Texas may continue its restrictions on abortion during the coronavirus pandemic, a divided federal appeals court ruled Tuesday, a decision likely to make its way to the Supreme Court.
A panel of the U.S. Court of Appeals for the 5th Circuit granted what it acknowledged was extraordinary relief in keeping in place an executive order issued March 22. A federal district judge said the order denied women their constitutional right to abortion.
Supreme Court precedent “instructs that all constitutional rights may be reasonably restricted to combat a public health emergency,” wrote Judge Kyle Duncan, who was nominated to the court by President Trump. Abortion would be different “only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so.”
Duncan was joined by Judge Jennifer Walker Elrod, nominated to the court by President George W. Bush. Judge James L. Dennis, a President Bill Clinton nominee, issued what he termed an emphatic dissent to his colleagues on what is generally acknowledged as the country’s most conservative appeals court.
“The majority concludes that allowing women in Texas access to time-sensitive reproductive healthcare, a right supported by almost 50 years of Supreme Court precedent, was a ‘patently erroneous’ result that must be remedied,” Dennis wrote.
“Unfortunately, this 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.”
Texas is one of a number of states where governors have tried to ban or restrict abortion during the coronavirus pandemic, classifying it as among nonessential medical procedures that must be curtailed to preserve medical resources such as personal protection equipment.
Judges have temporarily lifted those restrictions in Alabama, Ohio and Oklahoma, just as a district judge in Texas did. But the 5th Circuit temporarily stopped his order, and Tuesday’s ruling called it wrong and unsupported by the law.
“The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’ ” Duncan wrote, quoting precedent.
Texas Attorney General Ken Paxton said in a statement that the order signed by Gov. Greg Abbott (R) “ensures that hospital beds remain available for coronavirus patients and personal protective equipment reaches the hard-working medical professionals who need it the most during this crisis.”
Abortion providers, some of whom had earlier in the day threatened to go the Supreme Court if the 5th Circuit panel did not act, said they were considering their options.
“This is unconscionable,” Alexis McGill Johnson, acting president of Planned Parenthood Federation of America, said in a statement. “Patients are already being forced to put their lives in harm’s way during a pandemic, and now will be forced to continue doing so to get the health care they need. Abortion is essential, it’s time-sensitive, and it cannot wait for a pandemic to pass.”
Said Nancy Northup, president of the Center for Reproductive Rights: “This is not the last word — we will take every legal action necessary to fight this abuse of emergency powers. Texas has been trying to end abortion for decades and they are exploiting this pandemic to achieve that goal.”
In his ruling, Duncan said he did not agree. Additional review of the executive order is necessary, he said, but “on this record, we see no evidence that GA-09 was meant to exploit the pandemic to ban abortion or was crafted” to delay the procedure past deadlines set in Texas law.
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