Petition for Writ of Certiorari — Planned Parenthood Center for Choice, et al., Petitioners v. Greg Abbott, Governor of Texas, et al.

Supreme Court briefSep 3, 2020

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No. ______

In the Supreme Court of the United States

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Petitioners,

GREG ABBOTT, in his official capacity as

Governor of Texas, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

JENNIFER SANDMAN

Planned Parenthood

Federation of America

123 William St., 9th Fl.

New York, NY 10038

STEPHANIE TOTI

RUPALI SHARMA

Lawyering Project

25 Broadway, 9th Floor

New York, NY 10004

PATRICK J. O’CONNELL

Law Offices of Patrick J.

O’Connell PLLC

5926 Balcones Dr., Ste. 220

Austin, TX 78731

JULIE A. MURRAY

Counsel of Record

HANNAH SWANSON

Planned Parenthood

Federation of America

1110 Vermont Ave., NW

Ste. 300

Washington, DC 20005

(202) 973-4800

julie.murray@ppfa.org

MOLLY DUANE

RABIA MUQADDAM

Center for Reproductive

Rights

199 Water St., 22nd Fl.

New York, NY 10038

Counsel for Petitioners

September 2020

TABLE OF APPENDICES

Appendix A

First Mandamus Order, In re Abbott, No. 2050264 (5th Cir. Apr. 7, 2020) .............................. 1a

Appendix B

Revised Second Mandamus Order, In re Abbott,

No. 20-50296 (5th Cir. Apr. 20, 2020) ............... 60a

Appendix C

Order Granting First Temporary Restraining

Order, Planned Parenthood Center for Choice v.

Abbott, No. A-20-CV-323-LY (W.D. Tex. Mar. 30,

2020)..................................................................140a

Appendix D

Order Administratively Staying First Temporary Restraining Order, In re Abbott, No. 2050264 (5th Cir. Mar. 31, 2020) ........................ 151a

Appendix E

Order Granting Second Temporary Restraining

Order, Planned Parenthood Center for Choice v.

Abbott, No. A-20-CV-323-LY (W.D. Tex. Apr. 9,

2020)..................................................................154a

Appendix F

Order Administratively Staying Second Temporary Restraining Order in Part, In re Abbott, No.

20-50296 (5th Cir. Apr. 10, 2020) ....................172a

Appendix G

Order Denying Motion to Lift Administrative

Stay of Second Temporary Restraining Order, In

re Abbott, No. 20-50296 (5th Cir. Apr. 11,

2020)..................................................................177a

Appendix H

Order Denying in Part Motion to Stay Second

Temporary Restraining Order, In re Abbott, No.

20-50296 (5th Cir. Apr. 13, 2020) ....................182a

Appendix I

Order Extending Second Temporary Restraining Order, Planned Parenthood Center for

Choice v. Abbott, No. A-20-CV-323-LY (W.D.

Tex. Apr. 14, 2020) ...........................................189a

Appendix J

Order Vacating Second Temporary Restraining

Order in Part, Planned Parenthood Center for

Choice v. Abbott, No. A-20-CV-323-LY (W.D.

Tex. Apr. 21, 2020) ...........................................193a

Appendix K

Order Denying Motion to Recall and Stay the

First Mandate, In re Abbott, No. 20-50264 (5th

Cir. Apr. 22, 2020) ............................................197a

Appendix L

Order Denying Motion to Recall and Stay the

Second Mandate, In re Abbott, No. 20-50296 (5th

Cir. Apr. 22, 2020) ............................................199a

iii

Appendix M

Executive Order GA-09 ....................................201a

Statement of Attorney General Paxton ...........205a

Emergency Amendment to 22 Texas Admin.

Code § 187.57 (Apr. 4, 2020) ............................207a

U.S. Const. amend. XIV, § 1.............................210a

Appendix A

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

____________

No. 20-50264

____________

In re: GREG ABBOTT, in his official capacity as

Governor of Texas; KEN PAXTON, in his official

capacity as Attorney General of Texas; PHIL

WILSON, in his official capacity as Acting Executive

Commissioner of the Texas Health and Human

Services Commission; STEPHEN BRINT CARLTON,

in his official capacity as Executive Director of the

Texas Medical Board; KATHERINE A. THOMAS, in

her official capacity as the Executive Director of the

Texas Board of Nursing,

Petitioners

____________

Petition for a Writ of Mandamus to the United States

District Court for the Western District of Texas

____________

Filed: April 7, 2020

____________

Before DENNIS, ELROD, and DUNCAN,

Circuit Judges.

____________

STUART KYLE DUNCAN, Circuit Judge:

To preserve critical medical resources during the

escalating COVID-19 pandemic, on March 22, 2020,

the Governor of Texas issued executive order GA-09,

which postpones non-essential surgeries and

procedures until 11:59 p.m. on April 21, 2020. Reading

GA-09 as an “outright ban” on pre-viability abortions,

on March 30 the district court issued a temporary

restraining order (“TRO”) against GA-09 as applied to

abortion procedures. At the request of Texas officials,

we temporarily stayed the TRO while considering

their petition for a writ of mandamus directing

vacatur of the TRO. We now grant the writ.

The “drastic and extraordinary” remedy of

mandamus is warranted for several reasons. In re

JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir.

2019) (citation omitted).

First, the district court ignored the framework

governing emergency public health measures like GA09. See Jacobson v. Commonwealth of Massachusetts,

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

dangers,” constitutional rights may be reasonably

restricted “as the safety of the general public may

demand.” Id. at 29. That settled rule allows the state

to restrict, for example, one’s right to peaceably

assemble, to publicly worship, to travel, and even to

leave one’s home. The right to abortion is no exception.

See Roe v. Wade, 410 U.S. 113, 154 (1973) (citing

Jacobson); Planned Parenthood v. Casey, 505 U.S.

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

124, 163 (2007) (same).1

1 Our dissenting colleague suggests our decision “follows not

because of the law or facts, but because of the subject matter of

Second, the district court’s result was patently

wrong. Instead of applying Jacobson, the court

wrongly declared GA-09 an “outright ban” on previability abortions and exempted all abortion

procedures from its scope. The court also failed to

apply Casey’s undue-burden analysis and thus failed

to balance GA-09’s temporary burdens on abortion

against its benefits in thwarting a public health crisis.

Third, the district court usurped the state’s

authority to craft emergency health measures.

Instead, the court substituted its own view of the

efficacy of applying GA-09 to abortion. But “[i]t is no

part of the function of a court” to decide which

measures are “likely to be the most effective for the

protection of the public against disease.” Jacobson,

197 U.S. at 30.

In sum, given the extraordinary nature of these

errors, the escalating spread of COVID-19, and the

state’s critical interest in protecting the public health,

we find the requirements for issuing the writ satisfied.

See Cheney v. U.S. Dist. Court for Dist. of Columbia,

542 U.S. 367, 380–81 (2004).

We emphasize the limits of our decision, which is

based only on the record before us. The district court

has scheduled a telephonic preliminary injunction

hearing for April 13, 2020, when all parties will

this case.” Dissent at 3. That is wrong. As explained below, infra

III.A.1, Jacobson governs a state’s emergency restriction of any

individual right, not only the right to abortion. The same analysis

would apply, for example, to an emergency restriction on

gathering in large groups for public worship during an epidemic.

See Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The

right to practice religion freely does not include liberty to expose

the community . . . to communicable disease.”).

presumably have the chance to present evidence on

the validity of applying GA-09 in specific

circumstances. The district court can then make

targeted findings, based on competent evidence, about

the effects of GA-09 on abortion access. Our overriding

consideration here, however, is that those proceedings

adhere to the controlling standards, established by the

Supreme Court over a century ago, for adjudging the

validity of emergency measures like the one before us.

Accordingly, we grant a writ of mandamus

directing the district court to vacate its TRO of March

30, 2020.

As all are painfully aware, our nation faces a

public health emergency caused by the exponential

spread of COVID-19, the respiratory disease caused

by the novel coronavirus SARS-CoV-2. As of April 6,

2020, over 330,000 cases have been confirmed across

the United States, with over 8,900 dead.2 The virus is

“spreading very easily and sustainably”3 throughout

the country, with cases confirmed in all fifty states,

the District of Columbia, and several territories.4 Over

the past two weeks, confirmed cases in the United

2 Centers for Disease Control and Prevention, Coronavirus

Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.

gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last

visited April 6, 2020).

3 Centers for Disease Control and Prevention, Coronavirus

Disease 2019 (COVID-19): How COVID-19 Spreads,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/how-covid-spreads.html (last visited April 6, 2020).

4 Centers for Disease Control and Prevention, Coronavirus

Disease 2019 (COVID-19): Cases in the U.S., https://

www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.

html (last visited April 6, 2020).

States have increased by over 2,000%.5 Federal

projections estimate that, even with mitigation

efforts, between 100,000 and 240,000 people in the

United States could die.6 In Texas, the virus has

spread rapidly over the past two weeks and is

predicted to continue spreading exponentially in the

coming days and weeks.

On March 13, 2020, the President declared a

national state of emergency, and the Governor of

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

Texas Health and Human Services Executive

Commissioner declared a public health disaster

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

number of people and creates a substantial risk of

public exposure because of the disease’s method of

transmission and evidence that there is community

spread in Texas.”8 As the district court in this case

acknowledged, “Texas faces it[s] worst public health

emergency in over a century.”

5 Id. On March 19, 2020, the CDC reports that there were

15,219 diagnosed cases in the United States, excluding cases

among persons repatriated to the United States from China and

Japan. Id. By April 6, 2020, the number of cases reported has

risen to 330,891. Id.

6 Rick Noack, et al., White House task force projects 100,000

to 240,000 deaths in U.S., even with mitigation efforts,

WASHINGTON POST (Mar. 31, 2020), https://www.washington

post.com/world/2020/03/31/coronavirus-latest-news/.

7 See Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563

(Mar. 13, 2020); Tex. Proc. of Mar. 13, 2020, https://gov.texas.gov/

uploads/files/press/DISASTER_covid19_disaster_proclamation_

IMAGE_03-13-2020.pdf.

8 Tex. Proc. of Mar. 19, 2020, https://gov.texas.gov/

uploads/files/press/DECLARATION_of_public_health_disaster_

Dr_Hellerstedt_03-19-2020.pdf.

The surge of COVID-19 cases causes mounting

strains on healthcare systems, including critical

shortages of doctors, nurses, hospital beds, medical

equipment, and personal protective equipment

(“PPE”).9 The executive order at issue here, GA-09,

responds to this crisis. Issued by the Governor of

Texas on March 22, 2020, GA-09 applies to all licensed

healthcare professionals and facilities in Texas and

requires that they:

postpone all surgeries and procedures that are

not immediately medically necessary to

correct a serious medical condition of, or to

preserve the life of, a patient who without

immediate performance of the surgery or

procedure would be at risk for serious adverse

medical consequences or death, as determined

by the patient’s physician.10

Importantly, the order “shall not apply to any

procedure that, if performed in accordance with the

commonly accepted standard of clinical practice,

would not deplete the hospital capacity or the personal

protective equipment needed to cope with the COVID-

9 Centers for Disease Control and Prevention, Coronavirus

Disease 2019 (COVID-19): Strategies for Optimizing the Supply

of Facemasks, https://www.cdc.gov/coronavirus/2019-ncov/hcp/

ppe-strategy/face-masks.html (last visited April 6, 2020); Megan

L. Ranney, M.D., M.P.H., et al., Critical Supply Sources—The

Need for Ventilators and Personal Protective Equipment during

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

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

atured_coronavirus.

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.

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

result in administrative or criminal penalties,

including “a fine not to exceed $1,000, confinement in

jail for a term not to exceed 180 days, or both.”12 The

order automatically expires after 11:59 p.m. on April

21, 2020, but can be modified, amended, or

superseded.

