5th Circ. Bans Medication Abortion In Texas, Citing Pandemic

By Dorothy Atkins
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Law360 (April 20, 2020, 9:49 PM EDT) -- The Fifth Circuit ruled Monday that a lower court judge exceeded his authority by blocking Texas' governor from postponing medication abortions during the coronavirus pandemic, while a dissenting judge argued the panel's recent back-to-back rulings in the case have created "confusion that is likely more disruptive than the alleged harm."

In a majority opinion granting the state's writ of mandamus petition, U.S. Circuit Judges Jennifer Walker Elrod and Kyle Duncan said the trial judge "second-guessed" the mitigation strategy of Gov. Greg Abbott's March 22 executive order, which mandates the postponement of nonlife-threatening medical procedures in the state to purportedly preserve medical equipment to fight the pandemic.

The majority said the trial court acted without knowing key facts, like whether abortion providers do or should wear masks or other protective equipment when meeting with patients.

"Those errors led the district court to enter an overbroad [temporary restraining order] that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state's authority to craft emergency public health measures during the escalating COVID-19 pandemic," it said.

However, U.S. Circuit Judge James L. Dennis wrote in a scathing dissent that the legal status of abortions has changed six times since the coronavirus outbreak in part due to the Fifth Circuit's recent rulings in the case, causing confusion among individuals seeking abortion. He said this case is an excellent example of the dangers of using the "extraordinary remedy of mandamus to overmanage matters that are properly left to a district court's discretion."

"This court has expended substantial time and judicial resources in an effort to prevent interference with the state's pandemic response at a most urgent time, only to instead contribute to a confusion that is likely more disruptive than the alleged harm it sought to prevent," Judge Dennis wrote.

The ruling is the latest development in a lawsuit that a group of Texas abortion providers filed against the state on March 25, seeking to block Abbott's order from applying to essential, time-sensitive abortion services during the COVID-19 pandemic.

The order postpones all non-life-threatening medical procedures, enforceable by criminal and administrative penalties, unless those procedures do not deplete the hospital capacity or the personal protective equipment needed to respond to the COVID-19 outbreak, according to court documents.

On March 30, U.S. District Judge Lee Yeakel issued a temporary restraining order, blocking the enforcement of the governor's mandate as it relates to abortions, but days later, the Fifth Circuit stayed the ruling and then concluded that the lower court improperly granted emergency relief.

On remand, Judge Yeakel again issued a temporary restraining order that allowed abortion providers to resume medication abortions and certain other abortion procedures, including procedures for patients who would be unable to access abortion due to their gestational age after the governor's order expired on April 22. The judge also said the governor's order can't "categorically ban" abortions.

The state filed another petition for mandamus challenging the ruling, and the Fifth Circuit agreed to stay the restraining order in part.

In its decision Monday, the majority mostly sided with the state, finding that Judge Yeakel exceeded his authority in allowing providers to resume medication abortions and restraining the state from issuing a "categorical ban" on abortions. However, the court allowed certain procedures for patients who couldn't access abortion after the governor's order expired.

Planned Parenthood said in a statement Monday that the ruling is the fourth time in three weeks that the Fifth Circuit panel has ruled 2-1 to let Abbott exploit the COVID-19 pandemic to severely restrict abortion access.

"Once more, people in Texas face a nightmare within a nightmare," Planned Parenthood CEO Alexis McGill Johnson said. "People are being forced to risk their health by traveling hundreds of miles out of state to get care. Many cannot afford to travel and are forgoing the care they need altogether. A global pandemic is no time to restrict time-sensitive health care. Gov. Abbott's extreme ideology is risking the health of women in Texas."

Texas Attorney General Ken Paxton hailed the ruling in a statement Monday.

"Without exception, Texans must continue to work together to stop the spread of COVID-19," the statement said. "Governor Abbott's order ensures that hospital beds, supplies and personal protective equipment remain available for the medical professionals on the frontlines of this battle."

A representative for the governor didn't immediately respond Monday to a request for comment.

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

The state is represented by Kyle D. Hawkins, Heather Gebelin Hacker, Beth Klusmann and Natalie D. Thompson of the Texas Attorney General's Office.

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

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

The case is In re: Greg Abbott et al., case number 20-50296, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Michelle Casady. Editing by Bruce Goldman.

Correction: An earlier version of this story misidentified the district judge's gender. The error has been corrected.

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

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