During the early months of the COVID-19 pandemic, 12 states banned or restricted abortion access under elective-procedure restrictions. The rationale was preserving hospital capacity and personal protective equipment (PPE); however, abortions commonly take place in clinics and use less PPE than childbirth. This paper investigates the discursive construction of abortions, the people who get them, and the fetuses in this legislation. The authors analyzed 13 antiabortion documents using an iterative process of thematic coding and memo writing. Twenty-three percent of the legislation listed abortion as banned, whereas the remaining laws implied abortion within the terms “elective” or “nonessential.” Legislation used common antiabortion tactics, such as the trivialization of abortion, risk discourses, and constructions of motherhood and fetal personhood. Discourses delegitimized abortion providers and used quasi-medical justifications for banning abortion. Finally, legislation constructed abortion clinics as sites of contagion and waste and consequently as risks to public health. The results highlight the vulnerability of abortion and the connection between abortion policy and other conservative policies, and they gesture toward a strategic attempt to ban abortion federally. These findings have several implications for a post-Roe United States and for stakeholders wishing to increase abortion access.
The first half of 2020 was a chaotic time filled with confusion, anxiety, and rapid change that set the tone for much of the ensuing year. As the COVID-19 virus spread across continents and arrived in the United States in February, mass panic combined with national leadership unprepared for a pandemic of this scale fostered the spread of misinformation surrounding health and safety (Taylor 2021). Within this context, US state legislatures implemented measures to limit public interaction to stop the spread of the virus (Taylor 2021). Many states restricted access to elective medical procedures that could be delayed without risking the patient's health and safety (NWLC 2021). In 12 states, elective-procedure restrictions were applied to abortions, supported by arguments that abortions take up unnecessary capacity in hospitals and use up valuable personal protective equipment (PPE) (NWLC 2021). This rationale was advanced even though nearly all abortions take place in abortion clinics, not hospitals, and despite the fact that later abortions and childbirth use more PPE than the much more common first-trimester abortion (Bayefsky, Bartz, and Watson 2020; Jones, Witwer, and Jerman 2019). Implementation of these restrictions during the context of social upheaval may offer valuable insights into how legislation is manipulated in times of uncertainty to enact socially regressive policies.
A burgeoning literature examines COVID-era abortion bans and documents several negative impacts of the bans, especially related to travel time, wait time, cost, safety, and the disproportionate impact on young, Black, and Latinx pregnant people (Dahl et al. 2021; Fang and Perler 2021; Hill et al. 2021; Roberts et al. 2021). Several scholars have pointed toward increased accessibility of telehealth and medication abortion as potential work-arounds for these restrictions (Awowole and Ijarotimi 2022; Chong et al. 2021; Karlin et al. 2021). However, the literature also documents increasing legislative conservatism surrounding abortion access, suggesting that such work-arounds may be temporary (Harvard Law Review 2021).
A separate but related body of research demonstrates the importance of language in antiabortion legislation and other reproductive discourses based on their power to produce intersectional reproductive subjects (Carter et al. 2022; Leslie 2010; Suk 2010), define reproductive processes (Carter and McCutcheon 2013; Halfmann 2012), and influence future legislation (Ferree et al. 2002). Earlier analyses of antiabortion legislation illustrate that pregnant people are framed as desperate women who lack knowledge about pregnancy and abortion and who become psychologically harmed by predatory abortion providers and the abortion process (Leslie 2010; Suk 2010; Weitz and Kimport 2015). However, there is a gap in knowledge assessing how abortion bans were implemented under the auspices of the pandemic, particularly in relation to the logics they deployed, previous frames they build on, and the discursive impact of the laws. To address these issues, we analyzed how abortion and the people it involves (e.g., abortion seekers and providers) are constructed in COVID-19 antiabortion laws. We contextualize our findings within the broader antiabortion movement and the COVID-19 pandemic. Examining how political actors used discursive power during a time of uncertainty has implications for understanding the US Supreme Court's Dobbs v. Jackson Women's Health Organization decision and the potential future of antiabortion legislation. Therefore, this article advances the literature on the trajectory of antiabortion legislation in the United States and the use of discursive power in a context of heightened social vulnerability.
Historical Context of COVID-19 Antiabortion Legislation
Restrictions on abortion access in the spring of 2020 took place within a broader context of antiabortion restrictions. The 1973 Roe v. Wade1 decision protected a person's constitutional right to freedom from state interference in the pursuit of abortion and created the trimester framework for pregnancy, allowing unrestricted abortion access during the first trimester, moderate restrictions during the second trimester, and the possibility of total abortion bans after fetal viability. However, federal and state governing bodies quickly limited Roe's protections.
