Case Information
*1 Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
JENNIFER WALKER ELROD and STUART KYLE DUNCAN, Circuit Judges:
On April 7, 2020, we issued a writ of mandamus vacating the district court’s temporary restraining order (“TRO”) that exempted abortions from GA-09, an emergency measure temporarily postponing non-essential medical procedures during the COVID-19 pandemic. In re Abbott , --- F.3d ---, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) ( Abbott II ). Two days later, on April 9, the district court entered a second TRO, exempting various categories of abortion from GA-09. See Planned Parenthood Ctr. for Choice v. Abbott , No. A-20-CV- 323, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) ( Abbott III ). A flurry of litigation ensued, during which state officials again sought mandamus and we administratively stayed parts of the April 9 TRO. [2] Over this period—from April 7 to 20—Texas COVID-19 cases, hospitalizations, and deaths more than doubled. [3]
We now consider the mandamus petition directed to the April 9 TRO. We are persuaded by Petitioners’ arguments that the district court, in the April 9 TRO, disregarded our mandate in Abbott II . The court again “fail[ed] to apply . . . the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11 (1905).” Abbott II , 2020 WL 1685929, at *5. Moreover, the court again second-guessed the basic mitigation strategy underlying GA-09 (that is, the concept of “flattening the curve”), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. Those errors led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures “during the escalating COVID-19 pandemic.” Id. at *1.
Once again, the dissenting opinion accuses the majority of treating abortion differently and once again it is wrong. At issue is whether abortion can be treated the same as other procedures under GA-09. It is the district court that treated abortion differently, issuing back-to-back TROs that did not follow the law.
We therefore grant the writ in part and direct the district court to vacate these parts of the April 9 TRO:
• That part restraining enforcement of GA-09 as a “categorical ban on all abortions provided by Plaintiffs.”
• That part restraining the Governor of Texas and the Attorney General. • That part restraining enforcement of GA-09 as to medication abortions. • That part restraining enforcement of GA-09 as to patients who would reach 18 weeks LMP on the expiration date of GA-09 and who would be “unlikely” to be able to obtain abortion services in Texas.
• That part restraining enforcement of GA-09 after 11:59 p.m. on April 21, 2020.
We do not grant the writ, and therefore do not order vacatur, of that part of the TRO restraining GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
I.
We summarize the pertinent background, which we have chronicled in
greater detail elsewhere.
See Abbott II
,
postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician. [5]
The order does not apply to procedures that, if performed under accepted
standards, “would not deplete the hospital capacity or the personal protective
equipment [“PPE”] needed to cope with the COVID-19 disaster.”
[6]
GA-09 is
enforceable by criminal and administrative penalties and expires at 11:59 p.m.
on April 21, 2020.
[7]
See Abbott II
,
When ordering vacatur of the first TRO, we explained that Respondents’
challenge to GA-09 must satisfy the standards in
Jacobson v. Massachusetts
,
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson , 197 U.S. at 31. Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30.
Abbott II
,
The day following our mandamus, April 8, 2020, the district court: (1) vacated its March 30 TRO; (2) cancelled the telephonic preliminary injunction hearing previously scheduled for April 13; and (3) ordered the parties to file a joint status report by April 15 outlining a schedule for a new preliminary injunction hearing on a yet-unannounced date. That same day, Respondents filed a new TRO application supported by one new declaration. The next day, April 9, the district court convened a brief telephone conference with the parties, during which the court declined to allow Petitioners either to file a responsive pleading or submit evidence opposing the application. In doing so, the court remarked to Petitioners, “[I]f I were to make a ruling that was unsatisfactory to the State defendants before then, then you may head back to the Circuit with it.” Transcript of 4/9/20 Tele. Conf. at 14:39.
Later that day, the court issued a new TRO.
Abbott III
, 2020 WL
1815587. Adopting Respondents’ proposed findings of fact and conclusions of
law,
compare id.
at *1–7,
with
Proposed TRO, App. 445–57, this TRO restrains
Petitioners from enforcing GA-09 as follows: (1) “as a categorical ban on all
abortions provided by Plaintiffs”; (2) as to “medication abortions”; (3) as to
“procedural
[8]
abortion[s] [provided] to any patient who, based on the treating
physician’s medical judgment, would be more than 18 weeks LMP on April 22,
2020, and likely unable to reach an ambulatory surgical center in Texas or to
obtain abortion care”; and (4) as to “procedural abortion[s] [provided] to any
patient who, based on the treating physician’s medical judgment, would be past
the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
Abbott III
,
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
,
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. GA-15 [10] is similar to GA-09, but has some textual 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 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
,
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
,
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
,
First, the TRO enjoins enforcement of GA-09 “as a categorical ban on all
abortions provided by Plaintiffs.”
Abbott III
,
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
,
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
,
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
,
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
,
As to the Attorney General, the district court reasoned that he has
“authority” to prosecute violations of GA-09 “at the request of local
prosecutors,” and that he has also “publicly threatened enforcement” against
abortion providers.
Abbott III
, 2020 WL 1815587, at *6. Neither rationale
establishes the Attorney General’s “connection” to enforcing GA-09 for
Ex parte
Young
purposes. Nothing in GA-09 tasks the Attorney General with enforcing
it. Speculation that he might be asked by a local prosecutor to “assist” in
enforcing GA-09,
see
Tex. Gov’t Code § 402.028, is inadequate to support an
Ex
parte Young
action against the Attorney General.
See City of Austin
, 943 F.3d
at 1000 (evidence that Attorney General “
might
. . . bring a proceeding to
enforce” the law insufficient under
Ex parte Young
). Nor does a “press release”
by the Attorney General,
Abbott III
,
Mandamus is appropriate to “control jurisdictional excesses,”
Gee
, 941
F.3d at 158 (citation omitted), such as allowing suits against state officials in
violation of the Eleventh Amendment and sovereign immunity.
See
,
e.g.
,
Block
v. Tex. Bd. of Law Examiners
,
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
,
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
,
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 impossible to miss. For example, we said that “[t]he district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances.” Abbott II , 2020 WL 1685929, at *2 (emphases added). Following that adversarial hearing, we explained, “[t]he district court can then make targeted findings . . . about the effects of GA-09 on abortion access.” Id. (emphasis added). We said the same thing a few pages later: despite finding no evidence in the record that GA-09 violated Casey , we stated that “Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may ” violate Casey “if they prove that, ‘beyond question,’ GA-09’s burdens outweigh its benefits in those situations.” Id. at *9 (first and third emphases added). Similarly, after canvassing the record, we declined to decide whether a more narrowly tailored injunction would satisfy Jacobson because “parties may pursue [those issues] at the preliminary injunction stage ,” then scheduled for April 13. Id. at *12 (emphasis added). And again: in assessing whether Respondents had any evidence showing GA-09 pretextually targeted abortion, we found “no evidence . . . [on] the record before us” of pretext, but stated that “Respondents will have the opportunity . . . to present additional evidence in conjunction with the district court’s preliminary injunction hearing.” Id. at *13 (emphasis added).
