AUSTIN -- A lawsuit over whether Texas can halt abortions under coronavirus executive orders ping-ponged back and forth between federal courts, resulting in periods of little to no access, over the last month.
The heated legal fight, which at one point appeared to be headed to the U.S. Supreme Court, dwindled last week under a new gubernatorial order that eased restrictions on elective medical procedures, allowing abortions to resume.
But while the fight over Texas’ pandemic ban on elective procedures may have not led to changes in longstanding legal precedent, both supporters and foes of abortion say it did have consequences.
In the near-term, the hundreds of procedures that were canceled or delayed as the case was being decided are now having to be rescheduled.
“We expect to see an influx although not immediately, but fairly soon,” said Bridget Schilling of the Houston-based Clinic Access Support Network, a practical support fund for women seeking abortions.
Under the legal back-and-forth, federal judges at times allowed providers to offer only early-stage abortions induced by pills and surgical abortions for women on the cusp of Texas’ gestation limit. Now the women who didn’t qualify for those options may rush to seek care. This may overwhelm clinics, Schilling said.
“There's that that donut hole of people who were kind of caught in the middle there who had to wait about a month between maybe knowing that they wanted to get an abortion and actually being able to, so you're going to have a delay,” she said.
And in the long-term, experts say the case highlighted issues that could resurface under an extended pandemic or future public health emergencies.
“The litigation raises questions about how courts will treat claims that the pandemic efforts of states violate constitutional rights,” said Elizabeth Sepper, a professor of law at the University of Texas at Austin. “And some scientists say there’s going to be future pandemics that will line up right behind COVID, so determining where the line of permissible activity matters quite a bit.”
How it all ended
After Gov. Greg Abbott eased his restrictions on elective medical procedures during the pandemic, at first it was unclear whether abortions could resume. But state attorneys eventually ceded, agreeing with abortion providers last week that they could be exempt under a new order that permits medical procedures that do not “deplete” needed supplies of personal protective equipment.
Abortion providers and advocates had long argued that the procedures were necessary medical care, and in many cases, especially for medically induced abortions, did not require a lot of PPE.
They say the fight, which began when Texas Attorney General Ken Paxton warned providers of fees and jail time last month, was another example of the state’s conservative leaders using any reason to restrict abortions.
“It was a convenient excuse for them,” said Blake Rocap, legislative counsel for NARAL Pro-Choice Texas. “Either out of the sincere belief that they want to really ban abortion or an opportunity to get their anti-abortion political brownie points with part of their political constituency.”
Meanwhile, anti-abortion groups say state leaders, who are beginning to reopen the economy, had a legitimate interest in protecting public health.
“We’re really grateful to the governor for issuing these executive orders that have been intended to protect the public and the medical providers serving the public,” said Joe Pojman, executive director of the Texas Alliance For Life.
The one thing both sides agree on is that the future of abortion law now hinges on a U.S. Supreme Court case from Louisiana that reopens questions about other restrictions on abortion, namely whether the state can require doctors who perform abortions to have admitting privileges to nearby hospitals.
The requirement was previously struck down in the Whole Woman’s Health v. Hellerstedt case sparked by a 2013 Texas law. But the U.S. 5th Circuit Court of Appeals still upheld the law, arguing that the circumstances and impact of the requirement would be different in Louisiana.
Now, the more conservative Supreme Court will have to decide whether the 5th Circuit’s ruling conflicts with the precedent set in Whole Woman’s Health’s lawsuit against Texas. But the impact could go beyond Louisiana, opening the door for the court to rewrite its current framework on abortion laws and allow states to impose more restrictions.
“That's really going to be a big touchstone moment in what the constitutional right to abortion looks like going forward,” Rocap said.
The high court heard arguments in March and is expected to deliver a decision sometime early this summer.
Impact of the ‘ban’
Meanwhile, the politically conservative judges on the 5th Circuit Court also played a key role in the fight over Texas’ pandemic abortion ban. While states in other parts of the country also tried to ban abortions, they were largely blocked by federal courts. But the 5th Circuit overruled a district court’s orders that would have halted Texas’ ban four times during the lawsuit.
“Normally they would defer to the trial court's judgment,” Rocap said. “Because it was a case about abortion, they were willing to take extraordinary measures to allow the state to enforce its ban… So the court's willingness to again treat cases happening to be about abortion differently than others, again revealed itself.”
