In re: Gregg Abbott

Case: 20-50264 Document: 00515374865 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 7, 2020
No. 20-50264
Lyle W. Cayce
Clerk
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN
PAXTON, in his official capacity as Attorney General of Texas; PHIL
WILSON, in his official capacity as Acting Executive Commissioner of the
Texas Health and Human Services Commission; STEPHEN BRINT
CARLTON, in his official capacity as Executive Director of the Texas Medical
Board; KATHERINE A. THOMAS, in her official capacity as the Executive
Director of the Texas Board of Nursing,
Petitioners
Petition for a Writ of Mandamus to
the United States District Court
for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
To preserve critical medical resources during the escalating COVID-19
pandemic, on March 22, 2020, the Governor of Texas issued executive order
GA-09, which postpones non-essential surgeries and procedures until 11:59
p.m. on April 21, 2020. Reading GA-09 as an “outright ban” on pre-viability
abortions, on March 30 the district court issued a temporary restraining order
(“TRO”) against GA-09 as applied to abortion procedures. At the request of
Texas officials, we temporarily stayed the TRO while considering their petition
for a writ of mandamus directing vacatur of the TRO. We now grant the writ.
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The “drastic and extraordinary” remedy of mandamus is warranted for
several reasons. In re JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019)
(citation omitted).
First, the district court ignored the framework governing emergency
public health measures like GA-09. See Jacobson v. Commonwealth of
Massachusetts, 197 U.S. 11 (1905). “[U]nder the pressure of great dangers,”
constitutional rights may be reasonably restricted “as the safety of the general
public may demand.” Id. at 29. 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,
410 U.S. 113, 154 (1973) (citing Jacobson); Planned Parenthood v. Casey, 505
U.S. 833, 857 (1992) (same); Gonzales v. Carhart, 550 U.S. 124, 163 (2007)
(same). 1
Second, the district court’s result was patently wrong. Instead of
applying Jacobson, the court wrongly declared GA-09 an “outright ban” on pre-
viability abortions and exempted all abortion procedures from its scope. The
court also failed to apply Casey’s undue-burden analysis and thus failed to
balance GA-09’s temporary burdens on abortion against its benefits in
thwarting a public health crisis.
Third, the district court usurped the state’s authority to craft emergency
health measures. Instead, the court substituted its own view of the efficacy of
applying GA-09 to abortion. But “[i]t is no part of the function of a court” to
1 Our dissenting colleague suggests our decision “follows not because of the law or
facts, but because of the subject matter of this case.” Dissent at 3. That is wrong. As explained
below, infra III.A.1, 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, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not
include liberty to expose the community . . . to communicable disease.”).
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decide which measures are “likely to be the most effective for the protection of
the public against disease.” Jacobson, 197 U.S. at 30.
In sum, given the extraordinary nature of these errors, the escalating
spread of COVID-19, and the state’s critical interest in protecting the public
health, we find the requirements for issuing the writ satisfied. See Cheney v.
U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380–81 (2004).
We emphasize the limits of our decision, which is based only on the
record before us. The district court has scheduled a telephonic preliminary
injunction hearing for April 13, 2020, when all parties will presumably have
the chance to present evidence on the validity of applying GA-09 in specific
circumstances. The district court can then make targeted findings, based on
competent evidence, about the effects of GA-09 on abortion access. Our
overriding consideration here, however, is that those proceedings adhere to the
controlling standards, established by the Supreme Court over a century ago,
for adjudging the validity of emergency measures like the one before us.
Accordingly, we grant a writ of mandamus directing the district court to
vacate its TRO of March 30, 2020.
I.
As all are painfully aware, our nation faces a public health emergency
caused by the exponential spread of COVID-19, the respiratory disease caused
by the novel coronavirus SARS-CoV-2. As of April 6, 2020, over 330,000 cases
have been confirmed across the United States, with over 8,900 dead. 2 The virus
is “spreading very easily and sustainably” 3 throughout the country, with cases
2 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):
Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
us.html (last visited April 6, 2020).
3 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):
How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/how-covid-spreads.html (last visited April 6, 2020).
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confirmed in all fifty states, the District of Columbia, and several territories. 4
Over the past two weeks, confirmed cases in the United States have increased
by over 2,000%. 5 Federal projections estimate that, even with mitigation
efforts, between 100,000 and 240,000 people in the United States could die. 6 In
Texas, the virus has spread rapidly over the past two weeks and is predicted
to continue spreading exponentially in the coming days and weeks.
On March 13, 2020, the President declared a national state of emergency,
and the Governor of Texas declared a state of disaster. 7 Six days later, the
Texas Health and Human Services Executive Commissioner declared a public
health disaster because the virus “poses a high risk of death to a large number
of people and creates a substantial risk of public exposure because of the
disease’s method of transmission and evidence that there is community spread
in Texas.” 8 As the district court in this case acknowledged, “Texas faces it[s]
worst public health emergency in over a century.”
The surge of COVID-19 cases causes mounting strains on healthcare
systems, including critical shortages of doctors, nurses, hospital beds, medical
4Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):
Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
us.html (last visited April 6, 2020).
5Id. On March 19, 2020, the CDC reports that there were 15,219 diagnosed cases in
the United States, excluding cases among persons repatriated to the United States from
China and Japan. Id. By April 6, 2020, the number of cases reported has risen to 330,891. Id.
6 Rick Noack, et al., White House task force projects 100,000 to 240,000 deaths in U.S.,
even with mitigation efforts, WASHINGTON POST (Mar. 31, 2020),
https://www.washingtonpost.com/world/2020/03/31/coronavirus-latest-news/.
See Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Tex. Proc.
7
of Mar. 13, 2020, https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_
proclamation_IMAGE_03-13-2020.pdf.
Tex. Proc. of Mar. 19, 2020, https://gov.texas.gov/uploads/files/press/
8
DECLARATION_of_public_health_disaster_Dr_Hellerstedt_03-19-2020.pdf.
4
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equipment, and personal protective equipment (“PPE”). 9 The executive order
at issue here, GA-09, responds to this crisis. Issued by the Governor of Texas
on March 22, 2020, GA-09 applies to all licensed healthcare professionals and
facilities in Texas and requires that they:
postpone all surgeries and procedures that are not immediately
medically necessary to correct a serious medical condition of, or to
preserve the life of, a patient who without immediate performance
of the surgery or procedure would be at risk for serious adverse
medical consequences or death, as determined by the patient’s
physician. 10
Importantly, the order “shall not apply to any procedure that, if performed in
accordance with the commonly accepted standard of clinical practice, would
not deplete the hospital capacity or the personal protective equipment needed
to cope with the COVID-19 disaster.” 11 Failure to comply with the order may
result in administrative or criminal penalties, including “a fine not to exceed
$1,000, confinement in jail for a term not to exceed 180 days, or both.” 12 The
order automatically expires after 11:59 p.m. on April 21, 2020, but can be
modified, amended, or superseded.
9 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):
Strategies for Optimizing the Supply of Facemasks, https://www.cdc.gov/coronavirus/2019-
ncov/hcp/ppe-strategy/face-masks.html (last visited April 6, 2020); Megan L. Ranney, M.D.,
M.P.H., et al., Critical Supply Sources—The Need for Ventilators and Personal Protective
Equipment during the COVID-19 Pandemic, NEW ENG. J. OF MED. (Mar. 25, 2020),
https://www.nejm.org/doi/full/10.1056/NEJMp2006141?query=featured_coronavirus.
10 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files
/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
11 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files
/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
12 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files
/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf (citing Tex. Gov’t
Code § 418.173); see also 25 Tex. Admin. Code § 139.32(b)(6); 25 Tex. Admin. Code
§ 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); 22 Tex. Admin. Code § 185.57(c) (Mar.
23, 2020); Tex. Occ. Code § 164.051(a)(2); Tex. Occ. Code § 164.051(a)(6); Tex. Occ. Code
§ 301.452(b)(3); Tex. Occ. Code § 301.452(b)(10).
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On March 25, 2020, various Texas abortion providers 13 (“Respondents”)
filed suit in federal district court against multiple Texas officials, including the
Governor, Attorney General, three state health officials, and nine District
Attorneys (“Petitioners” 14). Respondents brought substantive due process and
equal protection claims and sought to enjoin enforcement of GA-09, as well as
the Texas Medical Board’s Emergency Rule implementing the order. See 22
Tex. Admin. Code § 187.57(c) (Mar. 23, 2020). Simultaneously, Respondents
sought a temporary restraining order (“TRO”) or a preliminary injunction,
based only on their due process claim. Following a March 26 conference call,
the district court gave Petitioners until March 30 at 9:00 a.m. to respond, which
they did. Later that same day, the district court entered a TRO.
In the TRO, the district court agreed that “Texas faces it[s] worst public
health emergency in over a century,” and also that “[GA-09], as written, does
not exceed the governor’s power to deal with the emergency.” Nonetheless, the
court interpreted GA-09 as “effectively banning all abortions before viability.”
The court reasoned that, because “no interest” can justify such an “outright
ban” on pre-viability abortions, GA-09 contravenes Supreme Court and Fifth
Circuit precedent. The TRO therefore prohibits all defendants, including
13 Plaintiffs are Texas abortion providers Planned Parenthood Center for Choice,
Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South
Texas Surgical Center, Whole Woman’s Health, Whole Woman’s Health Alliance,
Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a
Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace,
M.D. Plaintiffs purport to sue on behalf of themselves, their staff, physicians, nurses, and
patients.
14 Petitioners here do not include the defendant District Attorneys.
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Petitioners, from enforcing GA-09 and the emergency rule “as applied to
medication abortions and procedural 15 abortions.” App. 267–68, 270. 16
On the evening of March 30, 2020, Petitioners filed a petition for writ of
mandamus in our court, requesting that we direct the district court to vacate
the TRO. Petitioners simultaneously sought an emergency stay of the TRO, as
well as a temporary administrative stay, while the court considered their
request. On March 31, 2020, we temporarily stayed the TRO and set an
expedited briefing schedule.
II.
Federal courts “may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). That includes the writ of mandamus sought by
Petitioners. See Cheney, 542 U.S. at 380; In re Gee, 941 F.3d 153, 157 (5th Cir.
