Updated at 7:00 p.m. with news from the state’s latest legal filing.
AUSTIN -- The state of Texas says its coronavirus abortion ban is over, telling a U.S. District Court that the state’s new order on elective medical procedures now exempts abortions from being postponed during the COVID-19 pandemic.
The original gubernatorial executive order that spurred the heated legal battle over whether abortions can be banned during the COVID-19 pandemic expired Tuesday, so clinics throughout Texas began offering abortions again earlier on Wednesday.
“... There is no case or controversy remaining, as Plaintiffs have already certified they are in compliance with an exception,” attorneys for the state said in a legal filing late Wednesday afternoon.
Therefore, the state says that U.S. District Judge Lee Yeakel, the federal judge presiding over the case, has no need to grant providers a preliminary injunction in the lawsuit brought last month.
Abbott’s new order on elective procedures was issued last week and is in effect until May 8. It includes new exceptions allowing elective procedures to be conducted if they won’t deplete or limit hospital capacity or supplies of personal protective equipment such as masks.
The exceptions were added to ease restrictions for patients “who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences." But when asked whether the new order eased restrictions for abortions, Abbott was vague.
“Ultimately that will be a decision for courts to make," he said at a press conference last week.
But Amy Hagstrom Miller, CEO and president of Whole Woman’s Health clinics, said earlier Wednesday that the new order "allows providers to resume both medication and procedural abortions.”
“Whole Woman’s Health clinics in Fort Worth, Austin and McAllen are all open today, once again offering all abortion care options to patients,” she said in a statement Wednesday.
But having faced the whiplash from differing federal court orders that have upheld or blocked the enforcement of Abbott’s order over the last month, some providers were acting with caution.
The Southwestern Women’s Surgery Center in Dallas, a plaintiff in the lawsuit along with Whole Woman’s Health clinics, also resumed services, but a receptionist said this morning before the new filing came out that they were telling patients booking appointments that their services could change under the new gubernatorial order.
Other providers in Austin, Houston and San Antonio were only offering medication abortions, in which providers administer pills to women in person after completing other state requirements. This early-stage option, available for women up to 10 weeks pregnant, has been at the core of the legal fight.
Abortion providers argued in their lawsuit against the state that abortions by pills should not have been included in the elective procedure order since they don’t require much medical gear or personal protective equipment. In his warning to providers last month, Texas Attorney General Ken Paxton said the order applied to elective “abortions of any type."
Both Yeakel and the 5th U.S. Circuit Court of Appeals had issued previous orders allowing providers to offer medically induced abortions. But in its latest ruling on Monday, the 5th Circuit allowed the state to again enforce most of its ban abortions, including those induced by pills.
