By Hailey Konnath

Law360 (March 31, 2020, 9:11 PM EDT) -- A split Fifth Circuit on Tuesday promptly shut down a Texas federal judge's ruling on Monday that temporarily halted enforcement of the state's ban on abortions during the coronavirus pandemic, allowing the abortion embargo to proceed as the appellate court considers state officials' appeal of the district court's order.

The Fifth Circuit majority granted Texas officials' request for a temporary stay of U.S. District Judge Lee Yeakel's order less than 24 hours after the district judge issued his temporary restraining order late Monday. In his ruling, Judge Yeakel had sided with Planned Parenthood in the dispute, holding that the abortion restriction violates the 14th Amendment rights of patients by unconstitutionally implementing a previability ban. The judge added that granting Planned Parenthood's request would "essentially continue the status quo" and be in the public's best interest.

The abortion ban came on the heels of Texas Gov. Greg Abbott's executive order last week postponing "all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition" or save a patient's life, an effort to free personal protective equipment for doctors and hospitals during the coronavirus pandemic.

But Planned Parenthood and other abortion groups argue that the continuation of abortion services would not diminish supplies for doctors and hospitals treating COVID-19 patients because their personnel don't use the N95 respirators and other equipment in high demand during the pandemic.

In a brief order Tuesday, U.S. Circuit Judges Jennifer Walker Elrod and Stuart Kyle Duncan said Judge Yeakel's order would be temporarily stayed to allow the appellate court sufficient time to consider state officials' emergency motion for a stay as well as a petition for writ of mandamus officials filed Monday.

Circuit Judge James L. Dennis dissented, saying he would deny the stay because a federal judge "has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time."

Additionally, the judge said that procedures that would not deplete hospital capacity or personal protective equipment needed to cope with COVID-19 are exempt from the procedure ban under the governor's executive order.

Alexis McGill Johnson, Planned Parent's acting president and CEO, said in a statement Tuesday that "abortion is essential health care, and it is urgent and time-sensitive."

"While people everywhere are trying to survive the COVID-19 pandemic, politicians like Gov. Abbott continue this perverse obsession with banning abortion," she said. "Those who are caring for their families, forced to work essential jobs, and doing what they can to stay healthy need access to health care right now."

Texas Attorney General Ken Paxton applauded the decision in a statement, saying the temporary stay "justly prioritizes supplies and personal protective equipment for the medical professionals in need." 

"The governor's order temporarily halting unnecessary medical procedures, including abortion, applies to all health care facilities and professionals equally as Texans come together to combat this medical crisis," he said.

The panel's order was one of a slew of filings in the case in the previous 24 hours. In a memo filed Tuesday, Planned Parenthood said it planned to oppose Texas' emergency motion by the end of the day. The organization said it also planned to file an opposition to the petition for writ of mandamus, but it would need more time.

Meanwhile, a group of states including Alabama, Arkansas, Idaho and Utah filed an amici curiae brief supporting Texas.

"It was well within Texas' power to articulate a simple, workable rule requiring physicians to defer procedures that are not immediately medically necessary," the states said, adding that the district court "failed to grasp that states are fighting to keep people alive."

Paxton ordered the ban last week, after Abbott signed his executive order. The ban is scheduled to last through April 21. Paxton, Abbott and other officials argue that allowing abortions to continue would contribute to the spread of the coronavirus and place a heavier burden on the health care system. And the delay won't harm women seeking abortions, they've said.

But Planned Parenthood of Greater Texas along with three abortion clinics sued Abbott, Paxton, state health officials and nine district attorneys last Wednesday, claiming that Paxton was taking advantage of the global pandemic to enforce his "extreme, antiabortion agenda."

In Texas officials' petition filed late Monday, they slammed the now-stayed restraining order as endangering lives and hindering the state's efforts to combat COVID-19. The district court was exceeding its jurisdiction and ignoring the Fifth Circuit's "settled law" on the availability of temporary restraining orders, the officials said.

Planned Parenthood and a number of other abortion-rights organization, including the American Civil Liberties Union, the Center for Reproductive Rights, the Abortion Care Network and the American College of Obstetricians and Gynecologists, have filed similar lawsuits in Iowa and Oklahoma.

Coronavirus-spurred abortion bans have been temporarily blocked in Ohio and Alabama. Federal judges in both states ruled that the bans created undue burdens on abortion access in violation of the U.S. Constitution.

In Alabama, U.S. District Judge Myron H. Thompson said the benefits of some potential increase in the availability of equipment does not outweigh "the serious, and, in some cases, permanent harms imposed by the denial of an individual's right to privacy," according to the judge's order.

Amy Hagstrom Miller, president and CEO of Whole Woman's Health and Whole Woman's Health Alliance, a plaintiff in the Texas case, said in a statement Tuesday that the suspension of the temporary restraining order "has a devastating impact on our patients who need abortion care services amid this global pandemic."

"To the politicians who are actively using this pandemic to push their anti-abortion agenda, shame on you," she said. "Rest assured this doesn't mean you won. We refuse for this to become the new normal. We will persist."

U.S. Circuit Judges James L. Dennis, Jennifer Walker Elrod and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.

Planned Parenthood is represented by Patrick J. O'Connell of the Law Offices of Patrick J. O'Connell PLLC; and Julie Murray, Alice Clapman, Richard Muniz, Hannah Swanson and Jennifer Sandman of Planned Parenthood Federation of America.

The other clinics are represented by Stephanie Toti, Rupali Sharma and Sneha Shah of The Lawyering Project and Molly Duane, Rabia Muqaddam and Francesca Cocuzza of the Center for Reproductive Rights.

The case is Planned Parenthood for Choice et al. v. Abbott et al., case number 20-50264, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Katie Pohlman, Danielle Nichole Smith and Jeff Overley. Editing by Peter Rozovsky.

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