HLPR Blog: Notice and Comment

By Mason Marks*

The COVID-19 pandemic is triggering a national mental health crisis. Millions may experience prolonged grief due to the loss of friends or family, depression from unemployment and social isolation, and post-traumatic stress disorder from working on the frontlines as healthcare providers or undergoing treatment as patients.

Our healthcare system is unprepared. It lacks the funding to provide prolonged psychotherapy at scale, and traditional psychiatric drugs, such as selective serotonin re-uptake inhibitors (SSRIs), are ineffective in up to fifty-five percent of people. Consequently, when the pandemic becomes a national mental health crisis, many will be left without relief. However, there are promising alternatives.

The experimental drugs psilocybin and 3,4-methylenedioxymethamphetamine (MDMA) can reduce the symptoms of several mental health conditions including depression and anxiety disorders. In 2018, I published an article titled Psychedelic Medicine for Mental Illness and Substance Use Disorders: Overcoming Social and Legal Obstacles in the NYU Journal of Legislation and Public Policy. It analyzes the barriers to medical use of these drugs. For instance, healthcare providers may stigmatize patients who discuss psilocybin and MDMA, and the U.S. Drug Enforcement Administration (DEA) claims they are highly addictive and without accepted medical applications. The DEA limits the amount of psilocybin and MDMA that U.S. laboratories can produce each year and restricts who may synthesize and study them.

Since 2018, a few things have changed. After the release of popular books and documentaries, the stigma surrounding the study and use of psilocybin and MDMA has been reduced. The U.S. Food and Drug Administration (FDA) granted breakthrough therapy status to psilocybin-based treatments for major depressive disorder and treatment resistant-depression, and MDMA-assisted psychotherapy entered Phase 3 clinical trials, the last stage before FDA approval, for treating post-traumatic stress disorder.

These developments will facilitate the commercial availability of psilocybin and MDMA-based therapies. However, in light of the negative impact COVID-19 is having on the nation’s mental health, and the ineffectiveness of existing psychiatric drugs, innovative drug therapies cannot come soon enough. In a new article titled Drug Regulation for the COVID-19 Mental Health Crisis, which is forthcoming in the Administrative Law Review, I argue that the DEA and FDA should alter their regulation of psilocybin and MDMA to make them available immediately to researchers and those impacted by COVID-19.

Psilocybin and MDMA belongs to a controversial class of drugs call the psychedelics, which are known to alter mood, perception, and cognition. Other members of this group include lysergic acid diethylamide (LSD), peyote, and ayahuasca. Indigenous cultures have used psychedelics for centuries, and in the 1950s, scientists studied their therapeutic properties. However, their use became stigmatized in the 1960s due to their association with countercultural movements.

In 1966, Harvard psychologist Timothy Leary encouraged people to “Turn On, Tune In, and Drop Out.” A few years earlier, his professional colleagues accused him of promoting recreational drug use and conducting experiments involving psychedelics that lacked scientific rigor. When combined with other developments, such as linking psychedelic drug use to increasing opposition to the Vietnam War, these events triggered a political backlash against psychedelics. Misinformation and fear regarding their safety quickly drowned out scientific claims regarding their therapeutic potential, and the federal government implemented a series of punitive drug control measures.

In 1970, Congress passed the Controlled Substances Act (CSA), placing psychedelics in Schedule I, the most heavily restricted category of drugs. The CSA granted the U.S. Attorney General authority to schedule and re-schedule controlled substances, and when President Nixon established the DEA by executive order in 1973, that power was delegated to the agency. These events launched the U.S. War on Drugs that continues today despite being widely viewed as a policy failure that contributes to illicit drug markets, violence, mass incarceration, and drug overdose deaths.

In recent years, frustration with the effectiveness of existing psychiatric drugs has prompted researchers to investigate psychedelic treatments for mental illness, and a growing body of scientific evidence undermines the DEA’s classification of these drugs. For instance, in 2016, a team at Johns Hopkins showed that a dose of psilocybin significantly reduced depression and anxiety in people with life-threatening cancer diagnoses. In 2018, researchers at Imperial College London demonstrated that two doses of psilocybin decreased symptoms of treatment-resistant depression. In both studies, the benefits persisted for six months. A 2018 study published in The Lancet Psychiatry showed that MDMA-assisted psychotherapy significantly reduced symptoms of post-traumatic stress disorder in veterans and first responders.

