What’s Going on With Texas’s Coronavirus Abortion Ban?

A procedure room at the Whole Woman’s Health abortion clinic in San Antonio, Texas. Photo: Matthew Busch/Bloomberg via Getty Images

Coronavirus-related abortion restrictions have lifted in Texas, now that the governor’s order suspending non-essential medical procedures has eased.

According to Reuters, Texas Attorney General Ken Paxton said in a court filing Wednesday night that, because the abortion providers challenging the state’s temporary ban are complying with a less-stringent executive order, there “is no case or controversy remaining.” This concludes a whiplash-inducing court battle between abortion providers — Planned Parenthood Federation of America, the Center for Reproductive Rights, and the Lawyering Project — and Texas leaders seeking to block access under the guise of safeguarding public health.

How did Texas suspend abortion access?

On March 22, amid a slew of stay-at-home orders meant to curb the spread of the coronavirus, Texas governor Greg Abbott issued an executive order postponing all nonessential surgeries and medical procedures until April 22. The next day, the state’s attorney general, Ken Paxton, clarified that the order included abortion, unless a pregnancy threatened the life of the mother. Texas prohibits abortion starting 22 weeks after a patient’s last menstrual period.

Crucially, with respect to the ensuing legal battle, Abbott’s order made an exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the Covid-19 disaster.”

Paxton’s office justified the temporary ban — the violation of which could have come with as much as a $1,000 fine or 180 days in jail — by saying it will help free up medical supplies and hospital beds for coronavirus patients.

At first, abortion providers challenged the temporary ban outright.

On March 30, U.S. District Court Judge Lee Yeakel blocked the state’s attempt at clinic closures on the grounds that patients denied the ability to terminate unwanted pregnancies would “suffer serious and irreparable harm.” Suspending abortion services, Yeakel wrote, “amounts to a pre-viability ban,” violating the terms laid out in Roe v. Wade.

The next day, however, the Fifth Circuit intervened. Issuing its own temporary stay on Yeakel’s decision, the Fifth Circuit allowed Paxton’s policy to remain in place until they had reviewed arguments in the case. On April 7, the court confirmed in a 2-1 decision that it would allow the de facto ban to stand, Judge Kyle Duncan — a Donald Trump appointee — writing that Supreme Court precedent “instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”

Then, they asked for specific exemptions.

Abortion providers then asked Yeakel to exempt medication abortions, pointing out in a brief that this method “requires no PPE, while the patient’s only alternative to medication abortion — continuing the pregnancy — does.” In Texas, medication abortion is available through the tenth week of pregnancy, and in general, is extremely safe, requiring hospitalization in about 0.4 percent of patients.

On April 9, Yeakel issued a temporary restraining order blocking parts of the interim abortion ban. Per Yeakel’s decision, medication abortion became — fleetingly — available again, while patients who risked running up against gestational limits before April 22 were also allowed to move ahead with termination.

The Fifth Circuit immediately turned around and blocked the medication exemption, though, prompting providers to file their case with the Supreme Court on April 11. But the complainants ultimately withdrew their filing on April 14, after the Fifth Circuit judges ruled the night before that medication abortion — which involves handing a patient pills — did not qualify as a “procedure” that would deplete the state’s supply of masks and medical equipment.

On April 20, however, the Fifth Circuit backtracked in a 2-1 opinion, arguing that Texas has a right to ban medication termination because “the constitutional right to abortion does not include the right to the abortion method of the woman’s (or the physician’s) choice.”

What does Abbott’s new order say?

The Fifth Circuit delivered its latest decision one day before Abbott’s order on non-essential procedures was set to expire. While the moratorium on surgeries and procedures that are not medically necessary still stands, two exceptions went into effect on April 22: for facilities that reserve at least 25 percent of their beds for coronavirus patients, and vow not to request any PPE from public sources during the public health emergency.

Asked whether or not abortion services would be able to resume under these revised guidelines, Abbott previously said that “will be a decision for courts to make,” according to the Texas Tribune. Texas clinics have reportedly certified to the Texas Health and Human Services Commission that they will comply the governor’s updated order, and both medication and procedural abortions have resumed.

Ruling on similar policies in late March, federal judges suspended temporary abortion bans in Alabama, Oklahoma, and Ohio.

What’s Going on With Texas’s Coronavirus Abortion Ban?