2019). Mandamus is proper only in “exceptional circumstances amounting to a
judicial usurpation of power or a clear abuse of discretion.” In re Volkswagen
of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc) (quoting Cheney, 542
U.S. at 380). Before prescribing this strong medicine, “we ask (1) whether the
15 “Procedural” abortions, the term used by Respondents and the district court, refers
to what are also called “surgical” abortions. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 924
(2000) (citing M. Paul et al., A Clinician’s Guide to Medical and Surgical Abortion (1999));
Gonzales v. Carhart, 550 U.S. 124, 175 (2007) (Ginsburg, J., dissenting) (referring to “surgical
abortions”) (quoting Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1011 (D. Neb. 2004), aff’d, 413
F.3d 791 (8th Cir. 2005)); Planned Parenthood v. Casey, 505 U.S. 833, 969 (1992) (Rehnquist,
J., concurring in the judgment in part and dissenting in part) (referring to “any other surgical
procedure except abortion”) (quoting Webster v. Reproductive Health Servs., 492 U.S. 490,
517 (1989) (plurality opinion)); see also, e.g., Br. for Petitioners at 33 n.64, Planned
Parenthood v. Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006398 (referring
to “induced abortion” as a “surgical procedure[ ]”).
16The TRO is scheduled to expire at 3:00 p.m. on April 13, 2020. The district court has
scheduled a telephonic hearing on Plaintiffs’ request for a preliminary injunction for 9:30
a.m. that same day. App. 271. Our references to “App.” throughout this opinion are to the
appendix to the mandamus petition. See ECF 3 (5th Cir. No. 20-50264).
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petitioner has demonstrated that it has no other adequate means to attain the
relief it desires; (2) whether the petitioner’s right to issuance of the writ is clear
and indisputable; and (3) whether we, in the exercise of our discretion, are
satisfied that the writ is appropriate under the circumstances.” In re Itron,
Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting Cheney, 542 U.S. at 380–81)
(cleaned up). “These hurdles, however demanding, are not insuperable. They
simply reserve the writ for really extraordinary causes.” Gee, 941 F.3d at 158
(cleaned up). In such a case, mandamus provides a “useful ‘safety valve[]’ for
promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 111 (2009) (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511
U.S. 863, 883 (1994)).
III.
Petitioners claim they satisfy all three mandamus prongs and are
therefore entitled to the writ. As to the first prong, they argue mandamus is
proper for obtaining relief, even from a non-appealable TRO, when the stakes
are “extraordinarily time-sensitive.” ECF 2 at 30–31. As to the second prong,
Petitioners contend the district court “clearly and indisputably erred” by ruling
that abortion is an absolute right which cannot be curtailed even in the midst
of a public health emergency. 17 Id. at 11–24. Finally, as to the third prong,
17 Alternatively under prong two, Petitioners assert that (1) no justiciable controversy
exists as to the Governor and Attorney General because they lack authority to enforce GA-
09, and (2) Respondents lack third-party standing to sue on behalf of their patients. We
decline to grant relief on these grounds. First, quite apart from the Governor and Attorney
General, a justiciable controversy exists as to the Petitioner health officials, who may enforce
the order’s administrative penalties. See, e.g., 22 Tex. Admin. Code § 187.57(b). On remand,
however, the district court should consider whether the Eleventh Amendment requires
dismissal of the Governor or Attorney General because they lack any “connection” to
enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908). City of Austin v. Paxton, 943
F.3d 993, 999 (5th Cir. 2019); see also Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir.
2014). Second, Respondents have standing to sue on their own behalf because GA-09 “directly
operates” against them. Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976)
(cleaned up). We therefore need not consider at this time whether Respondents may sue on
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Petitioners argue mandamus is proper because “[t]he longer [Respondents] are
allowed to perform elective procedures—consuming scarce PPE, increasing
hospitalizations, and potentially spreading the virus to countless individuals—
the longer it will take to flatten the curve in Texas, meaning more illnesses,
more hospitalizations, and more deaths.” Id. at 31. We address each prong in
turn, beginning with the second.
A.
We first address the second mandamus prong—whether entitlement to
the writ is “clear and indisputable”—because it is central to our analysis. See,
e.g., Volkswagen, 545 F.3d at 311 (beginning with second prong because it
“captures the essence of the disputed issue”). “In recognition of the
extraordinary nature of the writ, we require more than showing that the court
misinterpreted the law, misapplied it to the facts, or otherwise engaged in an
abuse of discretion.” In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 (5th
Cir. 2015). Rather, a petitioner has a clear and indisputable right to the writ
only when there has been a “usurpation of judicial power” or “a clear abuse of
discretion that produces patently erroneous results.” JPMorgan Chase, 916
F.3d at 500 (cleaned up); see also Gee, 941 F.3d at 159; Lloyd’s Register, 780
F.3d at 290. Usurpation of judicial power occurs when courts act beyond their
jurisdiction or fail to act when they have a duty to do so. Will v. United States,
389 U.S. 90, 95 (1967). But it also occurs in other situations. The Supreme
Court has sanctioned use of the writ “to restrain a lower court when its actions
would threaten the separation of powers by ‘embarrassing the executive arm
of the Government,’ or result in the ‘intrusion by the federal judiciary on a
delicate area of federal-state relations.’” Cheney, 542 U.S. at 381 (citing Will,
behalf of their patients. We note that the Supreme Court recently granted a certiorari
petition raising this third-party standing issue. See Russo v. June Med. Servs., No. 18-1460.
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389 U.S. at 95; Ex parte Peru, 318 U.S. 578, 588 (1943); Maryland v. Soper (No.
1), 270 U.S. 9 (1926)) (cleaned up).
We conclude Petitioners have shown “a clear and indisputable right to
issuance of the writ.” Volkswagen, 545 F.3d at 311. In issuing the TRO, the
district court clearly abused its discretion by failing to apply (or even
acknowledge) the framework governing emergency exercises of state authority
during a public health crisis, established over 100 years ago in Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11 (1905). This extraordinary error
allowed the district court to create a blanket exception for a common medical
procedure—abortion—that falls squarely within Texas’s generally-applicable
emergency measure issued in response to the COVID-19 pandemic. This was a
patently erroneous result. In addition, the court usurped the power of the
governing state authority when it passed judgment on the wisdom and efficacy
of that emergency measure, something squarely foreclosed by Jacobson. 18
1.
In Jacobson, the Supreme Court considered a claim that the state’s
compulsory vaccination law—enacted amidst a growing smallpox epidemic in
Cambridge, Massachusetts—violated the defendant’s Fourteenth Amendment
right “to care for his own body and health in such way as to him seems best.”
18 This case differs from Preterm-Cleveland v. Atty. Gen. of Ohio, No. 20-3365, 2020
WL 1673310 (6th Cir. Apr. 6, 2020), which declined to review a TRO against Ohio’s non-
essential-surgeries order. Ohio appealed on the basis that the TRO “threaten[ed] to inflict
irretrievable harms.” Id. at *1. Observing the TRO was “narrowly tailored” and did not permit
“blanket” provision of abortions, the majority concluded that the TRO would not inflict
irreparable harms and thus that it lacked jurisdiction over the appeal. Id. at *1–2. By
contrast, here Petitioners seek not appeal but mandamus, a drastic remedy that we
nonetheless find appropriate. Moreover, the TRO here is not “narrowly tailored” but exempts
all abortions from GA-09. The TRO’s broad sweep also distinguishes this case from recent
district court decisions in Alabama and Oklahoma. See Robinson v. Marshall, No. 2:19cv365-
MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020); South Wind Women’s Center v. Stitt, No.
CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020).
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Id. at 26. The Court rejected this claim. Famously, it explained that the “liberty
secured by the Constitution . . . does not import an absolute right in each
person to be, at all times and in all circumstances, wholly freed from restraint.”
Id. Rather, “a community has the right to protect itself against an epidemic of
disease which threatens the safety of its members.” Id. at 27. In describing a
state’s police power to combat an epidemic, the Court explained:
[I]n every well-ordered society charged with the duty of conserving
the safety of its members the rights of the individual in respect of
his liberty may at times, under the pressure of great dangers, be
subjected to such restraint, to be enforced by reasonable
regulations, as the safety of the general public may demand.
Id. at 29.
The Supreme Court has repeatedly acknowledged this principle. See,
e.g., Lawton v. Steele, 152 U.S. 133, 136 (1894) (recognizing that “the state may
interfere wherever the public interests demand it” and “discretion is
necessarily vested in the legislature to determine, not only what the interests
of the public require, but what measures are necessary for the protection of
such interests”); Compagnie Francaise de Navigation a Vapeur v. La. State Bd.
of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana’s right to quarantine
passengers aboard vessel—even where all were healthy—against a Fourteenth
Amendment challenge); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944)
(noting that “[t]he right to practice religion freely does not include liberty to
expose the community . . . to communicable disease”); United States v. Caltex,
344 U.S. 149, 154 (1952) (acknowledging that “in times of imminent peril—
such as when fire threatened a whole community—the sovereign could, with
immunity, destroy the property of a few that the property of many and the lives
of many more could be saved”).
To be sure, individual rights secured by the Constitution do not
disappear during a public health crisis, but the Court plainly stated that rights
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could be reasonably restricted during those times. Jacobson, 197 U.S. at 29.
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.
Id. at 31 (emphasis added). Elsewhere, the Court similarly described this
review as asking whether power had been exercised in an “arbitrary,
unreasonable manner,” id. at 28, or through “arbitrary and oppressive”
regulations, id. at 38. Accord Lawton, 152 U.S. at 137 (“To justify the state in
thus interposing its [police power] in behalf of the public, it must appear
[1] that the interests of the public generally . . . require such interference; and
[2] that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.”).
Jacobson did emphasize, however, that even an emergency mandate
must include a medical exception for “[e]xtreme cases.” 197 U.S. at 38. Thus,
the vaccination mandate could not have applied to an adult where vaccination
would exacerbate a “particular condition of his health or body.” Id. at 38–39.
In such a case, the judiciary would be “competent to interfere and protect the
health and life of the individual concerned.” Id. at 39. 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.” Jacobson, 197 U.S.
at 28 (emphasis added); see also id. at 30 (“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
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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.”).
