Federal Judge Issues New Block of Texas Abortion Ban: ‘an Undue Burden’

Texas Gov. Greg Abbott shows an executive order at a March 24 news conference in Austin, regarding reporting data about the coronavirus. (Nick Wagner/Austin American-Statesman via AP)

AUSTIN, Texas (CN) — A federal judge issued a narrower block of Texas’ temporary abortion ban Thursday evening to allow for medication abortion and certain surgical abortions, two days after his original block was thrown out by the Fifth Circuit.

U.S. District Judge Lee Yeakel, a George W. Bush appointee, granted Planned Parenthood of Greater Texas’ second request for a temporary restraining order against Governor Greg Abbott’s March 21 executive order banning all abortions and non-essential surgeries in the state to preserve personal protective equipment and hospital beds during the coronavirus pandemic.

He concluded Abbott’s order is an “absolute ban on abortion” for women seeking a medication abortion before 10 weeks of pregnancy or a surgical one before 18 weeks of pregnancy by April 21. Abortions are illegal in Texas after 22 weeks of pregnancy.

“A ban within a limited period becomes a total ban when that period expires,” the 16-page order states. “As a minimum, this is an undue burden on a woman’s right to a previability abortion.”

The judge reasoned that personal protective equipment is not required for many of the tasks involved with performing an abortion, that none are required for medication abortions or for required abdominal ultrasound examinations.

“For vaginal ultrasound examinations, doctors or ultrasound technicians typically wear only non-sterile gloves that are discarded after each scan,” the opinion states. “When laboratory testing is required, technicians likewise utilize only non-sterile gloves.”

Yeakel said abortion providers generally do not use N95 masks to perform abortions.

“One only physician associated with plaintiffs has used an N95 mask since the beginning of the COVID-19 pandemic, and that physician has been reusing the same mask over and over,” he wrote.

Several abortion providers sued the state, claiming the Abbott’s order violates their due process and equal protection rights under the Fourteenth Amendment.

They complained about a press release by Texas Attorney General Ken Paxton – a fellow Republican – that singled out non-emergency abortions as violating Abbott’s order. He threatened violators with up to $1,000 in fines or 180 days in jail.

The order bans “routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.”

Yeakel issued his first block of Abbott’s order on March 30, stating it bans all nonviable abortions and is inconsistent with U.S. Supreme Court precedent.

Paxton appealed and a three-judge panel with the Fifth Circuit agreed with Texas, lifting Yeakel’s order in a 2-1 majority ruling on Tuesday.

The majority said the “drastic and extraordinary” action of banning abortions is necessary in spite of the high court’s protection of abortion rights.

Paxton accused Yeakel of defying the Fifth Circuit with his second block of the ban, claiming it demonstrates a “lack of respect for the rule of law.”

“Just two days ago, the Fifth Circuit dissolved the district court’s previous restraining order because it failed to apply settled law to the facts,” he said in a written statement. “We will once again ask the Fifth Circuit to uphold Governor Abbott’s decision to stop all elective medical procedures during the COVID-19 crisis.”

The plaintiffs are represented by the Center for Reproductive Rights. Its CEO, Nancy Northup, expressed relief that Texans have access to abortion care once again.

“The state of Texas has been trying to end abortion for decades and they are exploiting this pandemic to achieve that goal,” she said in a written statement. “Patients in Texas have not been waiting for the courts — those who are able to travel have been leaving the state to get care. Others have tragically been left behind. The need for abortion care doesn’t disappear during a pandemic.”

Texas joins Oklahoma, Iowa, Ohio and Alabama in enacting similar abortion bans during the viral outbreak.

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