By Kevin Stawicki

Law360 (April 14, 2020, 11:37 PM EDT ) The Fifth Circuit walked back an order banning abortions in Texas during the coronavirus pandemic, the Tenth Circuit let abortions proceed in Oklahoma and a Louisiana abortion clinic said in a lawsuit that the state is using the virus to shut it down.

Here, Law360 rounds up the latest court developments related to abortion during the crisis.

5th Circ. Backtracks on Abortion Ban in Texas 

The Fifth Circuit partially reversed course on its decision greenlighting Texas' abortion ban during the coronavirus pandemic, letting medication abortions proceed while other abortion methods remain blocked.

A three-member panel on Monday declined to pause a district court's temporary block on the state's ban on medication abortions, saying it's uncertain about whether abortions obtained through a pill and the related examinations and tests count as "procedures."

But the panel kept in place Gov. Greg Abbott's ban on all "nonessential" procedures to preserve medical supplies during the public health emergency, leaving Texans with only a few abortion options.

The decision comes just days after the reproductive rights groups asked the U.S. Supreme Court in an emergency request to let medication abortions proceed after the Fifth Circuit on Friday allowed the state to postpone abortions until April 21 in compliance with Abbott's mandate.

Friday's order — the second one the circuit court issued in the case last week — granted Texas a temporary administrative stay from U.S. District Judge Lee Yeakel's second temporary restraining order on the ban, which he issued Thursday. Later on Friday, Texas filed a petition for writ of mandamus asking the Fifth Circuit to do exactly what it did last Tuesday to Judge Yeakel's first temporary restraining order: overturn it.

Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents some clinics suing the state, said in a statement that the ruling provides temporary relief but needs to go further to protect all Texans.

"For now, the Fifth Circuit has righted the wrong of Texas' unconstitutional ban on medication abortion," she said. "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."

Counsel for the state did not respond to requests for comment.

Circuit Judges James L. Dennis, Jennifer Walker Elrod and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.

Texas is represented by Heather Gebelin Hacker, Beth Klusmann and Natalie D. Thompson of the Texas attorney general's office.

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 In re: Greg Abbott et al., case number 20-50296, in the U.S. Court of Appeals for the Fifth Circuit.

10th Circ. Lets Abortions Proceed in Oklahoma

The Tenth Circuit refused to upend a temporary block on Oklahoma's ban on abortions during the pandemic, saying the lower court's ruling should never have been appealed in the first place.

A three-member panel said Monday that Oklahoma improperly sought appellate review of a federal judge's decision to grant a temporary restraining order to Planned Parenthood and other reproductive groups fighting the postponement of elective surgeries and minor medical procedures during the pandemic.

Because the district court is still set to rule on a preliminary injunction and the restraining order expires April 20, the panel said there is no imminent threat of harm to the state.

"Immediate review is not the only means of effectively challenging the district court's action here, and appellants' rights will not be irretrievably lost absent immediate review," the panel wrote.

Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, said in a statement that the ruling lets citizens "breathe a temporary sigh of relief."

"But the fight is not over," she said. "Instead of responding to the COVID-19 pandemic, Gov. [Kevin] Stitt is wasting valuable time and resources to attack essential, time-sensitive abortion services that cannot wait for a pandemic to pass."

U.S. District Judge Charles B. Goodwin ruled on April 6 that the abortion providers were likely to prevail on their claim that the state's ban on abortion during the pandemic puts an undue burden on abortion access in violation of the U.S. Constitution.

Stitt on March 24 had ordered all elective surgeries and minor medical procedures postponed during the pandemic. He said the order was "necessary to provide for the rendering of mutual assistance among the state and political subdivisions of the state and to cooperate with the federal government with respect to carrying out emergency functions."

Counsel for the state did not respond to requests for comment.

Circuit Judges Carlos F. Lucero, Robert E. Bacharach and Nancy L. Moritz sat on the panel for the Tenth Circuit.

The providers are represented by J. Blake Patton of Walding & Patton PLLC, Travis J. Tu, Kirby Tyrrell, Ezra Cukor and Jiaman Wang of the Center for Reproductive Rights, Linda C. Goldstein, Kathryn Barrett, Samantha Rosa and Alyssa Clark of Dechert LLP, and Diana Salgado of Planned Parenthood Federation of America.

The Oklahoma state defendants are represented in-house by Mithun Mansinghani, Zach West and Bryan G. Cleveland.

The case is South Wind Women's Center LLC et al. v. Stitt et al., case number 20-6045, in the U.S. Court of Appeals for the Tenth Circuit.

Abortion Clinic Launches Suit Against Louisiana

The Louisiana attorney general's office is using COVID-19 to ban abortions and ultimately force abortion clinics in the state to close, according to a lawsuit filed in federal court.

June Medical Services LLC and a group of physicians and patients urged a federal judge Monday to block the state from enforcing an order that "any and all medical and surgical procedures shall be postponed until further notice," except for emergency procedures.

The clinic said the March 21 notice from the state's Department of Public Health effectively bans time-sensitive abortions to all Louisiana residents without time limitations.

"Defendants have publicly announced their intentions to close abortion clinics in Louisiana through their interpretation of the notice," the clinic said in the complaint. The notice "will force the closure of abortion clinics in Louisiana for the foreseeable future, thereby inflicting immediate and irreparable harm for which no adequate remedy at law exists," it added.

