States hostile to reproductive freedom have weaponized the COVID-19 pandemic to ban abortion in the name of public safety. Relying on heightened power the state typically exercises during an emergency, it can capitalize on public panic to achieve its policy goals. By laying bare the racial inequities of our healthcare systems and the opportunistic banning of abortion by an emergency-emboldened state, the COVID-19 pandemic invites a reexamination of the constitutional frameworks that support reproductive freedom. The status quo, rooted in substantive due process and illusory notions of “choice,” reinforces these inequities. The emergency usurpation of abortion rights suggests the need for a broader framework: one rooted in equality and social justice. An equal protection foundation for the right to abortion can help ebb the steady erosion of Roe’s core promise. More holistically, an equal protection approach can remedy the gaps in access to abortion care along racial and class lines by situating future litigation in the human rights framework of the reproductive justice movement.
A declaration of a state of emergency triggers the venerated American transaction: liberty for security. Typically, the state emerges from the negotiations disproportionately empowered, as the citizen will often trade civil liberty for effective governmental control of the crisis. They are told that their procedural rights are too bulky and their dignity interests too amorphous to withstand the government’s overwhelmingly compelling interests to restore public safety through swift action. Such an increase of government power relative to civil liberties presents heightened obstacles to abortion care: The state interests in the health of the pregnant person and of potential life baked into Roe’s promise are leveraged in a public health crisis to fit the agenda of politicians who oppose abortion. During an emergency, when state power is at its archetypal apex, rights politicians deem inconvenient—or nonessential—are first on the chopping block.
Scholarly attempts to protect civil liberty from an overzealous state often focus on structural reforms to the U.S. Constitution and to the separation of powers. In the context of reproductive rights, however, a more modest and viable approach exists to safeguard liberties in a national crisis. Instead of turning to the traditional approaches of emergency constitutionalism, reproductive justice advocates can adjust the constitutional framework of the abortion right to sound in equal protection theories, rather than solely in substantive due process, to help insulate it from the overreaching state in times of emergency.
The constitutional right to abortion first recognized in Roe v. Wade relies on a substantive due process framework that emphasizes choice and decisional privacy. As a result, abortion jurisprudence has reinforced a self-determination that, for centuries, has only been available to a fraction of American pregnant people. Marginalized groups, especially Black, Latinx, and Native communities, cannot fully benefit from a substantive due process approach because it presumes that reproductive freedom is the only freedom lacking in the pregnant person’s life. It assumes that legal and healthcare systems are constructed to accommodate all people’s choices equally, regardless of race, gender, or class. An equal protection approach recalibrates reproductive choice to accommodate a fuller picture of the foundational inequalities of healthcare access between white and nonwhite abortion seekers. In other words, for the substantive due process approach to work, there has to be equal opportunity to exercise the choice it celebrates.
As the COVID-19 pandemic provokes a reexamination of American systems and institutions, the reproductive justice community has a rare opportunity to enhance its constitutional argument. From outright bans on abortion to draconian hurdles to care, officials who oppose abortion have weaponized the pandemic in an attempt to further restrict access to reproductive healthcare. Pregnant Americans once again find themselves—and their healthcare—accorded second-class status. Today, pregnant people are told that their privacy interests are too weak and their autonomy rights too unimportant to survive the state’s need to reserve medical equipment for procedures it deems worthy.
Moreover, the COVID-19 pandemic lays bare the racial inequities of our healthcare systems and the opportunistic banning of abortion by an emergency-emboldened state. The status quo, rooted in illusory notions of choice, reinforces inequality of access to reproductive care. The emergency usurpation of abortion rights during the pandemic suggests the need for a broader approach: one rooted in equality and social justice. Doctrinally, an equal protection foundation for the right to abortion can help ebb the steady erosion of Roe’s core holding. More holistically, such an approach can help to remedy the gaps in access to abortion care along racial and class lines by situating the right to reproductive freedom in a broader social context. Most consequential in the context of the COVID-19 pandemic’s disproportionate toll on marginalized communities, an equal protection framework for abortion rights more fully addresses the substantial rifts between access to safe abortion care for pregnant people with means and those without. As legal scholar Dorothy Roberts asks, “How can we possibly confront racial injustice in America without tackling [the] assault on Black women’s procreative freedom? How can we possibly talk about reproductive health policy without addressing race, as well as gender?”
This Article examines the ways in which an equal protection frame for reproductive rights could augment outcomes for pregnant people, particularly pregnant people of color, in response to the egregious constitutional violations pregnant people suffer during this state of emergency.
I. Abortion’s Constitutional Framework
The right to abortion is rooted in the constitutional right to privacy, which the Roe Court located in the Due Process Clause of the Fourteenth Amendment. Embedded there is a “concept of personal liberty and restrictions upon state action . . . [that] is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Roe Court, however, immediately undercut the pregnant person’s autonomy by declaring “the pregnant woman cannot be isolated in her privacy.” By recognizing two compelling state interests in the abortion decision, the health of the pregnant person and the interest in protecting potential life, Roe anticipates heavy state involvement in the intimate and dignified choice it proclaims. Justice Blackmun next crafts a stilted trimester-based framework, which allows the pregnant person to choose abortion without the specter of state involvement only during the first trimester and accommodates increasing state presence as the pregnancy develops. This analysis is zero-sum: Where the state views the rights of the fetus as strong, it views the pregnant person’s rights as weak. Accordingly, “at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant” over the pregnant person’s autonomous choice. This shifting fulcrum of interests has facilitated intensified state control over the abortion decision.
