In re: Greg Abbott

Case: 20-50296 Document: 00515388718 Page: 1 Date Filed: 04/20/2020

REVISED April 20, 2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 20, 2020

No. 20-50296

Lyle W. Cayce

Clerk

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

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

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

Texas Health and Human Services Commission; STEPHEN BRINT

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

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

Director of the Texas Board of Nursing,

Petitioners

Petition for Writ of Mandamus to the United States

District Court for the Western District of Texas

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD and STUART KYLE DUNCAN, Circuit Judges:

On April 7, 2020, we issued a writ of mandamus vacating the district

court’s temporary restraining order (“TRO”) 1 that exempted abortions from

GA-09, an emergency measure temporarily postponing non-essential medical

procedures during the COVID-19 pandemic. In re Abbott, --- F.3d ---, 2020 WL

1685929 (5th Cir. Apr. 7, 2020) (Abbott II). Two days later, on April 9, the

district court entered a second TRO, exempting various categories of abortion

1 See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323, 2020 WL

1502102 (W.D. Tex. Mar. 30, 2020) (Abbott I).

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from GA-09. See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-

323, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) (Abbott III). A flurry of

litigation ensued, during which state officials again sought mandamus and we

administratively stayed parts of the April 9 TRO. 2 Over this period—from

April 7 to 20—Texas COVID-19 cases, hospitalizations, and deaths more than

doubled. 3

We now consider the mandamus petition directed to the April 9 TRO. We

are persuaded by Petitioners’ arguments that the district court, in the April 9

TRO, disregarded our mandate in Abbott II. The court again “fail[ed] to apply

. . . the framework governing emergency exercises of state authority during a

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

Commonwealth of Massachusetts, 197 U.S. 11 (1905).” Abbott II, 2020 WL

1685929, at *5. Moreover, the court again second-guessed the basic mitigation

strategy underlying GA-09 (that is, the concept of “flattening the curve”), and

also acted without knowing critical facts such as whether, during this

pandemic, abortion providers do (or should) wear masks or other protective

equipment when meeting with patients. Those errors led the district court to

enter an overbroad TRO that exceeds its jurisdiction, reaches patently

erroneous results, and usurps the state’s authority to craft emergency public

health measures “during the escalating COVID-19 pandemic.” Id. at *1.

Once again, the dissenting opinion accuses the majority of treating

abortion differently and once again it is wrong. At issue is whether abortion

can be treated the same as other procedures under GA-09. It is the district

2 See In re Abbott, No. 20-50296, 2020 WL 1844644 (5th Cir. Apr. 10, 2020)

(administratively staying TRO in part) (Abbott IV); In re Abbott, 2020 WL 1866010 (5th Cir.

Apr. 13, 2020) (denying stay in part and lifting administrative stay in part) (Abbott V).

3 See Tex. Dep’t of State Health Servs., Texas Case Counts COVID-19,

https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9

cafc8b83 (last visited Apr. 20, 2020).

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court that treated abortion differently, issuing back-to-back TROs that did not

follow the law.

We therefore grant the writ in part and direct the district court to vacate

these parts of the April 9 TRO:

• That part restraining enforcement of GA-09 as a “categorical ban on all

abortions provided by Plaintiffs.”

• That part restraining the Governor of Texas and the Attorney General.

• That part restraining enforcement of GA-09 as to medication abortions.

• That part restraining enforcement of GA-09 as to patients who would

reach 18 weeks LMP 4 on the expiration date of GA-09 and who would be

“unlikely” to be able to obtain abortion services in Texas.

• That part restraining enforcement of GA-09 after 11:59 p.m. on April 21,

2020.

We do not grant the writ, and therefore do not order vacatur, of that part

of the TRO restraining GA-09 as to patients “who, based on the treating

physician’s medical judgment, would be past the legal limit for an abortion in

Texas—22 weeks LMP—on April 22, 2020.”

I.

We summarize the pertinent background, which we have chronicled in

greater detail elsewhere. See Abbott II, 2020 WL 1685929, at *1–4; Abbott IV,

2020 WL 1844644, at *1–2. GA-09 is an emergency public health measure,

issued by the Governor of Texas on March 22, 2020, that postpones non-

essential surgeries and procedures until April 22 to combat the COVID-19

pandemic. It applies to all licensed healthcare providers in Texas, covers a

broad range of procedures, does not mention abortion, and contains life-and-

4 That is, eighteen weeks after the first day of a pregnant woman’s last menstrual

period.

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health exceptions committed to a physician’s judgment. Specifically, GA-09

requires healthcare professionals and facilities to:

postpone all surgeries and procedures that are not immediately

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

preserve the life of, a patient who without immediate performance

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

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

physician. 5

The order does not apply to procedures that, if performed under accepted

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

equipment [“PPE”] needed to cope with the COVID-19 disaster.” 6 GA-09 is

enforceable by criminal and administrative penalties and expires at 11:59 p.m.

on April 21, 2020. 7 See Abbott II, 2020 WL 1685929, at *2–4 & nn.10–12.

When ordering vacatur of the first TRO, we explained that Respondents’

challenge to GA-09 must satisfy the standards in Jacobson v. Massachusetts,

197 U.S. 11 (1905). Specifically, we held:

[W]hen faced with a society-threatening epidemic, a state may

implement emergency measures that curtail constitutional rights

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

relation” to the public health crisis and are not “beyond all

question, a plain, palpable invasion of rights secured by the

fundamental law.” Jacobson, 197 U.S. at 31. Courts may ask

whether the state’s emergency measures lack basic exceptions for

“extreme cases,” and whether the measures are pretextual—that

is, arbitrary or oppressive. Id. at 38. At the same time, however,

5 Tex. Exec. Order No. GA-09 (Mar. 22, 2020),

https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_

03-22-2020.pdf.

6 Id.

7 Id. On April 17, 2020, the Governor announced executive order GA-15, which

becomes effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020. As

discussed infra, GA-15 imposes similar—but not identical—requirements as those imposed

by GA-09.

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courts may not second-guess the wisdom or efficacy of the

measures. Id. at 28, 30.

Abbott II, 2020 WL 1685929, at *7 (cleaned up). We also articulated how the

Jacobson framework works with the Casey undue-burden analysis. Id. at *11

(discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). A

court should “ask[ ] whether GA-09 imposes burdens on abortion that ‘beyond

question’ exceed its benefits in combating the epidemic Texas now faces.” Id.

(quoting Jacobson, 197 U.S. at 31). We emphasized that this analysis would

“require[ ] careful parsing of the evidence” and that “[t]hese are issues that the

parties may pursue at the preliminary injunction stage, where Respondents

will bear the burden to prove, by a clear showing, that they are entitled to relief

. . . in any particular circumstance.” Id. at *11–12 (cleaned up).

The day following our mandamus, April 8, 2020, the district court:

(1) vacated its March 30 TRO; (2) cancelled the telephonic preliminary

injunction hearing previously scheduled for April 13; and (3) ordered the

parties to file a joint status report by April 15 outlining a schedule for a new

preliminary injunction hearing on a yet-unannounced date. That same day,

Respondents filed a new TRO application supported by one new declaration.

The next day, April 9, the district court convened a brief telephone conference

with the parties, during which the court declined to allow Petitioners either to

file a responsive pleading or submit evidence opposing the application. In doing

so, the court remarked to Petitioners, “[I]f I were to make a ruling that was

unsatisfactory to the State defendants before then, then you may head back to

the Circuit with it.” Transcript of 4/9/20 Tele. Conf. at 14:39.

Later that day, the court issued a new TRO. Abbott III, 2020 WL

1815587. Adopting Respondents’ proposed findings of fact and conclusions of

law, compare id. at *1–7, with Proposed TRO, App. 445–57, this TRO restrains

Petitioners from enforcing GA-09 as follows: (1) “as a categorical ban on all

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abortions provided by Plaintiffs”; (2) as to “medication abortions”; (3) as to

“procedural 8 abortion[s] [provided] to any patient who, based on the treating

physician’s medical judgment, would be more than 18 weeks LMP on April 22,

2020, and likely unable to reach an ambulatory surgical center in Texas or to

obtain abortion care”; and (4) as to “procedural abortion[s] [provided] to any

patient who, based on the treating physician’s medical judgment, would be past

the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”

Abbott III, 2020 WL 1815587, at *7.

On April 10, Petitioners again requested mandamus from our court, this

time seeking vacatur of the April 9 TRO. On April 10, we administratively

stayed the TRO except as to women who would reach 22 weeks LMP on April

22. Abbott IV, 2020 WL 1844644. On April 13, we denied an emergency stay,

and lifted the administrative stay, as to that part of the TRO applying to

medication abortions. Abbott V, 2020 WL 1866010. 9

On April 14, the district court set a telephonic preliminary injunction

hearing for April 29. Doc. 82. The court also extended the April 9 TRO—“in its

entirety under the same terms and conditions except as modified by [our

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

to what are more commonly called “surgical” abortions. See, e.g., Gonzales v. Carhart, 550

U.S. 124, 175 (2007) (Ginsburg, J., dissenting) (referring to “surgical abortions”) (quoting

Carhart v. Ashcroft, 331 F. Supp.2d 805, 1011 (D. Neb. 2004), aff’d, 413 F.3d 791 (8th Cir.

2005)); Stenberg v. Carhart, 530 U.S. 914, 924 (2000) (citing M. Paul et al., A Clinician’s

Guide to Medical and Surgical Abortion (1999)); Casey, 505 U.S. at 969 (Rehnquist, J.,

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

procedure except abortion”) (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 517

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

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

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

9 It is curious that the dissenting opinion accuses the majority of altering the

availability for abortion six times. In the first place, it was back-to-back TROs following a

mandamus that altered abortions availability. In the second place, the dissenting judge

joined the denial of the stay as to medication abortions.

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orders]”—until May 1, 2020, at 5:00 p.m. Id. The court stated there was “good

cause” for extending the TRO “so that the court and parties have adequate time

to prepare for [the April 29] hearing.” Id.

On April 15, the Governor issued executive order GA-15, which becomes

effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020.

GA-15 10 is similar to GA-09, but has some textual differences as well as an

additional exception for certain facilities. 11

10 Here is the pertinent text of the two orders, with differences noted in italics:

GA-09: [A]ll licensed health care professionals and all licensed health care facilities

shall postpone all surgeries and procedures that are not immediately medically

necessary to correct a serious medical condition of, or to preserve the life of, a

patient who without immediate performance of the surgery or procedure would

be at risk for serious adverse medical consequences or death, as determined by

the patient’s physician.

GA-15: All licensed health care professionals and all licensed health care facilities shall

postpone all surgeries and procedures that are not medically necessary to

diagnose or correct a serious medical condition of, or to preserve the life of, a

patient who without timely performance of the surgery or procedure would be at

risk for serious adverse medical consequences or death, as determined by the

patient’s physician[.]

See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files

/press/EO-GA-15_hospital_capacity_COVID-19_ TRANS_04-17-2020.pdf. Because the

TRO as issue in this petition only restrains enforcement of GA-09, we express no opinion

on the effect, if any, of the different language in GA-15.

11 The new exception applies to:

any surgery or procedure performed in a licensed health care facility that has

certified in writing to the Texas Health and Human Services Commission both:

(1) that it will reserve at least 25% of its hospital capacity for treatment of

COVID-19 patients, accounting for the range of clinical severity of COVID-19

patients; and (2) that it will not request any personal protective equipment from

any public source, whether federal, state, or local, for the duration of the COVID-

19 disaster.

Id. Again, we express no opinion on the effect, if any, of this new exception on the issues

in this litigation.

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II.

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

their respective jurisdictions and agreeable to the usages and principles of

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

Petitioners. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380

(2004); In re Gee, 941 F.3d 153, 157 (5th Cir. 2019). Mandamus is proper only

in “exceptional circumstances amounting to a judicial usurpation of power or a

clear abuse of discretion.” In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th

Cir. 2008) (en banc) (quoting Cheney, 542 U.S. at 380). An “abuse of discretion”

becomes a “clear abuse of discretion” when it “produce[s] a patently erroneous

result.” Id. at 310. The writ has issued “where it was the only means of

forestalling intrusion by the federal judiciary on a delicate area of federal-state

relations [and] where it was necessary to confine a lower court to the terms of

an appellate tribunal’s mandate.” Will v. United States, 389 U.S. 90, 95–96

(1967) (citing Maryland v. Soper, 270 U.S. 9 (1926) (federal-state relations)

and United States v. U.S. Dist. Ct., 334 U.S. 258 (1948) (effectuating appellate

mandate)).

Before prescribing this strong medicine, “[w]e ask (1) whether the

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

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

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

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

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

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

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

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

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

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

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

As in Abbott II, we address each prong in turn, beginning with the

second. Abbott II, 2020 1685929, at *5.

III.

A. Failure to Narrowly Tailor April 9 TRO

We first address two threshold errors in the April 9 TRO that

demonstrate Petitioners’ right to the writ. Because “the scope of injunctive

relief is dictated by the extent of the violation established, [t]he district court

must narrowly tailor an injunction to remedy the specific action which gives

rise to the order.” John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)

(cleaned up). The April 9 TRO fails this narrow tailoring requirement in two

obvious ways.

First, the TRO enjoins enforcement of GA-09 “as a categorical ban on all

abortions provided by Plaintiffs.” Abbott III, 2020 WL 1815587, at *7. But GA-

09 is obviously not a “categorical ban on all abortions.” Because it expires on

April 22, it is not a ban, but a generally applicable postponement of PPE-

consuming surgeries and procedures. And as we have explained already, GA-

09 facially exempts surgeries and procedures immediately necessary to

“correct a serious medical condition of, or to preserve the life of, a patient who

without immediate performance of the surgery or procedure would be at risk

for serious adverse medical consequences or death, as determined by the

patient’s physician.” Abbott II, 2020 WL 1685929, at *3. The district court

reached its overbroad construction of GA-09 by referring to the Attorney

General’s “interpretation” in a “press release,” which the court maintained

“has been adopted by the State Defendants.” Abbott III, 2020 WL 1815587, at

*2. But Abbott II already found this chain of reasoning flawed. We found “no

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reason to believe [the] press release has the force of law,” and, in any event,

the press release itself recognized GA-09 exempts abortions “medically

necessary to preserve the life or health of the mother.” Abbott II, 2020 WL

1685929, at *13 n.25. The district court also cited no evidence suggesting that

the “State Defendants” have adopted its overreading of GA-09.

