In re: Greg Abbott

Case: 20-50296 Document: 00515388718 Page: 1 Date Filed: 04/20/2020
REVISED April 20, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 20, 2020
No. 20-50296
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 Writ of Mandamus to the United States
District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
JENNIFER WALKER ELROD and STUART KYLE DUNCAN, Circuit Judges:
On April 7, 2020, we issued a writ of mandamus vacating the district
court’s temporary restraining order (“TRO”) 1 that exempted abortions from
GA-09, an emergency measure temporarily postponing non-essential medical
procedures during the COVID-19 pandemic. In re Abbott, --- F.3d ---, 2020 WL
1685929 (5th Cir. Apr. 7, 2020) (Abbott II). Two days later, on April 9, the
district court entered a second TRO, exempting various categories of abortion
1 See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323, 2020 WL
1502102 (W.D. Tex. Mar. 30, 2020) (Abbott I).
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from GA-09. See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-
323, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) (Abbott III). A flurry of
litigation ensued, during which state officials again sought mandamus and we
administratively stayed parts of the April 9 TRO. 2 Over this period—from
April 7 to 20—Texas COVID-19 cases, hospitalizations, and deaths more than
doubled. 3
We now consider the mandamus petition directed to the April 9 TRO. We
are persuaded by Petitioners’ arguments that the district court, in the April 9
TRO, disregarded our mandate in Abbott II. The court again “fail[ed] to apply
. . . 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).” Abbott II, 2020 WL
1685929, at *5. Moreover, the court again second-guessed the basic mitigation
strategy underlying GA-09 (that is, the concept of “flattening the curve”), and
also acted without knowing critical facts such as whether, during this
pandemic, abortion providers do (or should) wear masks or other protective
equipment when meeting with patients. Those errors led the district court to
enter an overbroad TRO that exceeds its jurisdiction, reaches patently
erroneous results, and usurps the state’s authority to craft emergency public
health measures “during the escalating COVID-19 pandemic.” Id. at *1.
Once again, the dissenting opinion accuses the majority of treating
abortion differently and once again it is wrong. At issue is whether abortion
can be treated the same as other procedures under GA-09. It is the district
2 See In re Abbott, No. 20-50296, 2020 WL 1844644 (5th Cir. Apr. 10, 2020)
(administratively staying TRO in part) (Abbott IV); In re Abbott, 2020 WL 1866010 (5th Cir.
Apr. 13, 2020) (denying stay in part and lifting administrative stay in part) (Abbott V).
3 See Tex. Dep’t of State Health Servs., Texas Case Counts COVID-19,
https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9
cafc8b83 (last visited Apr. 20, 2020).
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court that treated abortion differently, issuing back-to-back TROs that did not
follow the law.
We therefore grant the writ in part and direct the district court to vacate
these parts of the April 9 TRO:
• That part restraining enforcement of GA-09 as a “categorical ban on all
abortions provided by Plaintiffs.”
• That part restraining the Governor of Texas and the Attorney General.
• That part restraining enforcement of GA-09 as to medication abortions.
• That part restraining enforcement of GA-09 as to patients who would
reach 18 weeks LMP 4 on the expiration date of GA-09 and who would be
“unlikely” to be able to obtain abortion services in Texas.
• That part restraining enforcement of GA-09 after 11:59 p.m. on April 21,
2020.
We do not grant the writ, and therefore do not order vacatur, of that part
of the TRO restraining GA-09 as to patients “who, based on the treating
physician’s medical judgment, would be past the legal limit for an abortion in
Texas—22 weeks LMP—on April 22, 2020.”
I.
We summarize the pertinent background, which we have chronicled in
greater detail elsewhere. See Abbott II, 2020 WL 1685929, at *1–4; Abbott IV,
2020 WL 1844644, at *1–2. GA-09 is an emergency public health measure,
issued by the Governor of Texas on March 22, 2020, that postpones non-
essential surgeries and procedures until April 22 to combat the COVID-19
pandemic. It applies to all licensed healthcare providers in Texas, covers a
broad range of procedures, does not mention abortion, and contains life-and-
4 That is, eighteen weeks after the first day of a pregnant woman’s last menstrual
period.
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health exceptions committed to a physician’s judgment. Specifically, GA-09
requires healthcare professionals and facilities to:
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 order does not apply to procedures that, if performed under accepted
standards, “would not deplete the hospital capacity or the personal protective
equipment [“PPE”] needed to cope with the COVID-19 disaster.” 6 GA-09 is
enforceable by criminal and administrative penalties and expires at 11:59 p.m.
on April 21, 2020. 7 See Abbott II, 2020 WL 1685929, at *2–4 & nn.10–12.
When ordering vacatur of the first TRO, we explained that Respondents’
challenge to GA-09 must satisfy the standards in Jacobson v. Massachusetts,
197 U.S. 11 (1905). Specifically, we held:
[W]hen 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.” Jacobson, 197 U.S. 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,
5 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.
6 Id.7 Id. On April 17, 2020, the Governor announced executive order GA-15, which
becomes effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020. As
discussed infra, GA-15 imposes similar—but not identical—requirements as those imposed
by GA-09.
4
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courts may not second-guess the wisdom or efficacy of the
measures. Id. at 28, 30.
Abbott II, 2020 WL 1685929, at *7 (cleaned up). We also articulated how the
Jacobson framework works with the Casey undue-burden analysis. Id. at *11
(discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). A
court should “ask[ ] whether GA-09 imposes burdens on abortion that ‘beyond
question’ exceed its benefits in combating the epidemic Texas now faces.” Id.(quoting Jacobson, 197 U.S. at 31). We emphasized that this analysis would
“require[ ] careful parsing of the evidence” and that “[t]hese 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
. . . in any particular circumstance.” Id. at *11–12 (cleaned up).
The day following our mandamus, April 8, 2020, the district court:
(1) vacated its March 30 TRO; (2) cancelled the telephonic preliminary
injunction hearing previously scheduled for April 13; and (3) ordered the
parties to file a joint status report by April 15 outlining a schedule for a new
preliminary injunction hearing on a yet-unannounced date. That same day,
Respondents filed a new TRO application supported by one new declaration.
The next day, April 9, the district court convened a brief telephone conference
with the parties, during which the court declined to allow Petitioners either to
file a responsive pleading or submit evidence opposing the application. In doing
so, the court remarked to Petitioners, “[I]f I were to make a ruling that was
unsatisfactory to the State defendants before then, then you may head back to
the Circuit with it.” Transcript of 4/9/20 Tele. Conf. at 14:39.
Later that day, the court issued a new TRO. Abbott III, 2020 WL
1815587. Adopting Respondents’ proposed findings of fact and conclusions of
law, compare id. at *1–7, with Proposed TRO, App. 445–57, this TRO restrains
Petitioners from enforcing GA-09 as follows: (1) “as a categorical ban on all
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abortions provided by Plaintiffs”; (2) as to “medication abortions”; (3) as to
“procedural 8 abortion[s] [provided] to any patient who, based on the treating
physician’s medical judgment, would be more than 18 weeks LMP on April 22,
2020, and likely unable to reach an ambulatory surgical center in Texas or to
obtain abortion care”; and (4) as to “procedural abortion[s] [provided] to any
patient who, based on the treating physician’s medical judgment, would be past
the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
Abbott III, 2020 WL 1815587, at *7.
On April 10, Petitioners again requested mandamus from our court, this
time seeking vacatur of the April 9 TRO. On April 10, we administratively
stayed the TRO except as to women who would reach 22 weeks LMP on April
22. Abbott IV, 2020 WL 1844644. On April 13, we denied an emergency stay,
and lifted the administrative stay, as to that part of the TRO applying to
medication abortions. Abbott V, 2020 WL 1866010. 9
On April 14, the district court set a telephonic preliminary injunction
hearing for April 29. Doc. 82. The court also extended the April 9 TRO—“in its
entirety under the same terms and conditions except as modified by [our
8 “Procedural” abortions, the term used by Respondents and the district court, refers
to what are more commonly called “surgical” abortions. See, e.g., 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)); Stenberg v. Carhart, 530 U.S. 914, 924 (2000) (citing M. Paul et al., A Clinician’s
Guide to Medical and Surgical Abortion (1999)); Casey, 505 U.S. at 969 (Rehnquist, J.,
concurring in the judgment in part and dissenting in part) (referring to “any other surgical
procedure except abortion”) (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 517
(1989) (plurality opinion)); see also, e.g., Brief 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[ ]”).
9 It is curious that the dissenting opinion accuses the majority of altering the
availability for abortion six times. In the first place, it was back-to-back TROs following a
mandamus that altered abortions availability. In the second place, the dissenting judge
joined the denial of the stay as to medication abortions.
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orders]”—until May 1, 2020, at 5:00 p.m. Id. The court stated there was “good
cause” for extending the TRO “so that the court and parties have adequate time
to prepare for [the April 29] hearing.” Id.On April 15, the Governor issued executive order GA-15, which becomes
effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020.
GA-15 10 is similar to GA-09, but has some textual differences as well as an
additional exception for certain facilities. 11
10 Here is the pertinent text of the two orders, with differences noted in italics:
GA-09: [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.
GA-15: All licensed health care professionals and all licensed health care facilities shall
postpone all surgeries and procedures that are not medically necessary to
diagnose or correct a serious medical condition of, or to preserve the life of, a
patient who without timely performance of the surgery or procedure would be at
risk for serious adverse medical consequences or death, as determined by the
patient’s physician[.]
See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files
/press/EO-GA-15_hospital_capacity_COVID-19_ TRANS_04-17-2020.pdf. Because the
TRO as issue in this petition only restrains enforcement of GA-09, we express no opinion
on the effect, if any, of the different language in GA-15.
11 The new exception applies to:
any surgery or procedure performed in a licensed health care facility that has
certified in writing to the Texas Health and Human Services Commission both:
(1) that it will reserve at least 25% of its hospital capacity for treatment of
COVID-19 patients, accounting for the range of clinical severity of COVID-19
patients; and (2) that it will not request any personal protective equipment from
any public source, whether federal, state, or local, for the duration of the COVID-
19 disaster.
Id. Again, we express no opinion on the effect, if any, of this new exception on the issues
in this litigation.
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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 v. U.S. Dist. Court for D.C., 542 U.S. 367, 380
(2004); 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). An “abuse of discretion”
becomes a “clear abuse of discretion” when it “produce[s] a patently erroneous
result.” Id. at 310. The writ has issued “where it was the only means of
forestalling intrusion by the federal judiciary on a delicate area of federal-state
relations [and] where it was necessary to confine a lower court to the terms of
an appellate tribunal’s mandate.” Will v. United States, 389 U.S. 90, 95–96
(1967) (citing Maryland v. Soper, 270 U.S. 9 (1926) (federal-state relations)
and United States v. U.S. Dist. Ct., 334 U.S. 258 (1948) (effectuating appellate
mandate)).
Before prescribing this strong medicine, “[w]e ask (1) whether the
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 cases, mandamus provides a “useful ‘safety valve[ ]’
for promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558
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U.S. 100, 111 (2009) (quoting Digital Equipment Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 883 (1994)).
As in Abbott II, we address each prong in turn, beginning with the
second. Abbott II, 2020 1685929, at *5.
III.
A. Failure to Narrowly Tailor April 9 TRO
We first address two threshold errors in the April 9 TRO that
demonstrate Petitioners’ right to the writ. Because “the scope of injunctive
relief is dictated by the extent of the violation established, [t]he district court
must narrowly tailor an injunction to remedy the specific action which gives
rise to the order.” John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)
(cleaned up). The April 9 TRO fails this narrow tailoring requirement in two
obvious ways.
First, the TRO enjoins enforcement of GA-09 “as a categorical ban on all
abortions provided by Plaintiffs.” Abbott III, 2020 WL 1815587, at *7. But GA-
09 is obviously not a “categorical ban on all abortions.” Because it expires on
April 22, it is not a ban, but a generally applicable postponement of PPE-
consuming surgeries and procedures. And as we have explained already, GA-
09 facially exempts surgeries and procedures immediately 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.” Abbott II, 2020 WL 1685929, at *3. The district court
reached its overbroad construction of GA-09 by referring to the Attorney
General’s “interpretation” in a “press release,” which the court maintained
“has been adopted by the State Defendants.” Abbott III, 2020 WL 1815587, at
*2. But Abbott II already found this chain of reasoning flawed. We found “no
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reason to believe [the] press release has the force of law,” and, in any event,
the press release itself recognized GA-09 exempts abortions “medically
necessary to preserve the life or health of the mother.” Abbott II, 2020 WL
1685929, at *13 n.25. The district court also cited no evidence suggesting that
the “State Defendants” have adopted its overreading of GA-09.
Second, as now extended to May 1, the April 9 TRO is not “narrowly
tailor[ed]” to remedy any harm caused by GA-09 because it extends beyond the
expiration of GA-09. See John Doe #1, 380 F.3d at 818. By its terms, GA-09
lasts “until 11:59 p.m. on April 21, 2020.” 12 After that point, there will be no
“actual case or controversy” between the parties, John Doe #1, 380 F.3d at 814(citation omitted), and no enforcement of GA-09 for a court to restrain. The fact
that the Governor has since announced that a new order—GA-15—will take
effect on April 22 does nothing to change this conclusion, as the extended TRO
at issue here applies only to GA-09. By purporting to restrain Petitioners past
the expiration date of GA-09, the district court exceeded its jurisdiction. See,
e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (a federal court’s judgment
must award “specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts”) (quoting North Carolina v. Rice, 404 U.S. 244, 246
(1971)). Likewise, “since the scope of injunctive relief is dictated by the extent
of the violation established,” the relief was overbroad because no violation can
occur after 11:59 p.m. on April 21. See Califano v. Yamasaki, 442 U.S. 682, 702
(1979). We therefore conclude that Petitioners have demonstrated entitlement
to the writ.
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.