State legislatures and courts struggled to apply Roe’s privacy logic consistently, which left a patchwork of rulings on abortion restrictions throughout the country. To remedy what was seen as the resulting “jurisprudence of doubt,” a plurality of the Supreme Court reevaluated Roe’s holding in Planned Parenthood of Southeastern Pennsylvania v. Casey. Crucially, Casey deviated from Roe’s strict scrutiny analysis and established the undue burden standard, which invalidates “a state regulation [that] has the purpose or effect of placing] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey has been criticized for its “thin, impoverished notion of privacy, in which women retain the bare right to make a decision while having nearly all facets of that decision subjected to intense scrutiny.”
II. COVID-19 and Abortion
The COVID-19 pandemic has exposed foundational flaws in America’s healthcare institutions. Overcrowded hospitals, insufficient resources, and soaring death rates illustrate a faltering system. And while the virus claims the lives of Americans of all socioeconomic tiers, poor communities are hit hardest. Forced to preserve supplies for the most critical COVID-19 cases, states have put a temporary pause on so-called “elective” procedures to preserve personal protective equipment (PPE). But in an extreme and thinly veiled extension of its usual playbook, the anti-abortion movement has weaponized the pandemic in pursuit of its ultimate goal: to end access to safe abortion.
A. Essential vs. Nonessential
The scarcity of medical equipment during the pandemic reignited a debate that plagues the reproductive health movement: the medical necessity of abortion. The reproductive justice and healthcare community resist the traditional bifurcation of abortion labels as “therapeutic” or “elective.” This distinction is a “[m]oral [j]udgment [m]asquerading as [m]edical [t]erminology” by demonstrating a preference for abortions deemed medically necessary over those that are not accompanied by an acute health risk. Further, this terminology reinforces the social stigma placed on the abortion patient and “frames women’s equality as a luxury and women’s autonomy as expendable.” Leading reproductive health organizations condemned the designation of abortion as nonessential and issued a statement reiterating that they “do not support COVID-19 responses that cancel or delay abortion procedures.”
In the context of the COVID-19 pandemic, classifying abortion as nonessential does more than limit access to safe abortion care. It tells pregnant people that their healthcare choices do not matter to the state that purports to protect them. It reinforces a stratification of medical services that only disadvantages people who can become pregnant. As such, this derogation serves to reinforce the sex stereotypes that restrict the rights of pregnant people.
B. Abortion Bans: Time and Punishment
Given the limited gestational period, abortion care uniquely relies on time, as complications and risk increase as the pregnancy develops. As such, reliable access to abortion care early in a pregnancy is recommended. In addition to medical injuries, any delay for a pregnant person seeking abortion inflicts myriad harms to their personal life. In states where abortion is most heavily restricted, patients often face the financial burden of making multiple trips, traveling long distances, and taking more time off from work. Additionally, the indignity that follows when one’s self-determination is not acknowledged by their government is incalculable. Finally, traveling to another state is onerous under benign circumstances, but dangerous during a pandemic. Pregnant people in states with strict coronavirus-related abortion bans are placed in an untenable situation, bound either to maintain an unwanted pregnancy or to defy shelter-in-place orders and risk further spreading the virus to neighboring states.
Although regulated more heavily than most medical procedures, abortion is among the safest, and is safer than childbirth: The estimated mortality rate for abortion is exceedingly low, with an average of 0.7 deaths per 100,000 procedures, while childbirth claims an average of 8.8 lives per 100,000 procedures. But most important in the COVID-19 context, abortion procedures rarely require hospitalization and use minimal PPE, which undercuts state arguments for prohibition.
C. Texas Bans Abortion
On March 22, 2020, Texas Governor Greg Abbott issued his opening salvo in the attack on abortion rights during the pandemic. In Executive Order GA-09, Abbott ordered “all licensed healthcare facilities [to] postpone all surgeries and procedures that are not immediately medically necessary.” The following day Attorney General Ken Paxton clarified Abbott’s dictate to specifically include abortion care in the order’s sweep, stating that “[n]o one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers,” and threatening those in violation “with the full force of the law.” Planned Parenthood and other reproductive healthcare providers in Texas challenged the order and the Attorney General’s interpretation in federal district court as an unconstitutional ban on previability abortion.
Planned Parenthood’s challenge reveals the bad faith of the state’s mandate and illustrates the constitutional harms patients will suffer as a result. The plaintiffs correctly identify the state’s action as “a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity.” Further, the order would prevent pregnant people in Texas from securing timely abortion care and “force[s pregnant people] to carry pregnancies to term” such that “these patients [will] be deprived of their constitutional right to essential healthcare and self-determination.” The challenge also demonstrates the deceit of the state’s purported interest in banning abortion by undercutting the supposed need for extensive medical equipment: “[F]orcing [patients] to continue their pregnancies will in fact impose far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve much greater exhaustion of hospital healthcare services and PPE than abortions.” The American College of Obstetricians and Gynecologists filed an amicus brief stating that “the COVID-19 pandemic does not justify restricting abortion care in Texas. Most abortions do not require use of any hospital resources and use only minimal PPE. Indeed, the Governor’s order is likely to increase, rather than decrease, burdens on hospitals and use of PPE.”
The District Court agreed. Granting the plaintiffs’ motion for injunctive relief, the court held “[a] delay in obtaining abortion care causes irreparable harm by ‘result[ing] in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal,’” and is therefore an unconstitutional ban on previability abortion. In the balance between state interest in preserving PPE and the pregnant person’s right to abortion care, the court sided with plaintiffs:
The benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care.
