Ruling for abortion providers delayed
5th Circuit asks for more time to consider Texas restriction on surgeries
AUSTIN, Texas — A federal appeals court on Tuesday put on hold a victory for Texas abortion providers who are trying to stop the state from shuttering clinics during the coronavirus pandemic.
The order by the 5th U.S. Circuit Court of Appeals reflects the court battles still ahead for abortion providers across the U.S. during the outbreak, even after clinics in Texas, Ohio and Alabama secured at least partial triumphs Monday.
In Texas, U.S. District Judge Lee Yeakel of Austin had ruled the “Supreme Court has spoken clearly” on a woman’s right to abortion while blocking efforts by state Republican leaders to ban the procedure during the virus crisis. But that ruling is now on hold after the New Orleans appeals court said it needed more time to consider the case.
Governors across the country in recent weeks have issued executive orders halting nonessential medical surgeries to free up hospitals, and Republicans have said abortions should be included under those mandates. Texas Attorney General Ken Paxton said Tuesday’s development “justly prioritizes supplies and personal protective equipment for the medical professionals in need.”
Lawsuits have also been filed in Iowa and Oklahoma after governors in those states similarly ordered a stop to non-emergency procedures and specifically included abortion among them.
“This is a political power play,” said Michele Goodwin, a law professor at the University of California at Irvine and author of Policing the Womb.
It’s not just red states that are seizing on the virus to advance their positions.
A group of 21 blue states urged the Trump administration to ease restrictions on a medication-abortion prescription drug, noting that many women are currently unable to seek in-person care. Another Democrat-led coalition is pushing for the federal government to lift a ban on fetal tissue research, saying the search for a virus cure should be a “top priority.”
Efforts to limit access to abortion in states across the South and Midwest have accelerated in recent years. In 2019, 46 years after the Supreme Court ruled that the Constitution protects the right to an abortion, state legislatures enacted at least 58 new restrictions, including five that effectively ban abortions six weeks after conception, which is early enough that some women don’t yet know they’re pregnant.
In response to the coronavirus, Texas Gov. Greg Abbott issued a directive barring procedures that are “not medically necessary” to preserve health and conserve scarce resources.
The Texas attorney general threatened violators with fines of as much as $1,000 or 180 days in jail, saying that abortion providers who continue to perform procedures are “demonstrating a clear disregard for Texans suffering from this medical crisis.”
The restrictions drew a quick challenge from Planned Parenthood Center for Choice and local clinics, which argued that abortion is a time-sensitive and essential procedure.
In defense of Texas’s position, 16 other states contended that even fundamental rights have to yield in emergencies.
“In the middle of responding to this threat as it unfolds, states should not be required to provide blanket exclusions to public health orders when such exclusions undoubtedly threaten the public as a whole,” the red states said in a court filing.
Yeakel ruled Monday that while the governor’s order didn’t exceed his authority, the attorney general went too far with his interpretation.
“There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”
Yeakel was appointed by former President George W. Bush, as was the judge who blocked Ohio’s measure. The ruling in Alabama was issued by a Jimmy Carter appointee.
Calling the Austin lawsuit “politically driven,” Paxton vowed to promptly appeal.
Goodwin, the law professor, said the argument that abortions aren’t essential fails because “all constitutional rights are essential.” She also said some states that are using the coronavirus as a reason to restrict abortion are the same ones that put very strict limits on when during a pregnancy a woman could legally end it.
Amy Hagstrom Miller, owner of Whole Woman’s Health in Austin, was the plaintiff who won a Supreme Court case in 2016 invalidating a Texas law requiring abortion providers to have hospital admitting privileges. She’s now fighting the governor’s coronavirus policy. She said last week her clinics had to cancel more than 150 appointments for abortions.
“It is shameful that our politicians would use a public health crisis to push an anti-abortion agenda,” she said. “The impact will disproportionately harm our communities of color, young people, low-income and rural communities.”