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B. Failure to Dismiss Governor and Attorney General
Under Eleventh Amendment
Petitioners also argue they are entitled to mandamus relief because the
district court violated the Eleventh Amendment by purporting to enjoin the
Governor and Attorney General. We agree. In Abbott II, we instructed the
district court to “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).”
Abbott II, 2020 WL 1685929, at *5 n.17 (citing City of Austin v. Paxton, 943
F.3d 993, 999 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 745–46 (5th
Cir. 2014)). The district court’s cursory analysis of this question in its April 9
TRO was wrong.
Ex parte Young allows suits for injunctive or declaratory relief against
state officials, provided they have sufficient “connection” to enforcing an
allegedly unconstitutional law. City of Austin, 943 F.3d at 997 (citing Raj v.
La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013)). Otherwise, the suit is
effectively against the state itself and thus barred by the Eleventh Amendment
and sovereign immunity. See Va. Office for Prot. & Advocacy v. Stewart, 563
U.S. 247, 253 (2011); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);
Edelman v. Jordan, 415 U.S. 651, 663–69 (1974). If the official sued is not
“statutorily tasked with enforcing the challenged law,” then the requisite
connection is absent and “our Young analysis ends.” City of Austin, 943 F.3d at
998 (citing Morris, 739 F.3d at 746).
As to the Governor, the district court reasoned he has “some connection”
to GA-09 because of his “statutory authority [under] Texas Government Code
§ 418.012.” Abbott III, 2020 WL 1815587, at *6 (cleaned up). But the cited
section empowers the Governor to “issue,” “amend,” or “rescind” executive
orders, not to “enforce” them. Tex. Gov’t Code § 418.012. The power to
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promulgate law is not the power to enforce it. Cf. Martin v. Occupational Safety
& Health Review Comm’n, 499 U.S. 144, 152 (1991) (distinguishing between
the Secretary of Labor’s “powers to promulgate and to enforce national health
and safety standards”). The April 9 TRO addresses only “enforcing” GA-09
against plaintiffs who provide certain abortion procedures. Abbott III, 2020 WL
1815587, at *7. And we have already explained that violating GA-09 may result
in “administrative or criminal penalties,” Abbott II, 2020 WL 1685929, at *3
n.12, enforced by health and law enforcement officials and not the Governor.
Consequently, we hold the Governor lacks the required enforcement
connection to GA-09 and may not be sued for injunctive relief under the
Eleventh Amendment. See Morris, 739 F.3d at 746 (when challenged law “does
not specially task [Texas] Governor . . . with its enforcement, or suggest that
he will play any role at all in its enforcement,” Governor “is not a proper
defendant”).
As to the Attorney General, the district court reasoned that he has
“authority” to prosecute violations of GA-09 “at the request of local
prosecutors,” and that he has also “publicly threatened enforcement” against
abortion providers. Abbott III, 2020 WL 1815587, at *6. Neither rationale
establishes the Attorney General’s “connection” to enforcing GA-09 for Ex parte
Young purposes. Nothing in GA-09 tasks the Attorney General with enforcing
it. Speculation that he might be asked by a local prosecutor to “assist” in
enforcing GA-09, see Tex. Gov’t Code § 402.028, is inadequate to support an Ex
parte Young action against the Attorney General. See City of Austin, 943 F.3d
at 1000 (evidence that Attorney General “might . . . bring a proceeding to
enforce” the law insufficient under Ex parte Young). Nor does a “press release”
by the Attorney General, Abbott III, 2020 WL 1815587, at *2, show authority
to enforce GA-09 for Ex parte Young purposes. Here, the Attorney General did
not even threaten to enforce GA-09 in the disputed press release. The release
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warns that “[t]hose who violate the governor’s order will be met with the full
force of the law.” App. 31. The Attorney General threatened that GA-09 would
be enforced, not that he would enforce it. Moreover, our cases do not support
the proposition that an official’s public statement alone establishes authority
to enforce a law, or the likelihood of his doing so, for Young purposes. Cf., e.g.,
City of Austin, 943 F.3d at 1001 (applying Ex parte Young exception because
Attorney General sent “threatening letters” to enforce DTPA and was
authorized to enforce that law) (discussing NiGen Biotech, LLC v. Paxton, 804
F.3d 389, 392–95 (5th Cir. 2015)). Consequently, we hold the Attorney General
also lacks the required enforcement connection to GA-09 and may not be sued
for injunctive relief under the Eleventh Amendment. See City of Austin, 943
F.3d at 1002.
Mandamus is appropriate to “control jurisdictional excesses,” Gee, 941
F.3d at 158 (citation omitted), such as allowing suits against state officials in
violation of the Eleventh Amendment and sovereign immunity. See, e.g., Block
v. Tex. Bd. of Law Examiners, 952 F.3d 613, 617 (5th Cir. 2020) (“Under the
Eleventh Amendment, federal courts lack jurisdiction over suits against
nonconsenting states.”); Sissom v. Univ. of Tex. High Sch., 927 F.3d 343, 347
(5th Cir. 2019) (“[B]ecause the Eleventh Amendment textually divests federal
courts of jurisdiction over states, it is indispensable to assessing this court’s
jurisdiction.”). Petitioners have demonstrated a clear and indisputable right to
the writ on this ground.
C. Failure to Follow Abbott II Mandate
Petitioners are also entitled to mandamus because the district court, in
entering the April 9 TRO, failed to follow our mandate in Abbott II. Most
obviously, we instructed the district court to analyze GA-09 under “the
framework governing emergency exercises of state authority during a public
health crisis, established . . . in Jacobson.” Abbott II, 2020 WL 1685929, at *5.
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We articulated the Jacobson framework, id. at *6–7, and emphasized that
adhering to its narrow compass of judicial review is necessary to prevent courts
from “second-guess[ing] the wisdom or efficacy” of emergency public health
measures. Id. at *7. Yet the district court did not apply Jacobson: indeed, the
court did not even state what Jacobson’s framework is, but instead merely
cited Jacobson in passing in its conclusion. See Abbott III, 2020 WL 1815587,
at *6 (stating only that applying GA-09 to certain abortion categories “violates
the standards set forth in both [Casey] and [Jacobson]).” That flatly
contradicted our Abbott II mandate, which left no doubt that “[o]ur overriding
consideration” was that any further proceedings “adhere to the controlling
standards” in Jacobson “for adjudging the validity of emergency measures like
[GA-09].” Abbott II, 2020 WL 1685929, at *2.
The April 9 TRO violated the “mandate rule,” a particular manifestation
of the law-of-the-case doctrine barring reexamination of issues already decided
by an appellate court. See United States v. Smith, 814 F.3d 268, 273 (5th Cir.
2016). Under the mandate rule, a district court “must implement both the
letter and the spirit of the appellate court’s mandate and may not disregard
the explicit directives of that court.” United States v. Lee, 358 F.3d 315, 321
(5th Cir. 2004) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)). Thus, this court has held that a district court violated the mandate rule
when, after an appeal, a district court modified a consent decree “without
holding a hearing and demanding a more developed factual record.” League of
United Latin Am. Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 437–38 (5th
Cir. 2012) (LULAC II). Where a district court fails to fully implement the
mandate, a party may seek a writ of mandamus to enforce compliance. See
Kapche v. City of San Antonio, 304 F.3d 493, 500 (5th Cir. 2002).
Our Abbott II opinion plainly expected, as a foundational premise for
applying Jacobson, that the district court would allow the parties to adduce
14
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additional evidence about the effects of GA-09 in specific circumstances. Our
opinion made this impossible to miss. For example, we said that “[t]he 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.” Abbott II, 2020 WL
1685929, at *2 (emphases added). Following that adversarial hearing, we
explained, “[t]he district court can then make targeted findings . . . about the
effects of GA-09 on abortion access.” Id. (emphasis added). We said the same
thing a few pages later: despite finding no evidence in the record that GA-09
violated Casey, we stated that “Respondents will have the opportunity to show
at the upcoming preliminary injunction hearing that certain applications of
GA-09 may” violate Casey “if they prove that, ‘beyond question,’ GA-09’s
burdens outweigh its benefits in those situations.” Id. at *9 (first and third
emphases added). Similarly, after canvassing the record, we declined to decide
whether a more narrowly tailored injunction would satisfy Jacobson because
“parties may pursue [those issues] at the preliminary injunction stage,” then
scheduled for April 13. Id. at *12 (emphasis added). And again: in assessing
whether Respondents had any evidence showing GA-09 pretextually targeted
abortion, we found “no evidence . . . [on] the record before us” of pretext, but
stated that “Respondents will have the opportunity . . . to present additional
evidence in conjunction with the district court’s preliminary injunction
hearing.” Id. at *13 (emphasis added).
To be sure, the district court could have rescheduled the preliminary
injunction hearing (as it now has done, to April 29) or afforded the parties some
other way of presenting new evidence on the burdens and benefits of GA-09 in
specific circumstances. But our opinion left no doubt that an additional
evidentiary showing was necessary to properly apply Jacobson in particular
circumstances. Among other gaps in the record, for example, was evidence
15
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showing what PPE is being used in medication and surgical abortions during
the current pandemic, or evidence showing the standard of care for those
procedures during the pandemic. See infra Part III.D.1.a. Without any means
of answering critical questions like those, the district court lacked any basis
for finding, as Jacobson requires, that GA-09 lacks a “real or substantial
relation” to the health crisis, or that “beyond all question” it “plain[ly]” violates
Casey. Abbott II, 2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31).
It is no answer to say that a TRO may be based on a one-sided
evidentiary record. See Fed. R. Civ. P. 65(b)(1) (allowing issuance of TRO
without notice); Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965) (observing
that TROs are “generally issued ex parte or after a hearing of a summary
character”). Our plain instructions in Abbott II were that properly applying
Jacobson to GA-09 required “additional evidence” targeted to specific
circumstances. Abbott II, 2020 WL 1685929, at *13. It is also no answer to say
that our decision did not tell the district court not to cancel the preliminary
injunction hearing and enter a different TRO. The mandate rule requires the
district court to “implement both the letter and the spirit of the appellate
court’s mandate.” Lee, 358 F.3d at 321. Our decision mentioned the then-
upcoming preliminary injunction hearing seven times as a forum for adducing
evidence from both sides about specific applications of GA-09. See Abbott II,
2020 WL 1685929, at *2, *4 n.16, *8 n.19, *9, *11 n.24, *12, *13. The district
court flouted both the letter and the spirit of our mandate by cancelling that
adversarial hearing, convening a snap-TRO “hearing” at which one side was
barred from offering evidence or argument, and then immediately issuing a
new TRO based on evidence we had already ruled insufficient to show a
violation of Jacobson and Casey. See LULAC II, 675 F.3d at 438.
The LULAC litigation provides helpful guidance. In LULAC I, this court
vacated the modification of a consent decree because “the paucity of the record
16
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in [that] case provided an insufficient basis for the district court to determine
that modification was warranted.” League of United Latin Am. Citizens, Dist.
19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011) (LULAC I). This court
instructed that on remand, “the district court should permit supplemental
filings and conduct proceedings, as necessary, to develop a sufficient
record.” Id. at 439–40. Yet on remand, the district court entered a new
“temporary” modification of the consent decree, without “permit[ting] the
parties to conduct discovery, or hold an evidentiary hearing to receive
competing expert and lay testimony, or even offer [one party] a substantial
opportunity to rebut the evidence that [the other parties] presented.” LULAC
II, 675 F.3d at 438. The LULAC II panel vacated that new “temporary” order,
holding that “[b]y approving a modification of the Consent Decree without
holding a hearing and demanding a more developed factual record, the district
court failed to follow the ‘letter and spirt’ of the LULAC I mandate.” Id. at 438.
So too here. After explaining that the factual record was insufficient to
support the TRO in Abbott I, we instructed that after the “preliminary
injunction hearing scheduled for April 13, 2020” at which the parties could
“present additional evidence,” Abbott II, 2020 WL 1685929, at *13, the district
court could find that GA-09 constituted an undue burden if “beyond question”
the law’s burdens exceeded its benefits. Id. at *11. “The district court was
required to do this analysis” the first time, we explained, and “that analysis
would have required careful parsing of the evidence.” Id. Yet on remand the
district court entered a second TRO “without holding a hearing and demanding
a more developed factual record.” See LULAC II, 675 at 438. In doing so, “the
17
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district court failed to follow the ‘letter and spirit’ of the” Abbott II mandate.
See id. 13
To be sure, Respondents suggest that the April 9 TRO is based on a “more
robust” record than the one on which the district court based its March 30 TRO.
But on critical points, which we analyze in more detail below, the April 9 TRO
relied on the same ten declarations already before the district court when it
issued the March 30 TRO. 14 Furthermore, after the March 30 TRO issued,
Respondents filed supplemental declarations in the district court record—and
then proceeded to use those declarations to defend against mandamus in our
court. 15 In granting mandamus, we reviewed the record—including those
13 There is one minor distinction between this case and LULAC. As here, after the
district court entered the second “temporary” modification of the order, the intervenor-
appellant sought mandamus. See LULAC II, 675 F.3d at 437. Unlike here, however, the
LULAC II panel denied the writ because the second order, though labeled “temporary,” was
“not a temporary restraining order,” in substance, and could be appealed as a preliminary
injunction. See LULAC II, 675 F.3d at 437 n.2 (citing LULAC v. City of Boerne, No. 12-50111,
slip op. at 2–3). In this litigation, we held that this court lacked jurisdiction over an appeal
of the extended April 9 order, concluding that it was in effect TRO. See Planned Parenthood
Ctr. for Choice v. Abbott, No. 12-50314, slip op. at 2. But that is a distinction without a
difference: Mandamus is an appropriate remedy for violations of the mandate rule. See Will,
389 U.S. at 96 (explaining mandamus is appropriate where “necessary to confine a lower
court to the terms of an appellate tribunal’s mandate”); Kapche, 304 F.3d at 500 (“[T]he
appropriate action at this point would appear to involve the issuance of a writ of mandamus,
compelling the district court to comply with our prior mandate.”).
