The United States Law Week

Abortion Providers Sue Texas Over Covid-19 Order (2)

March 26, 2020, 1:26 AMUpdated: March 26, 2020, 7:07 PM

Planned Parenthood and other health-care clinics sued Texas over an executive order that classifies abortion as “nonessential” and thus banned under the state’s emergency response to the coronavirus pandemic.

The lawsuit, filed in federal court Wednesday, alleges that the order will force women to carry pregnancies to term and violate their right to equal protection guaranteed by the Fourteenth Amendment.

Texas Gov. Greg Abbott (R) issued the order Sunday barring all nonessential procedures in an effort to combat a surge in Covid-19 cases. The ban is also an attempt to preserve protective equipment for health-care workers, the state administration said.

State Attorney General Ken Paxton (R) subsequently clarified that the order includes abortions, warning the procedure shouldn’t be performed unless the mother’s life is in danger.

The abortion providers said the procedure shouldn’t be considered surgery “as it involves no incisions and no need for general anesthesia.” The complaint also said the procedure “does not require extensive use” of personal protective equipment.

Health-care providers can be fined $1,000 or face jail time of up to 180 days if they violate the directive, which is set to expire April 21.

Texas had 1,022 coronavirus cases and 12 deaths as of late Monday, according to Bloomberg data.

‘Exploiting’ Pandemic?

The lawsuit comes after a week in which abortion rights advocates warned that anti-abortion groups are “exploiting” the pandemic to restrict access to abortion, citing a letter sent to the Health and Human Services Department by Susan B. Anthony List, the Family Research Council, and the Southern Baptist Ethics & Religious Liberty Commission asking Secretary Alex M. Azar II to urge abortion providers to shut down during the crisis.

Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, responded that a public health emergency isn’t “the time to play politics.”

“This is a cynical and dishonest attempt to prevent women from accessing what leading medical groups have made clear is an essential health service,” Nancy Northup, President & CEO of the Center for Reproductive Rights, said.

Disregarding Public Health

Anti-abortion groups accused the providers of disregarding public health needs by filing a lawsuit challenging Abbott’s emergency order over the Covid-19 pandemic.

“Suing to carry out abortions during a time of national emergency, when so many Americans are making heroic sacrifices, is the latest example of their extreme disregard for women’s health and safety and for the common good,” SBA List President Marjorie Dannenfelser said Thursday.

Texas Right to Life told Bloomberg Law it wasn’t “surprised that the abortion industry is running to a federal court to fight against” an order prohibiting elective medical procedures. Its arguments are “shameful” in light of the public health risks posed by shortages of doctors and equipment throughout the health-care industry, Director of Media and Communication Kimberlyn Schwartz said Thursday.

Other State Actions

Ohio Gov. Mike DeWine also has prohibited nonessential surgeries, but Planned Parenthood argued its services are essential. Planned Parenthood clinics remain open in the state.

Mississippi Governor Tate Reeves (R) has suggested he will seek to stop abortions in his state during the Covid-19 pandemic. In response, NARAL Pro-Choice America President Ilyse Hogue said: “Medical experts have made it resoundingly clear that abortion care is time-sensitive and essential healthcare. This is certainly not the time to politicize healthcare and push false information.”

New York Attorney General Letitia James (D) on Thursday reiterated her state’s commitment to ensuring abortion remains an option for women during this time.

“To be clear, the coronavirus is not an excuse for federal, state, or local governments to curtail women’s reproductive freedoms or limit their choices,” she said in a press release. “Any woman who wants to go into a doctor’s office or into a clinic today and get an abortion should continue to be able to do so.”

An executive order from Tennessee Gov. Bill Lee (R) also has banned nonessential medical procedures, which could include abortions.

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.

Causes of Action: Violates of substantive due process and equal protection rights

Relief: Block Texas from enforcing the emergency order, as interpreted by the attorney general

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

The case is Planned Parenthood Ctr. for Choice v. Abbott, W.D. Tex., No. 20-cv-323, filed 3/25/20.

(Updated after second subhead to add statements from anti-abortion groups)

To contact the reporters on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com; Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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