956 F.3d 1018
8th Cir.2020Background
- In response to COVID-19, the Arkansas Department of Health (ADH) issued an April 3, 2020 directive postponing all non–medically necessary surgeries to conserve PPE and limit social contact. The directive applies facially neutrally to all surgical procedures.
- The Governor’s March 11, 2020 emergency declaration authorized the ADH directive; under state law that emergency expires 60 days after declaration (May 11, 2020) unless renewed.
- Little Rock Family Planning Services (LRFP), a surgical-abortion provider, performed non-emergency surgical abortions; ADH inspectors found ongoing procedures and issued a cease-and-desist on April 10, 2020.
- LRFP sought leave to file a supplemental complaint in a pending abortion case and moved ex parte for a TRO; the district court entered a TRO on April 14 enjoining enforcement of the ADH directive against surgical-abortion providers.
- The State petitioned the Eighth Circuit for a writ of mandamus directing the district court to dissolve the TRO. The Eighth Circuit granted mandamus in part, directing dissolution of the TRO, holding the district court abused its discretion by failing to apply the Jacobson public‑health framework, but declined to order dismissal of the supplemental complaint.
Issues
| Issue | Plaintiff's Argument (LRFP) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Whether mandamus is an appropriate remedy to dissolve the district court’s ex parte TRO | TRO necessary to prevent irreparable constitutional deprivation of abortion access; interlocutory review not adequate | Mandamus necessary because interlocutory appeal is inadequate given COVID-19 harms and ongoing use of PPE; district court exceeded authority | Mandamus appropriate; State has no other adequate remedy and met criteria for writ; TRO must be dissolved |
| 2. Whether the district court properly applied Jacobson (public‑health emergency review) | District court concluded directive was facially unconstitutional and applied normal pre-COVID abortion analysis | State argues Jacobson governs: emergency measures are reviewable only if they lack a real/substantial relation to public health or are a plain, palpable invasion of rights | District court abused discretion by failing to meaningfully apply Jacobson; Jacobson governs review |
| 3. Whether the ADH directive bears a real or substantial relation to public health as applied to surgical abortions | LRFP: its services are self-sustaining re PPE and delaying abortions may increase PPE use later; directive not related as applied | State: directive conserves PPE and reduces social contact statewide; applies neutrally to many surgeries | Directive has a real and substantial relation to public health; court may not second‑guess state policy choices |
| 4. Whether the directive is an outright ban or imposes an undue burden on pre-viability abortion | LRFP: directive effectively bans most pre-viability surgical abortions (especially after 10 weeks) and imposes substantial obstacles | State: directive is temporary (expires absent renewal on May 11), contains emergency/health exceptions, and delays are constitutionally permissible | Not an outright ban; not beyond all question a constitutional violation or undue burden under Jacobson/Casey; district court erred in finding otherwise |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (framework for reviewing state public‑health emergency measures; uphold unless no real/substantial relation or a plain, palpable invasion of rights)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (undue‑burden standard for abortion regulations)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (constitutional limits on state abortion restrictions and discussion of pre‑viability protections)
- Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004) (mandamus is extraordinary remedy; standards for issuance)
- Will v. United States, 389 U.S. 90 (1967) (mandamus is extraordinary and to be used only in exceptional circumstances)
- In re Apple, Inc., 602 F.3d 909 (8th Cir. 2010) (mandamus may be appropriate where interlocutory review is inadequate)
- In re Kemp, 894 F.3d 900 (8th Cir. 2018) (sets factors for issuing mandamus)
- Planned Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d 953 (8th Cir. 2017) (analysis of "large fraction" and undue‑burden evidence in abortion‑access context)