AUSTIN, Texas — A federal judge Thursday issued a second, though more limited, order blocking Texas from enforcing an abortion ban as part of the coronavirus emergency.
The late-evening order by U.S. District Judge Lee Yeakel of Austin came two days after a federal appeals court tossed out his first temporary restraining order with a ruling that said the state had the power to restrict constitutional rights, including abortion, to protect public safety.
Texas Attorney General Ken Paxton, a staunch opponent of abortion, said he will once again turn to the 5th U.S. Circuit Court of Appeals with a request to dissolve Yeakel’s second order.
“The issuance of a second temporary restraining order defies the (appeals court) and demonstrates a lack of respect for the rule of law,” Paxton said.
Abortion-rights advocates hailed the latest order, saying it will provide important, although limited, relief by allowing drug-induced abortions to resume and by allowing abortions for women who are approaching legal deadlines based on gestational age.
“Today’s ruling ensures some Texans will be able to get the care they need, despite the all-out war politicians in the state have declared on abortion access,” said Rupali Sharma, director of the Lawyering Project.
Paxton has said abortion providers are covered under Gov. Greg Abbott’s March 22 emergency order prohibiting elective surgeries and procedures to free up hospital beds and conserve medical supplies — particularly breathing masks, gloves and other protective gear needed for the COVID-19 pandemic.
In his latest temporary restraining order, Yeakel placed four conditions on the way Abbott’s emergency order is enforced:
- It cannot lead to “a categorical ban on all abortions.”
- It can’t be used to prohibit drug-induced abortions, which involve taking pills at a clinic and later at home for patients in the first eight weeks of pregnancy. Yeakel said the procedures do not use protective medical gear or involve hospitals.
- Women can’t be blocked from an abortion if delays caused by Abbott’s order push a pregnancy beyond the 20th week, after which Texas bans the procedure.
- Women also can’t be blocked from an abortion if delays push a pregnancy beyond the 16th week, when the procedure must be done in an ambulatory surgical center, if such a center is not available.
Paxton has argued that the limit on abortions is temporary because Abbott’s emergency order expires at midnight April 21.
But Yeakel noted that the order can be modified and extended by the governor.
“Federal officials and medical professionals expect the pandemic to last well beyond April 21,” the judge wrote. “This court likewise expects the pandemic to last beyond April 21.”
Yeakel’s latest order was narrower than one he issued 10 days earlier that prohibited enforcement of a policy that banned abortions as elective surgery except for rare occasions when a woman’s life or health were at risk.
Yeakel said the policy violated the U.S. Constitution and amounted to a blanket ban on abortion that could not be justified because it would have little impact on preserving medical equipment and do little to open hospital beds because the vast majority of abortions are outpatient procedures.
But a divided three-judge panel of the 5th Circuit Court overruled the judge Tuesday, saying Yeakel should not have substituted his own judgment on the effectiveness of emergency measures taken by state officials under their authority to protect public health.
Two Republican-nominated judges favored allowing Texas to ban abortions under Abbott’s emergency order, while a judge named by a Democratic president would have upheld Yeakel’s order.
That same panel will hear Paxton’s appeal of Yeakel’s second order.
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