Second, as now extended to May 1, the April 9 TRO is not “narrowly

tailor[ed]” to remedy any harm caused by GA-09 because it extends beyond the

expiration of GA-09. See John Doe #1, 380 F.3d at 818. By its terms, GA-09

lasts “until 11:59 p.m. on April 21, 2020.” 12 After that point, there will be no

“actual case or controversy” between the parties, John Doe #1, 380 F.3d at 814

(citation omitted), and no enforcement of GA-09 for a court to restrain. The fact

that the Governor has since announced that a new order—GA-15—will take

effect on April 22 does nothing to change this conclusion, as the extended TRO

at issue here applies only to GA-09. By purporting to restrain Petitioners past

the expiration date of GA-09, the district court exceeded its jurisdiction. See,

e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (a federal court’s judgment

must award “specific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be upon a

hypothetical state of facts”) (quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971)). Likewise, “since the scope of injunctive relief is dictated by the extent

of the violation established,” the relief was overbroad because no violation can

occur after 11:59 p.m. on April 21. See Califano v. Yamasaki, 442 U.S. 682, 702

(1979). We therefore conclude that Petitioners have demonstrated entitlement

to the writ.

12 Tex. Exec. Order No. GA-09 (Mar. 22, 2020),

https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_

03-22-2020.pdf.

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B. Failure to Dismiss Governor and Attorney General

Under Eleventh Amendment

Petitioners also argue they are entitled to mandamus relief because the

district court violated the Eleventh Amendment by purporting to enjoin the

Governor and Attorney General. We agree. In Abbott II, we instructed the

district court to “consider whether the Eleventh Amendment requires

dismissal of the Governor or Attorney General because they lack any

‘connection’ to enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908).”

Abbott II, 2020 WL 1685929, at *5 n.17 (citing City of Austin v. Paxton, 943

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

Cir. 2014)). The district court’s cursory analysis of this question in its April 9

TRO was wrong.

Ex parte Young allows suits for injunctive or declaratory relief against

state officials, provided they have sufficient “connection” to enforcing an

allegedly unconstitutional law. City of Austin, 943 F.3d at 997 (citing Raj v.

La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013)). Otherwise, the suit is

effectively against the state itself and thus barred by the Eleventh Amendment

and sovereign immunity. See Va. Office for Prot. & Advocacy v. Stewart, 563

U.S. 247, 253 (2011); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

Edelman v. Jordan, 415 U.S. 651, 663–69 (1974). If the official sued is not

“statutorily tasked with enforcing the challenged law,” then the requisite

connection is absent and “our Young analysis ends.” City of Austin, 943 F.3d at

998 (citing Morris, 739 F.3d at 746).

As to the Governor, the district court reasoned he has “some connection”

to GA-09 because of his “statutory authority [under] Texas Government Code

§ 418.012.” Abbott III, 2020 WL 1815587, at *6 (cleaned up). But the cited

section empowers the Governor to “issue,” “amend,” or “rescind” executive

orders, not to “enforce” them. Tex. Gov’t Code § 418.012. The power to

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promulgate law is not the power to enforce it. Cf. Martin v. Occupational Safety

& Health Review Comm’n, 499 U.S. 144, 152 (1991) (distinguishing between

the Secretary of Labor’s “powers to promulgate and to enforce national health

and safety standards”). The April 9 TRO addresses only “enforcing” GA-09

against plaintiffs who provide certain abortion procedures. Abbott III, 2020 WL

1815587, at *7. And we have already explained that violating GA-09 may result

in “administrative or criminal penalties,” Abbott II, 2020 WL 1685929, at *3

n.12, enforced by health and law enforcement officials and not the Governor.

Consequently, we hold the Governor lacks the required enforcement

connection to GA-09 and may not be sued for injunctive relief under the

Eleventh Amendment. See Morris, 739 F.3d at 746 (when challenged law “does

not specially task [Texas] Governor . . . with its enforcement, or suggest that

he will play any role at all in its enforcement,” Governor “is not a proper

defendant”).

As to the Attorney General, the district court reasoned that he has

“authority” to prosecute violations of GA-09 “at the request of local

prosecutors,” and that he has also “publicly threatened enforcement” against

abortion providers. Abbott III, 2020 WL 1815587, at *6. Neither rationale

establishes the Attorney General’s “connection” to enforcing GA-09 for Ex parte

Young purposes. Nothing in GA-09 tasks the Attorney General with enforcing

it. Speculation that he might be asked by a local prosecutor to “assist” in

enforcing GA-09, see Tex. Gov’t Code § 402.028, is inadequate to support an Ex

parte Young action against the Attorney General. See City of Austin, 943 F.3d

at 1000 (evidence that Attorney General “might . . . bring a proceeding to

enforce” the law insufficient under Ex parte Young). Nor does a “press release”

by the Attorney General, Abbott III, 2020 WL 1815587, at *2, show authority

to enforce GA-09 for Ex parte Young purposes. Here, the Attorney General did

not even threaten to enforce GA-09 in the disputed press release. The release

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warns that “[t]hose who violate the governor’s order will be met with the full

force of the law.” App. 31. The Attorney General threatened that GA-09 would

be enforced, not that he would enforce it. Moreover, our cases do not support

the proposition that an official’s public statement alone establishes authority

to enforce a law, or the likelihood of his doing so, for Young purposes. Cf., e.g.,

City of Austin, 943 F.3d at 1001 (applying Ex parte Young exception because

Attorney General sent “threatening letters” to enforce DTPA and was

authorized to enforce that law) (discussing NiGen Biotech, LLC v. Paxton, 804

F.3d 389, 392–95 (5th Cir. 2015)). Consequently, we hold the Attorney General

also lacks the required enforcement connection to GA-09 and may not be sued

for injunctive relief under the Eleventh Amendment. See City of Austin, 943

F.3d at 1002.

Mandamus is appropriate to “control jurisdictional excesses,” Gee, 941

F.3d at 158 (citation omitted), such as allowing suits against state officials in

violation of the Eleventh Amendment and sovereign immunity. See, e.g., Block

v. Tex. Bd. of Law Examiners, 952 F.3d 613, 617 (5th Cir. 2020) (“Under the

Eleventh Amendment, federal courts lack jurisdiction over suits against

nonconsenting states.”); Sissom v. Univ. of Tex. High Sch., 927 F.3d 343, 347

(5th Cir. 2019) (“[B]ecause the Eleventh Amendment textually divests federal

courts of jurisdiction over states, it is indispensable to assessing this court’s

jurisdiction.”). Petitioners have demonstrated a clear and indisputable right to

the writ on this ground.

C. Failure to Follow Abbott II Mandate

Petitioners are also entitled to mandamus because the district court, in

entering the April 9 TRO, failed to follow our mandate in Abbott II. Most

obviously, we instructed the district court to analyze GA-09 under “the

framework governing emergency exercises of state authority during a public

health crisis, established . . . in Jacobson.” Abbott II, 2020 WL 1685929, at *5.

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We articulated the Jacobson framework, id. at *6–7, and emphasized that

adhering to its narrow compass of judicial review is necessary to prevent courts

from “second-guess[ing] the wisdom or efficacy” of emergency public health

measures. Id. at *7. Yet the district court did not apply Jacobson: indeed, the

court did not even state what Jacobson’s framework is, but instead merely

cited Jacobson in passing in its conclusion. See Abbott III, 2020 WL 1815587,

at *6 (stating only that applying GA-09 to certain abortion categories “violates

the standards set forth in both [Casey] and [Jacobson]).” That flatly

contradicted our Abbott II mandate, which left no doubt that “[o]ur overriding

consideration” was that any further proceedings “adhere to the controlling

standards” in Jacobson “for adjudging the validity of emergency measures like

[GA-09].” Abbott II, 2020 WL 1685929, at *2.

The April 9 TRO violated the “mandate rule,” a particular manifestation

of the law-of-the-case doctrine barring reexamination of issues already decided

by an appellate court. See United States v. Smith, 814 F.3d 268, 273 (5th Cir.

2016). Under the mandate rule, a district court “must implement both the

letter and the spirit of the appellate court’s mandate and may not disregard

the explicit directives of that court.” United States v. Lee, 358 F.3d 315, 321

(5th Cir. 2004) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.

2002)). Thus, this court has held that a district court violated the mandate rule

when, after an appeal, a district court modified a consent decree “without

holding a hearing and demanding a more developed factual record.” League of

United Latin Am. Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 437–38 (5th

Cir. 2012) (LULAC II). Where a district court fails to fully implement the

mandate, a party may seek a writ of mandamus to enforce compliance. See

Kapche v. City of San Antonio, 304 F.3d 493, 500 (5th Cir. 2002).

Our Abbott II opinion plainly expected, as a foundational premise for

applying Jacobson, that the district court would allow the parties to adduce

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additional evidence about the effects of GA-09 in specific circumstances. Our

opinion made this impossible to miss. For example, we said that “[t]he district

court has scheduled a telephonic preliminary injunction hearing for April 13,

2020, when all parties will presumably have the chance to present evidence on

the validity of applying GA-09 in specific circumstances.” Abbott II, 2020 WL

1685929, at *2 (emphases added). Following that adversarial hearing, we

explained, “[t]he district court can then make targeted findings . . . about the

effects of GA-09 on abortion access.” Id. (emphasis added). We said the same

thing a few pages later: despite finding no evidence in the record that GA-09

violated Casey, we stated that “Respondents will have the opportunity to show

at the upcoming preliminary injunction hearing that certain applications of

GA-09 may” violate Casey “if they prove that, ‘beyond question,’ GA-09’s

burdens outweigh its benefits in those situations.” Id. at *9 (first and third

emphases added). Similarly, after canvassing the record, we declined to decide

whether a more narrowly tailored injunction would satisfy Jacobson because

“parties may pursue [those issues] at the preliminary injunction stage,” then

scheduled for April 13. Id. at *12 (emphasis added). And again: in assessing

whether Respondents had any evidence showing GA-09 pretextually targeted

abortion, we found “no evidence . . . [on] the record before us” of pretext, but

stated that “Respondents will have the opportunity . . . to present additional

evidence in conjunction with the district court’s preliminary injunction

hearing.” Id. at *13 (emphasis added).

To be sure, the district court could have rescheduled the preliminary

injunction hearing (as it now has done, to April 29) or afforded the parties some

other way of presenting new evidence on the burdens and benefits of GA-09 in

specific circumstances. But our opinion left no doubt that an additional

evidentiary showing was necessary to properly apply Jacobson in particular

circumstances. Among other gaps in the record, for example, was evidence

15

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showing what PPE is being used in medication and surgical abortions during

the current pandemic, or evidence showing the standard of care for those

procedures during the pandemic. See infra Part III.D.1.a. Without any means

of answering critical questions like those, the district court lacked any basis

for finding, as Jacobson requires, that GA-09 lacks a “real or substantial

relation” to the health crisis, or that “beyond all question” it “plain[ly]” violates

Casey. Abbott II, 2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31).

It is no answer to say that a TRO may be based on a one-sided

evidentiary record. See Fed. R. Civ. P. 65(b)(1) (allowing issuance of TRO

without notice); Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965) (observing

that TROs are “generally issued ex parte or after a hearing of a summary

character”). Our plain instructions in Abbott II were that properly applying

Jacobson to GA-09 required “additional evidence” targeted to specific

circumstances. Abbott II, 2020 WL 1685929, at *13. It is also no answer to say

that our decision did not tell the district court not to cancel the preliminary

injunction hearing and enter a different TRO. The mandate rule requires the

district court to “implement both the letter and the spirit of the appellate

court’s mandate.” Lee, 358 F.3d at 321. Our decision mentioned the then-

upcoming preliminary injunction hearing seven times as a forum for adducing

evidence from both sides about specific applications of GA-09. See Abbott II,

2020 WL 1685929, at *2, *4 n.16, *8 n.19, *9, *11 n.24, *12, *13. The district

court flouted both the letter and the spirit of our mandate by cancelling that

adversarial hearing, convening a snap-TRO “hearing” at which one side was

barred from offering evidence or argument, and then immediately issuing a

new TRO based on evidence we had already ruled insufficient to show a

violation of Jacobson and Casey. See LULAC II, 675 F.3d at 438.

The LULAC litigation provides helpful guidance. In LULAC I, this court

vacated the modification of a consent decree because “the paucity of the record

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in [that] case provided an insufficient basis for the district court to determine

that modification was warranted.” League of United Latin Am. Citizens, Dist.

19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011) (LULAC I). This court

instructed that on remand, “the district court should permit supplemental

filings and conduct proceedings, as necessary, to develop a sufficient

record.” Id. at 439–40. Yet on remand, the district court entered a new

“temporary” modification of the consent decree, without “permit[ting] the

parties to conduct discovery, or hold an evidentiary hearing to receive

competing expert and lay testimony, or even offer [one party] a substantial

opportunity to rebut the evidence that [the other parties] presented.” LULAC

II, 675 F.3d at 438. The LULAC II panel vacated that new “temporary” order,

holding that “[b]y approving a modification of the Consent Decree without

holding a hearing and demanding a more developed factual record, the district

court failed to follow the ‘letter and spirt’ of the LULAC I mandate.” Id. at 438.

So too here. After explaining that the factual record was insufficient to

support the TRO in Abbott I, we instructed that after the “preliminary

injunction hearing scheduled for April 13, 2020” at which the parties could

“present additional evidence,” Abbott II, 2020 WL 1685929, at *13, the district

court could find that GA-09 constituted an undue burden if “beyond question”

the law’s burdens exceeded its benefits. Id. at *11. “The district court was

required to do this analysis” the first time, we explained, and “that analysis

would have required careful parsing of the evidence.” Id. Yet on remand the

district court entered a second TRO “without holding a hearing and demanding

a more developed factual record.” See LULAC II, 675 at 438. In doing so, “the

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district court failed to follow the ‘letter and spirit’ of the” Abbott II mandate.

See id. 13

To be sure, Respondents suggest that the April 9 TRO is based on a “more

robust” record than the one on which the district court based its March 30 TRO.