Texas appealed the District Court’s ruling, however, and the Fifth Circuit directed the District Court to vacate the order.
A key disagreement between the district and circuit courts is the applicable legal standard. The District Court saw the state’s action for what it was: an unconstitutional invasion of pregnant peoples’ rights thinly veiled as a measured response to a public health crisis. The Fifth Circuit, on the other hand, attempted to rationalize the Texas ban not as a ban on abortion under Casey, but as a valid exercise of state emergency power. Rather than applying the undue burden test that controls abortion regulations, the appellate court applied a stricter test from Jacobson v. Massachusetts, which upheld Massachusetts’s compulsory smallpox vaccine. The Jacobson Court afforded immense deference to state officials acting in an emergency and would only rule against the state if the provision at issue is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In upholding GA-09, the Fifth Circuit not only considered the Texas abortion prohibition under Casey’s undue burden standard, but also asked whether that burden was undue “beyond question” under Jacobson.
By invoking Jacobson’s reliance on emergency powers in a public health emergency, the Fifth Circuit disingenuously contorts constitutional standards to avoid reaching the merits of the abortion ban in question. Under Casey, the Fifth Circuit ought to have applied only the undue burden standard: Does classifying abortion as a nonessential procedure place a “substantial obstacle” in the path of a pregnant person who seeks to terminate a previability pregnancy during a pandemic? Instead, the Fifth Circuit shirked its duty and opted instead to follow Texas’s lead: It weaponized the COVID-19 pandemic as an end-run around the abortion right to which it has been hostile in the past. In short, the Fifth Circuit acted the way we have come to expect in an emergency: aggrandize the state at the cost of civil liberties in the name of protection. In part, it was able to do so by sidestepping the substantive due process analysis on which the abortion right relies.
A. Abortion Restrictions as Discrimination on the Basis of Sex
Though enshrined in law since Roe, the persistent focus on substantive due process tells an incomplete story of the abortion decision, as it fails to account for the social context and consequences of choosing to terminate a pregnancy. In particular, it avoids examining how fertility has been used to maintain the patriarchal social order:
A sex equality analysis of reproductive rights views the social organization of reproduction as playing a key role in determining women’s status and welfare and insists—custom notwithstanding—that government regulate relationships at the core of the gender system in ways that respect the equal freedom of men and women.
The Equal Protection Clause bans classifications made on the basis of sex and is especially wary of classifications that are rooted in traditional stereotypes about gender roles. Accordingly, such classifications are subject to intermediate scrutiny, which demands “important governmental objections” that “must be substantially related to achievement of those objectives.” While less stringent than Roe’s strict scrutiny, sex-based distinctions are entitled to more searching review than the undue burden standard, which would add an important layer of protection to the abortion right.
The relevant sex stereotypes assume women ought to become mothers and assume the center of the family life, while men are free to pursue the life they choose. Lamenting Roe’s lack of attention to sex equality, Justice Ginsburg has argued “the shape of the law on gender-based classification and reproductive autonomy indicates and influences the opportunity women will have to participate as men’s full partners in the nation’s social, political, and economic life.” Similarly, “[w]omen with unwanted children to care for, with low incomes, and with undignifying [sic] work prospects are unlikely to vote, rule, or boast extraordinary levels of personal achievement.” Simply put, controlling one’s reproductive future enables full equality and participation in public life, regardless of sex. Without that control, people who can become pregnant will find full equality just out of their grasp.
B. How COVID-19 Abortion Bans Might Have Fared Under an Equal Protection Analysis
If the Fifth Circuit was bound by an equal protection standard rather than by substantive due process, the challenge to Abbott’s prohibition on abortion during the pandemic might have been more successful. Under Casey’s controlling standard, the state needs only to meet undue burden’s relatively deferential bar: “Unless [a regulation] has that effect [of placing a substantial obstacle in her path] on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.” This analysis favors the state; almost any legal justification by the state suffices. Here, Texas would easily satisfy the test, as it professed to prohibit abortion to safeguard public health, and preserving PPE is undoubtedly related to fighting the COVID-19 pandemic.
But under an equal protection analysis, state action that discriminates on the basis of sex must meet Craig’s higher standard of intermediate scrutiny, which requires the state to justify both the interest and the fit. For example, in its inaugural application of intermediate scrutiny, the Court struck down an Oklahoma law that allowed women to buy 3.2 percent beer at age eighteen, while forcing men to wait until age twenty-one. Oklahoma’s professed important interest in the distinction was traffic safety: Girls, by virtue of their docile and subservient nature, posed less of a safety risk should they consume beer than rowdy, dangerous boys behind the wheel. Oklahoma attempted to achieve its interest by increasing the age for males to purchase the beer. The Court, however, rejected this sex-based distinction for improper fit to its stated interest: “[T]he showing offered by [Oklahoma] does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving.” Similarly, while Texas satisfies the first step with its interest in preserving public health, it fails to demonstrate how, in light of expert consensus that abortion does not dangerously deplete PPE and actually minimizes the need for hospitalization, banning abortion during the COVID-19 pandemic would remedy the lack of hospital equipment. It is the improper means by which Texas pursues its interest that endangers GA-09 constitutionally. Therefore, under the controlling law of Casey and Craig, a state prohibition on abortion in the name of preserving medical resources for COVID-19 patients is unlikely to withstand intermediate scrutiny.