There are two broad approaches to antiabortion legislation. First, some policies target abortion facilities to make abortions more difficult to obtain. Planned Parenthood v. Casey2 (1992) rejected the trimester framework Roe established, arguing that restrictions that impose an “undue burden” on a person seeking abortion are unconstitutional. This decision allowed restrictions on abortion access during any portion of a pregnancy (Benshoof 1993). It also allowed legislation to target providers; consequently, targeted regulation of abortion provider (TRAP) laws emerged during the early part of the 21st century, methodically closing abortion clinics by imposing unnecessary regulations on providers that waste clinic time and funding (Austin and Harper 2019; Young 2014). Whole Woman's Health v. Hellerstedt ruled against certain TRAP laws in Texas in 2017; however, the decision was limited in scope and may have reinforced notions of fetal personhood and abortion as dangerous (Goodwin 2017; Morrison 2016).
The second approach involves policies that target pregnant people. The Hyde Amendment (1976) restricted abortion access by blocking use of federal Medicaid funding for abortion (Engstrom 2016). The federal government partners with states to fund Medicaid and requires that states meet certain federal coverage requirements, but states have a degree of flexibility in deciding what Medicaid will cover. Thus, Hyde allowed states to choose whether to use their own Medicaid funds to insure abortions, except in cases of rape, incest, or danger to the pregnant person's health (Engstrom 2016). Thirty-three states had enacted Hyde restrictions as of October 2022, disproportionately affecting pregnant people who are low-income, Black, Hispanic, Pacific Islander, or Indigenous on reservations (Carson 2021; Lawrence 2000; Salganicoff, Sobel, and Ramaswamy 2021).
Gestational limit policies restrict abortions to a specific period during pregnancy. For example, “fetal heartbeat” laws ban abortion at roughly six weeks of gestation and contribute to efforts to humanize fetuses through mandatory ultrasounds or heartbeat testing (Guttmacher Institute 2021). These bans attempt to anthropomorphize embryonic and fetal tissue into a living, feeling being that needs state protection (Evans and Narasimhan 2020), and they effectively ban most abortions because many people are unaware they are pregnant by the six-week mark (Branum and Arens 2017). Certain gestational limit “heartbeat” policies also strategically legitimate cardiac activity as an indicator of life, creating fetuses as a legal class to be “protected” by expanding states' rights (Evans and Narasimhan 2020). As such, gestational limit restrictions accomplish multiple conservative goals. Mississippi's 15-week gestational limit policy led to Dobbs. On June 24, 2022, the Supreme Court overturned all federal abortion precedents, including Roe, allowing states to restrict abortion at their discretion (ACLU 2022). As of March 2023, 13 states have implemented total abortion bans (NYT 2023). Abortion restrictions enacted in response to the COVID-19 pandemic took place within this broader legislative and social context.
Discursive Constructions of Abortion, Providers, and Abortion Seekers
Existing literature identifies consistent patterns in how abortion, abortion providers, and abortion seekers are constructed in US policies and legislation. Abortion is often divorced from standard medical care, treated as a subsection of medicine that warrants increased regulation and depicting abortion providers as predatory, illegitimate, and substandard (Harris et al. 2011, 2013; Weitz and Kimport 2015). These discourses stigmatize abortion as an unnecessary and deviant procedure that has long-term negative reproductive and mental health consequences (Gelman et al. 2017; Smith et al. 2018). Antiabortion legislation further stigmatizes abortion by delegitimizing abortion providers while using quasi-medical terminology as misinformation to legitimize antiabortion goals (Evans and Narasimhan 2020; Harris et al. 2011, 2013; Weitz and Kimport 2015).
People who get abortions are constructed in US legislation and social policy in cisgendered terms as “women” (Abrams 2013; Bourgeois 2014; Weitz and Kimport 2015). This terminology essentializes gender by attaching the social category of gender (e.g., woman) to reproductive physiology and excludes trans* and gender-nonconforming people. Because not all people who can get pregnant identify as women, it is important to discuss abortion in gender-neutral terms. Recent awareness of gender identity has spurred greater use of gender-neutral terminology in academic discussions of reproductive health (Ingraham, Wingo, and Roberts 2018), but such terminology is not reflected in legislation. Abortion legislation also reinforces gender stereotypes by portraying abortion seekers as passive recipients of abortion procedures who lack knowledge about pregnancy and abortion, and who therefore need legislative protection from predatory abortion providers (Abrams 2013; Weitz and Kimport 2015).
