A federal appeals court on Tuesday affirmed Texas’ right to ban abortions during the coronavirus pandemic, in what it described as a “drastic and extraordinary” move based on arguments that states can limit constitutional rights during emergencies.
A divided three-judge panel of the 5th U.S. Circuit Court of Appeals threw out a lower court ruling blocking the ban — one of a series of recent abortion curbs enacted by conservative-led states on the grounds abortion is not a medically necessary procedure. Similar bans have been blocked by courts in Oklahoma, Ohio and Alabama.
Precedent “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” in a public health or other emergency, wrote Judges Jennifer Walker Elrod and Kyle Duncan, both Republican appointees. “The right to abortion is no exception.”
The judges added that a U.S. District Court judge was “wrong” to have “usurped the state’s authority to craft emergency health measures” when he temporarily blocked the ban on March 30 while legal arguments played out.
The merits of the Texas law will be argued before District Court Judge Lee Yeakel on April 13.
Attorneys representing Planned Parenthood’s Texas affiliate earlier Tuesday said they would ask the Supreme Court this week to intervene in the case, arguing that “patients will suffer irreparable harm” by being forced to travel long distances during the pandemic. The attorneys are now exploring their options.
“This is not the last word—we will take every legal action necessary to fight this abuse of emergency powers,” said Nancy Northup, the president of the Center for Reproductive Rights.
Texas has argued that abortions could be suspended to conserve scarce medical equipment for treating coronavirus patients. Abortion providers in the state countered that the most common method early in pregnancy — administering medication abortion — requires no medical gear, and that creating a weeks- or monthslong delay would force the patient to seek a surgical abortion or give birth, both of which would consume more medical resources.
“Even in a national emergency, courts need to look at whether state actions are actually furthering safety and public health enough to justify infringing on constitutional rights,” said Molly Duane, a staff attorney with the Center for Reproductive Rights. “People don’t stop needing abortions just because there’s a pandemic and constitutional rights don’t cease to exist just because there’s a pandemic.”
The 5th Circuit Court of Appeals on March 31 issued a temporary stay on the District Court’s ruling.
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