Texas’s Legal Battle to Ensure Safe Access to Abortion During Coronavirus

Updated April 7, 4 p.m. PST.

CBS News reports:

Texas can continue to legally implement its near-total ban on abortion services amid the coronavirus outbreak, the Fifth Circuit Court of Appeals ruled Tuesday afternoon. Abortion services in Texas have been unavailable for more than two weeks, driving some patients to seek the procedure in neighboring states or terminate their pregnancy themselves.

In a split ruling Tuesday, two federal judges—Judge Kyle Duncan and Judge Jennifer Walker Elrod—ruled the directive was constitutional, despite Supreme Court precedent that protects access to abortion.

Judge Duncan was appointed by President Donald Trump and Judge Elrod by President George W. Bush.

Judge Kyle Dennis, appointed by President Bill Clinton, dissented, writing: “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.”

Buzzfeed reported on March 31:

A federal judge had put a temporary hold on the state’s abortion ban, but an appeals court overturned the ruling Tuesday.

Texas will be allowed to instate a temporary ban on abortion in nearly all cases during the coronavirus outbreak, the Fifth Circuit Court of Appeals ruled Tuesday. The court overturned a decision released just hours before, on Monday afternoon, when a federal judge put a hold on the ban, saying it would cause “irreparable harm” to patients in the state.

On Wednesday, a group of Texas abortion providers—represented by the Center for Reproductive Rights, the Lawyering Project and the Planned Parenthood Federation of America—sued Gov. Greg Abbott and other state officials to ensure that patients can continue to access abortion services during the COVID-19 pandemic.

The lawsuit is in response to Monday’s declaration from the Attorney General of Texas, Ken Paxton, banning “any type of abortion that is not medically necessary to preserve the life or health of the mother.”

Failure to comply with the order can result in penalties of up to $1,000 or 180 days of jail time, Paxton said, and the order in Texas is in effect until at least April 21.

Due to the ensuing confusion in Texas, providers—including Planned Parenthood Gulf Coast (PPGC), Planned Parenthood Greater Texas (PPGT), Planned Parenthood South Texas (PPST), Whole Woman’s Health, Whole Woman’s Health Alliance, Southwestern Women’s Surgery Center and Austin Women’s Health Center—were forced to cancel hundreds of patients’ procedures and appointments.

Abortion providers accused Gov. Abbott and other Texas leaders of inserting politics into what should be medical decisions—all while doctors and nurses in the state work around the clock to care for patients suffering from COVID-19.

“Texans need immediate access to time-sensitive health care, including abortion—not political grandstanding,” said Stephanie Toti, project director at the Lawyering Project and senior counsel for the lawsuit.

Pro-choice march at the Texas state Capitol building in Austin, July 2013. (Ann Harkness)

“It’s unconscionable that the Texas Attorney General is exploiting this pandemic to end abortion in the state,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “Texas is abusing the state’s emergency powers—and we are filing suit to stop it.”

Delays or additional barriers to care can make it more difficult or even impossible for patients to access safe, legal abortion. For many people of color—who have always faced systemic barriers to health care and are more vulnerable to COVID-19—adding unnecessary restrictions on abortion access poses dangerous risks.

Medical experts, including the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology, also released a statement on March 18 arguing that abortion is an essential, time-sensitive procedure that cannot be delayed without “profoundly [impacting] a person’s life, health and well-being.” 

On Wednesday, Paxton responded to the lawsuit on Twitter, criticizing abortion providers for their opposition.

The state of Texas has historically been a battleground over abortion rights: A 2013 lawsuit, Whole Woman’s Health v. Hellerstedt, successfully sued Texas over an anti-abortion law that resulted in more than half of Texas’ abortion clinics shuttering—before being overturned by the U.S. Supreme Court.

Whole Woman’s Health v. Hellerstedt was a constitutional challenge to Texas HB 2—a package of onerous restrictions designed to shutter abortion clinics across the state—signed into law by Governor Rick Perry in 2013. Pictured: Whole Women’s Health clinic in McAllen, Texas, January 2017. (Robin Marty)

(An identical bill out of Louisiana, June Medical Services v. Russo, is now awaiting a Supreme Court decision—likely to be released in June.)

The plaintiff abortion providers are represented by attorneys from Planned Parenthood Federation of America, the Center for Reproductive Rights, the Lawyering Project and the Law Offices of Patrick J. O’Connell PLLC.

A copy of the complaint filed today can be found here.

The coronavirus pandemic and the response by federal, state and local authorities is fast-moving.

During this time, Ms. is keeping a focus on aspects of the crisis—especially as it impacts women and their families—often not reported by mainstream media.

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Roxy Szal is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.