Relatedly, the connection between womanhood and motherhood is common in legislation that restricts abortion access (Abrams 2013) and in other antiabortion discourses, but this association differs depending on race. Pregnant people become legitimate “mothers” in antiabortion discourses when they fit white, heterosexual standards of femininity (Leask 2013). However, getting an abortion destabilizes this construction. Antiabortion discourses delegitimate white people who get abortions as misguided victims who are harmed by abortion and abortion providers (Baird and Millar 2020; Bourgeois 2014; Cannold 2002; Doan and Schwarz 2020; Leslie 2010; Roberti 2021). White people who get abortions maintain legitimacy within antiabortion discourses if the fetus is medically identified as having disabilities (McKinney 2019). Conversely, antiabortion discourses construct pregnant people of color who get abortions as a danger to their fetus and their community—the perpetrator, rather than the victim, of a crime (Doan and Schwarz 2020). For example, antiabortion billboard campaigns in Atlanta and Cincinnati misrepresented Black people who get abortions as victimized women who are intentionally committing genocide against their community (Luna 2018; Norwood 2021). These racialized constructions uphold white supremacist and patriarchal ideologies, undermine reproductive justice initiatives, negate pregnant people's autonomy, and shift policy conversations away from pregnant people's needs (Baird and Millar 2020).
COVID-19 abortion restrictions are situated in the context of evolving abortion restrictions in the 50 years following Roe. Antiabortion discourses in legislation over the past five decades have both shaped and reflected legal and public perceptions of abortions and the people who get and provide them. These constructions have led to the destruction of one of the most important legal precedents in recent history—and one thought to be invulnerable. It is impossible to know exactly what a post-Roe United States will look like. However, COVID-era abortion bans could be considered transitional legislation that synthesized existing antiabortion discourses to produce a new kind of barrier to abortion access in a manner akin to Dobbs. Thus, examining COVID-era abortion bans may provide insight into that post-Roe future.
This study analyzed the ways abortion was constructed in state-level antiabortion restrictions enacted in spring 2020 in connection with the COVID-19 pandemic. Data consisted of legislation that attempted to restrict access to abortion as an “elective” procedure, as outlined in an issue brief by the National Women's Law Center (NWLC 2021) and in corresponding press releases and news articles. Although other states outside our sample passed antiabortion legislation during the pandemic, this sample is distinct because these pieces of legislation purportedly restricted abortion to manage the spread of COVID-19. Legislation was collected from state government websites and cross-referenced with NWLC's brief and news reports to ensure accuracy. The sample of legislation consisted of 13 documents from 12 states. Among this sample, seven documents contained governor executive orders, governor health mandates, or governor proclamations of state of emergency; five were rules or orders from the state Department of Health; and one was a bill passed by the state legislature but vetoed by the governor (table 1).
Data were analyzed using an iterative process consisting of several rounds of thematic coding and ongoing analysis and collaboration among authors. Analysis centered the research questions, focusing on how abortion and the people involved (e.g., abortion seekers and providers) were constructed in the data. First-cycle coding consisted of holistic in vivo coding, lumping large chunks of text together to identify general themes. Themes were then compared, contrasted, grouped together, and contextualized within the broader sociohistorical context to reveal the findings discussed here. Ongoing memo writing ensured researcher reflexivity and validity of themes and assisted in identifying connections between themes. Second-cycle coding focused on clarifying key themes and organizing codes into more general themes. Both authors engaged in coding, separately and then together, comparing notes and working collaboratively to incorporate each author's insights to build the analysis rather than seeking uniformity in coding (Mann and Grzanka 2018). Authors attended to the overt portrayals of abortion and people involved, covert or stereotypical messages implied in the data, and what was missing or not included in the data.
