The Courts

Supreme Court Ducks Abortion Dispute as Pill-Based Abortion Resumes in Texas

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Medication abortions can continue in Texas for the time being despite a state order barring nonessential medical procedures, the Fifth U.S. Circuit Court of Appeals ruled late Monday, avoiding an immediate battle in the Supreme Court.

Planned Parenthood and the Center for Reproductive Rights filed an emergency petition in the Supreme Court on Saturday, seeking clearance to continue prescribing medication abortions while legal challenges to Texas's order continue. The move was a response to an executive order issued in late March by Texas governor Greg Abbott (R.) postponing elective surgeries and procedures in order to preserve medical gear and hospital capacity needed to manage the coronavirus pandemic.

The Fifth Circuit's decision allows the High Court to avoid a politically sensitive dispute at a time when it is swamped with emergency appeals related to the coronavirus. The latest case asks the justices to pause a government rule that denies green cards to immigrants who use public benefits like Medicaid.

Saturday's request was filed with Justice Samuel Alito, who manages emergency matters arising from the Fifth Circuit. Alito did not ask Texas to respond to the providers' request. When emergency petitions are filed at the Supreme Court, the justice who oversees the relevant lower court usually calls for more legal filings in short order. Alito's move largely kept the dispute out of the High Court. Because of Monday's decision, there is no controversy for the Supreme Court to resolve for the time being.

Monday's unsigned opinion from a three-judge panel suggested that medication abortion is not properly thought of as a procedure, and therefore is not covered by the state's order. The court ruled for abortion providers given the ambiguity on that point. Medication abortion is effected by taking a regiment of pills in the early weeks of pregnancy.

Judge James Dennis wrote a concurring opinion arguing that Texas's attempt to apply its order against medication abortion "is a strong indication that the enforcement is pretextual and does not bear a ‘real or substantial relation to the public health crisis' we are experiencing."

After several rounds of legal wrangling, providers in Texas are allowed to provide pill-based abortions and conduct surgical abortions for women about to exceed the state's 20-week cutoff. Texas prevailed in earlier legal challenges, which sought to exempt abortions from Abbott's order entirely. In general, clinics in Texas say they have been forced to cancel hundreds of appointments.

Similar state efforts to restrict abortions during the pandemic have fared poorly in court. A federal appeals panel sided with providers in a dispute over Oklahoma governor Kevin Stitt's (R.) abortion restrictions on Monday. Over the weekend, a federal judge in Montgomery, Ala., blocked Alabama's virus-related abortion rules. And last week, an appeals court refused to hear Ohio's bid to defend an order blocking most surgical abortions for the extent of the emergency.

Other lawsuits are pending in Tennessee and Arkansas.

Neither the Center for Reproductive Rights nor the Texas attorney general responded to inquiries by press time.

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