These and other clinical trials suggest that psilocybin and MDMA are safe when administered in supportive settings. Unlike SSRIs, they act quickly and their effects are often long-lasting. These qualities make them promising candidates for addressing the COVID-19 mental health crisis. Moreover, they weaken the DEA’s assertion that psilocybin and MDMA have no currently accepted medical applications. Nevertheless, their Schedule I status makes them illegal to possess or prescribe and very difficult to study.

Despite psilocybin’s Schedule I status, several U.S. cities have decriminalized it. Last May, Denver became the first, and Oakland quickly followed suit. In 2020, Santa Cruz became the third U.S. city to decriminalize psilocybin. Similar measures are under consideration in Chicago, Washington, D.C., and the State of Oregon.

In light of these developments, and the urgent need for effective psychiatric treatments, the DEA should re-schedule psilocybin and MDMA. It is unclear how the Trump Administration might respond to this proposal. On one hand, the DEA’s new acting administrator, Timothy Shea, has a background as a federal prosecutor, which might suggest he would oppose easing restrictions on psychedelic research and use. On the other hand, Trump favors policies that promote innovation, and one drug company developing psilocybin-based treatments, Compass Pathways, is backed by libertarian entrepreneur and Trump ally Peter Thiel. However, recent reports suggest Thiel may be distancing himself from Trump over the Administration’s COVID-19 response.

Regardless, the DEA should use its scheduling power to move psilocybin and MDMA from Schedule I to Schedule III or IV, which would ease research restrictions, promote innovation in the mental health space, and allow doctors to prescribe psychedelics once they become FDA approved. Accordingly, the FDA should further expedite approval of therapies based on psilocybin and MDMA. Psilocybin has already completed FDA-sanctioned Phase 1 clinical trials for safety, and MDMA has completed Phase 2 clinical trials for safety and efficacy. In light of the unfolding COVID-19 mental health crisis, the FDA could issue emergency authorizations for their use.

Emergency use authorizations are issued for health conditions resulting from Chemical, Biological, Radiologic, and Nuclear (CBRN) threats. Under section 564 of the Food Drug and Cosmetic Act, the FDA Commissioner can allow the use of unapproved medical products to treat or prevent serious or life-threatening conditions caused by CBRN agents when there are no adequate, approved, and available alternatives.

In March, the FDA issued an emergency use authorization for the controversial drug hydroxychloroquine. In May, it issued a similar authorization for remdesivir. The FDA took these actions without strong evidence that the drugs could effectively treat COVID-19. At the time, there were no existing drug treatments, and COVID-related deaths were rising quickly (they now approach 100,000).

Some public health experts estimate the developing mental health crisis may cause up to 75,000 American deaths by suicide and drug overdose. Existing psychiatric drug treatments are inadequate to prevent these losses because they are too often ineffective. An emergency use authorization for psilocybin and MDMA could save lives by providing symptomatic relief to those who do not respond to, or cannot access or afford, traditional therapies.

Some experts argue that the FDA’s emergency authorization for hydroxychloroquine was concerning. Doctors Caleb Alexander, Aaron Kesselheim, and Thomas J. Moore point out that the agency did not reference any clinical trials on which it relied in issuing the authorization. Though such criticisms are valid, they should not be viewed as indictments of the process for issuing emergency use authorizations. Though there may have been little evidence supporting the use of hydroxychloroquine, there is substantial evidence that psilocybin and MDMA can treat depression and anxiety disorders. Although psychedelics have not been tested in people affected by COVID-19, they have been tested in people who have experienced trauma, anxiety, depression, and grief (including first responders, a population that the virus heavily impacted).

The pandemic caught the United States off guard. Unless American cities, states, and federal agencies act now to provide effective treatments, the country will be equally unprepared for the mental health crisis that follows. Psychedelic medicines are well-tolerated, they act quickly and produce prolonged benefits, and they fill an urgent unmet need for innovative mental health treatments. It would be irresponsible not to explore their full potential considering the stakes.

 

* Mason Marks (J.D., M.D.), is an Assistant Professor of Law at Gonzaga University, the 2020-21 Edmond J. Safra/Petrie-Flom Center joint fellow-in-residence at Harvard University, and an affiliated fellow at Yale Law School’s Information Society Project.

