- The Washington Times - Tuesday, March 31, 2020

Less than 24-hours after a district court judge halted Texas Gov. Greg Abbott’s executive order banning most elective abortions during the spread of the COVID-19 pandemic, a federal appeals court has moved to uphold the ban, effectively overruling the lower court.

The 5th U.S. Circuit Court of Appeals allowed the governor’s order to go into effect in a 2-1 move, while the legal battle over its constitutionality plays out in the courts.

Mr. Abbott had issued the order last week to stop nonessential medical procedures from taking place in order to prevent medical supplies from running low, and the spread of the coronavirus. Other states had acted similarly.

Abortion providers challenged the order and on Monday, U.S. District Judge Lee Yeakel, a Bush-appointee, sided with them against the state.

“The court finds that plaintiffs have established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates the plaintiffs’ patients’ Fourteenth Amendment rights … by effectively banning all abortions before viability,” the judge wrote on Monday.



Two other courts earlier this week also banned similar state measures to halt abortions during the pandemic in Ohio and Alabama.

Texas Attorney General Ken Paxton’s office, though, quickly filed an appeal and the federal appeals court sided with the state on Tuesday.

“I thank the court for their immediate and careful attention to the health and safety needs of Texans suffering from the spread of COVID-19. The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need,” Mr. Paxton said.

Judge James L. Dennis, a Clinton-appointee to the 5th Circuit, would have sided with the abortion providers and upheld the lower court’s decision.

“A federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time. I would deny the stay,” he wrote.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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