Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 1 of 21
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:20−cv−00323−LY

Planned Parenthood Center for Choice et al v. Abbott et al Assigned to: Judge Lee Yeakel Case in other court: USCA 5th Circuit, 20−50314 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/25/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Center for Choice

represented by Hannah Swanson Planned Parenthood Federation of America 1110 Vermont Ave, NW Ste. 300 Washington, DC 20005 (202) 973−4800 Fax: 202−296−3480 Email: hannah.swanson@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Sandman Planned Parenthood Federation of America Public Policy Litigation & Law 123 William St. 9th Floor New York, NY 10038 212−261−4584 Fax: 212−247−6811 Email: jennifer.sandman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Murray Planned Parenthood Federation of America 1110 Vermont Ave., NW Ste. 300 Washington, DC 20005 (202) 973−4800 Email: julie.murray@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz Planned Parenthood Federation of America 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 202−973−4997 Fax: 202−296−3480 Email: richard.muniz@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick J. O'Connell Law Offices of Patrick J. O'Connell PLLC 5926 Balcones Dr., #220 Austin, TX 78731 512−852−5918 Email: pat@pjofca.com ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 2 of 21

Planned Parenthood of Greater Texas Surgical Health Services
Plaintiff Planned Parenthood South Texas Surgical Center
Plaintiff Whole Womans Health

Hannah Swanson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Muniz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Hannah Swanson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Muniz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Rupali Sharma Lawyering Project 110 Winter Street, Apt. 4 Portland, ME 04102 908−930−6445 Fax: 646−480−8622 Email: rsharma@lawyeringproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 3 of 21

Plaintiff Whole Woman's Health Alliance
Plaintiff Southwestern Women's Surgery Center

Sneha Shah Lawyering Project 300 Morris Street, 7th Floor Durham, NC 27701 646−490−1225 Fax: 646−840−8852 Email: sshah@lawyeringproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie Toti Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 646−490−1083 Fax: 646−480−8762 Email: stoti@lawyeringproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Rupali Sharma (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sneha Shah (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie Toti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca G. Cocuzza Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 917−637−3748 Fax: 917−637−3666 Email: fcocuzza@reprorights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Rose Duane Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 917−637−3631

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 4 of 21

Plaintiff Brookside Women's Medical Center PA doing business as Brookside Women's Health Center and Austin's Women's Health Center
Plaintiff Robin Wallace, M.D., M.A.S.
Plaintiff

Fax: 917−637−3666 Email: mduane@reprorights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rabia Muqaddam Center for Reproductive Rights 199 Water Street, 22nd Floor New York, NY 10038 917−637−3645 Fax: 917−637−3666 Email: rmuqaddam@reprorights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca G. Cocuzza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Rose Duane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca G. Cocuzza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Rose Duane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 5 of 21

Houston Women's Clinic
Plaintiff Houston Women's Reproductive Services
Plaintiff Alamo City Surgery Center PLLC d/b/a Alamo Women's Reproductive Services

represented by Andre I. Segura ACLU Foundation of Texas, Inc. P.O. Box 8306 Houston, TX 77288 713−942−8146 Fax: 713−942−8966 Email: asegura@aclutx.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anjali Salvador ACLU Foundation of Texas, Inc. P.O. Box 8306 Houston, TX 77288 713−942−8146 Fax: 346−998−1577 Email: asalvador@aclutx.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brigitte Andrienne Amiri American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2649 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca G. Cocuzza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Rose Duane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca G. Cocuzza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 6 of 21
Molly Rose Duane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. O'Connell (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Greg Abbott in his official capacity as Governor of Texas
Defendant Ken Paxton in his official capacity as Attorney General of Texas

represented by Andrew Bowman Stephens Office of the Attorney General of Texas PO Box 12548 Capital Station Austin, TX 78711 (512) 463−2120 Fax: 512/320−0667 Email: andrew.stephens@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin S. Walton Office of the Attorney General 300 W. 15th St. Austin, TX 78701 512−463−0447 Fax: 512−320−0667 Email: benjamin.walton@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker Office of the Attorney General of Texas 209 W. 14th Street 7th Floor Austin, TX 78701 512−836−2540 Fax: 512−474−2697 Email: heather.hacker@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin S. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker (See above for address) LEAD ATTORNEY

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 7 of 21

Defendant Phil Wilson in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission
Defendant Stephen Brint Carlton in his official capacity as Executive Director of the Texas Medical Board
Defendant Katherine A. Thomas in her official capacity as the Executive Director of the Texas Board of Nursing
Defendant Margaret Moore District Attorney for Travis County

ATTORNEY TO BE NOTICED
represented by Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin S. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin S. Walton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony J. Nelson Travis County Attorney's Office 314 West 11th Street Room 590 Austin, TX 78701 (512) 854−4801 Fax: 512/854−4808 Email: tony.nelson@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie W. Dippel Travis County Attorney's Office P.O. Box 1748 314 W. 11th Street Room 500

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 8 of 21

Defendant Joe Gonzales Criminal District Attorney for Bexar County
Defendant John Creuzot District Attorney for Dallas County
Defendant Jaime Esparza District Attorney for El Paso County
Defendant

Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: leslie.dippel@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick T. Pope Travis County Attorney Civil Litigation Division PO BOX 1748 Austin, TX 78767 512−854−9523 Fax: 512−854−4808 Email: patrick.pope@traviscountytx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kristin K. Bloodworth Bexar County District Attorney's Office 101 W. Nueva, 7th Floor San Antonio, TX 78204 210−335−3920 Email: kristin.bloodworth@bexar.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Green Bexar County District Attorney Civil Division 101 W. Nueva 7th Floor San Antonio, TX 78205 210−335−2146 Email: robert.green@bexar.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John J. Butrus , Jr. Dallas County District Attorney's Office 133 N. Riverfront Blvd LB 19 Dallas, TX 75207 (214) 653−3691 Fax: (214) 653−2899 Email: john.butrus@dallascounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ruben Gabriel Duarte El Paso County Attorney's Office 500 E. San Antonio − Rm 503 El Paso, TX 79901 (915) 546−2083 Email: rduarte@epcounty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 9 of 21

Kim Ogg Criminal District Attorney for Harris County
Defendant Ricardo Rodriguez, Jr. Criminal District Attorney for Hidalgo County
Defendant Barry Johnson Criminal District Attorney for McLennan County
Defendant Sharen Wilson Criminal District Attorney for Tarrant County
Defendant Brian Middleton Criminal District Attorney for Fort Bend County
Amicus The State of Louisiana and 15 States ALABAMA, ARKANSAS, IDAHO, INDIANA, KENTUCKY, LOUISIANA, MISSISSIPPI, MISSOURI, NEBRASKA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, AND WEST VIRGINIA

Laura Beckman Hedge Harris County Attorney's Office 1019 Congress, 15th Floor Houston, TX 77002 713−274−5137 Fax: 713−755−8924 Email: laura.hedge@cao.hctx.net ATTORNEY TO BE NOTICED
represented by Josephine L. Ramirez Hidalgo County District Attorney's Office 100 E. Cano, First Floor Edinburg, TX 78539 956−292−7609 Fax: 956−292−7619 Email: josephine.ramirez@da.co.hidalgo.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs Special Litigation Counsel General Litigation Division P.O. Box 12548, Capitol Station Austin, TX 78711−2548 512−463−2120 Fax: 512−320−0667 Email: adam.biggs@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Justin C. Pfeiffer Fort Bend County Attorney's Office 401 Jackson Street Third Floor Richmond, TX 77469 (281) 341−4555 Fax: 281−341−4557 Email: justin.pfeiffer@fortbendcountytx.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David S. Lill Lill Firm, P.C. 4407 Bee Caves Road Suite 111 Building 1 Austin, TX 78746 (512) 330 0252 Fax: 844 402 9814 Email: david@lillfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 10 of 21

Elizabeth Murrill Louisiana Dept. of Justice 1885 North Third Street Baton Rouge, LA 70804 225−456−7544 Email: murrille@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Scott St. John Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70804 225−485−2458 Fax: 225−326−6797 Email: stjohnj@ag.louisiana.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 03/25/2020
03/25/2020 03/25/2020 03/25/2020 03/25/2020 03/25/2020 03/25/2020 03/25/2020

# Docket Text
1 COMPLAINT Complaint for Injunctive and Declaratory Relief ( Filing fee $ 400 receipt number 0542−13387369), filed by Brookside Women's Medical Center PA, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, Southwestern Women's Surgery Center, Planned Parenthood South Texas Surgical Center, Robin Wallace, M.D., M.A.S., Whole Womans Health, Whole Woman's Health Alliance. (Attachments: # 1 Exhibit A − Attorney General Press Release, # 2 Exhibit B − Exec. Order No. GA−09, # 3 Exhibit C − Emergency Rule, # 4 Civil Cover Sheet)(O'Connell, Patrick) (Attachment 4 replaced and flattened on 3/25/2020) (cj). (Entered: 03/25/2020)
Case assigned to Judge Lee Yeakel. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (cj) (Entered: 03/25/2020)
If ordered by the court, all referrals and consents in this case will be assigned to Magistrate Judge Hightower (cj) (Entered: 03/25/2020)
2 Pro Hac Vice Letters mailed to Alice Clapman, Francesca Cocuzza, Molly Duane, Richard Muniz, Rabia Muqaddam, Julie Murray, Jennifer Sandman, Sneha Shah, Rupali Sharma, and Hannah Swanson re: non−admitted status. (cj) (Entered: 03/25/2020)
3 REQUEST FOR ISSUANCE OF SUMMONS by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (O'Connell, Patrick) (Entered: 03/25/2020)
4 Summons Issued as to Greg Abbott, Stephen Brint Carlton, John Creuzot, Jaime Esparza, Joe Gonzales, Barry Johnson, Brian Middleton, Margaret Moore, Kim Ogg, Ken Paxton, Ricardo Rodriguez, Jr, Katherine A. Thomas, Phil Wilson, Sharen Wilson. (cj) (Entered: 03/25/2020)
5 RULE 7 DISCLOSURE STATEMENT filed by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (O'Connell, Patrick) (Entered: 03/25/2020)
6 MOTION for Leave to Exceed Page Limitation for Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 11 of 21

03/25/2020
03/26/2020 03/26/2020 03/26/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020

Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Exceed Page Limitation)(O'Connell, Patrick) (Entered: 03/25/2020)
7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Exhibit 1 − Barraza Declaration, # 2 Exhibit 2 − Dewitt−Dick Declaration, # 3 Exhibit 3 − Ferrigno Declaration, # 4 Exhibit 4 − Hagstrom−Miller Declaration, # 5 Exhibit 5 − Klier Declaration, # 6 Exhibit 6 − Lambrecht Declaration, # 7 Exhibit 7 − Schutt−Aine Declaration, # 8 Exhibit 8 − Wallace Declaration, # 9 Exhibit 9 − Conner Declaration, # 10 Proposed Order)(O'Connell, Patrick). Added MOTION for Preliminary Injunction on 3/30/2020 (lt). (Entered: 03/25/2020)
8 ORDER GRANTING 6 Motion for Leave to Exceed Page Limitation. Signed by Judge Lee Yeakel. (lt) (Entered: 03/26/2020)
9 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held on 3/26/2020. Written Order forthcoming. (Minute entry documents are not available electronically.) (Court Reporter Arlinda Rodriguez.)(lt) (Entered: 03/26/2020)
10 TRANSCRIPT REQUEST by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Phil Wilson for proceedings held on 3/26/20. Proceedings Transcribed: Phone Conference. Court Reporter: Arlinda Rodriguez. (Stephens, Andrew) (Entered: 03/26/2020)
11 MOTION for Justin C. Pfeiffer to Appear Pro Hac Vice for Brian Middleton. (Attachments: # 1 Letter)(lt) (Entered: 03/27/2020)
12 NOTICE of Attorney Appearance by Andrew Bowman Stephens on behalf of Greg Abbott, Stephen Brint Carlton, Ken Paxton, Phil Wilson (Stephens, Andrew) (Entered: 03/27/2020)
13 NOTICE of Attorney Appearance by Benjamin S. Walton on behalf of Greg Abbott, Stephen Brint Carlton, Ken Paxton, Phil Wilson. Attorney Benjamin S. Walton added to party Greg Abbott(pty:dft), Attorney Benjamin S. Walton added to party Stephen Brint Carlton(pty:dft), Attorney Benjamin S. Walton added to party Ken Paxton(pty:dft), Attorney Benjamin S. Walton added to party Phil Wilson(pty:dft) (Walton, Benjamin) (Entered: 03/27/2020)
14 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Hannah Swanson ( Filing fee $ 100 receipt number 0542−13396634) on behalf of Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, and Planned Parenthood of Greater Texas Surgical Health Services. (O'Connell, Patrick) Modified on 3/27/2020 to adjust filers (lt). (Entered: 03/27/2020)
15 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell Richard Muniz ( Filing fee $ 100 receipt number 0542−13396710) by on behalf of Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services. (O'Connell, Patrick) (Entered: 03/27/2020)
16 MOTION to Appear Pro Hac Vice by Stephanie Toti Rupali Sharma ( Filing fee $ 100 receipt number 0542−13397101) by on behalf of Whole Woman's Health Alliance, Whole Womans Health. (Toti, Stephanie) (Entered: 03/27/2020)
17 ORDER GRANTING 11 Motion for Justin Carl Pfeiffer to Appear Pro Hac Vice on behalf of Brian M. Middleton. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/27/2020)
18 ORDER GRANTING 14 Motion for Hannah Swanson to Appear Pro Hac Vice on behalf of Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 12 of 21

03/27/2020
03/27/2020
03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/28/2020 03/29/2020 03/30/2020 03/30/2020 03/30/2020

Surgical Health Services, Planned Parenthood South Texas Surgical Center. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/27/2020)
19 ORDER GRANTING 15 Motion for Richard Muniz to Appear Pro Hac Vice on behalf of Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/27/2020)
20 ORDER GRANTING 16 Motion for Rupali Sharma to Appear Pro Hac Vice on behalf of Whole Woman's Health and Whole Woman's Health Alliance. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/27/2020)
21 NOTICE of Attorney Appearance by Justin C. Pfeiffer on behalf of Brian Middleton (Pfeiffer, Justin) (Entered: 03/27/2020)
22 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Francesca Cocuzza ( Filing fee $ 100 receipt number 0542−13398950) by on behalf of Brookside Women's Medical Center PA, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S.. (O'Connell, Patrick) (Main Document 22 replaced on 3/30/2020 to flatten fields) (so). (Entered: 03/27/2020)
23 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Molly Duane ( Filing fee $ 100 receipt number 0542−13398961) by on behalf of Brookside Women's Medical Center PA, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S.. (O'Connell, Patrick) (Main Document 23 replaced on 3/30/2020 to flatten fields) (so). (Entered: 03/27/2020)
24 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Rabia Muqaddam ( Filing fee $ 100 receipt number 0542−13398970) by on behalf of Brookside Women's Medical Center PA, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S.. (O'Connell, Patrick) (Main Document 24 replaced on 3/30/2020 to flatten fields) (so). (Entered: 03/27/2020)
25 STIPULATION Joint and Agreed Stipulation for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs, and Withdrawal of Motion for a Temporary Restraining Order and Preliminary Injunction as to Defendant Middleton Without Prejudice by Brian Middleton. (Pfeiffer, Justin) (Entered: 03/28/2020)
26 NOTICE of Attorney Appearance by Andrew Bowman Stephens on behalf of Katherine A. Thomas. Attorney Andrew Bowman Stephens added to party Katherine A. Thomas(pty:dft) (Stephens, Andrew) (Entered: 03/29/2020)
27 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Julie Murray ( Filing fee $ 100 receipt number 0542−13399557) by on behalf of Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services. (O'Connell, Patrick) (Entered: 03/30/2020)
28 Unopposed MOTION for Leave to Exceed Page Limitation by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit A−Response, # 3 Exhibit B− Response Exhibits, # 4 Exhibit C−Response Proposed Order)(Stephens, Andrew) (Entered: 03/30/2020)
Notice of Correction: re 28 Unopposed MOTION for Leave to Exceed Page Limitation . When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document that exceeds the page limit should NOT be attached to the motion, but rather should be filed as a separate pleading. We will take the necessary steps to pull the Response from the Motion for leave to exceed page limit and add it to the docket

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 13 of 21

03/30/2020
03/30/2020 03/30/2020
03/30/2020 03/30/2020 03/30/2020 03/30/2020
03/30/2020 03/30/2020 03/30/2020

record. No further action is required. Please note this information for future filing purposes. (lt) (Entered: 03/30/2020)
29 SUPPLEMENT to 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Exhibit 10 − Jane Doe Declaration)(O'Connell, Patrick) (Entered: 03/30/2020)
30 State Defendants' RESPONSE to Motion, filed by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson, re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support filed by Plaintiffs. (Attachments: # 1 Exhibits, # 2 Proposed Order)(lt) (Entered: 03/30/2020)
31 MOTION for Protective Order Plaintiffs' Motion for Leave to Use a Pseudonym and for a Protective Order by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Leave to Use a Pseudonym and for a Protective Order)(O'Connell, Patrick) (Entered: 03/30/2020)
32 ORDER GRANTING 22 Motion for Francesca G. Cocuzza to Appear Pro Hac Vice on behalf of Southwestern Women's Surgery Center, Brookside Women's Medical Center PA, and Robin Wallace, MD. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
33 ORDER GRANTING 23 Motion for Mary Rose Duane to Appear Pro Hac Vice on behalf of Southwestern Women's Surgery Center, Brookside Women's Medical Center PA, and Robin Wallace, MD. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
34 ORDER GRANTING 24 Motion for Rabia Claire Muqaddam to Appear Pro Hac Vice on behalf of Southwestern Women's Surgery Center, Brookside Women's Medical Center PA, and Robin Wallace, MD. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
35 ORDER GRANTING 27 Motion for Julie Murray to Appear Pro Hac Vice on behalf of Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
36 ORDER GRANTING State Defendants' 28 Unopposed Motion for Leave to Exceed Page Limits. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
37 MOTION for Leave to File Amicus Brief by David S. Lill. by State of Louisiana. (Attachments: # 1 Brief, # 2 Proposed Order)(Lill, David) (Entered: 03/30/2020)
38 MOTION to Appear Pro Hac Vice by David S. Lill for Elizabeth Murrill ( Filing fee $ 100 receipt number 0542−13402104) by on behalf of State of Louisiana. (Lill, David) Modified on 3/30/2020 (lt). (Main Document 38 replaced on 3/30/2020 to flatten form) (lt). (Entered: 03/30/2020)

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 14 of 21

03/30/2020 03/30/2020
03/30/2020 03/30/2020 03/30/2020 03/30/2020 03/31/2020 03/31/2020
03/31/2020 03/31/2020
04/01/2020

39 ORDER GRANTING Louisiana and 15 States' 37 Motion for Leave to File Amicus Brief. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
40 VACATED in its Entirety By ORDER 54 ORDER GRANTING Plaintiffs' 7 Motion for Temporary Restraining Order. ORDER that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA−09. ORDER that this Temporary Restraining Order shall expire on April 13, 2020 at 3:00pm. ORDER SETTING the hearing on Plaintiffs' motion for a preliminary injunction for a telephonic hearing on April 13, 2020 at 9:30 a.m. Signed by Judge Lee Yeakel. (lt) Modified on 4/8/2020 (lt). (Entered: 03/30/2020)
Motion Hearing: 7 MOTION for Preliminary Injunction. Telephonic Motion Hearing set for 4/13/2020 at 09:30 AM before Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
41 Amicus Curiae BRIEF by The State of Louisiana and 15 States. (lt) (Entered: 03/30/2020)
42 ORDER GRANTING 38 Motion for Elizabeth Murrill to Appear Pro Hac Vice on behalf of Amicus Curiae The State of Louisiana. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/30/2020)
43 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Jennifer Sandman ( Filing fee $ 100 receipt number 0542−13404407) by on behalf of Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services. (O'Connell, Patrick) (Entered: 03/30/2020)
44 NOTICE of Attorney Appearance by John J. Butrus, Jr on behalf of John Creuzot. Attorney John J. Butrus, Jr added to party John Creuzot(pty:dft) (Butrus, John) (Entered: 03/31/2020)
45 Transcript filed of Proceedings held on March 26, 2020, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 4/21/2020, Redacted Transcript Deadline set for 5/1/2020, Release of Transcript Restriction set for 6/29/2020, (alr) (Entered: 03/31/2020)
46 ORDER of USCA 5th Circuit TEMPORARILY STAYING the district court's order of March 30, 2020 40 to allow the court sufficient time to consider petitioners' emergency motion for stay and petition for writ of mandamus. (lt) (Entered: 03/31/2020)
47 ORDER GRANTING 43 Motion for Jennifer Sandman to Appear Pro Hac Vice on behalf of Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 03/31/2020)
48 WAIVER OF SERVICE Returned Executed by Brookside Women's Medical Center PA, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, Southwestern Women's Surgery Center, Planned Parenthood South Texas Surgical Center, Robin Wallace, M.D., M.A.S., Whole Womans Health, Whole Woman's Health Alliance as to Greg Abbott. Waiver sent on 3/27/2020, answer due 5/26/2020; Stephen Brint Carlton. Waiver sent on 3/27/2020, answer due 5/26/2020; John Creuzot. Waiver sent on 3/30/2020, answer due 5/29/2020; Brian Middleton. Waiver sent on 3/27/2020, answer due 5/26/2020; Margaret Moore. Waiver sent on 3/25/2020, answer due 5/25/2020; Kim Ogg. Waiver sent on 4/1/2020, answer due 6/1/2020; Ken Paxton. Waiver sent on 3/27/2020, answer

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 15 of 21

04/02/2020
04/03/2020 04/07/2020 04/08/2020 04/08/2020 04/08/2020
04/08/2020
04/08/2020 04/08/2020 04/08/2020 04/08/2020

due 5/26/2020; Ricardo Rodriguez, Jr. Waiver sent on 3/30/2020, answer due 5/29/2020; Katherine A. Thomas. Waiver sent on 3/27/2020, answer due 5/26/2020; Phil Wilson. Waiver sent on 3/27/2020, answer due 5/26/2020; Sharen Wilson. Waiver sent on 3/30/2020, answer due 5/29/2020. (O'Connell, Patrick) (Entered: 04/01/2020)
49 NOTICE of Supplemental Filing in Support of Plaintiffs Motion for Preliminary Injunction by Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 11 − Sharfstein Declaration, # 2 Exhibit 12 − Bassett Declaration, # 3 Exhibit 13 − Northcutt Declaration, # 4 Exhibit 14 − Johnson Declaration, # 5 Exhibit 15 − Nguyen Declaration, # 6 Exhibit 16 − Chang Declaration, # 7 Exhibit 17 − Levison Declaration, # 8 Exhibit 18 − Wood Declaration, # 9 Exhibit 19 − Macones Declaration)(O'Connell, Patrick) (Entered: 04/02/2020)
50 NOTICE Regarding Supplemental Filing in Support of Plaintiffs' Motion for Preliminary Injunction by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson re 49 Notice (Other),,, (Stephens, Andrew) (Entered: 04/03/2020)
52 Certified copy of USCA Order issued as the mandate GRANTING the petition for writ of mandamus, directing the district court to vacate the TRO entered on March 30, 2020. (lt) (Entered: 04/07/2020)
53 Scheduling Recommendations/Proposed Scheduling Order for Briefing by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. (Attachments: # 1 Proposed Order Order Granting Briefing Schedule)(Stephens, Andrew) Modified on 4/8/2020 (so). (Entered: 04/08/2020)
54 ORDER VACATING in its entirety its March 30 Order 40 . The telephonic hearing on Plaintiffs' request for a preliminary injunction scheduled for April 13, 2020, is CANCELED, pending further order of this court. Signed by Judge Lee Yeakel. (so) (Entered: 04/08/2020)
55 MOTION for Leave to Exceed Page Limitation for Plaintiffs Second Motion for Temporary Restraining Order by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Exceed Page Limitation)(O'Connell, Patrick) (Entered: 04/08/2020)
56 Second MOTION for Temporary Restraining Order and Memorandum in Support by Brookside Women's Medical Center PA, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Exhibit 20 − Ward Declaration, # 2 Proposed Order)(O'Connell, Patrick) (Entered: 04/08/2020)
57 MOTION to Appear Pro Hac Vice by Stephanie Toti Sneha Shah ( Filing fee $ 100 receipt number 0542−13439987) by on behalf of Whole Woman's Health Alliance, Whole Womans Health. (Toti, Stephanie) (Entered: 04/08/2020)
58 ORDER for Joint Status Report on or before April 15, 2020 and DISMISSING 53 State Defendants' Motion for Briefing Schedule. Signed by Judge Lee Yeakel. (so) Modified on 4/8/2020 (lt). (Entered: 04/08/2020)
Set/Reset Deadlines: Joint Status Report due by 4/15/2020. (lt) (Entered: 04/08/2020)
59 MOTION to Appear Pro Hac Vice by David S. Lill for Joseph Scott St. John ( Filing fee $ 100 receipt number 0542−13440626) by on behalf of The State of Louisiana and 15 States. (Lill, David) (Entered: 04/08/2020)

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 16 of 21

04/09/2020 04/09/2020
04/09/2020 04/09/2020 04/09/2020 04/10/2020 04/13/2020 04/13/2020
04/13/2020 04/13/2020 04/13/2020 04/13/2020
04/13/2020

60 ORDER GRANTING Plaintiffs' 55 Motion for Leave to Exceed Page Limitation for Plaintiffs' Second Motion for Temporary Restraining Order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/09/2020)
61 ORDER GRANTING 57 Motion for Sneha Shah to Appear Pro Hac Vice on behalf of Whole Woman's Health and Whole Woman's Health Alliance. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/09/2020)
62 TRANSCRIPT REQUEST by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson for proceedings held on 4/09/2020. Proceedings Transcribed: Phone Conference. Court Reporter: Arlinda Rodriguez. (Stephens, Andrew) (Entered: 04/09/2020)
63 ORDER GRANTING 56 Plaintiffs' Second Motion for Temporary Restraining Order. ORDER that this Temporary Restraining Order shall expire on April 19, 2020, at 4:25pm. Signed by Judge Lee Yeakel. (lt) (Entered: 04/09/2020)
64 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held on 4/9/2020. (Minute entry documents are not available electronically.) (Court Reporter Arlinda Rodriguez.)(lt) (Entered: 04/13/2020)
65 ORDER of USCA 5th Circuit granting motion for temporary administrative stay of the district court's order of April 9, 2020 63 , until further order of the court, to allow sufficient time to consider the mandamus petition and emergency stay motion. (lt) (Entered: 04/13/2020)
66 ORDER MODIFYING PREVIOUS ORDER 58 FOR STATUS REPORT as follows: Joint Status Report due by 4/14/2020 at noon. Signed by Judge Lee Yeakel. (lt) (Entered: 04/13/2020)
67 AMENDED COMPLAINT for Injunctive and Declaratory Relief against All Defendants, filed by Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Whole Woman's Health, Whole Woman's Health Alliance, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Brookside Women's Medical Center PA, and Houston Women's Clinic. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(lt) (Entered: 04/13/2020)
68 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Anjali Salvador ( Filing fee $ 100 receipt number 0542−13449259) by on behalf of Houston Women's Clinic. (O'Connell, Patrick) (Entered: 04/13/2020)
69 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Andre Segura ( Filing fee $ 100 receipt number 0542−13449289) by on behalf of Houston Women's Clinic. (O'Connell, Patrick) (Entered: 04/13/2020)
70 MOTION to Appear Pro Hac Vice by Patrick J. O'Connell for Brigitte Amiri ( Filing fee $ 100 receipt number 0542−13449321) by on behalf of Houston Women's Clinic. (O'Connell, Patrick) (Entered: 04/13/2020)
71 Transcript filed of Proceedings held on April 9, 2020, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/4/2020, Redacted Transcript Deadline set for 5/14/2020, Release of Transcript Restriction set for 7/13/2020, (alr) (Entered: 04/13/2020)
72 WAIVER OF SERVICE Returned Executed by Houston Women's Clinic, Brookside Women's Medical Center PA, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, Southwestern Women's Surgery

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 17 of 21

04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/14/2020
04/14/2020 04/14/2020 04/14/2020 04/14/2020
04/15/2020

Center, Planned Parenthood South Texas Surgical Center, Robin Wallace, M.D., M.A.S., Whole Womans Health, Whole Woman's Health Alliance as to Jaime Esparza. Waiver sent on 3/30/2020, answer due 5/29/2020; Joe Gonzales. Waiver sent on 4/9/2020, answer due 6/8/2020; Barry Johnson. Waiver sent on 3/30/2020, answer due 5/29/2020. (O'Connell, Patrick) (Entered: 04/13/2020)
73 ORDER GRANTING 59 Motion for Joseph Scott St. John to Appear Pro Hac Vice on behalf of the State of Louisiana. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/13/2020)
74 ORDER of USCA 5th Circuit DENYING Petitioners' emergency motion to stay the district court's April 9 TRO as to medication abortions and also DISSOLVING the temporary administrative stay as it applies to medication abortions. (lt) (Entered: 04/14/2020)
75 ORDER GRANTING 68 Motion for Anjali Salvador to Appear Pro Hac Vice on behalf of Houston Women's Clinic. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/14/2020)
76 ORDER GRANTING 69 Motion for Andre Segura to Appear Pro Hac Vice on behalf of Houston Women's Clinic. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/14/2020)
77 ORDER GRANTING 70 Motion for Brigitte Adrienne Amiri to Appear Pro Hac Vice on behalf of Houston Women's Clinic. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/14/2020)
78 STATUS REPORT Joint Status Report and Proposed Briefing Schedule by Brookside Women's Medical Center PA, Houston Women's Clinic, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (O'Connell, Patrick) (Entered: 04/14/2020)
79 MOTION for Temporary Restraining Order by Houston Women's Clinic. (Attachments: # 1 Exhibit Declaration of Dr. Bernard Rosenfeld, # 2 Proposed Order)(O'Connell, Patrick) (Entered: 04/14/2020)
80 STIPULATION Joint and Agreed Stipulation for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs, and Withdrawal of Motion for a Temporary Restraining Order and Preliminary Injunction as to Defendant Middleton Without Prejudice as to Plaintiff Houston Women's Clinic by Brian Middleton. (Pfeiffer, Justin) (Entered: 04/14/2020)
81 STIPULATION for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs by Plaintiffs and by Jaime Esparza. (Duarte, Ruben) (Entered: 04/14/2020)
82 VACATED in all respects per Order 102 ORDER EXTENDING in its entirety under its same terms and conditions the Order Granting Plaintiffs' Second Motion For Temporary Restraining Order 63 except as MODIFIED by the orders of the United States Court of Appeals for the Fifth Circuit rendered April 10, 2020, and April 13, 2020, until 5:00 p.m. on May 1, 2020. ORDER SETTING Telephonic Hearing on 7 MOTION for Preliminary Injunction for 4/29/2020 at 09:30 AM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (lt) Modified on 4/23/2020 (lt). (Entered: 04/14/2020)
83 Appeal of Order entered by District Judge 63 , 82 by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. ( Filing fee $ 505 receipt number 0542−13462512) (Stephens, Andrew) (Entered: 04/15/2020)

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 18 of 21

04/15/2020
04/17/2020 04/17/2020 04/17/2020
04/17/2020 04/17/2020 04/18/2020

NOTICE OF INTERLOCUTORY APPEAL following 83 Notice of Appeal (E−Filed) by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. Filing fee $ 505, receipt number 0542−13462512. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (lt) (Entered: 04/15/2020)
84 NOTICE of Attorney Appearance by Adam Arthur Biggs on behalf of Barry Johnson, Sharen Wilson. Attorney Adam Arthur Biggs added to party Barry Johnson(pty:dft), Attorney Adam Arthur Biggs added to party Sharen Wilson(pty:dft) (Biggs, Adam) (Entered: 04/17/2020)
85 ORDER that Plaintiffs' may serve and file additional briefing and supporting evidence on or before April 18, 2020 at 5:00 p.m. ORDER that the parties confer as soon as practicable, but before the telephone conference set by this order. ORDER SETTING Telephonic Conference for 4/20/2020 at 09:30 AM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (lt) (Entered: 04/17/2020)
86 SECOND AMENDED COMPLAINT for Injunctive and Declaratory Relief against All Defendants, filed by Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Whole Woman's Health, Whole Woman's Health Alliance, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Brookside Women's Medical Center PA, and Houston Women's Clinic, Alamo City Surgery Center PLLC, d/b/a Alamo Women's Reproductive Services and Houston Women's Reproductive Services. (lt) (Entered: 04/17/2020)
87 MOTION for Temporary Restraining Order by Alamo City Surgery Center PLLC and Houston Women's Reproductive Services. (Attachments: # 1 Declaration, # 2 Proposed Order)(lt) (Entered: 04/17/2020)
88 STIPULATION Joint and Agreed Stipulation for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs, and Withdrawal of Motion for a Temporary Restraining Order and Preliminary Injunction as to Defendant Middleton Without Prejudice as to Plaintiffs Alamo City Surgery Center PLLC and Houston Women's Reproductive Services by Brian Middleton. (Pfeiffer, Justin) (Entered: 04/17/2020)
89 Memorandum in Support, filed by Alamo City Surgery Center PLLC, Brookside Women's Medical Center PA, Houston Women's Clinic, Houston Women's Reproductive Services, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health, re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support MOTION for Preliminary Injunction filed by Plaintiff Planned Parenthood of Greater Texas Surgical Health Services, Plaintiff Southwestern Women's Surgery Center, Plaintiff Planned Parenthood Center for Choice, Plaintiff Robin Wallace, M.D., M.A.S., Plaintiff Whole Woman's Health Alliance, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Brookside Women's Medical Center PA, Plaintiff Whole Womans Health Supplemental Memorandum of Law in Support of Plaintiffs Motion for a Preliminary Injunction (Attachments: # 1 Appendix A − Exhibits List, # 2 Exhibit 21 − Texas Executive Order GA−15, # 3 Exhibit 22 − Email Correspondence Between Counsel for State Defendants and Counsel for Plaintiffs, # 4 Exhibit 23 − Declaration of Amanda Bennett, # 5 Exhibit 24 − Declaration of Curtis Boyd, # 6 Exhibit 25 − Second Declaration of Alicia Dewitt−Dick, # 7 Exhibit 26 − Second Declaration of Andrea Ferrigno, # 8 Exhibit 27 − Declaration of Stephanie Gomez, # 9 Exhibit 28 − Second Declaration of Amy Hagstrom Miller, # 10 Exhibit 29 − Declaration of Colleen Heflin, Ph.D., # 11 Exhibit 30 − Declaration of Marsha Jones, # 12 Exhibit 31 − Declaration of Joan Lamunyon Sanford, # 13 Exhibit 32 − Declaration of Alma Loe, M.D., # 14 Exhibit 33 − Declaration of Alex Moe, # 15 Exhibit 34 − Second Declaration of Tram Nguyen, # 16 Exhibit 35 − Declaration of Mary Roe, M.D., # 17 Exhibit 36 − Declaration of Odile Schalit, # 18 Exhibit 37 − Second Declaration of Ann−Schutt−Aine, M.D., # 19 Exhibit 38 − Second Declaration of Joshua Sharfstein, M.D., # 20 Exhibit 39 − Declaration of Kari White, Ph.D., # 21 Exhibit 40 − 2017 Texas ITOP Data)(O'Connell, Patrick) (Entered: 04/18/2020)

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 19 of 21

04/18/2020
04/20/2020 04/20/2020 04/20/2020 04/20/2020 04/21/2020
04/21/2020 04/21/2020 04/21/2020
04/21/2020
04/22/2020

