In re: Gregg Abbott
To preserve critical medical resources during the escalating COVID-19 pandemic, on March 22, 2020, the Governor of Texas issued executive order GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. Reading GA-09 as an “outright ban” on pre-viability abortions, on March 30 the district court issued a temporary restraining order (“TRO“) against GA-09 as applied to abortion procedures. At the request of Texas officials, we temporarily stayed the TRO while considering their petition for a writ of mandamus directing vacatur of the TRO. We now grant the writ.
First, the district court ignored the framework governing emergency public health measures like GA-09. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). “[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Id. at 29. That settled rule allows the state to restrict, for example, one‘s right to peaceably assemble, to publicly worship, to travel, and even to leave one‘s home. The right to abortion is no exception. See Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson); Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992) (same); Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (same).1
Second, the district court‘s result was patently wrong. Instead of applying Jacobson, the court wrongly declared GA-09 an “outright ban” on pre-viability abortions and exempted all abortion procedures from its scope. The court also failed to apply Casey‘s undue-burden analysis and thus failed to balance GA-09‘s temporary burdens on abortion against its benefits in thwarting a public health crisis.
Third, the district court usurped the state‘s authority to craft emergency health measures. Instead, the court substituted its own view of the efficacy of applying GA-09 to abortion. But “[i]t is no part of the function of a court” to
In sum, given the extraordinary nature of these errors, the escalating spread of COVID-19, and the state‘s critical interest in protecting the public health, we find the requirements for issuing the writ satisfied. See Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380–81 (2004).
We emphasize the limits of our decision, which is based only on the record before us. The district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances. The district court can then make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access. Our overriding consideration here, however, is that those proceedings adhere to the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures like the one before us.
Accordingly, we grant a writ of mandamus directing the district court to vacate its TRO of March 30, 2020.
I.
As all are painfully aware, our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. As of April 6, 2020, over 330,000 cases have been confirmed across the United States, with over 8,900 dead.2 The virus is “spreading very easily and sustainably”3 throughout the country, with cases
On March 13, 2020, the President declared a national state of emergency, and the Governor of Texas declared a state of disaster.7 Six days later, the Texas Health and Human Services Executive Commissioner declared a public health disaster because the virus “poses a high risk of death to a large number of people and creates a substantial risk of public exposure because of the disease‘s method of transmission and evidence that there is community spread in Texas.”8 As the district court in this case acknowledged, “Texas faces it[s] worst public health emergency in over a century.”
The surge of COVID-19 cases causes mounting strains on healthcare systems, including critical shortages of doctors, nurses, hospital beds, medical
postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient‘s physician.10
Importantly, the order “shall not apply to any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”11 Failure to comply with the order may result in administrative or criminal penalties, including “a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both.”12 The order automatically expires after 11:59 p.m. on April 21, 2020, but can be modified, amended, or superseded.
In the TRO, the district court agreed that “Texas faces it[s] worst public health emergency in over a century,” and also that “[GA-09], as written, does not exceed the governor‘s power to deal with the emergency.” Nonetheless, the court interpreted GA-09 as “effectively banning all abortions before viability.” The court reasoned that, because “no interest” can justify such an “outright ban” on pre-viability abortions, GA-09 contravenes Supreme Court and Fifth Circuit precedent. The TRO therefore prohibits all defendants, including
On the evening of March 30, 2020, Petitioners filed a petition for writ of mandamus in our court, requesting that we direct the district court to vacate the TRO. Petitioners simultaneously sought an emergency stay of the TRO, as well as a temporary administrative stay, while the court considered their request. On March 31, 2020, we temporarily stayed the TRO and set an expedited briefing schedule.
II.
Federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
III.
Petitioners claim they satisfy all three mandamus prongs and are therefore entitled to the writ. As to the first prong, they argue mandamus is proper for obtaining relief, even from a non-appealable TRO, when the stakes are “extraordinarily time-sensitive.” ECF 2 at 30–31. As to the second prong, Petitioners contend the district court “clearly and indisputably erred” by ruling that abortion is an absolute right which cannot be curtailed even in the midst of a public health emergency.17 Id. at 11–24. Finally, as to the third prong,
Petitioners argue mandamus is proper because “[t]he longer [Respondents] are allowed to perform elective procedures—consuming scarce PPE, increasing hospitalizations, and potentially spreading the virus to countless individuals—the longer it will take to flatten the curve in Texas, meaning more illnesses, more hospitalizations, and more deaths.” Id. at 31. We address each prong in turn, beginning with the second.
A.
