Love (for Due Process) During COVID-19

by Juliette Draper

The rapid spread of COVID-19 in the United States has prompted a consolidation of power by federal, state, and municipal governments to maintain order during an unprecedented crisis. On March 13, 2020, President Trump declared a national emergency to control the spread of COVID-19, which removed legal barriers to a wide variety of bureaucratic processes and allowed for the quick distribution of emergency aid to state and local governments.[1] President Trump can now use the country’s state of emergency to substantiate executive orders that he can claim will contain the spread and minimize the effects of COVID-19.[2]

Historically, presidents have used national emergency declarations to adopt draconian measures in the name of national security and public health. During the Civil War, President Lincoln’s declaration of a national emergency empowered him to suspend habeas corpus.[3] During World War II, President Roosevelt’s proclamation of a national emergency allowed him to establish Japanese internment camps.[4] And after 9/11, President George W. Bush used his declaration of a national emergency as permission to approve the illegal wiretapping of American citizens and the torture of individuals suspected of being affiliated with terrorist organizations.[5] The actions an administration and its agencies take after declaring a national emergency are often evaluated in a different light because a president’s rule-making abilities become more significant when claimed to be protecting public interests.[6]

While state governments do not have the same far-reaching effects as the federal government, they do have the right to declare states of disaster when confronting an identified threat.[7] The Texas Government Code, for example, declares “The governor by executive order or proclamation may declare a state of disaster if the governor finds a disaster has occurred or that the occurrence or threat of disaster is imminent.”[8] Governor Greg Abbott declared a state of disaster in Texas due to COVID-19 on the same day President Trump made his declaration.[9] This declaration gave the governor and the health commissioner John William Hellerstedt broad authority to waive “laws that hinder state agencies’ ability to respond to COVID-19.”[10]


Texas Bans Abortions Due to COVID-19

On March 22, 2020, Greg Abbott signed an executive order stating that all healthcare professionals and facilities must postpone surgeries that “are not immediately, medically necessary to correct a serious medical condition or to preserve the life of a patient.”[11] Texas Attorney General Ken Paxton then issued a press release one day later titled “Health Care Pro­fes­sion­als and Facil­i­ties, Includ­ing Abor­tion Providers, Must Imme­di­ate­ly Stop All Med­ical­ly Unnec­es­sary Surg­eries and Pro­ce­dures to Pre­serve Resources to Fight COVID-19 Pandemic.”[12] This interpretation of Abbott’s executive order specified that “any type of abortion that is not medically necessary to preserve the life or health of the mother” were prohibited.[13]

The potential outcomes of the ban were immediately evident. Many women would no longer be considered eligible for medication abortion, and many seeking a first-trimester abortion would be delayed into the second-trimester due to the time-sensitive nature of the procedure. Additionally, the arrangements needed to travel to a clinic would be exceptionally complicated by Abbot’s order, and “it has been found that increasing distance from a facility following clinic closures is associated with a large decrease in the number of abortions.”[14] The Guttmacher Institute cited that “the one-way driving distance to an abortion clinic for a woman of reproductive age in Texas would increase from 12 miles to 243 miles (a 1,925% increase) if legal abortion care in the state were shut down.”[15] These resulting complications exemplify how Abbot’s order proved burdensome to women seeking abortions, and in certain cases, hazardous to their health and quality of life.


Constitutional Protection for Abortion

Measures resulting in gross restrictions on abortion can be interpreted as a violation of a woman’s constitutional right to terminate a pregnancy, as first established in the U.S. Supreme Court’s rulings in Roe v. Wade,[16] and further concreted by Planned Parenthood of Southeastern Pennsylvania v. Casey,[17] Whole Woman’s Health v. Hellerstedt,[18] and June Medical Services v. Russo.[19]

In Roe, the court stated that the Texas criminal abortion statutes were unconstitutional because they violated the Due Process Clause of the Fourteenth Amendment, which protects the right to privacy, including a woman's right to terminate her pregnancy, from state action.[20] Elaborating on the relevance of the Due Process Clause, the Court stated that the clause includes the concept of “personal liberty” in regards to one’s personal, marital, familial, and sexual matters.[21] Under Roe, state laws banning or restrictively regulating abortions for the stages prior to the end of the first trimester were deemed invalid. However, the Court did leave leeway for the states to restrict how a woman could obtain the medical procedure. The Court declared that “The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.”[22]