14Compare Abbott III, 2020 WL 1815587, at *2–6 (relying, inter alia, on declarations
from Barraza, Dewitt-Dick, Ferrigno, Hagstrom Miller, Klier, Lambrecht, Schutt-Aine,
Wallace, Connor, and Jane Doe), with Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-
cv-00323-LY (W.D. Tex.) (Dkt. Nos. 7 & 29) (Mar. 25, 2020 & Mar. 30, 2020) (listing same
declarations as exhibits to TRO application).
15 Compare Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D.
Tex.) (Dkt. No. 49) (Apr. 2, 2020) (noting “supplemental filing” of declarations supporting
preliminary injunction), with Abbott II, ECF 53 at 4, 6, 14, 17–21, 23 (5th Cir. Apr. 2, 2020)
(No. 20-50264) (opposition to mandamus relying on supplemental declarations). Indeed,
Respondents’ opposition conceded that it “cite[s] to declarations filed in the district court on
April 2, 2020,” in support of its preliminary injunction motion. ECF 53 at 4 n.2 (citing Dist.
Ct. Dkt. No. 49).
18
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supplemental affidavits—and found the record before us failed to support the
conclusion that GA-09 violates Jacobson and Casey. 16 The district court hardly
answered Abbott II’s call for more evidence by relying on evidence we had
already reviewed and found wanting. Moreover, we called for additional
evidence from both sides. See Abbott II, 2020 WL 1685929, at *2 (emphasizing
“all parties” would be able to “present evidence on the validity of applying GA-
09 in specific circumstances”). Yet the district court barred Petitioners from
proffering new evidence or argument with respect to the April 9 TRO.
Mandamus is justified to correct the district court’s failure to follow our
Abbott II mandate. See, e.g., Will v. United States, 389 U.S. 90, 95–96 (1967)
(explaining that “the writ [of mandamus] has been invoked . . . where it was
necessary to confine a lower court to the terms of an appellate tribunal’s
mandate”). This is all the more vital here because the failure to follow our
mandate led the district court to “embarrass the executive arm of the
Government” and “intru[de] . . . on a delicate area of federal-state relations.”
Cheney, 542 U.S. at 381 (cleaned up). 17 Here too, Petitioners have
demonstrated their clear and indisputable right to the writ.
16 See Abbott II, 2020 WL 1685929, at *9 (“[I]t cannot be maintained on the record
before us that GA-09 bears ‘no real or substantial relation’ to . . . the COVID-19 pandemic.”)
(quoting Jacobson, 197 U.S. at 31); id. at *11 & n.23–24 (noting conflicting evidence regarding
whether abortion procedures consume PPE based on “[o]ur own review of the record”); id. at
*13 (“[O]n this record, we see no evidence that GA-09 was meant to exploit the pandemic in
order to ban abortion or . . . unreasonably delay abortions” (cleaned up)); id. (“Based on that
record, we cannot say that GA-09 is a pretext for targeting abortion.”).
Curiously, and as a possible further indication that the district court failed to follow
17
our Abbott II mandate, the April 9 TRO “incorporate[d] by reference” the conclusions of law
from Abbott I that this court held were mistaken in Abbott II. See Abbott III, 2020 WL
1815587, at *7.
19
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D. Patently Erroneous Results and Usurpation of the State’s
Authority to Craft Emergency Health Measures
Mandamus relief is also justified because the district court’s failure to
follow our Abbott II mandate led to patently erroneous results and usurped the
state’s authority to craft emergency public health measures. See In re
JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up)
(mandamus warranted where there has been a “usurpation of judicial power”
or “a clear abuse of discretion that produces patently erroneous results”). We
discuss these problems below, both to explain why we grant mandamus as to
two of the three categories of abortion procedures restrained by the April 9
TRO, and also to provide guidance at the preliminary injunction stage.
1. The April 9 TRO Patently Erred by Exempting Medication Abortions
from GA-09
There is no constitutional right to any particular abortion procedure.
Gonzales v. Carhart, 550 U.S. 124, 164–65 (2007). Yet the district court bluntly
concluded that GA-09’s temporary postponement of one kind of early-abortion
method—medication abortions—is “beyond question” a violation of Casey. See
Abbott III, 2020 WL 1815587 at *6 (concluding, “based on the court’s findings
of fact, it is beyond question that [GA-09’s] burdens outweigh the order’s
benefits as applied to . . . medication abortion”). Despite our instructions in
Abbott II, the district court failed to compile a record that remotely justifies
this conclusion. Indeed, the record before the district court—which we already
reviewed in Abbott II and found inconclusive—does not provide the tools even
to answer the pertinent factual question. That question is not, as the district
court evidently thought, whether medication abortion consumes PPE during
normal circumstances, but instead whether it does so under the pandemic
conditions Texas faces and GA-09 addresses. As for the legal question, the
district court’s analysis fails to address why temporary postponement of one
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type of early-abortion method is “beyond question” unconstitutional if it leaves
open other means of obtaining an abortion. Restraining state officials from
implementing an emergency health measure based on such findings is “a clear
abuse of discretion that produces patently erroneous results.” Abbott II, 2020
WL 1685929, at *5 (quoting JPMorgan Chase, 916 F.3d at 500 (cleaned up)).
a. Failure to consider PPE usage and standard of care during the
pandemic
As a general matter, we observe that the regulation of medication
abortion in Texas differs from some other states. In Texas, “[b]efore the
physician gives, sells, dispenses, administers, provides, or prescribes an
abortion-inducing drug, the physician must examine the pregnant woman.”
Tex. Health & Safety Code § 171.063(c). During that examination, the patient
must receive an ultrasound examination. Tex. Health & Safety Code
§ 171.012(a)(4). The physician cannot provide the patient an abortion until the
second visit. Id. And the patient must schedule a follow-up appointment to
ensure the abortion is complete. Tex. Health & Safety Code § 171.063(e)-(f); 25
Tex. Admin. Code 139.53(b)(4). 18
The district court found, as a matter of fact, that “[p]roviding medication
abortion does not require the use of any PPE.” Abbott III, 2020 WL 1815587,
at *3, ¶ 15. The pertinent question, however, is whether medication abortions
require PPE during the COVID-19 pandemic. See GA-09 (stating that “a
shortage of hospital capacity or [PPE] would hinder efforts to cope with the
COVID-19 disaster”). Respondents submitted no evidence on that question:
they neither stated what PPE they were consuming “during the COVID-19
disaster,” nor submitted evidence establishing the standard of care for
18 At the preliminary injunction stage, a relevant question is whether these acts
ancillary to a medication abortion, such as the ultrasound or follow-up appointment, are to
be considered when determining PPE usage.
21
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medication abortions during the pandemic. Scour the twenty declarations
Respondents submitted to support their claim. Does any testify that during the
current pandemic, abortion providers are not wearing masks? No. Nor would
one expect such a statement when everyday life now presents police officers,
priests, mail carriers, grocery store cashiers, gas station attendants, and retail
clerks wearing them every day. 19 The question, then, is not whether
medication abortions consume PPE in normal times, but whether they
consume PPE during a public health emergency involving a spreading
contagion that places severe strains on medical resources. See Abbott II, 2020
WL 1685929, at *1. The record contains scant material to answer that
question—certainly not to a degree to permit the conclusion that merely
postponing medication abortions “beyond question” violates the right to
abortion.
The April 9 TRO did not analyze PPE consumption for medication
abortions during the COVID-19 pandemic. The district court, with one minor
exception, relied exclusively on declarations that were before it when it issued
the March 30 TRO. See Abbott III, 2020 WL 1815587 at *3, ¶¶ 10, 13, 15
(relying on prior declarations); but see id. ¶ 14 (relying on new declaration). In
Abbott II, we explained that those declarations were “unclear” as to “how PPE
is consumed in medication abortions.” See Abbott II, 2020 WL 1685929 at *11.
Those declarations did not, and still do not, speak to the question of PPE usage
during the present public health emergency.
19 For their part, Petitioners did submit evidence showing the standard of care may
have changed and that abortion providers may be consuming more PPE because of COVID-
19. See, e.g., Harstad Decl. at ¶ 4, App. 230 (“Due to the current COVID-19 outbreak, the
specific type of mask that is currently required is a N95 mask.”). But our point is not to weigh
the evidence. Rather, the point is to demonstrate that the record before the district court does
not purport to answer the pertinent question about PPE use during the pandemic.
22
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Moreover, there has been no consideration yet how the pandemic has
affected the standard of care for abortion. No record evidence supports the
contention—which provides the unstated premise of the district court’s
findings—that the standard of care for medication abortion during the COVID-
19 is identical to the normal standard. Relatedly, the record does not establish
what PPE abortion providers presently use to protect against the spread of the
virus. Indeed, some record evidence indicates that reasonable abortion
providers would change PPE usage during the pandemic. For instance, the
state’s infectious disease expert declared that “[n]ot wearing face masks and
other PPE when caring for patients who are not under investigation for COVID
19 . . . exposes health care workers to transmission of infection” from
asymptomatic patients. Marier Decl. ¶ 12, App. 242.
The declarations the district court cited (which are exclusively those of
Respondents) consider medication abortion only during normal times. Abbott
III, 2020 WL 1815587 at *3, ¶ 15. One physician describes a clinic’s PPE usage
during an “average week.” Wallace Decl. ¶ 12. That says nothing about PPE
usage during a pandemic. Cf. Klier Declaration ¶ 11, App. 110 (“Before the
COVID-19 outbreak, Austin Women’s used no PPE for medication abortion.”)
(emphasis added). And a declaration recently filed in the district court clarifies
that at least one plaintiff began using surgical masks in response to COVID-
19. See Rosenfeld Decl. ¶ 13 (“Since the COVID-19 outbreak began, Houston
Women’s Clinic has . . . provided our staff with surgical masks (not N95
respirators) . . . .”). 20
20Amici have submitted a report that one of the plaintiff clinics has been operating
without sufficient PPE. See Amicus Brief of 19 States in Support of Petitioners at 16 n. 8
(citing Alex Caprariello, Planned Parenthood employees laid off, claim it’s retaliation for
voicing concerns (KXAN, Apr. 10, 2020), https://www.kxan.com/news/local/austin/planned-
parenthood-employees-laid-off-claim-its-retaliation-for-voicing-concerns/) (“[The former staff
23
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In sum, the relevant question is not what PPE is consumed during
normal times but “during the COVID-19 disaster,” as GA-09 states. Cf. Abbott
II, 2020 WL 1685929 at *12 (“[T]he essence of equity is the ability to craft a
particular injunction meeting the exigencies of a particular situation.”). The
failure even to consider that question—as well as to support its findings with
record evidence—was patently erroneous. 21
b. Usurping state authority to craft emergency health measures
As we explained before, Jacobson prohibits courts from “usurp[ing] the
state’s authority to craft measures responsive to a public health emergency.”
See Abbott II, 2020 WL 1685929, at *12. Courts have no authority to ask
whether a “particular method [is]—perhaps, or possibly—not the best.”
Jacobson, 197 U.S. at 35. Instead, courts may ask only whether the state has
acted in an “arbitrary, unreasonable manner.” Id. at 28. During a pandemic
emergency, public authorities must make numerous, complex judgment calls.
GA-09 addresses one of the most vexing: how to prevent critical strains on
medical resources during a surge in contagious disease. Abbott II, 2020 WL
1685929, at *1–2. Respondents have submitted declarations of infectious
disease experts who believe GA-09 is profoundly misguided. See, e.g., Bassett
member] said there is not enough PPE at the clinics, workers are being forced to do non-
essential work for patients in-person and they’re not being offered paid sick leave if they come
down with COVID-19 symptoms.”)). This may be relevant to assessing the benefits of GA-09
in combatting the spread of COVID-19.
21 Additionally, Respondents concede medication abortions sometimes result in
hospitalization. See App. 129. The FDA label for Mifeprex states that hospitalization “related
to medical abortion” occurs in up to 0.6% of cases. App. 129–30 (describing use of Mifeprex);
U.S. Food & Drug Admin., Mifeprex Label 17, Table 2,
https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687s020lbl.pdf. Applying
this figure to Petitioners’ uncontested evidence that about 17,000 medication abortions were
performed in Texas in 2017, see App. 222, medication abortions can be expected to result in
slightly over 100 hospitalizations per year in Texas—or about two per week. In comparing
the benefits and burdens of GA-09, the district court must weigh those hospitalizations
against the delay in women obtaining a medication abortion.
24
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Decl. ¶ 6–8, App. 311; Sharfstein Decl. ¶ 9–12, App. 280–81. Texas authorities
believe, to the contrary, that GA-09 is critical to protect the state’s citizens and
has supported that view with its own medical experts. See, e.g., Marier Decl. ¶
12, App. 242. The Supreme Court, and this court, have already explained how
to resolve such an impasse: “[I]f the choice is between two reasonable responses
to a public crisis, the judgment must be left to the governing state authorities.”
Abbott II, 2020 WL 1685929, at *12 (citing Jacobson, 197 U.S. at 30); cf. Dep’t
of Commerce v. New York, 139 S. Ct. 2551, 2570 (2019) (explaining, in context
of different legal standard, that “the choice between reasonable policy
alternatives in the face of uncertainty was the Secretary’s to make”). The
district court’s findings in support of the April 9 TRO failed to heed this basic
constraint on judicial power.
In the April 9 TRO, as in the one before, the district court’s weighing of
the public interest substituted its own opinion for the judgment of the
governing authorities. What we said before applies here:
[T]he 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.
Abbott II, 2020 WL 1685929 at *12 (discussing Abbott I, 2020 WL 1502102 at
*3). In the April 9 TRO, the district court concluded in cursory fashion that
Plaintiffs and their patients would “suffer irreparable harm” absent a TRO,
that the “balance of equities favors Plaintiffs” and that a TRO “serves the
public interest.” Abbott III, 2020 WL 1815587 at *6. The court added “that
entry of a [TRO] to restore abortion access would serve the State’s interest in
public health.” Id. We find the district court’s approach as flawed this time as
the last.