The bottom line is this: when faced with a society-threatening epidemic,
a state may implement emergency measures that curtail constitutional rights
so long as the measures have at least some “real or substantial relation” to the
public health crisis and are not “beyond all question, a plain, palpable invasion
of rights secured by the fundamental law.” Id. at 31. Courts may ask whether
the state’s emergency measures lack basic exceptions for “extreme cases,” and
whether the measures are pretextual—that is, arbitrary or oppressive. Id. at
38. At the same time, however, courts may not second-guess the wisdom or
efficacy of the measures. Id. at 28, 30.
Jacobson remains good law. See, e.g., Kansas v. Hendricks, 521 U.S. 346,
356–57 (1997) (recognizing Fourteenth Amendment liberties may be
restrained even in civil contexts, relying on Jacobson); Hickox v. Christie, 205
F. Supp. 3d 579 (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.
In Roe v. Wade, the Supreme Court announced for the first time that an
expectant mother has a constitutional right to an abortion. 410 U.S. 113.
Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v.
Casey, the Court reaffirmed this right and established the current standard for
abortion restrictions. 505 U.S. 833. Casey recognized that after a fetus is viable,
states may ban abortion outright, except for pregnancies that endanger the
mother’s life or health. Id. at 846 (plurality opinion). After Casey, there remain
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two constitutional restrictions on states’ ability to regulate abortion. First,
states “may not prohibit any woman from making the ultimate decision to
terminate” a pre-viability pregnancy. Gonzales v. Carhart, 550 U.S. 124, 146
(2007) (quoting Casey, 505 U.S. at 879 (plurality opinion)). In other words,
states may not impose outright bans on pre-viability abortions. See Jackson
Women’s Health Org. v. Dobbs [Jackson II], 945 F.3d 265, 273 (5th Cir. 2019).
Second, states “may not impose” on the right “an undue burden, which exists
if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path
of a woman seeking an abortion before the fetus attains viability.’” Id. (quoting
Casey, 505 U.S. at 878 (plurality opinion)); see also Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (explaining “[t]he rule announced in
Casey . . . requires that courts consider the burdens a law imposes of abortion
access together with the benefits those laws confer”).
None of these cases, so far as we are aware, involved a state’s
postponement of some abortion procedures in response to a public health
crisis—the context in which Jacobson plainly applies. But three of the Court’s
principal abortion cases—Roe, Casey, and Carhart—cite Jacobson with
approval and without suggesting that abortion rights are somehow exempt
from its framework. In Roe, the Supreme Court cited Jacobson as one example
of the Court’s refusal to recognize an “unlimited right to do with one’s body as
one pleases.” 410 U.S. at 154 (citing Jacobson, 197 U.S. 11). The Court
reasoned that the right to abortion “is not unqualified and must be considered
against important state interests in regulation.” Id. Similarly, in Casey, the
plurality cited Jacobson as one example of the Court’s balance between
“personal autonomy and bodily integrity” on one hand and “governmental
power to mandate medical treatment or to bar its rejection” on the other. 505
U.S. at 857 (citing Jacobson, 197 U.S. at 24–30). Finally, in the course of
upholding a federal restriction on certain abortion methods in Carhart, the
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Court cited Jacobson to show it had “given state and federal legislatures wide
discretion to pass legislation in areas where there is medical and scientific
uncertainty.” 550 U.S. at 163 (citing Jacobson, 197 U.S. at 30–31).
By all accounts, then, the effect on abortion arising from a state’s
emergency response to a public health crisis must be analyzed under the
standards in Jacobson. Respondents all but concede this point, offering no
discernible argument that Jacobson has been superseded or is otherwise
inapplicable during a public health crisis such as the COVID-19 pandemic. See
ECF 53 at 16. The district court, however, failed to recognize Jacobson’s long-
established framework. While acknowledging that “Texas faces it[s] worst
public health emergency in over a century,” the court treated that fact as
entirely irrelevant. Indeed, the court explicitly refused to consider how the
Supreme Court’s abortion cases apply to generally-applicable emergency
health measures, saying it would “not speculate on whether the Supreme Court
included a silent ‘except-in-a-national-emergency clause’ in its previous
writings on the issue.” App. 268.
That analysis is backwards: Jacobson instructs that all constitutional
rights may be reasonably restricted to combat a public health emergency. We
could avoid applying Jacobson here only if the Supreme Court had specifically
exempted abortion rights from its general rule. It has never done so. To the
contrary, the Court has repeatedly cited Jacobson in abortion cases without
once suggesting that abortion is the only right exempt from limitation during
a public health emergency. In sum, by refusing even to consider Jacobson—the
controlling Supreme Court precedent that squarely governs judicial review of
rights-challenges to emergency public health measures—the district court
“clearly and indisputably erred.” JPMorgan Chase, 916 F.3d at 500 (quoting In
re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000)) (emphasis
omitted). Under our precedents, that alone is enough to satisfy the second
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mandamus prong. See Itron, 883 F.3d at 568 (petitioners had a “clear and
indisputable right to the writ” because failure to apply the proper legal
standard was “obvious” error); see also In re Ford Motor Co., 591 F.3d 406, 415
(5th Cir. 2009) (granting writ where “[i]t was patently erroneous for the
[district] court to ignore . . . binding precedent”).
2.
Moreover, the district court’s refusal to acknowledge or apply Jacobson’s
legal framework produced a “patently erroneous” result. JPMorgan Chase, 916
F.3d at 500 (quoting Lloyd’s Register, 780 F.3d at 290). Under Jacobson, the
district court was empowered to decide only whether GA-09 lacks a “real or
substantial relation” to the public health crisis or whether it is “beyond all
question, a plain, palpable invasion” of the right to abortion. 197 U.S. at 31.
On the record before us, the answer to both questions is no, but the district
court did not even ask them. Instead, the court bluntly declared GA-09 an
“outright ban” on pre-viability abortions and exempted all abortion procedures,
in whatever circumstances, from the scope of this emergency public health
measure. That was a patently erroneous result. 19
a.
The first Jacobson inquiry asks whether GA-09 lacks a “real or
substantial relation” to the crisis Texas faces. Id. The answer is obvious: the
district court itself conceded that GA-09 is a valid emergency response to the
COVID-19 pandemic. The court recognized, as does everyone involved, that
19 Although not necessary to our decision, we note that the district court purported to
enjoin GA-09 as to all abortion providers in Texas. But Respondents are only a subset of
Texas abortion providers and did not sue as class representatives. The district court lacked
authority to enjoin enforcement of GA-09 as to anyone other than the named plaintiffs. See
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither declaratory nor
injunctive relief can directly interfere with enforcement of contested statutes or ordinances
except with respect to the particular federal plaintiffs”). The district court should be mindful
of this limitation on federal jurisdiction at the preliminary injunction stage.
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Texas faces a public health crisis of unprecedented magnitude and that GA-09
“does not exceed the governor’s power to deal with the emergency.” App. 268.
Our own review of the record easily confirms that conclusion. GA-09 is
supported by findings that (1) “a shortage of hospital capacity or personal
protective equipment would hinder efforts to cope with the COVID-19
disaster,” and (2) “hospital capacity and personal protective equipment are
being depleted by surgeries and procedures that are not medically necessary
to correct a serious medical condition or to preserve the life of a patient.” App.
34. The order also references, and reinforces, the Governor’s prior executive
order, GA-08, “aimed at slowing the spread of COVID-19.” Id. 20 Accordingly,
GA-09 instructs licensed health care professionals and facilities to postpone
non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. App.
35. For their part, Respondents appear to concede the validity of GA-09 as a
general matter: they recognize that Texas faces an “unprecedented public
health crisis” and that “[g]overnment officials and medical professionals expect
a surge of infections that will test the limits of a health care system already
facing a shortage of PPE.” ECF 53 at 3.
To be sure, GA-09 is a drastic measure, but that aligns it with the
numerous drastic measures Petitioners and other states have been forced to
take in response to the coronavirus pandemic. Faced with exponential growth
of COVID-19 cases, states have closed schools, sealed off nursing homes,
banned social gatherings, quarantined travelers, prohibited churches from
holding public worship services, and locked down entire cities. These measures
would be constitutionally intolerable in ordinary times, but are recognized as
20 Tex. Exec. Order No. GA-08 (Mar. 19, 2020), https://gov.texas.gov/uploads
/files/press/EO-GA_08_COVID-19_preparedness_and_mitigation_FINAL _03-19-2020_1.pdf.
The dissent is therefore mistaken that GA-09 “was not adopted to serve th[e] interest” in
preventing the spread of COVID-19. Dissent at 12.
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appropriate and even necessary responses to the present crisis. So, too, GA-09.
As the state’s infectious disease expert points out, “[g]iven the risk of
transmission in health care settings” there is “a sound basis for limiting all
surgeries except those that are immediately medically necessary so as to
prevent the spread of COVID 19.” App. 242. In sum, it cannot be maintained
on the record before us that GA-09 bears “no real or substantial relation” to the
state’s goal of protecting public health in the face of the COVID-19 pandemic.
Jacobson, 197 U.S. at 31.
b.
The second Jacobson inquiry asks whether GA-09 is “beyond question, in
palpable conflict with the Constitution.” Id. (emphasis added). The district
court, while not framing the question in those terms, evidently thought the
answer was yes. But the court reached that conclusion only by grossly
misreading GA-09 as an “outright ban” on all pre-viability abortions. Properly
understood, GA-09 merely postpones certain non-essential abortions, an
emergency measure that does not plainly violate Casey in the context of an
escalating public health crisis. As we explain below, however, Respondents will
have the opportunity to show at the upcoming preliminary injunction hearing
that certain applications of GA-09 may constitute an undue burden under
Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its
benefits in those situations. See Hellerstedt, 136 S. Ct. at 2309.
To begin with, the district court’s central (and only) premise—that GA-
09 is an “outright ban” on all pre-viability abortions—is plainly wrong. The
court reasoned that GA-09 was by definition invalid in light of our decisions in
Jackson II and Jackson III, which recognize states cannot ban pre-viability
abortions. App. 267–68. But GA-09 only delays certain non-essential abortions.