To be sure, the district court could have rescheduled the preliminary
injunction hearing (as it now has done, to April 29) or afforded the parties some
other way of presenting new evidence on the burdens and benefits of GA-09 in
specific circumstances. But our opinion left no doubt that an additional
evidentiary showing was necessary to properly apply
Jacobson
in particular
circumstances. Among other gaps in the record, for example, was evidence
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
,
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
,
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
,
So too here. After explaining that the factual record was insufficient to
support the TRO in
Abbott I
, we instructed that after the “preliminary
injunction hearing scheduled for April 13, 2020” at which the parties could
“present additional evidence,”
Abbott II
,
To be sure, Respondents suggest that the April 9 TRO is based on a “more
robust” record than the one on which the district court based its March 30 TRO.
But on critical points, which we analyze in more detail below, the April 9 TRO
relied on the same ten declarations already before the district court when it
issued the March 30 TRO.
[14]
Furthermore, after the March 30 TRO issued,
Respondents filed supplemental declarations in the district court record—and
then proceeded to use those declarations to defend against mandamus in our
court.
[15]
In granting mandamus, we reviewed the record—including those
supplemental affidavits—and found the record before us failed to support the
conclusion that GA-09 violates
Jacobson
and
Casey
.
[16]
The district court hardly
answered
Abbott II
’s call for more evidence by relying on evidence we had
already reviewed and found wanting. Moreover, we called for additional
evidence from
both
sides.
See Abbott II
,
Mandamus is justified to correct the district court’s failure to follow our
Abbott II
mandate.
See
,
e.g.
,
Will v. United States
,
D. Patently Erroneous Results and Usurpation of the State’s Authority to Craft Emergency Health Measures Mandamus relief is also justified because the district court’s failure to follow our Abbott II mandate led to patently erroneous results and usurped the state’s authority to craft emergency public health measures. See In re JPMorgan Chase & Co. , 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up) (mandamus warranted where there has been a “usurpation of judicial power” or “a clear abuse of discretion that produces patently erroneous results”). We discuss these problems below, both to explain why we grant mandamus as to two of the three categories of abortion procedures restrained by the April 9 TRO, and also to provide guidance at the preliminary injunction stage. 1. The April 9 TRO Patently Erred by Exempting Medication Abortions
from GA-09
There is no constitutional right to any particular abortion procedure.
Gonzales v. Carhart
,
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).
The district court found, as a matter of fact, that “[p]roviding medication
abortion does not require the use of any PPE.”
Abbott III
,
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,
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
,
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
,
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
,
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.
Decl. ¶ 6–8, App. 311; Sharfstein Decl. ¶ 9–12, App. 280–81. Texas authorities
believe, to the contrary, that GA-09 is critical to protect the state’s citizens and
has supported that view with its own medical experts.
See, e.g.
, Marier Decl. ¶
12, App. 242. The Supreme Court, and this court, have already explained how
to resolve such an impasse: “[I]f the choice is between two reasonable responses
to a public crisis, the judgment must be left to the governing state authorities.”
Abbott II
,
In the April 9 TRO, as in the one before, the district court’s weighing of the public interest substituted its own opinion for the judgment of the governing authorities. What we said before applies here:
[T]he district court did little more than assert its own view of the effectiveness of GA-09. The district court did not provide any explanation of its conclusion that the public health benefits from an emergency measure like GA-09 are “outweighed” by any temporary loss of constitutional rights.
Abbott II
,
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
,
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
,
Moreover, evidence that some women travel to other states to receive an abortion does not demonstrate that GA-09 increases the risk of COVID-19 transmission. Such a claim would require comparing the amount of travel that GA-09 has increased with the amount of travel it has reduced. That calculation is uncertain: One respondent provider declares that some women “come from over a hundred miles to receive care at our clinic.” Dewitt-Dick Decl. ¶ 22, App. 87. Another testifies that patients at her clinic “hail from all over Texas.” Ferrigno Decl. ¶ 30, App. 95.
A court
must
assume that the public health experts at the Texas
Department of State Health Services—not to mention the CDC, the U.S.
Surgeon General, and the Centers for Medicare and Medicaid Services—
weighed these difficult trade-offs between medical care and public health.
Jacobson
, 197 U.S. at 30. Federal judges get no vote on the matter. As the
Supreme Court instructed: “[N]o court . . . is justified in disregarding the action
of the [Governor] simply because in its opinion that particular method was—
perhaps, or possibly—not the best.”
Jacobson
,
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,
Moreover, the district court’s wholesale adoption of Respondents’ proposed findings resulted in findings that are not supported by the record. One example may suffice. The district court found that, “[a]lthough some medication abortions require a follow-up aspiration procedure, the number of those cases is exceedingly small and can generally be handled in an outpatient setting.” Abbott III , 2020 WL 1815587, at *3, ¶ 14 (citing Levison Decl. ¶ 9; Schutt-Aine Decl. ¶ 12). The Levinson paragraph cited speaks only to the frequency of hospitalization; it says nothing about how many medication abortions require follow-up aspiration. See App. 373. Nor does the cited Schutt- Aine paragraph provide any support for the frequency of follow-up aspiration. See App. 129. Schutt-Aine states that “[m]ajor complications—defined as complications requiring hospital admission, surgery or blood transfusion— occur in less than one-quarter of one percent (0.23%) of all abortion cases.” App. 129 (citing Ushma Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion , 125 Obstetrics & Gynecology, 175 (2015)). But Figure 1 of the cited article clarifies that subsequent uterine aspirations ( i.e. , surgical abortions) were not considered “surgery” within the meaning of the article. See Upadhyay, 125 Obstetrics & Gynecology at 176.
Petitioners, by contrast, submitted evidence demonstrating the rate of
medication abortions resulting in incomplete abortions, which are treated
either with a repeat dose of medication or aspiration. In our court,
Respondents contend those numbers are outdated. Analysis of such
conflicting evidence is hard; it requires careful parsing. We reach no
conclusions on the point. District courts, who can make fact findings after
adversarial hearings, are better suited to the task. Here, however, the district
court declined to avail itself of those tools, instead cancelling the scheduled
preliminary injunction hearing and issuing a second TRO that adopted all 30
of Respondents’ proposed findings without citing or discussing a single
declaration submitted by Petitioners. To be sure, a district court need not
“recite every piece of evidence supporting its findings.”
Schlesinger
, 2 F.3d at
139. But “the record must nevertheless support the district court’s decision.”
Sierra Club, Lone Star Chapter v. F.D.I.C.
,
The failure to parse the evidence led the district court to reach legally
erroneous results in two respects. First, under
Whole Woman’s Health v.
Hellerstedt
, to determine whether a law “unduly burdens” the abortion right,
a court must “consider the burdens a law imposes on abortion access together
with the benefits those laws confer.” 136 S. Ct. 2292, 2309–10, 2319 (2016).
