COVID-19 and reproductive justice in Great Britain and the United States: ensuring access to abortion care during a global pandemic.

In this paper we consider the impact that the COVID-19 pandemic is having on access to abortion care in Great Britain (GB) (England, Wales, and Scotland) and the United States (US). The pandemic has exacerbated problems in access to abortion services because social distancing or lockdown measures, increasing caring responsibilities, and the need to self-isolate are making clinics much more difficult to access, and this is when clinics are able to stay open which many are not. In response we argue there is a need to facilitate telemedical early medical abortion in order to ensure access to essential healthcare for people in need of terminations. There are substantial legal barriers to the establishment of telemedical abortion services in parts of GB and parts of the US. We argue that during a pandemic any restriction on telemedicine for basic healthcare is an unjustifiable human rights violation and, in the US, is unconstitutional.

I. INTRODUCTION

As governments worldwide continue to take extraordinary measures to address the COVID-19 pandemic, there has been a significant impact on access to reproductive health services. In this paper we consider how COVID-19 is impairing access to abortion care in Great Britain (GB) (England, Wales, and Scotland) and the United States (US). We demonstrate that there are substantial legal, geographical, social, and socioeconomic barriers for many people trying to access abortion care and that these access issues surrounding abortion care have become critical during the current emergency. We argue that, in order to ensure people can access essential healthcare, early medical abortion (EMA) services should be facilitated remotely. Telemedicine is being deployed in other routine health services, and it is appropriate, safe, and essential for this step to be made in abortion care. In parts of the US, however, restrictive regulation is preventing remote abortion care. This was also the case in GB until very recently. Changes to the law and health policy in the US are necessary to ensure access, and the recent changes in GB which we discuss require added permanence.

In this paper, we take it as given that abortion is essential healthcare in order to protect the physical and mental health of many people from the risks posed by unwanted pregnancy. Service provision is always necessary to meet the demand for abortion care, and demand will continue throughout the pandemic. Concerns about reproductive and sexual health are often neglected during emergencies. While we understand that governments are focused on managing the spread of COVID-19 and ensuring provisions to treat those infected, the issues we raise remain in need of attention. Access to services is a matter of reproductive justice that is, ‘the human right to maintain personal autonomy, have children, not have children and parent the children we have in safe and sustainable communities.’ While reproductive justice is not concerned only with abortion access, and other aspects of reproductive justice will be affected by this pandemic, we have narrowed our scope to abortion.

Remote access to abortion services will be a global problem at this time. We narrow our focus to GB and the US, both common law jurisdictions, because there are or were specific legal barriers in operation here that we wish to highlight. The COVID-19 pandemic is having a huge impact on reproductive health, but law and policy in GB and the US is not shifting as it should to minimize the impact on people’s health.

II. ACESSING ABORTION CARE IN A TIME OF COVID-19

Barriers to safe abortion access exist under normal circumstances, but they have been exacerbated by measures taken by governments to reduce the spread of COVID-19. Both GB and the US have geographical access inequalities in abortion care. In the US, the so-called abortion deserts necessitate travel of >100 miles to the nearest clinic, particularly in the South and Midwest. Such distances are considerably less common in GB, but there are parts of the country—especially in rural Scotland—with no local clinics. GB has also seen several clinic closures recently (prior and unrelated to COVID-19). Due to the pandemic, the number of potentially pregnant people living a significant distance from the nearest clinic has increased. The British Pregnancy Advisory Service (BPAS)—one of the independent abortion providers under National Health Service (NHS) contract which, combined, accounted for 72% of abortions in England and Wales in 2018—has been forced to close 23% of their clinics due to virus-related staff shortages. In the US, states such as Ohio and Texas have deemed abortion non-essential, meaning people who would have attended a clinic in these states must now travel further.

Geographical inequalities have been worsened by policies of social distancing, as there are far more practical barriers to necessary travel. For people who already have children, arranging childcare is likely to be extremely challenging given school/kindergarten/nursery closures. Isolating relatives and caring responsibilities for older and vulnerable relatives may also increase. Making a long journey also heightens an individual’s risk of infection, particularly if it would entail the use of public transportation. This, in turn, puts those they live with and care for at a heightened risk. In-person provision also prevents those who work at abortion clinics from social distancing, putting them at risk of infection when a simple alternative is available.

BPAS estimated at the end of March 2020 that there were 44,000 people in GB who would need abortions during the period April to June 2020. This reflects the large number of lives affected by limiting abortion rights during the pandemic. Some of these people might make different decisions about their sex lives due to the pandemic, but we estimate that over 15,000 people in GB had already conceived by March 23, 2020, and would require an EMA during the lockdown. These 15,000 people conceived when abortion access was guaranteed by the government and are particularly vulnerable to the shifting changes in government policy on abortion care. They are at risk of either ending up continuing unwanted pregnancies or having second trimester abortions which have a higher rate of complications.

