A federal judge has once again cleared the way for some abortions to resume in Texas despite the governor’s order restricting them during the coronavirus outbreak.
Judge Lee Yeakel blocked the state from enforcing the order specifically “as a categorical ban on all abortions provided by Plaintiffs” and specifically against those providing medication abortions or providing surgical abortions to abortion-seekers who would reach 22 weeks since their last menstrual period — the cutoff to receive an abortion in Texas — by the order’s expiration on April 21.
The ruling would also apply to surgical abortions performed on those who, by April 21, would reach 18 weeks since their last menstrual period, rendering them eligible for abortions only at ambulatory surgery centers, and would be “likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care,” Yeakel wrote.
“As a minimum, this is an undue burden on a woman’s right to a pre-viability abortion,” he wrote Thursday.
The ruling marks another turn in a case that has bounced back and forth between courts that reach opposite conclusions, blurring the lines as to what forms of the procedure have been allowed in Texas and when.
State officials have opted to include elective abortions in an order limiting medical procedures during the coronavirus outbreak, pointing to the need to conserve personal protective equipment. Abortion rights supporters have criticized the move as politically motivated.
On Tuesday, the Fifth Circuit Court of Appeals ruled in favor of Texas and allowed the order to remain in effect, wiping away Yeakel’s opinion from last week that blocked the order. The conflicting rulings tee up a potential Supreme Court battle
But Yeakel on Thursday granted abortions rights groups’ petition for another temporary block after the appeals court’s ruling.
For abortion seekers who would reach 22 weeks since their last menstrual period by the order’s expiration on April 21, “the Executive Order is an absolute ban on abortion,” Yeakel wrote.
“When a temporary delay reaches 22 weeks LMP, the ban is not temporary, it is absolute,” he added. “A ban within a limited period becomes a total ban when that period expires.”
The back-and-forth court decisions began after Texas Republican Gov. Greg Abbott last month barred “all surgeries and procedures that are not immediately necessary,” effective immediately.
Texas Attorney General Ken Paxton later specified that “any type of abortion that is not medically necessary to preserve the life or health of the mother” was included in the order, prompting a challenge from state abortion providers and national abortion rights groups last month.
The case could ultimately be headed to the Supreme Court if the pattern of appeals continues. Planned Parenthood told the appeals court prior to its ruling on Tuesday that if it didn’t rule on the abortion issue related to the pandemic by close of business, the group would go directly to the Supreme Court the next morning to seek relief.
A key issue in the debate has been state officials’ argument that the order preserves stockpiles of personal protective equipment, which have become an increasingly precious resource as the coronavirus outbreak continues.
In Tuesday’s opinion, the appeals court said it was “unclear how long the crisis will last” but that its own review of the record, at a preliminary stage, “reveals considerable evidence that surgical abortions consume PPE.” The court said the record is still unclear on how “PPE is consumed in medication abortion,” which typically involves abortion-seekers taking two pills.
But Yeakel appeared to accept abortion rights groups’ assertions that medication abortion “does not require the use of any PPE” and that “abortion providers generally do not use N95 masks.”
While the Texas case has emerged as among the most advanced, other such orders filed by several states during the outbreak have also faced court challenges. Federal judges in Oklahoma, Ohio and Alabama have moved in recent days to block those states’ orders limiting elective abortions. On Monday, another appeals court affirmed a lower court’s ruling blocking Ohio’s order.
Paxton vowed to appeal Thursday’s decision in Texas back to the Fifth Circuit, arguing that Yeakel’s action “defies” the higher court and “demonstrates a lack of respect for the rule of law.”
Abortion rights activists cheered Thursday’s decision. Alexis McGill Johnson — acting president and CEO of Planned Parenthood, one of the plaintiffs in the case — called the ruling “a temporary sigh of relief for at least some Texas patients” and vowed to “continue to fight these cruel attacks on our patients.”
