Coronavirus and Abortion in Texas
Lauren Stewart, CLS ’22
During the Coronavirus pandemic, states wielded unprecedented emergency powers. As a result, courts served as arbiters when state power clashed with individual rights across the country. One of the most convoluted court battles was waged in Texas. In one month, the legal status of abortion in Texas changed nine times.[1]
On March 22, 2020, Governor Abbott issued executive order GA-09 postponing non-essential surgeries and procedures until April 21.[2] The next day the Texas attorney general published a press release interpreting GA-09 which explicitly stated abortion providers must stop all non-emergency abortions for that period.[3] The Texas Medical Board immediately passed a corresponding Emergency Rule.[4] Purportedly to conserve Personal Protective Equipment (PPE) and preserve hospital capacity during the crisis, .[5] For some who would be past the gestational threshold for legal termination by April 21, abortion would be wholly inaccessible.
Several abortion facilities immediately filed for a Temporary Restraining Order (TRO).[6] The district court ruled that while GA-09 was within the governor’s authority, the press release and Emergency Rule was an abortion ban that violated Supreme Court precedent.[7] The court concluded that the ban’s limited potential reduction of PPE was outweighed by the harm imposed on the right to a pre-viability abortion. On the balance, eliminating this time-sensitive medical procedure did not serve the public interest.[8]
The State appealed and the Fifth Circuit employed the writ of mandamus— a “drastic and extraordinary remed[y]”[9]— to vacate the TRO. The Fifth Circuit substituted the rights-specific test and standard of review developed by Roe v. Wade[10] and its progeny and instead applied their interpretation of the 115-year-old case Jacobson v. Massachusetts.[11] In the Fifth Circuit’s view, Jacobson, a case concerning a $5 fine for a man who refused to get vaccinated, dictated a mandatory universal standard of deferential, rational basis-like review during a public health crisis.[12]
The sole dissenter emphatically criticized the majority in both substance and procedure. The dissent argued that Jacobson is not only clearly distinguishable but also Jacobson clearly states in emergency situations that courts should invalidate laws that “went beyond the necessity of the case and, under the guise of exerting a police power… violated rights secured by the Constitution.”[13] Additionally the dissent criticized the majority’s reliance on the writ when the lower court rightly applied 50 years of Supreme Court abortion precedent.[14]
In a second TRO, the district court applied both Jacobson and Planned Parenthood v. Casey,[15] and allowed resumption of medication abortions and procedural abortions for patients who would be legally barred from having an abortion after April 21.[16] The two-one Fifth Circuit panel once again employed the writ of mandamus and reinstated the abortion ban.[17]
On April 22, a new state order, confirmed in the State’s court filing, officially allowed abortion providers to resume services.[18]
What remains unclear is the role of the Fifth Circuit when a state’s emergency powers clashes with individual liberty. Justice Jackson’s warning in his Korematsu v. United States dissent remains a relevant caution: “[excessive state power] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”[19]
[1] In re Abbott II, 956 F.3d 696, 740 (5th Cir. 2020) (Dennis, J., dissenting in part) (explaining that decision would be the seventh time abortion’s status had changed during the pandemic); In re Abbott III, 809 F. App’x 200 (5th Cir. 2020) (holding medication abortion could resume); State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. * 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020) (conceding under the new state order announced the day before that abortion procedures could resume).
[2] In re Abbott I, 954 F.3d 772, 777 (5th Cir. 2020).
[3] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d 753, 756-57 (W.D. Tex. 2020), vacated, No. A-20-CV-323-LY, 2020 WL 1808897 (W.D. Tex. Apr. 8, 2020).
[4] In re Abbott I, 954 F.3d at 780.
[5] Id. at 790-91 (explaining the time limit for legal abortion in Texas is twenty-two weeks after the last menstrual period).
[6] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d at 756-57.
[7] In re Abbott I, 954 F.3d at 758.
[8] Id. at 758-59.
[9] In re Abbott II, 956 F.3d at 724 (Dennis, J., dissenting in part) (quoting Ex Parte Fahey, 332 U.S. 258, 259 (1947)).
[10] 410 U.S. 113 (1973).
[11] 197 U.S. 11 (1905).
[12] In re Abbott I, 954 F.3d at 784.
[13] Id. at 800-02 (Dennis, J., dissenting) (quoting Jacobson v. Mass., 197 U.S. 11, 29).
[14] In re Abbott I, 954 F.3d at 804 (Dennis, J., dissenting).
[15] 505 U.S. 833 (1992).
[16] Planned Parenthood Ctr. for Choice v. Abbott II, No. A-20-CV-323-LY, 2020 WL 1815587, at *6-7 (W.D. Tex. April 9, 2020).
[17] In re Abbott II, 956 F.3d 696 (5th Cir. 2020).
[18] State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. at 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020).
[19] 323 U.S. 214, 246 (1944).