By Ashoka Mukpo, ACLU Staff Reporter

In the latest development in a fast-moving court case, on Monday the Fifth Circuit Court of Appeals ruled in favor of Texas Gov. Greg Abbott’s decision to block nearly all abortion services in the state. The ruling came after a legal challenge to Abbott’s inclusion of abortion care in a March 22 executive order instructing health care facilities across the state to “postpone all surgeries and procedures that are not immediately medically necessary.”

For Abbott and his allies, the COVID-19 pandemic is proving to be exactly the cover they need to accomplish a policy objective they’ve long held: eliminating access to abortion care.

The ruling is a reversal of the court’s April 10 decision to allow medication abortions to continue. With Abbott’s executive order due to expire on April 21, the court will likely continue to weigh in over the coming days. But this ruling represents a disturbing milestone: For the first time since 1973’s landmark Roe v. Wade Supreme Court decision, a court has allowed a state law banning almost all abortion to take effect.

The court battle highlights a new frontier the COVID-19 crisis has created in the fight over reproductive rights: Against the advice of public health experts, some states in the South and Midwest are trying to use the pandemic as a cover to ban abortion.
 
States across the country have issued orders to postpone non-essential surgeries and other medical procedures. Most have left it up to doctors and other health care professionals to determine what is “essential” on a case-by-case basis. Medical experts agree that abortion services are time-sensitive and fall under that category.

But eight states — Arkansas, Alabama, Iowa, Louisiana, Ohio, Oklahoma, Tennessee, and Texas — have used the pretext of the COVID-19 crisis to specifically target those services, claiming broad authority to order abortion providers to stop offering them. Texas, for example, has threatened to jail them for up to six months if they offer abortion care.

Lawmakers in those states claim that halting abortion services will conserve hospital resources, save Personal Protective Equipment (PPE), and slow the spread of the virus. Organizations representing medical professionals are united in denouncing the inclusion of abortion care in those states’ public health orders.

“[I]t is unfortunate that elected officials in some states are exploiting this moment to ban or dramatically limit women’s reproductive health care,” said Patrice A. Harris, president of the American Medical Association (AMA) in a statement. 

Advocacy groups including the ACLU, the Center for Reproductive Rights, and Planned Parenthood have filed emergency lawsuits challenging the orders in all eight of those states. 
 
The suits argue that the orders to shut down abortion services are unconstitutional and will cause irreparable harm to people seeking time-sensitive reproductive care during the pandemic. Clinics have already implemented social distancing measures such as spacing out appointments, they say, pointing out that far more medical resources will be used by people forced to continue a pregnancy than what would be expended in an abortion procedure. 

Already, the orders have forced some women to travel to clinics in other states, burdening them with painful obstacles and provoking concerns that the restrictions could wind up facilitating the spread of COVID-19.
 
One 24-year-old woman who filed an affidavit in support of the Texas lawsuit said she found out that her abortion was canceled on March 23, just a few weeks after losing her job due to the pandemic. A staff member from the clinic called to explain what the state’s new restrictions meant for her.

“I started to cry, and she cried too,” she wrote. “She told me my only option at that point was to go out of state or delay my abortion and possibly be forced to have a baby. I was dumbfounded.”

Worried and uncertain of when the restrictions would be lifted, she drove 780 miles to a clinic in Denver along with a friend, rather than her partner, who couldn’t take time off of work to travel out of state.

“Obviously, had this pregnancy not been a factor, I wouldn’t be traveling during a pandemic,” she wrote. “I already felt like it was risky for me to travel to a nearby clinic in Fort Worth to have my appointment. Instead, I was forced to drive across the country, to stop at dirty gas stations, to stay in an unfamiliar home, just to get health care. I feel like Texas put me, and my best friend, in danger.”

On April 2, the American College of Obstetricians and Gynecologists, along with the AMA and 18 other leading medical experts, filed an amicus brief supporting the challenge to Texas’s order.
 
