In a 2-1 decision today by the Fifth Circuit Court of Appeals, Judges Jennifer Walker Elrod and Stuart Kyle Duncan upheld Governor Abbott’s executive order requiring the postponement of non-essential medical surgeries, including abortion.
The ruling will allow the state to continue enforcing the measure, with punishments for non-compliance of a fine up to $1,000, jail time of up to 180 days, or a combination of both.
Abbott’s executive order, issued earlier in March, was directed to increase the number of hospital beds and personal protective equipment (PPE) available in preparation of the growing coronavirus pandemic.
The abortion providers who brought the complaint challenging the order claimed that the application to abortions was a violation of the due process and equal protection clauses of the Fourteenth Amendment.
Attorney General Ken Paxton and other supporters of the order claimed that the adherence of abortion providers was essential to provide the maximum amount of PPE for hospitals addressing the pandemic.
“Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities,” wrote Duncan in the court’s opinion.
“These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis. So, too, [the governor’s executive order].”
A summary of the case can be found below and the full text of the court’s opinion and the dissent of Judge James Dennis follows.
- 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.
- March 23: Attorney General Ken 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 temporary restraining order 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 restraining order, 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.
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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.