The April 9 TRO does not meaningfully weigh either one. As noted, the order
does not cite or discuss a single declaration submitted by Petitioners explaining
the benefits of GA-09. Nor does the order articulate the burden of a delay or
why that delay should be considered a “ban” on abortion. The record belies any
such notion. Medication abortion is available until 10 weeks LMP, and surgical
abortion until 22 weeks LMP. Given that GA-09 had only a 30-day duration,
no woman would be pushed beyond the legal limit by a 30-day delay in
obtaining a medication abortion. Moreover, health risks of a delay are
mitigated because GA-09, by its terms, permits procedures that a patient’s
physician determines are “immediately medically necessary to correct a
serious medical condition of, or to preserve the life of, a patient who without
immediate performance of the surgery or procedure would be at risk for serious
adverse medical consequences or death.”
Abbott II
,
d. The Pennhurst doctrine.
We address an additional point that arose during our consideration of
Petitioners’ emergency stay motion, because it may become important as the
litigation continues. In the April 9 TRO, the district court adopted
Respondents’ proposed fact finding that “[m]edication abortion is not a surgery
or procedure.”
Abbott III
,
Under
Pennhurst
, a federal court may not grant “relief against state
officials on the basis of state law.”
Id.
at 106. A federal court may determine
state officials’ enforcement of state law violates a
federal
right, but it may not
order state officials to conform their conduct to
state
law.
See
,
e.g.
,
Williams On
Behalf of J.E. v. Reeves
, 19-60069,
To the extent the April 9 TRO finds that GA-09 violates Casey by postponing medication abortions, we have already explained that it patently erred. But to the extent the TRO might be construed to order relief on a claim that state officials failed to conform their actions to state law, the TRO would violate Pennhurst . State health officials, who are Petitioners here, insist that GA-09’s postponement of “procedures” encompasses medication abortions. Pennhurst bars a federal court from considering a claim that those officials failed to comply with a proper interpretation of the state executive order. See , e.g. , Hughes , 902 F.3d at 378 (quoting Pennhurst , 465 U.S. at 106) (explaining that “instruct[ing] state officials on how to conform their conduct to state law . . . conflicts directly with the principles of federalism that underlie the Eleventh Amendment”). The district court should be aware of this issue in further proceedings.
2. The April 9 TRO Patently Erred by Exempting 18-Week
Gestation from GA-09
We turn to the part of the April 9 TRO blocking application of GA-09 as to patients who “would reach 18 weeks LMP by April 21, 2020,” and who, in a physician’s judgment, are “unlikely to be able to obtain an abortion at an [ambulatory surgical center] before [her] pregnancy reaches the 22-week cutoff.” Abbott III , 2020 WL 1815587, at *6. For those patients, the district court concluded GA-09 would amount to “an absolute ban on abortion” that violates Casey. Id . Once again, the district court’s failure to apply the framework articulated in Abbott II led to a patently erroneous result that cannot be sustained on this record.
As we explained in
Abbott II
, a state emergency measure like GA-09
violates the right to abortion if it “has no real or substantial relation” to the
public crisis “or is, beyond all question, a plain, palpable invasion of [
Casey
].”
The district court’s treatment of GA-09 as “an absolute ban on abortion” as applied to this category of women was obviously wrong. Abbott III , 2020 WL 1815587, at *6. A woman who would be 18 weeks LMP when GA-09 expires has up to four weeks to legally procure an abortion in Texas. No case we know of calls that an “absolute ban” on abortion. Cf., e.g. , Casey , 505 U.S. at 874 (explaining that “[n]umerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure”).
The district court may have had in mind an as-applied challenge to GA-
09 on behalf of a woman facing this particular combination of circumstances.
See
,
e.g.
,
Gonzales
,
Respondents also speculate that, due to patient backlogs and the burden of traveling to one of the limited number of Texas ASCs, women in the 18-week category will not be able to obtain an abortion. Once again, this is the stuff of a possible as-applied challenge. But we know of no precedent saying that it violates Casey “beyond question” when a generally applicable emergency health measure causes backlogs and travel delays for women seeking abortion. In fact, even outside of a public health crisis, the Supreme Court has “recognize[d] that increased driving distances do not always constitute an ‘undue burden.’” Hellerstedt , 136 S. Ct. at 2313 (quoting Casey , 505 U.S. at 885–87). To the contrary, the Court has treated increased travel distance only as one factor that—“when taken together with others” such as “the virtual absence of any health benefit”—could support a conclusion of undue burden under Casey on a particular record. Id. (emphasis added).
Perhaps in the context of a preliminary injunction hearing, Respondents
will be able to adduce evidence to support an as-applied challenge to GA-09 (or
its successor order, GA-15) along these lines. But the record presently before
the district court fails to provide even an arguable basis to conclude that GA-
09, as applied to women in the 18-week category, is “beyond all question, a
plain, palpable invasion of [
Casey
].”
Abbott II
,
3. The April 9 TRO Did Not Patently Err by Exempting 22-Week
Gestation from GA-09.
The district court also concluded that GA-09 “beyond question” violates
Casey
as applied to a woman who “would otherwise be denied access to abortion
entirely because . . . [her] pregnancy would reach 22 weeks LMP” before GA-
09 expires.
Abbott III
,
Unlike the 18-week category, Respondents have adduced
some
evidence
that they have clients who will reach 22 weeks LMP during the operation of
GA-09.
See
App. 103, 353, 442. While this evidence is secondhand, and thus
weak, we cannot conclude it was a “clear abuse of discretion” for the district
court to rely on it at this early stage.
Abbott II
,
As a result, we conclude Petitioners have not shown entitlement to the writ of mandamus as to this part of the TRO.
* * * To sum up, Petitioners have shown entitlement to the writ of mandamus as to the parts of the April 9 TRO that:
• restrain enforcement of GA-09 as a “categorical ban on all abortions provided by plaintiffs”;
• restrain enforcement of GA-09 after 11:59 p.m. on April 21, 2020; • restrain the Governor and Attorney General; • restrain enforcement of GA-09 as to medication abortions; • restrain enforcement of GA-09 as to abortions for patients who will reach 18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain abortion services in Texas.
Petitioners have not demonstrated entitlement to the writ as to that part of the April 9 TRO that:
• restrains enforcement of GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
IV.
The other two requirements for mandamus relief are satisfied here.
First, Petitioners “‘have no other adequate means’ to obtain the relief they
seek.”
Abbott II
, 2020 WL 1685929, at *13. TROs, unlike preliminary
injunctions, are not appealable.
See Smith v. Grady
, 411 F.2d 181, 186 (5th
Cir. 1969);
see also
28 U.S.C. § 1292. Although Petitioners argued in their
separate appeal that the TRO at issue here has the “actual content, purport,
and effect” of a preliminary injunction,
Smith
,
Second, for substantially the same reasons set out in
Abbott II
, “[w]e are
persuaded that this petition presents an extraordinary case justifying issuance
of the writ.”
Abbott II
,
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 . . . .
Id.
The district’s failure to apply
Jacobson
and its usurpation of the state’s
power by second-guessing “the wisdom and efficacy of [its] emergency
measures” are just as extraordinary now as they were on April 7.
Id.
Moreover,
the issues addressed in this litigation “have an importance beyond the
immediate case.”
Id.
