Reversing course, the 5th U.S. Circuit Court of Appeals on Monday said access to pill-induced abortions can be restricted while the state fights the coronavirus pandemic.
The decision is the latest in a fast-moving court case that has ricocheted between the politically conservative appeals court and a federal district judge in Austin — and at times amounted to a near-total ban on abortions in Texas. In previous rulings, the New Orleans-based appeals court has allowed pill-induced abortions to proceed, as well as abortions for women nearing the legal limit to have one in Texas, which is 22 weeks after the last menstrual period.
Medication-induced abortions can be performed in Texas through the 10th week of pregnancy. It was not immediately clear how the court’s ruling will apply after Tuesday, when a strict bar on nonessential surgeries in Texas will be relaxed.
In March, Texas Gov. Greg Abbott barred all procedures not “immediately medically necessary,” and the state’s attorney general declared the restriction applied to abortions — sparking a weekslong court fight and prompting some women to seek abortions out of state.
The appeals court has largely upheld the restrictions. But U.S. District Judge Lee Yeakel has sided with abortion providers and said the state’s order “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”
Abbott recently said the bar on elective procedures would be eased starting Tuesday night for facilities that will reserve a quarter of their hospital capacity for coronavirus patients and will not request scarce protective equipment from the government. But Abbott punted to the courts on the question of whether abortions could resume, saying the issue was “not part of this order.”
In a legal filing Saturday, abortion providers said they meet the criteria Abbott laid out. They have accused Republican state officials of political opportunism and said abortions rarely result in hospitalization and require little or no protective equipment.
The state, represented by Attorney General Ken Paxton, has said medication abortions may require personal protective equipment during initial doctors’ visits and in the small percentage of cases that result in trips to the emergency room.
“Texas has a significant interest in preserving the health, welfare, and safety of its citizens, and [Abbott’s executive order] is a measure designed to do just that,” the state’s latest filing says. “The harm caused by allowing certain elective abortions to go forward — potentially using up [personal protective equipment] and hospital beds while further spreading the disease — cannot be remedied.”
The court fight is ongoing.
On Friday, 10 Democratic members of Texas’ congressional delegation called on Paxton to “stop treating abortion differently under Governor Abbott’s order” and to instead let doctors make “medical decisions about essential health care during this unprecedented global health pandemic.”
Abortion providers filed an emergency request to the Supreme Court during the legal wrangling but withdrew their request after the 5th Circuit judges allowed medication abortions to continue.