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A panel of the Fifth Circuit has upheld the TX governor's order designating medical abortions as non-essential in a decision that relies heavily on Jacobson v. Massachusetts, a foundational Supreme Court case on public health emergency powers. https://www.washingtonpost.com/health/court-allows-texas-to-ban-most-abortions-during-virus-crisis/2020/04/07/2c0869c0-7914-11ea-a311-adb1344719a9_story.html
The majority: “[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 e.g., the right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception."
5th Cir. majority also cites Hickox v. Christie, (upholding quarantine imposed on a nurse who treated Ebola patients in Sierra Leone), for the proposition that Jacobson's (1905) deferential standard of judicial review remains good law even though it pre-dates the Civil Rights Era
Dissent offers a different view of Jacobson: citing it for the proposition that "individual rights are not gutted during a crisis"
From Jacobson (in dissent):
Courts have a duty to review a state’s exercise of their police power where the state’s action (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,”...
Courts have a duty to review a state’s exercise of their police power where the state’s action (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,”...
... (2) “has no real or substantial relation to” “protect[ing] the public health, the public morals, or the public safety,” or (3) “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”
Jacobson "clearly anticipated that courts would exercise oversight over a state’s decision to restrict personal liberties during emergencies." It "merely acknowledged that what is reasonable during an emergency is different from what is reasonable under normal circumstances"
Dissent accuses majority of ignoring "the courts’ ability to protect citizens’ constitutional rights when states attempt to unjustifiably seize and wield power in the name of the health and safety."
Dissent: "In a time where panic & fear already consume our daily lives, the majority inflicts further panic & fear on women in TX by depriving them of const'l rights, exposing them to risks of continuing unwanted pregnancy, as well & risks of travelling to other states for care."
