Fifth Circuit Overturns Second TRO That Would Have Broadly Exempted Abortion from Emergency Pandemic Order

Two weeks ago, I highlighted a Fifth Circuit ruling (Abbott II) that held that a district court wrongly exempted all abortion procedures from Texas governor Greg Abbott’s order, GA-09, postponing non-essential medical procedures until April 21. On remand, the district court issued another very broad TRO (temporary restraining order) against the governor’s order. In another important ruling yesterday, the same divided panel of the Fifth Circuit overturned much of this second TRO.

I can’t concisely summarize the very thorough majority opinion, jointly authored by Judge Jennifer Walker Elrod and Judge Stuart Kyle Duncan, but I offer here some excerpts (citations simplified or omitted):

We are persuaded by [the State’s] 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.” 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.” …

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 LMP4 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.”…

There is no constitutional right to any particular abortion procedure. Gonzales v. Carhart (2007). Yet the district court bluntly concluded that GA-09’s temporary postponement of one kind of early-abortion method—medication abortions—is “beyond question” a violation of Casey. Despite our instructions in Abbott II, the district court failed to compile a record that remotely justifies this conclusion. Indeed, the record before the district court—which we already reviewed in Abbott II and found inconclusive—does not provide the tools even to answer the pertinent factual question. That question is not, as the district court evidently thought, whether medication abortion consumes PPE during normal circumstances, but instead whether it does so under the pandemic conditions Texas faces and GA-09 addresses. As for the legal question, the district court’s analysis fails to address why temporary postponement of one type of early-abortion method is “beyond question” unconstitutional if it leaves open other means of obtaining an abortion. Restraining state officials from implementing an emergency health measure based on such findings is “a clear abuse of discretion that produces patently erroneous results.”…

As we explained before, Jacobson prohibits courts from “usurp[ing] the state’s authority to craft measures responsive to a public health emergency.” Courts have no authority to ask whether a “particular method [is]—perhaps, or possibly—not the best.” Instead, courts may ask only whether the state has acted in an “arbitrary, unreasonable manner.” During a pandemic emergency, public authorities must make numerous, complex judgment calls. GA-09 addresses one of the most vexing: how to prevent critical strains on medical resources during a surge in contagious disease. Respondents have submitted declarations of infectious disease experts who believe GA-09 is profoundly misguided. 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. 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.” The district court’s findings in support of the April 9 TRO failed to heed this basic constraint on judicial power….

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.” For those patients, the district court concluded GA-09 would amount to “an absolute ban on abortion” that violates Casey. 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….

The district court’s treatment of GA-09 as “an absolute ban on abortion” as applied to this category of women was obviously wrong. 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 (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”).

GA-09 expires at the end of today, so this litigation is presumably at an end. But Governor Abbott has issued a new executive order, GA-15, that the panel notes “is similar to GA-09, but has some textual differences.”  will be in place through May 8. The panel’s opinion yesterday will be binding circuit precedent on any challenges to GA-15.

Meanwhile, several oral surgeons have filed suit against the City of Fort Worth for issuing a stay-at-home order that postpones elective medical, surgical, and dental procedures within the city but that doesn’t similarly postpone (or at least doesn’t clearly postpone) abortion procedures.