Photo credit: Eddie Gaspar/The Texas Tribune
The spread of coronavirus and the COVID-19 pandemic that came with it has raised countless problems in the areas of education, public health, economic policy, elections, and more. An additional issue overlaying all of these has been the scope of governors’ authority to address them on a state-wide basis.
Connecticut Governor Ned Lamont, for example, was sued for his executive order requiring people to wear a cloth mask when in public spaces in Connecticut; religious groups in Kansas, California, and Kentucky are suing their respective governors to challenge their social-distancing orders as applied to religious services; and Gretchen Whitmer, the governor of Michigan, was sued by residents and businesses for her stay-at-home order.
Among this wave of litigation against governors’ orders, there’s something that sets the orders of Texas Governor Greg Abbott apart from the rest: political opportunism.
Governor Abbott’s challenged orders were a temporary statewide ban on abortions and restrictions on who can recieve and be released on personal bond from detention, including pre-trial detention. In stark contrast to the orders of his peers, which were generally in furtherance of social-distancing guidelines put forth by the CDC, Abbott’s go against recommended measures to promote public health during the pandemic. This is in spite of the fact that he cites the virus as the reason for issuing them.
First came the order banning abortions in the state, as part of a more broad restriction on procedures that are not “medically necessary,” citing a need to preserve hospital beds and personal protective equipment (PPE) for health workers treating COVID-19 patients. The problem with this, as the plaintiffs point out, is that the order applies to medication abortions, which comprise around 40% of all abortion procedures (though reports indicate the percentage would be much higher if the U.S. adopted less stringent regulations of the drug used in the procedure, in line with European countries). A medication abortion is when a patient is given a pill which has the effect of inducing a miscarriage; it is often taken in the patient’s own home, and normally does not requre administration by a physician or the use of PPE. Indeed, in the current pandemic, medication abortion can be administered via telehealth. The plaintiffs explain that abortion would be the only telehealth procedure affected by this order, making it highly suspect that inclusion of abortion services is a good faith effort to tackle PPE shortages in the state.
In fact, applying Abbott’s order to abortion services has resulted in less safe practices as measured by the CDC guidelines he purports to rely on. Abortion providers in the neighboring states of Colorado, New Mexico, and Nevada report seven times as many abortion patients coming from Texas since the order went into effect. This sort of travel is precisely what the CDC recommends avoiding. Even given these trends, Abbott has doubled-down and continues to litigate the issue in federal court.
Next came the order removing personal bond eligibility for numerous classes of detained persons. Normally, judges are able to determine eligibility for a personal bond during the accused’s bail hearing, based on their assessment of the person’s flight risk, whether there is a risk of physical violence, and other factors. Some of these determinations are also codified in criminal statutes from the state legislature. If the judge determines the individual is eligible for a personal bond, within the bounds of state statutes, that person can be released from detention by signing an agreement that they will return for the trial proceedings or face possible penalties. With his order, Governor Abbott removed that discretion from judges, and attempted to supersede the laws created by the state legislature. It remains to be seen whether the Texas Supreme Court will find for the plaintiffs in a recent lawsuit claiming the order is unconstitutional.
The thing that sets this second order apart from those of his peers in other states is that, like the order halting abortions, it does nothing to further health guidelines, and in fact has the exact opposite effect. Judges around the country have reportedly been using their discretion to try to reduce the number of people detained–by releasing them on personal bonds. They are doing so in recognition of the functional impossibility of following social distancing in prisons and jails. Releasing detained individuals may well be the only way to stop devastating rates of COVID-19 spread to detainees and the people who work in the facilities. In Texas, there are already reports of the virus’ spread in Harris and Dallas county jails, as well as state prisons and a juvenile detention center.
The executive orders from Abbott are categorically different from orders from other state governors. Although all of the orders described above are being challenged in court, Abbott’s stand out for having little to nothing to do with enforcing CDC guidance. Instead, he seems to be using the crisis to focus on hot-button political issues.
There is a saying amongst lawyers and law students that “hard cases make bad law.” This is in reference to the tendency of courts to issue rulings that may be the best resolution for the particularly complex or compelling circumstances in front of them, but which set harmful legal precedent for future cases. In such tumultuous times, the courts have been filled to the brim with hard cases–a fact Greg Abbott is surely keenly aware of.