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Supreme Court avoids one abortion battle, but new lawsuits are being filed

Abortion rights activists outside the U.S. Supreme Court in Washington in 2016.
Abortion rights activists outside the U.S. Supreme Court in Washington in 2016. (Mandel Ngan/AFP/Getty Images)
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Abortion providers in Texas withdrew their request that the Supreme Court step in to stop the state’s effort to restrict the procedure during the coronavirus pandemic, but new legal battles began Tuesday in Louisiana and Tennessee.

The U.S. Court of Appeals for the 5th Circuit on Monday night gave abortion rights groups the half-measure they had sought at the high court. It exempted from Texas’s ban on nonessential medical procedures those seeking an abortion induced by medication in the early weeks of pregnancy, and those about to reach Texas’s prohibition of abortion after 22 weeks.

Medication abortions may continue in Texas, court rules

But the chess match between conservative state leaders and abortion rights organizations expanded to new states. Republican leaders in Alabama, Arkansas, Ohio, Oklahoma, Tennessee, Texas, Louisiana and Iowa have all limited elective medical procedures, saying they want to preserve hospital beds and medical equipment to fight the spread of covid-19.

Abortion providers say the measures cannot be applied to the time-sensitive and constitutionally protected right of a woman to choose an abortion. A compromise was reached in Iowa, and every trial court judge to consider the states’ orders has said they were a pretext for halting abortions.

“This is a shameful abuse of power,” said Nancy Northup, president of the Center for Reproductive Rights, in announcing the Louisiana suit. “We are already fighting a separate Louisiana law at the Supreme Court that would shut down nearly every clinic in the state. If the state’s latest actions are not blocked, that will become a reality before the Supreme Court even rules.”

Some states’ coronavirus orders effectively ban abortion

The Supreme Court last month heard arguments over a Louisiana law that would require doctors who perform abortions to have admitting privileges at nearby hospitals. It is similar to a Texas law that the court struck down in 2016 as inhibiting abortion rights without providing a clear benefit to women.

The Louisiana Department of Health last month issued an order that said medical and surgical procedures should be postponed except in emergencies or to prevent further harm caused by underlying conditions. It told health-care providers to postpone in-person services for 30 days, but left the decision up to the provider’s “best medical judgment.”

Three weeks into the order, Gov. John Bel Edwards (D) and Attorney General Jeff Landry (R) — both opponents of abortion rights — said there had been complaints about noncompliance by abortion clinics, and the attorney general sent representatives to inspect.

Kathaleen Pittman, director of a clinic in Shreveport that is also at the center of the Supreme Court case, said the officials inspected the clinic and looked at the files of patients.

The state’s attempt to shut down the clinic “will result in a ban of all abortions,” including medication abortions, which providers say require little if any of the personal protective equipment (PPE) the order purports to preserve, the lawsuit states.

Landry said last week the visits were from a new task force to investigate compliance with the health department’s directives, and that it also looked at an endoscopy center in Shreveport.

In Tennessee, an order from Gov. Bill Lee (R) has the effect of banning most surgical abortions, although patients less than 11 weeks pregnant are still allowed to obtain medication abortions, which involve a patient taking pills that end the pregnancy.

The Center for Reproductive Rights, Planned Parenthood and the American Civil Liberties Union are jointly challenging the restrictions in most of the states, saying it denies a woman’s right to a pre-viability abortion established in Roe v. Wade.

They have solicited support from the American College of Obstetricians and Gynecologists and the American Medical Association, which says the state orders are “likely to increase, rather than decrease, burdens on hospitals and use of PPE.”

So far, the federal courts have agreed. On Monday, a panel of the U.S. Court of Appeals for the 10th Circuit upheld a district judge’s order overturning an order by Oklahoma Gov. Kevin Stitt (R) that would ban abortions during the coronavirus outbreak emergency.

The unanimous ruling by a three-judge panel let stand a lower-court ruling that said Stitt’s order could not stop abortions.

Likewise, the U.S. Court of Appeals for the 6th Circuit declined to hear an appeal by Ohio Attorney General Dave Yost (R) seeking to reverse a judge’s temporary restraining order allowing abortions there.

Texas abortion providers ask Supreme Court to intervene

The battle in Texas has been the most contentious. Twice, U.S. District Judge Lee Yeakel in Austin has agreed with abortion providers that an order by Gov. Greg Abbott (R) banning most medical procedures — which he said was to preserve medical gear for the coronavirus fight — could not be applied to abortion.

Twice, a panel of the U.S. Court of Appeals for the 5th Circuit disagreed, which elevated the issue to the Supreme Court.

But Monday night, the appeals court panel relented as to medication abortions and for those about to reach the state’s deadline for an abortion. Judge James L. Dennis, who had sided with Yeakel, said 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.”

A spokeswoman for Texas Attorney General Ken Paxton (R) said he had not yet decided on the state’s next move, which could include filing its own petition with the Supreme Court.

Katie Shepherd contributed to this report.