C. COVID-19 is Representative of Racial Injustice in Reproductive Rights
Racial inequities underpin both the COVID-19 pandemic and the current state of abortion care. The virus has disproportionately impacted Black, Latinx, and Native communities and exacerbated the racial disparities in the American healthcare system. This trend echoes the racial inequalities in access to reproductive healthcare. Accordingly, the COVID-19 pandemic provides a lens to understand abortion bans as an affront to racial justice, as well as gender justice, and facilitates a discussion of the weakness of a substantive due process analysis of the abortion right. Gender discrimination helps situate abortion in an equality frame and provides an important first step. But widening the scope of analysis to include structural racism against pregnant people of color illuminates a more nuanced and ultimately fruitful approach to procreative rights. In addition to historical discrimination, the severe burdens that Texas and others visit on pregnant people of color during an emergency demonstrate the insufficiency of the substantive due process framework.
1. Reproduction as a Site of Racial Inequality
The reproductive rights violations marginalized women have long suffered represent the dehumanization of these women based largely on their racial identities. White colonizers systematically raped Native women in their conquest of the continent, and thereby established, among other things, an early disregard for the reproductive autonomy of women of color. The antebellum South commodified Black women’s reproduction to perpetuate the economics of slavery and used sexual violence to physically and socially control them. The legacy of chattel slavery is responsible for today’s disparities of health outcomes between white women and Black women. More recently, pregnant people of color have been disproportionately prosecuted under fetal protection laws and are more likely than their white counterparts to see their families subjected to the surveillance and violence of the state. The institutional headwinds facing pregnant people of color in the reproductive arena suggest that inequality has endured. It is concerning, therefore, that the constitutional framework for the abortion right has not meaningfully evolved since Roe.
2. Insufficiency of Choice
The reliance by Roe and its progeny on the dignity and autonomy interests of the abortion decision has lionized the notion of “choice” to the detriment of pregnant people of color. The pro-choice paradigm rests on the faulty assumption that if granted the right to choose abortion, the financial, social, and emotional burdens of the decision to terminate a pregnancy melt away. Such myopia largely ignores the lived experiences of many pregnant people of color, who are more likely to live in poverty and have fewer resources to overcome increasing hurdles to abortion care. Architects of the reproductive justice movement, themselves women of color who experienced the limitations of the pro-choice movement, argue that a single-minded focus on procreative choice alienates pregnant people of color from the legal framework of the abortion right:
The law and other instruments of power could use [a] woman’s body and her fertility to degrade her and her children, harm her community, and protect white supremacy in the United States. In the context of such histories, such laws and policies, what role did individual, personal choice have in safeguarding the reproductive dignity and safety of women of color?
A poor Black pregnant person’s diminished control over their reproductive future relative to that of a middle-class white woman underscores the lack of universality in the choice framework. Without a reckoning of the ways the choice framework perpetuates racial inequality in reproductive healthcare and access, pregnant people of color will continue to be vulnerable to the overreach of state power.
D. Delivering Equality: A Path Forward
Laws rooted in equal protection were intended to remedy the many vestiges of America’s racist foundations. The Equal Protection Clause is lauded for the ways in which it is supposed to have narrowed the chasm of racial inequity in electoral representation, public education, and criminal justice, among others. Advocates for gender equity have similarly relied on the clause to upend the invidious stereotypes that perpetuated second-class citizenship for women. These often distinct movements can both work to protect the abortion right in a way that is meaningful for pregnant people of color through the equal protection framework. While racial discrimination and gender discrimination find their constitutional home in equal protection, the right that stands for “choices central to personal dignity and autonomy” still relies on the limited framework of substantive due process.
Doctrinally, an important commonality between equal protection cases challenging discrimination on the basis of race or of sex is the heightened standards of review that the Court deploys. Racial discrimination is entitled to strict scrutiny, the most searching examination of legislation. And, again, intermediate scrutiny requires the state to ensure its sex-based distinction is “substantially related” to an “important interest.” Conversely, absent a finding of a fundamental right or discrimination based on race or sex, other government distinctions typically must satisfy only the rational basis test, the most deferential standard. Unlike strict or intermediate scrutiny, rational basis assumes the law is valid, and the heavy burden is on the challenger to overcome this assumption. Holding abortion regulations to a higher legal standard sends an important signal that the law treats reproductive freedom as essential and resists the notion that pregnant people are themselves entitled to less.
A successful approach to reproductive freedom for all pregnant people must also recognize and rectify the hollowness of exalting choice against the background of the lived experience of pregnant people of color. The disconnect between these experiences can be bridged by recognizing a symbiosis between substantive due process and equal protection. Early gender equality advocates saw the Due Process Clause and the Equal Protection Clause as interdependent in the abortion context. Justice Ginsburg argued that discharging a female Air Force officer for her choice to continue her pregnancy both intruded on her right to privacy and subjected her to a sex-based distinction that failed to similarly punish her male counterparts: “[D]ischarge for pregnancy, a physical condition unique to the female sex, while no other temporary physical condition occasions peremptory discharge, is inconsistent with the equal protection principle inherent in the due process clause of the Fifth Amendment.”
As applied to racial justice in reproductive freedom, Ginsburg’s two-pronged approach demonstrates that liberty and equality interests converge at human dignity. This dynamic model highlights autonomy and dignity only insofar as it is part of a larger history of the denial of these basic human rights to Black women in particular. The real work of this theory is in its leverage of liberty to achieve racial equality and its insistence of state attention to embedded racial disparities: “This concept of [reproductive] liberty includes not only the negative proscription against government coercion, but also the affirmative duty of government to protect the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.” Equality, then, is the glue that binds the promise of choice to the safe access to reproductive care for all pregnant people, regardless of race, gender, or station in life.
