Federal judges block Ohio and Texas orders limiting abortion access over coronavirus

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Federal judges in Ohio and Texas have blocked orders banning non-essential medical procedures from limiting abortion access during the coronavirus outbreak, a win for abortion rights activists as the fight over abortion rights intersects with the worsening pandemic.

Federal Judge Michael Barrett in the Southern District of Ohio wrote Monday that the Ohio Department of Health’s order halting non-essential procedures “likely places an ‘undue burden’ on a woman’s right to choose a pre-viability abortion, and thus violates her right to privacy guaranteed by the Fourteenth Amendment.” He added that “its enforcement would, per se, inflict irreparable harm.”

Ohio abortion providers and abortion rights advocates filed a complaint Monday after Ohio Attorney General David Yost’s office sent letters earlier this month to three abortion providers directing them to comply with the order.

“Defendant Yost’s statements and order in those letters, without more guidance, implicate Plaintiffs’ patients’ Fourteenth Amendment rights,” Barrett wrote in an order later that day, adding that “plaintiffs have shown a likelihood of success on the merits” of their claims.

Chrisse France — executive director of Preterm, one of the clinics that received a letter from Yost’s office — said she was “relieved” by the ruling, adding that “everyone deserves to have access to safe, timely care and a delay of only a few weeks can make abortion completely inaccessible.”

Yost said in a statement that “the only reason for the Health Department’s order” was “to save lives in light of the COVID-19 public health emergency.” He added that the state would “take the course of action that will most quickly achieve that goal — be it an emergency appeal, a trial on the preliminary injunction, a more specifically drawn order, or other remedy.”

Republican Gov. Mike DeWine’s office declined to comment.

Hours before Barrett’s ruling in Ohio, another temporary block was handed down in Texas — the first from a federal judge in a flurry of similar lawsuits in other states.

“The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” Federal Judge Lee Yeakel in the Western District of Texas wrote in an order earlier Monday.

Last week, Texas abortion providers, Planned Parenthood and the Center for Reproductive Rights sued state officials for including abortions among nonessential surgical procedures that must be deferred or canceled to focus on the coronavirus pandemic.

Yeakel, a George W. Bush nominee, suggested the issue might head to the Supreme Court on an emergency basis. He would “not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause'” in its previous rulings on abortion.

“The court will not predict what the Supreme Court will do if this case reaches that Court,” Yeakel said.

Texas Attorney General Ken Paxton confirmed last week that “any type of abortion that is not medically necessary to preserve the life or health of the mother” was included in Republican Texas Gov. Greg Abbott’s order that health care providers “postpone all surgeries and procedures that are not immediately medically necessary” to preserve a patient’s life or condition.

Paxton later accused his legal challengers of “withholding desperately needed supplies and personal protective equipment in favor of a procedure that they refer to as a ‘choice.'”

But Yeakel pushed back Monday against the argument of saving resources, writing 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 travelling to other states in search of time-sensitive medical care.”

“For some patients, such a delay will deprive them of any access to abortion,” he added, noting that the abortion rights groups had a high likelihood of success in the challenge based on the merits of the case. Yeakel said that the order will last until April 13, the same day as the hearing when he will consider another temporary ban.

Paxton said in a statement that he was “deeply disappointed that the court ruled against the health and safety of Texans.”

“My office is seeking prompt appellate review to ensure that medical professionals on the frontlines have the supplies and protective gear they desperately need,” he added. “We will fight tirelessly against this politically-driven lawsuit to protect the health of Texans suffering from this COVID-19 crisis.”

CNN has reached out to Abbott’s office for comment.

Plaintiffs cheered the ruling, with Planned Parenthood Acting President Alexis McGill Johnson urging Abbott to align his priorities with those of her organization to ensure “that every person can access essential health care while conserving needed resources during this time of a global pandemic.”

Nancy Northup, president and CEO at the Center for Reproductive Rights, said in a statement Monday that the ruling in the Texas lawsuit “sends a message to other states: Using this pandemic to ban abortion access is unconstitutional. Abortion care is time-sensitive and essential health care that has a profound impact on a person’s health and life, which is why it is protected as a constitutional right.”

While Texas was the first state to face a legal challenge over including elective abortions in non-essential surgeries limited under the pandemic, it is no longer the only such state.

Planned Parenthood and state abortion providers filed four challenges — in Alabama, Iowa, Ohio and Oklahoma — on Monday against state officials over similar orders. Other states, including Mississippi and Kentucky, have also opted to include abortions among non-essential surgeries limited during the coronavirus response.

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