Texas can ban most abortions during coronavirus shutdown: appeals court panel

The exterior of a Planned Parenthood Reproductive Health Services Center is seen on May 31, 2019, in St Louis, Missouri.
The exterior of a Planned Parenthood Reproductive Health Services Center is seen on May 31, 2019, in St Louis, Missouri. | Michael Thomas/Getty Images

An appeals court has lifted a temporary block on an executive order by Texas Governor Greg Abbott that bans most abortions during a statewide shutdown aimed at curbing the spread of the coronavirus, allowing it to take effect pending later legal action.

A three-judge panel of the United States Court of Appeals for the Fifth Circuit ruled 2-1 on Tuesday in favor of the ban on most abortion procedures, overturning a lower court decision that temporarily blocked the order.

Circuit Judge Stuart Kyle Duncan authored the majority opinion, arguing that “the escalating spread of COVID-19” as well as “the state’s critical interest in protecting the public health” should have been considered by the lower court.

“Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities,” wrote Duncan.

“These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis.”

Circuit Judge James L. Dennis dissented from the opinion, arguing that delaying the abortion procedure “could easily amount to a total denial of that constitutional right.”

Texas Attorney General Ken Paxton.
Texas Attorney General Ken Paxton.

“If currently scheduled abortions are postponed, many women will miss the small window of opportunity they have to access a legal abortion,” wrote Dennis.

“A woman has only a small window of opportunity to exercise her constitutional right to choose, and therefore Petitioners’ action in further narrowing that window will present a burden in many cases.”

Last month, pro-choice groups, including Planned Parenthood, sued Texas over an executive that deemed most abortions non-essential procedures and thus banned them as part of an overall response to the spread of COVID-19.

U.S. District Court Judge Lee Yeakel issued a temporary restraining order against Texas’ ban, arguing that it caused “irreparable harm” to those seeking an abortion.

“Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly,” ruled Yeakel last month.

“There can be no outright ban on such a procedure. 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.”

Yeakel’s block on the order was originally slated to be in effect until April 13, when a court hearing via phone was scheduled for the litigation.

Soon after his order was released, however, the Fifth Circuit panel issued a temporary stay on the block pending further legal consideration.

“Governor Abbott’s order ensures that hospital beds remain available for Coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis,” stated Texas Attorney General Paxton last week.

“Texans must continue to work together to stop the spread of COVID-19, and we must support the health professionals on the frontlines of this battle.”

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