Fed. Court: Texas May Not Ban Medication Abortions, or Delay Abortions Past Viability,

even as part of a general restriction on "not immediately necessary" surgeries and procedures, aimed at preserving medical personal protective equipment during the epidemic.

|The Volokh Conspiracy |

[UPDATE, Apr. 10, 2020, 2:56 pm Pacific: Largely stayed by the Fifth Circuit, but not entirely (as to some of the near-viability abortions).]

On March 22, the Texas Governor issued executive order GA-09, which delayed all "non-essential surgeries and procedures" until April 22, in order to preserve medical personnel's personal protective equipment during the coronavirus epidemic. The order applied to many different kinds of procedures, including abortions (except those necessary to preserve life or avoid serious threats to health).

On March 30, U.S. District Court Judge Lee Yeakel blocked GA-09 as applied to abortions generally. Then on April 7, the Fifth Circuit reversed that order, holding that—in the special context of an epidemic—the court's order was overbroad. But the Fifth Circuit expressly reserved the question whether certain kinds of narrower orders might be constitutional.

Well, yesterday Judge Yeakel did issue a narrower order, which:

[1.] Blocked GA-09 as applied to medication abortions, because the court concluded that "[p]roviding medication abortion does not require the use of any [personal protective equipment]."

[2.] Blocked GA-09 as applied to surgical abortions for two categories of women who that are relatively close to viability, since "To women in these categories, the Executive Order is an absolute ban on abortion. When a temporary delay reaches 22 weeks [since the start of the last menstrual period], the ban is not temporary, it is absolute. A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion."

I'm inclined to say that at least this second part is indeed mandated by the Court's recognition of a right to a previability abortion; and I also think it's not foreclosed by the Fifth Circuit's decision—see my earlier post for more on both those points. But I expect Texas to go back to the Fifth Circuit to try to get this reversed as well, and I guess we'll soon see what that court thinks about it.

In the meantime, you can review the full District Court order, which contains some more detailed factual findings, which I won't repeat here.

NEXT: Coronavirus Recovery Act Exempts the Fed from the Government in the Sunshine Act. Woohoo! (Really)

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  1. Obama forbid the chance to kill babies slips out of our hands

    1. Obama?? I don’t understand.

      1. You don’t understand a clinger muttering randomly about an uppity black guy?

        1. You really are the most bigoted person on these threads.

        2. I actually thought it a rather funny joke about those who worship Obama, whom I consider to be a White guy.

          1. Ed,
            Ah, got it. Yes, I do remember during the Obama terms that a ton of super-conservative guys deified Obama and constantly referred to him as Messiah. So, Amos subbed in Obama for “God forbid…”

            What I love about life is that humor is so subjective. You found it a pretty clever and funny usage. I had a different reaction. Vive la difference.

  2. Practically everything in the world must stop to prevent a plague from wiping out humanity even our most cherished and fundamental rights. But not kill babies, out of all the things in the universe that alone is worth the risk!

    1. And buying guns. And congregating in large groups on Sunday in order to be solicited to make contributions to earn our eternal salvation. Don’t forget the immutable rights that truly make us human.

  3. Abortion rights are the are supposedly derived from a right to privacy, but privacy only grants a right to a medical procedure that kills another human individual, not a general right to medical treatment…for reasons.

    1. Exactly.

    2. Bingo! If the pro-aborts actually believed in this right to make your own medical choices, that would be big. But they don’t, it’s just rhetoric that they deploy on abortion, and as soon as any other medical topic comes up, they’re back to being control freaks.

      1. Brett, I’m pro choice, and I’m not aware of any other medical issue on which pro-choicers are “control freaks”. Can you give me an example? Other than basic stuff, like you can’t practice medicine without a medical degree and things like that.

        1. Can you give me an example? Other than basic stuff, like you can’t practice medicine without a medical degree and things like that.