On March 25, 2020, various Texas abortion

providers13 (“Respondents”) filed suit in federal

district court against multiple Texas officials,

including the Governor, Attorney General, three state

health officials, and nine District Attorneys

(“Petitioners”14). Respondents brought substantive

due process and equal protection claims and sought to

enjoin enforcement of GA-09, as well as the Texas

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.

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

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

hospital_capacity_IMAGE_03-22-2020.pdf (citing Tex. Gov’t

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

Tex. Admin. Code § 135.24(a)(1)(F); 22 Tex. Admin. Code

§ 185.17(11); 22 Tex. Admin. Code § 185.57(c) (Mar. 23, 2020);

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

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

Plaintiffs are Texas abortion providers Planned

Parenthood Center for Choice, Planned Parenthood of Greater

Texas Surgical Health Services, Planned Parenthood South

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

Health Alliance, Southwestern Women’s Surgery Center,

Brookside Women’s Medical Center PA d/b/a Brookside Women’s

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

Wallace, M.D. Plaintiffs purport to sue on behalf of themselves,

their staff, physicians, nurses, and patients.

14 Petitioners here do not include the defendant District

Attorneys.

Medical Board’s Emergency Rule implementing the

order. See 22 Tex. Admin. Code § 187.57(c) (Mar. 23,

2020). Simultaneously, Respondents sought a

temporary restraining order (“TRO”) or a preliminary

injunction, based only on their due process claim.

Following a March 26 conference call, the district

court gave Petitioners until March 30 at 9:00 a.m. to

respond, which they did. Later that same day, the

district court entered a TRO.

In the TRO, the district court agreed that “Texas

faces it[s] worst public health emergency in over a

century,” and also that “[GA-09], as written, does not

exceed the governor’s power to deal with the

emergency.” Nonetheless, the court interpreted GA-09

as “effectively banning all abortions before viability.”

The court reasoned that, because “no interest” can

justify such an “outright ban” on pre-viability

abortions, GA-09 contravenes Supreme Court and

Fifth Circuit precedent. The TRO therefore prohibits

all defendants, including Petitioners, from enforcing

GA-09 and the emergency rule “as applied to

medication abortions and procedural15 abortions.”

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

the district court, refers to what are also called “surgical”

abortions. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 924 (2000)

(citing M. Paul et al., A Clinician’s Guide to Medical and Surgical

Abortion (1999)); Gonzales v. Carhart, 550 U.S. 124, 175 (2007)

(Ginsburg, J., dissenting) (referring to “surgical abortions”)

(quoting Carhart v. Ashcroft, 331 F.Supp.2d 805, 1011 (D. Neb.

2004), aff’d, 413 F.3d 791 (8th Cir. 2005)); Planned Parenthood

v. Casey, 505 U.S. 833, 969 (1992) (Rehnquist, J., concurring in

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

other surgical procedure except abortion”) (quoting Webster v.

Reproductive Health Servs., 492 U.S. 490, 517 (1989) (plurality

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

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

App. 267–68, 270.16

On the evening of March 30, 2020, Petitioners

filed a petition for writ of mandamus in our court,

requesting that we direct the district court to vacate

the TRO. Petitioners simultaneously sought an

emergency stay of the TRO, as well as a temporary

administrative stay, while the court considered their

request. On March 31, 2020, we temporarily stayed

the TRO and set an expedited briefing schedule.

II.

Federal courts “may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 28

U.S.C. § 1651(a). That includes the writ of mandamus

sought by Petitioners. See Cheney, 542 U.S. at 380; In

re Gee, 941 F.3d 153, 157 (5th Cir. 2019). Mandamus

is proper only in “exceptional circumstances

amounting to a judicial usurpation of power or a clear

abuse of discretion.” In re Volkswagen of Am., Inc., 545

F.3d 304, 309 (5th Cir. 2008) (en banc) (quoting

Cheney, 542 U.S. at 380). Before prescribing this

strong medicine, “we ask (1) whether the 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

1992 WL 12006398 (referring to “induced abortion” as a “surgical

procedure[ ]”).

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

2020. The district court has scheduled a telephonic hearing on

Plaintiffs’ request for a preliminary injunction for 9:30 a.m. that

same day. App. 271. Our references to “App.” throughout this

opinion are to the appendix to the mandamus petition. See ECF

3 (5th Cir. No. 20-50264).

10a

our discretion, are satisfied that the writ is

appropriate under the circumstances.” In re Itron,

Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting

Cheney, 542 U.S. at 380–81) (cleaned up). “These

hurdles, however demanding, are not insuperable.

They simply reserve the writ for really extraordinary

causes.” Gee, 941 F.3d at 158 (cleaned up). In such a

case, mandamus provides a “useful ‘safety valve[]’ for

promptly correcting serious errors.” Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100, 111 (2009) (quoting

Digital Equipment Corp. v. Desktop Direct, Inc., 511

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

III.

Petitioners claim they satisfy all three mandamus

prongs and are therefore entitled to the writ. As to the

first prong, they argue mandamus is proper for

obtaining relief, even from a non-appealable TRO,

when the stakes are “extraordinarily time-sensitive.”

ECF 2 at 30–31. As to the second prong, Petitioners

contend the district court “clearly and indisputably

erred” by ruling that abortion is an absolute right

which cannot be curtailed even in the midst of a public

health emergency.17 Id. at 11–24. Finally, as to the

17 Alternatively under prong two, Petitioners assert that (1)

no justiciable controversy exists as to the Governor and Attorney

General because they lack authority to enforce GA-09, and (2)

Respondents lack third-party standing to sue on behalf of their

patients. We decline to grant relief on these grounds. First, quite

apart from the Governor and Attorney General, a justiciable

controversy exists as to the Petitioner health officials, who may

enforce the order’s administrative penalties. See, e.g., 22 Tex.

Admin. Code § 187.57(b). On remand, however, the district court

should consider whether the Eleventh Amendment requires

dismissal of the Governor or Attorney General because they lack

any “connection” to enforcing GA-09 under Ex parte Young, 209

11a

third prong, Petitioners argue mandamus is proper

because “[t]he longer [Respondents] are allowed to

perform elective procedures—consuming scarce PPE,

increasing hospitalizations, and potentially spreading

the virus to countless individuals—the longer it will

take to flatten the curve in Texas, meaning more

illnesses, more hospitalizations, and more deaths.” Id.

at 31. We address each prong in turn, beginning with

the second.

We first address the second mandamus prong—

whether entitlement to the writ is “clear and

indisputable”—because it is central to our analysis.

See, e.g., Volkswagen, 545 F.3d at 311 (beginning with

second prong because it “captures the essence of the

disputed issue”). “In recognition of the extraordinary

nature of the writ, we require more than showing that

the court misinterpreted the law, misapplied it to the

facts, or otherwise engaged in an abuse of discretion.”

In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290

(5th Cir. 2015). Rather, a petitioner has a clear and

indisputable right to the writ only when there has

been a “usurpation of judicial power” or “a clear abuse

of discretion that produces patently erroneous

results.” JPMorgan Chase, 916 F.3d at 500 (cleaned

U.S. 123 (1908). City of Austin v. Paxton, 943 F.3d 993, 999 (5th

Cir. 2019); see also Morris v. Livingston, 739 F.3d 740, 745–46

(5th Cir. 2014). Second, Respondents have standing to sue on

their own behalf because GA-09 “directly operates” against them.

Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62

(1976) (cleaned up). We therefore need not consider at this time

whether Respondents may sue on behalf of their patients. We

note that the Supreme Court recently granted a certiorari

petition raising this third-party standing issue. See Russo v. June

Med. Servs., No. 18-1460.

12a

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

F.3d at 290. Usurpation of judicial power occurs when

courts act beyond their jurisdiction or fail to act when

they have a duty to do so. Will v. United States, 389

U.S. 90, 95 (1967). But it also occurs in other

situations. The Supreme Court has sanctioned use of

the writ “to restrain a lower court when its actions

would threaten the separation of powers by

‘embarrassing the executive arm of the Government,’

or result in the ‘intrusion by the federal judiciary on a

delicate area of federal-state relations.’” Cheney, 542

U.S. at 381 (citing Will, 389 U.S. at 95; Ex parte Peru,

318 U.S. 578, 588 (1943); Maryland v. Soper (No. 1),

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

We conclude Petitioners have shown “a clear and

indisputable right to issuance of the writ.”

Volkswagen, 545 F.3d at 311. In issuing the TRO, the

district court clearly abused its discretion by failing to

apply (or even acknowledge) the framework governing

emergency exercises of state authority during a public

health crisis, established over 100 years ago in

Jacobson v. Commonwealth of Massachusetts, 197

U.S. 11 (1905). This extraordinary error allowed the

district court to create a blanket exception for a

common medical procedure—abortion—that falls

squarely

within

Texas’s

generally-applicable

emergency measure issued in response to the COVID19 pandemic. This was a patently erroneous result. In

addition, the court usurped the power of the governing

state authority when it passed judgment on the

wisdom and efficacy of that emergency measure,

something squarely foreclosed by Jacobson.18

18 This case differs from Preterm-Cleveland v. Atty. Gen. of

Ohio, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020),

13a

In Jacobson, the Supreme Court considered a

claim that the state’s compulsory vaccination law—

enacted amidst a growing smallpox epidemic in

Cambridge, Massachusetts—violated the defendant’s

Fourteenth Amendment right “to care for his own

body and health in such way as to him seems best.” Id.

at 26. The Court rejected this claim. Famously, it

explained that the “liberty secured by the Constitution

. . . does not import an absolute right in each person to

be, at all times and in all circumstances, wholly freed

from restraint.” Id. Rather, “a community has the

right to protect itself against an epidemic of disease

which threatens the safety of its members.” Id. at 27.

In describing a state’s police power to combat an

epidemic, the Court explained:

[I]n every well-ordered society charged with

the duty of conserving the safety of its

members the rights of the individual in

respect of his liberty may at times, under the

pressure of great dangers, be subjected to such

which declined to review a TRO against Ohio’s non-essentialsurgeries order. Ohio appealed on the basis that the TRO

“threaten[ed] to inflict irretrievable harms.” Id. at *1. Observing

the TRO was “narrowly tailored” and did not permit “blanket”

provision of abortions, the majority concluded that the TRO

would not inflict irreparable harms and thus that it lacked

jurisdiction over the appeal. Id. at *1–2. By contrast, here

Petitioners seek not appeal but mandamus, a drastic remedy that

we nonetheless find appropriate. Moreover, the TRO here is not

“narrowly tailored” but exempts all abortions from GA-09. The

TRO’s broad sweep also distinguishes this case from recent

district court decisions in Alabama and Oklahoma. See Robinson

v. Marshall, No. 2:19cv365-MHT, 2020 WL 1659700 (M.D. Ala.

Apr. 3, 2020); South Wind Women’s Center v. Stitt, No. CIV-20277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020).

14a

restraint, to be enforced by reasonable

regulations, as the safety of the general public

may demand.

Id. at 29.

The Supreme Court has repeatedly acknowledged

this principle. See, e.g., Lawton v. Steele, 152 U.S. 133,

136 (1894) (recognizing that “the state may interfere

wherever the public interests demand it” and

“discretion is necessarily vested in the legislature to

determine, not only what the interests of the public

require, but what measures are necessary for the

protection of such interests”); Compagnie Francaise de

Navigation a Vapeur v. La. State Bd. of Health, 186

U.S. 380, 393 (1902) (upholding Louisiana’s right to

quarantine passengers aboard vessel—even where all

were healthy—against a Fourteenth Amendment

challenge); Prince v. Massachusetts, 321 U.S. 158,

166–67 (1944)(noting that “[t]he right to practice

religion freely does not include liberty to expose the

community . . . to communicable disease”); United

States v. Caltex, 344 U.S. 149, 154 (1952)

(acknowledging that “in times of imminent peril—

such as when fire threatened a whole community—the

sovereign could, with immunity, destroy the property

of a few that the property of many and the lives of

many more could be saved”).

