“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
On March 31, Trump Fifth Circuit judge Kyle Duncan cast the deciding vote to reverse a district court and allow a Texas order to go into effect banning abortions due to the coronavirus. The court is to look again at the issue after briefing on April 1. Judge James Dennis strongly dissented, noting that a lower court judge had found that allowing the ban to take effect would cause “irreparable harm.” The case is In re Abbott.
Texas is one of several states that, using the coronavirus pandemic as an excuse, has tried to ban abortions as a procedure that is not “medically necessary.” The order by Texas Governor Greg Abbott is among the most harsh, applying to any abortion that is not “medically necessary to preserve the life or health of the mother” and threatening 180 days jail time or a $1,000 fine for any abortion provider that disobeys.
A federal district judge in Texas issued a temporary restraining order against the ban, but the state sought a writ of mandamus with the Fifth Circuit to stay the judge’s order. Duncan was the deciding vote in an unsigned order that granted the stay requested by the state “until further order of this court” as the judges consider the case. Additional papers are to be filed on April 1 and further orders may come from the court after that.
Judge James Dennis sharply disagreed, explaining that the district court had already found that “irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time.” The National Women’s Law Center has called the Texas order and the ruling “unconscionable” and an effort to politicize health care “while the country scrambles to respond to a public health crisis.”