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Texas Coronavirus-Related Abortion Shut Down Back On, for Now (1)

March 31, 2020, 7:19 PMUpdated: March 31, 2020, 8:46 PM

Texas abortion providers are subject to an executive order prohibiting health-care givers from providing nonessential medical serves, at least until the Fifth Circuit has more time to consider Gov. Gregg Abbott’s (R) challenge to an order that granted providers temporary relief.

The U.S. Court of Appeals for the Fifth Circuit Tuesday stayed a decision by the U.S. District Court for the Western District of Texas that paused the order pending review of its constitutionality as applied to abortion providers.

Judge James L. Dennis dissented from the Fifth Circuit’s order, saying “irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time.”

Judges Jennifer Walker Elrod and Kyle Duncan also sat on the panel. The order wasn’t signed.

Temporary Relief

Abbott’s executive order didn’t specifically apply to abortion providers, but Attorney General Ken Paxton (R) interpreted it to do so, saying the procedures would waste scarce medical resources needed to fight Covid-19, the disease caused by the coronavirus.

The order as interpreted threatened doctors with steep fines and jail time, even for performing medication abortions that don’t require the use of personal protective equipment, according to a lawsuit filed by the providers.

Judge Lee Yeakel Monday temporarily halted the order as it applied to the providers.

“Before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions,” Yeakel said.

Appeals Court Action

Abbott immediately filed a petition for a writ of mandamus in the Fifth Circuit. Yeakel exceeded his jurisdiction in issuing the temporary restraining order, he said. The TRO endangers lives by compromising the state’s efforts to protect public health during the pandemic, he said.

The governor also filed a motion to stop the TRO from taking effect to allow abortions to take place in the state while the mandamus petition is pending.

The Fifth Circuit granted the stay to give it more time to consider both requests.

The abortion providers who challenged the executive order have until 8:00 p.m. Wednesday to file a response to the motion to for a temporary stay and until 8:00 p.m. Thursday to respond to the petition for mandamus. The governor must file any reply by Friday at 8:00 p.m.

Sixteen states also won the court’s permission to file friend of the court briefs supporting the governor. They are Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The decision “will allow Texas to direct much-needed gloves, masks, and gowns to hospitals saving lives from the coronavirus on the front-lines,” Texas Right to Life Director of Media and Communication Kimberlyn Schwartz told Bloomberg Law. The anti-abortion group views the Fifth Circuit’s decision as “a silver lining in light of the tragic loss of life during the Covid-19 outbreak,” she said.

Nancy Northup, President & CEO of the Center for Reproductive Rights, said her group “will continue fighting this legal battle against Texas’ abuse of emergency powers.”

“The Fifth Circuit is escalating the fear and confusion women seeking abortion in Texas are already experiencing,” she said.

The Texas Attorney General’s Office represents the governor.

Planned Parenthood Federation of America, Law Offices of Patrick J. O’Connell PLLC, Lawyering Project, and the Center for Reproductive Rights represent the providers.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is In re Abbott, 5th Cir., No. 20-50264, 3/31/20.

(Adds more information about lawsuit after first subhead)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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