But on critical points, which we analyze in more detail below, the April 9 TRO

relied on the same ten declarations already before the district court when it

issued the March 30 TRO. 14 Furthermore, after the March 30 TRO issued,

Respondents filed supplemental declarations in the district court record—and

then proceeded to use those declarations to defend against mandamus in our

court. 15 In granting mandamus, we reviewed the record—including those

13 There is one minor distinction between this case and LULAC. As here, after the

district court entered the second “temporary” modification of the order, the intervenor-

appellant sought mandamus. See LULAC II, 675 F.3d at 437. Unlike here, however, the

LULAC II panel denied the writ because the second order, though labeled “temporary,” was

“not a temporary restraining order,” in substance, and could be appealed as a preliminary

injunction. See LULAC II, 675 F.3d at 437 n.2 (citing LULAC v. City of Boerne, No. 12-50111,

slip op. at 2–3). In this litigation, we held that this court lacked jurisdiction over an appeal

of the extended April 9 order, concluding that it was in effect TRO. See Planned Parenthood

Ctr. for Choice v. Abbott, No. 12-50314, slip op. at 2. But that is a distinction without a

difference: Mandamus is an appropriate remedy for violations of the mandate rule. See Will,

389 U.S. at 96 (explaining mandamus is appropriate where “necessary to confine a lower

court to the terms of an appellate tribunal’s mandate”); Kapche, 304 F.3d at 500 (“[T]he

appropriate action at this point would appear to involve the issuance of a writ of mandamus,

compelling the district court to comply with our prior mandate.”).

14Compare Abbott III, 2020 WL 1815587, at *2–6 (relying, inter alia, on declarations

from Barraza, Dewitt-Dick, Ferrigno, Hagstrom Miller, Klier, Lambrecht, Schutt-Aine,

Wallace, Connor, and Jane Doe), with Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-

cv-00323-LY (W.D. Tex.) (Dkt. Nos. 7 & 29) (Mar. 25, 2020 & Mar. 30, 2020) (listing same

declarations as exhibits to TRO application).

15 Compare Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D.

Tex.) (Dkt. No. 49) (Apr. 2, 2020) (noting “supplemental filing” of declarations supporting

preliminary injunction), with Abbott II, ECF 53 at 4, 6, 14, 17–21, 23 (5th Cir. Apr. 2, 2020)

(No. 20-50264) (opposition to mandamus relying on supplemental declarations). Indeed,

Respondents’ opposition conceded that it “cite[s] to declarations filed in the district court on

April 2, 2020,” in support of its preliminary injunction motion. ECF 53 at 4 n.2 (citing Dist.

Ct. Dkt. No. 49).

18

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supplemental affidavits—and found the record before us failed to support the

conclusion that GA-09 violates Jacobson and Casey. 16 The district court hardly

answered Abbott II’s call for more evidence by relying on evidence we had

already reviewed and found wanting. Moreover, we called for additional

evidence from both sides. See Abbott II, 2020 WL 1685929, at *2 (emphasizing

“all parties” would be able to “present evidence on the validity of applying GA-

09 in specific circumstances”). Yet the district court barred Petitioners from

proffering new evidence or argument with respect to the April 9 TRO.

Mandamus is justified to correct the district court’s failure to follow our

Abbott II mandate. See, e.g., Will v. United States, 389 U.S. 90, 95–96 (1967)

(explaining that “the writ [of mandamus] has been invoked . . . where it was

necessary to confine a lower court to the terms of an appellate tribunal’s

mandate”). This is all the more vital here because the failure to follow our

mandate led the district court to “embarrass the executive arm of the

Government” and “intru[de] . . . on a delicate area of federal-state relations.”

Cheney, 542 U.S. at 381 (cleaned up). 17 Here too, Petitioners have

demonstrated their clear and indisputable right to the writ.

16 See Abbott II, 2020 WL 1685929, at *9 (“[I]t cannot be maintained on the record

before us that GA-09 bears ‘no real or substantial relation’ to . . . the COVID-19 pandemic.”)

(quoting Jacobson, 197 U.S. at 31); id. at *11 & n.23–24 (noting conflicting evidence regarding

whether abortion procedures consume PPE based on “[o]ur own review of the record”); id. at

*13 (“[O]n this record, we see no evidence that GA-09 was meant to exploit the pandemic in

order to ban abortion or . . . unreasonably delay abortions” (cleaned up)); id. (“Based on that

record, we cannot say that GA-09 is a pretext for targeting abortion.”).

Curiously, and as a possible further indication that the district court failed to follow

17

our Abbott II mandate, the April 9 TRO “incorporate[d] by reference” the conclusions of law

from Abbott I that this court held were mistaken in Abbott II. See Abbott III, 2020 WL

1815587, at *7.

19

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D. Patently Erroneous Results and Usurpation of the State’s

Authority to Craft Emergency Health Measures

Mandamus relief is also justified because the district court’s failure to

follow our Abbott II mandate led to patently erroneous results and usurped the

state’s authority to craft emergency public health measures. See In re

JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up)

(mandamus warranted where there has been a “usurpation of judicial power”

or “a clear abuse of discretion that produces patently erroneous results”). We

discuss these problems below, both to explain why we grant mandamus as to

two of the three categories of abortion procedures restrained by the April 9

TRO, and also to provide guidance at the preliminary injunction stage.

1. The April 9 TRO Patently Erred by Exempting Medication Abortions

from GA-09

There is no constitutional right to any particular abortion procedure.

Gonzales v. Carhart, 550 U.S. 124, 164–65 (2007). Yet the district court bluntly

concluded that GA-09’s temporary postponement of one kind of early-abortion

method—medication abortions—is “beyond question” a violation of Casey. See

Abbott III, 2020 WL 1815587 at *6 (concluding, “based on the court’s findings

of fact, it is beyond question that [GA-09’s] burdens outweigh the order’s

benefits as applied to . . . medication abortion”). Despite our instructions in

Abbott II, the district court failed to compile a record that remotely justifies

this conclusion. Indeed, the record before the district court—which we already

reviewed in Abbott II and found inconclusive—does not provide the tools even

to answer the pertinent factual question. That question is not, as the district

court evidently thought, whether medication abortion consumes PPE during

normal circumstances, but instead whether it does so under the pandemic

conditions Texas faces and GA-09 addresses. As for the legal question, the

district court’s analysis fails to address why temporary postponement of one

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type of early-abortion method is “beyond question” unconstitutional if it leaves

open other means of obtaining an abortion. Restraining state officials from

implementing an emergency health measure based on such findings is “a clear

abuse of discretion that produces patently erroneous results.” Abbott II, 2020

WL 1685929, at *5 (quoting JPMorgan Chase, 916 F.3d at 500 (cleaned up)).

a. Failure to consider PPE usage and standard of care during the

pandemic

As a general matter, we observe that the regulation of medication

abortion in Texas differs from some other states. In Texas, “[b]efore the

physician gives, sells, dispenses, administers, provides, or prescribes an

abortion-inducing drug, the physician must examine the pregnant woman.”

Tex. Health & Safety Code § 171.063(c). During that examination, the patient

must receive an ultrasound examination. Tex. Health & Safety Code

§ 171.012(a)(4). The physician cannot provide the patient an abortion until the

second visit. Id. And the patient must schedule a follow-up appointment to

ensure the abortion is complete. Tex. Health & Safety Code § 171.063(e)-(f); 25

Tex. Admin. Code 139.53(b)(4). 18

The district court found, as a matter of fact, that “[p]roviding medication

abortion does not require the use of any PPE.” Abbott III, 2020 WL 1815587,

at *3, ¶ 15. The pertinent question, however, is whether medication abortions

require PPE during the COVID-19 pandemic. See GA-09 (stating that “a

shortage of hospital capacity or [PPE] would hinder efforts to cope with the

COVID-19 disaster”). Respondents submitted no evidence on that question:

they neither stated what PPE they were consuming “during the COVID-19

disaster,” nor submitted evidence establishing the standard of care for

18 At the preliminary injunction stage, a relevant question is whether these acts

ancillary to a medication abortion, such as the ultrasound or follow-up appointment, are to

be considered when determining PPE usage.

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medication abortions during the pandemic. Scour the twenty declarations

Respondents submitted to support their claim. Does any testify that during the

current pandemic, abortion providers are not wearing masks? No. Nor would

one expect such a statement when everyday life now presents police officers,

priests, mail carriers, grocery store cashiers, gas station attendants, and retail

clerks wearing them every day. 19 The question, then, is not whether

medication abortions consume PPE in normal times, but whether they

consume PPE during a public health emergency involving a spreading

contagion that places severe strains on medical resources. See Abbott II, 2020

WL 1685929, at *1. The record contains scant material to answer that

question—certainly not to a degree to permit the conclusion that merely

postponing medication abortions “beyond question” violates the right to

abortion.

The April 9 TRO did not analyze PPE consumption for medication

abortions during the COVID-19 pandemic. The district court, with one minor

exception, relied exclusively on declarations that were before it when it issued

the March 30 TRO. See Abbott III, 2020 WL 1815587 at *3, ¶¶ 10, 13, 15

(relying on prior declarations); but see id. ¶ 14 (relying on new declaration). In

Abbott II, we explained that those declarations were “unclear” as to “how PPE

is consumed in medication abortions.” See Abbott II, 2020 WL 1685929 at *11.

Those declarations did not, and still do not, speak to the question of PPE usage

during the present public health emergency.

19 For their part, Petitioners did submit evidence showing the standard of care may

have changed and that abortion providers may be consuming more PPE because of COVID-

19. See, e.g., Harstad Decl. at ¶ 4, App. 230 (“Due to the current COVID-19 outbreak, the

specific type of mask that is currently required is a N95 mask.”). But our point is not to weigh

the evidence. Rather, the point is to demonstrate that the record before the district court does

not purport to answer the pertinent question about PPE use during the pandemic.

22

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Moreover, there has been no consideration yet how the pandemic has

affected the standard of care for abortion. No record evidence supports the

contention—which provides the unstated premise of the district court’s

findings—that the standard of care for medication abortion during the COVID-

19 is identical to the normal standard. Relatedly, the record does not establish

what PPE abortion providers presently use to protect against the spread of the

virus. Indeed, some record evidence indicates that reasonable abortion

providers would change PPE usage during the pandemic. For instance, the

state’s infectious disease expert declared that “[n]ot wearing face masks and

other PPE when caring for patients who are not under investigation for COVID

19 . . . exposes health care workers to transmission of infection” from

asymptomatic patients. Marier Decl. ¶ 12, App. 242.

The declarations the district court cited (which are exclusively those of

Respondents) consider medication abortion only during normal times. Abbott

III, 2020 WL 1815587 at *3, ¶ 15. One physician describes a clinic’s PPE usage

during an “average week.” Wallace Decl. ¶ 12. That says nothing about PPE

usage during a pandemic. Cf. Klier Declaration ¶ 11, App. 110 (“Before the

COVID-19 outbreak, Austin Women’s used no PPE for medication abortion.”)

(emphasis added). And a declaration recently filed in the district court clarifies

that at least one plaintiff began using surgical masks in response to COVID-

19. See Rosenfeld Decl. ¶ 13 (“Since the COVID-19 outbreak began, Houston

Women’s Clinic has . . . provided our staff with surgical masks (not N95

respirators) . . . .”). 20

20Amici have submitted a report that one of the plaintiff clinics has been operating

without sufficient PPE. See Amicus Brief of 19 States in Support of Petitioners at 16 n. 8

(citing Alex Caprariello, Planned Parenthood employees laid off, claim it’s retaliation for

voicing concerns (KXAN, Apr. 10, 2020), https://www.kxan.com/news/local/austin/planned-

parenthood-employees-laid-off-claim-its-retaliation-for-voicing-concerns/) (“[The former staff

23

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In sum, the relevant question is not what PPE is consumed during

normal times but “during the COVID-19 disaster,” as GA-09 states. Cf. Abbott

II, 2020 WL 1685929 at *12 (“[T]he essence of equity is the ability to craft a

particular injunction meeting the exigencies of a particular situation.”). The

failure even to consider that question—as well as to support its findings with

record evidence—was patently erroneous. 21

b. Usurping state authority to craft emergency health measures

As we explained before, Jacobson prohibits courts from “usurp[ing] the

state’s authority to craft measures responsive to a public health emergency.”

See Abbott II, 2020 WL 1685929, at *12. Courts have no authority to ask

whether a “particular method [is]—perhaps, or possibly—not the best.”

Jacobson, 197 U.S. at 35. Instead, courts may ask only whether the state has

acted in an “arbitrary, unreasonable manner.” Id. at 28. During a pandemic

emergency, public authorities must make numerous, complex judgment calls.

GA-09 addresses one of the most vexing: how to prevent critical strains on

medical resources during a surge in contagious disease. Abbott II, 2020 WL

1685929, at *1–2. Respondents have submitted declarations of infectious

disease experts who believe GA-09 is profoundly misguided. See, e.g., Bassett

member] said there is not enough PPE at the clinics, workers are being forced to do non-

essential work for patients in-person and they’re not being offered paid sick leave if they come

down with COVID-19 symptoms.”)). This may be relevant to assessing the benefits of GA-09

in combatting the spread of COVID-19.

21 Additionally, Respondents concede medication abortions sometimes result in

hospitalization. See App. 129. The FDA label for Mifeprex states that hospitalization “related

to medical abortion” occurs in up to 0.6% of cases. App. 129–30 (describing use of Mifeprex);

U.S. Food & Drug Admin., Mifeprex Label 17, Table 2,

https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687s020lbl.pdf. Applying

this figure to Petitioners’ uncontested evidence that about 17,000 medication abortions were

performed in Texas in 2017, see App. 222, medication abortions can be expected to result in

slightly over 100 hospitalizations per year in Texas—or about two per week. In comparing

the benefits and burdens of GA-09, the district court must weigh those hospitalizations

against the delay in women obtaining a medication abortion.

24

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Decl. ¶ 6–8, App. 311; Sharfstein Decl. ¶ 9–12, App. 280–81. Texas authorities

believe, to the contrary, that GA-09 is critical to protect the state’s citizens and

has supported that view with its own medical experts. See, e.g., Marier Decl. ¶

12, App. 242. The Supreme Court, and this court, have already explained how

to resolve such an impasse: “[I]f the choice is between two reasonable responses

to a public crisis, the judgment must be left to the governing state authorities.”

Abbott II, 2020 WL 1685929, at *12 (citing Jacobson, 197 U.S. at 30); cf. Dep’t

of Commerce v. New York, 139 S. Ct. 2551, 2570 (2019) (explaining, in context

of different legal standard, that “the choice between reasonable policy

alternatives in the face of uncertainty was the Secretary’s to make”). The

district court’s findings in support of the April 9 TRO failed to heed this basic

constraint on judicial power.

In the April 9 TRO, as in the one before, the district court’s weighing of

the public interest substituted its own opinion for the judgment of the

governing authorities. What we said before applies here:

[T]he district court did little more than assert its own view of the

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

explanation of its conclusion that the public health benefits from

an emergency measure like GA-09 are “outweighed” by any

temporary loss of constitutional rights.

