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Tuesday, April 07, 2020

Texas COVID-19 abortion case

Interesting and important abortion case decided today by 5th circuit.  Basic issue is whether Governor Abbott's suspension of elective abortions is constitutional under the standard imposed by Jacobson, an early 20th century case involving quarantines.  Here is my quick take (re-posted by epidemiclaw listserv).

  • Framing of the Jacobson issues by the majority seems correct. Yes, a case that gives very wide berth to state d-makers, under the rubric of broad police power.  Emergency health conditions do not suspect civil rights & liberties, but do put them in sharp relief up against exigencies of the time. And state officials are given great deference.  (see In re Abbott for the money quotes);
  • Focus on the “error” of the district ct in characterizing this as an “outright ban” is a red herring.  It is, for all intents and purposes, a permanent ban on elective abortions otherwise squarely protected by Roe.  All the post-Roe caselaw on appropriate burdens doesn’t deal with restrictions that essentially run out the clock on the availability of elective abortions and therefore the exercise of constitutional rights;
  • Time-sensitivity cuts in both directions, which is why the case is so challenging.  Burden on the Texas health care system is a matter of fact.  Court comes close to taking judicial notice of the COVID-19-related burden or else just taking the Governor’s word for it. But, bottom line, no one can seriously doubt that Texas health care system faces extraordinary demands.  This question, not at all present in Jacobson or other cases, is how to evaluate these demands in light of constitutional rights.  The pregnant woman is not a threat to health & safety directly, but just indirectly in the (putative) burdens she places on health care system;
  • Important issue noted by the dissent is that the pregnant woman imposes burdens in any event because of prenatal care, etc. Presumably Texas has not suspended that!  So the question is what is the incremental burden.  This is a medical question, about which the court seems rather ill-equipped to assess;
  • Majority acknowledges check on police power for “extreme cases.”  Majority in In re Abbott defines these cases as relating to the health of the mother, not as related to exercise of constitutional rights.  Is this the right way to look at it?
  • Court:  “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.”  What does this mean???
  • The court waves away pretext argument. And perhaps properly so, given how difficult, if not impossible, it is to gather evidence on this point. However, in the real world in which we live, it is conspicuous that anti-Roe states are lining up to impose these restrictions.  That is the fundamental “law in action” point in all this;
  • Writ of mandamus is, indeed, an extraordinary writ.  But no thumb on the scale apparent in the court’s opinion against exercising this extraordinary discretion.  Do we have post-Jacobson caselaw that sheds light on what we ought to do with mandamus petitions?
  • Dissent emphasizes that health restrictions in Jacobson were public-health related.  But this misses the point of the majority.  Here, too, the case stated by the governor, and accepted by the majority, for the restrictions is health related.  Question is how to balance this with rights;
  • In a profound way, the strength of the dissent’s argument about the temporary nature of this ban depends upon a crystal ball.  How long will the crisis last?   I am aware of no constitutional law case that is so utterly dependent upon states of the world decoupled from either the efficacy of governmental choice or the magnitude and measure of the constitutional right.

Posted by Dan Rodriguez on April 7, 2020 at 06:50 PM in Daniel Rodriguez | Permalink


It is false that it is only anti-abortion states with these orders. That is an illusion created by the lawsuits. It would be accurate to say that pro-abortion states are making exceptions from these general orders in favor of abortion.

Massachusetts, a highly pro-abortion state, has an order that cancels elective surgical procedures. (https://www.mass.gov/doc/march-15-2020-elective-procedures-order/download) This is defined in the detailed guidance as any surgical procedure that is scheduled in advance. Almost all surgical abortions get advance scheduling so would be covered by the order.

Why is there no lawsuit? Because this state is pro-abortion, the detailed regulations carve out an abortion exception from the general rule. (https://www.mass.gov/doc/guidance-regarding-the-elective-procedures-order/download). I expect someone who really looked would find similar exceptions in other states.