GA-09 thus differs from the regulations in Jackson II and III in three key
respects. First, GA-09 expires on April 21, 2020, three weeks after its effective
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date. Tex. Gov’t Code Ann. § 418.012. Second, GA-09 includes an emergency
exception for the mother’s life and health, based on the determination of the
administering physician. App. 30; App. 35. Third, GA-09 contains a separate
exception for “any procedure” that, if performed under normal clinical
standards, “would not deplete the hospital capacity or the personal protective
equipment needed to cope with the COVID-19 disaster.” App. 35. These
characteristics, which the district court failed to mention, 21 place GA-09 in
stark contrast with the restrictions in Jackson II and III.
Jackson II invalidated Mississippi’s ban on abortions after fifteen weeks,
with narrow exceptions for “medical emergenc[ies]” and “severe fetal
abnormalit[ies].” 945 F.3d at 269 (citations omitted). The state “conceded that
it had identified no medical evidence that a fetus would be viable at 15 weeks.”
Id. at 270. We invalidated the law as “a prohibition on pre-viability abortion.”
Id. at 272–73. Mississippi also enacted Senate Bill 2116, which criminalized
abortion “after a ‘fetal heartbeat has been detected,’” Jackson Women's Health
Org. v. Dobbs [Jackson III], 951 F.3d 246, 248 (5th Cir. 2020) (citation omitted),
something that “can occur anywhere between six and twelve weeks.” Id. The
only exceptions were for “death of, or serious risk of ‘substantial and
irreversible’ bodily injury to” the mother. Id. (citation omitted). We invalidated
the law in a one-page per curiam opinion relying principally on Jackson II. Id.
Mississippi’s now-invalid laws are quite different from GA-09. First, both
were permanent, whereas GA-09 expires in just a few weeks. 22 The expiration
21 The district court’s only allusion to the scope of GA-09 was its statement that the
order “either bans all non-emergency abortions in Texas or bans all non-emergency abortions
in Texas starting at 10 weeks of pregnancy.” App. 267–68 (emphasis added). But the district
court did not mention GA-09’s expiration date, nor cite, quote, or discuss GA-09’s exceptions.
22 Respondents imply that GA-09 is effectively indefinite in duration. For example,
they claim that “[f]or many women, the denial of access to abortion will be permanent . . .
given the uncertain duration of the emergency.” But the district court did not temporarily
restrain some indefinite regulation; it restrained GA-09, which by all accounts expires on
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date makes GA-09 a delay, not a ban, and also shows GA-09 is reasonably
tailored to the present crisis. “The Supreme Court has repeatedly upheld a
wide variety of abortion regulations that entail some delay in the abortion but
that serve permissible Government purposes,” even those—such as parental
consent laws—that “in practice can occasion real-world delays of several
weeks.” Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (mem.)
(Kavanaugh, J., dissenting). Second, Mississippi’s laws contained narrower
medical exceptions than GA-09. The fifteen-week ban exempted only “medical
emergenc[ies]” and “severe fetal abnormalit[ies].” Jackson II, 945 F.3d at 269.
The fetal-heartbeat law exempted only abortions that would prevent the
mother’s death or “substantial and irreversible” bodily injury. Jackson III, 951
F.3d at 248. GA-09, by contrast, contains a broader exception: it allows
procedures that are “immediately medically necessary to correct a serious
medical condition of, or to preserve the life of, a patient who without immediate
performance of the surgery or procedure would be at risk for serious adverse
medical consequences or death.” App. 35. It also separately exempts
procedures that, if performed under accepted clinical standards, would not
deplete needed medical resources. Id.
GA-09 also vests far more discretion in physicians to determine whether
the life-or-health exception is met. The fifteen-week ban in Jackson II required
a “good faith clinical judgment” of a medical emergency, Miss. Code Ann. § 41-
41-191(3)(j), and the physician’s “reasonable medical judgment” of a qualifying
fetal abnormality, id. § 41-41-191(3)(h). The fetal-heartbeat law required the
physician to “declare in writing, under penalty of perjury,” that the abortion
April 21, 2020. App. 35. If anything, Respondents’ concern about the indefinite duration “of
the emergency” serves to strengthen Petitioners’ position that “extraordinary measures”
must be taken now to mitigate the “‘exponential increase’ in COVID-19 cases . . . expected
over the next few days and weeks.” ECF 2 at 6.
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met the exception, id. § 41-41-34.1(2)(b)(ii). Here, GA-09 merely states that the
health exception attaches “as determined by the patient’s physician.” App. 35.
There are no statutory requirements confining the physician’s judgment, and
the physician need not report his determination to the state.
Properly understood, then, GA-09 is a temporary postponement of all
non-essential medical procedures, including abortion, subject to facially broad
exceptions. Because that does not constitute anything like an “outright ban”
on pre-viability abortion, GA-09 “cannot be affirmed to be, beyond question, in
palpable conflict with the Constitution.” Jacobson, 197 U.S. at 31 (emphasis
added). As already discussed, the Supreme Court’s abortion cases have
repeatedly cited Jacobson to demarcate the limits states may place on abortion.
See Roe, 410 U.S. at 154; Casey, 505 U.S. at 857; Carhart, 550 U.S. at 163. GA-
09 is, without question, one such limit. The order is a concededly valid public
health measure that applies to “all surgeries and procedures,” App. 35, does
not single out abortion, and merely has the effect of delaying certain non-
essential abortions. Moreover, the order has an exemption for serious medical
conditions, comporting with Jacobson’s requirement that health measures
“protect the health and life” of susceptible individuals. Jacobson, 197 U.S. at
39. Indeed, the exemption in GA-09 goes well beyond the exceptions for
“[e]xtreme cases” Jacobson discussed. Id. In sum, Jacobson offers no basis for
the district court’s conclusion that abortion rights merit an across-the-board
exemption from an measure like GA-09. To find otherwise “would practically
strip the [executive] department of its function to care for the public health and
the public safety when endangered by epidemics of disease.” Id. at 37.
Moreover, due to its mistaken view that GA-09 “bans” pre-viability
abortions, the district court failed to analyze GA-09 under Casey’s undue-
burden test. App. 268. This was error. Under Casey, courts must ask whether
an abortion restriction is “undue,” which requires “consider[ing] the burdens a
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law imposes on abortion access together with the benefits those laws confer.”
Hellerstedt, 136 S. Ct. at 2310, 2309–10 (discussing Casey, 505 U.S. at 887–
98). The district court was required to do this analysis—that is, it should have
asked whether GA-09 imposes burdens on abortion that “beyond question”
exceed its benefits in combating the epidemic Texas now faces. Jacobson, 197
U.S. at 31. But that analysis would have required careful parsing of the
evidence. See Hellerstedt, 136 S. Ct. at 2310 (Casey “place[s] considerable
weight upon evidence . . . presented in judicial proceedings”). Any
consideration of the evidence, however, is entirely absent from the district
court’s order.
For example, the district court did not consider whether different
methods of abortion may consume PPE differently. Our own review of the
record, at this preliminary stage, reveals considerable evidence that surgical
abortions consume PPE. 23 By contrast, the record is unclear how PPE is
consumed in medication abortions. 24 Nor did the district court consider
23 For instance, Respondents’ complaint states that clinicians use “gloves, a surgical
mask, and protective eyewear” for surgical abortions. See Complaint at ¶ 54 (App. 17). Their
declarations similarly attest that surgical abortions consume sterile and non-sterile gloves,
masks, gowns, and shoe covers. See Southwestern Declaration ¶ 19, App. 86; Fort Worth and
McAllen Declaration ¶ 10, App. 91–92; PPGTSHS Declaration, ¶ 12, App. 117; Austin
Women’s Declaration ¶ 11, App. 110. Second-trimester abortions require more extensive
PPE, including face shields. See, e.g., Southwestern Declaration ¶ 19, App. 86; Austin
Women’s Declaration ¶ 11, App. 110. After a surgical abortion, a provider examines the fetal
tissue in a pathology laboratory, which requires a gown, face shield or goggles, shoe covers,
and gloves. See Fort Worth and McAllen Declaration ¶ 12, App. 092; WWHA Austin
Declaration ¶ 15, App. 100.
24Respondents assert PPE is not used in “providing the pills” for medication abortions,
ECF 53 at 31, whereas Petitioners counter that, for medication abortions, Texas requires a
physical examination, ultrasound, and follow-up visits—all of which consume PPE. ECF 67
at 7–8; ECF 2 at 17–18. See also Tex. Health & Safety Code § 171.063(c) (requiring physician
to examine pregnant woman before prescribing “an abortion-inducing drug”); Tex. Health &
Safety Code § 171.012(a)(4) (requiring patient receive ultrasound during initial examination);
Tex. Health & Safety Code § 171.063(e)–(f) (requiring follow-up appointment to ensure
abortion complete); 25 Tex. Admin. Code 139.53(b)(4) (same). Petitioners also point out that
some number of medication abortions result in incomplete abortions that require
22
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whether Respondents could prove that GA-09 infringes abortion rights in
specific contexts. For example, in their stay opposition, Respondents argue that
GA-09 cannot apply to “patients whose pregnancies will, before the expiration
of the stay, reach or exceed twenty-two weeks LMP [“last menstrual period”],
the gestational point at which abortion may no longer be provided in Texas.”
ECF 30 at 21 (brackets added). As Petitioners point out, if competent evidence
shows that a woman is in that position, nothing prevents her from seeking as-
applied relief. ECF 2 at 22 n.28.
We do not decide at this stage, however, whether an injunction narrowly
tailored to particular circumstances would pass muster under the Jacobson
framework. See, e.g., ODonnell v. Harris Cty., 892 F.3d 147, 163 (5th Cir. 2018)
(“A district court abuses its discretion if it does not narrowly tailor an
injunction to remedy the specific action which gives rise to the order.” (citation
and internal quotations omitted)). These are issues that the parties may
pursue at the preliminary injunction stage, where Respondents will bear the
burden to prove, “by a clear showing,” that they are entitled to relief. See
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A Wright, Miller,
& Kane, Fed. Prac. & Proc. § 2948 (2nd ed. 1995)); cf. Ayotte v. Planned
Parenthood, 546 U.S. 320, 331 (2006) (injunction should be tailored to “[o]nly
[the] few applications” of challenged statute that “would present a
constitutional problem”). Our overarching point here is that the district court
did not even apply Casey’s undue-burden test and thus failed to weigh GA-09’s
hospitalization. ECF 2 at 18; ECF 67 at 7–8; see also American College of Obstetricians and
Gynecologists, Clinical Guidelines: Medical management of first-trimester abortion, 89
Contraception 148, 149 (2014), https://www.contraceptionjournal.org/article/S0010-
7824(14)00026-2/pdf (estimating “efficacy” of medication abortions using mifepristone). The
dissent appears to accept at face value Respondents’ representations about how medication
abortions consume PPE. See Dissent at 11. We think that evidentiary determination is better
left to the district court at the preliminary injunction stage.
