Off the Kuff Rotating Header Image

April 15th, 2020:

Fifth Circuit allows medical abortions to proceed

Well, this is a pleasant surprise.

Right there with them

A federal appeals court on Monday blocked Texas from enforcing a ban on medication-induced abortions as part of the state’s curbs on certain medical procedures during the coronavirus pandemic.

As a result of fast-moving litigation over Texas’s abortion restrictions, women seeking to terminate an unwanted pregnancy may do so through the use of medicine, but only women nearing their 22nd week of pregnancy may undergo a surgical abortion.

In its Monday ruling, the 5th Circuit Court of Appeals said it sided against Texas because it was unclear if the state’s public health order halting nonessential medical procedures applied to medication-induced abortions.

“[Abortion providers] argue that medication abortions are not covered by [the order] because neither dispensing medication nor ancillary diagnostic elements, such as a physical examination or ultrasound, qualify as ‘procedures,’” the three-judge panel wrote.

“Given the ambiguity in the record, we conclude on the briefing and record before us that [Texas officials] have not made the requisite strong showing [necessary for] relief,” the panel said.

The panel’s decision partially reinstates a lower court ruling that limited the Texas health order’s impact on abortions.

Following the 5th Circuit’s ruling, abortion providers on Tuesday withdrew an application submitted to the Supreme Court over the weekend that had asked the justices to intervene.

See here and here for the background. It’s still far less than great, in that it accepts the premise that abortions aren’t essential health care and can be routinely delayed for political reasons, but at least it recognizes that dispensing medication is in no way a threat to the supply of PPEs. From this godforsaken court, that counts as a ringing victory. SCOTUSBlog and the Trib have more.

Coronavirus and redistricting

Big surprise.

A delay in census counting because of the coronavirus pandemic could push Texas redistricting into legislative overtime next summer.

Trump administration officials on Monday proposed delaying reapportionment counts and the distribution of redistricting data by four months, which would kick the delivery of data Texas lawmakers need to redraw political districts from March 2021 to July. That puts it past the end of the next scheduled legislative session.

The proposal must be approved by Congress. Under that plan, census counting would extend to October 31.

[…]

The Texas Legislature meets once every two years from January to late May. Under the bureau’s proposal, the redistricting data would come “no later than July 31,” meaning Gov. Greg Abbott may have to call lawmakers back for a special legislative session to redraw congressional and legislative maps.

It was not immediately clear what this would mean for the involvement of the Legislative Redistricting Board, a five-member board that steps in to redraw state Senate and House maps if lawmakers fail to redraw them during the regular legislative session following “the publication of the decennial census.”

No one could have seen this coming. In truth, I’m kind of glad to see it. I’d much rather have a delayed redistricting process than one based on a rushed and surely inaccurate Census. We all know the Census cannot proceed normally now. By far the best thing to do is give it some extra time (and money) so we can get the best count we can. Delaying the redistricting process by a couple of months, which in turn may force the 2022 primaries to be later in the year as they were in 2012, is a small price to pay for it.

That said, there must be heavy oversight of any changes to the process.

The bureau’s plans were first made public Monday by Rep. Carolyn Maloney (D-N.Y.), who chairs the House Oversight and Reform Committee.

In a press release describing a phone call Ross held with some members of Congress about the plans, Maloney says the committee “will carefully examine” the request to change the census deadlines, while also criticizing the administration for not providing more information and not allowing Dillingham, the bureau’s director, to brief the committee about its plans in response to the pandemic.

“If the Administration is trying to avoid the perception of politicizing the Census, preventing the Census Director from briefing the Committee and then excluding him from a call organized by the White House are not encouraging moves,” Maloney said in the written statement. “The Constitution charges Congress with determining how the Census is conducted, so we need the Administration to cooperate with our requests so we can make informed decisions on behalf of the American people.”

According to the House oversight committee’s press release, Ross “acknowledged that the Administration had not sought input from Congress about this request in advance of this call because of concerns about leaks to the press.”