“The Governor’s ban on abortion in the state, except in cases of emergency, is not supported by accepted medical practice or scientific evidence in the state,” they wrote, adding, “There is no evidence that prohibiting abortion during the pandemic will mitigate PPE shortages or promote public health or safety.”
 
Advocates say that — just as with other measures those states have taken in their years-long campaigns to restrict abortion — public health and safety isn’t the point of the new rules, and that lawmakers are simply exploiting COVID-19 to attack reproductive rights.
 
“It’s not surprising that the states that are now using the COVID crisis to stop people from getting abortion care are the very same states that have a history of passing laws to ban abortions or using sham rationale to shut down clinics,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project.
 
The states that have moved to restrict access to abortion during the pandemic are among those which have passed some of the harshest anti-abortion laws in the country in recent years. Alabama, Iowa, and Ohio each passed near-total bans on abortion in the last two years, and Arkansas passed at least 12 abortion restrictions in 2019 alone. Louisiana is currently embroiled in a Supreme Court battle over a law that would leave only a single doctor eligible to provide abortion care for the entire state.

So far, the courts have blocked at least some part of the new restrictions in Ohio, Oklahoma, Alabama, Tennessee, and Arkansas – which saw its ban put on hold by a federal judge one day after the suit challenging it was filed. The states are seeking emergency appeals. 
 
Despite those rulings, many services remain out of reach in some states, and there is little coherence to the restrictions. While Arkansas has ordered abortion services to be suspended, it continues to allow other medical specialists to exercise their judgment. Orthodontists, for example, have been permitted to schedule visits to adjust the wires on their patients’ braces, and dentists are still treating cracked teeth.
 
In a statement, the American College of Obstetricians and Gynecologists, along with a group of other professional medical organizations, criticized the effort to label abortion services as nonessential.
 
“Abortion is an essential component of comprehensive health care,” they wrote. “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. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.”

By ACLU 

As many Americans round out the end of their first month of social distancing, it’s clear that the toll of “stay at home” orders during the COVID-19 pandemic is much more than economic. The anxiety and fear that wash over us each day that we spend alone, away from friends, coworkers, and family, inflict their own kind of emotional damage.  

The cost of social isolation is a worthy cost in this case — staying home can quite literally save lives. But for some people, the advent of social isolation came long before the coronavirus. At the ACLU, we work with many communities who deal with the long-term impacts of social isolation: people living with disabilities who often experience accessibility issues, people held in detention, and people imprisoned in solitary confinement, just to name a few. 

Joining us on this episode of our podcast, At Liberty, is Dr. Julianne Holt-Lunstad, a professor of psychology and neuroscience at Brigham Young University who understands the psychological and physiological impacts of isolation, and how we can mitigate them for both ourselves and others. We also spoke with a few people — Anna Landre, TreShaun Pate, Jason Hernandez and Claire Goldberg — who know a thing or two about social distancing. Their circumstances have made them familiar with isolation long before COVID-19. Listen here to learn from their experiences, and for tips from Dr. Holt-Lunstad on how to ease the pain of isolation during this pandemic.
 

For decades, marijuana laws have been used to criminalize Black and Brown people, waste taxpayer money, and fuel the mass incarceration crisis. However, states across the country are taking strides toward reforming these outdated and harmful policies. Eleven states and the District of Columbia have legalized marijuana, and 18 states have decriminalized, which means they’ve removed some of the criminal penalties for possession of small amounts. These reforms are driven in large part by the will of the people. Two out of three Americans — more than ever before — now support marijuana legalization.

