Abortion providers sue to block Texas’ ban on abortions during the COVID-19 pandemic

AUSTIN — A coalition of abortion providers and advocates have filed a lawsuit against Texas after a governor’s order is being used to halt most abortions for the next month because of the COVID-19 pandemic.

The lawsuit comes after Texas Attorney General Ken Paxton on Monday warned abortion providers could face fines of up to $1,000 or 180 days in jail for performing abortions under an order from Gov. Greg Abbott for nonessential medical procedures to be postponed.

Abbott on Sunday issued an emergency order for all “medically unnecessary” procedures to be postponed to help free up hospital beds and personal protective equipment such as masks and gloves. The order is in effect until April 21, unless it is extended.

“This prohibition applies throughout the state and to all surgeries and procedures that are not immediately medically necessary … or any type of abortion that is not medically necessary to preserve the life or health of the mother.” Paxton’s announcement said.

But providers say abortion is essential, time-sensitive health care, particularly in Texas, where most abortions are already banned 20 weeks after fertilization. In the lawsuit, providers are also arguing that medically induced abortions through pills are not a medical procedure and should not have been included in Paxton’s warning to providers.

“By stating that the executive order applies to ‘any type of abortion’ the attorney general’s news release suggests it even prohibits medication abortions, which involves only taking medications by mouth and are not ‘surgery’ or a ‘procedure’ that falls within the terms of the executive order,” the lawsuit says.

Molly Duane, an attorney from the Center For Reproductive Rights representing plaintiffs in the lawsuit, said providers have asked Paxton to clarify his warning, but that his office has yet to provide additional guidance.

“The lack of clarity has really thrown abortion access in the state into disarray and that’s why we’re here today filing this lawsuit,” she said in a Wednesday evening phone press conference.

On Wednesday, Paxton doubled-down on the interpretation. He said the order “was designed to protect hospitals” by putting off procedures that could be done at a later date. But most abortions don’t take place in hospitals.

“The truth is abortion, for the most part, is an elective procedure that can be done later,” he said in a Facebook Live video with the conservative group Texas Values.

Providers said Paxton’s interpretation of the emergency order left them scrambling to cancel appointments and figure out what services they still can provide.

“This week our clinic staff had to cancel over 150 appointments,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health and a plaintiff in the legal challenge. “It is shameful that our politicians use emergency actions during a global pandemic to push through their anti-abortion agenda. We cannot sit idly by while the state is forcing Texans to be pregnant against their will.”

On Tuesday, many clinics across the state were informing patients that they couldn’t provide abortion services, but the Austin Women’s Health Center, one of the plaintiffs in the suit, was telling patients it planned to push back in court.

Other plaintiffs in the lawsuit include Planned Parenthood clinics, the Brookside Women’s medical and health centers, the Southwestern Women’s Surgery Center in Dallas and Dr. Robin Wallace.

Texas law would still require patients to visit doctors for medicated abortions, unlike other states that allow for the pills to be administered through telemedicine. But advocates say that option would allow Texans to access abortions safely instead of now having to travel out of the state during the pandemic.

“In this pandemic, travel is very scary, and it’s a huge impact for people to undertake the thought of even travel,” Hagstrom Miller said.

Clinics like Whole Woman’s Health have been working with abortion access groups to help women who are reaching the state’s 20-week abortion limit travel to neighboring states such as New Mexico and Oklahoma, Hagstrom Miller said.

Marsha Jones, executive director of the Dallas’ Afiya Center, said they have been getting lots of calls for help from black women. The ban is affecting low-income workers already hit hard by the pandemic, she said.

“We’re talking about people who are low-wage workers, and many of whom may have already lost their jobs, due to COVID-19,” she said. “We cannot allow people to use a national or global health crisis to force women into making choices that are not good for them, or their families.”