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The Controversy Around 'Essential' Businesses


We're going to return now to a question that continues to confound, and even anger, many people across the country as government shut down most activities in an effort to contain the spread of the coronavirus. What is considered essential? Of course, some jobs, businesses, or services are recognized as essential across the board - first responders, hospital and urgent care personnel, grocery store workers and pharmacies.

But in the absence of a national stay-at-home order, individual states and cities have been making their own decisions. And some jurisdictions have chosen to define what's essential in a way that has sparked controversy, and even lawsuits. Texas, for example, is one of a handful of states that have sought to label most abortion services as non-essential. Meanwhile, in California, it's up to each county to decide whether gun shops should be allowed to remain open. And in Arizona, barbershops and hair salons seemed to be on the essential business list until the governor there reversed course.

To help us understand all this, we've called on three reporters who are covering these stories. Tara Haelle is a senior contributor for Forbes. Thomas Peele is an investigative reporter for the Bay Area News Group. And Brenna Goth is a staff correspondent at Bloomberg Government. Thank you all so much for joining us.

TARA HAELLE: Hi. Thank you.

BRENNA GOTH: Thanks for having us.

THOMAS PEELE: Sure, you're very welcome.

MARTIN: Tara Haelle, we will start with you since you've been covering the abortion ban in Texas. I understand that this ban was not originally in Governor Greg Abbott's executive order. So how did this come about?

HAELLE: The primary rationale has been that halting all abortions will preserve PPE, which stands for personal protection equipment. So that includes things such as masks and gloves and face shields. Governor Abbott didn't specify anything about abortion in the actual order. Then the attorney general, Ken Paxton, has a long, long history of being very opposed to abortion rights and looks for opportunities to involve himself in making decisions about it.

So he - the very next day, after Governor Abbott's order, he pass - he released a statement stating that that included abortion. And it was very unclear at first which abortions that included - it was assumed to be only surgical abortions. So all surgical abortions in Texas were put on hold as soon as Paxton's order came out. Then, a few days later on that following Friday, the medical abortions - abortions which use medication for termination of pregnancy - those abortions were also halted. And it wasn't really clear what the justification for those was, since those don't use PPE beyond gloves for an ultrasound. So...

MARTIN: I was going to ask you about that...

HAELLE: It was a little bit of confusion.

MARTIN: What - what is - that's - my question is, what is the argument? Because the argument around surgical abortion says it's not a treatment of a disease, and therefore these items, these scarce items like - or increasingly scarce items - like personal protective equipment needed to be reserved for more urgent matters. But that doesn't apply to medically induced...

HAELLE: Medical abortions. Right...

MARTIN: ...Medical abortions.

HAELLE: ...In Texas...

MARTIN: So what was the rationale?

HAELLE: It's not clear why they can justify it when the PPE that would be used for abortions is much less than what would be used for prenatal care and for birth services, especially if someone has a C-section.


HAELLE: I think that's part of what they're going to be debating in the courts. The question is, what happens while it's working its way through the courts? And, at first, it was allowed to proceed, and then the 5th Circuit of Appeals reversed that. So the justifications, I think, are still being worked out.

MARTIN: I was going to ask you about this because yesterday on this program we spoke to New York's attorney general, Letitia James, and she is one of - I think, at this point, it's a dozen and a half attorneys general from other states who are supporting legal challenges to the Texas order. And what's the - what's the status of that challenge now? Or what are some of the arguments that people have been making here?

HAELLE: The biggest argument is that abortion is a time-sensitive procedure. You cannot be pregnant indefinitely. There is an actual time limit to when you can start to when you can no longer seek an abortion. In Texas, that's 20 weeks. After 20 weeks, you can no longer seek an abortion. And, obviously, if you wait too long, then you are going to be giving birth. So it's not like you can delay it like you could a hip replacement or a thyroid surgery. It is something that actually depends on time-sensitive needs. And in the midst of this, we don't know how long the social distancing and the need for PPE will go on. So to delay it indefinitely is a big concern.

I think Ohio has taken a different approach that takes that into account. Ohio - it was very unclear for a while what they were allowing and what they were not. And then it was finally clarified in one of the recent lawsuits where they said that surgical abortions should be delayed until they can't be delayed. So, basically, if it's reaching a point where the woman is entering the window where she would no longer be able to have an abortion, then she is allowed to have it. So that's a little bit more thoughtful in terms of the need for PPE versus the time-sensitive nature of an abortion.