Conclusion: Toward an Equal Protection Approach
Emergencies can spark innovative reforms to prevent present harms from occurring again in the future. Reproductive freedom can be understood as the key to self-determination that has yet to be realized for all pregnant people, and the abortion bans implemented during the COVID-19 pandemic should serve as an opportunity for advocates to retool their strategy. An approach to reproductive freedom that focuses solely on the traditional constitutional foundation is insufficient to meet the moment that the COVID-19 pandemic demands; a reliance on choice and autonomy without equality will only reinforce the structural inequities that define the pandemic’s toll. As long as the autonomy- and choice-centric status quo rules, pregnant people will continue to shoulder an increased burden, and pregnant people of color will experience even more acute marginalization. As long as states continue to hold their thumbs on the scales of reproductive freedom, especially when emboldened by an emergency to weaponize their duty to protect the public health, reproductive justice advocates require a new tactic that represents the socioeconomic context in which pregnant people seek healthcare.
Adjusting the constitutional foundation of the abortion right will not immediately fix the reproductive inequities that the pandemic exposes—just like the fight for racial and gender justice continues decades after the Supreme Court labeled discrimination on the basis of race and sex violative of equal protection. But advocates must do what antiabortion states have done: They must seize this moment. Emergencies can empower movements as well as states. If an inflated state cannot cure systemic injustice, the antidote might lie within the American promise of equality.
. This is not to suggest that only procedural and not substantive rights constrict during an emergency. In particular, the government has been quick to suppress the First Amendment rights of free expression during wartime where it saw such speech as a threat. See Schenck v. United States, 249 U.S. 47, 52–53 (1919) (holding the U.S. Congress may regulate expression that “creates a clear and present danger” of “substantive evils” against the United States); Gitlow v. New York, 268 U.S. 652 (1925) (holding a state is within its police power to preemptively suppress threats of violent destruction of the government). The government, however, has an easier time restricting rights of due process, privacy, and habeas corpus during an emergency, as its exigency argument is most applicable to these procedural rights. See U.S. Const. art. I, § 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that American citizens held as enemy combatants at Guantanamo Bay were entitled to some but not full due process rights).
. See Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004) (suggesting an extraconstitutional document to govern the constriction of civil liberties during a national security crisis); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004) (arguing against Ackerman’s proposal, contending that the U.S. Constitution’s text is flexible enough to adapt to wartime circumstances); Laura Conn, Comment, The Enumeration of Vital Civil Liberties Within a Constitutional State of Emergency Clause: Lessons From the United States, the New Democracy of South Africa, and International Treaties and Scholarship, 10 U. Pa. J. Const. L. 791 (2008) (advocating for the ratification of an amendment adding a clause to the Constitution to protect various civil liberties during a national security emergency).
. Reva Siegel and others have written powerfully on the potential of the Equal Protection Clause to provide firmer ground for the abortion right and recognize restrictions on abortion as sex subordination and discrimination. These arguments for gender equality are a critical first step and help illustrate, among other things, the insufficiency of a scheme devoted exclusively to privacy and choice. As this Article’s focus is on the insufficiency of the current foundation to protect the abortion right from an emergency-emboldened state, it will also touch on other facets of equality in the abortion context, including racial disparities. See, e.g., Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815 (2007); Priscilla J. Smith, Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation, 34 Harv. J.L. & Gender 377 (2011); Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 Harv. J.L. & Pub. Pol’y 419 (1995).
. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (“We have long recognized that the [Fourteenth] Amendment’s Due Process Clause . . . ‘guarantees more than fair process.’ . . . The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’” (quoting Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997))).
. 410 U.S. 113, 154 (1973) (“We, therefore, conclude that the right of personal privacy includes the abortion decision . . . .”).
. Not all pregnant people are women or identify as femme. Trans men, intersex, and nonbinary people can—and often do—become pregnant. Much of the case law and academic attention to the abortion right, however, identifies women as the right holders. This Article will adopt “pregnant person” and they/their pronouns when not citing precedent or literature.
. See Maher v. Roe, 432 U.S. 464 (1977) (holding constitutional the Connecticut Medicaid program’s preference for funding childbirth and pregnancy expenses and its exclusion of abortion); Harris v. McRae, 448 U.S. 297 (1980) (upholding the Hyde Amendment’s prohibition on the use of federal Medicaid funds to fund abortion); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (upholding a state requirement to confirm viability before abortion if the pregnant person is at least twenty weeks pregnant); Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding a federal ban on dilation and evacuation abortion, the most common method of abortion in the second trimester).
. Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 4 (2d ed. 2017).
. Roe, 410 U.S. at 153.
. Id. Accordingly, the right to abortion is fundamental: “[O]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ . . . are included in this guarantee of personal privacy.” Id. at 152 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). As a fundamental right under Roe, regulations of abortion are subject to strict scrutiny, which requires that any governmental intrusion on that right satisfy a compelling interest and be narrowly tailored to fulfill that interest so as not to restrict freedoms more than is absolutely necessary. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“[L]egislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.”).
. Roe, 410 U.S. at 159.
. Id. at 155.
. See, e.g., Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (striking down Missouri’s spousal consent requirement as an impermissible burden on the right to abortion); Maher v. Roe, 432 U.S. 464 (1977) (upholding Connecticut’s preferential funding childbirth and pregnancy-related expenses under Medicaid while excluding abortion); Bellotti v. Baird, 443 U.S. 622 (1979) (requiring state laws that direct a minor seeking abortion to notify or secure the consent of their parents before the abortion to have an option for the minor to instead seek approval of a court, the so-called “judicial bypass” option); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 47U.S. 747 (1986) (striking down Pennsylvania’s Abortion Control Act as an impermissible violation of patient privacy), overruled by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (allowing Missouri to require doctors to check fetal viability before performing an abortion).