By Ben Horton*

A few weeks ago, Professors Jack Goldsmith and Andrew Keane Woods ignited controversy by suggesting in the Atlantic that China was right and America was wrong about internet censorship and surveillance. This seemingly contrarian stance rubbed people the wrong way, especially given reports that China’s online censorship delayed their response to COVID-19 and that Chinese agents have actively disseminated disinformation about the virus—and then attempted to suppress reports revealing their disinformation campaign.

Except the professors’ critics seem to have missed the point of their essay. Goldsmith and Woods said China was right that the internet inevitably would be censored and surveilled, not that China’s methods were normatively appealing.

Even discounting existing state surveillance and censorship on the internet in the United States, private surveillance and censorship is ubiquitous. And, notwithstanding our intuitions, most people want an internet that is subject to ubiquitous censorship—that is, “content moderation.”

Putting aside illegal content (child pornography, snuff films, etc.), most consumers do not want to be inundated with what Sarah Jeong has dubbed “the internet of garbage.” They do not want to be harassed, bullied, threatened, or spammed on the internet. And in the midst of a global pandemic, they want to ensure disinformation is kept to a minimum. They want to limit harmful speech.

Part of our problem is we still think of speech burdens in a binary, on-off way. But especially online, the question is not whether you can find content, it is how hard it will be to be find and how much it will be amplified.

The question is not if there will be censorship and surveillance,[1] the question is who gets to do it, and how it is done. Right now a relatively small group of private actors make not only the substantive decisions about content on the internet, they decide the process that drives those decisions and how information flows through their networks. They wield enormous power, and are almost completely unaccountable to the public.

So, what are our options?

Option 1: Stay the Course

First, the United States could continue to shield tech companies from most tort-based liability for content posted on their platforms via Section 230 of the Communications Decency Act, maintain an expansive view of the First Amendment, and not substantively regulate tech companies.

Supporters of the current system largely admit that ubiquitous content moderation is good, so long as it is private. They hold that a system of private speech regulation provides a market incentive for platforms to reach a Goldilocks-zone of content moderation: Enough harmful speech is blocked that it is possible to maintain deliberative communication amid the noise, but not so much that deliberative communication is also blocked. Consumers have a choice, and services that fail to moderate will either fail or be consigned to the dark corners of the internet.

But how real is that choice? Alphabet owns the two most popular websites in the world. Facebook (through its eponymous service and Instagram), Twitter, and Reddit collectively dominate U.S. social media. Over the past twenty years who has rivaled them? MySpace? Snapchat? Yahoo!? Tumblr? Even including these rivals, American consumers have had two significant options for their search engines and four or five social media sites. And, at least in part, that lack of choice is due to the inaction by antitrust enforcers at the Federal Trade Commission and Department of Justice when Google bought YouTube and when Facebook acquired Instagram. In a monopolistic environment consumers can try to campaign for changes to private companies’ policies, but their effectiveness might rely on some of the substantive regulations discussed below.

As Evelyn Douek has argued, these platforms are increasingly cooperative in their moderation decision-making, making consumer choice even more illusory. YouTube’s policies on terrorism-related content are not significantly different than Facebook’s or Twitter’s because they all belong to the same private group that develops those standards. Facebook’s new Oversight Board is probably a step in the right direction, but what happens if it becomes the de facto decision-maker for social media standards generally?

Finally, the market theory is contingent on the assumption that people choose their networks based on the ability of the network to curate information. But the profit incentive of social media companies is to increase our engagement—which might mean pushing harmful content on users, or at least enabling that sort of thing (until they’re caught). The negative effects of this content might be exaggerated, but without greater transparency we just don’t know.

Aside from the harms of disinformation, staying the course has the additional drawback of eliminating the United States from the global conversation about internet governance. As Microsoft President Brad Smith mentioned in a recent interview, in the future, tech companies may simply adapt their products to the regulations of the European Union and other Western democracies that lack stringent First Amendment or Section 230 protections against government involvement in online speech. We already see this to some extent with the NetzDG law in Germany, which, if nothing else, is offering us some useful transparency on content moderation.

Or tech companies themselves might simply decide how public health crises are managed.

Either way, the United States government, for better or worse, will simply not have much of a say in what the internet looks like.

Option 2: Content-Based Regulations

For constitutional reasons, the approach of regulating speech based on its content is closed off to the United States. There is a lively academic debate about the status of lies and hate speech under the First Amendment. But absent a political revolution, it will remain an academic debate. The Supreme Court has said, in an 8-1 opinion, it will not open up new “uncovered” zones of speech. Content-based regulations of harmful speech will continue to be subject to strict scrutiny, and they will continue to be struck down.

