Since Gov. Greg Abbott issued an executive order (EO) requiring the postponement of all surgeries procedures that are not “immediately necessary,” abortion providers and Attorney General Ken Paxton have been involved in a fast-paced legal battle over whether abortions are “essential” or unnecessarily use personal protective equipment (PPE) in the midst of a global pandemic.
In the most recent development, the U.S. Fifth Circuit Court of Appeals is allowing some abortion providers to facilitate medication abortions under the EO.
Last week, the Fifth Circuit issued a stay on a lower federal court’s temporary restraining order (TRO), which allowed the temporary ban on abortions in the state to continue.
Following the stay from the Fifth Circuit, several abortion providers requested a second TRO from the lower court, asking for more precise exemptions under the EO — specifically in three instances:
- Medication abortions, also known as medical abortions;
- Procedural abortions where mothers would be “past the gestational age limit for an abortion in Texas” (22 weeks) by the expiration of the EO;
- And procedural abortions where mothers would be past 18 weeks by the expiration of the EO and “would be likely be [sic] unable to obtain care at an [ambulatory surgical center] at or after that time.”
Immediately after the lower court granted the second TRO, Paxton once again brought the case to the Fifth Circuit.
The appellate court immediately — on April 10 — issued a stay on all of the TRO except the second provision for pregnancies that would be at 22 weeks by the expiration of the EO.
The abortion providers subsequently filed a petition for emergency relief with the Supreme Court of the United States, asking for the stay to be vacated.
Since the Fifth Circuit has now dissolved its stay as it relates to medication abortions — which the petition to SCOTUS had emphasized — the Supreme Court might be slower to take up and respond to the case.
Given that similar court battles are taking place between abortion providers and other state governments, there is a strong likelihood that the Supreme Court will respond to either the Texas case or a parallel one.
Below is a summary of how the case has progressed:
- March 22: Governor Abbott issues an executive order 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.
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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.