Wednesday, April 08, 2020

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:
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.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....
Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.
Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.