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State Limits on Abortion During Virus Challenged in Court (2)

March 31, 2020, 6:51 PM

The coronavirus is adding new ammunition to America’s abortion wars.

Several states have put in place limits on abortions, saying they were non-essential services during the virus. That has prompted legal challenges and a flurry of judicial rulings -- yesterday, judges in Texas, Ohio and Alabama blocked the state actions.

One state has already seen that decision put on hold -- a panel of judges at the New Orleans federal court of appeals on Tuesday temporarily halted the Texas judge’s order on a 2-1 vote. This will allow Texas to continue to ban most abortions until the appellate judges can more fully consider the issue on an accelerated schedule.

“This is a political power play,” said Michele Goodwin, a law professor at the University of California at Irvine and author of “Policing the Womb.”

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It’s not just red states that are seizing on the virus to advance their positions. A group of 21 blue states urged the Trump administration to ease restrictions on a medication-abortion prescription drug, noting that many women are currently unable to seek in-person care. Another Democrat-led coalition is pushing for the federal government to lift a ban on fetal tissue research, saying the search for a virus cure should be a “top priority.”

Efforts to limit access to abortion in states across the South and Midwest have accelerated in recent years. In 2019, 46 years after the U.S. Supreme Court ruled that the Constitution protects the right to an abortion, state legislatures enacted at least 58 new restrictions, including five that effectively ban abortions six weeks after conception, which is early enough that some women don’t yet know they’re pregnant.

In response to the coronavirus, Texas Governor Greg Abbott issued a directive barring procedures that are “not medically necessary” to preserve health and conserve scarce resources. State Attorney General Ken Paxton threatened violators with fines of as much as $1,000 or 180 days in jail, saying that abortion providers who continue to perform procedures are “demonstrating a clear disregard for Texans suffering from this medical crisis.”

The restrictions drew a quick challenge from Planned Parenthood Center for Choice and local clinics, which argued that abortion is a time-sensitive and essential procedure. In defense of Texas’s position, 16 other states contended that even fundamental rights have to yield in emergencies.

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“In the middle of responding to this threat as it unfolds, states should not be required to provide blanket exclusions to public health orders when such exclusions undoubtedly threaten the public as a whole,” the red states said in a court filing.

U.S. District Judge Lee Yeakel ruled Monday that while the Texas governor’s order didn’t exceed his authority, the attorney general went too far with his interpretation. “There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”

The state attorney general called the lawsuit “politically driven.” The appeals court on Tuesday said it was seeking briefings by Wednesday evening, indicating a decision may come soon.

Goodwin, the law professor, said the argument that abortions aren’t essential fails because “all constitutional rights are essential.” She also said some states that are using the coronavirus as a reason to restrict abortion are the same ones that put very strict limits on when during a pregnancy a woman could legally end it.

Amy Hagstrom Miller, owner of Whole Woman’s Health in Austin, was the plaintiff who won a Supreme Court case in 2016 invalidating a Texas law requiring abortion providers to have hospital admitting privileges. She’s now fighting the governor’s coronavirus policy. She said last week her clinics had to cancel more than 150 appointments for abortions.

“It is shameful that our politicians would use a public health crisis to push an anti-abortion agenda,” she said. “The impact will disproportionately harm our communities of color, young people, low-income and rural communities.”

(Updates with appeals court decision in third paragraph.)

--With assistance from Laurel Calkins and Mary Anne Pazanowski.

To contact the reporters on this story:
Patricia Hurtado in Federal Court in Manhattan at pathurtado@bloomberg.net;
Cynthia Koons in New York at ckoons@bloomberg.net;
Edvard Pettersson in Los Angeles at epettersson@bloomberg.net

To contact the editors responsible for this story:
David Glovin at dglovin@bloomberg.net

Tina Davis, Steve Stroth

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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