Abortion Providers Defend Order Opening Clinics in Texas

A federal district court’s order halting Texas’ attempt to shut down abortion providers as part of its emergency response to the new coronavirus should be allowed to take effect, abortion providers in the state told the Fifth Circuit Wednesday.

There is no doubt the Covid-19 pandemic has created a public emergency, the providers said in a brief to the U.S. Court of Appeals for the Fifth Circuit. But there is no reason to allow Texas to use an executive order banning nonessential medical procedure to achieve its “longtime goal of banning abortion,” the providers said.

The providers are defending Judge Lee Yeakel’s Monday temporary restraining order stopping the state from applying the executive order against them.

“Before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions,” so the state the providers are likely to win their constitutional challenge to the ban, Yeakel said.

In so holding, the district court judge didn’t “commit a clear and indisputable error that is irremediable later in litigation,” the providers said.

The state defendants, including Gov. Greg Abbott (R) and Attorney General Ken Paxton (R), didn’t show they would be irreparably injured if not permitted to enforce the executive order against abortion providers, the brief said. The providers share the state’s goal of conserving medical equipment and personnel, but the ban doesn’t serve those interests, it said.

The law favors preserving Texans’ constitutional rights at this time, the providers also said. They called the state’s request for mandamus relief “far-fetched.”

Mandamus is an extraordinary remedy in which a court orders a lower court to perform a public or statutory duty. The providers’ brief was filed in response to the state’s attempt to stop the district court’s order from taking effect while its petition is pending.

The Fifth Circuit on Tuesday blocked the TRO to give it more time to consider the emergency stay motion and the petition.

Law Offices of Patrick J. O’Connell PLLC, Planned Parenthood Federation of America, Lawyering Project, and 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, response filed 4/1/20.