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5th circuit uphold Texas’s prioritizing of medical services and supplies during COVID-19 pandemic

by | Apr 1, 2020

By Dave Andrusko

Bucking the trend seen in some other circuit courts of appeal, on Tuesday the 5th Circuit Court of Appeals temporarily “stopped a lower court’s decision that allowed abortion facilities alone to continue using up precious medical supplies in the midst of a pandemic,” according to Texas Attorney General Ken Paxton who applauded the 2-1 decision. “The temporary stay…justly prioritizes supplies and personal protective equipment for the medical professionals in need,” Paxton said in a statement.

Paxton had quickly contested last Thursday’s decision by reliably pro-abortion U.S. District Judge Lee Yeakel who sided with the abortion clinics in their challenge to the Executive Order issued by Texas Gov. Greg Abbott “postponing any unnecessary medical procedures to preserve desperately needed medical supplies for the health professionals.” 

That includes elective abortions.

Judges Stuart Kyle Duncan and Jennifer Walker Elrod ruled in favor of the state, Judge James L. Dennis dissented, siding with abortion providers. If the full 5th Circuit upholds the Governor’s Executive Order, “the plaintiffs will file an emergency appeal to the Supreme Court,” according to Slate’s Mark Joseph Stern.

“For years, abortion has been touted as a ‘choice’ by the same groups now attempting to claim that it is an essential procedure,” Paxton said. “All Texans must work together to stop the spread of COVID-19. My office will continue to defend Governor Abbott’s Order to ensure that supplies and personal protective gear reach the hardworking medical professionals who need it the most during this health crisis.”

Meanwhile State district court Judge Andrew Chappell signed an order Monday setting up a telephone hearing today to consider arguments by the American Civil Liberties Union of Iowa and abortion providers who argued Iowa Gov. Reynolds “is violating the state constitution by including abortion in an order she enacted Friday to halt all elective and non-emergency medical procedures,” the Associated Press reported.

Pat Garrett, a spokesman for Gov. Reynolds, said the governor “is focused on protecting Iowans from an unprecedented public health disaster, and she suspended all elective surgeries and procedures to preserve Iowa’s health care resources.”

In Alabama, the state closed many nonessential businesses, effective last Saturday. On Monday, U.S. District Judge Myron Thompson “issued a temporary restraining order against Alabama’s order, saying the ruling with be in effect through April 13 while he considers additional arguments,” David Pitt and Paul Weber reported. 

Thompson wrote the state’s concerns about conserving medical equipment during the pandemic, does not “outweigh the serious, and, in some cases, permanent, harms imposed by the denial of an individual’s right to privacy.”…Alabama Attorney General Steve Marshall said earlier Monday the state would not offer a “blanket exemption” to abortion clinics.

In addition, the governors of two other states—Ohio and Oklahoma—have had lawsuits filed against them for trying to ensure that the use of crucial medical supplies and services are prioritized in the fight to contain the COVID—19 pandemic.

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