Opinion

In re: Gregg Abbott

954 F.3d 772

Court: Court of Appeals for the Fifth Circuit
Filed: Apr 7, 2020
Status: Published
Nature of suit: Original Proceedings
Cited by: 69 cases
Authority: More cited than 84.3%

characterizing the Jacobson rule as the “framework governing emergency exercises of state authority during a public health crisis [for] over a 100 years[,]” under which “all constitutional rights may be reasonably restricted to combat a public health emergency”

How later courts described this case

characterizing the Jacobson rule as the “framework governing emergency exercises of state authority during a public health crisis [for] over a 100 years[,]” under which “all constitutional rights may be reasonably restricted to combat a public health emergency”
faulting district court for “ignor[ing] the framework governing emergency public health measures” set forth in Inc., 568 U.S. 85, 91 (2013
upholding executive order that required health care professionals to postpone non-essential surgeries and procedures in order to preserve critical medial resources for treatment of COVID-19 patients
stating that “our nation faces a public health emergency caused by the exponential spread of COVID-19 . . . .”

Written by the judges who cited it.

The opinion

Case: 20-50264 Document: 00515374865 Page: 1 Date Filed: 04/07/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 7, 2020

No. 20-50264

Lyle W. Cayce

Clerk

In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN

PAXTON, in his official capacity as Attorney General of Texas; PHIL

WILSON, in his official capacity as Acting Executive Commissioner of the

Texas Health and Human Services Commission; STEPHEN BRINT

CARLTON, in his official capacity as Executive Director of the Texas Medical

Board; KATHERINE A. THOMAS, in her official capacity as the Executive

Director of the Texas Board of Nursing,

Petitioners

Petition for a Writ of Mandamus to

the United States District Court

for the Western District of Texas

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

To preserve critical medical resources during the escalating COVID-19

pandemic, on March 22, 2020, the Governor of Texas issued executive order

GA-09, which postpones non-essential surgeries and procedures until 11:59

p.m. on April 21, 2020. Reading GA-09 as an “outright ban” on pre-viability

abortions, on March 30 the district court issued a temporary restraining order

(“TRO”) against GA-09 as applied to abortion procedures. At the request of

Texas officials, we temporarily stayed the TRO while considering their petition

for a writ of mandamus directing vacatur of the TRO. We now grant the writ.

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The “drastic and extraordinary” remedy of mandamus is warranted for

several reasons. In re JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019)

(citation omitted).

First, the district court ignored the framework governing emergency

public health measures like GA-09. See Jacobson v. Commonwealth of

Massachusetts, 197 U.S. 11 (1905). “[U]nder the pressure of great dangers,”

constitutional rights may be reasonably restricted “as the safety of the general

public may demand.” Id. at 29. That settled rule allows the state to restrict, for

example, one’s right to peaceably assemble, to publicly worship, to travel, and

even to leave one’s home. The right to abortion is no exception. See Roe v. Wade,

410 U.S. 113, 154 (1973) (citing Jacobson); Planned Parenthood v. Casey, 505

U.S. 833, 857 (1992) (same); Gonzales v. Carhart, 550 U.S. 124, 163 (2007)

(same). 1

Second, the district court’s result was patently wrong. Instead of

applying Jacobson, the court wrongly declared GA-09 an “outright ban” on pre-

viability abortions and exempted all abortion procedures from its scope. The

court also failed to apply Casey’s undue-burden analysis and thus failed to

balance GA-09’s temporary burdens on abortion against its benefits in

thwarting a public health crisis.

Third, the district court usurped the state’s authority to craft emergency

health measures. Instead, the court substituted its own view of the efficacy of

applying GA-09 to abortion. But “[i]t is no part of the function of a court” to

1 Our dissenting colleague suggests our decision “follows not because of the law or

facts, but because of the subject matter of this case.” Dissent at 3. That is wrong. As explained

below, infra III.A.1, Jacobson governs a state’s emergency restriction of any individual right,

not only the right to abortion. The same analysis would apply, for example, to an emergency

restriction on gathering in large groups for public worship during an epidemic. See Prince v.

Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not

include liberty to expose the community . . . to communicable disease.”).

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decide which measures are “likely to be the most effective for the protection of

the public against disease.” Jacobson, 197 U.S. at 30.

In sum, given the extraordinary nature of these errors, the escalating

spread of COVID-19, and the state’s critical interest in protecting the public

health, we find the requirements for issuing the writ satisfied. See Cheney v.

U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380–81 (2004).

We emphasize the limits of our decision, which is based only on the

record before us. The district court has scheduled a telephonic preliminary

injunction hearing for April 13, 2020, when all parties will presumably have

the chance to present evidence on the validity of applying GA-09 in specific

circumstances. The district court can then make targeted findings, based on

competent evidence, about the effects of GA-09 on abortion access. Our

overriding consideration here, however, is that those proceedings adhere to the

controlling standards, established by the Supreme Court over a century ago,

for adjudging the validity of emergency measures like the one before us.

Accordingly, we grant a writ of mandamus directing the district court to

vacate its TRO of March 30, 2020.

As all are painfully aware, our nation faces a public health emergency

caused by the exponential spread of COVID-19, the respiratory disease caused

by the novel coronavirus SARS-CoV-2. As of April 6, 2020, over 330,000 cases

have been confirmed across the United States, with over 8,900 dead. 2 The virus

is “spreading very easily and sustainably” 3 throughout the country, with cases

2 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):

Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html (last visited April 6, 2020).

3 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):

How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/how-covid-spreads.html (last visited April 6, 2020).

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confirmed in all fifty states, the District of Columbia, and several territories. 4

Over the past two weeks, confirmed cases in the United States have increased

by over 2,000%. 5 Federal projections estimate that, even with mitigation

efforts, between 100,000 and 240,000 people in the United States could die. 6 In

Texas, the virus has spread rapidly over the past two weeks and is predicted

to continue spreading exponentially in the coming days and weeks.

On March 13, 2020, the President declared a national state of emergency,

and the Governor of Texas declared a state of disaster. 7 Six days later, the

Texas Health and Human Services Executive Commissioner declared a public

health disaster because the virus “poses a high risk of death to a large number

of people and creates a substantial risk of public exposure because of the

disease’s method of transmission and evidence that there is community spread

in Texas.” 8 As the district court in this case acknowledged, “Texas faces it[s]

worst public health emergency in over a century.”

The surge of COVID-19 cases causes mounting strains on healthcare

systems, including critical shortages of doctors, nurses, hospital beds, medical

4Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):

Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html (last visited April 6, 2020).

5Id. On March 19, 2020, the CDC reports that there were 15,219 diagnosed cases in

the United States, excluding cases among persons repatriated to the United States from

China and Japan. Id. By April 6, 2020, the number of cases reported has risen to 330,891. Id.

6 Rick Noack, et al., White House task force projects 100,000 to 240,000 deaths in U.S.,

even with mitigation efforts, WASHINGTON POST (Mar. 31, 2020),

https://www.washingtonpost.com/world/2020/03/31/coronavirus-latest-news/.

See Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Tex. Proc.

of Mar. 13, 2020, https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_

proclamation_IMAGE_03-13-2020.pdf.

Tex. Proc. of Mar. 19, 2020, https://gov.texas.gov/uploads/files/press/

DECLARATION_of_public_health_disaster_Dr_Hellerstedt_03-19-2020.pdf.

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equipment, and personal protective equipment (“PPE”). 9 The executive order

at issue here, GA-09, responds to this crisis. Issued by the Governor of Texas

on March 22, 2020, GA-09 applies to all licensed healthcare professionals and

facilities in Texas and requires that they:

postpone all surgeries and procedures that are not immediately

medically necessary to correct a serious medical condition of, or to

preserve the life of, a patient who without immediate performance

of the surgery or procedure would be at risk for serious adverse

medical consequences or death, as determined by the patient’s

physician. 10

Importantly, the order “shall not apply to any procedure that, if performed in

accordance with the commonly accepted standard of clinical practice, would

not deplete the hospital capacity or the personal protective equipment needed

to cope with the COVID-19 disaster.” 11 Failure to comply with the order may

result in administrative or criminal penalties, including “a fine not to exceed

$1,000, confinement in jail for a term not to exceed 180 days, or both.” 12 The

order automatically expires after 11:59 p.m. on April 21, 2020, but can be

modified, amended, or superseded.

9 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19):

Strategies for Optimizing the Supply of Facemasks, https://www.cdc.gov/coronavirus/2019-

ncov/hcp/ppe-strategy/face-masks.html (last visited April 6, 2020); Megan L. Ranney, M.D.,

M.P.H., et al., Critical Supply Sources—The Need for Ventilators and Personal Protective

Equipment during the COVID-19 Pandemic, NEW ENG. J. OF MED. (Mar. 25, 2020),

https://www.nejm.org/doi/full/10.1056/NEJMp2006141?query=featured_coronavirus.

10 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files

/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.

11 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files

/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.

12 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files

/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf (citing Tex. Gov’t

Code § 418.173); see also 25 Tex. Admin. Code § 139.32(b)(6); 25 Tex. Admin. Code

§ 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); 22 Tex. Admin. Code § 185.57(c) (Mar.

23, 2020); Tex. Occ. Code § 164.051(a)(2); Tex. Occ. Code § 164.051(a)(6); Tex. Occ. Code

§ 301.452(b)(3); Tex. Occ. Code § 301.452(b)(10).

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On March 25, 2020, various Texas abortion providers 13 (“Respondents”)

filed suit in federal district court against multiple Texas officials, including the

Governor, Attorney General, three state health officials, and nine District

Attorneys (“Petitioners” 14). Respondents brought substantive due process and

equal protection claims and sought to enjoin enforcement of GA-09, as well as

the Texas Medical Board’s Emergency Rule implementing the order. See 22

Tex. Admin. Code § 187.57(c) (Mar. 23, 2020). Simultaneously, Respondents

sought a temporary restraining order (“TRO”) or a preliminary injunction,

based only on their due process claim. Following a March 26 conference call,

the district court gave Petitioners until March 30 at 9:00 a.m. to respond, which

they did. Later that same day, the district court entered a TRO.

In the TRO, the district court agreed that “Texas faces it[s] worst public

health emergency in over a century,” and also that “[GA-09], as written, does

not exceed the governor’s power to deal with the emergency.” Nonetheless, the

court interpreted GA-09 as “effectively banning all abortions before viability.”

The court reasoned that, because “no interest” can justify such an “outright

ban” on pre-viability abortions, GA-09 contravenes Supreme Court and Fifth

Circuit precedent. The TRO therefore prohibits all defendants, including

13 Plaintiffs are Texas abortion providers Planned Parenthood Center for Choice,

Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South

Texas Surgical Center, Whole Woman’s Health, Whole Woman’s Health Alliance,

Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a

Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace,

M.D. Plaintiffs purport to sue on behalf of themselves, their staff, physicians, nurses, and

patients.

