The seesawing rulings come as more states try to take the same approach as Texas, and abortion rights groups are increasingly taking states to court.
In Ohio, a federal judge sided with Planned Parenthood in its suit against the state, which was the first to bar abortions by classifying them as unnecessary medical procedures, and ordered the ban to be lifted for two weeks. In Alabama, a district court judge suspended the ban until arguments from both sides next week. Lawsuits are pending in Iowa and Oklahoma.
The rulings come as more states try to bar abortion. Indiana Gov. Eric Holcomb included abortion in an executive order banning elective procedures that goes into effect Wednesday. Kentucky Attorney General Daniel Cameron said last week he believes abortion should be part of a ban on unnecessary medical procedures, as did Mississippi Gov. Tate Reeves (R) and Oklahoma Gov. Kevin Stitt (R).
"This lawsuit, from Planned Parenthood and other pro-abortion groups, demands an exception to prioritize abortion over all other health care in the midst of the covid-19 emergency in our state," Oklahoma Attorney General Mike Hunter said in a statement.
"It attacks the governor's executive order which preserves limited health care resources and medical safety equipment, in blatant disregard of the escalating illness and death this pandemic is inflicting on Oklahomans," he said.
Abortion providers said they are also ready for a protracted legal battle.
"I can say we are going to be taking every legal option we have to keep the clinics open and if that means filing for extreme relief at the Supreme Court, that's what we will do," said Nancy Northup, CEO of the Center for Reproductive Rights.
Abortion rights advocates said harassment against abortion providers has increased in recent days and protesters are coughing in the faces of patients and staff.
In the Texas case, attorneys general in 13 other states led by Louisiana’s Jeffrey Landry submitted an amicus brief this week to the 5th Circuit Court, saying they are concerned the case is a threat to the executive power of governors to protect public health.
“It’s a matter of gubernatorial authority in a public health crisis to conserve resources,” said Indiana Attorney General Curtis Hill Jr., who signed the brief and is running for reelection. “Gubernatorial authority provides the temporary relief from certain constitutional liberties. It’s not comfortable and I don’t like it but courts must recognize the right to take these actions.”
Abortion providers and lawyers representing them said the states are taking advantage of a health crisis to limit access to abortion.
“The pandemic is an excuse to do something that they’ve tried to do for years,” said Rupali Sharma of the Lawyering Project, which is part of the legal team suing Texas.
Paxton argued in court filings that abortion clinics should not be exempted from the governor’s emergency order — which he interpreted as a ban on all types of abortion — to preserve the limited health care resources they need to fight the virus’ spread.
Abortion providers told the court Texas’s restrictions does not achieve its goal because surgical abortion requires the use of little protective equipment and medical abortions consist of giving a patient pills taken often at home. The prescription leads to a miscarriage and is available in Texas through the 10th week of pregnancy.
District Court judge Lee Yeakel issued a temporary restraining order Monday, agreeing with providers that a virtual ban would be unconstitutional but declined to speculate if the U.S. Supreme Court ruling carved out an special exception for health emergencies.
Within hours of that decision, though, Texas’ attorney general petitioned the three-judge panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans, the most conservative appellate court that covers the states of Texas, Louisiana and Mississippi, to stay that order.
“It’s apparent now more than ever that they are using women as pawns and disregarding the lives of the people in clinics who have now been rescheduled twice,” said Amy Hagstrom Miller of Texas-based provider Whole Woman’s Health. “My staff has been put in position to deny women their constitutional rights.”
The Fifth Circuit rarely blocks state attempts to restrict abortion, intervening in recent years only when laws operate as an outright ban on the procedure. The court approved a Texas law that imposed restrictions on doctors who perform abortions and heightened requirements on abortion clinics. It was later struck down by the Supreme Court in 2016.
Two of the three judges stayed the lower court’s order but dissenting Circuit Court Judge James L. Dennis indicated that Paxton went too far in saying, in his news release, that all abortion procedures, including medical abortions, are prohibited because there is no use of medical equipment in that procedure.
Marjorie Dannenfelser, president of the Susan B. Anthony List, praised the court’s decision.
“At a time when millions of Americans are making heroic sacrifices to protect the vulnerable, and legitimate health care workers risk their own lives to care for covid-19 patients with crucial protective equipment in short supply, the abortion industry demands special treatment,” she said.
Abortion rights advocates said women who are forced to carry a pregnancy to term will eventually take up more hospital resources when they require need pre- and postnatal care. Abortions, advocates said, are normally in-office procedures that don’t require masks and rarely result in complications. They argued that delaying the procedure could force women to travel and help spread covid-19 further.
“It is a sign that they will stop at nothing to stop abortion care. They can’t help themselves,” Jennifer Devlan, director of the ACLU’s Reproductive Freedom Project. “There’s no way this is motivated by public health. It’s not grounded in science but in politics.”
Barnes reported from Washington.