On March 23, Jane Doe’s life turned upside down.
That night, she got a phone call from the Fort Worth, Texas, abortion clinic where she had an appointment scheduled for the next day to receive the drugs that would complete her medication abortion. The appointment, the clinic worker told her, was canceled. “I started to cry, and she cried too,” Doe recalled in a sworn statement filed March 30 in a lawsuit against the state.
Just hours before the 24-year-old student and recently unemployed restaurant server got the news, Texas Attorney General Ken Paxton had declared that amid the Covid-19 outbreak, all abortion would be banned in the state. Providers that defied the order would be punished, he warned, potentially by criminal prosecution and incarceration.
Paxton’s declaration threw the state’s besieged reproductive health care system into chaos. Hundreds of appointments were canceled. Like Doe, who was given a pseudonym to protect her privacy, patients across Texas were left with few options: Delay the procedure until the ban is lifted (ostensibly, just before midnight on April 21), travel out of state to secure services, or “be forced to have a baby,” Doe said. “I was dumbfounded,” she added. “I had a plan, and everything came crashing down.”
At issue is an executive order Gov. Greg Abbott filed on March 22 that called for a halt to all nonessential medical procedures as a means to free up hospital space and personal protective equipment for providers on the front lines of the coronavirus epidemic. The order, which did not include a list of banned procedures, contained two important caveats: procedures that wouldn’t take up hospital space or reduce the supply of PPE were exempt, and the medical necessity of any given procedure would be determined by the patient’s provider.
“I feel like my constitutional rights were violated when I needed them the most.”
State officials have decided that neither applies to abortion.
Texas wasn’t the first to put abortion providers in the crosshairs during this crisis — and, by extension, pretty much every woman of reproductive age across the state. Arguably, Ohio led the charge, and a handful of other states have joined in, including Alabama and Oklahoma. But elected officials in Texas have so far been the most enthusiastic about exploiting the viral outbreak to strip residents of reproductive autonomy in favor of scoring political points with anti-abortion supporters.
It’s a gross demonstration of power and control, but it also reveals something far more treacherous: Years of hypocrisy by state officials has undermined health care access for millions of Texans, leaving them far more vulnerable to the Covid-19 epidemic than any abortion patient or provider ever could.
In the wake of Paxton’s warning, the Center for Reproductive Rights, Planned Parenthood Federation of America, and the Lawyering Project acted quickly, filing a federal lawsuit on behalf of providers and patients seeking to restore abortion access.
Their overarching argument is straightforward: Abortion is time-sensitive, medically necessary health care for those seeking it. Both the American College of Obstetricians and Gynecologists and the American Medical Association have said as much. It is also a protected right, making an outright ban unconstitutional.
“I feel let down by my government. I feel like Gov. Abbott doesn’t care about me or other patients who need essential abortion care,” Doe said. In the end, she had to travel roughly 1,600 miles round trip to Colorado to access care. In the parking lot of the Denver clinic, she spotted two other cars with Texas tags. “Why is my life not important enough to him and the other men making these decisions? Frankly, I feel like my constitutional rights were violated when I needed them the most.”
A Troubling Track Record
It’s easy to understand why Doe would feel let down. The state of Texas has spent the better part of two decades trying to conscript women into motherhood. It has worked overtime to ensure that sexual education in schools is devoid of scientific fact, dismantled programs that provide basic health screenings and birth control to the underinsured and uninsured, and devised as many unnecessary barriers to abortion as possible — spending millions to defend those ultimately unconstitutional roadblocks. In recent years, proposals from some state lawmakers have become even more extreme. Last year, a North Texas representative sponsored a bill that would redefine abortion as murder, making both doctors and women eligible for the death penalty (another of the state’s favorite failed policies).
Considering all of this, it’s unsurprising that the state has charged headlong into defending its across-the-board abortion ban despite its obvious constitutional defect.
But it’s important to note that it’s not only reproductive health care that state officials despise. Rather, many Texas officials — including Abbott and Paxton — loathe health care access in general. They have refused to expand Medicaid under the Affordable Care Act, saying that it’s just “wrong” for Texas, despite the fact that a majority of Texans favor expansion. Texas has among the most stringent rules for Medicaid eligibility in the U.S., a problem that has left more than 750,000 residents in the so-called coverage gap, earning too much to qualify for Medicaid but too little to qualify for offsets under the ACA.
