Texas has issued a new executive order that removes restrictions on elective medical procedures, including abortion. It was a surprising move since Texas has spent the last month rigorously defending its earlier abortion ban in court.
In March, Texas’ Governor Greg Abbott issued an executive order banning many elective medical procedures, including abortions. This was done in an effort to conserve personal protective equipment (PPE) for the coronavirus pandemic. In a statement, Texas Attorney General Ken Paxton said, “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
Abortion clinics responded by suing the state and the legality of the ban has been in dispute for a month.
That executive order was set to expire on April 21, and the state made the decision to loosen the restrictions with a new executive order and allow elective procedures to continue as long as those locations “reserve at least 25% of its hospital capacity for treatment of COVID-19 patients.”
In part, this is likely a response to the growing desire of citizens and some state governments to reopen the country for business. Ironically, the state of Texas did just win a major legal victory as the Fifth Circuit Court of Appeals upheld the state’s initial abortion ban earlier this week.
In legal papers, filed in court on April 22, the state made its case that since the new executive order had been amended to include more elective surgeries, that the case no longer has merit and there is no reason to continue litigation. The introduction of the legal papers read in part, “…because Plaintiffs (i.e., abortion sellers) admit that the exemption now applies to them based on their certification, Plaintiffs are not being injured and can show no burden on the rights of their patients.”
Though it may seem like the state is capitulating to the abortion lobby, that is not the case. The document also reveals, “the Fifth Circuit has already held that Plaintiffs lack evidence to show they are entitled to injunctive relief.” The state won the case, but also could not continue to defend its position if it opens up other elective medical procedures.
Unfortunately, abortion remains legal in this country, so if Texas opens up elective procedures to other medical offices, it doesn’t have a legal leg to stand on if it tries to ban abortion as well. Nevertheless, the country will still have to grapple with the question of whether a state government can ban abortion in the event of a national emergency.
Efforts to ban abortion during the coronavirus pandemic are both necessary and important, but it is only a stopgap measure while the country works to grapple with the emergency. This should not stop states from continuing to fight for life through incremental legislation that is designed to limit abortion as much as possible.