90 Second MOTION for Protective Order and for Leave to Use Pseudonyms by Alamo City Surgery Center PLLC, Brookside Women's Medical Center PA, Houston Women's Clinic, Houston Women's Reproductive Services, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health. (Attachments: # 1 Proposed Order Granting Plaintiffs' Second Motion for Leave to Use Pseudonyms and for a Protective Order)(O'Connell, Patrick) (Entered: 04/18/2020)
91 TRANSCRIPT REQUEST by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson for proceedings held on 4/20/2020. Proceedings Transcribed: Phone Conference. Court Reporter: Arlinda Rodriguez. (Stephens, Andrew) (Entered: 04/20/2020)
92 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held on 4/20/2020. (Minute entry documents are not available electronically.) (Court Reporter Arlinda Rodriguez.)(lt) (Entered: 04/20/2020)
93 Certified copy of USCA JUDGMENT issued as MANDATE dismissing appeal for lack of jurisdiction and denying as moot the emergency motion to stay. (lt) (Entered: 04/20/2020)
94 Certified Copy of USCA Order issued as the mandate GRANTING IN PART AND DENYING IN PART the petition for writ of mandamus and lifting any portions of the court's April 10 administrative stay remaining in effect. (lt) (Entered: 04/20/2020)
95 ORDER GRANTING Plaintiff Houston Women's Clinic's 79 Motion for TRO and Plaintiffs Alamo City Surgery Center's and Houston Women's Reproductive Services 87 Motion for TRO as follows: Houston Women's Clinic, Alamo City Surgery Center, and Houston Women's Reproductive Services as plaintiffs in this case, are covered by and subject to this court's April 9, 2020, temporary restraining order to the same extent as the original plaintiffs and are entitled to all rights, privileges, and immunities set forth in the April 9, 2020 order, as modified by the United States Court of Appeals for the Fifth Circuit by that court's orders of April 10 and April 13, 2020. In all other respects, the motion is DENIED. Signed by Judge Lee Yeakel. (lt) (Entered: 04/21/2020)
96 ORDER GRANTING Plaintiffs' 31 Motion for Leave to Use a Pseudonym and for a Protective Order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/21/2020)
97 ORDER GRANTING Plaintiffs' 90 Second Motion for Leave to Use Pseudonyms and for a Protective Order. Signed by Judge Lee Yeakel. (lt) (Entered: 04/21/2020)
98 Transcript filed of Proceedings held on April 20, 2020, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/12/2020, Redacted Transcript Deadline set for 5/22/2020, Release of Transcript Restriction set for 7/20/2020, (alr) (Entered: 04/21/2020)
99 ORDER VACATING only the following portions of the court's April 9, 2020 63 Order: any part of the April 9 TRO that (1) restrains enforcement of GA−09 as a "categorical ban on all abortions provided by Plaintiffs;" (2) restrains the Governor and Attorney General; (3) restrains enforcement of GA−09 after 11:59 p.m. on April 21, 2020; (4) restrains enforcement of GA−09 as to medication abortions; and (5) restrains enforcement of GA−09 as to abortions for patients who will reach 18 weeks LMP during the operation of GA−09 and would be "unlikely" to obtain abortion services in Texas. Signed by Judge Lee Yeakel. (lt) (Entered: 04/21/2020)
100 RESPONSE to Motion, filed by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson, re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support MOTION for

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 20 of 21

04/23/2020
04/23/2020 05/04/2020 05/20/2020 05/20/2020 05/21/2020 05/21/2020 05/21/2020 05/22/2020 05/22/2020 05/26/2020 05/27/2020

Preliminary Injunction filed by Plaintiff Planned Parenthood of Greater Texas Surgical Health Services, Plaintiff Southwestern Women's Surgery Center, Plaintiff Planned Parenthood Center for Choice, Plaintiff Robin Wallace, M.D., M.A.S., Plaintiff Whole Woman's Health Alliance, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Brookside Women's Medical Center PA, Plaintiff Whole Womans Health (Attachments: # 1 Exhibit DX−11, # 2 Exhibit DX−12, # 3 Exhibit DX−13, # 4 Exhibit DX−14, # 5 Exhibit DX−15, # 6 Proposed Order Denying Preliminary Injunction)(Stephens, Andrew) (Entered: 04/22/2020)
101 NOTICE of Withdrawal of Plaintiffs' Motion for Preliminary Injunction by Alamo City Surgery Center PLLC, Brookside Women's Medical Center PA, Houston Women's Clinic, Houston Women's Reproductive Services, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Southwestern Women's Surgery Center, Robin Wallace, M.D., M.A.S., Whole Woman's Health Alliance, Whole Womans Health re 7 MOTION for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support MOTION for Preliminary Injunction (O'Connell, Patrick) (Entered: 04/23/2020)
102 ORDER VACATING in all respects the court's Order 82 Extending Order Granting Plaintiffs' Second Motion for Temporary Restraining Order and Scheduling Order for Plaintiffs' Motion for Preliminary Injunction and CANCELING the telephonic hearing on Plaintiffs' motion for preliminary injunction set for April 29, 2020 at 9:30. Signed by Judge Lee Yeakel. (lt) (Entered: 04/23/2020)
103 NOTICE of Attorney Appearance by Laura Beckman Hedge on behalf of Kim Ogg. Attorney Laura Beckman Hedge added to party Kim Ogg(pty:dft) (Hedge, Laura) (Entered: 05/04/2020)
104 Unopposed MOTION for Extension of Time to File Answer re 86 Amended Complaint,, by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. (Attachments: # 1 Proposed Order Order Granting Motion for Extension)(Stephens, Andrew) (Entered: 05/20/2020)
105 Unopposed MOTION for Extension of Time to File Answer re 86 Amended Complaint,, by Barry Johnson, Sharen Wilson. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 05/20/2020)
106 Unopposed MOTION for Extension of Time to File Answer re 86 Amended Complaint,, by John Creuzot. (Attachments: # 1 Proposed Order)(Butrus, John) (Entered: 05/21/2020)
107 ORDER GRANTING 104 Unopposed Motion for Extensionof Time to File Response to Plaintiffs' Amended Complaint for Injunctive and Declaratory Relief; State Defendants' answers due 6/25/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/21/2020)
108 ORDER GRANTING 105 Unopposed Motion for Extension of Time to File Response; Barry Johnson answer due 6/25/2020; Sharen Wilson answer due 6/25/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/21/2020)
109 Unopposed MOTION for Extension of Time to File Answer re 86 Amended Complaint,, by Margaret Moore. (Attachments: # 1 Proposed Order)(Dippel, Leslie) (Entered: 05/22/2020)
110 ORDER GRANTING 106 Motion for Extension of Time to file a response to Plaintiffs' Second Amended Complaint for Injunctive and Declaratory Relief; John Creuzot answer due 6/29/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/22/2020)
111 ORDER GRANTING 109 Unopposed Motion for Extension of Time to File a Response to Plaintiffs' Second Amended Complaint for Injunctive and Declaratory Relief; Margaret Moore answer due 6/25/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/26/2020)
112 Unopposed MOTION for Extension of Time to File Answer by Joe Gonzales. (Green, Robert) (Entered: 05/27/2020)

Case: 1:20-cv-323 As of: 07/07/2020 07:12 AM CDT 21 of 21

05/27/2020 05/28/2020 05/28/2020 05/29/2020 06/02/2020 06/03/2020 06/24/2020
06/24/2020 06/24/2020 06/24/2020 06/25/2020 06/26/2020
06/26/2020
06/26/2020 06/26/2020 06/26/2020
06/26/2020

113 Unopposed MOTION for Extension of Time to File Answer by Kim Ogg. (Attachments: # 1 Proposed Order)(Hedge, Laura) (Entered: 05/27/2020)
114 ORDER GRANTING 112 Unopposed Motion for Extension of Time to File a Response to Plaintiffs' Second Amended Complaint; Joe Gonzales answer due 7/23/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/28/2020)
115 ORDER GRANTING 113 Unopposed Motion forExtension of Time to File Response; Kim Ogg answer due 7/1/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 05/28/2020)
116 Unopposed MOTION for Extension of Time to File Answer by Ricardo Rodriguez, Jr. (Attachments: # 1 Proposed Order granting motion to extend time to file answer)(Ramirez, Josephine) (Entered: 05/29/2020)
117 ORDER GRANTING 116 Unopposed Motion for Extension of Time to Response to Plaintiffs' Second Amended Complaint; Ricardo Rodriguez, Jr answer due 6/29/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/02/2020)
118 STIPULATION for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs by Kim Ogg. (Hedge, Laura) (Entered: 06/03/2020)
119 Unopposed MOTION for Extension of Time to File Response/Reply as to 86 Amended Complaint,, by Greg Abbott, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Phil Wilson. (Attachments: # 1 Proposed Order Order Granting Motion for Extension)(Stephens, Andrew) Modified on 6/24/2020 (lt). (Entered: 06/24/2020)
120 STIPULATION for Non−Enforcement Pending Final Resolution, Attorneys Fees and Costs by John Creuzot. (Butrus, John) (Entered: 06/24/2020)
121 Unopposed MOTION for Extension of Time to File Response/Reply as to 86 Amended Complaint,, by Margaret Moore. (Attachments: # 1 Proposed Order)(Dippel, Leslie) Modified on 6/24/2020 (lt). (Entered: 06/24/2020)
122 Second MOTION for Extension of Time to File Response/Reply by Barry Johnson, Sharen Wilson. (Attachments: # 1 Proposed Order)(Biggs, Adam) Modified on 6/25/2020 (lt). (Entered: 06/24/2020)
123 Unopposed MOTION for Extension of Time to File Answer re 86 Amended Complaint,, by Joe Gonzales. (Green, Robert) (Entered: 06/25/2020)
124 ORDER GRANTING 119 Second Unopposed Motion for Extension of Time to File Response to Plaintiffs' Second Amended Complaint for Injunctive and Declaratory Relief; State Defendants' answer due 8/24/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/26/2020)
125 ORDER GRANTING 121 Defendant Travis County District Attorney Margaret Moore's Second Unopposed Motion for Extension of Time to File a Response to Plaintiffs' Second Amended Complaint for Injunctive and Declaratory Relief; Margaret Moore answer due 8/24/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/26/2020)
126 ORDER GRANTING 122 Defendants Barry Johnson and Sharen Wilson's Second Unopposed Motion for Extension of Time to File Response; Barry Johnson, Sharen Wilson answer due 8/24/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/26/2020)
127 Unopposed MOTION for Extension of Time to File Answer by Ricardo Rodriguez, Jr. (Attachments: # 1 Proposed Order)(Ramirez, Josephine) (Entered: 06/26/2020)
128 ORDER GRANTING 123 Defendant Bexar County Criminal District Attorney Joe D. Gonzales's Second Unopposed Motion for Extension of Time to File a Response to Plaintiffs' Second Amended Complaint; Joe Gonzales answer due 9/17/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/26/2020)
129 ORDER GRANTING 127 Defendant Hidalgo County Criminal District Attorney Ricardo Rodriguez, Jr.'s Second Unopposed Motion for Extension of Time to File a Response to Plaintiffs' Second Amended Complaint; Ricardo Rodriguez, Jr answer due 8/28/2020. Signed by Judge Lee Yeakel. (lt) (Entered: 06/26/2020)

 
 Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; WHOLE WOMAN’S HEALTH; WHOLE WOMAN’S HEALTH ALLIANCE; SOUTHWESTERN WOMEN’S SURGERY CENTER; BROOKSIDE WOMEN’S MEDICAL CENTER PA d/b/a BROOKSIDE WOMEN’S HEALTH CENTER AND AUSTIN WOMEN’S HEALTH CENTER; and ROBIN WALLACE, M.D.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing; MARGARET MOORE, District Attorney for Travis County; JOE GONZALES, Criminal District Attorney for Bexar County; JOHN CREUZOT, District Attorney for Dallas County; JAIME ESPARZA, District Attorney for El Paso County; KIM OGG, Criminal District Attorney for Harris County; RICARDO RODRIGUEZ, JR., Criminal District Attorney for Hidalgo County; BARRY JOHNSON, Criminal District Attorney for McLennan County; SHAREN WILSON, Criminal District Attorney for Tarrant County; and BRIAN MIDDLETON, Criminal District Attorney for Fort Bend County,
Defendants.

No. 1:20-cv-323

Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 2 of 26
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
1. This is a constitutional challenge under 42 U.S.C. § 1983 to an interpretation by the Texas Attorney General of Governor Greg Abbott’s March 22, 2020, Executive Order GA 09, “Relating to hospital capacity during the COVID-19 disaster” (“the Executive Order”), as applied to abortion, and to the extent that interpretation is consistent with the Executive Order, a challenge to the order itself. The Texas Attorney General’s interpretation is attached as Exhibit A. The Executive Order is attached as Exhibit B. This lawsuit also challenges the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. The Emergency Rule is attached as Exhibit C.
2. Citing the ongoing COVID-19 pandemic and the need to preserve hospital capacity and personal protective equipment (“PPE”), the Executive Order prohibits all surgeries and procedures that—as determined by a patient’s physician—are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate receipt of such care would be at risk for serious adverse medical consequences or death. It applies to all licensed health care practitioners and all licensed health care facilities in Texas. The Executive Order directs regulated parties to stop performing all covered services, with the exception of procedures that, if performed using the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with the COVID-19 disaster.
3. The Executive Order took effect the afternoon of March 22, 2020, and will remain in effect until at least April 21, 2020.
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4. As the American College of Obstetricians and Gynecologists (“ACOG”) has recognized, abortion care is essential care because it cannot be delayed without risking the health and safety of the patient. Accordingly, Plaintiffs believe that providing this care is entirely consistent with the Governor’s Executive Order.
5. However, on March 23, 2020, Texas Attorney General Ken Paxton issued a press release singling out abortion providers and suggesting that he believed provision of nonemergency abortions would violate the Executive Order. The release stated that “[t]hose who violate the governor’s order will be met with the full force of the law” and threatened criminal penalties, including jail time.
6. By stating that the Executive Order applies to “any type of abortion,” the Attorney General’s news release suggests it even prohibits medication abortion, which involves only taking medications by mouth and is not “surgery” or a “procedure” that falls within the terms of the Executive Order. See id. (emphasis added). This appears to be the only oral medication targeted in this manner.
7. For nearly fifty years, the U.S. Supreme Court has recognized the fundamental federal constitutional right to make the profoundly personal decision whether to terminate a pregnancy. See Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court has repeatedly recognized that this right is foundational to equality and to respect for the dignity, autonomy, and bodily integrity of all people. The “central principle” of Roe is that “[b]efore viability, the State’s interests are not strong enough to support a prohibition on abortion,” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846, 871 (1992), regardless whether that prohibition contains an exception to preserve the life or health of the pregnant woman.
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8. The Texas Attorney General’s enforcement threats are a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity. As a result of these threats, this week Plaintiffs have already been forced to turn away patients in need of time-sensitive care.
9. Without injunctive relief, Plaintiffs will be forced to continue turning away patients seeking abortion care. At a minimum, those patients will not be able to obtain an abortion for weeks or even months, given that the COVID-19 pandemic is likely to last far beyond the order’s stated expiration date. Some will not be able to access abortion at all and will be forced to carry pregnancies to term. Not only will these patients be deprived of their constitutional right to essential healthcare and self-determination, but forcing them to continue their pregnancies will in fact impose far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve much greater exhaustion of hospital health care services and PPE than abortions. All will be delayed in getting the abortion care they are seeking, with attendant risks to their health, wellbeing, and economic security. This violates Plaintiffs’ patients’ fundamental constitutional right to decide whether to have an abortion prior to viability.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. 11. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 12. Venue is appropriate under 28 U.S.C § 1391(b) because one or more of the Defendants resides in this judicial district and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this judicial district.
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PLAINTIFFS 13. Plaintiff Planned Parenthood Center for Choice (“PP Houston”), a Texas not-forprofit corporation headquartered in Houston, operates a licensed ambulatory surgical center in Houston and a licensed abortion facility in Stafford. PP Houston and its predecessor organizations have provided abortions in Houston and southeast Texas since 1973. PP Houston provides a range of reproductive health services, including medication and procedural abortions. PP Houston sues on behalf of itself, its staff, physicians, nurses, and patients. 14. Plaintiff Planned Parenthood of Greater Texas Surgical Health Services (“PPGT Surgical Health Services”) is a Texas not-for-profit corporation, headquartered in Dallas. PPGT Surgical Health Services and its predecessor organizations have provided high-quality reproductive health care in Texas for decades. PPGT Surgical Health Services operates licensed ambulatory surgical centers in Austin, Dallas, and Fort Worth, and licensed abortion facilities in Waco and Austin. PPGT Surgical Health Services provides a range of reproductive health services, including medication and procedural abortions. PPGT Surgical Health Services sues on behalf of itself, its staff, physicians, nurses, and patients. 15. Plaintiff Planned Parenthood South Texas Surgical Center (“PPST Surgical Center”), a not-for-profit corporation headquartered in San Antonio, operates a licensed ambulatory surgical center and a licensed abortion facility in San Antonio. PPST Surgical Center provides a range of reproductive health services, including medication and procedural abortions. PPST Surgical Center sues on behalf of itself, its staff, physicians, nurses, and patients. 16. Plaintiff Whole Woman’s Health operates licensed abortion facilities in Fort Worth and McAllen. Whole Woman’s Health provides a range of reproductive health services, including medication and procedural abortions. Whole Woman’s Health sues on behalf of itself, its staff, physicians, nurses, and patients.
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17. Plaintiff Whole Woman’s Health Alliance is a Texas not-for-profit corporation. Its mission is to provide abortion care in underserved communities and shift the stigma around abortion in our culture. It operates a licensed abortion facility in Austin that provides both medication and procedural abortions. Whole Woman’s Health Alliance sues on behalf of itself, its staff, physicians, nurses, and patients.
18. Plaintiff Southwestern Women’s Surgery Center (“Southwestern”) operates a licensed ambulatory surgical center in Dallas. Southwestern provides a range of reproductive health services, including medication and procedural abortions. Southwestern sues on behalf of itself, its staff, physicians, nurses, and patients.
19. Plaintiff Robin Wallace, M.D. is co-medical director at Southwestern. Dr. Wallace is a board-certified family medicine physician who provides abortion care. Dr. Wallace sues on her own behalf and on behalf of her patients.
20. Plaintiff Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center (“Austin Women’s”) operates a licensed abortion facility in Austin. Austin Women’s provides a range of reproductive health services, including medication and procedural abortions. Austin Women’s sues on behalf of itself, its staff, physicians, nurses, advanced practice registered nurses, and patients.
DEFENDANTS 21. Defendant Greg Abbott is the Governor of Texas and the author of the Executive Order, which he issued pursuant to his emergency authority.1 He is sued in his official capacity and may be served with process at 1100 San Jacinto Blvd., Austin, Texas 78701.
1 Tex. Gov’t Code § 418.012. 6

Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 7 of 26
22. Defendant Ken Paxton is the Attorney General of Texas. He is empowered to assist county and district attorneys in the prosecution of criminal offenses,2 including criminal violations of the Executive Order. He authored the challenged legal interpretation of the Executive Order. He is sued in his official capacity and may be served with process at 300 West 15th Street, Austin, Texas 78701.
23. Defendant Phil Wilson is the Acting Executive Commissioner of the Texas Health and Human Services Commission (“HHSC”). HHSC is authorized to enforce violations of the Executive Order administratively.3 As Executive Commissioner, Mr. Wilson has general supervision and control over all matters relating to the health of the people of Texas.4 He is sued in his official capacity and may be served with process at 4900 N. Lamar Blvd., Austin, TX 78751.
24. Defendant Stephen Brint Carlton is the Executive Director of the Texas Medical Board (“TMB”). TMB is authorized to enforce violations of the Executive Order using administrative action against physicians and physician assistants licensed in Texas.5 TMB has implemented the Executive Order through its Emergency Rule. As Executive Director, Mr. Carlton serves as the chief executive and administrative officer of the Board.6 He is sued in his official capacity and may be served with process at 333 Guadalupe, Tower 3, Suite 610, Austin, TX 78701.
25. Defendant Katherine A. Thomas is the Executive Director of the Texas Board of Nursing (“TBN”). TBN is authorized to enforce violations of the Executive Order using
2 Id. § 402.028. 3 Tex. Health & Safety Code §§ 243.0115, 245.012(c); 25 Tex. Admin. Code §§ 135.24(a)(1)(F), 139.32(b)(6); Tex. Gov’t Code § 531.02011(2) (transferring all “regulatory functions . . . of the Department of State Health Services” to HHSC). 4 Tex. Health & Safety Code Ann. § 12.001(a). 5 Tex. Occ. Code § 164.051; 22 Tex. Admin. Code § 185.17(11). 6 Tex. Occ. Code § 152.051.
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administrative action against nurses licensed in Texas.7 As Executive Director, Ms. Thomas performs duties as required by Chapter 301 or designated by the board.8 She is sued in her official capacity and may be served with process at 333 Guadalupe, Suite 3-460, Austin, TX 78701-3944.
26. Defendant Margaret Moore is the District Attorney for Travis County. She is responsible for prosecuting criminal violations of the Executive Order occurring in Travis County. She is sued in her official capacity and may be served with process at 509 West 11th Street, Room 300, Austin, Texas 78701.
27. Defendant Joe Gonzales is the Criminal District Attorney for Bexar County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Bexar County. He is sued in his official capacity and may be served with process at 101 West Nueva Street, 4th Floor, San Antonio, Texas 78205.
28. Defendant John Creuzot is the District Attorney for Dallas County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Dallas County. He is sued in his official capacity and may be served with process at 133 North Riverfront Boulevard, LB 19, Dallas, Texas 75207.
29. Defendant Jaime Esparza is the District Attorney for El Paso County. He is responsible for prosecuting criminal violations of the Executive Order occurring in El Paso County. He is sued in his official capacity and may be served with process at El Paso County Courthouse, 500 East San Antonio Avenue, Room 201, El Paso, Texas 79901.
30. Defendant Kim Ogg is the Criminal District Attorney for Harris County. She is responsible for prosecuting criminal violations of the Executive Order occurring in Harris County.
7 Id. § 301.452. 8 Id. § 301.101.
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She is sued in her official capacity and may be served with process at 1201 Franklin Street, Suite 600, Houston, Texas 77002.
31. Defendant Ricardo Rodriguez, Jr., is the Criminal District Attorney for Hidalgo County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Hidalgo County. He is sued in his official capacity and may be served with process at 100 East Cano, Edinburg, Texas 78539.
32. Defendant Barry Johnson is the Criminal District Attorney for McLennan County. He is responsible for prosecuting criminal violations of the Executive Order occurring in McLennan County. He is sued in his official capacity and may be served with process at 219 North 6th Street, Suite 200, Waco, Texas 76701.
33. Defendant Sharen Wilson is the Criminal District Attorney for Tarrant County. She is responsible for prosecuting criminal violations of the Executive Order occurring in Tarrant County. She is sued in her official capacity and may be served with process at the Tim Curry Criminal Justice Center, 401 West Belknap Street, Fort Worth, Texas 76196-0201.
34. Defendant Brian Middleton is the Criminal District Attorney for Fort Bend County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Fort Bend County. He is sued in his official capacity and may be served with process at 1422 Eugene Heimann Circle, Suite 21004, Richmond, TX 77469.
FACTUAL ALLEGATIONS A. Abortion Generally and As Provided in Texas
35. Pregnancy is commonly measured from the first day of the pregnant person’s last menstrual period (“LMP”). A full-term pregnancy has a duration of approximately forty weeks LMP. In Texas, abortion is almost entirely banned about halfway through pregnancy, at twentytwo weeks LMP.
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36. Up to ten weeks LMP, patients wishing to terminate their pregnancy can choose between medication abortion (where the patient takes pills to end and expel the pregnancy) and abortion by procedure or “procedural abortion,” as it is commonly called (where a clinician uses gentle suction, sometimes along with instruments, to empty the patient’s uterus). After ten weeks LMP, only procedural abortion is available in Texas.
37. Medication abortion involves the patient ingesting a combination of two pills: mifepristone and misoprostol. The patient takes the first medication, mifepristone, in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication, misoprostol, at a location of their choosing, most often at home, after which they expel the pregnancy in a manner similar to a miscarriage. While medication abortion is safe and effective up to eleven weeks LMP, Texas law prohibits medication abortion after ten weeks LMP.9
38. Despite sometimes being referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery,” as it involves no incisions and no need for general anesthesia. In a procedural abortion, the clinician uses gentle suction from a thin, flexible tube to empty the contents of the patient’s uterus. Before inserting the tube through the patient’s cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, expandable rods. Beginning around fifteen weeks LMP, clinicians generally must use instruments to complete the procedure, a technique called dilation and evacuation (“D&E”). Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself.
39. Both medication abortion and procedural abortion are effective in terminating a pregnancy. For some patients, however, one method is medically indicated over the other. For example, a patient may be allergic to one of the medications used in medication abortion, or may
9 See Tex. Health & Safety Code § 171.063(a)(2).
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have medical conditions that make procedural abortion relatively more safe.10 According to the
latest data from the Texas Department of Health and Human Services, in 2017, more than 68 percent of all abortions in the state were procedural abortions.11
40. Legal abortion is one of the safest medical procedures in the United States.12 The
vast majority of abortions in the United States are provided in an outpatient setting. In comparison, more than ninety-eight percent of births in the United States take place in a hospital.13
Complications from both medication and procedural abortion are rare, and when they occur, they
can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a
follow-up visit. Major complications—defined as complications requiring hospital admission,
surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of abortion
cases: specifically, such complications arise in just 0.31% of medication abortion cases, 0.16% of
first-trimester procedural abortion cases, and 0.41% of procedural cases in the second trimester or later.14 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.15
10 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 8 (2018) (“Few women are medically ineligible for abortion. There are, however, specific contraindications to using mifepristone for a medication abortion or induction.”).
11 Tex. Health & Human Servs., 2017 Induced Terminations of Pregnancy by PostFertilization Age and Procedure (2018), https://hhs.texas.gov/about-hhs/records-statistics/ data-statistics/itop-statistics. The remaining 0.1% of abortions before eleven weeks LMP had a reported method of “other/not stated.”
12 Nat’l Acads., supra note 10 at 77–78, 162–63. 13 Marian F. MacDorman et al., Nat’l Ctr. for Health Statistics, NCHS Data Brief No. 144: Trends in Out-of-Hospital Births in the United States, 1990-2012 (2014), https://www.cdc.gov/nchs/products/databriefs/db144.htm. 14 Ushma D. Upadhyay et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecology 175 (2015). 15 Ushma D. Upadhyay et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16(1) BMC Med. 1, 1 (2018).
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41. Indeed, both medication abortion and procedural abortion are substantially safer than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion,16 and complications such as hemorrhage are far more likely to occur with childbirth than following an abortion.
42. Even with an uncomplicated pregnancy in an otherwise healthy individual, carrying a pregnancy to term and giving birth poses serious medical risks and can have long-term medical and physical consequences. For a person with a medical condition caused or exacerbated by pregnancy or for a person who receives a diagnosis of a severe or lethal fetal anomaly, these risks are increased.
43. People decide to end a pregnancy for a variety of reasons, including familial, medical, financial, and personal reasons. Some people end a pregnancy because they conclude it is not the right time in their lives to have a child; some do so because they already have one or more children and decide they cannot add to their families; some do so to preserve their life, health, or safety; some do so because they receive a diagnosis of a fetal anomaly; some do so because they have become pregnant as a result of rape or incest; and some do so because they choose not to have biological children. Approximately one in four women in this country will have an abortion by age forty-five.
44. Plaintiffs provide medication abortion, procedural abortion, or both medication and procedural abortion. Plaintiffs provide medication abortion up to ten weeks LMP. Plaintiffs provide procedural abortion to varying gestational points in pregnancy within the bounds of Texas
16 Nat’l Acads., supra note 10 at 11, 74–75. 12

Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 13 of 26
law, which prohibits abortion care except in narrow circumstances at or after twenty-two weeks
LMP.17
B. The COVID-19 Pandemic 45. Since first identified in December 2019,18 COVID-19 has grown to a worldwide
pandemic. The disease has spread to 195 countries, infecting hundreds of thousands of people and
killing more than 16,000.19 In the United States, the virus has reached every state, including nearly
1,000 confirmed cases and twelve deaths in Texas as of the time of filing.20 Federal and state
officials and medical professionals expect a surge of infections—which may last for a year or
eighteen months21—to test the limits of the healthcare system.22 Healthcare workers are facing a
shortage of certain types of PPE, particularly N95 masks.23
46. On March 13, 2020, the White House issued a proclamation declaring that the
COVID-19 outbreak in the United States constitutes a national emergency. That same day,
17 Texas Health & Safety Code section 171.044 prohibits abortion when “the probable postfertilization age of the unborn child is 20 or more weeks.” “Post-fertilization age” means “the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum,” id. § 171.042, which occurs approximately two weeks after the first day of a patient’s last menstrual period. Thus, twenty weeks post-fertilization is twenty-two weeks LMP.
18 Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times (updated Mar. 24, 2020), https://www.nytimes.com/article/coronavirus-timeline.html.
19 World Health Org., Coronavirus Disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last viewed Mar. 24, 2020).
20 Tex. Dep’t of State Health Servs., Texas Case Counts: COVID-19 (last updated Mar. 24, 2020), https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01 e8b9cafc8b83.
21 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.
22 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html
23 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/ 2020/03/19/health/coronavirus-masks-shortage.html.
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Governor Abbott issued a disaster declaration certifying that COVID-19 poses an imminent threat of disaster for all counties in Texas.
47. On March 18, 2020, a group of preeminent national medical organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak.”24 That guidance instructs that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
48. On March 19, 2020, the Texas Department of State Health Services (“DSHS”) determined that COVID-19 constitutes a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code.
49. On March 21, 2020, the Texas Medical Board (“TMB”) issued guidance to its licensees—all physicians licensed in the state of Texas—regarding the scheduling of elective surgeries and procedures in light of Governor Abbott’s COVID-19 disaster declaration. Consistent with guidance from the Centers for Disease Control and Prevention (“CDC”), TMB recommended that licensees “postpone all non-urgent elective surgeries and procedures in inpatient and outpatient settings.”25 TMB explained that postponing non-urgent elective cases would preserve PPE, ventilator availability, ICU beds, and “significant healthcare practitioner time.”
24 The medical organizations issuing this joint guidance were ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine.
25 Tex. Med. Bd., Texas Medical Board (TMB) Guidance on the Scheduling of Non-Urgent Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic
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50. As further guidance, TMB clarified that “elective, non-urgent cases” are cases where “there is no anticipated short-term nor long-term negative impact because of delaying a procedure or surgery,” such as “screening for a chronic condition or most cosmetic procedures.” By contrast, TMB defined “urgent or elective urgent” procedures as those where “there is a risk of patient deterioration or disease progression likely to occur if the procedure is not undertaken or is significantly delayed.” Significantly, TMB stressed that for these cases, “[t]he resulting decline in [the patient’s] health could make them more vulnerable to COVID-19 and other issues.” TMB categorized as “emergent” those cases where the patient would suffer a life-threatening condition if the procedure were not undertaken or cases that cannot be safely delayed for any significant period of time.
51. Plaintiffs are committed to responding to the current public health crisis, including by preserving much-needed medical resources that are in short supply during the pandemic. Since the onset of the COVID-19 outbreak Plaintiffs have taken precautions to maximize the safety of their patients and staff and to conserve PPE. For example, they have begun screening patients for COVID-19 symptoms before each visit. They have reduced patient volume and/or increased appointment spacing between patients to comply with social-distancing precautions. They have begun requiring patients to wait in their cars rather than in the waiting room after checking in for an appointment. They have postponed or cancelled non-essential procedures that require health care staff to use PPE, such as masks. For procedural abortions and other essential medical procedures, they have reduced use of PPE as much as possible.
52. Plaintiffs do not provide inpatient care and are not equipped to do so.
(Mar. 21, 2020), available at http://www.tmb.state.tx.us/idl/058631962EC6-BE0E-3036-910D363B6C25.
15

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53. Abortion does not require extensive use of PPE. Providing patients with pills for medication abortion does not require the use of any PPE.
54. While clinicians use some PPE for procedural abortion—such as gloves, a surgical mask, and protective eyewear—only a small number of health care staff are physically present for these procedures or their preparation/recovery and therefore in need of PPE. Plaintiffs generally do not use N95 respirators, the PPE in shortest supply during the COVID-19 pandemic, and only do so to protect patients and staff from potential COVID-19 transmission. In Plaintiffs’ communities there does not appear to be a shortage of the non-sterile gloves Plaintiffs use for procedural abortions and exams.26
55. The COVID-19 pandemic and its fallout do not reduce patients’ needs for abortion; if anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care.
56. While much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as
26 U.S. Food & Drug Admin., Medical Glove Conservation Strategies: Letter to Health Care Providers (last updated Mar. 20, 2020), available at https://www.fda.gov/medicaldevices/letters-health-care-providers/medical-glove-conservation-strategies-letter-health-careproviders (referring to a potential shortage but that the FDA is monitoring for any widespread shortages); U.S. Food & Drug Admin., FAQs on Shortages of Medical Gloves (last updated Mar. 20, 2020), available at https://www.fda.gov/medical-devices/personal-protective-equipmentinfection-control/faqs-shortages-medical-gloves (not noting a shortage of medical gloves at this time, but acknowledging demand could exceed supply, which the FDA is monitoring).
16

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influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population
for COVID-19.”27
57. Meanwhile, Texas legal restrictions on abortion, which are some of the harshest in
the country, impose burdens that weigh even more heavily during the current pandemic and that
also undermine Defendants’ stated goal of preserving PPE. For example, Texas law requires most
patients to make at least two in-person appointments for an abortion, even though most patients
could obtain care just as safely in one visit.28 Texas law also mandates medically unnecessary
ultrasounds,29 as well as in-person follow-up visits that could safely be provided through
telemedicine.30 Texas law unnecessarily restricts medication abortion to ten weeks when it can
safely be provided through eleven weeks, thereby eliminating an evidence-based method to reduce
the need for abortion by procedure.31 And minor patients, unless emancipated, must obtain either
written consent from a parent or a judicial order before they can receive care.32 During the COVID-
19 pandemic, patients must navigate these barriers against the backdrop of job insecurity, minimal
27 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
28 Tex. Health & Safety Code § 171.012 (mandating that patients receive an ultrasound at least twenty-four hours before an abortion procedure).
29 Id. 30 Tex. Health & Safety Code § 171.063(e); 25 Tex. Admin Code § 139.53(b)(4). Indeed, to respond to the pandemic, the state has suspended restrictions on telemedicine generally, 28 Tex. Admin. Code § 35.1 (emergency regulation adopted Mar. 17, 2020); Tex. Med. Bd., Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Telemedicine During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 19, 2020), http://www.tmb.state.tx.us/ idl/A2936385-466D-15D1-0F9E-F486D0491A27, and could suspend the existing restrictions barring Plaintiffs from using telemedicine to provide medication abortion and post-abortion follow-up care. Tex. Occ. Code § 111.005(c); Tex. Health & Safety Code § 171.063(e); 25 Tex. Admin Code § 139.53(b)(4). 31 Tex. Health & Safety Code § 171.063(a)(2) 32 Tex. Family Code § 33.003.
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public transit availability, and limited childcare assistance due to mandatory social-distancing and shelter-in-place orders.
58. In addition to all other harms, the pandemic has caused layoffs and other work disruptions, and has shuttered schools and childcare facilities. Unemployment claims are soaring.33 People who receive health insurance through their employers are being laid off and left without insurance coverage for themselves and their families. Other workers are remaining on the job despite symptoms and increasingly dire public health warnings, fearing the loss of work even more than the disease.
59. As trusted healthcare providers, Plaintiffs understand their responsibility to be there when their patients need them most. C. The Governor’s and Attorney General’s Threats to Abortion Access
60. On March 22, 2020, Governor Abbott issued Executive Order GA 09, barring “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.” The Order states that it is responding to the fact that “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,” and it exempts “any procedure that, if performed in accordance with the commonly accepted standard
33 Chris Costa, Texas Workforce Commission encourages employers to use 'Shared Work' program instead of layoffs due to COVID-19, KHOU.com (last updated March 22, 2020), https://www.khou.com/article/news/health/coronavirus/texas-workforce-commissionencourages-employers-to-use-shared-work-program-instead-of-layoffs-due-to-covid-19/285cdd5527b-7764-4806-af5d-9509f660ef9d (“The Texas Workforce Commission was overwhelmed by thousands of Texans are applying for unemployment benefits because of layoffs and reduced hours due to COVID-19.”).
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of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” See Ex. B.
61. Although the order does not define “personal protective equipment,” Plaintiffs understand that term to refer to, for example, surgical masks, sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. Plaintiffs also understand that term to refer to N95 respirators.
62. Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. See Ex. B. These criminal penalties may in turn trigger administrative enforcement by the Texas Health and Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing, which are authorized to pursue disciplinary action against licensees who violate criminal laws.34
63. To implement the Executive Order, Plaintiffs promptly developed internal policies identifying the relevant factors physicians must consider when making a determination whether a procedure would be permissible under the Order. Those considerations included not only the text of the Order itself, but also the guidance of trusted national medical organizations, which highlight that abortion is a time-sensitive procedure for which delay would cause harm to the patient.
64. On March 23, 2020, the Texas Attorney General issued a press release titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 Pandemic.” This press release singled out abortion providers multiple times. It suggested that the Attorney General interprets the Executive Order, contrary to its plain language, as prohibiting the
34 25 Tex. Admin. Code § 139.32(b)(6); 25 Tex. Admin. Code § 135.24(a)(1)(F); Tex. Occ. Code § 164.051(a)(2)(B), (a)(6); 22 Tex. Admin. Code § 185.17(11); Tex. Occ. Code Ann. § 301.452(b)(3), (B)(10).
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provision of non-emergency abortions and warned that “[t]hose who violate the governor’s order will be met with the full force of the law.” See Ex. A.
65. Because medication abortion involves only taking medications by mouth it is not a “surgery” or “procedure” that falls within the terms of the Executive Order. However, by stating that the Executive Order applies to “any type of abortion,” the Attorney General’s news release suggests that the Attorney General interprets the Executive Order contrary to its plain language as prohibiting medication abortion. See id. (emphasis added).
66. On March 24, 2020, the TMB adopted an emergency rule to enforce the Executive Order. Under preexisting law, the TMB can temporarily suspend or restrict a physician’s license if the physician’s “continuation in practice would constitute a continuing threat to the public welfare.”35 The Emergency Rule expands this basis for discipline to include “performance of a non-urgent elective surgery or procedure,” and incorporates the terms of the Executive Order, requiring all licensed health care professionals to postpone all surgeries and procedures that are not immediately necessary.36
67. If the Executive Order is enforced, as interpreted by the Attorney General (contrary to its plain language), to apply to both procedural abortion and medication abortion, it effectively bans abortion in Texas for the duration of the COVID-19 public health emergency. Given the enforcement threat sparked by the Attorney General’s press release and the criminal and other penalties specified in the Executive Order, Plaintiffs, their physicians, nurses, and staff have been and will continue to be forced to cancel scheduled appointments. They must stop providing all
35 22 Tex. Admin. Code § 187.57(b). 36 22 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020), available at https://tinyurl.com/v4pz99u.
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non-emergency abortion care that uses PPE or subject themselves to risk of criminal prosecution or other penalties.
68. If the Executive Order is understood (consistent with its plain language) as not applying to medication abortion, which is provided through medications by mouth and not a “procedure,” it will still effectively outlaw abortion after ten weeks of pregnancy. This interpretation of the Executive Order, allowing medication abortion but not procedural abortion, still operates as a ban for those patients who would otherwise obtain a procedural abortion—that is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate.
69. Under either interpretation, the Executive Order will deprive Plaintiffs’ patients of the freedom to make a very personal decision in consultation with their medical providers, which is all the more weighty given the increased health risks to pregnant persons during the COVID-19 pandemic. It will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families. Patients’ abortions will be delayed, and in some cases, denied altogether. As a result, Texas patients will be forced to carry pregnancies to term, resulting in a deprivation of their fundamental right to determine when and whether to have a child or to add to their existing families.
70. If a person is forced to continue a pregnancy against their will, particularly during a global pandemic, it can pose a risk to their physical, mental, and emotional health, as well as to the stability and wellbeing of their family, including their existing children. Pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence. And research has found that women denied an abortion were four times more likely than women who received an abortion to experience
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economic hardship and insecurity lasting for years, with serious consequences for those women and their families. As a result of the COVID-19 pandemic, unemployment rates are soaring, meaning that families are losing not only their income but in many cases their employer-provided health insurance; the medical and economic hardships of pregnancy and childrearing, for many families, is thus more acute now than ever.
71. Delaying abortion poses risks to patients, too. Although abortion is significantly safer than continuing pregnancy through childbirth, the risks associated with abortion increase as pregnancy advances. And carrying an unwanted pregnancy burdens patients physically, emotionally, psychologically, and financially. Finally, in Texas, as in many other states, legal restrictions make abortion harder to access with each passing week—and almost entirely unlawful at or after twenty-two weeks LMP. As ACOG and other well-respected medical professional organizations have observed, abortion is “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”37 For these reasons, abortion is an especially urgent medical treatment during the COVID-19 pandemic.
72. Patients generally seek abortion as soon as they are able, but many face financial and logistical obstacles that can delay their access to abortion. For example, low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work. Many patients must also arrange and pay for childcare while they travel to their abortion
37 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion -access-during-the-covid-19-outbreak.
22

Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 23 of 26
appointment. These barriers routinely delay abortion access for people with low incomes, including delay past the point in pregnancy when medication abortion is no longer available, and for some, to the point that a more complex, two-day procedure is required. Although abortion is safe throughout pregnancy, the risk, complexity, duration, and thus cost increase as pregnancy progresses. As a result, patients who are delayed in obtaining care as they save money for the procedure may find that even more money is needed for the delayed procedure, necessitating even more delay.
73. The Executive Order will remain in force until April 21, 2020, at the earliest. It is subject to extension for the duration of the coronavirus pandemic, which experts believe will last at least one year to eighteen months, if not more.38 The current shortage of PPE is expected to continue for months.39 As a result, the Attorney General’s interpretation of the Executive Order threatens to ban abortion for all Texans who are currently pregnant or who will become pregnant in the coming months.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 74. Plaintiffs reallege and incorporate by reference the allegations contained above. 75. By banning all non-emergency abortion prior to viability, or alternatively by banning non-emergency abortion after ten weeks of pregnancy and allowing no exception for patients prior to ten weeks of pregnancy for whom medication abortion is contraindicated, the
38 See Grady, supra note 21. 39 Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/healthcare-supply-ppe.html
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Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 24 of 26
Executive Order and corresponding Attorney General interpretation and the Emergency Rule, as applied to abortion, violate the right to substantive due process.
76. Unless enjoined, the Executive Order and corresponding Attorney General interpretation and the Emergency Rule will subject Plaintiffs’ patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
COUNT 2 (Equal Protection) 77. Plaintiffs reallege and incorporate by reference the allegations contained above. 78. By selectively burdening patients’ fundamental right to abortion without justification and singling abortion providers and their patients out for differential treatment from providers of other medical services and their patients, the Executive Order and corresponding Attorney General interpretation and the Emergency Rule, as enforced, violate Texans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution. 79. Unless enjoined, the Executive Order and corresponding Attorney General interpretation and the Emergency Rule will subject Plaintiffs and their patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, medical, emotional, and other harm. REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order, followed by a preliminary injunction, and ultimately a permanent injunction, restraining Defendants, their officers, agents,
24

Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 25 of 26
servants, employees, and attorneys, and any persons in active concert or participation with them,
from enforcing or complying with the Executive Order and corresponding Attorney General
interpretation and the Emergency Rule, as applied to abortion;
B. To enter a judgment declaring that the Executive Order and corresponding Attorney
General interpretation and Emergency Rule, as applied to abortion, violate the Fourteenth
Amendment to the U.S. Constitution;
C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988,
and
D. To grant such other and further relief as the Court deems just and proper.
Dated: March 25, 2020
Respectfully submitted,
/s/ Patrick J. O’Connell Patrick J. O’Connell Texas Bar No. 15179900 Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for Plaintiffs
Julie Murray (pro hac vice pending) Alice Clapman (pro hac vice pending) Richard Muniz (pro hac vice pending) Hannah Swanson (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org alice.clapman@ppfa.org richard.muniz@ppfa.org
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Case 1:20-cv-00323-LY Document 1 Filed 03/25/20 Page 26 of 26
hannah.swanson@ppfa.org
Jennifer Sandman (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
Molly Duane (pro hac vice pending) Rabia Muqaddam (pro hac vice pending) Francesca Cocuzza (pro hac vice pending) CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Attorneys for Plaintiffs Southwestern Women’s Surgery Center and Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center
Stephanie Toti Rupali Sharma (pro hac vice pending) Sneha Shah (pro hac vice pending) LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org
Attorneys for Plaintiffs Whole Woman’s Health and Whole Woman’s Health Alliance
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EXHIBIT A

Case 1:20-cv-00323-LY Document 1-1 Filed 03/25/20 Page 2 of 4

(https://www.texasattorneygeneral.gov/)

Menu

March 23, 2020
Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic

Texas Attorney General Ken Paxton today warned all licensed health care professionals and all licensed health care facilities, including abortion providers, that, pursuant to Executive Order GA 09 issued by Gov. Greg Abbott, they must postpone all surgeries and procedures that are not immediately medically necessary.

Case 1:20-cv-00323-LY Document 1-1 Filed 03/25/20 Page 3 of 4
On Saturday, Gov. Abbott issued an executive order that “all 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.” This prohibition applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.
The COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus. Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals. Failure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.

Case 1:20-cv-00323-LY Document 1-1 Filed 03/25/20 Page 4 of 4
“We must work together as Texans to stop the spread of COVID-19 and ensure that our health care professionals and facilities have all the resources they need to ght the virus at this time,” said Attorney General Paxton. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
For information on the spread or treatment of Coronavirus (COVID-19), please visit the Texas Department of State Health Services (https://dshs.texas.gov/coronavirus/) website.

Case 1:20-cv-00323-LY Document 1-2 Filed 03/25/20 Page 1 of 4
EXHIBIT B

Case 1:20-cv-00323-LY Document 1-2 Filed 03/25/20 Page 2 of 4

GOVERNOR GREG ABBOTT

March 22, 2020

FILED IN THE OFFICE OF THE
SEC4R;E3TARYOOCFLSOTACTKE

The Honorable Ruth R. Hughs Secretary of State State Capitol Room 1E.8 Austin, Texas 78701

Secretary of State

Dear Secretary Hughs:

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:

Executive Order No. GA-09 relating to hospital capacity during the COVID-19 disaster.

The original executive order is attached to this letter of transmittal.

Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VoICE) DIAL 7-1-1 FOR RELAY SERVICES

Case 1:20-cv-00323-LY Document 1-2 Filed 03/25/20 Page 3 of 4

3xrcuMir Irrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas March 22, 2020
EXECUTIVE ORDER GAO9
Relating to hospital capacity during the COVID-19 disaster.

WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.0 14 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, the Texas Department of State Health Services has determined that, as of March 19, 2020, COVID- 19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, on March 19, 2020, I issued an executive order in accordance with the President’s Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC), and mandated certain obligations for Texans that are aimed at slowing the spread of COVID-19; and
WHEREAS, a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster; and
WHEREAS, 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, contrary to recommendations from the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services; and
WHEREAS, various hospital licensing requirements would stand in the way of implementing increased occupancy in the event of surge needs for hospital capacity due to COVLD-19; and
WHEREAS, the “governor is responsible for meeting... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, under Section 418.0 12, the “governor may issue executive orders... hav[ing] the force and effect of law;” and
WHEREAS, under Section 418.0 16(a), the “governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster;” and

FILED IN THE OFFICE SECRETARY OF ST

E

—fI..O’CLOCK

MAR 2 2 2020

Case 1:20-cv-00323-LY Document 1-2 Filed 03/25/20 Page 4 of 4

Governor Greg Abbott March 22, 2020

Executive Order GA-09 Page 2

WHEREAS, under Section 4 18.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.

NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order that, beginning now and continuing until 11:59 p.m. on April 21, 2020, all 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;

PROVIDED, however, that this prohibition 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.

At the request of the Texas Health and Human Services Commission, I hereby suspend the following provisions to the extent necessary to implement increased occupancy in the event of surge needs for hospital capacity due to COVTD-19:

25 TAC Sec. 133.1 62(d)(4)(A)(iii)(I); 25 TAC Sec. 133. 163(O( 1)(A)(i)(fl)—(ffl); 25 TAC Sec. 133.1 63(fl( 1)(B)(i)(ffl)—(W); 25 TAC Sec. 133.163(m)(1)(B)(ii); 25 TAC Sec. 133. 163(t)(1)(B)(iii)—(iv); 25 TAC Sec. 133.163(t)(1)(C); 25 TAC Sec. 133.163(t)(5)(B)—(C); and any other pertinent regulations or statutes, upon written approval of the Office of the Governor.

This executive order shall remain in effect and in full force until 11:59 p.m. on April 21, 2020,

unless it is molif ‘ -

rescinded, or superseded by me or by a succeeding governor.

Given under my hand this the 22nd day of March, 2020.

GREG ABBOTT Governor

RIJTH R. HUGHS Secretary of State

FILED IN THE

C!

SECRETARY OF TAi

4
=

O’CLOCK

MAR 2 2 2020

Case 1:20-cv-00323-LY Document 1-3 Filed 03/25/20 Page 1 of 3
EXHIBIT C

Case 1:20-cv-00323-LY Document 1-3 Filed 03/25/20 Page 2 of 3

Texas Register

TITLE 22

EXAMINING BOARDS

PART 9

TEXAS MEDICAL BOARD

CHAPTER 187 PROCEDURAL RULES

SUBCHAPTER F TEMPORARY SUSPENSION AND RESTRICTION PROCEEDINGS

RULE §187.57 Charge of the Disciplinary Panel

ISSUE

04/03/2020

ACTION

Emergency

Preamble

Texas Admin Code Rule

(a)The disciplinary panel shall determine from the evidence or information presented to it whether a person's continuation in practice constitutes a continuing threat to the public welfare.
(b)If the disciplinary panel determines that a person's continuation in practice would constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person.
(c)In accordance with the Act, §151.002(a)(2), "continuing threat to the public welfare," means a real danger to the health of a physician's patients or the public caused through the physician's lack of competence, impaired status, performance of a non-urgent elective surgery or procedure, or failure to care adequately for the physician's patients. A real danger exists if patients have an exposure to or risk of injury that is not merely abstract, hypothetical or remote and is based on actual actions or inactions of the physician. Information that the physician has committed similar actions or inactions in the past shall be considered by the disciplinary panel.
(1)For purposes of this rule all licensed health care professionals 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.
(2)Provided, however, that this prohibition 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.
(d)The disciplinary panel may also temporarily restrict or suspend a license of a person upon proof that a person has been arrested for an offense under:
(1)Section 22.011(a)(2), Penal Code (sexual assault of a child);
(2)Section 22.021(a)(1)(B), Penal Code (aggravated sexual assault of a child);
(3)Section 21.02, Penal Code (continuous sexual abuse of a young child or children); or
(4)Section 21.11, Penal Code (indecency with a child).
The agency certiﬁes that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.
Filed with the Ofﬁce of the Secretary of State on March 23, 2020

Case 1:20-cv-00323-LY Document 1-3 Filed 03/25/20 Page 3 of 3 TRD-202001217 Scott Freshour General Counsel Texas Medical Board Effective date: March 23, 2020 Expiration date: July 20, 2020 For further information, please call: (512) 305-7016

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 Case 1:20-cv-00323-LY Document 7 Filed 03/25/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT
Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Planned Parenthood Center for Choice (“PP Houston”), Planned Parenthood of Greater Texas Surgical Health Services (“PPGT Surgical Health Services”), Planned Parenthood South Texas Surgical Center (“PPST Surgical Center”), Whole Woman’s Health, Whole Woman’s Health Alliance, Southwestern Women’s Surgery Center (“Southwestern”), Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center (“Austin Women’s”), and Dr. Robin Wallace, M.D. move for a temporary restraining order, followed by a preliminary injunction, to enjoin Defendants’ efforts to immediately ban most abortion procedures during the COVID-19 pandemic through their application of Governor Greg Abbott’s March 22, 2020, Executive Order GA 09, “Relating to hospital capacity during the COVID-19 disaster” and the Texas Medical

Case 1:20-cv-00323-LY Document 7 Filed 03/25/20 Page 2 of 31
Board’s (“TMB”) emergency amendment to 22 Tex. Admin. Code § 187.57 (“Emergency Rule”), which imposes the same requirements as Executive Order GA 09.1
As the American College of Obstetricians and Gynecologists (“ACOG”) has recognized, abortion care is essential care because it cannot be delayed without risking the health and safety of the patient.2 Accordingly, Plaintiffs’ provision of this care is entirely consistent with the Governor’s Executive Order, which bars all “surgeries and procedures” in Texas that are “not immediately medically necessary” during the coronavirus disease 2019 (COVID-19) outbreak (“Executive Order”) (attached as Ex. B to Compl. for Injunctive & Declaratory Relief, ECF No. 1 (“Compl.”)).
However, on March 23, 2020, Texas Attorney General Ken Paxton issued a news release singling out abortion providers, suggesting that continuing to provide most abortions (other than those performed in an immediate medical emergency) would violate the Executive Order, and noting that “[t]hose who violate the governor’s order will be met with the full force of the law.” Ken Paxton, Attorney Gen. of Tex., Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to
1 On March 24, 2020, the TMB adopted an emergency rule to enforce the Executive Order. Under preexisting law, the TMB can temporarily suspend or restrict a physician’s license if the physician’s “continuation in practice would constitute a continuing threat to the public welfare.” 22 TAC § 187.57(b). The Emergency Rule expands this basis for discipline to include “performance of a non-urgent elective surgery or procedure.” 22 Tex. Admin. Code §187.57 (emergency regulation adopted Mar. 23, 2020), available at https://tinyurl.com/v4pz99u (attached as Ex. C to Compl.). Because the Emergency Rule contains the same requirement to postpone surgeries and procedures that are not immediately necessary, see id., Plaintiffs discuss the Emergency Rule together with the Executive Order above and throughout.
2 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
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Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020) (attached as Ex. A to Compl.).3 By stating that the Executive Order applies to “any type of abortion,” the Attorney General’s news release suggests the Attorney General interprets the Executive Order as limiting even the provision of medication abortion, which involves only taking medications by mouth and is not “surgery” or a “procedure” that falls within the terms of the Executive Order. See id (emphasis added).
During the COVID-19 outbreak, Plaintiffs—like all healthcare providers—have an important role to play in serving their communities, including by preserving much-needed medical resources that are in short supply during the pandemic and taking steps to reduce the transmission and spread of COVID-19, while continuing to provide essential healthcare services. They are doing their part by stopping all non-essential procedures that require health care staff to use personal protective equipment (“PPE”), such as sterile and non-sterile gloves and masks, and by reducing as much as possible the use of PPE during procedural abortions and other essential medical procedures that they intend to continue to provide in keeping with the terms and purpose of the Executive Order.
Given the Attorney General’s aggressive threats of criminal liability, however, Plaintiffs have been forced to cancel numerous medication abortion and procedural abortion appointments this week and will be forced to cancel hundreds of future appointments, throwing abortion access in the state into disarray. The State’s actions violate nearly five decades of Supreme Court precedent that categorically prohibits states from banning abortion before viability, and they are, therefore, unconstitutional.4 Absent an order from this Court, Plaintiffs’ patients will be denied
3 Available at https://www.texasattorneygeneral.gov/news/releases/health-careprofessionals-and-facilities-including-abortion-providers-must-immediately-stop-all.
4 At minimum, even if the Executive Order does not apply to medication abortion, on the Attorney General’s interpretation it bans abortions after the ten-week cutoff for medication abortion.
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their right to access safe and legal previability abortion in Texas and be forced to carry pregnancies to term against their will amidst a health system overburdened by responding to COVID-19. Accordingly, Plaintiffs seek to restrain and preliminarily enjoin Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them from enforcing or complying with the Attorney General’s interpretation of the Executive Order to prohibit abortion procedures.
STATEMENT OF FACTS A. The Governor’s Executive Order
In March 2020, the United States declared a state of emergency and the State of Texas declared a state of disaster related to the COVID-19 pandemic. See Executive Order at 2; Proclamation by the Governor of the State of Texas (Mar. 13, 2020)5; Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). The virus has reached every state in the country, with nearly 1,000 confirmed cases in Texas and twelve deaths at the time of this filing.6 Federal and state 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,7 particularly N95 masks.8
5 Available at https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_ proclamation_IMAGE_03-13-2020.pdf.
6 Ctrs. for Disease Control & Prevention, Cases in U.S. (last updated Mar. 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html; Tex. Dep’t of State Health Servs., Texas Case Counts: COVID-19 (last updated Mar. 25, 2020), https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc 8b83.
7 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html.
8 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times, Mar. 19, 2020, https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html.
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In light of this new reality, on March 22, 2020, Governor Greg Abbott issued an executive order barring “all surgeries and procedures that are not immediately medically necessary,” effective immediately. Executive Order at 3.9 By way of justification, the Executive Order states that “a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster” and “hospital capacity and personal protective equipment are being depleted by surgeries and procedures that are not medically necessary” Id. at 2. Although the Executive Order does not define “personal protective equipment,” Plaintiffs understand that term to refer, for example, to N95 masks, surgical masks, non-sterile and sterile gloves, disposable protective eyewear, disposable gowns, hair covers, and shoe covers, which are commonly used in surgical procedures, including—for some types of PPE—procedural abortions. Decl. of Polin C. Barraza in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Barraza Decl.”) ¶ 7, attached hereto as Ex. 1; Decl. of Alicia Dewitt-Dick in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Dewitt-Dick Decl.”) ¶¶ 6, 19, attached hereto as Ex. 2; Decl. of Andrea Ferrigno in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Ferrigno Decl.”) ¶¶ 10, 21, attached hereto as Ex. 3; Decl. of Amy Hagstrom-Miller in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Hagstrom-Miller Decl.”) ¶¶ 13, 22, attached hereto as Ex. 4; Decl. of Jessica Klier in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Klier Decl.”) ¶¶ 6, 11, attached hereto as Ex. 5; Decl. of Ken Lambrecht in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Lambrecht Decl.”) ¶¶ 7, 12, attached hereto as Ex. 6; Decl. of Ann Schutt-Aine, M.D. in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Schutt-Aine Decl.”) ¶¶ 8, 25, attached hereto as Ex.
9 The Executive Order cites as its authority section 418.012, which allows the Governor to issue Executive Orders with the “force and effect of law,” and section 418.061(a), which permits the Governor to “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” Executive Order at 2 (citing Tex. Gov’t Code §§ 418.012, 418.016(a)).
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7; Decl. of Pl. Robin Wallace, M.D. in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Wallace Decl.”) ¶¶ 7, 12, attached hereto as Ex. 8.
In full, the Executive Order describes the care covered by the Executive Order as 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. Executive Order at 3. The Executive Order does not define “serious medical condition” or “serious adverse medical consequences.” It further states that procedures that “would not deplete the . . . personal protective equipment needed to cope with the COVID-19 disaster” are exempt from the order. Id. The Executive Order remains in effect until 11:59 PM on April 21, 2020, at the earliest, or until Governor Abbott rescinds or modifies it. Id. Federal officials and medical professionals expect the pandemic to last for a year or eighteen months.10 The current shortage of PPE is expected to continue for the next three or four months.11 Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. Executive Order at 3 (citing Tex. Gov’t Code § 418.173). These criminal penalties may in turn trigger administrative enforcement by the Texas Health and Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing, which are authorized to pursue disciplinary action against licensees who violate criminal laws.12
10 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times, Mar. 8, 2020, https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.
11 Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ healthcare-supply-ppe.html; see also, 22 Tex. Admin. Code § 187.57 (TMB emergency regulation does not expire until July 20, 2020).
12 25 Tex. Admin. Code §§ 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); Tex. Occ. Code Ann. §§ 164.051(a)(2)(B), (a)(6); 301.452(b)(3), (B)(10).
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B. Abortion in Texas Individuals seek abortion for a multitude of personal and often complex reasons. By way
of example, some patients have abortions because they conclude that it is not the right time to become a parent or have additional children, they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or stability. Ferrigno Decl. ¶ 32; Hagstrom-Miller Decl. ¶ 30; Schutt-Aine Decl. ¶ 20. Other patients seek abortions because continuing with the pregnancy could pose a greater risk to their health. SchuttAine Decl. ¶ 20.
There are two main methods of abortion: medication abortion and procedural abortion. Schutt-Aine Decl. ¶ 12. Both methods are equally effective in terminating a pregnancy. SchuttAine Decl. ¶ 12. Medication abortion involves the patient ingesting a combination of two pills: mifepristone and misoprostol. Schutt-Aine Decl. ¶ 13. The patient takes the mifepristone in the health center and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Schutt-Aine Decl. ¶ 13. Although medication abortion is safe and effective through eleven weeks as measured from the first day of a pregnant person’s last menstrual period (“LMP”), Texas law restricts this method to the first ten weeks LMP.13 Plaintiffs provide medication abortion to that ten-week limit.
Despite sometimes being referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Schutt-Aine Decl. ¶ 16. In the procedural abortion known as
13 Texas Health and Safety Code section 171.063 restricts the first drug to the limit on the federally approved label, which is ten weeks. See U.S. Food & Drug Admin., Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarketdrug-safety-information-patients-and-providers/mifeprex-mifepristone-information.
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aspiration, the clinician uses gentle suction from a narrow, flexible tube to empty the contents of the patient’s uterus. Schutt-Aine Decl. ¶ 16. Before inserting the tube through the patient’s cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, expandable rods. Beginning around fifteen weeks LMP, clinicians generally must use instruments to complete the procedure, a technique called dilation and evacuation (“D&E”). Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself. Schutt-Aine Decl. ¶ 16. For some patients, medication abortion is contraindicated or there are other factors that would necessitate a procedural abortion, such as when the patient has an allergy to the medications or other medical conditions that make procedural abortion relatively safer. Schutt-Aine Decl. ¶ 17. Plaintiffs provide procedural abortion in both the first and second trimester. Texas law prohibits abortion care except in narrow circumstances at or after twenty-two weeks LMP. See Tex. Health & Safety Code § 171.044.14
Neither method of abortion requires extensive PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. Barraza Decl. ¶ 7; Dewitt-Dick Decl. ¶ 19; Ferrigno Decl. ¶ 10; Hagstrom-Miller Decl. ¶ 13; Lambrecht Decl. ¶ 12; Klier Decl. ¶ 11; Schutt-Aine Decl. ¶ 25; Wallace Decl. ¶ 12. For procedural abortion, providers use PPE such as gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, hair covers, and shoe covers. Barraza Decl. ¶ 7; Dewitt-Dick Decl. ¶ 19; Ferrigno Decl. ¶¶ 10, 12; Hagstrom-Miller Decl. ¶¶ 13, 15; Klier Decl. ¶ 11; Lambrecht Decl. ¶ 12; Schutt-Aine
14 This provision prohibits abortion when “the probable post-fertilization age of the unborn child is 20 or more weeks.” Tex. Health & Safety Code § 171.044. “Post-fertilization age” means “the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum,” id. § 171.042, which occurs approximately two weeks after the first day of a patient’s last menstrual period. Thus, twenty weeks post-fertilization is twenty-two weeks LMP.
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Decl. ¶ 25; Wallace Decl. ¶ 12.15 Most Plaintiffs do not have N95 masks, and those that do have
only a small supply that they rarely, if ever, use. (Out of all of Plaintiffs’ facilities and physicians,
only one physician has used an N95 mask since the beginning of the COVID-19 pandemic and
that physician has been reusing the same single mask as an extra precaution during all patient
interactions.) Barraza Decl. ¶ 8; Ferrigno Decl. ¶ 13; Hagstrom-Miller Decl. ¶ 16; Klier Decl. ¶ 6;
Lambrecht Decl. ¶ 12; Schutt-Aine Decl. ¶ 27. Plaintiffs could further conserve PPE during the
pandemic were Defendants willing to waive medically unnecessary abortion restrictions such as
mandated extra in-person visits prior to the abortion, the unnecessary gestational age limit for
medication abortion, ultrasound requirements, and in-person follow-up requirements.16
Patients generally seek abortion as soon as they are able, but many face logistical obstacles
that can delay access to abortion care. Decl. of Kamyon Conner in Supp. of Pls.’ Mot. for TRO &
Prelim. Inj. (“Conner Decl.”) ¶ 5, attached hereto as Ex. 9; Dewitt-Dick Decl. ¶ 22; Schutt-Aine
Decl. ¶ 23. Patients will need to schedule an appointment, gather the resources to pay for the
abortion and related costs, Conner Decl. ¶ 5; Dewitt-Dick Decl. ¶ 22; Schutt-Aine Decl. ¶ 23, and
15 Gloves are typically needed for any transvaginal ultrasound or laboratory exam, but are not required for transabdominal ultrasounds. Per CDC guidance, Plaintiffs also provide patients for whom there is a concern for COVID-19 or other upper respiratory disease with a mask. Ctrs. for Disease Control & Prevention, Frequently Asked Questions about Personal Protective Equipment (Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq. html.
16 Temporarily lifting these restrictions to minimize unnecessary in-person visits would be consistent with Defendants’ general response to the pandemic. 28 Tex. Admin. Code § 35.1 (emergency regulation adopted Mar. 17, 2020) (suspending regulations related to telemedicine); Tex. Med. Bd., Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Telemedicine During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 19, 2020), http://www.tmb.state.tx.us/idl/A2936385-466D-15D1-0F9E-F486D0491A27 (same); Executive Order at 3 (suspending certain hospital regulations); Office of the Tex. Governor, Governor Abbott Takes Action to Expand Texas Hospital Capacity (Mar. 25, 2020), https://gov.texas.gov/ news/post/governor-abbott-takes-action-to-expand-texas-hospital-capacity (waiving certain requirements for hospitals, free-standing emergency medical facilities, and end-stage renal facilities).
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arrange transportation to a clinic, time off of work, and possibly childcare during appointments, often without any paid sick leave or other paid time off work. Conner Decl. ¶¶ 5, 11; Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 33; Schutt-Aine Decl. ¶ 23. Delays result in higher financial and emotional costs to the patient. Conner Decl. ¶¶ 5, 11; Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 34; Hagstrom-Miller Decl. ¶ 33; Schutt-Aine Decl. ¶ 23; Wallace Decl. ¶ 16.
Meanwhile, Texas legal restrictions on abortion, which are some of the harshest in the country, impose burdens that weigh even more heavily during the current pandemic and that also undermine Defendants’ stated goal of preserving PPE. For example, Texas law requires most patients to make at least two in-person appointments for an abortion, even though most patients could obtain care just as safely in one visit.17 Texas law also mandates medically unnecessary ultrasounds,18 as well as in-person follow-up visits that could safely be provided through telemedicine.19 Texas law unnecessarily restricts medication abortion to ten weeks when it can safely be provided through eleven weeks, thereby eliminating an evidence-based method to reduce the need for abortion by procedure.20 And minor patients, unless emancipated, must obtain either written consent from a parent or a judicial bypass order before they can receive care.21 During the COVID-19 pandemic, patients must navigate these barriers against the backdrop of job insecurity,
17 Tex. Health & Safety Code § 171.012 (mandating that patients receive an ultrasound at least twenty-four hours before an abortion procedure).
18 Id. 19 Tex. Health & Safety Code § 171.063(e), 25 Tex. Admin Code § 139.53(b)(4). Indeed, to respond to the pandemic, the state has suspended restrictions on telemedicine generally, 28 Tex. Admin. Code § 35.1 (emergency regulation adopted Mar. 17, 2020); Tex. Med. Bd., supra note 16, and could suspend the existing restrictions barring Plaintiffs from using telemedicine to provide medication abortion and post-abortion follow-up care. Tex. Occ. Code § 111.005(c); Tex. Health & Safety Code § 171.063(e), 25 Tex. Admin Code § 139.53(b)(4). 20 Tex. Health & Safety Code § 171.063(a)(2). 21 Tex. Family Code § 33.003.
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minimal public transit availability, and limited childcare assistance due to mandatory socialdistancing and shelter-in-place orders.
The window during which a patient can obtain an abortion in Texas is limited. Pregnancy is generally forty weeks in duration, and Texas prohibits abortion except in narrow circumstances after twenty-two weeks LMP. Ferrigno Decl. ¶ 35; Hagstrom-Miller Decl. ¶ 34; Schutt-Aine Decl. ¶ 21; Wallace Decl. ¶ 10. Although abortion is a very safe medical procedure, the health risks associated with it increase with gestational age. Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 36; Hagstrom-Miller Decl. ¶ 35; Schutt-Aine Decl. ¶ 22. As ACOG and other well-respected medical professional organizations have observed, specifically in relation to the COVID-19 pandemic, abortion “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”22
Indeed, while much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”23
The COVID-19 pandemic has exacerbated existing burdens on patients seeking abortion care. It has limited public transit availability, caused layoffs and other work disruptions, shuttered

22 ACOG et al., supra note 2.

23 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13,

2020),

https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/

novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for

Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.