23
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benefits and burdens in any particular circumstance. The district court
therefore lacked any basis for declaring that GA-09 constitutes an across-the-
board violation of Casey.
In sum, based on this record we conclude that GA-09—an emergency
measure that postpones certain non-essential abortions during an epidemic—
does not “beyond question” violate the constitutional right to abortion.
Jacobson, 197 U.S. at 31.
3.
Finally, the district court’s extraordinary failure to evaluate GA-09
under the Jacobson framework also usurped the state’s authority to craft
measures responsive to a public health emergency. Such judicial encroachment
intrudes on the duties of the “executive arm of Government” and “on a delicate
area of federal-state relations,” further bolstering Texas’s right to issuance of
the writ. Cheney, 542 U.S. at 381.
In addressing the fourth and final TRO factor—whether a TRO would
disserve the public interest—the district court did little more than assert its
own view of the effectiveness of GA-09. The district court did not provide any
explanation of its conclusion that the public health benefits from an emergency
measure like GA-09 are “outweighed” by any temporary loss of constitutional
rights. Instead, the court rotely concluded that all injunctions vindicating
constitutional rights serve the public interest and that a TRO would “continue
the status quo.” App. 270. With respect, that blinks reality. The status quo
Texas faces, along with the rest of the nation, is a public health crisis that is
making once-in-a-lifetime demands on citizens, government, industry, and the
medical profession. Where there is a status quo to preserve, it is certainly true
that an injunction does “not disserve the public interest [if] it will prevent
constitutional deprivations.” Jackson Women’s Health Org. v. Currier [Jackson
I], 760 F.3d 448, 458 n.9 (5th Cir. 2014). But the essence of equity is the ability
24
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to craft a particular injunction meeting the exigencies of a particular
situation. “Flexibility rather than rigidity has distinguished it.” Hecht Co. v.
Bowles, 321 U.S. 321, 329 (1944). Thus, a court must at the very least weigh
the potential injury to the public health when it considers enjoining state
officers from enforcing emergency public health laws. A single conclusory
statement that does not explain this balancing falls far short.
Instead of doing any of this, the district court substituted its ipse dixit
for the Governor’s reasoned judgment, bluntly concluding that “[t]he benefits
of a limited potential reduction in the use of some personal protective
equipment by abortion providers is outweighed by the harm of eliminating
abortion access in the midst of a pandemic that increases the risks of
continuing an unwanted pregnancy.” App. 270. Respondents—as well as our
dissenting colleague—share this view. ECF 53 at 2, 17–21; Dissent at 11–12.
As Jacobson repeatedly instructs, however, if the choice is between two
reasonable responses to a public crisis, the judgment must be left to the
governing state authorities. “It is no part of the function of a court or a jury to
determine which one of two modes [i]s likely to be the most effective for the
protection of the public against disease.” Jacobson, 197 U.S. at 30. Such
authority properly belongs to the legislative and executive branches of the
governing authority. In light of the massive and rapidly-escalating threat
posed by the COVID-19 pandemic, “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.” Id. at 28 (emphasis
added). The district court’s order contravened this principle; Respondents and
the dissenting opinion invite us to do the same. We decline to engage in such
“unwarranted judicial action.” Will, 389 U.S. at 95.
25
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To be sure, the judiciary is not completely sidelined in a public health
crisis. We have already explained that Respondents may seek more targeted
relief, if they can prove their entitlement to it, at the preliminary injunction
stage. Additionally, a court may inquire whether Texas has exploited the
present crisis as a pretext to target abortion providers sub silentio. See Lawton,
152 U.S. at 137. Respondents make allegations to that effect, contending that
Petitioners are using GA-09 “to exploit the COVID-19 pandemic to achieve
their longtime goal of banning abortion in Texas.” ECF 53 at 1. Nonetheless,
on this record, we see no evidence that GA-09 was meant to exploit the
pandemic in order to ban abortion or was crafted “as some kind of ruse to
unreasonably delay . . . abortion[s] past the point where a safe abortion could
occur.” Garza, 874 F.3d at 753 n.3 (Kavanaugh, J., dissenting). To the contrary,
GA-09 applies to a whole host of medical procedures and regulates abortions
evenhandedly with those other procedures. The order itself does not even
mention abortion—or any other particular procedure—at all. Instead, it refers
broadly to “all surgeries or procedures” that meet its criteria. 25 Respondents
point to no evidence that GA-09 applies any differently to abortions than to
any other procedure. Nor do they cite any comparable procedures that are
exempt from GA-09’s requirements. On the other hand, Petitioners produce
evidence that myriad other procedures are affected just as abortions are. For
example, Petitioners offer a declaration from Dr. Timothy Harstad, M.D., who
testified that some cosmetic, bariatric, orthopedic, and gynecologic procedures
25 The district court relied heavily on the Attorney General’s press release of March
23, 2020, which clarified that in the Attorney General’s view, the GA-09 “includ[es] abortion
providers.” App. 31, 264–65. But the district court gave no reason to believe this press release
has the force of law. And, in any event, the press release also reads the order to apply “to all
surgeries and procedures[,] . . . including routine dermatological, ophthalmological, and
dental procedures, as well as . . . orthopedic surgeries or any type of abortion that is not
medically necessary to preserve the life or health of the mother.” App. 30.
26
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“are being suspended” alongside abortions. App. 230–31. Petitioners also point
to the fact that the Centers for Medicare & Medicaid Services have
recommended postponing several other critical procedures, including
endoscopies and colonoscopies, and even some oncological and cardiovascular
procedures for low-risk patients. 26 This evidence undermines Respondents’
contention that GA-09 exploits the present crisis to ban abortion. Respondents
will have the opportunity, of course, to present additional evidence in
conjunction with the district court’s preliminary injunction hearing scheduled
for April 13, 2020. Our decision, however, must be limited to the record before
us. Based on that record, we cannot say that GA-09 is a pretext for targeting
abortion.
The district court, for its part, did not even purport to engage in the sort
of limited pretext inquiry contemplated by cases like Jacobson and Lawton.
Instead, the district court overstepped its proper role and imposed its own
judgment about how the COVID-19 pandemic should be handled with respect
to abortion. 27 This was a usurpation of the state’s power. Will, 389 U.S. at 95.
26 See CMS Adult Elective Surgery and Procedures Recommendations,
https://www.cms.gov/files/document/31820-cms-adult-elective-surgery-and-procedures-
recommendations.pdf (last visited April 6, 2020).
27 Likewise, the dissent contends that “[r]estricting contact between abortion
providers and their patients cannot further the goals of GA-09 if the same order permits in-
person contact between providers and patients in other settings.” Dissent at 13. But this is
true of all surgeries and procedures. Nonetheless, in part to “limit[ ] exposure of patients and
staff to the virus that causes COVID-19,” CMS recommends postponing “non-essential
surgeries and other procedures.” See CMS Adult Elective Surgery and Procedures
Reccomendations (Mar. 15, 2020), https://www.cms.gov/files/document/31820-cms-adult-
elective-surgery-and-procedures-recommendations.pdf. GA-09 notes that it follows
recommendations from “the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon
General, and the Centers for Medicare and Medicaid Services.” And the state’s infectious
disease expert said that the risk of spreading the virus is real, “especially in the health care
setting due to the proximity.” Marier Declaration ¶ 6, App. 240. We reiterate that Jacobson
commands that it is not the court’s role “to determine which one of two modes [i]s likely to be
most effective for the protection of the public against disease.” 197 U.S. at 30.
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***
In sum, based on the record before us, we conclude that Petitioners have
a clear and indisputable right to issuance of the writ, satisfying the second
mandamus prong. Itron, 883 F.3d at 567.
B.
We now consider whether Petitioners have shown they “have no other
adequate means” to obtain the relief they seek. Cheney, 542 U.S. at 380. This
requirement is “designed to ensure that the writ will not be used as a substitute
for the regular appeals process.” Id. at 380–81. Mandamus is generally
unavailable for review of “district court decisions that, while not immediately
appealable, can be reviewed at some juncture.” In re Crystal Power Co., 641
F.3d 82, 83 (5th Cir. 2011). “[F]or an appeal to be an inadequate remedy, there
must be ‘some obstacle to relief beyond litigation costs that renders obtaining
relief not just expensive but effectively unobtainable.’” Depuy Orthopaedics,
870 F.3d at 353 (quoting Lloyd’s Register, 780 F.3d at 289). In other words, the
error claimed must be “truly irremediable on ordinary appeal.” JPMorgan
Chase, 916 F.3d at 499 (cleaned up) (quoting Depuy, 870 F.3d at 352–53).
Given the surging tide of COVID-19 cases and deaths, Petitioners have
made this showing. In mill-run cases, it might be a sufficient remedy to simply
wait until the expiration of the TRO, and then appeal an adverse preliminary
injunction. See 28 U.S.C. § 1292(a)(1). In other cases, a surety bond may ensure
that a party wrongfully enjoined can be compensated for any injury caused.
See Fed. R. Civ. P. 65(c).
