Fifth Circuit Court of Appeals overrules lower court, allowing Texas abortion ban during pandemic

planned parenthood

UPDATE, 4/7/20: The Fifth Circuit Court of Appeals issued its final ruling today, upholding Texas Gov. Greg Abbott’s ban on abortion during the COVID-19 pandemic. The governor had issued a halt to non-essential services and medical procedures. According to Axios:

Citing previous rulings, the two majority judges on the appeals court argued: “‘[U]nder the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.'”

  • “That settled rule allows states to restrict, for example, one’s right to peacefully assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception.”

UPDATE, 3/31/20: The Fifth Circuit Court of Appeals has issued a temporary stay on the lower court’s ruling, allowing the ban on abortions in Texas to continue for now. The Hill reports:

In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.

“The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need,” Texas Attorney General Ken Paxton said in a statement Tuesday.

3/30/20: Planned Parenthood, the country’s largest abortion corporation, will be allowed to continue committing abortions in Texas during the COVID-19 pandemic. CBS News reporter Kate Smith broke the news on Twitter, announcing that a federal judge granted Planned Parenthood and the Center of Reproductive Rights a temporary restraining order against Attorney General Ken Paxton’s order for all abortions to be banned.

Calling abortions non-essential services during the coronavirus pandemic, any abortion that was considered not medically necessary for the life or health of the mother was not allowed, with abortionists who violated the order facing a $1,000 fine or 180 days of jail time. Texas Gov. Greg Abbott had previously issued an executive order to expand hospital bed capacity as much as possible, and Paxton said that played into the decision to suspend abortions. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers,” Paxton said in a statement. “Those who violate the governor’s order will be met with the full force of the law.”

READ: ACLU sues seven Texas ‘sanctuary cities for the unborn’

Paxton also slammed abortion facilities as being careless and inconsiderate during this time of crisis. “Medical professionals are in dire need of supplies, and abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis,” a statement read. “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.”


Abortionists immediately fired back that abortion is “essential health care” and filed a lawsuit to have the ban overturned. Judge Lee Yeakel ruled today that upholding the ban would cause women to “suffer serious and irreparable harm,” according to CBS News. Of course, in reality, abortion is never medically necessary, and it is not health care. Previously, Yeakel ruled to allow barbaric second trimester D&E abortions to continue in the state.

Meanwhile, the ACLU is filing lawsuits, along with Planned Parenthood, to overturn similar bans on elective procedures in Iowa, Ohio, Oklahoma and Alabama. These lawsuits come as other non-essential health care procedures, which do not take any lives are are not medically necessary, are similarly paused so that all available personal protective gear, respirators, and hospital beds can go toward the fight against the coronavirus.

The Attorney General responded to the restraining order in a statement (emphasis added):

This Executive Order will save countless lives by preventing further spread of the disease by unnecessary contact and ensuring the conservation of personal protective equipment (“PPE”) and hospital capacity necessary to protect the healthcare professionals who will save Texans from this disease. But Plaintiffs—a collection of abortion clinics and one abortionist physician—ask this Court to grant them a special exemption, claiming a right to deplete or endanger precious PPE resources and hospital capacity in the name of providing abortions. They have no right to special treatment. After all, “the law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007). 

Editor’s Note: Attorney General’s response has been added.

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