We first address the second mandamus prong—whether entitlement to the writ is “clear and indisputable“—because it is central to our analysis. See, e.g., Volkswagen, 545 F.3d at 311 (beginning with second prong because it “captures the essence of the disputed issue“). “In recognition of the extraordinary nature of the writ, we require more than showing that the court misinterpreted the law, misapplied it to the facts, or otherwise engaged in an abuse of discretion.” In re Lloyd‘s Register N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015). Rather, a petitioner has a clear and indisputable right to the writ only when there has been a “usurpation of judicial power” or “a clear abuse of discretion that produces patently erroneous results.” JPMorgan Chase, 916 F.3d at 500 (cleaned up); see also Gee, 941 F.3d at 159; Lloyd‘s Register, 780 F.3d at 290. Usurpation of judicial power occurs when courts act beyond their jurisdiction or fail to act when they have a duty to do so. Will v. United States, 389 U.S. 90, 95 (1967). But it also occurs in other situations. The Supreme Court has sanctioned use of the writ “to restrain a lower court when its actions would threaten the separation of powers by ‘embarrassing the executive arm of the Government,’ or result in the ‘intrusion by the federal judiciary on a delicate area of federal-state relations.‘” Cheney, 542 U.S. at 381 (citing Will,
We conclude Petitioners have shown “a clear and indisputable right to issuance of the writ.” Volkswagen, 545 F.3d at 311. In issuing the TRO, the district court clearly abused its discretion by failing to apply (or even acknowledge) the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). This extraordinary error allowed the district court to create a blanket exception for a common medical procedure—abortion—that falls squarely within Texas‘s generally-applicable emergency measure issued in response to the COVID-19 pandemic. This was a patently erroneous result. In addition, the court usurped the power of the governing state authority when it passed judgment on the wisdom and efficacy of that emergency measure, something squarely foreclosed by Jacobson.18
1.
In Jacobson, the Supreme Court considered a claim that the state‘s compulsory vaccination law—enacted amidst a growing smallpox epidemic in Cambridge, Massachusetts—violated the defendant‘s Fourteenth Amendment right “to care for his own body and health in such way as to him seems best.”
[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
The Supreme Court has repeatedly acknowledged this principle. See, e.g., Lawton v. Steele, 152 U.S. 133, 136 (1894) (recognizing that “the state may interfere wherever the public interests demand it” and “discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests“); Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana‘s right to quarantine passengers aboard vessel—even where all were healthy—against a Fourteenth Amendment challenge); Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (noting that “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease“); United States v. Caltex, 344 U.S. 149, 154 (1952) (acknowledging that “in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved“).
To be sure, individual rights secured by the Constitution do not disappear during a public health crisis, but the Court plainly stated that rights
if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.
Id. at 31 (emphasis added). Elsewhere, the Court similarly described this review as asking whether power had been exercised in an “arbitrary, unreasonable manner,” id. at 28, or through “arbitrary and oppressive” regulations, id. at 38. Accord Lawton, 152 U.S. at 137 (“To justify the state in thus interposing its [police power] in behalf of the public, it must appear [1] that the interests of the public generally . . . require such interference; and [2] that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.“).
Jacobson did emphasize, however, that even an emergency mandate must include a medical exception for “[e]xtreme cases.” 197 U.S. at 38. Thus, the vaccination mandate could not have applied to an adult where vaccination would exacerbate a “particular condition of his health or body.” Id. at 38–39. In such a case, the judiciary would be “competent to interfere and protect the health and life of the individual concerned.” Id. at 39. At the same time, Jacobson disclaimed any judicial power to second-guess the state‘s policy choices in crafting emergency public health measures: “Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” Jacobson, 197 U.S. at 28 (emphasis added); see also id. at 30 (“It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most
The bottom line is this: when 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.” Id. at 31. Courts may ask whether the state‘s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30.
Jacobson remains good law. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 356–57 (1997) (recognizing Fourteenth Amendment liberties may be restrained even in civil contexts, relying on Jacobson); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (rejecting, based on Jacobson, a § 1983 lawsuit concerning 80-hour quarantine of nurse returning from treating Ebola patients in Sierra Leone). And, most importantly for the present case, nothing in the Supreme Court‘s abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework. Quite the contrary, the Court has consistently cited Jacobson in its abortion decisions.
