If one reads the district court decisions and the dissents in the case of In re Abbott, one might conclude that Texas impermissibly targeted abortion facilities when it temporarily ordered all medical facilities to postpone nonessential surgeries and procedures unless they did not deplete the personal protective equipment (hereinafter, “PPE”) needed to cope with COVID.  So how does a Texas executive order and a rule that applies to all medical facilities not apply to the abortion industry?  The district court judge first determined the temporary ban was somehow a complete ban on abortion and that there was no need to consider the Supreme Court authority that allows states to take action to protect the public during pandemics.  He, therefore, issued a temporary restraining order prohibiting Texas law concerning the COVID pandemic from applying to abortion facilities.  The Fifth Circuit promptly stayed the restraining order and pointed out that the case law about complete bans on abortion does not apply to Texas’ temporary ban and that there is considerable case law that gives states substantial authority to protect the public during pandemics that must be taken into consideration.  The district judge then forthwith issued a second temporary restraining order.  The Fifth Circuit again stayed the injunction not only because the district judge ignored its instructions but also because the new restraining order suffered from the same defects as the first restraining order.  The district court judge did not seriously examine and apply the case law on the authority of states to take action during pandemics. The one dissenting judge on the Fifth Circuit panel not only saw no flaw in the district judge’s rulings, he even concluded that the executive order and rule in question were created to limit abortion access.  While this case is about a temporary restriction placed on all medical procedures, this case is really about whether abortion law trumps all other law.  The fundamental issue is whether abortion is a right above all other rights.

 

 

Response to Pandemic

The recent Texas litigation concerning whether the executive order and rule concerning the temporary ban on non-emergency medical procedures to preserve PPE raises two constitutional issues: the right of a state to protect its people during a pandemic and the “right” of a woman to kill her unborn child.  On one side of the dispute is the claim that while in other circumstances a state may have the right to protect its people during a pandemic, there is no such right when the right to abortion might be limited in any way.  The other side holds that one must consider both the Supreme Court’s pandemic jurisprudence and its abortion jurisprudence to determine whether the Texas law is valid.

 

 

What Texas Law Did

During the early days of the COVID pandemic, little was known about COVID and many experts feared that COVID could result in hundreds of thousands if not millions of American deaths.  On March 22, 2020, the Governor of Texas determined that to ensure medical personnel had sufficient PPE to serve persons infected with COVID, all licensed healthcare professionals and facilities were directed to:

 

 

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 the immediate performance of the surgery or procedure would be at the risk of serious adverse medical consequences or death, as determined by the person’s physician.[1]

 

 

The Order specified that it “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.”  The Order was issued on March 22, 2020, and by its terms expired on April 21, 2020.  On March 23, 2020, the Texas Medical Board passed an emergency rule implementing the Governor’s Order.[2]   The Attorney General, who has no enforcement authority over either the Governor’s order or the Medical Board rule, issued a press release that indicated the executive order and the rule applied to all healthcare professionals and facilities including abortion providers, and did not fully state the exceptions to the rule.  In Texas, doctors, nurses, and abortion facilities are licensed by the state.[3]

 

 

Abortion Law Alone

Several abortion facilities filed suit in federal district court for the Western District of Texas seeking to have the pandemic laws declared inoperative as to them.  When they requested the judge to issue a temporary restraining order to prevent the laws that temporarily banned medical procedures to preserve PPE during a pandemic from being applied to abortion providers, the District Court Judge, Lea Yeakle, concluded that there was not much analysis that needed to be done.[4]  The heart of the Order Granting Plaintiff’s Request for Temporary Restraining Order is the claim that the Governor’s executive order and the Medical Board’s similar Emergency Rule are unconstitutional because they are total bans on abortion prior to viability.  The court cites Roe, Casey, and Fifth Circuit precedent for the proposition that before viability a state cannot ban abortion.[5]   In fact, this is clearly established law.  If Texas had enacted complete bans on abortion, Supreme Court precedent would call those laws into question.  An interesting question about this claim is whether Texas had enacted a total ban on abortion.