Those methods would be woefully inadequate here. The TRO is set to
expire April 13, 2020, two weeks from the date it issued. App. 271. But time is
of the essence when it comes to preventing the spread of COVID-19 and
conserving medical resources critically needed to care for patients. To illustrate
the speed at which the pandemic has been unfolding: As of March 20 there
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were, per the WHO’s daily report, 234,073 confirmed cases of COVID-19 and
9,840 deaths. 28 As of April 6, there were 1,210,956 confirmed cases, and 67,954
deaths. 29 As of April 1, Texas had 4,544 cases; by April 6, the number had risen
to 7,359 cases. 30 That number will undoubtedly rise substantially in coming
days absent successful preventative measures. As the Dallas Morning News
wrote on April 1: “The greatest number of cases will come in about a 10-day
period that will begin soon.” 31 On April 2, Respondents conceded that
“[g]overnment officials and medical professionals expect a surge of infections
that will test the limits of a health care system already facing a shortage of
PPE[.]” ECF 53 at 3. Respondents also concede that surgical abortions consume
PPE, such as “gloves, a surgical mask, disposable protective eyewear,
disposable or washable gowns, and . . . shoe covers.” Id. at 6. Moreover,
abortion is a common procedure: the evidence shows 53,843 total abortions—
36,793 of those surgical—were performed in Texas in 2017. App. 222. In sum,
were Petitioners required to wait and appeal an adverse preliminary
injunction, the harms from a broad suspension of GA-09 for all abortion
procedures could not “be put back in the bottle.” Volkswagen, 545 F.3d at 319.
28 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19)
SITUATION REPORT – 60 (March 20, 2020), https://www.who.int/docs/default-
source/coronaviruse/situation-reports/20200320-sitrep-60-covid-19.pdf?sfvrsn=d2bb4f1f_2.
29 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19)
SITUATION REPORT – 77 (April 6, 2020), https://www.who.int/docs/default-
source/coronaviruse/situation-reports/20200406-sitrep-77-covid-19.pdf?sfvrsn=21d1e632_2.
Johns Hopkins University & Medicine Coronavirus Resource Center, Coronavirus
30
COVID-10 Global Cases, https://coronavirus.jhu.edu/map.html (last visited April 6, 2020).
31Steven Gjerstad, U.S. cases of COVID-19 will peak in a couple of weeks; Only social
distancing will break the virus, DALLAS MORNING NEWS (April 1, 2020),
https://www.dallasnews.com/opinion/commentary/2020/04/01/us-cases-of-covid-19-will-peak-
in-a-couple-of-weeks-only-social-distancing-will-break-the-virus/
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The error would be “truly irremediable” through ordinary appeal. JPMorgan
Chase, 916 F.3d at 499 (cleaned up). 32
We therefore conclude no other adequate means exist for Petitioners to
obtain the relief they seek, thus satisfying the first mandamus prong.
C.
Finally, we must decide whether to exercise our discretion to issue the
writ. See Gee, 941 F.3d at 170. “Discretion is involved in defining both the
circumstances that justify exercise of writ power and also the reasons that may
justify denial of a writ even though the circumstances might justify a grant.”
16 WRIGHT & MILLER, supra, § 3933. “The longstanding view is that discretion
to issue the writs should be exercised only in special cases . . . .” Id.
We are persuaded that this petition presents an extraordinary case
justifying issuance of the writ. First, as we have noted, the current global
pandemic has caused a serious, widespread, rapidly-escalating public health
crisis in Texas. Petitioners’ interest in protecting public health during such a
time is at its zenith. In the unprecedented circumstances now facing our
society, even a minor delay in fully implementing the state’s emergency
measures could have major ramifications because, as the evidence shows, an
32 Federal courts of appeals have issued writs of mandamus to vacate TROs in a
number of less-urgent scenarios. See, e.g., In re King World Prods., Inc., 898 F.2d 56 (6th Cir.
1990) (vacating TRO enjoining news organization from broadcasting video recording); Truck
Drivers Local Union No. 807, Int’l Bhd. of Teamsters v. Bohack Corp., 541 F.2d 312 (2d Cir.
1976) (vacating TRO enjoining Board from conducting unfair labor practice proceedings);
O’Neill v. Battisti, 472 F.2d 789 (6th Cir. 1972) (vacating TRO enjoining Ohio Supreme Court
from enforcing its own disciplinary order or taking further disciplinary action against state
judge). A fortiori, mandamus is an appropriate mechanism for challenging the TRO in the
present case, which restrains Petitioners from fully implementing emergency public health
measures in a time of unprecedented crisis.
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“exponential increase in COVID-19 cases is expected over the next few days
and weeks.” App. 224–25. It is hard to imagine a more urgent situation.
Second, the district court’s refusal to acknowledge the governing
framework from Jacobson was a clear abuse of discretion that produced a
patently erroneous result: bestowing on abortion providers a blanket
exemption from a generally-applicable emergency public health measure. Not
stopping there, the district court usurped the power of state authorities by
passing judgment on the wisdom and efficacy of those emergency measures.
These are “extraordinary” errors. See Volkswagen, 545 F.3d at 318.
Third, “writs of mandamus are supervisory in nature and are
particularly appropriate when the issues also have an importance beyond the
immediate case.” Id. at 319. While unclear how long the current crisis will last,
it is probable that other legal disputes will arise pitting claims of private rights
against the states’ authority to preserve public health and safety. Indeed, 34
states plus the District of Columbia have filed amicus briefs in this case,
demonstrating the widespread importance of the issues involved. We also view
the “sheer magnitude” of the district court’s error and its effect on the state’s
ongoing emergency efforts to slow COVID-19 as evidence that the “safety
valve” of mandamus is appropriate. Itron, 883 F.3d at 568–69 (cleaned up).
Lastly, we note that this case is distinguishable from our recent decisions
in Gee and JPMorgan Chase, where, in our discretion, we declined to issue
writs of mandamus. In Gee, we concluded that, even though the district court
clearly abused its discretion in failing to undertake the required jurisdictional
analysis, mandamus was nevertheless not required because (1) it was unclear
what result the district court would reach once it performed the correct
analysis, and (2) many of the petitioner’s arguments went beyond jurisdiction
and challenged the plaintiffs’ theory on the merits. See 941 F.3d at 170. In light
of those considerations, we deemed it imprudent to issue the writ. Id. In
31
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JPMorgan Chase, we concluded that the district court’s error, while
significant, was not “clear and indisputable” because it “followed numerous
others” who had made the same mistake. 916 F.3d at 504.
We confront vastly different circumstances here. To begin with, unlike
in Gee, the district court addressed the merits of Respondents’ claim, though it
did so in a manner that overlooked the controlling framework and produced
patently erroneous results. See Volkswagen, 545 F.3d at 319. Given the severe
time constraints here, we do not have the luxury to wait and see what approach
the district court might take on the merits. Second, unlike in JPMorgan Chase,
the district court’s decision here did not align with “numerous” other courts
which had confronted the same issue. To the contrary, the district court cited
not a single case addressing restrictions on abortion during a public health
crisis. Therefore, “we are aware of nothing that would render the exercise of
our discretion to issue the writ inappropriate.” Volkswagen, 545 F.3d at 319.
For those reasons, we exercise our discretion to issue a writ of
mandamus. See Cheney, 542 U.S. at 381.
IV.
The petition for writ of mandamus is GRANTED, directing the district
court to vacate the TRO entered on March 30, 2020. Petitioners’ emergency
motion to stay the TRO pending resolution of their mandamus petition is
DENIED AS MOOT. Our temporary stay of March 31, 2020, is LIFTED. Any
future appeals or mandamus petitions in this case will be directed to this panel
and will be expedited. Gee, 941 F.3d at 173; In re First South Sav. Ass’n, 820
F.2d 700, 716 (5th Cir. 1987). The mandate shall issue forthwith.
32
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JAMES L. DENNIS, dissenting.
Eight days ago, the district court temporarily restrained Texas’s
temporary ban of all medication abortions and procedural abortions. “The
benefits of a limited potential reduction in the use of some personal protective
equipment by abortion providers,” the district court explained, “is outweighed
by the harm of eliminating abortion access in the midst of a pandemic that
increases the risks of continuing an unwanted pregnancy, as well as the risks
of travelling to other states in search of time-sensitive medical care.” Other
states, including Oklahoma, 1 Alabama, 2 and Ohio, 3 have attempted to limit a
woman’s access to abortion during the COVID-19 pandemic. Thus far, none of
those attempts has been successful in the face of a constitutional challenge,
either in the district courts or on appeal. South Wind Women’s Center LLC v.
Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2 (W.D. Okla. Apr. 6, 2020)
(“[W]hile the current public health emergency allows the state of Oklahoma to
impose some of the cited measures delaying abortion procedures, it has acted
in an ‘unreasonable,’ ‘arbitrary’ and ‘oppressive’ way—and imposed an ‘undue
1 Okla. Exec. Order No. 2020-07 (Mar. 24, 2020),
https://www.sos.ok.gov/documents/executive/1919.pdf; Press Release, Office of the Oklahoma
Governor, Governor Stitt Clarifies Elective Surgeries and Procedures Suspended under
Executive Order (Mar. 27, 2020), https://www.governor.ok.gov/articles/press_releases/
governor-stitt-clarifies-elective-surgeries (“[A]ny type of abortion services . . . which are not
a medical emergency . . . or otherwise necessary to prevent serious health risks to the unborn
child’s mother are included in that Executive Order.”)
2 Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk
of Infection by COVID-19 (Mar. 27, 2020), https://governor.alabama.gov/assets/2020/03/
Amended-Statewide-Social-Distancing-SHO-Order-3.27.2020-FINAL.pdf; Robinson v.
Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *1 (M.D. Ala. Mar. 30, 2020)
(explaining that the Alabama state’s attorney “in his oral representations on the record, took
the position that the March 27 order requires the postponement of any abortion that is not
medically necessary to protect the life or health of the mother”).
3 Ohio Department of Health, RE: Director’s Order for the Management of Non-
essential Surgeries and Procedures throughout Ohio (Mar. 17, 2020); Preterm-Cleveland v.
Attorney Gen. of Ohio, No. 1:19-cv-00360, slip op. at 2-3 (S.D. Ohio Mar. 30, 2020) (stating
that Ohio’s attorney general sent letters to abortion providers citing the Director’s Order and
they must “immediately stop performing non-essential and elective surgical abortions”).
33
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burden’ on abortion access—in imposing requirements that effectively deny a
right of access to abortion. Further, the court concludes that the benefit to
public health of the ban on medication abortions is minor and outweighed by
the intrusion on Fourteenth Amendment rights caused by that ban.”);
Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *2 (M.D.
