A federal appeals court has temporarily reinstated the controversial Texas abortion ban inspired by and, as the state argues, justified by the novel Coronavirus (COVID-19) pandemic and response.
The exceedingly brief and whiplash-inducing ruling does not contain an iota of argumentation in favor of issuing the administrative stay on the prior injunction and was decided 2-1 by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit.
On Monday, the U.S. District Court for the Western District of Texas enjoined the abortion ban as a violation of the constitutional right to an abortion under the 14th Amendment. U.S. District Judge Lee Yeakel wrote as follows:
Specifically, the court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates Plaintiffs’ patients’ Fourteenth Amendment rights, which derive from the Bill of Rights, by effectively banning all abortions before viability. The Due Process Clause . . . protects a woman’s right to choose abortion and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions.
That decision resulted after Planned Parenthood and a coalition of women’s rights groups and medical providers sued the Lone Star State last week. It all started when Texas Governor Greg Abbott issued an executive order which limited “elective” and “non-urgent” medical procedures due to their strain on the medical system and material needed for the national war against an “invisible enemy,” namely the Coronavirus. The governor’s order said nothing directly about abortion.
It wasn’t Abbott’s initial order that drew advocates’ ire or the quick legal challenge. Rather, it was explanatory guidance provided to law enforcement by alleged felon and Texas Attorney General Ken Paxton.
“We must work together as Texans to stop the spread of COVID-19 and ensure that our health care professionals and facilities have all the resources they need to fight the virus at this time,” Paxton said in the press release clarifying that abortion providers were expected to close up shop. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
Many people, including Judge Yeakel, rubbished that interpretation as plainly unconstitutional and overreaching.
“Under the attorney general’s interpretation, the Executive Order either bans all non-emergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of pregnancy, and even earlier among patients for whom medication abortion is not appropriate,” the lower district court judge noted. “Either interpretation amounts to a previability ban which contravenes Supreme Court precedent.”
The injunction issued by the West Texas district court, however, didn’t even survive 24 hours before the Fifth Circuit issued its stay. Earlier in the day, one ACLU attorney described that court as a “conservative” and “bullying” segment of the federal bench.
Bloomberg News Supreme Court reporter Greg Stohr noted the upshot of the conclusory decision via Twitter: “Expedited briefing means we could get word on a longer stay/ban as early as tomorrow evening.”
The arguments from the conservative majority on the stay are likely to be issued soon. But expect the plaintiffs to appeal for an en banc hearing of the lawsuit challenging Texas’s Coronavirus-themed abortion ban. That’s where the entire court hears the case, not just three of its judges.
And, notably, Circuit Judge James L. Dennis, the sole judge who ruled Tuesday that abortions should be allowed to continue, issued the following stinging dissent:
A federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time. I would deny the stay. Moreover, I write separately to make clear that per the Executive Order, “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster” is exempt.
The other two judges named on the order, Jennifer Walker Elrod and Kyle Duncan, did not explain their votes. Duncan was appointed by Donald Trump. Elrod was appointed by George W. Bush.
Judge Dennis was appointed by Bill Clinton.
Acting Planned Parenthood President and CEO Alexis McGill Johnson said in a statement obtained by Law&Crime that Gov. Abbott has a “perverse obsession with banning abortion.”
“How heartless do you have to be to, in a time of crisis, take extraordinary measures to take away people’s health care? Abortion is essential health care, and it is urgent and time-sensitive,” she said. “While people everywhere are trying to survive the COVID-19 pandemic, politicians like Gov. Abbott continue this perverse obsession with banning abortion.”
Lawyering Project senior counsel and director Rupali Sharma called the Fifth Circuit ruling unconstitutional.
“Today’s ruling will push abortion out of reach for some Texans. That’s not only unconscionable, it’s unconstitutional,” Sharma said.
Editor’s note: statements from Planned Parenthood and the Lawyering Project were added post-publication.
[image via Gabriella Demczuk/Getty Images]
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