Federal Judge Blocks Texas Ban on Abortions During Outbreak

AUSTIN, Texas (CN) – A federal judge on Monday blocked Texas’ temporary halt of abortions to conserve personal protective equipment and hospital beds for the Covid-19 pandemic patient surge, calling it a violation of abortion patients’ due process rights.

U.S. District Judge Lee Yeakel in Austin, a George W. Bush appointee, granted Planned Parenthood of Greater Texas’ request for a temporary restraining order against Governor Greg Abbott’s March 21 executive order, concluding abortion patients would “suffer serious and irreparable harm” without it.

(AP Photo/Rick Bowmer)

“The attorney general’s interpretation of the executive order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” the nine-page order states.

Abbott’s 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.”

Violators face up to $1,000 in fines or 180 days in jail. The order, which expires on April 21, also suspends state regulations that limit the occupancy of hospital rooms, which allows hospitals to now treat more than one patient in a room and boost capacity.

Planned Parenthood, seven Texas abortion providers and Robin Wallace, co-medical director at Southwestern Women’s Surgery Center in Dallas, sued Abbott and Attorney General Ken Paxton, both Republicans, within days. They argued Paxton singled out abortion providers in a subsequent press release, “suggesting that he believed provision of non-emergency abortions would violate” Abbott’s order.

“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 federal lawsuit states. “This appears to be the only oral medication targeted in this manner.”

Paxton confirmed those fears when he filed a response brief opposing the request for a temporary restraining order Monday, stating medication abortions are subject to the ban because “the definition of ‘procedure’ in the medical context is ‘a series of steps for doing something.’”

“It is possible the woman could end up in a hospital and divert Covid-19 resources as a result of a medication abortion,” Paxton’s brief stated. “Incomplete medication abortions are common. To even become certified to prescribe mifepristone, the FDA requires providers to agree that they have the ‘ability to provide surgical intervention in cases of incomplete abortion or severe bleeding, or to have made plans to provide such care through others, and ability to assure patient access to medical facilities equipped to provide blood transfusions and resuscitation, if necessary.’”

Judge Yeakel’s order blocking Texas’ temporary abortion ban relies heavily on U.S. Supreme Court precedent that “there can be no outright ban” on abortion.

“This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency-clause’ in its previous writings on the issue,” the judge wrote. “Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that court. 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.”

Paxton said he is “deeply disappointed that the court ruled against the health and safety” of Texans.

“My office is seeking prompt appellate review to ensure that medical professionals on the frontlines have the supplies and protective gear they desperately need,” he said Monday evening. “We will fight tirelessly against this politically driven lawsuit to protect the health of Texans suffering from this Covid-19 crisis.”

Planned Parenthood cheered the judge’s ruling, stating patients in Texas can get the “essential and time-sensitive care they need, for now.”

“We will continue to work day by day, week by week to safeguard the ability of our patients and community to access essential health care – no matter what,” the organization tweeted.

Alexis McGill Johnson, acting president of Planned Parenthood, express gratitude that patients can keep seeking abortions in Texas.

“To politicians and anti-abortion groups exploiting a global pandemic to score political points, heed our warning: We will not let you put the health of our patients, and the community, at risk,” she said in a written statement. “It’s time to stop wasting valuable time and resources on this opportunistic play to ban abortion. Let’s put health care first, and get back to work.”

Several other states have also issued bans on abortions during the coronavirus outbreak. On Monday, Planned Parenthood of the Heartland sued over the Iowa order in Johnson County District Court, while abortion clinic Preterm-Cleveland filed a federal lawsuit challenging Ohio’s ban and another complaint was filed in Alabama.

Jessie Hill, an attorney for the American Civil Liberties Union of Ohio, said in a statement that protecting people’s health and safety during a crisis “includes access to time-sensitive, essential abortion care.”

“The Ohio government should not use this crisis as an excuse to target abortion clinics and attempt to deny Ohioans their abortion rights. We feel confident the law is on our side and we will do everything in our power to keep the clinics open,” Hill said.

As Judge Yeakel issued his temporary restraining order, Planned Parenthood and the Trust Women Oklahoma City clinic filed a lawsuit in Oklahoma City federal court against a nearly identical executive order issued by Oklahoma Governor Kevin Stitt, also a Republican. Stitt’s March 24 order postpones all elective medical and surgical procedures to conserve protective equipment and hospital beds for Covid-19 patients.

The plaintiffs say Stitt issued a press release three days after the order that singled out abortion providers and stated the order halts all abortions in Oklahoma. They are represented by the nonprofit Center for Reproductive Rights. It’s president and CEO, Nancy Northup, says Stitt’s “abuse of emergency powers” is “dangerous and unconstitutional.”

“Oklahoma has tried year after year to limit access to abortion and the governor’s order is a cynical attempt to use the current crisis to push an ideological agenda,” she said in a statement. “We have filed suit to protect access to essential, time-sensitive health care that profoundly impacts women’s lives, health and wellbeing.”

Paxton said Tuesday afternoon that the Fifth Circuit Court of Appeals in New Orleans has stayed Judge Yeakel’s order.

“I thank the court for their immediate and careful attention to the health and safety needs of Texans suffering from the spread of Covid-19,” Paxton said. “The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need.”

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