Texas abortion providers asked the Supreme Court on Saturday to allow some forms of abortion to continue, despite a state order barring nonessential medical treatments.
Texas governor Greg Abbott (R.) on March 22 imposed a far-reaching ban on elective procedures, including abortion, to preserve medical supplies needed to fight the coronavirus pandemic. Though an initial challenge to the ban failed, lawyers for Planned Parenthood and the Center for Reproductive Rights are seeking an exception for pill-based abortions, which are effective in the early weeks of pregnancy.
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"Texas is blatantly abusing its emergency power to obliterate Roe v. Wade," said Nancy Northup, president of the Center for Reproductive Rights. "This tactic of using bogus health and safety justifications to close clinics is nothing new."
The case marks the second time in a matter of days that the Supreme Court has been forced to resolve an emergency dispute involving core constitutional rights during the coronavirus crisis. Partisans disagree over the cause of the breakneck legal fights. Conservatives say trial judges are forcing emergency appeals by issuing baseless decisions. Liberals blame Republican officials for exploiting the pandemic to achieve political objectives. Regardless of fault, the Supreme Court shoulders the burden of the outrage, showing the justices are not immune from the heavy toll the coronavirus has taken on public faith in the institutions of government.
Planned Parenthood and other abortion providers have contested the order’s reach for nearly two weeks over several rounds of legal sparring. U.S. District Judge Lee Yeakel initially sided with the clinics and said abortions could continue in Texas, Abbott’s order notwithstanding. The Fifth U.S. Circuit Court of Appeals overturned Yeakel’s order on Tuesday, in a significant victory for the state. The clinics returned to the trial court seeking a narrow exemption for abortions effected by pill. Yeakel granted the request, but the Fifth Circuit again put Yeakel’s decision on hold, prompting an appeal to the Supreme Court.
Abbott’s order puts a hold on any procedure that is not "immediately necessary to correct a serious medical condition," citing pending shortages of gowns, masks, sterile gloves, and other personal protective equipment (PPE) as well as a need to preserve the state’s hospital capacity as it manages the pandemic. The order will remain in effect through at least April 21, though an extension is likely.
In a typical week, a clinic in Austin provides approximately 30 medication abortions. Since Abbott’s order took effect, the clinics say they have turned away hundreds of patients seeking to terminate by pill.
In their emergency appeal to the Supreme Court, the clinics warn that delays in abortion availability increase health risks as pregnancy progresses and extract a serious emotional and financial toll. As far as the coronavirus is concerned, the clinics say that on balance the medication abortion ban increases consumption of scarce medical supplies. That’s because proscribing medication does not require any PPE. Pregnant women, on the other hand, need continuing care in the form of ultrasounds and diagnostic tests, which consume the very supplies Texas wishes to preserve.
"Patients who could otherwise obtain early medication abortions … will be unable to obtain an abortion in Texas for at least several weeks," the providers’ emergency application to the Supreme Court reads. "As a result, they will be forced either to remain pregnant and endure the physical, economic, and emotional consequences of pregnancy or to undertake risky and expensive travel to other states where abortion is still available."
The state counters that clinics consume PPE during pre-termination appointments, where physical examinations and ultrasounds are required. Texas has also cited concerns that clinics themselves might serve as vectors for transmission and that complications from pill-based abortion will result in needless hospitalizations.
The Fifth Circuit upheld Abbott’s abortion ban, ruling that the states "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."
The decision left open the possibility that medication abortions could continue, provided the clinics could show they did not waste PPE.
When Yeakel issued a new order allowing pill-based abortions, the Fifth Circuit put the decision on hold. In an unsigned opinion, the court chided Yeakel for failing to conduct a "careful parsing of the evidence," noting the judge issued his second order before Texas had a chance to respond in legal filings.
Saturday’s dispute is the second abortion case the justices are weighing this term. In March the Supreme Court heard a challenge to a Louisiana law which requires that abortion providers have admitting privileges at a nearby hospital. A decision is expected by June.
The case is No. 19A1019 Planned Parenthood Center for Choice v. Abbott.