Friday, April 10, 2020

Fed. Court: Texas May Not Ban Medication Abortions, or Delay Abortions Past Viability,

By Eugene Volokh - April 10, 2020 at 02:20AM

On March 22, the Texas Governor issued executive order GA-09, which delayed all "non-essential surgeries and procedures" until April 22, in order to preserve medical personnel's personal protective equipment during the coronavirus epidemic. The order applied to many different kinds of procedures, including abortions (except those necessary to preserve life or avoid serious threats to health).

On March 30, U.S. District Court Judge Lee Yeakel blocked GA-09 as applied to abortions generally. Then on April 7, the Fifth Circuit reversed that order, holding that—in the special context of an epidemic—the court's order was overbroad. But the Fifth Circuit expressly reserved the question whether certain kinds of narrower orders might be constitutional.

Well, yesterday Judge Yeakel did issue a narrower order, which:

[1.] Blocked GA-09 as applied to medication abortions, because the court concluded that "[p]roviding medication abortion does not require the use of any [personal protective equipment]."

[2.] Blocked GA-09 as applied to surgical abortions for two categories of women who that are relatively close to viability, since "To women in these categories, the Executive Order is an absolute ban on abortion. When a temporary delay reaches 22 weeks [since the start of the last menstrual period], the ban is not temporary, it is absolute. A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion."

I'm inclined to say that at least this second part is indeed mandated by the Court's recognition of a right to a previability abortion; and I also think it's not foreclosed by the Fifth Circuit's decision—see my earlier post for more on both those points. But I expect Texas to go back to the Fifth Circuit to try to get this reversed as well, and I guess we'll soon see what that court thinks about it.

In the meantime, you can review the full District Court order, which contains some more detailed factual findings, which I won't repeat here.

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