The court said a previous ruling from a federal judge blocking the ban ignored the state’s ability to restrict rights during a public health emergency....
Updated at 5:30 p.m. with additional information and comments.
AUSTIN — The Fifth Circuit Court of Appeals says Texas can enforce its ban on elective abortions during the coronavirus pandemic.
In a split decision Tuesday, the court said Texas has the right to restrict access to elective abortions during a public health emergency, doubling down on a decision last week to overturn a lower court’s ruling to block the ban.
This is the latest development in a legal battle over whether abortions should be allowed to continue as hospitals across the state and country face medical constraints during the coronavirus pandemic.
In a March 21 executive order, Gov. Greg Abbott said all nonessential medical procedures would be postponed to free up hospital beds and personal protective equipment amid rising COVID-19 cases.
But after Texas Attorney General Ken Paxton warned the order included elective abortions, a coalition of abortion providers sued the state. They argue the order infringes on women’s rights by including all types of abortions, including those that do not require personal protective equipment. Most abortions already don’t take place in hospitals.
Siding with abortion providers, U.S. District Judge Lee Yeakel blocked the state from enforcing the ban. After Paxton’s office took the case to the Fifth Circuit Court of Appeals, the court reversed Yeakel’s decision last week and said the state could enforce the ban, issuing a temporary stay of the district court’s order.
On Tuesday, Circuit Judges Jennifer Walker Elrod and Kyle Duncan, both Republican appointees, reaffirmed that ruling and said Yeakel ignored the framework of special powers granted by the U.S. Supreme Court to states during public health emergencies....
Elrod was appointed to the court by President George W. Bush, and Duncan was appointed by Donald Trump.
Circuit Judge James L. Dennis, appointed by Democrat Bill Clinton, said he “respectfully but emphatically” disagreed with the ruling. In his dissent, Dennis says the state’s decision to halt abortions unless necessary to a woman’s health is not sufficiently relevant to the order’s intended goal of conserving medical equipment and maintaining access to hospital beds. The state has therefore gone beyond its public health emergency powers, he said.
“In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care,” he wrote.
Earlier on Tuesday, abortion advocates told the Fifth Circuit Court of Appeals that they planned to go to the U.S. Supreme Court if it did not issue a longer-term ruling on the temporary stay enacted last week.