In Roe v. Wade, the Supreme Court announced for the first time that an expectant mother has a constitutional right to an abortion. 410 U.S. 113. Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed this right and established the current standard for abortion restrictions. 505 U.S. 833. Casey recognized that after a fetus is viable, states may ban abortion outright, except for pregnancies that endanger the mother‘s life or health. Id. at 846 (plurality opinion). After Casey, there remain
None of these cases, so far as we are aware, involved a state‘s postponement of some abortion procedures in response to a public health crisis—the context in which Jacobson plainly applies. But three of the Court‘s principal abortion cases—Roe, Casey, and Carhart—cite Jacobson with approval and without suggesting that abortion rights are somehow exempt from its framework. In Roe, the Supreme Court cited Jacobson as one example of the Court‘s refusal to recognize an “unlimited right to do with one‘s body as one pleases.” 410 U.S. at 154 (citing Jacobson, 197 U.S. 11). The Court reasoned that the right to abortion “is not unqualified and must be considered against important state interests in regulation.” Id. Similarly, in Casey, the plurality cited Jacobson as one example of the Court‘s balance between “personal autonomy and bodily integrity” on one hand and “governmental power to mandate medical treatment or to bar its rejection” on the other. 505 U.S. at 857 (citing Jacobson, 197 U.S. at 24–30). Finally, in the course of upholding a federal restriction on certain abortion methods in Carhart, the
By all accounts, then, the effect on abortion arising from a state‘s emergency response to a public health crisis must be analyzed under the standards in Jacobson. Respondents all but concede this point, offering no discernible argument that Jacobson has been superseded or is otherwise inapplicable during a public health crisis such as the COVID-19 pandemic. See ECF 53 at 16. The district court, however, failed to recognize Jacobson‘s long-established framework. While acknowledging that “Texas faces it[s] worst public health emergency in over a century,” the court treated that fact as entirely irrelevant. Indeed, the court explicitly refused to consider how the Supreme Court‘s abortion cases apply to generally-applicable emergency health measures, saying it would “not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.” App. 268.
That analysis is backwards: Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency. We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so. To the contrary, the Court has repeatedly cited Jacobson in abortion cases without once suggesting that abortion is the only right exempt from limitation during a public health emergency. In sum, by refusing even to consider Jacobson—the controlling Supreme Court precedent that squarely governs judicial review of rights-challenges to emergency public health measures—the district court “clearly and indisputably erred.” JPMorgan Chase, 916 F.3d at 500 (quoting In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000)) (emphasis omitted). Under our precedents, that alone is enough to satisfy the second
2.
Moreover, the district court‘s refusal to acknowledge or apply Jacobson‘s legal framework produced a “patently erroneous” result. JPMorgan Chase, 916 F.3d at 500 (quoting Lloyd‘s Register, 780 F.3d at 290). Under Jacobson, the district court was empowered to decide only whether GA-09 lacks a “real or substantial relation” to the public health crisis or whether it is “beyond all question, a plain, palpable invasion” of the right to abortion. 197 U.S. at 31. On the record before us, the answer to both questions is no, but the district court did not even ask them. Instead, the court bluntly declared GA-09 an “outright ban” on pre-viability abortions and exempted all abortion procedures, in whatever circumstances, from the scope of this emergency public health measure. That was a patently erroneous result.19
a.
The first Jacobson inquiry asks whether GA-09 lacks a “real or substantial relation” to the crisis Texas faces. Id. The answer is obvious: the district court itself conceded that GA-09 is a valid emergency response to the COVID-19 pandemic. The court recognized, as does everyone involved, that
To be sure, GA-09 is a drastic measure, but that aligns it with the numerous drastic measures Petitioners and other states have been forced to take in response to the coronavirus pandemic. Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities. These measures would be constitutionally intolerable in ordinary times, but are recognized as
b.
The second Jacobson inquiry asks whether GA-09 is ”beyond question, in palpable conflict with the Constitution.” Id. (emphasis added). The district court, while not framing the question in those terms, evidently thought the answer was yes. But the court reached that conclusion only by grossly misreading GA-09 as an “outright ban” on all pre-viability abortions. Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis. As we explain below, however, Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09‘s burdens outweigh its benefits in those situations. See Hellerstedt, 136 S. Ct. at 2309.
To begin with, the district court‘s central (and only) premise—that GA-09 is an “outright ban” on all pre-viability abortions—is plainly wrong. The court reasoned that GA-09 was by definition invalid in light of our decisions in Jackson II and Jackson III, which recognize states cannot ban pre-viability abortions. App. 267–68. But GA-09 only delays certain non-essential abortions. GA-09 thus differs from the regulations in Jackson II and III in three key respects. First, GA-09 expires on April 21, 2020, three weeks after its effective
Jackson II invalidated Mississippi‘s ban on abortions after fifteen weeks, with narrow exceptions for “medical emergenc[ies]” and “severe fetal abnormalit[ies].” 945 F.3d at 269 (citations omitted). The state “conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks.” Id. at 270. We invalidated the law as “a prohibition on pre-viability abortion.” Id. at 272–73. Mississippi also enacted Senate Bill 2116, which criminalized abortion “after a ‘fetal heartbeat has been detected,‘” Jackson Women‘s Health Org. v. Dobbs [Jackson III], 951 F.3d 246, 248 (5th Cir. 2020) (citation omitted), something that “can occur anywhere between six and twelve weeks.” Id. The only exceptions were for “death of, or serious risk of ‘substantial and irreversible’ bodily injury to” the mother. Id. (citation omitted). We invalidated the law in a one-page per curiam opinion relying principally on Jackson II. Id.
