5th Circuit Stands Up Texas Coronavirus Abortion Ban. Again.

Abortion is, for the moment, illegal in Texas.
Abortion is, for the moment, illegal in Texas. Joseffson/Westend61 GmbH/Newscom
For many Texans, the coronavirus pandemic and the changes it's inflicted on their everyday lives are merely a bad inconvenience. They can't go to restaurants, have to home-school their kids and are facing the physical and mental struggles of indeterminate monotony. Others face more serious consequences, like the loss of a job or a portion of their paycheck, the threat of future eviction or food insecurity. Then there are those who are facing COVID-19 infection themselves.

Texans seeking abortion are also facing a reality they couldn't have imagined two months ago, before Gov. Greg Abbott banned abortion for the duration of the coronavirus emergency. Because of a ruling from the 5th U.S. Circuit Court of Appeals on Tuesday, there is every chance that a woman who found she was pregnant in March simply won't be able to get one without a trip outside the state, at a time when leaders around the state are urging Texans to stay home as much as they can.

According to the court's opinion, state governments are allowed to restrict constitutional rights in times of emergency when doing so would help keep the public safe.

“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

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“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.

Abbott and Attorney General Ken Paxton have argued that the ban will save personal protective equipment and hospital bed space that might be needed for COVID-19 patients. Anti-choice activists have celebrated the ban for different reasons.

“I thank the Fifth Circuit for their attention to the health and safety needs of Texans suffering from this medical crisis. Governor Abbott’s order ensures that hospital beds remain available for (c)oronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis,” Paxton said in a statement after the ruling. “Texans must continue to work together to stop the spread of COVID-19, and we must support the health professionals on the front lines of this battle.”

Paxton said earlier this month that municipal officials couldn't close gun shops during the pandemic because they were "essential businesses."

Thanks to the state's anti-abortion laws, women seeking the procedure in pre-pandemic Texas had to wait several weeks for an appointment at one of the state's dwindling number of clinics before seeing a doctor twice with at least a 24-hour waiting period in between. Given the already long waits, Texas' ban on abortions occurring more than 20 weeks after conception and the unknown duration of Abbott's emergency order, women seeking an abortion face a stark choice: shelter in place and give birth, or risk travel to a state that hasn't imposed an abortion ban.

“Gov. Abbott and indicted Attorney General Ken Paxton are actively ignoring the advice of many medical professionals and playing politics during a global pandemic,” Tara Pohlmeyer, a spokeswoman for Progress Texas, said Tuesday. “Instead of prioritizing measures to protect Texans’ public health and safety, they are attacking some of our most vulnerable. Abortion care is essential and time-sensitive healthcare, especially now.”

Following the 5th Circuit's ruling, the lawsuit filed by several pro-choice advocacy groups bounces back to a lower federal court for further argument. A phone hearing is scheduled for Aug. 13.
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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young