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Opinions | Texas politicians are cruelly exploiting the coronavirus crisis to limit access to abortions
Editorial Board
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| Texas Governor Greg Abbott |
A furious legal battle has been waged in the federal courts in the weeks since Texas Gov. Greg Abbott (R) issued an executive order banning most abortions as “non-essential” medical procedures during the pandemic emergency. Abortion providers — represented by the Center for Reproductive Rights, the Lawyering Project and the Planned Parenthood Federation of America — challenged the order and won temporary restraining orders from a federal judge that were twice stayed by the 5th Circuit Court of Appeals. The decision Monday night by the appeals court restored access to medication abortion, a two-pill process that accounts for a significant portion of abortions in Texas. But the only other abortion procedures that remain available are for patients with a gestational age that would exceed the state’s legal limit for abortion by April 22 (one day after Gov. Abbott’s executive order is set to expire).
The legal back-and-forth has caused fear, confusion and other real hardships. Court affidavits detail the damage. A 24-year-old college student wrote about having just lost her job waiting tables because of the pandemic when she found out she was pregnant. Because of the governor’s order, her appointment to get a medical abortion was canceled and she ended up driving with a friend to Denver and back. She wrote about how she was forced to travel during a pandemic: “to drive across the country, to stop at dirty gas stations, to stay in an unfamiliar home, just to get health care, I feel like Texas put me, and my best friend, in danger.” A clinic administrator told of a woman with a diagnosis of a lethal fetal anomaly without the means to travel out of state. A lawyer representing minors needing judicial approval for an abortion said one of his clients already has a child and would be kicked out of her home if her mother knew she was pregnant; her appointment was twice canceled.
Texas officials claim the restrictions on abortion are necessary to preserve resources and personnel in the fight against covid-19. But most states are managing to fight the virus without impinging on women’s constitutional rights. That’s because abortion is a relatively safe procedure that is generally not done in hospitals and does not require extensive personal protective equipment.
Instead of expending time and resources on an unscrupulous campaign to ban abortion, officials in Texas should be focusing on strategies that might actually help in the fight against the coronavirus.
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Claire Lampen
Last month, a federal appeals court reinstated Texas’s temporary ban on abortion amid the coronavirus pandemic, just one day after another judge suspended the measure. Now, rather than escalating the matter to the United States Supreme Court, providers have asked a district judge to exempt medication abortions, which do not typically require the personal protective equipment in short supply around the country.
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| © Matthew Busch/Bloomberg via Getty Images A procedure room at the Whole Woman’s Health abortion clinic in San Antonio, Texas. Matthew Busch/Bloomberg via Getty Images |
For weeks, the Center for Reproductive Rights, the Lawyering Project, and Planned Parenthood Federation of America, have been engaged in legal volleyball with Texas leaders seeking to suspend abortion access under the guise of safeguarding public health. On March 22, amid a slew of stay-at-home orders meant to curb the spread of the coronavirus, Texas Governor Greg Abbott issued an executive order postponing all non-essential surgeries and medical procedures. The next day, the state’s attorney general, Ken Paxton, clarified that the order included abortion, unless a pregnancy threatened the life of the mother. Paxton’s office justified the temporary ban — the violation of which could come with as much as a $1,000 fine or 180 days in jail — by saying it will help free up medical supplies and hospital beds for coronavirus patients.
One week later, U.S. district court judge Lee Yeakel blocked the state’s attempt at clinic closures on the grounds that patients denied the ability to terminate unwanted pregnancies would “suffer serious and irreparable harm.” Suspending abortion services, Yeakel wrote, “amounts to a pre-viability ban,” violating the terms laid out in Roe v. Wade. But the New Orleans–based Fifth Circuit Court of Appeals intervened the following day, and issuing its own temporary stay on Yeakel’s decision, allowing AG Paxton’s policy to remain in place until they had reviewed arguments in the case.
Finally, on Tuesday, that court ruled that the de facto ban stands.
Judge Kyle Duncan, a Donald Trump appointee, wrote in the 2-1 opinion that Supreme Court precedent “instructs that all constitutional rights may be reasonably restricted to combat a public health emergency,” according to the Washington Post. “Only if the Supreme Court had specifically exempted abortion rights from its general rule” could the appeals court do the same, but “it has never done so,” Duncan wrote.
Abbott’s order, however, made an exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the Covid-19 disaster,” the Post reports. Medication abortions, the providers challenging the ban wrote in a brief, “requires no PPE, while the patient’s only alternative to medication abortion — continuing the pregnancy — does.” In Texas, medication abortion is available through the 10th week of pregnancy, and in general, is extremely safe, requiring hospitalization in about 0.4 percent of patients.
Ruling on similar policies in late March, federal judges suspended temporary bans in Alabama and Ohio while they hear arguments.
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The right to life wins huge victory in Texas
Kaylee McGhee
In an important ruling on Tuesday, the U.S. Circuit Court of Appeals for the 5th Circuit upheld the Texas government's right to temporarily ban abortions during the coronavirus pandemic.
The three-judge panel overruled a lower court ruling that had blocked Texas’s ban, declaring that the lower court ignored judicial precedent and the constitutional authority reserved for the states in times of emergency. This decision is significant because it protects the states’ rights to craft emergency policy, but also because it lays the groundwork for permanent abortion restrictions in pro-life states.