In the U.S. context, at least for the foreseeable future, content-based censorship will continue to be ubiquitous and limited to private actors. That does not mean we need to leave the speech moderating apparatus entirely to the private sector.

Option 3: Torts, Competition, Process, and Friction

Contrary to cyber-libertarians, the options available are not limited to “censorship” or no regulation at all. We have other tools at our disposal. The key is to focus on content-neutral regulations, especially those that govern the flow of information rather than regulations that criminalize certain content.

As a threshold matter, these policies do not have to—and likely will not—take the form of flat bans and mandates. They might be conditions attached to liability immunities or tax incentives, and they can—and should—distinguish between different types of online services. Of course, companies have been lobbied, and should be lobbied, to make these changes on their own; I am arguing that there is some role for direct government regulation in these realms.

First, we could reform Section 230. While supporters maintain that Section 230 is necessary to ensure that platforms can engage in decent moderation without fear of liability, detractors argue that a well-crafted alternative could still shield sites that engage in good-faith moderation without shielding sites that are designed to facilitate human trafficking, for instance. And regardless of where you stand on the 230 debate, given bipartisan support for both SESTA–FOSTA and the delayed “EARN IT Act,” 230 as we know it is unlikely to survive. If we want sensible intermediary liability protection, and not a patchwork of exceptions that probably make the internet less safe, the 230-or-nothing stance is increasingly politically untenable.

Second, we can advocate for regulations that promote competition, creating a market where consumers have real choices and their choices make a difference. This need not be the traditional “breaking up” of companies given the beneficial network effects consumers find in centralized services and the possible aggravation of harm that a balkanized internet could bring. Pro-competition policy could start with blocking the sale of startups to Facebook and Google. It could include the imposition of substantive requirements, like an information fiduciary responsibility or interoperability requirement on organizations with a certain share of the market. Any regulations, however, need to be sensitive to the needs of non-profits with large user bases and low revenues.

Third, and more controversially, we can require more transparent processes in content moderation. A number of organizations have released and advocated for the “Santa Clara Principles.” These include, at a minimum, publishing the number of posts and accounts taken down organized by the category of violation, providing notice to users whose accounts or posts are taken down, and instituting some kind of appeal process. If content-based moderation decisions are largely going to be done by private actors, their legitimacy relies on being transparent and understandable to the public. Even if changes are brought about by private pressure, we cannot collectively criticize and improve on secret processes.

Finally, and most controversially, maybe we can impose content-neutral, friction-creating regulations that force consumers to be more deliberate in sharing and consuming information. For instance, WhatsApp recently limited its forwarding function so that any messages that come from a chain of more than five people must be forwarded one chat at a time. This type of rule is not content-based; it applies to speech based on its virality, not the “topic, idea or message” communicated. Disclosure requirements—revealing, for example, whether or not a human is speaking—might also increase friction and deliberation. And some regulations of social media’s “frictionless” design might be allowable under the First Amendment.

These regulations avoid the hard epistemological questions and constitutional hurdles of defining harmful speech. They regulate the flow of information regardless of its content instead of worrying about speech concerning a particular topic. Furthermore, they ban no speech—deliberate communication is unaffected.

There are pros and cons to every policy mentioned, with administrability challenges and constitutional issues. But to reach a substantive discussion of the realistic possibilities for regulation in the U.S. context, the conversation needs to move beyond the false binary of “censorship versus free speech.”

 

* Ben Horton is a rising 3L at Harvard Law School and an Online Editor for HLPR.

[1] I am not talking about the problems of surveillance presented by innovations like the Ring doorbell, or facial recognition. I am referring to the level of surveillance necessary to ensure that speech is successfully moderated on platforms—being able to tie punishments to certain accounts, for example. That overlaps with the problems of online behavioral manipulation and surveillance capitalism, which I am not addressing in this post.

By Matthew J. Razzano*

When you hear the phrase “structural inequality” you might not immediately think of payments systems. The choice of whether to purchase a television or a meal with cash or a credit card might not feel like a monumental decision, but it has significant economic consequences because balancing the interests of credit card companies, merchants, and customers proves challenging. Much has been written about underbanked communities and predatory lending, especially in the wake of the 2008 financial crisis. But given the empirical challenges of measuring payment systems, the connection between inequality and card use receives less attention. Courts and policymakers have struggled to offset this imbalance through a variety of different programs and proposals, but to little avail.

