Federal Court Says Chemical Abortions Can Continue Despite Texas Order

Susan B. Anthony List president Marjorie Dannenfelser warned about an increase in chemical abortions as many parts of the U.S. are under shelter-in-place orders.

(photo: Shutterstock)

AUSTIN, Texas — Chemical abortions in Texas will continue during the coronavirus pandemic after the Fifth U.S. Circuit Court of Appeals declined to overturn a lower court’s order on Tuesday.  

On April 9, the Western District Court of Texas placed a temporary restraining order on parts of the state’s ban on elective abortions during the new coronavirus (COVID-19) pandemic. The court’s order allowed chemical abortions in the state to continue, as well as some surgical abortions.

Reviewing the court’s order on chemical abortions, a three-judge panel for the Fifth Circuit on Tuesday declined to overturn it, saying it had “doubts” about the state’s argument.

Republican Gov. Greg Abbott had issued an executive order in March halting non-essential medical and dental procedures during the pandemic to conserve medical resources for treating COVID-19.

Attorney General Ken Paxton applied the order’s prohibitions to elective surgical and chemical abortions, except in cases where the mother’s life or health was deemed to be in jeopardy.

In a March 31 interview with EWTN Pro-Life Weekly, Paxton explained that the ban also applied to other non-essential procedures such as non-emergency dental and orthopedic procedures. The order was “something that could be used to save peoples’ lives,” Paxton said.

Abortion providers sued and the district court halted the abortion provisions of the order from going into effect, allowing abortions in the state to continue.

After reviewing the district court decision, however, the Fifth Circuit sided with Texas and allowed the state’s order to continue.

Then, on April 9, the district court applied a narrower restraining order on Abbot’s act, allowing chemical abortions in the state to continue as well as certain surgical abortions—in cases where women would be past 18 weeks of pregnancy and unable to access ambulatory surgical centers by April 22, or when mothers would be past 22 weeks of pregnancy by April 22.

The Fifth Circuit ruled on Tuesday that both the state and abortion providers failed to “settle” the question of whether or not the executive order “applies to medication abortions,” and thus “given the ambiguity in the record,” the judges concluded that the state failed to make its case for the district court’s order to be overturned.

Similar state actions in Ohio, Alabama, and Oklahoma have been halted in whole or in part from going into effect by courts.

A federal judge on Easter Sunday ruled that the goals of Alabama’s order, issued to conserve medical resources during the pandemic, “do not outweigh the lasting harm imposed by the denial of an individual’s right to terminate her pregnancy, by an undue burden or increase in risk on patients imposed by a delayed procedure, or by the cloud of unwarranted prosecution against providers.” 

Susan B. Anthony List president Marjorie Dannenfelser warned about an increase in chemical abortions as many parts of the U.S. are under shelter-in-place orders. She called chemical abortions the “next frontier” of the abortion lobby, in an op-ed for Townhall.

“The next frontier is the expansion, via telemedicine and the mail, of so-called ‘self-managed’ abortion (their term) using dangerous drugs,” Dannenfelser wrote, noting that chemical abortions already make up anywhere from 30 to 50% of abortions in the U.S.