25
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To begin with, the district court ignored the entire point of a mitigation
measure like GA-09. The concept of “flattening the curve” has become all-too-
familiar during the pandemic: as applied to GA-09, it means that delaying
procedures now may prevent short-term exhaustion of critical medical
resources. This is one stated goal of GA-09: it does not prohibit non-essential
procedures, it delays them. As its findings show, however, the district court
preferred to second-guess this strategy. For instance, the district court found
that delaying abortion access “will not conserve PPE or hospital resources”
because women will remain pregnant and thus consume more PPE in the long
run. See Abbott III, 2020 WL 1815587 at *4, ¶¶ 20–23. But that is not a policy
choice federal judges are permitted to make during a public health crisis, if
ever. 22 Public authorities are entitled to make a different calculation to protect
citizens: even if GA-09 may increase consumption of medical resources in the
long run, decreasing consumption now will help weather the immediate surge
of COVID-19 cases. 23 Instead of re-weighing the state’s cost-benefit calculus, a
federal court “must assume that, when [GA-09] was [issued], the [Governor of
Texas] was not unaware of these opposing theories, and was compelled, of
necessity, to choose between them.” Jacobson, 197 U.S. at 30. The district court
patently erred by doing the opposite. See Jacobson, 197 U.S. at 31; Abbott II,
2020 WL 1685929, at *7.
Similarly, the district court found that GA-09 did not promote the public
health, in part, because some women might travel to other states to obtain
22Likewise, the dissenting opinion misunderstands the record regarding PPE use for
pregnancy during the pandemic. Tests and visits have been reduced for pregnancy just as
other medical diagnosis and well visits have.
23Nor did the district court consider that months will pass between the time when a
woman can generally lawfully obtain an abortion (20-weeks gestation) and the full-term of a
pregnancy (40-weeks gestation).
26
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abortions. See Abbott III, 2020 WL 1815587 at *5, ¶ 25. But the evidence shows,
as does common sense, that an emergency measure like GA-09 weighs heavily
on people suffering all kinds of health issues. One physician declares she has
postponed or canceled surgeries for “patients with possible uterine cancer and
cervical cancer diagnoses who are in need of surgeries, as well as patients with
heavy bleeding who need surgery but where we can temporarily control the
bleeding with medication.” Thompson Decl. ¶ 4, App. 235. It is possible that
those patients too may travel to other states to obtain desired procedures.
Moreover, evidence that some women travel to other states to receive an
abortion does not demonstrate that GA-09 increases the risk of COVID-19
transmission. Such a claim would require comparing the amount of travel that
GA-09 has increased with the amount of travel it has reduced. That calculation
is uncertain: One respondent provider declares that some women “come from
over a hundred miles to receive care at our clinic.” Dewitt-Dick Decl. ¶ 22, App.
87. Another testifies that patients at her clinic “hail from all over Texas.”
Ferrigno Decl. ¶ 30, App. 95.
A court must assume that the public health experts at the Texas
Department of State Health Services—not to mention the CDC, the U.S.
Surgeon General, and the Centers for Medicare and Medicaid Services—
weighed these difficult trade-offs between medical care and public health.
Jacobson, 197 U.S. at 30. Federal judges get no vote on the matter. As the
Supreme Court instructed: “[N]o court . . . is justified in disregarding the action
of the [Governor] simply because in its opinion that particular method was—
perhaps, or possibly—not the best.” Jacobson, 197 U.S. at 35 (cleaned up). The
district court’s disregard of that command usurped the power of the state in a
public health emergency.
c. Failure to carefully parse record evidence
27
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The April 9 TRO also failed to “careful[ly] pars[e] the evidence,” as
instructed by our previous mandate. See Abbott II, 2020 WL 1685929 at *11.
For instance, the district court did not discuss, or even cite, a single declaration
of submitted by Petitioners. 24 It did not explain why, to take a conspicuous
example, it disregarded the declaration of the state’s infectious disease expert.
Nor did the district court mention the undisputed evidence that, “[i]f even one
person providing care is carrying COVID-19 but not yet symptomatic, the
results could be devastating if that person is not equipped with proper PPE.”
Abraham Decl. ¶ 4, App. 225. The district court did not explain whether it
disagreed with this statement or thought it was inapplicable to abortion
providers. Nor did the district court mention record evidence indicating that
N95 masks are now required for surgical abortions to be performed safely. See
Harstad Decl. ¶ 4. 25 We say this, not to make findings ourselves, but to show
why the delicate inquiry in this case requires “careful parsing of the evidence.”
Abbott II, 2020 WL 1685929 at *11. A scalpel must be employed, not a rubber
stamp.
24 As a general matter, Federal Rule of Civil Procedure 52 does not require “punctilious
detail [or] slavish tracing of the claims issue by issue and witness by witness.” Schlesinger v.
Herzog, 2 F.3d 135, 139 (5th Cir.1993).Certain classes of cases, however, require district
courts to address contrary evidence. See, e.g., Houston v. Lafayette County, Miss., 56 F.3d
606, 612 (5th Cir.1995) (voting rights); Lopez v. Current Director, 807 F.2d 430, 434 (5th
Cir.1987) (employment discrimination). Because we specifically required such an
undertaking here, Abbott II, 2020 WL 1685929, at *11, the district court’s failure to do so
violated the mandate rule. See LULAC, 675 F.3d at 438.
25 Consider another jarring incongruity regarding surgical abortions: Petitioners
submitted a declaration from a physician stating that any physician performing a surgical
abortion must use a face mask and that “[d]ue to the current COVID-19 outbreak, the specific
type of mask that is currently required is a N95 mask.” Harstad Decl. at ¶ 4, App. 230. This
declaration is striking, in light of the district court’s finding that “[o]nly one physician
associated with Plaintiffs has used an N95 mask since the beginning of the COVID-19
pandemic, and that physician has been reusing the same mask over and over.” Abbott III,
2020 WL 1815587 at *4, ¶ 19.
28
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Moreover, the district court’s wholesale adoption of Respondents’
proposed findings resulted in findings that are not supported by the record.
One example may suffice. The district court found that, “[a]lthough some
medication abortions require a follow-up aspiration procedure, the number of
those cases is exceedingly small and can generally be handled in an outpatient
setting.” Abbott III, 2020 WL 1815587, at *3, ¶ 14 (citing Levison Decl. ¶ 9;
Schutt-Aine Decl. ¶ 12). The Levinson paragraph cited speaks only to the
frequency of hospitalization; it says nothing about how many medication
abortions require follow-up aspiration. See App. 373. Nor does the cited Schutt-
Aine paragraph provide any support for the frequency of follow-up aspiration.
See App. 129. Schutt-Aine states that “[m]ajor complications—defined as
complications requiring hospital admission, surgery or blood transfusion—
occur in less than one-quarter of one percent (0.23%) of all abortion cases.” App.
129 (citing Ushma Upadhyay, et al., Incidence of Emergency Department Visits
and Complications After Abortion, 125 Obstetrics & Gynecology, 175 (2015)).
But Figure 1 of the cited article clarifies that subsequent uterine aspirations
(i.e., surgical abortions) were not considered “surgery” within the meaning of
the article. See Upadhyay, 125 Obstetrics & Gynecology at 176.
Petitioners, by contrast, submitted evidence demonstrating the rate of
medication abortions resulting in incomplete abortions, which are treated
either with a repeat dose of medication or aspiration. 26 In our court,
26 See 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 that 4–
8% of mifepristone-induced abortions at seven weeks gestation, and more than 15% after
seven weeks gestation, result in incomplete abortions).
29
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Respondents contend those numbers are outdated. 27 Analysis of such
conflicting evidence is hard; it requires careful parsing. We reach no
conclusions on the point. District courts, who can make fact findings after
adversarial hearings, are better suited to the task. Here, however, the district
court declined to avail itself of those tools, instead cancelling the scheduled
preliminary injunction hearing and issuing a second TRO that adopted all 30
of Respondents’ proposed findings without citing or discussing a single
declaration submitted by Petitioners. To be sure, a district court need not
“recite every piece of evidence supporting its findings.” Schlesinger, 2 F.3d at
139. But “the record must nevertheless support the district court’s decision.”
Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993).
Here the record fails to do so.
The failure to parse the evidence led the district court to reach legally
erroneous results in two respects. First, under Whole Woman’s Health v.
Hellerstedt, to determine whether a law “unduly burdens” the abortion right,
a court must “consider the burdens a law imposes on abortion access together
with the benefits those laws confer.” 136 S. Ct. 2292, 2309–10, 2319 (2016).
The April 9 TRO does not meaningfully weigh either one. As noted, the order
does not cite or discuss a single declaration submitted by Petitioners explaining
the benefits of GA-09. Nor does the order articulate the burden of a delay or
why that delay should be considered a “ban” on abortion. The record belies any
such notion. Medication abortion is available until 10 weeks LMP, and surgical
abortion until 22 weeks LMP. Given that GA-09 had only a 30-day duration,
no woman would be pushed beyond the legal limit by a 30-day delay in
obtaining a medication abortion. Moreover, health risks of a delay are
27 See Opp. to Mandamus at 19 (citing U.S. Food & Drug Admin., Mifeprex 13 tbl.3
(rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687
s020lbl.pdf).
30
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mitigated because GA-09, by its terms, permits procedures that a patient’s
physician determines 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.” Abbott II, 2020 WL 1685929, at *10
(quoting GA-09). The district court factored none of this into its cursory
analysis. That weighing of burdens versus benefits would be inadequate under
Hellerstedt in normal circumstances. A fortiori it is inadequate under the
Jacobson framework, which asks whether burdens outweigh the benefits
“beyond question.” 197 U.S. at 31. Moreover, as we have explained, the
Supreme Court has approved “a wide variety of abortion regulations . . . that
in practice can occasion real-world delays of several weeks.” Abbott II, 2020
WL 1685929 at *10 (quoting Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir.
2017) (en banc) (mem.) (Kavanaugh, J., dissenting)). That leads us to the
second legal error resulting from the district court’s findings: they treat a
medication abortion as an absolute right. But the constitutional right to
abortion does not include the right to the abortion method of the woman’s (or
the physician’s) choice. Gonzales, 550 U.S. at 164–65. On this record it was
patently erroneous to find that a mere 30-day postponement of medication
abortions “beyond question” violates Casey.
d. The Pennhurst doctrine.
We address an additional point that arose during our consideration of
Petitioners’ emergency stay motion, because it may become important as the
litigation continues. In the April 9 TRO, the district court adopted
Respondents’ proposed fact finding that “[m]edication abortion is not a surgery
or procedure.” Abbott III, 2020 WL 1815587 at *3, ¶ 10; cf. ECF 56-2, Plaintiff’s
31
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Proposed Order ¶ 10 (“Medication abortion is not a surgery or procedure.”). 28
When considering Petitioners’ stay motion, we expressed uncertainty as to
whether medication abortions were covered by GA-09, given ambiguity in the
Texas Medical Board’s guidance on the order. See Abbott V, 2020 WL 1866010,
at *3. For that reason, we denied a stay as to the part of the TRO applicable to
medication abortions, while “express[ing] no ultimate decision on the ongoing
mandamus proceeding.” Id. We have since benefitted from additional briefing
on this issue. Given the lack of legal analysis in the April 9 order, we are unable
to discern what impact the district court’s finding had on its decision to grant
the TRO. Going forward, however, we caution that any relief ordering a state
official to comply with state law would be barred by the Pennhurst doctrine.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).
Under Pennhurst, a federal court may not grant “relief against state
officials on the basis of state law.” Id. at 106. A federal court may determine
state officials’ enforcement of state law violates a federal right, but it may not
order state officials to conform their conduct to state law. See, e.g., Williams On
Behalf of J.E. v. Reeves, 19-60069, 2020 WL 1638411, at *7 (5th Cir. Apr. 2,
2020) (under Pennhurst, “the rule announced in Ex parte Young cannot be used
to redress a state official’s violation of state law”); Hughes v. Savell, 902 F.2d
28 It is unclear how Respondents tie this contention (which revolves around the
interpretation of GA-09) to their substantive due process claim, which is the only claim they
pursued on their first and second applications for TROs. In any event, Respondents may
develop their arguments further at the preliminary injunction stage, if they choose. Finally,
based on this finding and others, the dissenting opinion, infra at 18–21, suggests that the
April 9 TRO concludes that GA-09 was a “pretext” for targeting abortion. But we discern no
such conclusion in the April 9 TRO. Instead, in its conclusions of law, the April 9 TRO merely
states that GA-09’s “burdens outweigh [its] benefits,” Abbott III, 2020 WL 1815587 at *6, and
makes no legal finding that GA-09 pretextually targets abortion over other medical
procedures. Respondents, of course, may choose to develop such a claim at the preliminary
injunction stage, but we do not find that legal issue presented by the April 9 TRO.
32
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376, 378 (5th Cir. 1990) (Pennhurst bars “a claim that state officials violated
state law in carrying out their official responsibilities”).
To the extent the April 9 TRO finds that GA-09 violates Casey by
postponing medication abortions, we have already explained that it patently
erred. But to the extent the TRO might be construed to order relief on a claim
that state officials failed to conform their actions to state law, the TRO would
violate Pennhurst. State health officials, who are Petitioners here, insist that
GA-09’s postponement of “procedures” encompasses medication abortions.
Pennhurst bars a federal court from considering a claim that those officials
failed to comply with a proper interpretation of the state executive order.
See, e.g., Hughes, 902 F.3d at 378 (quoting Pennhurst, 465 U.S. at 106)
(explaining that “instruct[ing] state officials on how to conform their conduct
to state law . . . conflicts directly with the principles of federalism that underlie
the Eleventh Amendment”). 29 The district court should be aware of this issue
in further proceedings.