 

 

Public Health Law

But what is not clearly established law is how abortion law and the law about public health are to be read together.  As to whether Supreme Court caselaw about the authority of a state to protect its people during a pandemic, the district court concluded:

 

 

This court will not speculate on whether the Supreme Court included a silent “except -in-a-national-emergency clause” in its previous writings on this issue.

 

 

So according to Judge Yeakle, all the Supreme Court case law concerning the right of states to take action to protect their people during public health crises need not even be considered because the Supreme Court has never ruled that the right to abortion could not be limited in time of a national emergency.  It needs to be pointed out the Supreme Court has never been presented with the issue of how to reconcile the “right” to abortion with the right of states to protect their people during pandemics.  But Judge Yeakle concluded that based on the silence of the Supreme Court on an issue never presented to the Supreme Court that he could ignore a body of case law on the issue of what is the authority of states during pandemics.[6] 

 

 

The Appeal

The Attorney General immediately appealed the Temporary Restraining Order to the Fifth Circuit.   The Fifth Circuit promptly stayed the Temporary Restraining Order.  It is not often that restraining orders are appealed.  There is a practical reason for this, restraining orders only lasts two weeks and within those two weeks, the judge will hold a more elaborate hearing when the judge decides whether to issue a preliminary injunction that stays in effect until the judge issues a final order in a case.  It is not likely that a party who is disappointed with a restraining order will decide to invest the time and effort trying to get a restraining order enjoined.

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Not only are there practical reasons why restraining orders are not normally appealed, but there are also significant legal reasons.  The way to stay a restraining order is to file a mandamus.  This is rightly called an extraordinary remedy.[7]   One does not prevail in such a mandamus by just showing that there was some legal error.  The party seeking the mandamus must show, it has no other remedy at law, the right to mandamus is clear and indisputable, and the court is satisfied that the mandamus is appropriate under the circumstances.[8]   Mandamus is not available to correct every possibly erroneous judgment call.  Mandamus is only available to correct a clear error in cases where the appellate court is convinced that relief is warranted and there is no other remedy. However, in this case, a truly exceptional situation was occurring.  It was feared that hospitals would not have sufficient PPE to be able to provide treatment for COVID patients during a worldwide pandemic.  Because this unique situation presented a grave danger to the people of Texas, the Attorney General sought an immediate appeal of the Temporary Restraining Order.

 

 

Abortion and Pandemic Law

The majority in the case of In re Abbott concluded that the requirements for mandamus were met because under the circumstances of the pandemic there was no other remedy, the action was appropriate under the circumstances, and there was clear error because Judge Yeakel failed to apply controlling Supreme Court precedent.[9]  That there was no other legal remedy is hardly disputed.  The real questions are whether there was a clear legal error and whether mandamus is appropriate under the circumstances. 

 

 

Clear and Indisputable

Clear and indisputable error is a high standard.  It certainly does not mean that a reviewing court need only determine that a lower court’s ruling was somehow wrong.[10]  A clear and indisputable error occurs when there has been a “usurpation of judicial power” or “a clear abuse of discretion that produces patently erroneous results.”[11]   It also occurs when a court action would threaten the separation of powers.[12]  The Fifth Circuit found that the district court’s order both was a clear abuse of discretion because it did not even consider controlling precedent and it violated the separation of powers.

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There was a dissenting vote on the Fifth Circuit panel.  He claimed that the Fifth Circuit treats abortion differently than other issues.  That is an odd argument to make in this case because the Fifth Circuit has never ruled that in a public health crisis that states cannot limit specialties such as oncology to protect supplies of PPE.  It has not ruled that states cannot shut down businesses or require social distancing.  It has not ruled a state cannot limit the rights or travel, assembly, or the free exercise of religion. 