(quoting
Volkswagen
,
“[W]e are aware of nothing that would render the exercise of our discretion to issue the writ inappropriate.” Id. (quoting Volkswagen , 545 F.3d at 319). We therefore exercise our discretion to grant mandamus relief.
CONCLUSION
The petition for writ of mandamus is GRANTED IN PART and DENIED IN PART.
The district court is directed to vacate any part of the April 9 TRO that (1) restrains enforcement of GA-09 as a “categorical ban on all abortions provided by Plaintiffs”; (2) restrains the Governor and Attorney General; (3) restrains enforcement of GA-09 after 11:59 p.m. on April 21, 2020; (4) restrains enforcement of GA-09 as to medication abortions; and (5) restrains enforcement of GA-09 as to abortions for patients who will reach 18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain abortion services in Texas.
We do not grant the writ or direct vacatur as to that part of the April 9 TRO restraining enforcement of GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
Any portions of our April 10 administrative stay remaining in effect are LIFTED.
As indicated in
Abbott II
, any future appeals or mandamus petitions in
this case will be directed to this panel and will be expedited.
See Gee
, 941 F.3d
at 173;
In re First South Sav. Ass’n
,
The mandate shall issue forthwith.
JAMES L. DENNIS, Circuit Judge, dissenting in part.
For the second time in as many weeks, the majority invokes the “drastic
and extraordinary remed[y]” of mandamus,
Ex parte Fahey
,
This Circuit thus once again does not apply the applicable rules of law
because of the subject matter of the case, and, equally troubling, ignores the
words of its own ruling from less than two weeks ago. I again echo the words
of a colleague in dissent in a case now before the United States Supreme Court:
“It is apparent that when abortion comes on stage it shadows the role of settled
judicial rules.”
June Med. Services L.L.C. v. Gee
,
I.
The facts and procedural history of this case have been
documented in detail in our previous decision.
See In re Abbott
, No. 20-50264,
postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.
Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/ uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22- 2020.pdf. The order contains an exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” Id. Violations of GA-09 are punishable by criminal penalties and, by virtue of a subsequent emergency rule with identical requirements that was issued by the Texas Medical Board, see 22 Tex. Admin. Code § 187.57, may effectively result in the suspension or restriction of a practitioner’s license. [2] By its terms, GA-09 remains in effect until 11:59 p.m. on April 21, 2020.
The day after GA-09 was issued, the Texas Attorney General released a press release stating, among other things, that GA-09 applied to “any kind of abortion that is not medically necessary to preserve the life and health of the mother,” and that “[t]hose who violate the governor’s order will be met with the full force of the law.” App. at 31. [3] The Respondents, who provide abortion services in Texas, filed suit in district court under 42 U.S.C. § 1983 against the Petitioners, who are various state officials. The Respondents asserted that the application of GA-09 to prohibit abortion violated, inter alia , substantive due process. The Respondents sought to enjoin the Petitioners from enforcing GA-09 as applied to abortion, and, after reviewing argument and evidence on the point from both parties, the district court issued a temporary restraining order (“TRO”) doing just that. See Planned Parenthood Ctr. for Choice v. Abbott , No. A-20-CV-323-LY, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020).
Before the district court could hold a scheduled hearing on whether
to issue a longer preliminary injunction, the Petitioners filed a petition for
mandamus with this court, and on April 7, the majority granted the petition
and ordered that the district court vacate its TRO.
Abbott II
,
II.
Petitioners once again ask that we direct the district court to vacate its
TRO. As noted, mandamus is an “extraordinary remedy” that should only
issue in “exceptional circumstances.”
See Cheney
,
The “clear and indisputable” prong of this test is not met here. That the
Petitioners’ right to relief is indeed disputable should be evident by the very
existence of this dissent and the many other courts that have concluded that
relief is not warranted in very similar circumstances. But I will elaborate. To
establish a clear and indisputable right to relief, the Petitioners must show
that the district court not only committed a “clear abuse[] of discretion,” but
also that the abuse “produce[d] patently erroneous results.”
In re Lloyd’s
Register N. Am., Inc.
,
A.
The majority asserts that the district court abused its discretion in several ways. None of these assertions warrants mandamus relief.
1.
The majority first engages in what would appear to be an academic exercise, concluding that the district court erred by restraining the Petitioners’ conduct in ways that apparently had no practical impact even under the majority’s reasoning. Mandamus relief cannot be warranted to fix a mistake that is of no consequence.
To start, the majority faults the district court for restraining the Petitioners from enforcing GA-09 “as a categorical ban on all abortions” because it does not interpret GA-09 to be a categorical ban on all abortions. Majority at 9 (citing Abbott III , 2020 WL 1815587, at *7). As the majority acknowledges, however, a federal court may determine that a state official’s purported enforcement of state law would violate a federal right, and this principle applies regardless of whether that enforcement is a correct interpretation of the state law. Majority at 31; See Louise B. v. Coluatti , 606 F.2d 392, 399 (3d Cir. 1979) (“To put the matter more bluntly, where a state violates federal law, it is no better off because it also violates its own law.”). Whether GA-09 actually is a categorical ban on abortions under state law is therefore irrelevant. If the district court correctly found a credible threat that the Petitioners would enforce GA-09 as a categorical ban on abortion, that factual finding is sufficient to restrain such enforcement as a violation of a federal constitutional right. See Susan B. Anthony List v. Driehaus , 573 U.S. 149, 159 (2014) (stating that when “plaintiffs face a credible threat of enforcement,” they “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief” (internal quotations omitted)).
But as I said, this discussion is academic. By restraining the Petitioners
from enforcing GA-09 as to medication abortions and those abortions falling
into the 18-week and 22-week categories, the district court’s TRO also
necessarily prevented the Petitioners from enforcing GA-09 as a categorical
ban on abortions. Neither the Petitioners nor the majority identify any
possible conduct that would violate the “categorical ban” prohibition in the
district court’s order that would not also violate the prohibition on enforcing
GA-09 against providers of medication abortions or those that provide
abortions that fall into the 18-week or 22-week categories. Quite simply, the
TRO’s prohibition on enforcing GA-09 “as a categorical ban on all abortions”
has no independent effect; it does not burden the Petitioners because it does
not alter the Petitioners’ rights or responsibilities in any way. Accordingly,
even if correct regarding the error, the majority’s decision to order this portion
of the order vacated also does not change the rights and responsibilities of any
party and serves no purpose but to point out the district court’s purported
mistake. Invoking “one of the most potent weapons in the judicial arsenal,”
In
re JPMorgan Chase
,
Similarly, the majority concludes that, because the district court
restrained the enforcement of GA-09 past its nominal April 22 expiration date,
the district court abused its discretion by not narrowly tailoring its TRO to end
when the executive order potentially expired. Majority at 9-10. But the
majority fully acknowledges that, following GA-09’s expiration, there will be
“no enforcement of GA-09 for a court to restrain,” Majority at 10, and so the
district court’s TRO will have no effect on the Petitioners after the executive
order expires. By contrast, under the majority’s reasoning, had GA-09 been
extended, the district court would have had to again extend its TRO in order
to maintain the status quo until the scheduled preliminary injunction
hearing—something that it is not even clear the district court would have
authority to do under F ED . R. C IV . P. 65(b)(2), which some authorities have held
limits a district court to
one
TRO extension.
