In re Abbott

Decision Date07 April 2020
Docket NumberNo. 20-50264,20-50264
Citation954 F.3d 772
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
CourtU.S. Court of Appeals — Fifth Circuit

Kyle Douglas Hawkins, Beth Ellen Klusmann, Esq., Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Heather Gebelin Hacker, Assistant Solicitor General, Office of the Attorney General for the State of Texas, 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 Alabama, State of Arkansas, State of Idaho, State of Indiana, State of Kentucky, State of Louisiana, State of Mississippi, State of Missouri, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Utah, State of West Virginia.

Julie A. Murray, Richard Muniz, Hannah Swanson, Washington, DC, Jennifer Sandman, New York, NY, Planned Parenthood Federation of America, for Respondents Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center.

Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, for Respondents.

Rupali Sharma, Portland, ME, Stephanie Toti, Esq., Staff Attorney, New York, NY, Lawyering Project, for Respondents Whole Woman's Health, Whole Woman's Health Alliance.

Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, New York, NY, for Respondents Southwestern Women's Surgery Center, Brookside Women's Medical Center, P.A., doing business as Brookside Women's Health Center and Austin Women's Health Center, 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.

Jonathan F. Mitchell, Austin, TX, for Amici Curiae American Association of Pro-Life Obstetricians & Gynecologists, Texas Values, Indiana Family Institute, Family Heritage Alliance Action, South Dakota, Minnesota Family Council, Wisconsin Family Action, Alaska Family Action, California Family Council, Ohio Citizens for Community Values, Nebraska Family Alliance, Family Policy Institute of Washington, Family Foundation (Kentucky), Louisiana Family Forum.

Nicole A. Saharsky, Mayer Brown, L.L.P., Washington, DC, for Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, American Academy of Nursing, American Academy of Pediatrics, AAGL, American College of Nurse-Midwives, American College of Osteopathic Obstetricians and Gynecologists, American Osteopathic Association, American Psychiatric Association, American Society of Reproductive Medicine, American Urogynecologic Society, North American Society for Pediatric and Adolescent Gynecology, National Association of Nurse Practitioners in Womens Health, Society of Family Planning, Society for Maternal-Fetal Medicine, Society of Gynecologic Oncology, Society of Gynecologic Surgeons, Society of Gynecologic Surgeons, Society of OB/Gyn Hospitalists.

Anisha Sasheen Dasgupta, Deputy Solicitor General, Office of the Attorney General for the State of New York, New York, NY, for Amici Curiae State of New York, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, Commonwealth of Massachusetts, State of Minnesota, State of Nevada, State of New Mexico, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, District of Columbia.

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.


To preserve critical medical resources during the escalating COVID-19 pandemic, on March 22, 2020, the Governor of Texas issued executive order GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. Reading GA-09 as an "outright ban" on pre-viability abortions, on March 30 the district court issued a temporary restraining order ("TRO") against GA-09 as applied to abortion procedures. At the request of Texas officials, we temporarily stayed the TRO while considering their petition for a writ of mandamus directing vacatur of the TRO. We now grant the writ.

The "drastic and extraordinary" remedy of mandamus is warranted for several reasons. In re JPMorgan Chase & Co. , 916 F.3d 494, 499 (5th Cir. 2019) (citation omitted).

First, the district court ignored the framework governing emergency public health measures like GA-09. See Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). "[U]nder the pressure of great dangers," constitutional rights may be reasonably restricted "as the safety of the general public may demand." Id. at 29, 25 S.Ct. 358. That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception. See Roe v. Wade , 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (citing Jacobson ); Planned Parenthood v. Casey , 505 U.S. 833, 857, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (same); Gonzales v. Carhart , 550 U.S. 124, 163, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (same).1

Second, the district court’s result was patently wrong. Instead of applying Jacobson , the court wrongly declared GA-09 an "outright ban" on previability abortions and exempted all abortion procedures from its scope. The court also failed to apply Casey ’s undue-burden analysis and thus failed to balance GA-09’s temporary burdens on abortion against its benefits in thwarting a public health crisis.

Third, the district court usurped the state’s authority to craft emergency health measures. Instead, the court substituted its own view of the efficacy of applying GA-09 to abortion. But "[i]t is no part of the function of a court" to decide which measures are "likely to be the most effective for the protection of the public against disease." Jacobson , 197 U.S. at 30, 25 S.Ct. 358.

In sum, given the extraordinary nature of these errors, the escalating spread of COVID-19, and the state’s critical interest in protecting the public health, we find the requirements for issuing the writ satisfied. See Cheney v. U.S. Dist. Court for Dist. of Columbia , 542 U.S. 367, 380–81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).

We emphasize the limits of our decision, which is based only on the record before us. The district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances. The district court can then make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access. Our overriding consideration here, however, is that those proceedings adhere to the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures like the one before us.

Accordingly, we grant a writ of mandamus directing the district court to vacate its TRO of March 30, 2020.


As all are painfully aware, our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. As of April 6, 2020, over 330,000 cases have been confirmed across the United States, with over 8,900 dead.2 The virus is "spreading very easily and sustainably"3 throughout the country, with cases confirmed in all fifty states, the District of Columbia, and several territories.4 Over the past two weeks, confirmed cases in the United States have increased by over 2,000%.5 Federal projections estimate that, even with mitigation efforts, between 100,000 and 240,000 people in the United States could die.6 In Texas, the virus has spread rapidly over the past two weeks and is predicted to continue spreading exponentially in the coming days and weeks.

On March 13, 2020, the President declared a national state of emergency, and the Governor of Texas declared a state of disaster.7 Six days later, the Texas Health and Human Services Executive Commissioner declared a public health disaster because the virus "poses a high risk of death to a large number of people and creates a substantial risk of public exposure because of the disease’s method of transmission and evidence that there is community spread in Texas."8 As the district court in this case acknowledged, "Texas faces it[s] worst public health emergency in over a century."

The surge of COVID-19 cases causes mounting strains on healthcare systems, including critical shortages of doctors, nurses, hospital beds, medical equipment, and personal protective equipment ("PPE").9 The executive order at issue here, GA-09, responds to this crisis. Issued by the Governor of Texas on March 22, 2020, GA-09 applies to all licensed healthcare professionals and facilities in Texas and requires that they:

postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.10

Importantly, the order "shall not apply to any procedure that, if performed in accordance with the commonly...

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