Update: March 31, 2020, 3:55 p.m. ET
In near record time, the 5th U.S. Circuit Court of Appeals temporarily halted a lower court order that would have protected access to abortion in Texas amid the Covid-19 crisis.
The 2-1 majority opinion in the 5th Circuit lifted the lower court’s ban in order to give the appellate court time to further consider Texas’s appeal. Texas has said it has the right to ban all abortions in the state in order to halt the spread of the coronavirus and preserve personal protective equipment for front-line providers — an argument that did not sway district court Judge Lee Yeakel, who issued the temporary restraining order against the state less than 24 hours ago.
The speed with which the appellate court took action is startling though not entirely surprising. The court, which has long been among the most outwardly hostile toward reproductive rights, has grown even more ideological since Trump took office vowing to pack the court with anti-abortion jurists.
Notable was the lone dissent, by Justice James L. Dennis, who wrote that Yeakel had “already concluded that irreparable harm would flow” to patients by allowing the state “to prohibit abortions during this critical time.” He also noted that the executive order at issue in Texas includes an exemption for medical procedures that will not deplete hospital capacity or PPE needed to fight Covid-19.
“The 5th Circuit is escalating the fear and confusion women seeking abortion in Texas are already experiencing,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We will continue fighting this legal battle against Texas’s abuse of emergency powers.” The court has given the state’s abortion providers until 8 a.m. on April 1 to respond.
On March 30, federal judges in three states granted temporary restraining orders protecting access to abortion amid the coronavirus outbreak.
The court orders — in Texas, Alabama, and Ohio — came after state officials used executive actions to limit nonessential medical procedures and impose restraints on social gatherings. In each, state attorneys exploited the ongoing Covid-19 crisis to interpret the orders to ban all access to abortion except in life-threatening situations.
“Let this swift ruling send a clear message to politicians and anti-abortion activists in other states,” Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, said in a press statement Monday night. “Exploiting a global pandemic to ban abortions is illegal.”
The three states are among five that have been sued by a group of reproductive and civil rights organizations — including Planned Parenthood, the Center for Reproductive Rights, the American Civil Liberties Union, and the Lawyering Project — on behalf of abortion providers and their patients. Temporary restraining order requests in two states, Oklahoma and Iowa, are pending. An amicus brief filed with the Texas court, in which 15 state attorneys general amplified Texas Attorney General Ken Paxton’s argument that the state has the power to deprive individuals of certain rights in times of trouble, suggests that additional legal challenges are to come.
Lawyers for Texas, Ohio, and Alabama have variously argued that banning the procedure will help slow the spread of the virus and increase access to personal protective equipment for use by providers on the front lines of the Covid-19 outbreak.
But Monday’s rulings call that rationale into question. Judges in each of the three states noted that the executive orders at issue don’t actually ban any particular procedures. Instead, state lawyers have opined that the orders include a blanket prohibition against abortion, which they suggest is almost never an essential health service — contrary to the opinion of medical experts.
In his order, Texas federal Judge Lee Yeakel notes that the state’s lawyers “well describe the emergency facing the country” and concludes that Gov. Greg Abbott’s order halting nonessential medical procedures “does not exceed the governor’s power to deal with the emergency.” But, he wrote, “the attorney general’s interpretation of the order constitutes the threat of criminal penalties against those whose interpretation differs.”
In both Ohio and in Texas, it appears the decisions to interpret the orders as banning all abortion were driven strictly by anti-abortion politics. Ohio Attorney General Greg Yost’s office wrote threatening letters to three of the state’s abortion providers after receiving “complaints” that they were still providing services. Though Ohio has declined to say exactly where the complaints came from, last week, Right to Life of Greater Cincinnati boasted that it had video from outside one clinic that was still providing care despite the official “mandate” that all essential procedures be halted. The group called on supporters to contact Gov. Mike DeWine and the Ohio Department of Health to complain. The first letters to providers from Yost’s office went out that day.
Following Abbott’s order in Texas, at least one anti-abortion group took to Twitter to solicit complaints from the public. Paxton’s legal interpretation of the order quickly followed. A second group, Texas Right to Life, falsely claimed that abortion providers in the state were “hoarding” personal protective equipment like N95 respirators, which have been in short supply for front-line providers. Lawyers for Paxton’s office repeated the false claim during a case conference with Judge Yeakel, accusing providers of seeking to keep “thousands” of masks for their own use. N95 respirators are rarely used in abortion procedures and few providers even have them.
Still, each of the executive orders at issue has some caveat to the ban on medical procedures — in Texas and Ohio, for example, they refer to the judgment of medical professionals in determining what’s necessary. In his opinion, Ohio federal Judge Michael Barrett made it plain: “If a health care provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions, said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortion.” In Alabama, federal Judge Myron Thompson also noted that the state’s executive order was vague and that the state had “declined” to clarify its meaning for providers.
Officials in each of the states now subject to restraining orders have also essentially argued that state executive powers in times of emergency trump reproductive rights. But each of the three judges disagreed, writing, in various ways, that usurping a constitutional right to any pre-viability abortion was not something a state could do. “The Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “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.”
In all, the judges concluded that banning abortion even for the theoretically short-term period covered by the state orders undermines constitutional rights and would ultimately conscript some women into motherhood. “For some patients, such a delay will deprive them of any access to abortion,” Yeakel wrote.
The temporary restraining orders will remain in effect until the judges can consider whether they should be further enjoined.
Paxton, the Texas attorney general, vowed an immediate appeal to the 5th U.S. Circuit Court of Appeals. “I am deeply disappointed that the court ruled against the health and safety of Texans,” he said in a statement. “We will fight tirelessly against this politically driven lawsuit.”