The COVID-19 epidemic has pulled parts of America’s healthcare system to the brink of collapse. Hospitals in hard-hit areas are reaching capacity as emergency rooms fill with patients, available ICU beds dwindle, and much-needed medical equipment becomes harder to find. In New York City, some coronavirus patients are now treated on a decades-old hospital ship meant to assist troops in times of war. Yet in some states, even those which are severely impacted by the coronavirus, the hallways of certain clinics remain empty. No physicians work; no patients receive treatment.
Across the U.S., abortion clinics have shuddered after states have deemed abortion procedures to be medically “unessential.” In the evening of March 23, 2020, Texas’s attorney general announced in a sweeping declaration that abortions in the state were to be halted indefinitely. Lawyers determined that this included medication abortions, or those induced through simple administration of a pill. Governors and attorneys general took similar actions in Ohio, Texas, Iowa, Alabama, and Oklahoma.
The majority of clinics affected are small and independently-run. They operate on slim margins with a small staff and limited funding. Even just a few months out of business can pose an existential crisis to such providers. Moreover, the American College of Obstetricians and Gynecologists released a public statement in which it stressed that abortion services are urgent and time-sensitive; even just days of delay can pose serious risks to the patient and may make the procedure impossible. For these reasons, the bans were met with court challenges by reproductive rights activists. The challenges were successful in several states—temporary injunctions allowed service to continue.
But the U.S. Court of Appeals for the 5th Circuit ruled that Texas’s ban was constitutional, effectively allowing the state to prohibit all abortions for as long as it sees fit. If small clinics cannot provide service for several months, they may shut down. Abortion access in Texas will move from poor to practically nonexistent.
What does this tell us about American democracy? The issue of abortion access shines a spotlight on serious cracks in the American court system. Five of the judges on the 5th Circuit are Trump appointees, and its one vacancy is close to being filled by another Trump judge. In the last three years, Senate Majority Leader Mitch McConnell and Trump have pushed an unprecedented number of federal judges through the approval process, many of whom side with conservatives on hot-button issues like abortion.
This process is difficult to stop because Trump and McConnell use legal mechanisms to push their judges through. The courts may be packed with partisan judges, but there is nothing unconstitutional about the process through which they were confirmed. Varol defines this type of behavior as “steal authoritarianism”; the end goal is undemocratic, yet each step of the process occurs within the framework of the democratic system. 
The attorneys general and governors of states which enacted COVID-19 abortion bans use the same strategy. The right to an abortion is guaranteed by Roe v. Wade, and despite recent limits placed Roe, the fundamental principle—that women have the right to a safe abortion and the right to reasonable access—remains. But officials enacted abortion bans through a constitutional process.
State governments have access to certain powers during times of emergency. However, when that power is abused, courts have the obligation to step in and halt the misuse; the 5th Circuit’s ruling shows us that the courts may no longer fulfill that obligation. Stealth authoritarianism threatens abortion access from two sides: Both the executive and the judiciary may be compromised.
The issue of stealth authoritarianism also highlights another problem facing American democracy—a lack of forbearance. The federal government, judiciary, and state governments have the ability to exercise a dazzling array of powers, especially during a crisis like COVID-19. The mechanism which restrains American officials from exercising the fullest extent of their power is not necessarily constitutional. As Levitsky and Ziblatt have pointed out, it is just a norm that politicians should not take full advantage of their constitutional authority.  Texas’s decision shows us just how fragile this norm can be. In an evening, the attorney general wiped out abortion access across the entire state, despite decades of precedence in both the courts and the political sphere.
This has a dual effect. On one hand, the machinery of the government is less responsive. It is less responsive to its citizens—such as women in need of treatment, healthcare advocacy groups, and the like. It is also less responsive to court challenges. Lower courts may hand down politically charged decisions that must be appealed upwards, a process which can take months. This may make citizens feel like they have less of an ability to influence their government, a key loss for healthy democracy.  On the other hand, the machinery of the government is more responsive to the authoritarian leaders which lead it. The check on decision-making is slowed by stealth authoritarianism, not the decision-making itself. In Texas, abortion clinics will remain closed as this process continues.
The COVID-19 outbreak could define the future of abortion access in the United States; it could also tell us the direction in which our democracy heads. Reproductive care is just one facet of the American political system, but the challenges it faces highlight institutional forces which silently erode our democracy. Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review 100(4).  Levitsky, Steven & Daniel Ziblatt. (2018). How Democracies Die. New York: Crown.  Schumpeter, Joseph. (1943). Capitalism, Socialism and Democracy. New York: Harper & Brothers.
I was completely unaware of states banning abortions in the midst of the COVID-19 outbreak. As you’ve pointed out, this seems to be stealth authoritarianism taking place. My problem with this is that, from an objective stance, one would think that abortion would be considered an essential medical service. With many state laws not allowing abortion after a certain number of weeks, it is very time-sensitive. Pregnancy can cause life-threatening issues in a number of women, and abortion would be those women’s only saving grace.