. Casey, 505 U.S. at 844. Casey upheld the central holding of Roe that a constitutional right to abortion exists within the Due Process Clause, as the decisional interests at issue “involv[e] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [and] are central to the liberty protected by the Fourteenth Amendment.” Id. at 851. But the Court jettisoned Roe’s trimester framework by declaring the state interests operative “from the outset of pregnancy,” eliminating the twelve-week barrier between the state and the pregnant person’s privacy. Id. at 846.
. Id. at 877. In Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), Justice Breyer gave teeth to the undue burden standard by emphasizing a balancing test that weighs the benefits of the proposed regulation against the burden that it would visit on a pregnant person’s access to abortion: “The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309. Justice Breyer’s approach was short-lived: In his controlling opinion in June Medical Services v. Russo, 140 S. Ct. 2103 (2020), Chief Justice Roberts eliminated the fuller examination that the balancing test of Whole Woman’s Health suggests: “[I]n the context of Casey’s governing standard, these benefits were not placed on a scale opposite the law’s burdens. Rather, Casey discussed benefits in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’” Id. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878, 882). Already, lower courts have applied Roberts’s relaxed standard to uphold abortion regulations. See Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *3 (8th Cir. Aug. 7, 2020) (remanding “in light of Chief Justice Roberts’s separate opinion in June Medical”); Leah Litman, June Medical as the New Casey, Take Care Blog (June 29, 2020), https://takecareblog.com/blog/june-medical-as-the-new-casey [https://perma.cc/V6UN-M5S9] (“The Chief Justice . . . would weaken the legal standard governing abortion restrictions . . . [because] he will not examine whether a law offers any health or safety benefit to women seeking abortions.”).
. Caitlin E. Borgmann, Abortion, the Undue Burden Standard, and the Evisceration of Women’s Privacy, 16 Wm. & Mary J. Women & L. 291, 292 (2010).
. See Annie Correal & Andrew Jacobs, ‘A Tragedy Is Unfolding’: Inside New York’s Virus Epicenter, N.Y. Times (Aug. 5, 2020), https://www.nytimes.com/2020/04/09/nyregion/coronavirus-queens-corona-jackson-heights-elmhurst.html?searchResultPosition=4 [https://perma.cc/JFQ6-T4L6].
. See, e.g., Elizabeth Janiak & Alisa B. Goldberg, Eliminating the Phrase “Elective Abortion”: Why Language Matters, 93 Contraception 89, 90 (describing the harms of delineating between “elective” and “indicated” abortion: “There are two conceptual problems with this false dichotomy: first, it is impossible to operationalize in a consistent, transparent fashion based on public consensus regarding when an abortion is required to preserve life or health, and second, it is contrary to the experiences of women seeking abortion for a wide variety of deeply felt needs.”); Benjamin Elliot Yelnosky Smith, Deborah Bartz, Alisa B. Goldberg & Elizabeth Janiak, “Without Any Indication”: Stigma and a Hidden Curriculum Within Medical Students’ Discussion of Elective Abortion, 214 Soc. Sci. & Med. 26, 29 (2018) (describing the ways in which medical professionals’ use of “elective” is harmful to patients when describing the abortion decision: “Overall, ‘elective’ was used colloquially, and represented a negative mark on a subset of abortions. Participants used ‘elective’ to describe and normalize enacted abortion stigma that takes place at individual, interpersonal, institutional, governmental, and cultural levels.”).
. Katie Watson, Why We Should Stop Using the Term “Elective Abortion”, 20 AMA J. Ethics 1175, 1176 (2018).
. See Janiak & Goldberg, supra note 18; Smith et al., supra note 18; Michelle J. Bayefsky, Deborah Bartz & Katie L. Watson, Abortion During the Covid-19 Pandemic—Ensuring Access to an Essential Service, 382 New Eng. J. Med., May 2020, at e47(1), e47(2).
. See Press Release, Am. Coll. of Obstetricians & Gynecologists et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak [https://perma.cc/7ZQK-CRQV]. The statement also explained:
To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure. Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible.
. See id.
. See Claire Cleveland, Colorado’s Abortion Providers See More Out-of-State Patients During the Coronavirus Pandemic, CPR News (Apr. 15, 2020), https://www.cpr.org/2020/04/15/colorado-abortion-providers-are-seeing-more-out-of-state-patients-during-the-coronavirus-pandemic [https://perma.cc/3Z94-P3A8].
. Nat’l Acads. of Sci., Eng’g, & Med., The Safety and Quality of Abortion Care in the United States 74 (2018). The data also indicates that abortion is safer by this measurement than plastic surgery, colonoscopies, dental procedures, and adult tonsillectomies. Id. at 75.
. See id. at 70–74.
. Though several states have functionally banned abortion during the COVID-19 pandemic, this Article focuses on Texas, the first state to issue such a ban, as its approach, legal arguments, and effects are representative of states like Ohio, Iowa, Alabama, Oklahoma, Tennessee, and West Virginia. For a timeline of emergency actions taken by states to restrict abortion access during the pandemic, see Timeline: Our Fight Against Opportunistic Abortion Bans During the COVID-19 Pandemic, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/timeline-our-fight-against-abortion-bans-during-covid19 [https://perma.cc/VS4R-L8BS] (last visited Aug. 10, 2020).
. Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/ files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf [https://perma.cc/EA45-BP3K].
. Press Release, Ken Paxton, Att’y Gen. of Tex., Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all [https://perma.cc/T6PR-34VF].