When a customer pays with cash, the merchant retains the entire sum immediately. This provides businesses with financial security, as well as flexibility in managing their balance sheets. Cards involve a few intermediary steps, where merchants contract with third parties to accept and process customer payments. Accepting cards promotes customer convenience and additional transactions, but this convenience costs merchants a few extra cents on each transaction. Consumers won’t directly feel the difference between methods. They usually pay the same amount regardless of the payment method chosen because merchants are often contractually restrained from charging different prices based on the payment method. The merchant prefers cash, even though card fees are only a small percentage of each transaction.

In 2018, the Supreme Court took up the question of whether American Express could contract with merchants to prevent them from steering customers against particular payment methods. The Court ruled, in the credit card company’s favor, that such measures did not violate the Sherman Antitrust Act. The decision received criticism for favoring credit card companies over merchants since the latter must pay the transaction fees but can’t control how customers spend. Lacking in much of this discussion, however, is the consumer—falling victim to higher prices that merchants use to compensate for the transaction fees.

On a related note, credit cards were also criticized as inequality-promoting instruments in the wake of the American Express decision. Credit cards used to pay for goods or services often include rewards programs, which favor credit card customers over cash users. This is because when merchants raise prices to cover transaction fees, customers all pay the same price at the counter, but rewards programs give cash and gifts to credit card users that soften the burden of raised prices. Thus, cash users end up subsidizing credit card transaction fees and rewards programs.

Data from 2010 confirm that less wealthy customers disproportionately use cash. For instance, credit cards account for 25% of transactions for those who make over $100,000, but only 11% for those earning under $100,000. With that, households that frequently pay with credit cards receive a $1,133 annual subsidy from cash users. Roughly similar proportions were found in 2016. Payment systems have underlying inequalities baked in, and American Express illustrated some of these disparities. Yet, even with such recognition, no simple solution exists to protect consumers and correct for this inequality.

One suggestion to equalize payment systems is to allow merchants to steer customers to certain payment methods. This helps protect merchants from losing a portion of their proceeds to fees, and customers benefit by avoiding surcharges that merchants might add. Australia attempted such a program in 2003, permitting merchants to add surcharges to credit card purchases and signal the preferred payment method. The result was mixed, however. Card-using customers paid these surcharges in the form of added fees from credit card companies. And merchants charged surcharges in excess of the fees they paid the card issuers, revealing that most economic decisions were not made with consumers in mind.

Another option involves lowering card-related fees. The Durbin Amendment as part of Dodd-Frank sought to do precisely that with debit card fees. Although cash users do not subsidize debit card users to the same extent as credit card users, merchants still feel the difference between the two payment methods. Thus, they still raise prices to account for the added fees, resulting in cash purchases subsidizing card purchases. Lowering these interchange fees saves merchants money, and consumers should hopefully benefit through lower prices.

The problem is that with those provisions were implemented, data suggest that merchants benefit from lower fees, but they don’t pass along those cost-savings to consumers—though this point has been contested. To make matters worse, another study showed that banks introduced checking account fees to recoup lost revenue from the loss of debit card fees.

The key for policymakers is to balance the divergent interests of the three primary stakeholders: banks, merchants, and customers. There is no simple answer to these complex problems, as pulling one lever often creates another problem. Allowing consumer payment steering may save merchants money, but credit card companies raise fees on consumers. Reducing rewards programs may help equalize payment methods, but it may result in fewer credit card transactions and limit development of new payment technology. Lowering interchange fees should lower prices, but merchants take in most of the cost-savings. It seems that steering and reducing rewards risk decreasing transactions and limiting the beneficial network effects accompanying new payments systems. Such detrimental economic effects probably outweigh any consumer benefits. Thus, polices become a matter of prioritization.

If the goal is to help consumers, policymakers need to change their focus to consumers. Some commentators have called for the Durbin Amendment’s repeal, but fully unchecked markets won’t help consumers either. Rather, better regulation around adjusting the fee cap to account for different sized retailers may help small businesses and consumers who’ve been disproportionately neglected by Durbin. Additionally, tax incentives could help promote additional pass-through savings. Regardless of the option taken, it is clear that striking the right balance proves difficult, but it’s time that consumer interests move up the priority ladder.

 

* Matthew Razzano (J.D.) is currently a law clerk in the District of New Mexico.

