Texas can enforce abortion ban during coronavirus pandemic, federal appeals court rules

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

Abortion providers have characterized the state’s lawsuit as political opportunism. Most abortions do not take place in hospitals, and according to providers, they generally do not require extensive personal protective equipment, like the masks and gloves in short supply for doctors and nurses fighting COVID-19.

On March 22, Gov. Greg Abbott issued an executive order barring any procedures that are not “immediately medically necessary,” and Texas Attorney General Ken Paxton quickly declared that the order applies to any abortions not considered critical to protect the life or health of the parent. A group of abortion providers filed a lawsuit claiming that the order constituted a near-outright ban on abortions and was unconstitutional.

Already, hundreds of abortions have been canceled.

A federal judge in Austin sided with the abortion providers, temporarily blocking the state’s ban because it “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” he wrote.

But the 5th Circuit said that judge, U.S. District Judge Lee Yeakel, had erred because his order “[bestowed] on abortion providers a blanket exemption from a generally-applicable emergency public health measure.”

Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

But Texas bans abortions after 20 weeks, meaning prohibiting the procedure for any length of time leaves many patients unable to terminate their pregnancies at all. Abbott’s order is set to expire April 21 but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.

In a statement, Dyana Limon-Mercado, the executive director of Planned Parenthood Texas Votes, pledged to continue fighting the state but did not say whether providers would ask the U.S. Supreme Court to consider the case or head back to federal district court.

"We have seen relentless attacks on reproductive health care, including abortion access, for more than two decades in Texas, but the governor’s order is a new low," she said. "How cruel and out of touch with reality do you have to be to exploit a global health pandemic to further your own political agenda?”

Meanwhile, Paxton cheered the ruling, thanking the court for its "attention to the health and safety needs of Texans suffering from this medical crisis."

"Governor Abbott’s order ensures that hospital beds remain available for Coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis,” he said.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.