A federal appeals court has tossed aside a lower court decision that sought to block Texas from enforcing a temporary ban on most abortions amid restrictions imposed during the health care crisis brought on by the coronavirus.
The New Orleans-based Fifth Circuit Court of Appeals ruled that pending the outcomes of further legal proceedings against the ban, Texas could prohibit all abortions with exceptions made for the life or health of a mother.
The 2-1 circuit court decision is likely to be appealed to the U.S. Supreme Court, according to CNBC.
Texas instituted a ban on procedures that are not deemed “immediately medically necessary” last month, saying that scarce hospital resources needed to be focused on COVID-19 patients, The Texas Tribune reported.
U.S. Circuit Judge Kyle Duncan, who was appointed by President Donald Trump, wrote in the decision that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”
“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.
Judge James Dennis, an appointee of former President Bill Clinton, dissented.
The ruling said the order from Gov. Greg Abbott, identified in the court record as GA-09, does not deprive anyone of their rights “beyond question.”
“In sum, based on this record we conclude that GA-09 — an emergency measure that postpones certain non-essential abortions during an epidemic — does not ‘beyond question’ violate the constitutional right to abortion,” Duncan wrote.
“We are persuaded that this petition presents an extraordinary case justifying issuance of the writ,” he said, referring to the writ granted by the appellate court to lift a temporary restraining order issued by a district court judge who ruled against the state.
“First, as we have noted, the current global pandemic has caused a serious, widespread, rapidly-escalating public health crisis in Texas,” he added.
“Petitioners’ interest in protecting public health during such a time is at its zenith. In the unprecedented circumstances now facing our society, even a minor delay in fully implementing the state’s emergency measures could have major ramifications.”
The lower court’s ruling “was a clear abuse of discretion that produced a patently erroneous result: bestowing on abortion providers a blanket exemption from a generally-applicable emergency public health measure,” Duncan wrote.
“Not stopping there, the district court usurped the power of state authorities by passing judgment on the wisdom and efficacy of those emergency measures,” he said.
Duncan said Abbott did not outlaw abortions, he delayed them.
“Properly understood, then, GA-09 is a temporary postponement of all non-essential medical procedures, including abortion, subject to facially broad exceptions,” he wrote.
Texas Attorney General Ken Paxton praised the court for its “attention to the health and safety needs of Texans suffering from this medical crisis.”
“Governor Abbott’s order ensures that hospital beds remain available for Coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis,” he said.
Alexis McGill Johnson, acting president and CEO of Planned Parenthood, said the pro-abortion group will not take the ruling lying down
“Abortion is essential, it’s time-sensitive, and it cannot wait for a pandemic to pass,” she said in a statement.
“Instead of playing politics during a pandemic, Gov. Abbott should be focusing on the health care needs of his constituents. Planned Parenthood won’t let this injustice stand.”
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