Texas has the highest rate of uninsured people in the country, with a whopping 18 percent of residents without health insurance; 26 percent of women of reproductive age lack insurance, more than double the national average. And the state has done a pretty miserable job of taking care of the kids who are already here. More than 1.5 million Texas children live in poverty, 9 percent have no health insurance, and 23 percent live with food insecurity. One would think that amid a public health crisis, these would be the sorts of facts that would keep Texas officials up at night, worrying about how the spread of the disease might cripple the state and kill its residents.
But in fact, Texas politicians’ distain for health care access extends beyond its borders. The state, with Paxton at the legal helm, is leading the charge to completely dismantle the ACA, which would leave more than 20 million Americans without insurance. “Finally being rid of this law,” Paxton has crowed, “will be a victory for all Americans.”
None of these troubling facts appear to faze Abbott and his cronies as the coronavirus crisis intensifies. Instead, in legal filings that seek to enforce the abortion ban, the state argues that people like Doe and the professionals who would provide her care are the real threats to the health and well-being of Texans amid the outbreak.
The Real Threat
In a brief filed with the federal district court on March 30, Paxton made this argument: If clinics continue to provide abortion care, they’re bound to come into contact with individuals who have Covid-19 and will therefore spread the virus by treating them. After all, he wrote, “women travel from other locations to receive abortions at their clinics, and traveling to other parts of the state is exactly what is causing the spread of the virus.”
There are at least two obvious problems with this. First, the reason that so many women in Texas routinely have to travel long distances to access care is because of bogus state laws — like the wholly unnecessary hospital admitting-privileges requirement — that were designed specifically to close clinics. Regulations passed in 2013 shuttered half the state’s clinics before they were struck down by the U.S. Supreme Court. The network has never fully recovered, leaving large swaths of the state without a single provider.
The second problem is related: By imposing a ban on abortion amid the outbreak, Texas officials are actually forcing women to travel even farther — including across state lines, which, if you follow their logic, puts Texas on the hook for spreading the disease to multiple states.
In fact, according to a new research brief from the Texas Policy Evaluation Project, the ban would at least double the distance that Texas women need to travel to obtain care. TxPEP also found that enforcing the ban would put medication abortion out of reach for hundreds of women and drive up the rate of later-term abortion.
Texas has argued that amid the pandemic, it has broad police powers to curtail civil rights, an argument amplified by 15 other states whose attorneys general filed an amicus brief with the court in support of the abortion ban. “Every person affected by these temporary measures could argue that his individual actions won’t spread the virus, so his individual noncompliance won’t have a negative effect on public health,” reads Paxton’s brief. “But the rules must apply to all to protect us all.”
“The governor delayed, deferred, and equivocated, likely costing lives.”
That may sound reasonable, but it is completely without merit — especially in Texas, where Abbott for weeks declined to take decisive action to stop the spread of the virus. He said that a stay-at-home order wasn’t good for Texas because some counties didn’t have any reported cases of Covid-19 and he didn’t think a one-size-fits-all policy made sense. And when he finally delivered what turned out to be such an order, he made sure there were carveouts for his brand of “essential” business: gun shops and churches, which, incidentally, have been linked to multiple viral outbreaks across the country. The Texas Observer summed things up well: “At a time when clear and decisive action was paramount, the governor delayed, deferred, and equivocated, likely costing lives.”
Abbott is not the only one to completely fall down on the job of keeping people safe, while still managing to find time and considerable resources to attack reproductive rights. Plenty of the states that signed onto the amicus brief asserting broad powers to usurp civil liberties also failed for weeks to take meaningful action to stop the spread of Covid-19.
There’s Mississippi Gov. Tate Reeves, who said that the state’s lone abortion provider should be shut down but also deemed department stores essential businesses. Tennessee Gov. Bill Lee insisted for weeks that he would not issue a stay-at-home order “because it remains deeply important to me to protect personal liberties.”
And then there’s Oklahoma Gov. Kevin Stitt, who is fighting in court for the right to ban abortion amid the crisis while still adamantly refusing to ask people to shelter in place — such orders, he told reporters, are unrealistic: “In my opinion, I cannot shut things down and bunker in place,” he said. Several weeks ago, Stitt, in a now-deleted tweet, posted a photo of his family in a crowded Oklahoma City restaurant. When CNN asked about it, a spokesperson responded that the “governor will continue to take his family out to dinner and to the grocery store without living in fear and encourages Oklahomans to do the same.”
But, sure, it’s the actions of abortion providers and patients in need that are the real threat here.
Shortcut to the Supreme Court
Fortunately, there are at least a few adults in the room: Federal district judges in Texas, Oklahoma, Ohio, and Alabama each considered the logic of a statewide abortion ban and found it lacking. Variously, each of the judges concluded that while a governor has the authority to order that nonessential medical procedures be curtailed, interpreting that order to allow for a complete ban on abortion is unconstitutional. They each granted a temporary restraining order blocking their state from enforcing a ban.