 

 

Controlling Precedent

While a pandemic is something that many Americans had never lived through prior to this year, pandemics and epidemics have occurred throughout our nation’s history.  The Fifth Circuit cited a number of Supreme Court holdings including Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905), which considered whether the states have the authority to issue a compulsory vaccination law during a smallpox epidemic.  The Court held:

 

 

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

 

 

The Court only allowed courts to limit such state regulations when a regulation:

 

 

.  .  .  purporting to have been enacted to protect the public health, public morals, or the public safety, has no reasonable relation to those rights, or is, beyond all question, a plain, palpable invasion of the rights secured by the fundamental law.[13] 

 

 

State regulations to protect public health in times of crisis are to be affirmed as long as they are not a sham.[14]  The Fifth Circuit pointed out that the Court has also ruled that states in the proper circumstances could require quarantines and even limit the right to practice religion freely.[15]   In these and other cases, the Court has allowed states to apply reasonable regulations to protect against great dangers even when otherwise such state action would violate fundamental constitutional rights such as travel, bodily integrity, and the free exercise of religion.  While Jacobson is an old case, the Abbott court noted that it has been applied by the Court as recently as 1997.[16]

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As to the district court’s claim that because the Supreme Court has been silent in abortion cases about how epidemic cases apply, we must assume that the Court has determined that there cannot be exceptions to the right of abortion, the 5th Circuit holds:

 

 

That analysis is backward: 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.

 

 

The district court judge did not merely interpret or apply the law incorrectly, he refused to even attempt to apply controlling Supreme Court authority.  The dissenting member of the 5th Circuit panel made a slightly stronger argument claiming Jacobson and the other public health cases did not apply because none of them were about ensuring a sufficient supply of medical equipment.  While these cases did not concern a sufficient supply of medical equipment, they used broad language and applied it to a wide variety of public health issues. 

 

Because state executive agencies have a clear role in protecting public health in a time of crisis, to limit their authority as did the district court is to violate the separation of powers.  The primary decision maker about what are the proper restrictions for an epidemic are executive actors such as governors and state agencies.  Courts are not well equipped to deal with a public health crisis.

 

 

Abortion Precedent

The district court not only failed to apply precedent concerning epidemics but it also clearly misapplied abortion precedent.  The district court incorrectly claimed that the Texas regulations were a complete ban on abortions and, hence, failed to properly analyze the Texas regulations under abortion law. 

 

 

Complete Ban?

The district court judge rightly cited precedent for the proposition that before viability a state cannot ban abortions.[17]    However, the executive order and the rule at issue were not total bans.  They expired in a month, would not even apply if the physician determined the patient would be at risk of serious adverse medical consequences, and would not apply if a procedure would not deplete supplies of PPE.  Neither GA-09 nor the Medical Board rule is a total ban on abortion.  Hence, to determine that GA-09 and the rule violated abortion law, the district court was required to apply an undue burden analysis.  Because he did not, his decision is clearly erroneous.

 

 

Appropriate Under the Circumstances

In determining whether mandamus was appropriate under the circumstances, the Fifth Circuit took a deep dive into the record in the case.  It found that the State of Texas had reason to believe that people would die of COVID because there was not sufficient PPE for medical personnel treating COVID patients.  At the time, it was feared that hospitals would not be able to deal with a huge number of expected patients and that many patients and heath care professionals would die because of a lack of PPE.  It also determined that the abortion facilities failed to prove that they would not deplete PPE.  While one doctor testified that PPE was not normally used in abortion procedures, he did not testify that PPE was not being used during the pandemic.  Further, there was credible medical testimony presented by the Plaintiffs that PPE was being used by abortion facilities during the pandemic.   

 

 

Result

Because of the district court’s, Temporary Restraint Order was clearly erroneous, violated the separation of powers and because mandamus was appropriate under the circumstances, the district court was directed to vacate the Temporary Restraining Order.  Further, the Fifth Circuit clearly pointed out the flaws in the district court’s legal analysis.  One would think the district court would have reflected on the Fifth Circuit Decision before issuing another Order in this case.

 

 

District Court’s Second Attempt

The District Court certainly did not spend much time reviewing the Fifth Circuit’s April 7, 2020, 47-page decision.  On April 8, 2020, the district court cancelled the April 13, 2020 hearing on the preliminary injunction and the Petitioners filed a new application for a temporary restraining order.  On April 9, 2020, the district court judge held a brief phone conference and denied the defendants the opportunity to file a responsive pleading or to submit evidence in opposition to the application.  On the same day, the judge adopted the Plaintiff’s findings of fact and conclusions of law in toto.[18]  It would seem that basic fairness would have at least required that the State of Texas be given an opportunity to respond in writing to the filings of the abortion providers.

