AUSTIN, Texas -- Overruling a federal judge, a divided appeals court Tuesday gave Texas permission to continue banning most abortions as part of a wider fight against COVID-19.
The 5th U.S. Circuit Court of Appeals, in a 2-1 ruling, said constitutional rights "may be reasonably restricted" to protect the safety of the general public.
"That settled rule allows the state to restrict, for example, one's right to peaceably assemble, to publicly worship, to travel, and even to leave one's home. The right to abortion is no exception," Judge Stuart Kyle Duncan wrote for the majority.
In lifting a temporary restraining order imposed last week by U.S. District Judge Lee Yeakel, the appeals court allowed Texas officials to continue a policy of banning any abortion unless a woman's life or health were at risk, an exception that applies to very few circumstances.
Duncan, appointed to the court by President Donald Trump in 2018, faulted Yeakel for usurping "the state's authority to craft emergency health measures" and improperly substituting his own judgment on the effectiveness of those efforts.
Yeakel had determined that the stated goal of the abortion ban -- to free hospital space and conserve medical equipment during a global pandemic -- was not accomplished by the state policy and could not justify curtailing a woman's right to decide whether to have an abortion.
"But," Duncan wrote, "it is no part of the function of a court (to) decide which measures are likely to be the most effective for the protection of the public against disease."
Judge Jennifer Walker Elrod, who joined Duncan in the majority, also was appointed by a Republican, President George W. Bush.
Writing in dissent, Judge James Dennis said Tuesday's decision was another in a line of 5th Circuit Court rulings that abandoned established law and precedent to support restrictions on abortion.
"In a time where panic and fear already consume our daily lives, the majority's opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care," wrote Dennis, appointed to the court by Democratic President Bill Clinton.