The Supreme Court handed a victory to advocates of abortion rights Monday, wiping off the books lower court rulings that had upheld a Texas order banning nearly all abortions in the state during the coronavirus pandemic.
Gov. Greg Abbott ordered a halt to nonessential medical procedures in late March to conserve hospital resources and personal protective equipment. Attorney General Ken Paxton then said the order applied to "any type of abortions," including medication abortions that do not involve surgery.
A federal judge in Texas declared the order too broad and lifted the ban. But the 5th U.S. Circuit Court of Appeals in New Orleans restored it. In public health emergencies, the appeals court said, a state can restrict constitutional rights, including "one's right to peaceably assemble, to publicly worship, to travel, and even to leave one's home," adding: "The right to abortion is no exception."
Planned Parenthood also sought to get permission for medication abortions, which do not require protective equipment, and surgical abortions for women who are nearing 22 weeks of pregnancy, after which most abortions in Texas are illegal. But the appeals court said no to that, too.
Abbott issued a new order a short time later that allowed abortions in Texas to resume, but the state asked the Supreme Court to keep the appeals court rulings on the books. The decisions "have been cited hundreds of times in courts across the country" in legal disputes over Covid-19 restrictions, lawyers for the state told the court.
But Planned Parenthood said Abbott's change in the rule ended the opportunity to pursue the issue in court. Unless the appeals court decisions were also vacated, leaving them on the books "may tie petitioners' hands in future cases," the group said.
In a brief order, the Supreme Court dismissed the appeal and vacated the 5th Circuit's ruling.
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Abortion rights advocates applauded Monday's dismissal of the cases.
Abbott's order was "a transparent attempt to chip away at access to reproductive health care by exploiting a public health crisis," and it was therefore "important we took this procedural step to make sure bad case law was wiped from the books," Planned Parenthood, the Center for Reproductive Rights and the Lawyering Project said in a statement.