On Tuesday, the 5th U.S. Circuit Court of Appeals allowed Texas to revive its ban on virtually all abortion in a brief order. Although the 2–1 decision is only temporary, it indicates that the court will soon rule that the Constitution permits states to outlaw abortion during the coronavirus pandemic. When that decision comes down, abortion providers will almost certainly turn to the U.S. Supreme Court, asking the justices to block abortion bans justified by the COVID-19 outbreak. Once again, Chief Justice John Roberts will have to decide whether to sanction the 5th Circuit’s brazen defiance of binding precedent governing abortion. This time, the stakes are as high as can be: Texas is not just trying to limit abortion but to end it completely for the first time since Roe v. Wade, using the pandemic as cover.
This latest round in the Texas abortion battle began on March 22, when Gov. Greg Abbott, a Republican, signed an executive order directing health care facilities to cancel all elective “surgeries and procedures.” His order will stay in effect until April 21 at the earliest. On March 23, Texas Attorney General Ken Paxton issued a press release that interpreted Abbott’s order to bar any type of abortion that is “not medically necessary to preserve the life or health of the mother.” Violators face a $1,000 fine, 180 days in prison, and a revocation of their medical license. Abbott and Paxton, both Republicans, justified the ban in light of the coronavirus outbreak, claiming that abortion providers would otherwise use up scarce medical resources necessary to treat COVID-19 patients. (By contrast, Paxton deemed gun stores “essential” and allowed them to stay open for the duration of the outbreak.)
“Abortion providers who refuse to follow state law are demonstrating a clear disregard for Texans suffering from this medical crisis,” Paxton declared. “For years, abortion has been touted as a ‘choice’ by the same groups now attempting to claim it is an essential procedure.”
A group of abortion clinics sued, alleging that the order imposed an “undue burden” on the constitutional right to abortion access. (Texas already has some of the strictest abortion laws in the country, including a gratuitous requirement that patients visit the clinic twice.) The plaintiffs pointed out that abortion is extremely safe and requires minimal personal protective equipment. Moreover, nearly a third of Texas patients undergo medical abortions and do not require surgery at all. Doctors just hand women the pills they must take to end their pregnancy—yet the governor deems this process one of the elective “surgeries and procedures” that must now stop.
In court, Texas defended its outright ban by insisting that elective abortions are not “immediately medically necessary.” It’s difficult to accept that contention, since abortions have a higher complication rate as the pregnancy goes along, and Texas bans the procedure after 20 weeks. The state also alleges that abortions, including medical abortions, “frequently result in complications that require surgical intervention,” forcing providers to “further burden overtaxed emergency departments during a surge of COVID-19 cases.” In reality, surgical abortion is extremely safe—much safer than childbirth, in fact—as are medical abortions, which have a complication rate of less than .5 percent.
On Thursday, U.S. District Judge Lee Yeakel sided with the clinics in an order protecting their ability to provide abortions. Yeakel, a George W. Bush appointee, wrote that the minor, theoretical benefits of limiting abortion are “outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care.” He continued:
Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court.
This remarkable passage is a candid acknowledgment that the Supreme Court may soon roll back Roe v. Wade—as well as a reminder to the 5th Circuit that it has no authority to overthrow Roe on its own.
Yet that’s precisely what the 5th Circuit is poised to do. The case landed before a three-judge panel made up of Judges Jennifer Elrod (another Bush appointee), Kyle Duncan (a Donald Trump appointee), and James Dennis (a Bill Clinton appointee). By a 2–1 vote on Friday, the panel put Yeakel’s decision on hold, permitting Texas to resume enforcing its near-absolute abortion ban. Technically, the ruling provided only an “administrative stay” to “allow this court sufficient time to consider” Texas’ motion. But as University of Texas School of Law professor Steve Vladeck noted, it’s also “a strong sign of how the court may rule” on the merits. Equally ominous is Dennis’ decision to publicly dissent in a brief noting that “irreparable harm would flow” from Texas’ abortion ban “during this critical time.”
For several years, the 5th Circuit has been pioneering the jurisprudence of Trumpism, which includes a fervent desire to end abortion by any means necessary. The court has already defied Supreme Court precedent to uphold one blatantly unconstitutional abortion restriction. There is little doubt that Elrod (a partisan) and Duncan (a bully) will devise a “national emergency” exception to Roe, letting Texas prohibit abortions indefinitely. After all, Abbott reserved the right to extend his initial April 21 deadline; if the court is credulous enough to accept his justification for the abortion ban, it will surely defer to his views on the duration of the emergency.
Once the 5th Circuit formally greenlights the ban, the plaintiffs will file an emergency appeal to the Supreme Court, which is in the process of deciding another high-stakes abortion case out of the 5th Circuit. Given Justice Brett Kavanaugh’s hostility to Roe, the chief justice will likely cast the decisive vote. There is reason to believe that Roberts will keep the Texas ban on hold: He has previously joined the liberals to block the 5th Circuit when it ignored abortion precedent. But this case also bears some resemblance to Trump v. Hawaii, the 5–4 decision upholding Trump’s travel ban. Roberts’ majority opinion deferred to the president, trusting him to make tough calls for the common good in times of crisis. It is easy to imagine Roberts penning a similar opinion deferring to Abbott, accepting at face value his claim that ending abortions is necessary to preserve public health.
Texas is not the only state that has exploited COVID-19 to enact anti-abortion policies it has pursued unsuccessfully for years. Ohio and Alabama also targeted abortions, and also got smacked down in federal district court. But these cases are traveling quickly up to SCOTUS, which will decide very soon whether the coronavirus creates a “national emergency” exception to Roe. Reproductive rights advocates should be worried. The conservative justices need not devise some excuse for chipping away at abortion precedent. COVID-19 gives them a perfect pretense to erode Roe.
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