          The increasingly asinine dictates from the tin horn despots come to mind…

        2. Many progressives seem to believe that the FDA should regulate drugs (except for whatever favorite recreational drug they may be using of course) and forbid administration of drugs that are not approved — even when the drug is sufficiently vetted to have been approved in some other first world countries.

          Or do you consider such regulations “basic stuff” (if so perhaps you would consider any regulations “basic stuff” and hence acceptable).

          1. What are you talking about? Almost all of the left wants reciprocity between the US and reliable countries (UK, EU, Japan, SK) to lower drug prices.

      2. What other medical procedures are being banned (not postponed, and not postponed-until-banned)?

        Tell you what, if it comes up that a large political constituency tried to ban some other procedure, I’ll line up against them.

    3. Abortion rights are the are supposedly derived from a right to privacy

      And why doesn’t said “right to privacy” preclude the Wuhan Quarantine? Why can’t the “Penumbra” have its own “Penumbra”?

  4. So, Prof. Volokh, I have a hypothetical question: what if the hospitals in Texas decided that they were not going to perform abortions, due to the load of coronavirus cases? Could a federal court compel them to do so?

    1. I’m not Professor Volkh, but I would think it would depend on whether it was a public hospital or a private hospital.

      1. Professor, sorry I misspelled your name. My fingers ran ahead of my brain.

    2. More importantly, could a public hospital compel its staff to do so — particularly if they said “I’m just too tired, I don’t feel competent to do it.”

  5. Texas has 36 representatives, 13 who are Dems.

    With all the folks moving from Cali to TX, it won’t be long before Texas flips like Virginia did (and North Carolina will soon).

    Luckily cons will still have Tennessippi where they can all go.

    1. Was this just random dancing in the end zone, or were you trying to suggest the evolving political composition of the state somehow had any bearing on what appears to be a very straightforward forum-shopping exercise? The case was filed in the Austin division of the Western District of Texas, and by some strange act of fate happened to land on the docket of the judge who has a separate “Abortion Rulings” section in his Wikipedia page.

      1. It was likely filed in that Court because Austin is the state capital. As far as the Judge, who is a George W. Bush appointee, it is possible they requested it as “related to” the prior case. Each Court has its own procedures whether to deem it “related to” the prior case. Although it could have just been luck because there are only 4 Judges in the Austin division of the Western District of Texas. Not to mention that one of the other 3 was an Obama appointee and likely would have issued a similar ruling.

        1. It was likely filed in that Court because Austin is the state capital.

          If you’re aware of such a jurisdictional limitation for cases against state and county officers in their official capacity, please do share. The complaint, which is required to state the basis for the court’s jurisdiction over the case, simply alleges federal question jurisdiction and civil rights/elective franchise jurisdiction. That would be true in any federal district court in the state.

          As far as the Judge, who is a George W. Bush appointee

          Ah, the true badge of someone with nothing substantive to say.

          Each Court has its own procedures whether to deem it “related to” the prior case.

          Which would be clearly expressed as such on the public docket. Feel free to post it in the highly unlikely event it exists.

          1. The following information is publicly accessible on the Western District of Texas website:

            1. I am not sure how to post links, but on the homepage they have a link for Local Rules and Standing Orders. If you click on Divisional Office Standing Orders under the District Standing Orders tab the next to last link discusses assignment in multi-Judge divisions.

  6. Killing babies = OK and just fine, go ahead and use up C19 supplies.
    Saving the ability to function normally in society, not so much.
    https://thefederalist.com/2020/04/09/i-cant-get-my-hip-surgery-because-of-coronavirus-even-though-nobody-is-in-our-hospital/

    1. I was thinking of that article — and I’m waiting for the pro-life group to bring the converse suit to this. As _Roe_ only said that one has the same Constitutional right to an abortion as a hip surgery, why can’t the pro-life groups turn around and say “OK, but you have to provide all OTHER elective surgeries under the same criteria.”