14 Petitioners here do not include the defendant District Attorneys.

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Petitioners, from enforcing GA-09 and the emergency rule “as applied to

medication abortions and procedural 15 abortions.” App. 267–68, 270. 16

On the evening of March 30, 2020, Petitioners filed a petition for writ of

mandamus in our court, requesting that we direct the district court to vacate

the TRO. Petitioners simultaneously sought an emergency stay of the TRO, as

well as a temporary administrative stay, while the court considered their

request. On March 31, 2020, we temporarily stayed the TRO and set an

expedited briefing schedule.

II.

Federal courts “may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a). That includes the writ of mandamus sought by

Petitioners. See Cheney, 542 U.S. at 380; In re Gee, 941 F.3d 153, 157 (5th Cir.

2019). Mandamus is proper only in “exceptional circumstances amounting to a

judicial usurpation of power or a clear abuse of discretion.” In re Volkswagen

of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc) (quoting Cheney, 542

U.S. at 380). Before prescribing this strong medicine, “we ask (1) whether the

15 “Procedural” abortions, the term used by Respondents and the district court, refers

to what are also called “surgical” abortions. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 924

(2000) (citing M. Paul et al., A Clinician’s Guide to Medical and Surgical Abortion (1999));

Gonzales v. Carhart, 550 U.S. 124, 175 (2007) (Ginsburg, J., dissenting) (referring to “surgical

abortions”) (quoting Carhart v. Ashcroft, 331 F.Supp.2d 805, 1011 (D. Neb. 2004), aff’d, 413

F.3d 791 (8th Cir. 2005)); Planned Parenthood v. Casey, 505 U.S. 833, 969 (1992) (Rehnquist,

J., concurring in the judgment in part and dissenting in part) (referring to “any other surgical

procedure except abortion”) (quoting Webster v. Reproductive Health Servs., 492 U.S. 490,

517 (1989) (plurality opinion)); see also, e.g., Br. for Petitioners at 33 n.64, Planned

Parenthood v. Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006398 (referring

to “induced abortion” as a “surgical procedure[ ]”).

16The TRO is scheduled to expire at 3:00 p.m. on April 13, 2020. The district court has

scheduled a telephonic hearing on Plaintiffs’ request for a preliminary injunction for 9:30

a.m. that same day. App. 271. Our references to “App.” throughout this opinion are to the

appendix to the mandamus petition. See ECF 3 (5th Cir. No. 20-50264).

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petitioner has demonstrated that it has no other adequate means to attain the

relief it desires; (2) whether the petitioner’s right to issuance of the writ is clear

and indisputable; and (3) whether we, in the exercise of our discretion, are

satisfied that the writ is appropriate under the circumstances.” In re Itron,

Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting Cheney, 542 U.S. at 380–81)

(cleaned up). “These hurdles, however demanding, are not insuperable. They

simply reserve the writ for really extraordinary causes.” Gee, 941 F.3d at 158

(cleaned up). In such a case, mandamus provides a “useful ‘safety valve[]’ for

promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 111 (2009) (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511

U.S. 863, 883 (1994)).

III.

Petitioners claim they satisfy all three mandamus prongs and are

therefore entitled to the writ. As to the first prong, they argue mandamus is

proper for obtaining relief, even from a non-appealable TRO, when the stakes

are “extraordinarily time-sensitive.” ECF 2 at 30–31. As to the second prong,

Petitioners contend the district court “clearly and indisputably erred” by ruling

that abortion is an absolute right which cannot be curtailed even in the midst

of a public health emergency. 17 Id. at 11–24. Finally, as to the third prong,

17 Alternatively under prong two, Petitioners assert that (1) no justiciable controversy

exists as to the Governor and Attorney General because they lack authority to enforce GA-

09, and (2) Respondents lack third-party standing to sue on behalf of their patients. We

decline to grant relief on these grounds. First, quite apart from the Governor and Attorney

General, a justiciable controversy exists as to the Petitioner health officials, who may enforce

the order’s administrative penalties. See, e.g., 22 Tex. Admin. Code § 187.57(b). On remand,

however, the district court should consider whether the Eleventh Amendment requires

dismissal of the Governor or Attorney General because they lack any “connection” to

enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908). City of Austin v. Paxton, 943

F.3d 993, 999 (5th Cir. 2019); see also Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir.

2014). Second, Respondents have standing to sue on their own behalf because GA-09 “directly

operates” against them. Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976)

(cleaned up). We therefore need not consider at this time whether Respondents may sue on

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Petitioners argue mandamus is proper because “[t]he longer [Respondents] are

allowed to perform elective procedures—consuming scarce PPE, increasing

hospitalizations, and potentially spreading the virus to countless individuals—

the longer it will take to flatten the curve in Texas, meaning more illnesses,

more hospitalizations, and more deaths.” Id. at 31. We address each prong in

turn, beginning with the second.

We first address the second mandamus prong—whether entitlement to

the writ is “clear and indisputable”—because it is central to our analysis. See,

e.g., Volkswagen, 545 F.3d at 311 (beginning with second prong because it

“captures the essence of the disputed issue”). “In recognition of the

extraordinary nature of the writ, we require more than showing that the court

misinterpreted the law, misapplied it to the facts, or otherwise engaged in an

abuse of discretion.” In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 (5th

Cir. 2015). Rather, a petitioner has a clear and indisputable right to the writ

only when there has been a “usurpation of judicial power” or “a clear abuse of

discretion that produces patently erroneous results.” JPMorgan Chase, 916

F.3d at 500 (cleaned up); see also Gee, 941 F.3d at 159; Lloyd’s Register, 780

F.3d at 290. Usurpation of judicial power occurs when courts act beyond their

jurisdiction or fail to act when they have a duty to do so. Will v. United States,

389 U.S. 90, 95 (1967). But it also occurs in other situations. The Supreme

Court has sanctioned use of the writ “to restrain a lower court when its actions

would threaten the separation of powers by ‘embarrassing the executive arm

of the Government,’ or result in the ‘intrusion by the federal judiciary on a

delicate area of federal-state relations.’” Cheney, 542 U.S. at 381 (citing Will,

behalf of their patients. We note that the Supreme Court recently granted a certiorari

petition raising this third-party standing issue. See Russo v. June Med. Servs., No. 18-1460.

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389 U.S. at 95; Ex parte Peru, 318 U.S. 578, 588 (1943); Maryland v. Soper (No.

1), 270 U.S. 9 (1926)) (cleaned up).

We conclude Petitioners have shown “a clear and indisputable right to

issuance of the writ.” Volkswagen, 545 F.3d at 311. In issuing the TRO, the

district court clearly abused its discretion by failing to apply (or even

acknowledge) the framework governing emergency exercises of state authority

during a public health crisis, established over 100 years ago in Jacobson v.

Commonwealth of Massachusetts, 197 U.S. 11 (1905). This extraordinary error

allowed the district court to create a blanket exception for a common medical

procedure—abortion—that falls squarely within Texas’s generally-applicable

emergency measure issued in response to the COVID-19 pandemic. This was a

patently erroneous result. In addition, the court usurped the power of the

governing state authority when it passed judgment on the wisdom and efficacy

of that emergency measure, something squarely foreclosed by Jacobson. 18

In Jacobson, the Supreme Court considered a claim that the state’s

compulsory vaccination law—enacted amidst a growing smallpox epidemic in

Cambridge, Massachusetts—violated the defendant’s Fourteenth Amendment

right “to care for his own body and health in such way as to him seems best.”

18 This case differs from Preterm-Cleveland v. Atty. Gen. of Ohio, No. 20-3365, 2020

WL 1673310 (6th Cir. Apr. 6, 2020), which declined to review a TRO against Ohio’s non-

essential-surgeries order. Ohio appealed on the basis that the TRO “threaten[ed] to inflict

irretrievable harms.” Id. at *1. Observing the TRO was “narrowly tailored” and did not permit

“blanket” provision of abortions, the majority concluded that the TRO would not inflict

irreparable harms and thus that it lacked jurisdiction over the appeal. Id. at *1–2. By

contrast, here Petitioners seek not appeal but mandamus, a drastic remedy that we

nonetheless find appropriate. Moreover, the TRO here is not “narrowly tailored” but exempts

all abortions from GA-09. The TRO’s broad sweep also distinguishes this case from recent

district court decisions in Alabama and Oklahoma. See Robinson v. Marshall, No. 2:19cv365-

MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020); South Wind Women’s Center v. Stitt, No.

CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020).

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Id. at 26. The Court rejected this claim. Famously, it explained that the “liberty

secured by the Constitution . . . does not import an absolute right in each

person to be, at all times and in all circumstances, wholly freed from restraint.”

Id. Rather, “a community has the right to protect itself against an epidemic of

disease which threatens the safety of its members.” Id. at 27. In describing a

state’s police power to combat an epidemic, the Court explained:

[I]n every well-ordered society charged with the duty of conserving

the safety of its members the rights of the individual in respect of

his liberty may at times, under the pressure of great dangers, be

subjected to such restraint, to be enforced by reasonable

regulations, as the safety of the general public may demand.

Id. at 29.

The Supreme Court has repeatedly acknowledged this principle. See,

e.g., Lawton v. Steele, 152 U.S. 133, 136 (1894) (recognizing that “the state may

interfere wherever the public interests demand it” and “discretion is

necessarily vested in the legislature to determine, not only what the interests

of the public require, but what measures are necessary for the protection of

such interests”); Compagnie Francaise de Navigation a Vapeur v. La. State Bd.

of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana’s right to quarantine

passengers aboard vessel—even where all were healthy—against a Fourteenth

Amendment challenge); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944)

(noting that “[t]he right to practice religion freely does not include liberty to

expose the community . . . to communicable disease”); United States v. Caltex,

344 U.S. 149, 154 (1952) (acknowledging that “in times of imminent peril—

such as when fire threatened a whole community—the sovereign could, with

immunity, destroy the property of a few that the property of many and the lives

of many more could be saved”).

To be sure, individual rights secured by the Constitution do not

disappear during a public health crisis, but the Court plainly stated that rights

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could be reasonably restricted during those times. Jacobson, 197 U.S. at 29.

Importantly, the Court narrowly described the scope of judicial authority to

review rights-claims under these circumstances: review is “only” available

if a statute purporting to have been enacted to protect the public

health, the public morals, or the public safety, has no real or

substantial relation to those objects, or is, beyond all question, a

plain, palpable invasion of rights secured by the fundamental law.