The Centers for Disease Control and Prevention (CDC) carry out abortion surveillance in the US. The latest published statistics are from 2016 and incorporate data from 48 out of 52 reporting areas. 623,471 abortions were reported from these 48 reporting areas in 2016. 91% (567,358) were performed before 13 weeks. This means that delays during the 3 weeks between March 22 and April 12, 2020 could mean 32,732 abortions were affected or even delayed. If restrictions last 12 weeks that figure rises to 130,929. In Ohio alone there were 20,790 abortions in 2015; that amounts to 4,798 people affected over a predicted 12 weeks of restrictions.

We are not criticizing measures that governments continue to take in response to COVID-19, but noting that when such restrictions are placed on the movement of citizens, alternative provisions must be made to ensure essential services are provided. Abortion is an essential service, and governments have a duty to ensure access continues throughout this and any future pandemics.

III. TELEMEDICAL ABORTION CARE

EMA involves the use of two medications to induce miscarriage and expulsion of the products of conception—mifepristone first, then misoprostol 24–48 hours later. There is, however, variation in gestational time limits set in different countries for accessing EMA.

Clinical guidelines developed by the National Institute for Health and Care Excellence (NICE) in England and Wales recommend EMA up to and including 10 weeks’ gestation. These guidelines note that before 9 weeks’ gestation, pregnant people might be offered the option of both medications together, although this has a higher risk of complications, which is reflected in the advice of BPAS. The UK Royal College of Obstetricians and Gynaecologists similarly recommends EMA until 9 weeks and 6 days, whereas the American College of Obstetricians and Gynaecologists recommends a lower limit of 9 weeks’ gestation. The World Health Organization (WHO) acknowledges the safety of EMA prior to 9 weeks and makes a ‘weak’ recommendation that EMA may be used up to 12 weeks’ gestation, noting that the quality of evidence for the latter is ‘low.’ Although they differ regarding the exact cut-off, these organizations agree that EMA prior to 9 weeks’ gestation is appropriate. As such, to avoid confusion, any mention of EMA hereafter refers to EMA prior to 9 weeks’ gestation.

Telemedical provision of EMA (TEMA) is not a recent introduction, though remains uncommon. Where it is available, there exist several models of provision which vary greatly in the extent to which they improve access. In Iowa in 2008, a study enabled clinics to dispense drugs in person following remote authorization by an off-site physician. Started in 2016, the TelAbortion Project allows people in select states across the US to videoconference with an abortion provider before being posted EMA drugs. While these two approaches undoubtedly improve(d) access to abortion in the US, both required people to undergo tests and ultrasounds, thereby necessitating attendance at some form of healthcare facility.

Women on Web provide a fully remote service, utilizing an online question-based consultation method before posting the drugs to eligible persons. The service provided by Women on Web is for those in countries without safe or legal abortion services, but it could be adapted for TEMA during the COVID-19 pandemic. A fully remote option is best suited to abortion provision during the pandemic for the reasons already outlined, though we would suggest the inclusion of direct verbal contact between the user and physician either by phone or video call, not only to ensure understanding but to reassure people who may be anxious.

A recent systematic review assessed the ‘success rate, safety, and acceptability for women and providers of medical abortion using telemedicine.’ In addition to finding it highly acceptable, service users experienced similar rates of complete abortion and adverse outcomes as with in-clinic provision. Further, the WHO recommends the use of checklists and pregnancy tests in self-assessment of abortion completeness, so an in-person follow-up consultation is not necessary unless there are complications.

IV. LEGAL BARRIERS TO TELEMEDICAL ABORTION CARE

In this section, we outline the legal landscape regarding TEMA in both GB and the US. As the COVID-19 pandemic unfold, government responses to the crisis continue to develop. During the time of writing this paper, several changes have unfolded, only some of which are to be welcomed.

A. Great Britain

In GB abortion remains a criminal offence and is lawful only where provided under the conditions detailed in the Abortion Act 1967 (AA 1967). Two doctors must, forming their opinion in good faith, believe that one of the grounds for termination in the Act is satisfied. The first of these is that the pregnancy has not exceeded 24 weeks and continuing the pregnancy would involve greater risk of injury to the woman’sphysical or mental health (and that of any existing children) than termination. EMA before 9–10 weeks’ gestation is very safe and much safer than the risks of unwanted pregnancy to a person’s physical and mental health. Until recently, the AA 1967 placed two barriers to remote provision of EMA. First, the requirement that ‘two’ doctors must certify a lawful abortion is far more difficult at present due to resources and safety of staff at clinics.Second, the Secretary of State for Health and Social Care and health ministers of the devolved governments have the exclusive power to determine ‘where’ a lawful abortion may take place per sections 3 and 3A of the AA 1967. Approval orders were issued by the Scottish Minister for Public Health in 2017, Welsh Minister for Health in 2018, and UK Secretary of State for Health and Social Care in 2018, declaring that it is lawful for women to self-administer misoprostol at home but only if they have:

(i) Attended a clinic in order to be prescribed both mifepristone and misoprostol.

