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AUSTIN, Texas (ChurchMilitant.com) - Abortion is on hold in Texas after the 5th U.S. Circuit Court of Appeals on Tuesday upheld a temporary ban on the killing of preborn children in the state.
The U.S. Surgeon General, Jerome Adams, and the federal Centers for Disease Control (CDC) have advised health care facilities to reschedule non-urgent appointments and elective procedures to save time and resources for infected patients.
But states have been defining the terms "non-urgent" and "non-essential" in various ways. To date, Indiana, Iowa, Mississippi, Ohio, Oklahoma and Texas have deemed elective abortion as non-essential, and have moved to halt the procedure in favor of preserving resources during the crisis.
Texas' move to temporarily halt all abortions except "to protect the life or health of the woman" was initially rejected by the courts. Last week, Judge Lee Yeakel of the Western District of Texas issued a temporary injunction against the suspension, and it was quickly stayed by the Fifth Circuit. Now, however, that same court has issued a ruling that the emergency measure is, in fact, constitutional.
Judges Kyle Duncan and Jennifer Walker Elrod, Trump and George W. Bush appointees, respectively, wrote that the state's "drastic" executive action is warranted for public health reasons, irrespective of Roe v. Wade's legal merits.
"When faced with a society-threatening epidemic," they wrote, "a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law.'"
In a dissenting opinion, Judge Kyle Dennis, a Clinton appointee, claimed that the majority decision "inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care."
The American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), whose web page states they are "Board-certified, professional and medical experts in the pro-life movement since 1973," says that while "elective abortion is neither 'essential' nor 'urgent,'" it "does consume critical resources such as masks, gloves and other personal protective equipment, and unnecessarily exposes patients and physicians to pathogens."
The AAPLOG also notes the number of emergency room visits from abortive women, a statistic generally not known to the public. They explained:
Elective abortion, both surgical and drug-induced, also generates more patients to be seen in already overburdened emergency rooms. ... Most abortion providers instruct women to go to an emergency room if they have any concerning symptoms after the abortion. Approximately five percent of women who undergo medication abortions will require evaluation in an emergency room, most commonly for hemorrhage. Surgical abortions can also result in hemorrhage. Emergency room personnel — who are already struggling to meet the demands of the COVID-19 pandemic — will be further strained to provide care to these women.
The order is having an immediate effect in Texas. Already, the Planned Parenthood facility and other providers that have filed suit have had to cancel hundreds of scheduled appointments.
"We are absolutely ready to take every legal action that we have to, to keep clinics open," said Nancy Northup, president and CEO of the Center for Reproductive Rights, the legal organization representing abortion providers in several states. "These emergency abortion bans are an abuse of power and they are a part of a long-term effect to use sham justifications to shut down clinics and make an end-run around Roe v. Wade."
Texas Attorney General Ken Paxton, on the other hand, said that "No one is exempt from the governor's executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor's order will be met with the full force of the law."
After a setback in Oklahoma where a federal judge blocked Gov. Kevin Stitt's executive order directing medical providers to postpone all elective surgeries, including abortions, until April 30, Mark Harrington of the pro-life group Created Equal, which has been tracking states and their abortion rulings, still saw the positive.
"Babies are alive today because of the efforts of hundreds of pro-life Americans. ... We need to keep the pressure on," he said.