      The woman denied an abortion won’t be pregnant anymore after nine months, but the person denied the heart bypass likely will be dead — doctors are admitting this. And the hip surgery might not be viable two months from now, there are medical guidelines that are every bit as real as the legal schedule for abortion.

      And as for the medical abortion, it’s inducing a miscarriage in a manner so painful that it’s said that no woman will ever take it twice. Miscarriages often require hospitalization to prevent really bad things from happening to the woman, and this applies to the medical abortion pill as well. A pill made in China because no American manufacturer would accept the liability of making it — enough said?

      1. Why would hip surgery not be viable? Abortion is just about the only procedure that becomes illegal if delayed by 8-10 weeks.

        But I’m fine with the criteria applying across the board, for fairness — any procedure that a medical professional deems will be infeasible or illegal if delayed until the end cannot be prohibited since that ban would constitute not a delay but a complete denial.

    2. Read the findings It’s pretty clear this isn’t using up any supplies.

      But pro-lifers are generally really dishonest, so this doesn’t surprise me.

      1. Dilan, every other elective surgery helps to fund hospitals, because they are (unlike abortions) performed in hospitals. At this point, hospitals are furloughing nurses and running deep into the red for lack of money, which would come from a whole host of cancelled operations.

        There is real harm caused by the cancellation of elective surgeries. No such harm comes from the cancellation of abortions, except that a mother might not be able to end the life of her inconvenient unborn child.

        1. I mean, considerable harm comes to the child that is now in the world without any parents that want to care for them.

  7. When the fetus absolutely, positively has to be killed overnight…

  8. Is there a more conceptually empty thread than one about anything regarding abortion?
    Nothing but baby killer yelling. Some people are easily amused, I guess. And don’t seem to want to deal with what the law is.

    1. “And don’t seem to want to deal with what the law is.”

      So, what *is* the law?

      1. Maybe I could modify that into a couple of questions:

        -What is the law on abortion (including in pandemics)?

        -How do we know that’s what the law is?

        1. The same reason we know that if the baseball commissioner suspends a player, that player is suspended.

          1. So if the Supreme Court says Homer Plessy was legally convicted…

            1. This order was as inevitable as the sun rising. Pro abortion judge [but but but Bush appointed him!!!] permitting abortions.

            2. “So if the Supreme Court says Homer Plessy was legally convicted…”

              Or Fred Korematsu also was

              Or Dred Scott was not a citizen

            3. Similarly, if science said once that the sun revolved around the earth, lets never trust scientists.

              The Constitution sets up a system. There are experts in that system. They may not always be right, but they’ll do better than you.

              No go back to raging about the evil bloodthirsty women who love getting constant baby-killing abortions.

              1. I don’t think constitutional law is a science, or comparable to a science. I haven’t heard even constitutional lawyers describe it that way.

                These “experts” you describe were appointed by the President and the United States and the U. S. Senate in a process which is not very analagous to science, unless predicting a nominee’s votes is a science (though I don’t think it is yet).

                Which way the “expert” in question votes seems to bear at least some relation to the political views of the non-experts who put him or her on the bench.

                And scientists may have their history of earth-centrism, the theory of humors, and phlogiston, but constitutional law has a history which includes

                Dred Scott
                Plessy
                Korematsu
                either the pre-New Deal decisions or the post-New Deal decisions, depending on which set of decisions you consider wrong
                all the cases where the Supreme Court overruled itself – it must have been wrong one time at least.

              2. “No go back to raging about the evil bloodthirsty women who love getting constant baby-killing abortions.”

                Are you addressing Bob or me?

                1. The thread generally, really.

          2. So we’re not allowed to talk about what the law should be? That’s a rather strange view of the world.

            1. Oh, that’s fine! But don’t pretend that you have a monopoly on moral force, and that anyone who disagrees with you is illegitimate, including those Black Robed Tyrant judges.