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schools and childcare facilities, and otherwise limited patients’ options for transportation and
childcare support during a time of recommended social-distancing and shelter-in-place orders.24
Indeed, jobless claims are soaring due to the virus.25 Conner Decl. ¶¶ 8, 11; Dewitt-Dick Decl.
¶ 23; Ferrigno Decl. ¶ 33; Hagstrom-Miller Decl. ¶ 32; Schutt-Aine Decl. ¶ 24.
C. Plaintiffs’ Implementation of the Executive Order
Plaintiffs are committed to doing their part and following the Governor’s Executive Order
in an effort to “flatten the curve,” protect patients and staff, and minimize the use of PPE. Even
before the order, Plaintiffs had taken numerous steps in this direction by, for example, limiting the
number of individuals present for any procedure who would require PPE. Barraza Decl. ¶ 11;
Dewitt-Dick Decl. ¶¶ 9, 11; Klier Decl. ¶ 13; Lambrecht Decl. ¶ 15; Schutt-Aine Decl. ¶ 30;
Wallace Decl. ¶ 13.
Plaintiffs immediately prepared to comply with the Executive Order, for example adopting
policies identifying the numerous relevant factors to determine whether a procedure would be
24 Tex. Exec. Order No. GA-08 (Mar. 19, 2020) (closing Texas schools and discouraging Texans from participating in non-essential activities); Jacqulyn Powell, Will Child Care Centers Shut Down During COVID-19 Outbreak?, KXAN (Mar. 23, 2020), https://www.kxan.com/news/education/will-child-care-centers-shut-down-during-covid-19outbreak/ (saying that 2,400 child care operations in the state have reported closures); Metro. Transit Authority of Harris Cty., METRO Response to Coronavirus (COVID-19), https://www.ridemetro.org/Pages/Coronavirus.aspx (last visited Mar. 24, 2020) (noting a “sharp ridership decline,” reducing frequency of bus services, and reducing customer seating in Harris County); see also White House, The President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance _8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020) https://www.nbcnews.com/politics/ donald-trump/fauci-predicts-americans-will-likely-need-stay-home-least-several-n1164701.
25 See Matt Largey, COVID-19 Is Costing People Their Jobs. Here’s How to Apply for Unemployment in Texas, KUT 90.5, Mar. 19, 2020, https://www.kut.org/post/covid-19-costingpeople-their-jobs-heres-how-apply-unemployment-texas (Texas unemployment claims between March 15 and March 18 were eleven times higher than for the same period in 2019); Tex. Workforce Comm’n, TWC Extends Call Center Hours (Mar. 23, 2020), https://twc.texas.gov/news/twc-extends-call-center-hours (Texas Workforce Commission reporting that they have received “an unprecedented call volume as a result of COVID-19”).
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permissible under the Order. Barraza Decl. ¶ 3; Ferrigno Decl. ¶ 22; Hagstrom-Miller Decl. ¶ 23;
Klier Decl. ¶ 17; Lambrecht Decl. ¶ 8; Schutt-Aine Decl. ¶ 9. They did so while continuing to
make every effort to conserve PPE and to reduce the possibility of spread and transmission of
COVID-19. Barraza Decl. ¶¶ 11–13; Dewitt-Dick Decl. ¶¶ 10–13; Ferrigno Decl. ¶¶ 15–19;
Hagstrom-Miller Decl. ¶¶ 18–20; Klier Decl. ¶¶ 13–16; Lambrecht Decl. ¶¶ 15–16; Schutt-Aine
Decl. ¶¶ 30–31; Wallace Decl. ¶ 13.
Consistent with the Executive Order, Plaintiffs determined that abortion is a time-sensitive
service and an essential component of comprehensive care, for which a delay of thirty days or even
less increases the risks to patients, or makes abortion completely inaccessible, and that such delay
in accessing or inability to access an abortion exposes patients to risk of a serious adverse medical
consequence. In reaching this determination, Plaintiffs considered such facts and authorities as the
following:
● “The purpose and text of EO GA 09, namely: concern for ‘a shortage of hospital capacity or personal protective equipment’ that could ‘hinder efforts to cope with the COVID-19 disaster.’”
● “The stated 30-day duration of the delay, taking into account the Ambulatory Surgery Center Association’s ‘COVID-19: Guidance for ASCs for Necessary Surgery,’ issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, ‘including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.’”26
● “The fact that pregnancy has a duration of approximately forty weeks, as measured from the first day of a woman’s last menstrual period (LMP) and that most abortions are banned in Texas beginning at 20 weeks gestation [the equivalent of 22 weeks LMP]. Tex. Health & Safety Code § 171.044.”
26 See also Am. Surgical Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/ latestnewsresourcecenter/covid-19/covid-19-guidance (quoting Am. Coll. of Surgeons, COVID19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-19/information-for-surgeons/elective-surgery).
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● “The fact that, while abortion is an extremely safe medical procedure, delay increases the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018). Delay is of particular concern during the COVID-19 crisis, given guidance from the Centers for Disease Control (‘CDC’) and American College of Obstetricians and Gynecologists (‘ACOG’) that pregnant women may be at heightened risk of severe illness, morbidity, or mortality from viral respiratory infections such as COVID-19.”27
● “The Joint Statement by the American College of Obstetricians and Gynecologists (‘ACOG’), the American Association of Gynecologic Laparoscopists, et al., on Elective Surgeries,28 issued March 16, 2020, which states that ‘Obstetric and gynecologic procedures for which a delay will negatively affect patient health and safety should not be delayed. This includes gynecologic procedures and procedures related to pregnancy for which delay would harm patient health. Obstetrician–gynecologists and other health care practitioners should be aware of the unintended impact that policies responding to COVID19 may have, including limiting access to time-sensitive obstetric and gynecological procedures.’”
● “The Joint Statement by the ACOG, the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak,29 issued March 18, 2020, which states that to ‘the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure’ because it ‘is an essential component of comprehensive health care’ and ‘a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.’”
See, e.g., Ex. A to Barraza Decl. (PPST Surgical Center policy); Ferrigno Decl. ¶¶ 10–19;
Hagstrom-Miller Decl. ¶¶ 13–20; Ex. A to Lambrecht Decl. (PPGT Surgical Health Services
policy); Ex. B to Schutt-Aine Decl. (PP Houston policy); Klier Decl. ¶¶ 11–12; Dewitt-Dick Decl.
¶ 26; Wallace Decl. ¶¶ 11–14.
27 ACOG, Practice Advisory: Novel Coronavirus 2019 (COVID-19), supra note 23; Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women, supra note 23.
28 Am. Ass’n of Gynecologic Laparoscopists et al., Joint Statement on Elective Surgery During COVID-19 Pandemic (Mar. 16, 2020), https://www.aagl.org/news/joint-society-messageon-covid-19/.
29 ACOG et al., supra note 2.
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D. The Attorney General’s Threat to End Abortion Access and the Resulting Impact Late in the afternoon on March 23, 2020, Plaintiffs received word of the Texas Attorney
General’s press release suggesting that he believes continuing to provide any abortion care (other than for an immediate medical emergency) would violate the Executive Order, and warning that “[t]hose who violate the governor’s order will be met with the full force of the law.” Plaintiffs sought clarification from the Attorney General’s office as to whether he was interpreting the Executive Order to apply to medication abortion as well as procedural abortion. The office provided no such clarification.
If the Executive Order is enforced as interpreted by the Attorney General, it effectively bans almost all abortions in Texas for the duration of the COVID-19 public health emergency. Given the Attorney General’s enforcement threat and the serious criminal and other penalties specified in the Executive Order and Emergency Rule, Plaintiffs, their physicians, and staff have been forced to cancel scheduled appointments and to stop providing all abortion care (other than for an immediate medical emergency) that entails the use of PPE. Barraza Decl. ¶ 15; Dewitt-Dick Decl. ¶ 8; Ferrigno Decl. ¶ 28; Hagstrom-Miller Decl. ¶ 28; Klier Decl. ¶ 17; Lambrecht Decl. ¶ 18; Schutt-Aine Decl. ¶ 33; Wallace Decl. ¶ 15. Even if the Executive Order is understood (consistent with its plain language) not to apply to medication abortion, which is provided through medications by mouth and is not a “procedure,” it still operates as a previability ban for those patients who would otherwise obtain a procedural abortion—that is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate.
Under either interpretation, the Executive Order will deprive Plaintiffs’ patients of the freedom to make a very personal decision in consultation with their families and doctors, which is all the weightier given the increased health risks to pregnant persons during the COVID-19
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pandemic. Lambrecht Decl. ¶ 18; Schutt-Aine Decl. ¶¶ 10, 36. It will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families. Conner Decl. ¶ 9; DewittDick Decl. ¶ 28; Ferrigno Decl. ¶ 34; Hagstrom-Miller Decl. ¶ 33; Lambrecht Decl. ¶ 18; SchuttAine Decl. ¶ 36; Wallace Decl. ¶ 16. Without access to Plaintiffs’ services, patient care will be delayed, and in some cases, denied altogether. Barraza Decl. ¶ 15; Conner Decl. ¶¶ 9–11; DewittDick Decl. ¶ 8; Ferrigno Decl. ¶¶ 26–29, 34–35; Hagstrom-Miller Decl. ¶¶ 27–29, 33–34; Klier Decl. ¶¶ 17–18; Lambrecht Decl. ¶¶ 18–20; Schutt-Aine Decl. ¶¶ 33–39; Wallace Decl. ¶ 15. As a result, these patients will be forced to carry pregnancies to term, resulting in a deprivation of their fundamental right to determine when and whether to have a child or to add to their existing families, as well as in greater health and other risks to them and their children. Conner Decl. ¶ 11; Ferrigno Decl. ¶ 34; Hagstrom-Miller Decl. ¶ 33; Schutte-Aine Decl. ¶ 38; Wallace Decl. ¶ 16. Finally, by targeting abortion, the Executive Order is likely to increase the need for other pregnancy-related healthcare and attendant medical facilities, personnel, and PPE. Schutt-Aine Decl. ¶¶ 35–36.
ARGUMENT Plaintiffs seek a temporary restraining order, and thereafter, a preliminary injunction, to prevent the Attorney General’s enforcement threats and the Executive Order from inflicting harm on Plaintiffs’ patients who are unable to access abortion in Texas under the Executive Order as interpreted by the Attorney General. In ruling on such a motion, the Court considers four factors, all of which weigh heavily in Plaintiffs’ favor: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the injury to Plaintiffs outweighs any harm the injunction might cause Defendants; and (4) granting the injunction will not disserve the public interest. See, e.g., Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014) (“Jackson I”); Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).
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As discussed below, Plaintiffs are entitled to injunctive relief because they are likely to succeed on the merits of their claims. The Attorney General’s interpretation of the Executive Order as banning almost all abortions directly contravenes decades of binding Supreme Court precedent holding that a state may not ban abortion before viability. Moreover, injunctive relief will prevent severe and irreparable harm to Plaintiffs’ patients; is consistent with the balance of hardships; and serves the public interest. Accordingly, this Court should grant injunctive relief. I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE
DUE PROCESS CLAIM. Plaintiffs are certain to succeed on the merits of their claim that the Attorney General’s interpretation of the Executive Order violates Plaintiffs’ patients’ liberty rights under the Fourteenth Amendment by banning abortion before viability. Nearly five decades ago, the Supreme Court struck down as unconstitutional a state criminal abortion statute proscribing all abortions except those performed to save the life of the pregnant person. Roe v. Wade, 410 U.S. 113, 166 (1973). Specifically, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a woman’s right to choose abortion, id. at 153–54, and prior to viability, a state has no interest sufficient to justify a ban on abortion, id. at 163–65. Rather, a state may proscribe abortion only after viability, and even then it must allow abortion where necessary to preserve the life or health of the patient. Id. at 163–64. The Supreme Court has repeatedly adhered to this core holding. For example, more than twenty-five years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.” 505 U.S. 833, 846, 871 (1992); id. at 871 (asserting that any state interest is “insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions”). Although a plurality in Casey announced an “undue burden”
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standard, under which “a provision of law [restricting previability abortion] is invalid[] if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion,” 505 U.S. at 878 (plurality opinion), it emphasized:
Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Id. at 879; see also id. at 846 (“Roe’s essential holding . . . is a recognition of the right of the woman to choose to have an abortion before viability.”). Roe’s central principle has been repeatedly reaffirmed by the Court, including as recently as 2016. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Unsurprisingly, attempts to ban abortion prior to viability have been uniformly rejected by courts across the country and by the Fifth Circuit as recently as last month. See, e.g., Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per curiam) (“Jackson III”) (ban on abortions starting at six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 268–69 (5th Cir. 2019) (“Jackson II”) (ban on abortions starting at fifteen weeks); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015) (ban on abortions after six weeks), cert. denied, 136 S. Ct. 981 (2016); Edwards v. Beck, 786 F.3d 1113, 1117–19 (8th Cir. 2015) (ban on abortions after twelve weeks), cert. denied, 136 S. Ct. 895 (2016); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013) (ban on abortions starting at twenty weeks), cert. denied, 134 S. Ct. 905 (2014); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996) (ban on abortions starting at twenty weeks), cert. denied, 520 U.S. 1274 (1997); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (ban on all abortions), cert. denied, 507 U.S. 972 (1993); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992) (ban on all abortions), cert. denied, 506 U.S. 1011 (1992); Bryant v. Woodall, 363 F. Supp. 3d 611,
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630–32 (M.D.N.C. 2019) (ban on abortions starting at twenty weeks), appeal docketed, No. 191685 (4th Cir. June 26, 2019); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-CV-178DJH, 2019 WL 1233575, at *1 (W.D. Ky. Mar. 15, 2019) (ban on abortions after six weeks).
In 2019, several states passed a number of bans on abortion—and in each place where a ban restricted access to abortion, every single court blocked the ban from taking effect. See, e.g., Robinson v. Marshall, 415 F. Supp. 3d 1053, 1059 (M.D. Ala. 2019) (ban on nearly all abortions); SisterSong Women of Color Reprod. Justice Collective v. Kemp, 410 F. Supp. 3d 1327, 1350 (N.D. Ga. 2019) (ban on abortions after six weeks); Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631, 640 (W.D. Mo. 2019), as modified, 408 F. Supp. 3d 1049, 1053 (W.D. Mo. 2019) (ban on abortions after various weeks), appeal docketed, Nos. 19-2882, 19-3134 (8th Cir. Oct. 3, 2019); Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1324 (E.D. Ark. 2019) (ban on abortions after eighteen weeks), appeal docketed, No. 19-2690 (8th Cir. Aug. 9, 2019); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549, 252 (S.D. Miss. 2019), aff’d, 951 F.3d 246, 248 (5th Cir. 2020) (ban on abortions after six weeks); Order Granting Stipulated Preliminary Injunction as to State Defendants, Planned Parenthood Ass’n of Utah v. Miner, No. 2:19-cv-00238 (D. Utah Apr. 18, 2019), ECF No. 34 (ban on abortions after eighteen weeks).
The Fifth Circuit has consistently applied controlling precedent holding that states may not enact measures that ban all or nearly all previability abortions, including twice in just the last six months. See Jackson III, 951 F.3d at 248 (holding that previability abortion bans are “unconstitutional under Supreme Court precedent without resort to the undue burden balancing test,” and striking down a ban on abortions as early as six weeks with exceptions); Jackson II, 945 F.3d at 268 (holding “[s]tates may regulate abortion procedures prior to viability so long as they
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do not impose an undue burden on the woman’s right, but they may not ban abortions,” and striking down ban on previability abortions at fifteen weeks with exceptions); Jackson I, 760 F.3d at 459 (preliminarily enjoining abortion restriction that would shut down the only remaining clinic in the state and force patients to travel to a neighboring state as an unconstitutional undue burden); see also Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999) (“A measure that has the effect of forcing all or a substantial portion of a state’s abortion providers to stop offering such procedures creates a substantial obstacle to a woman’s right to have a pre-viability abortion, thus constituting an undue burden under Casey.”), vacated on reh’g en banc on other grounds, 244 F.3d 405 (5th Cir. 2001); Sojourner T., 974 F.2d at 29, 31 (striking down ban on all abortions with exceptions).
It is beyond dispute that the Attorney General’s interpretation of the Executive Order has the effect of banning all abortions (other than those performed in an immediate medical emergency) in Texas starting at ten weeks LMP, and even earlier among patients for whom medication abortion is not appropriate. Cf. Jackson II, 945 F.3d at 271 (holding that challenged law was a previability ban on abortion and not a regulation on abortion because it “peg[ged] the availability of abortions to a specific gestational age that undisputedly prevents the abortions of some non-viable fetuses”). But the Attorney General’s statement goes even further and appears to threaten enforcement against medication abortion in many instances as well, which has forced Plaintiffs to cancel hundreds of scheduled abortion appointments. In any event, whether or not the ban extends to medication abortion, it remains a ban on previability abortions, which contravenes decades of Supreme Court precedent, including Roe.
Because the Executive Order operates as a ban on previability abortion, this Court need not look further; however, even if the Court were to apply the undue-burden test from Casey, Plaintiffs would certainly succeed on the merits. “A finding of an undue burden is a shorthand for the
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conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. A restriction that, “while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S. Ct. at 2309 (alteration in original) (quoting Casey, 505 U.S. at 877). As the Supreme Court has held, “Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298.
Here, in terms of the burdens, the Attorney General’s current enforcement threat operates as a ban, whether for all abortions or for all abortions after ten weeks.30 The Executive Order is in effect for at least thirty days, and in fact could remain in effect for months, which would push many abortion patients past the legal limit for an abortion in Texas. Moreover, even if some patients affected by the order are able to obtain an abortion if the order is lifted sooner than anticipated, they will still suffer increased risks to their health by the delay in access to abortion care. Ferrigno Decl. ¶¶ 34, 36; Hagstrom-Miller Decl. ¶¶ 33, 35; Klier Decl. ¶ 18; Schutt-Aine Decl. ¶ 39. Thus, the Executive Order overwhelmingly harms individuals seeking an abortion.
These harms vastly outweigh any potential benefits from the Executive Order as interpreted by the Attorney General. The State asserts two interests—neither of which is furthered by the Attorney General’s interpretation. On its face, the Executive Order is intended to preserve hospital capacity and PPE. Plaintiffs share those interests, but a blanket abortion ban does not serve either one and, in fact, as so interpreted the Executive Order is more likely to aggravate than alleviate the public health crisis arising from the pandemic. As to the first interest, legal abortion is safe,
30 Even on the narrower construction, the Executive Order would not only ban abortion after ten weeks but also harm patients presenting before ten weeks for whom procedural abortion is medically indicated or the only appropriate option.
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and complications associated with abortion—including those requiring hospital care—are
exceedingly rare. Whole Woman’s Health, 136 S. Ct. at 2311–2312, 2315. Nearly all abortions in
Texas are provided in outpatient facilities, such as Plaintiffs’ abortion facilities and ambulatory
surgical centers, not hospitals.31 Thus, Plaintiffs’ provision of abortion would not deplete hospital
capacity.
Regarding the second interest stated in the Executive Order—to preserve PPE—even in
the absence of the Attorney General’s threat to ban procedural abortion, Plaintiffs have already
taken steps to preserve PPE, including by, for example, limiting the number of individuals allowed
into the facility and during a procedural abortion and postponing other in-person, non-essential
visits that may require PPE. Plaintiffs are exploring additional measures to preserve PPE, such as
washable masks and gowns. Moreover, Plaintiffs either do not use N95 masks or do so only rarely,
and this is the PPE that appears to be in shortest supply in battling the COVID-19 pandemic in
Texas and around the country.32 As such, banning abortions does little to nothing to prevent the
31 Tex. Health & Human Servs., Induced Terminations of Pregnancy, 2017 Selected Characteristics of Induced Terminations of Pregnancy (2018), https://hhs.texas.gov/about-hhs/ records-statistics/data-statistics/itop-statistics (in 2017, 99.8% of abortions among Texas residents in Texas were provided in abortion facilities or ambulatory surgical centers).
32 See, e.g., Ariana Eunjung Cha et al., Hospital Workers Battling Coronavirus Turn to Bandannas, Sports Goggles and Homemade Face Shields Amid Shortages, Wash. Post (Mar. 19, 2020), https://www.washingtonpost.com/health/2020/03/19/hospital-workers-battling-coronaviru s-turn-bandanas-sports-goggles-homemade-face-shields-amid-shortages/ (“Darrell Pile, CEO of the Southeast Texas Regional Advisory Council, which is responsible for distributing resources to local health providers from the Strategic National Stockpile, said the amount it had received so far is ‘horribly inadequate to meet existing demand.’”); Mike Marut, ‘We Are in a War’: Austin Doctors Running Out of Protective Equipment to Treat Coronavirus Patients, KVUE (Mar. 20, 2020), https://www.kvue.com/article/news/health/coronavirus/coronavirus-doctors-masks-austinprotective-equipment-goggles/269-a803b7ac-1ab0-4a6a-bfb8-af8b08d72028; Scott Friedman, Running Low on Supplies, Firefighters, Paramedics Scramble to Find Ways to Protect Themselves Against COVID-19, NBCDFW (Mar. 24, 2020), https://www.nbcdfw.com/news/coronavirus/asnorth-texas-first-responders-tear-through-protective-masks-firefighter-says-unprecedented-is-agood-word-to-be-using-right-now/2337271/; Amelia Nierenberg, Where Are All the Masks?, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/article/face-masks-coronavirus.html (“Many
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“deplet[ion]” of the personal protective equipment needed “to cope with the COVID-19 disaster.” Executive Order at 2.
Even before the Executive Order, Plaintiffs had taken steps to preserve PPE by minimizing the number of encounters a patient needs for care, Barraza Decl. ¶¶ 11–12; Wallace Decl. ¶ 13, but Texas law restricts this flexibility. Plaintiffs could make further progress in preserving PPE, as well as reducing overall contagion risks during the pandemic, were Defendants willing to consider temporarily waiving medically unnecessary abortion restrictions that limit their ability to adapt to this crisis—such as Texas’s requirement that patients make an extra trip to the health center and receive an ultrasound before returning for an abortion.33
Indeed, far from being necessary to address the COVID-19 crisis, an interpretation of the Executive Order that broadly prohibits abortion could well exacerbate the COVID-19 crisis, including by forcing patients to attempt to travel to other states to try to access abortion care, and potentially using public transportation, even though public health experts have advised the public to minimize activities outside the home. Conner Decl. ¶ 11; Hagstrom-Miller Decl. ¶ 32; Klier Decl. ¶ 18; Schutt-Aine Decl. ¶¶ 37–38. Moreover, the Executive Order may delay access for patients experiencing health problems because providers are uncertain as to whether these problems meet the Executive Order’s emergency exception, which could endanger those patients
doctors said they were being given just one mask, to use indefinitely. Between patients, they spray it down with a disinfectant or wipe it off, hoping for the best.”); Associated Press, US Struggles to Fill Requests for Protective Gear, N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/ aponline/2020/03/18/business/ap-us-virus-outbreak-supplies.html (CDC sending masks from strategic stockpile that have exceeded their shelf life “due to the potential urgent demand caused by the COVID-19 public health emergency”).
33 As the Executive Order states, it is within the Governor’s power to suspend regulatory requirements that “in any way prevent, hinder, or delay necessary action in coping with a disaster.” Executive Order at 1 (quoting Tex. Gov’t Code § 418.016(a)).
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and potentially require that they receive more invasive care (with attendant use of PPE) or even hospital-based care. Schutt-Aine Decl. ¶ 36. Finally, delaying patients in accessing abortion ultimately requires increased use of PPE. Even if the Executive Order is ultimately limited to thirty days, this delay will push patients early in pregnancy now beyond the time for which they would be legally eligible for medication abortion (PPE is not needed to hand a patient pills), instead requiring one-day aspiration procedures. Ferrigno Decl. ¶ 35; Hagstrom-Miller Decl. ¶ 34; SchuttAine Decl. ¶ 35; Wallace Decl. ¶ 15. For some patients, the delay will push them into two-day D&E procedures, which necessarily require more PPE than a single visit or a medication abortion. Ferrigno Decl. ¶ 35; Hagstrom-Miller Decl. ¶ 34; Klier Decl. ¶ 18; Schutt-Aine Decl. ¶¶ 35, 39.
Even if banning or restricting abortion during the COVID-19 crisis would result in some small, temporary preservation of PPE, the harm to patients from not being able to access abortion for a month or more, if ever, is extreme and simply cannot be outweighed by any benefits of Defendants’ application of the Executive Order. While Plaintiffs are mindful of the need for everyone in Texas and around the country to do their utmost to mitigate the effects of COVID-19 on our health systems, the reality is that very little, if any, PPE would actually be conserved by banning or restricting abortion. Most procedural abortions in Texas are single-day procedures, where a patient encounters either one or two clinicians, who each wear, at most, a paper mask (not an N95 respirator), two-to-three pairs of gloves, and a gown. Dewitt-Dick Decl. ¶ 16; HagstromMiller Decl. ¶ 13; Klier Decl. ¶ 11; Schutt-Aine Decl. ¶ 25. However, patients forced by Defendants to wait until the middle of the second trimester or later might be forced to undergo a two-day procedure, which would mean two consecutive trips to a health center; twice as much contact with health care providers; and at least twice the amount of PPE used—for a total of three visits.
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Patients who are prevented from obtaining abortions at all and thus who must seek prenatal care—or those who must seek prenatal care during the months they must wait for the Executive Order to expire—will also have to endure at least one (though often multiple) trips to heath care facilities to meet with health care providers and obtain services that involve the use of PPE. SchuttAine Decl. ¶ 26. Ultimately, then, pregnant patients will require care from health care providers using PPE, whether the pregnancy is terminated or not. Moreover, the public health crisis caused by the COVID-19 pandemic involves not only a shortage of PPE, but also a shortage of hospital beds. Unlike labor and delivery, hospital beds are not utilized in providing outpatient abortion.
The benefit of reducing the use of PPE in one segment of the healthcare system cannot possibly outweigh the burdens here, where abortion care is time-sensitive, and where barring abortion (but not any other essential surgery or procedure) would have only a minimal effect on the availability of PPE and no effect on the PPE in shortest supply (the N95 mask). Plaintiffs therefore have established that they are likely to succeed on the merits of their claim that the Executive Order violates the substantive due process rights of their patients. II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN
IS ENFORCED. Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order and preliminary injunction. The Attorney General’s interpretation of the Executive Order prevents Texans from exercising their fundamental constitutional right to terminate a pregnancy. It is well established that, where a plaintiff establishes a constitutional violation, no further showing of irreparable injury is necessary. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of [constitutional] freedoms . . . unquestionably constitutes irreparable injury.”); Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further
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showing of irreparable injury is necessary.” (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995))); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) (When “the constitutional right of privacy is ‘either threatened or in fact being impaired,’ . . . this conclusion mandates a finding of irreparable injury.” (quoting Elrod, 427 U.S. at 373)).
In addition, as many medical professional organizations, including ACOG, have recently concluded, abortion is “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”34 Indeed, for some patients, such a delay will deprive them of any access to abortion. Tex. Health & Safety Code § 171.044 (prohibiting abortions after twenty-two weeks LMP). Forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm. See e.g., Elrod, 427 U.S. at 373–74; Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013). Likewise, a delay in obtaining abortion care causes irreparable harm by “result[ing] in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 832 (7th Cir. 2018) (alteration in original) (quoting Van Hollen, 738 F.3d at 796), petition for cert. filed, No. 18-1019 (Feb. 4, 2019). This “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits.” Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (internal quotation marks omitted), cert. denied sub nom. Andersen v. Planned Parenthood of Kan. & Mid-Mo., 139 S. Ct. 638 (Mem.) (2018).
34 ACOG et al., supra note 2.
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III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT INJUNCTIVE RELIEF. Plaintiffs’ requested relief will “essentially continue[] the status quo,” tipping the balance
of equities toward Plaintiffs and serving the public interest. Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013), aff’d, 760 F.3d 448 (5th Cir. 2014); United States v. State of Texas, 508 F.2d 98, 101 (5th Cir. 1975). In addition, given the duration of the Executive Order and the likelihood that it will be extended, it is likely that many of Plaintiffs’ patients will be forced to forgo an abortion entirely and carry an unwanted pregnancy to term. As the Fifth Circuit has made clear, “the grant of an injunction will not disserve the public interest . . . when an injunction is designed to avoid constitutional deprivations.” Jackson Women’s Health Org., 940 F. Supp. 2d at 424; see also Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996). Moreover, as set forth more fully above, the benefits of a limited potential reduction in the use of some PPE (and not the most limited PPE) 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, as well as the risks of traveling to other states in search of time-sensitive medical care. Particularly where Plaintiffs are already taking steps—in line with those required of other medical professionals who continue to provide essential health care—to preserve PPE as much as possible, Dewitt-Dick Decl. ¶ 11; Klier Decl. ¶¶ 13–14; SchuttAine Decl. ¶¶ 29–31; Wallace Decl. ¶ 13, injunctive relief here is supported by the balance of harms and the public interest. IV. A BOND IS NOT NECESSARY IN THIS CASE.
This Court should waive the Federal Rule of Civil Procedure 65(c) bond requirement. The Fifth Circuit has long held “the [trial] court may elect to require no security at all.” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996); see also Planned Parenthood of Greater Tex.
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Family Planning & Preventative Health Servs., Inc. v. Smith, 236 F. Supp. 39 974, 979 (W.D. Tex.
2017), overruled on other grounds, 913 F.3d 551 (5th Cir. 2019); City of Atlanta v. Metro Atlanta
Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. 1981) (waiving bond requirement where
plaintiffs engaged in public-interest litigation, “an area in which the courts have recognized an
exception to the Rule 65 security requirement”). This Court should use its discretion to waive the
bond requirement here, where the relief sought will result in no monetary loss to Defendant.
CONCLUSION For these reasons, this Court should grant Plaintiffs’ motion for a temporary restraining
order and/or preliminary injunction to enjoin enforcement of the Executive Order and Emergency
Rule, as interpreted by Defendants, to prohibit abortions.
Dated: March 25, 2020
Respectfully submitted,
/s/ Patrick J. O’Connell Patrick J. O’Connell Texas Bar No. 15179900 Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for all Plaintiffs
Julie Murray (pro hac vice pending) Alice Clapman (pro hac vice pending) Richard Muniz (pro hac vice pending) Hannah Swanson (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800
28

Case 1:20-cv-00323-LY Document 7 Filed 03/25/20 Page 29 of 31
julie.murray@ppfa.org alice.clapman@ppfa.org richard.muniz@ppfa.org hannah.swanson@ppfa.org
Jennifer Sandman (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
Molly Duane (pro hac vice pending) Rabia Muqaddam (pro hac vice pending) Francesca Cocuzza (pro hac vice pending) CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Attorney for Plaintiffs Southwestern Women’s Surgery Center and Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center
Stephanie Toti Rupali Sharma (pro hac vice pending) Sneha Shah (pro hac vice pending) LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org
29

Case 1:20-cv-00323-LY Document 7 Filed 03/25/20 Page 30 of 31 Attorney for Plaintiffs Whole Woman’s Health and Whole Woman’s Health Alliance
30

Case 1:20-cv-00323-LY Document 7 Filed 03/25/20 Page 31 of 31 CERTIFICATE OF SERVICE
I certify that on this 25th day of March, 2020, I personally emailed a copy of the above document to the following individuals:
Adam.Biggs@oag.texas.gov Darren.McCarty@oag.texas.gov Christopher.Hilton@oag.texas.gov
/s/ Julie Murray Julie Murray
31

Case 1:20-cv-00323-LY Document 7-1 Filed 03/25/20 Page 1 of 10
EXHIBIT 1

Case 1:20-cv-00323-LY Document 7-1 Filed 03/25/20 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, ​et al​.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, ​et al​.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF POLIN C. BARRAZA IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Polin C. Barraza declares as follows: 1. I am President and Board Chair of Plaintiff Planned Parenthood South Texas Surgical Center (“PPST Surgical Center”), a not-for-profit corporation headquartered in San Antonio. PPST Surgical Center operates a licensed ambulatory surgical center and a licensed abortion facility in San Antonio. PPST Surgical Center provides a range of reproductive health services, including medication and surgical abortions. 2. I am responsible for the management of PPST Surgical Center (as well as the operations of its parent organization, Planned Parenthood South Texas), and therefore am familiar with our operations and finances, including the services we provide and the communities we serve. 3. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order

Case 1:20-cv-00323-LY Document 7-1 Filed 03/25/20 Page 3 of 10
No. GA-09, as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, a press release by the Texas Attorney General interpreting it, and the Emergency Rule. PPST Surgical Center has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit A.
4. The facts I state here are based on my experience, my review of PPST Surgical Center business records, information obtained in the course of my duties at PPST Surgical Center and PPST, and personal knowledge that I have acquired through my service at PPST Surgical Center and PPST. If called and sworn as a witness, I could and would testify competently thereto. PPST Surgical Center’s Provision of Abortion Care
5. In 2019 PPST Surgical Center provided 1855 abortions, and of those, 1258 were medication abortions and 597 were surgical abortions.
6. In January and February 2020, PPST Surgical Center performed 550 abortions, and of those, 396 were medication abortions and 154 were surgical abortions.
7. Neither medication nor surgical abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of ​any ​PPE. And while surgical abortion at PPST Surgical Center requires the use of sterile gloves for each procedure, a surgical mask that includes protective eyewear (one per provider per day, unless a mask becomes soiled), disposable gowns (one per provider per
2

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day, unless a gown becomes soiled), disposable hair and shoe covers, and reuable lab coats and face shields, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.1 PPST uses only non-sterile gloves or condoms to perform ultrasound or laboratory exam, including one that accompanies medication or surgical abortion.
8. PPST Surgical Center does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID-19 pandemic.
9. PPST Surgical Center does not provide inpatient care, nor is it set up to do so. PPST Surgical Center’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
10. PPST Surgical Center is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
11. Since the COVID-19 outbreak, PPST Surgical Center has taken steps to preserve much-needed medical resources that are in short supply during the pandemic. Even before the Governor’s Executive Order, for example, we had excluded residents and medical students from observing or participating in surgeries or procedures, which reduced the number of individuals requiring PPE.
12. We have also taken numerous steps to help prevent the spread of COVID-19 infection in the communities where we offer services. Although in normal times we welcome support companions accompanying abortion patients, we have decided not to allow such
1 Per CDC guidance, Plaintiffs provide patients for whom there is a concern for COVID-19 or other upper respiratory disease with a mask.
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companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
13. We have also made dramatic changes to the flow of our patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms. Only those individuals who are positively screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a medical assistant will contact them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. We have reconfigured our waiting rooms and check-in practices to limit the number of people in our facility, as well as to ensure they can and are maintaining the recommended social-distance.
14. More recently, PPST has curtailed other non-abortion services that can safely be delayed, such as annual well-person visits and routine STI tests.
15. In light of the Executive Order, we have cancelled surgical abortions scheduled for this week, and PPST Surgical Center will cancel non-emergency future surgical abortions appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, PPST Surgical Center has stopped providing non-emergency medication abortions because of concerns about whether these abortions are permissible under the Attorney General’s interpretation of the Executive Order.
16. I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Polin C. Barraza
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EXHIBIT A

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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 1 of 8
EXHIBIT 2

Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF ALICIA DEWITT-DICK IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, ALICIA DEWITT-DICK, declare as follows:
1. I am the administrator of Plaintiff Southwestern Women’s Surgery Center (“Southwestern”).
2. Southwestern operates a licensed ambulatory surgical center in Dallas. Southwestern provides medication abortion up to 10 weeks as measured from the first day of the woman’s last menstrual period (“LMP”) and procedural abortions through 21.6 weeks LMP, as well as miscarriage management and contraceptive services. Southwestern provides care to approximately 9000 patients a year.
3. As administrator, I oversee operations at the clinic and am familiar with all aspects of our policies and practices. The facts I state here are based on my experience, my review of Southwestern’s business records, information obtained in the course of my duties at Southwestern, and personal knowledge that I have acquired through my service at Southwestern.

Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 3 of 8
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin the March 22, 2019 Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General on March 23, 2020 to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a patient. I have reviewed the Executive Order and the interpretation by the Attorney General.
5. The Executive Order, effective until 11:59 p.m. on April 21, 2020, although it may be extended, directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
6. Southwestern understands the term PPE to refer to surgical masks, N95 respirators (a face covering designed to block at least 95 percent of very small test particles), sterile and nonsterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. The services Southwestern provides do not involve significant amounts of PPE or deplete PPE.
7. On Monday, March 23, 2020, the Attorney General issued a press release interpreting the Executive Order, titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.” The press release states that the Executive
2

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Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers four times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
8. Southwestern is uncertain as to the scope of the Executive Order and the subsequent press release by the Attorney General, and, as a result, largely stopped seeing patients on March 23, 2020. The clinic has cancelled approximately 225 appointments for the last two days, March 24 and March 25. Unless we obtain immediate relief, we intend to continue canceling appointments going forward. Southwestern’s Response to COVID-19:
9. Approximately a month prior to the Executive Order, in late February, Southwestern began to take actions within the clinic to address the spread of COVID-19 around the country and developed practices directed at reducing the risk of transmission and preserving PPE.
10. On February 24, 2020, the clinic began screening all patients for potential exposure to COVID-19, using screening questions related to existing respiratory symptoms and recent travel. We instructed staff to stay home if they were experiencing any symptoms associated with COVID-19.
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11. On March 13, 2020, we also began limiting the number of people in waiting areas to ensure social distancing of at least 6 feet between all persons, and implemented staff techniques to minimize the use of PPE, including restricting the use of new surgical masks and gowns.
12. On March 16, 2020, Southwestern began checking the temperatures of all patients upon arrival in addition to continuing to ask patients screening questions regarding their symptoms and travel. Southwestern also began requiring that patients complete admission paperwork and wait in their vehicles to be seen by the physician.
13. On March 18, 2020, we began checking temperatures of staff daily. 14. There have only been a few instances where staff have experienced potential symptoms or contact that raises a low but non-negligible possibility of infection, and we have sent the staff members home. 15. Southwestern has only canceled an appointment for one patient due to concern for a possible COVID-19 infection. 16. While we have a limited number of N95 masks at the clinic, we would only use them if we were treating a patient with a suspected or confirmed COVID-19 infection. We have not used any of these masks to date during the pandemic. 17. Southwestern has also suspended its training program for residents and fellows until the end of April and halted onboarding of new staff. Southwestern Uses Minimal PPE: 18. In 2019, Southwestern performed 8800 abortions, including 2321 medication abortions prior to 10 weeks LMP. Of the procedural abortions, 5689 were performed at or before 14.6 weeks LMP via suction procedure. The remaining 790 were performed from 15 weeks LMP through 21.6 weeks LMP. Southwestern also performed 240 miscarriage management procedures
4

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in 2019. The clinic does not have 2020 data available yet, but the first months of 2020 are in line with these earlier figures.
19. For consults and ultrasounds, Southwestern typically only uses one pair of nonsterile gloves per patient, but has reduced such use in light of the COVID-19 pandemic. PPE is not typically used for dispensing medication abortion. For procedures prior to approximately 15 weeks LMP, the physician will use 3 non-sterile gloves per patient, and assisting staff might use 2-3 additional pairs of non-sterile gloves per patient. For procedures beyond 15 weeks LMP, the physician typically uses a gown, face shield, and one pair of sterile gloves, and other staff assisting in the procedure wear non-sterile gloves. For some procedures beyond 15 weeks LMP, Southwestern may also use reusable eyewear. Staff assisting with abortion procedures will typically wear 1-2 pairs of shoe coverings every day.
20. Based on Southwestern’s patient load, in an average week, we use the following PPE: a few boxes of non-sterile gloves; approximately 15 pairs of sterile gloves for procedures after 15 weeks LMP; approximately 15 gowns; around 24 pairs of shoe coverings per day; and a handful of simple surgical masks and reusable eyewear.
21. The clinic has a small number of N95 masks on hand. In early March, when the clinic was taking action addressing the COVID-19 pandemic, we were in touch with Dallas County Health and Human Services who recommended that we keep some N95 masks on site. Harm to Southwestern and our Patients:
22. Although abortion is a very safe medical procedure, the health risks associated with an abortion procedure generally increase with gestational age. The complexity of the procedure, the PPE needed to complete the procedure, and the associated expense also increase with gestational age. Our patients generally seek abortion as soon as they are able, but many face
5

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logistical obstacles that can delay their access to abortion care. Some come from over a hundred miles to receive care at our clinic. Patients need to schedule an appointment, gather the resources to pay for the abortion and related costs, and arrange transportation to a clinic, time off of work, and possibly childcare during appointments. Texas law requires them to make these arrangements multiple times for repeated trips to the clinic, even though most patients could safely obtain care in one visit. These existing delays already result in higher financial and emotional costs for our patients.
23. The COVID-19 pandemic has only exacerbated these burdens. It has limited public transit availability, caused layoffs and other work disruptions, shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing.
24. Many recent patients have expressed gratitude that they were able to receive care with us. Many have expressed that they feel protected by the clinic’s measures, and that they are relieved that the clinic was operating and continuing to provide services that are so time-sensitive and essential.
25. The patients whose appointments have been cancelled in light of the Executive Order and the Attorney General’s interpretation have been extremely upset. Some of the dozens of patients we intended to see this week will be pushed out of eligibility for receiving a medication abortion. Others will be pushed into more complex procedures. And, some may not be able to return for their procedure with us at all.
26. Southwestern reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that our physicians deem necessary to “correct a serious medical condition of … a patient who
6

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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,” as permitted by the Executive Order. Our physicians also reasonably fear that the Attorney General will understand the Order to prohibit medication abortions, despite the fact that these are not “procedures” under the common medical understanding of the term, and therefore do not fall within the terms of the Executive Order as understood by our medical staff.
27. Based on this enforcement risk, Southwestern is unsure how to proceed but plans to resume certain appointments where care does not involve new PPE.
28. If the Executive Order, as interpreted by the Attorney General, is enforced, it will delay and deny access to care for our patients. It will, as a result, harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

______________________________ Alicia Dewitt-Dick

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EXHIBIT 3

Case 1:20-cv-00323-LY Document 7-3 Filed 03/25/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF ANDREA FERRIGNO ANDREA FERRIGNO hereby declares under penalty of perjury that the following statements are true and correct: 1. I am the Corporate Vice-President with Whole Woman’s Health (“WWH”), a plaintiff in this case. 2. WWH is a consortium of limited liability companies, each incorporated under Texas law. The consortium includes a property management company, healthcare management company specializing in the management of abortion clinics, and a network of abortion clinics. 3. WWH currently owns and operates two abortion clinics in Texas, one in Fort Worth (the “Fort Worth Clinic”) and one in McAllen (the “McAllen clinic”). WWH also owns and operates an abortion clinic in Baltimore, Maryland; Minneapolis, Minnesota; and Alexandria, Virginia.

