From some media accounts of yesterday’s Fifth Circuit ruling, you might be misled into thinking that Texas governor Greg Abbott’s executive order, GA-09, targets abortion. But as the Fifth Circuit majority explains (my underlining):
GA-09 applies to a whole host of medical procedures and regulates abortions evenhandedly with those other procedures. The order itself does not even mention abortion—or any other particular procedure—at all. Instead, it refers broadly to “all surgeries or procedures” that meet its criteria. Respondents point to no evidence that GA-09 applies any differently to abortions than to any other procedure. Nor do they cite any comparable procedures that are exempt from GA-09’s requirements. On the other hand, Petitioners produce evidence that myriad other procedures are affected just as abortions are. For example, Petitioners offer a declaration from Dr. Timothy Harstad, M.D., who testified that some cosmetic, bariatric, orthopedic, and gynecologic procedures “are being suspended” alongside abortions. Petitioners also point to the fact that the Centers for Medicare & Medicaid Services have recommended postponing several other critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures for low-risk patients. This evidence undermines Respondents’ contention that GA-09 exploits the present crisis to ban abortion.
As the majority points out, GA-09 “only delays certain non-essential abortions,” and it “includes an emergency exception for the mother’s life and health, based on the determination of the administering physician.” In short, far from targeting abortion, it treats abortion just like any other medical procedure.
Might delay present some additional risk, short of the emergency exception, to women who seek abortion? Sure—just as postponement of “critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures” entails some additional risk to the patients seeking them. And just as Henning Jacobson, the plaintiff in Jacobson v. Massachusetts, faced some additional risk from the smallpox vaccination he objected to. But what possible reason is there to believe that abortion must be elevated above all other medical procedures? As the panel majority explains, Roe and Casey don’t compel that result.