By Swapna Reddy, Shetal Vohra-Gupta, April Shaw, Nina Patel, Liana Petruzzi*

As U.S. states elevate restrictions to contain the spread of coronavirus, many have enacted measures to restrict “nonessential” surgeries and procedures during the COVID-19 pandemic. Following Texas and Ohio’s leads, several states (Alabama, Iowa, Oklahoma, and Mississippi) have used these directives to stop surgical and even medical abortions under the pretense that abortion constitutes a nonessential procedure. Since then, federal judges in Ohio and Alabama denied their respective states’ requests and the legality of the Texas directive is actively being determined through rulings at the federal district court and the Fifth Circuit Court of Appeals.  These directives, issued during an unprecedented global health crisis, add new fuel to the flames in the national conversation on reproductive rights.

The Directives

The state directives are in response to federal guidelines attempting to ration valuable medical resources for health care professionals treating COVID-19. Language in the Texas order states that “procedures that are not immediately medically necessary to correct a serious medical condition” or to “preserve the life of a patient” do not qualify as “essential” health procedures and the Texas Attorney General pledged that violations of the Order “will be met with the full force of the law”:  $1000 fine or 180 days of jail time. State proponents of classifying abortions as “nonessential” claim that doing so is vital to protecting public health and preserving necessary supplies like masks, gloves, hospital beds, and ventilators by postponing elective procedures like dermatologic, ophthalmological, dental, and orthopedic surgeries.

The move to ban abortion as a “nonessential” procedure has been met with strong opposition by reproductive rights advocates, abortion providers and health professional groups such as the American College of Obstetricians and Gynecologists (ACOG). One clinic reports that the new directive has already resulted in 150 cancelled appointments. Opponents argue that abortion should not be included in the list of medical procedures that can be postponed, due to its time-sensitive nature, and that these directives are misguided and thwart comprehensive women’s health care.

The interpretation and enforcement of the orders by the Texas and Ohio Attorney Generals possess potentially dangerous implications for women’s access to safe and legal abortions. Proponents are utilizing a legitimate public health crisis to unnecessarily advance a political agenda. These COVID-19 based measures are particularly concerning as they infringe on women’s constitutional rights and their ability to seek otherwise legal health services. Such measures also exacerbate health disparities as they disproportionately impact low-income, rural, and minority women.

A Constitutionally Protected & Time-Sensitive Essential Health Procedure 

Although neither order explicitly prohibits abortion, the directives in Texas and Ohio both opened the door for broad interpretations of what might constitute non-essential procedures by generally defining “essential” procedures as those that are necessary to save an individual’s life or to address serious or severe symptoms. Many abortion procedures do not fall within these exceptions. It is clear, however, that abortion is a time-sensitive medical procedure. Additionally, any delay imposed on a woman’s ability to obtain an abortion must also factor in the numerous delays that are already imposed under state law in Texas and Ohio, including waiting periods, mandatory physical exams, ultrasounds, and counseling requirements. 

What Texas and Ohio have ignored is that the right to an abortion is a constitutionally protected right. As such, it is fundamentally different than other medical procedures states have limited as non-essential. As recently reaffirmed in Whole Woman’s Health v. Hellerstedt, a state may not impose an undue burden on a woman seeking an abortion. Although we have seen restrictions on certain constitutional rights during the COVID-19 epidemic (like the right to assemble), the right to an abortion is unique. The viability standard means that any delay can easily mean that a woman’s ability to exercise her right to an abortion will be absolutely lost.

For now, the Fifth Circuit is the only appellate court that has permitted a state (Texas) to keep its directive in place. It does this by applying Jacobson v. Commonwealth of Massachusetts, which it reads as holding that a state can reasonably restrict all constitutional rights during a public health crisis, and the right to abortion is no exception. The court also downplays the time-sensitive nature of abortion by refusing to characterize the directive as an outright pre-viability ban. Instead, the court holds that it is merely a “delay” of non-essential abortion procedures. And, under the court’s reasoning, there is nothing to indicate that Texas cannot continue to extend the ban for weeks or even months to address the current COVID-19 crisis.

Making Vulnerable Women More Vulnerable

A growing body of research indicates that limiting access to abortions contributes to poor health and limited economic and educational outcomes, disparately impacting low-income women of color. Low-income women compromise half of all U.S. women having abortions, with 76% of these occurring for women who have the lowest incomes. Due to overrepresentation among low socio-economic groups, Black women followed by Hispanic women are disproportionately affected when restrictions to abortions, contraception, and other family planning services are implemented. For example, recent changes to Title X means that poor and low-income women in Ohio will likely have even less access to preventative services, like contraception. Differences in abortion rates by race and ethnicity are likely due to gaps in access to affordable healthcare and contraception, as well as other factors tied to this country’s history of racism and discrimination.