To be sure, individual rights secured by the

Constitution do not disappear during a public health

crisis, but the Court plainly stated that rights could be

reasonably restricted during those times. Jacobson,

197 U.S. at 29. Importantly, the Court narrowly

described the scope of judicial authority to review

rights-claims under these circumstances: review is

“only” available

15a

if a statute purporting to have been enacted to

protect the public health, the public morals, or

the public safety, has no real or substantial

relation to those objects, or is, beyond all

question, a plain, palpable invasion of rights

secured by the fundamental law.

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

similarly described this review as asking whether

power had been exercised in an “arbitrary,

unreasonable manner,” id. at 28, or through

“arbitrary and oppressive” regulations, id. at 38.

Accord Lawton, 152 U.S. at 137 (“To justify the state

in thus interposing its [police power] in behalf of the

public, it must appear [1] that the interests of the

public generally . . . require such interference; and [2]

that the means are reasonably necessary for the

accomplishment of the purpose, and not unduly

oppressive upon individuals.”).

Jacobson did emphasize, however, that even an

emergency mandate must include a medical exception

for “[e]xtreme cases.” 197 U.S. at 38. Thus, the

vaccination mandate could not have applied to an

adult where vaccination would exacerbate a

“particular condition of his health or body.” Id. at 38–

39. In such a case, the judiciary would be “competent

to interfere and protect the health and life of the

individual concerned.” Id. at 39. At the same time,

Jacobson disclaimed any judicial power to secondguess the state’s policy choices in crafting emergency

public health measures: “Smallpox being prevalent

and increasing at Cambridge, the court would usurp

the functions of another branch of government if it

adjudged, as matter of law, that the mode adopted

under the sanction of the state, to protect the people

16a

at large was arbitrary, and not justified by the

necessities of the case.” Jacobson, 197 U.S. at 28

(emphasis added); see also id. at 30 (“It is no part of

the function of a court or a jury to determine which

one of two modes was likely to be the most effective for

the protection of the public against disease. That was

for the legislative department to determine in the

light of all the information it had or could obtain.”).

The bottom line is this: when faced with a societythreatening epidemic, a state may implement

emergency measures that curtail constitutional rights

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

substantial relation” to the public health crisis and

are not “beyond all question, a plain, palpable

invasion of rights secured by the fundamental law.”

Id. at 31. Courts may ask whether the state’s

emergency measures lack basic exceptions for

“extreme cases,” and whether the measures are

pretextual—that is, arbitrary or oppressive. Id. at 38.

At the same time, however, courts may not secondguess the wisdom or efficacy of the measures. Id. at

28, 30.

Jacobson remains good law. See, e.g., Kansas v.

Hendricks, 521 U.S. 346, 356–57 (1997) (recognizing

Fourteenth Amendment liberties may be restrained

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

Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (rejecting,

based on Jacobson, a § 1983 lawsuit concerning 80hour quarantine of nurse returning from treating

Ebola patients in Sierra Leone). And, most

importantly for the present case, nothing in the

Supreme Court’s abortion cases suggests that

abortion rights are somehow exempt from the

Jacobson framework. Quite the contrary, the Court

17a

has consistently cited Jacobson in its abortion

decisions.

In Roe v. Wade, the Supreme Court announced for

the first time that an expectant mother has a

constitutional right to an abortion. 410 U.S. 113.

Nineteen years later, in Planned Parenthood of

Southeastern Pennsylvania v. Casey, the Court

reaffirmed this right and established the current

standard for abortion restrictions. 505 U.S. 833. Casey

recognized that after a fetus is viable, states may ban

abortion outright, except for pregnancies that

endanger the mother’s life or health. Id. at 846

(plurality opinion). After Casey, there remain two

constitutional restrictions on states’ ability to regulate

abortion. First, states “may not prohibit any woman

from making the ultimate decision to terminate” a

pre-viability pregnancy. Gonzales v. Carhart, 550 U.S.

124, 146 (2007) (quoting Casey, 505 U.S. at 879

(plurality opinion)). In other words, states may not

impose outright bans on pre-viability abortions. See

Jackson Women’s Health Org. v. Dobbs [Jackson II],

945 F.3d 265, 273 (5th Cir. 2019). Second, states “may

not impose” on the right “an undue burden, which

exists if a regulation’s ‘purpose or effect is to place a

substantial obstacle in the path of a woman seeking

an abortion before the fetus attains viability.’” Id.

(quoting Casey, 505 U.S. at 878 (plurality opinion));

see also Whole Woman’s Health v. Hellerstedt, 136 S.

Ct. 2292, 2309 (2016) (explaining “[t]he rule

announced in Casey . . . requires that courts consider

the burdens a law imposes of abortion access together

with the benefits those laws confer”).

None of these cases, so far as we are aware,

involved a state’s postponement of some abortion

18a

procedures in response to a public health crisis—the

context in which Jacobson plainly applies. But three

of the Court’s principal abortion cases—Roe, Casey,

and Carhart—cite Jacobson with approval and

without suggesting that abortion rights are somehow

exempt from its framework. In Roe, the Supreme

Court cited Jacobson as one example of the Court’s

refusal to recognize an “unlimited right to do with

one’s body as one pleases.” 410 U.S. at 154 (citing

Jacobson, 197 U.S. 11). The Court reasoned that the

right to abortion “is not unqualified and must be

considered against important state interests in

regulation.” Id. Similarly, in Casey, the plurality cited

Jacobson as one example of the Court’s balance

between “personal autonomy and bodily integrity” on

one hand and “governmental power to mandate

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

505 U.S. at 857 (citing Jacobson, 197 U.S. at 24–30).

Finally, in the course of upholding a federal restriction

on certain abortion methods in Carhart, the Court

cited Jacobson to show it had “given state and federal

legislatures wide discretion to pass legislation in

areas where there is medical and scientific

uncertainty.” 550 U.S. at 163 (citing Jacobson, 197

U.S. at 30–31).

By all accounts, then, the effect on abortion

arising from a state’s emergency response to a public

health crisis must be analyzed under the standards in

Jacobson. Respondents all but concede this point,

offering no discernible argument that Jacobson has

been superseded or is otherwise inapplicable during a

public health crisis such as the COVID-19 pandemic.

See ECF 53 at 16. The district court, however, failed

to recognize Jacobson’s long-established framework.

While acknowledging that “Texas faces it[s] worst

19a

public health emergency in over a century,” the court

treated that fact as entirely irrelevant. Indeed, the

court explicitly refused to consider how the Supreme

Court’s abortion cases apply to generally-applicable

emergency health measures, saying it would “not

speculate on whether the Supreme Court included a

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

previous writings on the issue.” App. 268.

That analysis is backwards: Jacobson instructs

that all constitutional rights may be reasonably

restricted to combat a public health emergency. We

could avoid applying Jacobson here only if the

Supreme Court had specifically exempted abortion

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

the contrary, the Court has repeatedly cited Jacobson

in abortion cases without once suggesting that

abortion is the only right exempt from limitation

during a public health emergency. In sum, by refusing

even to consider Jacobson—the controlling Supreme

Court precedent that squarely governs judicial review

of rights-challenges to emergency public health

measures—the district court “clearly and indisputably

erred.” JPMorgan Chase, 916 F.3d at 500 (quoting In

re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th

Cir. 2000)) (emphasis omitted). Under our precedents,

that alone is enough to satisfy the second mandamus

prong. See Itron, 883 F.3d at 568 (petitioners had a

“clear and indisputable right to the writ” because

failure to apply the proper legal standard was

“obvious” error); see also In re Ford Motor Co., 591

F.3d 406, 415 (5th Cir. 2009) (granting writ where “[i]t

was patently erroneous for the [district] court to

ignore . . . binding precedent”).

20a

Moreover, the district court’s refusal to

acknowledge or apply Jacobson’s legal framework

produced a “patently erroneous” result. JPMorgan

Chase, 916 F.3d at 500 (quoting Lloyd’s Register, 780

F.3d at 290). Under Jacobson, the district court was

empowered to decide only whether GA-09 lacks a “real

or substantial relation” to the public health crisis or

whether it is “beyond all question, a plain, palpable

invasion” of the right to abortion. 197 U.S. at 31. On

the record before us, the answer to both questions is

no, but the district court did not even ask them.

Instead, the court bluntly declared GA-09 an “outright

ban” on pre-viability abortions and exempted all

abortion procedures, in whatever circumstances, from

the scope of this emergency public health measure.

That was a patently erroneous result.19

The first Jacobson inquiry asks whether GA-09

lacks a “real or substantial relation” to the crisis Texas

faces. Id. The answer is obvious: the district court

itself conceded that GA-09 is a valid emergency

response to the COVID-19 pandemic. The court

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

district court purported to enjoin GA-09 as to all abortion

providers in Texas. But Respondents are only a subset of Texas

abortion providers and did not sue as class representatives. The

district court lacked authority to enjoin enforcement of GA-09 as

to anyone other than the named plaintiffs. See Doran v. Salem

Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither

declaratory nor injunctive relief can directly interfere with

enforcement of contested statutes or ordinances except with

respect to the particular federal plaintiffs”). The district court

should be mindful of this limitation on federal jurisdiction at the

preliminary injunction stage.

21a

recognized, as does everyone involved, that Texas

faces a public health crisis of unprecedented

magnitude and that GA-09 “does not exceed the

governor’s power to deal with the emergency.” App.

268. Our own review of the record easily confirms that

conclusion. GA-09 is supported by findings that (1) “a

shortage of hospital capacity or personal protective

equipment would hinder efforts to cope with the

COVID-19 disaster,” and (2) “hospital capacity and

personal protective equipment are being depleted by

surgeries and procedures that are not medically

necessary to correct a serious medical condition or to

preserve the life of a patient.” App. 34. The order also

references, and reinforces, the Governor’s prior

executive order, GA-08, “aimed at slowing the spread

of COVID-19.” Id.20 Accordingly, GA-09 instructs

licensed health care professionals and facilities to

postpone non-essential surgeries and procedures until

11:59 p.m. on April 21, 2020. App. 35. For their part,

Respondents appear to concede the validity of GA-09

as a general matter: they recognize that Texas faces

an “unprecedented public health crisis” and that

“[g]overnment officials and medical professionals

expect a surge of infections that will test the limits of

a health care system already facing a shortage of

PPE.” ECF 53 at 3.

To be sure, GA-09 is a drastic measure, but that

aligns it with the numerous drastic measures

Petitioners and other states have been forced to take

Tex. Exec. Order No. GA-08 (Mar. 19, 2020),

https://gov.texas.gov/uploads/files/press/EO-GA_08_COVID-19_

preparedness_and_mitigation_FINAL _03-19-2020_1.pdf. The

dissent is therefore mistaken that GA-09 “was not adopted to

serve th[e] interest” in preventing the spread of COVID-19.

Dissent at 12.

22a

in response to the coronavirus pandemic. Faced with

exponential growth of COVID-19 cases, states have

closed schools, sealed off nursing homes, banned social

gatherings,

quarantined

travelers,

prohibited

churches from holding public worship services, and

locked down entire cities. These measures would be

constitutionally intolerable in ordinary times, but are

recognized as appropriate and even necessary

responses to the present crisis. So, too, GA-09. As the

state’s infectious disease expert points out, “[g]iven

the risk of transmission in health care settings” there

is “a sound basis for limiting all surgeries except those

that are immediately medically necessary so as to

prevent the spread of COVID 19.” App. 242. In sum, it

cannot be maintained on the record before us that GA09 bears “no real or substantial relation” to the state’s

goal of protecting public health in the face of the

COVID-19 pandemic. Jacobson, 197 U.S. at 31.