2. The April 9 TRO Patently Erred by Exempting 18-Week
Gestation from GA-09
We turn to the part of the April 9 TRO blocking application of GA-09 as
to patients who “would reach 18 weeks LMP by April 21, 2020,” and who, in a
physician’s judgment, are “unlikely to be able to obtain an abortion at an
[ambulatory surgical center] before [her] pregnancy reaches the 22-week
cutoff.” Abbott III, 2020 WL 1815587, at *6. For those patients, the district
court concluded GA-09 would amount to “an absolute ban on abortion” that
29Such a claim would need to be brought in state court. Cf. Russell v. Harris Cty., CV
H-19-226, 2020 WL 1866835, at *12 (S.D. Tex. Apr. 14, 2020) (abstaining, under R.R. Comm’n
v. Pullman Co., 312 U.S. 496 (1941), from hearing COVID-19 related equal protection and
due process claims because there was “a pending state-court lawsuit challenging the
Executive Order that raises questions about novel, uncertain issues of state law”) (referring
to Tex. Crim. Def. Laws. Ass’n v. Abbott, No. GN-20-002034, 459th District Court of Travis
County, Texas (Apr. 8, 2020)).
33
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violates Casey. Id. Once again, the district court’s failure to apply the
framework articulated in Abbott II led to a patently erroneous result that
cannot be sustained on this record.
As we explained in Abbott II, a state emergency measure like GA-09
violates the right to abortion if it “has no real or substantial relation” to the
public crisis “or is, beyond all question, a plain, palpable invasion of [Casey].”
2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31). Here, we take the
district court’s conclusion to turn only on the second part of the analysis—
whether GA-09 is “beyond all question” a violation of Casey to the extent it
results in delaying a woman’s pregnancy to 18 weeks LMP.
The district court’s treatment of GA-09 as “an absolute ban on abortion”
as applied to this category of women was obviously wrong. Abbott III, 2020 WL
1815587, at *6. A woman who would be 18 weeks LMP when GA-09 expires
has up to four weeks to legally procure an abortion in Texas. No case we know
of calls that an “absolute ban” on abortion. Cf., e.g., Casey, 505 U.S. at 874(explaining that “[n]umerous forms of state regulation might have the
incidental effect of increasing the cost or decreasing the availability of medical
care, whether for abortion or any other medical procedure”).
The district court may have had in mind an as-applied challenge to GA-
09 on behalf of a woman facing this particular combination of circumstances.
See, e.g., Gonzales, 550 U.S. at 167 (explaining that “as-applied challenges” are
“the proper manner to protect the health of the woman if it can be shown in
discrete and well-defined instances” that particular procedures are required).
That would require evidence of “discrete and well-defined instances” sufficient
to support such a challenge, id., but the district court cited none and we can
find none in the record. Respondents attempt to bridge this gap by relying on
a new affidavit from a hotline coordinator at an abortion-funding nonprofit.
But that affidavit speaks only in general terms about women at later stages of
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pregnancy and does not even attempt to identify any “discrete and well-defined
instances” of a woman in the 18-week category sufficient to support an as-
applied challenge here. See App. 439–44.
Respondents also speculate that, due to patient backlogs and the burden
of traveling to one of the limited number of Texas ASCs, women in the 18-week
category will not be able to obtain an abortion. Once again, this is the stuff of
a possible as-applied challenge. But we know of no precedent saying that it
violates Casey “beyond question” when a generally applicable emergency
health measure causes backlogs and travel delays for women seeking abortion.
In fact, even outside of a public health crisis, the Supreme Court has
“recognize[d] that increased driving distances do not always constitute an
‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313 (quoting Casey, 505 U.S. at885–87). To the contrary, the Court has treated increased travel distance only
as one factor that—“when taken together with others” such as “the virtual
absence of any health benefit”—could support a conclusion of undue burden
under Casey on a particular record. Id. (emphasis added).
Perhaps in the context of a preliminary injunction hearing, Respondents
will be able to adduce evidence to support an as-applied challenge to GA-09 (or
its successor order, GA-15) along these lines. But the record presently before
the district court fails to provide even an arguable basis to conclude that GA-
09, as applied to women in the 18-week category, is “beyond all question, a
plain, palpable invasion of [Casey].” Abbott II, 2020 WL 1685929, at *6 (quoting
Jacobson, 197 U.S. at 31).
3. The April 9 TRO Did Not Patently Err by Exempting 22-Week
Gestation from GA-09.
The district court also concluded that GA-09 “beyond question” violates
Casey as applied to a woman who “would otherwise be denied access to abortion
entirely because . . . [her] pregnancy would reach 22 weeks LMP” before GA-
35
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09 expires. Abbott III, 2020 WL 1815587, at *6. While we harbor some doubts
about the evidentiary basis for the district court’s conclusion, we conclude that
any error is not so clear and indisputable as to warrant mandamus.
Unlike the 18-week category, Respondents have adduced some evidence
that they have clients who will reach 22 weeks LMP during the operation of
GA-09. See App. 103, 353, 442. While this evidence is secondhand, and thus
weak, we cannot conclude it was a “clear abuse of discretion” for the district
court to rely on it at this early stage. Abbott II, 2020 WL 1685929, at *4. The
district court concluded that GA-09’s delay of non-essential medical procedures
would operate as a permanent ban on abortion for women in this category, and
that the order’s burdens far outweighed its benefits as to those women. Again,
given the weak evidence, we are not fully satisfied with this cursory conclusion.
Further, it remains unclear whether GA-09’s exception for “patient[s] who
without immediate performance of the surgery or procedure would be at risk
for serious adverse medical consequences . . . as determined by the patient’s
physician,” id. at *3, already covers women in these circumstances. But
Petitioners’ arguments do not convince us, at this early stage, that the district
court’s order enjoining GA-09 as to women who will reach 22 weeks LMP
during the order’s operation was so patently erroneous that mandamus is
appropriate. Cf. Gee, 941 F.3d at 158 (noting that mandamus is only
appropriate “for really extraordinary causes”).
As a result, we conclude Petitioners have not shown entitlement to the
writ of mandamus as to this part of the TRO.
***
To sum up, Petitioners have shown entitlement to the writ of mandamus
as to the parts of the April 9 TRO that:
• restrain enforcement of GA-09 as a “categorical ban on all abortions
provided by plaintiffs”;
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• restrain enforcement of GA-09 after 11:59 p.m. on April 21, 2020;
• restrain the Governor and Attorney General;
• restrain enforcement of GA-09 as to medication abortions;
• restrain enforcement of GA-09 as to abortions for patients who will
reach 18 weeks LMP during the operation of GA-09 and would be
“unlikely” to obtain abortion services in Texas.
Petitioners have not demonstrated entitlement to the writ as to that part
of the April 9 TRO that:
• restrains enforcement of GA-09 as to patients “who, based on the
treating physician’s medical judgment, would be past the legal limit
for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
IV.
The other two requirements for mandamus relief are satisfied here.
First, Petitioners “‘have no other adequate means’ to obtain the relief they
seek.” Abbott II, 2020 WL 1685929, at *13. TROs, unlike preliminary
injunctions, are not appealable. See Smith v. Grady, 411 F.2d 181, 186 (5th
Cir. 1969); see also 28 U.S.C. § 1292. Although Petitioners argued in their
separate appeal that the TRO at issue here has the “actual content, purport,
and effect” of a preliminary injunction, Smith, 411 F.2d at 186, we concluded
otherwise and dismissed that appeal for lack of jurisdiction.
Second, for substantially the same reasons set out in Abbott II, “[w]e are
persuaded that this petition presents an extraordinary case justifying issuance
of the writ.” Abbott II, 2020 WL 1685929, at *15. As we stated there,
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 . . . .
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Id. The district’s failure to apply Jacobson and its usurpation of the state’s
power by second-guessing “the wisdom and efficacy of [its] emergency
measures” are just as extraordinary now as they were on April 7. Id. Moreover,
the issues addressed in this litigation “have an importance beyond the
immediate case.” Id. (quoting Volkswagen, 545 F.3d at 318).
“[W]e are aware of nothing that would render the exercise of our
discretion to issue the writ inappropriate.” Id. (quoting Volkswagen, 545 F.3d
at 319). We therefore exercise our discretion to grant mandamus relief.
CONCLUSION
The petition for writ of mandamus is GRANTED IN PART and DENIED
IN PART.
The district court is directed to vacate any part of the April 9 TRO that
(1) restrains enforcement of GA-09 as a “categorical ban on all abortions
provided by Plaintiffs”; (2) restrains the Governor and Attorney General;
(3) restrains enforcement of GA-09 after 11:59 p.m. on April 21, 2020;
(4) restrains enforcement of GA-09 as to medication abortions; and
(5) restrains enforcement of GA-09 as to abortions for patients who will reach
18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain
abortion services in Texas.
We do not grant the writ or direct vacatur as to that part of the April 9
TRO restraining enforcement of GA-09 as to patients “who, based on the
treating physician’s medical judgment, would be past the legal limit for an
abortion in Texas—22 weeks LMP—on April 22, 2020.”
Any portions of our April 10 administrative stay remaining in effect are
LIFTED.
As indicated in Abbott II, any future appeals or mandamus petitions in
this case will be directed to this panel and will be expedited. See Gee, 941 F.3d
at 173; In re First South Sav. Ass’n, 820 F.2d 700, 716 (5th Cir. 1987).
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The mandate shall issue forthwith.
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JAMES L. DENNIS, Circuit Judge, dissenting in part.
For the second time in as many weeks, the majority invokes the “drastic
and extraordinary remed[y]” of mandamus, Ex parte Fahey, 332 U.S. 258, 259
(1947), simply to second guess the district court’s reasonable evaluation of the
evidence and to interfere with its inherent power to control the proceedings
before it. In so doing, the majority once again places us at odds with seemingly
every other federal court to have considered whether the need to conserve
hospital capacity and personal protective equipment (“PPE”) during the
current COVID-19 pandemic can justify so drastically curtailing the
constitutional right to an abortion. See In re Abbott, No. 20-50264, 2020 WL
1685929, at *16 (5th Cir. Apr. 7, 2020) (Abbott II) (Dennis, J., dissenting)
(collecting cases). 1 This second ruling is particularly inappropriate because,
although the district court properly fulfilled this court’s previous mandate—
unwarranted though the mandate may have been—the majority now moves
the goal posts and chastises the district court for not abiding by a series of
phantom instructions that can be found nowhere in its previous order. At
bottom, the majority simply disagrees with the district court’s decisions on
matters that are squarely within its discretion. This is not a proper use of “one
of the most potent weapons in the judicial arsenal.” 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)).
1 Indeed, in the interim between this case and our last decision, one of our
sister circuits has explicitly rejected the proposition that a very similar temporary restraining
order (TRO) to the one at issue here would work such irreparable harm that bypassing the
normal appeals process was appropriate. See S. Wind Women’s Ctr. LLC v. Stitt, No. 20-
6045, 2020 WL 1860683, at *2-3 (10th Cir. Apr. 13, 2020); see also id. at 3 (Lucero, J.,
concurring) (observing that where—as here—the State failed to present any evidence that
abortion procedures would result in a shortage of PPE or hospital capacity needed for the
COVID-19 response, it failed to establish that the TRO had irreparable consequences).
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This Circuit thus once again does not apply the applicable rules of law
because of the subject matter of the case, and, equally troubling, ignores the
words of its own ruling from less than two weeks ago. I again echo the words
of a colleague in dissent in a case now before the United States Supreme Court:
“It is apparent that when abortion comes on stage it shadows the role of settled
judicial rules.” June Med. Services L.L.C. v. Gee, 905 F.3d 787, 816 (5th Cir.
2018) (Higginbotham, J., dissenting), cert. granted, 140 S. Ct. 35, 204 L. Ed. 2d
1193 (2019).
I.
The facts and procedural history of this case have been
documented in detail in our previous decision. See In re Abbott, No. 20-50264,
2020 WL 1685929 at *1-4 (5th Cir. Apr. 7, 2020) (Abbott II); id. at *17 (Dennis,
J., dissenting). To briefly recount, on March 22, 2020, the Governor of Texas
issued executive order GA-09 in response to the current COVID-19 pandemic
and the accompanying shortage of personal protective equipment (“PPE”) and
hospital capacity. GA-09 requires all Texas healthcare providers to
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.
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. The order contains an exception for “any procedure that, if
performed in accordance with the commonly accepted standard of clinical
practice, would not deplete the hospital capacity or the [PPE] needed to cope
with the COVID-19 disaster.” Id. Violations of GA-09 are punishable by
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criminal penalties and, by virtue of a subsequent emergency rule with identical
requirements that was issued by the Texas Medical Board, see 22 Tex. Admin.
Code § 187.57, may effectively result in the suspension or restriction of a
practitioner’s license. 2 By its terms, GA-09 remains in effect until 11:59 p.m.
on April 21, 2020.
The day after GA-09 was issued, the Texas Attorney General
released a press release stating, among other things, that GA-09 applied to
“any kind of abortion that is not medically necessary to preserve the life and
health of the mother,” and that “[t]hose who violate the governor’s order will
be met with the full force of the law.” App. at 31. 3 The Respondents, who
provide abortion services in Texas, filed suit in district court under 42 U.S.C.
§ 1983 against the Petitioners, who are various state officials. The
Respondents asserted that the application of GA-09 to prohibit abortion
violated, inter alia, substantive due process. The Respondents sought to enjoin
the Petitioners from enforcing GA-09 as applied to abortion, and, after
reviewing argument and evidence on the point from both parties, the district
court issued a temporary restraining order (“TRO”) doing just that. See
Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL
1502102 (W.D. Tex. Mar. 30, 2020).
Before the district court could hold a scheduled hearing on whether
to issue a longer preliminary injunction, the Petitioners filed a petition for
mandamus with this court, and on April 7, the majority granted the petition
and ordered that the district court vacate its TRO. Abbott II, 2020 WL 1685929at *16. The Respondents then moved for a second, more limited TRO in the
2 Because the requirements of GA-09 and the emergency rule are coextensive,
all parties to this litigation have consistently referred to them collectively as GA-09, and this
opinion will follow suit.