Id. at 31 (emphasis added). Elsewhere, the Court similarly described this

review as asking whether power had been exercised in an “arbitrary,

unreasonable manner,” id. at 28, or through “arbitrary and oppressive”

regulations, id. at 38. Accord Lawton, 152 U.S. at 137 (“To justify the state in

thus interposing its [police power] in behalf of the public, it must appear

[1] that the interests of the public generally . . . require such interference; and

[2] that the means are reasonably necessary for the accomplishment of the

purpose, and not unduly oppressive upon individuals.”).

Jacobson did emphasize, however, that even an emergency mandate

must include a medical exception for “[e]xtreme cases.” 197 U.S. at 38. Thus,

the vaccination mandate could not have applied to an adult where vaccination

would exacerbate a “particular condition of his health or body.” Id. at 38–39.

In such a case, the judiciary would be “competent to interfere and protect the

health and life of the individual concerned.” Id. at 39. At the same time,

Jacobson disclaimed any judicial power to second-guess the state’s policy

choices in crafting emergency public health measures: “Smallpox being

prevalent and increasing at Cambridge, the court would usurp the functions of

another branch of government if it adjudged, as matter of law, that the mode

adopted under the sanction of the state, to protect the people at large was

arbitrary, and not justified by the necessities of the case.” Jacobson, 197 U.S.

at 28 (emphasis added); see also id. at 30 (“It is no part of the function of a court

or a jury to determine which one of two modes was likely to be the most

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effective for the protection of the public against disease. That was for the

legislative department to determine in the light of all the information it had or

could obtain.”).

The bottom line is this: when faced with a society-threatening epidemic,

a state may implement emergency measures that curtail constitutional rights

so long as the measures have at least some “real or substantial relation” to the

public health crisis and are not “beyond all question, a plain, palpable invasion

of rights secured by the fundamental law.” Id. at 31. Courts may ask whether

the state’s emergency measures lack basic exceptions for “extreme cases,” and

whether the measures are pretextual—that is, arbitrary or oppressive. Id. at

38. At the same time, however, courts may not second-guess the wisdom or

efficacy of the measures. Id. at 28, 30.

Jacobson remains good law. See, e.g., Kansas v. Hendricks, 521 U.S. 346,

356–57 (1997) (recognizing Fourteenth Amendment liberties may be

restrained even in civil contexts, relying on Jacobson); Hickox v. Christie, 205

F. Supp. 3d 579 (D.N.J. 2016) (rejecting, based on Jacobson, a § 1983 lawsuit

concerning 80-hour quarantine of nurse returning from treating Ebola patients

in Sierra Leone). And, most importantly for the present case, nothing in the

Supreme Court’s abortion cases suggests that abortion rights are somehow

exempt from the Jacobson framework. Quite the contrary, the Court has

consistently cited Jacobson in its abortion decisions.

In Roe v. Wade, the Supreme Court announced for the first time that an

expectant mother has a constitutional right to an abortion. 410 U.S. 113.

Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v.

Casey, the Court reaffirmed this right and established the current standard for

abortion restrictions. 505 U.S. 833. Casey recognized that after a fetus is viable,

states may ban abortion outright, except for pregnancies that endanger the

mother’s life or health. Id. at 846 (plurality opinion). After Casey, there remain

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two constitutional restrictions on states’ ability to regulate abortion. First,

states “may not prohibit any woman from making the ultimate decision to

terminate” a pre-viability pregnancy. Gonzales v. Carhart, 550 U.S. 124, 146

(2007) (quoting Casey, 505 U.S. at 879 (plurality opinion)). In other words,

states may not impose outright bans on pre-viability abortions. See Jackson

Women’s Health Org. v. Dobbs [Jackson II], 945 F.3d 265, 273 (5th Cir. 2019).

Second, states “may not impose” on the right “an undue burden, which exists

if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path

of a woman seeking an abortion before the fetus attains viability.’” Id. (quoting

Casey, 505 U.S. at 878 (plurality opinion)); see also Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (explaining “[t]he rule announced in

Casey . . . requires that courts consider the burdens a law imposes of abortion

access together with the benefits those laws confer”).

None of these cases, so far as we are aware, involved a state’s

postponement of some abortion procedures in response to a public health

crisis—the context in which Jacobson plainly applies. But three of the Court’s

principal abortion cases—Roe, Casey, and Carhart—cite Jacobson with

approval and without suggesting that abortion rights are somehow exempt

from its framework. In Roe, the Supreme Court cited Jacobson as one example

of the Court’s refusal to recognize an “unlimited right to do with one’s body as

one pleases.” 410 U.S. at 154 (citing Jacobson, 197 U.S. 11). The Court

reasoned that the right to abortion “is not unqualified and must be considered

against important state interests in regulation.” Id. Similarly, in Casey, the

plurality cited Jacobson as one example of the Court’s balance between

“personal autonomy and bodily integrity” on one hand and “governmental

power to mandate medical treatment or to bar its rejection” on the other. 505

U.S. at 857 (citing Jacobson, 197 U.S. at 24–30). Finally, in the course of

upholding a federal restriction on certain abortion methods in Carhart, the

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Court cited Jacobson to show it had “given state and federal legislatures wide

discretion to pass legislation in areas where there is medical and scientific

uncertainty.” 550 U.S. at 163 (citing Jacobson, 197 U.S. at 30–31).

By all accounts, then, the effect on abortion arising from a state’s

emergency response to a public health crisis must be analyzed under the

standards in Jacobson. Respondents all but concede this point, offering no

discernible argument that Jacobson has been superseded or is otherwise

inapplicable during a public health crisis such as the COVID-19 pandemic. See

ECF 53 at 16. The district court, however, failed to recognize Jacobson’s long-

established framework. While acknowledging that “Texas faces it[s] worst

public health emergency in over a century,” the court treated that fact as

entirely irrelevant. Indeed, the court explicitly refused to consider how the

Supreme Court’s abortion cases apply to generally-applicable emergency

health measures, saying it would “not speculate on whether the Supreme Court

included a silent ‘except-in-a-national-emergency clause’ in its previous

writings on the issue.” App. 268.

That analysis is backwards: Jacobson instructs that all constitutional

rights may be reasonably restricted to combat a public health emergency. We

could avoid applying Jacobson here only if the Supreme Court had specifically

exempted abortion rights from its general rule. It has never done so. To the

contrary, the Court has repeatedly cited Jacobson in abortion cases without

once suggesting that abortion is the only right exempt from limitation during

a public health emergency. In sum, by refusing even to consider Jacobson—the

controlling Supreme Court precedent that squarely governs judicial review of

rights-challenges to emergency public health measures—the district court

“clearly and indisputably erred.” JPMorgan Chase, 916 F.3d at 500 (quoting In

re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000)) (emphasis

omitted). Under our precedents, that alone is enough to satisfy the second

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mandamus prong. See Itron, 883 F.3d at 568 (petitioners had a “clear and

indisputable right to the writ” because failure to apply the proper legal

standard was “obvious” error); see also In re Ford Motor Co., 591 F.3d 406, 415

(5th Cir. 2009) (granting writ where “[i]t was patently erroneous for the

[district] court to ignore . . . binding precedent”).

Moreover, the district court’s refusal to acknowledge or apply Jacobson’s

legal framework produced a “patently erroneous” result. JPMorgan Chase, 916

F.3d at 500 (quoting Lloyd’s Register, 780 F.3d at 290). Under Jacobson, the

district court was empowered to decide only whether GA-09 lacks a “real or

substantial relation” to the public health crisis or whether it is “beyond all

question, a plain, palpable invasion” of the right to abortion. 197 U.S. at 31.

On the record before us, the answer to both questions is no, but the district

court did not even ask them. Instead, the court bluntly declared GA-09 an

“outright ban” on pre-viability abortions and exempted all abortion procedures,

in whatever circumstances, from the scope of this emergency public health

measure. That was a patently erroneous result. 19

The first Jacobson inquiry asks whether GA-09 lacks a “real or

substantial relation” to the crisis Texas faces. Id. The answer is obvious: the

district court itself conceded that GA-09 is a valid emergency response to the

COVID-19 pandemic. The court recognized, as does everyone involved, that

19 Although not necessary to our decision, we note that the district court purported to

enjoin GA-09 as to all abortion providers in Texas. But Respondents are only a subset of

Texas abortion providers and did not sue as class representatives. The district court lacked

authority to enjoin enforcement of GA-09 as to anyone other than the named plaintiffs. See

Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither declaratory nor

injunctive relief can directly interfere with enforcement of contested statutes or ordinances

except with respect to the particular federal plaintiffs”). The district court should be mindful

of this limitation on federal jurisdiction at the preliminary injunction stage.

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Texas faces a public health crisis of unprecedented magnitude and that GA-09

“does not exceed the governor’s power to deal with the emergency.” App. 268.

Our own review of the record easily confirms that conclusion. GA-09 is

supported by findings that (1) “a shortage of hospital capacity or personal

protective equipment would hinder efforts to cope with the COVID-19

disaster,” and (2) “hospital capacity and personal protective equipment are

being depleted by surgeries and procedures that are not medically necessary

to correct a serious medical condition or to preserve the life of a patient.” App.

34. The order also references, and reinforces, the Governor’s prior executive

order, GA-08, “aimed at slowing the spread of COVID-19.” Id. 20 Accordingly,

GA-09 instructs licensed health care professionals and facilities to postpone

non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. App.

35. For their part, Respondents appear to concede the validity of GA-09 as a

general matter: they recognize that Texas faces an “unprecedented public

health crisis” and that “[g]overnment officials and medical professionals expect

a surge of infections that will test the limits of a health care system already

facing a shortage of PPE.” ECF 53 at 3.

To be sure, GA-09 is a drastic measure, but that aligns it with the

numerous drastic measures Petitioners and other states have been forced to

take in response to the coronavirus pandemic. Faced with exponential growth

of COVID-19 cases, states have closed schools, sealed off nursing homes,

banned social gatherings, quarantined travelers, prohibited churches from

holding public worship services, and locked down entire cities. These measures

would be constitutionally intolerable in ordinary times, but are recognized as

20 Tex. Exec. Order No. GA-08 (Mar. 19, 2020), https://gov.texas.gov/uploads

/files/press/EO-GA_08_COVID-19_preparedness_and_mitigation_FINAL _03-19-2020_1.pdf.

The dissent is therefore mistaken that GA-09 “was not adopted to serve th[e] interest” in

preventing the spread of COVID-19. Dissent at 12.

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appropriate and even necessary responses to the present crisis. So, too, GA-09.