            2. Also, not I was answering the question – ‘-How do we know that’s what the law is?’

              Now, if you are really sure that the law is unjust (which has happened in the past), then it’s civil disobedience time. Go to jail for what you believe in, but don’t hurt anyone.

              Carping on the Internet about the blood of innocents is just performative nonsense.

        2. -What is the law on abortion (including in pandemics)?

          -How do we know that’s what the law is?

          1) See the legal opinion in the OP.

          2) We’ve hired experts. Well trained scholars in that exact question.
          2a) None of them are you.

          1. 1) The law is what a district court says it is? Then why are there appeals courts and a Supreme Court with the power to say the district court was wrong?

            2) I asked how we know what the law is, but you cite “experts” (judges) who are always contradicting themselves and calling each other full of crap.

            2a) I didn’t ask *you* what *I* thought. That would be sillier than your responses. I asked how we know what the law is, and you come up with clearly inadequate answers, add some personal abuse, and say how horrible the thread is.

            1. Back to 1) – presumably, the district judge was applying Supreme Court precedent or circuit precedent. Not authorized to back to square one and question the precedents.

              But a legal blog leaves that question open.

              Are you going to get a bumper sticker that reads, “The Supreme Court said, I believe it, that settles it?”

              1. Talk about what the law ought to be, or what the law is. Don’t mix them up.

            2. 1) the law is what the judiciary says it is. For a time, it’s what the district court says it is. Maybe that’s how it will stay, maybe not.

              2) They aren’t just experts, they are experts as delegated by our constitutional system.

              You are conflating individuals with a system. I’m not sure it’s on purpose, but it’s pretty silly.

      2. You mean no substantial burden? Or do you mean the opinion in the OP.

        Because whatever it is, your fetus death humor is neither here nor there. Neither is everyone else’s knee-jerk performative emptiness.

        This is such a bad thread. Almost as bad as that Wuhan food one.

        1. “fetus death humor”

          A fetus is not a life according to you. How can it die so we can joke about it?

          1. Try again, Bob.

    2. The law is an ass.

      1. No, Bob – you’re just so prideful you don’t deal very well when your opinions don’t carry the day for everyone else.

        1. Roe and Casey are the Dred Scott and Plessy v. Ferguson of our era.

          1. So Says Bob.

  9. “The Constitution sets up a system. There are experts in that system.”

    Let’s have a look at the origins of the particular cargo-cult myth.

    First, after the Virginia and Kentucky Resolutions protesting against the Alien and Sedition Act, Federalist state legislatures passed resolutions declaring that the exposition of the constitution by the (Federalist) judges was binding on good citizens.

    The Democrats took up where the Federalists left off, after the Dred Scott decision – appealing to Northerners, the Democrats argued that the decisions of the Supreme Court were authoritative expositions of the Constitution. Lincoln did not agree – he taunted the hapless Stephen Douglas by asking what if the Supreme Court legalized slavery in the free states, and Douglas could only answer that the Supreme Court were virtuous nonpartisan experts who would never do something like that, so the question wouldn’t arise. And it didn’t – but that was because of the backlash and civil war.

    And Obama also didn’t trust the supposed experts, because he berated the Supreme Court Justices to their faces about what he (Obama) considered their unconstitutional decision in Citizen’s United.

    So Lincoln and Obama didn’t think the judges were special experts entitled to deference. What do you know that Lincoln and Obama didn’t?

    1. Experts are wrong sometimes. Doesn’t invalidate the value of expertise.

      Our society has chosen these people, based on rules our society has set up, to make these judgement.

      You can say these people are wrong about what the law ought to be; you cannot say they are wrong about what the law is. Or, if you do, you’d better be willing to go in for some MLK level business, not just whine on the Internet about how you don’t buy into our system, man.

      Cargo cult myth. Sheesh.

      1. You haven’t given a good explanation of why the Federalists, the supporters of Justice Taney, and yourself are right and why Lincoln and Obama were wrong.

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