On Tuesday, a split Fifth Circuit panel lifted a temporary block on 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. The majority held that the temporary restraining order U.S. District Judge Lee Yeakel issued last week ignored the state's right to respond to a public health crisis.
But Judge Yeakel on Thursday again sided with Planned Parenthood and the other groups, granting a more limited restraining order that allows health care providers to perform medication abortions — which involves patients taking two pills — as well as abortion procedures for patients who would be unable to access the procedure after the state's ban is lifted due to the progression of their pregnancies.
In his 16-page order, Judge Yeakel found that Planned Parenthood was likely to succeed in its challenge to the ban, saying "it is beyond question that the executive order's burdens outweigh the order's benefits." Some patients will need abortion care before the state's ban is lifted because if they wait beyond that, the abortions will no longer be feasible, the judge said.
"To the women in these categories, the executive order is an absolute ban on abortion," he said.
He noted that pregnant individuals generally visit hospitals in person twice during the first trimester and more frequently as their pregnancies progress.
"Therefore, delaying access to abortion will not conserve hospital resources," Judge Yeakel said.
And the governor's executive order is forcing individuals with unwanted pregnancies to travel to other states to safely obtain abortions, the judge said.
"This long-distance travel increases an individual's risk of contracting COVID-19," he said.
Alexis McGill Johnson, Planned Parenthood's acting president, said in a statement Thursday that the restraining order is a "temporary sigh of relief for at least some Texas patients."
"We know that abortion is essential because it is time-sensitive care that cannot wait," she said. "Gov. Abbott should stop trying to force Texans into unconscionable choices: to travel long distances and increase their risk of exposure to the new coronavirus or carry a forced pregnancy."
Meanwhile, in a statement issued Thursday, Texas Attorney General Ken Paxton slammed the order as defying the Fifth Circuit and demonstrating "a lack of respect for the rule of law."
"We will once again ask the Fifth Circuit to uphold Governor Abbott's decision to stop all elective medical procedures during the COVID-19 crisis," Paxton said.
It's the latest development in one of several rapidly evolving, high-profile battles over abortion access in the time of the coronavirus. Abbott and governors in Ohio, Alabama, Iowa and Oklahoma have argued that abortion bans are necessary to conserve medical supplies needed in battling the pandemic.
However, Planned Parenthood has repeatedly argued that the continuation of abortion services would not diminish supplies for doctors and hospitals treating COVID-19 patients because their personnel don't use the N95 respirators and other equipment in high demand during the pandemic.
Coronavirus-related abortion bans have been temporarily blocked in Ohio, Alabama and Oklahoma, with the Sixth Circuit refusing to upend a block on Ohio's ban Monday and a federal judge blocking Oklahoma's ban the same day.
Planned Parenthood of Greater Texas sued Abbott, state health officials and nine district attorneys March 25, claiming Paxton was taking advantage of the global pandemic to enforce his "extreme, antiabortion agenda."
Judge Yeakel issued a temporary restraining order March 30 halting enforcement of the Texas ban, ruling that the restriction violates the U.S. Supreme Court's ruling in Roe v. Wade
. Less than 24 hours later, a split Fifth Circuit granted Texas' officials request for a temporary stay of Judge Yeakel's order to allow the appellate court sufficient time to consider the officials' petition for writ of mandamus filed the same day as the temporary restraining order.And on Tuesday, another split Fifth Circuit panel granted that petition, saying the district court had "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."
But 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.
Nancy Northup, president of the Center for Reproductive Rights, another plaintiff in the case, said in a statement Thursday that she's relieved the district court has stepped in, once again, to prevent the state from blocking access to "time-sensitive, essential" care.
"It's time for Texas to stop its crusade to end abortion, which will inflict irreparable harm on women seeking care at this difficult time," she said.
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.
Abbott and Paxton are represented by Andrew B. Stephens, Benjamin S. Walton and Heather Gebelin Hacker of the Texas Attorney General's Office.
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 Kevin Stawicki, Katie Pohlman, Danielle Nichole Smith and Jeff Overley. Editing by Breda Lund.
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