See Clements Wire & Mfg. Co. v.
N. L. R. B.
,
The majority next concludes that the district court erred by failing to
dismiss the Texas Governor and Attorney General and by restraining them
from enforcing GA-09 in the proscribed manner because neither officer has the
“connection” to enforcement of GA-09 needed to overcome sovereign immunity
under
Ex parte Young
,
But even assuming arguendo that the majority is correct, the sum effect of restraining the Governor and Attorney General from enforcing GA-09 would be nil if they lack any authority to enforce GA-09 in the first place. Thus, the majority acts again to use the “drastic and extraordinary remedy” of mandamus, where it at most has little, if any, practical effect. Fahey , 332 U.S. at 259.
I therefore disagree that mandamus is appropriate with respect to any of these alleged errors.
2.
Next the majority concludes that the district court violated the “mandate
rule” by not following the instructions issued in
Abbott II.
Majority at 14 (citing
United States v. Smith
,
a.
The majority first argues that the district court failed to apply the legal
framework that the majority previously derived from
Jacobson v.
Commonwealth of Massachusetts
,
Specifically, the test the majority previously formulated required the district court to determine (1) whether applying GA-09 to the abortions at issue lacks a “real or substantial relation” to the current public health crisis, and (2) whether the benefits of applying GA-09 to these abortions are “beyond all question” outweighed by its burden on the constitutional right to an abortion, thus creating an undue burden under Casey . Abbott II , 2020 WL 1685929, at *7, *9. The district court faithfully made findings and conclusions tied to both steps of this analysis.
With respect to the first, the majority stated in its previous opinion that
the district court should “inquire whether Texas has exploited the present
crisis as a pretext to target abortion providers
sub silentio
.”
Id.
at *13 (citing
Lawton v. Steele
,
The district court’s analysis is even more explicit at the second stage of
the inquiry in which the majority instructed it to weigh the benefits of applying
GA-09 to abortions against the burden on the constitutional right to an
abortion.
Id.
at *9. As stated, the district court made a range of findings
indicating that applying GA-09 to abortions not only would not result in a
public health benefit but in fact would be a net drain on PPE and hospital
capacity and would be otherwise harmful to public health. The court made
specific findings as to how much and what kind of PPE are consumed during
the performance of medication and procedural abortions and their surrounding
services, as well as the frequency with which complications require
hospitalization with each method.
Abbott
III,
The district court then made a variety of findings regarding the burden that applying GA-09 to the classes of abortion at issue placed on the constitutional right to abortion. The court found that the Respondents had “turned away hundreds of patients seeking abortion care,” and that “[t]here will be significant pent-up need for abortion care when the Executive Order expires,” resulting in further delays. Id. at *5. The court noted that progressively more invasive techniques are required to perform an abortion the longer that it is delayed. Id. And the court found that the health risks, financial costs, and emotional cost of an abortion increases with gestational age, meaning the delays make abortions riskier and more cost prohibitive. Id. at *5-6. The court also found that for many women, the delay would result in them being effectively denied a legal right to an abortion in Texas, either because they would exceed the 22-week maximum legal limit or they would reach a gestational age at which they were legally required to go to a facility that they did not have access to in order to receive an abortion. Id.
The district court then weighed these benefits and burdens against each other, just as the majority instructed, and concluded that “based on the court’s findings of fact, it is beyond question that the Executive Order’s burdens outweigh the order’s benefits as applied” to the classes of abortion at issue. Id. at *6. And in doing so, it explicitly relied Jacobson .
It is one thing for the majority to disagree with the district court’s findings or its weighing of the relative benefits and burdens of applying GA-09 to these abortions (though, as will be discussed, the majority is wrong to do so). But it is simply inaccurate for the majority to conclude that the district court disregarded its instructions to apply a legal framework that it is abundantly clear the district court in fact applied. I therefore disagree that the district court violated the mandate rule in this respect and, therefore, that mandamus is appropriate to correct the supposed error.
b.
The majority next reprimands the district court for entering a TRO at
all. Majority at 14-19. The majority seems to have wanted the district court
to instead proceed directly to an adversarial hearing on a preliminary
injunction without issuing another TRO to preserve the status quo until that
hearing could be held. This requirement is stated nowhere in the previous
mandamus order and cannot be reconciled with the principle that district
courts have broad discretion in ordering their affairs. To be sure, the majority
made several references to the sort of evidence that could be adduced and
arguments that could be made at an upcoming preliminary injunction hearing.
See, e.g.,
Abbott II,
Nor is it clear by what authority the majority would have imposed such
a restriction if it
had
been contained in the previous mandamus order. It is
well established that “[d]istrict courts have broad discretion to evaluate the
irreparability of alleged harm and to make determinations regarding the
propriety of injunctive relief.”
Wagner v. Taylor
,
The majority and the Petitioners make much of the fact that the district court did not permit the Petitioners to “respond [to the second TRO motion] in writing” before entering the second TRO. Transcript of 4/9/20 Tele. Conf. at 14:39; see Majority at 18 (“Moreover, we called for additional evidence from both sides.”). But as the majority acknowledges, the district court was not required to do so, as the Rules explicitly allow a TRO to be entered e x parte . Majority at 14 (citing Fed. R. Civ. P. 65(b)(1)). Further, the Petitioners had already been permitted to make argument and introduce evidence in response to the Respondents’ first motion for a TRO. S ee Planned Parenthood Center for Choice v. Abbott , No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 30) (March 30, 2020). It was not an abuse of the district court’s discretion for it to conclude that, given the time constraints and the potential for irreparable harm that had been established, it was imprudent to wait for further argument or evidence from the Petitioners before entering a TRO to preserve the status quo until the preliminary injunction hearing. All that was required was that “the opposing party [be] given a reasonable opportunity, commensurate with the scarcity of time under the circumstances, to prepare a defense and advance reasons why the [preliminary] injunction should not issue.” Ciena Corp. , 203 F.3d at 319. The Petitioners would have had that opportunity at the rescheduled preliminary injunction hearing, and they could have filed a motion to dissolve the TRO with accompanying exhibits at any time under Rule 65(b)(4) if they truly believed that time was of the essence such that they could not wait for the hearing. Instead, they filed the present motion for mandamus.
The majority alternately argues that the district court defied the mandate by entering a TRO on essentially the same record that the previous mandamus order found was inadequate to support a TRO. Majority at 14-19. This is simply inaccurate. Following the district court’s first March 30 TRO order, which was based on ten declarations submitted by the Respondents, the Respondents filed nine additional declarations as supplements to their motion for a preliminary injunction. See Abbott , No. 1:20-cv-00323-LY (Dkt. No. 49) (April 2, 2020). And the Respondents included a new tenth declaration with their second motion for a TRO. See Abbott , No. 1:20-cv-00323-LY (Dkt. No. 56) (April 8, 2020). The district court thus had twice the number of declarations filed by the Respondents before it when it entered its second TRO than when it entered its first.