As the state’s infectious disease expert points out, “[g]iven the risk of

transmission in health care settings” there is “a sound basis for limiting all

surgeries except those that are immediately medically necessary so as to

prevent the spread of COVID 19.” App. 242. In sum, it cannot be maintained

on the record before us that GA-09 bears “no real or substantial relation” to the

state’s goal of protecting public health in the face of the COVID-19 pandemic.

Jacobson, 197 U.S. at 31.

The second Jacobson inquiry asks whether GA-09 is “beyond question, in

palpable conflict with the Constitution.” Id. (emphasis added). The district

court, while not framing the question in those terms, evidently thought the

answer was yes. But the court reached that conclusion only by grossly

misreading GA-09 as an “outright ban” on all pre-viability abortions. Properly

understood, GA-09 merely postpones certain non-essential abortions, an

emergency measure that does not plainly violate Casey in the context of an

escalating public health crisis. As we explain below, however, Respondents will

have the opportunity to show at the upcoming preliminary injunction hearing

that certain applications of GA-09 may constitute an undue burden under

Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its

benefits in those situations. See Hellerstedt, 136 S. Ct. at 2309.

To begin with, the district court’s central (and only) premise—that GA-

09 is an “outright ban” on all pre-viability abortions—is plainly wrong. The

court reasoned that GA-09 was by definition invalid in light of our decisions in

Jackson II and Jackson III, which recognize states cannot ban pre-viability

abortions. App. 267–68. But GA-09 only delays certain non-essential abortions.

GA-09 thus differs from the regulations in Jackson II and III in three key

respects. First, GA-09 expires on April 21, 2020, three weeks after its effective

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date. Tex. Gov’t Code Ann. § 418.012. Second, GA-09 includes an emergency

exception for the mother’s life and health, based on the determination of the

administering physician. App. 30; App. 35. Third, GA-09 contains a separate

exception for “any procedure” that, if performed under normal clinical

standards, “would not deplete the hospital capacity or the personal protective

equipment needed to cope with the COVID-19 disaster.” App. 35. These

characteristics, which the district court failed to mention, 21 place GA-09 in

stark contrast with the restrictions in Jackson II and III.

Jackson II invalidated Mississippi’s ban on abortions after fifteen weeks,

with narrow exceptions for “medical emergenc[ies]” and “severe fetal

abnormalit[ies].” 945 F.3d at 269 (citations omitted). The state “conceded that

it had identified no medical evidence that a fetus would be viable at 15 weeks.”

Id. at 270. We invalidated the law as “a prohibition on pre-viability abortion.”

Id. at 272–73. Mississippi also enacted Senate Bill 2116, which criminalized

abortion “after a ‘fetal heartbeat has been detected,’” Jackson Women's Health

Org. v. Dobbs [Jackson III], 951 F.3d 246, 248 (5th Cir. 2020) (citation omitted),

something that “can occur anywhere between six and twelve weeks.” Id. The

only exceptions were for “death of, or serious risk of ‘substantial and

irreversible’ bodily injury to” the mother. Id. (citation omitted). We invalidated

the law in a one-page per curiam opinion relying principally on Jackson II. Id.

Mississippi’s now-invalid laws are quite different from GA-09. First, both

were permanent, whereas GA-09 expires in just a few weeks. 22 The expiration

21 The district court’s only allusion to the scope of GA-09 was its statement that the

order “either bans all non-emergency abortions in Texas or bans all non-emergency abortions

in Texas starting at 10 weeks of pregnancy.” App. 267–68 (emphasis added). But the district

court did not mention GA-09’s expiration date, nor cite, quote, or discuss GA-09’s exceptions.

22 Respondents imply that GA-09 is effectively indefinite in duration. For example,

they claim that “[f]or many women, the denial of access to abortion will be permanent . . .

given the uncertain duration of the emergency.” But the district court did not temporarily

restrain some indefinite regulation; it restrained GA-09, which by all accounts expires on

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date makes GA-09 a delay, not a ban, and also shows GA-09 is reasonably

tailored to the present crisis. “The Supreme Court has repeatedly upheld a

wide variety of abortion regulations that entail some delay in the abortion but

that serve permissible Government purposes,” even those—such as parental

consent laws—that “in practice can occasion real-world delays of several

weeks.” Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (mem.)

(Kavanaugh, J., dissenting). Second, Mississippi’s laws contained narrower

medical exceptions than GA-09. The fifteen-week ban exempted only “medical

emergenc[ies]” and “severe fetal abnormalit[ies].” Jackson II, 945 F.3d at 269.

The fetal-heartbeat law exempted only abortions that would prevent the

mother’s death or “substantial and irreversible” bodily injury. Jackson III, 951

F.3d at 248. GA-09, by contrast, contains a broader exception: it allows

procedures that are “immediately medically necessary to correct a serious

medical condition of, or to preserve the life of, a patient who without immediate

performance of the surgery or procedure would be at risk for serious adverse

medical consequences or death.” App. 35. It also separately exempts

procedures that, if performed under accepted clinical standards, would not

deplete needed medical resources. Id.

GA-09 also vests far more discretion in physicians to determine whether

the life-or-health exception is met. The fifteen-week ban in Jackson II required

a “good faith clinical judgment” of a medical emergency, Miss. Code Ann. § 41-

41-191(3)(j), and the physician’s “reasonable medical judgment” of a qualifying

fetal abnormality, id. § 41-41-191(3)(h). The fetal-heartbeat law required the

physician to “declare in writing, under penalty of perjury,” that the abortion

April 21, 2020. App. 35. If anything, Respondents’ concern about the indefinite duration “of

the emergency” serves to strengthen Petitioners’ position that “extraordinary measures”

must be taken now to mitigate the “‘exponential increase’ in COVID-19 cases . . . expected

over the next few days and weeks.” ECF 2 at 6.

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met the exception, id. § 41-41-34.1(2)(b)(ii). Here, GA-09 merely states that the

health exception attaches “as determined by the patient’s physician.” App. 35.

There are no statutory requirements confining the physician’s judgment, and

the physician need not report his determination to the state.

Properly understood, then, GA-09 is a temporary postponement of all

non-essential medical procedures, including abortion, subject to facially broad

exceptions. Because that does not constitute anything like an “outright ban”

on pre-viability abortion, GA-09 “cannot be affirmed to be, beyond question, in

palpable conflict with the Constitution.” Jacobson, 197 U.S. at 31 (emphasis

added). As already discussed, the Supreme Court’s abortion cases have

repeatedly cited Jacobson to demarcate the limits states may place on abortion.

See Roe, 410 U.S. at 154; Casey, 505 U.S. at 857; Carhart, 550 U.S. at 163. GA-

09 is, without question, one such limit. The order is a concededly valid public

health measure that applies to “all surgeries and procedures,” App. 35, does

not single out abortion, and merely has the effect of delaying certain non-

essential abortions. Moreover, the order has an exemption for serious medical

conditions, comporting with Jacobson’s requirement that health measures

“protect the health and life” of susceptible individuals. Jacobson, 197 U.S. at

39. Indeed, the exemption in GA-09 goes well beyond the exceptions for

“[e]xtreme cases” Jacobson discussed. Id. In sum, Jacobson offers no basis for

the district court’s conclusion that abortion rights merit an across-the-board

exemption from an measure like GA-09. To find otherwise “would practically

strip the [executive] department of its function to care for the public health and

the public safety when endangered by epidemics of disease.” Id. at 37.

Moreover, due to its mistaken view that GA-09 “bans” pre-viability

abortions, the district court failed to analyze GA-09 under Casey’s undue-

burden test. App. 268. This was error. Under Casey, courts must ask whether

an abortion restriction is “undue,” which requires “consider[ing] the burdens a

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law imposes on abortion access together with the benefits those laws confer.”

Hellerstedt, 136 S. Ct. at 2310, 2309–10 (discussing Casey, 505 U.S. at 887–

98). The district court was required to do this analysis—that is, it should have

asked whether GA-09 imposes burdens on abortion that “beyond question”

exceed its benefits in combating the epidemic Texas now faces. Jacobson, 197

U.S. at 31. But that analysis would have required careful parsing of the

evidence. See Hellerstedt, 136 S. Ct. at 2310 (Casey “place[s] considerable

weight upon evidence . . . presented in judicial proceedings”). Any

consideration of the evidence, however, is entirely absent from the district

court’s order.

For example, the district court did not consider whether different

methods of abortion may consume PPE differently. Our own review of the

record, at this preliminary stage, reveals considerable evidence that surgical

abortions consume PPE. 23 By contrast, the record is unclear how PPE is

consumed in medication abortions. 24 Nor did the district court consider

23 For instance, Respondents’ complaint states that clinicians use “gloves, a surgical

mask, and protective eyewear” for surgical abortions. See Complaint at ¶ 54 (App. 17). Their

declarations similarly attest that surgical abortions consume sterile and non-sterile gloves,

masks, gowns, and shoe covers. See Southwestern Declaration ¶ 19, App. 86; Fort Worth and

McAllen Declaration ¶ 10, App. 91–92; PPGTSHS Declaration, ¶ 12, App. 117; Austin

Women’s Declaration ¶ 11, App. 110. Second-trimester abortions require more extensive

PPE, including face shields. See, e.g., Southwestern Declaration ¶ 19, App. 86; Austin

Women’s Declaration ¶ 11, App. 110. After a surgical abortion, a provider examines the fetal

tissue in a pathology laboratory, which requires a gown, face shield or goggles, shoe covers,

and gloves. See Fort Worth and McAllen Declaration ¶ 12, App. 092; WWHA Austin

Declaration ¶ 15, App. 100.

24Respondents assert PPE is not used in “providing the pills” for medication abortions,

ECF 53 at 31, whereas Petitioners counter that, for medication abortions, Texas requires a

physical examination, ultrasound, and follow-up visits—all of which consume PPE. ECF 67

at 7–8; ECF 2 at 17–18. See also Tex. Health & Safety Code § 171.063(c) (requiring physician

to examine pregnant woman before prescribing “an abortion-inducing drug”); Tex. Health &

Safety Code § 171.012(a)(4) (requiring patient receive ultrasound during initial examination);

Tex. Health & Safety Code § 171.063(e)–(f) (requiring follow-up appointment to ensure

abortion complete); 25 Tex. Admin. Code 139.53(b)(4) (same). Petitioners also point out that

some number of medication abortions result in incomplete abortions that require

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whether Respondents could prove that GA-09 infringes abortion rights in

specific contexts. For example, in their stay opposition, Respondents argue that

GA-09 cannot apply to “patients whose pregnancies will, before the expiration

of the stay, reach or exceed twenty-two weeks LMP [“last menstrual period”],

the gestational point at which abortion may no longer be provided in Texas.”

