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Courts reject Lee’s abortion-related order backed by ERLC

NASHVILLE (BP) — Abortion rights organizations have the upper hand so far in their legal challenge to Tennessee Gov. Bill Lee’s order postponing elective medical procedures during the COVID-19 pandemic.

A divided panel of the Sixth Circuit Court of Appeals in Cincinnati upheld April 24 a federal judge’s preliminary injunction blocking abortion procedures from being included in Lee’s order. The state has asked the full Sixth Circuit panel to reconsider the decision. Under the governor’s order, however, elective procedures will resume May 1.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC) had urged the Sixth Circuit to reverse the lower court’s ruling and restore elective abortion in Lee’s postponement of nonessential procedures. In an April 23 friend-of-the-court brief, the ERLC said Tennessee’s need to combat the coronavirus pandemic meant the governor’s order did not impose an “undue burden” on a woman’s right to an abortion.

The ERLC expressed dismay over the Sixth Circuit’s decision.

“While everyone else wants to save lives, the abortion industry in Tennessee wants to continue profiting by ending life,” ERLC Chief of Staff Brent Leatherwood said in written comments. “Women and families deserve access to medical care, especially during a pandemic, but abortion clinics don’t provide that.

“In fact, they place women in danger, as is evident in the stories of the Supreme Court case June Medical Services v. Russo,” Leatherwood said in reference to a case from Louisiana still before the high court. “Governor Bill Lee and the State of Tennessee were right to pause all nonessential medical procedures to conserve equipment. It’s difficult to think of a procedure more nonessential than one that takes a human life.”

Lee was one of several governors to include abortion among elective medical procedures delayed in the effort to prevent the spread of the coronavirus and to free personal protective equipment for healthcare workers. Planned Parenthood Federation of America, the country’s No. 1 abortion provider, and other abortion rights organizations have challenged such orders and, in some cases, refused to abide by them. Other states have exempted abortions from orders suspending nonessential procedures.

A divided panel of the Fifth Circuit Court of Appeals in New Orleans overturned a federal judge’s opinion that removed all abortions from Texas Gov. Greg Abbott’s order postponing nonessential procedures through April 21. In other cases, courts have rejected similar state orders that included abortions among nonessential procedures.

Planned Parenthood Federation of America, the Center for Reproductive Rights and the American Civil Liberties Union brought suit against Lee’s order, and Bernard Friedman — a federal judge in Michigan — ruled in their favor April 17.

In his opinion, Friedman described abortion as “a time-sensitive procedure” that could result in “progressively greater health risks” or the loss of the right to the procedure if delayed, according to The Tennessean.

Alexis McGill Johnson, acting president of Planned Parenthood, applauded Friedman’s opinion, saying, in written remarks, “Abortion is essential, it’s time-sensitive, and it cannot wait.”

In a 2-1 decision, the Sixth Circuit panel affirmed Friedman’s opinion. Judge Karen Nelson Moore said the majority found “the affront the Governor of Tennessee will suffer from having one small part of a limited-duration executive order enjoined (which itself is just one piece of a much more comprehensive state policy) is far outweighed by the harm the individual Tennessee women affected by that order will suffer if it is given full effect.”

The Sixth Circuit panel, however, directed Friedman to limit his order to women who, in the judgment of the abortion provider, will lose their ability to undergo abortions or will require more complicated or two-day procedures if they are postponed beyond April 30. Friedman amended his injunction in keeping with the directive April 27.

The ERLC’s brief, written by Alliance Defending Freedom staff lawyers, contended Lee’s order does not violate the Supreme Court’s “undue burden” standard regarding abortion rights because its purpose “is to protect public health in a time of national crisis, not to restrict abortion. It applies to all elective medical procedures, not just elective abortions.”

Abortion providers seek special treatment that churches and others with “fundamental constitutional rights” are not claiming during the pandemic, the ERLC brief said. Churches throughout the state “have temporarily halted public worship services to prevent the spread of COVID-19,” according to the brief.

The brief quoted the 2000 Baptist Faith and Message, the Southern Baptist Convention’s confession of faith, regarding Sunday: “[T]he first day of the week is the Lord’s Day. … It commemorates the resurrection of Christ from the dead and should include exercises of worship and spiritual devotion.”

The ERLC brief also said the abortion rights organizations that brought suit lack legal standing. Their interest in escaping Lee’s order “conflicts with women’s interests in protecting their health and the health of every other Tennessean,” according to the brief.

On March 24, ERLC President Russell Moore and more than 50 other pro-life leaders urged public health officials to act to prevent the promotion of abortion during the coronavirus crisis. In the letter, leaders said discontinuing abortions would save limited personal protective equipment for frontline medical workers and keep women who may experience post-abortion complications from requiring care from overtaxed health care systems.