The second Jacobson inquiry asks whether GA-09

is “beyond question, in palpable conflict with the

Constitution.” Id. (emphasis added). The district

court, while not framing the question in those terms,

evidently thought the answer was yes. But the court

reached that conclusion only by grossly misreading

GA-09 as an “outright ban” on all pre-viability

abortions. Properly understood, GA-09 merely

postpones certain non-essential abortions, an

emergency measure that does not plainly violate

Casey in the context of an escalating public health

crisis. As we explain below, however, Respondents will

have the opportunity to show at the upcoming

preliminary injunction hearing that certain

applications of GA-09 may constitute an undue

23a

burden under Casey, if they prove that, “beyond

question,” GA-09’s burdens outweigh its benefits in

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

To begin with, the district court’s central (and

only) premise—that GA-09 is an “outright ban” on all

pre-viability abortions—is plainly wrong. The court

reasoned that GA-09 was by definition invalid in light

of our decisions in Jackson II and Jackson III, which

recognize states cannot ban pre-viability abortions.

App. 267–68. But GA-09 only delays certain nonessential abortions. GA-09 thus differs from the

regulations in Jackson II and III in three key respects.

First, GA-09 expires on April 21, 2020, three weeks

after its effective date. Tex. Gov’t Code Ann.

§ 418.012. Second, GA-09 includes an emergency

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

determination of the administering physician. App.

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

exception for “any procedure” that, if performed under

normal clinical standards, “would not deplete the

hospital capacity or the personal protective equipment

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

These characteristics, which the district court failed to

mention,21 place GA-09 in stark contrast with the

restrictions in Jackson II and III.

Jackson II invalidated Mississippi’s ban on

abortions after fifteen weeks, with narrow exceptions

for “medical emergenc[ies]” and “severe fetal

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

its statement that the order “either bans all non-emergency

abortions in Texas or bans all non-emergency abortions in Texas

starting at 10 weeks of pregnancy.” App. 267–68 (emphasis

added). But the district court did not mention GA-09’s expiration

date, nor cite, quote, or discuss GA-09’s exceptions.

24a

abnormalit[ies].” 945 F.3d at 269 (citations omitted).

The state “conceded that it had identified no medical

evidence that a fetus would be viable at 15 weeks.” Id.

at 270. We invalidated the law as “a prohibition on

pre-viability abortion.” Id. at 272–73. Mississippi also

enacted Senate Bill 2116, which criminalized abortion

“after a ‘fetal heartbeat has been detected,’” Jackson

Women's Health Org. v. Dobbs [Jackson III], 951 F.3d

246, 248 (5th Cir. 2020) (citation omitted), something

that “can occur anywhere between six and twelve

weeks.” Id. The only exceptions were for “death of, or

serious risk of ‘substantial and irreversible’ bodily

injury to” the mother. Id. (citation omitted). We

invalidated the law in a one-page per curiam opinion

relying principally on Jackson II. Id.

Mississippi’s now-invalid laws are quite different

from GA-09. First, both were permanent, whereas GA09 expires in just a few weeks.22 The expiration date

makes GA-09 a delay, not a ban, and also shows GA09 is reasonably tailored to the present crisis. “The

Supreme Court has repeatedly upheld a wide variety

of abortion regulations that entail some delay in the

abortion but that serve permissible Government

purposes,” even those—such as parental consent

22 Respondents imply that GA-09 is effectively indefinite in

duration. For example, they claim that “[f]or many women, the

denial of access to abortion will be permanent . . . given the

uncertain duration of the emergency.” But the district court did

not temporarily restrain some indefinite regulation; it restrained

GA-09, which by all accounts expires on April 21, 2020. App. 35.

If anything, Respondents’ concern about the indefinite duration

“of the emergency” serves to strengthen Petitioners’ position that

“extraordinary measures” must be taken now to mitigate the

“‘exponential increase’ in COVID-19 cases . . . expected over the

next few days and weeks.” ECF 2 at 6.

25a

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

of several weeks.” Garza v. Hargan, 874 F.3d 735, 755

(D.C. Cir. 2017) (en banc) (mem.) (Kavanaugh, J.,

dissenting). Second, Mississippi’s laws contained

narrower medical exceptions than GA-09. The fifteenweek ban exempted only “medical emergenc[ies]” and

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

269. The fetal-heartbeat law exempted only abortions

that would prevent the mother’s death or “substantial

and irreversible” bodily injury. Jackson III, 951 F.3d

at 248. GA-09, by contrast, contains a broader

exception: it allows procedures that are “immediately

medically necessary to correct a serious medical

condition of, or to preserve the life of, a patient who

without immediate performance of the surgery or

procedure would be at risk for serious adverse medical

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

exempts procedures that, if performed under accepted

clinical standards, would not deplete needed medical

resources. Id.

GA-09 also vests far more discretion in physicians

to determine whether the life-or-health exception is

met. The fifteen-week ban in Jackson II required a

“good faith clinical judgment” of a medical emergency,

Miss. Code Ann. § 41-41-191(3)(j), and the physician’s

“reasonable medical judgment” of a qualifying fetal

abnormality, id. § 41-41-191(3)(h). The fetalheartbeat law required the physician to “declare in

writing, under penalty of perjury,” that the abortion

met the exception, id. § 41-41-34.1(2)(b)(ii). Here, GA09 merely states that the health exception attaches

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

There are no statutory requirements confining the

physician’s judgment, and the physician need not

report his determination to the state.

26a

Properly understood, then, GA-09 is a temporary

postponement of all non-essential medical procedures,

including abortion, subject to facially broad

exceptions. Because that does not constitute anything

like an “outright ban” on pre-viability abortion, GA-09

“cannot be affirmed to be, beyond question, in palpable

conflict with the Constitution.” Jacobson, 197 U.S. at

31 (emphasis added). As already discussed, the

Supreme Court’s abortion cases have repeatedly cited

Jacobson to demarcate the limits states may place on

abortion. See Roe, 410 U.S. at 154; Casey, 505 U.S. at

857; Carhart, 550 U.S. at 163. GA-09 is, without

question, one such limit. The order is a concededly

valid public health measure that applies to “all

surgeries and procedures,” App. 35, does not single out

abortion, and merely has the effect of delaying certain

non-essential abortions. Moreover, the order has an

exemption for serious medical conditions, comporting

with Jacobson’s requirement that health measures

“protect the health and life” of susceptible individuals.

Jacobson, 197 U.S. at 39. Indeed, the exemption in

GA-09 goes well beyond the exceptions for “[e]xtreme

cases” Jacobson discussed. Id. In sum, Jacobson offers

no basis for the district court’s conclusion that

abortion rights merit an across-the-board exemption

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

practically strip the [executive] department of its

function to care for the public health and the public

safety when endangered by epidemics of disease.” Id.

at 37.

Moreover, due to its mistaken view that GA-09

“bans” pre-viability abortions, the district court failed

to analyze GA-09 under Casey’s undue-burden test.

App. 268. This was error. Under Casey, courts must

ask whether an abortion restriction is “undue,” which

27a

requires “consider[ing] the burdens a law imposes on

abortion access together with the benefits those laws

confer.” Hellerstedt, 136 S. Ct. at 2310, 2309–10

(discussing Casey, 505 U.S. at 887–98). The district

court was required to do this analysis—that is, it

should have asked whether GA-09 imposes burdens on

abortion that “beyond question” exceed its benefits in

combating the epidemic Texas now faces. Jacobson,

197 U.S. at 31. But that analysis would have required

careful parsing of the evidence. See Hellerstedt, 136 S.

Ct. at 2310 (Casey “place[s] considerable weight upon

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

consideration of the evidence, however, is entirely

absent from the district court’s order.

For example, the district court did not consider

whether different methods of abortion may consume

PPE differently. Our own review of the record, at this

preliminary stage, reveals considerable evidence that

surgical abortions consume PPE.23 By contrast, the

record is unclear how PPE is consumed in medication

23 For instance, Respondents’ complaint states that

clinicians use “gloves, a surgical mask, and protective eyewear”

for surgical abortions. See Complaint at ¶ 54 (App. 17). Their

declarations similarly attest that surgical abortions consume

sterile and non-sterile gloves, masks, gowns, and shoe covers. See

Southwestern Declaration ¶ 19, App. 86; Fort Worth and

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

¶ 12, App. 117; Austin Women’s Declaration ¶ 11, App. 110.

Second-trimester abortions require more extensive PPE,

including face shields. See, e.g., Southwestern Declaration ¶ 19,

App. 86; Austin Women’s Declaration ¶ 11, App. 110. After a

surgical abortion, a provider examines the fetal tissue in a

pathology laboratory, which requires a gown, face shield or

goggles, shoe covers, and gloves. See Fort Worth and McAllen

Declaration ¶ 12, App. 092; WWHA Austin Declaration ¶ 15,

App. 100.

28a

abortions.24 Nor did the district court consider

whether Respondents could prove that GA-09

infringes abortion rights in specific contexts. For

example, in their stay opposition, Respondents argue

that GA-09 cannot apply to “patients whose

pregnancies will, before the expiration of the stay,

reach or exceed twenty-two weeks LMP [“last

menstrual period”], the gestational point at which

abortion may no longer be provided in Texas.” ECF 30

at 21 (brackets added). As Petitioners point out, if

competent evidence shows that a woman is in that

position, nothing prevents her from seeking asapplied relief. ECF 2 at 22 n.28.

24 Respondents assert PPE is not used in “providing the

pills” for medication abortions, ECF 53 at 31, whereas Petitioners

counter that, for medication abortions, Texas requires a physical

examination, ultrasound, and follow-up visits—all of which

consume PPE. ECF 67 at 7–8; ECF 2 at 17–18. See also Tex.

Health & Safety Code § 171.063(c) (requiring physician to

examine pregnant woman before prescribing “an abortioninducing drug”); Tex. Health & Safety Code § 171.012(a)(4)

(requiring

patient

receive

ultrasound

during

initial

examination); Tex. Health & Safety Code § 171.063(e)–(f)

(requiring follow-up appointment to ensure abortion complete);

25 Tex. Admin. Code 139.53(b)(4) (same). Petitioners also point

out that some number of medication abortions result in

incomplete abortions that require hospitalization. ECF 2 at 18;

ECF 67 at 7–8; see also American College of Obstetricians and

Gynecologists, Clinical Guidelines: Medical management of firsttrimester abortion, 89 Contraception 148, 149 (2014),

https://www.contraceptionjournal.org/article/S0010-7824(14)000

26-2/pdf (estimating “efficacy” of medication abortions using

mifepristone). The dissent appears to accept at face value

Respondents’ representations about how medication abortions

consume PPE. See Dissent at 11. We think that evidentiary

determination is better left to the district court at the

preliminary injunction stage.

29a

We do not decide at this stage, however, whether

an injunction narrowly tailored to particular

circumstances would pass muster under the Jacobson

framework. See, e.g., ODonnell v. Harris Cty., 892 F.3d

147, 163 (5th Cir. 2018) (“A district court abuses its

discretion if it does not narrowly tailor an injunction

to remedy the specific action which gives rise to the

order.” (citation and internal quotations omitted)).

These are issues that the parties may pursue at the

preliminary injunction stage, where Respondents will

bear the burden to prove, “by a clear showing,” that

they are entitled to relief. See Mazurek v. Armstrong,

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

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

Ayotte v. Planned Parenthood, 546 U.S. 320, 331

(2006) (injunction should be tailored to “[o]nly [the]

few applications” of challenged statute that “would

present a constitutional problem”). Our overarching

point here is that the district court did not even apply

Casey’s undue-burden test and thus failed to weigh

GA-09’s benefits and burdens in any particular

circumstance. The district court therefore lacked any

basis for declaring that GA-09 constitutes an acrossthe-board violation of Casey.

