There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.
Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.
On Monday, a coalition that included Planned Parenthood, the ACLU, and the Center for Reproductive Rights brought challenges in Alabama, Iowa, Ohio ,and Oklahoma, seeking to halt the coronavirus abortion bans. Last week, Planned Parenthood and the Center for Reproductive Rights sued Texas.
Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “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.” Yeakel added that:
The benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care.
Judge Barrett, also a Bush appointee, made substantially the same finding, writing:
The law is well-settled that women possess a fundamental constitutional right of access to abortions. If a healthcare provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions, said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions.
Barrett found that enforcement of the Ohio directive would create “a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access.”
Judges overseeing the remaining state challenges will rule soon enough, but for the moment it’s heartening to learn that the federal judiciary, including judges appointed by Republicans, do not appear willing to fall prey to the dangerous myth that holds that national emergencies are by definition an excuse for opportunists to curb random fundamental freedoms simply because the word “emergency” is deployed.