Texas Ends Contested Covid-19 Ban on Abortions

Texas Attorney General Ken Paxton speaks at a 2017 news conference in Dallas. (AP Photo/Tony Gutierrez)

AUSTIN, Texas (CN) — Republican Texas officials announced Wednesday evening the end of a temporary ban on abortions to conserve medical supplies and hospital beds during the Covid-19 pandemic, telling a federal judge abortions are now included under certain nonessential surgery exemptions.

Governor Greg Abbott and Attorney General Ken Paxton asked U.S. District Judge Lee Yeakel — an appointee of President George W. Bush — to not grant a preliminary injunction to Planned Parenthood of Greater Texas against Abbott’s March 21 executive order.

They claim the executive order expired Wednesday and a new executive order has since gone into effect allowing elective surgeries as long as a medical facility can certify with the state that it will reserve at least 25% of capacity to treat Covid-19 patients and not request any personal protective equipment from a public source.

“Plaintiffs state that they can truthfully certify that they qualify for the exception,” the 24-page filing states. “Having done so, plaintiffs admit the exemption applies to them. There is no controversy between the parties, and the court therefore lacks jurisdiction.”

Abbott announced on April 17 the relaxing of restrictions on non-essential surgeries, but declined to include abortions in the new exemptions. He told reporters at a press conference that “ultimately that would be a decision for the courts to make,” alluding to the lawsuit.

Several abortion providers sued Abbott and Paxton on March 25, claiming the governor’s original order banning nonessential surgeries and abortions violated their equal protection and due process rights under the 14th Amendment.

The original order banned “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 issued 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. The plaintiffs claim little to no personal protective equipment is used for medication abortions, among other procedures.

Yeakel first blocked Abbott’s order on March 30, concluding it effectively bans all abortions before viability and is inconsistent with U.S. Supreme Court precedent.

Abbott and Paxton appealed and a three-judge Fifth Circuit panel sided with Texas, lifting Yeakel’s order with a 2-1 decision on April 7. The majority concluded that “drastic and extraordinary” action of banning abortions is necessary in spite of the Supreme Court’s protection of abortion rights.

Yeakel blocked Abbott’s order a second time two days later, this time introducing exceptions for certain medication and surgical abortions.

He 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.

Abbott and Paxton then appealed to the Fifth Circuit a second time, claiming Yeakel’s insistence on blocking the ban shows a “lack of respect for the rule of law.” The same 2–1 majority reinstated the ban on April 10, but this time the panel including an exception allowing surgical abortions for pregnancies near the state’s 22-week limit on legal abortions.

Four days later, the majority declined Texas’ request to halt medication abortions as it considered the state’s latest appeal. It ultimately revoked the temporary restraining order on April 20, criticizing Yeakel’s “patently erroneous results and usurpation of the state’s authority” in carving the two exceptions.

Paxton’s office could not immediately be reached for comment after office hours Wednesday evening.

Several abortion providers began offering abortion procedures in the hours before Texas’ latest court filing, interpreting that they were in compliance with Abbott’s new executive order.

Amy Hagstrom Miller, president and CEO of plaintiff Whole Woman’s Health, said the new order allows it to “resume both medication and procedural abortions.” The private company operates eight clinics in the United States, with Texas locations in Fort Worth, Austin and McAllen.

Nancy Northrup, president and CEO of the non-profit Center for Reproductive Rights, said Texas women can “finally” get the time-sensitive care they are guaranteed under the U.S. Constitution.

“Women never should have had to go to court to get essential health care,” she said in a written statement. “We will be vigilant in ensuring there are no future interruptions to services, including by assessing the appropriate next steps to take in the case.”

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