In re: Greg Abbott, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50296

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.
PER CURIAM:
On April 7, 2020, we issued a writ of mandamus directing the district
court to vacate its temporary restraining order (“TRO”) that exempted abortion
procedures from GA-09, an emergency executive order issued on March 22 by
the Governor of Texas postponing certain non-essential medical procedures for
three weeks during the escalating COVID-19 pandemic. See In re Abbott, ---
F.3d ---, 2020 WL 1685929 (5th Cir. April 7, 2020). As we explained, GA-09
sought to preserve critical medical resources and slow the spread of a pandemic
during what the district court itself recognized was Texas’s “worst public
health emergency in over a century.” Id. at *1, 4, 9. We further explained that
GA-09 “is a concededly valid public health measure that applies to all
United States Court of Appeals
Fifth Circuit
FILED
April 10, 2020

Lyle W. Cayce
Clerk

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‘surgeries and procedures,’ does not single out abortion, and . . . has an
exemption for serious medical conditions.” Id. at *10.
In our opinion, we emphasized that the district court had “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 *2. The evidence presented at this
hearing, we said, would allow the district court to make “targeted findings,
based on competent evidence, about the effects of GA-09 on abortion access.”
Id. We emphasized that “those proceedings” must “adhere to the controlling
standards, established by the Supreme Court over a century ago, for adjudging
the validity of emergency measures like [GA-09].” Id. As we stated in our
opinion, those “controlling” standards come from the Supreme Court’s decision
in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In re
Abbott, 2020 WL 1685929, at *1, 6–7. Having already painstakingly explained
those standards in our opinion, we reiterate our holding:
[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,
courts may not second-guess the wisdom or efficacy of the
measures. Id. at 28, 30.
In re Abbott, 2020 WL 1685929, at *7 (cleaned up).
We also articulated how the Jacobson framework would apply to the
Casey undue-burden analysis. Id. at *11 (discussing Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833 (1992)). We explained that this analysis “ask[s]
whether GA-09 imposes burdens on abortion that ‘beyond question’ exceed its

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benefits in combating the epidemic Texas now faces.” Id. (quoting Jacobson,
197 U.S. at 31). We explained further that this analysis would “require[]
careful parsing of the evidence,” and we noted some of the conflicting evidence
in the record. Id. But we emphasized 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 *12 (cleaned up).
The day following our mandamus, April 8, 2020, the district court did the
following: (1) it vacated its March 30 TRO (Doc. 54); (2) it cancelled the
telephonic preliminary injunction hearing previously scheduled for April 13
(Doc. 54); and (3) it ordered the parties to confer and propose a status report
before April 15 setting out the parties’ agreement on procedures and a schedule
for a new preliminary injunction hearing on a yet-unannounced date (Doc. 58).
Also on April 8, plaintiffs filed in the district court a new application for
TRO supported only by one additional declaration (Doc. 56). The next day,
April 9, the district court—without allowing defendants either to file a pleading
or to submit evidence in opposition to the TRO application—entered an order
granting plaintiffs a TRO (Doc. 63). The new TRO enjoins all defendants from
enforcing GA-09 against Plaintiffs or their agents in the following ways: (1) it
enjoins enforcement of GA-09 “as a categorical ban on all abortions provided
by Plaintiffs”; (2) it enjoins enforcement as to providing “medication abortions”;
(3) it enjoins enforcement as to providing “procedural abortion[s] to any patient
who, based on the treating physicians’ medical judgment, would be more than
18 weeks LMP [“last menstrual period”] on April 22, 2020, and likely unable
to reach an ambulatory surgical center in Texas or to obtain abortion care”;
and, finally (4) it enjoins enforcement as to providing “procedural abortion[s]
to any patient who, based on the treating physician’s medical judgment, would

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be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22,
2020.” (Doc. 63, at 14–15).
Texas officials have now filed a petition for writ of mandamus seeking
vacatur of the April 9 TRO, as well as an emergency motion for stay of the TRO
and a temporary administrative stay of the TRO.
IT IS ORDERED that the motion for temporary administrative stay of
the district court’s order of April 9, 2020 (Doc. 63) is GRANTED, until further
order of this court, to allow sufficient time to consider the mandamus petition
and emergency stay motion. This stay operates against the April 9 TRO in all
respects EXCEPT that part of the TRO applying 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” (Doc. 63, at 15). Our
stay does not operate against that part of the April 9 TRO.
*

IT IS FURTHER ORDERED that plaintiffs-respondents be directed to
file a response to the emergency stay motion no later than Saturday, April 11,
2020, at 8:00 p.m. Any reply by petitioners is due no later than Monday, April
13, 2020, at noon.
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to
file a response to the petition for writ of mandamus no later than Tuesday,
April 14, 2020, at 2:00 p.m. Any reply by petitioners is due no later than
Wednesday, April 15, 2020, at 2:00 p.m.

*
Judge Dennis dissents, in part, because he would not stay any part of the district
court’s April 9 TRO.