By Lawrence Hurley and Andrew Chung
WASHINGTON/NEW YORK (Reuters) – Texas women regained some access to abortion on Tuesday after a court blocked a state effort to limit it due to the coronavirus, showing how even conservative-leaning courts are pushing back on Republican-led efforts to change social policy in the pandemic.
The move by the New Orleans-based 5th U.S. Circuit Court of Appeals late Monday night was one in a flurry of rulings by federal courts that have acted to secure the right to at least some abortions as Republican-led states have sought to curb the procedure as part of their emergency response. More than 25,000 Americans have died from COVID-19, the respiratory disease caused by the new coronavirus.
Abortion is among a handful of fights on the front lines of America’s culture wars that even a pandemic has not stopped. Since the outbreak began legal tussles over whether gun shops are an essential service and the ability of churchgoers to assemble have played out in states nationwide.
Amy Hagstrom Miller, president of Whole Woman’s Health, which has three abortion clinics in Texas, said the 5th Circuit’s decision was unusual given its rulings against abortion in the past.
“It’s very encouraging that they are finally paying attention to the evidence that we have submitted and that they agree abortions can be provided during a pandemic,” she said. “There was no path for them to continue to assert that abortions need to be banned.”
Texas Attorney General Ken Paxton, a Republican defending the state order, did not respond to a request seeking comment. It is unclear whether the state will ask the U.S. Supreme Court to intervene.
Courts have at least partially blocked state orders that limit abortion in Oklahoma, Ohio and Alabama in addition to Texas. Abortion providers in Louisiana and Tennessee filed legal actions on Monday seeking similar relief in those states.
The court rulings are preliminary and the outlook could change as cases make their way through the appeals process.
But the rulings to date show that “there is a very strong case here that emergency relief is necessary and that these are unjustified restrictions,” said Nancy Northup, president of the Center for Reproductive Rights, an abortion rights group.
The ruling in the Texas case by the three-judge panel with two Republican-appointed judges and one Democratic appointee allows early-stage abortions induced through medication – about half of all abortions in the state. Patients who would be past the legal limit by the time the state’s emergency order is set to expire on April 21 may also obtain the procedure.
The decision likely means the conservative-majority Supreme Court, which abortion providers had asked to intervene, can stay out of the ongoing tussle, at least for now.
The 5th Circuit on April 7 previously ruled in an earlier round of litigation in favor of Texas Governor Greg Abbott’s attempt to ban surgical abortions during the pandemic.
This time around, the court said it was not clear whether the state’s emergency order covered medication-induced abortion because of questions as to whether it is a medical procedure that requires use of protective equipment currently in short supply.
In the Oklahoma case, the Denver-based 10th U.S. Circuit Court of Appeals ruled against the state on Monday, allowing certain abortion procedures, including medication abortion, to move forward. The decision left in place a district judge’s ruling on March 30 that allowed medication abortions and some surgical abortions.
Oklahoma Attorney General Mike Hunter, a Republican, said the ruling “failed to recognize that real lives will be harmed if courts unlawfully block common-sense orders to fight COVID-19, like delaying elective procedures and preserving our healthcare resources during this pandemic.”
Similarly, the Cincinnati-based 6th U.S. Circuit Court of Appeals on April 6 rejected an appeal by the state of Ohio trying to implement its emergency order against abortion clinics.
On Sunday, a judge in Alabama entered an injunction against that state’s order banning abortions.
(Reporting by Lawrence Hurley and Andrew Chung; Additional reporting by Nate Raymond; Editing by Jonathan Oatis)
