States' COVID-19 Abortion Bans Hit Roadblocks In Court

By Kevin Stawicki
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Law360 (April 6, 2020, 8:21 PM EDT) -- Two states attempting to apply coronavirus-related restrictions on nonessential surgeries to abortion procedures were dealt blows in court Monday, with the Sixth Circuit refusing to upend a block on Ohio's ban and a federal judge blocking Oklahoma's abortion ban.

A split Sixth Circuit panel was unconvinced by Ohio's argument that letting abortions proceed during the COVID-19 pandemic would displace equipment for providers and risk public health, saying a lower court's March 30 decision to grant a temporary restraining order addressed the need for health care resources by permitting delays in abortion procedures.

"We are not persuaded that the TRO threatens to inflict irretrievable harms or consequences before it expires, and it requires no affirmative action by the state," the panel wrote, saying the failure to show inevitable consequences of the block deprives the court of jurisdiction over the appeal.

U.S. Circuit Judge John K. Bush agreed with letting the block stand but said the state showed how letting abortions proceed could conceivably harm its pandemic response.

"I understand the state's concerns about the need for imposing restrictions on non-essential surgeries to conserve the use of [personal protective equipment]," he wrote. "Abortion providers are not entitled to special exemptions unavailable to other doctors in determining which procedures are essential."

Ohio Department of Health Director Amy Acton issued an order March 17 banning nonessential surgeries and procedures that used personal protective equipment in light of the coronavirus pandemic. A few days later, Ohio Attorney General Dave Yost sent letters to abortion providers directing them "to immediately stop performing non-essential and elective surgical abortions," according to the March 30 decision.

The abortion providers asked for the temporary restraining order in an underlying suit challenging the state's prohibition on abortions after the detection of a fetal heartbeat.

Monday's ruling, while not on the merits, is at odds with the Fifth Circuit's March 31 ruling that shut down a Texas federal judge's ruling that temporarily halted enforcement of the state's ban on abortions during the pandemic, allowing the abortion embargo to proceed as the state's appeal is pending.

Also on Monday, an Oklahoma federal judge partially granted a temporary restraining order to the Center for Reproductive Rights, Planned Parenthood Federation of America and a group of physicians in their attempt to fight back similar attempts to block abortion access during the pandemic.

U.S. District Judge Charles B. Goodwin said the abortion providers were likely to prevail on their claim that the state's ban on abortion during the pandemic puts an undue burden on abortion access in violation of the U.S. Constitution.

"While the current public health emergency allows the state of Oklahoma to impose some of the cited measures delaying abortion procedures, it has acted in an 'unreasonable,' 'arbitrary,' and 'oppressive" way — and imposed an 'undue burden' on abortion access — in imposing requirements that effectively deny a right of access to abortion," the judge wrote.

Oklahoma Gov. Kevin Stitt on March 24 ordered all elective surgeries and minor medical procedures postponed during the COVID-19 pandemic. Stitt said the order was "necessary to provide for the rendering of mutual assistance among the state and political subdivisions of the state and to cooperate with the federal government with respect to carrying out emergency functions."

Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, said in a statement that the ruling is a "relief for patients."

"Gov. Stitt is wasting valuable time and resources using the COVID-19 pandemic to score political points," Johnson said. "To politicians and anti-abortion groups playing political games amid a pandemic, let this be a lesson to you that we won't allow you to put our patients and the community at risk."

Counsel and representatives for Oklahoma and Ohio did not respond to requests for comment.

The providers in the Ohio case are represented by B. Jessie Hill of the American Civil Liberties Union of Ohio Foundation; Elizabeth Watson, Rachel Reeves and Brigitte Amiri of the American Civil Liberties Union Foundation; Carrie Y. Flaxman, Richard Muniz and Hana Bajramovic of Planned Parenthood Federation of America; and Jennifer L. Branch and Alphonse A. Gerhardstein of Gerhardstein & Branch Co. LPA.

The Ohio state defendants are represented in-house by Bridget C. Coontz and Heather L. Buchanan.

The providers in the Oklahoma case are represented by J. Blake Patton of Walding & Patton PLLC; Travis J. Tu, Kirby Tyrrell, Ezra Cukor and Jiaman Wang of the Center for Reproductive Rights; Linda C. Goldstein, Kathryn Barrett, Samantha Rosa and Alyssa Clark of Dechert LLP; and Diana Salgado of Planned Parenthood Federation of America. 

The Oklahoma state defendants are represented in-house by Mithun Mansinghani, Zach West and Bryan G. Cleveland. 

The cases are Preterm-Cleveland et al. v. Ohio Attorney General et al., case number 1:19-cv-00360, in the U.S. Court of Appeals for the Sixth Circuit and South Wind Women's Center LLC et al. v. Stitt et al., in the U.S. District Court for the Western District of Oklahoma.

--Additional reporting by Danielle Nichole Smith and Hailey Konnath. Editing by Abbie Sarfo.

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