(ii) Been supervised administering mifepristone in the clinic.

(iii) Are ordinarily resident at the place where they self-administer misoprostol.

These orders, therefore, expressly prevented people from accessing treatment remotely because attendance at a clinic is mandated for prescription and these orders meant it was unlawful for a woman to self-administer mifepristone at home (or anywhere other than a clinic or hospital).

On March 23, 2020, the UK Secretary of State for Health and Social Care issued a new approval order stating that, in England, a person could lawfully self-administer both mifepristone and misoprostol at home provided that they consult with a clinic or hospital or a registered medical practitioner via videolink, telephone conference, or other electronic means, and they are prescribed the medications to be taken for the purposes of terminating pregnancy. Only hours later, however, the order was revoked, removed from the government website, and replaced by a statement that the publication of the order was an ‘error.’ The unlawfulness, however, of remote abortion care was at odds with government and healthcare regulators’ response to other aspects of routine healthcare where remote care were being encouraged. In response to an open letter by reproductive healthcare professionals, the Department of Health and Social Care again announced they were relaxing abortion regulations in England on March 30, 2020. Following the new approval order, pregnant persons can be prescribed both abortion medications by videolink, telephone, or any other electronic means and can take both medications in their homes where pregnancy has not 9 weeks and 6 days’ gestation. The new approval order is in force until March 30, 2022, or the day on which the temporary provisions in the Coronavirus Act 2020 expire (whichever comes first). On March 31, 2020, the Scottish and Welsh governments issued similar orders meaning that TEMA is now lawful throughout GB. It remains the case that two doctors’ signatures are necessary for service provision. Furthermore, we note that the delay in making this change has had a real impact on persons in GB who were seeking abortion at the time in both delaying treatment and causing severe distress.

The reason for the delay remains unclear. The significant difference between the two approval orders related to England appears only to be making specific provision for the period in which TEMA is lawful. The March 23 approval order specified no end date, whereas the March 30 order is explicit that the order expires without further government action. The approval order for Wales specifies that, like the English order, it expires 2 years after its issue date (March 31, 2022) or on the day on which the temporary provisions in the Coronavirus Act 2020 expire, ‘whichever is earlier.’ The provision made for the automatic revocation of relaxed regulations surrounding TEMA thus means that regressive and unnecessary rules regarding the place of medical abortion will come back into effect without the government having to act. Notably, the approval order issued by the Scottish government does not have an expiry date; however, the Scottish Chief Medical Officer notes in an explanatory letter that ‘we intend that it will have effect for a limited period and so would revoke it and replace it with the terms of the previous approval (dated October 2017) at an appropriate time when it is judged that it is no longer necessary in relation to the pandemic response.’ In Scotland, therefore, the order seems to have placed pregnant people’s health, rather than political expediency, at the center of their effort to ensure access for the foreseeable future, albeit without permanently committing to the change.

While we have limited our inquiry to those places in the United Kingdom (UK) where the AA 1967 applies (GB), we note here with concern that although temporary progressive changes have been made in all other parts of the UK, the situation remains very different in Northern Ireland. TEMA remains unlawful in Northern Ireland because the new framework for abortion, following the decriminalization of abortion in Northern Ireland in July 2019, came into force on March 31, 2020, and is specific that EMA is lawful only where prescribed and administered by a medical practitioner in general practitioners premises, health and social care (HSC) clinics, or hospital and women’s homes where the second medication of EMA may be taken. This provision explicitly prohibits TEMA by rendering the taking of mifepristone at home unlawful. Several abortion providers, however, have openly announced their intention to facilitate pregnant people’s access to TEMA despite the Northern Irish Department of Health’s failure to legalize on the grounds that it is necessary to prevent grave, permanent injury to the physical or mental health of pregnant persons as permitted under regulation 11 of the new regulations.

B. The United States

Ironically, given the fact that access to abortion is often far more difficult for people in parts of the US, Americans, unlike British people, have a constitutional right to abortion access. In Roe v Wade, the US Supreme Court affirmed that the Constitutional right to privacy encompassed a right to terminate a pregnancy (though qualified at the point of viability by the state’s interest in potential life). In Planned Parenthood v Casey, the Supreme Court reaffirmed a person’s right to access abortion as part of the right to privacy, though replacing the ‘trimester framework’ adopted by the Court in Roe with the ‘undue burden test.’ They held that a law is incompatible with the constitution if its ‘purpose or effect is to place a substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.’ Individual states are free to pass whatever laws they see fit regulating abortion, provided that those laws do not unduly prevent access to abortion before the viability threshold. Abortion is legal in every state, but there are different restrictions on provision.

