In a decision on Monday, a panel of three judges on the Fifth Circuit Court of Appeals ruled that Texas may be permitted to prohibit medication abortions as part of an effort to prevent the spread of COVID-19 and conserve medical resources.

Last week, the same court allowed the state’s temporary restriction on surgical abortions to remain in place but temporarily blocked the policy limiting medication abortions while it considered whether it is constitutional. According to the two judges on the panel who ruled in favor of Texas earlier this week, the district court that had struck down the policy was wrong to treat medical abortion as an “absolute right.”


“The constitutional right to abortion does not include the right to the abortion method of the woman’s (or the physician’s) choice,” the majority opinion said.

The court determined that the state’s concern for public health was enough justification to temporarily limit abortion procedures, especially given that the policy in question was aimed in part at conserving medical equipment that is in short supply. While abortion providers, in challenging Texas’s policy, asserted that medication abortion doesn’t require personal protective equipment, the Fifth Circuit judges on Monday determined that those providers had failed to show that PPE wouldn’t be required at least for examining a woman seeking such an abortion.

As of earlier this week, eight states were facing legal challenges for having attempted to enact temporary restrictions on elective abortion procedures during the pandemic. So far, district judges have blocked most of those policies. With this decision from the Fifth Circuit, Texas is one of the few states — in addition to those whose policies have not yet faced legal challenge — where abortion will remain classified as a “non-essential” procedure, along with most elective medical procedures, until the pandemic ends.