By Tank Murdoch @TheNatSent

(TNS) Responses and actions taken in regard to the outbreak of coronavirus by state and local governments are going to be case studies in constitutional law for some time to come, we predict.

Such as this one: Does a governor have the authority to ban abortions by deeming them “elective medical procedures” following an emergency declaration involving a health crisis?

Federal judges are saying ‘no.’

As reported by The Hill:

Two federal judges on Monday temporarily blocked Texas, Ohio and Alabama from enforcing a ban on abortions as part of their response to the coronavirus pandemic.

U.S. District Judge Lee Yeakel wrote in an opinion Monday afternoon that the ban in Texas, which state officials say is intended to conserve medical supplies, is likely unconstitutional.

“Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” he wrote in his order authorizing a temporary restraining order. 


Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic. 

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Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure. …

Abbott’s order didn’t specifically lay out which procedures are nonessential. But state Attorney General Ken Paxton (R) later said that abortion is a nonessential procedure that should be halted during the outbreak, leading clinics in the state to cancel appointments or face criminal penalties and fines.

Paxton’s interpretation of Abbott’s directive “amounts to a pre-viability ban, which contravenes Supreme Court precedent,” including Roe v. Wade, the landmark ruling that established a woman’s right to an abortion, Yeakel wrote. …

Hours after Yeakel’s opinion was issued, U.S. District Judge Michael Barrett issued a temporary restraining order in Ohio, writing that enforcement would create “a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access.”

“The benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care,” the judge added.

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So, are we hearing this right — governors can ban our constitutionally-protected and guaranteed right to assembly? They can ban us from gathering together in our houses of worship? They can ban us from freely traveling through our states or our country? They can ban us from purchasing a gun as part of our right to keep and bear arms for self-defense? All of which are being implemented, we’re told, to ‘stop the spread of the virus.’

But they can’t designate abortions elective medical procedures and ban them temporarily as a means of limiting the virus’ spread?

Something sure seems amiss here, doesn’t it? How can there be a “constitutional right” to a medical procedure that isn’t specifically listed in our founding document during a crisis, but no “constitutional right” to those that are?

There’s also this: Laws passed over the years by Congress give tremendous authority to state governors during times of crisis and emergency. If governors’ decrees that abortion is ‘non-essential’ during a health crisis are not valid, then that would mean the general authorities given to them by those post-9/11 statutes aren’t valid, either.

Or are we looking at another instance of courts cherry-picking statutes and constitutional rights to suit personal beliefs and/or political agendas? We need clarification.


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