Abbott II, 2020 WL 1685929 at *12 (discussing Abbott I, 2020 WL 1502102 at

*3). In the April 9 TRO, the district court concluded in cursory fashion that

Plaintiffs and their patients would “suffer irreparable harm” absent a TRO,

that the “balance of equities favors Plaintiffs” and that a TRO “serves the

public interest.” Abbott III, 2020 WL 1815587 at *6. The court added “that

entry of a [TRO] to restore abortion access would serve the State’s interest in

public health.” Id. We find the district court’s approach as flawed this time as

the last.

25

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To begin with, the district court ignored the entire point of a mitigation

measure like GA-09. The concept of “flattening the curve” has become all-too-

familiar during the pandemic: as applied to GA-09, it means that delaying

procedures now may prevent short-term exhaustion of critical medical

resources. This is one stated goal of GA-09: it does not prohibit non-essential

procedures, it delays them. As its findings show, however, the district court

preferred to second-guess this strategy. For instance, the district court found

that delaying abortion access “will not conserve PPE or hospital resources”

because women will remain pregnant and thus consume more PPE in the long

run. See Abbott III, 2020 WL 1815587 at *4, ¶¶ 20–23. But that is not a policy

choice federal judges are permitted to make during a public health crisis, if

ever. 22 Public authorities are entitled to make a different calculation to protect

citizens: even if GA-09 may increase consumption of medical resources in the

long run, decreasing consumption now will help weather the immediate surge

of COVID-19 cases. 23 Instead of re-weighing the state’s cost-benefit calculus, a

federal court “must assume that, when [GA-09] was [issued], the [Governor of

Texas] was not unaware of these opposing theories, and was compelled, of

necessity, to choose between them.” Jacobson, 197 U.S. at 30. The district court

patently erred by doing the opposite. See Jacobson, 197 U.S. at 31; Abbott II,

2020 WL 1685929, at *7.

Similarly, the district court found that GA-09 did not promote the public

health, in part, because some women might travel to other states to obtain

22Likewise, the dissenting opinion misunderstands the record regarding PPE use for

pregnancy during the pandemic. Tests and visits have been reduced for pregnancy just as

other medical diagnosis and well visits have.

23Nor did the district court consider that months will pass between the time when a

woman can generally lawfully obtain an abortion (20-weeks gestation) and the full-term of a

pregnancy (40-weeks gestation).

26

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abortions. See Abbott III, 2020 WL 1815587 at *5, ¶ 25. But the evidence shows,

as does common sense, that an emergency measure like GA-09 weighs heavily

on people suffering all kinds of health issues. One physician declares she has

postponed or canceled surgeries for “patients with possible uterine cancer and

cervical cancer diagnoses who are in need of surgeries, as well as patients with

heavy bleeding who need surgery but where we can temporarily control the

bleeding with medication.” Thompson Decl. ¶ 4, App. 235. It is possible that

those patients too may travel to other states to obtain desired procedures.

Moreover, evidence that some women travel to other states to receive an

abortion does not demonstrate that GA-09 increases the risk of COVID-19

transmission. Such a claim would require comparing the amount of travel that

GA-09 has increased with the amount of travel it has reduced. That calculation

is uncertain: One respondent provider declares that some women “come from

over a hundred miles to receive care at our clinic.” Dewitt-Dick Decl. ¶ 22, App.

87. Another testifies that patients at her clinic “hail from all over Texas.”

Ferrigno Decl. ¶ 30, App. 95.

A court must assume that the public health experts at the Texas

Department of State Health Services—not to mention the CDC, the U.S.

Surgeon General, and the Centers for Medicare and Medicaid Services—

weighed these difficult trade-offs between medical care and public health.

Jacobson, 197 U.S. at 30. Federal judges get no vote on the matter. As the

Supreme Court instructed: “[N]o court . . . is justified in disregarding the action

of the [Governor] simply because in its opinion that particular method was—

perhaps, or possibly—not the best.” Jacobson, 197 U.S. at 35 (cleaned up). The

district court’s disregard of that command usurped the power of the state in a

public health emergency.

c. Failure to carefully parse record evidence

27

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The April 9 TRO also failed to “careful[ly] pars[e] the evidence,” as

instructed by our previous mandate. See Abbott II, 2020 WL 1685929 at *11.

For instance, the district court did not discuss, or even cite, a single declaration

of submitted by Petitioners. 24 It did not explain why, to take a conspicuous

example, it disregarded the declaration of the state’s infectious disease expert.

Nor did the district court mention the undisputed evidence that, “[i]f even one

person providing care is carrying COVID-19 but not yet symptomatic, the

results could be devastating if that person is not equipped with proper PPE.”

Abraham Decl. ¶ 4, App. 225. The district court did not explain whether it

disagreed with this statement or thought it was inapplicable to abortion

providers. Nor did the district court mention record evidence indicating that

N95 masks are now required for surgical abortions to be performed safely. See

Harstad Decl. ¶ 4. 25 We say this, not to make findings ourselves, but to show

why the delicate inquiry in this case requires “careful parsing of the evidence.”

Abbott II, 2020 WL 1685929 at *11. A scalpel must be employed, not a rubber

stamp.

24 As a general matter, Federal Rule of Civil Procedure 52 does not require “punctilious

detail [or] slavish tracing of the claims issue by issue and witness by witness.” Schlesinger v.

Herzog, 2 F.3d 135, 139 (5th Cir.1993).Certain classes of cases, however, require district

courts to address contrary evidence. See, e.g., Houston v. Lafayette County, Miss., 56 F.3d

606, 612 (5th Cir.1995) (voting rights); Lopez v. Current Director, 807 F.2d 430, 434 (5th

Cir.1987) (employment discrimination). Because we specifically required such an

undertaking here, Abbott II, 2020 WL 1685929, at *11, the district court’s failure to do so

violated the mandate rule. See LULAC, 675 F.3d at 438.

25 Consider another jarring incongruity regarding surgical abortions: Petitioners

submitted a declaration from a physician stating that any physician performing a surgical

abortion must use a face mask and that “[d]ue to the current COVID-19 outbreak, the specific

type of mask that is currently required is a N95 mask.” Harstad Decl. at ¶ 4, App. 230. This

declaration is striking, in light of the district court’s finding that “[o]nly one physician

associated with Plaintiffs has used an N95 mask since the beginning of the COVID-19

pandemic, and that physician has been reusing the same mask over and over.” Abbott III,

2020 WL 1815587 at *4, ¶ 19.

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Moreover, the district court’s wholesale adoption of Respondents’

proposed findings resulted in findings that are not supported by the record.

One example may suffice. The district court found that, “[a]lthough some

medication abortions require a follow-up aspiration procedure, the number of

those cases is exceedingly small and can generally be handled in an outpatient

setting.” Abbott III, 2020 WL 1815587, at *3, ¶ 14 (citing Levison Decl. ¶ 9;

Schutt-Aine Decl. ¶ 12). The Levinson paragraph cited speaks only to the

frequency of hospitalization; it says nothing about how many medication

abortions require follow-up aspiration. See App. 373. Nor does the cited Schutt-

Aine paragraph provide any support for the frequency of follow-up aspiration.

See App. 129. Schutt-Aine states that “[m]ajor complications—defined as

complications requiring hospital admission, surgery or blood transfusion—

occur in less than one-quarter of one percent (0.23%) of all abortion cases.” App.

129 (citing Ushma Upadhyay, et al., Incidence of Emergency Department Visits

and Complications After Abortion, 125 Obstetrics & Gynecology, 175 (2015)).

But Figure 1 of the cited article clarifies that subsequent uterine aspirations

(i.e., surgical abortions) were not considered “surgery” within the meaning of

the article. See Upadhyay, 125 Obstetrics & Gynecology at 176.

Petitioners, by contrast, submitted evidence demonstrating the rate of

medication abortions resulting in incomplete abortions, which are treated

either with a repeat dose of medication or aspiration. 26 In our court,

26 See American College of Obstetricians and Gynecologists, Clinical Guidelines:

Medical management of first-trimester abortion, 89 Contraception 148, 149 (2014),

https://www.contraceptionjournal.org/article/S0010-7824(14)00026-2/pdf (estimating that 4–

8% of mifepristone-induced abortions at seven weeks gestation, and more than 15% after

seven weeks gestation, result in incomplete abortions).

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Respondents contend those numbers are outdated. 27 Analysis of such

conflicting evidence is hard; it requires careful parsing. We reach no

conclusions on the point. District courts, who can make fact findings after

adversarial hearings, are better suited to the task. Here, however, the district

court declined to avail itself of those tools, instead cancelling the scheduled

preliminary injunction hearing and issuing a second TRO that adopted all 30

of Respondents’ proposed findings without citing or discussing a single

declaration submitted by Petitioners. To be sure, a district court need not

“recite every piece of evidence supporting its findings.” Schlesinger, 2 F.3d at

139. But “the record must nevertheless support the district court’s decision.”

Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993).

Here the record fails to do so.

The failure to parse the evidence led the district court to reach legally

erroneous results in two respects. First, under Whole Woman’s Health v.

Hellerstedt, to determine whether a law “unduly burdens” the abortion right,

a court must “consider the burdens a law imposes on abortion access together

with the benefits those laws confer.” 136 S. Ct. 2292, 2309–10, 2319 (2016).

The April 9 TRO does not meaningfully weigh either one. As noted, the order

does not cite or discuss a single declaration submitted by Petitioners explaining

the benefits of GA-09. Nor does the order articulate the burden of a delay or

why that delay should be considered a “ban” on abortion. The record belies any

such notion. Medication abortion is available until 10 weeks LMP, and surgical

abortion until 22 weeks LMP. Given that GA-09 had only a 30-day duration,

no woman would be pushed beyond the legal limit by a 30-day delay in

obtaining a medication abortion. Moreover, health risks of a delay are

27 See Opp. to Mandamus at 19 (citing U.S. Food & Drug Admin., Mifeprex 13 tbl.3

(rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687

s020lbl.pdf).

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mitigated because GA-09, by its terms, permits procedures that a patient’s

physician determines are “immediately medically necessary to correct a

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

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

adverse medical consequences or death.” Abbott II, 2020 WL 1685929, at *10

(quoting GA-09). The district court factored none of this into its cursory

analysis. That weighing of burdens versus benefits would be inadequate under

Hellerstedt in normal circumstances. A fortiori it is inadequate under the

Jacobson framework, which asks whether burdens outweigh the benefits

“beyond question.” 197 U.S. at 31. Moreover, as we have explained, the

Supreme Court has approved “a wide variety of abortion regulations . . . that

in practice can occasion real-world delays of several weeks.” Abbott II, 2020

WL 1685929 at *10 (quoting Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir.

2017) (en banc) (mem.) (Kavanaugh, J., dissenting)). That leads us to the

second legal error resulting from the district court’s findings: they treat a

medication abortion as an absolute right. But the constitutional right to

abortion does not include the right to the abortion method of the woman’s (or

the physician’s) choice. Gonzales, 550 U.S. at 164–65. On this record it was

patently erroneous to find that a mere 30-day postponement of medication

abortions “beyond question” violates Casey.

d. The Pennhurst doctrine.

We address an additional point that arose during our consideration of

Petitioners’ emergency stay motion, because it may become important as the

litigation continues. In the April 9 TRO, the district court adopted

Respondents’ proposed fact finding that “[m]edication abortion is not a surgery

or procedure.” Abbott III, 2020 WL 1815587 at *3, ¶ 10; cf. ECF 56-2, Plaintiff’s

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Proposed Order ¶ 10 (“Medication abortion is not a surgery or procedure.”). 28

When considering Petitioners’ stay motion, we expressed uncertainty as to

whether medication abortions were covered by GA-09, given ambiguity in the

Texas Medical Board’s guidance on the order. See Abbott V, 2020 WL 1866010,

at *3. For that reason, we denied a stay as to the part of the TRO applicable to

medication abortions, while “express[ing] no ultimate decision on the ongoing

mandamus proceeding.” Id. We have since benefitted from additional briefing

on this issue. Given the lack of legal analysis in the April 9 order, we are unable

to discern what impact the district court’s finding had on its decision to grant

the TRO. Going forward, however, we caution that any relief ordering a state

official to comply with state law would be barred by the Pennhurst doctrine.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

Under Pennhurst, a federal court may not grant “relief against state

officials on the basis of state law.” Id. at 106. A federal court may determine

state officials’ enforcement of state law violates a federal right, but it may not

order state officials to conform their conduct to state law. See, e.g., Williams On

Behalf of J.E. v. Reeves, 19-60069, 2020 WL 1638411, at *7 (5th Cir. Apr. 2,

2020) (under Pennhurst, “the rule announced in Ex parte Young cannot be used

to redress a state official’s violation of state law”); Hughes v. Savell, 902 F.2d

28 It is unclear how Respondents tie this contention (which revolves around the

interpretation of GA-09) to their substantive due process claim, which is the only claim they

pursued on their first and second applications for TROs. In any event, Respondents may

develop their arguments further at the preliminary injunction stage, if they choose. Finally,

based on this finding and others, the dissenting opinion, infra at 18–21, suggests that the

April 9 TRO concludes that GA-09 was a “pretext” for targeting abortion. But we discern no

such conclusion in the April 9 TRO. Instead, in its conclusions of law, the April 9 TRO merely

states that GA-09’s “burdens outweigh [its] benefits,” Abbott III, 2020 WL 1815587 at *6, and

makes no legal finding that GA-09 pretextually targets abortion over other medical

procedures. Respondents, of course, may choose to develop such a claim at the preliminary

injunction stage, but we do not find that legal issue presented by the April 9 TRO.

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376, 378 (5th Cir. 1990) (Pennhurst bars “a claim that state officials violated

state law in carrying out their official responsibilities”).

To the extent the April 9 TRO finds that GA-09 violates Casey by

postponing medication abortions, we have already explained that it patently

erred. But to the extent the TRO might be construed to order relief on a claim

that state officials failed to conform their actions to state law, the TRO would

violate Pennhurst. State health officials, who are Petitioners here, insist that

GA-09’s postponement of “procedures” encompasses medication abortions.

Pennhurst bars a federal court from considering a claim that those officials

failed to comply with a proper interpretation of the state executive order.

See, e.g., Hughes, 902 F.3d at 378 (quoting Pennhurst, 465 U.S. at 106)

(explaining that “instruct[ing] state officials on how to conform their conduct

to state law . . . conflicts directly with the principles of federalism that underlie

the Eleventh Amendment”). 29 The district court should be aware of this issue

in further proceedings.