. As Roe establishes and Casey solidifies, no state may ban abortion before the viability of the fetus. See Roe v. Wade, 410 U.S. 113, 163 (1973) (“[F]or the period of pregnancy prior to this ‘compelling’ point [of viability], the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.” (emphasis added)); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”).
. Complaint for Injunctive & Declaratory Relief at 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-CV-323 (W.D. Tex. Mar. 25, 2020), 2020 WL 1465781.
. Brief of American College of Obstetricians & Gynecologists et al. as Amici Curiae in Opposition to the Petition for a Writ of Mandamus at 5, In re Abbott, No. 20-50264 (5th Cir. Apr. 2, 2020).
. Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1502102, at *3 (W.D. Tex. Mar. 30, 2020) (quoting Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013), vacated, 2020 WL 1808897 (W.D. Tex. Apr. 8, 2020).
. In re Abbott, 954 F.3d 772 (5th Cir. 2020).
. Jacobson v. Massachusetts, 197 U.S. 11 (1905). Jacobson is an inapt analogue for the COVID-19 pandemic and the legal measures taken to prevent its spread. At issue was Massachusetts’s compulsory vaccination law, which required adults to get a smallpox vaccine to prevent the virus’s spread. Id. at 12. The Court upheld this mandate as a valid exercise of the state’s police power to protect public health and welfare, and simultaneously held that Jacobson does not enjoy a Fourteenth Amendment due process right to exempt himself from this emergency provision. Id. at 25 (“According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”). Here, however, Texas does not seek to impose treatment on pregnant people during a health crisis, but to prevent them from accessing their fundamental right to choose abortion.
. Id. at 31.
. In re Abbott, 954 F.3d at 776.
. See, e.g., Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015) (holding that Texas H.B. 2 imposing stringent regulations on abortion clinics that would shutter the vast majority of abortion clinics in the state and, among other things, require pregnant people to travel great distances to seek abortions did not constitute an undue burden under Casey), rev’d sub nom. Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
. Siegel, supra note 3, at 815.
. See Reed v. Reed, 404 U.S. 71 (1971) (striking down a preference for male administrators of estates on equal protection grounds).
. Craig v. Boren, 429 U.S. 190, 197 (1976).
. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 375 (1985).
. Allen, supra note 3, at 427.
. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992),
. See Craig, 429 U.S. at 200 (“However, [Oklahoma’s] statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.”).
. Id. at 204.
. This Article is concerned with applicable legal standards and not the political dynamics of federal courts. The Fifth Circuit has remained resistant to abortion rights, and even upheld Louisiana’s Act 620, which is a copycat bill to the Texas TRAP law struck down by the Supreme Court in 2016’s Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). See also June Med. Servs. LLC v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (2019) (mem.).
. See Richard A. Oppel Jr., Robert Gebeloff, K.K. Rebecca Lai, Will Wright & Mitch Smith, The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y. Times (July 5, 2020), https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc-data.html?searchResultPosition=1 [https://perma.cc/H6LB-F37N] (“Latino and African-American residents of the United States have been three times as likely to become infected as their white neighbors . . . . And Black and Latino people have been nearly twice as likely to die from the virus as white people . . . .”); see also Samantha Artiga & Kendal Orgera, COVID-19 Presents Significant Risks for American Indian and Alaska Native People, KFF (May 14, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/covid-19-presents-significant-risks-for-american-indian-and-alaska-native-people/ [https://perma.cc/S4UK-LRQJ] (“[A]s of May 11th, [American Indian Alaska Native] people made up 18% of deaths and 11% of [COVID-19] cases compared to 4% of the total population in Arizona, 57% of cases compared to 9% of the total population in New Mexico, and 30% of cases compared to 2% of the total population in Wyoming.”). For more on the underlying causes of COVID-19’s devastating impact on Native communities, see Timothy M. Smith, Why COVID-19 Is Decimating Some Native American Communities, Am. Med. Ass’n (May 13, 2020), https://www.ama-assn.org/delivering-care/population-care/why-covid-19-decimating-some-native-american-communities [https://perma.cc/969R-YW3Y].
. See Ngozi F. Anachebe & Madeline Y. Sutton, Racial Disparities in Reproductive Health Outcomes, Am. J. Obstetrics & Gynecology, Apr. 2003, at S37. Describing the disparities in prenatal care, Anachebe and Sutton explain:
[A]lthough 85% of white women began their prenatal care in the first trimester, only 73% of black women and 74% of Hispanic women began prenatal care in the first trimester. . . . [T]he lack of money or health insurance was determined not to be the only barrier to obtaining prenatal care. Other barriers include (1) the lack of transportation, (2) lengthy waiting for care, (3) lack of receptive providers, and (4) poor access to specialty care. . . . [Similarly,] [t]he risk of maternal mortality in the United States has consistently been higher among black women than white women. Black women are 4 times more likely than white women to die from complications of pregnancy. In fact, black women have a higher risk than white women for dying from every pregnancy-related cause, including hemorrhage, pregnancy-induced hypertension, and pulmonary embolism.
Id. at S38 (footnotes omitted).
. See Andrea Smith, Not an Indian Tradition: The Sexual Colonization of Native Peoples, Hypatia, Spring 2003, at 70, 73 (“Because Indian bodies are ‘dirty,’ they are considered sexually violable and ‘rapable.’ That is, in patriarchal thinking, only a body that is ‘pure’ can be violated. The rape of bodies that are considered inherently impure or dirty simply does not count.”).