ECF 30 at 21 (brackets added). As Petitioners point out, if competent evidence

shows that a woman is in that position, nothing prevents her from seeking as-

applied relief. ECF 2 at 22 n.28.

We do not decide at this stage, however, whether an injunction narrowly

tailored to particular circumstances would pass muster under the Jacobson

framework. See, e.g., ODonnell v. Harris Cty., 892 F.3d 147, 163 (5th Cir. 2018)

(“A district court abuses its discretion if it does not narrowly tailor an

injunction to remedy the specific action which gives rise to the order.” (citation

and internal quotations omitted)). These are issues that the parties may

pursue at the preliminary injunction stage, where Respondents will bear the

burden to prove, “by a clear showing,” that they are entitled to relief. See

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A Wright, Miller,

& Kane, Fed. Prac. & Proc. § 2948 (2nd ed. 1995)); cf. Ayotte v. Planned

Parenthood, 546 U.S. 320, 331 (2006) (injunction should be tailored to “[o]nly

[the] few applications” of challenged statute that “would present a

constitutional problem”). Our overarching point here is that the district court

did not even apply Casey’s undue-burden test and thus failed to weigh GA-09’s

hospitalization. ECF 2 at 18; ECF 67 at 7–8; see also American College of Obstetricians and

Gynecologists, Clinical Guidelines: Medical management of first-trimester abortion, 89

Contraception 148, 149 (2014), https://www.contraceptionjournal.org/article/S0010-

7824(14)00026-2/pdf (estimating “efficacy” of medication abortions using mifepristone). The

dissent appears to accept at face value Respondents’ representations about how medication

abortions consume PPE. See Dissent at 11. We think that evidentiary determination is better

left to the district court at the preliminary injunction stage.

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benefits and burdens in any particular circumstance. The district court

therefore lacked any basis for declaring that GA-09 constitutes an across-the-

board violation of Casey.

In sum, based on this record we conclude that GA-09—an emergency

measure that postpones certain non-essential abortions during an epidemic—

does not “beyond question” violate the constitutional right to abortion.

Jacobson, 197 U.S. at 31.

Finally, the district court’s extraordinary failure to evaluate GA-09

under the Jacobson framework also usurped the state’s authority to craft

measures responsive to a public health emergency. Such judicial encroachment

intrudes on the duties of the “executive arm of Government” and “on a delicate

area of federal-state relations,” further bolstering Texas’s right to issuance of

the writ. Cheney, 542 U.S. at 381.

In addressing the fourth and final TRO factor—whether a TRO would

disserve the public interest—the district court did little more than assert its

own view of the effectiveness of GA-09. The district court did not provide any

explanation of its conclusion that the public health benefits from an emergency

measure like GA-09 are “outweighed” by any temporary loss of constitutional

rights. Instead, the court rotely concluded that all injunctions vindicating

constitutional rights serve the public interest and that a TRO would “continue

the status quo.” App. 270. With respect, that blinks reality. The status quo

Texas faces, along with the rest of the nation, is a public health crisis that is

making once-in-a-lifetime demands on citizens, government, industry, and the

medical profession. Where there is a status quo to preserve, it is certainly true

that an injunction does “not disserve the public interest [if] it will prevent

constitutional deprivations.” Jackson Women’s Health Org. v. Currier [Jackson

I], 760 F.3d 448, 458 n.9 (5th Cir. 2014). But the essence of equity is the ability

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to craft a particular injunction meeting the exigencies of a particular

situation. “Flexibility rather than rigidity has distinguished it.” Hecht Co. v.

Bowles, 321 U.S. 321, 329 (1944). Thus, a court must at the very least weigh

the potential injury to the public health when it considers enjoining state

officers from enforcing emergency public health laws. A single conclusory

statement that does not explain this balancing falls far short.

Instead of doing any of this, the district court substituted its ipse dixit

for the Governor’s reasoned judgment, bluntly concluding that “[t]he benefits

of a limited potential reduction in the use of some personal protective

equipment by abortion providers is outweighed by the harm of eliminating

abortion access in the midst of a pandemic that increases the risks of

continuing an unwanted pregnancy.” App. 270. Respondents—as well as our

dissenting colleague—share this view. ECF 53 at 2, 17–21; Dissent at 11–12.

As Jacobson repeatedly instructs, however, if the choice is between two

reasonable responses to a public crisis, the judgment must be left to the

governing state authorities. “It is no part of the function of a court or a jury to

determine which one of two modes [i]s likely to be the most effective for the

protection of the public against disease.” Jacobson, 197 U.S. at 30. Such

authority properly belongs to the legislative and executive branches of the

governing authority. In light of the massive and rapidly-escalating threat

posed by the COVID-19 pandemic, “the court would usurp the functions of

another branch of government if it adjudged, as matter of law, that the mode

adopted under the sanction of the state, to protect the people at large was

arbitrary, and not justified by the necessities of the case.” Id. at 28 (emphasis

added). The district court’s order contravened this principle; Respondents and

the dissenting opinion invite us to do the same. We decline to engage in such

“unwarranted judicial action.” Will, 389 U.S. at 95.

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To be sure, the judiciary is not completely sidelined in a public health

crisis. We have already explained that Respondents may seek more targeted

relief, if they can prove their entitlement to it, at the preliminary injunction

stage. Additionally, a court may inquire whether Texas has exploited the

present crisis as a pretext to target abortion providers sub silentio. See Lawton,

152 U.S. at 137. Respondents make allegations to that effect, contending that

Petitioners are using GA-09 “to exploit the COVID-19 pandemic to achieve

their longtime goal of banning abortion in Texas.” ECF 53 at 1. Nonetheless,

on this record, we see no evidence that GA-09 was meant to exploit the

pandemic in order to ban abortion or was crafted “as some kind of ruse to

unreasonably delay . . . abortion[s] past the point where a safe abortion could

occur.” Garza, 874 F.3d at 753 n.3 (Kavanaugh, J., dissenting). To the contrary,

GA-09 applies to a whole host of medical procedures and regulates abortions

evenhandedly with those other procedures. The order itself does not even

mention abortion—or any other particular procedure—at all. Instead, it refers

broadly to “all surgeries or procedures” that meet its criteria. 25 Respondents

point to no evidence that GA-09 applies any differently to abortions than to

any other procedure. Nor do they cite any comparable procedures that are

exempt from GA-09’s requirements. On the other hand, Petitioners produce

evidence that myriad other procedures are affected just as abortions are. For

example, Petitioners offer a declaration from Dr. Timothy Harstad, M.D., who

testified that some cosmetic, bariatric, orthopedic, and gynecologic procedures

25 The district court relied heavily on the Attorney General’s press release of March

23, 2020, which clarified that in the Attorney General’s view, the GA-09 “includ[es] abortion

providers.” App. 31, 264–65. But the district court gave no reason to believe this press release

has the force of law. And, in any event, the press release also reads the order to apply “to all

surgeries and procedures[,] . . . including routine dermatological, ophthalmological, and

dental procedures, as well as . . . orthopedic surgeries or any type of abortion that is not

medically necessary to preserve the life or health of the mother.” App. 30.

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“are being suspended” alongside abortions. App. 230–31. Petitioners also point

to the fact that the Centers for Medicare & Medicaid Services have

recommended postponing several other critical procedures, including

endoscopies and colonoscopies, and even some oncological and cardiovascular

procedures for low-risk patients. 26 This evidence undermines Respondents’

contention that GA-09 exploits the present crisis to ban abortion. Respondents

will have the opportunity, of course, to present additional evidence in

conjunction with the district court’s preliminary injunction hearing scheduled

for April 13, 2020. Our decision, however, must be limited to the record before

us. Based on that record, we cannot say that GA-09 is a pretext for targeting

abortion.

The district court, for its part, did not even purport to engage in the sort

of limited pretext inquiry contemplated by cases like Jacobson and Lawton.

Instead, the district court overstepped its proper role and imposed its own

judgment about how the COVID-19 pandemic should be handled with respect

to abortion. 27 This was a usurpation of the state’s power. Will, 389 U.S. at 95.

26 See CMS Adult Elective Surgery and Procedures Recommendations,

https://www.cms.gov/files/document/31820-cms-adult-elective-surgery-and-procedures-

recommendations.pdf (last visited April 6, 2020).

27 Likewise, the dissent contends that “[r]estricting contact between abortion

providers and their patients cannot further the goals of GA-09 if the same order permits in-

person contact between providers and patients in other settings.” Dissent at 13. But this is

true of all surgeries and procedures. Nonetheless, in part to “limit[ ] exposure of patients and

staff to the virus that causes COVID-19,” CMS recommends postponing “non-essential

surgeries and other procedures.” See CMS Adult Elective Surgery and Procedures

Reccomendations (Mar. 15, 2020), https://www.cms.gov/files/document/31820-cms-adult-

elective-surgery-and-procedures-recommendations.pdf. GA-09 notes that it follows

recommendations from “the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon

General, and the Centers for Medicare and Medicaid Services.” And the state’s infectious

disease expert said that the risk of spreading the virus is real, “especially in the health care

setting due to the proximity.” Marier Declaration ¶ 6, App. 240. We reiterate that Jacobson

commands that it is not the court’s role “to determine which one of two modes [i]s likely to be

most effective for the protection of the public against disease.” 197 U.S. at 30.

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***

In sum, based on the record before us, we conclude that Petitioners have

a clear and indisputable right to issuance of the writ, satisfying the second

mandamus prong. Itron, 883 F.3d at 567.

We now consider whether Petitioners have shown they “have no other

adequate means” to obtain the relief they seek. Cheney, 542 U.S. at 380. This

requirement is “designed to ensure that the writ will not be used as a substitute

for the regular appeals process.” Id. at 380–81. Mandamus is generally

unavailable for review of “district court decisions that, while not immediately

appealable, can be reviewed at some juncture.” In re Crystal Power Co., 641

F.3d 82, 83 (5th Cir. 2011). “[F]or an appeal to be an inadequate remedy, there

must be ‘some obstacle to relief beyond litigation costs that renders obtaining

relief not just expensive but effectively unobtainable.’” Depuy Orthopaedics,

870 F.3d at 353 (quoting Lloyd’s Register, 780 F.3d at 289). In other words, the

error claimed must be “truly irremediable on ordinary appeal.” JPMorgan

Chase, 916 F.3d at 499 (cleaned up) (quoting Depuy, 870 F.3d at 352–53).

Given the surging tide of COVID-19 cases and deaths, Petitioners have

made this showing. In mill-run cases, it might be a sufficient remedy to simply

wait until the expiration of the TRO, and then appeal an adverse preliminary

injunction. See 28 U.S.C. § 1292(a)(1). In other cases, a surety bond may ensure

that a party wrongfully enjoined can be compensated for any injury caused.