2. The April 9 TRO Patently Erred by Exempting 18-Week

Gestation from GA-09

We turn to the part of the April 9 TRO blocking application of GA-09 as

to patients who “would reach 18 weeks LMP by April 21, 2020,” and who, in a

physician’s judgment, are “unlikely to be able to obtain an abortion at an

[ambulatory surgical center] before [her] pregnancy reaches the 22-week

cutoff.” Abbott III, 2020 WL 1815587, at *6. For those patients, the district

court concluded GA-09 would amount to “an absolute ban on abortion” that

29Such a claim would need to be brought in state court. Cf. Russell v. Harris Cty., CV

H-19-226, 2020 WL 1866835, at *12 (S.D. Tex. Apr. 14, 2020) (abstaining, under R.R. Comm’n

v. Pullman Co., 312 U.S. 496 (1941), from hearing COVID-19 related equal protection and

due process claims because there was “a pending state-court lawsuit challenging the

Executive Order that raises questions about novel, uncertain issues of state law”) (referring

to Tex. Crim. Def. Laws. Ass’n v. Abbott, No. GN-20-002034, 459th District Court of Travis

County, Texas (Apr. 8, 2020)).

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violates Casey. Id. Once again, the district court’s failure to apply the

framework articulated in Abbott II led to a patently erroneous result that

cannot be sustained on this record.

As we explained in Abbott II, a state emergency measure like GA-09

violates the right to abortion if it “has no real or substantial relation” to the

public crisis “or is, beyond all question, a plain, palpable invasion of [Casey].”

2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31). Here, we take the

district court’s conclusion to turn only on the second part of the analysis—

whether GA-09 is “beyond all question” a violation of Casey to the extent it

results in delaying a woman’s pregnancy to 18 weeks LMP.

The district court’s treatment of GA-09 as “an absolute ban on abortion”

as applied to this category of women was obviously wrong. Abbott III, 2020 WL

1815587, at *6. A woman who would be 18 weeks LMP when GA-09 expires

has up to four weeks to legally procure an abortion in Texas. No case we know

of calls that an “absolute ban” on abortion. Cf., e.g., Casey, 505 U.S. at 874

(explaining that “[n]umerous forms of state regulation might have the

incidental effect of increasing the cost or decreasing the availability of medical

care, whether for abortion or any other medical procedure”).

The district court may have had in mind an as-applied challenge to GA-

09 on behalf of a woman facing this particular combination of circumstances.

See, e.g., Gonzales, 550 U.S. at 167 (explaining that “as-applied challenges” are

“the proper manner to protect the health of the woman if it can be shown in

discrete and well-defined instances” that particular procedures are required).

That would require evidence of “discrete and well-defined instances” sufficient

to support such a challenge, id., but the district court cited none and we can

find none in the record. Respondents attempt to bridge this gap by relying on

a new affidavit from a hotline coordinator at an abortion-funding nonprofit.

But that affidavit speaks only in general terms about women at later stages of

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pregnancy and does not even attempt to identify any “discrete and well-defined

instances” of a woman in the 18-week category sufficient to support an as-

applied challenge here. See App. 439–44.

Respondents also speculate that, due to patient backlogs and the burden

of traveling to one of the limited number of Texas ASCs, women in the 18-week

category will not be able to obtain an abortion. Once again, this is the stuff of

a possible as-applied challenge. But we know of no precedent saying that it

violates Casey “beyond question” when a generally applicable emergency

health measure causes backlogs and travel delays for women seeking abortion.

In fact, even outside of a public health crisis, the Supreme Court has

“recognize[d] that increased driving distances do not always constitute an

‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313 (quoting Casey, 505 U.S. at

885–87). To the contrary, the Court has treated increased travel distance only

as one factor that—“when taken together with others” such as “the virtual

absence of any health benefit”—could support a conclusion of undue burden

under Casey on a particular record. Id. (emphasis added).

Perhaps in the context of a preliminary injunction hearing, Respondents

will be able to adduce evidence to support an as-applied challenge to GA-09 (or

its successor order, GA-15) along these lines. But the record presently before

the district court fails to provide even an arguable basis to conclude that GA-

09, as applied to women in the 18-week category, is “beyond all question, a

plain, palpable invasion of [Casey].” Abbott II, 2020 WL 1685929, at *6 (quoting

Jacobson, 197 U.S. at 31).

3. The April 9 TRO Did Not Patently Err by Exempting 22-Week

Gestation from GA-09.

The district court also concluded that GA-09 “beyond question” violates

Casey as applied to a woman who “would otherwise be denied access to abortion

entirely because . . . [her] pregnancy would reach 22 weeks LMP” before GA-

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09 expires. Abbott III, 2020 WL 1815587, at *6. While we harbor some doubts

about the evidentiary basis for the district court’s conclusion, we conclude that

any error is not so clear and indisputable as to warrant mandamus.

Unlike the 18-week category, Respondents have adduced some evidence

that they have clients who will reach 22 weeks LMP during the operation of

GA-09. See App. 103, 353, 442. While this evidence is secondhand, and thus

weak, we cannot conclude it was a “clear abuse of discretion” for the district

court to rely on it at this early stage. Abbott II, 2020 WL 1685929, at *4. The

district court concluded that GA-09’s delay of non-essential medical procedures

would operate as a permanent ban on abortion for women in this category, and

that the order’s burdens far outweighed its benefits as to those women. Again,

given the weak evidence, we are not fully satisfied with this cursory conclusion.

Further, it remains unclear whether GA-09’s exception for “patient[s] who

without immediate performance of the surgery or procedure would be at risk

for serious adverse medical consequences . . . as determined by the patient’s

physician,” id. at *3, already covers women in these circumstances. But

Petitioners’ arguments do not convince us, at this early stage, that the district

court’s order enjoining GA-09 as to women who will reach 22 weeks LMP

during the order’s operation was so patently erroneous that mandamus is

appropriate. Cf. Gee, 941 F.3d at 158 (noting that mandamus is only

appropriate “for really extraordinary causes”).

As a result, we conclude Petitioners have not shown entitlement to the

writ of mandamus as to this part of the TRO.

***

To sum up, Petitioners have shown entitlement to the writ of mandamus

as to the parts of the April 9 TRO that:

• restrain enforcement of GA-09 as a “categorical ban on all abortions

provided by plaintiffs”;

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• restrain enforcement of GA-09 after 11:59 p.m. on April 21, 2020;

• restrain the Governor and Attorney General;

• restrain enforcement of GA-09 as to medication abortions;

• restrain enforcement of GA-09 as to abortions for patients who will

reach 18 weeks LMP during the operation of GA-09 and would be

“unlikely” to obtain abortion services in Texas.

Petitioners have not demonstrated entitlement to the writ as to that part

of the April 9 TRO that:

• restrains enforcement of GA-09 as to patients “who, based on the

treating physician’s medical judgment, would be past the legal limit

for an abortion in Texas—22 weeks LMP—on April 22, 2020.”

IV.

The other two requirements for mandamus relief are satisfied here.

First, Petitioners “‘have no other adequate means’ to obtain the relief they

seek.” Abbott II, 2020 WL 1685929, at *13. TROs, unlike preliminary

injunctions, are not appealable. See Smith v. Grady, 411 F.2d 181, 186 (5th

Cir. 1969); see also 28 U.S.C. § 1292. Although Petitioners argued in their

separate appeal that the TRO at issue here has the “actual content, purport,

and effect” of a preliminary injunction, Smith, 411 F.2d at 186, we concluded

otherwise and dismissed that appeal for lack of jurisdiction.

Second, for substantially the same reasons set out in Abbott II, “[w]e are

persuaded that this petition presents an extraordinary case justifying issuance

of the writ.” Abbott II, 2020 WL 1685929, at *15. As we stated there,

the current global pandemic has caused a serious, widespread,

rapidly-escalating public health crisis in Texas. Petitioners’

interest in protecting public health during such a time is at its

zenith. In the unprecedented circumstances now facing our society,

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

measures could have major ramifications . . . .

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Id. The district’s failure to apply Jacobson and its usurpation of the state’s

power by second-guessing “the wisdom and efficacy of [its] emergency

measures” are just as extraordinary now as they were on April 7. Id. Moreover,

the issues addressed in this litigation “have an importance beyond the

immediate case.” Id. (quoting Volkswagen, 545 F.3d at 318).

“[W]e are aware of nothing that would render the exercise of our

discretion to issue the writ inappropriate.” Id. (quoting Volkswagen, 545 F.3d

at 319). We therefore exercise our discretion to grant mandamus relief.

CONCLUSION

The petition for writ of mandamus is GRANTED IN PART and DENIED

IN PART.

The district court is directed to vacate any part of the April 9 TRO that

(1) restrains enforcement of GA-09 as a “categorical ban on all abortions

provided by Plaintiffs”; (2) restrains the Governor and Attorney General;

(3) restrains enforcement of GA-09 after 11:59 p.m. on April 21, 2020;

(4) restrains enforcement of GA-09 as to medication abortions; and

(5) restrains enforcement of GA-09 as to abortions for patients who will reach

18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain

abortion services in Texas.

We do not grant the writ or direct vacatur as to that part of the April 9

TRO restraining enforcement of GA-09 as to patients “who, based on the

treating physician’s medical judgment, would be past the legal limit for an

abortion in Texas—22 weeks LMP—on April 22, 2020.”

Any portions of our April 10 administrative stay remaining in effect are

LIFTED.

As indicated in Abbott II, any future appeals or mandamus petitions in

this case will be directed to this panel and will be expedited. See Gee, 941 F.3d

at 173; In re First South Sav. Ass’n, 820 F.2d 700, 716 (5th Cir. 1987).

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The mandate shall issue forthwith.

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JAMES L. DENNIS, Circuit Judge, dissenting in part.

For the second time in as many weeks, the majority invokes the “drastic

and extraordinary remed[y]” of mandamus, Ex parte Fahey, 332 U.S. 258, 259

(1947), simply to second guess the district court’s reasonable evaluation of the

evidence and to interfere with its inherent power to control the proceedings

before it. In so doing, the majority once again places us at odds with seemingly

every other federal court to have considered whether the need to conserve

hospital capacity and personal protective equipment (“PPE”) during the

current COVID-19 pandemic can justify so drastically curtailing the

constitutional right to an abortion. See In re Abbott, No. 20-50264, 2020 WL

1685929, at *16 (5th Cir. Apr. 7, 2020) (Abbott II) (Dennis, J., dissenting)

(collecting cases). 1 This second ruling is particularly inappropriate because,

although the district court properly fulfilled this court’s previous mandate—

unwarranted though the mandate may have been—the majority now moves

the goal posts and chastises the district court for not abiding by a series of

phantom instructions that can be found nowhere in its previous order. At

bottom, the majority simply disagrees with the district court’s decisions on

matters that are squarely within its discretion. This is not a proper use of “one

of the most potent weapons in the judicial arsenal.” In re JPMorgan Chase &

Co., 916 F.3d 494, 504 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court for

D.C., 542 U.S. 367, 380 (2004)).

1 Indeed, in the interim between this case and our last decision, one of our

sister circuits has explicitly rejected the proposition that a very similar temporary restraining

order (TRO) to the one at issue here would work such irreparable harm that bypassing the

normal appeals process was appropriate. See S. Wind Women’s Ctr. LLC v. Stitt, No. 20-

6045, 2020 WL 1860683, at *2-3 (10th Cir. Apr. 13, 2020); see also id. at 3 (Lucero, J.,

concurring) (observing that where—as here—the State failed to present any evidence that

abortion procedures would result in a shortage of PPE or hospital capacity needed for the

COVID-19 response, it failed to establish that the TRO had irreparable consequences).

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This Circuit thus once again does not apply the applicable rules of law

because of the subject matter of the case, and, equally troubling, ignores the

words of its own ruling from less than two weeks ago. I again echo the words

of a colleague in dissent in a case now before the United States Supreme Court:

“It is apparent that when abortion comes on stage it shadows the role of settled

judicial rules.” June Med. Services L.L.C. v. Gee, 905 F.3d 787, 816 (5th Cir.

2018) (Higginbotham, J., dissenting), cert. granted, 140 S. Ct. 35, 204 L. Ed. 2d

1193 (2019).

I.

The facts and procedural history of this case have been

documented in detail in our previous decision. See In re Abbott, No. 20-50264,

2020 WL 1685929 at *1-4 (5th Cir. Apr. 7, 2020) (Abbott II); id. at *17 (Dennis,

J., dissenting). To briefly recount, on March 22, 2020, the Governor of Texas

issued executive order GA-09 in response to the current COVID-19 pandemic

and the accompanying shortage of personal protective equipment (“PPE”) and

hospital capacity. GA-09 requires all Texas healthcare providers to

postpone all surgeries and procedures that are not

immediately medically necessary to correct a serious medical

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

immediate performance of the surgery or procedure would be at

risk for serious adverse medical consequences or death, as

determined by the patient’s physician.

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

uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-

2020.pdf. The order contains an exception for “any procedure that, if

performed in accordance with the commonly accepted standard of clinical

practice, would not deplete the hospital capacity or the [PPE] needed to cope

with the COVID-19 disaster.” Id. Violations of GA-09 are punishable by

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criminal penalties and, by virtue of a subsequent emergency rule with identical

requirements that was issued by the Texas Medical Board, see 22 Tex. Admin.

Code § 187.57, may effectively result in the suspension or restriction of a

practitioner’s license. 2 By its terms, GA-09 remains in effect until 11:59 p.m.

on April 21, 2020.

The day after GA-09 was issued, the Texas Attorney General

released a press release stating, among other things, that GA-09 applied to

“any kind of abortion that is not medically necessary to preserve the life and

health of the mother,” and that “[t]hose who violate the governor’s order will

be met with the full force of the law.” App. at 31. 3 The Respondents, who

provide abortion services in Texas, filed suit in district court under 42 U.S.C.

§ 1983 against the Petitioners, who are various state officials. The

Respondents asserted that the application of GA-09 to prohibit abortion

violated, inter alia, substantive due process. The Respondents sought to enjoin

the Petitioners from enforcing GA-09 as applied to abortion, and, after

reviewing argument and evidence on the point from both parties, the district

court issued a temporary restraining order (“TRO”) doing just that. See

Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL

1502102 (W.D. Tex. Mar. 30, 2020).

Before the district court could hold a scheduled hearing on whether

to issue a longer preliminary injunction, the Petitioners filed a petition for

mandamus with this court, and on April 7, the majority granted the petition

and ordered that the district court vacate its TRO. Abbott II, 2020 WL 1685929

at *16. The Respondents then moved for a second, more limited TRO in the

2 Because the requirements of GA-09 and the emergency rule are coextensive,

all parties to this litigation have consistently referred to them collectively as GA-09, and this

opinion will follow suit.

