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Just last month, the Supreme Court heard oral arguments for June Medical Services v. Russo, a case appealing the 5th U.S. Circuit Court of Appeals decision to uphold a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. This week, meanwhile, another 5th Circuit decision concerning abortion in the era of COVID-19 was briefly before the court. The issues in the two cases differ, but the theme is the same: The 5th Circuit is using the pretext of health concerns to restrict reproductive rights. In the case of Texas’ COVID-19-based restrictions, the court was willing to accept the state’s view that the restrictions as applied to many abortions would serve public health needs, when the opposite is true: Those restrictions will likely hinder those goals by depleting resources and increasing the spread of the coronavirus.
In June Medical Services, the appellate court upheld the Louisiana admitting privileges requirement under the theory that it makes abortions safer. Never mind that in 2016, the Supreme Court found the identical requirement in a Texas statute—which the 5th Circuit also upheld—unconstitutional because it imposed an “undue burden.” As SCOTUS noted, the Texas law provided no “health-related benefit” but it imposed significant burdens by causing half of Texas’ abortion clinics to close, resulting in fewer providers, longer waits, more crowding, and increased travel distances.
Similarly, the new restrictive order issued in the wake of the COVID-19 pandemic and upheld in large part by the 5th Circuit will do real harm without achieving the good claimed. Texas Gov. Greg Abbott, like officials in 35 states, issued a directive to reduce the state’s elective medical procedures to conserve hospital beds and protective personal equipment. The executive order, issued on March 22, requires postponement of “all surgeries and procedures that are not immediately medically necessary.” While it does not single out abortions, Texas Attorney General Ken Paxton released a press statement declaring it applies to abortions, except in medical emergencies.
The litigation concerning this order moved quickly. A federal district court twice barred the order as applied to abortions, and the 5th Circuit reversed both decisions, except as to pregnant women who would be “past the legal limit for an abortion” when the order expires and then as to medication abortions. The case was even briefly before the Supreme Court, until abortion providers in the state withdrew a request for intervention on Tuesday. It is a shame that the Texas order will now stand. Even with the allowances for medication abortions and those who would be “past the legal limit,” the 5th Circuit’s rulings allow the order to unconstitutionally restrict the right of many Texans to obtain lawful abortions.
To justify this limitation of reproductive rights, the appellate court relied heavily on Jacobson v. Massachusetts, a 1905 Supreme Court decision upholding a mandatory vaccination law during a smallpox outbreak. Repeatedly citing to the case, the 5th Circuit insisted that courts adhere to Jacobson’s “framework governing emergency public health measures.” According to the 5th Circuit, rather than usurp “the state’s authority” by second guessing the “wisdom or efficacy” of those measures, courts should consider only whether such laws were enacted under “pretext.” The 5th Circuit’s reasoning itself, however, has been pretextual in accepting supposed public health rationales to run roughshod over constitutionally protected reproductive rights.
First, despite relying on Jacobson, the 5th Circuit never seriously considered whether the order was “necessary” to protect public health and whether it is “unreasonable, arbitrary, and oppressive,” the tests articulated in that case. And it refused to credit the lower court’s consideration of persuasive evidence that the order as applied to abortions does not achieve its goal of conserving PPE and hospital beds. Medication abortions, allowed up to 10 weeks’ gestation in Texas, require no PPE or hospital beds. Procedural abortions only require minimal PPE and typically occur in clinics. Meanwhile, women who remain pregnant still require in-person prenatal care, which consumes more PPE than pre-viability abortions. Finally, delaying abortions does not reduce the spread of the virus. Women will interact with health care professionals more often by remaining pregnant than by having abortions. And to obtain earlier and safer abortions by leaving the state, women have to travel up to 20 times farther, which further increases the possibility of needless viral transmission.
The 5th Circuit also used public health concerns as a pretext in applying Jacobson as if constitutional law had not evolved since 1905. While the 5th Circuit acknowledged Roe v. Wade and Planned Parenthood v. Casey, it interpreted Jacobson to allow the restriction of “all constitutional rights,” including the right to abortion, in public health emergencies. Moreover, despite chiding the lower court for failing to apply Casey’s undue burden test, the 5th Circuit not only reframed, but ultimately forsook, the test. Instead of requiring courts to consider “the burdens a law imposes on abortion access together with the benefits those laws confer,” as required by the Supreme Court in Whole Woman’s Health v. Hellerstedt, the 5th Circuit interpreted Jacobson to require such a showing “beyond question.”* In other words, it used a 1905 ruling to grant the state much broader discretion to limit reproductive rights than the Supreme Court allowed just four years ago.
Worse, the 5th Circuit failed to engage meaningfully with its Jacobson-inspired altered understanding of the undue burden test, blithely concluding that “a temporary postponement of all non-essential medical procedures, including abortion,” is not “beyond question, in palpable conflict with the constitution.” Yet even under the 5th Circuit’s version of the undue-burden test, the order would be unconstitutional as applied to abortions. That part of the order’s application provides no health-related benefits because it increases both the consumption of PPE and the potential spread of the virus. Moreover, it delays abortions by at least a month, especially given the inevitable backlog that will result—substantially longer than the 24-hour waiting period the court allowed in Casey. These delays impose greater health risks from continued pregnancy or later-term abortions. To avoid postponing abortions, women must travel great distances, again adding to the possible spread of the disease. All these factors compound financial and emotional costs during an already stressful pandemic. The order, “beyond question,” unconstitutionally imposes burdens that greatly outweigh its supposed benefits.
There is certainly reason to be pleased that the 5th Circuit now permits medication abortions and abortions that would be time-barred when the order expires. But the fact remains that, by allowing delays of a great many abortions, it still restricts reproductive rights in a way that is inconsistent with the most recent constitutional interpretations. For many Texan women, such constraints under the guise of health concerns could be tragic.
Correction, April 17, 2020: This piece originally misspelled Whole Woman’s Health.
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