Legalization is still the answer, but it isn’t enough. Racial disparities in arrests persist nationwide and have not improved in recent years, and overall marijuana arrests are still widespread. To investigate these trends, we break down the data in our new report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, along with a new interactive data visualizer spotlighting statistics down to the state and county level.* Here’s what we found:

• The nationwide war on marijuana rages on
• States that legalized or decriminalized see fewer arrests
• Extreme racial disparities in marijuana arrests persist
• Legalization is not enough
• Explore state and county data with our interactive visualizer

The nationwide war on marijuana rages on

While overall marijuana arrests have decreased at the national level since 2010, the rate of decline has stagnated and, in recent years, has even reversed upwards despite popular reform movements. Marijuana arrests are still widespread nationwide, making up 43 percent of all drug arrests — more than any other drug. The vast majority of these arrests — nine out of 10 — are for possession.

These are more than just numbers. The personal impact of marijuana arrests can be devastating. In many states, a marijuana arrest can carry life-altering collateral consequences: parents may lose their children in court proceedings; disabled and low-income recipients of public benefits may lose health care; immigrants can face deportation; families can be evicted from public housing; and finding a job can be difficult and outright impossible in some cases. Because of racism in our criminal justice system, Black and Brown communities disproportionately face these harmful repercussions.

There are fewer arrests in states that legalized or decriminalized marijuana

Overall, the relaxing of marijuana laws, whether by legalization or decriminalization, coincides with lower average arrest rates for both sales and possession. States that legalized or decriminalized marijuana saw fewer marijuana arrests from 2010 to 2018 (in legalized states, you can still be arrested for possessing over a certain amount of marijuana, selling marijuana, using marijuana in prohibited places, or possessing while underage). Meanwhile, states in which marijuana remains fully illegal have higher arrest rates.

Legalized states had the lowest arrest rates of all, but the impact varies depending on the jurisdiction. In some states, such as Maine, arrests clearly decreased after legalization. In others, like California, arrests did not change or simply followed a downward trend that began before legalization.
 
Decriminalized states also saw a decrease in marijuana arrests, though arrests rates were about eight times higher than in legalized states. The data for decriminalized states also varies significantly across the country. In Missouri, for example, arrests actually increased after legalization. The impact of decriminalization on arrest rates remains uncertain.

It’s also unclear whether marijuana legalization or decriminalization directly impact arrest rates for other drugs — in some states, other drug arrests decreased at a similar rate, while in other states, arrests for other drugs spiked after marijuana legalization.

Extreme racial disparities in marijuana arrests persist, even in legalized or decriminalized states

War on Drugs policies disproportionately target people of color and particularly Black people, and marijuana laws are a prime example. The proof is in the data: Nationwide, Black people are 3.6 times more likely than white people to be arrested for marijuana, despite similar usage rates. That’s roughly the same rate of disparity that existed seven years ago, when we released the first iteration of this report, The War on Marijuana in Black and White. In fact, since 2010 racial disparities actually worsened in 31 states.

Racial disparities vary in severity across states. Colorado has the lowest disparity, at 1.5, while in Montana, Kentucky, Illinois, West Virginia, and Iowa, Black people were more than seven times more likely to be arrested for marijuana than white people. However, one commonality among all states— legalized, decriminalized, illegal — is that Black people are still significantly more likely to be arrested for marijuana than white people. And at the county level, there are places where Black people are more than 20, 30, 40, or even 50 times more likely to be arrested than white people.

On average, states that have legalized or decriminalized marijuana tend to have lower racial disparities than states in which marijuana remains fully illegal. However the relationship between legalization or decriminalization and racial disparities tends to be mixed. In some legalized states, such as Maine and Vermont, racial disparities in marijuana possession arrests increased between 2010 and 2018, while in other legalized states, such as California and Nevada, the disparities decreased. Many of these states also had racial disparities lower than the national average before they reformed their laws.

Even though legalized and decriminalized states saw a decrease in arrests overall, this does not seem to affect racial disparities, which remain. Black people are still more likely to be arrested for possession than white people in states that have legalized or decriminalized marijuana. Clearly, legalization and decriminalization alone are not enough to reverse the disproportionate harm the War on Drugs has caused to Black people and other people of color.
 
