Health Law

In new opinion, 5th Circuit halts medication abortions in Texas under nonessential surgery ban

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The 5th U.S. Circuit Court of Appeals at New Orleans reinstated a ban Monday on medication abortions in Texas under the governor’s order banning nonessential surgeries during the novel coronavirus pandemic.

But the litigation will likely continue because Texas Gov. Greg Abbott’s order is expiring Tuesday. Abbott’s new order relaxes the nonessential surgery ban for some hospitals.

The 5th Circuit’s 2-1 decision upheld the abortion ban except in cases in which a patient would be past the legal limit for abortions in Texas on April 22, the date that the new order takes effect.

Law360, the Texas Tribune and Courthouse News Service have coverage.

It is unclear how the state’s new surgery directive will apply to abortions. Abbott’s order says hospitals can perform elective surgeries if they reserve a quarter of their capacity for COVID-19 patients and if they won’t use government-provided protective equipment. Abbott said abortions were “not part of this order.”

The 5th Circuit has ruled on the abortion issue several times. On April 7, the appeals court lifted a temporary restraining order that broadly blocked the pandemic-related abortion ban. On April 10, when considering a more narrowly tailored TRO, the appeals court blocked medication abortions but allowed later-stage abortions that could be too late if delayed.

Then on April 13, after abortion providers sought review with the U.S. Supreme Court, the appeals court allowed medication abortions to proceed while litigation continues. Abortion providers withdrew the cert petition.

The April 20 majority decision said the trial judge had second-guessed Abbott’s strategy to flatten the curve and acted without knowing critical facts, including whether abortion providers use protective equipment.

“Those errors led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures,” the appeals court said.

The two judges in the majority are Jennifer Walker Elrod, an appointee of President George W. Bush, and Stuart Kyle Duncan, an appointee of President Donald Trump.

Judge James Dennis, an appointee of President Bill Clinton, said in his dissent that the majority opinion “places us at odds with seemingly every other federal court” considering the pandemic-related abortion issue.

Dennis said “the legality of abortion in Texas has changed no less than six times since the beginning of the COVID-19 pandemic,” partly because of the appellate decisions. The appeals court has invoked mandamus twice, demonstrating the danger of using the extraordinary remedy “to overmanage matters,” Dennis said.

Dennis said the trial-level judge had fulfilled the appeals court’s previous mandate, but “the majority now moves the goal posts and chastises the district court for not abiding by a series of phantom instructions that can be found nowhere in its previous order.”

Hat tip to @ZoeTillman.

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