UPDATE: In an unsigned order on Monday night, the U.S. Court of Appeals for the 5th Circuit allowed medication abortions to go forward — the same relief that Planned Parenthood had sought in the Supreme Court — while litigation over the near-total ban on abortions in Texas continues. The ruling by the three-judge panel expressed “serious concerns” about whether the district court had sufficiently considered, for example, the “emergency public health measures” that prompted the executive order by Texas Governor Greg Abbott. On the other hand, the panel had “doubts” based on the record now before it whether a medication abortion qualifies as a “procedure” for purposes of the governor’s order. The Supreme Court had not yet asked the state to respond to Planned Parenthood’s filing; the 5th Circuit’s order likely eliminates the need for the justices to act on Planned Parenthood’s request.
UPDATE: On Tuesday afternoon, the challengers withdrew their request for the Supreme Court to intervene in the dispute.
Telling the justices that “Texas has exploited the COVID-19 crisis as a pretext to target abortion,” Planned Parenthood and abortion providers in Texas filed an emergency appeal with the Supreme Court today. Planned Parenthood asked the justices to vacate a ruling by a federal appeals court and to allow “medication abortions” – that is, abortions induced by taking two medications by mouth – to go forward while it challenges a near-total ban on abortions in Texas.
The dispute has its roots in a March 22 executive order by Texas Governor Greg Abbott that prohibits elective surgeries and medical procedures until April 21 in an effort to free up hospital space and conserve personal protective equipment (PPE) for the care of COVID-19 patients. After Ken Paxton, the state’s attorney general, announced that the emergency order applies to abortions, except when the woman’s health is at risk, Planned Parenthood went to court to challenge the order.
On Thursday, a federal district judge in Texas issued a temporary restraining order that would have allowed medication abortions, as well as abortions for women who will be too far along in their pregnancies to have an abortion when the order expires in late April. Yesterday the U.S. Court of Appeals for the 5th Circuit partially blocked that order: It put on hold the part of the order that would have allowed medication abortions to resume.
Today Planned Parenthood came to the Supreme Court, asking the justices to allow medication abortions to go forward. Noting that the 5th Circuit’s order “singles out medication abortion as the only oral medication that cannot be provided under” Governor Abbott’s order, Planned Parenthood emphasized that, unless the justices intervene, the 5th Circuit’s stay “makes Texas the only state in the country permitted to enforce an interpretation of a COVID-19 executive order that categorically bars medication abortion.”
Allowing the ban on medication abortion to remain in place, Planned Parenthood argued, is “severely and irreparably injuring” its patients, who are “unable to access early abortion care through medication abortion and must instead wait until they reach a more advanced stage of pregnancy.” By contrast, the group contended, there is “no evidence that prohibiting medication abortion will conserve hospital capacity or PPE to fight COVID-19”: Medication abortions do not require the use of any PPE and rarely result in complications, while a woman who stays pregnant will need more health care. And if a woman opts to go to another state to obtain an abortion sooner, she “increases contagion risks in the midst of a pandemic.”
Planned Parenthood’s request went to Justice Samuel Alito, who handles emergency appeals from the 5th Circuit. Although Alito has the option to rule on the application on his own, he is more likely to refer it to the full court, after first seeking a response from the state.
This post is also published on SCOTUSblog.