The evangelical right has a loyal foot soldier in Trump appointee Judge Kyle Duncan of the U.S. Fifth Circuit Court of Appeals. On Tuesday, Duncan handed the right what could be its greatest gift: the case to end legal abortion.
In a 2-1 decision released Tuesday, a panel of Fifth Circuit judges led by Duncan ruled Texas Gov. Greg Abbott (R) could continue to ban abortion while the state deals with the COVID-19 outbreak. The decision is radical, based on bad faith, and par for the course from Duncan.
Citing the surge of COVID-19 cases causing “mounting strains on health-care systems,” Duncan, joined by fellow conservative and President George W. Bush appointee Judge Jennifer Elrod, said Texas was well within its power to ban abortion as part of its coronavirus response.
“The bottom line is this: when 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,’” Duncan wrote.
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Texas is not the only state trying to use the pandemic to ban abortion. Legal challenges to similar attempts are pending in Ohio, Alabama, Oklahoma, and Iowa. So far, restrictions have been temporarily blocked in all but Iowa, but Republican state attorneys general have appealed those decisions and will likely point to Tuesday’s opinion from the Fifth Circuit to support those appeals.
The fight over Texas’ latest attempts to ban abortion has moved at a rapid pace. On March 22, Abbott signed an executive order to expand hospital capacity to respond to COVID-19; among other actions, it banned surgeries and procedures that are “not medically necessary.” That governor’s order is set to expire on April 21. The day after Abbott signed the order, Texas Attorney General Ken Paxton (R) said the order’s prohibition on medically unnecessary surgeries and procedures “applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including . . . any type of abortion that is not medically necessary to preserve the life or health of the mother.”
Failure to comply with the executive order can result in penalties of up to $1,000 or 180 days of jail time. Paxton made clear that Texas intended to jail providers, saying “those who violate the governor’s order will be met with the full force of the law.” Advocates sued, and on March 30 U.S. District Judge Lee Yeakel issued a temporary restraining order blocking enforcement of Abbott’s executive order against abortion providers.
But because this is a story involving abortion and Texas, it doesn’t end with Yeakel’s order.
Attorneys for the state filed an emergency appeal with the Fifth Circuit Court of Appeals. On March 31, the Fifth Circuit granted that emergency appeal and stayed Yeakel’s order. Tuesday’s order issued by the Fifth Circuit takes that March 31 ruling one step further and directs Yeakel to vacate the temporary restraining order.
That means Abbot’s order is in effect. Abortion may be legal in Texas, but so long as Abbot’s emergency order remains in effect, nobody can legally have an abortion in Texas. That means nearly every county in the state will be more than 100 miles away from a U.S. abortion care provider, and 800-mile round trips will become the norm for many Texans seeking care.
The Fifth Circuit didn’t just stop at dissolving the temporary restraining order. It also held onto jurisdiction of the case, which means that if another ruling blocking Abbott’s order is issued, the same panel of judges would hear that appeal.
So is there some kind of “public health exception” to the right to an abortion? Can states use a national emergency as an excuse to ban abortion? On Tuesday, Duncan said very clearly they can. To get there, Duncan relied on a single U.S. Supreme Court decision involving mandatory vaccines. In that 1905 case, the city of Cambridge, Massachusetts, passed a regulation requiring its citizens to receive a smallpox vaccination to combat an outbreak of the disease. Pastor Henning Jacobson challenged the requirement, arguing that it violated his 14th Amendment right “to care for his own body and health in such way as to him seems best.”
The Supreme Court upheld the vaccination requirement and explained that the state’s action in compelling vaccination was an exercise of its police power, which “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”
Duncan took that Jacobson decision and blew it wide open in order to craft what is in effect a public health exception to the right to abortion care.
“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency,” Duncan wrote. “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 be clear: Duncan said in times of public health emergencies, states have the power to suspend abortion rights. And he relied on only a single case, issued at the turn of the twentieth century, to do so.
Fifth Circuit Judge James Dennis, a Clinton appointee, cut right to the chase in his dissent, calling out both Texas officials and his colleagues for using panic to unjustifiably restrict abortion rights.
“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 traveling to other states in search of time-sensitive medical care,” Dennis wrote.
It’s almost impossible to imagine this case and this issue not landing before the Supreme Court soon. On Tuesday, before the Fifth Circuit’s decision, attorneys representing providers challenging Abbott’s order notified the Fifth Circuit of their intent to ask the Roberts Court to intervene. That letter prompted the Fifth Circuit to release its opinion.
“This is not the last word—we will take every legal action necessary to fight this abuse of emergency powers,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “Texas has been trying to end abortion for decades and they are exploiting this pandemic to achieve that goal.”
The real and immediate effect of Duncan’s decision is to make it impossible to obtain a legal abortion in Texas. The long-term effect could be even more devastating.
Abbott’s order is set to expire April 21. But there’s nothing preventing him from extending it. Given what we are witnessing with the spread of COVID-19, and given Texas Republicans’ thirst to end legal abortion, Abbott will very likely extend that ban. Then what? At what point does an extension take a more permanent hold? How long can Texas effectively shut down abortion clinics under this guise? As long as COVID-19 persists?
“This is unconscionable,” Alexis McGill Johnson, acting president and CEO, Planned Parenthood Federation of America, said in a statement. “Patients are already being forced to put their lives in harm’s way during a pandemic, and now will be forced to continue doing so to get the health care they need. Abortion is essential, it’s time-sensitive, and it cannot wait for a pandemic to pass.”
It’s been just over a month since the Roberts Court heard oral arguments in June Medical Services v. Russo, another bad faith abortion rights challenge to spring forth from the Fifth Circuit, almost fully formed, as soon as Justice Anthony Kennedy retired from the Supreme Court. That case threatens to close all but one provider in Louisiana and could usher in a new era of clinic shutdown laws in states with Republican-controlled legislatures.
A decision in that case isn’t expected until this summer. But thanks in part to the Fifth Circuit’s decision Tuesday, by the time the Roberts Court releases its opinion in June Medical Services, clinics in states across the country will have already been effectively shut down. And that might just be the perfect outcome for Chief Justice John Roberts.