A divided federal appellate court allowed Texas to at least temporarily block abortions during the coronavirus pandemic.
The 5th U.S. Circuit Court of Appeals ruled 2-1 on Tuesday to overturn a lower court's temporary restraining order against Texas Attorney General Ken Paxton's executive order halting abortion procedures. Paxton said his action was part of the state's broader order postponing non-urgent medical procedures.
On Monday, federal judges in Ohio and Alabama blocked similar abortion postponement moves by Republican officials in those states. There are similar orders in Iowa, Mississippi, and Oklahoma.
Under the Texas order, providers who violated the ban faced a $1,000 fine or 180 days of jail time.
Abbott and GOP officials in other states argued that a temporary ban on abortions was necessary to prioritize supplies and personal protective equipment for healthcare workers serving patients who may be infected with COVID-19.
The 5th Circuit panel ordered the Texas abortion providers who challenged Abbott's order—represented by the Center for Reproductive Rights, the Lawyering Project, and Planned Parenthood Federation of America—to file a response to Abbott's emergency motion for a stay by Wednesday morning.
In an unusual move, the appellate panel issued the stay before the plaintiffs had an opportunity to respond. Judge Jennifer Walker Elrod, a George W. Bush appointee, and Kyle Duncan, a Donald Trump appointee, were in the majority.
Judge James Dennis, a Bill Clinton appointee, dissented from the majority opinion. He wrote that he would deny the stay because the lower court had concluded that irreparable harm would result from allowing Abbott's executive order prohibiting abortions. He noted that Abbott's order exempted procedures that "would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster."
The cases challenging these state prohibitions on abortion during the pandemic could go quickly to the U.S. Supreme Court.
Abortion providers including Whole Woman's Health and Planned Parenthood sued to block the Texas policy on Monday. They said had to cancel hundreds of appointments for abortions.
They argued the restrictions violate the constitutional right to abortion set out by the Supreme Court in Roe v. Wade in 1973.
U.S. District Judge Lee Yeakel in Austin ruled Monday that Paxton's order "prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable."
Abortion rights supporters say GOP state officials who long have promoted anti-abortion policies are using the COVID-19 crisis as an excuse to implement an abortion ban.
"Abortion is essential health care, and it is urgent and time-sensitive," said Alexis McGill Johnson, acting president of the Planned Parenthood Federation of America, in a written statement. "While people everywhere are trying to survive the COVID-19 pandemic, politicians like (Texas) Gov. Abbott continue this perverse obsession with banning abortion."
The American College of Obstetricians and Gynecologists has said that abortion is an essential, time-sensitive procedure and that delaying it can profoundly affect a woman's life, health, and well-being.