Mississippi‘s now-invalid laws are quite different from GA-09. First, both were permanent, whereas GA-09 expires in just a few weeks.22 The expiration
GA-09 also vests far more discretion in physicians to determine whether the life-or-health exception is met. The fifteen-week ban in Jackson II required a “good faith clinical judgment” of a medical emergency,
Properly understood, then, GA-09 is a temporary postponement of all non-essential medical procedures, including abortion, subject to facially broad exceptions. Because that does not constitute anything like an “outright ban” on pre-viability abortion, GA-09 “cannot be affirmed to be, beyond question, in palpable conflict with the Constitution.” Jacobson, 197 U.S. at 31 (emphasis added). As already discussed, the Supreme Court‘s abortion cases have repeatedly cited Jacobson to demarcate the limits states may place on abortion. See Roe, 410 U.S. at 154; Casey, 505 U.S. at 857; Carhart, 550 U.S. at 163. GA-09 is, without question, one such limit. The order is a concededly valid public health measure that applies to “all surgeries and procedures,” App. 35, does not single out abortion, and merely has the effect of delaying certain non-essential abortions. Moreover, the order has an exemption for serious medical conditions, comporting with Jacobson‘s requirement that health measures “protect the health and life” of susceptible individuals. Jacobson, 197 U.S. at 39. Indeed, the exemption in GA-09 goes well beyond the exceptions for “[e]xtreme cases” Jacobson discussed. Id. In sum, Jacobson offers no basis for the district court‘s conclusion that abortion rights merit an across-the-board exemption from an measure like GA-09. To find otherwise “would practically strip the [executive] department of its function to care for the public health and the public safety when endangered by epidemics of disease.” Id. at 37.
Moreover, due to its mistaken view that GA-09 “bans” pre-viability abortions, the district court failed to analyze GA-09 under Casey‘s undue-burden test. App. 268. This was error. Under Casey, courts must ask whether an abortion restriction is “undue,” which requires “consider[ing] the burdens a
For example, the district court did not consider whether different methods of abortion may consume PPE differently. Our own review of the record, at this preliminary stage, reveals considerable evidence that surgical abortions consume PPE.23 By contrast, the record is unclear how PPE is consumed in medication abortions.24 Nor did the district court consider
We do not decide at this stage, however, whether an injunction narrowly tailored to particular circumstances would pass muster under the Jacobson framework. See, e.g., ODonnell v. Harris Cty., 892 F.3d 147, 163 (5th Cir. 2018) (“A district court abuses its discretion if it does not narrowly tailor an injunction to remedy the specific action which gives rise to the order.” (citation and internal quotations omitted)). These are issues that the parties may pursue at the preliminary injunction stage, where Respondents will bear the burden to prove, “by a clear showing,” that they are entitled to relief. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A Wright, Miller, & Kane, Fed. Prac. & Proc. § 2948 (2nd ed. 1995)); cf. Ayotte v. Planned Parenthood, 546 U.S. 320, 331 (2006) (injunction should be tailored to “[o]nly [the] few applications” of challenged statute that “would present a constitutional problem“). Our overarching point here is that the district court did not even apply Casey‘s undue-burden test and thus failed to weigh GA-09‘s
In sum, based on this record we conclude that GA-09—an emergency measure that postpones certain non-essential abortions during an epidemic—does not “beyond question” violate the constitutional right to abortion. Jacobson, 197 U.S. at 31.
3.
Finally, the district court‘s extraordinary failure to evaluate GA-09 under the Jacobson framework also usurped the state‘s authority to craft measures responsive to a public health emergency. Such judicial encroachment intrudes on the duties of the “executive arm of Government” and “on a delicate area of federal-state relations,” further bolstering Texas‘s right to issuance of the writ. Cheney, 542 U.S. at 381.