In an attempt to overcome the fact that the record was clearly
substantially more developed when the district court entered its second TRO,
the majority argues that the Respondents cited to the supplemental
declarations in their opposition to the Petitioners last mandamus petition, and
so these declarations were included in the record that the majority reviewed
and declared insufficient. Majority at 17-18. But the majority’s last
mandamus order commented only on “the record before us.”
Abbott II
, 2020
WL 1685929, at *9. The fact that the Respondents cited to additional
declarations in their briefing is of no moment. The additional declarations
were not included in the appendix filed with the previous mandamus petition
and they were not before the district court when it made the decision we
reviewed. Further, the majority did not explicitly take judicial notice of the
additional declarations, and the contents of the declarations are not the type
of indisputable information suitable for judicial notice in any event.
See Gov’t
of Canal Zone v. Burjan
,
In sum, the district court considered new evidence just as the majority instructed, and it applied the legal framework that the majority prescribed. The majority is thus wrong to now hold that the district court failed to fulfill the majority’s previous mandate simply because it did not meet new additional requirements that were not stated in the majority’s order, and I therefore disagree that this supposed defiance warrants mandamus.
B.
That the district court did not commit a clear abuse of discretion is
sufficient reason on its own to deny mandamus.
See In re Lloyd’s Register N.
Am., Inc.
,
As an initial matter, the majority breezes past the pretext prong of
its test, barely even mentioning it in its analysis of the results of the district
court’s reasoning. This is likely because, in its previous order, the majority
without explanation elected to analyze this question as whether GA-09
as a
whole
had a real or substantial relation to the current public health crisis, and
so was able to easily conclude that it did.
See id.
at *8 (“The answer is obvious:
the district court itself conceded that GA-09 is a valid emergency response to
the COVID-19 pandemic.”). But this is the wrong focus of the inquiry. The
Respondents were not challenging GA-09 as a whole, nor had the district court
enjoined all applications of GA-09. The Respondents had challenged, and the
district court had restrained, the
application of GA-09 to abortions
, and
Jacobson
itself makes clear that the question should not have been whether
“GA-09 is a pretext for targeting abortion.”
Id.
at *13. It should have been
whether the enforcement of GA-09, a concededly valid public health measure,
was being used as a pretext to target abortions by state actors motivated by
hostility to abortion rights.
See Jacobson
,
Considered in this light, there was sufficient evidence in the record to conclude that the enforcement of GA-09 as a prohibition on all three of the classes of abortion at issue was pretextual and motivated not by a desire to advance public health, but rather to reduce the number of abortions performed for its own sake. To begin with, as the district court determined and as the majority acknowledged in a previous order in this case, s ee In re Abbott , No. 20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020), medication abortion, which in itself consists entirely of providing a patient with two sets of oral medication, is not a “surgery or procedure” under either the conventional definitions of those terms or the meaning assigned to them in informal guidance from the Texas Medical Board. See T EXAS M EDICAL B OARD , Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020), https//www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF- F9221E4DEF17 (last visited Apr. 19, 2020). And, as a wide range of declarations in the record establish, medication abortion consumes no PPE whatsoever when considered in isolation without the preceding ultrasound or post-abortion tests that Texas law requires. See App. at 73, 86, 91-92, 100, 110, 117, 134, 157. Medication abortion therefore does not appear to fall within the facial, plain meaning of GA-09’s prohibition on non-urgent elective “surgery or procedures,” and if it did, it would seem to fall into the exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” Texas Executive Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_ capacity_IMAGE_03-22-2020.pdf. The Petitioners’ stated desire to nonetheless enforce the order against the providers of medication abortion raises a strong inference that the enforcement against abortion providers more generally is pretextual and motivated by hostility to abortion rights. Further supporting this inference are multiple declarations from practicing physicians stating that GA-09 is not being enforced to prohibit many obstetrical and gynecological procedures that consume as much or more PPE and hospital capacity than the categories of abortion at issue here, suggesting that abortions were being singled out for differential treatment. See App. at 368, 373-74. And, as discussed in more detail below, there is substantial evidence in the record that enforcing GA-09 against these categories of abortion leads to a net loss of PPE and hospital capacity because the amount of each resource consumed at every stage of a continued pregnancy is greater than the amount consumed in the performance of a medication or procedural abortion. See App. at 135, 372-74, 414.
Based on this evidence, the district court could reasonably
conclude at the TRO stage that Petitioner’s enforcement of GA-09 as a
prohibition against the categories of abortion at issue here was “pretextual”
and had “no real or substantial connection” to protecting public health during
the COVID-19 epidemic.
Abbott II
, 2020 WL 1685929, at *7, *8 (quoting
Jacobson
,
1.
The majority first considers whether the evidence was sufficient for a district court to reasonably conclude that enforcing GA-09 against providers of medication abortion “beyond all question” violated the constitutional right to an abortion. Majority at 19-31. The majority begins by asserting that the district court considered only the relative consumption of PPE associated with medication abortions under normal circumstances and asserts that there is no evidence documenting PPE usage rates during the current pandemic. Majority at 20-23.
First, it is worth reiterating that the majority’s previous order did not include a directive to the district court to specify that findings it was making regarding relative usage were about rates during the current pandemic. The majority now changes the rules in order to find error where there is none. Its new requirement is based solely on the majority’s own supposition that, during the current pandemic, there is PPE used during medication abortions that would not otherwise be used by abortion providers furnishing other healthcare services, and that this increase shifts the balance between the relative benefits and burdens of applying GA-09 to prohibit medication abortions. There is no evidence for the majority’s supposition.
In support of its contention that the rate of PPE usage has likely changed, the majority points to a declaration by an infectious disease expert that states “[n]ot wearing face masks and other PPE when caring for patients who are not under investigation for COVID 19 . . . exposes health care workers to transmission of infection” from asymptomatic patients. Majority at 22. But there is no indication that the abortion providers would not wear the same amount of PPE “caring for patients” in ways other than providing abortion. The majority fails to make the simple logical inference that, if medication abortion requires no PPE under normal conditions, it requires no more PPE than would be used by medical staff providing other services under pandemic conditions. For the majority’s premise to be correct, one would have to assume that abortion providers only (or at least primarily) provide abortion services and would not fill canceled abortion appointment slots with appointments for other medical services that would bring them into personal contact with patients at a similar frequency.
Even assuming
arguendo
that medication abortions do consume
more PPE in a pandemic, the pertinent question is not whether prohibiting
medication abortion prevents the use of some marginal amount of PPE. It is
whether it creates a net benefit that outweighs its burden on the constitutional
right to abortion.
See Whole Woman's Health v. Hellerstedt
,
The majority attempts to overcome this basic conclusion by asserting that the state made a policy judgment that it was more important to conserve PPE in the near term than the long term in order to “flatten the curve.” Majority at 25. But this ignores the evidence that continuing a pregnancy results in more PPE usage at every stage of the pregnancy than is typically used in an abortion of any sort. See App. at 414 (“[T]he imaging and laboratory tests alone needed during early pregnancy require the use of more PPE than is typically used in connection with an abortion.”) There is thus ample evidentiary support to conclude that applying GA-09 to medication abortions results in no conservation of PPE in the short or long term.
