The Scholar: St. Mary's Law Review on Race and Social Justice


As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth Circuit, the applicable legal framework to apply to the question of whether a state may restrict access to a pre-viability abortion during a pandemic was set out in Jacobson v. Commonwealth of Massachusetts. In Jacobson, the Supreme Court considered a 1905 Massachusetts compulsory regulation that required citizens to get vaccinated in an effort to combat a smallpox epidemic.

This comment explores whether the language set out in Jacobson must be reconciled with more recent cases concerning a woman’s constitutional right to abortion including Casey’s undue burden analysis which states a statute which furthers a valid state interest but has the effect of placing a substantial obstacle in the path of a woman’s choice, is an undue burden, and cannot be considered a permissible means of serving its legitimate interests.

Lastly, this comment examines the constitutional right to abortion more broadly as compared to other areas of reproductive and bodily autonomy.

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The Scholar: St. Mary's Law Review on Race and Social Justice

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St. Mary's University School of Law


Lydia Harris