AUSTIN, Texas — Overruling a federal judge, a divided appeals court Tuesday gave Texas permission to continue banning most abortions as part of a wider fight against COVID-19.
The 5th U.S. Circuit Court of Appeals, in a 2-1 ruling, said constitutional rights “may be reasonably restricted” to protect the safety of the general public.
“That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception,” Judge Stuart Kyle Duncan wrote for the majority.
In lifting a temporary restraining order imposed last week by U.S. District Judge Lee Yeakel, the appeals court allowed Texas officials to continue a policy of banning any abortion unless a woman’s life or health were at risk, an exception that applies to very few circumstances.
Duncan, appointed to the court by President Donald Trump in 2018, faulted Yeakel for usurping “the state’s authority to craft emergency health measures” and improperly substituting his own judgment on the effectiveness of those efforts.
Yeakel had determined that the stated goal of the abortion ban — to free hospital space and conserve medical equipment during a global pandemic — was not accomplished by the state policy and could not justify curtailing a woman’s right to decide whether to have an abortion.
“But,” Duncan wrote, “it is no part of the function of a court (to) decide which measures are likely to be the most effective for the protection of the public against disease.”
Judge Jennifer Walker Elrod, who joined Duncan in the majority, also was appointed by a Republican, President George W. Bush.
Writing in dissent, Judge James Dennis said Tuesday’s decision was another in a line of 5th Circuit Court rulings that abandoned established law and precedent to support restrictions on abortion.
“In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care,” wrote Dennis, appointed to the court by Democratic President Bill Clinton.
Dennis also criticized the 5th Circuit Court as an outlier after trial and appellate courts have overturned similar abortion bans in Oklahoma, Alabama and Ohio as unconstitutional.
The legal controversy flared after Gov. Greg Abbott issued a March 22 emergency order barring elective surgeries and medical procedures in hopes of freeing hospital space for COVID-19 patients and conserve gloves, gowns and breathing masks needed to protect health care workers during the pandemic.
One day later, Texas Attorney General Ken Paxton announced that Abbott’s order banned abortions unless a woman’s life or health were at risk. He promised to pursue criminal charges against abortion providers who continued operating.
Providers canceled several hundred appointments and filed suit, leading to Yeakel’s order that barred enforcement of the policy as a violation of the Constitution and U.S. Supreme Court precedent.
Yeakel said the blanket ban on abortions could not be justified by a policy that would have little impact on preserving protective medical equipment that is rarely used by abortion providers. In addition, the vast majority of abortions are outpatient procedures that do not involve hospitals.
Yeakel also concluded that requiring Texas women to travel out of state for an abortion increased risks during a pandemic, and he said delays could increase the health risks associated with abortion and put the procedure out of reach for some women. Texas bans abortion beyond the 20th week of pregnancy.
Paxton quickly appealed, and the same judges who ruled Tuesday also issued a divided ruling that allowed Texas to continue its emergency abortion ban while the state’s appeal proceeded.
In Tuesday’s ruling, the appeals court majority emphasized that its decision was limited to the record presented on appeal and noted that Yeakel has scheduled an April 13 hearing by phone on whether to grant a preliminary injunction sought by abortion providers.
That hearing will allow Yeakel to hear evidence on the validity of applying Abbott’s emergency order to abortion providers and make “targeted findings” on its impact on abortion rights, Duncan wrote for the majority.
Duncan advised Yeakel, however, to consider Supreme Court precedent giving latitude to emergency measures that restrict constitutional rights.
Abortion rights advocates and providers blasted Tuesday’s ruling, saying it will let Texas leaders continue to disrupt women’s lives while ignoring advice from medical experts who say abortion is time-sensitive health care.
“This is not the last word,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We will take every legal action necessary to fight this abuse of emergency powers. Texas has been trying to end abortion for decades, and they are exploiting this pandemic to achieve that goal.”
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