Similar evidence exists with respect to hospital capacity; when a
pregnancy is continued, more hospital beds and resources are consumed than
when a woman obtains a pre-viability abortion, and there is no indication that
the current pandemic has changed this.
See, e.g.,
App. at 375. And significant
evidence supports a conclusion that women who are unable to obtain an
abortion because of GA-09 will travel out of state to obtain one, increasing their
risk of contracting COVID-19 and spreading it to others.
See, e.g.,
App. at
258-59, 311. Thus, this is not an instance in which the district court made a
“choice . . . between two reasonable responses to a public crisis,” that should
have been “left to the governing state authorities.”
Abbott II
,
The majority faults the district court for not citing to the
Petitioners’ exhibits purportedly containing contrary evidence on some of these
points, calling this a failure to “carefully parse the evidence.” Majority at 26-
30. But “[i]t is the province of the district court to weigh conflicting evidence,”
including by choosing which evidence to credit and which evidence to discount.
R. S. by & through Ruth B. v. Highland Park Indep. Sch. Dist.
,
2.
The majority similarly concludes that the district court’s reasoning led to a patently erroneous result with regard to the TRO’s blocking application of GA-09 to those abortions in the 18-week category—that is, those abortions for women who would exceed the maximum gestational age to legally have an abortion other than in an ambulatory surgical center by the expiration of the executive order and who would, in their physicians’ judgment, be unable to obtain an abortion at one of these centers. Majority at 32-34.
The majority first criticizes the district court for categorizing the
application of GA-09 to women in this 18-week category as an “absolute ban on
abortion” because, it contends, women falling into this category can,
theoretically, still legally obtain an abortion. Majority at 32 (quoting
Abbott
III
, 2020 WL 1815587, at *6). The majority’s argument is based on a
theoretical legal possibility that is a practical impossibility. Many women in
this category will not be able to obtain an abortion for a number of reasons. In
reality, there are no ambulatory surgical centers that provide abortion care
outside of Texas’s four largest metropolitan areas, s
ee Hellerstedt
, 136 S. Ct. at
2316, and thus many women in rural areas of Texas would need to secure
transportation over a great distance and lodging in a metropolitan area in
order to undergo the two-day procedure necessary for an abortion after the 18-
week mark.
See
App. at 130-31. For many this will not be possible due to time
constraints, financial limitations, health reasons, or any number of other
factors. And there is evidence that, because of the buildup of need for abortion
care during the time GA-09 is in effect, the delays associated with the resulting
backlog may prevent many women who will be past the 18-week mark upon
the expiration of the executive order from obtaining an abortion before the 22-
week legal cutoff.
See, e.g.
, App. at 95. For these women, GA-09 is for all
intents and purposes an absolute ban on abortion. And the majority offers no
authority for the prospect that a law that theoretically leaves a legal path to
abortion cannot as a practical matter function as the sort of absolute ban that
violates “the essential holding of
Roe v. Wade
,”
Casey
,
In light of the balancing test for identifying an undue burden set
forth in
Casey
,
We need not speculate what that benefit might be, though, because on the evidence in the record, it was reasonable for the district court to conclude that applying GA-09 to prohibit this class of abortions offered no benefit at all. Much of the evidence already recounted concerned not only the relative consumption of PPE and hospital capacity between a medication abortion and a continued pregnancy, but rather any pre-viability abortion and a continued pregnancy. See, e.g., App. at 135 (“By comparison, even if a provider of prenatal care reduces the scheduling of such care during the COVID-19 outbreak, it will still involve use of masks, sterile gloves, and potentially other PPE during multiple visits. A patient continuing pregnancy will thus require significantly more PPE than a patient presenting for abortion.”); App. at 375 (stating that “most prenatal and postpartum care is continuing” during the COVID-19 pandemic and cannot be done remotely before concluding that “requiring people to continue unwanted pregnancies utilizes more PPE and more hospital resources than abortion care”).
It is true that, as the majority notes, the Supreme Court acknowledged that “increased driving distances do not always constitute an ‘undue burden.’” Hellerstedt , 136 S. Ct. at 2313. But the district court’s conclusion was not based on increased driving distance alone. The distance was “one additional burden, which, when taken together” with the forced postponement of abortion care, which created a significant backlog of need with a “virtual absence of any health benefit,” id. , “beyond question” constituted an undue burden, Abbott II , 2020 WL 1685929, at *11. This conclusion was a reasonable interpretation of the evidence, and it therefore did not produce palpably erroneous results such that mandamus is appropriate.
CONCLUSION
The present case is an excellent demonstration of the dangers of using the extraordinary remedy of mandamus to overmanage matters that are properly left to a district court’s discretion. In part because of the decisions of this court, the legality of abortion in Texas has changed no less than six times since the beginning of the COVID-19 pandemic. This court has expended substantial time and judicial resources in an effort to prevent interference with the state’s pandemic response at a most urgent time, only to instead contribute to a confusion that is likely more disruptive than the alleged harm it sought to prevent. Even today’s order will have little practical effect other than to briefly change the legality once more. Under GA-15, which takes effect at midnight on April 22, abortion legality in Texas will apparently change for an eighth time, as the Respondents have represented that all of their abortion care will fall into the new exception that exempts services provided by heath facilities that certify they will not draw upon any public supply of PPE.
The majority again concludes that mandamus is appropriate to correct what it perceives as rampant abuses of discretion by the district court that produced patently erroneous results. As I have said, I strongly disagree with the majority’s critique of the district court’s work, and I do not believe that this case warrants mandamus relief. I therefore once again respectfully but emphatically dissent.
Notes
[1] See Planned Parenthood Ctr. for Choice v. Abbott , No. A-20-CV-323, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020) ( Abbott I ).
[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
,
[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).
[4] That is, eighteen weeks after the first day of a pregnant woman’s last menstrual period.
[5] Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_ 03-22-2020.pdf.
[6] Id.
[7] Id. On April 17, 2020, the Governor announced executive order GA-15, which becomes effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020. As discussed infra , GA-15 imposes similar—but not identical—requirements as those imposed by GA-09.
[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
,
[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 condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician. GA-15: All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician[.] See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files /press/EO-GA-15_hospital_capacity_COVID-19_ TRANS_04-17-2020.pdf. Because the TRO as issue in this petition only restrains enforcement of GA-09, we express no opinion on the effect, if any, of the different language in GA-15.
[11] The new exception applies to: any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both: (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID- 19 disaster. Id. Again, we express no opinion on the effect, if any, of this new exception on the issues in this litigation.
[12] Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_ 03-22-2020.pdf.
[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
,
[14]
Compare Abbott III
,
[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
,
[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.
[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.
[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.
[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- parenthood-employees-laid-off-claim-its-retaliation-for-voicing-concerns/) (“[The former staff
[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).
