High Court Axes COVID-19 Texas, Tenn. Abortion Decisions

By Adam Lidgett
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Law360 (January 25, 2021, 6:39 PM EST) -- The U.S. Supreme Court on Monday threw out decisions that permitted a Texas bar on abortions throughout the COVID-19 pandemic, the same day the justices tossed an order that stopped Tennessee's now-expired ban on surgical abortions during the pandemic's early days.

In one ruling, the high court vacated Fifth Circuit judgments that dissolved temporary restraining orders against Texas Gov. Greg Abbott's executive order that postponed "all surgeries and procedures that are not immediately medically necessary," telling the Fifth Circuit to toss the case as moot.

In its petition, Planned Parenthood and other health providers in Texas said that it didn't have the chance to properly challenge those Fifth Circuit decisions because just one day after the second Fifth Circuit decision came down, the challenged executive order was replaced by one saying that abortions could continue in Texas, according to the Texas health providers.

Those providers said the case was then moot, so the justices should toss the Fifth Circuit decisions.

The Planned Parenthood Federation of America, along with the Center for Reproductive Rights and the Lawyering Project, who collectively represented the Texas abortion providers, said in a statement that "it was important [to take] this procedural step to make sure bad case law was wiped from the books."

The joint statement added that the Texas executive order didn't actually do anything to stop the virus from spreading.

"The executive order put Texans in need of essential, time-sensitive abortion care at greater risk: pushing patients to remain pregnant for political reasons, and forcing those able to do so to travel out of state during a pandemic just to access health care," the joint statement said.

Representatives for Texas did not immediately respond to requests for comment on Monday.

In the Tennessee case, the Supreme Court vacated a Sixth Circuit decision that stopped the state from enforcing its own executive order — which required that non-essential or elective surgeries be put on hold while the COVID-19 pandemic was still raging — against health providers that perform abortions.  

Health care providers in Tennessee challenged the order's effect on abortion services, eventually winning at the Sixth Circuit, according to court documents.

But the challenged executive order officially expired at the tail end of April 2020, so the state of Tennessee argued that the case was then moot. The Supreme Court agreed that the Sixth Circuit decision should be tossed for that reason.

Groups representing the Tennessee providers, which included Planned Parenthood Federation of America and others, said in a statement that "despite the Supreme Court's ruling today, what's important is that abortion providers were able to resume abortion services in Tennessee, and that they continue providing those services today."

"Abortion procedures are essential and time-sensitive," that statement continued. "With the pandemic creating so many barriers to accessing health care, we should be making it easier to access health care services like abortion, not harder."

The Tennessee Attorney General's office said in a statement that it was "pleased that the Supreme Court has vacated the Sixth Circuit's judgment, which prevented Tennessee from requiring abortion providers to temporarily delay elective and non-urgent surgical abortions during the initial days of the COVID-19 pandemic."

"Vacatur will ensure that the Sixth Circuit's erroneous judgment has no effect going forward," the AG's office said.

Planned Parenthood is represented in the Texas case by Jennifer Sandman, Julie A. Murray and Hannah Swanson of Planned Parenthood Federation of America, Molly Duane and Rabia Muqaddam of the Center for Reproductive Rights, Patrick J. O'Connell of the Law Offices of Patrick J. O'Connell PLLC, and Stephanie Toti and Rupali Sharma of the Lawyering Project.

Texas is represented by its Attorney General Ken Paxton, First Assistant Attorney General Brent Webster, Solicitor General Kyle D. Hawkins and Assistant Solicitors General Beth Klusmann and Natalie D. Thompson.

The health care providers in the Tennessee case are represented by Paul R.Q. Wolfson, Alan E. Schoenfeld, Stephanie Simon and Julia C. Pilcer of Wilmer Cutler Pickering Hale & Dorr LLP; Maithreyi Ratakonda of the Planned Parenthood Federation of America; Autumn Katz, Michelle Moriarty and Alexandra Thompson of the Center for Reproductive Rights; and Jennifer Dalven of the American Civil Liberties Union Foundation.

Tennessee is represented by its Attorney General Herbert H. Slatery III, Solicitor General Andrée S. Blumstein, Associate Solicitor General Sarah K. Campbell and Assistant Solicitor General Clark L. Hildabrand.

The cases are Planned Parenthood Center for Choice et al., v. Greg Abbott, Governor of Texas, et al., case number 20-305, and Herbert H. Slatery III, Attorney General of Tennessee, et al. v. Adams & Boyle PC et al., case number 20-482, in the U.S. Supreme Court.

--Additional reporting by Kevin Stawicki. Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Planned Parenthood Center for Choice, et al., Petitioners v. Greg Abbott, Governor of Texas, et al.


Case Number

20-305

Court

Supreme Court

Nature of Suit

Date Filed

September 09, 2020


Case Title

Herbert H. Slatery III, Attorney General of Tennessee, et al., Petitioners v. Adams & Boyle, P.C., et al.


Case Number

20-482

Court

Supreme Court

Nature of Suit

Date Filed

October 14, 2020

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