In sum, based on this record we conclude that GA09—an emergency measure that postpones certain

non-essential abortions during an epidemic—does not

“beyond question” violate the constitutional right to

abortion. Jacobson, 197 U.S. at 31.

Finally, the district court’s extraordinary failure

to evaluate GA-09 under the Jacobson framework also

usurped the state’s authority to craft measures

responsive to a public health emergency. Such judicial

30a

encroachment intrudes on the duties of the “executive

arm of Government” and “on a delicate area of federalstate relations,” further bolstering Texas’s right to

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

In addressing the fourth and final TRO factor—

whether a TRO would disserve the public interest—

the district court did little more than assert its own

view of the effectiveness of GA-09. The district court

did not provide any explanation of its conclusion that

the public health benefits from an emergency measure

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

constitutional rights. Instead, the court rotely

concluded

that

all

injunctions

vindicating

constitutional rights serve the public interest and that

a TRO would “continue the status quo.” App. 270. With

respect, that blinks reality. The status quo Texas

faces, along with the rest of the nation, is a public

health crisis that is making once-in-a-lifetime

demands on citizens, government, industry, and the

medical profession. Where there is a status quo to

preserve, it is certainly true that an injunction does

“not disserve the public interest [if] it will prevent

constitutional deprivations.” Jackson Women’s Health

Org. v. Currier [Jackson I], 760 F.3d 448, 458 n.9 (5th

Cir. 2014). But the essence of equity is the ability to

craft a particular injunction meeting the exigencies of

a particular situation. “Flexibility rather than rigidity

has distinguished it.” Hecht Co. v. Bowles, 321 U.S.

321, 329 (1944). Thus, a court must at the very least

weigh the potential injury to the public health when it

considers enjoining state officers from enforcing

emergency public health laws. A single conclusory

statement that does not explain this balancing falls

far short.

31a

Instead of doing any of this, the district court

substituted its ipse dixit for the Governor’s reasoned

judgment, bluntly concluding that “[t]he benefits of a

limited potential reduction in the use of some personal

protective equipment by abortion providers is

outweighed by the harm of eliminating abortion

access in the midst of a pandemic that increases the

risks of continuing an unwanted pregnancy.” App.

270. Respondents—as well as our dissenting

colleague—share this view. ECF 53 at 2, 17–21;

Dissent at 11–12.

As Jacobson repeatedly instructs, however, if the

choice is between two reasonable responses to a public

crisis, the judgment must be left to the governing state

authorities. “It is no part of the function of a court or

a jury to determine which one of two modes [i]s likely

to be the most effective for the protection of the public

against disease.” Jacobson, 197 U.S. at 30. Such

authority properly belongs to the legislative and

executive branches of the governing authority. In light

of the massive and rapidly-escalating threat posed by

the COVID-19 pandemic, “the court would usurp the

functions of another branch of government if it

adjudged, as matter of law, that the mode adopted

under the sanction of the state, to protect the people

at large was arbitrary, and not justified by the

necessities of the case.” Id. at 28 (emphasis added).

The district court’s order contravened this principle;

Respondents and the dissenting opinion invite us to

do the same. We decline to engage in such

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

To be sure, the judiciary is not completely

sidelined in a public health crisis. We have already

explained that Respondents may seek more targeted

32a

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

preliminary injunction stage. Additionally, a court

may inquire whether Texas has exploited the present

crisis as a pretext to target abortion providers sub

silentio. See Lawton, 152 U.S. at 137. Respondents

make allegations to that effect, contending that

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

pandemic to achieve their longtime goal of banning

abortion in Texas.” ECF 53 at 1. Nonetheless, on this

record, we see no evidence that GA-09 was meant to

exploit the pandemic in order to ban abortion or was

crafted “as some kind of ruse to unreasonably

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

abortion could occur.” Garza, 874 F.3d at 753 n.3

(Kavanaugh, J., dissenting). To the contrary, GA-09

applies to a whole host of medical procedures and

regulates abortions evenhandedly with those other

procedures. The order itself does not even mention

abortion—or any other particular procedure—at all.

Instead, it refers broadly to “all surgeries or

procedures” that meet its criteria.25 Respondents

point to no evidence that GA-09 applies any

differently to abortions than to any other procedure.

Nor do they cite any comparable procedures that are

exempt from GA-09’s requirements. On the other

hand, Petitioners produce evidence that myriad other

25 The district court relied heavily on the Attorney General’s

press release of March 23, 2020, which clarified that in the

Attorney General’s view, the GA-09 “includ[es] abortion

providers.” App. 31, 264–65. But the district court gave no reason

to believe this press release has the force of law. And, in any

event, the press release also reads the order to apply “to all

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

ophthalmological, and dental procedures, as well as . . .

orthopedic surgeries or any type of abortion that is not medically

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

33a

procedures are affected just as abortions are. For

example, Petitioners offer a declaration from Dr.

Timothy Harstad, M.D., who testified that some

cosmetic, bariatric, orthopedic, and gynecologic

procedures “are being suspended” alongside abortions.

App. 230–31. Petitioners also point to the fact that the

Centers for Medicare & Medicaid Services have

recommended postponing several other critical

procedures, including endoscopies and colonoscopies,

and even some oncological and cardiovascular

procedures for low-risk patients.26 This evidence

undermines Respondents’ contention that GA-09

exploits the present crisis to ban abortion.

Respondents will have the opportunity, of course, to

present additional evidence in conjunction with the

district court’s preliminary injunction hearing

scheduled for April 13, 2020. Our decision, however,

must be limited to the record before us. Based on that

record, we cannot say that GA-09 is a pretext for

targeting abortion.

The district court, for its part, did not even

purport to engage in the sort of limited pretext inquiry

contemplated by cases like Jacobson and Lawton.

Instead, the district court overstepped its proper role

and imposed its own judgment about how the COVID19 pandemic should be handled with respect to

abortion.27 This was a usurpation of the state’s power.

Will, 389 U.S. at 95.

26 See CMS Adult Elective Surgery and Procedures

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

pdf (last visited April 6, 2020).

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

between abortion providers and their patients cannot further the

34a

In sum, based on the record before us, we conclude

that Petitioners have a clear and indisputable right to

issuance of the writ, satisfying the second mandamus

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

We now consider whether Petitioners have shown

they “have no other adequate means” to obtain the

relief they seek. Cheney, 542 U.S. at 380. This

requirement is “designed to ensure that the writ will

not be used as a substitute for the regular appeals

process.” Id. at 380–81. Mandamus is generally

unavailable for review of “district court decisions that,

while not immediately appealable, can be reviewed at

some juncture.” In re Crystal Power Co., 641 F.3d 82,

83 (5th Cir. 2011). “[F]or an appeal to be an

inadequate remedy, there must be ‘some obstacle to

relief beyond litigation costs that renders obtaining

relief not just expensive but effectively unobtainable.’”

goals of GA-09 if the same order permits in-person contact

between providers and patients in other settings.” Dissent at 13.

But this is true of all surgeries and procedures. Nonetheless, in

part to “limit[ ] exposure of patients and staff to the virus that

causes COVID-19,” CMS recommends postponing “non-essential

surgeries and other procedures.” See CMS Adult Elective

Surgery and Procedures Reccomendations (Mar. 15, 2020),

https://www.cms.gov/files/document/31820-cms-adult-electivesurgery-and-procedures-recommendations.pdf. GA-09 notes that

it follows recommendations from “the President’s Coronavirus

Task Force, the CDC, the U.S. Surgeon General, and the Centers

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

disease expert said that the risk of spreading the virus is real,

“especially in the health care setting due to the proximity.”

Marier Declaration ¶ 6, App. 240. We reiterate that Jacobson

commands that it is not the court’s role “to determine which one

of two modes [i]s likely to be most effective for the protection of

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

35a

Depuy Orthopaedics, 870 F.3d at 353 (quoting Lloyd’s

claimed must be “truly irremediable on ordinary

appeal.” JPMorgan Chase, 916 F.3d at 499 (cleaned

up) (quoting Depuy, 870 F.3d at 352–53).

Given the surging tide of COVID-19 cases and

deaths, Petitioners have made this showing. In millrun cases, it might be a sufficient remedy to simply

wait until the expiration of the TRO, and then appeal

an adverse preliminary injunction. See 28 U.S.C.

§ 1292(a)(1). In other cases, a surety bond may ensure

that a party wrongfully enjoined can be compensated

for any injury caused. See Fed. R. Civ. P. 65(c).

Those methods would be woefully inadequate

here. The TRO is set to expire April 13, 2020, two

weeks from the date it issued. App. 271. But time is of

the essence when it comes to preventing the spread of

COVID-19 and conserving medical resources critically

needed to care for patients. To illustrate the speed at

which the pandemic has been unfolding: As of March

20 there were, per the WHO’s daily report, 234,073

confirmed cases of COVID-19 and 9,840 deaths.28 As

of April 6, there were 1,210,956 confirmed cases, and

67,954 deaths.29 As of April 1, Texas had 4,544 cases;

28 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE

2019 (COVID-19) SITUATION REPORT – 60 (March 20, 2020),

https://www.who.int/docs/default-source/coronaviruse/situationreports/20200320-sitrep-60-covid-19.pdf?sfvrsn=d2bb4f1f_2.

29 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE

2019 (COVID-19) SITUATION REPORT – 77 (April 6, 2020),

https://www.who.int/docs/default-source/coronaviruse/situationreports/20200406-sitrep-77-covid-19.pdf?sfvrsn=21d1e632_2.

36a

by April 6, the number had risen to 7,359 cases.30 That

number will undoubtedly rise substantially in coming

days absent successful preventative measures. As the

Dallas Morning News wrote on April 1: “The greatest

number of cases will come in about a 10-day period

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

conceded that “[g]overnment officials and medical

professionals expect a surge of infections that will test

the limits of a health care system already facing a

shortage of PPE[.]” ECF 53 at 3. Respondents also

concede that surgical abortions consume PPE, such as

“gloves, a surgical mask, disposable protective

eyewear, disposable or washable gowns, and ... shoe

covers.” Id. at 6. Moreover, abortion is a common

procedure: the evidence shows 53,843 total

abortions—36,793 of those surgical—were performed

in Texas in 2017. App. 222. In sum, were Petitioners

required to wait and appeal an adverse preliminary

injunction, the harms from a broad suspension of GA09 for all abortion procedures could not “be put back

in the bottle.” Volkswagen, 545 F.3d at 319. The error

would be “truly irremediable” through ordinary

appeal. JPMorgan Chase, 916 F.3d at 499 (cleaned

up).32

30 Johns Hopkins University & Medicine Coronavirus

Resource Center, Coronavirus COVID-10 Global Cases,

https://coronavirus.jhu.edu/map.html (last visited April 6, 2020).

31 Steven Gjerstad, U.S. cases of COVID-19 will peak in a

couple of weeks; Only social distancing will break the virus,

DALLAS MORNING NEWS (April 1, 2020), https://www.dallasnews.

com/opinion/commentary/2020/04/01/us-cases-of-covid-19-willpeak-in-a-couple-of-weeks-only-social-distancing-will-break-thevirus/

32 Federal courts of appeals have issued writs of mandamus

to vacate TROs in a number of less-urgent scenarios. See, e.g., In

re King World Prods., Inc., 898 F.2d 56 (6th Cir. 1990) (vacating

37a

We therefore conclude no other adequate means

exist for Petitioners to obtain the relief they seek, thus

satisfying the first mandamus prong.

Finally, we must decide whether to exercise our

discretion to issue the writ. See Gee, 941 F.3d at 170.

“Discretion is involved in defining both the

circumstances that justify exercise of writ power and

also the reasons that may justify denial of a writ even

though the circumstances might justify a grant.” 16

WRIGHT & MILLER, supra, § 3933. “The longstanding

view is that discretion to issue the writs should be

exercised only in special cases . . . .” Id.

