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Court Allows Texas to Ban Abortions Using COVID-19 Excuse—Again


A federal court on Monday largely reinstated the contentious Texas abortion ban that state officials claim is a necessary response to the strain caused by the novel Coronavirus (COVID-19) pandemic.

The ongoing legal battle has been consistently ping-ponging for several weeks since Texas first instituted the ban in late March. Planned Parenthood and individual providers quickly sued in an effort to enjoin the restrictions–and won out at the district court level.

The very next day, conservative judges on the Fifth Circuit Court of Appeals temporarily reinstated the abortion ban by way of a terse administrative stay on the Planned Parenthood injunction.

The same court–by way of a three-judge panel–issued a significantly longer ruling one week later in the form of a harshly-worded writ of mandamus which directed the district court to allow the ban to remain in place throughout the duration of the COVID-19 pandemic.

Two days after that, however, the district court issued another temporary restraining order (TRO) which jettisoned several of those abortion restrictions. The above legal process more or less played out in much the same fashion: Texas officials moved for another writ of mandamus and parts of the TRO were administratively stayed–though the court later backed down from portions of the stay.

Monday’s ruling–again by way of a three-judge panel–is the third time that the 2-1 conservative majority on the Fifth Circuit has sided with Texas Attorney General Ken Paxton‘s order most outlawing abortions in the Lone Star State for the foreseeable future.

“We now consider the mandamus petition directed to the April 9 TRO,” the Fifth Circuit’s Monday ruling notes. “We are persuaded by [the State of Texas’s] arguments that the district court, in the April 9 TRO, disregarded our mandate in [earlier litigation].”

The ruling goes on to lambaste the district court:

Moreover, the court again second-guessed the basic mitigation strategy underlying [the Executive Order banning abortion] (that is, the concept of “flattening the curve”), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. Those errors led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures “during the escalating COVID-19 pandemic.”

The ruling also criticizes the dissent for singling out abortion as particularly worthy of protection against Texas Governor Greg Abbott‘s order suspending all “non-essential” medical procedures amidst the Coronavirus pandemic.

“Once again, the dissenting opinion accuses the majority of treating abortion differently and once again it is wrong,” the ruling continues. “At issue is whether abortion can be treated the same as other procedures under [the Executive Order]. It is the district court that treated abortion differently, issuing back-to-back TROs that did not follow the law.”

The ruling effectively bans all abortions in Texas with a small exception for women who would be past the 22-week limit for having abortions when the emergency order is currently set to expire on April 22. The State of Texas legally allows abortions up to 20 weeks into a pregnancy–but most abortion clinics count that metric as 22 weeks past a woman’s last menstrual period (LMP).

“Medication abortion is available until 10 weeks LMP, and surgical abortion until 22 weeks LMP,” the ruling notes. “Given that [the Executive Order] had only a 30-day duration, no woman would be pushed beyond the legal limit by a 30-day delay in obtaining a medication abortion.”

Alexis McGill Johnson is the acting president and CEO of Planned Parenthood. In a statement provided to Law&Crime, she criticized the appeals court’s decision.

“Once more, people in Texas face a nightmare within a nightmare,” Johnson said. “People are being forced to risk their health by traveling hundreds of miles out of state to get care. Many cannot afford to travel and are forgoing the care they need altogether.”

“A global pandemic is no time to restrict time-sensitive health care. Gov. Abbott’s extreme ideology is risking the health of women in Texas. This is politics at its absolute worst. Planned Parenthood is here with Texans’ every step of the way. We will continue to fight for patients whose health care cannot wait.”

Read the full opinion below:

5th Circuit Opinion Texas A… by Law&Crime on Scribd

[image via Gabriella Demczuk/Getty Images]

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