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Law360 (March 26, 2020, 6:18 PM EDT ) Planned Parenthood has asked a Texas federal judge to prohibit state government officials from enforcing what the organization calls an unconstitutional ban on abortions ordered by state Attorney General Ken Paxton as part of an effort to free up personal protective equipment for doctors and hospitals during the coronavirus pandemic.
The reproductive health organization has accused Paxton of taking advantage of the global pandemic to enforce his "extreme, anti-abortion agenda," according to the lawsuit filed Wednesday in the Western District of Texas. Planned Parenthood argues Paxton's restrictions would force patients to continue their pregnancies, depriving them of their constitutional rights and placing a heavier burden on the state's health care system.
Planned Parenthood of Greater Texas and three other clinics that provide abortion services in the Lone Star State joined the national organization in requesting immediate relief from Texas' ban, which threatens a fine of up to $1,000 and a 180-day jail sentence for those who don't comply. The lawsuit lists Paxton, Texas Gov. Greg Abbott, several members of state health agencies and nine district attorneys as defendants.
"The Texas attorney general's enforcement threats are a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of [personal protective equipment] or hospital capacity," Planned Parenthood said.
Paxton announced the ban Monday, one day after Abbott issued an executive order barring "all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition" or save a patient's life. Abbott's executive order expires on April 21.
This ban is not unique to Texas. Ohio Attorney General Dave Yost has also ordered providers to stop performing "non-essential and elective surgical abortions." Yost threatened legal action against any providers who don't comply as well.
Planned Parenthood said Texas' ban on abortions would not provide further personal protective equipment to those working with patients with COVID-19, the disease caused by the novel coronavirus. The organization explained that personnel who perform abortions at the clinics don't use the N95 respirators that are currently in very short supply, according to the lawsuit.
And there doesn't seem to be a shortage of the nonsterile gloves used to perform the abortions and exams either, the organization said.
Planned Parenthood also questioned whether Paxton's ban on "any type of abortion" applied to medication abortions in which the patient takes a pill to end their pregnancy — a method that doesn't require a procedure.
No matter how the abortion is performed, however, Planned Parenthood said it is an essential health care procedure that cannot be postponed without risking the health and safety of a patient.
"If a person is forced to continue a pregnancy against their will, particularly during a global pandemic, it can pose a risk to their physical, mental, and emotional health, as well as to the stability and well-being of their family, including their existing children," Planned Parenthood said.
In response to a request for comment, a spokesperson for Paxton sent a statement to Law360 in which the attorney general admonishes Planned Parenthood's lawsuit as an attempt to keep necessary medical supplies away from doctors and hospitals.
"It is unconscionable that abortion providers are fighting against the health of Texans and withholding desperately needed supplies and personal protective equipment in favor of a procedure that they refer to as a 'choice,'" he said.
The lawsuit asks for an immediate temporary injunction, followed by a preliminary injunction and, eventually, a permanent injunction against enforcing the ban. Planned Parenthood has also asked the federal judge to declare the ban violates the 14th Amendment of the U.S. Constitution, according to the complaint.
Planned Parenthood is represented by Patrick J. O'Connell of Law Offices of Patrick J. O'Connell PLLC and Julie Murray, Alice Clapman, Richard Muniz, Hannah Swanson and Jennifer Sandman of Planned Parenthood Federation of America.
The other clinics are represented by Stephanie Toti, Rupali Sharma and Sneha Shah of The Lawyering Project and Molly Duane, Rabia Muqaddam and Francesca Cocuzza of the Center for Reproductive Rights.
Counsel information for Paxton, Abbott and other state officials was not immediately available Thursday.
The case is Planned Parenthood for Choice et al. v. Abbott et al., case number 1:20-cv-00323, in the U.S. District Court for the Western District of Texas.
--Additional reporting by Jeff Overley. Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
