UPDATE: ACLJ Files 2 Amicus Briefs - Fifth Circuit Temporarily Upholds Texas Elective Abortion Ban, Overruling Legal Challenge From Planned Parenthood


Jay Sekulow

March 31, 2020

5 min read

Pro Life



Despite orders to cease elective medical procedures in order to focus all resources on battling the current Coronavirus crisis, the Texas abortion lobby wants the Lone Star State to continue killing babies.

In breaking news, the Fifth Circuit Court of Appeals just stepped in and temporarily halted a lower court ruling that tried to stop Texas from banning elective abortions during this pandemic.

Just recently we told you how a number of states, including Texas, had declared that given the enormity of the current global health crisis, all non-essential medical procedures, including elective abortions, should cease.

In conjunction with Texas Governor Gregg Abbott, state Attorney General Ken Paxton, issued an order to cease all nonessential, elective medical procedures to help conserve medical supplies and to combat the spread of Coronavirus. But while the state attempted to flatten the curve and keep its hospitals from being overwhelmed, Planned Parenthood and the abortion lobby reportedly sought an injunction blocking the governor’s decision.

On March 23, Paxton ordered all abortion services immediately halted, with the limited exception of those that are "necessary to preserve the life or health" of the patient. 

Two days later, the Center for Reproductive Rights, Planned Parenthood Federation of America, and the Lawyering Project filed a joint complaint, asking a federal court for an immediate temporary restraining order, calling the directive "unconstitutional."

A federal district judge quickly issued an injunction blocking the lifesaving order. However, Texas quickly appealed the decision.

Fortunately, at least for now, the Fifth Circuit Court of Appeals overruled the district court’s ruling, issuing a temporary stay until it could fully consider the appeal:

The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.

In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered.

Planned Parenthood has tried to argue that allowing elective abortions to continue as “essential” healthcare will not be a burden on medical facilities treating Coronavirus patients. However, once again, it has been caught in its own web of deception as its own website currently asks for donations of critical medical supplies such as shoe covers, sanitizer, and masks that are desperately needed in the fight against COVID-19.

We applaud the Fifth Circuit for making the right decision to maintain medical supplies and protective gear for healthcare workers who are fighting the Coronavirus pandemic and working desperately to save lives.

As we stated before:

Under no circumstances should abortion be given a special pass to continue when other elective procedures are suspended due to a health crisis. It is time for Planned Parenthood, and all its illegalities, to stop and care more about those who are in need of emergency services. Thousands of lives are being lost by the day, and it is time for the pro-abortion agenda to be put on hold.

Planned Parenthood seems to feel entitled to take whatever it wants at the expense of the American people. It boasts record profits, rakes in over $600 million dollars of taxpayer funding, and now it wants the medical supplies that could protect doctors and nurses on the frontline of this pandemic from contracting the virus just so it can keep killing babies.

Perhaps this ruling will serve as a signal to the abortion giant that enough is enough.

Though this is a victory for the moment, this stay is only temporary.

At the ACLJ, we’re mobilizing. We’re preparing to file an amicus brief in the next 36 hours to defend the right of states to prioritize precious medical supplies for the Coronavirus pandemic and treat elective abortions like all elective procedures. Planned Parenthood doesn’t get a free pass for abortion during this pandemic.

The ACLJ continues to monitor developing cases in other states, as now 10 states and counting have issued these no elective procedures rules – that include elective abortions – during this pandemic. We are continuing to update our post here, and our legal team is preparing to engage at the appropriate stage as Planned Parenthood and the abortion industry are filing a flood of new lawsuits even during the Coronavirus pandemic.

04.02.2020 UPDATE: We have just filed our emergency amicus brief in the 5th Circuit Court of Appeals urging it to uphold Texas’ ban on elective abortions during this crisis. As we argue:

[T]he State of Texas has ample authority to weigh the available information concerning COVID-19, and the competing interests of all involved, and conclude that temporarily halting elective procedures will help to save lives. The COVID-19 pandemic is claiming countless lives across the country—and will continue to do so for the foreseeable future—and [Planned Parenthood’s] insistence on continuing to perform elective abortions will undoubtedly limit the necessary resources needed to treat COVID-19 patients. [Planned Parenthood] cannot show that elective abortions are more beneficial to the public interest than adequately treating pandemic patients and protecting healthcare workers. As such, allowing abortions to proceed amidst this crisis, against Governor Abbott’s order, does not fall within a narrow exception to traditional State police powers.

04.03.2020 UPDATE: The ACLJ has just filed our 2nd emergency amicus brief in federal appeals court, this time in the 6th Circuit Court of Appeals defending Ohio’s action to shut down elective abortions as part of its elective procedure ban during this pandemic. We are now quickly preparing to file briefs in more of these cases in the coming days, as Planned Parenthood continues to recklessly file these lawsuits endangering the public.