3 References to “App.” in this opinion refer to the appendix to the mandamus

petition. See ECF 4 (5th Cir. No. 20-50296).

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district court, which the court granted. Planned Parenthood Ctr. for Choice v.

Abbott, No. A-20-CV-323-LY, 2020 WL 1815587, at *7 (W.D. Tex. Apr. 9, 2020)

(Abbott III). The second TRO restrained the Petitioners from enforcing GA-09

(1) “as a categorical ban on all abortions provided by [the Respondents]”; (2) as

a prohibition on “medication abortions”; (3) as a prohibition on “procedural

abortion[s] [for] any patient who, based on the treating physician’s medical

judgment, would be more than 18 weeks LMP[ 4] on April 22, 2020, and [who

are] likely unable to reach an ambulatory surgical center in Texas or to obtain

abortion care” (“the 18-week category”); and (4) as a prohibition on “procedural

abortion[s] [for] any patient who, based on the treating physician’s medical

judgment, would be past the legal limit for an abortion in Texas—22 weeks

LMP—on April 22, 2020” (“the 22-week category”). Id. The Petitioners filed a

second petition for a writ of mandamus with this court the following day.

II.

Petitioners once again ask that we direct the district court to vacate its

TRO. As noted, mandamus is an “extraordinary remedy” that should only

issue in “exceptional circumstances.” See Cheney, 542 U.S. at 380 (quoting Will

v. United States, 389 U.S. 90, 95 (1967)); In re Lloyd’s Register N. Am., Inc.,

780 F.3d 283, 288, 294 (5th Cir. 2015); In re Volkswagen of Am., Inc., 545 F.3d

304, 309, 311 (5th Cir. 2008). It is not sufficient for the petitioners to prove

simply “that the court erred.” In re Occidental Petroleum Corp., 217 F.3d 293,

295 (5th Cir. 2000). Rather, mandamus relief generally requires that (1) “the

party seeking issuance of the writ [must] have no other adequate means to

attain the relief he desires—a condition designed to ensure that the writ will

not be used as a substitute for the regular appeals process”; (2) “the

LMP refers to the length of time that has passed since the first day of a

4

pregnant woman's last menstrual period. See Tex. Health & Safety Code § 171.063.

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petitioner[s] must satisfy the burden of showing that [their] right to issuance

of the writ is clear and indisputable”; and (3) “the issuing court, in the exercise

of its discretion, must be satisfied that the writ is appropriate under the

circumstances.” Cheney, 542 U.S. at 380-81 (internal quotation marks and

citations omitted).

The “clear and indisputable” prong of this test is not met here. That the

Petitioners’ right to relief is indeed disputable should be evident by the very

existence of this dissent and the many other courts that have concluded that

relief is not warranted in very similar circumstances. But I will elaborate. To

establish a clear and indisputable right to relief, the Petitioners must show

that the district court not only committed a “clear abuse[] of discretion,” but

also that the abuse “produce[d] patently erroneous results.” In re Lloyd’s

Register N. Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of Am., Inc.,

545 F.3d at 312). Neither precondition is met here.

A.

The majority asserts that the district court abused its discretion in

several ways. None of these assertions warrants mandamus relief.

1.

The majority first engages in what would appear to be an academic

exercise, concluding that the district court erred by restraining the Petitioners’

conduct in ways that apparently had no practical impact even under the

majority’s reasoning. Mandamus relief cannot be warranted to fix a mistake

that is of no consequence.

To start, the majority faults the district court for restraining the

Petitioners from enforcing GA-09 “as a categorical ban on all abortions”

because it does not interpret GA-09 to be a categorical ban on all abortions.

Majority at 9 (citing Abbott III, 2020 WL 1815587, at *7). As the majority

acknowledges, however, a federal court may determine that a state official’s

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purported enforcement of state law would violate a federal right, and this

principle applies regardless of whether that enforcement is a correct

interpretation of the state law. Majority at 31; See Louise B. v. Coluatti, 606

F.2d 392, 399 (3d Cir. 1979) (“To put the matter more bluntly, where a state

violates federal law, it is no better off because it also violates its own law.”).

Whether GA-09 actually is a categorical ban on abortions under state law is

therefore irrelevant. If the district court correctly found a credible threat that

the Petitioners would enforce GA-09 as a categorical ban on abortion, that

factual finding is sufficient to restrain such enforcement as a violation of a

federal constitutional right. See Susan B. Anthony List v. Driehaus, 573 U.S.

149, 159 (2014) (stating that when “plaintiffs face a credible threat of

enforcement,” they “should not be required to await and undergo a criminal

prosecution as the sole means of seeking relief” (internal quotations omitted)).

But as I said, this discussion is academic. By restraining the Petitioners

from enforcing GA-09 as to medication abortions and those abortions falling

into the 18-week and 22-week categories, the district court’s TRO also

necessarily prevented the Petitioners from enforcing GA-09 as a categorical

ban on abortions. Neither the Petitioners nor the majority identify any

possible conduct that would violate the “categorical ban” prohibition in the

district court’s order that would not also violate the prohibition on enforcing

GA-09 against providers of medication abortions or those that provide

abortions that fall into the 18-week or 22-week categories. Quite simply, the

TRO’s prohibition on enforcing GA-09 “as a categorical ban on all abortions”

has no independent effect; it does not burden the Petitioners because it does

not alter the Petitioners’ rights or responsibilities in any way. Accordingly,

even if correct regarding the error, the majority’s decision to order this portion

of the order vacated also does not change the rights and responsibilities of any

party and serves no purpose but to point out the district court’s purported

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mistake. Invoking “one of the most potent weapons in the judicial arsenal,” In

re JPMorgan Chase, 916 F.3d at 504, simply to correct an alleged legal error

with no practical consequences is inappropriate. Indeed, we have explicitly

stated that mandamus is not warranted upon a showing “merely that the court

erred.” Occidental Petroleum Corp., 217 F.3d at 295. The Petitioners and the

majority have not demonstrated how the district court’s purported error on this

point could produce “patently erroneous results,” In re Volkswagen of Am., Inc.,

545 F.3d at 312, when, as a practical matter, it does not produce any results at

all.

Similarly, the majority concludes that, because the district court

restrained the enforcement of GA-09 past its nominal April 22 expiration date,

the district court abused its discretion by not narrowly tailoring its TRO to end

when the executive order potentially expired. Majority at 9-10. But the

majority fully acknowledges that, following GA-09’s expiration, there will be

“no enforcement of GA-09 for a court to restrain,” Majority at 10, and so the

district court’s TRO will have no effect on the Petitioners after the executive

order expires. By contrast, under the majority’s reasoning, had GA-09 been

extended, the district court would have had to again extend its TRO in order

to maintain the status quo until the scheduled preliminary injunction

hearing—something that it is not even clear the district court would have

authority to do under FED. R. CIV. P. 65(b)(2), which some authorities have held

limits a district court to one TRO extension. 5 See Clements Wire & Mfg. Co. v.

N. L. R. B., 589 F.2d 894, 896 (5th Cir. 1979) (stating that TROs “must expire

not later than 20 days after issuance,” when Rule 65(b) imposed a 10-day time

limit); U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 (4th Cir.

5The district court already extended its second TRO once on April 14. See

Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No.

82) (Apr. 14, 2020).

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2006) (stating “a TRO is limited in duration to 10 days plus one 10–day

extension” under the former time limit (emphasis added)). The extension of

the TRO was a reasonable action by the district court that was well within its

discretion—either its TRO would be harmless and would not affect any rights

or responsibilities after GA-09’s expiration, or it would be appropriately

tailored to its purpose. We now know that, fortunately, GA-09 will indeed

expire on April 22, 6 and the majority’s order will not wreak the harm that it

might have had GA-09 been extended and the district court been left with a

gap between the expiration of the TRO and the preliminary injunction hearing

that it may arguably have been powerless to fill. But again, the majority

utilizes mandamus, a “‘drastic and extraordinary’ remedy ‘reserved for really

extraordinary causes,’” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332

U.S. at 259–60), simply to correct what it wrongly perceives to be a run-of-the-

mill legal error that the majority acknowledges has no practical consequences.

The majority next concludes that the district court erred by failing to

dismiss the Texas Governor and Attorney General and by restraining them

from enforcing GA-09 in the proscribed manner because neither officer has the

“connection” to enforcement of GA-09 needed to overcome sovereign immunity

under Ex parte Young, 209 U.S. 123 (1908). Majority at 10-13. With respect

to the Attorney General, the majority concludes that neither the fact that

Texas law permits the Attorney General to participate in prosecutions for

violations of GA-09, see TEX. GOV’T CODE § 402.028, nor that the Attorney

General publicly singled out abortion providers for potential enforcement;

stated that GA-09 prohibits all abortion except in the case of a medical

emergency; and threatened that “[t]hose who violate the governor’s order will

6 See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads

/files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf.

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be met with the full force of the law,” App. at 30, are sufficient to establish a

connection to GA-09 enforcement. Our cases have not explicitly held as much,

and indeed we have previously stated that authority and a willingness to

enforce a law can be inferred by an official’s threats to do so. City of Austin v.

Paxton, 943 F.3d 993, 1001 (5th Cir. 2019) (“[T]he fact that Paxton sent letters

threatening enforcement of the DTPA makes it clear that he had not only the

authority to enforce the DTPA, but was also constraining the manufacturer’s

activities, in that it faced possible prosecution if it continued to make and

distribute its products.”). It is difficult to see, then, how the district court’s

preliminary 7 determination that the Attorney General had a connection to

enforcement was so contrary to established law as to constitute a “clear abuse

of discretion,” In re Volkswagen of Am., Inc., 545 F.3d at 312, and thereby

justify this court’s extraordinary intervention on this point.

But even assuming arguendo that the majority is correct, the sum effect

of restraining the Governor and Attorney General from enforcing GA-09 would

be nil if they lack any authority to enforce GA-09 in the first place. Thus, the

majority acts again to use the “drastic and extraordinary remedy” of

mandamus, where it at most has little, if any, practical effect. Fahey, 332 U.S.

at 259.

I therefore disagree that mandamus is appropriate with respect to any

of these alleged errors.

2.

Next the majority concludes that the district court violated the “mandate

rule” by not following the instructions issued in Abbott II. Majority at 14 (citing

7 Notably, the Petitioners have not at any point filed a motion to dismiss the

Respondents’ claims against the Governor and Attorney General, instead raising their

jurisdictional arguments only in opposition to the TRO. Had one been filed, the denial of the

motion would have been immediately appealable, see Texas v. Caremark, Inc., 584 F.3d 655,

658 (5th Cir. 2009), obviating any need for mandamus on this point.

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United States v. Smith, 814 F.3d 268, 273 (5th Cir. 2016)). But a review of the

district court’s substantive and procedural decisions makes clear that the court

complied fully with the majority’s previous directives.

a.

The majority first argues that the district court failed to apply the legal

framework that the majority previously derived from Jacobson v.

Commonwealth of Massachusetts, 197 U.S. 11 (1905), and Planned Parenthood

v. Casey, 505 U.S. 833 (1992). Majority at 13. This is contradicted by the

district court’s plain statement that applying GA-09 to the classes of abortions

identified in its TRO “violates the standards set forth in both [Casey] and

[Jacobson].” Abbott III, 2020 WL 1815587. The majority appears to regard

this as only a formalistic recitation. On the contrary, the district courts’

findings and conclusions makes clear that it properly considered each step of

the majority’s framework.

Specifically, the test the majority previously formulated required the

district court to determine (1) whether applying GA-09 to the abortions at

issue 8 lacks a “real or substantial relation” to the current public health crisis,

and (2) whether the benefits of applying GA-09 to these abortions are “beyond

all question” outweighed by its burden on the constitutional right to an

abortion, thus creating an undue burden under Casey. Abbott II, 2020 WL

8 In its previous decision, the majority without explanation chose to analyze

whether GA-09 as a whole had a real or substantial relation to the current public health

crisis, notwithstanding the fact that the Respondents were not challenging GA-09 as a whole,

nor had the district court enjoined all applications of GA-09. As discussed in more detail

below, the proper focus should have been whether the application of GA-09 to abortions bore

any real or substantial connection to the current public health crisis. See Jacobson, 197 U.S.

at 28 (“We say necessities of the case, because it might be that an acknowledged power of a

local community to protect itself against an epidemic threatening the safety of all might be

exercised in particular circumstances and in reference to particular persons in such an

arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for

the safety of the public, as to authorize or compel the courts to interfere for the protection of

such persons.” (emphases added)).

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1685929, at *7, *9. The district court faithfully made findings and conclusions

tied to both steps of this analysis.

With respect to the first, the majority stated in its previous opinion that

the district court should “inquire whether Texas has exploited the present

crisis as a pretext to target abortion providers sub silentio.” Id. at *13 (citing

Lawton v. Steele, 152 U.S. 133, 137 (1894)). On this point, the district court

found that “[m]edication abortion is not a surgery or procedure” within

conventional definitions of the terms and that “[p]roviding medication abortion

does not require the use of any PPE,” which would suggest that it is not covered

by the plain language of the prohibition within GA-09. Abbott III, 2020 WL

1815587, at *3. And the court found that “[p]hysicians are continuing to

provide [other] obstetrical and gynecological procedures comparable to

abortion in PPE use or time-sensitivity, based on their professional medical

judgment” without hinderance from GA-09. Id. at *5. And, though this

significantly overlaps with the second prong of the majority’s test, the district

court made extensive findings as to why applying GA-09 to abortions “will not

conserve PPE” and “will not conserve hospital resources”—the two explicitly

stated goals of the executive order. Id. at *4. These findings all suggest that

the application of GA-09 to abortions—particularly medication abortions—is

pretextual and not motivated by any desire to conserve PPE or hospital

capacity, meaning it lacks a “real or substantial relation” to the current public

health crisis under the framework the majority instructed the district court to

employ. Abbott II, 2020 WL 1685929, at *7.

The district court’s analysis is even more explicit at the second stage of

the inquiry in which the majority instructed it to weigh the benefits of applying

GA-09 to abortions against the burden on the constitutional right to an

abortion. Id. at *9. As stated, the district court made a range of findings

indicating that applying GA-09 to abortions not only would not result in a

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public health benefit but in fact would be a net drain on PPE and hospital

capacity and would be otherwise harmful to public health. The court made

specific findings as to how much and what kind of PPE are consumed during

the performance of medication and procedural abortions and their surrounding

services, as well as the frequency with which complications require

hospitalization with each method. Abbott III, 2020 WL 1815587, at *3-4. The

court then compared this figure to the amount of each resource typically

consumed by a woman continuing a pregnancy and found that substantially

more of each resource is consumed “at each stage of the [continued] pregnancy”

than in a pre-viability abortion. 9 Id. at *4. And the district court noted that

continuing a pregnancy requires significantly more “in-person healthcare” and

that many women denied an abortion by GA-09 are traveling out-of-state to

obtain one, increasing their risk of contracting COVID-19. Id. at *4-5.