3 References to “App.” in this opinion refer to the appendix to the mandamus
petition. See ECF 4 (5th Cir. No. 20-50296).
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district court, which the court granted. Planned Parenthood Ctr. for Choice v.
Abbott, No. A-20-CV-323-LY, 2020 WL 1815587, at *7 (W.D. Tex. Apr. 9, 2020)
(Abbott III). The second TRO restrained the Petitioners from enforcing GA-09
(1) “as a categorical ban on all abortions provided by [the Respondents]”; (2) as
a prohibition on “medication abortions”; (3) as a prohibition on “procedural
abortion[s] [for] any patient who, based on the treating physician’s medical
judgment, would be more than 18 weeks LMP[ 4] on April 22, 2020, and [who
are] likely unable to reach an ambulatory surgical center in Texas or to obtain
abortion care” (“the 18-week category”); and (4) as a prohibition on “procedural
abortion[s] [for] any patient who, based on the treating physician’s medical
judgment, would be past the legal limit for an abortion in Texas—22 weeks
LMP—on April 22, 2020” (“the 22-week category”). Id. The Petitioners filed a
second petition for a writ of mandamus with this court the following day.
II.
Petitioners once again ask that we direct the district court to vacate its
TRO. As noted, mandamus is an “extraordinary remedy” that should only
issue 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). It is not sufficient for the petitioners to prove
simply “that the court erred.” In re Occidental Petroleum Corp., 217 F.3d 293,
295 (5th Cir. 2000). Rather, 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
LMP refers to the length of time that has passed since the first day of a
4
pregnant woman's last menstrual period. See Tex. Health & Safety Code § 171.063.
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petitioner[s] must satisfy the burden of showing that [their] 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.” Cheney, 542 U.S. at 380-81 (internal quotation marks and
citations omitted).
The “clear and indisputable” prong of this test is not met here. That the
Petitioners’ right to relief is indeed disputable should be evident by the very
existence of this dissent and the many other courts that have concluded that
relief is not warranted in very similar circumstances. But I will elaborate. To
establish a clear and indisputable right to relief, the Petitioners must show
that the district court not only committed a “clear abuse[] of discretion,” but
also that the abuse “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). Neither precondition is met here.
A.
The majority asserts that the district court abused its discretion in
several ways. None of these assertions warrants mandamus relief.
1.
The majority first engages in what would appear to be an academic
exercise, concluding that the district court erred by restraining the Petitioners’
conduct in ways that apparently had no practical impact even under the
majority’s reasoning. Mandamus relief cannot be warranted to fix a mistake
that is of no consequence.
To start, the majority faults the district court for restraining the
Petitioners from enforcing GA-09 “as a categorical ban on all abortions”
because it does not interpret GA-09 to be a categorical ban on all abortions.
Majority at 9 (citing Abbott III, 2020 WL 1815587, at *7). As the majority
acknowledges, however, a federal court may determine that a state official’s
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purported enforcement of state law would violate a federal right, and this
principle applies regardless of whether that enforcement is a correct
interpretation of the state law. Majority at 31; See Louise B. v. Coluatti, 606
F.2d 392, 399 (3d Cir. 1979) (“To put the matter more bluntly, where a state
violates federal law, it is no better off because it also violates its own law.”).
Whether GA-09 actually is a categorical ban on abortions under state law is
therefore irrelevant. If the district court correctly found a credible threat that
the Petitioners would enforce GA-09 as a categorical ban on abortion, that
factual finding is sufficient to restrain such enforcement as a violation of a
federal constitutional right. See Susan B. Anthony List v. Driehaus, 573 U.S.
149, 159 (2014) (stating that when “plaintiffs face a credible threat of
enforcement,” they “should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief” (internal quotations omitted)).
But as I said, this discussion is academic. By restraining the Petitioners
from enforcing GA-09 as to medication abortions and those abortions falling
into the 18-week and 22-week categories, the district court’s TRO also
necessarily prevented the Petitioners from enforcing GA-09 as a categorical
ban on abortions. Neither the Petitioners nor the majority identify any
possible conduct that would violate the “categorical ban” prohibition in the
district court’s order that would not also violate the prohibition on enforcing
GA-09 against providers of medication abortions or those that provide
abortions that fall into the 18-week or 22-week categories. Quite simply, the
TRO’s prohibition on enforcing GA-09 “as a categorical ban on all abortions”
has no independent effect; it does not burden the Petitioners because it does
not alter the Petitioners’ rights or responsibilities in any way. Accordingly,
even if correct regarding the error, the majority’s decision to order this portion
of the order vacated also does not change the rights and responsibilities of any
party and serves no purpose but to point out the district court’s purported
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mistake. Invoking “one of the most potent weapons in the judicial arsenal,” In
re JPMorgan Chase, 916 F.3d at 504, simply to correct an alleged legal error
with no practical consequences is inappropriate. Indeed, we have explicitly
stated that mandamus is not warranted upon a showing “merely that the court
erred.” Occidental Petroleum Corp., 217 F.3d at 295. The Petitioners and the
majority have not demonstrated how the district court’s purported error on this
point could produce “patently erroneous results,” In re Volkswagen of Am., Inc.,
545 F.3d at 312, when, as a practical matter, it does not produce any results at
all.
Similarly, the majority concludes that, because the district court
restrained the enforcement of GA-09 past its nominal April 22 expiration date,
the district court abused its discretion by not narrowly tailoring its TRO to end
when the executive order potentially expired. Majority at 9-10. But the
majority fully acknowledges that, following GA-09’s expiration, there will be
“no enforcement of GA-09 for a court to restrain,” Majority at 10, and so the
district court’s TRO will have no effect on the Petitioners after the executive
order expires. By contrast, under the majority’s reasoning, had GA-09 been
extended, the district court would have had to again extend its TRO in order
to maintain the status quo until the scheduled preliminary injunction
hearing—something that it is not even clear the district court would have
authority to do under FED. R. CIV. P. 65(b)(2), which some authorities have held
limits a district court to one TRO extension. 5 See Clements Wire & Mfg. Co. v.
N. L. R. B., 589 F.2d 894, 896 (5th Cir. 1979) (stating that TROs “must expire
not later than 20 days after issuance,” when Rule 65(b) imposed a 10-day time
limit); U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 (4th Cir.
5The district court already extended its second TRO once on April 14. See
Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No.
82) (Apr. 14, 2020).
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2006) (stating “a TRO is limited in duration to 10 days plus one 10–day
extension” under the former time limit (emphasis added)). The extension of
the TRO was a reasonable action by the district court that was well within its
discretion—either its TRO would be harmless and would not affect any rights
or responsibilities after GA-09’s expiration, or it would be appropriately
tailored to its purpose. We now know that, fortunately, GA-09 will indeed
expire on April 22, 6 and the majority’s order will not wreak the harm that it
might have had GA-09 been extended and the district court been left with a
gap between the expiration of the TRO and the preliminary injunction hearing
that it may arguably have been powerless to fill. But again, the majority
utilizes mandamus, a “‘drastic and extraordinary’ remedy ‘reserved for really
extraordinary causes,’” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332
U.S. at 259–60), simply to correct what it wrongly perceives to be a run-of-the-
mill legal error that the majority acknowledges has no practical consequences.
The majority next concludes that the district court erred by failing to
dismiss the Texas Governor and Attorney General and by restraining them
from enforcing GA-09 in the proscribed manner because neither officer has the
“connection” to enforcement of GA-09 needed to overcome sovereign immunity
under Ex parte Young, 209 U.S. 123 (1908). Majority at 10-13. With respect
to the Attorney General, the majority concludes that neither the fact that
Texas law permits the Attorney General to participate in prosecutions for
violations of GA-09, see TEX. GOV’T CODE § 402.028, nor that the Attorney
General publicly singled out abortion providers for potential enforcement;
stated that GA-09 prohibits all abortion except in the case of a medical
emergency; and threatened that “[t]hose who violate the governor’s order will
6 See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads
/files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf.
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be met with the full force of the law,” App. at 30, are sufficient to establish a
connection to GA-09 enforcement. Our cases have not explicitly held as much,
and indeed we have previously stated that authority and a willingness to
enforce a law can be inferred by an official’s threats to do so. City of Austin v.
Paxton, 943 F.3d 993, 1001 (5th Cir. 2019) (“[T]he fact that Paxton sent letters
threatening enforcement of the DTPA makes it clear that he had not only the
authority to enforce the DTPA, but was also constraining the manufacturer’s
activities, in that it faced possible prosecution if it continued to make and
distribute its products.”). It is difficult to see, then, how the district court’s
preliminary 7 determination that the Attorney General had a connection to
enforcement was so contrary to established law as to constitute a “clear abuse
of discretion,” In re Volkswagen of Am., Inc., 545 F.3d at 312, and thereby
justify this court’s extraordinary intervention on this point.
But even assuming arguendo that the majority is correct, the sum effect
of restraining the Governor and Attorney General from enforcing GA-09 would
be nil if they lack any authority to enforce GA-09 in the first place. Thus, the
majority acts again to use the “drastic and extraordinary remedy” of
mandamus, where it at most has little, if any, practical effect. Fahey, 332 U.S.
at 259.
I therefore disagree that mandamus is appropriate with respect to any
of these alleged errors.
2.
Next the majority concludes that the district court violated the “mandate
rule” by not following the instructions issued in Abbott II. Majority at 14 (citing
7 Notably, the Petitioners have not at any point filed a motion to dismiss the
Respondents’ claims against the Governor and Attorney General, instead raising their
jurisdictional arguments only in opposition to the TRO. Had one been filed, the denial of the
motion would have been immediately appealable, see Texas v. Caremark, Inc., 584 F.3d 655,
658 (5th Cir. 2009), obviating any need for mandamus on this point.
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United States v. Smith, 814 F.3d 268, 273 (5th Cir. 2016)). But a review of the
district court’s substantive and procedural decisions makes clear that the court
complied fully with the majority’s previous directives.
a.
The majority first argues that the district court failed to apply the legal
framework that the majority previously derived from Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11 (1905), and Planned Parenthood
v. Casey, 505 U.S. 833 (1992). Majority at 13. This is contradicted by the
district court’s plain statement that applying GA-09 to the classes of abortions
identified in its TRO “violates the standards set forth in both [Casey] and
[Jacobson].” Abbott III, 2020 WL 1815587. The majority appears to regard
this as only a formalistic recitation. On the contrary, the district courts’
findings and conclusions makes clear that it properly considered each step of
the majority’s framework.
Specifically, the test the majority previously formulated required the
district court to determine (1) whether applying GA-09 to the abortions at
issue 8 lacks a “real or substantial relation” to the current public health crisis,
and (2) whether the benefits of applying GA-09 to these abortions are “beyond
all question” outweighed by its burden on the constitutional right to an
abortion, thus creating an undue burden under Casey. Abbott II, 2020 WL
8 In its previous decision, the majority without explanation chose to analyze
whether GA-09 as a whole had a real or substantial relation to the current public health
crisis, notwithstanding the fact that the Respondents were not challenging GA-09 as a whole,
nor had the district court enjoined all applications of GA-09. As discussed in more detail
below, the proper focus should have been whether the application of GA-09 to abortions bore
any real or substantial connection to the current public health crisis. See Jacobson, 197 U.S.
at 28 (“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.” (emphases added)).
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1685929, at *7, *9. The district court faithfully made findings and conclusions
tied to both steps of this analysis.
With respect to the first, the majority stated in its previous opinion that
the district court should “inquire whether Texas has exploited the present
crisis as a pretext to target abortion providers sub silentio.” Id. at *13 (citing
Lawton v. Steele, 152 U.S. 133, 137 (1894)). On this point, the district court
found that “[m]edication abortion is not a surgery or procedure” within
conventional definitions of the terms and that “[p]roviding medication abortion
does not require the use of any PPE,” which would suggest that it is not covered
by the plain language of the prohibition within GA-09. Abbott III, 2020 WL
1815587, at *3. And the court found that “[p]hysicians are continuing to
provide [other] obstetrical and gynecological procedures comparable to
abortion in PPE use or time-sensitivity, based on their professional medical
judgment” without hinderance from GA-09. Id. at *5. And, though this
significantly overlaps with the second prong of the majority’s test, the district
court made extensive findings as to why applying GA-09 to abortions “will not
conserve PPE” and “will not conserve hospital resources”—the two explicitly
stated goals of the executive order. Id. at *4. These findings all suggest that
the application of GA-09 to abortions—particularly medication abortions—is
pretextual and not motivated by any desire to conserve PPE or hospital
capacity, meaning it lacks a “real or substantial relation” to the current public
health crisis under the framework the majority instructed the district court to
employ. Abbott II, 2020 WL 1685929, at *7.
The district court’s analysis is even more explicit at the second stage of
the inquiry in which the majority instructed it to weigh the benefits of applying
GA-09 to abortions against the burden on the constitutional right to an
abortion. Id. at *9. As stated, the district court made a range of findings
indicating that applying GA-09 to abortions not only would not result in a
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public health benefit but in fact would be a net drain on PPE and hospital
capacity and would be otherwise harmful to public health. The court made
specific findings as to how much and what kind of PPE are consumed during
the performance of medication and procedural abortions and their surrounding
services, as well as the frequency with which complications require
hospitalization with each method. Abbott III, 2020 WL 1815587, at *3-4. The
court then compared this figure to the amount of each resource typically
consumed by a woman continuing a pregnancy and found that substantially
more of each resource is consumed “at each stage of the [continued] pregnancy”
than in a pre-viability abortion. 9 Id. at *4. And the district court noted that
continuing a pregnancy requires significantly more “in-person healthcare” and
that many women denied an abortion by GA-09 are traveling out-of-state to
obtain one, increasing their risk of contracting COVID-19. Id. at *4-5.
