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Fifth Circuit Revives Covid-Inspired Abortion Ban in Texas

A federal appeals court ruled Tuesday that Texas can enforce a ban on abortions and non-essential surgeries, agreeing with Republican state officials who claim it is necessary to protect the supply of personal protective equipment and hospital beds to fight the Covid-19 pandemic.

NEW ORLEANS (CN) — A federal appeals court ruled Tuesday that Texas can enforce a ban on abortions and nonessential surgeries, agreeing with Republican state officials who claim it is necessary to protect the supply of personal protective equipment and hospital beds to fight the Covid-19 pandemic.

In a 2-1 ruling, a three-judge panel of the Fifth Circuit ordered a federal judge to remove a temporary restraining order against Governor Greg Abbott’s March 21 order.

FILE - In this April 10, 2017, file photo, Texas Gov. Greg Abbott speaks at a new conference in Houston. Abbott on Sunday, May 7, 2017, signed a so-called "sanctuary cities" ban that lets police ask during routine stops whether someone is in the U.S. legally and threatens sheriffs with jail if they don't cooperate with federal immigration agents. (Marie D. De Jesus /Houston Chronicle via AP, File)

Writing for the majority, U.S. Circuit Judge Kyle Duncan said a person’s constitutional rights “do not disappear during a public health crisis” but that the rights could be “reasonably restricted.”

Duncan — an appointee of President Donald Trump — was joined by U.S. Circuit Judge Jennifer Walker Elrod, an appointee of President George W. Bush.

“The bottom line is this: 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,” the 32-page majority opinion states. “Courts may ask whether the state’s emergency measures lack basic exceptions for ‘extreme cases,’ and whether the measures are pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.”

Planned Parenthood of Greater Texas and several other abortion providers sued the state within days of Abbott's order, complaining about a subsequent press release by Texas Attorney General Ken Paxton that singled out non-emergency abortions as violating the 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.”

The plaintiffs claim the order violates their due process and equal protection rights under the Fourteenth Amendment. They say the order forces them to turn away abortion patients who will have to wait weeks or months for the pandemic to subside or carry the pregnancy to term.

“By stating the executive order applies to ‘any type of abortion,’ the attorney general’s news release suggests it even prohibits medication abortion, which involves only taking medications by mouth and it is not ‘surgery’ or a ‘procedure’ that falls within the terms of the executive order,” the complaint stated. “This appears to be the only oral medication targeted in this manner.”

An Austin federal judge agreed with the plaintiffs, temporarily blocking Abbott’s order on March 30. U.S. District Judge Lee Yeakel — another Bush appointee — wrote that he would “not speculate on whether the Supreme Court included a silent ‘except-in-a-national emergency-clause’” in this kind of case.

“The court will not predict what the Supreme Court will do if this case reaches that court,” Yeakel wrote. “For now, the state defendants, and perhaps the others, agree that the executive order bans all pre-fetal-viability abortions. That is inconsistent with Supreme Court precedent.”

Most of the Fifth Circuit panel disagreed Tuesday, writing the “drastic and extraordinary” action under the circumstances is necessary despite the high court’s protection of abortion rights. It noted the plaintiffs conceded that both government officials and doctors “expect a surge of infections that will test the limits of a health care system already facing a shortage of PPE.”

In a 14-page dissent, U.S. Circuit Judge James Dennis — an appointee of President Bill Clinton — called out the majority for the court’s “recurring phenomenon” of an abortion case result being based on the “subject matter of the case” instead of the law or facts.

"In a time where panic and fear already consume our daily lives, the majority's opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care,” Dennis wrote.

In a written statement, Paxton thanked the court for being attentive “to the health and safety needs of Texans suffering from” the coronavirus.

“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. “Texans must continue to work together to stop the spread of Covid-19, and we must support the health professionals on the frontlines of this battle.”

The Center for Reproductive Rights slammed the court for using a “rare procedural mechanism” to conclude the trial court erroneously blocked enforcement. It said some patients are being “forced to travel hundreds of miles in a pandemic to access basic and essential” medical care.

Nancy Northup, the center’s president and CEO, said Texas women who are able to travel are already leaving the state to get care.

“This is not the last word — we will take every legal action necessary to fight this abuse of emergency powers,” she said in a written statement. “Texas has been trying to end abortion for decades & they are exploiting [#COVID19] to achieve that goal.”

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