1

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4. My responsibilities as Corporate Vice-President include ensuring that each clinic complies with all statutes and regulations concerning the provision of the health services they offer, including abortion care, as well as recruiting physicians.
5. I have worked at WWH in a variety of roles since 2004, when I first joined as a Patient Advocate. As a result, I am well-versed in abortion clinic operations and patient care.
6. I provide the following testimony based on personal knowledge and review of WWH’s business records.
Provision of Abortion Care at the WWH Clinics in Texas 7. Both the Fort Worth and McAllen clinics offer surgical abortions up to 17.6 weeks gestation, as measured from the first day of a patient’s last menstrual period (“lmp”). Texas law prohibits licensed abortion facilities from providing surgical abortions past this gestational age. See Tex. Health & Safety Code § 171.004. 8. Both clinics also offer medication abortions up to 10 weeks lmp. Texas law prohibits the provision of medication abortion past this gestational age. See Tex. Health & Safety Code § 171.063(a)(2).
Use of PPE in WWH Clinics in Texas 9. Texas law requires abortion patients who live within 100 miles of a licensed abortion facility to make two trips to obtain care. See Tex. Health & Safety Code § 171.012(a)(4), (b). During the first visit, we must provide the patient with State-mandated information and perform an ultrasound examination. See id. The physician cannot provide the patient an abortion until the second visit. See id. 10. There is minimal use of personal protective equipment (“PPE”) at the WWH clinics in Texas. Physicians do not use it to provide medication abortions and use sterile gloves and
2

Case 1:20-cv-00323-LY Document 7-3 Filed 03/25/20 Page 4 of 8
surgical gowns to provide surgical abortions. Some physicians also use surgical masks, disposable shoe covers and reusable goggles for dilation & evacuation (“D&E”) abortions.
11. Additionally, physicians do not use PPE to perform an abdominal ultrasound examination before an abortion and use only gloves to perform a transvaginal ultrasound examination before an abortion.
12. After a surgical abortion, a staff member examines the tissue removed from the patient in the pathology laboratory. To do so, the staff member may use gloves, a surgical gown, face shield, or disposable shoe covers.
13. The WWH clinics in Texas do not have or intend to acquire any N-95 respirators, which are face coverings designed to block at least 95 percent of very small test particles.
14. Our abortion patients rarely require hospitalization. WWH’s Response to the COVID-19 Public Health Crisis
15. WWH has adopted certain policies to help ensure the safety of its patients and staff during the COVID-19 public health crisis.
16. We screen staff members for symptoms of COVID-19 and require anyone who is exhibiting them or has been exposed to someone with a confirmed case to self-quarantine for at least fourteen consecutive days.
17. Additionally, staff members screen all potential patients by phone for symptoms of COVID-19. If a patient is exhibiting symptoms, we ask them to self-quarantine, contact their primary care provider, and not visit the clinic unless they have been asymptomatic for at least fourteen consecutive days.
18. Further, we limit the number of people in a clinic at any given time and help ensure patients keep a safe distance from each other in the waiting room and recovery area.
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19. We also train staff on best practices to prevent the spread of infection and require them to observe strict practices for handwashing and disinfecting surfaces. Texas law prohibits the provision of State-mandated information using telemedicine. See, e.g., Tex. Occ. Code § 111.005(c); Tex. Health & Safety Code § 171.063(c); 25 Tex. Admin. Code § 139.53(b)(5).
Effect of the Governor’s Executive Order 20. On March 22, 2020, Governor Abbott issued Executive Order GA-09 (“Executive Order”), which concerns hospital capacity during the COVID-19 public health crisis, and applies until 11:59 p.m. on April 21, 2020, assuming it is not renewed. The Executive Order directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order clarifies that the prohibition does 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.” Id. 21. The Executive Order does not define PPE. We at WWH understand PPE to include surgical masks, N-95 respirators, sterile and non-sterile gloves, disposable protective eyewear, surgical gowns, and disposable shoe covers. 22. Both the Fort Worth and McAllen clinics are willing and able to continue providing abortion care consistent with the Executive Order. 23. On March 23, 2020, however, WWH received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Paxton, entitled
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“Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
24. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
25. WWH’s clinics in Texas were concerned that they would be prosecuted given the Attorney General’s interpretation of the Executive Order as prohibiting “any type of abortion” even though the Executive Order permits abortions that physicians have determined are necessary to “correct a serious medical condition 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,” and/or those that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 health disaster.”
26. On March 24, the Fort Worth Clinic cancelled appointments for 13 abortion patients, who now are unable to obtain care anywhere in Texas. The following day, the clinic cancelled another 18 appointments for abortion patients, who now are unable to obtain an abortion in the State.
27. On March 24, the McAllen Clinic cancelled appointments for two abortion patients, who now are unable to obtain care anywhere in Texas. The following day, the clinic cancelled
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another two appointments for abortion patients, who now are unable to obtain an abortion in the State.
28. People continue to seek appointments at both clinics. We must turn them away unless we are certain that no aspect of their care will involve the use of PPE. Between today and April 21, 2020, we anticipate turning away over 100 patients from the Fort Worth Clinic and at least 40 patients from the McAllen Clinic.
29. Each of our abortion clinics has a maximum capacity based on the size of our facility and the availability of our physicians. The maximum capacity of the Fort Worth Clinic is 130 patients per week and the maximum capacity of the McAllen Clinic is about 60 patients per week. Even if we were able to resume abortion care on April 22, 2020, it would take us a significant amount of time to treat all of the patients that we will have to turn away between now and then, in addition to our regular patient load.
Impact on Patients 30. A majority of the patients at the Fort Worth Clinic are people of color and Spanish speakers. They hail from all over Texas. 31. A majority of the patients at the McAllen Clinic are Spanish speakers and many face immigration-related restrictions on traveling outside of the Rio Grande Valley. 32. The patients at both clinics seek abortion care for a variety of reasons. Many are low-income, uninsured, and the parents of dependent children. 33. And many would suffer substantial burdens if they were forced to seek abortion care out-of-state ordinarily. Such long-distance travel is virtually impossible now due to travel restrictions, more severe financial constraints for those in need of abortion care, school closures, and the unlikelihood of finding childcare.
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34. Consequently, our patients and would-be patients will be forced to live with an unwanted pregnancy for an indefinite amount of time—if they are able to obtain an abortion at all. This can involve physical symptoms, such as morning sickness, considerable stress and anxiety, and the increased possibility that an abusive partner or family member will learn of the pregnancy.
35. People who are delayed past ten weeks lmp will no longer be able to obtain a medication abortion. See Tex. Health & Safety Code § 171.063(a)(2). Similarly, those who are delayed past 14-16 weeks lmp will no longer be able to obtain an aspiration abortion, a type of surgical abortion, and will instead have to receive a D&E, which is a lengthier and more complex procedure. Those who are pushed past 18 weeks lmp, see Tex. Health & Safety Code § 171.004, will no longer be able to obtain an abortion at an abortion clinic, while those who are delayed past 22 weeks lmp will no longer be able to obtain an abortion in Texas at all, absent a medical emergency. See Tex. Health & Safety Code § 171.044.
36. The medical risks of abortion and pregnancy, as well as the costs of abortion care, increase with gestational age.
37. Thus, the patients that WWH will be forced to turn away for fear of prosecution will suffer in significant and lasting ways.

Dated: March 25, 2020

/S/Andrea Ferrigno Andrea Ferrigno Corporate Vice-Present Whole Woman’s Health

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EXHIBIT 4

Case 1:20-cv-00323-LY Document 7-4 Filed 03/25/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-CV-00323-LY

DECLARATION OF AMY HAGSTROM MILLER AMY HAGSTROM MILLER hereby declares under penalty of perjury that the following statements are true and correct: 1. I am the President and Chief Executive Officer (“CEO”) of Whole Woman’s Health Alliance (“WWHA”), a plaintiff in this case. 2. WWHA is a nonprofit organization incorporated under Texas law. Its mission is to provide abortion care in underserved communities and shift the stigma around abortion in our culture. 3. WWHA currently operates an abortion clinic in Austin, Texas (the “Austin clinic”), as well as abortion clinics in Indiana and Virginia. The Austin clinic opened in 2017 and is licensed in accordance with Texas law. 4. As President and CEO of WWHA, I oversee all aspects of the organization’s work. 5. I have been working in the abortion care field since 1989. Prior to my work at WWHA, I founded a consortium of limited liability companies involved in the provision of abortion care throughout the United States. These companies do business under the name “Whole

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Woman’s Health.” I continue to serve as President and CEO of Whole Woman’s Health, which opened its first abortion clinic in 2003.
6. I am thoroughly familiar with all aspects of abortion clinic operations and patient care.
7. I provide the following testimony based on my personal knowledge and review of WWHA’s business records.
Provision of Abortion Care at the Austin Clinic 8. The Austin clinic provides surgical abortions up to 17.6 weeks of pregnancy as measured from the first day of a patient’s last menstrual period (“lmp”). Under Texas law, licensed abortion facilities are not permitted to provide surgical abortions beyond this gestational age. See Tex. Health & Safety Code § 171.004. 9. The Austin clinic provides medication abortions up to 70 days lmp. Under Texas law, medication abortions are prohibited after this gestational age. See Tex. Health & Safety Code § 171.063(a)(2). 10. In a typical week, the Austin clinic provides surgical abortions to approximately 30 patients. 11. In a typical week, the Austin clinic provides medication abortions to approximately 30 patients. 12. Texas law requires abortion patients who reside within 100 miles of a licensed abortion clinic to make two separate visits to the clinic to obtain care. See Tex. Health & Safety Code § 171.012(a)(4), (b). During the first visit, we must provide the patient with certain statemandated information and perform an ultrasound examination. See id. During the second visit, we provide abortion care. Most of our patients reside within 100 miles of the Austin clinic.
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13. Providing abortion care requires minimal use of personal protective equipment (“PPE”). In fact, medical staff members at the Austin clinic do not utilize any PPE when providing medication abortion to patients. Doctors who provide surgical abortions at the Austin clinic typically wear sterile or non-sterile gloves that are discarded after each procedure but do not utilize other forms of PPE. If a patient is receiving sedation, a nurse is also present in the procedure room and will utilize sterile or non-sterile gloves. One or more surgical assistants may also be present for a procedure, but they do not utilize any PPE.
14. Likewise, pre-procedure ultrasound examinations require minimal PPE. Use of PPE is typically not required at all for abdominal ultrasound examinations. For vaginal ultrasound examinations, doctors and ultrasound technicians typically wear non-sterile gloves that are discarded after each scan. When laboratory testing is required, technicians likewise utilize only non-sterile gloves.
15. Following a surgical abortion procedure, the tissue removed from a patient is examined in the pathology laboratory. This task is typically performed by a single staff member who utilizes one washable gown per shift, either one disposable face shield per shift or one set of reusable goggles, one set of disposable shoe covers per shift, one disposable hair cap per shift, and one or more sets of non-sterile gloves.
16. WWHA does not use or have any N95 respirators. 17. Abortion patients seldom require hospitalization. The Austin clinic had only a single hospital transfer during all of last year. Further, we keep detailed complication logs that record, among other things, when a patient receives hospital treatment after being discharged from the clinic. This happens only a handful of times each year.
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WWHA’s Response to the COVID-19 Outbreak 18. In response to the COVID-19 outbreak, WWHA has adopted policies to protect its patients and staff members from exposure to the virus. 19. For example, staff members screen all patients by telephone before they come to the Austin clinic to determine if they have symptoms of COVID-19. Symptomatic patients are directed to self-quarantine and contact their primary healthcare providers. We will not schedule a patient for a clinic visit unless the patient has been symptom free for fourteen days. We are also limiting the number of people who enter the clinic and ensuring that patients maintain a safe distance from one another in the waiting room and recovery area. In addition, we are screening staff members for symptoms and directing everyone who is symptomatic or who has come in contact with someone who has a confirmed case of the virus to self-quarantine for at least fourteen days. 20. We have provided staff members with training on best practices to prevent the spread of infection, and we are vigilant about enforcing protocols for hand washing and disinfecting surfaces. In other states, we have begun using telehealth platforms for pre-abortion counseling, which reduces unnecessary trips to the clinic for patients and providers, but Texas law requires that certain mandatory disclosures be delivered in person prior to the abortion.
Suspension of Services Following the Governor’s Executive Order 21. On March 22, 2020, Texas Governor Greg Abbott issued Executive Order GA-09 (“Executive Order”), relating to hospital capacity during the COVID-19 pandemic. It is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” to “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve
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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.” Id. at 1. The Executive Order states that this prohibition does 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 COVID19 disaster.” Id.
22. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers.
23. I believe that the Austin clinic can continue to provide abortion care in a manner consistent with the Executive Order, and WWHA has adopted policies and procedures to ensure that the care that we provide while the Executive Order remains in effect is fully compliant with its letter and spirit.
24. On Monday, March 23, 2020, WWHA received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton. That press release was entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
25. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type
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of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
26. WWHA reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General and other enforcement officials may understand the Executive Order to prohibit “any type of abortion” that entails the use of PPE even though the Executive Order expressly permits abortions that WWHA’s physicians have determined are necessary to “correct a serious medical condition 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,” and/or those that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 health disaster.”
27. Based on this enforcement risk, WWHA has cancelled appointments for more than 20 abortion patients since receiving the Attorney General’s press release. At least two of these patients were in the second-trimester of pregnancy and will be past the legal limit for abortion in Texas by the time the Executive Order expires.
28. Patients continue to call the clinic to schedule appointments. We have to turn them away unless we can be sure that no aspect of their care will require the use of PPE. We expect that, between today and April 21, 2020, we will have to turn away dozens of patients.
29. The Austin clinic’s capacity is limited by the size of the facility, doctor availability, and the need for most patients to make two trips to the clinic to obtain care. The maximum capacity of the Austin clinic is sixty to seventy patients per week. Even if we were able to resume providing
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abortion care on April 22, 2019, which is uncertain, we would not be able to treat all the patients who had been previously been turned away within a week.
Impact on Patients 30. Our patients seek abortion care for a variety of reasons. Many do not have the resources to add an additional child to their family. Some are students who want to complete their education before having children. Some do not want to be tied financially or emotionally to the putative father, or fear abuse if their pregnancy is discovered. 31. Many of the patients who seek care at the Austin clinic are low-income, and many are parents of dependent children. The majority are uninsured. 32. It would be difficult for many of our patients to travel out of state to access abortion care even during normal times. But now, given the travel restrictions and business closures resulting from the COVID-19 crisis, it is nearly impossible. Moreover, in the current circumstances, long-distance travel is both risky and nerve-wracking. 33. Being forced to delay a wanted abortion is also nerve-wracking. Patients who are delayed from accessing abortion must continue to cope with the physical symptoms of pregnancy, which for many include morning sickness. Weight gain will require some to buy new clothes, which can be a financial strain. The longer a patient remains pregnant, the more likely it is that others will discover the pregnancy, including abusive partners or family members. Patients who are delayed from accessing abortion must also cope with the fear of not being able to obtain abortion care in time—and of the life-altering consequences of having to carry an unwanted pregnancy to term. 34. Patients who are delayed past 70 days lmp are no longer eligible for a medication abortion. See Tex. Health & Safety Code § 171.063(a)(2). Patients who are delayed past 14-16
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weeks lmp are no longer eligible for an aspiration abortion, a type of surgical abortion available early in pregnancy, and must instead have a D&E abortion, which is a lengthier and more complex procedure. Patients who are delayed past 17.6 weeks lmp are no longer eligible for an abortion at the Austin clinic or any abortion clinic in Texas. See Tex. Health & Safety Code § 171.004. Patients who are delayed past 22 weeks lmp are no longer able to obtain an abortion in Texas at all, absent a medical emergency. See Tex. Health & Safety Code § 171.044.
35. The cost of abortion care (as well as the medical risks of pregnancy and abortion) increase significantly with gestational age.
36. The patients that the Austin clinic is forced to turn away because of the Attorney General’s threat of enforcement will therefore be harmed in significant and irreparable ways.

Dated: March 25, 2020

Amy Hagstrom Miller
AMY HAGSTROM MILLER

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EXHIBIT 5

Case 1:20-cv-00323-LY Document 7-5 Filed 03/25/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JESSICA KLIER IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION JESSICA KLIER, declares under penalty of perjury that the following statements are true
and correct: 1. I am the Administrator at Austin Women’s Health Center and Brookside
Women’s Medical Center, a position that I have held for 16 years. Along with the Medical Director, I provide overall leadership for the clinic. My responsibilities include carrying out the clinic’s organizational goals, developing and implementing clinic policies and procedures with operational oversight of financial and budgetary activities, and ensuring compliance with all regulatory agencies governing health care delivery.
2. Austin Women’s Health Center is a licensed abortion facility and Brookside Women’s Medical Center is a gynecological and primary care practice. Together, these two facilities (collectively “Austin Women’s”) have provided high-quality reproductive services to Texas women for over 40 years. Austin Women’s provides medication abortion up to 70 days of gestation and procedural abortions (sometimes referred to as “surgical abortions”) up to 17

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weeks, 6 days as dated from the first day of the patient’s last menstrual period. Austin Women’s also provides contraception, miscarriage management, and gynecologic surgical procedures, including colposcopies, biopsies, and loop electrosurgical excision procedures (“LEEPs”), in which a layer of cervical tissue is removed to diagnose and treat cancer or precancerous cells.
3. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a pregnant person. I have reviewed the Executive Order and a press release by the Texas Attorney General interpreting it.
4. The facts I state here are based on my experience, my review of Austin Women’s business records, information obtained in the course of my duties at Austin Women’s, and personal knowledge that I have acquired through my service at Austin Women’s.
5. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does not apply to “any procedure that, if performed in accordance with the commonly accepted standard of clinical
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practice, would not deplete the hospital capacity or the personal protective equipment [“PPE”] needed to cope with the COVID-19 disaster.” Id.
6. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators, sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. Austin Women’s stocks surgical masks, non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. We also have a small number of N95 respirators that we generally do not use.
7. On Monday, March 23, 2020, Austin Women’s received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton, entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
8. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers four times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
9. In 2019, Austin Women’s performed 3058 abortions, 1601 of which were medication abortions.
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10. In January and February 2020, Austin Women’s performed 570 abortions, 309 of which were medication abortions.
11. Neither medication nor procedural abortion requires extensive, if any, PPE or otherwise would deplete PPE necessary to address the current pandemic. Before the COVID-19 outbreak, Austin Women’s used no PPE for medication abortion, and limited PPE for procedural abortions—non-sterile gloves and disposable shoe covers for most procedures, with the addition of gowns, face masks, and face shields for second trimester procedures.
12. An ultrasound or laboratory exam, including one that accompanies medication or procedural abortion at Austin Women’s, requires only non-sterile gloves, similar to what are used in nearly all medical visits by health care providers.
13. Since the COVID-19 outbreak began, Austin Women’s has taken extra steps to conserve PPE while protecting our patients and staff from potential sources of transmission. Austin Women’s primary physician, for example, has been wearing and reusing a single N95 mask during all face-to-face interactions with patients and switched to using washable gowns during procedural abortions.
14. We have also taken numerous steps to help prevent the spread of COVID-19 infection in our facility. We have taken measures to ensure social distancing, including utilizing the large outdoor space around our clinic, where, where the weather is pleasant, we have set up chairs at least six feet apart. Inside the facility we have similarly spaced chairs in the waiting room at least six feet apart. We now ask patients to fill out paperwork and wait for their procedure in their car. In addition, although we normally welcome support companions accompanying abortion patients, we have decided not to allow such companions (except parents
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accompanying minors or language translators) to enter our facility to reduce the number of overall people exposed to one another.
15. We have also begun spacing out appointments to reduce crowding in our facility and have deactivated the automatic online appointment feature on our website to prevent double booking. We have also changed the patient flow in our facility so that each patient stays in their assigned patient room for the duration of their visit, instead of going back and forth to the waiting room in between visits with different staff members.
16. We have also been screening patients both on the phone when they make their appointment and upon entry for potential infection, including: asking each patient if she has a fever or a cough, asking if she has been exposed to potential COVID-19 patients, and taking each patient’s temperature upon entry to the facility. Beginning this week, we were planning to start screening staff members each day for fever and other potential symptoms.
17. Based on the risk of enforcement of the Executive Order, we have already had to cancel nearly 100 abortion patient appointments, though we are still seeing some patients including for follow-ups and urgent gynecological care. If we are unable to see certain patients for the rest of the week, we will need to cancel dozens of additional patient appointments.
18. Many, if not all of these patients, in addition to the patients Austin Women’s planned to serve through April 21, will be significantly burdened by the delays in their access to care. Many will be unable to access abortion at all, while others will be forced to travel out of state. All will suffer increased risks to their health by the delay in access to abortion care. Many will also face increased costs related to abortion, as their abortion access is pushed to later gestational points when abortion is more expensive and may require a two-day procedure, instead of one, and thus additional use of PPE.
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I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Jessica Klier

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EXHIBIT 6

Case 1:20-cv-00323-LY Document 7-6 Filed 03/25/20 Page 2 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF KEN LAMBRECHT IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Ken Lambrecht, declare as follows:
1. I am the CEO of Planned Parenthood Greater Texas, Inc. (“PPGT”) as well as of its related entity, Planned Parenthood of Greater Texas Surgical Health Services (“PPGTSHS”). I am responsible for the management of these organizations and therefore am familiar with our operations and finances, including the services we provide and the communities we serve.
2. PPGT is a not-for-profit organization incorporated in Texas and headquartered in Dallas, Texas. It operates health centers throughout Central and North Texas, including Austin, Dallas, El Paso, Fort Worth, Paris, Tyler, Waco, and surrounding communities. PPGT provides comprehensive reproductive health care services, including birth control, emergency contraception, testing and treatment for sexually transmitted infections (STIs), pregnancy testing and prenatal referrals, clinical breast exams, breast and cervical cancer screenings, PrEP, PEP,

Case 1:20-cv-00323-LY Document 7-6 Filed 03/25/20 Page 3 of 12
colposcopy, Loop Electrosurgical Excision Procedure (LEEP), and condyloma treatment. PPGT also provides Gender Affirming Hormone Therapy and hormone replacement therapy.
3. An ancillary of PPGT, PPGTSHS, also provides medication and procedural abortion at three health centers.
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09, as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, a press release by the Texas Attorney General interpreting it, and the Emergency Rule.
5. The facts I state here are based on my experience, my review of PPGT and PPGTSHS business records, information obtained in the course of my duties at PPGT and PPGTSHS, and personal knowledge that I have acquired through my service at PPGT and PPGTSHS. If called and sworn as a witness, I could and would testify competently thereto. The Executive Order and Threatened Enforcement
6. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.”
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Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
7. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, protective eyewear, gowns, and shoe covers.
8. PPGTSHS has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit A. That policy permitted PPGTSHS to continue offering procedural and medication abortion, consistent with the Executive Order’s purpose and plain language and the views of trusted national medical organizations.
9. On Monday, March 23, 2020, PPGTSHS received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton that interprets the Executive Order and which threatens abortion providers with enforcement measures if they violate the order. PPGTSHS’ Provision of Abortion Care
10. In 2019 PPGTSHS performed 6,982 abortions. Of those, 1,643 occurred beyond 10 weeks LMP, and were therefore necessarily performed as procedural abortion. Of those 5,339 occurring before 10 weeks LMP, 1,668 were done by procedural abortion and the remainder by medication abortion.
11. In January and February 2020, PPGTSHS performed 924 abortions, 285 of which occurred beyond 10 weeks LMP and were therefore necessarily performed as procedural abortions.
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Of those 639 abortions occurring before 10 weeks LMP, 197 were done by procedural abortion and the remainder by medication abortion.
12. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. And while procedural abortion at PPGTSHS requires the use of five non-sterile gloves for each procedure, a procedural mask that includes protective eyewear (one per provider per day, unless a mask becomes soiled), disposable gowns and hair cover (one per provider per day, unless they become soiled), and disposable shoe covers, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.1 For an ultrasound or laboratory exam, including one that accompanies medication or procedural abortion, our providers currently use non-sterile gloves. PPGTSHS does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID19 pandemic.
13. PPGTSHS does not provide inpatient care, nor is it set up to do so. PPGTSHS’ Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
14. PPGTSHS is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
15. Since the COVID-19 outbreak, PPGTSHS has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the
1 Per CDC guidance, PPGTSHS provides patients for whom there is a concern for COVID19 or other upper respiratory disease with a mask. Ctrs. for Disease Control & Prevention, Frequently Asked Questions about Personal Protective Equipment (Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html.
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spread of COVID-19 in the communities where we offer services. Even before the Governor’s order, for example, we had excluded residents and medical students from observing or participating in surgeries or procedures, which reduced the number of individuals requiring PPE. As a result of the outbreak, we have reduced our patient volume to ensure that we comply with current social-distancing recommendations. In addition, although in normal times we welcome support companions accompanying abortion patients, we have decided not to allow such companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
16. We have also made changes to the flow of patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever. Only those individuals who are positively screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a nurse will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
17. PPGTSHS reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that PPGTSHS’s physicians have determined are necessary to “correct a serious medical condition 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,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
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18. Based on this enforcement risk, PPGTSHS cancelled twenty-two medication abortions and six procedural abortions on Tuesday, March 24. Even if each one of these patients were able to access abortion after the order’s current expiration date (i.e., even if the order is not extended), many of the medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE), and five of the six procedural abortion patients would require a comparatively more complicated procedural abortion method known as the D&E (or Dilation & Evacuation) technique. That technique requires more time in the clinic and a larger number of staff than aspiration abortion. Moreover, because these patients would continue to be pregnant for a longer period of time, they would be at increased risk of negative health outcomes if they are diagnosed with COVID-19.2
19. Between Wednesday and Friday of this week, PPGTSHS has seventeen medication abortions and eleven procedural abortions scheduled. Even if each one of these patients were able to access abortion after the order’s current expiration (i.e., it is not extended), many medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE). One of the procedural abortion patients would be beyond the legal gestational limit for abortion in Texas, another would be within days of that limit, and two others would be more than twenty weeks pregnant.
20. PPGTSHS will cancel non-emergency future surgical abortion appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, because of the AG’s interpretation of the Executive Order, we have
2 Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq.html.
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21. I declare under penalty of perjury that the foregoing is true and correct.
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EXHIBIT A

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Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 1 of 28
EXHIBIT 7

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 2 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF ANN SCHUTT-AINE, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Ann Schutt-Aine, M.D., declare as follows:
1. I am a board-certified obstetrician and gynecologist licensed to practice in the state of Texas, and I have been practicing in Houston, Texas, since 2008. I have served as the Chief Medical Officer of Planned Parenthood Center for Choice (“PPCFC”) since 2017.
2. PPCFC is a Texas not-for-profit corporation that is headquartered in Houston. It operates a licensed ambulatory surgical center in Houston and a licensed abortion facility in Stafford. PPCFC and its predecessor organizations have provided abortion in Houston and southeast Texas since 1973.
3. In my current role at PPCFC, I supervise physicians and clinicians and have oversight responsibility for PPCFC’s medical services. This includes responsibility for the quality assurance of those medical services, as well for the promulgation of and adherence to the medical protocols pursuant to which the services are provided. I also provide abortion care.

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4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, the Emergency Rule, and a press release by the Texas Attorney General interpreting the Executive Order.
5. The facts and opinions included here are based on my education, training, practical experience, information, and personal knowledge I have obtained as an OBGYN and an abortion provider; my attendance at professional conferences; review of relevant medical literature; and conversations with other medical professionals. If called and sworn as a witness, I could and would testify competently thereto.
6. My curriculum vitae, which sets forth my experience and credentials more fully, is attached as Exhibit A. The Executive Order and Threatened Enforcement
7. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.”
2

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Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
8. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, protective eyewear, gowns, and shoe covers.
9. PPCFC has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit B. That policy permitted PPCFC to continue offering procedural and medication abortion, consistent with the Executive Order’s purpose and plain language and the views of trusted national medical organizations.
10. On Monday, March 23, 2020, PPCFC received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton. A true and correct copy of that release, entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic,” is attached as Exhibit C.
11. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-
3

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19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.” PPCFC’s Provision of Abortion Care
12. Legal abortion is one of the safest medical procedures in the United States.1 There are two main methods of abortion: medication abortion and procedural abortion. Both methods are effective in terminating a pregnancy.2 Complications from both medication and procedural abortion are rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than onequarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester procedural abortion cases, and in 0.41% of procedural cases in the second trimester or later.3 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.4
13. Medication abortion involves a combination of two pills: mifepristone and misoprostol.5 The patient takes the first medication in the health center and then, typically twentyfour to forty-eight hours later, takes the second medication at a location of their choosing, most
1 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018).
2 Luu Doan Ireland et al., Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecol. 22 (2015).
3 Ushma Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecol. 175 (2015).
4 Ushma Upadhyay, et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16(1) BMC Med. 1, 1 (2018).
5 Nat’l Acads., supra note 1, at 51. 4

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 6 of 28
often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Medication abortion is not a “procedure.”
14. Current medical evidence demonstrates that medication abortion is safe and effective through eleven weeks of pregnancy as measured from the first day of a pregnant patient’s last menstrual period (“LMP”). However, Texas law, Tex. Health & Safety Code § 171.063, restricts the first drug used in medication abortion to use as described in the federally approved label, which is for pregnancies less than ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-informationpatients-and-providers/mifeprex-mifepristone-information. Accordingly, although PPCFC would provide medication abortion up to eleven weeks LMP if it could legally do so, it currently cannot provide this method of abortion in Texas beyond ten weeks LMP (through seventy days).
15. Texas law also requires that medication abortion be preceded by an ultrasound, Tex. Health & Safety Code § 171.012(a)(4), and followed by an in-person follow-up appointment within fourteen days, Tex. Health & Safety Code § 171.063(a)(2), (e), even though neither step is medically necessary in every case.
16. While sometimes referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Up to approximately fifteen weeks LMP, clinicians use the aspiration abortion technique, which involves dilating the natural opening of the cervix using medications and/or small, expandable rods, inserting a narrow, flexible tube into the uterus, and emptying the uterus through suction. This procedure typically takes five to ten minutes. To perform abortions after that gestational point in pregnancy, clinicians must dilate the cervix further and use instruments to empty the uterus, which is called the dilation and evacuation (“D&E”) technique.
5

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Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself. In the absence of a lethal fetal anomaly, PPCFC performs procedural abortion up to twentyone weeks, six days LMP.
17. For some patients with pregnancies less than ten weeks LMP, medication abortion is not available because it is contraindicated or there are other factors that necessitate a procedural abortion, such as where the patient has an allergy to the medications or other medical conditions that make procedural abortion relatively more safe.6
18. In 2019, PPCFC performed 6,152 abortions. Of those, 1,083 occurred beyond ten weeks LMP, and were therefore necessarily performed as procedural abortion. Of those 5,069 occurring before ten weeks LMP, 2,877 were done by procedural abortion and the remainder by medication abortion.
19. In January and February 2020, PPCFC performed 1,074 abortions, 216 of which occurred beyond ten weeks LMP and were therefore necessarily performed as procedural abortions. Of those 858 abortions occurring before ten weeks LMP, 429 were done by procedural abortion and the remainder by medication abortion.
20. Individuals seek abortion for a multitude of complicated and personal reasons. By way of example, some patients have abortions because they conclude it is not the right time to become a parent or have additional children,7 they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or
6 Nat’l Acads., supra note 1, at 51–52. 7 Indeed, a majority of women having abortions in the United States already have at least one child. Guttmacher Inst., Induced Abortions in the United States 1 (2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; see also Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda, Guttmacher Inst., Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, at 6, 7 (2016), https://www.guttmacher.org/sites/default/ files/report_pdf/characteristics-us-abortion-patients-2014.pdf.
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stability.8 Other patients seek abortions because continuing with the pregnancy could pose a
greater risk to their health.9 Indeed, while much is unknown about COVID-19, including whether
it can complicate pregnancy, some pregnant people may be exposed to additional health risks from
the disease. The American College of Obstetricians and Gynecologists (“ACOG”) has warned that
“pregnant women are known to be at greater risk of severe morbidity and mortality from other
respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be
considered an at-risk population for COVID-19.”10
21. The window during which a patient can obtain an abortion in Texas is limited.
Pregnancy is generally forty weeks in duration, but Texas prohibits abortion after twenty-two
weeks LMP. See Tex. Health & Safety Code § 171.044.11
22. Although abortion is a very safe medical procedure, the health risks associated with
it increase with gestational age.12 As ACOG and other well-respected medical professional
organizations have observed, abortion “is an essential component of comprehensive health care”
8 That strain is all the more apparent if one considers that the vast majority— approximately 75%—of abortion patients nationwide are poor or have low incomes. Guttmacher Inst., Induced Abortions in the United States 1, supra note 7.
9 M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13 BMC Women’s Health 7 (2013).
10 Am. Coll. of Obstetricians & Gynecologists, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/ practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-womenfaq.html.
11 This provision prohibits an abortion when “the probable post-fertilization age of the unborn child is 20 or more weeks.” Id. “Post-fertilization age” means “the age . . . as calculated from the fusion of a human spermatozoon with a human ovum,” id. § 171.042, which is two weeks before a patient’s last menstrual period. Thus, twenty weeks post-fertilization age is twenty-two weeks LMP.
12 Nat’l Acads., supra note 1, at 77–78, 162–63.
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and “a time-sensitive service for which a delay of several weeks, or in some cases days, may
increase the risks [to patients] or potentially make it completely inaccessible.”13
23. Patients generally seek abortion as soon as they are able, but many face logistical
obstacles that can delay access to abortion care. Patients will need to schedule an appointment,
gather the resources to pay for the abortion and related costs,14 and arrange transportation to a
clinic, time off of work (often unpaid, due to a lack of paid time off or sick leave), and possibly
childcare during appointments.15 Texas law requires most patients to make these arrangements
multiple times even though they could just as safely obtain care in one visit. Tex. Health & Safety
Code § 171.012 (mandating that patients receive an ultrasound at least twenty-four hours before
an abortion procedure).16 Delay results in higher financial and emotional costs to the patient. Minor
patients, unless emancipated, must also obtain written consent from a parent or a judicial order
before they can receive care. Tex. Family Code § 33.003.
24. The COVID-19 pandemic has only exacerbated these burdens on patients seeking
abortion care. It has limited public transit availability, caused layoffs and other work disruptions,
13 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
14 Texas prohibits public insurance, including Medicaid, and insurance purchased on the state health exchange from covering abortion services except in the very limited circumstances where a patient’s physical health or life is at risk, or where the pregnancy is a result of rape or incest that has been reported to law enforcement. Tex. Insurance Code § 1218.001; Tex. Human Resources Code § 32.024.
15 Jerman et al., supra note 7; Sarah E. Baum et al., Women’s Experience Obtaining Abortion Care in Texas After Implementation of Restrictive Abortion Laws: A Qualitative Study, 11 PLoS One 1, 7–8, 11 (2016); Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, & Ann M. Moore, Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 335 (2006).
16 A patient who lives more than 100 miles from the nearest abortion provider can rely on a waiver of the twenty-four requirement, but will still be subjected to a two-hour requirement. See id.
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shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing.17 Indeed, jobless claims are soaring due to the virus.18
25. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. And while clinicians performing procedural abortion at PPCFC use some PPE, such as gloves for each procedure, a mask, and protective eyewear, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.19 For an ultrasound or laboratory exam, including one that accompanies medication or procedural abortion, we use only non-sterile gloves.

17 Tex. Exec. Order No. GA-08 (Mar. 19, 2020) (closing Texas schools and discouraging

Texans from participating in non-essential activities); Jacqulyn Powell, Will Child Care Centers

Shut Down During COVID-19 Outbreak?, KXAN, Mar. 23, 2020, https://www.kxan.com/news/

education/will-child-care-centers-shut-down-during-covid-19-outbreak/ (“Statewide, the

Department of Health and Human Services says 2,400 child care operations have reported closures

due to COVID-19.”); Metro. Transit Authority of Harris Cty., METRO Response to Coronavirus

(COVID-19), https://www.ridemetro.org/Pages/Coronavirus.aspx (last visited Mar. 24, 2020)

(public transit authority in Harris County noting a “sharp ridership decline” and announcing

reduced frequency of bus services and reducing customer seating); see also White House, The

President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/

wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf;

Rebecca

Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More

Weeks, NBC News, Mar. 20, 2020, https://www.nbcnews.com/politics/donald-trump/fauci-

predicts-americans-will-likely-need-stay-home-least-several-n1164701.

18 See Matt Largey, COVID-19 Is Costing People Their Jobs. Here’s How to Apply for Unemployment in Texas, KUT 90.5, Mar. 19, 2020, https://www.kut.org/post/covid-19-costingpeople-their-jobs-heres-how-apply-unemployment-texas (Texas unemployment claims between March 15 and March 18 were eleven times higher than for the same period in 2019); Tex. Workforce Comm’n, TWC Extends Call Center Hours (Mar. 23, 2020), https://twc.texas.gov/ news/twc-extends-call-center-hours (Texas Workforce Commission reporting that it has received “an unprecedented call volume as a result of COVID-19”).

