On Tuesday, a group of doctors, nurses, pro-life organizations, and Christians wishing to worship in person filed a lawsuit against Gov. Tim Walz (D-Minn.), claiming the governor’s decision to exempt abortion clinics from coronavirus restrictions not only wastes valuable personal protective equipment (PPE) but also violates the Equal Protection Clause of the Fourteenth Amendment. While the governor’s order shuts churches and prevents elective surgeries to conserve PPE, Walz and Minnesota Health Commissioner Jan Malcolm have allowed abortion clinics to perform surgical abortions despite the availability of chemical abortion as an alternative.
“A State may curtail the exercise of constitutional rights to prevent the spread of a deadly pandemic, but it cannot give special status to politically favored rights such as abortion when rights that actually appear in the Constitution — such as the right to the free exercise of the religion and the right of the people to peaceably assemble—are being subordinated to the State’s COVID-19 prevention measures,” the lawsuit insists.
By singling out abortion clinics for special dispensations, Walz and Malcolm have violated Minnesotans’ Fourteenth Amendment right to equal protection of the laws, the lawsuit claims.
The lawsuit involves many plaintiffs: AALFA Family Clinic and nine doctors and nurses employed at the clinic who are fighting on the frontlines of the pandemic; an orthopedic surgeon who has been forced to stop all elective surgeries and who has had to furlough 90 percent of his staff; the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), which has members fighting on the frontlines of the pandemic; Pro-Life Action Ministries (PLAM), which aims to protect babies from surgical abortions; and sixteen members of churches throughout Minnesota who are “currently prohibited from exercising their constitutional right to hold in-person worship services” due to Walz’s orders.
In addition to Walz and Malcolm, these plaintiffs are suing four named abortion clinics and organizations, including Planned Parenthood North Central States.
According to the lawsuit, “the Governor’s executive orders and the State’s enforcement of them violate the Equal Protection Clause by imposing discriminatory burdens on the exercise of fundamental rights.” While Minnesota “is subordinating the fundamental right to practice one’s religion to COVID-19 prevention measures” and restricting the right to peaceably assemble, it is protecting abortion.
“When it comes to the right to have an abortion, the State has decided that this right is sacrosanct, and that no COIVD-19 prevention measure can be allowed to curtail the right to abortion in any way — no matter how minor the burdens that might be imposed on abortion providers or their patients, and no matter how many lives might be saved from requiring abortion providers to switch from surgical abortion to medication abortion in an effort to conserve PPE and increase social distancing,” the suit alleges.
The lawsuit also argues that abortion is not a constitutional right and that the Supreme Court should strike down Roe v. Wade (1973) as unconstitutional, in part to teach governments that any “right” to abortion cannot override key constitutional rights.
According to the suit, Roe v. Wade is central to this case because Walz and Malcolm appear to act as though “the right to abortion is absolute — to the point that it allows abortion patients to opt for a particular method of abortion that consumes more PPE, even when that PPE is needed to prevent others from falling sick and dying during a catastrophic global pandemic.”
“Abortion providers might be justified in holding these views if abortion actually were a constitutional right. But abortion is not a constitutional right,” the lawsuit claims. “There is nothing in the language of the Constitution that even remotely suggests that women have a constitutional right to abort their fetuses.”
Furthermore, “the Constitution makes no allowance for the Supreme Court to invent or impose constitutional ‘rights’ that have no grounding in constitutional text or historical practice. Roe v. Wade and the Supreme Court’s subsequent abortion edits violate the Tenth Amendment and the Republican Form of Government Clause by subordinating state laws to the policy preferences of unelected judges.” The lawsuit also notes that the makeup of the Supreme Court has changed since the last abortion precedent, so the courts should bring the issue back up to the highest Court.
“It is time for the lower courts to force reconsideration of Roe in the Supreme Court by announcing that they will follow the Constitution rather than a widely criticized judicial opinion that is unlikely to have majority support among the sitting justices,” the suit claims.
It seems unlikely this particular case will rise to the level of the Supreme Court and overturn Roe, but it is possible. The Fourteenth Amendment claim is very strong, however. Governments can only suspend constitutional rights during a crisis if their crisis measures are evenly applied and do not single out specific groups for extra restrictions or favorable treatment.
Moreover, the Fourteenth Amendment claims have particular weight during the pandemic, as the Thomas More Society, the law firm representing the plaintiffs, pointed out in a statement.
“Not only is the governor’s action in allowing elective surgical abortion dangerously unsafe, but critically and irresponsibly wasteful,” Thomas More Society Special Counsel Erick Kaardal argued. “These elective abortion procedures take personal protective equipment away from hospitals, clinics, emergency rooms, doctors, nurses, and others on the frontlines of trying to stop the spread of the deadly coronavirus.”
If Gov. Walz is going to block all elective surgeries during the coronavirus crisis to preserve PPE, he should not exempt surgical abortions from this ban.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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