In addressing the fourth and final TRO factor—whether a TRO would disserve the public interest—the district court did little more than assert its own view of the effectiveness of GA-09. The district court did not provide any explanation of its conclusion that the public health benefits from an emergency measure like GA-09 are “outweighed” by any temporary loss of constitutional rights. Instead, the court rotely concluded that all injunctions vindicating constitutional rights serve the public interest and that a TRO would “continue the status quo.” App. 270. With respect, that blinks reality. The status quo Texas faces, along with the rest of the nation, is a public health crisis that is making once-in-a-lifetime demands on citizens, government, industry, and the medical profession. Where there is a status quo to preserve, it is certainly true that an injunction does “not disserve the public interest [if] it will prevent constitutional deprivations.” Jackson Women‘s Health Org. v. Currier [Jackson I], 760 F.3d 448, 458 n.9 (5th Cir. 2014). But the essence of equity is the ability
Instead of doing any of this, the district court substituted its ipse dixit for the Governor‘s reasoned judgment, bluntly concluding that “[t]he benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy.” App. 270. Respondents—as well as our dissenting colleague—share this view. ECF 53 at 2, 17–21; Dissent at 11–12.
As Jacobson repeatedly instructs, however, if the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities. “It is no part of the function of a court or a jury to determine which one of two modes [i]s likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at 30. Such authority properly belongs to the legislative and executive branches of the governing authority. In light of the massive and rapidly-escalating threat posed by the COVID-19 pandemic, “the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” Id. at 28 (emphasis added). The district court‘s order contravened this principle; Respondents and the dissenting opinion invite us to do the same. We decline to engage in such “unwarranted judicial action.” Will, 389 U.S. at 95.
The district court, for its part, did not even purport to engage in the sort of limited pretext inquiry contemplated by cases like Jacobson and Lawton. Instead, the district court overstepped its proper role and imposed its own judgment about how the COVID-19 pandemic should be handled with respect to abortion.27 This was a usurpation of the state‘s power. Will, 389 U.S. at 95.
In sum, based on the record before us, we conclude that Petitioners have a clear and indisputable right to issuance of the writ, satisfying the second mandamus prong. Itron, 883 F.3d at 567.
B.
We now consider whether Petitioners have shown they “have no other adequate means” to obtain the relief they seek. Cheney, 542 U.S. at 380. This requirement is “designed to ensure that the writ will not be used as a substitute for the regular appeals process.” Id. at 380–81. Mandamus is generally unavailable for review of “district court decisions that, while not immediately appealable, can be reviewed at some juncture.” In re Crystal Power Co., 641 F.3d 82, 83 (5th Cir. 2011). “[F]or an appeal to be an inadequate remedy, there must be ‘some obstacle to relief beyond litigation costs that renders obtaining relief not just expensive but effectively unobtainable.‘” Depuy Orthopaedics, 870 F.3d at 353 (quoting Lloyd‘s Register, 780 F.3d at 289). In other words, the error claimed must be “truly irremediable on ordinary appeal.” JPMorgan Chase, 916 F.3d at 499 (cleaned up) (quoting Depuy, 870 F.3d at 352–53).
Given the surging tide of COVID-19 cases and deaths, Petitioners have made this showing. In mill-run cases, it might be a sufficient remedy to simply wait until the expiration of the TRO, and then appeal an adverse preliminary injunction. See
Those methods would be woefully inadequate here. The TRO is set to expire April 13, 2020, two weeks from the date it issued. App. 271. But time is of the essence when it comes to preventing the spread of COVID-19 and conserving medical resources critically needed to care for patients. To illustrate the speed at which the pandemic has been unfolding: As of March 20 there
We therefore conclude no other adequate means exist for Petitioners to obtain the relief they seek, thus satisfying the first mandamus prong.
C.
Finally, we must decide whether to exercise our discretion to issue the writ. See Gee, 941 F.3d at 170. “Discretion is involved in defining both the circumstances that justify exercise of writ power and also the reasons that may justify denial of a writ even though the circumstances might justify a grant.” 16 WRIGHT & MILLER, supra, § 3933. “The longstanding view is that discretion to issue the writs should be exercised only in special cases . . . .” Id.
We are persuaded that this petition presents an extraordinary case justifying issuance of the writ. First, as we have noted, the current global pandemic has caused a serious, widespread, rapidly-escalating public health crisis in Texas. Petitioners’ interest in protecting public health during such a time is at its zenith. In the unprecedented circumstances now facing our society, even a minor delay in fully implementing the state‘s emergency measures could have major ramifications because, as the evidence shows, an
Second, the district court‘s refusal to acknowledge the governing framework from Jacobson was a clear abuse of discretion that produced a patently erroneous result: bestowing on abortion providers a blanket exemption from a generally-applicable emergency public health measure. Not stopping there, the district court usurped the power of state authorities by passing judgment on the wisdom and efficacy of those emergency measures. These are “extraordinary” errors. See Volkswagen, 545 F.3d at 318.
