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Appeals court uphold Texas’ ban on elective abortions during COVID-19 crisis

by | Apr 8, 2020

By Dave Andrusko

In a 47-page decision, a three-judge panel of the 5th U.S. Circuit Court of Appeals “will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic,” the Texas Tribune reported. “The 5th Circuit had already paused [Judge Lee] Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely,” according to Emma Platoff.

A hearing is scheduled for April 13 in federal court.

“I thank the Fifth Circuit for their attention to the health and safety needs of Texans suffering from this medical crisis,” said Attorney General Paxton. “Governor Abbott’s order ensures that hospital beds remain available for Coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis.” 

Paxton added, “Texans must continue to work together to stop the spread of COVID-19, and we must support the health professionals on the frontlines of this battle.” 

The Governor’s March 22 executive order applies to all licensed healthcare professionals and facilities in Texas and requires that they 

postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.

In his majority opinion, U.S. Circuit Judge Kyle Duncan wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times. …

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.

The Plaintiffs—abortion providers—were not happy. Dyana Limon-Mercado, the executive director of Planned Parenthood Texas Votes, “pledged to continue fighting the state but did not say whether providers would ask the U.S. Supreme Court to consider the case or head back to federal district court,” Platoff reported.

“We have seen relentless attacks on reproductive health care, including abortion access, for more than two decades in Texas, but the governor’s order is a new low,” Limon-Mercado said. “How cruel and out of touch with reality do you have to be to exploit a global health pandemic to further your own political agenda?”

As NRL News Today reported, five major pro-life medical groups, including the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), say that “elective abortion is neither ‘essential’ nor ‘urgent,’” but “does consume critical resources such as masks, gloves, and other personal protective equipment, and unnecessarily exposes patients and physicians to pathogens.” And….

“Elective abortion, both surgical and drug induced, also generates more patients to be seen in already overburdened emergency rooms. Most abortion providers instruct women to go to an emergency room if they have any concerning symptoms after the abortion. Approximately five percent of women who undergo medication abortions will require evaluation in an emergency room, most commonly for hemorrhage. Surgical abortions can also result in hemorrhage. Emergency room personnel – who are already struggling to meet the demands of the COVID-19 pandemic – will be further strained to provide care to these women.”

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