Twelve states banned abortion during the first months of the pandemic for periods of time ranging from 6 days to 42 days, with most bans being in effect for approximately 30 days (table 2). These restrictions followed the approach of Casey by targeting abortion providers, exacerbating the difficult situation providers faced during the height of the pandemic (Joffe and Schroeder 2021). Abortion providers experienced the same issues as other health care providers, including extended wait times before procedures, workforce disruptions, changes to standard work and clinic practices, and financial strain (Fang, Castaño, and Davis 2020; Roberts, Schroeder, and Joffe 2020). Clinics faced additional pressure from US abortion exceptionalism, including abortion bans that forced several clinics to close, regulations on medication abortion, limits on telemedicine, and increased protester presence (Joffe and Schroeder 2021). State legislatures placed additional strains on clinics despite lack of evidence that abortion clinics posed a higher risk for COVID transmission than other health care settings. The justification that abortions are elective and therefore use up PPE and hospital capacity lacks validity. Abortions use less PPE and hospital space than childbirth and later abortion (Bayefsky, Bartz, and Watson 2020; Jones, Lindberg, and Witwer 2020). Additionally, state legislatures used the term “elective” inaccurately, disregarding clinical definitions that place procedural abortion at an intermediate level of acuity (Farkas et al. 2021) and instead using the term to stigmatize abortion (Bayefsky, Bartz, and Watson 2020; Smith et al. 2018).
The legislation fit into two main categories regarding abortion: abortion-specific and not abortion-specific. Abortion-specific legislation in Alaska, Arkansas, and Kentucky listed abortion as a banned procedure. Among laws in this category, only Kentucky's legislation focused solely on abortion; the others focused broadly on health care procedures. Indeed, Kentucky's legislation is unique in that it does not mention COVID-19, instead attempting to use the chaos surrounding the early days of the pandemic to pass antiabortion legislation. The other 10 documents were not abortion-specific, referring to “elective” or “nonessential” procedures without listing abortion. Seven of these documents focused solely on health care visits and procedures, whereas three limited social contact more generally.
Regarding legislation that was not abortion-specific, the state governor or attorney general either publicly announced that the laws applied to abortion (Louisiana, Oklahoma, Texas, West Virginia), corresponded directly with abortion providers (Alabama, Arkansas, Ohio), or clarified the impact on abortion when asked directly by the press (Iowa, Mississippi, Tennessee). These announcements were often confusing, abrupt, and unclear. For example, West Virginia Attorney General Patrick Morrisey simply stated that the ban applied to “abortion facilities as well” and refused to clarify when asked by the press (McElhinny 2020). Statements sometimes utilized common antiabortion discourses. For example, Governor Stitt's newsroom (2020) in Oklahoma clarified in a press release that “any type of abortion services . . . which are not a medical emergency . . . or otherwise necessary to prevent serious health risks to the unborn child's mother are included in that Executive Order” (Office of Governor J. Kevin Stitt 2020). Here, the governor's office perpetuated notions that abortions are not immediately necessary unless they endanger the pregnant person, and it used mother/child language, which as discussed below, constructs a false relationship between the pregnant person and the fetus and reifies ideas of fetal personhood. Without these clarifications, the laws' application to abortion was obscured even though each piece of legislation in practice banned abortion for a specific period (Hermer 2021). The legislation collectively drew on common antiabortion discourses and quasi-medical terminology to construct abortion as a risk to public health. Each theme is discussed below.
Antiabortion Discourses in “Neutral” Legislation
Although much of the legislation examined here was not explicitly antiabortion, it drew from common antiabortion discourses to frame abortion, pregnant people, and fetuses. The three major themes were trivialization of abortion, conflation of pregnant people with mothers, and personification of fetuses. Use of these common antiabortion tactics is significant because most bans were ostensibly abortion neutral.
Trivialization of abortion entails constructing abortion as unimportant or insignificant (Stapleton 2017). Trivialization was used in COVID-19 legislation to justify banning abortion and was achieved through various tactics. Legislation that was not abortion-specific combined abortion with trivial or recreational activities. Alabama's order suspended “certain public gatherings,” including closing “nonessential businesses” such as nightclubs, bingo halls, and tanning salons as well as abortion clinics. Legislation focused on restricting health care trivialized abortion by constructing it as unnecessary or elective in the colloquial sense. Texas's and Mississippi's legislation banned procedures that were not necessary to prevent “serious adverse medical consequences or death,” suggesting that denial of bodily autonomy and reproductive decision making are not serious adverse consequences. Alaska's legislation included procedural abortion in a long list of medical procedures deemed nonurgent, such as surgeries for benign tumors, sterilizations, and plastic surgery. Legislation further constructed abortion as nonurgent with respect to time. Three states—Arkansas, Iowa, and Ohio—banned all elective procedures except those that, among other things, would increase risk of the stage of condition progressing. Ohio even specified that time-sensitive procedures should not be delayed, including “progression of staging” and “time sensitive” as “criteria to consider” when choosing whether to delay a procedure. Delaying abortion increases the likelihood of the pregnancy progressing to a later stage, which can increase costs and required travel to obtain abortion or delay the procedure beyond the period when abortion is permitted at all. These delays made abortion care particularly inaccessible for Black, young, and low-income pregnant people while the COVID-19 abortion bans were in effect (Hill et al. 2021; Mosley et al. 2022; Upadhyay et al. 2014). However, abortion was still determined not to be time-sensitive in the legislation, contributing to its trivialization.
