The availability of abortion procedures throughout the state remains in limbo following a ruling by the Fifth Circuit Court of Appeals on Tuesday to temporarily uphold a statewide abortion ban part of an executive order issued in response to the COVID-19 pandemic.
As a result of the order, patients over 10 weeks into their pregnancy, and thus not eligible for medication abortion, have been turned away while the executive order was in effect, leading to many cancelled appointments over the last two weeks, according to Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health & Whole Woman’s Health Alliance.
She noted that Whole Woman’s Health in McAllen is the only abortion provider south of San Antonio and sees about 30 to 40 patients per week.
“They’re in anguish,” Hagstrom Miller said of patients. “They’re calling us confused and uncertain as to whether or not they can get access to abortion care services during the pandemic and the back-and-forth is really confusing for them.”
On March 21, Gov. Greg Abbott issued an executive order that instructed health care providers to postpone procedures not deemed medically necessary so as to preserve resources for the treatment of patients affected by COVID-19, the novel coronavirus.
The following Monday, Attorney General Ken Paxton said that order included abortion procedures unless they’re necessary to preserve the life or health of the mother.
“No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers,” Paxton said in a statement. “Those who violate the governor’s order will be met with the full force of the law.”
A few days later, Planned Parenthood, Whole Woman’s Health and other abortion providers throughout the state, filed a lawsuit and a motion for a temporary restraining order against state officials — including Abbott and Paxton — to halt the governor’s order and allow abortions procedures to continue.
“We know that abortion care services are essential, that they’re not something somebody can wait four to six weeks to take care of,” Hagstrom Miller said, “and we also know that we’re able to provide those services with very little, if not no, personal protective equipment.”
Personal protective equipment, or PPE, has remained in short supply for hospitals and healthcare providers continue to battle the spread of the coronavirus.
“Over 50% of the abortions we provide — I think it’s close to 60% even in McAllen — are medication abortions where we’re just handing out a pill and so we can provide those services without any PPE whatsoever,” Hagstrom Miller said.
She added that if they were to continue in-clinic procedures, it would result in a minimal use of surgical gloves and the masks.
“I think it’s important for people to know that we can provide abortion services very safely and it’s not going to impact those critical resources that need to be available for the COVID-19 patients,” she said.
In the state’s response to the lawsuit, they argued that elective abortions are never immediately medically necessary.
They also acknowledge the clinics’ claim that they will try to use less PPE in light of the shortage of those resources.
“While that is admirable, the point of (the executive order) is to preserve all possible PPE for the vital purpose of protecting healthcare workers on the front lines of fighting COVID19—a measure that is essential to preventing a systemic collapse due to the spread of infection to those workers,” reads the state’s response.
The state also argues that abortion could lead to complications which sometimes require hospitalization or treatment at an emergency room.
U.S. District Judge Lee Yeakel granted and signed the TRO earlier this week but Yeakel’s decision was temporarily stayed by the Fifth Circuit Court of Appeals, effectively upholding the abortion ban.
In response to the stay, Paxton issued a statement applauding the court’s decision.
“The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need,” Paxton stated.
However, Hagstrom Miller said banning abortions in the state as coronavirus cases continue to rise, places women at risk.
She posited that if the governor’s order remained in effect, patients would be left to travel outside the state during the coronavirus or forced to carry out their pregnancies.
“During this pandemic, when travel advisories exist and travel really heightens people’s risk, what this order is doing is it’s exposing these women unnecessarily to much higher risk of contracting COVID-19 by requiring these multiple visits and this travel outside of the state,” she said.
The Fifth Circuit required both sides to submit briefs by Friday but it remained unclear when the court will make a decision.
“Unplanned pregnancy is always a timing issue, it’s something that most people want to take care of as early as possible in their pregnancy without waiting,” Hagstrom Miller said, “and in this pandemic we’re really hearing from patients who are even more distressed — the’ve lost their job, they’ve lost their health insurance, they’ve got their children home that they’re trying to take care of, and the stressors that they have on them are even more profound.”
“Just telling them they may or may not be able to even have the care, or it’s uncertain, or telling them to wait four to six weeks, it’s really cruel.”