19 Per CDC guidance, PPCFC provides patients for whom there is a concern for COVID19 or other upper respiratory disease with a mask. Ctrs. for Disease Control & Prevention,

9

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26. By comparison, even if a provider of prenatal care reduces the scheduling of such care during the COVID-19 outbreak, it will still involve use of masks, sterile gloves, and potentially other PPE during multiple visits.20 A patient continuing a pregnancy will thus require significantly more PPE than a patient presenting for abortion. Furthermore, every time a pregnant person presents to the hospital for evaluation prior to labor, which could happen multiple times, this will require the use of masks and sterile gloves. An actual birth could involve anywhere from seven to ten gowns, masks, and sterile gloves.
27. PPCFC does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID-19 pandemic.
28. PPCFC does not provide inpatient care, nor is it set up to do so. PPCFC’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
29. PPCFC is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
30. Since the COVID-19 outbreak, PPCFC has taken steps to preserve much-needed medical resources and help prevent the spread of COVID-19 in the communities where we offer services. Even before the Governor’s order, for example, we had reduced our patient volume to ensure that we comply with current social-distancing recommendations. In addition, although in normal times we welcome support companions accompanying abortion patients, we have decided
Frequently Asked Questions about Personal Protective Equipment (Mar. 14, 2020), https://www. cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html.
20 ACOG, Examples of Alternate or Reduced Prenatal Care Schedules (Mar. 24, 2020), https://www.acog.org/en/Clinical%20Information/Physician%20FAQs/-/media/287cefdb936e4c da99a683d3cd56dca1.ashx.
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not to allow such companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
31. We have also made dramatic changes to the flow of our patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever. Only those individuals who are thoroughly screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a nurse will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
32. PPCFC reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that PPCFC’s physicians have determined are necessary to “correct a serious medical condition 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,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
33. Based on this enforcement risk, PPCFC has already cancelled services for more than fifty abortion patients through Wednesday of this week.
34. PPCFC will cancel non-emergency future procedural abortion appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, because of the AG’s interpretation of the Executive Order, we have
11

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cancelled all non-emergency medication abortions until we obtain clarity on the scope of the Executive Order or the Court grants relief.
35. Even if each one of these patients were able to access abortion after the order’s current expiration date (i.e., even if the order is not extended), many of the medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE), and some procedural abortion patients would require a comparatively more complicated procedural abortion method using the D&E technique. That technique requires more time in the clinic and a larger number of staff than aspiration abortion, another method of procedural abortion. Moreover, because these patients would continue to be pregnant for a longer period of time, they would also be at increased risk of negative health outcomes if they are diagnosed with COVID19.21 Other patients could be foreclosed from receiving an abortion altogether because the delay of the order would extend their pregnancies beyond the legal gestational limit for abortion in Texas.
36. The Executive Order could well exacerbate the COVID-19 crisis, by delaying abortion care for patients with health problems until they need intensive emergency care or by forcing patients to travel to other states, potentially using public transportation, even though public health experts have advised the public to minimize activities outside the home. If the Executive Order, as interpreted by the Attorney General, is enforced, it will deprive PPCFC’s patients of the freedom to make a very personal decision, in consultation with their families and doctors, regarding whether to continue or end their pregnancies. It will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
21 Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID19 and Pregnant Women, supra note 10.
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37. Without access to PPCFC’s abortion services and those of other Texas abortion
providers, some patients will be forced to travel hundreds of miles across state lines to try to access
abortion care. Given the logistical hurdles of traveling out-of-state, particularly during the COVID-
19 pandemic, these patients are likely to obtain abortions later than they would have had they accessed care from PPCFC, which necessarily entails greater risks than an earlier procedure.22
Efforts to travel are also likely to expose both patients and other people to additional risk of
contagion, at a time when other states and Texas’s most populous counties have given urgent
directives to their citizens to stay home as much as possible to avoid inadvertently spreading the
COVID-19 virus.
38. For other patients, travel to another state will simply not be possible to the extent
travel remains legally possible during the pandemic. As a result, these patients will be forced to
carry unwanted pregnancies to term, resulting in a deprivation of their fundamental right to
determine when and whether to have a child or to add to their existing families, as well as greater
health and other risks to them and their children.
39. Even if some patients affected by the Executive Order are able to obtain an abortion
after the order is lifted, they will still suffer increased risks to their health by the delay in access to abortion care.23 Many will also face increased costs related to abortion, as their abortion access is
22 As of this filing, eighteen Texas counties have issued stay-at-home orders. See Wes Wilson, Here’s Which Texas Cities and Counties Have Issued Stay-at-Home Orders, KXAN (last updated Mar. 24, 2020), https://www.kxan.com/news/coronavirus/heres-which-texas-citiesand-counties-have-issued-stay-at-home-orders/; Alex Samuels, Texas’ Largest Counties Are Issuing Stay-at-Home Orders, Tex. Tribune (Mar. 23, 2020), https:// www.texastribune.org/2020/03/23/austin-travis-county-issue-stay-home-order-tuesday/. In some counties, non-compliance with these orders is punishable by fines or jail time. See, e.g., Texas County’s Curfew Amid Coronavirus Spread is Punishable by Fines Up to $1,000, Jail Time, WHNT News 19 (Mar. 21, 2020), https://whnt.com/news/texas-countys-curfew-amidcoronavirus-spread-is-punishable-by-fines-up-to-1000-jail-time/.
23 Nat’l Acads., supra note 1, at 77–78, 162–63.
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pushed to later gestational points when abortion is more expensive and may require a two-day procedure, instead of one. These costs, in turn, will likely lead to additional delay and present an even greater hardship to vulnerable populations during the economic fallout of the COVID-19 pandemic.
40. Although the Order indicates that it will expire after a 30-day period, the likelihood that it will be extended is high. Certainly it is clear that the pandemic is likely to continue well beyond this period.24
41. I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

onions ________________________________
Ann Schutt-Aine, M.D.

24 See, e.g., Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/healthcare-supply-ppe.html.
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Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 16 of 28
EXHIBIT A

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 17 of 28

Ann I. Schutt-Ainé, MD, FACOG

E​DUCATION​ ​AND​ T​RAINING

U​NDERGRADUATE​: September 1992 – May 1996

Yale University New Haven, CT BS, Biology, 1996 cum laude,​ distinction in Biology

G​RADUATE​: September 1996 – June 2000

Harvard Medical School Boston, MA MD, 2000

P​OSTGRADUATE​:

June 2000 – June 2004

Magee-Womens Hospital of the

University of Pittsburgh Medical Center

Pittsburgh, PA

Obstetrics, Gynecology and Reproductive Sciences

P​ROFESSIONAL​ E​XPERIENCE

August 2017 – Present

Chief Medical Officer Planned Parenthood Gulf Coast Houston, TX

April 2017 – August 2017

Medical Director Planned Parenthood Gulf Coast Houston, TX

September 2008 – Present

Assistant Professor, Obstetrics and Gynecology Baylor College of Medicine Houston, TX

September 2011 – March 2017

Associate Medical Director Planned Parenthood Gulf Coast and PPCfC Houston, TX

August 2008 – Present August 2007 – July 2008

Contract Physician Planned Parenthood Center for Choice (PPCfC) Houston, TX
Associate Medical Director, Ob/Gyn

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 18 of 28

Planned Parenthood Golden Gate San Francisco Bay Area

July 2004 – July 2007

Obstetrician/Gynecologist Primary Care Health Services, Inc. Pittsburgh, PA

March 2004 – June 2007 Planned Parenthood of Western Pennsylvania

Contract Physician Pittsburgh, PA

A​DDITIONAL​ ​TRAINING​/​EXPERIENCE

October 2018 – March 2019

US Physician Leadership Academy A six-month program produced by Deloitte and the Wharton School, “targeted to practicing physicians who have taken on increasing levels of leadership and administrative responsibility in their careers and aspire to be enterprise-wide leaders.”

February 2015

Excellence in Family Planning Research Course An intensive one week course in epidemiology, research design, and evidence-based medicine.

September 2009 – April 2010

Fellow – Leadership Training Academy

Physicians for Reproductive Choice and Health

An eight-month, intensive program aimed to develop and internalize the skills and attributes needed

to be a powerful, effective advocate for

comprehensive sexual and reproductive health

care.

A​PPOINTMENTS​ ​AND​ P​OSITIONS

A​CADEMIC

September 2008 – present

Assistant Professor, Obstetrics and Gynecology

Director – Ryan Residency Training Program in Family Planning (2010-2018)

July 2004 – July 2007

Clinical Assistant Professor of Obstetrics, Gynecology and Reproductive Sciences University of Pittsburgh School of Medicine

N​ON​-A​CADEMIC April 2011 – April 2019

Board of Directors, National Abortion Federation

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 19 of 28
Chair, Quality Assessment and Improvement Committee Chair-Elect, Board of Directors: 2015-2016 Chair, Board of Directors: 2016-2018
C​OMMITTEES​/O​THER​ A​CTIVITIES
ACOG District XI Legislative Committee (2013) ACOG Committee on Healthcare for Underserved Women (2015-2019) Baylor College of Medicine, Department of Ob/Gyn Clinical Competencies Committee Ben Taub Hospital Ob/Gyn Quality Committee Ben Taub OB/GYN Peer Review Committee Houston Endowment’s Improving Maternal Health Initiative – Implicit Bias Workgroup Society of Family Planning Clinical Affairs Subcommittee Trainer – Merck/Nexplanon contraceptive implant (2011 – 2016)
C​ERTIFICATION​ ​AND​ L​ICENSURE
M​EDICAL​ L​ICENSURE​: Texas medical license Louisiana medical license California medical license (expired) Pennsylvania medical license (expired) DEA license
S​PECIALTY​ C​ERTIFICATION​: Certified Diplomate of the American Board of Obstetrics and Gynecology, December 2006
M​EMBERSHIP​ ​IN​ P​ROFESSIONAL​ ​AND​ S​CIENTIFIC​ S​OCIETIES
American College of Obstetricians and Gynecologists, 1999 – present National Medical Association, 2001 – present Pennsylvania Medical Society, 2005 – 2007 Pittsburgh Obstetrical and Gynecology Society, 2005 – 2007 Association of Reproductive Health Professionals, 2007 – present Harris County Medical Society, 2007 – present Houston Medical Forum, 2009 – present National Abortion Federation, 2010 – present Society of Academic Specialists in General Obstetrics and Gynecology, 2013 – present
H​ONORS
National Health Service Corps Scholarship Recipient, 1997 Medical Student Teaching Award, 2001 National Medical Association/NIH Resident Travel Award, 2001 Fulbright and Jaworski Faculty Excellence Award in Training and Evaluation, 2012

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 20 of 28

English Spanish

L​ANGUAGES​ S​POKEN

P​UBLICATIONS

Schutt-Aine A, Crabtree D, Peck M and Levy JS. R1022: 34-year-old G2P2 Caucasian female who desires contraception [Internet]. Newtown Square, PA: CaseNetwork; 2015. http://cases.casenetwork.com​.

Contraceptive Procedures Beasley A and Schutt-Ainé A. Obstet Gynecol Clin North Am. 2013 Dec;40(4):697-729.

Schutt-Aine AI and Timmins AE (2013). Sexual Assault Examination. In EF Reichman (Ed.), Emergency Medicine Procedures (Second Edition). New York: McGraw Hill Education.

Linares AC and Schutt-Aine, AI (2011). Contraception. In R. Rakel and D.Rakel (Eds.), Textbook of Family Medicine (Eighth Edition). Philadelphia: Saunders.

I​NVITED​ P​RESENTER​/P​ANELIST

“What do women need and want with respect to contraception after medical abortion?” – Gynuity Health Projects Conference, Contraception after Medical Abortion: Evidence-based Practice to Meet Women’s Needs; Santa Monica, CA; March 2016

“Real World Systems Change” – Physicians for Reproductive Health Alumni Professional Development Summit; Washington, DC; May 2016

“Métodos y esquemas medicamentosos para la interrupción lega del embarazo (ILE)” – Gynuity Health Projects and Corporación Miles Conference, Uso de Mifepristona y Misoprostol en la Ginecología y Obstetricia; Santiago, Chile; August 2017.

“In Pursuit of Healthcare Equality, The Healthcare Crisis for Women in Texas: Maternal Mortality and Other Medical Issues” – Anti-Defamation League Women’s Initiative Breakfast; Houston, TX; March 2018

Keynote Address – ACLU of Texas Reproductive Freedom in Action Annual Conference; April 2018

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 21 of 28
EXHIBIT B

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 22 of 28
Planned Parenthood Center for Choice (“PPCFC”) Policy in Response to Texas Executive Order GA 09 Relating to Hospital Capacity During the COVID-19 Disaster
PURPOSE
In light of the global pandemic of COVID-19, Governor Abbott signed Executive Order (“EO”) GA 09 on March 22, 2020, attached, which is in effect until 11:59 p.m. on April 21, 2020. EO GA 09 directs “all licensed health care professionals and all licensed health care facilities” 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 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.” EO GA 09 goes on to state that this prohibition does 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.”
POLICY
To comply with EO GA 09, PPCFC hereby establishes the following policies which shall remain in effect until rescinded or modified:
1. Surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or 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, and which would deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster, are not to be scheduled while this policy is in effect.
2. Physicians shall determine on a case-by-case basis whether a procedure that would deplete hospital capacity or personal protective equipment needed to cope with COVID-19 can be delayed without risk for serious adverse medical consequences or death.
3. PPCFC’s physicians have made the determination that abortion is a time-sensitive service and an essential component of comprehensive care, for which a delay of 30 days, or even less, increases the risks to patients, or make abortion completely inaccessible, and that such delay in accessing or inability to access an abortion exposes patients to risk of a serious adverse medical consequence.
4. In making this determination, PPCFC’s physicians considered or will consider the following:

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 23 of 28
a. The purpose and text of EO GA 09, namely: concern for “a shortage of hospital capacity or personal protective equipment” that could “hinder efforts to cope with the COVID-19 disaster.”
b. The stated 30-day duration of a the delay, taking into account the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
c. The fact that pregnancy has a duration of approximately forty weeks, as measured from the first day of a woman’s last menstrual period (LMP) and that most abortions are banned in Texas beginning at 20 weeks gestation. Tex. Health & Safety Code § 171.044.
d. The fact that, while abortion is an extremely safe medical procedure, delay increases the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 16263 (2018). Delay is of particular concern during the COVID-19 crisis, given guidance from the Center for Disease Control (“CDC”) and American College of Obstetricians and Gynecologists (“ACOG”) that pregnant women may be at heightened risk of severe illness, morbidity, or mortality from viral respiratory infections such as COVID-19.1
e. The Joint Statement by the American College of Obstetricians and Gynecologists (“ACOG”), the American Association of Gynecologic Laparoscopists, et al., on Elective Surgeries2, issued March 16, 2020, which states that “Obstetric and gynecologic procedures for which a delay will negatively affect patient health and safety should not be delayed. This includes gynecologic procedures and procedures related to pregnancy for which delay would harm patient health. Obstetrician–
1 Available at https://www.acog.org/clinical/clinical-guidance/practiceadvisory/articles/2020/03/novel-coronavirus-2019 and https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq.html
2 Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-electivesurgeries

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 24 of 28
gynecologists and other health care practitioners should be aware of the unintended impact that policies responding to COVID-19 may have, including limiting access to time-sensitive obstetric and gynecological procedures.” f. The Joint Statement by the ACOG, the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak3, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a timesensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.” 3. All procedures which cannot be reasonably delayed and thus which are scheduled and performed, in accordance with the above considerations and in compliance with EO GA 09, shall be performed while making every effort to conserve PPE and to reduce the possibility of spread and transmission of COVID-19.
3 Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak

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EXHIBIT C

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 26 of 28

(https://www.texasattorneygeneral.gov/)

Menu

March 23, 2020
Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic

Texas Attorney General Ken Paxton today warned all licensed health care professionals and all licensed health care facilities, including abortion providers, that, pursuant to Executive Order GA 09 issued by Gov. Greg Abbott, they must postpone all surgeries and procedures that are not immediately medically necessary.

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 27 of 28
On Saturday, Gov. Abbott issued an executive order that “all 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.” This prohibition applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.
The COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus. Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals. Failure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.

Case 1:20-cv-00323-LY Document 7-7 Filed 03/25/20 Page 28 of 28
“We must work together as Texans to stop the spread of COVID-19 and ensure that our health care professionals and facilities have all the resources they need to ght the virus at this time,” said Attorney General Paxton. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
For information on the spread or treatment of Coronavirus (COVID-19), please visit the Texas Department of State Health Services (https://dshs.texas.gov/coronavirus/) website.

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 1 of 6
EXHIBIT 8

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF PLAINTIFF ROBIN WALLACE, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Robin Wallace, M.D., declare as follows:
1. I am a board-certified family medicine physician, with additional specialty training in family planning, and an M.A.S. in clinical research. I am licensed to practice in Texas. I am a Plaintiff in this case, representing myself and my patients.
2. I am the co-medical director of Southwestern Women’s Surgical Center (“Southwestern”), a licensed ambulatory surgical center in Dallas, Texas. Southwestern provides medication abortion through 10 weeks as measured from the first day of the patient’s last menstrual period (“LMP”) and procedural abortion services through 21.6 weeks LMP. Southwestern does not provide inpatient care, nor is it set up to do so.
3. As co-medical director, my responsibilities include: review and development of clinic protocols, training of all new physician staff, quality assurance review, and representing the medical staff on the administrative management team and governing board. In addition to my other

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 3 of 6
responsibilities as co-medical director, I also personally provide abortion care to patients through 21.6 weeks LMP.
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a pregnant person. I have reviewed the Executive Order and a press release by the Texas Attorney General interpreting it.
5. The facts I state here are based on my experience, my review of Southwestern’s business records, information obtained in the course of my duties at Southwestern, and personal knowledge that I have acquired through my service at Southwestern. If called and sworn as a witness, I could and would testify competently thereto. The Executive Order and Threatened Enforcement
6. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does not apply to “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not
2

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 4 of 6
deplete the hospital capacity or the personal protective equipment [“PPE”] needed to cope with the COVID-19 disaster.” Id.
7. Southwestern understands the term PPE to refer to surgical masks, N95 respirators (a face covering designed to block at least 95 percent of very small test particles), sterile and nonsterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. The services Southwestern provides do not involve significant amounts of PPE or deplete PPE.
8. On Monday, March 23, 2020, the Attorney General issued a press release interpreting the Executive Order, titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.” The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers multiple times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
9. Southwestern is uncertain as to the scope of the Executive Order and the subsequent press release by the Attorney General, and, as a result, largely stopped seeing patients on March 23, 2020. The clinic has cancelled approximately 225 appointments for the last two days, March 23 and March 24. Unless we obtain immediate relief, we intend to continue canceling appointments.
3

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 5 of 6
10. The window during which a patient can obtain an abortion in Texas is limited. Pregnancy is generally forty weeks in duration, but Texas prohibits abortion after twenty-two weeks LMP except in very narrow circumstances. See Tex. Health & Safety Code § 171.044. Southwestern’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
11. Southwestern is committed to doing its part to minimize spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
12. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. Based on Southwestern’s patient load, in an average week, we use the following PPE: a few boxes of non-sterile gloves; approximately 15 pairs of sterile gloves for procedures after 15 weeks LMP; approximately 15 gowns; around 24 pairs of shoe coverings per day; and a handful of simple surgical masks and reusable eyewear.
13. Since the COVID-19 outbreak, and prior to the Executive Order, Southwestern took extensive steps to protect patients and staff and minimize the use of PPE. For example, we have been screening our patients and staff for COVID-19; we have cancelled trainings for medical students, residents, and fellows; and have begun restricting the use of new surgical masks and gowns. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
14. Southwestern reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that Southwestern’s physicians have determined are necessary to “correct a serious medical condition of … a patient who without immediate performance of the surgery or procedure would
4

Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 6 of 6

be at risk for serious adverse medical consequences or death, as determined by the patient’s physician,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
15. Based on this enforcement risk, Southwestern cancelled 225 appointments scheduled for Tuesday, March 24 and Wednesday, March 25. Southwestern is unsure how to proceed but plans to resume certain appointments where care does not involve new PPE. Still, some patients who would have had medication abortions as scheduled prior to the Executive Order will require procedural abortions instead (and correspondingly greater amounts of PPE). And, some procedural patients may be pushed within days of the limit in Texas or beyond it.
16. If the Executive Order, as interpreted by the Attorney General, is enforced, it will deprive some patients of the freedom to make an intimate and personal decision essential to their dignity and autonomy. It will immeasurably harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Dr. Robin Wallace

5

Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 1 of 5
EXHIBIT 9

Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF KAMYON CONNER, M.S.W.

KAMYON CONNER, M.S.W. hereby declares under penalty of perjury that the following

statements are true and correct:

1. I am the Executive Director of the North Texas Equal Access Fund (“TEA Fund”),

a Dallas-based nonprofit organization that provides direct financial assistance to people who want

to end a pregnancy but cannot afford abortion care in Texas.

2. I have provided services at TEA Fund for nearly fifteen years, first as a volunteer

fielding calls for assistance to our hotline, known as the Helpline, from 2006 to 2013, and then as

a Board Member and Intake Coordinator until 2018. In the latter roles, I helped shape the mission

and strategy of the organization based on our clients’ experiences, and I participated in the TEA

Fund’s financial and resource distribution planning .

3. In my current role as Executive Director of the TEA Fund, I oversee our Helpline;

Client Engagement Program, which supports clients throughout the process of terminating a

pregnancy, including in-person support during an abortion procedure; Caller Engagement

Program, which organizes people throughout Texas to advocate for abortion access with dignity,

1

Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 3 of 5
including by sharing stories of their abortion experiences; and Communications. These programs are run by six other staff members and over 125 active volunteers.
4. I provide the following testimony based on personal knowledge acquired through my service at the TEA Fund and review of the organization’s business records.
Ongoing Challenges to Obtaining Abortion Care in Texas 5. In 2019, the Helpline received over 6,500 calls from people seeking help paying for an abortion. The calls came from 110 counties in Texas, many of them rural. At least 70% of the callers already had a child. Texas requires most patients to make two trips to obtain abortion care, which imposed transportation and childcare costs on many of the callers while depriving them of wages. For some, efforts to gather resources on their own had forced them to delay their appointments, which only increased the cost of their abortion care because it occurred at a later gestational age. 6. The TEA Fund allocates funds for abortions per week and only provides financial assistance for those scheduled within seven days of a call. A caller can qualify for assistance depending on their financial circumstances, the amount of financial aid they are able to obtain from other sources, and the total cost of the abortion. When a caller qualifies, the TEA Fund sends a financial voucher to the abortion provider with whom the patient’s appointment is scheduled and pays the provider after the patient has received care. In 2019, the TEA Fund provided over $277,000 to assist 924 Texas residents in obtaining abortions. 7. Unfortunately, financial constraints prevent us from providing financial assistance to every caller who needs it and from covering the full cost of the abortion for the callers we can help. In 2019, we were able to provide financial assistance to about one-quarter of the people who requested it. Through our Client Engagement Program, we have observed that some callers who
2

Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 4 of 5
receive our assistance experience an emotional strain from having to meet the remaining costs, which makes their overall abortion experience stressful.
Impact of Executive Order 8. The public health crisis precipitated by COVID-19 has exacerbated the difficulties Texans, particularly low-income people and people of color, have affording abortion care. Many of our recent callers are struggling with layoffs and furloughs, dealing with the possibility of eviction, experiencing other unforeseen medical costs, and contending with increased utility bills caused by sheltering at home. 9. I understand that Attorney General Paxton has interpreted an Executive Order by Governor Abbott concerning the public health crisis to ban most abortions. I also understand that this interpretation would eliminate most or all abortion care for my clients, which would have a devastating effect on their well-being. 10. The TEA Fund began committing funding for abortions in Texas for the current seven-day period on Thursday, March 19. The Attorney General publicized its interpretation on Monday, March 23. Between March 19 and 23, we committed funding to more than two dozen clients, many of whom will now be unable to obtain an abortion in Texas while the Executive Order remains in effect. At least four of those clients are over 18 weeks lmp. They will undoubtedly lose the ability to obtain an abortion in Texas before the Executive Order expires on April 21, 2020. 11. The inability to receive an abortion in Texas usually drives TEA Fund clients to seek that care out-of-state, including New Mexico, Colorado, and Louisiana. But long-distance travel is increasingly dangerous and difficult during the public health crisis given the toll of COVID-19 on already-limited resources and the pronounced difficulty of securing childcare
3

Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 5 of 5 during the crisis. Moreover, my understanding from collaborating with abortion funds and providers in other states is that abortion care is presently unavailable in Louisiana. Clients who are unable to access abortion in Texas or do so in another State are forced to remain pregnant against their will, which can cause them and their families extreme anguish, and potentially forced to carry to term. Dated: March 25, 2020
/S/ Kamyon Conner Kamyon Conner Executive Director TEA Fund
4

Case 1:20-cv-00323-LY Document 7-10 Filed 03/25/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

[PROPOSED] TEMPORARY RESTRAINING ORDER Plaintiffs have moved for a temporary restraining order to enjoin Defendants’ efforts to immediately ban most abortion during the COVID-19 pandemic through their application of Governor Greg Abbott’s March 22, 2020, Executive Order GA 09, “Relating to hospital capacity during the COVID-19 disaster” and the Texas Medical Board’s emergency amendment to 22 Tex. Admin. Code § 187.57, which imposes the same requirements as Executive Order GA 09. The Court, having considered the pleadings, legal authority, and argument presented in support of Plaintiffs’ Motion, as well as the Declarations submitted with that Motion, has found and concluded, for the specific reasons required under Federal Rule of Civil Procedure 65(d) and Local Rule 65.01, that Plaintiffs have shown (1) a likelihood of success on the merits, (2) that they will suffer irreparable harm if a preliminary injunction is not granted, (3) that the balance of equities tip in Plaintiffs’ favor, and (4) that a temporary restraining order is in the public interest. Specifically, the Court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the Texas Attorney

Case 1:20-cv-00323-LY Document 7-10 Filed 03/25/20 Page 2 of 3
General, violates Plaintiffs’ patients’ liberty rights under the Fourteenth Amendment by banning abortion before viability. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a woman’s right to choose abortion, Roe v. Wade, 410 U.S. 113, 153–54 (1973), and prior to viability, a state has no interest sufficient to justify a ban on abortion, id. at 163–65; see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846, 871 (1992) (reaffirming Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.”); Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per curiam); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 268–69 (5th Cir. 2019). The Attorney General’s interpretation of the Executive Order would either ban all non-emergency abortions in Texas or ban all non-emergency abortions in Texas starting at ten weeks of pregnancy, and even earlier among patients for whom medication abortion is not appropriate. On either interpretation, it would amount to a previability ban, which contravenes decades of Supreme Court precedent, including Roe. Plaintiffs are likely to succeed on the merits of their Fourteenth Amendment substantive due process claim.
In addition, Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order. The Attorney General’s interpretation of the Executive Order prevents Texans from exercising their fundamental constitutional right to terminate a pregnancy. It is well established that, where a plaintiff establishes a constitutional violation, no further showing of irreparable injury is necessary. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of [constitutional] freedoms . . . unquestionably constitutes irreparable injury.”); Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981). Plaintiffs’ requested relief will “essentially continue[] the status quo,” tipping the balance of equities toward Plaintiffs and serving the public
2

Case 1:20-cv-00323-LY Document 7-10 Filed 03/25/20 Page 3 of 3
interest. Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013), aff’d, 760 F.3d 448 (5th Cir. 2014); United States v. Texas, 508 F.2d 98, 101 (5th Cir. 1975).
THEREFORE, it is hereby ORDERED that the motion (Doc. ___) is GRANTED and that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Governor Greg Abbott’s March 22, 2020, Executive Order GA 09, “Relating to hospital capacity during the COVID-19 disaster,” and the Texas Medical Board’s emergency amendment to 22 Tex. Admin. Code § 187.57, as applied to medication abortion or procedural abortion.
This Temporary Restraining Order shall expire on _________, 2020 at _______ _.m., unless extended by the parties and the Court.
Plaintiffs shall not be required to post bond. IS SO ORDERED.
SIGNED this _______ day of ____________________________, 2020.
_________________________________________ HON. LEE YEAKEL UNITED STATES DISTRICT JUDGE
3

 
 Case 1:20-cv-00323-LY Document 29 Filed 03/30/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

PLAINTIFFS’ SUPPLEMENTAL STATEMENT IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs file this supplemental statement in support of their motion for a temporary restraining order to correct a factual misstatement by the Texas Attorney General’s Office during the March 27, 2019, conference and to bring to the Court’s attention additional evidence in support of Plaintiffs’ motion.
During the March 27 conference, counsel with the Attorney General’s Office stated that Plaintiffs were asking for an exemption from the Executive Order and Emergency Rule to use “thousands of N95 masks for their procedures that then are not able to be used by hospitals and health care providers to treat the crisis.” Telephone Conf. Tr. at 11:4–6 (Stephens), Mar. 26, 2020. That statement is contrary to all evidence in the case. Four of the six institutional Plaintiffs reported that they neither have nor use N95 respirators. Barraza Decl. ¶ 8; Ferrigno Decl. ¶ 13; HagstromMiller Decl. ¶ 16; Lambrecht Decl. ¶ 12; Schutt-Aine Decl. ¶ 27. The fifth institutional Plaintiff reported that it had a “small number” of N95 masks that it “generally does not use” and explained that a single provider there “has been wearing and reusing a single N95 mask during all face-to-

Case 1:20-cv-00323-LY Document 29 Filed 03/30/20 Page 2 of 5
face interactions with patients” during the COVID outbreak. Klier ¶¶ 6, 13. The sixth institutional Plaintiff reported that although it had “a limited number of N95 masks at the clinic,” which is consistent with a recommendation it received from the Dallas County Health and Human Services, it “would only use them if [it] were treating a patient with a suspected or confirmed COVID-19 infection” and that it had not used any to date. Id. ¶¶ 16, 21. In sum, the facts show that a single clinician is reusing a single N95 mask for patient interactions, that only two of the six institutional Plaintiffs even have N95 masks in stock, and that, apart from the single mask that is being reused, that small supply of masks is not currently being used.
Plaintiffs also submit as Exhibit 10 in support of their Motion for a Temporary Injunction and a Preliminary Injunction the Declaration of Jane Doe. Ms. Doe is a Texas resident and was among those patients whose abortion appointments were cancelled last week because of the Executive Order in this case. Ms. Doe’s declaration supports Plaintiffs’ assertion that the Executive Order and Emergency Rule will only exacerbate the ongoing public health crisis and that any benefit from those challenged actions cannot possibly outweigh the burdens those actions are imposing and will continue to impose on patients. See Mot. for TRO and/or Prelim. Inj. & Mem. of Law in Supp. at 21–25.
CONCLUSION For these reasons and those set forth in Plaintiffs’ previous submissions, this Court should grant Plaintiffs’ motion for a temporary restraining order and/or preliminary injunction to enjoin enforcement of the Executive Order and Emergency Rule, as interpreted by Defendants, to prohibit abortions.
Dated: March 30, 2020 Respectfully submitted,
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Case 1:20-cv-00323-LY Document 29 Filed 03/30/20 Page 3 of 5
/s/ Patrick J. O’Connell Patrick J. O’Connell Texas Bar No. 15179900 Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for All Plaintiffs
Julie Murray (pro hac vice pending) Alice Clapman (pro hac vice pending) Richard Muniz (admitted pro hac vice) Hannah Swanson (admitted pro hac vice) PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org alice.clapman@ppfa.org richard.muniz@ppfa.org hannah.swanson@ppfa.org
Jennifer Sandman (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
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Molly Duane (pro hac vice pending) Rabia Muqaddam (pro hac vice pending) Francesca Cocuzza (pro hac vice pending) CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org Attorneys for Plaintiffs Southwestern Women’s Surgery Center and Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center Stephanie Toti Rupali Sharma (admitted pro hac vice) Sneha Shah (pro hac vice pending) LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org Attorneys for Plaintiffs Whole Woman’s Health and Whole Woman’s Health Alliance
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CERTIFICATE OF SERVICE AND NOTICE I certify that on this 30th day of March, 2020, I filed a copy of the above document on CM/ECF, which will provide notice to Mr. Andrew Stephens, counsel for Governor of Texas; Ken Paxton, in his official capacity as Attorney General of Texas; Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board; and Katherine A. Thomas, in her official capacity as Executive Director of the Texas Board of Nursing.
/s/ Patrick J. O’Connell Patrick J. O’Connell I certify that on this 30th day of March, 2020, I emailed a copy of the above document to: leslie.dippel@traviscountytx.gov sherine.thomas@traviscountytx.gov joe.gonzales@bexar.org John.Creuzot@dallascounty.org Russell.Roden@dallascounty.org daesparza@epcounty.com Melissa.Spinks@cao.hctx.net josephine.ramirez@da.co.hidalgo.tx.us Barry.Johnson@co.mclennan.tx.us swilson@tarrantcountytx.gov /s/ Julie Murray Julie Murray
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EXHIBIT 10

Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JANE DOE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Jane Doe declares the following: 1. I am a 24-year-old college student and reside in Arlington, Texas. My appointment
for an abortion in Texas on March 23, 2020, was cancelled because of Governor Abbott’s Executive Order No. GA-09.
2. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin the Executive Order, as interpreted by the Texas Attorney General to ban most abortions in Texas as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order.
3. The facts I state here are based on my personal experience. 4. I am studying to become a secondary school teacher. I am planning to graduate this spring, but I have not gotten a teaching position yet.

Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 3 of 8
5. Throughout college, I have been waiting tables part-time to support myself. About three weeks ago, I lost my job. Because of the COVID-19 outbreak, my restaurant announced that it would close down for eight weeks. It gave my coworkers and me information about applying for unemployment.
6. The same week I lost my job waiting tables, I became worried that I might be pregnant, even though my partner and I had been using birth control. Even before I took the athome pregnancy test, I knew what I was going to do if it was positive. My partner and I were on the same page: This wasn’t the right time. I had just lost my job. I was still in school. And I would need to start applying and interviewing for new jobs, which I expected would be harder to get if schools knew I was pregnant. And the biggest factor for me was simply that I didn’t want to become a parent right now.
7. Coronavirus was all over the news, but I wasn’t panicked about getting an appointment until I started calling abortion clinics. That’s when I realized it was going to be tough to be seen in a timely fashion. Clinics kept telling me they couldn’t see me for three or four weeks. Eventually, I secured an appointment in Fort Worth for the following week.
8. On Friday, March 20, I went to the clinic alone. I wasn’t allowed to bring my partner because of the social distancing rules in place. In order to limit the number of patients inside the clinic, they actually had us sign in and wait in our cars. I sat in my car in the clinic parking lot for two hours before I was able to enter the building. Lots of other patients were waiting in their cars, too. Meanwhile, anti-abortion protesters stood about 10 feet away with signs and screamed at me and other patients. Later, I heard some nurses talking about how one woman got intimidated and drove off.
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9. The appointment took five hours. The clinic gave me a sonogram over my belly and took blood. I was under 10 weeks pregnant so I qualified for a medication abortion. But Texas has a 24-hour waiting period, so the clinic couldn’t let me go forward with the medication abortion that day even though I was certain of my decision and did not want to expose myself or anyone else to further risk of infection by having to come in for a second appointment. I had to come back for a second appointment. The soonest they could see me was in four days, which was Tuesday, March 24.
10. I was experiencing severe pregnancy symptoms. I was throwing up every day throughout the day. I wasn’t able to study or eat. I felt so tired I could barely get out of bed. But I had no choice except to wait.
11. The night of Monday, March 23, I got a phone call from the clinic. My second appointment the next day was cancelled. The staffer told me that Gov. Greg Abbott halted all abortions in the state, claiming that medical supplies needed to be saved for other patients. I started to cry, and she cried too. She told me my only option at that point was to go out of state or delay my abortion and possibly be forced to have a baby. I was dumbfounded. I had a plan and everything came crashing down.
12. My partner was with me during the call, and we cried together afterward. Waiting to see if I could get an abortion later in Texas was not an option. I felt so sick. I didn’t want to be pregnant one day longer, and I couldn’t risk the possibility that I would run out of time to have an abortion while the outbreak continued. It seemed to be getting more and more difficult to travel. I also wanted to have a medication abortion so that I could do it in the privacy of my own home with my partner. Because of the clinic’s rules during the COVID-19 outbreak, support companions weren’t allowed in the clinic at all during procedural abortions. The clinic told me that medication
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abortion wasn’t available after ten weeks of pregnancy in Texas, so I knew that if I wanted to obtain a medication abortion, I needed to act quickly.
13. After the call, my partner and I began researching abortion restrictions in the states nearest Texas. Oklahoma has a 72-hour waiting period so I didn’t want go there. I would have had to make more than one trip during the pandemic to meet that requirement and spend even more than I already had to.
14. We also looked at clinics in New Mexico, which would have been about a ninehour drive each way for me. One was closed, and the others told me they couldn’t see me for three or four weeks.
15. So then we looked at Colorado. I made a bunch of calls. On Monday night at about 11 p.m., I finally was able to make an online appointment with a clinic in Denver that could see me for a medication abortion on Thursday.
16. It’s a 12-hour drive from my house and roughly 780 miles on the road one-way to Denver. My partner couldn’t afford to miss work to accompany me. We were worried that he would have to explain to his boss why he was taking three days away from work. We didn’t want to reveal to his employer that I was having an abortion. Luckily, my partner still has a job.
17. I couldn’t have done the drive alone, and I was scared. My best friend came up on Tuesday from Austin to go with me. She also lost her job at a restaurant a couple weeks ago, so she was free.
18. My partner packed a box of sanitizing supplies for us to take on our trip, and we brought food to help avoid the need to make stops and risk exposure to the virus. My friend and I started out early on Wednesday and drove throughout the day. I rented the cheapest AirBnB I could find in Denver, and we wiped it down with disinfectant when we got there before sleeping.
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19. My appointment was in the afternoon on Thursday, March 26. I noticed when we arrived at the clinic that two other cars with Texas license plates were in the parking lot. I had to go through the sonogram, bloodwork, and counseling all over again. But since Colorado does not have a 24-hour waiting period, the clinic I went to was able to give me the medication for my abortion without further delay. I took the first pill there and they sent me home with the second pill.
20. My friend and I started the twelve-hour drive home at 3:30 p.m. It felt like we were in a race against time because the clinic recommended that I take the second pill 24 to 30 hours after the time I took the first pill. We didn’t want to take breaks or rest because I was worried about having my abortion in the car.
21. We drove about six hours but had to stop. It was pitch black, and we were exhausted. It was too dangerous for us to keep going. We had to rent a hotel room and stay there until the morning.
22. I got home in the afternoon on Friday, March 27. The provider in Colorado had recommended that I try to get as comfortable as possible before taking the second pill. I wanted to make sure I could eat a meal before taking the medication because I worried I would feel too nauseous afterwards to eat anything. By the time I took the second pill, nearly thirty hours had passed since the first one.
23. I was exhausted, and only then was I able to have my abortion. I passed the pregnancy Friday night at home with my partner.
24. With the cost of the AirBnB, gas, food, and parking, I’ve had to pay a lot more money out of pocket to get this abortion than I should have had to. I’ve spent nearly $1,000,
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including the cost of the abortion itself, which is not covered by my health insurance. I’ve had to drain my savings to pay these costs.
25. Then there’s the additional stress. Obviously, had this pregnancy not been a factor, I wouldn’t be traveling during a pandemic. I already felt like it was risky for me to travel to a nearby clinic in Fort Worth to have my appointment. Instead, I was forced to drive across the country, to stop at dirty gas stations, to stay in an unfamiliar home, just to get health care. I feel like Texas put me, and my best friend, in danger.
26. With all of this stress and unexpected travel, I haven’t been able to finish my application for unemployment benefits yet, so I probably won’t get a check for at least another week. Even then the benefits will be a fraction of what I made working at a restaurant, and I now have fewer savings to cover the difference.
27. Despite everything I’ve been through this week, I feel incredibly grateful. I had savings. I have a partner with income. I don’t already have kids. I had a best friend with a car who could go with me on a long, unexpected trip. So far I’m not sick. So many Texans don’t have those things right now. And unlike me, many of them are much further along in pregnancy than I was. I have no idea how they’re going to get the abortion care they need. Based on my own experience, I expect many will not. I know I was desperate, and desperate people take desperate steps to protect themselves.
28. I was born and raised in Texas. Right now, I feel let down by my government. I feel like Governor Abbott doesn’t care about me or other patients who need essential abortion care. Why is my life not important enough to him and the other men making these decisions? Frankly, I feel like my constitutional rights were violated when I needed them the most.
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 8 of 8 29. I want to submit this declaration under a pseudonym because the information I am sharing in this action about my reproductive health care history is private and personal. I would not feel comfortable if this information and my name became public, especially because I will be looking for a job in the coming weeks. I also fear that if this information and my name became public, I would become a target for harassment by anti-abortion protestors. 30. I swear under penalty of perjury that the foregoing is true and correct. Executed March 29, 2020
/s/ Jane Doe* Jane Doe
*I have signed a copy of this declaration with my actual name and given it to Plaintiffs’ attorneys for their records.
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 Case 1:20-cv-00323-LY Document 30 Filed 03/30/20 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER §

FOR CHOICE, et al.,

§

§

Plaintiffs,

§ §

Civil Action No. 1:20-cv-00323-LY

v.

