“TRAPped” in a Public Health Emergency: How Abortion Restrictions During the COVID-19 Pandemic Mirror Earlier Attacks on the Abortion Right and How Judicial Review Failed to Protect It

Nancy L. Dordal

In the wake of the COVID-19 pandemic, states issued emergency orders postponing certain medical procedures to curb the spread of the virus and to preserve medical equipment and hospital capacity. Several states included abortion procedures in these orders. Though all federal district courts enjoined enforcement of the executive orders as applied to abortions, the federal circuit courts split: some agreed with the district courts, but two circuits issued mandamus relief to uphold the temporary abortion bans. In their analyses of the constitutionality of such abortion bans, the United States Courts of Appeals for the Fifth and Eighth Circuits invoked Jacobson v. Massachusetts as a new and looser framework for constitutional analysis. This Comment will argue that the purportedly temporary abortion bans mirror earlier attacks on the abortion right and that the two circuit courts improperly applied the Jacobson framework when analyzing these orders.