Supreme Court vacates Fifth Circuit order on Texas abortion during pandemic


Earlier this week, the United States Supreme Court vacated a decision made last year that allowed abortions to be banned in Texas.

In April, the Fifth Circuit Court of Appeals had upheld Governor Abbott’s emergency orders prohibiting non-essential medical procedures, including abortions, in order to preserve medical supplies and protect hospital capacity.

Shortly after the Fifth Circuit decision, Abbott issued a new order that allowed for non-essential medical procedures such as abortions to resume.

Planned Parenthood appealed to the Supreme Court, by way of a writ of certiorari, to have the decision reversed claiming that the order had unduly burdened a woman’s right to seek an abortion. It also pointed out that the later orders made the previous decision by the Fifth Circuit moot.

The Supreme Court agreed, vacated the decision, and remanded it to the appellate court with instructions to dismiss it, citing a case from 1950, United States v. Munsingwear.

Planned Parenthood petitioned for the Supreme Court to have the Fifth Circuit rulings declared moot because it did not want the underlying ruling to create any precedent unfavorable to abortion rights.

The court stated in United States v. Munsingwear states that “it is commonly utilized in precisely this situation to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.”

In other words, if a case can’t be reviewed to determine if the correct constitutional decision was made because it is moot, then it should not be allowed to set a legal precedent. 

It was therefore “important we took this procedural step to make sure bad case law was wiped from the books,” Planned Parenthood, the Center for Reproductive Rights, and the Lawyering Project said in a statement to NBC News.

However, in its brief, the Texas attorney general argued that the Munsingwear standard of vacating an earlier judgment due to mootness has never been applied as late in the case as Planned Parenthood requested. Planned Parenthood did not file its appeal to the Supreme Court until September; the decision under review was rendered in April.

Furthermore, the attorney general argued that the Fifth Circuit decision was widely quoted and applied in multiple cases regarding the powers of the governor under emergency situations, not just regarding abortion.

Alternatively, the attorney general attempted to persuade the Supreme Court that if it believed that the Munsingwear case applied, it should have asked the parties to fully brief and argue the case on the merits, and not dispose of it by order.  

Nevertheless, the latter is exactly what the court chose to do.

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