AUSTIN, Texas — A coalition of Texas abortion providers is pushing back against a federal appeals court and is once again asking a lower federal judge to temporarily block the state from enforcing its ban on elective abortions during the coronavirus.
The request for emergency relief comes a day after the 5th U.S. Circuit Court of Appeals said Texas could enforce an executive order halting most abortions during the coronavirus pandemic as providers and the state finish battling in court.
In a March 22 executive order, Gov. Greg Abbott said all nonessential medical procedures would be postponed to free up hospital beds and personal protective equipment amid rising COVID-19 cases, and Texas Attorney General Ken Paxton promptly warned providers they could face fines and jail time for performing any type of abortion under the order. The order remains in effect until April 21, unless extended.
U.S. District Judge Lee Yeakel, who is overseeing the lawsuit brought by abortion providers, had blocked the state from enforcing the order, but the federal appeals court overturned his temporary restraining order on Tuesday.
Now, the suing abortion providers are asking Yeakel to issue a more limited temporary restraining order against the state as they await an April 13 hearing for a preliminary injunction, which could block the state from enforcing the ban for the remainder of the lawsuit.
The new temporary restraining order would specifically allow providers to perform surgical abortions on women reaching the state’s 20-week gestational limit and to offer all women medically induced abortions since they do not require medical gear, only pills.
“We’re asking the district court to block the state’s order because we believe this is the fastest way to resume full access to abortion in Texas, which is our number one priority,” Molly Duane, a staff attorney with the Center for Reproductive Rights involved in the lawsuit, said in a statement.
Yeakel’s previous temporary restraining order allowed providers to resume performing abortions for nearly a day, before Paxton’s office appealed the order to the 5th Circuit Court. The 5th Circuit Court quickly granted the state a stay to enforce the ban while it reviewed more information, but it took more time to issue a longer-term decision.
In a split decision, a three-judge panel said on Tuesday that the state could continue enforcing its ban, arguing that Yeakel had previously failed to consider the special powers granted to states during public health emergencies through past U.S. Supreme Court rulings.
But the Tuesday ruling did not address pending questions about the impact of the state’s executive order, which abortion providers say has been “devastating” to women seeking abortions. Yeakel will have to address those questions after hearing from providers and the state in an April 13 hearing.
“The 5th Circuit suggested there are outstanding factual questions about the impact of this order,” Duane said in a statement. “During the last two weeks, abortion has been largely unavailable in Texas, and we have seen that the impact on patients is devastating. That is exactly what we will show the district court.”
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