Appeals court temporarily re-instates Texas order limiting abortion access over coronavirus

The Fifth Circuit Court of Appeals is allowing a controversial Texas executive order that blocks elective abortions during the coronavirus pandemic to remain in effect for now.

The case tees up a battle between supporters of abortion rights and a handful of conservative states arguing that bans on elective abortions and other medical procedures are necessary to help preserve medical supplies.

A divided panel of the appellate court on Tuesday put on hold a lower court opinion that blocked Texas Republican Gov. Greg Abbott’s executive order — requiring that health care providers “postpone all surgeries and procedures that are not immediately medically necessary” to preserve a patient’s life or condition — from applying to elective abortions. The lower court had published its opinion on Monday.

Texas Attorney General Ken Paxton had specified that “any type of abortion that is not medically necessary to preserve the life or health of the mother” was included in the order, prompting a challenge from state abortion providers and national abortion rights groups last week.

In Tuesday’s 2-1 decision, the appeals court said it wants to give itself “sufficient time” to consider an emergency petition filed by Paxton. Judge Jennifer Elrod, a George W. Bush appointee, and Judge Kyle Duncan, a Donald Trump appointee, voted to freeze the lower court opinion.

Judge James Dennis, a Bill Clinton appointee, dissented from the order. He noted that the lower court had already concluded that “irreparable harm would flow” from allowing the executive order to go into effect as it applies to abortions.

The court has ordered more briefings in the case.

Paxton praised the court’s ruling on Tuesday, asserting that the temporary stay “justly prioritizes supplies and personal protective equipment for the medical professionals in need.”

But supporters of abortion rights accused Texas of playing politics.

“Let’s be clear, it is never the right time to play politics, but doing so in the wake of Covid-19 is a despicable low,” Aimee Arrambide, the executive director of NARAL Pro-Choice Texas, said in a statement.

Texas’ case is the first such challenge to a coronavirus state order to reach the appeals court, but several others may follow.

In addition to in Texas, federal judges in Alabama and Ohio also blocked state orders on Monday banning nonessential medical procedures from limiting abortion access during the outbreak after state abortion providers and abortions rights groups filed challenges earlier that day.

A similar challenge filed Monday awaits judicial consideration in Oklahoma, and other states, including Mississippi and Kentucky, that have also opted to issue such orders could face challenges.

Not all clinics have clashed with their state’s governor in court. Planned Parenthood of Indiana and Kentucky said they would comply with Indiana Gov. Eric Holcomb’s executive order to postpone or cancel all elective or non-urgent procedures, including abortions, to conserve medical equipment.

Holcomb said Tuesday that he would leave it up to a doctor to determine if postponing or canceling any of those procedures would cause harm to the patient.

Planned Parenthood of Indiana and Kentucky CEO Chris Charbonneau said the group would comply with the governor’s directive but noted that their top priority is “ensuring that every person can continue accessing essential health care, including abortions.”