Third, “writs of mandamus are supervisory in nature and are particularly appropriate when the issues also have an importance beyond the immediate case.” Id. at 319. While unclear how long the current crisis will last, it is probable that other legal disputes will arise pitting claims of private rights against the states’ authority to preserve public health and safety. Indeed, 34 states plus the District of Columbia have filed amicus briefs in this case, demonstrating the widespread importance of the issues involved. We also view the “sheer magnitude” of the district court‘s error and its effect on the state‘s ongoing emergency efforts to slow COVID-19 as evidence that the “safety valve” of mandamus is appropriate. Itron, 883 F.3d at 568–69 (cleaned up).
Lastly, we note that this case is distinguishable from our recent decisions in Gee and JPMorgan Chase, where, in our discretion, we declined to issue writs of mandamus. In Gee, we concluded that, even though the district court clearly abused its discretion in failing to undertake the required jurisdictional analysis, mandamus was nevertheless not required because (1) it was unclear what result the district court would reach once it performed the correct analysis, and (2) many of the petitioner‘s arguments went beyond jurisdiction and challenged the plaintiffs’ theory on the merits. See 941 F.3d at 170. In light of those considerations, we deemed it imprudent to issue the writ. Id. In
We confront vastly different circumstances here. To begin with, unlike in Gee, the district court addressed the merits of Respondents’ claim, though it did so in a manner that overlooked the controlling framework and produced patently erroneous results. See Volkswagen, 545 F.3d at 319. Given the severe time constraints here, we do not have the luxury to wait and see what approach the district court might take on the merits. Second, unlike in JPMorgan Chase, the district court‘s decision here did not align with “numerous” other courts which had confronted the same issue. To the contrary, the district court cited not a single case addressing restrictions on abortion during a public health crisis. Therefore, “we are aware of nothing that would render the exercise of our discretion to issue the writ inappropriate.” Volkswagen, 545 F.3d at 319.
For those reasons, we exercise our discretion to issue a writ of mandamus. See Cheney, 542 U.S. at 381.
IV.
The petition for writ of mandamus is GRANTED, directing the district court to vacate the TRO entered on March 30, 2020. Petitioners’ emergency motion to stay the TRO pending resolution of their mandamus petition is DENIED AS MOOT. Our temporary stay of March 31, 2020, is LIFTED. Any future appeals or mandamus petitions in this case will be directed to this panel and will be expedited. Gee, 941 F.3d at 173; In re First South Sav. Ass‘n, 820 F.2d 700, 716 (5th Cir. 1987). The mandate shall issue forthwith.
Eight days ago, the district court temporarily restrained Texas‘s temporary ban of all medication abortions and procedural abortions. “The benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers,” the district court explained, “is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care.” Other states, including Oklahoma,1 Alabama,2 and Ohio,3 have attempted to limit a woman‘s access to abortion during the COVID-19 pandemic. Thus far, none of those attempts has been successful in the face of a constitutional challenge, either in the district courts or on appeal. South Wind Women‘s Center LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2 (W.D. Okla. Apr. 6, 2020) (“[W]hile the current public health emergency allows the state of Oklahoma to impose some of the cited measures delaying abortion procedures, it has acted in an ‘unreasonable,’ ‘arbitrary’ and ‘oppressive’ way—and imposed an ‘undue
Today, the majority concludes that allowing women in Texas access to time-sensitive reproductive healthcare, a right supported by almost 50 years of Supreme Court precedent, was a “patently erroneous” result that must be
I.
On March 22, 2020, Texas Governor Greg Abbott signed Executive Order GA-09 (“GA-09“) to expand hospital bed capacity as the state responds to the COVID-19 virus. The Executive Order, which “ha[s] the force and effect of law,”
[a]ll licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient‘s physician.5
The Executive Order exempts “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”
Several organizations that provide abortion services in Texas and a board-certified family medicine physician who provides abortion care (collectively, “Respondents“) brought an action in the Western District of Texas under
I include this explanation not to reiterate the procedural history the majority has already explained, but to emphasize what exactly we are reviewing. Respondents brought a constitutional challenge to GA-09, and
The attorney general‘s news release interprets GA-09 to ban “any type of abortion that is not medically necessary to preserve the life or health of the mother,” regardless, apparently, of whether such a procedure (1) in the view of the patient‘s physician, is immediately medically necessary and would put a patient at risk for serious adverse medical consequences if not performed, or (2) would fall under GA-09‘s exception for procedures that do not utilize PPE or deplete hospital capacity.
II.
The district court granted Respondents’ TRO, halting enforcement of GA-09 insofar as it bans all procedural and medication abortions. Petitioners seek a writ of mandamus to remedy what they describe as a “clearly and indisputably erroneous” decision. The Supreme Court and this court have repeatedly emphasized that mandamus is an “extraordinary remedy” to be
Mandamus relief generally requires that (1) “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process“; (2) “the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable“; and (3) “the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. at 380–81 (internal quotation marks and citations omitted).
