Under a new ruling from the Fifth Circuit Court of Appeals, medical abortions are once again prohibited under Governor Greg Abbott’s executive order (GA-09) which required the postponement of non-essential surgeries.
For the past week prior to today’s ruling, the Fifth Circuit allowed parts of a temporary restraining order (TRO) from a district court to remain in place — meaning that Abbott’s order could not be enforced against medical or medication abortions.
Now, the only remaining part of the TRO in place is a provision that allows women to have abortions if they will be 22 weeks pregnant on or before Abbott’s order expires — April 21.
“I am pleased that the Fifth Circuit once again ruled in favor of the health and safety needs of our communities and hardworking medical professionals during this unprecedented medical crisis. Without exception, Texans must continue to work together to stop the spread of COVID-19,” said Attorney General Ken Paxton in a press release.
“Governor Abbott’s order ensures that hospital beds, supplies and personal protective equipment remain available for the medical professionals on the frontlines of this battle,” added Paxton.
However, with Abbott’s order expiring soon, he has issued a second order (GA-15) that broadens the number of surgeries that can be performed.
GA-15 goes into effect on Wednesday after the previous order expires and will extend through May 8 at 11:59 PM.
The first major difference between the new order and the old is that surgeries and procedures which require “timely,” as opposed to “immediate,” performance to prevent “serious adverse medical consequences or death” are required.
During a press conference, Abbott said that this would allow for things such as cancer diagnostic tests to be performed, but that it would not include abortions — adding that “question will ultimately be decided in the courts.”
His executive order contains another exemption beyond the first order, though.
It allows procedures if a licensed health care facility “has certified in writing to the Texas Health and Human Services Commission” that it “will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, […and] that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.”
If Paxton issues another clarification stating that Abbott’s new order strictly prohibits most abortions, a repetition of the court battles that have occurred so far could be expected.
Below is a summary of how the case has progressed:
- March 22: Governor Abbott issues an executive order (GA-09) requiring the postponement of “all surgeries and procedures that are not immediately necessary” to preserve a patient’s life. The order was intended to prevent the depletion of hospital capacity or PPE needed during the coronavirus pandemic and extends through April 21.
- March 23: Attorney General Paxton clarified in an interpretation that, “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
- March 25: Abortion providers filed a complaint against the state requesting that Abbott’s order and Paxton’s interpretation, as it relates to abortion providers, be struck down.
- March 30: Judge Lee Yeakel in the U.S. District Court for the Western District of Texas issued a TRO to prevent the state from enforcing the order by fining or jailing abortion providers.
- March 30: Paxton files a petition for a writ of mandamus — essentially an appeal for an ongoing case — with the Fifth Circuit Court of Appeals.
- March 31: Judges Jennifer Walker Elrod and Stuart Kyle Duncan with the Fifth Circuit issued a stay on the TRO, allowing the enforcement of the executive order to continue. Judge James Dennis dissented.
- April 7: Elrod and Duncan issue ruling in the case upholding Abbott’s order and Paxton’s interpretation as it relates to abortion. Dennis dissented.
- April 8: Abortion providers request a second TRO from Yeakel on medication abortions and surgical abortions for mothers who will be 18 or 22 weeks pregnant by the expiration of Abbott’s order.
- April 9: Judge Lee Yeakel granted the newly requested temporary restraining order.
- April 10: Paxton files a petition for a writ of mandamus on the second TRO.
- April 10: The Fifth Circuit issues a stay on the second TRO, with an exception to mothers who will be 22 weeks pregnant by April 21.
- April 11: Abortion providers petition the two stays to the Supreme Court.
- April 13: The Fifth Circuit dissolved its stay on the second TRO as it relates to medication abortions.
- April 14: Abortion providers reportedly withdrew their request from the Supreme Court.
- April 20: The Fifth Circuit struck down the second TRO, including the provision for medical abortions but excluding abortions for women who will be 22 weeks pregnant by April 21. Dennis dissented in part.
- April 22: Abbott’s new executive order relating to the postponement (GA-15) of surgeries will go into effect.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.