§

§

GREG ABBOTT, et al.,

§

§

Defendants.

§

§

STATE DEFENDANTS’1 RESPONSE TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

1 Defendants Greg Abbott, in his official capacity as Governor of Texas, Ken Paxton, in his official capacity as Attorney General of Texas, Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board, and Katherine A. Thomas, in her official capacity as the Executive Director of the Texas Board of Nursing (collectively “State Defendants”).

Case 1:20-cv-00323-LY Document 30 Filed 03/30/20 Page 2 of 43
TABLE OF CONTENTS
Page TABLE OF CONTENTS................................................................................................ 1 INTRODUCTION .......................................................................................................... 3 STATEMENT OF FACTS ............................................................................................. 5
A. The COVID-19 Pandemic Presents the Gravest Public Health Emergency to Texas in Over a Century.......................................................... 5 1. Absent extraordinary measures, the Texas healthcare system could face the same systemic collapse now unfolding in other places. ....................................................................................................... 6 2. Health systems in New York and Louisiana stand on the brink of collapse.................................................................................................. 7
B. Texas Takes Extraordinary Measures to Prepare for a Surge of COVID-19 Infections. ...................................................................................... 9 1. Governor Abbott issues EO GA-09 to ensure the survival of Texas healthcare. ................................................................................... 10 2. EO GA-09 imposes a blanket ban on medical procedures that are not medically necessary to preserve needed resources. ........................ 11
LEGAL STANDARD.................................................................................................... 12 ARGUMENT ................................................................................................................ 13 I. The Court Should Deny the Motion for Temporary Restraining Order. ............ 13
A. Plaintiffs Have No Likelihood of Success on the Merits. ............................. 13 1. EO GA-09 applies to all physicians and clinics, including Plaintiffs. ................................................................................................ 13 a. Elective abortions are not “immediately medically necessary” ........................................................................................ 13 b. Surgical abortions use valuable PPE. ............................................ 14 c. Abortions may result in complications, which will impact hospitals........................................................................................... 15 d. Medication abortions are a “procedure” within the scope of EO GA-09..................................................................................... 15 e. Abortion clinics may contribute to the spread of COVID19 by remaining open. ..................................................................... 18 2. EO GA-09 is a valid exercise of state power. ........................................ 19 a. Longstanding precedent permits States to exercise their police power in an emergency to protect public health.................. 19
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b. Individual rights, including abortion, may be temporarily curtailed in a time of emergency. ................................................... 20
c. The Casey standard does not categorically exempt abortion from any curtailment for any reason, even previability. ........................................................................................... 23
3. EO GA-09 is Not An Unconstitutional Undue Burden. ........................ 25 a. EO GA-09 imposes no greater burden on women seeking abortions in the next three weeks than it does on other people seeking surgeries or procedures. ......................................... 25 b. The benefits of EO GA-09 are compelling. ..................................... 28
B. Plaintiffs Cannot Satisfy the Other Elements Necessary for a Temporary Restraining Order. ..................................................................... 31
II. Numerous Jurisdictional Defects Bar Any TRO. ................................................ 33 A. Plaintiffs’ claims against the Governor and the Attorney General are barred by sovereign immunity and Plaintiffs’ lack of standing. ........... 33 1. The Ex parte Young doctrine does not allow suit against the Governor and Attorney General, who do not have independent authority to enforce the Executive Order.............................................. 33 2. Plaintiffs lack article III standing to sue the Governor and Attorney General because, as to these defendants, Plaintiffs have not alleged injury in fact or redressability. .................................. 35 B. Plaintiffs lack third-party standing to challenge EO GA-09 on behalf of their unidentified patients. ............................................................ 37 C. The Court lacks jurisdiction to opine on the meaning of state law under Pennhurst. ........................................................................................... 39 D. The Pullman abstention doctrine prohibits the Court from issuing a TRO. ............................................................................................................ 39
CONCLUSION............................................................................................................. 40 CERTIFICATE OF FILING AND SERVICE ............................................................. 42
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INTRODUCTION The State of Texas faces its worst public health emergency in over a century. Never in our lifetimes have so many Texans been threatened with severe illness or death due to a pandemic sweeping the globe. The novel coronavirus (“COVID-19”) infections has turned New York City hospitals into triage wards operating under battlefield conditions as doctors make life-or-death decisions about which intensive-care patients will receive a ventilator and which will die. Absent extraordinary measures, Texas will soon face a similar landscape. Against that backdrop, Governor Abbott swiftly implemented emergency measures to protect our communities, hospitals, healthcare providers, and patients. Executive Order GA-09 orders every single physician and health clinic in the State to temporarily refrain from performing any medical procedure that is not “immediately medically necessary.” DX-4 (EO GA-09). This Executive Order will save countless lives by preventing further spread of the disease by unnecessary contact and ensuring the conservation of personal protective equipment (“PPE”) and hospital capacity necessary to protect the healthcare professionals who will save Texans from this disease. But Plaintiffs—a collection of abortion clinics and one abortionist physician—ask this Court to grant them a special exemption, claiming a right to deplete or endanger precious PPE resources and hospital capacity in the name of providing abortions. They have no right to special treatment. After all, “the law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007). The State’s efforts to stop the spread of COVID-19 are far-reaching precisely because COVID-19 presents a grave threat to public health. Because of the COVID-19
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pandemic, counties in Texas and elsewhere have closed all but the most essential businesses and ordered residents to shelter-in-place. Throughout the country, millions of people lost their livelihoods almost overnight. Churches may no longer gather for worship services, groups of more than 10 people may no longer assemble (for expressive purposes or even private gatherings), schools and universities have closed, and people may no longer visit loved ones in nursing homes or assisted care facilities.
These measures are no doubt inconvenient in many cases, and catastrophic in others. They undoubtedly restrict Texans’ freedom to carry on our lives as we normally would. But they are necessary. Government authorities expect a surge of COVID-19 cases in the very near future, and Texas is trying to ensure that we have adequate medical supplies, hospital capacity, and healthcare workers to prevent the system from collapsing. That happened already in Italy, and the situation is very grim in New York City and New Orleans. Every person affected by these temporary measures could argue that his individual actions won’t spread the virus, so his individual noncompliance won’t have a negative effect on public health. But the rules must apply to all to protect us all.
The Court should deny the motion for temporary restraining order for five reasons: (1) plaintiffs cannot establish a likelihood of success on the merits of their claims because they are being treated exactly like every other physician and clinic in the State of Texas during a national emergency, and the right to abortion does not have preeminence over all of the other individual liberties that are being temporarily curtailed; (2) plaintiffs fail to allege irreparable harm because they have not alleged that even a single patient will not be able to receive an abortion after the expiration of EO GA-09 in three weeks; and (3) the balance of the equities weighs in the State’s favor
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because the critical need to protect public health justifies this temporary order; (4) preserving across-the-board application of EO GA-09 is overwhelmingly in the public’s interest; (5) and the Court cannot issue a TRO in any event because it lacks jurisdiction.
STATEMENT OF FACTS A. The COVID-19 Pandemic Presents the Gravest Public Health Emer-
gency to Texas in Over a Century. The spread of COVID-19, the disease caused by the novel coronavirus known as SARS-CoV-2, has become a global pandemic. Thompson Decl. ¶ 3 (DX-8). As of March 29, the virus has infected 721,584 people around the world and killed 33,958.2 There are currently 124,686 cases in the United States and that number continues to grow exponentially.3 After an Imperial College of London study predicted high fatalities in the United States without decisive action, the White House issued sweeping new recommendations on March 16, 2020, including that people not gather in groups of more than 10.4 Epidemic modeling estimates on the impact of the virus are dire. One of the authors of the Imperial College of London study stated: We estimate that the world faces an unprecedented acute public health emergency in the coming weeks and months. Our findings suggest that all countries face a choice between intensive and costly measures to suppress transmission or risk health systems becoming rapidly overwhelmed. However, our
2 Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://gisanddata.maps.arcgis .com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6. 3 Id. 4 Sheri Fink, White House Takes New Line After Dire Report On Death Toll, (N.Y. Times, Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-fatalityrate-white-house.html.
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results highlight that rapid, decisive and collective action now will save millions of lives in the next year.5
1. Absent extraordinary measures, the Texas healthcare system could face the same systemic collapse now unfolding in other places.
A very serious concern is that the healthcare system will collapse from the sud-
den influx of very ill patients. Italy was hit hard by the virus in early March. Within
a few weeks, its healthcare system was on the brink of collapse, with doctors having
to ration care based on which patients were more likely to survive.6 In only a “matter
of days, the system was being felled by a virus that . . . Italians[] had failed to take
seriously.”7 A group of Italian physicians wrote last week in the New England Journal
of Medicine that the outbreak is “out of control”:8
Our own hospital is highly contaminated, and we are far beyond the tipping point: 300 beds out of 900 are occupied by Covid-19 patients. Fully 70% of ICU beds in our hospital are reserved for critically ill Covid-19 patients with a reasonable chance to survive. The situation here is dismal as we operate well below our normal standard of care. Wait times for an intensive care bed are hours long. Older patients are not being resuscitated and die alone without appropriate palliative care, while the family is notified over the phone . . . . Most hospitals are overcrowded, nearing collapse while medications, mechanical ventilators, oxygen, and personal protective equipment are not available. Patients lay on floor mattresses. The health care system struggles to deliver regular services — even pregnancy care and child delivery — while
5 Ryan O’Hare, Coronavirus Pandemic Could Have Caused 40 Million Deaths If Left Unchecked, https://www.imperial.ac.uk/news/196496/coronavirus-pandemic-couldhave-caused-40/. 6 Mattia Ferraresi, A Coronavirus Cautionary Tale From Italy: Don’t Do What We Did, (Boston Globe, Mar. 13, 2020), https://www.bostonglobe.com/2020/03/13/opinion/coronavirus-cautionary-tale-italy-dont-do-what-we-did/. 7 Id. 8 Mirco Nacoti, et al, At the Epicenter of the Covid-19 Pandemic and Humanitarian Crises in Italy: Changing Perspectives on Preparation and Mitigation, NEJM Catalyst: Innovations in Care Delivery, Mar. 22, 2020), https://catalyst.nejm.org/ doi/full/10.1056/CAT.20.0080.
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cemeteries are overwhelmed, which will create another public health problem.9
2. Health systems in New York and Louisiana stand on the brink of collapse.
There are signs of similar strain beginning to show in the United States. New
York City is one of the epicenters of the disease. Footage of overflowing emergency
rooms in New York is sobering.10 On March 27, New York City had 21,873 COVID-
19 infections, 281 deaths, and at least 3,900 hospitalized.11 One day later, on March
28, it was reporting 30,765 infections.12 On March 29, 2020, 33,474 cases are re-
ported.13 At one hospital in Queens, thirteen people died in a single day.14 Temporary
morgues have been pieced together using refrigerated trucks, while medical staff lack
adequate PPE and are putting themselves in harm’s way to care for the sick.15
Several doctors, nurses and paramedics told The Associated Press of deteriorating working conditions in emergency rooms and ICUs that make caretakers even more vulnerable. Sick patients are placed in beds packed end-toend. Limited supplies of face masks, gowns and shields have them wearing the same protective equipment all day. A lack of available ventilators could soon put doctors and nurses in the agonizing position of prioritizing who gets them and who does not.16
9 Id. 10 See Bernard Condon, Jim Mustian, and Jennifer Peltz, Video Shows New York City Emergency Room Overflowing With Patients as City on Frontlines of Coronavirus Outbreak, (Associated Press, Mar. 28, 2020), https://abc7ny.com/jamaica-hospitalqueens-new-york-city-nyc-coronavirus/6058195/. 11 Id. 12 Coronavirus Disease Daily Data Study, https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-daily-data-summary.pdf. 13 Id. 14 Id. 15 See Condon, supra note 11 (“A nurse died from coronavirus after working nonstop for weeks at a hospital where staffers frustrated with dwindling supplies posed in gowns made of trash bags.”) 16 Id.; Patrick Madden, Ashley Dean, New Orleans Officials Point to Increasing
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Closer to Texas (and specifically the Houston metropolitan area), New Orleans is another growing epicenter. In Louisiana, Orleans Parish has the highest COVID-19 death rate per capita in the nation.17 On March 22, Louisiana Governor Edwards issued a statewide “stay at home” order, “citing fears that the Louisiana health care system could run out of capacity in as short a time as a week.”18 PPE shortage is a major concern, with Louisiana healthcare workers reporting “a lack of protective equipment amid a surge in new coronavirus cases in the region.”19 At one hospital in New Orleans, 60 employees have already tested positive for the virus and another 300 are quarantined. Marier Decl. ¶ 13 (DX-9). State health experts are projecting that during the first week of April, “there are going to be more sick patients in the greater New Orleans region than there are hospital beds to care for them.”20 One official described this as “absolutely frightening.”21 Another said, “This is a disaster that will define us for generations.”22
Spread of COVID-19 Cases, https://www.npr.org/sections/coronavirus-live-updates/ 2020/03/27/822461580/new-orleans-officials-point-to-increasing-spread-of-covid-19cases. 17 Missy Wilkinson, New Orleans ER Workers Say Hospitals Are Verging On ‘Systemic Collapse,’ https://www.vice.com/en_us/article/7kzjby/covid-19-new-orleans-louisianahospitals-coronavirus-emergency. 18 Id. 19 Andrea Gallo, Blake Paterson and Matt Sledge, Louisiana Nurses Face Start Choice Between Personal Protection, Coronavirus Patient Care, https://www.nola.com/ news/coronavirus/article_5ffada98-7071-11ea-9c12-0bbed00fccd5.html. 20 Rosemary Westwood, ‘This Is Absolutely Frightening’: Louisiana Hospitals Brace For The Worst of COVID-19, https://www.wwno.org/post/absolutely-frightening-louisiana-hospitals-brace-worst-covid-19. 21 Id. 22 Vann R. Newkirk II, Watch New Orleans, (The Atlantic, Mar. 27, 2020), https:// www.theatlantic.com/politics/archive/2020/03/coronavirus-pandemic-coming-new-orleans/608821/.
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B. Texas Takes Extraordinary Measures to Prepare for a Surge of COVID-19 Infections.
COVID-19 has also spread to Texas. The number of cases in Texas has jumped 156% from just five days ago. See DX-3. An “exponential increase” in COVID-19 cases is expected over the next few days and weeks. Abraham Decl. ¶4 (DX-6). Such a drastic increase will pose serious threats to the ability of Texas’s emergency healthcare system to continue providing effective care. Id. According to Dr. Heidi Abraham, the Associate EMS Medical Director for Austin/Travis County Emergency Medical Services, unless the infection rate can be slowed and PPE and hospital capacity preserved, emergency healthcare in Austin and Travis County is “in danger of becoming overburdened in a very short time.” Abraham Decl. ¶ 9.
Texas law makes the Governor “responsible for meeting the dangers to the state and people presented by disasters.” Tex. Gov’t Code § 418.011. Governor Abbott declared a statewide disaster on March 13, 2020 pursuant to Texas Government Code section 418.014. DX-1. The Government Code grants the Governor broad authority once he has declared a disaster. In a disaster, the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” Id. § 418.016. The Governor may even “commandeer or use any private property if the governor finds it necessary to cope with a disaster.” Id. § 418.017(c). These powers are exercised by the Governor through the issuance of executive orders, proclamations, and regulations, which the Governor also has the power to amend or rescind. Id. at § 418.012. Executive orders, proclamations, and regulations “have the force and effect of law.” Id.
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On March 19, 2020, Dr. John Hellerstedt, Commissioner of the Department of State Health Services, declared a public health disaster under Texas Health and Safety Code section 81.082 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.” DX-2.
1. Governor Abbott issues EO GA-09 to ensure the survival of Texas healthcare.
Avoiding collapse requires the entire healthcare system to conserve resources. Abraham Decl. ¶¶ 8-9. But despite guidance “from the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services” to postpone elective procedures, “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.” DX-4.23
The national shortage of PPE along with an increased need for it to deal with highly infectious patients is a major concern. Abraham Decl. ¶¶ 4-6. Many hospitals in Texas are critically short on supplies. After the disaster declaration, the State
23 See also Jenny Gold, Some Hospitals Continue With Elective Surgeries Despite COVID-19 Crisis, (Kaiser Health News, Mar. 20, 2020), https://khn.org/news/somehospitals-continue-with-elective-surgeries-despite-covid-19-crisis/ (“[E]xperts interviewed . . . found it troubling that hospitals would continue to perform elective surgeries in the face of the coronavirus threat, both because of the toll on scarce national supplies and because it puts staff and patients at unnecessary risk of exposure.”)
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Medical Operations Center had received 2,178 requests for PPE from health care facilities in Texas. Hoogheem Decl. ¶ 5 (DX-10).24 One of North Texas’s largest hospitals, Parkland, is in danger of running out of protective masks “in as little as three weeks, a drastic drop from normal times when the supply could last for three months.”25 At Anson General Hospital, north of Abilene, “the supply of N95 masks was down to 14 on Monday [March 23].”26 At Goodall-Witcher Hospital, north of Waco, the hospital administrator “said he had read that between shift breaks and staffing changes, treating a single COVID-19 patient might require as many as 40 masks per day. On Monday [March 23], his 25-bed hospital had fewer than 75.”27
2. EO GA-09 imposes a blanket ban on medical procedures that are not medically necessary to preserve needed resources.
Based on these concerns, on March 22, 2020, the Governor issued an executive order designed to increase the capacity of Texas’s healthcare system to absorb a surge of COVID-19 patients and address the severe shortage of PPE. DX-4 (EO GA-09). The order applies to all licensed health care professionals and all licensed health care facilities in the State. It requires that they “postpone all surgeries and procedures that are not immediately necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or
24 To put this in perspective, Texas had 407 hospitals as of 2017. Laura Dyrda, How Many Hospitals Does Each State Have?, (Becker’s Hosp. Rev., Feb. 2, 2017), https://www.beckershospitalreview.com/hospital-transactions-and-valuation/howmany-hospitals-does-each-state-have.html. 25 Scott Friedman, Eva Parks, Jose Sanchez and Jack Douglas Jr., Desperate to Keep Protective Gear in Stock, North Texas Nurses Told to Re-Use Face Masks, https://www.nbcdfw.com/investigations/desperate-to-keep-protective-gear-in-stocknorth-texas-nurses-told-to-re-use-face-masks/2337375/. 26 Emma Platoff, Texas Hospitals Brace for Coronavirus Surge With Uncertain Stocks of Protective Gear, (Tex. Tribune, Mar. 25, 2020). 27 Id.
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procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Id. It does not, however, 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.” Id. The Order is effective until April 21, 2020. Id. According to Dr. Robert Marier, Vice Chairman of Hospital Medicine for the Ochsner Health System and a board-certified infectious disease expert, this measure has a “sound basis,” especially in light of the “risk of transmission in health care settings.” Marier Decl. ¶ 14. According to Dr. Abraham, “uniform compliance” with EO GA-09 is “vital for the immediate safety of our community.” Abraham Decl. ¶ 9.
LEGAL STANDARD A temporary restraining order is “an extraordinary remedy that should only issue if the movant shows: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest.” Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). “[T]he enormity of the relief is difficult to overstate.” Trinity USA Operating, LLC v. Barker, 844 F. Supp. 2d 781, 785 (S.D. Miss. 2011) (citing Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2948 (noting that courts describe such requests as “drastic,” “extraordinary,” and the requesting party must make a “clear showing”)). The Court should proceed with caution in this context, where the issuance of a TRO would have the effect of countermanding an executive order issued by the Governor to protect public safety in a national emergency.
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ARGUMENT I. The Court Should Deny the Motion for Temporary Restraining Order.
Plaintiffs have not satisfied any of the four requirements for a TRO. A. Plaintiffs Have No Likelihood of Success on the Merits.
1. EO GA-09 applies to all physicians and clinics, including Plaintiffs.
The plain language of EO GA-09 temporarily curtails “surgeries and procedures,” unless they are (1) “not immediately necessary to correct a serious medical condition of, or preserve the life of a patient,” or (2) would not deplete hospital capacity or use needed PPE resources. Elective abortions—whether medical or surgical— do not meet either of these criteria and are therefore prohibited by EO GA-09. And according to Dr. Timothy Harstad, the perinatal medical director at St. David’s Medical Center in Austin, “suspending elective abortion procedures would help preserve valuable PPE and hospital capacity.” Harstad Decl. ¶5 (DX-7).
a. Elective abortions are not “immediately medically necessary”
Abortions are considered an elective procedure unless they are therapeutic, meaning performed for medical reasons. See id. ¶ 3, 5. Therapeutic abortions are rare and are performed in hospitals, not abortion clinics. Id. ¶ 3. And “elective abortions are never ‘immediately medically necessary.’” Thompson Decl. ¶ 5. Thus, under the plain text of EO GA-09, “abortion providers should not be exempted.” Id. To the extent Plaintiff argue that they could somehow comply with EO GA-09 and still perform elective abortions, Pls. Mot. TRO 12-13, they are mistaken.
Because the plain text shows otherwise, Plaintiff argue that abortion is “essential health care” and therefore should not be included in any measures taken to expand hospital capacity for COVID-19 cases, and that they should be able to use opinions of
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industry groups to justify their decision to flout the law. Pls. Mot. TRO 12-13. The American College of Obstetricians and Gynecologists (ACOG) issued a statement opposing the categorization of abortion as a procedure that can be delayed during the COVID-19 pandemic, asserting that “abortion is an essential component of comprehensive health care.” Pls. Mot. TRO 14. But 86% of OB/GYNS do not even perform abortions.28 Regardless, EO GA-09 does not refer to “essential health care.” Under the language of EO GA-09, elective abortions are not “immediately necessary,” nor do they “correct a serious medical condition.” See also Thompson Decl. ¶ 5; Harstad Decl. ¶5. Thus, EO GA-09 clearly prohibits the performance of elective abortions, like other elective procedures, for a limited period of time.
b. Surgical abortions use valuable PPE. Plaintiff admit that they use PPE when performing surgical abortions. Compl. ¶ 54. They claim that they will try to use less in light of the shortage. Compl. ¶ 51. While that is admirable, the point of EO GA-09 is to preserve all possible PPE for the vital purpose of protecting healthcare workers on the front lines of fighting COVID19—a measure that is essential to preventing a systemic collapse due to the spread of infection to those workers. Abraham Decl. ¶¶ 5-6, Hoogheem ¶ 3; see also Marier Decl. ¶ 6, 11-13. Plaintiffs’ use of PPE for any non–medically necessary procedures is prohibited by EO GA-09.
28 Debra Stulberg, et al., Abortion Provision Among Obstetrician-Gynecologists, Obstet. Gynecol. 2011 Sep; 118(3): 609–614, https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3170127/.
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c. Abortions may result in complications, which will impact hospitals.
Plaintiffs admit that abortion complications occur and that they sometimes require hospitalization or treatment at an emergency room. Compl. ¶ 40. Planned Parenthood has conceded that at least 210 women each year in Texas are hospitalized after seeking an abortion. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 595 (5th Cir. 2014). That is about four women every week. Using the rate Plaintiffs give for major complications, 0.23%, Compl. ¶ 40, that is two women every week. And because abortion doctors are not required to have admitting privileges at a nearby hospital, see Hellerstedt, 136 S. Ct. at 2299, they cannot admit and take care of their own patients. Instead, patients suffering complications are sent to an emergency room. Thus, aside from taking up needed beds in the midst of this pandemic, abortion patients will also further burden overtaxed emergency departments during a surge of COVID-19 cases. See Abraham ¶ 9.
d. Medication abortions are a “procedure” within the scope of EO GA-09.
Plaintiffs argue that medication abortions are not a “procedure” within the meaning of the Order. The definition of “procedure” in the medical context is “a series of steps for doing something.” Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health (7th ed. 2003). That encompasses medication abortion. According to the Texas Medical Board’s FAQs, the term “procedure” under EO GA-09 excludes only “physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests.”29 And Plaintiffs
29 Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding NonUrgent, Elective Surgeries and Procedures During Texas Disaster Declaration for
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themselves treat medication abortion as a “medical procedure.”30 Medication abortions frequently result in complications that require surgical intervention, and thus use PPE and impact hospital capacity, as discussed above.
i. Undergoing a medication abortion is not like taking an aspirin. As Planned Parenthood states, “[t]he abortion pill process has several steps and includes two different medicines.”31 The procedure begins with the patient taking Mifepristone, which causes the fetus to die.32 Because of “the risks of serious complications,” Mifeprex is “available only through a restricted program under a Risk Evaluation and Mitigation Strategy (REMS) called the Mifeprex REMS Program.”33 A REMS “is a drug safety program that the U.S. Food and Drug Administration (FDA) can require for certain medications with serious safety concerns to help ensure the benefits of the medication outweigh its risks.”34
Between 24 and 48 hours later, the woman is instructed to take a second medi-
COVID-19 Pandemic, Mar. 29, 2020, http://www.tmb.state.tx.us/idl/228ABC7B-298516D5-9C9F-2099C0DADC24. 30 Planned Parenthood Gulf Coast, Disclosure and Consent Form for Medical, Surgical, and Diagnostic Procedures, https://www.plannedparenthood.org/files/6114/0168/ 3065/C107e_Disclosure_and_Consent_for_Medical_Surgical_Diagnostic_ProcedureTexas.pdf. 31 See Planned Parenthood, How Does the Abortion Pill Work?, https://www.plannedparenthood.org/learn/abortion/the-abortion-pill/how-does-theabortion-pill-work. 32 See Mifeprex Medication Guide 17, https://www.fda.gov/media/72923/download. 33 Mifeprex label, https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687 s020lbl.pdf. 34 FDA, Risk Evaluation and Mitigation Strategies, https://www.fda.gov/drugs/ drug-safety-and-availability/risk-evaluation-and-mitigation-strategies-rems.
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cation, misoprostol, which causes her uterus to contract and expel the fetus and placenta.35 Women experience bleeding and cramping during this process.36 With some frequency, these drugs do not completely empty the uterus, which can result in a serious infection.37 Thus, the provider is required to schedule a follow-up appointment with the patient to make sure that the abortion is complete.38
Before prescribing drugs to induce an abortion, Texas law requires a physician to examine the patient. Texas law also requires that “the attending physician, advanced practice registered nurse, or physician assistant . . . obtain[] and document[] a pre-procedure history, physical exam, and laboratory studies, including verification of pregnancy.” Tex. Health & Safety Code § 171.063(c). This physical examination and interaction with staff will require some use of PPE such as gloves or masks, especially during a pandemic where close physical contact (like in the healthcare context) can result in virus transmission, and even asymptomatic people may transmit the virus. Marier Decl. ¶ 6; Abraham Decl. ¶.
ii. It is possible the woman could end up in a hospital and divert COVID-19 resources as a result of a medication abortion. Incomplete medication abortions are common. To even become certified to prescribe mifepristone, the FDA requires providers to agree that they have the “ability to provide surgical intervention in cases of incomplete abortion or severe bleeding, or to have made plans to provide such care through others, and ability to assure patient access to medical facilities equipped to
35 Id. 36 Id. 37 Id. 38 Id.; Tex. Health & Safety Code § 171.063(e)-(f); 25 Tex. Admin. Code 139.53(b)(4).
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provide blood transfusions and resuscitation, if necessary.”39 Mifeprex is currently approved for use up to 70 days (10 weeks) gestation.40 But Mifeprex has an 8% incomplete abortion rate before 49 days (7 weeks) and a more than 15% incomplete abortion rate beyond that gestational age41 There were 17,050 medication abortions in Texas in 2017, so about 328 per week. Assuming the lower 8% incomplete abortion rate, at least 26 women per week in Texas would require surgical intervention. The surgical procedure necessary to complete the abortion or stop the hemorraging will require PPE, and the patient may require hospitalization or a blood transfusion.42 Thus, medication abortion risks impacting hospital resources just like other outpatient elective procedures that may result in a complication or hospital visit, even if that is not typical.
e. Abortion clinics may contribute to the spread of COVID-19 by remaining open.
Aside from impacting PPE supplies and hospital capacity, see Harstad Decl. ¶ 5, Plaintiff’ clinics can contribute to the spread of the virus by continuing to perform non-medically necessary procedures. Abraham ¶¶ 7-8. People infected with COVID19 may infect others prior to the onset of symptoms, and even healthcare workers
39 Mifeprex REMS, https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2019_04_11_REMS_Document.pdf. 40 Mifeprex Medication Guide 16, supra.note 34. 41 Am. Coll. of Obstetricians and Gynecologists, Medical Management of First-Trimester Abortion, Practice Bulletin 143 (2016), https://www.acog.org/clinical/clinicalguidance/practice-bulletin/articles/2014/03/medical-management-of-first-trimesterabortion. 42 Blood supplies are critically low due to the pandemic. See Am. Red Cross, American Red Cross Faces Severe Blood Shortage As Coronavirus Outbreak Threatens Availability of Nation’s Supply, https://www.redcross.org/about-us/news-and-events/pressrelease/2020/american-red-cross-faces-severe-blood-shortage-as-coronavirus-outbreak-threatens-availability-of-nations-supply.html.
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wearing N95 masks cannot completely eliminate the risk of contracting the virus. Marier Decl. ¶¶ 6-8, 11-13; Abraham Decl. ¶ 4. Plaintiffs, however, admit they do not wear N95 masks, Pls. Mot. TRO 22, so they are at increased risk of becoming infected themselves and spreading the virus. Marier Decl. ¶¶ 11-13.Moreover, as Plaintiff state, women travel from other locations to receive abortions at their clinics, and traveling to other parts of the State is exactly what is causing the spread of the virus. See Compl. ¶ 72; Dewitt-Dick Decl. ¶ 22 (“Some [patients] come from over a hundred miles to receive care at our clinic.”); Ferrigno Decl. ¶30 (patients “hail from all over Texas”). In 2017, there were 53,843 abortions performed in Texas. DX-5. That is over 1,000 abortions per week. That is a high volume of people traveling “all over” the State and coming through medical facilities, which risks spreading the illness further. See Abraham Decl. ¶7.
2. EO GA-09 is a valid exercise of state power. EO GA-09 is a proper exercise of the State’s police power, and the right to an abortion recognized by precedent does not preempt public health measures taken in a time of emergency.
a. Longstanding precedent permits States to exercise their police power in an emergency to protect public health.
The Tenth Amendment reserves to the States all powers that are not given to the United States or otherwise prohibited by the Constitution. U.S. Const. Amend. X. This reservation of power includes the police power, which enables the State to act to protect public health. The Supreme Court has “distinctly recognized the authority of a state to enact quarantine laws and health laws of every description.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905). When faced with potential
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epidemics or crises caused by infectious diseases, the Supreme Court has held repeatedly that States may act to protect their citizens without violating the Constitution. See id. (upholding a mandatory vaccination program for small pox against a Fourteenth Amendment challenge); Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380 (1902) (upholding quarantine law that prevented a ship from landing in New Orleans because of infectious disease there against Commerce Clause and procedural due process challenges); Rasmussen v. State of Id., 181 U.S. 198 (1901) (upholding a law that permitted the Governor to ban certain sheep from being imported if evidence of disease was found against a Commerce Clause challenge); see also, e.g., Benson v. Walker, 274 F. 622 (4th Cir. 1921) (upholding board of health resolution that prevented carnivals and circuses from entering a certain county in response to the Spanish flu epidemic).
b. Individual rights, including abortion, may be temporarily curtailed in a time of emergency.
1. While the Constitution is not suspended during a national crisis, Supreme Court precedent allows for States trying to protect public health to take action that may restrict personal liberty to some degree:
There is, of course, a sphere within which the individual may assert the supremacy of his own will . . . But it is equally true that in 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. Jacobson, 197 U.S. at 29. This is true for enumerated rights, like property rights:
That a state, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction. . . . For instance, meats, fruits, and vegetables do not cease to become private property by their decay;
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but it is clearly within the power of the state to order their destruction in times of epidemic, or whenever they are so exposed as to be deleterious to the public health. . . . No property is more sacred than one’s home, and yet a house may be pulled down or blown up by the public authorities, if necessary to avert or stay a general conflagration. Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 704-05 (1897). This is also true for substantive due process rights involving bodily or personal autonomy. For instance, the “liberty secured” by the Fourteenth Amendment includes the right to ‘“live and work where [one] will.’” Jacobson, 197 U.S. at 29 (quoting Allgeyer v. Louisiana, 165 U.S. 578 (1897)). Yet to protect the public against the spread of disease, a states may impose mandatory quarantine orders even as to individuals who are not sick themselves. See id. States may also require mandatory vaccinations, notwithstanding the Fourteenth Amendment. See Jacobson, 197 U.S. at 27-38; see also Phillips v. City of N.Y., 775 F.3d 538 (2d Cir. 2015) (rejecting a substantive due process challenge to New York’s vaccination requirement for publicschool children, relying on Jacobson, 197 U.S. 11). There is no reason a non-enumerated right like abortion should receive greater preference or protection. 2. Further, temporary curtailment in this context is not a denial of the right altogether. Take, for example, this Court’s closure due to the danger of COVID-19. The Court has postponed criminal jury trials until May 1, 2020, a longer period than that at issue with EO GA-09.43 Certainly, the Constitution expressly establishes the right to “speedy and public trial” by jury. U.S. Const. am. VI. But this Court evidently
43 Order Regarding Court Operations Under the Exigent Circumstances Created By the COVID-19 Pandemic, (W.D. Tex. Mar. 13, 2020), https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/Order-Re-COVID19.pdf.
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does not consider the temporary suspension of that right because of the “exigent circumstances” presented by the “severity of the risk” of COVID-19 to “public health” to be an outright denial of the constitutional right to speedy trial by jury.44 Id. The Court has limited its functions to only the most urgent matters, while postponing others, even though those matters are still important.45 That is precisely what EO GA-09 does with medical procedures that are not “immediately medically necessary”; such procedures must be postponed until April 21, 2020, to prepare the healthcare system to absorb a sharp increase in COVID-19 cases.
Further, the right to vote is “the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). It is also expressly protected by the Constitution. U.S. Const. am. XIV § 2, XV, XVII, XIX, XXIV. Yet the Ohio Supreme Court just rejected an effort to challenge the Ohio Department of Health’s order postponing the State’s March 17 primary election until June 2, 2020, due to public health concerns related to COVID-19.46
44 The Court also suspended application of the Speedy Trial Act, 18 U.S .C. § 3161 (h)(7)(A), finding “that the ends of justice served by ordering these continuances outweigh the best interests of the public and each defendant’s right to a speedy trial. In fact, the best interests of the public are served by these continuances.” Id. 45 Additional Order Regarding Sentencing Hearings Under the Exigent Circumstances Created By the COVID-19 Pandemic, (W.D. Tex. Mar. 24, 2020) (continuing all sentencings for which the presentence report calculates the bottom of the Guidelines range as 21 months’ imprisonment or more), https://www.txwd.uscourts.gov/wpcontent/uploads/2020/03/Amended%20Order%20Re%20Court%20Operations%20032420.pdf. 46 See State ex rel. Speweik v. Wood Cty. Bd. of Elections, No. 2020-0382, 2020 WL 1270759 (Ohio Mar. 17, 2020); J. Edward Moreno, Ohio Supreme Court Denies Challenge to State Primary Delay (The Hill Mar. 17, 2020), https://thehill.com/home-
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* * * EO GA-09’s temporarily suspension of abortion procedures—like all other procedures that are not “immediately medically necessary” for reasons directly related to the public health—is not an outright denial of that right. Nor is it a de facto violation of the Constitution, given the legitimate exercise of the State’s police power to protect public health in this emergency situation.
c. The Casey standard does not categorically exempt abortion from any curtailment for any reason, even pre-viability.
Plaintiffs’ arguments completely fail to consider the State’s police power to protect the public health during a pandemic. Instead, they argue that abortion has special protection, notwithstanding clear authority allowing the State to take strong measures to protect the public health. They base this argument on Planned Parenthood of Southeastern Pennsylvania v. Casey’s holding that the State may not prohibit abortion before viability. 505 U.S. 833 (1992); Pls. Mot. TRO 17-20; see also Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019).
But Casey did not insulate previability abortions from any incursion whatsoever, no matter how justified. Rather, Casey drew a line at viability because “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” Casey, 505 U.S. at 860 (emphasis added). After viability, the Court reasoned, the State’s interests in protecting the fetus’s life are strong enough to support restriction because viability “is the time at which there is a realistic possibility of maintaining and nourishing a
news/state-watch/487983-ohio-supreme-court-denies-challenge-to-state-primary-delay.
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life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.” Id. The State’s interest in fetal life is not at issue here, but the State’s interest in everyone’s life is. Casey, and consequently Dobbs, are simply not applicable to a situation like this one, nor do they purport to be.47
The Fifth Circuit recognizes that where the State has compelling interests, such as public health, it may take action that has the effect of completely restricting abortions without running afoul of the Constitution. In Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (2014), the Fifth Circuit held that a law requiring admitting privileges for abortion doctors was unconstitutional because it would result in closing the sole abortion clinic in the state. The Court said that the closure would “effectively extinguish [the right to pre-viability abortion] within Mississippi’s borders.” Id. But the Fifth Circuit nevertheless clarified that it was not a per se undue burden for the State to apply health standards to close that sole clinic, even if it had the effect of banning abortions in the State: “Nothing in this opinion should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis.” Id. at 458.
This makes perfect sense. Obviously, if a clinic or doctor is endangering its patients, the State may close that clinic or suspend the doctor’s license to practice medicine to protect the public, even if that clinic or doctor were the only one performing abortions in the State. In that circumstance, as here, the compelling interest of protecting public health justifies the resulting loss of abortion access.
47 The same is true of the cases cited by plaintiffs striking down pre-viability abortion restrictions. Pls. Mot. TRO 18-19. None of the cited cases involve a law of general applicability enacted to preserve medical resources in a time of national crisis.
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3. EO GA-09 is Not An Unconstitutional Undue Burden. Plaintiffs alternatively argue that if the undue burden test applies, EO GA-09 is unconstitutional under that standard. Pls. Mot. TRO 20-21. Under Casey, a law imposes an “undue burden” when it places “a substantial obstacle in the path of a woman seeking an abortion.” 505 U.S. at 878. Casey made clear that “[n]ot all burdens on the right to decide whether to terminate a pregnancy will be undue.” 505 U.S. at 876. Yet even if state regulation “increas[es] the cost or decreas[es] the availability,” or makes it “more difficult or more expensive to procure an abortion,” that “cannot be enough to invalidate it” if the law serves a “valid purpose . . . not designed to strike at the right itself.” Id. at 874 (emphasis added). Rather, if a law amounts to a “substantial obstacle,” the Court “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
a. EO GA-09 imposes no greater burden on women seeking abortions in the next three weeks than it does on other people seeking surgeries or procedures.
EO GA-09 imposes only a temporary burden on abortion access. For just three weeks, physicians and clinics are prohibited from performing abortion procedures unless the procedure is “immediately medically necessary” or if the procedure would not deplete the hospital capacity or PPE needed to cope with the COVID-19 disaster. DX4.48 Delay of a few weeks for public health reasons does not amount to a total denial.
48 Plaintiffs claim that EO GA-09 “could remain in effect for months.” Pls. Mot. TRO at 21. That is speculation and should be disregarded. EO GA-09 expires on April 21, 2020, three weeks from now, and plaintiffs point to nothing to support their assertion that it would be indefinitely effective. Texas law authorizes the Governor to issue executive orders during a state of disaster, and states that a “state of disaster may not continue for more than 30 days unless renewed by the governor.” Tex. Gov’t Code § 418.014(c).
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See Part I.A.2.b.2. supra; see also Casey, 505 U.S. at 886 (acknowledging mandatory waiting period may sometimes result in a delay of “much more than a day” but concluding that it was not an undue burden even if it increased costs and potential delays).
a. EO GA-09 does not burden Plaintiff’ patients more than anyone else. It applies to every physician and every clinic in the State of Texas, so it is obviously not “designed to strike at the right itself.” Casey, 505 U.S. at 874. It also applies to every medical procedure—women seeking abortions are being treated no differently than anyone else seeking a medical procedure at this time. Many people across the State will not be able to have a desired surgery for the next three weeks because of the grave threat of COVID-19, which will unfortunately impose some hardship. Physicians have been postponing surgeries for cancer patients, for patients with heavy bleeding that can be controlled temporarily with medication, for orthopedic procedures, bariatric surgeries, and tubal ligations. Harstad Decl. ¶ 5, Thompson Decl. ¶ 4. All physicians at UT Southwestern Medical Center are restricted to performing surgery only in life-threatening cases. Thompson Decl. ¶ 4. Nationwide, stent procedures for clogged arteries, surgeries for breast, thyroid, prostate, and kidney cancer, mammograms, colonoscopies, and fertility treatments are being postponed because of the threat of COVID-19.49
A pandemic does not present ideal circumstances for anyone. The temporary burden on women seeking abortion is commensurate with—and arguably exceeded in some cases—by the burdens being placed on many other Texans seeking other types
49 Marilynn Marchione, Cancer, Heart Surgeries Delayed as Coronavirus Alters Care (Associated Press Mar. 18, 2020), https://www.usnews.com/news/health-news/articles/2020-03-18/cancer-heart-surgeries-delayed-as-coronavirus-alters-care.
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of procedures during this unprecedented disaster. The State took emergency action to do what it can to preserve limited medical resources in the next few weeks to prevent a complete breakdown of the healthcare system in Texas, and the action it took is consistent with recommendations by the Surgeon General and the American College of Surgeons.50 See Abraham Decl. ¶ 8-9.
b. Plaintiffs also assert that abortion is one of the “safest medical procedures in the United States,” Compl. ¶ 40, yet also claim that “a delay of several weeks or even days may increase the risks.” Compl. ¶ 71. But if abortion really is as safe as Plaintiff claim, these “risks” can only be minimal. Planned Parenthood made the same argument in Casey, but the plurality rejected it, concluding that “in the vast majority of cases, a 24-hour delay does not create any appreciable health risk.” Casey, 505 U.S. at 885. And certainly, they would not exceed those of a cancer patient waiting for surgery, or a heart patient with a blockage waiting for a stent. The costs or risks of other procedures may rise as a result of the delay—cancer may metastasize, and tumors may grow and become more difficult to remove. But that alone does not invalidate a valid exercise of the State’s police power to protect the public health, especially when it applies across the board to all providers.
c. Plaintiffs also raise concerns about unnamed women being “forced to continue a pregnancy against their will,” Compl. ¶ 70, having the expense of “buy[ing]
50 Vice Adm. Jerome M. Adams, M.D., Surgeon General: Delay Elective Medical, Dental Procedures to Help Us Fight Coronavirus, (USA Today Mar. 22, 2019), https://www.usatoday.com/story/opinion/2020/03/22/surgeon-general-fight-coronavirus-delay-elective-procedures-column/2894422001/; Am. College of Surgeons, COVID-19: Elective Case Triage Guidelines for Surgical Care, Mar. 24, 2020, https://www.facs.org/covid-19/clinical-guidance/elective-case.
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new clothes” due to “weight gain,” Hagstrom-Miller Decl. ¶ 33, or being subjected to childbirth.51 But again, they do not plead that there is any actual patient at any one of the seven plaintiff clinics that will not be able to receive an abortion because of EO GA-09’s effectiveness for three weeks, Compl. ¶¶ 35-74.52
b. The benefits of EO GA-09 are compelling. By contrast, the benefits of EO GA-09 are significant. See Abraham Decl. ¶ 8; Marier Decl. ¶ 14; Harstad Decl. ¶ 4. Plaintiffs claim that the Executive Order serves no benefit as to them, so this Court should exempt them from it. That is incorrect for four reasons. First, restricting contact between patients, medical staff, and physicians at this time is beneficial to help prevent the spread of COVID-19, even if Plaintiffs’ claims of taking steps to reduce contact are true. Abraham Decl. ¶ 7; see Marier Decl. ¶¶ 6, 1112. Even if Plaintiffs’ claims of low PPE usage are true, they are still using PPE that instead could be used for healthcare workers on the front lines of caring for COVID19 patients. See Harstad Decl. ¶5. Even one extra mask could save the life of a physician or nurse caring for COVID-19 patients. The same goes for hospital beds and patients. See Part I.A.1.c supra. “Under current circumstances, available PPE should be directed to healthcare workers on the front lines of treating COVID-19 patients.”
51 Plaintiffs claim that the risk of dying in childbirth is fourteen times higher than from having an abortion. Compl. ¶ 41. But “this statement is unsupported by the literature and there is no credible scientific basis to support it.” Byron Calhoun, The Maternal Mortality Myth in the Context of Legalized Abortion, Linacre Q. 2013 Aug. 80(3): 264-276, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6027002/. 52 If there were any such patients, it is unlikely there would be many, given that only 3% of abortions in Texas occur after 17 weeks LMP (15 weeks post-fertilization). DX5. Any woman so affected could seek as-applied relief—a far narrower demand than plaintiffs’, which is to exempt all abortion doctors and clinics from a generally applicable executive order.
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Abraham Decl. ¶ 6. Second, if despite that the Court were inclined to think Plaintiff’ impact on the
healthcare system was insignificant, small effects can add up in a public health crisis. Even a few extra patients take up resources that could otherwise be used to treat COVID-19 patients, and if the healthcare system is stretched to its breaking point, those are resources that cannot be spared. To cite an earlier example, a mere 14 masks separates Anson General Hospital from risking transmission and further spread of COVID-19 from patients to healthcare workers.53
Indeed, the shortage of masks is critical. Abraham Decl. ¶ 6. The CDC told healthcare workers that they can use bandanas if nothing else is available.54 The public is donating homemade masks to healthcare workers,55 and Texas enlisted the help of inmates at Gatesville Correctional Facility to make cotton masks for the same reason.56 There is no doubt that the surgical masks that Plaintiffs regularly use could help protect healthcare workers where N95 masks are unavailable.
Third, if one looks only at a small handful of providers or clinics, the impact on the State healthcare system could look small. But every individual physician or clinic could make the same argument. If Plaintiffs can perform abortions, why can’t a plastic surgeon do face lifts, or an oral surgeon do dental surgery? Her procedures are
53 Platoff, supra note 24. 54 Centers for Disease Control and Prevention, Strategies for Optimizing the Supply of Facemasks, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/facemasks.html. 55 David Enrich, Rachel Abrams, and Steven Kurutz, A Sewing Army, Making Masks for America, (N.Y. Times, Mar. 25, 2020), https://www.nytimes.com/2020/03/25/business/coronavirus-masks-sewers.html. 56 Deanna Hackney and Eric Levenson, Texas Turns To Prison Labor to Help Cover Face Mask Shortages, https://www.cnn.com/2020/03/22/us/texas-coronavirus-masktrnd/index.html.
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performed on an outpatient basis, complications are rare, and she promises to minimize use of PPE. Her procedures alone would not impact the whole State, as Plaintiffs also argue. But following Plaintiffs’’ logic would lead to demands for exceptions that would swallow the rule. Under current circumstances, the State must treat all providers the same, and must attempt to solve problems quickly and in the aggregate. We have just days or weeks before a surge of COVID-19 cases here in Texas. If Texas has any hope of avoiding a situation like (or worse) than Italy’s, and it is critical for everyone to do their part to prepare now. See Abraham Decl. ¶ 8.
Fourth, regardless of PPE or hospital bed capacity, requiring Plaintiff to comply with EO GA-09 benefits patients, the public, and Plaintiff themselves. As the Supreme Court stated in Roe v. Wade, the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” 410 U.S. 113, 150 (1973). During this public health crisis, “maximum safety” for patients—and medical staff—is to minimize contact with others, especially in view of PPE shortage. If Plaintiff’ facilities continue performing abortions, they will create continued close contact and encourage traveling, which will further spread the virus. Abraham Decl. ¶ 7; Marier Decl. ¶¶ 11-13.
* * * Reading Casey like the Plaintiff do would mean that while the government could suspend basic liberty, property, and voting rights in the name of protecting public health in exigent circumstances, see Part I.A.2 supra, abortion rights alone are untouchable. But that reading is incorrect. Consistent with the longstanding precedent discussed above, abortion does not take precedence over every other right recognized
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under the Constitution. Where the State’s interests are sufficiently compelling—as they undoubtedly are here—the State may restrict individual liberties for a temporary period to address emergency situations. Casey and Dobbs are not to the contrary, and do not create a categorical exception for abortion that protects it from being regulated or restricted like other medical procedures in a public health crisis.
B. Plaintiffs Cannot Satisfy the Other Elements Necessary for a Temporary Restraining Order.
Plaintiffs cannot show irreparable harm. See Ridgely, 512 F.3d at 734. As already discussed in Part I.A.3.a, Plaintiff’ patients’ alleged harm is limited to a three-week delay in receiving an abortion. And Plaintiffs did not allege in the Complaint that any particular patients of theirs will not be able to receive an abortion after EO GA-09 expires on April 21. They also fail to show any injury of their own. See infra II.
Conversely, public health will be harmed by continued performance of abortion procedures, so the balance of equities weighs decisively in the State’s favor. See Ridgely, 512 F.3d at 734. COVID-19 is a serious and imminent threat to public health. Abraham ¶ 3. EO GA-09 is a necessary but temporary measure designed to prepare for an anticipated surge in COVID-19 infections over the next few days and weeks. See Part I.A.3.b; Abraham Decl. ¶ 3, 9; see also Marier Decl. ¶ 14.
The public interest also weighs heavily against the grant of a temporary restraining order. Uniform compliance with EO GA-09 is essential. Abraham Decl. ¶ 9. As explained above in Part I.A.3.b, when healthcare resources are stretched to the breaking point, every available resource helps. And allowing for exceptions defeats the purpose of the strong measures taken by the Governor to protect the public. In Jacobsen, where a plaintiff challenged a mandatory vaccination law because he did not agree with the benefits and wanted an exception—much like Plaintiff here—the Supreme
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Court identified the fatal flaw with that kind of argument:
We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent . . . may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. 197 U.S. at 37–38. In a pandemic, if even one person fails to comply with measures designed to slow the spread of the disease, devastating consequences can result. South Korea’s “Patient 31” is one example. She “traveled extensively through South Korea, even after doctors had suggested she isolate herself due to a high likelihood that she had been infected. The Korean Center for Disease Control found that she ultimately had contact with approximately 1,160 people.”57 Moreover, giving Plaintiff an exception may embolden others not pleased at having to postpone procedures. Instead of fighting the virus during the very short and precious time we have before a COVID-19 surge arrives (as it is beginning to in other States), the State will be fighting to keep its rule intact in court, to the great detriment of the public it is trying to protect.
* * * Plaintiffs have failed to meet the exacting burden required to merit the extraordinary remedy of a temporary restraining order. The Court should reject Plaintiff’
57 Editorial Board, Keep Your Distance: Patient 31 Illustrates Need for Social Distancing, (Pittsburgh Post-Gazette, Mar. 20, 2020), https://www.post-gazette.com/opinion/editorials/2020/03/20/Patient-31-South-Korea-social-distancing/stories/202003190019.
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attempt to undermine the Governor’s efforts to protect Texans in a time of unprecedented danger to public health.
II. Numerous Jurisdictional Defects Bar Any TRO. “A district court’s obligation to consider a challenge to its jurisdiction is non-
discretionary.” In re Gee, 941 F.3d 153, 159 (5th Cir. 2019). Before this Court can issue any order at all, it must assure itself of its own jurisdiction. See id.
A. Plaintiffs’ claims against the Governor and the Attorney General are barred by sovereign immunity and Plaintiffs’ lack of standing.
The Court cannot issue a TRO binding the Governor or the Attorney General because neither of these defendants has enforcement authority. In its absence, Plaintiffs cannot invoke the Ex parte Young exception to sovereign immunity. Similarly, Plaintiffs lack article III standing because, as to the Governor and Attorney General, they have shown neither an injury in fact nor redressability.
1. The Ex parte Young doctrine does not allow suit against the Governor and Attorney General, who do not have independent authority to enforce the Executive Order.
Plaintiffs’ claims against the Governor and the Attorney General are barred by sovereign immunity because these defendants do not enforce EO GA-09 or the Emergency Rule. The State’s sovereign immunity generally bars suits against state officers in their official capacities. The Supreme Court has carved out a narrow exception, the Ex parte Young doctrine, for cases where “a federal court commands a state official to do nothing more than refrain from violating federal law.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011); see Ex parte Young, 209 U.S. 123, 157 (1908). The exception “rests on the premise—less delicately called a ‘fiction’—that when a federal court commands a state official to do nothing more than refrain from
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violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to that precise situation . . . .” Id. Ex parte Young allows suit only when the defendant enforces the challenged statute. See Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014). That is because, absent such a connection, the plaintiff has simply “ma[de] [the official] a party as a representative of the state,” and such a suit is barred by the State’s sovereign immunity. Ex parte Young, 209 U.S. at 157.
Plaintiffs do not allege the Governor has authority to prosecute or bring enforcement actions based on the Executive Order. See Compl. ¶ 21. Any prosecution would be brought by local officials, and any administrative enforcement action would be initiated by HHSC, the TMB, or the TBN. Because Plaintiffs’ claims against the Governor are premised on making him a party purely “as a representative of the state,” Ex parte Young, 209 U.S. at 157, those claims are barred by sovereign immunity and must be dismissed.
The claims against the Attorney General are also barred. He has no authority to implement the Emergency Rule. Compare Compl. ¶ 22, with id. ¶¶ 24, 66. As to criminal enforcement under EO GA-09, “[w]hile the Attorney General may offer assistance in certain criminal cases . . . county and district attorneys are granted the authority to prosecute criminal matters.” Starr v. County of El Paso, No. EP-09-CV-353-KC, 2010 WL 3122797, at *5 (W.D. Tex. Aug. 5, 2010). The Attorney General can assist only “[a]t the request of a district attorney, criminal district attorney, or county attorney.” Tex. Gov’t Code § 402.028(a); see Compl. ¶ 22 & n.2.
The plaintiff seeking to invoke Ex parte Young must show that official “is likely to” enforce the statute against it. City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). Plaintiffs do not allege any of the District Attorney Defendants is likely to
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seek assistance from the Attorney General, much less that such a request is imminent. Injury that relies on such an “attenuated chain of inferences” does not suffice. Clapper, 568 U.S. at 414 n.5. Because no such action is likely, the Court lacks jurisdiction to enjoin the Attorney General. See id.; see, e.g., Entm’t Software Ass’n v. Foti, 451 F. Supp. 2d 823, 827–28 (M.D. La. 2006). Plaintiffs’ claims against the Attorney General, like those against the Governor, are barred by sovereign immunity.
2. Plaintiffs lack article III standing to sue the Governor and Attorney General because, as to these defendants, Plaintiffs have not alleged injury in fact or redressability.
For much the same reasons, Plaintiffs lack standing to sue the Governor and Attorney General. See City of Austin, 943 F.3d at 1002–03 (discussing the relationship between Ex parte Young’s requirements and article III standing). A plaintiff seeking relief in federal court must first plausibly allege “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation marks omitted). The “threatened injury must be certainly impending to constitute injury in fact, and . . . allegations of possible future injury are not sufficient.” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 410 (2013) (quotations and brackets omitted). “By ensuring a future injury is not ‘too speculative,’ the imminence requirement [of article III standing] ‘reduce[s] the possibility of deciding a case in which no injury would have occurred at all.’ ” Ctr. for Biological Diversity v. United States Envt’l Prot. Agency, 937 F.3d 533, 537 (5th Cir. 2019) (quoting Lujan, 504 U.S. at 564 n.2).
Plaintiffs have not alleged an injury in fact traceable to the Governor or the Attorney General. A plaintiff ’s decision to forego action based on speculation is not an
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injury sufficient to confer standing.” Zimmerman v. City of Austin, 881 F.3d 378, 389– 90 (5th Cir. 2018); see also Ctr. for Biological Diversity, 937 F.3d at 540–42; Glass v. Paxton, 900 F.3d 233, 240 (5th Cir. 2018). Because there is no likelihood these officials will take enforcement action, Plaintiffs’ asserted injuries are not “fairly traceable to the challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation and alterations omitted).
Next, the plaintiff must show it is “likely,” as opposed to merely “speculative,” that the claimed injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). Plaintiffs’ claims against the Governor and the Attorney General do not meet this standard. Plaintiffs seek an order enjoining the Governor and the Attorney General from “enforc[ing ] the Executive Order and Emergency Rule, as interpreted by Defendants, to prohibit abortions.” Pls. Mot. TRO 28.
That order would not accomplish anything. Plaintiffs want the Court to order the Governor not to do something he cannot do anyway; the Governor does not enforce either the Executive Order or the Emergency Rule. The same is true as to the Attorney General, whose involvement in any potential prosecution is speculative at best. See Part II.A.1 supra. So an order against the Governor or the Attorney General would not redress Plaintiffs’ claimed injury—the threat of prosecution and administrative enforcement. Plaintiffs do not have article III standing to sue the Governor or the Attorney General.
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B. Plaintiffs lack third-party standing to challenge EO GA-09 on behalf of their unidentified patients.
Plaintiffs are abortion clinics and an abortion doctor, not women seeking abortions.58 Section 1983 provides a cause of action only when the plaintiff suffers “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. It does not provide a cause of action based on the violation of a third party’s rights. See Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986) (“[Plaintiffs] [a]re required to prove some violation of their personal rights.”). When “[t]he alleged rights at issue” belong to a third party, rather than the plaintiff, the plaintiff lacks statutory standing, regardless of whether the plaintiff has suffered his own injury. Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011); see also Conn v. Gabbert, 526 U.S. 286, 292–93 (1999) (holding that a lawyer “clearly had no standing” to bring a section 1983 claim because a plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”).
And even if section 1983 did not prohibit Plaintiffs from relying on the rights of third parties, the Supreme Court’s doctrine of prudential standing would. To have standing in a typical lawsuit, a litigant must assert his own rights, not those of a third party. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). A litigant may assert a third party’s rights only when (1) the litigant has a “close” relationship with the third party; and (2) some “hindrance” affects the third party’s ability to protect her own
58 See Compl. ¶¶ 69, 74–79 (alleging claims based on “patients’ fundamental right to abortion”); Pls. TRO Mot. 25 (arguing “[t]he Attorney General’s interpretation of the Executive Order prevents Texans from exercising their fundamental constitutional right to terminate a pregnancy”).
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interests. Id. at 130; see also South Carolina v. Regan, 465 U.S. 367, 380 (1984) (explaining that third-party standing is “the exception rather than the rule”). Neither requirement is met here.
As to a “close relationship,” plaintiffs pointedly do not identify any particular patient who will be unable to obtain “abortion care” as a result of EO GA-09. Instead, they refer to hypothetical “patients” whose “abortions will be delayed, and in some cases, denied altogether.” Compl. ¶ 69. A hypothetical relationship does not support third-party standing. See Kowalski, 543 U.S. at 131. The lack of an existing relationship with the patients on whose behalf plaintiffs bring suit prohibits application of the third-party-standing doctrine. See id. Moreover, there is no genuine obstacle to a woman challenging an abortion regulation. See id. at 130. Women can and do bring such challenges. See, e.g., J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019) (per curiam); Doe v. Parson, 368 F. Supp. 3d 1345 (E.D. Mo. 2019).
Neither the Fifth Circuit nor the Supreme Court has allowed third-party standing under factual circumstances like the ones here. Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981), is not to the contrary. In Deerfield, the Fifth Circuit allowed third party standing for a would-be abortion clinic challenging a city commission’s decision to deny it a conditional-use license to operate in the city’s business district. 661 F.2d at 334. It is hard to see how a woman seeking an abortion— even in the early months of her pregnancy—could challenge a land-use decision, then have an abortion performed at the not-yet operational clinic. But there is no barrier to a woman challenging EO GA-09 if she believes it burdens her rights.59
59 And even if Deerfield forecloses a challenge to third-party standing, State Defendants raise the issue to preserve it for further review. The Supreme Court is presently examining the issue in June Medical Services, LLC v. Russo, No. 18-1323.
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C. The Court lacks jurisdiction to opine on the meaning of state law under Pennhurst.
Under Pennhurst, federal courts lack authority to order state officials to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.” Id. The gravamen of Plaintiffs’ complaint is that the Attorney General has misinterpreted state law in the press release—without the press release, they say “Plaintiffs’ provision of [abortions] is entirely consistent with the Governor’s Executive Order.” Pls. Mot. TRO 2; see also id. at 12–14; Compl. ¶¶ 4, 63. To the extent plaintiffs ask the Court to interpret EO GA-09 to permit their abortion procedures, their claim is beyond this Court’s jurisdiction. This Court cannot issue a TRO on this basis. See Papasan, 478 U.S. at 277; Pennhurst, 451 U.S. at 106.
D. The Pullman abstention doctrine prohibits the Court from issuing a TRO.
Where an antecedent question of state law would obviate the need to address a federal constitutional question, R.R. Comm’n v. Pullman Co., 312 U.S. 496, 500 (1941), the Supreme Court has instructed federal courts to abstain from “employ[ing] their “historic powers as [courts] of equity,” Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 120 (1981) (Brennan, J., concurring). This doctrine applies where the state law question would “significantly modify” the federal analysis. Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 512 (1972).
Plaintiffs allege that as interpreted in the Attorney General’s press release the Executive Order violates their patients’ federal constitutional rights. See Compl. ¶¶ 75, 78. Their constitutional challenge would be obviated if they are correct that
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EO GA-09 permits them to continue performing abortions (though they are not). See Compl. ¶¶ 4, 63; Pls. Mot. TRO 2, 12–14. On Plaintiffs’ own theory, then, the application of the Executive Order to plaintiffs’ abortions is “uncertain.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984). If Plaintiffs are right about that, the Court should abstain from unnecessarily addressing the constitutional questions.
CONCLUSION For the foregoing reasons, the State Defendants respectfully request that the
Court deny the motion for a temporary restraining order.
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief, General Litigation Division
/s/ Andrew B. Stephens ANDREW B. STEPHENS Texas Bar No. 24079396 BENJAMIN S. WALTON Texas Bar No. 24075241 Assistant Attorneys General General Litigation Division
HEATHER GEBELIN HACKER Assistant Solicitor General Texas Bar No. 24103325
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Case 1:20-cv-00323-LY Document 30 Filed 03/30/20 Page 42 of 43 Office of the Attorney General 300 West 15th Street P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2120 (phone) (512) 320-0667 (fax) Attorneys for State Defendants
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CERTIFICATE OF FILING AND SERVICE I certify that on March 30, 2020, this document was served through the Court’s CM/ECF Document Filing System or through electronic mail, upon the following counsel of record:

