Money Management

Texas attorney general said he expects coronavirus abortion ban to reach Supreme Court

As coronavirus case continue to climb in the United States, another public health crisis is brewing. Southern and Midwestern state officials have banned most abortions amid the pandemic, arguing action is needed to free up resources to fight the virus. Tuesday, a federal appeals court allowed Texas to continue its almost total ban on the procedure.

In an exclusive interview with CBS News, Texas Attorney General Ken Paxton said he is committed to defending the state’s near-total abortion ban all the way to the Supreme Court. Two weeks ago, Paxton Posted indications that abortion services have been included in the governor’s temporary suspension of “non-essential” procedures in a bid to bolster the medical resources needed to tackle the coronavirus outbreak.

“I guess it will go to the Supreme Court anyway,” Paxton told CBS News last week. “We’re either going to appeal or Planned Parenthood will appeal, so I guess that’s where it ends.”

Since the Paxton guidelines were issued, nearly all abortions in the state have been halted except when the patient’s life or health is in danger. The ban was briefly up last week, when a lower court ruled that the suspension of abortion services was unconstitutional. But less than 24 hours later, a panel of three judges from the Fifth Circuit Court of Appeal reversed this decision, allowing the ban to take effect. This is the first time that abortion has been virtually unavailable in a state since Roe v. Wade, the 1973 Supreme Court ruling that legalized the procedure.

A coalition of abortion rights advocates – which includes Planned Parenthood, the Center for Reproductive Rights and the Lawyer Project – challenged the near-total ban on behalf of a handful of abortion providers in the state. Meanwhile, patients from Texas have fled to neighboring states to get the procedure, according to interviews with nearly two dozen women.

Texas is among the five states facing legal battles to restrict access to abortion during the pandemic, and the most advanced in the legal process. In one sweep Legal filings last week, a coalition of abortion rights groups challenged similar bans in Alabama, Iowa, Ohio and Oklahoma. So far, judges have ordered the bans in Alabama, Ohio and Oklahoma to be at least partially lifted.

The following is a transcript of the CBS News interview with Paxton. It has been edited for style and clarity.

CBS News reporter Kate Smith: Last week, the governor of Texas ordered the suspension of all non-essential medical procedures amid the COVID-19 crisis. Later, your office announced that this included abortion. Can you tell me what those days looked like before your press release?

Texas Attorney General Ken Paxton: Executive decrees are issued by the governor. We often work with them to design them, but ultimately it’s up to them to decide how they want to phrase it and exactly what they’re trying to accomplish. Once that was published, we issued our own press release to make sure people understood that it applied to all elective services and that there were no exceptions based on the governor’s decree. It is his job and his job alone to decide what these commands are.

What made you believe that abortion would not have been included in the elective procedures?

We just wanted to make sure people understood that they were, and we didn’t just include abortion. If you look at the original press release, we talked about dental services because we weren’t sure if people would understand that. We also talked about orthopedic services, we talked about dermatology services, things that people might not generally think of as covered by this. So we were just trying to make sure. We haven’t covered all the bases, but we have tried to cover some of the bases that we weren’t sure people understood could be part of this.

What reactions have you had since the publication of this press release?

In fact, it is positive. Obviously, it is difficult for people to comply with much of what is going on right now, so many people will need help with these elective procedures as soon as this is over. But the reality is that we haven’t had any real hindsight other than from groups like Planned Parenthood who want to be exempt, to be the only groups exempt from these services.

Abortion, unlike dental procedures, is constitutionally protected, so why isn’t a temporary ban on abortion considered unconstitutional?

The governor’s order deals with all elective procedures, so it wasn’t like he chose abortion services, it didn’t choose anyone. This covers every optional service. We are in a period of crisis and the governor is operating under different powers than he would normally have in normal times.

But abortion is constitutionally protected. Why would that not be unconstitutional?

Because the governor currently has the power, under those powers, to limit elective procedures. Now, if the life of the mother is involved or the life of the baby, that wouldn’t apply. They are treated like any other supplier. There would certainly be a due process if they were treated differently, but in this case they are treated like everyone else and of course they are trying to find a way to be treated differently from others.

The heart of the matter is whether or not abortion is considered elective. A lot of people don’t see it as elective. What’s your response to that?

They always pretended it was a choice. They are the ones who always said it was optional, so according to their own definitions, the way they formulate their own terminology and definition, it has always been a choice and today is no different. They’ve been claiming this for years and years and years. They claimed it was all about choice, so it’s clear that there are a lot of elections involved in that and it’s a choice and it’s no different today.

There are a lot of people in the state of Texas who just go out of the state or do it themselves.

The reality is that it is the law in Texas. We have different laws in Texas and other states and people are certainly capable and if they want to, they can move to other states or go to other states, nothing prevents them from doing that.

But wouldn’t someone go to another state and defy stay-at-home orders, wouldn’t that spread COVID-19 more than going to a clinic locally?

Well, I don’t control people who are generally on the move. People have to make decisions about what they’re going to do each day – whether they’re going to the grocery store, whether they’re going to break certain orders. It really is a choice that people have to make every day. We don’t monitor everyone in our state, they make their own decisions about how they are going to respond to a particular law or order.

The women of Texas – and I’ve spoken to a lot of them – are leaving the state. They’re breaking orders to stay home to get an abortion anyway. Even though, the idea of [the temporary ban on abortion] is to stop the spread of COVID-19. It seems they are at odds with each other.

I think you could say that in general about every part of it. Each decree has consequences which have negative ramifications and this is also true in this case. There will always be difficulties. We are talking about a crisis. We are talking about people dying. We’re trying to save lives, that’s what the governor is trying to do, he’s trying to save lives. And the fact that these women decided to travel, you know, they make their own decisions and they can do it.

It is a battle that seems to go all the way to the Supreme Court. Is this something you would do if the Fifth District did not give you the option to enforce this ban?

I guess it will go to the Supreme Court anyway. We’re either going to appeal or Planned Parenthood will appeal, so I guess that’s where it ends.

Do you expect to go to Supreme Court with that?

You know, that wouldn’t surprise me. They have a very busy schedule right now. They canceled several hearings so I don’t know how that would fit in, but it wouldn’t surprise me, if there is an appeal to the Supreme Court whether they take it or not, we’ll just have to see.

There are a lot of women I have spoken to who are very disappointed and disheartened that they cannot have an abortion right now. What is your message to these women?

I would say, listen, this is a very unusual time. The governor made a decision regarding elective procedures and attempts to protect human life. It is not an easy decision, it negatively affects the lives of many people and I am sad that it is happening to these women. I’m sad that this happens to people with all kinds of different illnesses, but that’s just the reality of where we are at. We are in a time that no one has ever known before, so I think our governor and many elected officials across the country, they are doing their best to take care of the people and make sure that we save as many lives as possible.

Your state, along with many other states that have temporarily banned abortion amid the coronavirus crisis, are states that have historically enacted restrictions on abortion. Is there a connection between these two things?

There was none in this case. Elective procedures were not considered to affect a particular category of people seeking health care. And that’s obviously a very extreme remedy for dealing with serious illness and so… Look, we’re in an unprecedented time and I think it’s hard to criticize elected officials who are doing their best to save lives.

Do you consider yourself “pro-life”?

I’ve always considered myself pro-life, at least probably since college.