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Supreme Court expected to weigh in on Texas' emergency coronavirus abortion restriction

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Key Points
  • The Supreme Court is expected to weigh in on a major abortion case out of Texas that could resolve whether states may effectively ban the procedure with limited exceptions during the coronavirus pandemic. 
  • An appeal is expected possibly as soon as Wednesday after a federal appeals court panel upheld the restriction on Tuesday.
  • The fight comes as other states, including Ohio, Oklahoma and Alabama, are stepping up efforts to limit abortion access during the public health crisis. 
Crowds line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington, October 7, 2019.
Mary F. Calvert | Reuters

The Supreme Court is expected to weigh in on a major abortion case out of Texas that could resolve whether states may effectively ban the procedure with limited exceptions during the coronavirus pandemic. 

An appeal is expected possibly as soon as Wednesday after a federal appeals court panel upheld the restriction on Tuesday. The fight comes as other states, including Ohio, Oklahoma and Alabama, are stepping up efforts to limit abortion access during the public health crisis. 

The case would be the second major dispute to come to the justices over coronavirus. The justices on Monday sided with Republicans in Wisconsin to limit absentee ballot voting in the state, which held elections on Tuesday. That vote was 5-4 along partisan lines. 

The Texas case concerns an order signed by Republican Gov. Greg Abbott last month barring any medical procedures deemed not to be immediately necessary, an effort to conserve resources during the crisis. 

Ken Paxton, also a Republican and the state's attorney general, later said the order applied to any abortion that was not required to protect the life or health of the person receiving it, suggesting it would also apply to abortions carried out via oral medication. He announced that the penalty for violating the order was $1,000 or 180 days of jail time.

Abortion providers in the state challenged the order in court, represented by attorneys for Planned Parenthood, the Center for Reproductive Rights and the Lawyering Project.

The providers called the restriction a "a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity."

A federal district court sided with the abortion providers. The court acknowledged the public health crisis inflicted by COVID-19, but said the Supreme Court had never addressed whether such a circumstance would limit its past abortion holdings. 

"This court will not speculate on whether the Supreme Court included a silent 'except-in-a-national-emergency clause' in its previous writings on the issue," District Court Judge Lee Yeakel, a George W. Bush appointee, wrote. "Only the Supreme Court may restrict the breadth of its rulings."

But on Tuesday, a divided panel of the 5th U.S. Circuit Court of Appeals revived the abortion restriction by a 2-1 vote. It had earlier allowed the restriction to be enforced while it considered the matter. 

The 5th Circuit held that the district court's analysis was "backwards." Citing the 1905 Supreme Court case Jacobson v. Massachusetts, the court held that all constitutional rights "may be reasonably restricted to combat a public health emergency."

"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," Circuit Judge Stuart Kyle Duncan wrote. Duncan was appointed by President Donald Trump. 

The 5th Circuit's opinion came over a stinging dissent from Circuit Judge James Dennis, a Bill Clinton appointee. Dennis said the court allowed the restriction "not because of the law or facts, but because of the subject matter of this case," and noted that pregnancies often require the use of more protective medical equipment than abortions. 

"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 travelling to other states in search of timesensitive medical care," Dennis wrote.

In a statement issued after the 5th Circuit's opinion was issued, Paxton thanked the court "for their attention to the health and safety needs of Texans suffering from this medical crisis." 

"Governor Abbott's order ensures that hospital beds remain available for Coronavirus patients and personal protective equipment reaches the hardworking medical professionals who need it the most during this crisis," he said.

Paxton predicted last week in an interview with CBS News that the case would end up at the Supreme Court regardless of who won at the 5th Circuit. 

Alexis McGill Johnson, acting president and CEO of Planned Parenthood, called the decision "unconscionable."

"Abortion is essential, it's time-sensitive, and it cannot wait for a pandemic to pass," she said in a statement. "Instead of playing politics during a pandemic, Gov. Abbott should be focusing on the health care needs of his constituents. Planned Parenthood won't let this injustice stand."