On Tuesday, a federal appeals court ruled that Texas can ban women from obtaining abortions during the coronavirus crisis after a lower court blocked Gov. Abbott’s order.
A federal appeals court ruled on Tuesday that Texas can temporarily enforce a ban on abortions during the coronavirus crisis, overturning a Monday ruling from a lower court that blocked Texas from enforcing the ban.
The 5th Circuit Court of Appeals issued a temporary stay on Monday’s ruling, effectively upholding an executive order issued on March 22 by Texas Gov. Greg Abbott. Abbott ordered the postponement of “all surgeries and procedures that are not immediately, medically necessary to correct a serious medical condition or to preserve the life of a patient.”
Texas Attorney General Ken Paxton clarified the next day that the ban applies to “any type of abortion that is not medically necessary to preserve the life or health of the mother,” and that failure to comply is punishable with fines of up to $1,000 or 180 days in jail.
Abbott’s order claims the bans are intended to conserve medical supplies for health workers responding to the coronavirus outbreak, but abortion rights advocates noted that the vast majority of abortions are performed at clinics, not hospitals, and argue that states are instead exploiting the pandemic to restrict abortion access.
They’ve also emphasized that abortion itself is essential health care. Providers have already been forced to turn away patients, and such delays could “profoundly impact a person’s life, health, and well-being,” the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology said in a statement.
Planned Parenthood, the Center for Reproductive Rights, and The Lawyering Project sued Texas over its order last week, asking for an emergency stay. In their lawsuit, the groups argued that the ban was unconstitutional and deprives people “of their fundamental right to determine when and whether to have a child or to add to their existing families,” which would cause “them to suffer significant constitutional, medical, emotional, and other harm.”
On Monday, Judge Lee Yeakel of the U.S. District Court for the Western District of Texas issued a temporary restraining order preventing the ban from going into effect while the case was argued.
“The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right,” Yeakel wrote.
His order was set to expire April 13, but Texas appealed the decision and the Fifth Circuit overturned Yeakel’s order on Tuesday afternoon, issuing its own temporary stay that allows Texas to ban abortions while the case proceeds. The plaintiffs have until April 1 to file a response to the group’s decision.
In a statement praising Tuesday’s ruling, Paxton criticized abortion providers and advocates, accusing them of trying to withhold medical supplies from those from those fighting the coronavirus. “Abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis,” he said.
Meanwhile, Alexis McGill Johnson, acting president and CEO of the Planned Parenthood Federation of America, blasted Tuesday’s ruling and took aim at Gov. Abbott.
“While people everywhere are trying to survive the COVID-19 pandemic, politicians like Gov. Abbott continue this perverse obsession with banning abortion,” McGill Johnson said in a statement. “No other form of health care is being targeted this way — only abortion. Don’t be fooled: Gov. Abbott’s use of his executive order to ban abortion has nothing to do with health or safety. If Gov. Abbott cared about the lives of Texans, he’d be addressing the public health crisis at hand.”
She added that Planned Parenthood intended to continue standing up for patients and would “not cower before politicians who insist on exploiting a global pandemic to score political points.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, similarly said that her organization would “continue fighting this legal battle against Texas’s abuse of emergency powers.”
“The Fifth Circuit is escalating the fear and confusion women seeking abortion in Texas are already experiencing,” Northrup said in a statement. “The trial court found just yesterday that women will suffer irreparable harm if clinics are closed.”
The Center for Reproductive Rights and Planned Parenthood, along with the American Civil Liberties Union, are also involved in lawsuits in Ohio, Alabama, Iowa, and Oklahoma, where they’ve challenged similar orders banning abortions. Other states, such as Pennsylvania, have also stopped elective procedures, but have done so without banning abortions.
On Monday, federal judges in Alabama and Ohio blocked those states’ attempts to ban abortion during the coronavirus outbreak, and those bans have yet to be overturned. Federal Judge Myron Thompson, from the Middle District of Alabama, wrote that the Alabama attorney general’s interpretation of a March 27 order limiting medical procedures during the outbreak was too broad and could impose an undue burden on women.
“Because the state’s law imposes time limits on when women can obtain abortions, the March 27 order is likely to fully prevent some women from exercising their right to obtain an abortion,” Thompson wrote.
Thompson halted the order until at least April 13 and gave the Alabama until the end of the day on Wednesday to file a response to the clinics’ request for a preliminary injunction. The plaintiffs have until Friday to respond.
In Ohio, federal Judge Michael Barrett in the Southern District of Ohio granted a temporary restraining order for 14 days, writing that the Ohio Department of Health’s order halting nonessential procedures “likely places an ‘undue burden’ on a woman’s right to choose a pre-viability abortion, and thus violates her right to privacy guaranteed by the Fourteenth Amendment.”
Barrett also said the state failed to prove that performing surgical abortions would “result in any beneficial amount of net saving of [personal protective equipment] in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion,” and noted that enforcement of the order would “inflict irreparable harm.”
Ohio Attorney General Dave Yost plans to appeal. “The state of Ohio’s overriding interest is to save lives in light of the COVID-19 public health emergency,” Yost said. “That’s the only reason for the Health Department’s order.”
Alexis McGill Johnson of Planned Parenthood certainly agrees with the sentiment. “How heartless do you have to be to, in a time of crisis, take extraordinary measures to take away people’s health care,” she asked on Tuesday. “Abortion is essential health care, and it is urgent and time-sensitive.”