Casey sought to challenge the bounds of the restrictions that Roe allowed states to place on abortions. Through the ruling, the Court introduced the “undue burden test” to be used when evaluating the constitutional soundness of state restrictions on abortions and effectively weakened the protections guaranteed in Roe. The undue burden standard specified that an undue burden existed on a woman’s ability to obtain an abortion if the purpose of a law or its effects place substantial obstacles in the path of a woman seeking an abortion.[23] Upon introducing this new standard for evaluating laws on abortions, Casey also granted the states a stronger voice in regulating abortions by rejecting “Roe’s rigid trimester framework” and establishing that, as long as these measures were not an undue burden, “To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed.”[24] The establishment of the “undue burden test” and the court’s elaboration on the role of the state weakened the strength of the Roe ruling by providing loopholes through which state regulation could survive constitutional review.

The “undue burden standard” was further tested 24 years later in Whole Woman's Health v. Hellerstedt, when the Court struck down parts of a restrictive Texas law that placed “a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and thus violated the Constitution.”[25] This law, if it had passed strict scrutiny, would have restricted the number of abortion clinics in the State of Texas by requiring those clinics to have the same health standards as surgical clinics and for the doctors to have admittance rights to nearby hospitals. The law also would have prevented women from obtaining abortions after 20 weeks of pregnancy.[26]

The Court’s ruling in Whole Women’s Health further exemplified the power and versatility of the undue burden standard introduced in Casey by referring to the case and stating “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”[27] The principle that health regulations themselves do not constitute sufficient reasons for restricting a woman’s right to abortion came into play during the COVID-19 pandemic when the virus and public safety are cited as plausible reasons for postponing abortion procedures.


The Subsequent Legal Battle

The American College of Obstetricians and Gynecologists issued a statement two days before Governor Abbott’s issuance of the executive order, declaring, “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care.”[28] Delaying an abortion can severely affect the health of the mother, and could also prevent the procedure from taking place.[29] A day after Abbott released the order, Planned Parenthood and other reproductive health clinics in Texas filed a lawsuit, citing the American College of Obstetricians and Gynecologists’s statement and stating that Abbott’s order “violates Texans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution.”[30]

On March 30, in response to arguments brought before the United States District Court for the Western District of Texas, Judge Lee Yeakel granted a request from abortion clinics to temporarily prevent Abbott’s ban from taking effect.[31] Judge Yeakel wrote “Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order. The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”[32]

However, on April 7, a panel of judges at the Fifth Circuit Court of Appeals overturned Judge Yeakel’s rulings, thus prohibiting non-emergency abortions from occurring in Texas during the pandemic.[33] The court stated that Abbott’s temporary discontinuation of abortion procedures did not violate Roe v. Wade ruling that Roe did not involve a state’s postponement of services in response to a public health crisis.[34] They also cited that Abbot’s measure did not defy Casey, as the measure did not upset the “Court’s balance between ‘personal autonomy and bodily integrity’” and “governmental power to mandate medical treatment or to bar its rejection”[35] because the State of Texas was simply mandating medical treatment during a global crisis.

Despite this ruling, the fight was not yet over. On April 11, abortion providers asked for emergency relief from the Supreme Court to allow abortions services to continue in Texas while the case was litigated. In regards to the ongoing battle, Nancy Northup, the President of the Center for Reproductive Rights, stated in an interview, “This is not the last word—we will take every legal action necessary to fight this abuse of emergency powers.”[36]

This heated legal fight eventually died out in Texas after Governor Abbott issued another executive order on April 17 that eased restrictions on elective medical procedures, allowing abortions to resume in health care facilities.[37] While the issue may be moot, Governor Greg Abbott’s actions represent the potential abuse of governmental power that may occur during the COVID-19 crisis. These events also demonstrate the urgency for courts to further define what constitutes an “undue burden” on one’s constitutional rights in cases of reproductive rights and abortion access.





[1] Proclamation No. 9994, 85 F.R. 15337 (2020).

[2] Aɴɴ Pʀɪᴄᴇ & Lᴏᴜɪs Mʏᴇʀs, Lɪʙʀᴀʀʏ ᴏғ Cᴏɴɢʀᴇss, Fᴇᴅᴇʀᴀʟ ᴀɴᴅ Sᴛᴀᴛᴇ Exᴇᴄᴜᴛɪᴠᴇ Rᴇsᴘᴏɴsᴇs ᴛᴏ COVID-19 (2020) (During a public health emergency, federal and state governments have broader authority to enact regulations without regular legislative branch oversight. Executive agencies have the power to do so, and the general power to regulate American, civilian life through the Administrative Procedure Act (APA). Following the APA, federal agencies cited the COVID-19 pandemic as the basis for exceptions to rule-making as the pandemic constitutes a public health crisis. For example, through executive orders, the President can direct an agency to perform a specific action. If that subsequent agency then cites the COVID-19 pandemic as a public health crisis, it can function with greater leeway when performing tasks).