We are persuaded that this petition presents an

extraordinary case justifying issuance of the writ.

First, as we have noted, the current global pandemic

has caused a serious, widespread, rapidly-escalating

public health crisis in Texas. Petitioners’ interest in

protecting public health during such a time is at its

zenith. In the unprecedented circumstances now

facing our society, even a minor delay in fully

implementing the state’s emergency measures could

have major ramifications because, as the evidence

shows, an “exponential increase in COVID-19 cases is

TRO enjoining news organization from broadcasting video

recording); Truck Drivers Local Union No. 807, Int’l Bhd. of

Teamsters v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976) (vacating

TRO enjoining Board from conducting unfair labor practice

proceedings); O’Neill v. Battisti, 472 F.2d 789 (6th Cir. 1972)

(vacating TRO enjoining Ohio Supreme Court from enforcing its

own disciplinary order or taking further disciplinary action

against state judge). A fortiori, mandamus is an appropriate

mechanism for challenging the TRO in the present case, which

restrains Petitioners from fully implementing emergency public

health measures in a time of unprecedented crisis.

38a

expected over the next few days and weeks.” App. 224–

25. It is hard to imagine a more urgent situation.

Second, the district court’s refusal to acknowledge

the governing framework from Jacobson was a clear

abuse of discretion that produced a patently erroneous

result: bestowing on abortion providers a blanket

exemption from a generally-applicable emergency

public health measure. Not stopping there, the district

court usurped the power of state authorities by

passing judgment on the wisdom and efficacy of those

emergency measures. These are “extraordinary”

errors. See Volkswagen, 545 F.3d at 318.

Third, “writs of mandamus are supervisory in

nature and are particularly appropriate when the

issues also have an importance beyond the immediate

case.” Id. at 319. While unclear how long the current

crisis will last, it is probable that other legal disputes

will arise pitting claims of private rights against the

states’ authority to preserve public health and safety.

Indeed, 34 states plus the District of Columbia have

filed amicus briefs in this case, demonstrating the

widespread importance of the issues involved. We also

view the “sheer magnitude” of the district court’s error

and its effect on the state’s ongoing emergency efforts

to slow COVID-19 as evidence that the “safety valve”

of mandamus is appropriate. Itron, 883 F.3d at 568–

69 (cleaned up).

Lastly, we note that this case is distinguishable

from our recent decisions in Gee and JPMorgan Chase,

where, in our discretion, we declined to issue writs of

mandamus. In Gee, we concluded that, even though

the district court clearly abused its discretion in

failing to undertake the required jurisdictional

analysis, mandamus was nevertheless not required

39a

because (1) it was unclear what result the district

court would reach once it performed the correct

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

went beyond jurisdiction and challenged the plaintiffs’

theory on the merits. See 941 F.3d at 170. In light of

those considerations, we deemed it imprudent to issue

the writ. Id. In JPMorgan Chase, we concluded that

the district court’s error, while significant, was not

“clear and indisputable” because it “followed

numerous others” who had made the same mistake.

916 F.3d at 504.

We confront vastly different circumstances here.

To begin with, unlike in Gee, the district court

addressed the merits of Respondents’ claim, though it

did so in a manner that overlooked the controlling

framework and produced patently erroneous results.

See Volkswagen, 545 F.3d at 319. Given the severe

time constraints here, we do not have the luxury to

wait and see what approach the district court might

take on the merits. Second, unlike in JPMorgan

Chase, the district court’s decision here did not align

with “numerous” other courts which had confronted

the same issue. To the contrary, the district court cited

not a single case addressing restrictions on abortion

during a public health crisis. Therefore, “we are aware

of nothing that would render the exercise of our

discretion to issue the writ inappropriate.”

Volkswagen, 545 F.3d at 319.

For those reasons, we exercise our discretion to

issue a writ of mandamus. See Cheney, 542 U.S. at

381.

IV.

The petition for writ of mandamus is GRANTED,

directing the district court to vacate the TRO entered

40a

on March 30, 2020. Petitioners’ emergency motion to

stay the TRO pending resolution of their mandamus

petition is DENIED AS MOOT. Our temporary stay of

March 31, 2020, is LIFTED. Any future appeals or

mandamus petitions in this case will be directed to

this panel and will be expedited. Gee, 941 F.3d at 173;

In re First South Sav. Ass’n, 820 F.2d 700, 716 (5th

Cir. 1987). The mandate shall issue forthwith.

41a

JAMES L. DENNIS, dissenting.

Eight days ago, the district court temporarily

restrained Texas’s temporary ban of all medication

abortions and procedural abortions. “The benefits of a

limited potential reduction in the use of some personal

protective equipment by abortion providers,” the

district court explained, “is outweighed by the harm of

eliminating abortion access in the midst of a pandemic

that increases the risks of continuing an unwanted

pregnancy, as well as the risks of travelling to other

states in search of time-sensitive medical care.” Other

states, including Oklahoma,1 Alabama,2 and Ohio,3

1 Okla. Exec. Order No. 2020-07 (Mar. 24, 2020),

https://www.sos.ok.gov/documents/executive/1919.pdf;

Press

Release, Office of the Oklahoma Governor, Governor Stitt

Clarifies Elective Surgeries and Procedures Suspended under

Executive Order (Mar. 27, 2020), https://www.governor.ok.gov/

articles/press_releases/governor-stitt-clarifies-elective-surgeries

(“[A]ny type of abortion services . . . which are not a medical

emergency . . . or otherwise necessary to prevent serious health

risks to the unborn child’s mother are included in that Executive

Order.”)

2 Order of the State Health Officer Suspending Certain

Public Gatherings Due to Risk of Infection by COVID-19 (Mar.

27,

2020),

https://governor.alabama.gov/assets/2020/03/

Amended-Statewide-Social-Distancing-SHO-Order-3.27.2020FINAL.pdf; Robinson v. Marshall, No. 2:19CV365-MHT, 2020

WL 1520243, at *1 (M.D. Ala. Mar. 30, 2020) (explaining that the

Alabama state’s attorney “in his oral representations on the

record, took the position that the March 27 order requires the

postponement of any abortion that is not medically necessary to

protect the life or health of the mother”).

3 Ohio Department of Health, RE: Director’s Order for the

Management of Non-essential Surgeries and Procedures

throughout Ohio (Mar. 17, 2020); Preterm-Cleveland v. Attorney

Gen. of Ohio, No. 1:19-cv-00360, slip op. at 2-3 (S.D. Ohio Mar.

30, 2020) (stating that Ohio’s attorney general sent letters to

abortion providers citing the Director’s Order and they must

42a

have attempted to limit a woman’s access to abortion

during the COVID-19 pandemic. Thus far, none of

those attempts has been successful in the face of a

constitutional challenge, either in the district courts

or on appeal. South Wind Women’s Center LLC v. Stitt,

No. CIV-20-277-G, 2020 WL 1677094, at *2 (W.D.

Okla. Apr. 6, 2020) (“[W]hile the current public health

emergency allows the state of Oklahoma to impose

some of the cited measures delaying abortion

procedures, it has acted in an ‘unreasonable,’

‘arbitrary’ and ‘oppressive’ way—and imposed an

‘undue burden’ on abortion access—in imposing

requirements that effectively deny a right of access to

abortion. Further, the court concludes that the benefit

to public health of the ban on medication abortions is

minor and outweighed by the intrusion on Fourteenth

Amendment rights caused by that ban.”); Robinson v.

Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at

*2 (M.D. Ala. Mar. 30, 2020) (“Because Alabama law

imposes time limits on when women can obtain

abortions, the March 27 order is likely to fully prevent

some women from exercising their right to obtain an

abortion. And for those women who, despite the

mandatory postponement, are able to vindicate their

right, the required delay may pose an undue burden

that is not justified by the State’s purported

rationales.”); Preterm-Cleveland v. Attorney Gen. of

Ohio, No. 1:19-cv-00360, slip op. at 7 (S.D. Ohio Mar.

30, 2020) (“Defendants have not demonstrated to the

Court, at this point, that Plaintiffs’ performance of

these surgical procedures will result in any beneficial

amount of net saving of PPE in Ohio such that the net

“immediately stop performing non-essential and elective surgical

abortions”).

43a

saving of PPE outweighs the harm of eliminating

abortion.”), appeal dismissed, No. 20-3365 (6th Cir.

Apr. 6, 2020). The American College of Obstetricians

and Gynecologists released a statement that “abortion

should not be categorized” as a “procedure[] that can

be delayed during the COVID-19 pandemic.”4 The

statement emphasized, as the district court did, that

abortion is “a time-sensitive service for which a delay

of several weeks, or in some cases days, may increase

the risks or potentially make it completely

inaccessible.”

Today, the majority concludes that allowing

women in Texas access to time-sensitive reproductive

healthcare, a right supported by almost 50 years of

Supreme Court precedent, was a “patently erroneous”

result that must be remedied by “one of the most

potent weapons in the judicial arsenal.” See In re

JPMorgan Chase & Co., 916 F.3d 494, 504 (5th Cir.

2019) (quoting Cheney v. U.S. Dist. Court for D.C., 542

U.S. 367, 380 (2004). Unfortunately, this is a

recurring phenomenon in this Circuit in which a

result follows not because of the law or facts, but

because of the subject matter of this case. See June

Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 835 (5th Cir.

2018) (“[W]hen abortion shows up, application of the

rules of law grows opaque.” (Higginbotham, J.,

dissenting)), cert. granted, 140 S. Ct. 35 (2019)). For

the reasons that follow, I dissent.

4 Joint Statement on Abortion Access During the COVID-19

Outbreak, THE AMERICAN COLLEGE OF OBSTETRICS AND

GYNECOLOGISTS (Mar. 18, 2020), https://www.acog.org/news

/news-releases/2020/03/joint-statement-on-abortion-accessduring-the-covid-19-outbreak.

44a

On March 22, 2020, Texas Governor Greg Abbott

signed Executive Order GA-09 (“GA-09”) to expand

hospital bed capacity as the state responds to the

COVID-19 virus. The Executive Order, which “ha[s]

the force and effect of law,” TEX. GOV’T CODE ANN.

§ 418.012 (West 2019), states that until 11:59 p.m. on

April 21, 2020,

[a]ll licensed health care professionals and all

licensed health care facilities shall postpone

all surgeries and procedures that are not

immediately medically necessary to correct a

serious medical condition of, or to preserve the

life of, a patient who without immediate

performance of the surgery or procedure

would be at risk for serious adverse medical

consequences or death, as determined by the

patient’s physician.5

The Executive Order exempts “any procedure that, if

performed in accordance with the commonly accepted

standard of clinical practice, would not deplete the

hospital capacity or the personal protective equipment

needed to cope with the COVID-19 disaster.”

The day after the Governor signed GA-09, Texas

Attorney General Ken Paxton issued a news release

stating that GA-09’s prohibition on medically

unnecessary surgeries and procedures “applies

throughout the State and to all surgeries and

procedures that are not immediately medically

necessary, including . . . any type of abortion that is

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.

45a

not medically necessary to preserve the life or health

of the mother.”6 The release states that “[f]ailure to

comply with an executive order issued by the governor

related to the COVID-19 disaster can result in

penalties of up to $1,000 or 180 days of jail time.”

Paxton emphasized that “[n]o one is exempt from the

governor’s executive order on medically unnecessary

surgeries and procedures, including abortion

providers,” and “[t]hose who violate the governor’s

order will be met with the full force of the law.”

Several organizations that provide abortion

services in Texas and a board-certified family

medicine physician who provides abortion care

(collectively, “Respondents”) brought an action in the

Western District of Texas under 42 U.S.C. § 1983,

challenging GA-09 and the Texas Medical Board’s

emergency amendment to Title 22 Texas

Administrative Code section 187.57, which imposes

the same requirements. Respondents moved for a

temporary restraining order (“TRO”) to enjoin

enforcement of GA-09 and the Emergency Rule insofar

as they purport to ban all medication abortions and

procedural abortions, as the attorney general’s news

release suggests.

