Abortion Providers File Emergency Lawsuit Challenging Texas Coronavirus Restrictions

The lawsuit condemns Texas’s “blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda.”

Texas Attorney General Ken Paxton speaks about a lawsuit he filed against the federal government to end DACA during a press conference in Austin, Texas, on Tuesday, May 1, 2018. Paxton is leading a seven-state coalition in the lawsuit. (Nick Wagner /Austin American-Statesman via AP)
Texas Attorney General Ken Paxton during a press conference in Austin on May 1, 2018. Photo: Nick Wagner/Austin American-Statesman via AP

A group of Texas abortion providers filed a federal lawsuit on Wednesday challenging state Attorney General Ken Paxton’s interpretation of an executive order banning nonessential medical procedures that Paxton says includes all abortion care.

The order, signed by Gov. Greg Abbott on Sunday, advised health care providers to postpone “surgeries and procedures that are not immediately medically necessary.” Whether or not a procedure is necessary, it states, should be “determined by the patient’s physician.” The restriction on nonessential medical procedures was designed to free up personal protective equipment — like N95 respirators — for medical staff on the front lines of the Covid-19 epidemic. The bulk of the order was directed at loosening hospital regulations to increase capacity.

The restriction on nonessential medical procedures mimicked guidance released by the federal Centers for Medicare and Medicaid. Neither that guidance nor Abbott’s order specifies a list of banned procedures.

Nonetheless, on Monday, Paxton posted a warning that Abbott’s order meant that “any type of abortion” would be banned except those necessary to save a woman’s life. Anyone who violated the order, he wrote, “will be met with the full force of the law” — including possible criminal prosecution and jail time.

In response, the Center for Reproductive Rights, Planned Parenthood, and the Lawyering Project filed an emergency federal civil rights suit on behalf of Texas’s abortion providers, arguing that the state has no right to ban abortion even amid the epidemic.

Under Paxton’s interpretation, the order would deprive “patients of the freedom to make a very personal decision in consultation with their medical providers, which is all the more weighty given the increased health risks to pregnant persons during the Covid-19 pandemic,” it reads.

Since the beginning of the Covid-19 outbreak, abortion providers have taken precautions to “maximize the safety of their patients and staff and to conserve PPE,” the lawsuit states. Abortion does not generally require numerous medical staff or copious use of PPE, and rarely N95 respirators, which are so valuable for professionals providing front-line care. Medication abortion — a protocol of two pharmaceuticals taken in the earliest weeks of pregnancy — requires no PPE but would also be banned under Paxton’s interpretation.

The providers note that prior to Abbott’s order — and Paxton’s threats — medical professionals, including the American College of Obstetricians and Gynecologists, released a statement advising that abortion is essential health care. “The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.”

The lawsuit argues that Paxton’s “threats are a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity.”

As a result, providers have already had to turn away clients, and with no end to the epidemic in sight, unless blanket enforcement of the order is blocked, patients seeking care may have to wait months and some may be forced into childbearing. “Not only will these patients be deprived of their constitutional right to essential health care and self-determination, but forcing them to continue their pregnancies will in fact impose far greater strains on an already-taxed health care system, as prenatal care and delivery involve much greater exhaustion of hospital health care services and PPE than abortions,” reads the lawsuit.

“The Covid-19 pandemic and its fallout do not reduce patients’ needs for abortion,” the providers argue. “If anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care.”

Indeed, Texas has already erected a raft of barriers to access; laws passed in 2013 shuttered half the state’s abortion facilities. The state requires patients to jump through a series of medically unnecessary hoops to receive care. Lawmakers have gone so far as to suggest that abortion be reclassified as murder and that both abortion doctors and the patients they serve be eligible for the death penalty.

Anti-abortion politicians in Ohio have also tried to crackdown on abortion care amid the epidemic, and according to Rewire.News, Susan B. Anthony List President Marjorie Dannenfelser — an ally of Donald Trump’s — penned a letter to Health and Human Services Secretary Alex Azar suggesting ways that the federal government could further block abortion access.

“It’s unconscionable that the Texas attorney general is exploiting this pandemic to end abortion in the state,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “Abortion care is time-sensitive and essential health care that has a profound impact on a person’s health and life, which is why it is protected as a constitutional right. Texas is abusing the state’s emergency powers and we are filing suit … to stop it.”

Join The Conversation