Under the “clear and indisputable” prong, id., Petitioners must show the district court‘s determination was a “clear abuse[] of discretion that produce[d] patently erroneous results.” In re Lloyd‘s Register N. Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at 312). Both conditions—clear abuse of discretion and a patently erroneous result—must be met to obtain mandamus relief. See id.
The majority concludes that the district court clearly erred by not applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and
III.
In Jacobson, the city of Cambridge, Massachusetts, pursuant to state statute, passed a regulation requiring all of its citizens to receive a smallpox vaccination to combat a smallpox outbreak. 197 U.S. at 12. Jacobson challenged the regulation, arguing that it violated his Fourteenth Amendment right “to care for his own body and health in such a way as to him seems best.” Id. at 26. The Court explained that the state‘s action in compelling vaccination was an exercise of its police power, which “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 25. In rejecting Jacobson‘s constitutional challenge, the Court explained “[e]ven liberty itself, the greatest of all rights, is not unrestricted license to act according to one‘s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” Id. at 26–27. The Court explained, however, that individual rights are not gutted during a crisis: Courts have a duty to review a state‘s exercise of their police power where the state‘s action (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,” (2) “has no real or substantial relation to” “protect[ing] the public health, the public morals, or the public safety,” or (3) “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 28, 30. Jacobson, then, stands for the proposition that a state by its legislature may utilize its police power to enact laws to protect the public health and safety,
A.
This case is clearly distinguishable from Jacobson. There, the city required its citizens to get a smallpox vaccine to stop the spread of a smallpox outbreak. The measure adopted by the city related directly to the public health crisis—every citizen who did not receive the vaccine could actively spread the disease, and therefore mandatory vaccination actively curbed the disease‘s spread. The thread connecting GA-09 to combatting COVID-19 is more attenuated—premised not on the idea that abortion providers are spreading the virus, but that their continuing operation requires the use of resources that should be conserved and made available to healthcare workers fighting the outbreak. This reasoning requires the additional link that those PPE resources denied to abortion providers are indeed conserved, are significant in amount, and can realistically be reallocated to healthcare workers fighting COVID-19, a showing that Petitioners have not made.
B.
The majority claims that ”Jacobson disclaimed any judicial power to second-guess the policy choices made by the state in crafting emergency public health measures.” Maj. Op. at 12. But the Court did not conclude that an emergency situation deprives courts of their duty and power to uphold the constitution—quite the opposite, in fact.
The Court in Jacobson determined that the Massachusetts law should not be invalidated because “[s]mallpox being prevalent and increasing in Cambridge, the court would usurp the functions of another branch of government if it adjudged, as a matter of law, that the mode adopted under the
We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
Id. The Court in Jacobson also explained that it had previously “recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, [and] health . . . within its limits.” Id. (citing Hannibal & St. J.R. Co. v. Husen, 95 U. S. 465, 471–73 (1877)). While states have the right to pass such laws, the Court explained, the courts have a “duty to hold . . . invalid” laws that “went beyond the necessity of the case, and, under the guise of exerting a police power, invaded the domain of Federal authority, and violated rights secured by the Constitution.” Id.
Thus, the Court clearly anticipated that courts would exercise judicial oversight over a state‘s decision to restrict personal liberties during emergencies. See id. Jacobson merely acknowledged that what is reasonable during an emergency is different from what is reasonable under normal circumstances, and that courts must not act as super-executives in an emergency. Given the language of Jacobson, then, the Court was concerned with both what the majority focuses on—the state‘s ability to adequately protect its citizens during a public health crisis—and what the majority ignores—the courts’ ability to protect citizens’ constitutional rights when
Therefore, Jacobson reaffirms the district court‘s duty, and our duty, “to hold [GA-09] invalid” if it (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,” (2) “has no real or substantial relation to” “protect[ing] the public health, the public morals, or the public safety,” or (3) “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” See id. at 28, 30.
IV.
After concluding that the district court clearly abused its discretion in not relying on Jacobson, the majority determines that this error produced a patently erroneous result. Maj. Op. at 15-23. The majority claims that the district court‘s conclusion that GA-09 amounts to a previability ban is patently erroneous. Maj. Op. at 17. In my view, this “conclusion” does not accurately characterize the “result” of the district court‘s order. See In re Volkswagen of Am., Inc., 545 F.3d at 310 (“[W]e only will grant mandamus relief when such errors produce a patently erroneous result.” (emphasis added)). The result of the district court‘s order is to uphold women‘s rights to abortions and to allow medical and procedural abortions to proceed. That result is not patently erroneous and therefore does not warrant mandamus relief. Contrary to the majority‘s view, nothing in Jacobson or any of the Supreme Court‘s cases requires a different result.
