Bench Memos

Law & the Courts

Fifth Circuit: Abortion Is Not Exempt from Texas Emergency Pandemic Order Postponing Non-Essential Medical Procedures

In an important ruling today, a divided panel of the Fifth Circuit held that a district court wrongly exempted all abortion procedures from the Texas governor’s order postponing non-essential medical procedures until April 21. Judge Stuart Kyle Duncan authored the majority opinion, which Judge Jennifer Elrod joined. Judge James Dennis dissented.

Here is the majority’s opening summary of its ruling:

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 against GA-09 as applied to abortion procedures. At the request of Texas officials, we temporarily stayed the TRO while considering their petition for a writ of mandamus directing vacatur of the TRO. We now grant the writ.

The “drastic and extraordinary” remedy of mandamus is warranted for several reasons.

First, the district court ignored the framework governing emergency public health measures like GA-09. See Jacobson v. Commonwealth of Massachusetts (1905). “[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand. 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 (1973) (citing Jacobson); Planned Parenthood v. Casey (1992) (same); Gonzales v. Carhart (2007) (same).

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 decide which measures are “likely to be the most effective for the protection of the public against disease.” Jacobson.

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 (2004).

Here is an extended excerpt from the majority’s discussion of Jacobson (my boldfacing):

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.”  The Court rejected this claim. Famously, it explained that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” In describing a state’s police power to combat an epidemic, the Court explained:

“[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” …

To be sure, individual rights secured by the Constitution do not disappear during a public health crisis, but the Court plainly stated that rights could be reasonably restricted during those times. Importantly, the Court narrowly described the scope of judicial authority to review rights-claims under these circumstances: review is “only” available 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. Elsewhere, the Court similarly described this review as asking whether power had been exercised in an “arbitrary, unreasonable manner” or through “arbitrary and oppressive” regulations.

Jacobson did emphasize, however, that even an emergency mandate must include a medical exception for “[e]xtreme cases.” Thus, the vaccination mandate could not have applied to an adult where vaccination would exacerbate a “particular condition of his health or body.” In such a case, the judiciary would be “competent to interfere and protect the health and life of the individual concerned.” 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.”

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.” 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. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.

Jacobson remains good law. See, e.g., Kansas v. Hendricks (1997) (recognizing Fourteenth Amendment liberties may be restrained even in civil contexts, relying on Jacobson). 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.…

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. 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.”

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.”

Moreover, the district court’s refusal to acknowledge or apply Jacobson’s legal framework produced a “patently erroneous” result. 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. 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.

The first Jacobson inquiry asks whether GA-09 lacks a “real or substantial relation” to the crisis Texas faces. 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 Texas faces a public health crisis of unprecedented magnitude and that GA-09 “does not exceed the governor’s power to deal with the emergency.”

Our own review of the record easily confirms that conclusion. GA-09 is supported by findings that (1) “a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster,” and (2) “hospital capacity and personal protective equipment are being depleted by surgeries and procedures that are not medically necessary to correct a serious medical condition or to preserve the life of a patient.” The order also references, and reinforces, the Governor’s prior executive order, GA-08, “aimed at slowing the spread of COVID-19.” Accordingly, GA-09 instructs licensed health care professionals and facilities to postpone non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. For their part, Respondents appear to concede the validity of GA-09 as a general matter: they recognize that Texas faces an “unprecedented public health crisis” and that “[g]overnment officials and medical professionals expect a surge of infections that will test the limits of a health care system already facing a shortage of PPE.”

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 appropriate and even necessary responses to the present crisis. So, too, GA-09.

As the state’s infectious disease expert points out, “[g]iven the risk of transmission in health care settings” there is “a sound basis for limiting all surgeries except those that are immediately medically necessary so as to prevent the spread of COVID 19.” In sum, it cannot be maintained on the record before us that GA-09 bears “no real or substantial relation” to the state’s goal of protecting public health in the face of the COVID-19 pandemic.

The second Jacobson inquiry asks whether GA-09 is “beyond question, in palpable conflict with the Constitution.” 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.

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. 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 date. Second, GA-09 includes an emergency exception for the mother’s life and health, based on the determination of the administering physician. Third, GA-09 contains a separate exception for “any procedure” that, if performed under normal clinical standards, “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”

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.

The majority also explained that the “broad sweep” of the district court’s TRO distinguished this case from other recent rulings.

(For ease of reading, I have simplified some citations and omitted others, and I have also broken up some paragraphs.)

 

 

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