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Law360 (April 7, 2020, 10:03 PM EDT ) A split Fifth Circuit panel on Tuesday lifted a temporary block on Texas' delay on abortions during the coronavirus pandemic, saying a federal judge caused a "patently erroneous" result by giving abortion a special exemption not given to other medical procedures.
The majority granted the state's petition for writ of mandamus to overturn a federal judge's temporary restraining order blocking Texas Gov. Greg Abbott's executive order postponing "all surgeries and procedures that are not immediately medically necessary" until April 21 to free up personal protective equipment for doctors and hospitals.
U.S. District Judge Lee Yeakel, siding with Planned Parenthood and holding that the previability abortion ban amounted to an "outright ban" in violation of patients' 14th Amendment rights, ignored the state's right to respond to a public health crisis, the panel said.
"In issuing the TRO, the district court clearly abused its discretion by failing to apply (or even acknowledge) the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago," the majority wrote.
Blocking only the abortion embargo created the "patently erroneous" result that "allowed the district court to create a blanket exception for a common medical procedure — abortion — that falls squarely within Texas's generally-applicable emergency measure issued in response to the COVID-19 pandemic," the panel said.
In a scathing dissent, U.S. Circuit Judge James L. Dennis said the panel ruled on the basis of the case's subject matter, not the law.
"The result of the district court's order is to uphold women's rights to abortions and to allow medical and procedural abortions to proceed," he said, adding that procedures that would not deplete hospital capacity or personal protective equipment needed to cope with COVID-19 are exempt from the procedure ban under the governor's executive order.
Alexis McGill Johnson, Planned Parent's acting president and CEO, said in a statement Tuesday that the ruling is "unconscionable."
"Patients are already being forced to put their lives in harm's way during a pandemic, and now will be forced to continue doing so to get the health care they need," she said. "Abortion is essential, it's time-sensitive, and it cannot wait for a pandemic to pass."
Texas Attorney General Ken Paxton applauded the decision in a statement, thanking the appeals court for its "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 coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis," Paxton said in a statement. "We must support the health professionals on the frontlines of this battle."
Paxton ordered the ban after Abbott signed his executive order on March 22. The ban is scheduled to last through April 21. Paxton, Abbott and other officials argue that allowing abortions to continue would contribute to the spread of COVID-19 and place a heavier burden on the health care system. They've said the delay won't harm women seeking abortions.
But Planned Parenthood of Greater Texas and three abortion clinics sued Abbott, Paxton, state health officials and nine district attorneys on March 25, claiming that Paxton was taking advantage of the pandemic to enforce his "extreme, antiabortion agenda."
On March 31, a split Fifth Circuit panel stayed the restraining order, saying it endangered lives and hindered the state's efforts to combat the virus.
Planned Parenthood and a number of other abortion-rights organizations, including the American Civil Liberties Union, the Center for Reproductive Rights, the Abortion Care Network and the American College of Obstetricians and Gynecologists, have filed similar lawsuits in Iowa and Oklahoma.
Coronavirus-spurred abortion bans have been temporarily blocked in Ohio, Alabama and Oklahoma, with the Sixth Circuit refusing to upend a block on Ohio's ban and a federal judge blocking Oklahoma's ban, both on Monday.
Amy Hagstrom Miller, president and CEO of Whole Woman's Health and Whole Woman's Health Alliance, a plaintiff in the Texas case, said in a statement Tuesday that the ruling "doesn't mean they've won."
"We will never allow this to become the new normal," she said. "We will persist."
U.S. Circuit Judges James L. Dennis, Jennifer Walker Elrod and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.
Planned Parenthood is represented by Patrick J. O'Connell of the 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.
The case is Planned Parenthood for Choice et al. v. Abbott et al., case number 20-50264, in the U.S. Court of Appeals for the Fifth Circuit.
--Additional reporting by Hailey Konnath, Katie Pohlman, Danielle Nichole Smith and Jeff Overley. Editing by Haylee Pearl.
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