Several states have expressly banned TEMA services: Arizona, Arkansas, Indiana, South Carolina, and West Virginia. Other states have laws that, while making no specific reference to telemedicine, render TEMA unlawful because of specific requirements (usually rules mandating the physical presence of the physician during abortion): Alabama, Oklahoma, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, South Dakota, Tennessee, Texas, and Wisconsin. These states have adopted an approach very similar to that taken in GB before the recent changes outlined. The Supreme Court of Iowa, in reference to law in force in Iowa at the time requiring a physician to perform a physical examination and be physically present when abortion-inducing drugs are provided, noted that ‘it is not disputed that this rule would have the effect of prohibiting telemedicine abortions.’

Since the beginning of the COVID-19 emergency, further action has been taken by state legislatures that have placed further restrictions on access to abortion care at this time. In Texas, where TEMA is already unlawful, the governor issued an executive order stating that ‘all licensed healthcare professionals and all licensed healthcare facilities shall postpone all surgeries and procedures that are not immediately necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.’ The Texas Attorney General confirmed that abortion procedures not medically necessary to preserve the life or health of the mother must be postponed. The governor has since made some exceptions to this order allowing abortion clinics to resume providing care. Mississippi, where TEMA is also unlawful, has also taken these same additional steps. The Ohio Senate passed a bill banning telemedical abortion on March 4 this year, despite the emerging evidence that remote healthcare was becoming increasingly important. A similar executive order requiring the postponement of nonessential medical services was also issued, and the Deputy Attorney General wrote to clinics ordering their closure as ‘a necessary measure amid a public health crisis.’ State legislatures have been accused of ‘exploiting the COVID-19 crisis to further their agenda’ to prevent access to abortion care. The attempts to secure closure of clinics makes introducing TEMA provision all the more pressing.

V. SECURING JUSTICE: THE CASE FOR TELEMEDICAL ABORTION CARE DURING COVID-19

TEMA is necessary during the pandemic to ensure access to treatment, as a matter of safety and a matter of justice.

A. Ensuring Access to Treatment

While TEMA is a positive, evidence-based addition to reproductive healthcare generally, during the COVID-19 pandemic it is a necessary means of ensuring continued access to an essential treatment. As earlier outlined, it is extremely difficult for some people to access clinics during social distancing measures. TEMA is a simple means of providing abortion services for the many people estimated to seek a termination of pregnancy in the coming months, as well as removing the potential stress of trying to reach a clinic. In the US, TEMA is currently available in only 12 states. While not specifically speaking on the matter of abortion, Justice Brandeis commented in New State Ice Co. v. Liebmann that a state could, ‘if its citizens choose, serve as a laboratory; and try novel social and economic experiments’. Although there is no constitutional requirement for consistency in abortion care provision between the states, policy debates across the US should take into account best practice emerging from ‘experiments’ such as TEMA.

In GB, the recent orders to allow TEMA mean that organizations such as BPAS are now providing EMA medications by post following a telephone consultation and medical assessment. The lack of existing operational infrastructure, in addition to the increased operational complications of the current pandemic, means that the new system is likely to see challenges, though such providers have long been calling for the introduction of TEMA and are fully committed. Regardless, the challenges of establishing a new system during a pandemic are not grounds enough to withhold TEMA. That the TelAbortion Project is already in operation in the US suggests that implementing in additional states would, from a practical, operational perspective, be simpler than it was in GB.

B. A Matter of Safety

TEMA protects people seeking abortion care by ensuring prompt access during the pandemic. Even if individuals are still able to access abortion services in-person during the pandemic, but later than they otherwise would have, the potential risks associated with that abortion are greater given the time sensitivity of EMA earlier outlined.

Among those who are entirely unable to attend an abortion clinic due to social distancing, caring responsibilities, clinic closures, and reduced transport system operations, the majority are likely to eventually require a surgical abortion. Although later extended, restrictive measures in GB were initially implemented for a period of 3 weeks, and those in the US are likely to persist at least as long. Given the gestational restrictions on EMA any person who is currently 6 weeks pregnant would no longer have the option of a medical abortion after the 3 weeks of social distancing—and that is assuming measures are not extended. Where social distancing means that a pregnant person crosses the threshold of 9 weeks, they may still be able to have an EMA but are unnecessarily pushed into a more high-risk group.