MARTIN: OK, Thomas Peele, over to you. Let's talk about California. There, Governor Gavin Newsom did not explicitly restrict gun stores as a non-essential business, but he's leaving it up to the sheriffs from each county to determine whether they should remain open. Could you just talk a little bit about the decision making there?

PEELE: Sure. This began when the Bay - when six counties in the Bay Area issued the nation's first shelter-in-place orders in mid-March. And that came, of course, with a list of businesses that they deemed essential that could stay open: grocery stores, pharmacies, gas stations - things people really need to survive, even as they're - stay home. But gun stores were not mentioned. No - no businesses were explicitly mentioned as being ordered to close, and some gun stores stayed open.

And there's been a well-documented - now - national run on guns in the last month. The FBI data is showing sales spiking. And in Los Angeles, the sheriff there, Alex Villanueva, said, very publicly, he didn't want a run on gun stores. He didn't want people who were not familiar with firearms buying them in a panic at this moment. And he ended up flip-flopping a couple of times. Los Angeles County's top lawyer issued an opinion that deemed gun shops essential. The sheriff backed off.

Next day, Governor Gavin Newsom, who is, you know, a very active proponent of gun control, was asked at a press conference about the issue, and he punted it. He - he kicked it back to the sheriff, saying that he would leave the question of whether gun shops were essential to the sheriffs in each individual county.

MARTIN: Do you have a sense of why the governor has been reluctant to make a statewide decision on this?

PEELE: You know, I think it's - it's purely political. Newsom signed 15 gun control measures last November. But I think in this instance, a large part of the state is rural. The majority of counties in California are red. Many of them are, of course, very low population. But this was just something that seemed like a bit of a third rail issue that the governor didn't want to touch.

MARTIN: So there are multiple lawsuits going on right now challenging the gun store closures, as I understand it. And I understand the NRA has already - is - has started litigation to challenge the closures in those areas where they are closed. What are the arguments?

PEELE: They're simply saying that the - that any government action to stop a citizen from being able to buy a firearm is a violation of the Second Amendment.

MARTIN: So they're not arguing that guns are essential. They're arguing that they are protected no matter what the circumstance.

PEELE: Yes, they're arguing that local governments have no constitutional authority to stop the sale of firearms.

MARTIN: So - and let's turn to Brenna Goth now. You've been reporting on Arizona Governor Doug Ducey's decisions. One, in particular, to let personal hygiene services stay open, and many took that to mean barbershops and beauty salons. But on Friday, the governor narrowed down this list and closed these businesses. So what brought about the change?

GOTH: Right. So Governor Ducey has faced a fair amount of backlash in Arizona from both mayors and some industry workers. And the concern from mayors was that, you know, these are businesses where people are getting very close to their clients. So there's really no way that someone can cut your hair from six feet away, which is the recommended social distancing guideline. So some mayors took action on their - one mayor - took action on her own to actually close these businesses. Others didn't go quite as far, but said that they really disagreed with this decision.

MARTIN: I was just going to ask, did the governor say why he exempted those businesses in the first place?

GOTH: That is something that Governor Ducey was pressed on many times in press conferences. And I would say we never got a really clear answer. Basically, what we heard when we asked about this, is that Governor Ducey would talk a little bit more about the overall executive order, and would say that he was following what he believed were the best practices, and that he believed that every business that was staying open could do so safely. But you did see a lot of people press him on that and say, you're telling people to socially distance. At the same time, there is no way that that can be done in these types of businesses.

MARTIN: I understand that golf courses are still open in Arizona. Is that still the case, Brenna?

GOTH: That is still the case. We did receive clarification on Friday that Ducey ordered barbershops, salons, tattoo parlors - those types of businesses - to close, but golf courses do remain open. That has been something that mayors around the state originally did criticize Ducey for, and I do think many of them still have concerns.

But in response to that, Governor Ducey has said that golf and other act or - outdoor activities are something that people should be doing in order to stay healthy during at least a month of being told to stay at home, and that these activities - it's a lot easier to socially distance, because you're in large outdoor spaces and, presumably, it's - it's very possible to say 6 feet away from people, would be his response to that.

MARTIN: That was Brenna Goth of Bloomberg Government. We also heard from Thomas Peele of the Bay Area News Group and Tara Haelle of Forbes. Thank you all so much for your reporting. We appreciate it.

GOTH: Thank you.

PEELE: You're very welcome.

HAELLE: Thanks for having us. Transcript provided by NPR, Copyright NPR.