Arkansas Attorney General Leslie Rutledge

In a 2-1 decision today, the Fifth U.S. Circuit Court of Appeals upheld the Texas attorney general’s interpretation of an executive order limiting non-essential medical procedures to say it bans abortions except to preserve a woman’s life or health.

A district judge blocked that interpretation. But two judges accepted the state’s argument and set the judge’s order aside. They said:

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The bottom line is this: 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,” Judge Duncan and Judge Elrod wrote.

The pretext is that personal protective gear for health workers must be conserved. It’s dishonest. They are unnecessary at clinics that merely dispense pills that produce miscarriages early in pregnancy.

Judge Kyle Dennis, appointed by President Bill Clinton, dissented, writing: “In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care.”

Similar ploys have been used in other states and blocked by other judges. This question appears to be headed to the U.S. Supreme Court. In the meanwhile no abortions will be available in Texas.

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Cheering erupted from Arkansas Attorney General Leslie Rutledge, who joined a group of Republican attorneys general in seeking this outcome. She dishonestly pitched the result this way:

Arkansas Attorney General Leslie Rutledge released a statement following the United States Court of Appeals for the Fifth Circuit’s decision upholding Texas’s Executive Order prohibiting elective procedures—including abortions—to preserve personal protective equipment in the midst of the COVID-19 pandemic. Rutledge signed on to a 16-state brief in support of Texas’s order.

“Our country is experiencing an unprecedented pandemic and states have the duty to conserve resources like personal protective equipment to ensure we deal with this immediate crisis,” said Attorney General Rutledge. “Like all others who perform elective procedures, abortion practitioners must do their part to help us slow the growth of this terrible disease and save Arkansans’ lives.”

This is utter baloney, particularly in the case of non-clinical abortions.

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Rutledge is tougher in Texas than she is in Arkansas. Thank goodness, She deferred to the Health Department yesterday in enforcing a similar executive order about non-essential medical services. The department, while it has always been overly hard in enforcing the many largely useless laws Arkansas has passed to discourage abortions, is not trying to end al operations of the two remaining providers in Arkansas, one of which only offers pharmaceutical abortions in the first 10 weeks of pregnancy. They remain open.