. See Michele Goodwin, Prosecuting the Womb, 76 Geo. Wash. L. Rev. 1657, 1698–1702 (2008). “[E]arly reproductive monitoring and policing of Black women’s reproduction had much to do with economic as well as social purposes. However, absent from these sexual encounters were reproductive choice, autonomy, and recourse.”. Id. at 1699; see also id. at 1700 (“Interracial sexual encounters may have been motivated as much by economic profit as by the sexual gratification of slave owners and overseers bedding enslaved Black women.”).
. Cf. Anachebe & Sutton, supra note 51; see also Deirdre Cooper Owens & Sharla M. Fett, Maternal and Infant Health: Historical Legacies of Slavery, 109 Am. J. Pub. Health 1342, 1342 (“Any honest examination of racism as a widespread affliction of American medical practice must acknowledge that the medical profession was entangled in the institution of slavery from its beginnings.”).
. See Michele Goodwin, Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, 102 Calif. L. Rev. 781, 793–94 (2014) (“[S]tudies suggest white women and women with higher levels of education are more likely than others to seek and acquire prescription medications, including Xanax, Oxycontin, Demerol, Ritalin, and Tylenol with codeine during their pregnancies. These legally obtained prescription drugs may be as harmful to fetuses when taken during pregnancy as illegally obtained prescription or illicit drugs; however, often only the latter drug users are targeted for prosecution.” (footnotes omitted)).
. See Dorothy Roberts, Abolishing Police Also Means Abolishing Family Regulation, Imprint (June 16, 2020), https://chronicleofsocialchange.org/child-welfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480 [https://perma.cc/X8W5-UXEC] (“Residents of black neighborhoods live in fear of state agents entering their homes, interrogating them, and taking their children as much as they fear police harassing them in the streets.”); N. Tatiana Masters, Taryn P. Lindhorst & Marcia K. Meyers, Jezebel at the Welfare Office: How Racialized Stereotypes of Poor Women’s Reproductive Decisions and Relationships Shape Policy Implementation, 18 J. Poverty 109, 124 (2014) (“African American women are disproportionately represented among welfare clients. Welfare has been associated with Blackness in the collective mind of the U.S. public ever since African American women gained access to these programs in the 1960s.” (citations omitted)). For an examination of the impacts of state surveillance of welfare families, see Khiara M. Bridges, The Poverty of Privacy Rights 4 (2017) (describing the exposure of poor women to state surveillance: “[A] state actor engaged [her] in a conversation that touched on many highly sensitive topics . . . because she was pregnant and had presented herself to a public hospital with the hope of receiving state-assisted pre-natal care. It is also important to observe that this is a painfully personal conversation that privately insured pregnant women can and . . . usually do avoid.”).
. The Court’s adoption of this viewpoint emerges early in its post-Roe cases that address the constitutionality of limiting public funds for abortions, chiefly Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980). Here, the Court delineates between the state interference with the decision to have an abortion and state facilitation of actually procuring that abortion: Restricting funds does not prevent poor pregnant people from having an abortion, it merely closes one avenue of funding. See, e.g., Maher, 432 U.S. at 481 (Burger, C.J., concurring) (“The Court’s holdings in Roe . . . simply require that a State not create an absolute barrier to a woman’s decision to have an abortion. These precedents do not suggest that a State is constitutionally required to assist her in procuring it.” (citation omitted)). This approach, however, is blissfully ignorant of the realities of poor people who rely on public funding for basic healthcare needs, including pregnancy and reproductive healthcare, who are overwhelmingly Black and Latinx pregnant people.
. Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 55 (2017).
. See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1480 (2017) (“The Equal Protection Clause prohibits the unjustified drawing of district lines based on race.”).
. See, e.g., Brown v. Bd. of Educ. of Topeka, Kan., 347 U.S. 483 (1954). The Brown Court explained:
To separate [Black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. Id. at 494–95.
. See, e.g., Batson v. Kentucky, 476 U.S. 79, 97–98 (1986) (holding the use of peremptory challenges to strike potential jurors based on their race unconstitutional under the Equal Protection Clause: “The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions [that black jurors will be biased in favor of a black defendant], which arise solely from the jurors’ race.”).
. See supra notes 40–45 and accompanying text.
. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
. See supra note 10. This heavy burden on the state to justify its interference with the important liberty at issue is often “strict in theory, but fatal in fact.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)). Few state laws survive strict scrutiny, including the Texas criminal abortion statute at issue in Roe.
. See supra note 42 and accompanying text.
. See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973) (describing the rational basis test: “[A] legislative action must be sustained, if the classification itself is rationally related to a legitimate governmental interest.”).
. See Brief for the Petitioner at 22, Struck v. Sec’y of Def., 409 U.S. 1071 (1972) (No. 72-178); see also Reva B. Siegel, Equality and Choice: Sex Equality Perspectives on Reproductive Rights in the Work of Ruth Bader Ginsburg, 25 Colum. J. Gender & L. 63 (2013).
. Roberts, supra note 8, at 305.
. Id. at 309.
. Such an approach can amplify the efforts of advocacy groups who are responding to the COVID-19 pandemic by dedicating more services to securing reproductive healthcare during this crisis. See Paige Alexandria, How to Get an Abortion During the COVID-19 Pandemic, Rewire.News (Apr. 13, 2020), https://rewire.news/article/2020/04/13/how-to-get-an-abortion-during-the-covid-19-pandemic [https://perma.cc/L2Y8-BTEV]; Resources, Ctr. for Reprod. Rts., https://reproductiverights.org/resources-0 [https://perma.cc/R57R-H6G8] (last visited Aug. 10, 2020).