On April 7 the New Orleans-based 5th U.S. Circuit Court of Appeals overturned a Texas federal judge’s temporary restraining order blocking Texas Governor Gregg Abbot’s Executive Order GA-09, which temporarily prohibited all elective surgeries and procedures in the wake of COVID-19-related shortages of personal protective equipment (PPE) for healthcare workers. The ban was intended to free up PPE for use by healthcare workers on the frontlines of the battle against the deadly virus.
The governor’s order, issued on March 22, didn’t mention abortion at all, but abortionists routinely use PPE in abortion procedures. Texas Attorney General Ken Paxton later clarified that the governor’s order did indeed apply to abortion as well as other elective surgeries and procedures, and several abortion sellers around the state filed a federal lawsuit seeking an immediate stop to the executive order until a trial could be held. Judge Lee Yeakel issued what is called a Temporary Restraining Order (TRO) which did exactly that.
Texas immediately appealed to the 5th Circuit in a rare process called “mandamus,” which is only reserved for the gravest of errors committed by a government official. A high bar of proof that official malfeasance has occurred is necessary in order to obtain such relief. Nevertheless, a panel of three judges on the 5th Circuit agreed that this case warranted such relief, and ultimately reversed the district court’s decision, calling it “patently wrong.”
The panel essentially faulted Judge Yeakel for placing abortion into a protected class of its own during a national health emergency that no other constitutional right enjoys.
“Under the pressure of great dangers, constitutional rights may be reasonably restricted as the safety of the general public may demand. That settled rule 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. The right to abortion is no exception,” the 5th Circuit noted.
Several other state attempts to ban elective surgeries and procedures – including abortions – in an attempt to preserve PPE have been blocked by federal courts in Ohio, Alabama and Oklahoma. The 5th Circuit decision here could help influence federal appeals courts in other jurisdictions, as these cases go quickly up the chain of the federal court system.
We’ve not heard the last of the Texas case. It’s possible the abortion sellers will immediately appeal the 5th Circuit decision to the U.S. Supreme Court. It’s more likely that the case will go back to the district court judge who reached the “patently wrong” decision in the first place to allow him a second shot at doing things correctly. All of these cases will move fast because the Texas executive order, along with similar orders from other governors, are only temporary and will expire in a couple weeks. But at the rate things are going in the fight against the coronavirus, it’s likely such executive orders will be extended for another period of time, making a judicial resolution of this question all the more necessary.
The importance of the 5th Circuit decision, however, is that it rejects the left’s farcical attitude that the judicially created “right” to abortion exceeds all other constitutional rights and is entitled to special treatment by courts and government.
That nonsense took a big hit from the 5th Circuit, and hopefully it will receive the same treatment from the Supreme Court when the opportunity comes.