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The Order Granting Plaintiff’s Second Motion for a Temporary Restraining Order does mention Jacobson v. Commonwealth of Massachusetts once but does not analyze the factors set out in Jacobson and the other Supreme Court cases about pandemics.  While mentioning Planned Parenthood v. Casey, the Order fails to engage in an undue burden analysis.  The new Order while limited to protecting only Plaintiffs prohibited Defendants from enforcing a categorical ban on all abortion, from limiting Plaintiff’s from performing chemical abortions, from prohibiting abortions if a physician determined that a woman would be 18 weeks pregnant by April 22, 2020, and was unlikely to receive an abortion, and from prohibiting abortions if a physician determined a woman would be beyond the time frame for a woman to legally receive an abortion in Texas by April 22, 2020.  The Defendants promptly appealed the new Temporary Restraining Order to the Fifth Circuit.

 

 

The Fifth Circuit Response

Every court expects that its orders be taken seriously.  The Fifth Circuit is no exception.  The court immediately stayed the district court order. In the Fifth Circuit’s April 20, 2020 decision in In re Greg Abbott, the court found the second Temporary Restraining Order was flawed for the same reasons it previously had identified, and additionally it found it flawed for not applying its April 7, 2020 decision.[19]  It is one thing to get the law wrong, it is quite another to ignore the law of the case.  However, as to one issue: whether abortions should be allowed for those women who could not legally obtain an abortion after the executive order and the rule expired, the court upheld the temporary restraining order.

 

It is truly surprising how cavalierly Judge Yeakle treated the Fifth Court Decision.  Nonetheless, the one Fifth Circuit dissenter continued to support the District Court Judge.  He claimed that the district court order is “supported by 50 years of Supreme Court precedent,” despite the fact the Supreme Court has never ruled on the intersection of pandemic law and abortion law and despite the fact, the district court never engaged in an undue burden analysis.  In fact, the dissenter goes so far as to declare that:

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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.

 

The fact is that the district court did not so declare.  That is precisely the majority’s point.  The district court never bothered to begin engaging in a Jacobson analysis.  The district court never found pretext or any substantial connection.  It never identified which evidence would support such conclusions.  Judge Yeakle’s second Temporary Restraining Order was as flawed as his first, with one exception. 

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In the second Temporary Restraining Order, it was ordered that GA-09 and the Medical Board rule would not apply to patients who would have passed the legal limit to have an abortion in Texas, 22 weeks LMP, on the day the executive order and rule would expire by their own terms on April 22, 2020.  These women and no others would be deprived under Texas law of the opportunity to kill their unborn children.

 

 

Practical End to the Dispute

As a practical matter, the dispute between the parties in In re Abbott ended when the Governor issued Executive Order GA-15 on April 17, 2020 that allowed medical facilities to operate as long as they certified that they would reserve 25% of their hospital capacity for COVID patients and would not request PPE from any public source.  GA-09 was truly a temporary measure.  It was only in effect for 26 days.  When it was determined that conserving PPE for medical professionals treating COVID patients no longer required the strong limitations in the GA-09, other less stringent measures were substituted.  However, a Petition for Certiorari was filed by the abortion facilities on September 3, 2020.  The Supreme Court could take up the case.

 

 

A Blow for Treating Abortion Law Like Other Law

In much of the In re Abbott litigation, the district court judge and the dissenter got things exactly backward. Texas was not treating abortion differently than other medical procedures.  The word “abortion” never occurs in GA-09 or the Medical Board rule.  Texas saw a serious public health crisis and took steps to ensure that there was sufficient medical equipment to combat that crisis.   All medical facilities were treated equally.  It was the abortionists, the district court judge, and the dissenter who claimed that abortionists alone among medical providers did not have to take action to preserve PPE. 

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It was the abortionists, the district court, and the dissenter who claimed that Supreme Court law about public health crises applied to everything except abortions. This is truly a marvel of judicial logic.  The public health crisis law developed by the Supreme Court on its face applies even when fundamental rights are at stake.  Somehow the fact that the Supreme Court has never said that the public health precedent, that applies to everything else including fundamental constitutional rights, does not apply to abortion, means that law does not apply to abortion.  By the same logic, all of the rights specified in the Bill of Rights and interpreted by the Court do not apply in an abortion case unless there is a Supreme Court holding that they do apply.  Unless there is such a holding, all district and appellate courts must presume that those rights do not apply.  Fortunately, the Fifth Circuit decided to treat the “right to abortion” just like other rights.  Abortion is not the most fundamental right.

