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Federal appeals court upholds Texas abortion ban during COVID-19 pandemic
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Federal appeals court upholds Texas abortion ban during COVID-19 pandemic

The US Court of Appeals for the Fifth Circuit upheld Texas’ COVID-19 pandemic abortion ban Monday. The ban includes medication-induced abortions. Texas has banned the abortions citing concerns over the procedures causing a personal protection equipment (PPE) shortage during the COVID-19 crisis.

Texas Governor Greg Abbot issued Executive Order GA-09 on March 22, 2020. The order forbade any medical procedure that is not immediately necessary to correct a serious conditions or preserve a patient’s life. The ban applied only to procedures that required PPE. The order effectively banned all types of abortions, including those medication-induced. Abbot issued Executive Order GA-15 Friday to add more exceptions to Executive Order GA-09. However, the order still did not permit medication-induced abortions.

The Fifth Circuit found that medication-induced abortions required the unnecessary use of PPE because Texas law requires that women receive in-person examinations before doctors can prescribe abortion medication. Because of this use of PPE, the Fifth Circuit found the Texas abortion ban constitutional given COVID-19 concerns:

As a general matter, we observe that the regulation of medication abortion in Texas differs from some other states. In Texas, “[b]efore the physician gives, sells, dispenses, administers, provides, or prescribes an abortion-inducing drug, the physician must examine the pregnant woman.” Tex. Health & Safety Code § 171.063(c). During that examination, the patient must receive an ultrasound examination. Tex. Health & Safety Code § 171.012(a)(4). The physician cannot provide the patient an abortion until the second visit. Id. And the patient must schedule a follow-up appointment to ensure the abortion is complete. Tex. Health & Safety Code § 171.063(e)-(f); 25 Tex. Admin. Code 139.53(b)(4)…Does any testify that during the current pandemic, abortion providers are not wearing masks? No…The question, then, is not whether medication abortions consume PPE in normal times, but whether they consume PPE during a public health emergency involving a spreading contagion that places severe strains on medical resource.

This decision follows the debate throughout the country over whether abortions are considered essential procedures during the COVID-19 pandemic PPE shortages. A federal district court out of Tennessee blocked the Tennessee’s executive order banning surgical abortions Friday. Along with Tennessee, both Texas and Ohio declared abortions non-essential medical procedures in March.

For more on COVID-19, see our special coverage.