Paxton Gets 5th Circuit to Reinstate His Abortion Ban

When it comes to prioritizing their attacks on restricting women’s access to abortion care, anti-choice officials in Texas act fast – even during a global pandemic.

Texas Attorney General Ken Paxton (Photo by John Anderson)

Less than 24 hours after a federal judge granted abortion providers a temporary restraining order to reinstate abortion care in Texas following Attorney General Ken Paxton’s move to halt all abortion procedures during the Coronavirus pandemic, the 5th U.S. Circuit Court of Appeals has issued a stay on that order today.

The largely conservative 5th Circuit often sides with Paxton and state officials when they seek to curb abortion rights, and this time is no different. When Paxton – following direction from Gov. Greg Abbott – claimed last week that all abortion care falls under “non-essential” procedures that should be suspended during COVID-19 to conserve protective medical equipment and hospital space, Planned Parenthood and the Center for Reproductive Rights shot back with a lawsuit arguing abortion care is essential health care. In the meantime, providers – faced with the threat of $1,000 fines or jail time of up to 180 days – were forced to cancel hundreds of scheduled appointments.

On Monday, U.S. District Judge Lee Yeakel sided with abortion providers and granted a temporary restraining order, writing that the ban runs counter to Supreme Court precedent and that patients would face “irreparable harm,” the Chronicle reported.

But the victory was short-lived as Paxton swiftly appealed to the 5th Circuit, where a three-judge panel ruled in the state’s favor today. Circuit Judge James Dennis dissented, reminding that Abbott’s order exempts “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” (Providers argued that abortion falls under that category.)

That means abortion, once again, will be halted in Texas for now. And research released today from the UT-Austin based Texas Policy Evaluation Project (TxPEP) shows the ban – in effect until at least April 21 – would result in “unnecessary economic hardships and increased health risks” for women.

Many patients seeking abortion care in early pregnancy will no longer be eligible for medication abortion because they will be pushed past the gestational age limit, the TxPEP brief notes. Researchers, including Kari White, Laura Dixon, Joseph Potter, and Daniel Grossman, estimate that only 6% of patients who were seeking abortion when the executive order was issued would still be eligible for medication abortion if they are delayed and can’t return for their abortion for six weeks. And many women seeking a first-trimester abortion will be delayed into the second trimester, at which point the risk of complications increases, the procedure is more expensive, and is available at fewer clinics. “Indeed, after the order expires, it is unlikely that the existing second-trimester facilities in Texas will have the capacity to provide care for all the patients who will need it,” they write.

Additionally, as the majority of Texas counties are 200 miles or more from the nearest out-of-state abortion facility, it’s likely that many people considering abortion will be unable to afford travel costs and will end up continuing an unwanted pregnancy. That out-of-state travel will be more difficult for patients during the pandemic because they face “economic uncertainty” from lost wages and child care at home. Further, most of Texas’ neighboring states require a mandatory in-person visit and 24-hour waiting period, so patients hoping to get care out of state would need to travel 800 miles round-trip or more to attend those two separate visits.

“Texans are losing their jobs, they are struggling to put food on the table, they can’t get COVID-19 testing – meanwhile indicted Texas Attorney General Ken Paxton is doubling down on banning abortion,” said Aimee Arrambide, executive director of NARAL Pro-Choice Texas. “Let’s be clear, it is never the right time to play politics, but doing so in the wake of COVID-19 is a despicable low. Texans know abortion is a time-sensitive procedure that can not be delayed without profound consequences and Texans will remember that when they needed help during a pandemic, their state leaders were too busy politicizing and banning abortion care.”

It’s hard to imagine a “more tortured legal path than the one blazed” by Paxton over the past few days, said Texas Freedom Network President Kathy Miller. “He has thrown out the window any pretense that he cares about anything other than cynically exploiting a national health emergency to bar women from getting the essential, time-sensitive reproductive health care they need with the help of their doctors,” she said.

Lawyers representing abortion providers will request the 5th Circuit keep the temporary restraining order in place until the district court can hold a phone hearing on the plaintiffs’ request for a preliminary injunction, scheduled for April 13.