Supreme Court asked to intervene against Abbott, Paxton pandemic abortion ban

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The legal battle for reproductive rights in Texas during the COVID-19 pandemic has reached the Supreme Court. 

On Saturday, Planned Parenthood and other abortion providers in Texas filed an emergency appeal with the Supreme Court, urging the conservative court to block an order by Gov. Greg Abbott and Texas Attorney General Ken Paxton partially prohibiting most abortions in Texas during the outbreak.

In a statement, Nancy Northup, president and CEO of the Center for Reproductive Rights, a group joined in the lawsuit, said Texas was “blatantly abusing its emergency power to obliterate Roe v. Wade.”

The legal battle began last month when Abbott, in order to free up hospital space and personal protective equipment, issued an executive order temporarily forcing health care facilities in the state to postpone “all surgeries and procedures that are not immediately medically necessary.”

A day after Abbott’s executive order, Paxton clarified that abortions were included in the temporary ban on medically unnecessary surgeries. He warned that anyone who failed to comply could face a $1,000 fine or up to 180 days in jail. 

Shortly after, Planned Parenthood and other abortion providers sued Abbott, Paxton and other Texas officials in an attempt to undo the ban. It led to a dizzying, rapid-fire legal brawl seen in federal courts for the past two weeks. The order was blocked, unblocked, then blocked again with some conditions, and then on Friday, partially unblocked again. 

As it stands, women in Texas can seek abortions if they are approaching the 22-week legal limit for an abortion in Texas;  if the procedure can’t be postponed until after the ban is lifted on April 21, then a patient is allowed to seek an abortion. Patients whose health is threatened without abortion are also permitted to seek one, per the original order. But the current ban makes no exceptions for medication abortions, or abortions induced by ingesting pills. Abortion providers and reproductive rights groups are now asking the Supreme Court to allow medication abortions within the state’s temporary ban.

The chaos wrought by Abbott and Paxton has already caused hundreds of abortions to be canceled throughout the state. A research brief by the University of Texas found that almost three-fourths of Texas’ counties— including the state’s largest, Harris County— will now see residents drive more than 200 miles to neighboring states to reach the nearest abortion provider.

As federal courts bounce the temporary ban back and forth, abortion providers have struggled with what Planned Parenthood described as “legal whiplash” for worried patients.

“One day patients are called back for their procedures, the next day they are canceled — all at the whim of Gov. Abbott,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America said in a recent statement. 

The true cruelty and danger of the temporary ban were best highlighted in the dissenting opinion of a judge in the Fifth Circuit Court of Appeals, which upheld the ban last week and partially again over the weekend.

“[The order] has already led patients to travel to other states to obtain abortion care in a pandemic, exposing patients and third parties to infection risks,” wrote U.S. Circuit Judge James Dennis, a Clinton appointee. “One out-of-state physician stated that he treated 30 abortion patients from Texas in the week after the attorney general’s statement.”

Five other states are currently going through their own version of pandemic-related attacks on abortion.

If the Texas case is heard by the Supreme Court, it would be the first major ruling on abortion since the 2018 retirement of Anthony Kennedy, who historically supported Roe v. Wade. The nation’s highest court is currently reviewing another major abortion case whose outcome may determine the fate of Roe v. Wade, but that decision could come anytime before June and would almost assuredly come after the review of Abbott’s executive order.

Photo: SAUL LOEB/AFP via Getty Images

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