The district court then made a variety of findings regarding the burden

that applying GA-09 to the classes of abortion at issue placed on the

constitutional right to abortion. The court found that the Respondents had

“turned away hundreds of patients seeking abortion care,” and that “[t]here

will be significant pent-up need for abortion care when the Executive Order

expires,” resulting in further delays. Id. at *5. The court noted that

progressively more invasive techniques are required to perform an abortion the

9 The majority now faults the district court for not explicitly stating that its

findings were with regard to how much of each resource are being consumed during the

current COVID-19 pandemic. Majority at 20-23. As discussed in more detail below, this is

an incorrect reading of the district court’s order, see Abbott II, 2020 WL 1685929, at *4 (noting

the amount of N95 masks the physicians associated with the Respondents had used “since

the beginning of the COVID-19 pandemic” and citing the “recommendations from the

American College of Obstetricians and Gynecologists (‘ACOG’) and other medical authorities

for providing obstetrical care during the COVID-19 pandemic” (emphasis added)), and the

majority mistakenly insists on punctilious formality rather than making reasonable

inferences from the evidence and the district court’s findings. For now, suffice it to say that

this new requirement can be found nowhere in the majority’s previous order.

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longer that it is delayed. Id. And the court found that the health risks,

financial costs, and emotional cost of an abortion increases with gestational

age, meaning the delays make abortions riskier and more cost prohibitive. Id.

at *5-6. The court also found that for many women, the delay would result in

them being effectively denied a legal right to an abortion in Texas, either

because they would exceed the 22-week maximum legal limit or they would

reach a gestational age at which they were legally required to go to a facility

that they did not have access to in order to receive an abortion. Id.

The district court then weighed these benefits and burdens against each

other, just as the majority instructed, and concluded that “based on the court’s

findings of fact, it is beyond question that the Executive Order’s burdens

outweigh the order’s benefits as applied” to the classes of abortion at issue. Id.

at *6. And in doing so, it explicitly relied Jacobson.

It is one thing for the majority to disagree with the district court’s

findings or its weighing of the relative benefits and burdens of applying GA-09

to these abortions (though, as will be discussed, the majority is wrong to do so).

But it is simply inaccurate for the majority to conclude that the district court

disregarded its instructions to apply a legal framework that it is abundantly

clear the district court in fact applied. I therefore disagree that the district

court violated the mandate rule in this respect and, therefore, that mandamus

is appropriate to correct the supposed error.

b.

The majority next reprimands the district court for entering a TRO at

all. Majority at 14-19. The majority seems to have wanted the district court

to instead proceed directly to an adversarial hearing on a preliminary

injunction without issuing another TRO to preserve the status quo until that

hearing could be held. This requirement is stated nowhere in the previous

mandamus order and cannot be reconciled with the principle that district

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courts have broad discretion in ordering their affairs. To be sure, the majority

made several references to the sort of evidence that could be adduced and

arguments that could be made at an upcoming preliminary injunction hearing.

See, e.g., Abbott II, 2020 WL 1685929, at *2 (“The district court has scheduled

a telephonic preliminary injunction hearing for April 13, 2020, when all parties

will presumably have the chance to present evidence on the validity of applying

GA-09 in specific circumstances.”); id. at *9 (“Respondents will have the

opportunity to show at the upcoming preliminary injunction hearing that

certain applications of GA-09 may” violate Casey); id. at *12 (“These are issues

that parties may pursue at the preliminary injunction stage[.]”). But even

assuming arguendo these off-hand comments could be construed as a directive

to hold a preliminary injunction hearing—they obviously cannot—at no point

did the majority suggest the district court was not permitted to issue a TRO to

prevent irreparable harm in the interim until a hearing could be held.

Nor is it clear by what authority the majority would have imposed such

a restriction if it had been contained in the previous mandamus order. It is

well established that “[d]istrict courts have broad discretion to evaluate the

irreparability of alleged harm and to make determinations regarding the

propriety of injunctive relief.” Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C.

Cir. 1987). This broad discretion extends to “manag[ing] the timing and

process for entry of all interlocutory injunctions—both TROs and preliminary

injunctions[.]” Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000).

The majority and the Petitioners make much of the fact that the district

court did not permit the Petitioners to “respond [to the second TRO motion] in

writing” before entering the second TRO. Transcript of 4/9/20 Tele. Conf. at

14:39; see Majority at 18 (“Moreover, we called for additional evidence from

both sides.”). But as the majority acknowledges, the district court was not

required to do so, as the Rules explicitly allow a TRO to be entered ex parte.

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Majority at 14 (citing Fed. R. Civ. P. 65(b)(1)). Further, the Petitioners had

already been permitted to make argument and introduce evidence in response

to the Respondents’ first motion for a TRO. See Planned Parenthood Center for

Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 30) (March 30,

2020). It was not an abuse of the district court’s discretion for it to conclude

that, given the time constraints and the potential for irreparable harm that

had been established, it was imprudent to wait for further argument or

evidence from the Petitioners before entering a TRO to preserve the status quo

until the preliminary injunction hearing. All that was required was that “the

opposing party [be] given a reasonable opportunity, commensurate with the

scarcity of time under the circumstances, to prepare a defense and advance

reasons why the [preliminary] injunction should not issue.” Ciena Corp., 203

F.3d at 319. The Petitioners would have had that opportunity at the

rescheduled preliminary injunction hearing, and they could have filed a motion

to dissolve the TRO with accompanying exhibits at any time under Rule

65(b)(4) if they truly believed that time was of the essence such that they could

not wait for the hearing. 10 Instead, they filed the present motion for

mandamus.

The majority alternately argues that the district court defied the

mandate by entering a TRO on essentially the same record that the previous

mandamus order found was inadequate to support a TRO. Majority at 14-19.

This is simply inaccurate. Following the district court’s first March 30 TRO

order, which was based on ten declarations submitted by the Respondents, the

10 Petitioners’ failure to do so, together with their stated resistance to “an

overly ambitious schedule” in the latest status report filed with the district court in which

they requested that the preliminary injunction hearing be held no earlier than April 30,

Abbott, No. 1:20-cv-00323-LY (Dkt. No. 78) at 3 (Apr. 14, 2020), conflicts with any assertion

that time truly is so of the essence that Petitioners had “no other adequate means to attain

the relief [they] desire[],” as is required for a grant of mandamus. Occidental Petroleum

Corp., 217 F.3d at 380.

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Respondents filed nine additional declarations as supplements to their motion

for a preliminary injunction. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 49)

(April 2, 2020). And the Respondents included a new tenth declaration with

their second motion for a TRO. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 56)

(April 8, 2020). The district court thus had twice the number of declarations

filed by the Respondents before it when it entered its second TRO than when

it entered its first.

In an attempt to overcome the fact that the record was clearly

substantially more developed when the district court entered its second TRO,

the majority argues that the Respondents cited to the supplemental

declarations in their opposition to the Petitioners last mandamus petition, and

so these declarations were included in the record that the majority reviewed

and declared insufficient. Majority at 17-18. But the majority’s last

mandamus order commented only on “the record before us.” Abbott II, 2020

WL 1685929, at *9. The fact that the Respondents cited to additional

declarations in their briefing is of no moment. The additional declarations

were not included in the appendix filed with the previous mandamus petition

and they were not before the district court when it made the decision we

reviewed. Further, the majority did not explicitly take judicial notice of the

additional declarations, and the contents of the declarations are not the type

of indisputable information suitable for judicial notice in any event. See Gov’t

of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979) (noting that Federal

Rule of Evidence 201, which permits judicial notice only of generally known

facts or those that can be readily determined from an indisputably reliable

source, applies at every stage of a proceeding). There was no reason for the

district court—or anyone, for that matter—to assume the supplemental

declarations were included in the majority’s review of “the record before us”

that resulted in its conclusion that the evidence was inadequate. Abbott II,

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2020 WL 1685929, at *9. Indeed, if the additional declarations were included

in that review, the majority’s statement was arguably an improper advisory

opinion on matters not before the court because the sufficiency of those

declarations had no bearing on whether the district court’s previous decision

was correct at the time it was made. Cf. United States v. Marine Shale

Processors, 81 F.3d 1329, 1352 (5th Cir. 1996) (declining to give an advisory

opinion on matters that did not affect the issues before it and that could be

litigated in a later proceeding); Henry v. Dep’t of Hous. & Urban Dev. (HUD),

Washington, D. C., 451 F.2d 355, 356 (8th Cir. 1971) (noting that the court

could not give an advisory opinion as to the validity of a different complaint

that was not the complaint the district court dismissed).

In sum, the district court considered new evidence just as the majority

instructed, and it applied the legal framework that the majority prescribed.

The majority is thus wrong to now hold that the district court failed to fulfill

the majority’s previous mandate simply because it did not meet new additional

requirements that were not stated in the majority’s order, and I therefore

disagree that this supposed defiance warrants mandamus.

B.

That the district court did not commit a clear abuse of discretion is

sufficient reason on its own to deny mandamus. See In re Lloyd’s Register N.

Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at

312). But mandamus is also not warranted because, contrary to the majority’s

contention, the district court’s analysis did not lead to patently erroneous

results. Assuming arguendo that the majority’s interpretation of Jacobson is

correct and the standard it articulated applies here, restraining the

enforcement of GA-09 as a prohibition on the classes of abortion at issue was

appropriate if (1) that enforcement is “pretextual—that is, arbitrary or

oppressive” because it “has no real or substantial connection” to protecting

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public health during the COVID-19 epidemic; or (2) if that enforcement is

“‘beyond all question, a plain, palpable invasion’ of the [constitutional] right to

abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S.

at 31). There is ample evidence in the record to support the conclusion that

both of these requirements are met with respect to the applications of GA-09

the district court restrained through its second TRO, and the majority’s

disagreement with the district court’s reasonable evaluation of this evidence

does not make the TRO palpably erroneous.

As an initial matter, the majority breezes past the pretext prong of

its test, barely even mentioning it in its analysis of the results of the district

court’s reasoning. This is likely because, in its previous order, the majority

without explanation elected to analyze this question as whether GA-09 as a

whole had a real or substantial relation to the current public health crisis, and

so was able to easily conclude that it did. See id. at *8 (“The answer is obvious:

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

the COVID-19 pandemic.”). But this is the wrong focus of the inquiry. The

Respondents were not challenging GA-09 as a whole, nor had the district court

enjoined all applications of GA-09. The Respondents had challenged, and the

district court had restrained, the application of GA-09 to abortions, and

Jacobson itself makes clear that the question should not have been whether

“GA-09 is a pretext for targeting abortion.” Id. at *13. It should have been

whether the enforcement of GA-09, a concededly valid public health measure,

was being used as a pretext to target abortions by state actors motivated by

hostility to abortion rights. See Jacobson, 197 U.S. at 28 (“We say necessities

of the case, because it might be that an acknowledged power of a local

community to protect itself against an epidemic threatening the safety of all

might be exercised in particular circumstances and in reference to particular

persons in such an arbitrary, unreasonable manner, or might go so far beyond

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what was reasonably required for the safety of the public, as to authorize or

compel the courts to interfere for the protection of such persons.” (emphases

added)). Indeed, to hold otherwise would sanction the use of valid public health

measures as tools for the arbitrary deprivation of any number of constitutional

rights, regardless of the logical efficacy of applying the measure in that manner

or even whether the enforcement was in fact motivated by a desire to further

public health. See, e.g., On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-

264-JRW, 2020 WL 1820249, at *2 (W.D. Ky. Apr. 11, 2020) (finding that a ban

on public gatherings during the pandemic, which would obviously be a valid

public heath measure, was unconstitutional when used to prevent a drive-

through Easter Sunday church service in which parishioners remained in their

cars and had no direct personal contact (quoting Jacobson, 197 U.S. 11, 31

(1905)).

Considered in this light, there was sufficient evidence in the record

to conclude that the enforcement of GA-09 as a prohibition on all three of the

classes of abortion at issue was pretextual and motivated not by a desire to

advance public health, but rather to reduce the number of abortions performed

for its own sake. To begin with, as the district court determined and as the

majority acknowledged in a previous order in this case, see In re Abbott, No.

20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020), medication abortion,

which in itself consists entirely of providing a patient with two sets of oral

medication, is not a “surgery or procedure” under either the conventional

definitions of those terms or the meaning assigned to them in informal

guidance from the Texas Medical Board. See TEXAS MEDICAL BOARD,

Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries

and Procedures During Texas Disaster Declaration for COVID-19 Pandemic

(Mar. 29, 2020), https//www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF-

F9221E4DEF17 (last visited Apr. 19, 2020). And, as a wide range of

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declarations in the record establish, medication abortion consumes no PPE

whatsoever when considered in isolation without the preceding ultrasound or

post-abortion tests that Texas law requires. See App. at 73, 86, 91-92, 100,

110, 117, 134, 157. Medication abortion therefore does not appear to fall within

the facial, plain meaning of GA-09’s prohibition on non-urgent elective

“surgery or procedures,” and if it did, it would seem to fall into the exception

for “any procedure that, if performed in accordance with the commonly

accepted standard of clinical practice, would not deplete the hospital capacity

or the personal protective equipment needed to cope with the COVID-19

disaster.” 11 Texas Executive Order No. GA-09 (Mar. 22, 2020),

https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_

capacity_IMAGE_03-22-2020.pdf. The Petitioners’ stated desire to

nonetheless enforce the order against the providers of medication abortion

raises a strong inference that the enforcement against abortion providers more

generally is pretextual and motivated by hostility to abortion rights. Further

supporting this inference are multiple declarations from practicing physicians

stating that GA-09 is not being enforced to prohibit many obstetrical and

gynecological procedures that consume as much or more PPE and hospital

capacity than the categories of abortion at issue here, suggesting that abortions

were being singled out for differential treatment. See App. at 368, 373-74.

And, as discussed in more detail below, there is substantial evidence in the

The majority theorizes that, because the district court found that medication

11

abortion is not a surgery or procedure within the meaning of GA-09, its TRO might be

construed as enjoining state officials to comply with state law, which would violate principles

of sovereign immunity. Majority at 30-31 (citing Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 106 (1984)). But “[a]scertaining state law is a far cry from compelling state

officials to comply with it.” Williams ex rel. J.E. v. Reeves, No. 19-60069, 2020 WL 1638411,

at *7 (5th Cir. Apr. 2, 2020) (quoting Everett v. Schramm, 772 F.2d 1114, 1119 (3d Cir. 1985)).

