Texas’ “severe” pandemic abortion ban lands at the US Supreme Court

Suspending the constitutional rights of pregnant Texans.
Suspending the constitutional rights of pregnant Texans.
Image: Ephrat Livni
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The Lone Star state is indeed a loner in one regard, according to an April 11 filing by Planned Parenthood in the US Supreme Court.

Texas, like other states, has declared an emergency due to the coronavirus crisis, halting nonessential activities. But it’s gone further than any other locale in limiting family planning services, leaving women with no choice but to remain pregnant or travel out of state instead of sheltering in place, even to seek nonsurgical abortions that simply involve swallowing “two pills.”

Over the weekend, the healthcare providers turned to the highest court in the land for help, saying that “Texas has exploited the Covid-19 crisis as a pretext to target abortion.” 

Back and forth in court

The matter arises from Texas attorney general Ken Paxton’s interpretation of the governor’s late-March emergency declaration, which is in place until April 22 and can be extended indefinitely. Paxton warned that all abortions, except for immediate medical emergencies, are elective procedures that tax the state’s much-needed personal protective equipment, ventilators, and medical supplies. Doctors performing abortions are thus subject to criminal prosecutions and fines, and pregnant Texans find their constitutional rights abruptly suspended.

Planned Parenthood immediately challenged Paxton’s interpretation in federal district court last month. About half of Texas pregnancies in 2019 were terminated with medication, not surgery, the organization argued, and no other type of medication was singled out or barred under the emergency law. Moreover, a woman’s right to choose abortion is protected by the Constitution, the abortion providers reminded the judge.

Convinced by this, the district court found for the abortion providers, granting an injunction that would allow them to provide family planning services amid the coronavirus crisis. Paxton’s interpretation effectively banned abortion. Even amid an unprecedented pandemic, the state has no interest sufficient to justify such an extreme approach, the judge found.

However, this court order was quickly appealed by state authorities, leading to a flurry of filings in recent weeks but no relief for pregnant Texans. The Fifth Circuit Court of Appeals stayed the injunction and sent the case back for further factual findings while with each passing week, local women approached or surpassed the state’s deadline for terminating pregnancies.

In Texas, medication abortions are allowed up to 10 weeks of gestation, and surgical procedures are allowed up to 22 weeks. But the further along the pregnancy, the higher the risk of medical complications, healthcare providers argue, and the greater the financial, emotional, and psychological strain of being forced to carry a child in a world that seems ever less livable.

On April 8, Planned Parenthood sought a narrow intermediate stay while continuing to challenge the state’s near-total ban on abortions. This time, healthcare providers asked that medication terminations be allowed to continue, in addition to surgical procedures for those patients who would be past the gestational age limit for an abortion by April 22. The district court again granted the healthcare providers’ request and state authorities again turned to the appeals court. On April 10, the appellate court stayed the injunction before authorities even filed a brief to support the move. Thus, pregnant Texans had about one day to get an abortion before almost all pregnancy terminations were again banned.

Planned Parenthood says in its emergency request to the Supreme Court that by forcing pregnant women to travel during the pandemic, the state is endangering individual Texans and increasing the risk of spreading infection, compromising public health generally. The average distance traveled by the organization’s clients for abortion care has increased from 158 miles last year to 734 miles since the governor’s coronavirus-related order was issued last month. Those long journeys involve extensive interactions, expose the women to additional risk of infection, and undermine social distancing directives meant to protect all Americans.

No rest for the bench

This was the second Saturday in a row that an emergency appeal related to the coronavirus crisis reached the Supreme Court. Last week, the justices were tasked with ruling on a Wisconsin order extending the deadline for mail-in ballots in that state’s general and presidential primary elections based on an emergency request by the Republican National Committee. Brett Kavanaugh ordered the Democratic National Committee, which had filed for the extension in Wisconsin federal court, to respond by Sunday afternoon.

Ultimately, the high court ruled within 53 hours of receiving the election-related request, which is a pretty quick turnaround considering the issues involved. The conservative majority found the extension was invalid while the progressive minority dissented, arguing that the people of Wisconsin shouldn’t have to choose between staying heathy by remaining at home during a pandemic and exercising their right to vote.

So far, the court seems to be taking the request from Texas abortion providers at a far more leisurely pace than last week’s case, however. The weekend filing was addressed to justice Samuel Alito, who handles emergency requests arising from the Fifth Circuit and can choose to rule on his own or refer the case to his colleagues on the bench to consider. The court’s docket reflects no activity as of the time of this writing, not even an order for Texas state authorities to file a response to Planned Parenthood.