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U.S. court restores emergency health law authorizing discipline of physicians performing abortions

The U.S. Court of Appeals for the Fifth Circuit, in a pair of decisions on April 7 and 20, overturned a restraining order issued by a federal district judge prohibiting application of an emergency health order issued by the state's governor to prohibit abortions in the state.

US Court of Appeals, Fifth Court

US Court of Appeals, Fifth Court

The court held that the district judge had erred in finding the potential application of the order to abortion procedures was pretextual (In re Abbott). The plaintiffs in the suit had brought their case against the Texas Medical Board—which had issued an emergency order and guidance implementing the governor’s edict—as well as the state’s Health Commission.

In response to the COVID-19 pandemic, on March 22 Texas governor Greg Abbott issued executive order GA-09 requiring that all licensed medical providers forgo non-urgent medical procedures. Providers were ordered to “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.”

The order further set out criminal penalties of up to $1,000 and 180 days in jail for violations, and the corresponding order issued by the Texas Medical Board threatened licensure discipline.

In late March, several abortion providers filed suit against the governor, the state attorney general, the state Health and Human Services Commission, and the Texas Medical Board to challenge the order, and a federal district court issued a temporary restraining order, holding that the health edict had the improper effect of banning all pre-viability abortions.

The state appealed, and the case went up to a panel of the U.S. Court of Appeals for the Fifth Circuit, which issued two lengthy decisions in succession, one evaluating the restraining order, and the other a request for a preliminary injunction against the order.

In the first decision, the circuit panel held that “the district court clearly abused its discretion and usurped the state’s emergency powers.” The panel dismissed any notion that the order was issued to pretextually ban abortions, noting that it banned many types of medical procedures, and ordered the district court to vacate its restraining order.

Following the decision in the first case, the district judge issued a new, more limited temporary restraining order on specific categories of abortion, prohibiting enforcement of the governor’s order as “a categorical ban on all abortions,” medication abortions, and abortions for any patient who would be more than 18 or 22 weeks pregnant at the expiration of the governor’s order. The state again sought a writ of mandamus from the Court of Appeals, and the appellate court again held in its favor.

This time, the circuit panel held that the restraining order was not sufficiently narrow to accomplish its stated ends. The district court’s prohibition of the order as a categorical ban on abortions was unnecessary, as GA-09 could not be considered a categorical ban, the panel majority explained, further taking issue with the lower court’s application of the restraining order past the stated expiration date of the original health order.

The circuit panel also ruled that the district judge improperly decided that a delay that would require a patient to switch from a medication-induced abortion to a surgical abortion was enough to invalidate the order. “The constitutional right to an abortion does not include the right to the abortion method of the women’s (or the physician’s) choice,” wrote the majority, and thus a 30-day delay in obtaining an abortion does not violate the right of access.

The only case in which the district court was correct, the majority held, was in applying its restraining order to women who would pass the 22nd week of pregnancy—the legal limit for an abortion in Texas—during the ban.

One panel judge, James Dennis, dissented in both cases, explaining that he thought the district court had provided sufficient evidence of a pretextual intent on behalf of the state to ban abortion to support a restraining order, and that the order, as applied by the state, could reasonably be held to be an improper categorical prohibition of all abortions