Court Refuses Stay of COVID-19 Abortion Injunction

COVID-19 is showing its across-the-board implications and triggering quick action from courts.  Though the high-profile abortion case of Robinson v. Attorney General, Alabama, 2020 WL 1952370 (11th Cir. Apr. 23, 2020), might not ordinarily be featured in this blog, the case represents the first round of COVID-19 cases to make its way up to the Eleventh Circuit and highlights the court’s alacrity in responding to issues tied to the crisis.

After the Governor of Alabama postponed “all dental, medical, or surgical procedures” except for emergencies and those “necessary to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment,” abortion providers were unsure whether they could conduct abortions.  Nervous about being prosecuted for exercising their medical judgment, they reached out to the Alabama Department of Public Health for guidance.  The Attorney General responded:  “[W]e are unable to provide . . . a blanket affirmation that abortions will, in every case, fall within one of the exemptions.”  With this lack of clarification, the abortion providers sought a temporary restraining order preventing enforcement of the order as applied to pre-viability abortions, in a suit that was already ongoing between the parties.

After the Attorney General several times changed his position regarding which abortions were and were not prohibited by the order, the district court ultimately issued a limited preliminary injunction, prohibiting the state from failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors, including whether the patient would lose her legal right to obtain an abortion if delayed until expiration of the public health order.

The state appealed, filing an emergency motion to stay the preliminary injunction.  In a decision before Judges Martin, Rosenbaum, and Jordan, the Eleventh Circuit unsurprisingly denied the motion to stay, which was the only subject of this opinion, and expedited the appeal.

Posted by Keith Emanuel.

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