Asked by NPR why no Census Bureau officials participated in the call, Cook responded in an email that Dillingham now plans to speak with members of Congress “as soon as possible,” noting: “The Secretary of Commerce is statutorily delegated responsibility to conduct the decennial census and took the role of calling key congressional leaders to continue the consultation process.”

The bureau’s changes for the 2020 census were supported by Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, one of the main groups advocating for participation in the count.

“If it’s not safe to have census takers visiting people’s homes by June, then Congress has an obligation to consider other options to protect census workers and the communities they serve, and to ensure an equitable count,” Gupta said in a statement. “We cannot afford to compromise the health of our communities or the fairness and accuracy of the census.”

I agree with Vanita Gupta that this is the right thing to do. But I also agree with Stacey Abrams that we cannot trust the Trump administration to have good intentions, and we need to watch them like a hawk to make sure they are doing what they are legally obligated to do. Anything else would be just as bad an outcome.

Whither college football?

All NCAA spring sports were canceled due to coronavirus, beginning with March Madness and going through baseball and softball and soccer and everything else. Everyone has been looking forward to the fall when things were supposed to be back to “normal” again, but no one knows for sure what might happen.

NCAA Division I college sports in Texas is a billion-dollar business for the 23 participating schools, and athletic directors estimate 75 percent to 85 percent of that revenue is tied directly to football in terms of ticket sales, sponsorships, media rights fees and, for most schools, direct contributions from the students or the university.

All those revenue streams are in jeopardy with 20 weeks to go before the scheduled football season openers in late August, which is why college athletic directors are game-planning every potential scenario that comes to mind.

“The financial repercussions of not playing a football season are so significant there is going to be a way to do it and play it and do it responsibly,” University of Houston athletic director Chris Pezman said last week on KBME (790 AM), the school’s sports flagship station.

“If you don’t have that revenue stream that is associated with football, it gets dire very fast. … I am confident we are going to find a way through this and we’ll be able to play the season, whether it’s pushed back a little bit or the idea of playing in the spring.”

At Texas A&M, athletic director Ross Bjork is running through similar scenarios involving the mathematics of time and money.

Regular and postseason football requires four months with the addition of the College Football Playoff, and that must be preceded, Bjork said during a conference call last week, by a 60- to 75-day preparation period for players who have been outside the watchful, demanding eyes of strength coaches for several weeks.

John Sharp, Texas A&M’s chancellor, said last week October would not be too late to begin a complete 2020 season, which would presume a return of players, based on Bjork’s time model, in mid-July.

However, what flies in Texas might not work in other states.

As an example, the executive officer of Santa Clara County in northern California, which includes Stanford University and Levi’s Stadium, home of the San Francisco 49ers, said last week he did not expect “any sports games until at least Thanksgiving, and we’d be lucky to have them by Thanksgiving.”

A&M, Bjork noted, is scheduled to play Colorado at College Station on Sept. 19. There’s no guarantee, however, Colorado will be in the same stage of recovery as Texas by mid-September.

Accordingly, Bjork said he expects a “layered” approach to football’s return, based on the advice of conference and university leaders and local and state governments.

“There’s not one trigger point,” he said. “We’re all just guessing, really. We don’t know what the data will tell us. We can model, but until you know when you’re starting or when you can have togetherness, it’s kind of hard to predict.”

It’s hard to imagine how sports like Major League Baseball can contemplate their return if the start of the NCAA football season is in jeopardy. Of course, MLB has the “play their games in hermetically sealed stadia in a small number of locations with no fans” option, which college football does not. I don’t doubt the desire or the intent to bring the games back, even if starting the season in December and essentially playing a spring season is a possible way forward. But as with everything else, there’s only so long you can push back one season before you push up against the next one, and there’s no way to know what the effects will be on fans, who may not be ready to tailgate and pack into venues just yet. It’s good for the leagues to prepare for all possibilities. You never know, things might go better than expected. It’s just all so massively weird right now.