This trivialization of abortion, by constructing it as unnecessary and not time-sensitive, contrasted with the exceptional status of pregnancies intended to result in birth throughout the legislation. Tennessee's legislation listed “pregnancy-related visits and procedures, including labor and delivery” as “excluded from postponement.” Louisiana specified that exceptions applied when “the absence of immediate medical attention could reasonably be expected to result in . . . placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.” Exempting medical care related to pregnancies intended to result in birth illustrates the elevated status attributed to these pregnancies, further trivializing abortion.
Abortion-specific legislation included language constructing the subjecthood of pregnant people and fetuses in distinct ways that are common within antiabortion discourses. Most legislation, including all in the not-abortion-specific category, referred to subjects in gender-neutral terms, such as “employee,” “client,” “customer,” and “patients.” Even circumcisions, which could be considered “masculine” procedures, were portrayed using the gender-neutral terms “child or adult.” The only context that breached this neutrality was in reference to pregnancy and abortion. All abortion-specific legislation referred to pregnant people as “mothers.” Alaska's legislation used gender-neutral terms throughout, with the only exception mandating that providers “postpone surgical abortion procedures unless the life or physical health of the mother is endangered by continuation of the pregnancy” (emphasis added). Kentucky's and Louisiana's legislation followed the same pattern. This common antiabortion language constructs reproduction as a distinctly (cis)gendered activity, even when contrasted with other medical procedures involving reproductive organs, such as circumcision. Furthermore, it associates pregnant people with the social role of motherhood, fabricating an emotional relationship between the pregnant person and the fetus (Ntontis and Hopkins 2018).
Two out of three states with abortion-specific legislation, Kentucky and Louisiana, mentioned fetuses, and both always did so in humanized terms such as “unborn child,” “infant,” or “child.” Louisiana referred to fetuses only once and used the term “unborn child.” Kentucky repeatedly discussed fetuses in humanized terms, invoking fear that later abortions would result in killing live babies. Kentucky's legislation warned that “[w]ithout proper legal protection, newly born infants who survive attempted abortions will be denied appropriate life-saving or life-sustaining medical care and treatment and will be left to die.” Existing research shows this tactic of presenting abortion as harmful to “infants” is common in antiabortion discourses, both to invoke emotional responses against abortions and to establish fetuses as humans with legal rights (Ntontis and Hopkins 2018). Kentucky's legislation exemplified this latter point by establishing “born alive infants” as legal humans: “If an attempted abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of this Commonwealth.”
Delegitimizing Abortion Care and Quasi-Medical Justification
The legislation delegitimized abortion providers as being less medically competent than other providers, while using quasi-medical justifications for banning abortion. Legislative discourses constructed abortion providers as careless and incompetent by hyperregulating later abortions. The bans also appropriated and misused medical terminology, and incorrectly implied that abortions would use up PPE and hospital capacity.
Previous research argues that antiabortion discourses construct abortion providers as illegitimate, deviant, and substandard, requiring more scrutiny and regulation than other health care providers (Bayefsky, Bartz, and Watson 2020; Halfmann 2019; Harris et al. 2013; Ntontis 2020). This tactic was used in the Kentucky bill focusing exclusively on abortion, which constructed abortion providers as incompetent. Kentucky's legislation set abortion physicians up as specifically civilly liable for the medical care they provide, constructing abortion providers as needing added regulation and scrutiny (Bayefsky, Bartz, and Watson 2020; Halfmann 2012; Ntontis 2020). Additionally, when describing the procedures to follow should a “born alive” abortion occur in an abortion clinic, the legislation specified that abortion clinics must call 911 and transfer the newborn to a hospital. This hyperregulation constructs abortion providers as incompetent and uncaring people who commit infanticide by failing to adequately care for “live newborns” that are “born” during later abortions. This discourse delegitimized and stigmatized abortion care and providers by constructing an absurd scenario wherein a live infant is “born” during an abortion, a situation that simply does not happen because of the rarity of later abortions and the very specific circumstances under which they take place. Legislation banning this type of procedure therefore used a specious argument that delegitimized abortion providers by constructing them as less legitimately medical than other health care providers.