A.
The goals of GA-09 are furthered by restricting abortions, according to Petitioners, because abortions: (1) “reduce[] the scarce supply of PPE available to healthcare providers treating COVID-19 patients,” (2) “result[] in the
Though GA-09 does not define PPE, Respondents explain that the term is generally understood to refer to N95 respirators, surgical masks, non-sterile and sterile gloves, and disposable protective eyewear, gowns, and hair and shoe covers. In response to Petitioners’ argument that abortions will deplete PPE necessary for healthcare providers treating COVID-19 patients, Respondents contend that abortions utilize little or no PPE and that abortions are time-sensitive procedures.
Regarding the first point, whether an abortion takes no PPE or some PPE depends on the type of procedure. Procedural abortions in Texas are single-day procedures that, unlike surgeries, require no hospital bed, incision, general anesthesia, or sterile field. During the procedure, the providers use PPE such as gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, and hair and shoe covers. Most Respondents do not have N95 respirators, and those that do have only a small supply that they rarely, if ever, use. Medication abortions, which involve only taking medications by mouth, require no PPE to administer the medication, and may require the use of gloves only at pre- and post-procedure appointments, depending on the circumstances. Petitioners identify no other treatment through oral medication that would be affected by GA-09.
Moreover, Respondents point out that Petitioners’ PPE conservation argument mistakenly assumes that a patient unable to obtain an abortion will not otherwise need medical care that requires the consumption of PPE. Pregnant patients who cannot access abortion require prenatal care and must often undergo unplanned hospital visits. And to the extent patients are prevented from obtaining abortions altogether, childbirth and delivery require exponentially more PPE than an abortion. Denying pregnant patients access
Petitioners also argue that the abortion restrictions are necessary to preserve hospital capacity, while Respondents point out that legal abortions are safe and almost never require hospitalization, and abortion care is substantially less likely to lead to hospitalization than caring for a patient with respect to full term pregnancy, childbirth, and post-natal care.
Finally, Petitioners argue that GA-09 as understood to ban all abortions provides the benefit of restricting contact between patients, medical staff, and physicians to help prevent the spread of COVID-19. While this may be true, the language of GA-09 reveals that it was not adopted to serve this interest. GA-09 exempts “any procedure . . . that would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” It excludes all forms of medical care save “surgeries and procedures,” and therefore does not contemplate restricting any other type of medical care that results in contact between providers and patients. Restricting contact between abortion providers and their patients cannot further the goals of GA-09 if the same order permits in-person contact between providers and patients in other settings.
Petitioners suggest that, in addition to these reasons, “Plaintiffs have identified no substantial burdens that will result from delaying elective
B.
First, prohibiting abortions for patients whose pregnancies will, before the expiration of GA-09, reach or exceed twenty-two weeks, the gestational point at which abortion may no longer be provided in Texas, represents “a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Even if such state action is successful in conserving the minimal PPE utilized in such procedures, as applied to this group of people, the state‘s action constitutes an outright ban on previability abortion, which is “beyond question, in palpable conflict with the Constitution.” Id.; id. at 28 (explaining that a state‘s police power “might be exercised . . . in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons“); see Roe v. Wade, 410 U.S. 113, 153–54 (1973). Insofar as GA-09 applies to this group of women, then, the district court‘s result in allowing abortions to
Second, insofar as GA-09 bans procedural and medication abortions generally, this act “has no real or substantial relation to” Petitioners’ stated goal of conserving PPE and maintaining access to hospital beds and therefore it goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution.” See Jacobson, 197 U.S. at 28, 31. In particular, abortions require minimal PPE (and medication abortions require no PPE to administer the medication), do not require the use of N95 respirator masks, and rarely require hospitalization. And as Respondents point out, the medical resources conserved by prohibiting abortions would simply be otherwise consumed through prenatal care by women forced to continue their pregnancies or incentivize women to travel out of state to obtain abortions, facilitating the spread of the virus. Finally, even assuming that delayed abortions in fact conserve PPE, Respondents have not demonstrated how the PPE could realistically be reallocated to healthcare workers fighting COVID-19.
Petitioners have, therefore, failed to establish that the district court “reached a patently erroneous result” in temporarily restricting Texas‘s ability to enforce GA-09 insofar as it bans all procedural and medication abortions. See In re Lloyd‘s Register N. Am., Inc., 780 F.3d at 290. Mandamus relief should be denied.
* * *
The district court‘s result was supported by nearly 50 years of Supreme Court precedent protecting a woman‘s right to choose, and as such I would not conclude that it was patently erroneous. In a time where panic and fear already consume our daily lives, the majority‘s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their
I respectfully but emphatically dissent.