Racial profiling among law enforcement is directly to blame for these disparities. Police often target people (for stop and frisk, search, and arrest) based on their actual or perceived race rather than reasonable suspicion of criminal activity. Minor offenses — including marijuana possession — are aggressively enforced in communities of color while these same offenses are rarely enforced in more affluent, predominantly white communities. The result is the disproportionate arrest and incarceration of people of color, and particularly young people of color, who can wind up entangled in the criminal legal system with lifelong implications because of a minor offense.

Legalization is not enough

The war on people who use marijuana is still wreaking havoc in much of the U.S., particularly against people of color. States that legalized or decriminalized marijuana have seen fewer arrests and lower racial disparities on average, even though trends in the data vary widely.
 
States must legalize marijuana, and do so as a matter of racial justice. This means not only legalizing marijuana with the specific goal of undoing some of the harms of decades of racist criminal legal policies, but pursuing broader reforms in the criminal legal system to ensure that the harms of the war on marijuana do not simply re-materialize in other ways after legalization.

We must take on the war on marijuana as a whole. When states legalize, they must center legalization in racial justice by seeking to repair past harms wrought on communities of color by marijuana prohibition and ensure that people of color have opportunity and access to the burgeoning marijuana marketplace. Upon legalization, states should offer expungement and re-sentencing for past convictions, so that hundreds of thousands of people — disproportionately Black and Brown — do not remain marginalized for prior offenses. It’s also important that states not continue to use marijuana laws to over-police youth and instead decriminalize or de-penalize youth marijuana offenses to prevent funneling more young people into the criminal justice system. States also must not replace marijuana prohibition with a system of civil fines and fees.

We must include police reforms in legalization efforts. Law enforcement must take crucial steps toward ending racial profiling and harassment of Black communities, which has been a staple of the broken criminal legal system. That means ending “consent” searches that disproportionately target people of color. Police — and the federal government, which gives grants to state and local police — must also stop using raw numbers of stops, citations, summons, and arrests (including of marijuana) as a metric to measure productivity. States must divest from law enforcement as a way to solve problems and instead invest in non-punitive job, treatment, and public health programs and community-based services.
 
Prosecutors must also play a role in ending racially-biased marijuana enforcement. Just as police must end selective enforcement of criminal laws against Black and Brown people, prosecutors should refuse to move forward with marijuana arrests generally, and with any arrests that are targeted disproportionately at communities of color.

Finally, we need better data. In order to enact meaningful reform and conduct proper oversight, states need to develop systems for the routine collection of accurate data on policing. Unfortunately, the existing gaps in data do not paint a full picture of what’s going on.

There’s also significant variation in the quality of reporting across years, agencies, and places, which leaves gaps in the data that make it difficult to quantify racial disparities at the local level. Further, limitations in FBI data make it difficult to examine these disparities, particularly in regards to Latinx and multiracial people. The FBI does not count Latinx as a racial category and instead puts Latinx individuals in other racial categories — for example, Black or white. Data on white arrests thus might include many Latinx individuals, which would inflate the white arrest rate and mean that the actual racial disparities between arrests of white people and people of color is even higher.

While some states have made significant progress on marijuana reform, and the data shows that arrests are much lower in states that have legalized marijuana, marijuana prohibition is still the norm, resulting in almost 700,00 marijuana arrests in 2018 alone. Further, racial disparities in marijuana possession arrests persist everywhere, and legalization by itself is not enough to end such disparate treatment of people of color. Only by centering racial justice in marijuana legalization, enacting more comprehensive reforms, and getting better data, can we not only get an accurate picture of the state of marijuana enforcement, but forge a more effective path forward.

Read the full report | Explore the interactive data visualizer

* The report excludes Florida and Washington, D.C. because state and district officials do not submit comprehensive data to the UCR and either refused to provide the ACLU with data or did not respond to our FOIA requests in a timely manner.