Apr 7, 2020 by

5th Circuit: Outing Whistleblower Equals Adverse Action ...

4.7.20 – Texas Tribune

“Texas can enforce abortion ban during coronavirus pandemic, federal appeals court rules”

Republican state officials have said barring the procedure in almost all cases is essential for preserving hospital resources during the pandemic…

By Emma Platoff

[COMMENTS FROM DONNA GARNER:  To see who the judges are on the U. S. Fifth Circuit Court of Appeals and what President appointed each, please go to: ]

Excerpts from this article:

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled on Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but…. Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

…On March 22, Gov. Greg Abbott issued an executive order barring any procedures that are not “immediately medically necessary,” and Texas Attorney General Ken Paxton quickly declared that the order applies to any abortions not considered critical to protect the life or health of the parent. A group of abortion providers filed a lawsuit claiming that the order constituted a near-outright ban on abortions and was unconstitutional…

A federal judge in Austin sided with the abortion providers, temporarily blocking the state’s ban because he wrote it “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”

But the 5th Circuit said that judge, U.S. District Judge Lee Yeakel, had erred because his order “[bestowed] on abortion providers a blanket exemption from a generally-applicable emergency public health measure.”

Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

…Abbott’s order is set to expire April 21, but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all-but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.


3.31.20 — “Super News: Fifth Circuit Court Steps in – Abortions Stopped for Now in Texas” — From Donna Garner – —

3.30.20 – “Federal judge temporarily blocks Texas’ ban on abortions during the coronavirus pandemic” – —  

**COMMENTS FROM DONNA GARNER: Gov. Abbott and Texas Attorney General Paxton were prepared for this day. They knew ACLU, Planned Parenthood, and the other pro-abortionists were going to take action to try to keep the abortions coming even during the COVID-19 crisis.  Abortion clinics make multi-millions of dollars each year. They certainly do not want to lose their money stream even during a crisis when there is a dire need for hospital beds and medical professionals to treat COVID-19 patients.  Most abortions are done in outpatient facilities; however, the hospitals must be prepared to receive women who have had botched abortions and who need emergency care for such problems as perforated uteruses or who are dying of sepsis infections.  

I have confidence in both Gov. Abbott and TAG Paxton that they will prove their strong case in court. To see the type of preparation they and their teams have already done, please scan through these two documents:

Link to Texas Attorney General Paxton’s 43-page legal brief filed on 3.30.20:

Link to Gov. Abbott’s Executive Order GA -09 on 3.22.20:

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