The legislation also appropriated and misused medical terminology to justify restricting abortion access. Quasi-medical use of actual medical terminology contributed to misinformation surrounding coronavirus and abortion. Specifically, the legislation contrasted “elective” medical care with “essential” medical care to emphasize the urgency and necessity of treatment that could not be delayed. For example, Ohio's legislation stated that “all nonessential or elective surgeries and procedures that utilized PPE should not be conducted.” “Essential” and “elective” are both medical terms with specific meanings: “essential” is used by emergency nurses as part of the process of triage and in global health settings to describe important primary care services (Johnson, Punches, and Smith 2021; Ongole et al. 2020). “Elective” means that a procedure can be scheduled in advance, but the term does not inherently imply that the procedure is unnecessary to preserve life (Farkas et al. 2021; Johns Hopkins Medicine 2022). Indeed, Farkas and colleagues (2021) offer a ranking of elective procedures based on acuity, and they place procedural abortions at an intermediate level, meaning going without one is “not life threatening but [has the] potential for near future morbidity or mortality” (Farkas et al. 2021:314). Therefore, contrasting “elective” care with “essential” care does not make sense because these terms are typically used in different contexts. The legislation thus appropriated medical terminology to construct a new, quasi-medical category of “elective or nonessential” procedures that circumvented the actual acuity of procedural abortions by combining medical definitions.
As discussed in more detail below, the legislation also justified banning abortion by pointing to the need to conserve PPE and hospital capacity. Concerns about preserving PPE and hospital capacity were warranted at the beginning of the pandemic. The World Health Organization released a statement on March 3, 2020, warning that increased need for PPE combined with mass buying and misuse would deplete resources and endanger health care workers who care for COVID-19 patients (WHO 2020). Additionally, many hospitals reached capacity as a result of increasing numbers of severe COVID-19 cases, particularly in large cities (Stone 2020). However, the concerns outlined in the laws do not correspond with abortion practices. Early abortions use much less PPE than later abortions, and the vast majority of abortions take place in abortion clinics, not in hospitals (Bayefsky, Bartz, and Watson 2020; Jones, Witwer, and Jerman 2019). Therefore, PPE conservation and hospital capacity have little connection to abortion in practice, making this a quasi-medical justification for banning abortion.
Abortion as a Risk to Public Health
Legislation justified banning abortion by constructing abortion clinics as sites of risk to public health. Existing research shows that risk discourses are common in antiabortion arguments, which typically mobilize paternalism to construct abortion as a risk to the abortion seeker's health and emotional well-being, or as a risk to the fetus (Andaya and Mishtal 2017). In contrast, the legislation we examined utilized risk discourses to portray abortion clinics as a risk to public health. Within this discourse, abortion clinics become sites of contagion and waste, and abortion seekers become burdens on a hospital system needed for COVID-19 patients.
Legislation emphasized the health risks associated with COVID-19 and pointed toward the need to protect the state's population from those risks. For example, Iowa's legislation noted the need to implement “increased hygiene practices, and other public health measures to reduce the risk of transmission of COVID-19.” Mississippi's executive order noted the exact number of confirmed COVID cases and COVID-related deaths in the state at the time, offering quantitative evidence of the dangers of coronavirus and therefore of not adhering to the governor's order. Tennessee's legislation described COVID-19 as “a continued, increasing, and serious risk to the health, safety, and welfare of Tennesseans” and emphasized that “unnecessary person-to-person contact within the healthcare community increases the risk of COVID-19 spreading to providers and patients throughout our healthcare system.” This legislation highlighted risks associated with the spread of COVID-19, implicitly positioning abortion clinics as sites of “unnecessary person-to-person contact” and contagion, providing justification for banning elective procedures, including abortion.
