Texas ends emergency ban on elective abortions, but questions remain

CNA Staff, Apr 24, 2020 / 17:00 pm

The controversy over whether Texas abortion clinics must comply with coronavirus-related emergency orders to halt elective surgeries statewide has now been rendered outdated by a new executive order allowing some surgeries to take place.

However, there are continued questions about abortion clinics' refusal to comply with the ban when it was in effect. And in Forth Worth, medical professionals have filed a lawsuit which says the city's current emergency orders banning surgeries should also ban abortion.

The office of Texas Attorney General Ken Paxton in an April 22 federal court filing said there is "no case or controversy remaining" for pro-abortion rights groups seeking legal injunction,, given that abortion providers have certified their compliance with the governor's new order, Reuters reports.

Gov. Greg Abbott's new order, which took effect April 22, allows elective medical procedures for health care facilities if they reserve 25% of hospital capacity for COVID-19 patients and do "not request personal protective equipment from any public source throughout the pandemic."

The original ban on elective surgeries, implemented in late March, aimed to preserve hospital capacity and protective equipment for medical personnel in the face of rising hospitalizations of victims of the novel coronavirus. Violations of the ban were punishable by up to $1,000 in fines or 180 days in jail.

When Paxton said that this ban included elective abortion surgeries that are "not medically necessary to preserve the life or health of the mother," many abortion clinics refused to comply and filed legal challenges, arguing that the U.S. constitution guarantees a woman's right to an abortion.

In separate rulings, the 5th U.S. Circuit Court of Appeals upheld the general ban and overturned a federal judge's follow-up temporary injunction to allow medication-induced abortions.

Abortion providers whole Women's Health and Planned Parenthood were among the challengers to the earlier order. The new order, they said, "allows patients--once again--to get an abortion in the state."

Nancy Northup, president and CEO of the Center for Reproductive Rights, characterized elective abortion as "essential health care," CNN reports.

"We will be vigilant in ensuring there are no future interruptions to services, including by assessing the appropriate next steps to take in the case," said Northup, whose organization represents some of the affected abortion clinics.

Some pro-life leaders praised the state limit on surgical abortion, even though it was no longer in place.

In an April 24 video, Texas Alliance for Life director Joe Pojman praised the delay on elective surgeries as "decisive action" to delay the spread of the coronavirus and part of "a strategy that has worked."

Pojman cited Texas' relatively low COVID-19 rates compared to large states and its hospitals' continued capacity to treat patients.

As of Friday afternoon, there were over 22,800 confirmed cases of the novel coronavirus in Texas, including over 590 deaths. About 9,000 people are estimated to have recovered, statistics from the Texas Department of Health said.

"We believe Gov. Abbott's actions have protected the public and especially health care workers from the coronavirus," Pojman said. He stressed the importance of Fifth Circuit Court's order to "delay all abortions, surgical and drug induced, except for the handful that would not be possible to delay."

"Meanwhile many abortion providers appeared to violate that order and performed a number of abortions across Texas, when those should have been delayed," Pojman added. "We are addressing that issue now."

Public health experts have stressed the need for widespread testing capacity before restrictions are lifted. The White House has said there are enough coronavirus tests to begin the first phase of lifting social and economic restrictions.

However, Dr. Tom Frieden, former director of the Centers for Disease Control and Prevention, told CNN last week that there needs to be about 10 to 20 times more tests to meet this capacity.

In Fort Worth, a city-level ban on elective surgeries is still in effect.

Several doctors and dentists and the American Association of Pro-Life Obstetricians and Gynecologists have filed suit against the City of Fort Worth, seeking to clarify whether this ban includes elective abortion.

The lawsuit, filed in Tarrant County District Court by the Chicago-based Thomas More Society, seeks a temporary injunction that would block the city from enforcing its stay-at-home order unless it is amended to bar abortions.

The complaint accuses Fort Worth abortion clinics of "selfishly consuming personal protective equipment on elective and unlawful abortions at a time when every piece of personal protective equipment must be conserved," the Fort Worth Star-Telegram reports.

The medical professionals alleged that "they are suffering discriminatory treatment by having their lawful practices shuttered while illegal abortion providers are allowed to continue operating."

"The City of Fort Worth cannot order a suspension of all 'elective' surgeries and procedures and then carve out special dispensations for abortion providers," said Tom Brejcha, president and chief counsel of the Thomas More Society. "If the city is halting elective procedures to preserve personal protective equipment for the COVID-19 pandemic, then elective abortions must be stopped as well. That is especially true when the law of Texas continues to define abortion as a criminal offense unless the mother's life is in danger."

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Judges have so far intervened to allow abortions in some form in Alabama, Arkansas, Oklahoma, Ohio, Iowa, Louisiana, and Tennessee, after public officials in those states attempted to classify elective abortions as non-essential procedures.

Abortion clinics in states like Colorado, Nevada, and New Mexico, which have not introduced any kind of bans on abortion, have seen increases in patients traveling from Texas to obtain abortions.

Arkansas officials tried to ban elective abortions in part because patients were traveling from out of state and posed a risk of bringing more coronavirus infections. A federal judge granted a temporary restraining order against the ban, but a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit allowed it to take effect in an April 22 decision.