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For almost four weeks, this spring it was unlawful in Texas to perform most abortions.  This was the case not because Texas was targeting abortion.  This was the case because Texas was trying to ensure that victims of COVID would not die because medical personal personnel lacked needed PPE.  The In re Abbott litigation shows just how far the abortionists and their allies are willing to assert that abortion is the most fundamental right, above every other fundamental right. For them, it was not even necessary to consider whether a grave public health emergency might require a temporary limitation on “abortion rights.”  For them, unless the Supreme Court holds that “abortion rights” can be limited in the midst of a global pandemic, they cannot be limited.  Under this analysis, if COVID had turned out to be as virulent as the Spanish Flu which killed hundreds of thousands of Americans,[20]  not the least restriction could be placed on abortion that was not normally allowed under Supreme Court precedent until there was a Supreme Court holding that such a restriction on abortion was allowed.    

 

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[1] GA-09.

[2] 22 Tex. Admin. Code sec. 187.57(c ). 

[3] Tex. Occ. Code ch. 155, 156, and 301.  Tex. Health and Safety Code ch. 245.

[4] Planned Parenthood Center for Choice v. Abbott, 2020 U.S. Dist. LEXIS 57361 (W. D. Tex. March 30, 2020)

[5] Roe v. Wade, 410 U.S. 113 (1973), 163-65, Planned Parenthood v. Casey, 505 U.S. 833, 846, 847 (1992), Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020), and Jackson v. Women’s Health Org. v. Dobbs, 945 F.3d 265, 268-69 (5th Cir. 2019).

[6]Another strange thing about Judge Yeakle’s Order is that it prohibits the defendants from enforcing the Governor’s Executive Order and the Medical Board’s emergency amendment as applied to all abortion facilities.  The strange thing about this is that a legal case is between parties to the case.  It is an elemental legal principle that only those who are parties to a case can receive relief from a court.  In this case, the legal case is between the plaintiffs, nine abortion providers and the defendants, fourteen government officials.  The plaintiffs did not bring this case as a class action suit, which would make this a case making claims for all abortion providers in Texas. Instead, they just brought this case in their own names.  Hence, any relief Judge Yeakle could possibly have granted would be relief for the nine named abortion providers.  However, Judge Yeakle issued his Temporary Restraining Order to benefit not just nine abortion providers, but all abortion providers in Texas.

[7]  In re JPMorgan Chase & Co, 916 F.3d 494, 499 (5th Cir. 2019). 

[8] In re Itron, Inc., 883 F.3d 553, 567 (5th Cir. 2018).

[9] In re Abbott, 954 F.3d 772 (5th Cir. 2020)

[10] In re Lloyd’s Register N. Am., Inc.,780 F.3d 283, 290 (5th Cir. 2015).

[11] JPMorgan Chase at 500.

[12] Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004).

[13] Id. at 31.

[14] Some may believe that Jacobson gives too much authority to the states and too little oversight authority to the court. The Modern-Day Relevance of Jacobson v. Massachusetts, The Volohk Conspiracy, Sept 14, 2020. Whether or not this true, Jacobson remains binding precedent that cannot be ignored by the lower courts. Neither the district court nor the dissenter argued Jacobson can be ignored because it gives too much power to the states. 

[15] 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 a vessel -even when they were healthy- against a Fourteenth Amendment challenge) and 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 .  .  .  communicable disease”). 

[16] Kansas v. Hendricks, 521 U.S. 346, 356-57 (1997).

[17] Roe at 163-165, Casey at 871.

[18] Planned Parenthood Center for Choice v. Abbott, Cause No. A-20-CV-323-LY, Order Granting Petitioner’s Second Motion for Temporary Restraining Order, (W. Dist. Tex. April 9, 2020)

[19] In re Abbott, 956 F.3d 696 (5th Cir. 2020)

[20] The Great Influenza, John Berry, Penguin Books, 2005.

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