[3] Gen. Order No. 141 (1862).

[4] Exec. Order No. 9066, 7 F.R. 1407 (1942).

[5] Proclamation. No. 7463, 66 F.R. 48199 (2001).

[6] Vᴀʟᴇʀɪᴇ C. Bʀᴀɴɴᴏɴ, Cᴏɴɢ. Rᴇs. Sᴇʀᴠ., Cᴀɴ ᴀ Pʀᴇsɪᴅᴇɴᴛ Aᴍᴇɴᴅ Rᴇɢᴜʟᴀᴛɪᴏɴs ʙʏ Exᴇᴄᴜᴛɪᴠᴇ Oʀᴅᴇʀ? (2018) available at https://fas.org/sgp/crs/misc/LSB10172.pdf.

[7] Nᴀᴛɪᴏɴᴀʟ Cᴏɴғᴇʀᴇɴᴄᴇ ᴏғ Sᴛᴀᴛᴇ Lᴇɢɪsʟᴀᴛᴜʀᴇs, Lᴇɢɪsʟᴀᴛɪᴠᴇ Oᴠᴇʀsɪɢʜᴛ ᴏғ Eᴍᴇʀɢᴇɴᴄʏ Exᴇᴄᴜᴛɪᴠᴇ Pᴏᴡᴇʀs (2020), available at https://www.ncsl.org/research/about-state-legislatures/legislative-oversight-of-executive-orders.aspx.

[8] Texas Disaster Act of 1975, Tex. Code Ann. §1 ch. 147 (1975).

[9] Exec. Order GA-27, 45 Tex. Reg. 4421 (2020).

[10] Nicole Cobler, Gov. Abbott issues disaster declaration in Texas over coronavirus concerns, Aᴜsᴛɪɴ Aᴍᴇʀɪᴄᴀɴ-Sᴛᴀᴛᴇsᴍᴀɴ (March 13, 2020), https://www.statesman.com/news/20200313/gov-abbott-issues-disaster-declaration-in-texas-over-coronavirus-concerns?fbclid=IwAR3BNUsXEyg2pWtBAJ5AwsSLixTWkxodkbmE-zhH1ZgFTyfw6xEmAP6HxB4.

[11] Exec. Order GA-09, 45 Tex. Reg. 2271.

[12] Ken Paxton, Health Care Pro­fes­sion­als and Facil­i­ties, Includ­ing Abor­tion Providers, Must Imme­di­ate­ly Stop All Med­ical­ly Unnec­es­sary Surg­eries and Pro­ce­dures to Pre­serve Resources to Fight COVID-19 Pandemic, Aᴛᴛᴏʀɴᴇʏ Gᴇɴᴇʀᴀʟ ᴏғ Tᴇxᴀs (March 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all.

[13] Id.

[14] Kᴀʀɪ Wʜɪᴛᴇ ᴇᴛ ᴀʟ., Tᴇxᴀs Pᴏʟɪᴄʏ Eᴠᴀʟᴜᴀᴛɪᴏɴ Pʀᴏᴊᴇᴄᴛ ᴀᴛ Tʜᴇ Uɴɪᴠᴇʀsɪᴛʏ ᴏғ Tᴇxᴀs ᴀᴛ Aᴜsᴛɪɴ, Tʜᴇ Pᴏᴛᴇɴᴛɪᴀʟ Iᴍᴘᴀᴄᴛs ᴏғ Tᴇxᴀs’ Exᴇᴄᴜᴛɪᴠᴇ Oʀᴅᴇʀ ᴏɴ Pᴀᴛɪᴇɴᴛs’ Aᴄᴄᴇss ᴛᴏ Aʙᴏʀᴛɪᴏɴ Cᴀʀᴇ (2020), available at http://sites.utexas.edu/txpep/files/2020/04/TxPEP-research-brief-executive-order-abortion-delay-4-8-20.pdf.

