A federal appeals court on Tuesday sided with Texas over its bid to restrict abortion access amid the coronavirus pandemic.
In a 2-1 ruling, a three-judge panel of the 5th Circuit Court of Appeals lifted a lower court order halting the restrictions, saying the previous ruling had not adequately considered the temporary burden on abortion access in light of the measure’s medical benefits.
“Given the extraordinary nature of these errors, the escalating spread of COVID-19, and the state’s critical interest in protecting the public health, we find the requirements for issuing the writ satisfied,” the majority said.
Judges Stuart Kyle Duncan, a Trump appointee, and Jennifer Elrod, a George W. Bush appointee, sided with Texas. Judge James Dennis, a Clinton appointee, dissented.
Texas officials last month temporarily stopped abortions that were not “medically necessary … to preserve the life of a patient,” a move was presented as part of the state’s efforts to halt "non-essential" medical procedures in order to conserve hospital resources amid the pandemic.
A district court halted that suspension of abortion procedures about a week later, saying the measure amounted to an “outright ban” on a woman’s ability to terminate an unwanted pregnancy.
Under Texas’s measure, the average one-way distance a woman must travel to reach the nearest abortion provider would increase from 12 miles to 243 miles, according to a study by the research group the Guttmacher Institute, which supports abortion rights and analyzed similar measures introduced in other states amid the pandemic.
The Fifth Circuit paused the lower court’s ruling late last month before lifting the suspension entirely on Tuesday. It also took issue with the lower court’s characterization of the measure as an “outright ban,” saying it “only delays certain non-essential abortions.”
In Tuesday's opinion, majority said the lower court failed to abide by several Supreme Court rulings, including a landmark 1905 decision holding that constitutional rights can be lawfully restricted when emergency public health measures are in place.
“That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home,” the majority wrote. “The right to abortion is no exception.”
The panel also said the lower court had not properly applied the Supreme Court’s constitutional test for abortion restrictions, which involves weighing the burden on a woman’s access against the medical benefits of the measure under legal review.
The lower court “failed to balance (the Texas restriction’s) temporary burdens on abortion against its benefits in thwarting a public health crisis,” the majority wrote.
In his dissent, Dennis blasted the majority’s reasoning.
“In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to 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 wrote.
Aimee Arrambide, executive director of the Texas chapter of the National Abortion Rights Action League, ripped the Tuesday ruling and accused Texas officials of playing politics amid a viral outbreak.
“Texans know abortion is a time-sensitive procedure that can not be delayed without profound consequences and Texans will remember that when they needed help during a pandemic, their state leaders were too busy politicizing and banning abortion care,” she said.