SAN ANTONIO — Abortion providers struggled to understand what they could legally do in Texas after the state's attorney general ordered abortions to stop during a coronavirus-related public health emergency, deeming them unnecessary medical procedures.
Texas Gov. Greg Abbott (R) signed an executive order on Sunday delaying all elective medical and dental procedures to free up beds and equipment to fight the spread of the novel coronavirus, but it did not mention abortions. Monday, Texas Attorney General Ken Paxton (R) issued a stern warning to abortion providers that they were included in the prohibition.
In a statement, Paxton said the directive applies to any surgery or procedure that is not immediately necessary, including “any type of abortion that is not medically necessary to preserve the life or health of the mother.” He said anyone who violates the order could be fined or jailed.
Maryland, Massachusetts and Washington state advised against delaying abortions during the pandemic, setting up a potential fight over the reach of emergency powers to define what is medically necessary.
Paxton’s declaration opened a new battle in an old and long war over abortion rights in the Lone Star State that dates to 1970 and Roe v. Wade, which was filed in Dallas County.
The fight to restrict abortion in Texas has accelerated in recent years under the Republican-controlled legislature, which since 2011 has passed a battery of laws that abortion rights advocates say has had the cumulative effect of barring access to the procedure and violating the constitutional rights of women. The U.S. Supreme Court in 2016 struck down a Texas law that would have required physicians to have admitting privileges at local hospitals.
Abortion rights advocates said Texas leaders are taking advantage of a public health crisis to forge ahead on an ideologically driven agenda. The American College of Obstetricians and Gynecologists said last week the procedure is essential because of its time sensitivity and potential consequences on a woman’s health and well-being.
“Having the antiabortion politicians in Texas go against what experts say is pretty irresponsible,” said Aimee Arrambide of the advocacy group NARAL Pro-Choice Texas. “They have been trying to ban abortions for the past 10 years, and they do it under the guise of health and safety but ignore experts and doctor recommendations. This is no different.”
National antiabortion groups have been urging public officials across the country to use their emergency powers to stop abortion providers from depleting health-care resources and supplies such as masks and gowns. Texas activists applauded Paxton’s stand, arguing the elective nature of the procedure makes it unnecessary, except in rare cases.
“Abortion does not involve saving the actual life of a patient or treating a patient with coronavirus,” said Joe Pojman, executive director of the Texas Alliance for Life. “Providers needed to be reminded that they are not above the law . . . and they need to come in line with the crisis that Texas is facing.”
Texas abortion providers said they have been scaling back their operations for weeks to protect their staffs as the virus advanced and more cases were reported statewide. Some doctors who travel to perform the procedure have been staying home under federal recommendations to avoid contact with others, and clinics cut the number of patients to maintain social distancing.
The declining supply of protective equipment such as gloves, gowns and masks puts pressure on abortion clinics to help relieve the weight on overburdened health-care systems. Before the Texas executive order, providers were already preparing for some clinics to shut down.
Janet Porter, founder of the antiabortion group Created Equal, said abortion providers cannot be exempt from regulations ending elective procedures.
“There can be no sacred cows in a pandemic,” she said. “We’ve heard all about choice. Well, choice is elective. They are putting lives at risk and need to follow the same directives as everyone else.”
The directive has put new pressure on a dwindling number of Texas providers to send their patients out of state for care as travel restrictions grow tighter. But it has also confounded providers, who are seeking legal advice about whether to suspend their operations entirely or continue to supply services such as medication abortion.
“Emergency actions during a global pandemic should advance health and safety for us all, not force people to delay much-needed care and possibly exacerbate their health situations by doing so,” said Amy Hagstrom Miller, chief executive of Whole Women’s Health, which has three Texas locations. About 150 patients were being diverted and rescheduled since Paxton promised to prosecute, she said.
Under Texas law, women must make multiple visits to a provider to obtain an abortion, as well as receive an ultrasound to hear the fetal heartbeat and counseling discouraging the procedure.
“There have been repeated legislative measures that have contributed to the unraveling of the reproductive rights safety net,” said Kari White, an associate professor and investigator with the Texas Policy Evaluation Project at the University of Texas in Austin.