The construction of abortion as a risk to public health was reinforced through language constructing state citizens as a cohesive group in need of protection. West Virginia's executive order framed the restrictions by noting that the governor has the power and duty to perform functions “necessary to promote and secure the safety and protection of the civilian population.” Oklahoma's executive order argued, “As COVID-19's impact continues to evolve, it is important to take measures to protect all Oklahomans against this threat.” This language, common throughout the legislation, used in-grouping discourse to center state residents as a cohesive group in need of protection, partly from abortion-seekers carrying contagion from abortion clinics. The outlier, Kentucky, also emphasized protection from harm, but focused on protecting “born alive infants” from abortion. However, Kentucky also utilized in-group discourses, arguing that the bill should be enacted to “ensure the protection and promotion of the health and well-being of all infants born-alive in this Commonwealth.” Thus, risk discourses emphasized the need for state governments to enact legislation to reduce health risks while creating a unified in-group of people who needed protection. This in-grouping casts abortion providers and patients as an out-group who present a public health threat to state citizens.
Legislation also emphasized public health in relation to the need to conserve PPE and hospital capacity. Every state's legislation (except Alabama and Kentucky) noted the need to preserve PPE and hospital capacity, often noted as the primary justification for restricting “elective” procedures. Texas's legislation prohibited “elective” procedures, “PROVIDED, however, that this prohibition shall not apply to any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster” (emphasis in original). Here, “elective” procedures were allowable only if they did not deplete PPE or hospital capacity, regardless of their urgency. Additionally, these resources were connected to the state's ability to combat the pandemic such that restricting “elective” surgeries was constructed as necessary to protect public health. Iowa's legislation echoed this sentiment, noting that “[a] hospital must continue to accept and treat COVID-19 patients and must not transfer COVID-19 patients to create capacity for elective procedures.” The hypothetical scenario prohibited here was for “elective” procedures to take precedence over treating patients with coronavirus, highlighting anxieties around hospital capacity and connecting them to public health more generally. Within these bans, abortion clinics became sites where PPE was squandered on “elective” procedures, and people seeking abortions became unwanted burdens on the hospital system. As such, abortion clinics, and by extension abortion seekers, were endangering public health.
These constructions of abortion clinics as a risk to public health reinforced common antiabortion arguments that abortion is dangerous, unnecessary, and dirty (Bourgeois 2014; Harris et al. 2011; Purcell, Hilton, and McDaid 2014). However, they broadened the scope of the arguments: during the COVID-19 pandemic, abortion no longer posed a risk only to “infants” and pregnant people; it also presented a risk to public health at large. Abortion is frequently stigmatized as a risky, dirty procedure that contaminates health care workers and services (Harris et al. 2011). In this case, the legislation framed abortion clinics as sites of literal contagion, tapping into widespread fears surrounding COVID-19 to achieve antiabortion aims. People who get abortions were framed as posing a risk, not only to themselves but also to their respective state's population. This point is emphasized by the repeated use of in-grouping language such as “community” and “civilians,” and state-specific terms such as “Iowans” and “Mississippians,” to describe the people potentially affected by the risks of abortion clinics and to suggest that abortion providers and patients constitute an out-group who pose a threat to their state communities.
This article analyzed constructions of abortion, abortion seekers, and abortion care providers in US state legislation that restricted abortion access in connection with the COVID-19 pandemic. Findings indicated that most legislation banned abortion without mentioning abortion, but government officials later communicated the ban through press releases, media interviews, or direct correspondence with abortion clinics. Although ostensibly enacted to manage the spread of COVID-19, the legislation utilized common antiabortion discourses, including trivializing abortion, risk discourses, and constructing pregnant people as mothers and fetuses as babies. The legislation delegitimized abortion providers as incompetent and uncaring, and it used quasi-medical justifications for banning abortion. Finally, the legislation constructed abortion clinics as sites of contagion and consequently a risk to public health during the COVID-19 pandemic. These discursive constructions have significant implications for people seeking abortion, abortion providers, and future legislation.
