Monday, April 20, 2020
A recent post discussed how states have used the COVID 19 emergency to restrict abortion accessibility claiming that abortions are "non-essential" medical services. Now the 5th Circuit has upheld the abortion restrictions issued by Texas that limit medical procedures to essential services only. While abortion was not directly mentioned, the state's attorney general interpreted the order to include abortions. While federal district courts twice stayed the order as applied to abortions but today the Court of Appeals overruled the District Court and reinstated the ban in its entirety.
The Court reached far back into legal history in order to rationalize its decision. The Court cited 1905 Supreme Court decision Jacobson v Massachusetts which upheld a mandatory vaccination law during a smallpox outbreak. The case offered little in the way of analogy. The orders are vastly different and the Texas ban does not rationalize how the abortion restrictions will assist in containing the COVID-19 threat. While medication abortions are permitted along with those that would be time-barred during the duration of the ban, the orders discount not only women's autonomy but the psychological and physical harm that women will suffer by delayed procedures.