“The Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Texas Judge Lee Yeakel wrote in his order. “This court will not speculate on whether the Supreme Court included a silent, ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”
Of course, what is really going on here is that rabidly anti-abortion politicians like Abbott and Paxton are gunning for a ban with a broader purpose in mind: pitching to the U.S. Supreme Court the question of whether their emergency powers allow them to circumvent the well-established right to abortion.
That sort of scheming is well within Texas’s wheelhouse, and with the 5th U.S. Circuit Court of Appeals as an ally, the state is perfectly situated to push its underlying agenda. In fact, the appeals court has already joined the fight.
In an extraordinary turn of events, less than 24 hours after Yeakel granted the restraining order, the 5th Circuit stepped in to lift it at Texas’s request, offering the state an opportunity to make its case directly to the appellate court.
Regardless of what state officials say about wanting to protect residents amid the Covid-19 outbreak, the thing they’re really angling for is banning abortion for good.
It is hard to overstate how unusual this is. The district court is tasked with fact-finding in the cases that come before it, to develop the record of the case. If there’s an appeal of the district court’s decision, that record moves to the circuit court, which is tasked with determining whether the ruling was “clear error” — that is, unsupported by the record. Importantly, if the record supports the lower court’s decision, the appeals court is supposed to leave it undisturbed, regardless of whether it would have decided the case differently.
Yeakel granted the temporary restraining order and set an expedited hearing for April 13, to consider in more detail whether the order should stand. In other words, Yeakel provided Texas an almost immediate remedy if it believed it was on solid ground in issuing the ban. If the state were to lose, the case would then be ready for 5th Circuit review.
But Texas had no intention of following the normal path. A temporary restraining order is meant to maintain the status quo as a dispute moves forward, which, in this case, would be maintaining access to abortion. The ink had barely dried on Yeakel’s order when the state rushed to the 5th Circuit for help. It’s clear that Texas figured the law was not actually on its side and thus had to contrive a way to keep the ban intact.
In essence, what Texas is trying to do — and what the 5th Circuit seems comfortable allowing, if not actually encouraging — is hobbling the district court’s authority in an effort to keep the ban in place and move the dispute to the Supreme Court as quickly as possible. The hope, it appears, is that the high court will act with irrational haste amid the crisis and allow Texas to ban abortion indefinitely — a move that would strike at the heart of abortion rights even after the current epidemic passes.
On April 7, Texas’s efforts were rewarded by a three-judge panel of the circuit court, which declared in a 2-1 majority that Yeakel’s decision to issue the temporary restraining order was “patently erroneous” and would remain unenforceable — at least until after April 13, when Yeakel is set to consider whether to take additional action to block the ban. The lone dissenter, Judge James L. Dennis, decried the decision and the “recurring phenomenon” in the 5th Circuit “in which the result follows not because of the law or facts, but because of the subject matter” of the case.
Attorneys for the Texas providers have not yet said what their next move will be. An appeal to the Supreme Court is among the options.
The 5th Circuit is notoriously hostile to reproductive rights and has only become more ideologically driven since Donald Trump took office. And it has facilitated an end-run around the district court in the past. It did so in June Medical Services v. Russo, an abortion challenge currently pending at the high court. There, the Louisiana district court made a lengthy, factually supported determination that a hospital admitting privileges law would unconstitutionally block women from obtaining abortion. The law at issue in June Medical is identical to a law passed in Texas that was overturned by the Supreme Court in 2016.
Nonetheless, instead of applying that Supreme Court precedent when Louisiana appealed the case, the 5th Circuit overturned the lower court by rewriting the record to conclude that no women would be burdened by the additional regulation. Whether the Supreme Court will allow the insubordination remains to be seen; the case is expected to be decided in June.
It’s clear that Texas was banking on the 5th Circuit pulling a similar move in the current case, and that it would employ tyrannical logic to support an ongoing ban. In determining that Yeakel had erred in granting the restraining order, the court concluded that “even a minor delay in fully implementing the state’s emergency measures could have major ramifications” that would irreparably hurt Texas — though apparently not residents of reproductive age facing the prospect of having to continue unwanted pregnancies. If individual women felt they might be harmed, the court noted, nothing was stopping them from each taking legal action on their own.
Regardless of what state officials say about wanting to protect the health and safety of residents amid the Covid-19 outbreak, the thing they’re really angling for is banning abortion for good. And in a way, they’ve already gotten their wish because without the stay in place, abortion is now effectively illegal in Texas for the first time since 1972.