See Fed. R. Civ. P. 65(c).

Those methods would be woefully inadequate here. The TRO is set to

expire April 13, 2020, two weeks from the date it issued. App. 271. But time is

of the essence when it comes to preventing the spread of COVID-19 and

conserving medical resources critically needed to care for patients. To illustrate

the speed at which the pandemic has been unfolding: As of March 20 there

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were, per the WHO’s daily report, 234,073 confirmed cases of COVID-19 and

9,840 deaths. 28 As of April 6, there were 1,210,956 confirmed cases, and 67,954

deaths. 29 As of April 1, Texas had 4,544 cases; by April 6, the number had risen

to 7,359 cases. 30 That number will undoubtedly rise substantially in coming

days absent successful preventative measures. As the Dallas Morning News

wrote on April 1: “The greatest number of cases will come in about a 10-day

period that will begin soon.” 31 On April 2, Respondents conceded that

“[g]overnment officials and medical professionals expect a surge of infections

that will test the limits of a health care system already facing a shortage of

PPE[.]” ECF 53 at 3. Respondents also concede that surgical abortions consume

PPE, such as “gloves, a surgical mask, disposable protective eyewear,

disposable or washable gowns, and . . . shoe covers.” Id. at 6. Moreover,

abortion is a common procedure: the evidence shows 53,843 total abortions—

36,793 of those surgical—were performed in Texas in 2017. App. 222. In sum,

were Petitioners required to wait and appeal an adverse preliminary

injunction, the harms from a broad suspension of GA-09 for all abortion

procedures could not “be put back in the bottle.” Volkswagen, 545 F.3d at 319.

28 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19)

SITUATION REPORT – 60 (March 20, 2020), https://www.who.int/docs/default-

source/coronaviruse/situation-reports/20200320-sitrep-60-covid-19.pdf?sfvrsn=d2bb4f1f_2.

29 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19)

SITUATION REPORT – 77 (April 6, 2020), https://www.who.int/docs/default-

source/coronaviruse/situation-reports/20200406-sitrep-77-covid-19.pdf?sfvrsn=21d1e632_2.

Johns Hopkins University & Medicine Coronavirus Resource Center, Coronavirus

COVID-10 Global Cases, https://coronavirus.jhu.edu/map.html (last visited April 6, 2020).

31Steven Gjerstad, U.S. cases of COVID-19 will peak in a couple of weeks; Only social

distancing will break the virus, DALLAS MORNING NEWS (April 1, 2020),

https://www.dallasnews.com/opinion/commentary/2020/04/01/us-cases-of-covid-19-will-peak-

in-a-couple-of-weeks-only-social-distancing-will-break-the-virus/

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The error would be “truly irremediable” through ordinary appeal. JPMorgan

Chase, 916 F.3d at 499 (cleaned up). 32

We therefore conclude no other adequate means exist for Petitioners to

obtain the relief they seek, thus satisfying the first mandamus prong.

Finally, we must decide whether to exercise our discretion to issue the

writ. See Gee, 941 F.3d at 170. “Discretion is involved in defining both the

circumstances that justify exercise of writ power and also the reasons that may

justify denial of a writ even though the circumstances might justify a grant.”

16 WRIGHT & MILLER, supra, § 3933. “The longstanding view is that discretion

to issue the writs should be exercised only in special cases . . . .” Id.

We are persuaded that this petition presents an extraordinary case

justifying issuance of the writ. First, as we have noted, the current global

pandemic has caused a serious, widespread, rapidly-escalating public health

crisis in Texas. Petitioners’ interest in protecting public health during such a

time is at its zenith. In the unprecedented circumstances now facing our

society, even a minor delay in fully implementing the state’s emergency

measures could have major ramifications because, as the evidence shows, an

32 Federal courts of appeals have issued writs of mandamus to vacate TROs in a

number of less-urgent scenarios. See, e.g., In re King World Prods., Inc., 898 F.2d 56 (6th Cir.

1990) (vacating TRO enjoining news organization from broadcasting video recording); Truck

Drivers Local Union No. 807, Int’l Bhd. of Teamsters v. Bohack Corp., 541 F.2d 312 (2d Cir.

1976) (vacating TRO enjoining Board from conducting unfair labor practice proceedings);

O’Neill v. Battisti, 472 F.2d 789 (6th Cir. 1972) (vacating TRO enjoining Ohio Supreme Court

from enforcing its own disciplinary order or taking further disciplinary action against state

judge). A fortiori, mandamus is an appropriate mechanism for challenging the TRO in the

present case, which restrains Petitioners from fully implementing emergency public health

measures in a time of unprecedented crisis.

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“exponential increase in COVID-19 cases is expected over the next few days

and weeks.” App. 224–25. It is hard to imagine a more urgent situation.

Second, the district court’s refusal to acknowledge the governing

framework from Jacobson was a clear abuse of discretion that produced a

patently erroneous result: bestowing on abortion providers a blanket

exemption from a generally-applicable emergency public health measure. Not

stopping there, the district court usurped the power of state authorities by

passing judgment on the wisdom and efficacy of those emergency measures.

These are “extraordinary” errors. See Volkswagen, 545 F.3d at 318.

Third, “writs of mandamus are supervisory in nature and are

particularly appropriate when the issues also have an importance beyond the

immediate case.” Id. at 319. While unclear how long the current crisis will last,

it is probable that other legal disputes will arise pitting claims of private rights

against the states’ authority to preserve public health and safety. Indeed, 34

states plus the District of Columbia have filed amicus briefs in this case,

demonstrating the widespread importance of the issues involved. We also view

the “sheer magnitude” of the district court’s error and its effect on the state’s

ongoing emergency efforts to slow COVID-19 as evidence that the “safety

valve” of mandamus is appropriate. Itron, 883 F.3d at 568–69 (cleaned up).

Lastly, we note that this case is distinguishable from our recent decisions

in Gee and JPMorgan Chase, where, in our discretion, we declined to issue

writs of mandamus. In Gee, we concluded that, even though the district court

clearly abused its discretion in failing to undertake the required jurisdictional

analysis, mandamus was nevertheless not required because (1) it was unclear

what result the district court would reach once it performed the correct

analysis, and (2) many of the petitioner’s arguments went beyond jurisdiction

and challenged the plaintiffs’ theory on the merits. See 941 F.3d at 170. In light

of those considerations, we deemed it imprudent to issue the writ. Id. In

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JPMorgan Chase, we concluded that the district court’s error, while

significant, was not “clear and indisputable” because it “followed numerous

others” who had made the same mistake. 916 F.3d at 504.

We confront vastly different circumstances here. To begin with, unlike

in Gee, the district court addressed the merits of Respondents’ claim, though it

did so in a manner that overlooked the controlling framework and produced

patently erroneous results. See Volkswagen, 545 F.3d at 319. Given the severe

time constraints here, we do not have the luxury to wait and see what approach

the district court might take on the merits. Second, unlike in JPMorgan Chase,

the district court’s decision here did not align with “numerous” other courts

which had confronted the same issue. To the contrary, the district court cited

not a single case addressing restrictions on abortion during a public health

crisis. Therefore, “we are aware of nothing that would render the exercise of

our discretion to issue the writ inappropriate.” Volkswagen, 545 F.3d at 319.

For those reasons, we exercise our discretion to issue a writ of

mandamus. See Cheney, 542 U.S. at 381.

IV.

The petition for writ of mandamus is GRANTED, directing the district

court to vacate the TRO entered on March 30, 2020. Petitioners’ emergency

motion to stay the TRO pending resolution of their mandamus petition is

DENIED AS MOOT. Our temporary stay of March 31, 2020, is LIFTED. Any

future appeals or mandamus petitions in this case will be directed to this panel

and will be expedited. Gee, 941 F.3d at 173; In re First South Sav. Ass’n, 820

F.2d 700, 716 (5th Cir. 1987). The mandate shall issue forthwith.

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JAMES L. DENNIS, dissenting.

Eight days ago, the district court temporarily restrained Texas’s

temporary ban of all medication abortions and procedural abortions. “The

benefits of a limited potential reduction in the use of some personal protective

equipment by abortion providers,” the district court explained, “is outweighed

by the harm of eliminating abortion access in the midst of a pandemic that

increases the risks of continuing an unwanted pregnancy, as well as the risks

of travelling to other states in search of time-sensitive medical care.” Other

states, including Oklahoma, 1 Alabama, 2 and Ohio, 3 have attempted to limit a

woman’s access to abortion during the COVID-19 pandemic. Thus far, none of

those attempts has been successful in the face of a constitutional challenge,

either in the district courts or on appeal. South Wind Women’s Center LLC v.

Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2 (W.D. Okla. Apr. 6, 2020)

(“[W]hile the current public health emergency allows the state of Oklahoma to

impose some of the cited measures delaying abortion procedures, it has acted

in an ‘unreasonable,’ ‘arbitrary’ and ‘oppressive’ way—and imposed an ‘undue

1 Okla. Exec. Order No. 2020-07 (Mar. 24, 2020),

https://www.sos.ok.gov/documents/executive/1919.pdf; Press Release, Office of the Oklahoma

Governor, Governor Stitt Clarifies Elective Surgeries and Procedures Suspended under

Executive Order (Mar. 27, 2020), https://www.governor.ok.gov/articles/press_releases/

governor-stitt-clarifies-elective-surgeries (“[A]ny type of abortion services . . . which are not

a medical emergency . . . or otherwise necessary to prevent serious health risks to the unborn

child’s mother are included in that Executive Order.”)

2 Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk

of Infection by COVID-19 (Mar. 27, 2020), https://governor.alabama.gov/assets/2020/03/

Amended-Statewide-Social-Distancing-SHO-Order-3.27.2020-FINAL.pdf; Robinson v.

Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *1 (M.D. Ala. Mar. 30, 2020)

(explaining that the Alabama state’s attorney “in his oral representations on the record, took

the position that the March 27 order requires the postponement of any abortion that is not

medically necessary to protect the life or health of the mother”).

3 Ohio Department of Health, RE: Director’s Order for the Management of Non-

essential Surgeries and Procedures throughout Ohio (Mar. 17, 2020); Preterm-Cleveland v.

Attorney Gen. of Ohio, No. 1:19-cv-00360, slip op. at 2-3 (S.D. Ohio Mar. 30, 2020) (stating

that Ohio’s attorney general sent letters to abortion providers citing the Director’s Order and

they must “immediately stop performing non-essential and elective surgical abortions”).

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burden’ on abortion access—in imposing requirements that effectively deny a

right of access to abortion. Further, the court concludes that the benefit to

public health of the ban on medication abortions is minor and outweighed by

the intrusion on Fourteenth Amendment rights caused by that ban.”);

Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *2 (M.D.