I include this explanation not to reiterate the

procedural history the majority has already explained,

but to emphasize what exactly we are reviewing.

6 News Release, Office of the Texas Attorney General,

Health Care Professionals and Facilities, Including Abortion

Providers, Must Immediately Stop All Medically Unnecessary

Surgeries and Procedures to Preserve Resources to Fight

COVID-19 Pandemic (Mar. 23, 2020), https://www.texas

attorneygeneral.gov/news/releases/health-care-professionalsand-facilities-including-abortion-providers-must-immediatelystop-all.

46a

Respondents brought a constitutional challenge to

GA-09, and though the attorney general’s

interpretation of that order constitutes the crux of the

constitutional issues present in this case, it is GA-09

and only GA-09 that we are interpreting. The majority

agrees that the attorney general’s news release

interpreting GA-09 is not legally binding. Maj. Op. at

25 n.22. The attorney general cannot modify the text

of the governor’s executive order through his news

release; only the governor has the power to “issue

executive orders . . . [that] have the force and effect of

law.” TEX. GOV’T CODE ANN. § 418.012. And GA-09

grants abortion providers the power to determine

whether a procedure is “immediately medically

necessary to correct a serious medical condition of . . .

a patient who without immediate performance of the

surgery or procedure would be at risk for serious

adverse medical consequences.” It also permits an

exception for any abortion that “if performed in

accordance with the commonly accepted standard of

clinical practice, would not deplete the hospital

capacity or the personal protective equipment needed

to cope with the COVID-19 disaster.”

The attorney general’s news release interprets

GA-09 to ban “any type of abortion that is not

medically necessary to preserve the life or health of

the mother,” regardless, apparently, of whether such

a procedure (1) in the view of the patient’s physician,

is immediately medically necessary and would put a

patient at risk for serious adverse medical

consequences if not performed, or (2) would fall under

GA-09’s exception for procedures that do not utilize

PPE or deplete hospital capacity.

47a

II.

The district court granted Respondents’ TRO,

halting enforcement of GA-09 insofar as it bans all

procedural and medication abortions. Petitioners seek

a writ of mandamus to remedy what they describe as

a “clearly and indisputably erroneous” decision. The

Supreme Court and this court have repeatedly

emphasized that mandamus is an “extraordinary

remedy” to be exercised only in “exceptional

circumstances.” See Cheney, 542 U.S. at 380 (quoting

Will v. United States, 389 U.S. 90, 95 (1967)); In re

Lloyd’s Register N. Am., Inc., 780 F.3d 283, 288, 294

(5th Cir. 2015); In re Volkswagen of Am., Inc., 545 F.3d

304, 309, 311 (5th Cir. 2008). To obtain relief,

Petitioners “must do more than prove merely that the

court erred.” In re Occidental Petroleum Corp., 217

F.3d 293, 295 (5th Cir. 2000). “The traditional use of

the writ . . . has been to confine the court against

which mandamus is sought to a lawful exercise of its

prescribed jurisdiction.” Cheney, 542 U.S. at 380

(alteration omitted) (quoting Roche v. Evaporated

Milk Ass’n, 319 U.S. 21, 26 (1943)). Its use is justified

in “only exceptional circumstances amounting to a

judicial ‘usurpation of power,’ or a ‘clear abuse of

discretion.’” Id. (quoting Will, 389 U.S. at 95; Bankers

Life & Casualty Co. v. Holland, 346 U.S. 379, 383

(1953)).

Mandamus relief generally requires that (1) “the

party seeking issuance of the writ [must] have no

other adequate means to attain the relief he desires—

a condition designed to ensure that the writ will not

be used as a substitute for the regular appeals

process”; (2) “the petitioner must satisfy the burden of

showing that [his] right to issuance of the writ is clear

48a

and indisputable”; and (3) “the issuing court, in the

exercise of its discretion, must be satisfied that the

writ is appropriate under the circumstances.” Id. at

380-81 (internal quotation marks and citations

omitted).

Under the “clear and indisputable” prong, id.,

Petitioners must show the district court’s

determination was a “clear abuse[] of discretion that

produce[d] patently erroneous results.” In re Lloyd’s

Volkswagen of Am., Inc., 545 F.3d at 312). Both

conditions—clear abuse of discretion and a patently

erroneous result—must be met to obtain mandamus

relief. See id.

The majority concludes that the district court

clearly erred by not applying Jacobson v.

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

and exercised only in “exceptional circumstances.” See

Cheney, 542 U.S. at 380 (quoting Will v. United States,

389 U.S. 90, 95 (1967)); In re Lloyd’s Register N. Am.,

Inc., 780 F.3d 283, 288, 294 (5th Cir. 2015); In re

Volkswagen of Am., Inc., 545 F.3d 304, 309, 311 (5th

Cir. 2008). To obtain relief, Petitioners “must do more

than prove merely that the court erred.” In re

Occidental Petroleum Corp., 217 F.3d 293, 295 (5th

Cir. 2000). “The traditional use of the writ . . . has

been to confine the court against which mandamus is

sought to a lawful exercise of its prescribed

jurisdiction.” Cheney, 542 U.S. at 380 (alteration

omitted) (quoting Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 26 (1943)). Its use is justified in “only

exceptional circumstances amounting to a judicial

‘usurpation of power,’ or a ‘clear abuse of discretion.’”

49a

Id. (quoting Will, 389 U.S. at 95; Bankers Life &

Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)).

Mandamus relief generally requires that (1) “the

party seeking issuance of the writ [must] have no

other adequate means to attain the relief he desires—

a condition designed to ensure that the writ will not

be used as a substitute for the regular appeals

process”; (2) “the petitioner must satisfy the burden of

showing that [his] right to issuance of the writ is clear

and indisputable”; and (3) “the issuing court, in the

exercise of its discretion, must be satisfied that the

writ is appropriate under the circumstances.” Id. at

380-81 (internal quotation marks and citations

omitted).

Under the “clear and indisputable” prong, id.,

Petitioners must show the district court’s

determination was a “clear abuse[] of discretion that

produce[d] patently erroneous results.” In re Lloyd’s

Volkswagen of Am., Inc., 545 F.3d at 312). Both

conditions—clear abuse of discretion and a patently

erroneous result—must be met to obtain mandamus

relief. See id.

The majority concludes that the district court

clearly erred by not applying Jacobson v.

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

and its result, allowing medication and procedural

abortions to proceed, was patently erroneous. It also

concludes that “the court usurped the power of the

governing state authority when it passed judgment on

the wisdom and efficacy of those emergency measures,

something squarely foreclosed by Jacobson.” Maj. Op.

at 9-10. For several reasons, the majority is wrong.

50a

III.

Jacobson,

the

city

Cambridge,

Massachusetts, pursuant to state statute, passed a

regulation requiring all of its citizens to receive a

smallpox vaccination to combat a smallpox outbreak.

197 U.S. at 12. Jacobson challenged the regulation,

arguing that it violated his Fourteenth Amendment

right “to care for his own body and health in such a

way as to him seems best.” Id. at 26. The Court

explained that the state’s action in compelling

vaccination was an exercise of its police power, which

“must be held to embrace, at least, such reasonable

regulations established directly by legislative

enactment as will protect the public health and the

public safety.” Id. at 25. In rejecting Jacobson’s

constitutional challenge, the Court explained “[e]ven

liberty itself, the greatest of all rights, is not

unrestricted license to act according to one’s own will.

It is only freedom from restraint under conditions

essential to the equal enjoyment of the same right by

others.” Id. at 26-27. The Court explained, however,

that individual rights are not gutted during a crisis:

Courts have a duty to review a state’s exercise of their

police power where the state’s action (1) goes “beyond

the necessity of the case, and, under the guise of

exerting a police power . . . violate[s] rights secured by

the Constitution,” (2) “has no real or substantial

relation to” “protect[ing] the public health, the public

morals, or the public safety,” or (3) “is, beyond all

question, a plain, palpable invasion of rights secured

by the fundamental law.” Id. at 28, 30. Jacobson, then,

stands for the proposition that a state by its

legislature may utilize its police power to enact laws

to protect the public health and safety, even though

such laws may impose restraints on citizens’ liberties,

51a

so long as that regulation is “justified by the

necessities of the case” and does not violate rights

secured by the Constitution “under the guise of

exerting a police power.” Id. at 28-29.

This case is clearly distinguishable from Jacobson.

There, the city required its citizens to get a smallpox

vaccine to stop the spread of a smallpox outbreak. The

measure adopted by the city related directly to the

public health crisis—every citizen who did not receive

the vaccine could actively spread the disease, and

therefore mandatory vaccination actively curbed the

disease’s spread. The thread connecting GA-09 to

combatting COVID-19 is more attenuated—premised

not on the idea that abortion providers are spreading

the virus, but that their continuing operation requires

the use of resources that should be conserved and

made available to healthcare workers fighting the

outbreak. This reasoning requires the additional link

that those PPE resources denied to abortion providers

are indeed conserved, are significant in amount, and

can realistically be reallocated to healthcare workers

fighting COVID-19, a showing that Petitioners have

not made.

The majority claims that “Jacobson disclaimed

any judicial power to second-guess the policy choices

made by the state in crafting emergency public health

measures.” Maj. Op. at 12. But the Court did not

conclude that an emergency situation deprives courts

of their duty and power to uphold the constitution—

quite the opposite, in fact.

52a

The Court in Jacobson determined that the

Massachusetts law should not be invalidated because

“[s]mallpox being prevalent and increasing in

Cambridge, the court would usurp the functions of

another branch of government if it adjudged, as a

matter of law, that the mode adopted under the

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

arbitrary, and not justified by the necessities of the

case.” Jacobson, 197 U.S. at 28 (emphases added). The

Court certainly did not disclaim any power to so rule,

under

appropriate

circumstances,

however,

explaining:

We say necessities of the case, because it

might be that an acknowledged power of a

local community to protect itself against an

epidemic threatening the safety of all might be

exercised in particular circumstances and in

reference to particular persons in such an

arbitrary, unreasonable manner, or might go

so far beyond what was reasonably required

for the safety of the public, as to authorize or

compel the courts to interfere for the

protection of such persons.

Id. The Court in Jacobson also explained that it had

previously “recognized the right of a state to pass

sanitary laws, laws for the protection of life, liberty,

[and] health . . . within its limits.” Id. (citing Hannibal

& St. J.R. Co. v. Husen, 95 U. S. 465, 471-73 (1877)).

While states have the right to pass such laws, the

Court explained, the courts have a “duty to hold . . .

invalid” laws that “went beyond the necessity of the

case, and, under the guise of exerting a police power,

invaded the domain of Federal authority, and violated

rights secured by the Constitution.” Id.

53a

Thus, the Court clearly anticipated that courts

would exercise judicial oversight over a state’s

decision to restrict personal liberties during

emergencies. See id. Jacobson merely acknowledged

that what is reasonable during an emergency is

different from what is reasonable under normal

circumstances, and that courts must not act as superexecutives in an emergency. Given the language of

Jacobson, then, the Court was concerned with both

what the majority focuses on—the state’s ability to

adequately protect its citizens during a public health

crisis—and what the majority ignores—the courts’

ability to protect citizens’ constitutional rights when

states attempt to unjustifiably seize and wield power

in the name of the health and safety.

Therefore, Jacobson reaffirms the district court’s

duty, and our duty, “to hold [GA-09] invalid” if it (1)

goes “beyond the necessity of the case, and, under the

guise of exerting a police power . . . violate[s] rights

secured by the Constitution,” (2) “has no real or

substantial relation to” “protect[ing] the public health,

the public morals, or the public safety,” or (3) “is,

beyond all question, a plain, palpable invasion of

rights secured by the fundamental law.” See id. at 28,

30.

