Circuit court upholds Texas ban on elective abortions during coronavirus

CNA Staff, Apr 8, 2020 / 09:30 am (CNA).- A Texas state restriction of abortions during the coronavirus pandemic was upheld by the U.S. Fifth Circuit Court of Appeals on Tuesday. 

A three-judge panel for the Fifth Circuit Court ruled in a 2-1 decision that Texas has the authority to halt elective abortions as non-essential medical procedures during a public health emergency. 

Citing precedent, the court said that “the pressure of great dangers” constitutional law “allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception.”

On March 31, the court had ruled in the state’s favor, putting a temporary stay on a lower court’s decision that halted Texas’ order from going into effect, and considering the matter further. 

On Tuesday, the Fifth Circuit officially granted the state’s request for a writ of mandamus, stating that the lower court was “erroneous” in providing a “blanket exemption” for elective abortions during a public health emergency.  

Texas Governor Greg Abbott on March 22 issued an executive order stopping non-essential surgeries and medical procedures in the state during the coronavirus (COVID-19) pandemic. Attorney General Ken Paxton included elective abortions, except in cases where the mother’s life or health was deemed to be at stake, as part of the non-essential medical procedures that would be halted by the order. 

Planned Parenthood and other abortion providers filed an emergency motion in court to stop the state’s act, and a Texas district court on March 30 ruled in their favor and put a temporary restraining order on the state’s act. 

On Tuesday, judges Stuart Kyle Duncan and Jennifer Walker Elrod said that the district court “usurped the state’s authority to craft emergency health measures.” 

Judge James L. Dennis, in his dissent, wrote that abortion is “time-sensitive reproductive healthcare” and “a right supported by almost 50 years of Supreme Court precedent.” The conclusion of the panel majority, he said, “is a recurring phenomenon in this Circuit in which a result follows not because of the law or facts, but because of the subject matter of this case.”

Other states, including Ohio, Alabama, and Oklahoma, have made similar attempts to restrict elective abortions during the pandemic but have not had the same success in court. 

An Oklahoma district court judge on Monday ruled that some elective abortions, including medication abortions, in the state can continue during the pandemic. The Sixth Circuit Court ruled that some abortions can proceed in Ohio, and an Alabama district court judge ruled against the state’s limit of elective abortions.

In its decision, the Fifth Circuit panel majority also noted the gravity of the new coronavirus crisis, writing that “the current global pandemic has caused a serious, widespread, rapidly-escalating public health crisis in Texas,” and that the state’s “interest in protecting public health during such a time is at its zenith.”

Tuesday’s decision might not be the end of the matter, the court said, as the district court will hold a preliminary injunction hearing on April 13 where the state and abortion clinics could discuss the state’s order applying “in specific circumstances.” 

The Fifth Circuit emphasized that the district court has the opportunity to “make targeted findings, based on competent evidence.”