Abbott said the reason was to preserve scarce medical resources such as hospital beds and personal protective equipment (PPE). Governors around the country have issued similar orders, and judges in Alabama, Ohio and Oklahoma said the restrictions could not be applied to a woman seeking an abortion.
Supreme Court precedent “instructs that all constitutional rights may be reasonably restricted to combat a public health emergency,” wrote Judge Stuart Kyle Duncan, ordering a district judge to dissolve his decision that said abortion was exempted.
Rather than asking the Supreme Court to overturn the 5th Circuit, attorneys for clinics and abortion rights organizations asked the district court to exempt women seeking abortions induced by medication, which require little use of medical equipment, and women who face a deadline in receiving the procedure. Texas does not allow abortions after 22 weeks.
“We believe this is the fastest way to resume full access to abortion in Texas, which is our number one priority,” said Molly Duane, staff attorney at the Center for Reproductive Rights. “ … During the last two weeks, abortion has been largely unavailable in Texas, and we have seen that the impact on patients is devastating. That is exactly what we will show the district court.”
Abbott issued his executive order March 22 and said it would remain in place through April 21. It told doctors and hospitals to “postpone all surgeries and procedures that are not immediately medically necessary.” But it exempted “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”
The next day, Attorney General Ken Paxton (R) said the restrictions applied to all abortion procedures.
U.S. District Judge Lee Yeakel issued a temporary restraining order. “The benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care.”
Medication abortion involves a patient taking pills and is available in Texas through the 10th week of pregnancy. It almost never involves hospitalization, the abortion providers said in their brief, and thus a ban on it does not serve the purposes of the executive order.
“Medication abortion itself requires no PPE, while the patient’s only alternative to medication abortion — continuing the pregnancy — does require PPE,” according to the brief.
It says providing an exception to women about to meet the 22-week cutoff for surgical abortions would be in line with the 5th Circuit’s order. Two of the three judges said the record did not support a finding that the executive order was “a pretext for targeting abortion.”
The brief also said Texas has indicated it will oppose the new motion abortion providers are advancing.