Objections to TEMA based on safety concerns are unfounded under normal circumstances, but during current pandemic measures they are even less compelling. The balance of benefits and harms tips even more clearly in favor of TEMA’s introduction when leaving the house to attend a medical clinic puts oneself and one’s family at risk of COVID-19 infection. TEMA is a safe, effective, and acceptable option which not only protects the safety of people in reducing the likelihood of a need for more invasive and less safe abortions, but also removes the need for people to break from social distancing and risk becoming infected with, or exposing others to, COVID-19.

C. A Matter of Justice

Those who are most impacted by the barriers we have outlined—geographical, physical, and social—are those who we might consider extremely vulnerable. This involves groups of people who might be structurally disadvantaged as a result of their gender, socioeconomic status, disability, chronic illness, or significant caring responsibilities. There is a long-standing concern about the ability of such individuals to access abortion services, and the extent to which those in the US may rely on the ‘undue burden’ standard is questioned, particularly in light of the so-called TRAP (targeted regulation of abortion providers) laws. Remote access will be the only way, during this crisis and beyond, to ensure that vulnerable minorities are able to access care.

That the orders permitting TEMA in GB have sunset clauses is problematic in terms of securing lasting reproductive justice. It further demonstrates that restrictions on TEMA were not evidence-based, as if there were serious medical concerns it would not have been permitted in response to the pandemic. The introduction of TEMA as a response to COVID-19 suggests that it was simply to prevent those seeking a termination from breaking social distancing measures, meaning that the previous requirement of clinic attendance was purely become people could attend. For changes which improve access for so many people in GB to be time limited is, then, a fleeting victory. Only with an alteration that incorporates permanence will the pandemic-induced relaxation of regulation in GB ensures protection of disadvantaged individuals seeking abortion services. The temporary changes, then, are a step in the right direction which, it is hoped, will prove to be a catalyst for lasting progress.

VI. CONSTUTIONALITY OF RESTRICTIONS ON TELEMEDICAL EARLY MEDICAL ABORTION

In this section, we consider how restrictions on TEMA in GB were (and restrictions in Northern Ireland remain) a potential violation of the human right to private life and to freedom from degrading treatment, and how the US restrictions violate the right to privacy contained in the US Constitution.

The vast majority of jurisprudence considering the compatibility of the law concerning abortion in GB and Northern Ireland with the European Convention on Human Rights (ECHR) concerns the right to private life. This right, contained in Article 8 of the ECHR and the Human Rights Act 1998, ‘cannot be interpreted as conferring a right to abortion’ according to the European Court of Human Rights (ECtHR). Though, the court has found that signatory states must have an effective and accessible procedure for people to receive care where pregnancy threatens life. There has also been a clear evolution in ECHR jurisprudence from the insistence that interference with decisions about pregnancy termination does not necessary constitute an interference with the right to private life to the belief that interference with abortion provision does engage Article 8. There are both, as Scott notes, negative and positive obligations of the state arising under Article 8 in the context of abortion: negative obligation being ‘non-interference with’ and positive obligations being ‘respect for’ private life.

In this paper, we are not making an argument about whether people have the right to abortion but rather that the government unnecessarily delaying access to lawful treatment, ultimately meaning that a person has to incur more risk in that treatment, or potentially entirely denying access to lawful treatment altogether, is a substantive interference with the right to private life. Thus, we are concerned with the positive obligations of the state in relation to TEMA during COVID-19: asking whether legal arrangements for care are sufficient to protect a person’s interest in physical and psychological integrity. The ECtHR has held that ‘once a legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.’ The ‘key legal point,’ Scott stresses, ‘as regards the UK’s positive obligations, is that once a state has said that abortion is lawful on certain grounds, it must protect or guarantee the availability of abortion on those grounds, since its margin of appreciation [as recognised by the ECtHR] in relation to abortion will have been significantly reduced.’ In RR v Poland, a case concerning access to prenatal screening for the purposes of assisting in an abortion decision, this point was pivotal; the ECtHR’s decision was clear that because Polish law did allow for abortion in cases of fetal malformation ‘there must be an adequate legal and procedural framework to allow the relevant, full and reliable information on the foetus’s health be made available to the pregnant woman.’ This ruling effectively stipulates that signatory states are under a positive obligation to organize health services in such a way that ensures that individuals are able to access the abortion services to which they are legally entitled.

Before the UK government, and devolved governments’, changes to the law on March 30 and 31, 2020, there was clearly a substantive failure by the state to meet their obligations under Article 8 of the ECHR. Provision of EMA, where two doctors agree, clearly satisfies the first criterion for lawful abortion provision as the risks associated with EMA within the time scale advocated are far fewer than those associated with pregnancy and childbirth. The argument regarding the state’s positive obligations related to abortion we have here advanced, we believe, stands even once lockdown has been relaxed, and the provisions of the Coronavirus Act 2020 cease to have effect. It is likely to be the case that social distancing may limit individuals’ abilities to access clinics for some undefined time into the future and social and geographical barriers to care that existed in GB prior to the pandemic also mean that the organization of health services in the prevention of TEMA is a failure to adhere to human rights standards. It is also the case that pregnant people in Northern Ireland continue to have their right to private life denigrated by the state.

