Sixth Circuit Won’t Stop Abortions in Ohio Under Covid-19 Order

Ohio may not prohibit abortions under an executive order designed to protect access to scarce medical equipment during the coronavirus pandemic, the Sixth Circuit said Monday.

The U.S. District Court for the Sixth Circuit said it didn’t have jurisdiction to consider the state’s appeal of a March 30 temporary restraining order that stopped it from banning abortion as part of the Covid-19 emergency executive order.

The TRO didn’t threaten to “inflict irretrievable harm” by allowing abortion providers to use personal protective equipment needed elsewhere because it was narrowly written, the court said.

The order requires providers to decide on a case-by-case basis if an abortion “procedure is medically indicated and cannot be delayed.” It doesn’t allow “blanket, on-demand provision of elective abortions,” the court said.

Most early abortions, moreover, don’t require incisions, anesthesia, or a sterile surgical field, so they won’t use much personal protective equipment, the court said. A ban on medication abortions, in which an abortion is drug-induced, also isn’t justified, the court said.

Chief Judge R. Guy Cole Jr. and Judge Ralph B. Guy Jr. issued the order. Judge John K. Bush agreed with the court’s decision not to stay the TRO, but said in a partial dissent that the court had jurisdiction over the appeal.

ACLU of Ohio, Gerhardstein & Branch Co. LPA, and Planned Parenthood Federation of America represent the providers, The Ohio Attorney General’s Office represents the state.

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 Preterm-Cleveland, Inc. v. Atty. Gen., Ohio, 6th Cir., No. 20-3365, 4/6/20.