Rural women in Texas and Ohio already face many obstacles in their ability to exercise their right to an abortion. A well-known obstacle is significant driving distances. In 2017, 43% of women in Texas, and 55% of women in Ohio lived in counties with no abortion provider. A 2019 study in Texas found that by delaying care due to distance pushes women later into their pregnancy, when care is even less accessible, costs increase and higher health risks remain for mother and child. In Texas, dramatic budget cuts in 2011 led to more than 80 publicly funded family planning clinics in the state to close and later, more than half the abortion clinics closed following sweeping anti-abortion legislation 2013, all of which had the most impact on access for rural and low-income women who were left with minimal to no options. COVID-19 has greatly reduced travel options which further exacerbates access limitations for low-income and rural women seeking abortions during consequential windows of time.

Shortage of Personal Protective Equipment Used as Justification for Executive Orders 

National shortages and inconsistent availability of Personal Protective Equipment (PPE) for health care professionals during the COVID-19 crisis is a serious concern and will exacerbate an already stressed health care system’s ability to respond. Nevertheless, using preservation of PPE as justification for the recent Texas and Ohio directives is misguided and not based in evidence. The current Center for Medicare and Medicaid Services (CMS) recommendations advise evaluating clinical situations by analyzing the risk and benefit of any planned procedure while considering resource conservation. While the orders specifically limit nonessential surgeries and procedures in order to preserve PPE, they fail to recognize that 96% of abortion services are provided in outpatient clinic settings, meaning that the vast majority of abortions are not impacting PPE availability in hospitals. Further, approximately 30% of abortions are medication-induced, and therefore do not require surgical procedures or medical equipment at all. While it is undeniable that surgical abortions do require some medical equipment such as gowns and masks, they make up a small percentage of hospital surgeries and are often more time-sensitive than other elective procedures. For example, Texas law bans abortions after 20-weeks post-fertilization; halting abortions for even a 3 week period, which the Texas order does, can be detrimental.

These states can preserve PPE by making medical abortion more accessible through the use of telemedicine, an invaluable tool in the current epidemic. For instance, Texas can waive its physical exam requirement to allow women to use telemedicine to obtain medical abortions. And Ohio, instead of moving to ban the use of telemedicine for medical abortions, could expand telemedicine for that purpose.

Conclusion

The net effect of these directives represent yet another example of aggressive state efforts in recent years to limit reproductive health options by over-regulating health care providers through Targeted Regulation of Abortion Providers (or “TRAP”) laws. Other examples of state restrictions include legislation and policy changes in Louisiana, which resulted in the June Medical Services, LLC v. Russo case currently being determined at the U.S. Supreme Court, and similar laws in Arkansas, Kentucky, and Alabama. These policies not only restrict the constitutional rights of women and reduce access, they also create an inconsistent patchwork set of policies that vary greatly by state. As such, women have vastly different rights and options simply based on geography.

During this national and global pandemic, it is vital that we do not exploit a public health crisis that requires our collective resources and support to advance political and anti-choice agendas that are based in neither evidence nor fact. Texas and Ohio are constitutionally mandated to provide abortion access to their constituents and the current policy directives are thinly veiled attempts to further restrict women’s access to health care. Reproductive health care is not a political pawn, but a part of comprehensive women’s health care, as well as a protected constitutional right.

 

*Authors:

Swapna Reddy (J.D., M.P.H.) is a Clinical Assistant Professor at Arizona State University’s College of Health Solutions. https://chs.asu.edu/swapna-reddy

Shetal Vohra-Gupta (Ph.D., MSW) is an Assistant Professor at University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/vohra-gupta_shetal/

April Shaw (J.D., Ph.D.) is a Staff Attorney at The Network for Public Health Law and a Research Scholar for Public Health Law & Policy at the Sandra Day O’Connor College of Law. https://www.networkforphl.org/attorneys-and-staff/april-shaw/

Nina Patel is a Millennium Fellow and an undergraduate student at Arizona State University. https://www.millenniumfellows.org/asu/nina-patel

Liana Petruzzi (MSSW) is a doctoral student at the University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/liana-petruzzi/