The attorney general's criminal division and Medicaid fraud staff have already threatened to close clinics as nonessential businesses and government officials have already made warrantless visits to the company's facilities, June Medical said.

"Two individuals examined patient lists; reviewed supply stock and disinfection practices; documented the medical procedures and health care visits [the clinic] is performing; and most egregiously, demanded to review confidential patient charts — and then sought hard copies of these charts," the clinic said.

State Attorney General Jeff Landry said in a statement Tuesday that "abortion clinics like June Medical are asserting the rules that apply to other facilities do not apply to them." 

"While the rest of the Louisiana has come together to fight COVID-19, it is disappointing that June Medical is once again claiming they are exceptional and entitled to a blanket exemption," he said. "And while we have yet to be served with this lawsuit, our state's citizens can rest assured that we will do all we legally can to protect the health and safety of all in Louisiana."

Counsel and representatives for June Medical did not respond to requests for comment.

June Medical Services is represented by Jenny Ma, Caroline Sacerdote and Arielle Humphries of the Center for Reproductive Rights and Ellie T. Schilling of Schonekas Evans McGoey & McEachin LLC.

Counsel information for the Louisiana state defendants was not immediately available.

The case is June Medical Services LLC v. Russo et al., case number 3:20-cv-00229, in the U.S. District Court for the Middle District of Louisiana.

Clinic Wins Block of Arkansas' Abortion Ban

An Arkansas federal court issued a temporary restraining order Tuesday blocking Arkansas from limiting abortions during the pandemic, noting that abortions don't rely on the state's personal protective equipment resources and that pre-viability abortion care decreases demand for hospital capacity.

U.S. District Judge Kristine G. Baker granted the temporary restraining order to Little Rock Family Planning Services and other reproductive rights groups challenging Gov. Asa Hutchinson's April 4 order barring all surgical abortions, except where the patient's life is in danger, for the pandemic's duration.

"Plaintiffs are likely to prevail on their argument that the challenged provisions prohibit nearly all pre-viability abortions past 10 weeks [last menstrual period], which the Supreme Court has repeatedly held is a prohibition that cannot be imposed by the state," Judge Baker wrote.

Counsel for the parties did not respond to requests for comment.

The providers are represented by Leah Godesky, Christopher Burke, Kendall Turner, Ashley Robertson and Maya Zagayer of O'Melveny & Myers LLP, Meagan Burrows and Ruth E. Harlow of the American Civil Liberties Union Foundation, Bettina Brownstein of Bettina E. Brownstein Law Firm, and Brooke-Augusta Ware of Mann & Kemp PLLC.

The Arkansas state defendants are represented in-house by Nicholas J. Bronni, Vincent M. Wagner, Michael A. Cantrell and Dylan L. Jacobs.

The case is Little Rock Family Planning Services et al. v. Rutledge et al., case number 4:19-cv-00449, in the U.S. District Court for the Eastern District of Arkansas.

16 Red States Support Alabama in Court Fight

Sixteen conservative states urged a federal judge on Tuesday to reverse an order issued over the weekend that rejected Alabama's COVID-19 abortion ban, arguing that states have "vast power to protect the public from epidemics."

Louisiana and 15 other states including Texas, Idaho and West Virginia said the virus' deadly march across the country has created a "possibility of systemic collapse of the health care system" and that letting abortions continue compromises hospitals' ability to meet increasing patient capacity due to the pandemic.

Alabama's Board of Public Health and Gov. Kay Ivey were well within their authority to issue an order to postpone nonemergency medical care, including abortions, unless they are necessary for the mother's life and health, until after COVID-19 passes, the states said.

"Plaintiffs spend pages rehashing the existence of a right to abortion and demand a blanket exemption — not granted for any other provider or procedure — from a facially neutral regulation that is applicable to all surgeries and medical procedures," the states wrote.

On Sunday, U.S. District Judge Myron H. Thompson permitted certain abortions to proceed in Alabama during the COVID-19 pandemic, granting part of a preliminary injunction to reproductive rights groups.

The state appealed that order to the Eleventh Circuit, according to a notice of appeal filed Monday. 

Judge Thompson said the state's order violated the 14th Amendment rights of patients by unconstitutionally implementing a pre-viability ban.

"The COVID-19 crisis leaves the court and the parties in uncharted territory," Judge Thompson wrote. "But this much is clear: For at least some women, a mandatory postponement until April 30 would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies, or would impose a substantial burden on their ability to access an abortion."

Louisiana is represented in-house by Elizabeth B. Murrill and Joseph St. John.

The Alabama abortion providers are represented by Randall C. Marshall and Brock Bone of the ACLU of Alabama, Alexa Kolbi-Molinas and Meagan Burrows of the ACLU Foundation, and Carrie Y. Flaxman and Susan Lambiase of the Planned Parenthood Federation of America.

Alabama is represented by Edmund G. LaCour Jr., James W. Davis and Brad A. Chynoweth of the state attorney general's office.

The case is Robinson et al. v. Marshall, case number 2:19-cv-00365, in the U.S District Court for the Middle District of Alabama.

--Additional reporting by Hailey Konnath, Katie Pohlman, Danielle Nichole Smith and Jeff Overley. Editing by Aaron Pelc.

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