Ala. Mar. 30, 2020) (“Because Alabama law imposes time limits on when
women can obtain abortions, the March 27 order is likely to fully prevent some
women from exercising their right to obtain an abortion. And for those women
who, despite the mandatory postponement, are able to vindicate their right,
the required delay may pose an undue burden that is not justified by the State’s
purported rationales.”); Preterm-Cleveland v. Attorney Gen. of Ohio, No. 1:19-
cv-00360, slip op. at 7 (S.D. Ohio Mar. 30, 2020) (“Defendants have not
demonstrated to the Court, at this point, that Plaintiffs’ performance of these
surgical procedures will result in any beneficial amount of net saving of PPE
in Ohio such that the net saving of PPE outweighs the harm of eliminating
abortion.”), appeal dismissed, No. 20-3365 (6th Cir. Apr. 6, 2020). The
American College of Obstetricians and Gynecologists released a statement that
“abortion should not be categorized” as a “procedure[] that can be delayed
during the COVID-19 pandemic.” 4 The statement emphasized, as the district
court did, that abortion is “a time-sensitive service for which a delay of several
weeks, or in some cases days, may increase the risks or potentially make it
completely inaccessible.”
Today, the majority concludes that allowing women in Texas access to
time-sensitive reproductive healthcare, a right supported by almost 50 years
of Supreme Court precedent, was a “patently erroneous” result that must be
4 Joint Statement on Abortion Access During the COVID-19 Outbreak, THE AMERICAN
COLLEGE OF OBSTETRICS AND GYNECOLOGISTS (Mar. 18, 2020), https://www.acog.org/news
/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak.
34
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remedied by “one of the most potent weapons in the judicial arsenal.” See In
re JPMorgan Chase & Co., 916 F.3d 494, 504 (5th Cir. 2019) (quoting Cheney
v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). Unfortunately, this is a
recurring phenomenon in this Circuit in which a result follows not because of
the law or facts, but because of the subject matter of this case. See June Med.
Servs. L.L.C. v. Gee, 905 F.3d 787, 835 (5th Cir. 2018) (“[W]hen abortion shows
up, application of the rules of law grows opaque.” (Higginbotham, J.,
dissenting)), cert. granted, 140 S. Ct. 35 (2019)). For the reasons that follow, I
dissent.
I.
On March 22, 2020, Texas Governor Greg Abbott signed Executive Order
GA-09 (“GA-09”) to expand hospital bed capacity as the state responds to the
COVID-19 virus. The Executive Order, which “ha[s] the force and effect of
law,” TEX. GOV’T CODE ANN. § 418.012 (West 2019), states that until 11:59 p.m.
on April 21, 2020,
[a]ll licensed health care professionals and all licensed health care
facilities shall postpone all surgeries and procedures that are not
immediately medically necessary to correct a serious medical
condition of, or to preserve the life of, a patient who without
immediate performance of the surgery or procedure would be at
risk for serious adverse medical consequences or death, as
determined by the patient’s physician. 5
The Executive Order exempts “any procedure that, if performed in accordance
with the commonly accepted standard of clinical practice, would not deplete
the hospital capacity or the personal protective equipment needed to cope with
the COVID-19 disaster.”
Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press
5
/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
35
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The day after the Governor signed GA-09, Texas Attorney General Ken
Paxton issued a news release stating that GA-09’s prohibition on medically
unnecessary surgeries and procedures “applies throughout the State and to all
surgeries and procedures that are not immediately medically necessary,
including . . . any type of abortion that is not medically necessary to preserve
the life or health of the mother.” 6 The release states that “[f]ailure to comply
with an executive order issued by the governor related to the COVID-19
disaster can result in penalties of up to $1,000 or 180 days of jail time.” Paxton
emphasized that “[n]o one is exempt from the governor’s executive order on
medically unnecessary surgeries and procedures, including abortion
providers,” and “[t]hose who violate the governor’s order will be met with the
full force of the law.”
Several organizations that provide abortion services in Texas and a
board-certified family medicine physician who provides abortion care
(collectively, “Respondents”) brought an action in the Western District of Texas
under 42 U.S.C. § 1983, challenging GA-09 and the Texas Medical Board’s
emergency amendment to Title 22 Texas Administrative Code section 187.57,
which imposes the same requirements. Respondents moved for a temporary
restraining order (“TRO”) to enjoin enforcement of GA-09 and the Emergency
Rule insofar as they purport to ban all medication abortions and procedural
abortions, as the attorney general’s news release suggests.
I include this explanation not to reiterate the procedural history the
majority has already explained, but to emphasize what exactly we are
reviewing. Respondents brought a constitutional challenge to GA-09, and
6 News Release, Office of the Texas Attorney General, Health Care Professionals and
Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary
Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23,
2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-
facilities-including-abortion-providers-must-immediately-stop-all.
36
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though the attorney general’s interpretation of that order constitutes the crux
of the constitutional issues present in this case, it is GA-09 and only GA-09
that we are interpreting. The majority agrees that the attorney general’s news
release interpreting GA-09 is not legally binding. Maj. Op. at 25 n.22. The
attorney general cannot modify the text of the governor’s executive order
through his news release; only the governor has the power to “issue executive
orders . . . [that] have the force and effect of law.” TEX. GOV’T CODE ANN. §
418.012. And GA-09 grants abortion providers the power to determine whether
a procedure is “immediately medically necessary to correct a serious medical
condition of . . . a patient who without immediate performance of the surgery
or procedure would be at risk for serious adverse medical consequences.” It
also permits an exception for any abortion that “if performed in accordance
with the commonly accepted standard of clinical practice, would not deplete
the hospital capacity or the personal protective equipment needed to cope with
the COVID-19 disaster.”
The attorney general’s news release interprets GA-09 to ban “any type
of abortion that is not medically necessary to preserve the life or health of the
mother,” regardless, apparently, of whether such a procedure (1) in the view of
the patient’s physician, is immediately medically necessary and would put a
patient at risk for serious adverse medical consequences if not performed, or
(2) would fall under GA-09’s exception for procedures that do not utilize PPE
or deplete hospital capacity.
II.
The district court granted Respondents’ TRO, halting enforcement of
GA-09 insofar as it bans all procedural and medication abortions. Petitioners
seek a writ of mandamus to remedy what they describe as a “clearly and
indisputably erroneous” decision. The Supreme Court and this court have
repeatedly emphasized that mandamus is an “extraordinary remedy” to be
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exercised only in “exceptional circumstances.” See Cheney, 542 U.S. at 380
(quoting Will v. United States, 389 U.S. 90, 95 (1967)); In re Lloyd’s Register N.
Am., Inc., 780 F.3d 283, 288, 294 (5th Cir. 2015); In re Volkswagen of Am., Inc.,
545 F.3d 304, 309, 311 (5th Cir. 2008). To obtain relief, Petitioners “must do
more than prove merely that the court erred.” In re Occidental Petroleum
Corp., 217 F.3d 293, 295 (5th Cir. 2000). “The traditional use of the writ . . .
has been to confine the court against which mandamus is sought to a lawful
exercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (alteration
omitted) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). Its
use is justified in “only exceptional circumstances amounting to a judicial
‘usurpation of power,’ or a ‘clear abuse of discretion.’” Id. (quoting Will, 389
U.S. at 95; Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)).
Mandamus relief generally requires that (1) “the party seeking issuance
of the writ [must] have no other adequate means to attain the relief he
desires—a condition designed to ensure that the writ will not be used as a
substitute for the regular appeals process”; (2) “the petitioner must satisfy the
burden of showing that [his] right to issuance of the writ is clear and
indisputable”; and (3) “the issuing court, in the exercise of its discretion, must
be satisfied that the writ is appropriate under the circumstances.” Id. at 380-
81 (internal quotation marks and citations omitted).
Under the “clear and indisputable” prong, id., Petitioners must show the
district court’s determination was a “clear abuse[] of discretion that produce[d]
patently erroneous results.” In re Lloyd’s Register N. Am., Inc., 780 F.3d at
290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at 312). Both conditions—
clear abuse of discretion and a patently erroneous result—must be met to
obtain mandamus relief. See id.
The majority concludes that the district court clearly erred by not
applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and
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its result, allowing medication and procedural abortions to proceed, was
patently erroneous. It also concludes that “the court usurped the power of the
governing state authority when it passed judgment on the wisdom and efficacy
of those emergency measures, something squarely foreclosed by Jacobson.”
Maj. Op. at 9-10. For several reasons, the majority is wrong.
III.
In Jacobson, the city of Cambridge, Massachusetts, pursuant to state
statute, passed a regulation requiring all of its citizens to receive a smallpox
vaccination to combat a smallpox outbreak. 197 U.S. at 12. Jacobson
challenged the regulation, arguing that it violated his Fourteenth Amendment
right “to care for his own body and health in such a way as to him seems best.”
Id. at 26. The Court explained that the state’s action in compelling vaccination
was an exercise of its police power, which “must be held to embrace, at least,
such reasonable regulations established directly by legislative enactment as
will protect the public health and the public safety.” Id. at 25. In rejecting
Jacobson’s constitutional challenge, the Court explained “[e]ven liberty itself,
the greatest of all rights, is not unrestricted license to act according to one’s
own will. It is only freedom from restraint under conditions essential to the
equal enjoyment of the same right by others.” Id. at 26-27. The Court
explained, however, that individual rights are not gutted during a crisis:
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.” Id. at 28, 30.
Jacobson, then, stands for the proposition that a state by its legislature may
utilize its police power to enact laws to protect the public health and safety,
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even though such laws may impose restraints on citizens’ liberties, so long as
that regulation is “justified by the necessities of the case” and does not violate
rights secured by the Constitution “under the guise of exerting a police power.”
Id. at 28-29.
A.
This case is clearly distinguishable from Jacobson. There, the city
required its citizens to get a smallpox vaccine to stop the spread of a smallpox
outbreak. The measure adopted by the city related directly to the public health
crisis—every citizen who did not receive the vaccine could actively spread the
disease, and therefore mandatory vaccination actively curbed the disease’s
spread. The thread connecting GA-09 to combatting COVID-19 is more
attenuated—premised not on the idea that abortion providers are spreading
the virus, but that their continuing operation requires the use of resources that
should be conserved and made available to healthcare workers fighting the
outbreak. This reasoning requires the additional link that those PPE
resources denied to abortion providers are indeed conserved, are significant in
amount, and can realistically be reallocated to healthcare workers fighting
COVID-19, a showing that Petitioners have not made.