Posted by: grberry | Apr 9, 2020 2:43:24 PM

Peter Michael Gerdes, important comment. But you use wrong terminology with all due respect. For, this in not a ban. Rather delay. Non of them, neither the governor issuing the Executive order, nor, or surly not, the Attorney ( press release) have the jurisdiction to ban abortion. But, certain pause, during emergency or public health crisis.No more than that.


Posted by: El roam | Apr 8, 2020 9:47:11 AM

While I’m a strong believer in abortion rights, think these bans are totally pretextual and aren’t particularly impressed with the opinion I’m not convinced upholding the ban was the wrong move (though the dissent argument that mandamus is inappropriate is stronger).

In particular, I think it’s pretty clear that both precedent and common sense agree that if it was the case that the net effect of a woman imposed substantial health burdens (eg the expected cost of each abortion was an additional death or even .1 deaths) then it was appropriate for the court to act. Looking back (Jacobson very. Massachusetts) to the first cases on mandatory vaccines (when they were still produced in a non-sterile fashion) the courts were willing to substantially burden an individual’s right to life itself in the name of society’s public health needs (I believe the individual in that case did have plausible individualized reasons to think that those primitive vaccines posed non-trivial risks to them) and I believe the reasoning would support imposing even more substantial risks. Moreover, from a more common sense POV I see no reason risks to an individual’s life as a result of being drafted should be less protected and surely we think that the harm of being denied an abortion is less than that imposed by the kind of risk (and imposition) that being ordered to assault Utah beach.

Now I obviously don’t believe that any of those assumptions about risk are true. Indeed, I think it surely a net increase in the risks of COVID to the country to deny women these abortions. But this then means the case should turn almost exclusively on the extent to which the court should defer to the other branches of government in this context. And while the dissent is surely correct that Jacobson doesn’t contemplate the judiciary washing its hands in a crisis surely the burden is on those challenging the ban to demonstrate the rule is irrational or pretextual (it is but the mere fact it’s only anti-abortion states have done this isn’t particularly compelling evidence as it’s compatible with pro-choice states being unduly reluctant to conclude this is a public health benefit).

I have no doubt that eventually sufficient direct evidence of pretext will be uncovered but what the court shouldn’t do is either substitute it’s own judgements on the plausibility this ban offers substantial public health benefits or to take notice of the fact that actors with similar ideology have acted in pretextual ways in very different circumstances. Realistically, the reason we should be confident this ban is pretextual is that actors with similar ideologies have a history of making such pretextual excuses to restrict abortion but it seems inappropriate for the court to consider.

Having said all that it is inappropriate for the court to simply give up on protecting constitutional rights when a crisis renders the kind of discovery needed to prove pretext too slow to allow prospective injunctions.

I know it’s now heavily disfavored but I would have liked to see the courts construct a Bivens style judge made rule which puts the state on notice that should it I use a crisis to limit a constitutional right for reasons later established to be pretextual they would be forced to pay massive damages to those whose rights were violated (rates plausibly sufficent to deter such pretextual fuckery).

I know this later wish is wholly implausible but the principles that courts are ill-suited to second guess crisis health policy and should not be taking notice of non-particularized reasons to doubt the good faith of states (eg because of how those with similar goals have previously acted) make it plausible that this is the right result even in the absence of ex-post ability to deter.

Posted by: Peter Michael Gerdes | Apr 8, 2020 9:29:18 AM

Great point. Majority supposes that pregnant women will just say "never mind."

Posted by: dan rodriguez | Apr 7, 2020 8:26:21 PM

Important issue these days indeed. Too many complications here, just worth to note, one of the strongest arguments of the dissenting, has to do with traveling of pregnant women, for doing abortion, elsewhere, and may spread the disease anyway so. I quote:

" Other pregnant patients with the resources to do so may choose to seek abortions outside of Texas—a result clearly contrary to Texas’s purported goal of avoiding the spread of the virus. GA-09 has already led patients to travel to other states to obtain abortion care in a pandemic, exposing patients and third parties to infection risks. One out-of-state physician stated that he treated 30 abortion patients from Texas in the week after the attorney general’s statement."


Posted by: El roam | Apr 7, 2020 8:03:55 PM

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