“Drastic and extraordinary” policies, such as Texas’s temporary abortion ban, are warranted because of the drastic and extraordinary circumstances the coronavirus pandemic has presented, the 5th Circuit’s majority opinion explained. The states have the right to restrict constitutional rights “under the pressure of great dangers,” according to Jacobson v. Commonwealth of Massachusetts (1905), including the right “to peaceably assemble, publicly worship, to travel, and even to leave one’s home,” the court said. “The right to abortion is no exception.”
Furthermore, there is no precedent supporting the exemption of abortion from temporary stays, the 5th Circuit explained.
“We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so. To the contrary, the Court has repeatedly cited Jacobson in abortion cases without once suggesting that abortion is the only right exempt from limitation during a public health emergency,” the majority opinion states.
So the lower court attempted to create its own precedent instead, determining that the public health emergency posed by the coronavirus pandemic does not merit an “outright ban” on abortions. Again, the 5th Circuit knocked this down, reminding the lower court that "it is no part of the function of a court to decide which measures are likely to be the most effective for the protection of the public against disease," according to Jacobson.
This decision reinforces the principles of federalism and rolls back the authority many courts have taken for themselves in recent years. The state’s legislators and governor make the laws, not the courts. But by striking down Texas’s temporary abortion ban, the lower court tried to create its own exception to the state’s emergency powers, and thereby its own law.
The 5th Circuit’s ruling also has the potential to affect future abortion restrictions. It is clearly limited in its scope since it applies directly to the police power of the states to battle a public emergency. But the fact that this decision allows Texas to determine that abortion is not necessary in times of crisis suggests that the state could also have that power in non-emergencies.
Texas will likely continue to face legal challenges because of its temporary abortion ban. But because of the 5th Circuit, life, as well as the state’s ability to protect it, has won an important victory.
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Conservatives privilege ideology over expertise in this global health crisis
BY SARA HUTCHINSON RATCLIFFE, OPINION CONTRIBUTOR — 03/30/20 06:30 PM EDT
I was deeply troubled by Father Frank Pavone’s attack on the American College of Obstetricians and Gynecologists (ACOG) in The Hill.
Pavone seeks to discredit ACOG’s medical expertise by suggesting that the body, along with its 60,000 board-certified obstetrician-gynecologists members, cannot simultaneously support abortion access, a key component of women’s reproductive health, and also be an “a dispassionate observer of abortion policy.”
This is yet another example of conservatives privileging ideology over expertise in the midst of a global health crisis.
Pavone and the organization he leads, Priests for Life (PFL) has a history of using the abortion issue to support conservative lawmakers and candidates, flouting both the core Catholic teaching of freedom of conscience and the American principle of separation of church and state.
By contrast, ACOG’s advocacy is backed by decades of continuing medical education, research and ensuring clinical best practice.
PFL traffics subjects, not substantiated by science, ranging from abortion and contraception to tax law. Pavone has defied his superiors’ calls for restrain and, instead, has produced materials and publicity stunts that are far and away more sensational than pastoral.
Pavone does not even have the support of many of his brothers in the Catholic hierarchy who have regularly admonished him formally and in the press for his tactics.
The church hierarchy certainly opposes abortion, But a core teaching of the Catholic church is that when facing a moral decision, the individual Catholic is obligated to listen to and follow their own conscience above all else and not subject their agency to priest, church, state, or anyone else.
A strong majority of Catholics in the United States support access to reproductive health care services for those who need them. Six in 10 Catholic voters believe abortion can be a moral choice, and the majority of Catholic voters support access to insurance coverage for abortion — whether through private or government-run plans, according to a poll conducted in 2016 on behalf of Catholics for Choice.
As Catholics, we believe in the inherent dignity of each person, including the poorest of the poor. We know that our Catholic social justice tradition calls upon each of us to advocate for policies that protect the least among us: those who are most vulnerable and marginalized in our society. These are the individuals who are most harmed by policies that would allow the government to interfere with private reproductive health care decisions, such as abortion.
Medical professionals across the country are on the front lines of the ongoing COVID-19 pandemic, putting their own health and well-being at risk every single day. Shame on Pavone for attacking any group of dedicated health care providers at such a time as this in the name of imposing his ultraorthodox, ultraconservative politics on Americans and for his misleading claim to speak for all Catholics.
And shame on states like Ohio and Texas for exploiting this medical crisis to advance their politics at the expense of women exercising their moral agency in seeking the full range of reproductive health care services.
Regardless of how each of us responds when faced with the choice of whether to continue or terminate a pregnancy, in our free and democratic society it is critical that we stand up for freedom of conscience — including freedom of bodily autonomy for others with whom we might disagree — and for the value of facts and expertise.
Forcing women to give birth against their will by placing unnecessary and unfair obstacles to access essential health care runs counter to our society’s fundamental principles and most certainly violates Catholic social justice teaching.
Unlike Priests for Life, ACOG advances more than a single issue. For over half a century, ACOG has enhanced awareness among its members and with the public of the many issues facing women’s health care from preventive services, to maternity care, to abortion. Father Pavone is advocating for a narrow political point of view, one which is rejected by the majority across the United States, Catholics and non-Catholics alike.
Sara Hutchinson Ratcliffe is acting president of Catholics for Choice.
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