The appeals court argued that the state had broad latitude to protect public health.
“The Supreme Court has well-established precedent saying that during times of public health emergencies, reasonable restriction on constitutional rights are acceptable,” said Katie Glenn, government affairs counsel for Americans United for Life.
But the legal challenge from abortion providers was different, Sepper said, because other pandemic restrictions would not have resulted in a “total ban.” For women whose pregnancies would be past the gestational limit when the order was lifted, it would effectively have blocked them from ever having an abortion.
U.S. District Judge Lee Yeakel, who sided with abortion providers multiple times, also made this argument.
The ban, which began with a March 22 executive order that expired April 21, left many procedures in limbo for weeks.
A March report from the University of Texas at Austin estimated that more than half of the patients eligible for medically induced abortions at the beginning of the ban would lose access to the early-stage procedure, which is available up to 10 weeks of pregnancy. More than a third of first-trimester patients could have been pushed into second-trimester abortions, which are more complex and expensive. The Guttmacher Institute, a progressive reproductive rights research and policy organization, also reported that the average travel distance for Texas women to get an abortion would have increased from 12 miles to 243 miles under the order.
The legal back-and-forth makes it hard to calculate the exact impact on access, said Elizabeth Nash of the Guttmacher Institute. But Whole Woman’s Health was forced to cancel or reschedule over 200 appointments during the legal fight. And the fight definitely provoked confusion about availability to patients, Nash said.
“As soon as people start talking about abortion bans, or clinics closing, people who aren't in the weeds of it, they think abortion is banned,” she said. “People might not think that they can still access abortion services when some services or all services are available.”
Most similar emergency executive orders have been blocked by federal courts, but a few cases are pending in other states. The 8th U.S. Circuit Court of Appeals ruled that the state of Arkansas could enforce its order against surgical abortion providers.
“Abortion is essential healthcare, and so to separate it out like that is also part of what abortion opponents want to do,” Nash said. “If you can silo abortion, then it's easy to restrict or ban it.”
March 22: Gov. Greg Abbott issues an emergency executive order mandating for all nonessential medical procedures to be postponed until April 21 in an effort to help hospitals cope with rising COVID-19 cases and medical bed and personal protective equipment shortages.
March 23: Texas Attorney General Ken Paxton warns Abbott’s order includes “any type of abortion that is not medically necessary to preserve the life or health of the mother,” and says providers could face fines of up to $1,000 or 180 days in jail for violating the order.
March 25: A coalition of abortion providers sue to block the state from enforcing its ban, seeking a temporary restraining order and a preliminary injunction.
March 30: U.S. District Judge Lee Yeakel grants abortion providers a temporary restraining order, allowing them to perform abortions until a decision on a preliminary injunction is reached.
March 31: The 5th Circuit Court of Appeals grants Texas a stay blocking Yeakel’s temporary restraining order to allow the state to enforce its ban while a panel of three federal judges reviews additional information.
April 7: In a split decision, the Fifth Circuit Court of Appeals overturns Yeakel’s temporary restraining order, arguing that Yeakel failed to consider the power granted to states to restrict rights during public health emergencies.
April 9: Yeakel grants Texas abortion providers a second temporary restraining order, allowing them to perform medically induced abortions and other procedures for women nearing Texas’ gestational limits.
April 10: 5th Circuit Court of Appeals grants the state a second temporary stay. This time, however, the court keeps a section of Yeakel’s temporary restraining order allowing women who would reach the state’s gestational limit by April 22 to get abortions.
April 11: Pushing back against the 5th Circuit, abortion providers ask the U.S. Supreme Court for emergency intervention.
April 13: The 5th Circuit allows medically induced abortions to be offered in Texas.
April 17: Abbott announces a new executive order loosening restrictions on elective medical procedures, so they can be performed as long as they don’t deplete public supplies of personal protective equipment or hospital capacity.
April 20: Reversing its previous temporary ruling, the 5th Circuit allows Texas to enforce its ban on most abortions, including on abortions by induced pills.
April 21: Abbott’s original executive order on elective medical procedures expires at 11:59 p.m.
April 22: Providers begin offering abortions in Texas again under the governor’s new order on elective procedures. That same day, state attorneys cede that the “ban is over.”