The legal tug-of-war between Texas abortion providers and the state’s leaders who want to ban the procedure during the coronavirus pandemic landed at the U.S. Supreme Court on Saturday night.
Twice, a Texas district judge has agreed with the providers that the state’s prohibition of medical procedures that are not “immediately medically necessary” cannot be enforced against the time-sensitive and constitutionally protected right to abortion.
And twice, a panel of the U.S. Court of Appeals for the 5th Circuit has intervened. In its ruling Friday, the panel said on a 2-to-1 vote that only women who might not be able to receive an abortion before the state’s 22-week limit could receive a waiver.
Abortion providers, represented by Planned Parenthood and the Center for Reproductive Rights, among others, said the Supreme Court’s intervention “is urgently needed.”
“Virtually all Texas residents with unplanned pregnancies are unable to access early abortion care through medication abortion and must instead wait until they reach a more advanced stage of pregnancy,” their petition to the court said. “Delaying abortions by weeks does nothing to further the state’s interest in combating COVID-19, and indeed runs directly contrary to that interest: individuals will require more health care — even in the short-term — if they remain pregnant than if they have a desired abortion, and some will engage in risky, out-of-state travel in an attempt to access earlier abortion services, thus increasing contagion risks in the midst of a pandemic.”
Gov. Greg Abbott, a Republican, issued his executive order March 22, saying a delay on elective surgery procedures was necessary 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.
U.S. District Judge Lee Yeakel in Austin has ruled the same way. First, he said the ban could not apply to abortions. After a panel of the appeals court told him to dissolve his order he issued a new one at the bequest of abortion providers, saying the ban would not apply to women seeking abortions induced by medication and those who would soon not be able to obtain an abortion at all because of the state’s 22-week deadline.
The panel again disagreed. The judges let the ruling stand regarding women close to the deadline, but not to those seeking a medication abortion.
Abortion rights lawyers say that procedure, allowed up to the 10th week of pregnancy in Texas, involves the woman taking two pills and does not require providers to use much, if any, of the PPE the state wants to conserve.
The state, represented by Attorney General Ken Paxton, a Republican, has said even medication abortions require staff to use PPE for initial visits, and incomplete medication abortions could require hospitalization.
The providers say the risk is extremely rare, and the state is using the pandemic to further its long-running battle against abortion.
The providers asked the court to set aside the appeals court decision and reinstate Yeakel’s most recent temporary restraining order.
Meanwhile, a state district judge in Travis County has temporarily blocked enforcement of Abbott’s order to limit jail releases during the new coronavirus pandemic. She cited unconstitutional provisions and overreach of executive power in the gubernatorial order.
State District Judge Lora Livingston issued her ruling Friday night after a lawsuit this week challenged the governor’s order that prohibited judges from releasing some inmates without paying bail. Abbott’s order was prompted by some local officials moving to reduce the number of people locked up in disease-prone county jails. He said “releasing dangerous criminals in the streets is not the solution.”
Abbott’s order banned the release of jail inmates accused or previously convicted of a violent crime on no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.
Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas argued in their lawsuit filed Wednesday that Abbott’s order violates the constitutional separation of powers and keeps only poor defendants in jails. The plaintiffs, represented in part by the ACLU of Texas and the Texas Fair Defense Project, asked the court to declare Abbott’s order unconstitutional and an overreach of his power.
Livingston’s order is in effect until April 24, when another hearing will be held.