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Some abortions may proceed in Texas during the coronavirus pandemic, federal judge rules

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A women’s health clinic in Texas. Stephen Spillman for The Texas Tribune

In a second rebuke to Texas GOP officials who have said a ban on nearly all abortions is essential as the state battles the novel coronavirus, a federal judge in Austin ruled Thursday that some abortions may proceed.

After a loss earlier this week at the U.S. 5th Circuit Court of Appeals — which allowed the ban, writing that during an emergency, the government may restrict constitutional rights — abortion providers returned to federal court in Austin with a narrower ask. They asked U.S. District Judge Lee Yeakel to narrow Texas’ prohibition in order to at least allow “medication abortions,” which involve ingesting pills and do not consume scarce medical protective equipment, and to allow “procedural abortions” for patients who would reach or exceed the state’s gestational age limits while the governor’s order still stands.

Yeakel granted the order Thursday, allowing Texas abortion providers to proceed with medication abortions as well as procedural abortions for patients who risk meeting the gestational age cut-off before Abbott’s order is lifted.

Currently, Abbott’s order is set to expire later this month, but it may be extended as the state prepares for a peak in coronavirus cases that may not come for weeks. In Texas, abortions are prohibited starting 22 weeks after a patient’s last menstrual period — meaning even if Abbott’s order lifts in April, patients who wait might not have the opportunity to obtain a legal abortion in Texas at all.

U.S. 5th Circuit Judge Kyle Duncan had said the order was best understood not as an “absolute ban” but as a “temporary postponement” in line with delays for many medical procedures, like colonoscopies. But Yeakel argued that because abortions, unlike colonoscopies, are time-limited, “to women in these categories, the executive order is an absolute ban on abortion.”

The case over whether Texans may terminate their pregnancies during the pandemic has ping-ponged back and forth in the federal courts, with a federal appeals court earlier this week handing a major, if early, victory to the state. This most recent decision from a lower court marks an important victory for abortion providers who have argued the care they provide is just as important and time-sensitive now as it was before the outbreak.

Already, hundreds of abortions have been canceled. Citing a March 22 executive order from Gov. Greg Abbott, which barred medical procedures that are not “immediately medically necessary,” Texas Attorney General Ken Paxton declared last month that all abortions not critical for the life or health of the patient would be prohibited. State officials said the prohibition was critical to preserve medical resources, like masks and gloves, as hospitals gear up for an onslaught of COVID-19 positive patients.

Abortion providers quickly sued, calling the order political opportunism and arguing before the courts that abortions rarely require hospital time and typically do not involve extensive personal protective equipment.