Surveying State Executive Orders Impacting Reproductive Health During the COVID-19 Pandemic

Note: All counts updated as of July 15, 2020.

As the country’s response to the coronavirus pandemic ramped up in March 2020, governors across the United States issued executive orders to shut down businesses and activities in their states in hopes of slowing the virus’s spread and preserving essential hospital capacity. Nearly half of states addressed abortion and other reproductive health services in their stay-at-home orders or essential procedures orders, with policies ranging from supportive to harmful to sexual and reproductive health and rights.

By mid-April, governors in 23 states had moved to protect timely access to reproductive health services, yet 11 antiabortion governors seized the opportunity to single out and unconstitutionally limit abortion by declaring it "nonessential" health care. These restrictions were swiftly condemned by the American Medical Association, the American College of Obstetricians and Gynecologists (ACOG) and other medical professional organizations. It was another sign that antiabortion lawmakers will do anything to ban abortion, including exploiting a global pandemic.

The first few months of the pandemic offer a roadmap for state-level policymakers and advocates anticipating continued coronavirus transmission and a possible second wave of infections later in the year. Early responses show the necessity of listening to patients and medical experts in creating supportive policies to protect access to sexual and reproductive health care—and the dangers that could lie ahead in states with more hostile policies.

Exploiting the Crisis to Ban Abortion

From the outset, antiabortion politicians seized upon a real crisis—a national shortage of personal protective equipment (PPE) during a dangerous contagious disease outbreak—to manufacture justifications for their abortion bans. However, their arguments that abortion procedures chip away at critical PPE supplies and hospital capacity are unfounded. Medication abortion requires minimal or no PPE, and procedural abortion (often referred to as "surgical") generally utilizes minimal PPE. Further, very few abortions take place in hospital settings—only 3% in 2017. The time-sensitive nature of abortion also weighs against allowing any delay when following elective procedures guidelines from the Centers for Medicare and Medicaid Services, which factor in the urgency of a service.

Regardless, providers and patients alike found themselves in limbo, pressing state officials for clarity on whether executive orders limiting "nonessential" or "elective" services would apply to abortion. By mid-April, it was clear that almost a quarter of states had attempted to ban at least some abortions during the pandemic (see table). Most of these states are rated by Guttmacher as hostile or very hostile to abortion rights based on the number of restrictive abortion policies they have in place. 

In nearly all of the states attempting to ban abortion during the initial phase of the pandemic, abortion providers petitioned for and quickly received judicial interventions that halted these bans from taking effect. However, the back-and-forth action in court created chaos for abortion patients, particularly in Texas and Arkansas—two states where bans were blocked and then reinstated by sequential court decisions. For example, when clinics were forced to stop providing services in Texas, the average one-way driving distance to an abortion clinic increased from 12 miles to 243 miles, an additional barrier that potentially prevented some people from obtaining an abortion altogether. As of July 15, all of the executive orders banning abortion had been blocked by courts or had expired.

Protecting Sexual and Reproductive Health

At the same time as some states were banning abortion, other states took action to protect access to a range of reproductive health services during the pandemic. By mid-April, 23 states had issued orders that protected some set of reproductive health services (see table). Some states specifically named abortion as essential (either in their orders or in strong administration statements), ensuring that services could continue even during a surge in coronavirus cases. However, the language used in many states’ orders to protect other reproductive health services was open to interpretation—for example, "reproductive health," "obstetrics-gynecology" or "pregnancy-related visits and procedures"—allowing providers to make decisions based on their patients’ best interests.

Policymakers also turned their attention to support during childbirth after reports that some hospitals’ policies forced individuals to give birth alone. As a result, several states required hospitals to allow each patient to have at least one support person in the delivery room during childbirth; at the urging of a state-appointed COVID-19 maternity task force, New York also included doulas as essential delivery room support.

In acknowledging the need for a broad range of reproductive health services—abortion, family planning, prenatal and postpartum care, and midwife and doula services—these state policymakers showed support for reproductive health and rights in stark contrast to other states’ antiabortion actions.

Considering the Impact

Sexual and reproductive health needs do not stop during a pandemic, and it is imperative that policymakers protect access to these essential services as recommended in the World Health Organization’s guidelines for continued care during the COVID-19 crisis.

The consequences of delaying or forgoing reproductive health care can be disastrous. Guttmacher Institute researchers estimate that even a 10% decline in pregnancy care could result in 28,000 more maternal deaths worldwide. In the United States, the risks from a reduction in such care would likely fall disproportionately on Black people, Indigenous people and other people of color, who are more likely than their White peers to experience preventable maternal mortality and complications as a result of racism-related weathering stressors and provider bias.

ACOG and other medical associations have stated that delays of weeks or even days caused by COVID-19–related restrictions could make abortion services inaccessible, noting that the "consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being." Initial survey research found that more women in the United States want to delay childbearing as a result of the pandemic, and that COVID-19–related concerns and closures have kept some people from getting the reproductive health care they need.

To protect bodily autonomy and ensure quality health care, policymakers should look to the evidence. Prenatal and postpartum care is key to preventing complications during and after pregnancy, and alternative approaches can be used to provide care during COVID-19 outbreaks. Doulas and midwives can help improve birth outcomes, especially for Black women, and the support of a birth professional or a partner, or ideally both, is critical during labor and delivery. Contraception has numerous health, social and economic benefits, and when people can control their childbearing—including by having an abortion—they are more likely to achieve their life plans and attain security for themselves and their families.

Between the health and economic risks created by the pandemic, people will continue to face significant obstacles to getting reproductive and sexual health care. Regressive policies should not be among those obstacles. State policymakers must deem comprehensive reproductive health services, from contraception to postpartum care, essential at all times and prohibit restrictions and delays during public health crises.

Overview of Orders

• 11 states attempted to prohibit all or some abortions, except in cases of a medical emergency that severely threatens a patient’s life or physical health. 
  • In 6 states, this ban applied only to procedural (also known as surgical) abortion.
• 23 states protected some set of reproductive health services.
  • 12 states protected abortion services.
  • 20 states protected reproductive health services other than abortion, such as family planning, obstetrics and gynecology, and midwifery and doula services.
  • 4 states required hospitals to allow patients to have a support person, such as a partner or doula, present during childbirth. In 2 of those states, patients must be able to have an additional support person present.  

KEY
⬤ In effect.
X Expired; no longer in effect.
q Permanently blocked by court order. 
* Permitted abortion only in medical emergencies severely threatening a patient's life or physical health.