Abortion providers in Texas chose not to challenge the state's far-reaching ban on abortion during the coronavirus pandemic in the Supreme Court on Wednesday.
The Fifth U.S. Circuit Court of Appeals ruled Tuesday that Gov. Greg Abbott's (R.) executive order barring elective medical procedures including abortion is permissible for the time being. The Texas providers returned to a federal judge in Austin to ask for two narrow exceptions to Abbott's order, rather than risk defeat in the Supreme Court.
The clinics' decision relieves the justices of a politically fraught emergency appeal just days after the Court was forced to resolve a dispute over voting rights in Wisconsin.
"We believe this is the fastest way to resume full access to abortion in Texas, which is our number one priority," said Molly Duane, a staff attorney at the Center for Reproductive Rights. "The Fifth Circuit suggested there are outstanding factual questions about the impact of this order. During the last two weeks, abortion has been largely unavailable in Texas, and we have seen that the impact on patients is devastating."
Abbott issued an executive order on March 22 directing health care providers to "postpone all surgeries and procedures that are not immediately necessary to correct a serious medical condition." State authorities say the order is necessary to preserve medical gear like gowns and gloves that are in short supply and protect hospital capacity ahead of an expected surge of coronavirus hospitalizations.
Failure to comply with the order can result in criminal penalties, including a fine and up to six months in jail. Texas medical authorities can suspend or revoke a medical license following conviction. The order is slated to remain in place until April 21, though it may be extended as circumstances require.
"Governor Abbott's order ensures that hospital beds remain available for coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis," Texas attorney general Ken Paxton (R.) said in a statement defending the directive. "Texans must continue to work together to stop the spread of COVID-19, and we must support the health professionals on the frontlines of this battle."
Abortion clinics in Texas sued in federal court when Paxton advised that the order included abortions. U.S. District Judge Lee Yeakel sided with the clinics, prompting an appeal to the Fifth Circuit.
A three-judge Fifth Circuit panel sided with the state in a two-to-one ruling on Tuesday. Writing for the majority, Judge Stuart Kyle Duncan said states can implement extreme measures that curtail constitutional rights when managing a pandemic, provided its policies are substantially related to the crisis. The decision relies heavily on a 1905 Supreme Court case that involved a mandatory vaccination ordinance.
"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.
With the case before Judge Yeakel again, the clinics are seeking clearance to prescribe medication abortions and perform abortions for women who are nearing Texas's 22-week cutoff.
Medication abortions are effected by pills taken over two days. The clinics say medication abortions almost never result in hospitalizations and consume no personal protective equipment. The providers warned that patients will leave Texas and seek medication abortions in other states without an exception, in conflict with the state's interest in protecting public health.
"Some patients unable to obtain a medication abortion are traveling to other states during a pandemic, thus increasing the risk of COVID-19 transmission," the clinics wrote in court papers.
As to the 22-week cutoff, the providers say data from 2017 indicate approximately 800 abortions were performed after 18 weeks in Texas. As such, they believe dozens of women who otherwise would terminate their pregnancies will be unable to do so under the governor's order.
"For these patients, the executive order's month-long duration (even assuming the order is not extended and causes no further delay past its expiration) would result in a complete denial of abortion access, and thus constitutes a ‘plain, palpable invasion' of that fundamental right," the clinics' filing reads.
Texas has indicated it will oppose both requests.