Supreme Court Vacates Rulings Allowing Texas’s CCP Virus Abortion Restrictions

January 26, 2021 Updated: January 26, 2021

The Supreme Court on Jan. 25 vacated two lower court rulings that allowed Texas to temporarily postpone most abortions amid the CCP virus pandemic. But the order does not have any immediate consequences as the state has already lifted its abortion restrictions.

The case was brought by Planned Parenthood Center for Choice who wanted the nation’s top court to review the rulings. They argued (pdf) that although Texas Gov. Greg Abbott had restored abortions in the state, the two Fifth Circuit Court decisions that ruled in favor of the state would still apply as precedents in future cases.

The abortion providers further argued that Abbott’s actions may have rendered the case moot, but he should not “retain the benefit” of a favorable court decision by making it “unreviewable by his own actions.”

The top court granted (pdf) Planned Parenthood’s request to review the case and vacated the appeal court’s decisions without giving a reason or addressing any of the merits. The order also remanded the case back to the Fifth Circuit with instructions to dismiss the case as moot.

The case at hand relates to an executive order (pdf), signed by Abbot on March 22, 2020, that orders all licensed health care professionals and facilities to postpone any unnecessary medical procedures in an attempt to preserve much-needed medical supplies during the outbreak of COVID-19, the disease caused by the CCP (Chinese Communist Party) virus.

Unnecessary medical procedures are defined as “all surgeries and procedures that are not immediately, medically necessary to correct a serious medical condition or to preserve the life of a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician,” the executive order states.

Texas Attorney General Ken Paxton also indicated at the time abortions were covered in the order, except when the woman’s life or health is at risk. The state argued that order was necessary in an effort to conserve hospital space and personal protective equipment for patients who have the virus.

District of Columbia Attorney General Karl Racine (L) and Texas Attorney General Ken Paxton
Texas Attorney General Ken Paxton speaks during the launch of an antitrust investigation into large tech companies outside of the U.S. Supreme Court in Washington on Sept. 9, 2019. (Mandel Ngan/AFP via Getty Images)

A failure to comply with the order is punishable by up to 180 days in jail, a fine of up to $1,000, or both, the order stipulates. The executive order was set to lapse on April 21 last year.

Abortion providers then sued the state to challenge the order and convinced the district court judge to grant a temporary restraining order. Paxton then appealed the decision to the Fifth Circuit, which ruled 2-1 to lift the lower court’s decision, allowing Texas to enforce its order in full.

Hours after the Fifth Circuit decision, the abortion providers went back to the district court to request a narrower temporary restraining order in order to allow medical and procedural abortions in some situations to proceed.

The Fifth Circuit issued a second decision that reverses part of that temporary restraining order but also allowed for some abortions to proceed such as medical abortions.

About a week later, Abbott issued another executive order that allowed abortions to resume.

The Texas attorney general’s office later argued that vacating the Fifth Circuit Court rulings would be “useless” because that court had already applied the two precedents created in the Abbott cases several times.

Moreover, Planned Parenthood was concerned that a 1905 Supreme Court precedent, Jacobson v. Commonwealth of Massachusetts, was not adequately applied in the Abbott cases, Texas said. The Jacobson case looked at whether a state’s police power allowed officials to enact reasonable regulations to protect public health and safety.

Texas argued that since the two Abbott cases, the Fifth Circuit had applied the Jacobson precedent in other cases outside of the Abbott decisions, which means vacating the decision would “accomplish nothing.”

“Petitioners will still be bound by that test in any future lawsuit unless and until the en banc court or this Court rules otherwise,” Texas said in their brief (pdf).

An attorney for the Texas attorney general’s office did not immediately respond to The Epoch Times’ request for comment.

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