CINCINNATI (CN) — The Covid-19 pandemic does not give lawmakers the authority to curtail constitutional rights — even temporarily — the divided Sixth Circuit ruled, upholding a bar against Tennessee’s proposed three-week ban on elective abortions.
Released late Friday evening, the opinion in Adams and Boyle P.C., et al. v. Slatery III, et al. dealt with the tug-of-war between a woman’s right to have an abortion and the state’s interests in protecting the health of its citizens via its police powers during a global pandemic.
Writing for a three-judge panel, U.S. Circuit Judge Karen Moore pointed out in the opinion that “in normal times there is no way that a measure like EO-25 would pass constitutional muster,” but also conceded “we are not living in normal times; we are living in pandemic times.”
The state claimed the need to keep its citizens safe and prevent the spread of Covid-19 allowed for the imposition of a three-week ban on all elective surgeries — including abortions — and cited a century-old Supreme Court case to bolster its position.
In Jacobson v. Massachusetts, decided in 1905, the nation’s high court held the state could compel all of its adult residents to submit to a smallpox vaccination to prevent a widespread outbreak of the disease.
Moore was skeptical of the comparison.
“Leave aside,” the Clinton appointee wrote, “the myriad factual differences between this case and Jacobson — asking a person to get a vaccination, on penalty of a small fine, is a far cry from forcing a woman to carry an unwanted fetus against her will for weeks, much less all the way to term — and the challenge of reconciling century-old precedent with the Supreme Court’s more recent constitutional jurisprudence.
“The bottom line is that, even accepting Jacobsen at face value, it does not substantially alter our reasoning here. As of today, a woman’s right to a pre-viability abortion is a part of ‘the fundamental law.’”
Moore went on to say that the “paltry amount of PPE saved” by denying women access to abortions for three weeks would not have a substantial effect on the state’s goal of promoting the health and safety of its citizens.
The state argued that more people would die of Covid-19 if abortion clinics are allowed to carry on, and while Moore admitted the current situation may call for “extraordinary measures,” she called the state’s foreboding warning “purely speculative.”
Moore did agree with the state on a single point, however, and found the injunction was overly broad, and so she ordered the district court to tailor its order to three specific classes of patients.
These classes include patients who will lose their ability to obtain an abortion in Tennessee if their procedure is delayed past April 30, patients who would be forced to undergo a more complex abortion if their procedure is delayed, and patients who would be forced to undergo a two-day procedure if their abortion is delayed.
U.S. Circuit Judge Amul Thapar, an appointee of George W. Bush, penned a scathing dissent and called the injunction “deeply flawed.”
“In the midst of a once-in-a-century pandemic,” Thapar wrote, “the district court broadly enjoined the State of Tennessee from enforcing a measure at the heart of the State’s response.
“In doing so, the court committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic.
“All because the district court thought that a three-week delay for certain abortions might prevent some unidentified person from having an abortion. Most cases of judicial aggrandizement have costs. But in few are the potential costs so great.”
Thapar said the district court failed to make factual findings that the state’s proposed ban on elective surgeries imposes a burden on any of its citizens’ rights, and cited several cases in which delays for women seeking abortions were not found to violate their constitutional rights, including the 1990 Supreme Court case Ohio v. Akron Ctr. For Reprod. Health.
“The district court failed to grapple with any of these precedents,” Thapar said. “Its silence speaks volumes.”
Thapar commended Governor Bill Lee’s actions to fight the spread of the Covid-19 pandemic and scolded the district court for its failure to apply “well-settled legal principles” to the case before it.
U.S. Circuit Judge Helene White, also a George W. Bush appointee, rounded out the panel and joined in Moore’s majority opinion.
The halt of elective surgeries in several states as a method to stem the spread of Covid-19 has resulted in a slew of lawsuits across the country that aim to keep abortion clinics open and fully operational during the pandemic.
Kentucky Governor Andy Beshear vetoed legislation earlier in the day that would have allowed the state’s Republican Attorney General Daniel Cameron to shut down abortion clinics during the pandemic.
Elsewhere, the Eighth Circuit Court of Appeals upheld a temporary ban on surgical abortions – similar to the one proposed in Tennessee – in Arkansas on Wednesday.
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