Federal Courts Uphold Texas, Arkansas Abortion Orders Amid COVID-19

2 federal circuit courts upheld coronavirus-related restrictions on abortion in Texas, Arkansas, offering some legal victories in the larger national debate
(Photo: Rex Wholster/Alamy Stock Photo)

Two federal circuit courts this week upheld coronavirus-related restrictions on abortion clinics in Texas and Arkansas, offering some legal victories in the larger national debate over whether abortion is an essential medical procedure.

On Wednesday, a three-judge panel of the U.S. Eighth Circuit Court of Appeals ruled 2-1 that Federal District Judge Kristine Baker in Little Rock, Arkansas, erred in granting a preliminary injunction against Republican Gov. Asa Hutchinson’s order prohibiting surgical abortions during the pandemic. The Arkansas victory will be of short effect, however, as the state prepares to open up for elective medical procedures next week.

Meanwhile, a U.S. Fifth Circuit panel, in a 2-1 ruling Monday, allows Texas to restrict medication abortions during the crisis. A week ago, the Fifth Circuit ruled that Texas could prohibit surgical abortions because of public health concerns during the COVID-19 pandemic, turning back a lower court ruling, while delaying a ruling on medication abortions.

In Arkansas, questions quickly swirled Wednesday as Gov. Hutchinson, feeling pressure from hospitals and medical practices trying to avoid layoffs, announced the state would seek to open up for elective medical procedures as early as Monday, provided certain public health requirements are met. One of those requirements is that medical patients be tested for coronavirus 48 hours in advance of being treated for an elective procedure.

Jerry Cox, president of Little Rock-based Family Council, says although the federal court ruling victory will only be effective until Monday, the governor’s order on the Little Rock Family Planning Clinic, the state’s only surgical abortion provider, and the subsequent ruling plowed some important ground for future cases. Planned Parenthood had joined with the clinic to challenge the governor’s order.

“The ruling by the Eighth Circuit yesterday was a huge pro-life victory,” Cox said, “and here’s why: It allowed the governor’s cease and desist order to stand, which means the clinic had to stop doing surgical abortions; and two, they severely slapped the hand of a federal judge here in Little Rock named Kristine Baker, and she has been very prone to rule in a pro-choice direction. … I think the court is sending a very strong message to her that she is out of bounds.” Baker was an Obama appointee.

Cox also mentioned that a group of pro-life legislators visited the Little Rock abortion clinic after the governor’s order and prayed as a group outside, which he said was unprecedented and drew significant attention to the clinic. “The exposing of evil that has been done has been a huge benefit,” Cox said. “The clinic may get back to business as usual, but they have lost big-time in the court of public opinion.”

In Texas, meanwhile, the Fifth Circuit’s ruling vindicates pro-life GOP Gov. Greg Abbott’s contention that abortions, whether medication abortions or surgical abortions, don’t rise to the level of a medically necessary procedure.

Trump appointee Kyle Duncan cast the deciding vote in the 2-1 decision, something abortion proponents were quick to note.

The court agreed with the state that a shortage of personal protective equipment (PPE) was a valid reason to disallow abortion procedures, even those using medication methods. The judges opined that abortion proponents had failed to show that PPE wouldn’t be necessary to at least examine women seeking medication abortions.

Conservative group Texas Values reports that because of Abbott’s executive order, “an estimated 1,800 babies’ lives at least have been saved from abortion to date. On average, abortionists perform 144 abortions per day in Texas.”

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