Ala. Mar. 30, 2020) (“Because Alabama law imposes time limits on when

women can obtain abortions, the March 27 order is likely to fully prevent some

women from exercising their right to obtain an abortion. And for those women

who, despite the mandatory postponement, are able to vindicate their right,

the required delay may pose an undue burden that is not justified by the State’s

purported rationales.”); Preterm-Cleveland v. Attorney Gen. of Ohio, No. 1:19-

cv-00360, slip op. at 7 (S.D. Ohio Mar. 30, 2020) (“Defendants have not

demonstrated to the Court, at this point, that Plaintiffs’ performance of these

surgical procedures will result in any beneficial amount of net saving of PPE

in Ohio such that the net saving of PPE outweighs the harm of eliminating

abortion.”), appeal dismissed, No. 20-3365 (6th Cir. Apr. 6, 2020). The

American College of Obstetricians and Gynecologists released a statement that

“abortion should not be categorized” as a “procedure[] that can be delayed

during the COVID-19 pandemic.” 4 The statement emphasized, as the district

court did, that abortion is “a time-sensitive service for which a delay of several

weeks, or in some cases days, may increase the risks or potentially make it

completely inaccessible.”

Today, the majority concludes that allowing women in Texas access to

time-sensitive reproductive healthcare, a right supported by almost 50 years

of Supreme Court precedent, was a “patently erroneous” result that must be

4 Joint Statement on Abortion Access During the COVID-19 Outbreak, THE AMERICAN

COLLEGE OF OBSTETRICS AND GYNECOLOGISTS (Mar. 18, 2020), https://www.acog.org/news

/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak.

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remedied by “one of the most potent weapons in the judicial arsenal.” See In

re JPMorgan Chase & Co., 916 F.3d 494, 504 (5th Cir. 2019) (quoting Cheney

v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). Unfortunately, this is a

recurring phenomenon in this Circuit in which a result follows not because of

the law or facts, but because of the subject matter of this case. See June Med.

Servs. L.L.C. v. Gee, 905 F.3d 787, 835 (5th Cir. 2018) (“[W]hen abortion shows

up, application of the rules of law grows opaque.” (Higginbotham, J.,

dissenting)), cert. granted, 140 S. Ct. 35 (2019)). For the reasons that follow, I

dissent.

On March 22, 2020, Texas Governor Greg Abbott signed Executive Order

GA-09 (“GA-09”) to expand hospital bed capacity as the state responds to the

COVID-19 virus. The Executive Order, which “ha[s] the force and effect of

law,” TEX. GOV’T CODE ANN. § 418.012 (West 2019), states that until 11:59 p.m.

on April 21, 2020,

[a]ll licensed health care professionals and all licensed health care

facilities shall postpone all surgeries and procedures that are not

immediately medically necessary to correct a serious medical

condition of, or to preserve the life of, a patient who without

immediate performance of the surgery or procedure would be at

risk for serious adverse medical consequences or death, as

determined by the patient’s physician. 5

The Executive Order exempts “any procedure that, if performed in accordance

with the commonly accepted standard of clinical practice, would not deplete

the hospital capacity or the personal protective equipment needed to cope with

the COVID-19 disaster.”

Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press

/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.

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The day after the Governor signed GA-09, Texas Attorney General Ken

Paxton issued a news release stating that GA-09’s prohibition on medically

unnecessary surgeries and procedures “applies throughout the State and to all

surgeries and procedures that are not immediately medically necessary,

including . . . any type of abortion that is not medically necessary to preserve

the life or health of the mother.” 6 The release states that “[f]ailure to comply

with an executive order issued by the governor related to the COVID-19

disaster can result in penalties of up to $1,000 or 180 days of jail time.” Paxton

emphasized that “[n]o one is exempt from the governor’s executive order on

medically unnecessary surgeries and procedures, including abortion

providers,” and “[t]hose who violate the governor’s order will be met with the

full force of the law.”

Several organizations that provide abortion services in Texas and a

board-certified family medicine physician who provides abortion care

(collectively, “Respondents”) brought an action in the Western District of Texas

under 42 U.S.C. § 1983, challenging GA-09 and the Texas Medical Board’s

emergency amendment to Title 22 Texas Administrative Code section 187.57,

which imposes the same requirements. Respondents moved for a temporary

restraining order (“TRO”) to enjoin enforcement of GA-09 and the Emergency

Rule insofar as they purport to ban all medication abortions and procedural

abortions, as the attorney general’s news release suggests.

I include this explanation not to reiterate the procedural history the

majority has already explained, but to emphasize what exactly we are

reviewing. Respondents brought a constitutional challenge to GA-09, and

6 News Release, Office of the Texas Attorney General, Health Care Professionals and

Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary

Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23,

2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-

facilities-including-abortion-providers-must-immediately-stop-all.

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though the attorney general’s interpretation of that order constitutes the crux

of the constitutional issues present in this case, it is GA-09 and only GA-09

that we are interpreting. The majority agrees that the attorney general’s news

release interpreting GA-09 is not legally binding. Maj. Op. at 25 n.22. The

attorney general cannot modify the text of the governor’s executive order

through his news release; only the governor has the power to “issue executive

orders . . . [that] have the force and effect of law.” TEX. GOV’T CODE ANN. §

418.012. And GA-09 grants abortion providers the power to determine whether

a procedure is “immediately medically necessary to correct a serious medical

condition of . . . a patient who without immediate performance of the surgery

or procedure would be at risk for serious adverse medical consequences.” It

also permits an exception for any abortion that “if performed in accordance

with the commonly accepted standard of clinical practice, would not deplete

the hospital capacity or the personal protective equipment needed to cope with

the COVID-19 disaster.”

The attorney general’s news release interprets GA-09 to ban “any type

of abortion that is not medically necessary to preserve the life or health of the

mother,” regardless, apparently, of whether such a procedure (1) in the view of

the patient’s physician, is immediately medically necessary and would put a

patient at risk for serious adverse medical consequences if not performed, or

(2) would fall under GA-09’s exception for procedures that do not utilize PPE

or deplete hospital capacity.

II.

The district court granted Respondents’ TRO, halting enforcement of

GA-09 insofar as it bans all procedural and medication abortions. Petitioners

seek a writ of mandamus to remedy what they describe as a “clearly and

indisputably erroneous” decision. The Supreme Court and this court have

repeatedly emphasized that mandamus is an “extraordinary remedy” to be

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exercised only in “exceptional circumstances.” See Cheney, 542 U.S. at 380

(quoting Will v. United States, 389 U.S. 90, 95 (1967)); In re Lloyd’s Register N.

Am., Inc., 780 F.3d 283, 288, 294 (5th Cir. 2015); In re Volkswagen of Am., Inc.,

545 F.3d 304, 309, 311 (5th Cir. 2008). To obtain relief, Petitioners “must do

more than prove merely that the court erred.” In re Occidental Petroleum

Corp., 217 F.3d 293, 295 (5th Cir. 2000). “The traditional use of the writ . . .

has been to confine the court against which mandamus is sought to a lawful

exercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (alteration

omitted) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). Its

use is justified in “only exceptional circumstances amounting to a judicial

‘usurpation of power,’ or a ‘clear abuse of discretion.’” Id. (quoting Will, 389

U.S. at 95; Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)).

Mandamus relief generally requires that (1) “the party seeking issuance

of the writ [must] have no other adequate means to attain the relief he

desires—a condition designed to ensure that the writ will not be used as a

substitute for the regular appeals process”; (2) “the petitioner must satisfy the

burden of showing that [his] right to issuance of the writ is clear and

indisputable”; and (3) “the issuing court, in the exercise of its discretion, must

be satisfied that the writ is appropriate under the circumstances.” Id. at 380-

81 (internal quotation marks and citations omitted).

Under the “clear and indisputable” prong, id., Petitioners must show the

district court’s determination was a “clear abuse[] of discretion that produce[d]

patently erroneous results.” In re Lloyd’s Register N. Am., Inc., 780 F.3d at

290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at 312). Both conditions—

clear abuse of discretion and a patently erroneous result—must be met to

obtain mandamus relief. See id.

The majority concludes that the district court clearly erred by not

applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and

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its result, allowing medication and procedural abortions to proceed, was

patently erroneous. It also concludes that “the court usurped the power of the

governing state authority when it passed judgment on the wisdom and efficacy

of those emergency measures, something squarely foreclosed by Jacobson.”

Maj. Op. at 9-10. For several reasons, the majority is wrong.

III.

In Jacobson, the city of Cambridge, Massachusetts, pursuant to state

statute, passed a regulation requiring all of its citizens to receive a smallpox

vaccination to combat a smallpox outbreak. 197 U.S. at 12. Jacobson

challenged the regulation, arguing that it violated his Fourteenth Amendment

right “to care for his own body and health in such a way as to him seems best.”

Id. at 26. The Court explained that the state’s action in compelling vaccination

was an exercise of its police power, which “must be held to embrace, at least,

such reasonable regulations established directly by legislative enactment as

will protect the public health and the public safety.” Id. at 25. In rejecting

Jacobson’s constitutional challenge, the Court explained “[e]ven liberty itself,

the greatest of all rights, is not unrestricted license to act according to one’s

own will. It is only freedom from restraint under conditions essential to the

equal enjoyment of the same right by others.” Id. at 26-27. The Court

explained, however, that individual rights are not gutted during a crisis:

Courts have a duty to review a state’s exercise of their police power where the

state’s action (1) goes “beyond the necessity of the case, and, under the guise of

exerting a police power . . . violate[s] rights secured by the Constitution,” (2)

“has no real or substantial relation to” “protect[ing] the public health, the

public morals, or the public safety,” or (3) “is, beyond all question, a plain,

palpable invasion of rights secured by the fundamental law.” Id. at 28, 30.

Jacobson, then, stands for the proposition that a state by its legislature may

utilize its police power to enact laws to protect the public health and safety,

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even though such laws may impose restraints on citizens’ liberties, so long as

that regulation is “justified by the necessities of the case” and does not violate

rights secured by the Constitution “under the guise of exerting a police power.”

Id. at 28-29.

This case is clearly distinguishable from Jacobson. There, the city

required its citizens to get a smallpox vaccine to stop the spread of a smallpox

outbreak. The measure adopted by the city related directly to the public health

crisis—every citizen who did not receive the vaccine could actively spread the

disease, and therefore mandatory vaccination actively curbed the disease’s

spread. The thread connecting GA-09 to combatting COVID-19 is more

attenuated—premised not on the idea that abortion providers are spreading

the virus, but that their continuing operation requires the use of resources that

should be conserved and made available to healthcare workers fighting the

outbreak. This reasoning requires the additional link that those PPE

resources denied to abortion providers are indeed conserved, are significant in

amount, and can realistically be reallocated to healthcare workers fighting

COVID-19, a showing that Petitioners have not made.

