Abbott (R) has said the temporary ban on abortion is intended to preserve personal protective equipment, or PPE, such as gloves, masks and paper gowns worn by doctors. That gear has been in short supply in many hospitals inundated with patients suffering from severe cases of covid-19, the respiratory illness caused by the novel coronavirus.
But abortion providers in the state and reproductive rights advocates have challenged officials over their stated motives, particularly in the case of medical abortions which require the use of little protective gear.
The panel’s three members were Judge James L. Dennis, appointed by President Bill Clinton, Judge Jennifer Walker Elrod, an appointee of President George W. Bush, and Judge Stuart Kyle Duncan, appointed by President Trump. The opinion was unsigned.
In a concurrence, Dennis wrote that Texas’s “stated desire to enforce [the ban] against medication abortions despite the executive order’s apparent inapplicability 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.”
Temporary abortion bans have sprung up in several states with antiabortion governors, expanding on existing laws that already strictly limited the procedures before the pandemic.
Many of the states implementing new restrictions under the banner of social distancing or preserving protective gear have passed laws in recent years to close abortion clinics, stall abortions and force women to jump through administrative hoops before ending a pregnancy.
Under the 5th Circuit’s latest order, medical abortions may continue but surgical abortions will still be limited. The appeals court had previously ordered the state to allow surgical abortions only for women who had their last period 22 weeks before April 22, which is the day Abbott’s ban expires. In Texas, elective abortions are banned 22 weeks after a woman’s last period, or after the 20th week of pregnancy.
Abbott’s office did not immediately return a request for comment on the court’s decision late Monday.
Similar legal disputes over abortion access have been speeding through state and federal courts after several states, including Oklahoma, Ohio, Mississippi and Alabama, implemented bans on abortions under coronavirus-related emergency measures.
Some Republican governors have claimed that medical procedures to end pregnancy do not qualify as an essential treatment that cannot be delayed until the novel coronavirus outbreak has subsided. Pitted against them are abortion providers, Planned Parenthood, the American Civil Liberties Union and reproductive rights activists.
The fight over the Texas ban was the first to reach the U.S. Supreme Court, when abortion providers requested an emergency temporary restraining order that would pause Texas’s ban. That petition asked the nation’s highest court to at least allow medical abortions, which the 5th Circuit’s order accomplished separately Monday.
Despite the victory over medical abortions, advocates for abortion providers were not fully satisfied with the appeals court order.
“For now, the Fifth Circuit has righted the wrong of Texas’ unconstitutional ban on medication abortion,” Nancy Northup, president and chief executive of the Center for Reproductive Rights, told The Washington Post in a statement. “Now it’s time for Governor Abbott to end his exploitation of this pandemic to ban all abortion access. None of it is medically justified, all of it is unconstitutional, and women are being thrown into a state of fear and uncertainty.”
Some courts have more completely blocked other states’ bans from impacting abortion services. On Monday, the Court of Appeals for the 10th Circuit upheld a lower court’s order and stopped Oklahoma Gov. Kevin Stitt’s ban on nonessential medical procedures from affecting women’s access to abortion. A similar order was issued allowing abortions to continue in Ohio last week.