The failure to facilitate privacy rights that was evident in March 2020 in GB was unlikely to have been justified by one of the derogations contained in Article 8 (2) of the ECHR. The unlawfulness of TEMA certainly cannot be justified on the grounds that it is necessary for the protection of health, especially in the COVID-19 context as remote care is clearly better for the health of a person needing an abortion themselves, their families, staff at abortion clinics, and others. The UK is entitled, under Article 15 of the ECHR, in times of ‘exceptional... crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed,’ to derogate from their obligation to secure rights to private life including positive obligations. However, states are only able to do so if they comply with procedural requirements to invoke Article 15 (which the UK has not yet) and that such a derogation is required by the emergency at hand. We have submitted that it is in fact a necessity of the situation that people be afforded access to TEMA.

We also believe that there may also be a compelling case that the denial of TEMA care for the duration of March 2020 (and that continues in Northern Ireland) might constitute inhuman or degrading treatment under Article 3 of the ECHR. Inhuman treatment is potentially premeditated treatment of long duration, causing serious physical and mental suffering or acute psychiatric distress. Degrading treatment incites feelings of fear, anguish, and inferiority, which is humiliating and breaks physical or moral resistance. There is a substantial body of case law establishing that the state owes a responsibility to provide appropriate healthcare to prisoners because of their lack of liberty and total reliance on the state for access to care. Given the circumstances and restrictions on individual liberty currently in place in GB (and were at the time that TEMA remained unlawful), and parts of the US, the substantial impact on liberty is in some ways similar; being effectively denied healthcare during social distancing and isolation measures is somewhat comparable. Importantly, the state is not being asked to facilitate this care directly, merely to remove restrictions that prevent abortion providers from providing basic care.

In order to demonstrate that denial of medical care amounts to inhuman or degrading treatment a minimum threshold of severity must be met. The ECtHR holds that severity ‘depends on all the circumstances of the case, such as the nature and context of the treatment, the manner of its execution, its duration, its physical or mental effects, and in some instances, the sex, age and state of health of the victim.’ In the context of abortion, the ECtHR has thus far been largely unwilling to accept arguments pertaining to inhuman and degrading treatment because they were not thought to meet the threshold of severity necessary to demonstrate treatment is bad enough. In A, B and C v Ireland, the applicants argued that ‘overcoming taboos to seek an abortion abroad and aftercare at home or maintaining the pregnancy in their situations—were degrading and a deliberate affront to their dignity’ and that the Irish government was under a positive obligation to protect them from this. The court noted that travelling abroad to access abortion was ‘psychologically and physically arduous’ for all in such a situation and may even been financially burdensome for some. However, they reiterated the threshold of severity and concluded only that ‘the facts alleged do not disclose a level of severity failing within the scope of Article 3.’ Notably the ECtHR did not provide substantive reasons as to why. In Tysiąc v Poland the claimant argued that her Article 3 rights were violated by ‘the failure of the state to make a legal abortion possible in circumstances which threatened her health, and to put in place the procedural mechanism necessary to have her right realised, meant that the applicant was forced to continue with a pregnancy for 6 months knowing that she would be nearly blind by the time she gave birth.’ While the court found that her anguish and distress ‘could not be overstated’, they found no breach of Article 3 considering instead that the complaints were ‘more appropriately examined under Article 8.’ However, again no substantive reasons were provided as to why the treatment of the claimant did not meet the threshold of severity in Article 3.

There is one notable exception to the ECtHR’s pattern of denying that Article 3 is engaged without substantive consideration of the reasons why. In RR v Poland, thorough examination was given to the claimant’s case that her Article 3 rights were violated where she was denied access to abortion. The claimant argued that her Article 3 rights were engaged by an intentional failure by medical professionals to provide necessary medical treatment, here being timely prenatal examination that would have allowed her to find out necessary information about any fetal abnormality in time to make a decision about abortion within the time limits dictated by Polish law. In this case the ECtHR conducted a thorough examination of the circumstances of the case and determined that the claimant had in fact been subjected to degrading treatment, because of her situation being one of ‘great vulnerability,’ resulting in ‘weeks of painful uncertainty,’ and ‘acute anguish through having to think about how she and her family would be able to ensure the child’s welfare.’ They noted in particular that she was ‘so shabbily treated by doctors dealing with her case’ and that ‘no regard was had for the temporal aspect of the applicant’s predicament.’ This was found to be particularly concerning because the Polish government did not attempt to argue that ‘at the material time genetic testing as such was unavailable for lack of equipment, medical expertise or funding.’

