Appeals Court Allows Texas Abortion Restriction With Exceptions for Advanced Pregancies

Appeals Court Allows Texas Abortion Restriction With Exceptions for Advanced Pregancies
In this illustration photo, a doctor performs an ultrasound on a pregnant woman during her visit to a gynecologist. (Jennifer Jacobs/AFP/Getty Images)
Janita Kan

Texas is allowed to enforce its executive order postponing most abortions after a federal appeals court on Friday reversed parts of a lower court order that allowed some abortions to continue during the CCP virus pandemic.

The 5th Circuit Court ruled (pdf) on Friday afternoon to block abortions in Texas during the pandemic except for women who are approaching the state’s legal limit for an abortion at 22 weeks.

Earlier on Friday, the state's attorney general Ken Paxton asked the 5th Circuit Court to overturn the lower court's decision a day after the court granted the temporary restraining order that allows for some abortions to continue in the state.

The executive order (pdf), signed on March 22, orders all licensed health care professionals and licensed health care facilities to postpone any unnecessary medical procedures in an attempt to preserve much-needed medical supplies for health care professionals and hospital beds 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.

A failure to comply with the order is punishable by up to 180 days in jail, a fine up to $1,000, or both, the order stipulated. The executive order was expected to end on April 21.

On Thursday, U.S. District Judge Lee Yeakel in Austin blocked the enforcement of the executive order “as a categorical ban on all abortions provided by Plaintiffs.”

He also ruled that the abortion clinics are allowed to proceed with medication abortions as well as procedural abortions for women who risk meeting the state's legal limit for an abortion at 22 weeks of pregnancy on April 22. His ruling also allowed abortions for women who would be more than 18 weeks into a pregnancy on April 22 and "likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care."

"To women in these categories, the Executive Order is an absolute ban on abortion," Yeakel wrote in the opinion. "A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a pre-viability abortion."

This was the second time Yeakel had sided with abortionists in the case. On March 30, he granted another temporary restraining order to the abortionists to block the part of the executive order that affects abortions.

Paxton then appealed the decision to the 5th Circuit, which ruled 2-1 to lift the lower court's decision, allowing Texas to enforce its order in full.
Hours after the 5th Circuit decision, the abortion providers went back to Yeakel's court to request a more narrow temporary restraining order in order to allow medication abortions and procedural abortions in some situations to proceed.

The second 5th Circuit's decision on Friday reverses part of that temporary restraining order.

"Having already painstakingly explained those standards in our opinion, we reiterate our holding: [W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law,'" the court said.

The ruling notes that Judge Kyle Dennis dissented in part because he would not reverse any part of the district court's April 9 ruling.

In a press conference on Friday, Texas officials said that there are currently 11,449 people in the state who have tested positive for COVID-19 and 221 deaths. The number of Texans who have recovered from the virus is 1,366, the officials said.

Abbott said during the conference that he is considering sometime in the coming week another executive order that would reopen Texas businesses.