“Elective” Medical Services: Abortion during a Pandemic

Since the COVID-19 outbreak emerged in the U.S., federal guidance and state orders have been released in waves over the last several months having an especially drastic effect on healthcare that extends beyond the care of patients infected with the virus. Many states have now mandated the suspension of elective medical services. When response efforts are locally executed and state managed, however, disparities emerge over what governments consider to be “elective”. As a result, while many healthcare services have remained uninterrupted, surgical abortions are being called into question as to whether they should be considered “elective,” and therefore suspended during this time.

What is an essential business?

On March 16, 2020, the President and the Coronavirus Task Force recommended that civilians work from home while calling for those who work in critical infrastructure industries to remain in operation. The “Essential Critical Infrastructure Workforce” advisory list was developed to help state officials determine which businesses and services should remain operational during this period.

State interpretations

To create capacity and meet the increases in resource demands, many states have chosen to follow CDC guidelines stating that “healthcare facilities and clinicians should prioritize urgent and emergency visits and procedures…”

In states where surgical abortion procedures were previously facing challenges, the term “elective” in these materials has given states significant latitude in determining what patients need, under what terms, and when. The argument for restricting elective or non-urgent medical procedures is not without merit. The U.S. is experiencing a shortage of personal protective equipment and medical supplies leaving states to ration existing provisions. Most states have required providers to suspend non-urgent services such as annual physicals, dental check-ups, cosmetic procedures, and routine screenings such as colonoscopies and mammograms.

Although a patient may choose to receive an abortion, relying on this choice to classify surgical abortions as elective results in unique issues unfaced by other elective-designated medical procedures. Abortions are time sensitive. Most acutely in states that have reduced the window of time a patient may obtain an abortion, requiring a patient to wait until after the outbreak jeopardizes the opportunity they have to access this service. This is especially challenging when states are consistently moving back the date upon which elective or nonessential medical services can be resumed as new information emerges on the severity of state outbreaks. Historically, we know that restricting access to surgical abortions does not decrease the need for their services. Women who are unable to obtain an abortion will either require complex surgical procedures for later-term abortions, remain pregnant and require prenatal care and delivery services, or may use dangerous methods to induce an abortion on their own (UCSF Bixby Center). The side effects of suspending surgical abortions would result in more frequent clinical visits (i.e. prenatal care) or longer admissions (i.e. later-term abortions, self-induction, delivery) in the hardest hit clinical settings these restrictions are trying to protect. If suspending elective medical procedures is also a tactic to reduce social contact among patients and with medical providers, restricting abortions will likely result in women traveling to other states where the service is preserved, increasing the chance for viral mobility and exposure.

Below is a summary of the states that have classified abortions as “elective” during the pandemic and states that are facing challenges to these determinations in court.

Additional information on state-specific mandates/guidance can be found here. Challenges to these designations in court have been summarized here.

Post-pandemic

The COVID-19 outbreak has illuminated many vulnerabilities in our healthcare system. Prior to the pandemic, abortion services were facing renewed challenges in courts. Classifying abortions as “elective”, however, perpetuates the rhetoric that abortions are chosen luxuries when women often face little choice in the nonmedical reasons they have to obtain an abortion. It is difficult to see through the thicket of disparate recommendations and orders made by state and local governments, but it is clear that the end of the pandemic will not eliminate the challenges raised by these regulations nor the discretion states may take in the future in deeming what is and is not essential medical care.

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