abortion was never good for anyone in the first place.
Mary Ziegler is the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020), on which this commentary draws.