The legal barriers on TEMA that remained in place for some time after lockdown was instigated in GB (and that remain in Northern Ireland), despite there being a clear safety and justice need to provide care during this time and onwards were, we submit, inhuman treatment for the purposes of the ECHR. The denial of treatment will continue to impact pregnant people for a long time, and the physical symptoms of early pregnancy combined with the mental health impacts of unwanted pregnancy, and stress in trying to obtain an abortion, will cause many people substantial suffering. These factors, we believe, can be likened to those experienced in RR. A failure to allow TEMA during a pandemic causes a significant delay to care without due regard to the time sensitivity involved in the provision of EMA. Moreover, it is notable that as a decision on the temporary lawfulness of TEMA was delayed, providers were both readying and willing to provide it; thus the inaction by the UK and devolved governments can be likened to the inaction of the doctors in RR. During the current emergency, pregnant and potentially pregnant people are experiencing real uncertainty in a multitude of ways in various aspects of their lives. Widespread economic uncertainty is a particular concern for many, who worry that it may affect their livelihood. This may be related to, or exacerbate stress experienced in relation to, concerns about the ability to afford or care for a child during the current conditions or in the post-COVID-19 world. Concerns that a pregnant person might have about a potential future child’s welfare and the care they can provide were a pertinent part of the decision in RR. Some of these factors we have outlined might remain pertinent after lockdown restrictions and social distancing restrictions are lifted, and in England and Wales, TEMA automatically becomes unlawful once more.

Although TEMA is now temporarily lawful in England and Wales, and lawful in Scotland (though with an indication that it is temporary), it is still notable that the prohibition of TEMA that remained after lockdown measures were introduced in March 2020 is still causing people in need of access to care substantial fear and feelings of degradation. This is because there are still some potential service users who are unsure of whether they are able to access abortion lawfully because of the government U-turns on this issue and misreporting about the legalities of TEMA in mainstream media. Article 15 does not allow states to derogate from the prohibition of torture, inhuman, and degrading treatment.

B. United States

As noted, the ratio from the US Supreme Court in Casey stipulates explicitly that ‘[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.’ The Supreme Court has been willing to accept as constitutional several restrictions passed on abortion access, including those that specifically have the effect of delaying access to treatment. In 2016, in Whole Women’s Health v Hellerstedt, the court rearticulated the ‘undue burden’ standard and was explicit that the standard requires a two-stage test to determine the constitutionality of a state legislative provision restricting abortion. First, there must be consideration of whether the law has the effect of placing an undue burden on pregnant people in accessing abortion when considered against the potential benefits. Second, the legitimacy of the interest a state is asserting in creating the law must be considered. This second point—the consideration of the state’s motivations for acting ‘in addition to’ whether there is an undue burden for access—constitutes significant movement on the articulation of the ‘undue burden’ standard. On this, Fetrow notes that there are limited interests that the state can assert in placing burdens on access before viability—health of the pregnant person, integrity of the medical profession, and the promotion of fetal life. We consider in what follows whether TEMA bans constitute an undue burden on access, and the legitimacy of state motivations in banning TEMA.

When applying the first limb of this test, the Supreme Court has emphasized, in both Gonzales and Hellerstedt, the weight that must be afforded to medical evidence in considering the potential benefits and burdens of legislation placing obstacles to access. TEMA bans (or requirements for physical examination) have been upheld by State Courts of Appeal, in Arizona on the grounds that in-person care was more effective, and in Arkansas on the grounds that the ban was not an ‘undue burden’ for a significant number of people. We submit that neither of these grounds justifying such bans can apply in the current emergency, as we have demonstrated that in-person care is unlikely to be as safe for patients or providers and that these restrictions are likely to prevent a significant number of people from accessing care or from accessing timely and safe care. It is evident that legal measures banning or limiting TEMA are having an unprecedented impact on access—far greater than those of concern to the courts in these two cases—during this pandemic and thus we believe they are unconstitutional by virtue of the test stipulated by the US Supreme Court. In Hellerstedt, the US Supreme Court found that other requirements in Texas abortion law, requiring doctors providing abortions to have admitting privileges to local hospitals and for clinics to be surgical centers, constituted an undue burden and thus were unconstitutional. The justices based their decision on the fact that the measures resulted in a significant drop in the availability of services (specifically citing fewer resources and increased crowding). The Supreme Court focused on the fact that there was limited evidence that doctors needed admitting privileges because the risk of complications in abortion care is low. This also applies in the context of TEMA bans—the medical evidence overwhelmingly supports TEMA, especially amid a pandemic. Furthermore, the concerns about crowding in clinics, limited clinics, and travelling distances are also even more applicable, and thus, during the pandemic (and potentially beyond), TEMA bans should be understood as an undue burden on access.