B.
The majority claims that “Jacobson disclaimed any judicial power to
second-guess the policy choices made by the state in crafting emergency public
health measures.” Maj. Op. at 12. But the Court did not conclude that an
emergency situation deprives courts of their duty and power to uphold the
constitution—quite the opposite, in fact.
The Court in Jacobson determined that the Massachusetts law should
not be invalidated because “[s]mallpox being prevalent and increasing in
Cambridge, the court would usurp the functions of another branch of
government if it adjudged, as a matter of law, that the mode adopted under the
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sanction of the state, to protect the people at large was arbitrary, and not
justified by the necessities of the case.” Jacobson, 197 U.S. at 28 (emphases
added). The Court certainly did not disclaim any power to so rule, under
appropriate circumstances, however, explaining:
We say necessities of the case, because it might be that an
acknowledged power of a local community to protect itself against
an epidemic threatening the safety of all might be exercised in
particular circumstances and in reference to particular persons in
such an arbitrary, unreasonable manner, or might go so far beyond
what was reasonably required for the safety of the public, as to
authorize or compel the courts to interfere for the protection of
such persons.
Id. The Court in Jacobson also explained that it had previously “recognized
the right of a state to pass sanitary laws, laws for the protection of life, liberty,
[and] health . . . within its limits.” Id. (citing Hannibal & St. J.R. Co. v. Husen,
95 U.S. 465, 471-73 (1877)). While states have the right to pass such laws, the
Court explained, the courts have a “duty to hold . . . invalid” laws that “went
beyond the necessity of the case, and, under the guise of exerting a police
power, invaded the domain of Federal authority, and violated rights secured
by the Constitution.” Id.
Thus, the Court clearly anticipated that courts would exercise judicial
oversight over a state’s decision to restrict personal liberties during
emergencies. See id. Jacobson merely acknowledged that what is reasonable
during an emergency is different from what is reasonable under normal
circumstances, and that courts must not act as super-executives in an
emergency. Given the language of Jacobson, then, the Court was concerned
with both what the majority focuses on—the state’s ability to adequately
protect its citizens during a public health crisis—and what the majority
ignores—the courts’ ability to protect citizens’ constitutional rights when
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states attempt to unjustifiably seize and wield power in the name of the health
and safety.
Therefore, Jacobson reaffirms the district court’s duty, and our duty, “to
hold [GA-09] invalid” if it (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.”
See id. at 28, 30.
IV.
After concluding that the district court clearly abused its discretion in
not relying on Jacobson, the majority determines that this error produced a
patently erroneous result. Maj. Op. at 15-23. The majority claims that the
district court’s conclusion that GA-09 amounts to a previability ban is patently
erroneous. Maj. Op. at 17. In my view, this “conclusion” does not accurately
characterize the “result” of the district court’s order. See In re Volkswagen of
Am., Inc., 545 F.3d at 310 (“[W]e only will grant mandamus relief when such
errors produce a patently erroneous result.” (emphasis added)). The result of
the district court’s order is to uphold women’s rights to abortions and to allow
medical and procedural abortions to proceed. That result is not patently
erroneous and therefore does not warrant mandamus relief. Contrary to the
majority’s view, nothing in Jacobson or any of the Supreme Court’s cases
requires a different result.
A.
The goals of GA-09 are furthered by restricting abortions, according to
Petitioners, because abortions: (1) “reduce[] the scarce supply of PPE available
to healthcare providers treating COVID-19 patients,” (2) “result[] in the
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hospitalization of women,” reducing hospital capacity for COVID-19 patients,
and (3) “contribute[] to the spread of the COVID-19 virus.”
Though GA-09 does not define PPE, Respondents explain that the term
is generally understood to refer to N95 respirators, surgical masks, non-sterile
and sterile gloves, and disposable protective eyewear, gowns, and hair and shoe
covers. In response to Petitioners’ argument that abortions will deplete PPE
necessary for healthcare providers treating COVID-19 patients, Respondents
contend that abortions utilize little or no PPE and that abortions are time-
sensitive procedures.
Regarding the first point, whether an abortion takes no PPE or some
PPE depends on the type of procedure. Procedural abortions in Texas are
single-day procedures that, unlike surgeries, require no hospital bed, incision,
general anesthesia, or sterile field. During the procedure, the providers use
PPE such as gloves, a surgical mask, disposable protective eyewear, disposable
or washable gowns, and hair and shoe covers. Most Respondents do not have
N95 respirators, and those that do have only a small supply that they rarely,
if ever, use. Medication abortions, which involve only taking medications by
mouth, require no PPE to administer the medication, and may require the use
of gloves only at pre- and post-procedure appointments, depending on the
circumstances. Petitioners identify no other treatment through oral
medication that would be affected by GA-09.
Moreover, Respondents point out that Petitioners’ PPE conservation
argument mistakenly assumes that a patient unable to obtain an abortion will
not otherwise need medical care that requires the consumption of PPE.
Pregnant patients who cannot access abortion require prenatal care and must
often undergo unplanned hospital visits. And to the extent patients are
prevented from obtaining abortions altogether, childbirth and delivery require
exponentially more PPE than an abortion. Denying pregnant patients access
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to abortion now may simply change the purpose for which the PPE is used,
without any surplus that is able to be reallocated to healthcare workers
treating COVID-19 patients. Other pregnant patients with the resources to do
so may choose to seek abortions outside of Texas—a result clearly contrary to
Texas’s purported goal of avoiding the spread of the virus. GA-09 has already
led patients to travel to other states to obtain abortion care in a pandemic,
exposing patients and third parties to infection risks. One out-of-state
physician stated that he treated 30 abortion patients from Texas in the week
after the attorney general’s statement.
Petitioners also argue that the abortion restrictions are necessary to
preserve hospital capacity, while Respondents point out that legal abortions
are safe and almost never require hospitalization, and abortion care is
substantially less likely to lead to hospitalization than caring for a patient with
respect to full term pregnancy, childbirth, and post-natal care.
Finally, Petitioners argue that GA-09 as understood to ban all abortions
provides the benefit of restricting contact between patients, medical staff, and
physicians to help prevent the spread of COVID-19. While this may be true,
the language of GA-09 reveals that it was not adopted to serve this interest.
GA-09 exempts “any procedure . . . that would not deplete the hospital capacity
or the personal protective equipment needed to cope with the COVID-19
disaster.” It excludes all forms of medical care save “surgeries and procedures,”
and therefore does not contemplate restricting any other type of medical care
that results in contact between providers and patients. Restricting contact
between abortion providers and their patients cannot further the goals of GA-
09 if the same order permits in-person contact between providers and patients
in other settings.
Petitioners suggest that, in addition to these reasons, “Plaintiffs have
identified no substantial burdens that will result from delaying elective
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abortions in accordance with [GA-09].” The majority agrees, concluding that
“the expiration date makes GA-09 a delay, not a ban.” Maj. Op. at 19. But it
is painfully obvious that a delayed abortion procedure could easily amount to
a total denial of that constitutional right: If currently scheduled abortions are
postponed, many women will miss the small window of opportunity they have
to access a legal abortion. Texas generally prohibits abortion after twenty-two
weeks from the first day of the pregnant person’s last menstrual period
(“LMP”), see TEX. HEALTH & SAFETY CODE § 171.044, and therefore GA-09 has
the potential to deny a woman’s constitutional right to an abortion where that
right will lapse during the duration of GA-09. A woman has only a small
window of opportunity to exercise her constitutional right to choose, and
therefore Petitioners’ action in further narrowing that window will present a
burden in many cases.
B.
First, prohibiting abortions for patients whose pregnancies will, before
the expiration of GA-09, reach or exceed twenty-two weeks, the gestational
point at which abortion may no longer be provided in Texas, represents “a
plain, palpable invasion of rights secured by the fundamental law.” Jacobson,
197 U.S. at 31. Even if such state action is successful in conserving the
minimal PPE utilized in such procedures, as applied to this group of people,
the state’s action constitutes an outright ban on previability abortion, which is
“beyond question, in palpable conflict with the Constitution.” Id.; id. at 28
(explaining that a state’s police power “might be exercised . . . in reference to
particular persons in such an arbitrary, unreasonable manner, or might go so
far beyond what was reasonably required for the safety of the public, as to
authorize or compel the courts to interfere for the protection of such persons”);
see Roe v. Wade, 410 U.S. 113, 153-54 (1973). Insofar as GA-09 applies to this
group of women, then, the district court’s result in allowing abortions to
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proceed was not patently erroneous. See In re Lloyd’s Register N. Am., Inc.,
780 F.3d at 290.
Second, insofar as GA-09 bans procedural and medication abortions
generally, this act “has no real or substantial relation to” Petitioners’ stated
goal of conserving PPE and maintaining access to hospital beds and therefore
it goes “beyond the necessity of the case, and, under the guise of exerting a
police power . . . violate[s] rights secured by the Constitution.” See Jacobson,
197 U.S. at 28, 31. In particular, abortions require minimal PPE (and
medication abortions require no PPE to administer the medication), do not
require the use of N95 respirator masks, and rarely require hospitalization.
And as Respondents point out, the medical resources conserved by prohibiting
abortions would simply be otherwise consumed through prenatal care by
women forced to continue their pregnancies or incentivize women to travel out
of state to obtain abortions, facilitating the spread of the virus. Finally, even
assuming that delayed abortions in fact conserve PPE, Respondents have not
demonstrated how the PPE could realistically be reallocated to healthcare
workers fighting COVID-19.
Petitioners have, therefore, failed to establish that the district court
“reached a patently erroneous result” in temporarily restricting Texas’s ability
to enforce GA-09 insofar as it bans all procedural and medication abortions.
See In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290. Mandamus relief
should be denied.
***
The district court’s result was supported by nearly 50 years of Supreme
Court precedent protecting a woman’s right to choose, and as such I would not
conclude that it was patently erroneous. In a time where panic and fear
already consume our daily lives, the majority’s opinion inflicts further panic
and fear on women in Texas by depriving them, without justification, of their
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constitutional rights, exposing them to the risks of continuing an unwanted
pregnancy, as well as the risks of travelling to other states in search of time-
sensitive medical care.
I respectfully but emphatically dissent.
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