[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
,
[25] Consider another jarring incongruity regarding surgical abortions: Petitioners
submitted a declaration from a physician stating that any physician performing a surgical
abortion must use a face mask and that “[d]ue to the current COVID-19 outbreak, the specific
type of mask that is currently required is a N95 mask.” Harstad Decl. at ¶ 4, App. 230. This
declaration is striking, in light of the district court’s finding that “[o]nly one physician
associated with Plaintiffs has used an N95 mask since the beginning of the COVID-19
pandemic, and that physician has been reusing the same mask over and over.”
Abbott III
,
[26] See American College of Obstetricians and Gynecologists, Clinical Guidelines: Medical management of first-trimester abortion, 89 Contraception 148, 149 (2014), https://www.contraceptionjournal.org/article/S0010-7824(14)00026-2/pdf (estimating that 4– 8% of mifepristone-induced abortions at seven weeks gestation, and more than 15% after seven weeks gestation, result in incomplete abortions).
[27] See Opp. to Mandamus at 19 (citing U.S. Food & Drug Admin., Mifeprex 13 tbl.3 (rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687 s020lbl.pdf).
[28] It is unclear how Respondents tie this contention (which revolves around the
interpretation of GA-09) to their substantive due process claim, which is the only claim they
pursued on their first and second applications for TROs. In any event, Respondents may
develop their arguments further at the preliminary injunction stage, if they choose. Finally,
based on this finding and others, the dissenting opinion,
infra
at 18–21, suggests that the
April 9 TRO concludes that GA-09 was a “pretext” for targeting abortion. But we discern no
such conclusion in the April 9 TRO. Instead, in its conclusions of law, the April 9 TRO merely
states that GA-09’s “burdens outweigh [its] benefits,”
Abbott III
,
[29] Such a claim would need to be brought in state court.
Cf. Russell v. Harris Cty.
, CV
H-19-226,
[1] Indeed, in the interim between this case and our last decision, one of our sister circuits has explicitly rejected the proposition that a very similar temporary restraining order (TRO) to the one at issue here would work such irreparable harm that bypassing the normal appeals process was appropriate. See S. Wind Women’s Ctr. LLC v. Stitt , No. 20- 6045, 2020 WL 1860683, at *2-3 (10th Cir. Apr. 13, 2020); see also id. at 3 (Lucero, J., concurring) (observing that where—as here—the State failed to present any evidence that abortion procedures would result in a shortage of PPE or hospital capacity needed for the COVID-19 response, it failed to establish that the TRO had irreparable consequences).
[2] Because the requirements of GA-09 and the emergency rule are coextensive, all parties to this litigation have consistently referred to them collectively as GA-09, and this opinion will follow suit.
[3] References to “App.” in this opinion refer to the appendix to the mandamus petition. See ECF 4 (5th Cir. No. 20-50296).
[4] LMP refers to the length of time that has passed since the first day of a pregnant woman's last menstrual period. See Tex. Health & Safety Code § 171.063.
[5] The district court already extended its second TRO once on April 14. See Planned Parenthood Center for Choice v. Abbott , No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 82) (Apr. 14, 2020).
[6] See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads /files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf.
[7] Notably, the Petitioners have not at any point filed a motion to dismiss the
Respondents’ claims against the Governor and Attorney General, instead raising their
jurisdictional arguments only in opposition to the TRO. Had one been filed, the denial of the
motion would have been immediately appealable,
see Texas v. Caremark, Inc.
,
[8] In its previous decision, the majority without explanation chose to analyze whether GA-09 as a whole had a real or substantial relation to the current public health crisis, notwithstanding the fact that the Respondents were not challenging GA-09 as a whole, nor had the district court enjoined all applications of GA-09. As discussed in more detail below, the proper focus should have been whether the application of GA-09 to abortions bore any real or substantial connection to the current public health crisis. See Jacobson , 197 U.S. at 28 (“We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons .” (emphases added)).
[9] The majority now faults the district court for not explicitly stating that its
findings were with regard to how much of each resource are being consumed
during the
current COVID-19 pandemic.
Majority at 20-23. As discussed in more detail below, this is
an incorrect reading of the district court’s order, s
ee Abbott II
,
[10] Petitioners’ failure to do so, together with their stated resistance to “an
overly ambitious schedule” in the latest status report filed with the district court in which
they requested that the preliminary injunction hearing be held no earlier than April 30,
Abbott
, No. 1:20-cv-00323-LY (Dkt. No. 78) at 3 (Apr. 14, 2020), conflicts with any assertion
that time truly is so of the essence that Petitioners had “no other adequate means to attain
the relief [they] desire[],” as is required for a grant of mandamus.
Occidental Petroleum
Corp.
,
[11] The majority theorizes that, because the district court found that medication
abortion is not a surgery or procedure within the meaning of GA-09, its TRO might be
construed as enjoining state officials to comply with state law, which would violate principles
of sovereign immunity. Majority at 30-31 (citing
Pennhurst State Sch. & Hosp. v. Halderman
,
465 U.S. 89, 106 (1984)). But “[a]scertaining state law is a far cry from compelling state
officials to comply with it.”
Williams ex rel. J.E. v. Reeves
, No. 19-60069,
[12] According to Planned Parenthood’s website, in addition to abortion services, the organization provides health services associated with emergency contraception, general preventative healthcare, testing and treatment for HIV and other sexually transmitted diseases, LGBT services, fertility treatments, treatment for sexual dysfunction, pregnancy testing and associated services, pelvic exams, and cancer screenings. See Our Services, Planned Parenthood, https://www.plannedparenthood.org/get-care/our-services (last visited Apr. 20, 2020).
[13] The majority’s unsupported supposition that similar travel might occur as a result of any medical procedures being postponed, Majority at 26, is particularly misplaced. There is no evidence that any other delayed medical service increases in cost and health risk if delayed in the same manner as an abortion, nor that there exists a legal deadline by which such procedures must be procured comparable to Texas’s ban on post 22-week abortions.
[14] This is especially true because the 18-week category contains even women that will be only one or a few days shy of the 22-week legal cutoff for an abortion when GA- 09 expires.
[15] The majority determines that the district court did not patently err by enjoining the enforcement of GA-09 against abortions in the 22-week category. Majority at 34-35. I agree that the district court did not patently err and that mandamus is not warranted. However, I disagree with the majority’s characterization of the evidence of women who would be denied abortions in this category as “second-hand” and “weak.” Majority at 34. Contra App. at 103 (declaration from CEO of nonprofit operator of an abortion clinic stating from personal knowledge that her clinic canceled two appointments with women who will be past the 22-week legal limit for an abortion by the expiration of GA-09); App at 349 (declaration from general manager of surgical center stating from personal knowledge that at least three of the patients whose appointments were canceled will be past the 22-week legal limit for abortion by the expiration of GA-09); App. at 353 (declaration from senior director of ambulatory surgical center stating from personal knowledge that, based on ultrasound dating, at least three of the appointments the clinic canceled were for women who will be beyond the legal gestational age limit to obtain an abortion by the expiration of GA- 09); App. at 442 (declaration from employ of abortion financial assistance fund stating from personal knowledge that at least ten of the funds clients will be past the 22-week gestational age limit for an abortion by the expiration of GA-09).