Second, we must consider the motivations of states in banning TEMA. Roe v Wade explicitly allows states to require that a doctor be involved in supervising or performing an abortion. The motivation behind TEMA bans is purported by states to be the preservation of pregnant people’s health, because it is argued that in-person care is safer. This argument has not been tested in the Supreme Court specifically on the issue of TEMA; however in Hellerstedt, in relation to Texas’s attempt to require that all abortion clinics be surgical centers, it was held that the state cannot require that an abortion take place in a particular place if it cannot be established that so doing would be of benefit to pregnant people’s health. We find it hard to understand how it could be articulated that a requirement that a pregnant person attend a clinic, as opposed to accessing care remotely, can be better for their health in the midst of a pandemic. The Iowa Supreme Court found that legislative intervention into TEMA services was unconstitutional because there was a lack of medical support for the measure. Justice Wiggins emphasized that the undue burden test is context-specific. We have demonstrated throughout this paper that there is overwhelming evidence that TEMA is safe and effective and the involvement of a doctor in person is not necessary to ensure this safe and effective care. Insofar as the involvement of a doctor is deemed necessary, remote consultation is sufficient to ensure appropriate medical supervision proportionate to the aim of ensuring people’s health without causing an undue burden on access.

In Texas, the Center for Reproductive Rights (CRR) and others recently (March 24, 2020) filed a lawsuit challenging the Texas Attorney General’s interpretation of the executive order that abortion is not essential healthcare on the grounds that it is unconstitutional. In the District Court on March 30, 2020, the state’s attempt to close abortion clinics was blocked by Judge Yeakel on the grounds that it amounted to an unconstitutional pre-viability abortion ban. This decision, however, was overturned by the fifth circuit with Judge Duncan concluding that ‘all constitutional rights may be reasonably restricted to combat a public health emergency.’ Elisabeth Smith at the CRR maintains that ‘there is no pandemic exception to constitutional rights’ including that of access to abortion before viability. On April 11, 2020, Planned Parenthood, the CRR, and others filed an emergency application to the Supreme Court on the matter. This led many to speculate that this suit might be the opportunity the newly conservative Supreme Court had been seeking to review Roe v Wade. Since this paper was first submitted, the Texas governor has relaxed the restrictions that were an attempt to close abortion clinics, allowing them to remain open provided that they do not request any personal protective equipment be provided by public authorities.

In April 2020, the Supreme Court overturned a long-standing precedent declaring that state juries must be unanimous in order to convict a criminal defendant. In his concurring opinion, Justice Kavanaugh advances his account of precedent binding the Supreme Court in which he stresses that ‘all justices now on the Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions… some of the Court’s most notable and consequential decisions have entailed overruling precedent.’ In making this remark he explicitly references Roe v Wade and Casey in a footnote among other significant precedents relating to liberal rights. We have provided a persuasive case that the unavailability of TEMA during COVID-19 is unconstitutional; however we acknowledge that with the political realities of the present Supreme Court that the recognition of abortion rights that we are advocating for may be difficult to secure.

VII. CONCLUSION

The COVID-19 pandemic is having an unprecedented impact on access to healthcare. There are currently substantial geographical, physical, and legal barriers that are making it increasingly difficult for people in need of abortion care to access essential services. This is a direct result of social distancing measures, a reduction in the availability of transport to clinics, increasing caring responsibilities for family and children, and the need, in some cases, to self-isolate. In GB, the law that had initially prevented healthcare providers from establishing TEMA services during the current emergency has now been relaxed. There are a significant number of states in the US that have either directly banned TEMA or have passed law, much like GB (temporary measures aside), which prohibits it in practice. In this paper, we argued that the restrictions in GB before the temporary change in the law were a violation of the UK government’s positive obligation to respect the right to private life and potentially a failure to ensure freedom from degrading treatment, contained in the ECHR. The failure of some states in the US to permit TEMA is, we argue, a violation of the constitutional right to privacy (interpreted as encompassing a right to abortion access).

The present emergency circumstances do mean that governments are required to take extraordinary measures to protect public health; however interference with individuals’ access to essential and basic care is unjustified if it is not necessary in the circumstances. TEMA is necessary during COVID-19 to address the real access barriers to care that are increasingly evident. Moreover, allowing service providers to continue these services does no damage to the effort to curtail this pandemic; in fact, ensuring these services are available remotely is safer to prevent people travelling—exposing themselves and others to infection risk—to access care, and to prevent healthcare workers being unnecessarily exposed.

The barriers to care we have outlined are a matter of reproductive justice. While removing the legal barriers to TEMA does not automatically ensure access to care is guaranteed for lots of vulnerable people, it is a step in the right direction that we implore legislatures to address immediately.