The majority claims that “Jacobson disclaimed any judicial power to

second-guess the policy choices made by the state in crafting emergency public

health measures.” Maj. Op. at 12. But the Court did not conclude that an

emergency situation deprives courts of their duty and power to uphold the

constitution—quite the opposite, in fact.

The Court in Jacobson determined that the Massachusetts law should

not be invalidated because “[s]mallpox being prevalent and increasing in

Cambridge, the court would usurp the functions of another branch of

government if it adjudged, as a matter of law, that the mode adopted under the

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sanction of the state, to protect the people at large was arbitrary, and not

justified by the necessities of the case.” Jacobson, 197 U.S. at 28 (emphases

added). The Court certainly did not disclaim any power to so rule, under

appropriate circumstances, however, explaining:

We say necessities of the case, because it might be that an

acknowledged power of a local community to protect itself against

an epidemic threatening the safety of all might be exercised in

particular circumstances and in reference to particular persons in

such an arbitrary, unreasonable manner, or might go so far beyond

what was reasonably required for the safety of the public, as to

authorize or compel the courts to interfere for the protection of

such persons.

Id. The Court in Jacobson also explained that it had previously “recognized

the right of a state to pass sanitary laws, laws for the protection of life, liberty,

[and] health . . . within its limits.” Id. (citing Hannibal & St. J.R. Co. v. Husen,

95 U. S. 465, 471-73 (1877)). While states have the right to pass such laws, the

Court explained, the courts have a “duty to hold . . . invalid” laws that “went

beyond the necessity of the case, and, under the guise of exerting a police

power, invaded the domain of Federal authority, and violated rights secured

by the Constitution.” Id.

Thus, the Court clearly anticipated that courts would exercise judicial

oversight over a state’s decision to restrict personal liberties during

emergencies. See id. Jacobson merely acknowledged that what is reasonable

during an emergency is different from what is reasonable under normal

circumstances, and that courts must not act as super-executives in an

emergency. Given the language of Jacobson, then, the Court was concerned

with both what the majority focuses on—the state’s ability to adequately

protect its citizens during a public health crisis—and what the majority

ignores—the courts’ ability to protect citizens’ constitutional rights when

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states attempt to unjustifiably seize and wield power in the name of the health

and safety.

Therefore, Jacobson reaffirms the district court’s duty, and our duty, “to

hold [GA-09] invalid” if it (1) goes “beyond the necessity of the case, and, under

the guise of exerting a police power . . . violate[s] rights secured by the

Constitution,” (2) “has no real or substantial relation to” “protect[ing] the

public health, the public morals, or the public safety,” or (3) “is, beyond all

question, a plain, palpable invasion of rights secured by the fundamental law.”

See id. at 28, 30.

IV.

After concluding that the district court clearly abused its discretion in

not relying on Jacobson, the majority determines that this error produced a

patently erroneous result. Maj. Op. at 15-23. The majority claims that the

district court’s conclusion that GA-09 amounts to a previability ban is patently

erroneous. Maj. Op. at 17. In my view, this “conclusion” does not accurately

characterize the “result” of the district court’s order. See In re Volkswagen of

Am., Inc., 545 F.3d at 310 (“[W]e only will grant mandamus relief when such

errors produce a patently erroneous result.” (emphasis added)). The result of

the district court’s order is to uphold women’s rights to abortions and to allow

medical and procedural abortions to proceed. That result is not patently

erroneous and therefore does not warrant mandamus relief. Contrary to the

majority’s view, nothing in Jacobson or any of the Supreme Court’s cases

requires a different result.

The goals of GA-09 are furthered by restricting abortions, according to

Petitioners, because abortions: (1) “reduce[] the scarce supply of PPE available

to healthcare providers treating COVID-19 patients,” (2) “result[] in the

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hospitalization of women,” reducing hospital capacity for COVID-19 patients,

and (3) “contribute[] to the spread of the COVID-19 virus.”

Though GA-09 does not define PPE, Respondents explain that the term

is generally understood to refer to N95 respirators, surgical masks, non-sterile

and sterile gloves, and disposable protective eyewear, gowns, and hair and shoe

covers. In response to Petitioners’ argument that abortions will deplete PPE

necessary for healthcare providers treating COVID-19 patients, Respondents

contend that abortions utilize little or no PPE and that abortions are time-

sensitive procedures.

Regarding the first point, whether an abortion takes no PPE or some

PPE depends on the type of procedure. Procedural abortions in Texas are

single-day procedures that, unlike surgeries, require no hospital bed, incision,

general anesthesia, or sterile field. During the procedure, the providers use

PPE such as gloves, a surgical mask, disposable protective eyewear, disposable

or washable gowns, and hair and shoe covers. Most Respondents do not have

N95 respirators, and those that do have only a small supply that they rarely,

if ever, use. Medication abortions, which involve only taking medications by

mouth, require no PPE to administer the medication, and may require the use

of gloves only at pre- and post-procedure appointments, depending on the

circumstances. Petitioners identify no other treatment through oral

medication that would be affected by GA-09.

Moreover, Respondents point out that Petitioners’ PPE conservation

argument mistakenly assumes that a patient unable to obtain an abortion will

not otherwise need medical care that requires the consumption of PPE.

Pregnant patients who cannot access abortion require prenatal care and must

often undergo unplanned hospital visits. And to the extent patients are

prevented from obtaining abortions altogether, childbirth and delivery require

exponentially more PPE than an abortion. Denying pregnant patients access

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to abortion now may simply change the purpose for which the PPE is used,

without any surplus that is able to be reallocated to healthcare workers

treating COVID-19 patients. Other pregnant patients with the resources to do

so may choose to seek abortions outside of Texas—a result clearly contrary to

Texas’s purported goal of avoiding the spread of the virus. GA-09 has already

led patients to travel to other states to obtain abortion care in a pandemic,

exposing patients and third parties to infection risks. One out-of-state

physician stated that he treated 30 abortion patients from Texas in the week

after the attorney general’s statement.

Petitioners also argue that the abortion restrictions are necessary to

preserve hospital capacity, while Respondents point out that legal abortions

are safe and almost never require hospitalization, and abortion care is

substantially less likely to lead to hospitalization than caring for a patient with

respect to full term pregnancy, childbirth, and post-natal care.

Finally, Petitioners argue that GA-09 as understood to ban all abortions

provides the benefit of restricting contact between patients, medical staff, and

physicians to help prevent the spread of COVID-19. While this may be true,

the language of GA-09 reveals that it was not adopted to serve this interest.

GA-09 exempts “any procedure . . . that would not deplete the hospital capacity

or the personal protective equipment needed to cope with the COVID-19

disaster.” It excludes all forms of medical care save “surgeries and procedures,”

and therefore does not contemplate restricting any other type of medical care

that results in contact between providers and patients. Restricting contact

between abortion providers and their patients cannot further the goals of GA-

09 if the same order permits in-person contact between providers and patients

in other settings.

Petitioners suggest that, in addition to these reasons, “Plaintiffs have

identified no substantial burdens that will result from delaying elective

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abortions in accordance with [GA-09].” The majority agrees, concluding that

“the expiration date makes GA-09 a delay, not a ban.” Maj. Op. at 19. But it

is painfully obvious that a delayed abortion procedure could easily amount to

a total denial of that constitutional right: If currently scheduled abortions are

postponed, many women will miss the small window of opportunity they have

to access a legal abortion. Texas generally prohibits abortion after twenty-two

weeks from the first day of the pregnant person’s last menstrual period

(“LMP”), see TEX. HEALTH & SAFETY CODE § 171.044, and therefore GA-09 has

the potential to deny a woman’s constitutional right to an abortion where that

right will lapse during the duration of GA-09. A woman has only a small

window of opportunity to exercise her constitutional right to choose, and

therefore Petitioners’ action in further narrowing that window will present a

burden in many cases.

First, prohibiting abortions for patients whose pregnancies will, before

the expiration of GA-09, reach or exceed twenty-two weeks, the gestational

point at which abortion may no longer be provided in Texas, represents “a

plain, palpable invasion of rights secured by the fundamental law.” Jacobson,

197 U.S. at 31. Even if such state action is successful in conserving the

minimal PPE utilized in such procedures, as applied to this group of people,

the state’s action constitutes an outright ban on previability abortion, which is

“beyond question, in palpable conflict with the Constitution.” Id.; id. at 28

(explaining that a state’s police power “might be exercised . . . in reference to

particular persons in such an arbitrary, unreasonable manner, or might go so

far beyond what was reasonably required for the safety of the public, as to

authorize or compel the courts to interfere for the protection of such persons”);

see Roe v. Wade, 410 U.S. 113, 153-54 (1973). Insofar as GA-09 applies to this

group of women, then, the district court’s result in allowing abortions to

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proceed was not patently erroneous. See In re Lloyd’s Register N. Am., Inc.,

780 F.3d at 290.

Second, insofar as GA-09 bans procedural and medication abortions

generally, this act “has no real or substantial relation to” Petitioners’ stated

goal of conserving PPE and maintaining access to hospital beds and therefore

it goes “beyond the necessity of the case, and, under the guise of exerting a

police power . . . violate[s] rights secured by the Constitution.” See Jacobson,

197 U.S. at 28, 31. In particular, abortions require minimal PPE (and

medication abortions require no PPE to administer the medication), do not

require the use of N95 respirator masks, and rarely require hospitalization.

And as Respondents point out, the medical resources conserved by prohibiting

abortions would simply be otherwise consumed through prenatal care by

women forced to continue their pregnancies or incentivize women to travel out

of state to obtain abortions, facilitating the spread of the virus. Finally, even

assuming that delayed abortions in fact conserve PPE, Respondents have not

demonstrated how the PPE could realistically be reallocated to healthcare

workers fighting COVID-19.

Petitioners have, therefore, failed to establish that the district court

“reached a patently erroneous result” in temporarily restricting Texas’s ability

to enforce GA-09 insofar as it bans all procedural and medication abortions.

See In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290. Mandamus relief

should be denied.

***

The district court’s result was supported by nearly 50 years of Supreme

Court precedent protecting a woman’s right to choose, and as such I would not

conclude that it was patently erroneous. In a time where panic and fear

already consume our daily lives, the majority’s opinion inflicts further panic

and fear on women in Texas by depriving them, without justification, of their

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constitutional rights, exposing them to the risks of continuing an unwanted

pregnancy, as well as the risks of travelling to other states in search of time-

sensitive medical care.

I respectfully but emphatically dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.