Call me a conspiracy theorist or whatever you want, but I think that this pandemic will be Republican states’ excuse to try to ban abortion in general. In these states that are shutting down clinics right now, I can imagine that they will try to keep those clinics closed as long as possible, even if the immediate threat of COVID-19 has passed. As you stated, this is stealth authoritarianism at work. This is a scary time for democracy everywhere, and it will be very interesting to see the condition of democracy across the world once this is all over. I wonder if the lack of forbearance you mentioned and sweeping executive orders will be our new normal, or if things will go back to how we knew them to be.
I really enjoyed your post! I agree that it is really important to have access to abortions regardless of the kind of pandemic situation that we may be in. I like how you included the concept of stealth authoritarianism in regards to abortion access. Another point of view that I think is important is that making someone go through with a pregnancy can put them at risk of further domestic abuse if they are now tethered to their partner. Just a thought. great job!
This blog post highlights such an important issue that likely goes unnoticed in this time of crisis. It is not only the top federal government officials across the world that are using their new access to emergency powers to tighten their grip on power or push through undemocratic policies—state governments are also taking advantage of the situation to shape policy. It has been known for some time that some of the more conservative states are seeking to get Roe v. Wade overturned and it is scary to see how they pursue to use the current pandemic to further push their policy objectives. To declare abortion to be a none time-sensitive and urgent medical procedure is a clear formulation of policy and disregard of women’s rights and health concerns. It is also worrisome for the state of democracy to see that the judicial branch does not function as a check on undemocratic policies but rather has become a tool for political purposes.
I thought it was thoughtful of you to highlight the long-standing issue of prenatal and abortion services especially in the midst of COVID-19. It was great to see you emphasize how small and independently-run facilities are mostly being targeted and how that is a telling factor into the access of health facilities and treatment across the nation. With the high level of demand and attention that COVID-19 requires from federal and national government allows for certain policymakers to make abortion access less prioritized than other medical needs. I also did not know that Texas has such easy and uncontested rights to halting and changing abortion laws so easily, which also offers perspective on how government bodies can so easily be influenced!
My mind is completely blown. I cannot believe that I did not know about this! But I thank you for bringing this issue to my attention. It deeply sadness me how many people and institutions use a crisis such as pandemics as an opportunity to take advantage and get their way. Like you so brilliantly pointed out, although the process of enacting this ban was legal and “constitutional”, it affects so many women. And while activists work hard to reverse this ban, legal matters take time, and during that time it takes to combat this abuse of emergency powers hundreds of women are going to be negatively affected. I completely agree with your statement that this is also going to have future impacts on the access to abortions in the state of Texas. It deeply saddens me and I pray for all those women who are going without needed medical services.
I have been following how the ruling party PiS in Poland tried to take advantage of the COVID-19 on 15 April when the Stop Abortion bill was discussed in the parliament. Unfortunately, I am seeing that Poland is not the only case regarding the anti-abortion movement during the pandemic…
This is a very well written article that points the stealth authoritarianism. Hopefully, despite the utilization of the pandemic, women’s rights will be preserved.
I’m so glad you chose to write on this, and that I found your post! I was recently thinking about what other health service providers are doing during this pandemic, and it’s disheartening to know women’s access to abortion is being jeopardized by a completely independent disease! I’m speaking from Georgia, and just within the last year the abortion debate has been tried over and over again in our state legislature, coming very close at some points to completely disregard the Roe decision, it really is disappointing. Personally I’ve seen many memes and heard jokes about “COVID-19” babies as if it’s comparable to the baby boom after the world war.
Reality is, access to abortion is absolutely essential now more than ever. Domestic abuse has sky rocketed, divorce rates and rehabilitation centers are expected to increase and these are not the conditions in which anyone needs to be brought into this world under. You’re very smart for connecting the dots between stealth authoritarian characteristics and the behavior of our politicians during this time. Everyone is distracted by media attention surrounding Coronavirus and numbers, now is the ideal time for the government to limit previously controversial rights of women.
Times are increasingly stressful for everyone at the moment, the governments push for abortion restrictions is weary. I’m impressed at your reference to smaller clinics, without business just like any other small business they absolutely will close. Increased closures will only decrease accessibility, I’m sure that helps the intent of the government but it sure is a dangerous mechanism for the women and families affected! Great job!
This blog post brought up something that I wasn’t thinking about at all. The fact that the courts in Texas said that it was constitutional to deem abortion clinics “unessential” is mind-boggling. It really raises the question of what other necessities are closed down now that people in power can close what they deem “necessary.” This shows how authoritarianism can slowly infect our nation. Hopefully, we will have proper checks and balances in place to defend human rights. I really appreciate you bringing up something like this, it’s important that we keep looking into injustices that happen during this crisis, and fight to correct them.