NEW ORLEANS (CN) – The Fifth Circuit has allowed medication abortions to continue in Texas despite Republican officials’ ban of abortions and nonessential surgeries during the Covid-19 pandemic to conserve personal protective equipment and hospital beds.
A three-judge panel with the New Orleans-based federal appeals court unanimously denied an emergency motion late Monday by Governor Greg Abbott seeking to stay a trial court’s carving of an exception for medication abortions.
The panel agreed with plaintiff Planned Parenthood of Greater Texas that “neither dispensing medication nor ancillary diagnostic elements (such as a physical examination or ultrasound) qualify as ‘procedures’” under Abbott’s executive order.
“Guidance by the Texas Medical Board may support this interpretation of the order,” the six-page opinion states. “Furthermore, the parties’ helpful written responses to our questions did not settle whether [Abbott’s order] applies to medication abortions.”
A group of abortion providers sued Abbott and fellow Republican Attorney General Ken Paxton on March 25 in Austin federal court, claiming the governor’s March 21 executive order violates their equal protection and due process rights under the 14th Amendment.
The order seeks to preserve personal protective equipment and hospital beds during the coronavirus pandemic by banning “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.”
The plaintiffs took issue with a press release by Paxton that singled out nonemergency abortions as violating the order. He threatened violators with up to $1,000 in fines or 180 days in jail. They claim little to no personal protective equipment is used for medication abortions, among other procedures.
U.S. District Judge Lee Yeakel, a George W. Bush appointee, first blocked Abbott’s order on March 30. He concluded the order bans all nonviable abortions and is inconsistent with U.S. Supreme Court precedent.
Paxton appealed and the same three-judge Fifth Circuit panel sided with Texas, lifting Yeakel’s order with a 2-1 decision on April 7. The panel concluded the “drastic and extraordinary” action of banning abortions is necessary despite the high court’s protection of abortion rights.
Yeakel blocked Abbott’s ban a second time two days later, with narrow exceptions that allow medication abortion before 10 weeks of pregnancy or a surgical one before 18 weeks of pregnancy by April 21.
“A ban within a limited period becomes a total ban when that period expires,” the trial judge wrote April 9. “As a minimum, this is an undue burden on a woman’s right to a pre-viability abortion.”
Yeakel agreed with the plaintiffs that personal protective equipment is not required for many of the tasks involved with performing an abortion and none are needed for medication abortions or required abdominal ultrasound examinations.
Texas appealed to the Fifth Circuit a second time, claiming the trial judge’s insistence on blocking the ban showed a “lack of respect for the rule of law.” In another 2-1 majority ruling, the Fifth Circuit reinstated Abbott’s ban on Friday, but included a narrow exception allowing surgical abortions for pregnancies near the state’s 22-week limit on legal abortions.
On Tuesday, the three-judge panel denied the governor’s motion for an emergency stay of the April 9 temporary restraining order as it applies to medication abortions.
Abbott’s office did not immediately respond to an email message requesting comment Tuesday afternoon.
Planned Parenthood cheered the ruling Tuesday, saying medication abortions are now accessible for those “in need of this time-sensitive health care” during the pandemic.
“The 5th Circuit Court of Appeals has backed down from an earlier ruling that allowed @GovAbbott to eliminate virtually all abortion in TX,” it tweeted Tuesday.
Planned Parenthood’s president, Alexis McGill Johnson, said patients have had a “day by day, week to week fight” for access to abortion in this case.
“While this is a very temporary relief for some Texans, many others still cannot access time-sensitive abortion procedures,” she tweeted Tuesday. “This fight is FAR from over.”
Abbott’s order is set to expire April 21 but he is widely expected to extend it.
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