One of the more interesting legal fights during the pandemic have centered on abortion rights in Texas.  Some governors, like Texas Gov. Greg Abbott, have sought to limit abortions as non-essential or “not immediately medically necessary” procedures during the pandemic.  That has been challenged by pro-choice advocates who insist that this is just an opportunistic use of the pandemic.  One such fight is bouncing around the Fifth Circuit over the use of pill-induced abortions.  The United States Court of Appeals for the Fifth Circuit just ruled in favor of the state restriction.

The appeal itself has ping ponged back and forth in the court. Just a week earlier, the Fifth Circuit indicated that Texas had not effectively demonstrated that pill-induced abortions are an actual “procedure.” However, on Monday, the court seemed to do a 180 degree turn and upheld the state order.

The two pertinent provisions are:

GA-09: [A]ll licensed health care professionals and all licensed health care facilities shall 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.

GA-15: All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician[.]

See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files/press/EO-GA-15_hospital_capacity_COVID-19_ TRANS_04-17-2020.pdf.

What is also interesting is that this a mandamus action, a difficult vehicle for appeal.  Yet, the state filed a writ of mandamus vacating the district court’s temporary restraining order that exempted abortions from GA-09, an emergency measure temporarily.

The Court ruled rejected the constitutionally based claim: “The district court’s treatment of GA-09 as “an absolute ban on abortion” as applied to this category of women was obviously wrong. Abbott III, 2020 WL 1815587, at *6. A woman who would be 18 weeks LMP when GA-09 expires has up to four weeks to legally procure an abortion in Texas. No case we know of calls that an ‘absolute ban’ on abortion.”

Given the loosening limit of the pandemic in states like Texas, this case could be moot before an appeal can be argued to the Supreme Court. However, it would raise an interesting balancing of public health emergency powers of the states against the individual right to abortion services.

Here is the opinion: In re Greg Abbott