Fifth Circuit Court of Appeals Upholds Texas Abortion Ban During Pandemic

Fifth Circuit Court of Appeals Upholds Texas Abortion Ban During Pandemic

The U.S. Supreme Court might soon consider a federal appeals court ruling this week that temporarily allows a ban on most abortions in Texas as part of the state’s coronavirus restrictions.

The U.S. Court of Appeals for the Fifth Circuit ruled 2-1 on Tuesday supporting the temporary ban Texas Governor Greg Abbott instituted by executive order March 21 to help ensure emergency room staff have the necessary resources available to treat COVID-19 patients. Abortion, under the order, is considered nonessential.

Court-imposed restraining orders blocking similar abortion bans are still in effect in Alabama, Ohio and Oklahoma, making the Supreme Court’s intervention to resolve the legal debate increasingly likely.

The lower court’s block on the abortion ban in Texas was to have remained in effect until April 13. But Circuit Judge Stuart Kyle Duncan wrote the majority opinion stating, “the escalating spread of COVID-19” and “the state’s critical interest in protecting the public health” should have carried more weight with the lower court.

“Faced with the 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,” Duncan, a President Trump appointee, wrote. “These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis.”

When U.S. District Court Judge Lee Yeakel first blocked the temporary abortion ban in Texas, he all but invited the Supreme Court to weigh in on the matter by saying, “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, a George W. Bush appointee, wrote further, “Only the Supreme Court may restrict the breadth of its rulings.”

Texas Attorney General Ken Paxton said the issue, however, couldn’t be more straightforward. “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,” said Paxton. “It is unconscionable that abortion providers are fighting against the health of Texans and withholding desperately needed supplies and personal protective equipment in favor of a procedure that they refer to as a ‘choice.’”

Paxton said the order applied to any abortion that was not required to protect the life or health of the person receiving it. The penalty for violating the abortion ban is $1,000 or 180 days of jail time.

U.S. Surgeon General Jerome Adams and the federal Centers for Disease Control have directed health care facilities to reschedule nonurgent appointments and elective procedures, both to limit the spread of the coronavirus and to free up time and resources to focus on infected patients.

Judge Charles B. Goodwin, a 2018 Trump appointee, ruled April 6 that Oklahoma Governor Kevin Stitt’s executive order postponing “all elective surgeries” including abortions during the coronavirus pandemic “may not be enforced with respect to any patient who will lose her right to lawfully obtain an abortion in Oklahoma.” Goodwin also blocked a prohibition on medication abortions.

Planned Parenthood, the American Civil Liberties Union and the Center for Reproductive Rights were co-plaintiffs in the lawsuit filed against the state of Texas. Planned Parenthood called the Fifth Circuit’s ruling “unconscionable” and an “injustice.”

Photo: dallaspaparazzo/Alamy Live News

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