In an important ruling on Tuesday, the U.S. Circuit Court of Appeals for the 5th Circuit upheld the Texas government’s right to temporarily ban abortions during the coronavirus pandemic.
The three-judge panel overruled a lower court ruling that had blocked Texas’s ban, declaring that the lower court ignored judicial precedent and the constitutional authority reserved for the states in times of emergency. This decision is significant because it protects the states’ rights to craft emergency policy, but also because it lays the groundwork for permanent abortion restrictions in pro-life states.
“Drastic and extraordinary” policies, such as Texas’s temporary abortion ban, are warranted because of the drastic and extraordinary circumstances the coronavirus pandemic has presented, the 5th Circuit’s majority opinion explained. The states have the right to restrict constitutional rights “under the pressure of great dangers,” according to Jacobson v. Commonwealth of Massachusetts (1905), including the right “to peaceably assemble, publicly worship, to travel, and even to leave one’s home,” the court said. “The right to abortion is no exception.”
Furthermore, there is no precedent supporting the exemption of abortion from temporary stays, the 5th Circuit explained.
“We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so. To the contrary, the Court has repeatedly cited Jacobson in abortion cases without once suggesting that abortion is the only right exempt from limitation during a public health emergency,” the majority opinion states.
So the lower court attempted to create its own precedent instead, determining that the public health emergency posed by the coronavirus pandemic does not merit an “outright ban” on abortions. Again, the 5th Circuit knocked this down, reminding the lower court that “it is no part of the function of a court to decide which measures are likely to be the most effective for the protection of the public against disease,” according to Jacobson.
This decision reinforces the principles of federalism and rolls back the authority many courts have taken for themselves in recent years. The state’s legislators and governor make the laws, not the courts. But by striking down Texas’s temporary abortion ban, the lower court tried to create its own exception to the state’s emergency powers, and thereby its own law.
The 5th Circuit’s ruling also has the potential to affect future abortion restrictions. It is clearly limited in its scope since it applies directly to the police power of the states to battle a public emergency. But the fact that this decision allows Texas to determine that abortion is not necessary in times of crisis suggests that the state could also have that power in nonemergencies.
Texas will likely continue to face legal challenges because of its temporary abortion ban. But because of the 5th Circuit, life, as well as the state’s ability to protect it, has won an important victory.
