5th Circuit Court of Appeals Backs Down, Restores Medication Abortion in Texas For Now

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Decision came two days after abortion providers asked the U.S. Supreme Court to take emergency action to restore Texans’ access to medication abortion
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Late Monday night, the 5th Circuit Court of Appeals backed down from its stay of a lower court’s temporary restraining order that had protected access to medication abortions  under Texas Gov. Greg Abbott’s COVID-19 order banning “non-essential procedures.” This means medication abortions —  a two-pill process — will once again be available in Texas, for now. 

Last week, for a second time, the 5th Circuit blocked a temporary restraining order and made abortion largely inaccessible across the state. The appeals court ruled without even allowing providers time to respond. Instead, it waited to ask any questions until two days after abortion providers — represented by the Center for Reproductive Rights, the Lawyering Project, and Planned Parenthood Federation of America — asked the U.S. Supreme Court to take emergency action to restore access to medication abortion. Only then did the 5th Circuit ask the parties to further explain whether medication abortion is a “procedure.”  This, despite the providers’ submission of numerous briefs in both the trial and appellate courts over the past few weeks making clear medication abortion is not a “procedure.” 

Consistent with all of its briefing in the case, including several to the 5th Circuit, abortion providers — including Planned Parenthood Center for Choice, Planned Parenthood Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Whole Woman’s Health, Whole Woman’s Health Alliance, Southwestern Women’s Surgery Center, and Austin Women’s Health Center — once again explained that medication abortion consists of two pills administered without any personal protective equipment (PPE). 

Even with the 5th Circuit’s decision to allow medication abortions under Gov. Abbott’s COVID-19 order, the only other abortion procedures that remain available are for Texas patients with a gestational age that would exceed the state’s legal limit by April 22 (one day after Gov. Abbott’s COVID-19 order expires).

Statement from Nancy Northup, president and CEO, Center for Reproductive Rights:

“For now, the 5th Circuit has righted the wrong of Texas’ unconstitutional ban on medication abortion. Now it’s time for Gov. Abbott to end his exploitation of this pandemic to ban all abortion access. None of it is medically justified, all of it is unconstitutional, and women are being thrown into a state of fear and uncertainty.”

Statement of Alexis McGill Johnson, acting president and CEO, Planned Parenthood Federation of America:

“It has become a day by day, week to week fight for people whose health care cannot wait. Planned Parenthood and it’s partners have never waivered in the facts: abortion is safe, necessary, and time-sensitive. While this is a very temporary relief for some Texans, many others still cannot access time-sensitive abortion procedures. As people try and navigate their new realities under a pandemic — job loss, quarantining with abusive partners, or still having to work essential jobs — we need more abortion access, not less. This fight is far from over.”

Statement from Rupali Sharma, senior counsel and director, Lawyering Project:

“Abortion is time-sensitive, essential medical care.  Yesterday’s ruling will ensure some Texans are able to end their pregnancies without great cost to their health and dignity during a pandemic. Yet the fight is far from over. The Lawyering Project will continue to stand with all Texans who seek abortion access as the legal battle continues.”

The 5th Circuit has yet to consider Texas Attorney General’s second petition for writ of mandamus, a rare procedural motion that could quickly end abortion access once again in the state.

Leading medical experts, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the American Board of Obstetrics & Gynecology agree:  forcing people to carry their pregnancies to term against their will only creates a heavier burden on a hospital system that’s already stretched thin caring for COVID-19 patients.

Already, courts in Alabama, Ohio and Oklahoma are allowing abortion providers — just like all other doctors — to decide when to provide essential abortion care while conserving needed resources during this pandemic. Texas should be no different. 

The Texas plaintiff abortion providers are represented by attorneys from Planned Parenthood Federation of America, the Center for Reproductive Rights, the Lawyering Project and the Law Offices of Patrick J. O’Connell PLLC. A copy of the order can be found here.

Timeline of legal actions:

  • March 25: A group of Texas abortion providers — represented by Planned Parenthood Federation of America, the Center for Reproductive Rights and the Lawyering Project — sued Gov. Greg Abbott and other state officials to help ensure that patients can access essential, time-sensitive abortion services during the COVID-19 pandemic. Press release here
  • March 30: A federal district judge granted Texas abortion providers a temporary restraining order to allow abortion services to continue for the time being during the COVID-19 pandemic. Press release here.
  • March 31: The 5th Circuit put a pause on the temporary restraining order granted by the district court only one day earlier, while they reviewed the district court's order — resulting in severely restricted abortion access in Texas. This stay order was granted before abortion providers could make their case to the court. Press release here.
  • April 7: In a 2-1 decision, a three-judge panel of the 5th Circuit used a rare procedural mechanism to rule that the district court was wrong to grant emergency relief to protect access to essential, time-sensitive abortion care. This allowed the State of Texas to continue using Gov. Abbott’s COVID-19 order to block access to abortion. Press release here.
  • April 9: A federal district court granted a second temporary restraining order against Gov. Abbott’s COVID-19 order. This decision allowed abortion providers to resume medication abortion as well as abortion procedures for patients who would be unable to access abortion due to their gestational age on April 22 (the day after Gov. Abbott’s executive order is set to expire). Press release here.
  • April 10: For the second time, the 5th Circuit ruled against abortion providers, this time granting an administrative stay reversing in large part the federal district court’s latest temporary restraining order (granted on April 9), which means abortion was once again largely inaccessible in the state of Texas. Press release here.
  • April 11: Abortion providers ask U.S. Supreme Court to take emergency action and restore access to medication abortion. Press release here.
  • April 13: The 5th Circuit asks abortion providers to further explain why medication abortion is not considered a “procedure.” The 5th Circuit then denies the state’s request to stay the second TRO as to medication abortion.

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Media Contacts:
Planned Parenthood Media Office: 212-261-4433; media.office@ppfa.org

Center for Reproductive Rights: 585-919-9966; center.press@reprorights.org

Lawyering Project: JMiller@lawyeringproject.org