Mar 272020
 
 March 27, 2020  Posted by  Court, Healthcare

Eugene Volokh writes:

Here’s the motion for a preliminary injunction; here’s the heart of the argument (I hope to also post key parts of the state’s brief, when that is filed):

Here, in terms of the burdens, the Attorney General’s current enforcement threat operates as a ban, whether for all abortions or for all abortions after ten weeks. The Executive Order is in effect for at least thirty days, and in fact could remain in effect for months, which would push many abortion patients past the legal limit for an abortion in Texas. Moreover, even if some patients affected by the order are able to obtain an abortion if the order is lifted sooner than anticipated, they will still suffer increased risks to their health by the delay in access to abortion care. Thus, the Executive Order overwhelmingly harms individuals seeking an abortion.

These harms vastly outweigh any potential benefits from the Executive Order as interpreted by the Attorney General. The State asserts two interests—neither of which is furthered by the Attorney General’s interpretation. On its face, the Executive Order is intended to preserve hospital capacity and PPE. Plaintiffs share those interests, but a blanket abortion ban does not serve either one and, in fact, as so interpreted the Executive Order is more likely to aggravate than alleviate the public health crisis arising from the pandemic. As to the first interest, legal abortion is safe, and complications associated with abortion—including those requiring hospital care—are exceedingly rare. Nearly all abortions in Texas are provided in outpatient facilities, such as Plaintiffs’ abortion facilities and ambulatory surgical centers, not hospitals. Thus, Plaintiffs’ provision of abortion would not deplete hospital capacity.

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