Abortion providers ask Supreme Court to ease pandemic-related ban

By Alice Miranda Ollstein
·4 min read

Abortion rights advocates asked the Supreme Court on Saturday night to overturn part of the Texas governor’s sweeping ban on abortions during the coronavirus pandemic — the first of similar restrictions to reach the high court.

Texas and several Republican-led states that have long led the legal battle to restrict abortion have sought to cut off access as the health crisis escalated in recent weeks, contending the procedure would drain medical resources. The new petition to the Supreme Court sets up a key test of how the more conservative roster of judges will address the right to an abortion established in Roe v. Wade.

The justices are essentially being asked whether states can override longstanding federal protections around abortion in the name of public health during a pandemic.

Texas Gov. Greg Abbott and other conservative governors have argued that abortion is a nonessential medical procedure that must be suspended to conserve scarce medical equipment for doctors treating coronavirus patients. Planned Parenthood and other Texas clinics counter that the most common method of abortion early in pregnancy — handing the patient a pill — requires no medical gear at all, but that forcing a weeks or months-long delay would force that patient to undergo a surgical abortion or continue the pregnancy, both of which would use far more medical resources.

“Even in a national emergency, courts need to look at whether state actions are actually furthering safety and public health enough to justify infringing on constitutional rights,” said Molly Duane, a staff attorney with the Center for Reproductive Rights, another group representing Texas clinics in the case. “People don’t stop needing abortions just because there’s a pandemic and constitutional rights don’t cease to exist just because there’s a pandemic.”

Similar state bans on abortion have been blocked by courts in Alabama, Ohio and Oklahoma. They have been enacted but not yet challenged in Alaska, Indiana and Kentucky.

The Texas ban has been scrapped and reinstated by lower courts in recent weeks. A federal judge has twice ruled that the state’s ban violates Roe vs. Wade and puts women in more danger by pushing them to travel out of state for the procedure. Both of those rulings were tossed by a divided panel of the 5th Circuit Court of Appeals. Texas abortion clinics said they have canceled, rescheduled and then recanceled hundreds of appointments in the past few weeks amid the legal battle over the state’s order.

In a 374-page petition filed Saturday night, the clinics ask the high court to reinstate U.S. District Judge Lee Yeakel's second ruling, which would have narrowed the Texas ban to allow medication abortions as well as surgical abortions for people who would be unable to obtain one under state law if the procedure was further delayed. Attorneys representing Planned Parenthood’s Texas affiliate and other clinics say that patients will suffer “irreparable harm” if the state’s ban isn’t eased.

The Supreme Court has rarely dealt with abortion rights since the addition of President Donald Trump’s two appointees, Neil Gorsuch and Brett Kavanaugh. The current lineup of justices heard their first abortion case last month, a challenge to a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals.

The Supreme Court might be under additional pressure to take the new Texas case, given a potential split on the question at the appellate court level. While the 5th Circuit upheld Texas’ ban, a three-judge panel at the 6th Circuit Court of Appeals recently denied Ohio’s bid to reinstate its abortion ban, meaning abortions can continue in the state on a case-by-case basis for now.

Mary Zeigler, a professor at Florida State University’s College of Law who specializes in reproductive law, said that while the Roberts court has so far been hesitant to upend precedent on abortion, the pandemic could provide the opening conservatives have been seeking.

“Effectively outlawing all abortions is clearly an undue burden,” she said. “But states say the rules of the game are different during a public health crisis like this, and the Court has been solicitous of the government in past national emergencies.”

Denise Harle, senior council at the Alliance Defending Freedom, a conservative group involved in legal challenges to abortion access around the country, argued the court would uphold coronavirus-related bans because they were enacted on a temporary basis. The end dates for some bans are just a few weeks away, thought they could be extended as the pandemic rages on.

“No one is saying that these orders can go on forever,” Harle said. "But so many of our constitutional rights – our right to travel, to assemble and gather and do all sorts of things – are limited right now, temporarily."