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Legal Experts Deride Fifth Circuit For Allowing Abortion Ban as Part of COVID-19 Restrictions

Texas Attorney General Ken Paxton

A panel of three federal appeals court judges ruled 2-1 on Tuesday that Texas can legally enforce its restrictions on abortion access as part of a state measure to prevent the spread of the COVID-19 coronavirus.  The effective state ban postpones elective non-urgent surgical procedures. The Fifth Circuit Court of Appeals panel ruled that Attorney General Ken Paxton’s order — classifying abortions as not “medically necessary to preserve the life or health” of the patient as “non-essential” — was constitutional for the purposes of a writ of mandamus. Several legal experts denounced the court, alleging that the decision was an exercise in bad faith, particularly when contrasted against another conservative court’s Monday decision preventing Wisconsin’s elections from being postponed.

University of Michigan Law professor Leah Litman and Slate columnist Mark Joseph Stein both pointed out that the decision was penned by U.S. Circuit Judge Stuart Kyle Duncan. Prior to being appointed by President Donald Trump, Duncan was general counsel at the Becket Fund for Religious Liberty where he played a leading role in dismantling the Affordable Care Act’s contraceptive insurance mandate, opposed marriage equality, and defended Alabama’s attempt to strip a lesbian of parental rights over her adopted child.

“Totally shocking that Judge Stuart Kyle Duncan (nominated by Trump to CA5 after a career defending discrimination against LGBT.m individuals) would refuse to apply the Courts abortion cases and allow states to use the pandemic to prevent women from getting abortions!!!,” Litman sarcastically wrote.

Stern criticized the decision as “cruel and snide” before directing people to read about a decision he wrote earlier this year in which he theatrically refused to refer to a transgender inmate by her preferred gender pronoun.

“Trump Judge Kyle Duncan, the author of today’s abortion decision, is also famous for denying a trans woman’s request to be addressed as a woman,” he wrote. “Only read his cruel and snide decision if you have a strong stomach.”

Former federal prosecutor Christopher C. Alberto said the decision should leave all Americans “very concerned.”

“With a pandemic in place, Trumpers can mandate what a woman does with her body,” he wrote. “The core constitutional rationale for Roe v. Wade is the right to privacy from government intrusion. All Americans should be very concerned.”

Attorney and justice correspondent for The Nation Elie Mystal also said the decision was not made in good faith.

“To recap, according to Republicans, COVID-19 is not a good reason to let people send in absentee ballots a day late… but it IS a good reason to violate constitutional rights and ban women from having abortions,” he wrote. “If you think Republican jurists are acting in good faith throughout this crisis you are either complicit in their evil, willfully ignorant of their evil, or foolishly trying to preserve ‘both side’ credibility so [the Federalist Society] doesn’t howl when you are up for a job in the future.”

[image via Gabriel Aponte/Getty Images for Concordia Summit]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.