956 F.3d 696
5th Cir.2020Background
- Texas Governor issued GA-09 (Mar. 22, 2020) postponing non-essential surgeries/procedures until Apr. 22, 2020 to conserve hospital capacity and PPE during COVID-19; order contains physician-judgment health/life exceptions.
- Abortion providers challenged GA-09 as applied; district court first entered a TRO enjoining enforcement as to abortion (Mar. 30), which this court vacated by mandamus (In re Abbott, Apr. 7).
- District court then issued a narrower Apr. 9 TRO exempting medication abortions and certain patients (18‑week and 22‑week categories) and temporarily restraining enforcement beyond GA-09’s expiration; state sought mandamus.
- Fifth Circuit majority found the Apr. 9 TRO violated the prior mandate, failed to apply Jacobson’s deferential review to emergency public-health measures, was overbroad (including extending past GA-09’s expiration), and improperly enjoined the Governor and Attorney General under Ex parte Young.
- Court granted mandamus in part: vacated TRO provisions treating GA-09 as a categorical ban, restraining Governor/AG, covering medication abortions, covering 18‑week category, and restraining enforcement after Apr. 21; it denied mandamus as to the 22‑week category.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriateness of mandamus / mandate compliance | Abbott II required district court to apply Jacobson and hold an evidentiary PI hearing; district court ignored mandate and issued overbroad TRO | District court followed Abbott II, considered evidence, and properly issued TRO to prevent irreparable harm | Mandamus appropriate in part: district court violated mandate and abused discretion for several TRO provisions; writ granted in part |
| Standard of review for GA-09 (Jacobson vs. normal constitutional test) | Jacobson requires courts to ask if burdens on rights are "beyond question" compared to public-health benefits; plaintiffs say GA-09 as applied fails that test | State says GA-09 bears real/substantial relation to COVID-19 response and courts may not second-guess reasonable public-health judgments | Court reiterates Jacobson framework; requires careful evidence parsing and deference; district court failed to apply it properly |
| Eleventh Amendment / Ex parte Young (Governor & Attorney General) | Plaintiffs argued Governor and AG lack enforcement connection; Eleventh Amendment bars suit against them | District court found sufficient connection based on statutory authority and public statements | Held: Governor and AG lack requisite enforcement connection; enjoining them violated Eleventh Amendment; TRO vacated as to them |
| Medication abortion exemption in TRO | Plaintiffs: GA-09 can apply to medication abortions; state argued medication abortion may consume PPE/hospital resources during pandemic | District court found medication abortion consumes no PPE and prohibition is "beyond question" unconstitutional | Held: TRO’s exemption for medication abortion was patently erroneous on the record and vacated (mandamus granted) — further factual development required at PI stage |
| 18‑week and 22‑week gestation exemptions; TRO duration past GA-09 | Plaintiffs: short delay is not an "absolute ban"; state: delays can cause some women to pass legal limits or face access problems | District court found 18‑week delays would effectively ban some abortions; found some evidence women would reach 22 weeks | Held: TRO as to 18‑week category vacated (insufficient record to show "beyond question"); TRO as to 22‑week category not vacated (record weak but not clearly patently erroneous). TRO portion restraining enforcement past GA-09 expiration vacated |
Key Cases Cited
- Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (deferential standard for state emergency public-health measures)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (undue-burden framework for abortion regulations)
- Cheney v. U.S. District Court for D.C., 542 U.S. 367 (2004) (mandamus standard and exceptional-circumstances use)
- Ex parte Young, 209 U.S. 123 (1908) (when injunctive suits against state officials avoid Eleventh Amendment bar)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (no right to any particular abortion method)
- Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (weighing burdens against benefits in abortion context)
- In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) (mandamus: clear abuse of discretion producing patently erroneous result)
- Will v. United States, 389 U.S. 90 (1967) (mandamus to confine district court to appellate mandate)
- City of Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019) (Ex parte Young enforcement-connection analysis)
- Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) (federal courts may not order state officials to conform conduct to state law)