IV.

After concluding that the district court clearly

abused its discretion in not relying on Jacobson, the

majority determines that this error produced a

patently erroneous result. Maj. Op. at 15-23. The

majority claims that the district court’s conclusion

that GA-09 amounts to a previability ban is patently

erroneous. Maj. Op. at 17. In my view, this

“conclusion” does not accurately characterize the

54a

“result” of the district court’s order. See In re

Volkswagen of Am., Inc., 545 F.3d at 310 (“[W]e only

will grant mandamus relief when such errors produce

a patently erroneous result.” (emphasis added)). The

result of the district court’s order is to uphold women’s

rights to abortions and to allow medical and

procedural abortions to proceed. That result is not

patently erroneous and therefore does not warrant

mandamus relief. Contrary to the majority’s view,

nothing in Jacobson or any of the Supreme Court’s

cases requires a different result.

The goals of GA-09 are furthered by restricting

abortions, according to Petitioners, because abortions:

(1) “reduce[] the scarce supply of PPE available to

healthcare providers treating COVID-19 patients,” (2)

“result[] in the hospitalization of women,” reducing

hospital capacity for COVID-19 patients, and (3)

“contribute[] to the spread of the COVID-19 virus.”

Though GA-09 does not define PPE, Respondents

explain that the term is generally understood to refer

to N95 respirators, surgical masks, non-sterile and

sterile gloves, and disposable protective eyewear,

gowns, and hair and shoe covers. In response to

Petitioners’ argument that abortions will deplete PPE

necessary for healthcare providers treating COVID-19

patients, Respondents contend that abortions utilize

little or no PPE and that abortions are time-sensitive

procedures.

Regarding the first point, whether an abortion

takes no PPE or some PPE depends on the type of

procedure. Procedural abortions in Texas are singleday procedures that, unlike surgeries, require no

hospital bed, incision, general anesthesia, or sterile

55a

field. During the procedure, the providers use PPE

such as gloves, a surgical mask, disposable protective

eyewear, disposable or washable gowns, and hair and

shoe covers. Most Respondents do not have N95

respirators, and those that do have only a small

supply that they rarely, if ever, use. Medication

abortions, which involve only taking medications by

mouth, require no PPE to administer the medication,

and may require the use of gloves only at pre- and

post-procedure appointments, depending on the

circumstances. Petitioners identify no other

treatment through oral medication that would be

affected by GA-09.

Moreover, Respondents point out that Petitioners’

PPE conservation argument mistakenly assumes that

a patient unable to obtain an abortion will not

otherwise need medical care that requires the

consumption of PPE. Pregnant patients who cannot

access abortion require prenatal care and must often

undergo unplanned hospital visits. And to the extent

patients are prevented from obtaining abortions

altogether,

childbirth

and

delivery

require

exponentially more PPE than an abortion. Denying

pregnant patients access to abortion now may simply

change the purpose for which the PPE is used, without

any surplus that is able to be reallocated to healthcare

workers treating COVID-19 patients. Other pregnant

patients with the resources to do so may choose to seek

abortions outside of Texas—a result clearly contrary

to Texas’s purported goal of avoiding the spread of the

virus. GA-09 has already led patients to travel to other

states to obtain abortion care in a pandemic, exposing

patients and third parties to infection risks. One outof-state physician stated that he treated 30 abortion

56a

patients from Texas in the week after the attorney

general’s statement.

Petitioners also argue that the abortion

restrictions are necessary to preserve hospital

capacity, while Respondents point out that legal

abortions are safe and almost never require

hospitalization, and abortion care is substantially less

likely to lead to hospitalization than caring for a

patient with respect to full term pregnancy,

childbirth, and post-natal care.

Finally, Petitioners argue that GA-09 as

understood to ban all abortions provides the benefit of

restricting contact between patients, medical staff,

and physicians to help prevent the spread of COVID19. While this may be true, the language of GA-09

reveals that it was not adopted to serve this interest.

GA-09 exempts “any procedure . . . that would not

deplete the hospital capacity or the personal

protective equipment needed to cope with the COVID19 disaster.” It excludes all forms of medical care save

“surgeries and procedures,” and therefore does not

contemplate restricting any other type of medical care

that results in contact between providers and

patients. Restricting contact between abortion

providers and their patients cannot further the goals

of GA-09 if the same order permits in-person contact

between providers and patients in other settings.

Petitioners suggest that, in addition to these

reasons, “Plaintiffs have identified no substantial

burdens that will result from delaying elective

abortions in accordance with [GA-09].” The majority

agrees, concluding that “the expiration date makes

GA-09 a delay, not a ban.” Maj. Op. at 19. But it is

painfully obvious that a delayed abortion procedure

57a

could easily amount to a total denial of that

constitutional right: If currently scheduled abortions

are postponed, many women will miss the small

window of opportunity they have to access a legal

abortion. Texas generally prohibits abortion after

twenty-two weeks from the first day of the pregnant

person’s last menstrual period (“LMP”), see TEX.

HEALTH & SAFETY CODE § 171.044, and therefore GA09 has the potential to deny a woman’s constitutional

right to an abortion where that right will lapse during

the duration of GA-09. A woman has only a small

window of opportunity to exercise her constitutional

right to choose, and therefore Petitioners’ action in

further narrowing that window will present a burden

in many cases.

First, prohibiting abortions for patients whose

pregnancies will, before the expiration of GA-09, reach

or exceed twenty-two weeks, the gestational point at

which abortion may no longer be provided in Texas,

represents “a plain, palpable invasion of rights

secured by the fundamental law.” Jacobson, 197 U.S.

at 31. Even if such state action is successful in

conserving the minimal PPE utilized in such

procedures, as applied to this group of people, the

state’s action constitutes an outright ban on

previability abortion, which is “beyond question, in

palpable conflict with the Constitution.” Id.; id. at 28

(explaining that a state’s police power “might be

exercised . . . in reference to particular persons in such

an arbitrary, unreasonable manner, or might go so far

beyond what was reasonably required for the safety of

the public, as to authorize or compel the courts to

interfere for the protection of such persons”); see Roe

58a

v. Wade, 410 U.S. 113, 153-54 (1973). Insofar as GA09 applies to this group of women, then, the district

court’s result in allowing abortions to proceed was not

patently erroneous. See In re Lloyd’s Register N. Am.,

Inc., 780 F.3d at 290.

Second, insofar as GA-09 bans procedural and

medication abortions generally, this act “has no real

or substantial relation to” Petitioners’ stated goal of

conserving PPE and maintaining access to hospital

beds and therefore it goes “beyond the necessity of the

case, and, under the guise of exerting a police power

. . . violate[s] rights secured by the Constitution.” See

Jacobson, 197 U.S. at 28, 31. In particular, abortions

require minimal PPE (and medication abortions

require no PPE to administer the medication), do not

require the use of N95 respirator masks, and rarely

require hospitalization. And as Respondents point

out, the medical resources conserved by prohibiting

abortions would simply be otherwise consumed

through prenatal care by women forced to continue

their pregnancies or incentivize women to travel out

of state to obtain abortions, facilitating the spread of

the virus. Finally, even assuming that delayed

abortions in fact conserve PPE, Respondents have not

demonstrated how the PPE could realistically be

reallocated to healthcare workers fighting COVID-19.

Petitioners have, therefore, failed to establish that

the district court “reached a patently erroneous

result” in temporarily restricting Texas’s ability to

enforce GA-09 insofar as it bans all procedural and

medication abortions. See In re Lloyd’s Register N.

Am., Inc., 780 F.3d at 290. Mandamus relief should be

denied.

***

59a

The district court’s result was supported by nearly

50 years of Supreme Court precedent protecting a

woman’s right to choose, and as such I would not

conclude that it was patently erroneous. In a time

where panic and fear already consume our daily lives,

the majority’s opinion inflicts further panic and fear

on women in Texas by depriving them, without

justification, of their constitutional rights, exposing

them to the risks of continuing an unwanted

pregnancy, as well as the risks of travelling to other

states in search of time-sensitive medical care.

I respectfully but emphatically dissent.

60a

Appendix B

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

____________

No. 20-50296

____________

In re: GREG ABBOTT, in his official capacity as

Governor of Texas; KEN PAXTON, in his official

capacity as Attorney General of Texas; PHIL

WILSON, in his official capacity as Acting Executive

Commissioner of the Texas Health and Human

Services Commission; STEPHEN BRINT CARLTON,

in his official capacity as Executive Director of the

Texas Medical Board; KATHERINE A. THOMAS, in

her official capacity as the Executive Director of the

Texas Board of Nursing,

Petitioners

____________

Petition for a Writ of Mandamus to the United States

District Court for the Western District of Texas

____________

REVISED April 20, 2020

____________

Before DENNIS, ELROD, and DUNCAN, Circuit

Judges.

____________

61a

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 nonessential 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 om 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 COVID19 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

1 See Planned Parenthood Ctr. for Choice v. Abbott, No. A20-CV-323, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020) (Abbott

I).

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).

62a

“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 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.

63a

● That part restraining enforcement of GA-09 as

to patients who would reach 18 weeks LMP4 on

the expiration date of GA-09 and who would be

“unlikely” to be able to obtain abortion services

in Texas.

● That part restraining enforcement of GA-09

after 11:59 p.m. on April 21, 2020.

We do not grant the writ, and therefore do not

order vacatur, of that part of the TRO restraining GA09 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.”

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-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

4 That is, eighteen weeks after the first day of a pregnant

woman’s last menstrual period.

64a

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

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.

65a

“extreme cases,” and whether the measures

are pretextual—that is, arbitrary or

oppressive. Id. at 38. At the same time,

however, courts may not second-guess the

wisdom or efficacy of the measures. Id. at 28,

30.

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.

66a

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 abortions

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

abortions”; (3) as to “procedural8 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

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[ ]”).

67a

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 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. GA1510 is similar to GA-09, but has some textual

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.

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

68a

differences as well as an additional exception for

certain facilities.11

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

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_cap

acity_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.

69a

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 U.S. 100, 111

70a

(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 PPEconsuming 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

71a

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 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—GA15—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

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.

72a

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.

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

73a

(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 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

74a

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 GA09 in the disputed press release. The release 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

75a

for injunctive relief under the Eleventh Amendment.

See City of Austin, 943 F.3d at 1002.

Mandamus

appropriate

“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. 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

76a

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

additional evidence about the effects of GA-09 in

specific circumstances. Our opinion made this

77a

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

78a

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 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.

79a

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 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

80a

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 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

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.”).

81a

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 supplemental affidavits—and found

the record before us failed to support the conclusion

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

14 Compare 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).

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

82a

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.

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

abortions” (cleaned up)); id. (“Based on that record, we cannot

say that GA-09 is a pretext for targeting abortion.”).

17 Curiously, and as a possible further indication that the

district court failed to follow 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.

83a

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 [GA09’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

84a

address why temporary postponement of one 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

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.

85a

medication abortions require PPE during the COVID19 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 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.

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.

86a

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.

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

87a

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) . . . .”).

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

20 Amici 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-parenthoodemployees-laid-off-claim-its-retaliation-for-voicing-concerns/)

(“[The former staff 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.

88a

findings with

erroneous.21

record

evidence—was

patently

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 Decl. ¶ 6–8, App. 311; Sharfstein Decl. ¶ 9–12,

App. 280–81. Texas authorities believe, to the

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.

89a

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 GA09 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

90a

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.

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 reweighing the state’s cost-benefit calculus, a federal

court “must assume that, when [GA-09] was [issued],

22 Likewise, 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.

23 Nor 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).

91a

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

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 COVID19 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.” DewittDick Decl. ¶ 22, App. 87. Another testifies that

patients at her clinic “hail from all over Texas.”

Ferrigno Decl. ¶ 30, App. 95.

92a

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

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

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

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