UPDATE, 1:10 p.m. 3/31/20: Shortly after publication of this story, the U.S. 5th Circuit Court of Appeals in New Orleans stayed the lower court’s ruling, leaving in place for now Texas’ ban on abortion during COVID-19.
A federal judge ruled Monday that Texas can force healthcare providers to postpone elective surgeries during the COVID-19 outbreak, but it cannot force abortionists to do the same.
U.S. District Judge Lee Yeakel said that the Texas governor’s recent order halting abortions violated the due process clause of the 14th Amendment to the U.S. Constitution, which involves the “right to privacy” that the U.S. Supreme Court established in its 1973 Roe v. Wade decision.
Yeakel’s ruling comes in response to a case filed by abortionists seeking a federal injunction to allow them to continue to operate despite the governor’s executive order.
“The Supreme Court has spoken clearly,” Yeakel wrote. “There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause.’”
In a press release, Attorney General Ken Paxton commented, “The Governor’s Executive Order applies to all health care facilities and professionals in Texas to ensure that hospitals and their staff have access to as much personal protective equipment and hospital beds as possible during the crisis. Abortion facilities want special treatment not available to any other health care provider in Texas.”
Paxton filed for immediate appellate review in the United States Court of Appeals for the Fifth Circuit to enforce the executive order.
“Abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis,” said the attorney general. “For years, abortion has been touted as a ‘choice’ by the same groups now attempting to claim that it is an essential procedure.”
Pro-abortion groups applauded Judge Yeakel’s ruling. “All patients accessing abortion deserve (it) without delay,” said Tara Pohlmeyer, communications manager at Progress Texas. She said access to abortion is “especially important during a public health crisis,” noting that the ruling would allow facilities to resume performing abortions.
Governors in Alabama and Ohio have also ordered a halt to abortion, but federal judges there also rolled back their orders. However, in Ohio, U.S. District Judge Michael Barrett instructed abortionists to determine on a case-by-case basis whether delaying an abortion could save resources such as personal protective equipment needed to fight the coronavirus.
