Not Even Congress Can Get COVID-19 Tests. But Arkansas Requires Abortion Patients to Have One.

What's the point of forcing abortion patients to obtain a negative COVID-19 test, besides creating another barrier to care? There is none.

[Photo: A nurse practitioner examines a patient for COVID-19.]
The COVID-19 pandemic has provided an excuse for anti-choice lawmakers to impose more restrictions on abortion in the name of protecting people from the virus while refusing to do basic things that would actually help protect people from COVID-19. Chip Somodevilla/Getty Images

For continuing coverage of how COVID-19 is affecting reproductive health, check out our Special Report.

If you live in Arkansas and have a cracked tooth, you can pop right over to the dentist and get that tooth fixed, coronavirus be damned.

If, on the other hand, you’re in need of a procedural abortion in Arkansas, Republican Governor Asa Hutchinson wants you to know you can eat Arkansas’ shorts.

That’s the message Arkansas officials are sending as they opens up gyms and restaurants for business while enforcing a new directive requiring asymptomatic patients seeking a procedural abortion obtain a negative COVID-19 test result within 48 hours of the procedure.

It’s an absurd requirement considering testing in the United States is such a disaster that there aren’t even enough tests to administer to asymptomatic U.S. senators. How is a pregnant person supposed to obtain a COVID-19 test when a member of Congress can’t?

The very notion is preposterous.

But Arkansas’ anti-abortion directive isn’t about the pandemic. It’s about squeezing abortion access and making it impossible for people in the Midwest and the Southeast to obtain abortion care. Because of course it is.

When the COVID-19 pandemic hit, Hutchinson didn’t do what sensible governors did: issue a broad “stay the fuck home” order. He took half-assed steps to stop the spread of the virus: closing public schools for the rest of the school year, shuttering a lot of businesses, and banning public gatherings of ten or more people.

And, as in states like Texas and Oklahoma, almost all procedural abortions were banned. Because of course they were.

Little Rock Family Planning Services—the last procedural abortion clinic in Arkansas—filed a lawsuit in federal court seeking a temporary restraining order after the state’s order came down.

A federal district court granted the temporary restraining order, but Arkansas being Arkansas appealed to the U.S. Court of Appeals for the Eighth Circuit. On April 22, a three-judge panel of the Eighth Circuit dissolved the temporary restraining order and allowed the abortion ban to go forward.

“The directive is a legally valid response to the circumstances confronted by the Governor and state health officials,” the court said.

A week later, a second directive went into effect permitting procedural abortions to resume only if asymptomatic patients can obtain a negative COVID-19 test result within 48 hours prior to the abortion.

Little Rock Family Planning went back to court and sought another temporary restraining order blocking the second directive. They were unsuccessful. Hamstrung by the Eighth Circuit’s decision that the first directive was constitutional, another federal district court rejected Little Rock Family Planning’s request to block the directive. If the first broad directive banning procedural abortion was constitutional, the court reasoned, then the second narrower directive imposing a pre-abortion negative COVID-19 test result must be constitutional as well.

If you’re like me, you’re probably screaming to yourself, “BUT THERE AREN’T ENOUGH TESTS.”

And if I were sitting beside you, I would yell back, “EXACTLY.”

Indeed, that’s what Little Rock Family Planning found out when it tried to find a facility willing to test patients on such short notice and with a 48-hour turnaround. Little Rock Family Planning contacted more than 15 hospitals, urgent-care facilities, clinics, diagnostic centers, and private laboratories, according to court documents, and were unable to find any facility that would test asymptomatic patients and be able to provide results within 48 hours.

And even if a patient were able to get a negative test result within 48 hours, what difference does that make?

Regular COVID-19 testing can produce false negatives at a rate of 30 percent, according to preliminary research out of China. And when it comes to rapid testing—of the sort that Arkansas is requiring of abortion patients—the false negative rate is about 14 percent for one commonly used test.

In other words, a negative test doesn’t necessarily mean a particular patient is coronavirus free. So what is the point of this directive besides forcing pregnant people to jump through extra hoops before they can have an abortion?

There is none.

Arkansas officials are, of course, trying to claim they are concerned about stemming infection, but they’re not even being logical about it.

For example, the day before the state’s health department ordered Little Rock Family Planning to stop performing abortions (except to save the life and health of the pregnant person), Health Secretary Dr. Nathaniel Smith advised Little Rock Family Planning to stop seeing out-of-state patients.

“The risk was particularly high because a high proportion of those cases were coming from out of state … bringing that risk of transmission with them from other states with a higher rate of COVID-19 than Arkansas,” Dr. Smith said, according to Associated Press.

Newsflash, Dr. Smith: People who otherwise would have gotten an abortion in Little Rock are now driving to Granite City, Illinois—a city 350 miles away—into a state reporting far higher numbers of COVID-19 infections than Arkansas. That means pregnant Arkansans are risking their lives and risking infection by going to Illinois for abortion care, and potentially bringing the virus back to Arkansas.

But I doubt Dr. Smith actually cares about that, since the directive is not about the pandemic. It’s about placing barriers between people and abortion care. (Little Rock Family Planning Services is one of the limited number of places in the Midwest and the Southeast where a pregnant person can obtain a procedural abortion.)

The COVID-19 pandemic has provided an excuse for anti-choice lawmakers to impose more restrictions on abortion in the name of protecting people from the virus—while refusing to do basic things that would actually help protect people from COVID-19.

It’s a farce. But Arkansas is no stranger to farces. This, after all, is the state that in a stunning display of comical absurdity, tried to defend its 18-week pre-viability gestational ban by referring to it as a deadline rather than a ban.

And you can be sure the next time COVID-19 cases spike—and states issue new orders shuttering businesses—Republican-led states will attack abortion rights, and perhaps use Arkansas’ forced COVID-19 testing strategy to destroy access. They’ll lay the blame of the outbreak at the feet of abortion providers while ignoring how this virus is spread and how to best fight the pandemic.