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Fifth Circuit Once Again Upholds Texas Governor’s Order Halting Unnecessary Medical Procedures, Including Abortion

by | Apr 21, 2020

Editor’s note. The following was distributed by the office of the Attorney General of Texas. As we reported yesterday, the 5th U.S. Circuit Court of Appeals said access to pill-induced abortions can be restricted while the state fights the COVID pandemic.

The court’s opinion is 40 pages long, including a vigorous dissent. The key paragraph follows.

(The “petitioners” are the state of Texas. The “district court” is reliably pro-abortion Judge Lee Yeakel. “Abbott” is Gov. Greg Abbott. “GA-09” is his Executive Order.)

Texas Attorney General Ken Paxton

We are persuaded by Petitioners’ arguments that the district court, in the April 9 TRO [Temporary Restraining Order], disregarded our mandate in Abbott II. The court again “fail[ed] to apply . . . the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts. … Moreover, the court again second-guessed the basic mitigation strategy underlying GA-09 (that is, the concept of “flattening the curve”), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. 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 “during the escalating COVID-19 pandemic.” 


Below is the response of pro-life Texas AG Ken Paxton.

AUSTIN – Texas Attorney General Ken Paxton applauded the ruling of the United States Court of Appeals for the Fifth Circuit, which once again upheld Gov. Greg Abbott’s Executive Order GA-09. That order requires all health care facilities and professionals to postpone medical procedures that are not immediately medically necessary in order to preserve precious medical supplies for those combating the spread of the Coronavirus (COVID-19). 

Texas Gov. Greg Abbott
Photo: Gage Skidmore

The court ruled that the district court’s second temporary restraining order on Executive Order GA-09, which granted abortionists an exception to the rule, was legally erroneous. The Fifth Circuit’s ruling recognized that states have the authority to take action during public health emergencies, and that federal judges cannot usurp that authority.

“I am pleased that the Fifth Circuit once again ruled in favor of the health and safety needs of our communities and hardworking medical professionals during this unprecedented medical crisis. Without exception, Texans must continue to work together to stop the spread of COVID-19,” said Attorney General Paxton. “Governor Abbott’s order ensures that hospital beds, supplies and personal protective equipment remain available for the medical professionals on the frontlines of this battle.”

Read a copy of the opinion here.

Read a copy of Executive Order GA 09 here

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