AUSTIN, Texas — Urging a federal judge to let Texas officials continue to block most abortions, state lawyers argued Monday that the restriction was a necessary part of a wider effort to contain a deadly pandemic.
Gov. Greg Abbott’s executive order of March 22 prohibited surgeries and procedures that were not “immediately medically necessary” in an effort to free hospital space and conserve supplies of personal protective equipment, or PPE, such as breathing masks, gloves and face shields.
One day later, Texas Attorney General Ken Paxton said the order banned any abortion unless a woman’s life or health were in danger — an exception that would allow relatively few procedures, prompting abortion providers to file suit last week to end the restriction.
In a legal brief, lawyers for Texas told U.S. District Judge Lee Yeakel that the abortion ban was part of an extraordinary response to an extraordinary situation.
“The State’s efforts to stop the spread of COVID-19 are far-reaching precisely because COVID-19 presents a grave threat to public health,” the lawyers wrote.
“Never in our lifetimes have so many Texans been threatened with severe illness or death due to a pandemic sweeping the globe,” they added.
In their lawsuit, abortion providers argued that the policy violated the constitutionally protected right of women to decide whether to have an abortion and was a thinly veiled effort “to exploit a public health crisis to advance an extreme, anti-abortion agenda.”
Delayed abortions also increase the health risk for women, the lawsuit argued, adding that the policy will not free up hospital beds — almost all abortions in Texas occur in outpatient facilities — and do little to conserve protective equipment, which is rarely used in clinics.
Lawyers for Texas portrayed the argument differently, telling the judge that the abortion providers are seeking “a special exemption, claiming a right to deplete or endanger precious PPE resources and hospital capacity in the name of providing abortions.”
“They have no right to special treatment,” Paxton’s lawyers argued, citing a U.S. Supreme Court ruling that said the law does “not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.”
“Government authorities expect a surge of COVID-19 cases in the very near future, and Texas is trying to ensure that we have adequate medical supplies, hospital capacity, and healthcare workers to prevent the system from collapsing,” the state lawyers said.
“This Executive Order will save countless lives by preventing further spread of the disease by unnecessary contact and ensuring the conservation of personal protective equipment and hospital capacity necessary to protect the healthcare professionals who will save Texans from this disease,” they added.
Paxton has vowed to aggressively pursue criminal charges against those who violate Abbott’s emergency order on elective procedures. Violators could face up to 180 days in jail and a fine of up to $1,000.
In response, abortion clinics across the state canceled hundreds of scheduled appointments and declined to offer not only surgical abortions but drug-induced procedures as well, noting that Paxton said the emergency order barred “any type of abortion” in Texas, according to court records.
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