Court backs Texas pandemic abortion ban, citing emergency powers


A divided three-judge panel of the 5th U. S. Circuit Court of Appeals threw out a lower court ruling blocking the ban.

A federal appeals court on Tuesday affirmed Texas' right to ban nearly all abortions during the coronavirus pandemic, in what it described as a "drastic and extraordinary" move based on arguments that states can limit constitutional rights during emergencies.

A divided three-judge panel of the 5th U.S. Circuit Court of Appeals threw out a lower court ruling blocking the ban — one of a series of recent abortion curbs enacted by conservative-led states on the grounds abortion is not a medically necessary procedure. The order builds on a temporary stay of the District Court ruling that the 5th Circuit issued on March 31.

Similar abortion bans have been blocked by courts in Oklahoma, Ohio and Alabama. Ones in other states including Kentucky and Indiana have not been challenged in court.

Precedent "allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home" in a public health or other emergency, wrote Judges Jennifer Walker Elrod and Kyle Duncan, both Republican appointees. "The right to abortion is no exception."

The judges added that a U.S. District Court judge was "wrong" to have "usurped the state’s authority to craft emergency health measures" when he temporarily blocked the ban on March 30 while legal arguments played out.

Judge James Dennis, a Clinton appointee, dissented. “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,” he wrote.

The merits of the Texas law will be argued before District Court Judge Lee Yeakel on April 13.

Attorneys representing Planned Parenthood’s Texas affiliate earlier Tuesday said they would ask the Supreme Court this week to intervene in the case, ar... (Read more)

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