To the extent the district court interpreted GA-09 and considered that the Petitioners were

likely improperly enforcing it in determining whether the enforcement was pretextual, it did

nothing improper.

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record that enforcing GA-09 against these categories of abortion leads to a net

loss of PPE and hospital capacity because the amount of each resource

consumed at every stage of a continued pregnancy is greater than the amount

consumed in the performance of a medication or procedural abortion. See App.

at 135, 372-74, 414.

Based on this evidence, the district court could reasonably

conclude at the TRO stage that Petitioner’s enforcement of GA-09 as a

prohibition against the categories of abortion at issue here was “pretextual”

and had “no real or substantial connection” to protecting public health during

the COVID-19 epidemic. Abbott II, 2020 WL 1685929, at *7, *8 (quoting

Jacobson, 197 U.S. at 31). Under the majority’s framework, this fact alone is

enough to demonstrate that the district court’s determinations did not produce

“patently erroneous results” as required for the issuance of mandamus. See In

re Lloyd’s Register N. Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of

Am., Inc., 545 F.3d at 312). But the majority doubly errs because there was

also ample evidence to conclude that enforcement of GA-09 against each of

these categories of abortion fails the second prong of its test by being “‘beyond

all question, a plain, palpable invasion’ of the [constitutional] right to

abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S.

at 31). I will consider the two classes of abortions the majority vacates the

TRO with respect to in turn.

1.

The majority first considers whether the evidence was sufficient

for a district court to reasonably conclude that enforcing GA-09 against

providers of medication abortion “beyond all question” violated the

constitutional right to an abortion. Majority at 19-31. The majority begins by

asserting that the district court considered only the relative consumption of

PPE associated with medication abortions under normal circumstances and

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asserts that there is no evidence documenting PPE usage rates during the

current pandemic. Majority at 20-23.

First, it is worth reiterating that the majority’s previous order did

not include a directive to the district court to specify that findings it was

making regarding relative usage were about rates during the current

pandemic. The majority now changes the rules in order to find error where

there is none. Its new requirement is based solely on the majority’s own

supposition that, during the current pandemic, there is PPE used during

medication abortions that would not otherwise be used by abortion providers

furnishing other healthcare services, and that this increase shifts the balance

between the relative benefits and burdens of applying GA-09 to prohibit

medication abortions. There is no evidence for the majority’s supposition.

In support of its contention that the rate of PPE usage has likely

changed, the majority points to a declaration by an infectious disease expert

that states “[n]ot wearing face masks and other PPE when caring for patients

who are not under investigation for COVID 19 . . . exposes health care workers

to transmission of infection” from asymptomatic patients. Majority at 22. But

there is no indication that the abortion providers would not wear the same

amount of PPE “caring for patients” in ways other than providing abortion.

The majority fails to make the simple logical inference that, if medication

abortion requires no PPE under normal conditions, it requires no more PPE

than would be used by medical staff providing other services under pandemic

conditions. For the majority’s premise to be correct, one would have to assume

that abortion providers only (or at least primarily) provide abortion services

and would not fill canceled abortion appointment slots with appointments for

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other medical services that would bring them into personal contact with

patients at a similar frequency. 12

Even assuming arguendo that medication abortions do consume

more PPE in a pandemic, the pertinent question is not whether prohibiting

medication abortion prevents the use of some marginal amount of PPE. It is

whether it creates a net benefit that outweighs its burden on the constitutional

right to abortion. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292,

2310 (2016). As I stated before, there was no evidence in the record suggesting

that any PPE purchased by or in the possession of abortion providers that

would be conserved by applying GA-09 to abortions could be redirected to the

COVID-19 response, nor have the majority or Petitioners articulated any

logical way in which this could be so. Abbott II, 2020 WL 1685929, at *22

(Dennis, J., dissenting). Moreover, there are multiple declarations in the

record from health care professionals documenting that any increase in PPE

consumption from medication abortion during the pandemic is more than

matched by an increase in PPE consumption from the necessary medical

services associated with continuing a pregnancy. See, e.g., App. at 135 (“By

comparison, even if a provider of prenatal care reduces the scheduling of such

care during the COVID-19 outbreak, it will still involve use of masks, sterile

gloves, and potentially other PPE during multiple visits. A patient continuing

pregnancy will thus require significantly more PPE than a patient presenting

for abortion.”); App. at 375 (stating that “most prenatal and postpartum care

is continuing” during the COVID-19 pandemic and cannot be done remotely

12According to Planned Parenthood’s website, in addition to abortion services,

the organization provides health services associated with emergency contraception, general

preventative healthcare, testing and treatment for HIV and other sexually transmitted

diseases, LGBT services, fertility treatments, treatment for sexual dysfunction, pregnancy

testing and associated services, pelvic exams, and cancer screenings. See Our Services,

Planned Parenthood, https://www.plannedparenthood.org/get-care/our-services (last visited

Apr. 20, 2020).

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before concluding that “requiring people to continue unwanted pregnancies

utilizes more PPE and more hospital resources than abortion care”). Thus,

there is more than sufficient evidentiary support to conclude that applying

COVID-19 to prohibit medication abortions does not preserve PPE during the

current pandemic.

The majority attempts to overcome this basic conclusion by

asserting that the state made a policy judgment that it was more important to

conserve PPE in the near term than the long term in order to “flatten the

curve.” Majority at 25. But this ignores the evidence that continuing a

pregnancy results in more PPE usage at every stage of the pregnancy than is

typically used in an abortion of any sort. See App. at 414 (“[T]he imaging and

laboratory tests alone needed during early pregnancy require the use of more

PPE than is typically used in connection with an abortion.”) There is thus

ample evidentiary support to conclude that applying GA-09 to medication

abortions results in no conservation of PPE in the short or long term.

Similar evidence exists with respect to hospital capacity; when a

pregnancy is continued, more hospital beds and resources are consumed than

when a woman obtains a pre-viability abortion, and there is no indication that

the current pandemic has changed this. See, e.g., App. at 375. And significant

evidence supports a conclusion that women who are unable to obtain an

abortion because of GA-09 will travel out of state to obtain one, increasing their

risk of contracting COVID-19 and spreading it to others. 13 See, e.g., App. at

258-59, 311. Thus, this is not an instance in which the district court made a

“choice . . . between two reasonable responses to a public crisis,” that should

13 The majority’s unsupported supposition that similar travel might occur as a

result of any medical procedures being postponed, Majority at 26, is particularly misplaced.

There is no evidence that any other delayed medical service increases in cost and health risk

if delayed in the same manner as an abortion, nor that there exists a legal deadline by which

such procedures must be procured comparable to Texas’s ban on post 22-week abortions.

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have been “left to the governing state authorities.” Abbott II, 2020 WL 1685929,

at *12 (citing Jacobson, 197 U.S. at 30). This is an instance in which the

district court logically concluded that applying GA-09 to medication abortions

was not reasonable because it produced no public health benefit, and indeed,

was detrimental to achieving even its ostensible goals. And against this total

lack of a benefit, there is substantial evidence that applying GA-09 to prohibit

medication abortions posed a significant burden on the constitutional right to

abortion, including by increasing the health risks, financial costs, and

emotional toll associated with obtaining an abortion. It was thus entirely

reasonable for the district court to conclude that the benefits of applying GA-

09 to medication abortions are “beyond all question” outweighed by its burden

on the constitutional right to an abortion, Abbott II, 2020 WL 1685929, at *7,

*9, thereby creating an unconstitutional undue burden under Casey.

The majority faults the district court for not citing to the

Petitioners’ exhibits purportedly containing contrary evidence on some of these

points, calling this a failure to “carefully parse the evidence.” Majority at 26-

30. But “[i]t is the province of the district court to weigh conflicting evidence,”

including by choosing which evidence to credit and which evidence to discount.

R. S. by & through Ruth B. v. Highland Park Indep. Sch. Dist., 951 F.3d 319,

337 (5th Cir. 2020). It is not our role to second guess what would appear to be

a reasonable evaluation of the evidence under commonplace circumstances, let

alone on mandamus review. There is thus no basis to conclude that the district

court’s reasoning produced “patently erroneous results” as to medication

abortions. In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290 (quoting In re

Volkswagen of Am., Inc., 545 F.3d at 312).

2.

The majority similarly concludes that the district court’s reasoning

led to a patently erroneous result with regard to the TRO’s blocking application

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of GA-09 to those abortions in the 18-week category—that is, those abortions

for women who would exceed the maximum gestational age to legally have an

abortion other than in an ambulatory surgical center by the expiration of the

executive order and who would, in their physicians’ judgment, be unable to

obtain an abortion at one of these centers. Majority at 32-34.

The majority first criticizes the district court for categorizing the

application of GA-09 to women in this 18-week category as an “absolute ban on

abortion” because, it contends, women falling into this category can,

theoretically, still legally obtain an abortion. Majority at 32 (quoting Abbott

III, 2020 WL 1815587, at *6). The majority’s argument is based on a

theoretical legal possibility that is a practical impossibility. Many women in

this category will not be able to obtain an abortion for a number of reasons. In

reality, there are no ambulatory surgical centers that provide abortion care

outside of Texas’s four largest metropolitan areas, see Hellerstedt, 136 S. Ct. at

2316, and thus many women in rural areas of Texas would need to secure

transportation over a great distance and lodging in a metropolitan area in

order to undergo the two-day procedure necessary for an abortion after the 18-

week mark. See App. at 130-31. For many this will not be possible due to time

constraints, financial limitations, health reasons, or any number of other

factors. And there is evidence that, because of the buildup of need for abortion

care during the time GA-09 is in effect, the delays associated with the resulting

backlog may prevent many women who will be past the 18-week mark upon

the expiration of the executive order from obtaining an abortion before the 22-

week legal cutoff. 14 See, e.g., App. at 95. For these women, GA-09 is for all

intents and purposes an absolute ban on abortion. And the majority offers no

14 This is especially true because the 18-week category contains even women

that will be only one or a few days shy of the 22-week legal cutoff for an abortion when GA-

09 expires.

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authority for the prospect that a law that theoretically leaves a legal path to

abortion cannot as a practical matter function as the sort of absolute ban that

violates “the essential holding of Roe v. Wade,” Casey, 505 U.S. at 846.

In light of the balancing test for identifying an undue burden set

forth in Casey, 505 U.S. at 874, and Hellerstedt, 136 S. Ct. at 2310, the outright

ban on previability abortion might be thought of as the ultimate burden on the

constitutional right to abortion which no benefit or interest yet identified can

outweigh. In that case, a law that nominally allows abortion but places it

functionally out of reach for a class of women is only slightly less of a burden,

and it stands to reason that a truly compelling benefit would be required to

justify it.

We need not speculate what that benefit might be, though, because

on the evidence in the record, it was reasonable for the district court to

conclude that applying GA-09 to prohibit this class of abortions offered no

benefit at all. Much of the evidence already recounted concerned not only the

relative consumption of PPE and hospital capacity between a medication

abortion and a continued pregnancy, but rather any pre-viability abortion and

a continued pregnancy. See, e.g., App. at 135 (“By comparison, even if a

provider of prenatal care reduces the scheduling of such care during the

COVID-19 outbreak, it will still involve use of masks, sterile gloves, and

potentially other PPE during multiple visits. A patient continuing pregnancy

will thus require significantly more PPE than a patient presenting for

abortion.”); App. at 375 (stating that “most prenatal and postpartum care is

continuing” during the COVID-19 pandemic and cannot be done remotely

before concluding that “requiring people to continue unwanted pregnancies

utilizes more PPE and more hospital resources than abortion care”).

It is true that, as the majority notes, the Supreme Court

acknowledged that “increased driving distances do not always constitute an

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‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313. But the district court’s

conclusion was not based on increased driving distance alone. The distance

was “one additional burden, which, when taken together” with the forced

postponement of abortion care, which created a significant backlog of need with

a “virtual absence of any health benefit,” id., “beyond question” constituted an

undue burden, Abbott II, 2020 WL 1685929, at *11. This conclusion was a

reasonable interpretation of the evidence, and it therefore did not produce

palpably erroneous results such that mandamus is appropriate. 15

CONCLUSION

The present case is an excellent demonstration of the dangers of

using the extraordinary remedy of mandamus to overmanage matters that are

properly left to a district court’s discretion. In part because of the decisions of

this court, the legality of abortion in Texas has changed no less than six times

since the beginning of the COVID-19 pandemic. This court has expended

substantial time and judicial resources in an effort to prevent interference with

the state’s pandemic response at a most urgent time, only to instead contribute

to a confusion that is likely more disruptive than the alleged harm it sought to

15 The majority determines that the district court did not patently err by

enjoining the enforcement of GA-09 against abortions in the 22-week category. Majority at

34-35. I agree that the district court did not patently err and that mandamus is not

warranted. However, I disagree with the majority’s characterization of the evidence of

women who would be denied abortions in this category as “second-hand” and “weak.”

Majority at 34. Contra App. at 103 (declaration from CEO of nonprofit operator of an abortion

clinic stating from personal knowledge that her clinic canceled two appointments with women

who will be past the 22-week legal limit for an abortion by the expiration of GA-09); App at

349 (declaration from general manager of surgical center stating from personal knowledge

that at least three of the patients whose appointments were canceled will be past the 22-week

legal limit for abortion by the expiration of GA-09); App. at 353 (declaration from senior

director of ambulatory surgical center stating from personal knowledge that, based on

ultrasound dating, at least three of the appointments the clinic canceled were for women who

will be beyond the legal gestational age limit to obtain an abortion by the expiration of GA-

09); App. at 442 (declaration from employ of abortion financial assistance fund stating from

personal knowledge that at least ten of the funds clients will be past the 22-week gestational

age limit for an abortion by the expiration of GA-09).

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prevent. Even today’s order will have little practical effect other than to briefly

change the legality once more. Under GA-15, which takes effect at midnight

on April 22, abortion legality in Texas will apparently change for an eighth

time, as the Respondents have represented that all of their abortion care will

fall into the new exception that exempts services provided by heath facilities

that certify they will not draw upon any public supply of PPE.

The majority again concludes that mandamus is appropriate to

correct what it perceives as rampant abuses of discretion by the district court

that produced patently erroneous results. As I have said, I strongly disagree

with the majority’s critique of the district court’s work, and I do not believe

that this case warrants mandamus relief. I therefore once again respectfully

but emphatically dissent.

68