In re Abbott

• Decision Date: 20 April 2020
• Docket Number: No. 20-50296,20-50296
• Citation: 956 F.3d 696
• Parties: 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
• Court: U.S. Court of Appeals — Fifth Circuit

956 F.3d 696

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

No. 20-50296

United States Court of Appeals, Fifth Circuit.

REVISED April 20, 2020

Heather Gebelin Hacker, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Austin, TX, Kyle Douglas Hawkins, Beth Ellen Klusmann, Esq., Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Petitioners.

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Amici Curiae STATE OF LOUISIANA, STATE OF ALABAMA, STATE OF ALASKA, STATE OF ARKANSAS, STATE OF GEORGIA, STATE OF IDAHO, STATE OF INDIANA, STATE OF KENTUCKY, STATE OF MISSISSIPPI, STATE OF MISSOURI, STATE OF MONTANA, STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF SOUTH DAKOTA, STATE OF TENNESSEE, STATE OF UTAH, and STATE OF WEST VIRGINIA.

Richard Muniz, Julie A. Murray, Hannah Swanson, Planned Parenthood Federation of America, Washington, DC, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, Jennifer Sandman, Planned Parenthood Federation of America, New York, NY, for Respondents PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, and PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER.

Richard Muniz, Julie A. Murray, Hannah Swanson, Planned Parenthood Federation of America, Washington, DC, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, Jennifer Sandman, Planned Parenthood Federation of America, New York, NY, Rupali Sharma, Lawyering Project, Portland, ME, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, New York, NY, for Respondents WHOLE WOMAN'S HEALTH, and WHOLE WOMAN'S HEALTH ALLIANCE.

Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, New York, NY, Richard Muniz, Julie A. Murray, Hannah Swanson, Planned Parenthood Federation of America, Washington, DC, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, Jennifer Sandman, Planned Parenthood Federation of America, New York, NY, Rupali Sharma, Lawyering Project, Portland, ME, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, New York, NY, for Respondents SOUTHWESTERN WOMEN'S SURGERY CENTER, BROOKSIDE WOMEN'S MEDICAL CENTER, P.A., and ROBIN WALLACE, M.D., M.A.S.

Edward Lawrence White, American Center for Law & Justice, Ann Arbor, MI, for Amicus Curiae AMERICAN CENTER FOR LAW AND JUSTICE.

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 , 954 F.3d 772 (5th Cir.2020) ( Abbott II ). Two days later, on April 9, the district court entered a second TRO, exempting various categories of abortion 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, 25 S.Ct. 358, 49 L.Ed. 643 (1905)." Abbott II , 954 F.3d at 782. 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., 954 F.3d at 777.

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 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 LMP⁴ 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 , 954 F.3d at 777–781 ; Abbott IV , 800 Fed.Appx at 294–96. 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-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 , 954 F.3d at 780 & 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, 25 S.Ct. 358, 49 L.Ed. 643 (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, 25 S.Ct. 358. 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, 25 S.Ct. 358. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30, 25 S.Ct. 358.

Abbott II , 954 F.3d at 784 (cleaned up). We also articulated how the Jacobson framework works with the Casey undue-burden analysis. Id., 954 F.3d at 790 (discussing Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (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, 25 S.Ct. 358 ). 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., 954 F.3d at 790–791 (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...