Alabama’s Covid-19 Abortion Ban Can’t Stay, 11th Circuit Rules

Abortion opponents kneel in prayer outside Reproductive Health Services, an abortion clinic in Montgomery, Ala., on May 17, 2019. (AP Photo/Blake Paterson)

(CN) — Abortion providers in Alabama can continue to perform abortions through the pandemic, the 11th Circuit ruled Thursday, even as similar orders designed to swat away the abortion bans in Texas and Arkansas were overturned at the appellate level.

Calling the decision “narrowly tailored,” the 11th Circuit upheld a federal court’s preliminary injunction that prevented the state of Alabama from classifying abortions as non-essential medical procedures because weeks-long delay could hampers a woman’s ability to obtain one during a pandemic.

In an 18-page opinion, U.S. Circuit Judge Adalberto Jordan, an Obama appointee, said a judge in the U.S. District Court for Middle Alabama issued the injunction to preserve the status quo and did not abuse his discretion when doing so.

“The state argues that the order is a valid exercise of its power to issue public health orders during an emergency. But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency,” Jordan wrote.

Last year, the Legislature passed a law — which was stayed — that criminalized abortions in the state.

As part of its response to preserve personal protective equipment such as N95 masks and mitigate a surge of coronavirus cases, Alabama stopped all nonessential medical procedures in an order March 27, which it clarified April 3.

When abortion provider Dr. Yashica Robinson of the Alabama Women’s Center received a vague response from the Alabama attorney general after she asked whether abortion would be considered an essential medical procedure under the state’s coronavirus orders, attorneys with the American Civil Liberties Union took the matter to federal court.

During an April 6 evidentiary hearing, Robinson testified she believed the state did not take her medical opinion seriously and it might not believe her if she said an abortion was medically necessary.

Robinson said an abortion uses less personal protective equipment than a doctor caring for a woman’s uncomplicated pregnancy, which typically requires 10 to 13 office visits. The state presented no evidence to the contrary.

Furthermore, the state presented Senior U.S. District Judge Myron Thompson of the Middle District of Alabama with conflicting interpretations of its Covid-19 orders, the appellate court wrote.

“Because of the state’s shifting interpretations of the March 27 and April 3 orders, the district court had ample authority to issue a preliminary injunction to preserve the status quo and prevent the state from reverting to its initial and more restrictive interpretations,” Jordan wrote.

Unlike the temporary restraining orders that were overturned in Texas and Arkansas, the preliminary injunction does not carve out an exception where Alabama abortion providers are exempt from the state’s coronavirus orders, but rather stops the state from overruling a doctor’s decision over whether or not an abortion was necessary, Jordan wrote.

Alexa Kolbi-Molinas, ACLU Reproductive Freedom Project senior staff attorney, said in a statement, “this is a critical victory that recognizes that government response to the pandemic must be grounded in public health, not politics.”

Jordan was joined by U.S. Circuit Judges Beverly Martin and Robin Rosenbaum, both Obama appointees.

The Office of the Alabama Attorney General did not immediately return a request for comment.

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