[15] Jᴏɴᴀᴛʜᴀɴ Bᴇᴀʀᴀᴋ ᴇᴛ ᴀʟ., Gᴜᴛᴛᴍᴀᴄʜᴇʀ Iɴsᴛɪᴛᴜᴛᴇ, COVID-19 Aʙᴏʀᴛɪᴏɴ Bᴀɴs Wᴏᴜʟᴅ Gʀᴇᴀᴛʟʏ Iɴᴄʀᴇᴀsᴇ Dʀɪᴠɪɴɢ Dɪsᴛᴀɴᴄᴇs ғᴏʀ Tʜᴏsᴇ Sᴇᴇᴋɪɴɢ Cᴀʀᴇ (2020), available at https://www.guttmacher.org/article/2020/04/covid-19-abortion-bans-would-greatly-increase-driving-distances-those-seeking-care.

[16] Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County, 410 U.S. 113 (1973) [hereinafter Roe].

[17] Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al., 505 U.S. 833 (1992) [hereinafter Casey].

[18] Whole Woman's Health v. Hellerstedt, No. 15–274, slip op. (U.S. June 27, 2016) [hereinafter Whole Woman’s Health], available at https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf.

[19] June Medical Services, LLC v. Stephen Russo, No. 18–1323, slip op. (U.S. June 29, 2020) [hereinafter June Medical Services], available at https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf.

[20] See Roe, 410 U.S. at 113.

[21] Id. at 129.

[22] Id. at 165.

[23] See generally Casey, 505 U.S. 833.

[24] Id. at 837.

[25] Whole Woman’s Health, No. 15–274 at 3.

[26] Tex. H.B. 2, 83rd Cong. (2nd Sess. 2013).

[27] Casey, 505 U.S. at 878.

[28] Tʜᴇ Aᴍᴇʀɪᴄᴀɴ Cᴏʟʟᴇɢᴇ ᴏғ Oʙsᴛᴇᴛʀɪᴄɪᴀɴs ᴀɴᴅ Gʏɴᴇᴄᴏʟᴏɢɪsᴛs, Jᴏɪɴᴛ Sᴛᴀᴛᴇᴍᴇɴᴛ ᴏɴ Aʙᴏʀᴛɪᴏɴ Aᴄᴄᴇss Dᴜʀɪɴɢ ᴛʜᴇ COVID-19 Oᴜᴛʙʀᴇᴀᴋ (2020), available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak.

[29] Id.

[30] Planned Parenthood Center for Choice; Planned Parenthood of Greater Texas Surgical Health Services; Planned Parenthood South Texas Surgical Center; Whole Woman’s Health; Whole Woman’s Health Alliance; Southwestern Women’s Surgery Center; Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and

Austin Women’s Health Center; and Robin Wallace, M.D. v. Greg Abbott, in his official capacity as

Governor of Texas; Ken Paxton, in his official capacity as Attorney General of Texas; Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; Stephen Brint

Carlton, in his official capacity as Executive Director of the Texas Medical Board; Katherine A. Thomas, in her official capacity as the Executive Director of the Texas Board of Nursing; Margaret Moore, District Attorney for Travis County; Joe Gonzales, Criminal District Attorney for Bexar County; John Creuzot, District Attorney for Dallas County; Jaime Esparza, District Attorney for El Paso County; Kim Ogg, Criminal District Attorney for Harris County; Ricardo Rodriguez, Jr., Criminal District Attorney for Hidalgo County; Barry Johnson, Criminal District Attorney for McLennan County; Sharen Wilson, Criminal District Attorney for Tarrant County; and Brian Middleton, Criminal District Attorney for Fort Bend County, No. 1:20-cv-00323-LY 2020 WL 1502102 (W.D. Tex. April 13, 2020) [hereinafter Planned Parenthood v. Abbott].

[31] Id.

[32] Id. at *7.

[33] In re: Greg Abbott et al., No. 20-50264 (5th Cir. 2020).

[34] Id.

[35] Id. at 14.

[36] Alice Miranda Ollstein, Court backs Texas pandemic abortion ban, citing emergency powers, Pᴏʟɪᴛɪᴄᴏ (April 7, 2020), https://www.politico.com/news/2020/04/07/court-backs-texas-pandemic-abortion-ban-citing-emergency-powers-173419.

[37] Proclamation No. 41-3726, 45 Tex. Reg. 2463 (2020).



36 views
  • Grey Facebook Icon
  • Grey Twitter Icon
  • Grey Instagram Icon

© 2020 Texas Undergraduate Law Review

Thank You to Our Supporters at