A three-judge panel of the federal Fifth Circuit Court of Appeals upheld yesterday the Texas ban on elective abortions during the coronavirus state of emergency. Here’s a link to the text of the decision, which was written by Justice Kyle Duncan. I encourage you to read it. It’s carefully reasoned.

The argument goes like this. The State of Texas banned all non-elective medical procedures (that is, non-necessary) for the duration of this emergency, to free up medical personnel and material to care for COVID patients. Texas says that order entails elective abortions, meaning that non-elective abortions — abortion procedures not necessary to save the life of the mother — are banned temporarily, until the emergency passes. The plaintiffs suing Texas claimed that this is an infringement on the constitutional right to an abortion.

A 2-1 majority on the panel disagreed. It said that under the 1905 Jacobson decision, which had to do with smallpox vaccination, the Supreme Court ruled that the state has the power to override, under certain conditions, an individual’s rights to do with his body what he wants to do. That is, if the community’s right to protect itself in an extraordinary situation. Judge Duncan, writing for the majority, notes that in important abortion rights rulings — Roe, Casey, and Carhart — SCOTUS has cited Jacobson to point out that abortion rights are not absolute, and that the state can, under extreme circumstances, suspend certain liberties. From this week’s ruling:

“[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Jacobson. That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception. See Roe v. Wade (1973) (citing Jacobson); Planned Parenthood v. Casey (1992) (same); Gonzales v. Carhart (2007) (same). {Jacobson governs a state’s emergency restriction of any individual right, not only the right to abortion. The same analysis would apply, for example, to an emergency restriction on gathering in large groups for public worship during an epidemic. See Prince v. Massachusetts (1944) (“The right to practice religion freely does not include liberty to expose the community … to communicable disease.”).} … [And] “[i]t is no part of the function of a court” to decide which measures are “likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at 30….

To be sure, individual rights secured by the Constitution do not disappear during a public health crisis, but the Court plainly stated that rights could be reasonably restricted during those times. Importantly, the Court narrowly described the scope of judicial authority to review rights-claims under these circumstances: review is “only” available

“if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

Elsewhere, the Court similarly described this review as asking whether power had been exercised in an “arbitrary, unreasonable manner,” or through “arbitrary and oppressive” regulations.

Jacobson did emphasize, however, that even an emergency mandate must include a medical exception for “[e]xtreme cases.” Thus, the vaccination mandate could not have applied to an adult where vaccination would exacerbate a “particular condition of his health or body.” In such a case, the judiciary would be “competent to interfere and protect the health and life of the individual concerned.” At the same time, Jacobson disclaimed any judicial power to second-guess the state’s policy choices in crafting emergency public health measures: “Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” … “It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.” ….

Jacobson remains good law. See, e.g., Kansas v. Hendricks (1997) (recognizing Fourteenth Amendment liberties may be restrained even in civil contexts, relying on Jacobson); Hickox v. Christie (D.N.J. 2016) (rejecting, based on Jacobson, a § 1983 lawsuit concerning 80-hour quarantine of nurse returning from treating Ebola patients in Sierra Leone). And, most importantly for the present case, nothing in the Supreme Court’s abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework. Quite the contrary, the Court has consistently cited Jacobson in its abortion decisions….

The ruling goes on to say that the temporary abortion ban is reasonable. Not that it is the correct policy choice, but that it is a reasonable one for the state to make under these circumstances. To be clear: the court is saying, implicitly, that the state may have erred here, but if so, its error is within the proper bounds of the state government to make. To be wrong is not the same thing as to be irrational. As Justice Antonin Scalia said in his 2003 Lawrence dissent, on sodomy laws, he does not believe the Supreme Court has the right to forbid states to abolish sodomy laws, or to compel states to abolish them. That is a power reserved to the states (said Scalia). Similarly, if I’m reading this decision correctly, the three-judge panel said that the plaintiffs asking them to overturn the Texas order did not demonstrate that the harm from the order would be great enough to overcome the Jacobson test. It is not the court’s responsibility to second-guess the state’s call in response to this emergency.

This seems to me like the wisest outcome. I say that not because I’m pro-life (though I am), but because it makes sense. Elective abortion is a medical procedure, neither a life-saving operation nor a sacrament. I do want to point out, though, that under the Jacobson ruling, Christians who claim to possess an absolute First Amendment right to gather for worship during this pandemic, in violation of a state order, would almost certainly lose if taken to court. This also seems reasonable to me.

Interestingly, the two judges who votes in the majority are Republican appointees (Trump’s, in the case of Duncan, and G.W. Bush’s, in the case of Judge Jennifer Walker Elrod); the dissenting judge is a Clinton appointee. Elections matter.