The district court then made a variety of findings regarding the burden
that applying GA-09 to the classes of abortion at issue placed on the
constitutional right to abortion. The court found that the Respondents had
“turned away hundreds of patients seeking abortion care,” and that “[t]here
will be significant pent-up need for abortion care when the Executive Order
expires,” resulting in further delays. Id. at *5. The court noted that
progressively more invasive techniques are required to perform an abortion the
9 The majority now faults the district court for not explicitly stating that its
findings were with regard to how much of each resource are being consumed during the
current COVID-19 pandemic. Majority at 20-23. As discussed in more detail below, this is
an incorrect reading of the district court’s order, see Abbott II, 2020 WL 1685929, at *4 (noting
the amount of N95 masks the physicians associated with the Respondents had used “since
the beginning of the COVID-19 pandemic” and citing the “recommendations from the
American College of Obstetricians and Gynecologists (‘ACOG’) and other medical authorities
for providing obstetrical care during the COVID-19 pandemic” (emphasis added)), and the
majority mistakenly insists on punctilious formality rather than making reasonable
inferences from the evidence and the district court’s findings. For now, suffice it to say that
this new requirement can be found nowhere in the majority’s previous order.
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longer that it is delayed. Id. And the court found that the health risks,
financial costs, and emotional cost of an abortion increases with gestational
age, meaning the delays make abortions riskier and more cost prohibitive. Id.
at *5-6. The court also found that for many women, the delay would result in
them being effectively denied a legal right to an abortion in Texas, either
because they would exceed the 22-week maximum legal limit or they would
reach a gestational age at which they were legally required to go to a facility
that they did not have access to in order to receive an abortion. Id.
The district court then weighed these benefits and burdens against each
other, just as the majority instructed, and concluded that “based on the court’s
findings of fact, it is beyond question that the Executive Order’s burdens
outweigh the order’s benefits as applied” to the classes of abortion at issue. Id.
at *6. And in doing so, it explicitly relied Jacobson.
It is one thing for the majority to disagree with the district court’s
findings or its weighing of the relative benefits and burdens of applying GA-09
to these abortions (though, as will be discussed, the majority is wrong to do so).
But it is simply inaccurate for the majority to conclude that the district court
disregarded its instructions to apply a legal framework that it is abundantly
clear the district court in fact applied. I therefore disagree that the district
court violated the mandate rule in this respect and, therefore, that mandamus
is appropriate to correct the supposed error.
b.
The majority next reprimands the district court for entering a TRO at
all. Majority at 14-19. The majority seems to have wanted the district court
to instead proceed directly to an adversarial hearing on a preliminary
injunction without issuing another TRO to preserve the status quo until that
hearing could be held. This requirement is stated nowhere in the previous
mandamus order and cannot be reconciled with the principle that district
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courts have broad discretion in ordering their affairs. To be sure, the majority
made several references to the sort of evidence that could be adduced and
arguments that could be made at an upcoming preliminary injunction hearing.
See, e.g., Abbott II, 2020 WL 1685929, at *2 (“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.”); id. at *9 (“Respondents will have the
opportunity to show at the upcoming preliminary injunction hearing that
certain applications of GA-09 may” violate Casey); id. at *12 (“These are issues
that parties may pursue at the preliminary injunction stage[.]”). But even
assuming arguendo these off-hand comments could be construed as a directive
to hold a preliminary injunction hearing—they obviously cannot—at no point
did the majority suggest the district court was not permitted to issue a TRO to
prevent irreparable harm in the interim until a hearing could be held.
Nor is it clear by what authority the majority would have imposed such
a restriction if it had been contained in the previous mandamus order. It is
well established that “[d]istrict courts have broad discretion to evaluate the
irreparability of alleged harm and to make determinations regarding the
propriety of injunctive relief.” Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C.
Cir. 1987). This broad discretion extends to “manag[ing] the timing and
process for entry of all interlocutory injunctions—both TROs and preliminary
injunctions[.]” Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000).
The majority and the Petitioners make much of the fact that the district
court did not permit the Petitioners to “respond [to the second TRO motion] in
writing” before entering the second TRO. Transcript of 4/9/20 Tele. Conf. at
14:39; see Majority at 18 (“Moreover, we called for additional evidence from
both sides.”). But as the majority acknowledges, the district court was not
required to do so, as the Rules explicitly allow a TRO to be entered ex parte.
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Majority at 14 (citing Fed. R. Civ. P. 65(b)(1)). Further, the Petitioners had
already been permitted to make argument and introduce evidence in response
to the Respondents’ first motion for a TRO. See Planned Parenthood Center for
Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 30) (March 30,
2020). It was not an abuse of the district court’s discretion for it to conclude
that, given the time constraints and the potential for irreparable harm that
had been established, it was imprudent to wait for further argument or
evidence from the Petitioners before entering a TRO to preserve the status quo
until the preliminary injunction hearing. All that was required was that “the
opposing party [be] given a reasonable opportunity, commensurate with the
scarcity of time under the circumstances, to prepare a defense and advance
reasons why the [preliminary] injunction should not issue.” Ciena Corp., 203
F.3d at 319. The Petitioners would have had that opportunity at the
rescheduled preliminary injunction hearing, and they could have filed a motion
to dissolve the TRO with accompanying exhibits at any time under Rule
65(b)(4) if they truly believed that time was of the essence such that they could
not wait for the hearing. 10 Instead, they filed the present motion for
mandamus.
The majority alternately argues that the district court defied the
mandate by entering a TRO on essentially the same record that the previous
mandamus order found was inadequate to support a TRO. Majority at 14-19.
This is simply inaccurate. Following the district court’s first March 30 TRO
order, which was based on ten declarations submitted by the Respondents, the
10 Petitioners’ failure to do so, together with their stated resistance to “an
overly ambitious schedule” in the latest status report filed with the district court in which
they requested that the preliminary injunction hearing be held no earlier than April 30,
Abbott, No. 1:20-cv-00323-LY (Dkt. No. 78) at 3 (Apr. 14, 2020), conflicts with any assertion
that time truly is so of the essence that Petitioners had “no other adequate means to attain
the relief [they] desire[],” as is required for a grant of mandamus. Occidental Petroleum
Corp., 217 F.3d at 380.
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Respondents filed nine additional declarations as supplements to their motion
for a preliminary injunction. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 49)
(April 2, 2020). And the Respondents included a new tenth declaration with
their second motion for a TRO. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 56)
(April 8, 2020). The district court thus had twice the number of declarations
filed by the Respondents before it when it entered its second TRO than when
it entered its first.
In an attempt to overcome the fact that the record was clearly
substantially more developed when the district court entered its second TRO,
the majority argues that the Respondents cited to the supplemental
declarations in their opposition to the Petitioners last mandamus petition, and
so these declarations were included in the record that the majority reviewed
and declared insufficient. Majority at 17-18. But the majority’s last
mandamus order commented only on “the record before us.” Abbott II, 2020
WL 1685929, at *9. The fact that the Respondents cited to additional
declarations in their briefing is of no moment. The additional declarations
were not included in the appendix filed with the previous mandamus petition
and they were not before the district court when it made the decision we
reviewed. Further, the majority did not explicitly take judicial notice of the
additional declarations, and the contents of the declarations are not the type
of indisputable information suitable for judicial notice in any event. See Gov’t
of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979) (noting that Federal
Rule of Evidence 201, which permits judicial notice only of generally known
facts or those that can be readily determined from an indisputably reliable
source, applies at every stage of a proceeding). There was no reason for the
district court—or anyone, for that matter—to assume the supplemental
declarations were included in the majority’s review of “the record before us”
that resulted in its conclusion that the evidence was inadequate. Abbott II,
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2020 WL 1685929, at *9. Indeed, if the additional declarations were included
in that review, the majority’s statement was arguably an improper advisory
opinion on matters not before the court because the sufficiency of those
declarations had no bearing on whether the district court’s previous decision
was correct at the time it was made. Cf. United States v. Marine Shale
Processors, 81 F.3d 1329, 1352 (5th Cir. 1996) (declining to give an advisory
opinion on matters that did not affect the issues before it and that could be
litigated in a later proceeding); Henry v. Dep’t of Hous. & Urban Dev. (HUD),
Washington, D. C., 451 F.2d 355, 356 (8th Cir. 1971) (noting that the court
could not give an advisory opinion as to the validity of a different complaint
that was not the complaint the district court dismissed).
In sum, the district court considered new evidence just as the majority
instructed, and it applied the legal framework that the majority prescribed.
The majority is thus wrong to now hold that the district court failed to fulfill
the majority’s previous mandate simply because it did not meet new additional
requirements that were not stated in the majority’s order, and I therefore
disagree that this supposed defiance warrants mandamus.
B.
That the district court did not commit a clear abuse of discretion is
sufficient reason on its own to deny mandamus. See 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). But mandamus is also not warranted because, contrary to the majority’s
contention, the district court’s analysis did not lead to patently erroneous
results. Assuming arguendo that the majority’s interpretation of Jacobson is
correct and the standard it articulated applies here, restraining the
enforcement of GA-09 as a prohibition on the classes of abortion at issue was
appropriate if (1) that enforcement is “pretextual—that is, arbitrary or
oppressive” because it “has no real or substantial connection” to protecting
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public health during the COVID-19 epidemic; or (2) if that enforcement is
“‘beyond all question, a plain, palpable invasion’ of the [constitutional] right to
abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S.
at 31). There is ample evidence in the record to support the conclusion that
both of these requirements are met with respect to the applications of GA-09
the district court restrained through its second TRO, and the majority’s
disagreement with the district court’s reasonable evaluation of this evidence
does not make the TRO palpably erroneous.
As an initial matter, the majority breezes past the pretext prong of
its test, barely even mentioning it in its analysis of the results of the district
court’s reasoning. This is likely because, in its previous order, the majority
without explanation elected to analyze this question as whether GA-09 as a
whole had a real or substantial relation to the current public health crisis, and
so was able to easily conclude that it did. See id. at *8 (“The answer is obvious:
the district court itself conceded that GA-09 is a valid emergency response to
the COVID-19 pandemic.”). But this is the wrong focus of the inquiry. The
Respondents were not challenging GA-09 as a whole, nor had the district court
enjoined all applications of GA-09. The Respondents had challenged, and the
district court had restrained, the application of GA-09 to abortions, and
Jacobson itself makes clear that the question should not have been whether
“GA-09 is a pretext for targeting abortion.” Id. at *13. It should have been
whether the enforcement of GA-09, a concededly valid public health measure,
was being used as a pretext to target abortions by state actors motivated by
hostility to abortion rights. See Jacobson, 197 U.S. at 28 (“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
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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.” (emphases
added)). Indeed, to hold otherwise would sanction the use of valid public health
measures as tools for the arbitrary deprivation of any number of constitutional
rights, regardless of the logical efficacy of applying the measure in that manner
or even whether the enforcement was in fact motivated by a desire to further
public health. See, e.g., On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-
264-JRW, 2020 WL 1820249, at *2 (W.D. Ky. Apr. 11, 2020) (finding that a ban
on public gatherings during the pandemic, which would obviously be a valid
public heath measure, was unconstitutional when used to prevent a drive-
through Easter Sunday church service in which parishioners remained in their
cars and had no direct personal contact (quoting Jacobson, 197 U.S. 11, 31
(1905)).
Considered in this light, there was sufficient evidence in the record
to conclude that the enforcement of GA-09 as a prohibition on all three of the
classes of abortion at issue was pretextual and motivated not by a desire to
advance public health, but rather to reduce the number of abortions performed
for its own sake. To begin with, as the district court determined and as the
majority acknowledged in a previous order in this case, see In re Abbott, No.
20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020), medication abortion,
which in itself consists entirely of providing a patient with two sets of oral
medication, is not a “surgery or procedure” under either the conventional
definitions of those terms or the meaning assigned to them in informal
guidance from the Texas Medical Board. See TEXAS MEDICAL BOARD,
Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries
and Procedures During Texas Disaster Declaration for COVID-19 Pandemic
(Mar. 29, 2020), https//www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF-
F9221E4DEF17 (last visited Apr. 19, 2020). And, as a wide range of
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declarations in the record establish, medication abortion consumes no PPE
whatsoever when considered in isolation without the preceding ultrasound or
post-abortion tests that Texas law requires. See App. at 73, 86, 91-92, 100,
110, 117, 134, 157. Medication abortion therefore does not appear to fall within
the facial, plain meaning of GA-09’s prohibition on non-urgent elective
“surgery or procedures,” and if it did, it would seem to fall into the exception
for “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 Texas Executive 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. The Petitioners’ stated desire to
nonetheless enforce the order against the providers of medication abortion
raises a strong inference that the enforcement against abortion providers more
generally is pretextual and motivated by hostility to abortion rights. Further
supporting this inference are multiple declarations from practicing physicians
stating that GA-09 is not being enforced to prohibit many obstetrical and
gynecological procedures that consume as much or more PPE and hospital
capacity than the categories of abortion at issue here, suggesting that abortions
were being singled out for differential treatment. See App. at 368, 373-74.
And, as discussed in more detail below, there is substantial evidence in the
The majority theorizes that, because the district court found that medication
11
abortion is not a surgery or procedure within the meaning of GA-09, its TRO might be
construed as enjoining state officials to comply with state law, which would violate principles
of sovereign immunity. Majority at 30-31 (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 106 (1984)). But “[a]scertaining state law is a far cry from compelling state
officials to comply with it.” Williams ex rel. J.E. v. Reeves, No. 19-60069, 2020 WL 1638411,
at *7 (5th Cir. Apr. 2, 2020) (quoting Everett v. Schramm, 772 F.2d 1114, 1119 (3d Cir. 1985)).
To the extent the district court interpreted GA-09 and considered that the Petitioners were
likely improperly enforcing it in determining whether the enforcement was pretextual, it did
nothing improper.
