In their Supreme Court filing, lawyers from Planned Parenthood and the Center for Reproductive Rights said the Texas health crisis did not justify severe restrictions on the constitutional right to abortion.
Three weeks ago, Gov. Greg Abbott, a Republican, ordered a halt to “all surgeries and procedures that are not immediately medically necessary.” That included abortions “not medically necessary to preserve the life or health of the mother,” Ken Paxton, the state’s attorney general, said in a news release. Other abortions, he said, must be postponed to preserve protective gear and other resources to fight the coronavirus pandemic.
Abortion providers promptly challenged the orders as unconstitutional, and the case has twice reached the United States Court of Appeals for the Fifth Circuit, which both times overturned temporary restraining orders issued by Judge Lee Yeakel, who was appointed by President George W. Bush.
The latest ruling from the appeals court, on Friday, allowed almost all of the governor’s order to stay in place, quoting earlier decisions in saying that “a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’”
Judge Yeakel had allowed exceptions to the governor’s order, which is scheduled to expire April 21 but may be renewed, for abortions performed using drugs and for women whose pregnancies were in their later stages.
A divided three-judge panel of the appeals court stayed Judge Yeakel’s latest temporary restraining order, making an exception only for “any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas,” which is 22 weeks from the last menstrual period, on April 22.
The judges in the majority were Judge Stuart Kyle Duncan, appointed by President Trump, and Judge Jennifer Walker Elrod, appointed by Mr. Bush. Judge James L. Dennis, appointed by President Bill Clinton, dissented, saying he would have upheld Judge Yeakel’s order.