First, the use of common antiabortion discourses in legislation that was seemingly abortion neutral is significant. It highlights the extent to which antiabortion rhetoric has permeated legal spheres. It also exemplifies the vulnerability of abortion in a post-Roe United States. These bans were passed while Roe and Casey were still the major precedents, and they ultimately affected thousands of people. The pandemic exposed preexisting structural inequalities and violence, and restricting abortion access placed a further, disproportionate burden on pregnant people of color (Jones, Lindberg, and Witwer 2020; McCloskey et al. 2021; Nandagiri, Coast, and Strong 2020). Dahl and colleagues (2021) found that COVID-19 restrictions affected Black and Latinx people's access to abortion in Illinois by increasing wait times and, consequently, gestational stage of pregnancy. Their research highlights additional burdens in states where second-trimester abortions are expensive and difficult to obtain. COVID-19 restrictions forced pregnant people to travel farther to access abortion care as clinics temporarily closed to comply with the legislation, disproportionately affecting Black pregnant people in Texas, Louisiana, and Tennessee (Hill et al. 2021). In response, reproductive justice activists called to increase legislative support for marginalized people's reproductive health needs, partly through increased use of telehealth and pill-based abortion (Bayefsky, Bartz, and Watson 2020; Jayaweera, Moseson, and Gerdts 2020; Senderowicz and Higgins 2020). These options are cheaper, more accessible, and more flexible than procedural abortion. They also reduce the likelihood of transmitting COVID-19, which was particularly important before widespread availability of vaccines and remains relevant for immunocompromised patients (Chong et al. 2021; Jayaweera, Moseson, and Gerdts 2020).
Without the protections offered under Roe, state legislatures will have more leeway to pass implicit abortion bans within seemingly abortion-neutral legislation. Courts blocked abortion bans in nine states between June 24 and September 1, 2022 (NYT 2023). However, state-level policy may not offer similar protections against implicit abortion bans such as the ones passed during COVID-19. In a post-Roe society, all health and social policy could potentially be abortion policy. This vulnerability highlights the need for federal legislation that protects abortion access across the United States.
Second, this discussion of quasi-medical terminology supports Evans and Narasimhan's (2020) argument that the appropriation and misuse of medical terminology in “fetal personhood” discourses is a strategic political move. Antiabortion discourses in COVID-19 legislation delegitimize abortion providers and dislodge medical terminology, leaving a void that is filled with meaningless, quasi-medical language. This language perpetuates mistrust, fear, and misinformation, disempowering both abortion providers and laypeople manipulated by the scare tactics. We argue that this is a specific political strategy designed to empower conservative politicians and disempower marginalized groups because it appears in other types of legislation. For example, critical race theory bans strategically misuse terms such as “critical,” “racism,” and “privilege” that have specific academic meanings, imbuing them with new meanings that delegitimize scholars and scare laypeople (Conwright 2022). These commonalities gesture toward the interconnectedness of contemporary oppressive policies and highlight the importance of analyzing antiabortion legislation in its social context.
Finally, the framing of abortion clinics as sites of risk to public health is new and significant. While antiabortion discourses have historically characterized abortion as dangerous to pregnant people and fetuses (Ehrlich and Doan 2019; Kelly 2014), this new discourse disperses the danger to the public at large. This discourse may have set the stage for Texas's 2021 bill SB 8, which implemented a six-week abortion ban and allowed citizens to enforce abortion law by suing anyone who aided and abetted abortion in Texas. These strategies attempt to increase general hostility and scrutiny toward abortion clinics, providers, and seekers, making it more difficult for the few abortion clinics left to continue their practice (Harris et al. 2011). This tactic of influencing public opinion against abortion clinics is likely strategic, as the post-Roe antiabortion movement pushes for a federal ban on abortion (NPR 2022). This insight highlights the necessity of cultivating counterdiscourses that support abortion clinics.
There are several action items that follow from this research. First, federal legislators should prioritize passing permanent legal protections for abortion access. Abortion access has for too long been determined by executive orders and Supreme Court decisions. It needs to be determined by the people it affects the most. Second, the findings here suggest that antiabortion policy complements other conservative political goals. Thus, it is important that researchers continue to investigate the analytical connections between antiabortion policy and other conservative policies, such as critical race theory bans, to track, theorize, and resist contemporary manifestations of oppressive power structures. Finally, social movement organizations should continue to counter the harmful discourses perpetuated by antiabortion policy with counterdiscourses. We suggest that activists employ a reproductive justice framework, rather than the standard choice-based or rights-based framework, when creating these counterdiscourses. The rights-based framework has been strongly criticized by women of color and the LGBTQ+ community, and it can easily be turned back on the movement, as “fetal rights” discourses demonstrate (Luna and Luker 2013). These action items are the first steps for resistance in an uncertain, post-Roe future, where abortion may be banned through ostensibly neutral legislation, as it was during the COVID-19 pandemic.
The authors would like to thank Rebecca Kreitzer, Katrina Kimport, and Jonathan Oberlander for organizing this important special issue. The authors are also very grateful to the editors and anonymous reviewers for their feedback, which greatly strengthened this article.
410 US 113 (1973).
Planned Parenthood v. Casey, 505 US 833 (S. Court 1992).