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record that enforcing GA-09 against these categories of abortion leads to a net
loss of PPE and hospital capacity because the amount of each resource
consumed at every stage of a continued pregnancy is greater than the amount
consumed in the performance of a medication or procedural abortion. See App.
at 135, 372-74, 414.
Based on this evidence, the district court could reasonably
conclude at the TRO stage that Petitioner’s enforcement of GA-09 as a
prohibition against the categories of abortion at issue here was “pretextual”
and had “no real or substantial connection” to protecting public health during
the COVID-19 epidemic. Abbott II, 2020 WL 1685929, at *7, *8 (quoting
Jacobson, 197 U.S. at 31). Under the majority’s framework, this fact alone is
enough to demonstrate that the district court’s determinations did not produce
“patently erroneous results” as required for the issuance of mandamus. See 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). But the majority doubly errs because there was
also ample evidence to conclude that enforcement of GA-09 against each of
these categories of abortion fails the second prong of its test by being “‘beyond
all question, a plain, palpable invasion’ of the [constitutional] right to
abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S.
at 31). I will consider the two classes of abortions the majority vacates the
TRO with respect to in turn.
1.
The majority first considers whether the evidence was sufficient
for a district court to reasonably conclude that enforcing GA-09 against
providers of medication abortion “beyond all question” violated the
constitutional right to an abortion. Majority at 19-31. The majority begins by
asserting that the district court considered only the relative consumption of
PPE associated with medication abortions under normal circumstances and
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asserts that there is no evidence documenting PPE usage rates during the
current pandemic. Majority at 20-23.
First, it is worth reiterating that the majority’s previous order did
not include a directive to the district court to specify that findings it was
making regarding relative usage were about rates during the current
pandemic. The majority now changes the rules in order to find error where
there is none. Its new requirement is based solely on the majority’s own
supposition that, during the current pandemic, there is PPE used during
medication abortions that would not otherwise be used by abortion providers
furnishing other healthcare services, and that this increase shifts the balance
between the relative benefits and burdens of applying GA-09 to prohibit
medication abortions. There is no evidence for the majority’s supposition.
In support of its contention that the rate of PPE usage has likely
changed, the majority points to a declaration by an infectious disease expert
that states “[n]ot wearing face masks and other PPE when caring for patients
who are not under investigation for COVID 19 . . . exposes health care workers
to transmission of infection” from asymptomatic patients. Majority at 22. But
there is no indication that the abortion providers would not wear the same
amount of PPE “caring for patients” in ways other than providing abortion.
The majority fails to make the simple logical inference that, if medication
abortion requires no PPE under normal conditions, it requires no more PPE
than would be used by medical staff providing other services under pandemic
conditions. For the majority’s premise to be correct, one would have to assume
that abortion providers only (or at least primarily) provide abortion services
and would not fill canceled abortion appointment slots with appointments for
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other medical services that would bring them into personal contact with
patients at a similar frequency. 12
Even assuming arguendo that medication abortions do consume
more PPE in a pandemic, the pertinent question is not whether prohibiting
medication abortion prevents the use of some marginal amount of PPE. It is
whether it creates a net benefit that outweighs its burden on the constitutional
right to abortion. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292,
2310 (2016). As I stated before, there was no evidence in the record suggesting
that any PPE purchased by or in the possession of abortion providers that
would be conserved by applying GA-09 to abortions could be redirected to the
COVID-19 response, nor have the majority or Petitioners articulated any
logical way in which this could be so. Abbott II, 2020 WL 1685929, at *22
(Dennis, J., dissenting). Moreover, there are multiple declarations in the
record from health care professionals documenting that any increase in PPE
consumption from medication abortion during the pandemic is more than
matched by an increase in PPE consumption from the necessary medical
services associated with continuing a pregnancy. See, e.g., App. at 135 (“By
comparison, even if a provider of prenatal care reduces the scheduling of such
care during the COVID-19 outbreak, it will still involve use of masks, sterile
gloves, and potentially other PPE during multiple visits. A patient continuing
pregnancy will thus require significantly more PPE than a patient presenting
for abortion.”); App. at 375 (stating that “most prenatal and postpartum care
is continuing” during the COVID-19 pandemic and cannot be done remotely
12According to Planned Parenthood’s website, in addition to abortion services,
the organization provides health services associated with emergency contraception, general
preventative healthcare, testing and treatment for HIV and other sexually transmitted
diseases, LGBT services, fertility treatments, treatment for sexual dysfunction, pregnancy
testing and associated services, pelvic exams, and cancer screenings. See Our Services,
Planned Parenthood, https://www.plannedparenthood.org/get-care/our-services (last visited
Apr. 20, 2020).
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before concluding that “requiring people to continue unwanted pregnancies
utilizes more PPE and more hospital resources than abortion care”). Thus,
there is more than sufficient evidentiary support to conclude that applying
COVID-19 to prohibit medication abortions does not preserve PPE during the
current pandemic.
The majority attempts to overcome this basic conclusion by
asserting that the state made a policy judgment that it was more important to
conserve PPE in the near term than the long term in order to “flatten the
curve.” Majority at 25. But this ignores the evidence that continuing a
pregnancy results in more PPE usage at every stage of the pregnancy than is
typically used in an abortion of any sort. See App. at 414 (“[T]he imaging and
laboratory tests alone needed during early pregnancy require the use of more
PPE than is typically used in connection with an abortion.”) There is thus
ample evidentiary support to conclude that applying GA-09 to medication
abortions results in no conservation of PPE in the short or long term.
Similar evidence exists with respect to hospital capacity; when a
pregnancy is continued, more hospital beds and resources are consumed than
when a woman obtains a pre-viability abortion, and there is no indication that
the current pandemic has changed this. See, e.g., App. at 375. And significant
evidence supports a conclusion that women who are unable to obtain an
abortion because of GA-09 will travel out of state to obtain one, increasing their
risk of contracting COVID-19 and spreading it to others. 13 See, e.g., App. at
258-59, 311. Thus, this is not an instance in which the district court made a
“choice . . . between two reasonable responses to a public crisis,” that should
13 The majority’s unsupported supposition that similar travel might occur as a
result of any medical procedures being postponed, Majority at 26, is particularly misplaced.
There is no evidence that any other delayed medical service increases in cost and health risk
if delayed in the same manner as an abortion, nor that there exists a legal deadline by which
such procedures must be procured comparable to Texas’s ban on post 22-week abortions.
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have been “left to the governing state authorities.” Abbott II, 2020 WL 1685929,
at *12 (citing Jacobson, 197 U.S. at 30). This is an instance in which the
district court logically concluded that applying GA-09 to medication abortions
was not reasonable because it produced no public health benefit, and indeed,
was detrimental to achieving even its ostensible goals. And against this total
lack of a benefit, there is substantial evidence that applying GA-09 to prohibit
medication abortions posed a significant burden on the constitutional right to
abortion, including by increasing the health risks, financial costs, and
emotional toll associated with obtaining an abortion. It was thus entirely
reasonable for the district court to conclude that the benefits of applying GA-
09 to medication abortions are “beyond all question” outweighed by its burden
on the constitutional right to an abortion, Abbott II, 2020 WL 1685929, at *7,
*9, thereby creating an unconstitutional undue burden under Casey.
The majority faults the district court for not citing to the
Petitioners’ exhibits purportedly containing contrary evidence on some of these
points, calling this a failure to “carefully parse the evidence.” Majority at 26-
30. But “[i]t is the province of the district court to weigh conflicting evidence,”
including by choosing which evidence to credit and which evidence to discount.
R. S. by & through Ruth B. v. Highland Park Indep. Sch. Dist., 951 F.3d 319,
337 (5th Cir. 2020). It is not our role to second guess what would appear to be
a reasonable evaluation of the evidence under commonplace circumstances, let
alone on mandamus review. There is thus no basis to conclude that the district
court’s reasoning produced “patently erroneous results” as to medication
abortions. 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).
2.
The majority similarly concludes that the district court’s reasoning
led to a patently erroneous result with regard to the TRO’s blocking application
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of GA-09 to those abortions in the 18-week category—that is, those abortions
for women who would exceed the maximum gestational age to legally have an
abortion other than in an ambulatory surgical center by the expiration of the
executive order and who would, in their physicians’ judgment, be unable to
obtain an abortion at one of these centers. Majority at 32-34.
The majority first criticizes the district court for categorizing the
application of GA-09 to women in this 18-week category as an “absolute ban on
abortion” because, it contends, women falling into this category can,
theoretically, still legally obtain an abortion. Majority at 32 (quoting Abbott
III, 2020 WL 1815587, at *6). The majority’s argument is based on a
theoretical legal possibility that is a practical impossibility. Many women in
this category will not be able to obtain an abortion for a number of reasons. In
reality, there are no ambulatory surgical centers that provide abortion care
outside of Texas’s four largest metropolitan areas, see Hellerstedt, 136 S. Ct. at
2316, and thus many women in rural areas of Texas would need to secure
transportation over a great distance and lodging in a metropolitan area in
order to undergo the two-day procedure necessary for an abortion after the 18-
week mark. See App. at 130-31. For many this will not be possible due to time
constraints, financial limitations, health reasons, or any number of other
factors. And there is evidence that, because of the buildup of need for abortion
care during the time GA-09 is in effect, the delays associated with the resulting
backlog may prevent many women who will be past the 18-week mark upon
the expiration of the executive order from obtaining an abortion before the 22-
week legal cutoff. 14 See, e.g., App. at 95. For these women, GA-09 is for all
intents and purposes an absolute ban on abortion. And the majority offers no
14 This is especially true because the 18-week category contains even women
that will be only one or a few days shy of the 22-week legal cutoff for an abortion when GA-
09 expires.
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authority for the prospect that a law that theoretically leaves a legal path to
abortion cannot as a practical matter function as the sort of absolute ban that
violates “the essential holding of Roe v. Wade,” Casey, 505 U.S. at 846.
In light of the balancing test for identifying an undue burden set
forth in Casey, 505 U.S. at 874, and Hellerstedt, 136 S. Ct. at 2310, the outright
ban on previability abortion might be thought of as the ultimate burden on the
constitutional right to abortion which no benefit or interest yet identified can
outweigh. In that case, a law that nominally allows abortion but places it
functionally out of reach for a class of women is only slightly less of a burden,
and it stands to reason that a truly compelling benefit would be required to
justify it.
We need not speculate what that benefit might be, though, because
on the evidence in the record, it was reasonable for the district court to
conclude that applying GA-09 to prohibit this class of abortions offered no
benefit at all. Much of the evidence already recounted concerned not only the
relative consumption of PPE and hospital capacity between a medication
abortion and a continued pregnancy, but rather any pre-viability abortion and
a continued pregnancy. See, e.g., App. at 135 (“By comparison, even if a
provider of prenatal care reduces the scheduling of such care during the
COVID-19 outbreak, it will still involve use of masks, sterile gloves, and
potentially other PPE during multiple visits. A patient continuing pregnancy
will thus require significantly more PPE than a patient presenting for
abortion.”); App. at 375 (stating that “most prenatal and postpartum care is
continuing” during the COVID-19 pandemic and cannot be done remotely
before concluding that “requiring people to continue unwanted pregnancies
utilizes more PPE and more hospital resources than abortion care”).
It is true that, as the majority notes, the Supreme Court
acknowledged that “increased driving distances do not always constitute an
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‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313. But the district court’s
conclusion was not based on increased driving distance alone. The distance
was “one additional burden, which, when taken together” with the forced
postponement of abortion care, which created a significant backlog of need with
a “virtual absence of any health benefit,” id., “beyond question” constituted an
undue burden, Abbott II, 2020 WL 1685929, at *11. This conclusion was a
reasonable interpretation of the evidence, and it therefore did not produce
palpably erroneous results such that mandamus is appropriate. 15
CONCLUSION
The present case is an excellent demonstration of the dangers of
using the extraordinary remedy of mandamus to overmanage matters that are
properly left to a district court’s discretion. In part because of the decisions of
this court, the legality of abortion in Texas has changed no less than six times
since the beginning of the COVID-19 pandemic. This court has expended
substantial time and judicial resources in an effort to prevent interference with
the state’s pandemic response at a most urgent time, only to instead contribute
to a confusion that is likely more disruptive than the alleged harm it sought to
15 The majority determines that the district court did not patently err by
enjoining the enforcement of GA-09 against abortions in the 22-week category. Majority at
34-35. I agree that the district court did not patently err and that mandamus is not
warranted. However, I disagree with the majority’s characterization of the evidence of
women who would be denied abortions in this category as “second-hand” and “weak.”
Majority at 34. Contra App. at 103 (declaration from CEO of nonprofit operator of an abortion
clinic stating from personal knowledge that her clinic canceled two appointments with women
who will be past the 22-week legal limit for an abortion by the expiration of GA-09); App at
349 (declaration from general manager of surgical center stating from personal knowledge
that at least three of the patients whose appointments were canceled will be past the 22-week
legal limit for abortion by the expiration of GA-09); App. at 353 (declaration from senior
director of ambulatory surgical center stating from personal knowledge that, based on
ultrasound dating, at least three of the appointments the clinic canceled were for women who
will be beyond the legal gestational age limit to obtain an abortion by the expiration of GA-
09); App. at 442 (declaration from employ of abortion financial assistance fund stating from
personal knowledge that at least ten of the funds clients will be past the 22-week gestational
age limit for an abortion by the expiration of GA-09).
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prevent. Even today’s order will have little practical effect other than to briefly
change the legality once more. Under GA-15, which takes effect at midnight
on April 22, abortion legality in Texas will apparently change for an eighth
time, as the Respondents have represented that all of their abortion care will
fall into the new exception that exempts services provided by heath facilities
that certify they will not draw upon any public supply of PPE.
The majority again concludes that mandamus is appropriate to
correct what it perceives as rampant abuses of discretion by the district court
that produced patently erroneous results. As I have said, I strongly disagree
with the majority’s critique of the district court’s work, and I do not believe
that this case warrants mandamus relief. I therefore once again respectfully
but emphatically dissent.
68