In a partial victory for Texas abortion providers, a federal appeals court has allowed drug-induced abortions to resume despite efforts by state officials to ban the procedures as part of the coronavirus emergency.
State lawyers failed to show that dispensing drugs for medication abortions — which typically involve two doses of pills taken first at a clinic, then at home — qualifies as a “procedure” under Gov. Greg Abbott’s emergency order banning elective surgeries and procedures, the 5th U.S. Circuit Court of Appeals concluded.
As in previous decisions on the state’s abortion ban under Abbott’s emergency powers, the ruling exposed stark ideological differences among members of the three-judge appeals panel handling a legal fight that has taken numerous twists over the past three weeks.
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Almost all abortions, including drug-induced procedures, have been banned in Texas since March 23, when state Attorney General Ken Paxton announced that Abbott’s order allowed abortions only if a woman’s life or health were at risk, a rare occurrence.
Abortion providers sued, winning a temporary restraining order from U.S. District Judge Lee Yeakel of Austin to block the policy. The appeals court panel later dissolved Yeakel’s order in a 2-1 ruling that said the ban was allowed because Texas officials have the power to limit constitutional rights to protect public health — in this case by implementing a policy to halt nonessential medical procedures to free hospital space and conserve medical equipment that might be needed to fight COVID-19.
Providers returned to Yeakel, who issued a second, though more limited, restraining order last week that, among other things, allowed drug-induced abortions to resume and allowed women to have an abortion if their pregnancy would extend beyond the 20th week. Texas law has banned abortions after week 20 since 2013.
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Paxton again appealed, and the three-judge panel responded last Friday by halting enforcement of Yeakel’s second order — except for the condition involving pregnancies that would last beyond the 20th week — while the panel considers Paxton’s appeal on an expedited basis, with the final legal briefs due Wednesday.
Then, late Monday, the panel issued another ruling that will allow medication abortions while the appeal proceeds.
The latest ruling drew praise from abortion rights advocates and prompted providers to withdraw an emergency appeal to the U.S. Supreme Court.
“For now, the 5th Circuit has righted the wrong of Texas’ unconstitutional ban on medication abortion,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “Now it’s time for Gov. Abbott to end his exploitation of this pandemic to ban all abortion access. None of it is medically justified, all of it is unconstitutional, and women are being thrown into a state of fear and uncertainty.”
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As with previous rulings, the latest decision divided along ideological grounds, with the panel’s two Republican-appointed judges criticizing Yeakel and the lone Democratic appointee raising doubts about the true intentions behind the abortion ban.
Judges Jennifer Walker Elrod and Stuart Duncan, named by GOP presidents, took exception to Yeakel issuing a second restraining order that ignored their earlier ruling that dissolved his first order.
Yeakel, they said, failed to weigh Supreme Court rulings allowing public health measures in times of emergency and improperly inserted his own judgment on the effectiveness of the state’s abortion ban.
Judge James Dennis, a Democratic appointee, wrote a concurring opinion that rejected “the majority’s unnecessary critique” of Yeakel’s decision.
Instead of usurping state power, Yeakel properly weighed evidence to determine that Abbott’s executive order created a burden on women that outweighed its benefits, Dennis wrote.