Texas AG expects abortion ban will reach Supreme Court

As coronavirus cases continue to climb in the U.S., another public health crisis is brewing. State officials in the South and Midwest have banned most abortions amid the pandemic, arguing the action is necessary to free up resources to fight the virus. On Tuesday, a federal appeals court allowed Texas to continue its near-total ban on the procedure.

In an exclusive interview with CBS News, Texas Attorney General Ken Paxton said he’s committed to defending the state’s near-total ban on abortion all the way to the Supreme Court. Two weeks ago, Paxton issued guidance that abortion services were included in the Governor’s temporary suspension of “non-essential” procedures in an effort to shore up medical resources needed to fight the coronavirus outbreak.

“My guess is it’ll go to the Supreme Court either way,” Paxton told CBS News last week. “We’ll either appeal it or Planned Parenthood will appeal it, so my guess is that’s where it ends up.”

Since Paxton’s guidance was issued, nearly all abortions in the state have been halted, except when the life or health of the patient is at risk. The ban was briefly lifted last week when a lower court ruled the suspension of abortion services was unconstitutional. But less than 24 hours later, a three-judge panel in the Fifth Circuit Court of Appeals reversed that decision, allowing the ban to go back into effect. It’s the first time abortion has been mostly unavailable in a state since Roe v. Wade, the 1973 Supreme Court decision that legalized the procedure.

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

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

The following is a transcript of CBS News’ interview with Paxton. It has been edited for style and clarity.
 
CBS News reporter Kate Smith: Last week the governor of Texas issued an order that all medical procedures that are nonessential are to be suspended amid the COVID-19 crisis. Later, your office came out with guidance that it includes abortion. Can you tell me what those days were like leading up to your press release?
 
Texas Attorney General Ken Paxton: Executive orders are issued by the Governor. We often work with them in crafting those but ultimately it’s their decision in how they want to word it and exactly what they’re trying to accomplish. Once that was issued, we put out our own press release making sure people understood that it related to all elective services and there were no exceptions based on the Governor’s Executive Order. This is his job and his job alone to decide what those orders are.
 
What made you believe that abortion would not have been included for elective procedures?
 
We just wanted to make sure that 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 maybe people wouldn’t commonly think of as being covered by this. So we were just trying to make sure. We didn’t cover every base but we tried to cover some of the bases we weren’t sure people would understand may be part of this.
 
What’s some of the reactions you’ve gotten since that press release came out?
 
Actually it’s been positive. Obviously it’s difficult for people to comply with a lot of what’s going on right now so a lot of people are going to need help with those elective procedures as soon as this is over. But the reality is we’ve had no real pushback other than from groups like Planned Parenthood who want to be exempted, be the sole groups exempted from these services.
 
Abortion, unlike dental procedures, is protected by the Constitution, so why is a temporary ban on abortion not considered unconstitutional?
 
The governor’s order deals with all elective procedures, so it wasn’t like he singled out abortion services, he didn’t single out anybody. This covers every single elective service. We’re in a period of crisis and the governor is operating under different powers than he normally would operate under during normal times.
 
But abortion is protected by the Constitution. Why wouldn’t this be unconstitutional?
 
Because the governor has the authority right now under these powers to limit elective procedures. Now if the life of the mother is involved or the life of the baby, this wouldn’t apply. They’re being treated just like any other provider. There definitely would be a due process claim if they were being treated differently, but in this case they’re being treated just like everybody else and, of course, they’re trying to find a way to be treated differently than everybody else.
 
The heart of the issue is whether or not abortion is considered elective. Many people don’t consider it elective. What is your response to that?
 
They always claimed it was a choice. They’re the ones who have always said that it is elective, so by their very own definitions, the way they phrase their own terminology and definition, it’s always been a choice and today is no different. They’ve been claiming that for years and years and years. They’ve claimed that this is all about choice, so clearly there is a lot of election involved in this and it is a choice and today’s no different.
 
There are many people in the state of Texas who are simply going out of state or doing it themselves. 
 
The reality is, it’s the law in Texas. We have different laws in Texas than in other states and people are certainly able and if they want to, they can move to other states or go to other states, there’s nothing preventing them from doing that.
 
But wouldn’t someone going to another state and defying stay-at-home orders, wouldn’t that spread COVID-19 more than going into a clinic locally?
 
Well, I don’t control people moving around in general. People have to make decisions about what they’re going to do every day — whether they’re going to go to the grocery store, whether they’re going to violate certain orders. It’s really a choice for people to make every day. We don’t watch everybody in our state, they get to make their own decisions about how they’re going to respond to any particular law or any particular order.
 
Women in Texas — and I’ve spoken to many of them — they are leaving the state. They’re violating stay-at-home orders 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’re in contradiction of one another.
 
I think you could say that in general about every part of this. Every executive order has some consequences that has some negative ramifications and that’s true in this case as well. There’s always going to be difficulties. We’re talking about a crisis. We’re 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 have decided to travel, you know, they’re making their own decisions and they can do that.
 
This is a battle that looks like it could go to the Supreme Court. Is that something you would do if the Fifth District does not give you the ability to enforce this ban?
 
My guess is it’ll go to the Supreme Court either way. We’ll either appeal it or Planned Parenthood will appeal it, so my guess is that’s where it ends up.
 
You’re expecting to go to the Supreme Court with this?
 
You know, it wouldn’t surprise me. They have a really busy schedule right now. They’ve canceled several hearings so I don’t know how it would fit in, but it would not surprise me, if there is an appeal to the Supreme Court, whether they’ll take it or not, we’ll just have to see. 
 
There are many women that I’ve spoken to who are very disappointed and disheartened that they’re not able to receive an abortion right now. What is your message to those women?
 
I’d say, look we’re in a very unusual time. The Governor has made a decision about elective procedures and trying to protect human life. It’s not an easy decision, it affects a lot of people’s lives in a negative way and I’m sad that it happens to these women. I’m sad that it happens to people that are suffering from all kinds of different maladies but it’s just the reality of where we’re at. We’re in a time that nobody has ever experienced before, so I think our Governor and a lot of elected officials across the country, they’re doing their best to take care of people and make sure that we save as many lives as possible.
 
Your state, in conjunction with many of the other states that temporarily banned abortion amid the coronavirus crisis, are states that have historically passed restrictions on abortion. Is there a connection between those two things?
 
There wasn’t in this case. The elective procedures weren’t contemplated to affect a particular class of people looking for health care. And it’s obviously a very extreme remedy to deal with a serious illness and so… Look, we’re in unprecedented times and I think it’s hard to be critical of elected officials who are just doing their very best to save people’s lives.
 
Do you consider yourself “pro-life”?
 
I’ve always considered myself pro-life, at least from probably college on.