Planned Parenthood and other groups asked the justices in an emergency request to let abortions proceed immediately after the Fifth Circuit on Friday allowed Texas to postpone abortions until April 21 in compliance with Gov. Greg Abbott's mandate that seeks to preserve medical supplies for those treating COVID-19 patients.
"The past few weeks have been untenable for Texans in need of time-sensitive abortion procedures," Alexis McGill Johnson, Planned Parenthood's acting president, said in a statement Saturday. "Doctors who provide abortions are asking to do the same — because they, not politicians, know what's best for their patients. This is a matter of health care, not political opinion."
Friday's order — the second one the circuit court issued in the case last week — granted Texas a temporary administrative stay from U.S. District Judge Lee Yeakel's second temporary restraining order on the ban, which he issued Thursday. Later on Friday, Texas filed a petition for writ of mandamus asking the Fifth Circuit to do exactly what it did last Tuesday to Judge Yeakel's first temporary restraining order — overturn the ruling blocking enforcement of Abbott's executive order.
The executive order issued March 22 postpones "all surgeries and procedures that are not immediately medically necessary" until April 21. The Fifth Circuit wrote Friday that it was granting the temporary administrative stay that Texas had requested "to allow sufficient time to consider the mandamus petition and emergency stay motion."
By Sunday night, a group of 19 states backed Texas' mandamus petition, saying the U.S. Constitution excludes federal courts from "day-to-day decision-making during disasters such as pandemics."
"The daily-growing COVID-19 death toll acutely illustrates why no federal court should assume the grave responsibility of substituting its judgment for the considered judgment of governors and their expert public-health advisors during an emergency," the states wrote. "And yet, for a second time, the district court below has done exactly that, in direct contravention of Supreme Court precedent."
Judge Yeakel's first temporary restraining order, issued March 30, halted the governor's order banning abortions in its entirety. The Fifth Circuit undid that ruling last Tuesday, holding that Judge Yeakel had given an exemption to abortion not given to other medical procedures and had ignored the state's right to respond to a public health crisis. It sent the case back to the district court.
Texas told the Fifth Circuit in Friday's filing that Judge Yeakel on Thursday had once again entered a temporary restraining order that "endangers the health of Texans in the face of the worst pandemic to reach our state in over a century."
The Thursday order "compromises the state's efforts to protect public health in the name of advancing a theory of the right to abortion that the Supreme Court has never endorsed," Texas argued in the petition. "These clear and indisputable errors are all the more pronounced because they disregard this court's own directives issued just three days ago."
The state wrote that while Judge Yeakel's second temporary restraining order was "narrower" than the initial one, it was devoid of the "careful parsing of the evidence" the Fifth Circuit has instructed lower courts to undertake.
"The district court appears to have largely cut-and-pasted the factual findings from the proposed order submitted by respondents, and incorporated the findings of fact and conclusions of law from its first TRO rejected by this court just three days ago," Texas said.
Coronavirus-spurred abortion bans have been temporarily blocked in Ohio, Alabama and Oklahoma, with the Sixth Circuit refusing to upend a block on Ohio's ban and a federal judge blocking Oklahoma's ban.
On Sunday, an Alabama federal judge permitted certain abortions to proceed during the COVID-19 pandemic, granting part of a preliminary injunction to reproductive rights groups.
U.S. District Judge Myron H. Thompson ruled that the state's order letting abortions proceed without delay only if they are necessary for the mother's life and health violated the 14th Amendment rights of patients by unconstitutionally implementing a previability ban.
"The COVID-19 crisis leaves the court and the parties in uncharted territory," Judge Thompson wrote. "But this much is clear: for at least some women, a mandatory postponement until April 30 would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies, or would impose a substantial burden on their ability to access an abortion."
Texas is represented by Heather Gebelin Hacker, Beth Klusmann and Natalie D. Thompson of the Texas Attorney General's Office.
Planned Parenthood in the Texas case is represented by Patrick J. O'Connell of the Law Offices of Patrick J. O'Connell PLLC; and Julie Murray, Alice Clapman, Richard Muniz, Hannah Swanson and Jennifer Sandman of the Planned Parenthood Federation of America.
The other clinics in Texas are represented by Stephanie Toti, Rupali Sharma and Sneha Shah of The Lawyering Project and Molly Duane, Rabia Muqaddam and Francesca Cocuzza of the Center for Reproductive Rights.
The case is Planned Parenthood for Choice et al. v. Abbott et al., case number unavailable, in the U.S. Supreme Court.
The Alabama abortion providers are represented by Randall C. Marshall and Brock Bone of the ACLU of Alabama, Alexa Kolbi-Molinas and Meagan Burrows of the ACLU Foundation and Carrie Y. Flaxman and Susan Lambiase of the Planned Parenthood Federation of America.
Alabama is represented by Edmund G. LaCour Jr., James W. Davis and Brad A. Chynoweth of the state's Office of the Attorney General.
The case is Robinson et al. v. Marshall, case number 2:19-cv-00365, in the U.S District Court for the Middle District of Alabama.
--Additional reporting by Hailey Konnath, Katie Pohlman, Danielle Nichole Smith and Jeff Overley. Editing by Abbie Sarfo.
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