In Texas Tug of War, Fifth Circuit Restores Covid-Inspired Ban on Abortion

The Fifth Circuit again sided with Texas Governor Greg Abbott, reinstating a controversial ban on non-essential surgeries — including abortions — in a purported response to the Covid-19 pandemic.

Texas Gov. Greg Abbott. (AP Photo/Sue Ogrocki)

NEW ORLEANS (CN) — For the second time in a week, the Fifth Circuit on Friday evening reinstated Texas’s highly controversial ban on abortions and non-essential surgeries in response to the Covid-19 pandemic, this time including a narrow exception allowing abortions near the state’s 22-week pregnancy limit.

In a 2-1 ruling, a three-judge panel with the New Orleans-based federal appeals court entered a temporary administrative stay of a federal judge’s second block of the ban.

“This stay operates against the April 9 TRO in all respects except that part of the TRO applying to ‘any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas — 22 weeks [pregnancy] — on April 22, 2020,’” the four-page order states.

The majority consisted of U.S. Circuit Judges Kyle Duncan — a President Donald Trump appointee — and Jennifer Walker Elrod, appointed by President George W. Bush.

The lone dissenter was Bill Clinton appointee U.S. Circuit Judge James Dennis, who would have declined to stay any part of the lower court’s block.

Planned Parenthood of Greater Texas and other abortion providers sued Governor Greg Abbott and Attorney General Ken Paxton — both Republicans — on March 25 in Austin federal court, claiming Abbott’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 Covid-19 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 non-emergency 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 Abbott’s 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 the same 2-1 majority on Tuesday.

The majority said then that 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 Thursday. “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, 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.

“Only one 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.

Paxton’s office could not be reached for comment after office hours Friday evening. One day earlier, he accused Yeakel of defying the Fifth Circuit, 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,” Paxton said. “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.”

Planned Parenthood said abortion is again largely inaccessible in Texas “at the whim” of the governor.

“Abbott has created another health crisis in the midst of a pandemic—sowing confusion, trauma, and leaving Texans without the essential health care they need,” Planned Parenthood tweeted Friday evening. “This must end NOW.”

Planned Parenthood’s president Alexis McGill Johnson said the ruling “is a nightmare inside of a nightmare.”

“One day patients are called back for their abortion procedures, the next day they’re canceled,” she tweeted. “In the middle of a pandemic, these patients are being forced to experience the trauma of medical uncertainty.”

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