A federal appeals court again allowed most parts of Texas' near-total ban on abortion to continue on Friday, striking down a lower court ruling from less than 24 hours ago that would have allowed some procedures to continue. It's the latest decision in a legal battle over abortion access that many say will reach the United States Supreme Court.
For a brief moment, some abortion services were allowed to resume Friday morning after a district judge granted Texas' abortion providers the ability to perform some abortion services despite the state's near-total ban on the procedure. Per Thursday evening's order, clinics could offer medication abortion as well as surgical abortions to patients who would be past the legal gestational limits by April 22, when the ban is set to lift.
In his decision, Judge Lee Yaekel wrote, "A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion."
But Friday afternoon's decision out of the U.S. Fifth Circuit Court of Appeals reverses part of that decision. Medication abortion must again be halted, but patients who would be past the legal gestational limit can still seek the procedure. A three-judge panel — including Judge Kyle Dennis, Judge Kyle Duncan and Judge Jennifer Walker Elrod — granted Texas officials a writ of mandamus, which effectively appeals the lower court's decision and allows the near-total ban to resume.
"Having already painstakingly explained those standards in our opinion, we reiterate our holding: [W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some "real or substantial relation" to the public health crisis and are not "beyond all question, a plain, palpable invasion of rights secured by the fundamental law," the judges wrote in their decision.
Judge Kyle Dennis, appointed by former President Bill Clinton, dissented in part, disagreeing that any of Thursday's lower court ruling should be reversed.
"Once again, Texas women cannot access abortion—with the important exception of those close to the legal limit," Nancy Northup, the president and chief executive officer of the Center for Reproductive Rights, said in a statement to CBS News on Friday. "The court is unjustifiably forcing women to wait until the eleventh hour to get the time-sensitive, essential healthcare that they are constitutionally guaranteed."
The Center for Reproductive Rights, along with Planned Parenthood and the Lawyering Project, are challenging Texas' suspension of abortion services amid the coronavirus outbreak on behalf of the state's abortion providers.
For nearly three weeks, the vast majority of abortion services in Texas have been mostly unavailable. On March 23, Texas Attorney General Ken Paxton issued guidance that abortion services would be included in the Governor's suspension of "non-essential" medical procedures amid the coronavirus pandemic. The order included all pregnancy termination "not medically necessary to preserve the life or health" of the patient. Doctors who violate the order face "penalties of up to $1,000 or 180 days of jail time.
An email to the Texas Attorney General's Office was not immediately returned.
Attorneys on both sides of the issue expect the case will eventually lead to the United States Supreme Court. In an exclusive interview with CBS News, Attorney General Paxton said that if the courts were to block the state's ban, he'd appeal the decision all the way up to the high court.
Texas is among five states facing legal battles over restricting abortion access during the pandemic, and the one furthest along in the judicial process. In a sweep of legal filings, a coalition of abortion rights groups challenged similar bans in Alabama, Iowa, Ohio and Oklahoma. So far, judges have ordered bans to be at least partially lifted everywhere but Texas.
"We are in a time of crisis - and the state of Texas is sowing fear, confusion, and chaos about whether people can access health care," Alexis McGill Johnson, the acting president and chief executive officer of Planned Parenthood, said in a statement to CBS News. "This is a nightmare inside of a nightmare."