Patrick J. O’Connell Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, TX 78731 (512) 852-5918 pat@pjofca.com
Julie Murray Alice Clapman Richard Muniz Hannah Swanson Planned Parenthood Federation of America 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org alice.clapman@ppfa.org richard.muniz@ppfa.org hanna.swanson@ppfa.org
Jennifer Sandman Planned Parenthood Federation of America 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org

Molly Duane Rabia Muqaddam Francesca Cocuzza Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Stephanie Toti Rupali Sharma Sneha Shah Lawyering Project 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org

/s/ Andrew B. Stephens
ANDREW B. STEPHENS Assistant Attorney General

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DX-1

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 2 of 40

GOVERNOR GREG ABBOTT

March 13, 2020

FILED IN THE OFFICE OF THE SECRETARY OF STATE
u~z'O ~ O'CLOCK

The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin,Texas 78701

~le

Dear Secretary Hughs:

Pursuant co his powers as Governor of the State of Texas, Greg Abbott has issued the following:

A proclamation certifying that COVID-19 poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas.

The original proclamation is attached to this letter of transmittal.

Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 3 of 40
PROCLAMATION
BY THE
<6nutrnnr nf fqt ~faft nf mtxas
TO ALL TO WHOM THESE PRESENTS SHALL COME:
WHEREAS, the novel coronavirus (COVID-19) has been recognized globally as a contagious respiratory virus; and
WHEREAS, as of March 13, 2020, there are more than 30 confirmed cases of COVID-19 located in multiple Texas counties; and
WHEREAS, there are more than 50 Texans with pending tests for COVID-19 in Texas; and
WHEREAS, some schools, universities, and other governmental entities are beginning to alter their schedules, and some venues are beginning to temporarily close, as precautionary responses to the increasing presence of COVID-19 in Texas; and
WHEREAS, costs incurred to prepare for and respond to COVID-19 are beginning to mount at the state and local levels; and
WHEREAS, the State of Texas has already taken numerous steps to prepare for COVID19, such as increasing laboratory testing capacity, coordinating preparedness efforts across state agencies, and working with local partners to promote appropriate mitigation efforts; and
WHEREAS, it is critical to take additional steps to prepare for, respond to, and mitigate the spread of COVID-19 to protect the health and welfare of Texans; and
WHEREAS, declaring a state of disaster will facilitate and expedite the use and deployment of resources to enhance preparedness and response.
NOW, THEREFORE, I, GREG ABBOTT, Governor of the State of Texas, do hereby certify that COVID-19 poses an imminent threat of disaster. In accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I hereby declare a state of disaster for all counties in Texas.
Pursuai;it to Section 418.017 of the code, I authorize the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.
Pursuant to Section 418.016 of the code, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency's emergency response that is necessary to cope with this declared disaster, I hereby suspend such statutes and rules for the duration of this declared disaster for that limited purpose.
In accordance with the statutory requirements, copies of this proclamation shall be filed
FILED IN THE OFFICE OF THE SECRETARY OF STATE
11 :2.olrt\'\ O'CLOCK
MAR 1 3 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 4 of 40

Governor Greg Abbott March 13, 2020

Proclamation Page 2

with the.applicable authorities.

1N TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 13th day of March, 2020.

ATIESTED BY:
RUTH R. HUGHS Secretary of State

GREG ABBOTT Governor

FILED IN THE OFFICE OF THE
w SECRETARY OF STATE
I\ : t4v\.i O'CLOCK
MAR t 3 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 5 of 40
DX-2

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 6 of 40

Commissioner John W. Hellerstedt, M.D.

DECLARATION OF A PUBLIC HEALTH DISASTER IN THE STATE Of TEXAS

March 19, 2020

TO ALL TO WHOM THESE PRESENTS SHALL COME:

I, John W. Hellerstedt, M.O., Commissioner of the Department of State Health Services, do hereby certify that the introduction and spread of the communicable disease known as COVID-19 in the State of Texas has created an immediate threat, 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.

THEREFORE, in accordance with the authority vested in me by Section 81.082(d) of the Texas Health and Safety Code, I do hereby declare a state of public health disaster for the entire State of Texas.

Pursuant to Section 81.002 of the code, each person shall act responsibly to prevent and control communicable disease. The following actions, taken immediately, will reduce and delay the spread of COVID-19:

• People, businesses and communities-should immediately undertake hygiene, cleanliness

and sanitation practices that are accessible, affordable and known to be effective against

,,

COVI0-19.

o Wash hands often for 20 seconds and encourage others to do the same. o If no soap and water are available, use hand sanitizer with at least 60%

alcohol.

o Cover coughs and sneezes with a tissue, then throw the tissue away.

o Avoid touching your eyes, nose, and mouth with unwashed hands.

o Disinfect surfaces, buttons, handles, knobs, and other places touched often.

o Avoid close contact with people who are sick.

• People who are known to have, or are under investigation or monitoring, for COVI0-19,

should adhere to the direction provided to them by duly authorized persons, including

public health officials. Failure to abide by such direction may result in involuntary

quarantine or isolation for the purposes of preventing further community spread of COVID-19.

Page 1 of 2

FILED IN THE OFFICE OF THE
SE\C\:R4ESTA1\Rr\Y.-OFO'SCTLAOTCEK
MAR 19 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 7 of 40
• People who are ill, especially those with symptoms consistent with influenza or COVID19, should isolate themselves at home until they recover. Such persons should only present for medical evaluation and treatment iftheir symptoms are such that they cannot continue to be cared for in their home. And, when seeking medical care should call their doctor or health care facility before arriving to allow them to prepare.
• Limit trips into the public to essential outings. Traveling to work, the grocery store, the pharmacy or to seek medical care would be considered essential trips.
• Limit as much as possible close contact with other people. Stay six feet away. • Do not gather in social groups of more than ten (10) individuals. • Employers should allow work at home alternatives to the greatest extent possible. • Restaurants should not allow dine-in options, either inside or outside. Take-out and
curbside options with minimal contact are permitted and highly encouraged.
The Texas Department of State Health Services will continue to provide the most current and
practical advice on how to control the spread of COVID-19 and encotm1ges all Texans to seek
additional information from a trusted source such as https://www.dshs.texas.gov/coronavirus/ or from the Centers for Disease Control and Prevention at https://www.cdc.gov/coronavirus/.
Adherence to these rules and the sound public health principles that support them will provide optimal protection for the people of Texas. These measures are necessary to advance the health and safety of all Texans. Copies of this proclamation will be filed with applicable authorities.
+Given under my hand this the day of March, 2020.
cl----- Vvj?
JOHN W. HELLERSTEDT, M.D. Commissioner of Public Health

Ruth Hughs Secretary of State

Page 2 of 2

FILED IN THE OFFICE OF THE
SECRETARY OF STATE \ \ ·. ~f\V\.... O'CLOCK
MAR 19 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 8 of 40
DX-3

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 9 of 40

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 10 of 40
DX-4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 11 of 40

GOVERNOR GREG ABBOTT

March 22, 2020

The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701

FILED IN THE OFFICE OF THE SECRETARY OF STATE
4·,30 f ~ 'CLOCK
~~

Dear Secretary Hughs:

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:

Executive Order No. GA-09 relating to hospital capacity during the COVID-19 disaster.

The original executive order is attached to this letter of transmittal.

Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 12 of 40
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas March 22, 2020
EXECUTIVE ORDER GA09
Relanng to hospital capacity during the COVID-19 disaster.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, the Texas Department of State Health Services has determined that, as of March 19, 2020, COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, on March 19, 2020, I issued an executive order in accordance with the President's Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC), and mandated certain obligations for Texans that are aimed at slowing the spread of COVID-19; and
WHEREAS, a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster; and
WHEREAS, 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, contrary to recommendations from the President's Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services; and
WHEREAS, various hospital licensing requirements would stand in the way of implementing increased occupancy in the event of surge needs for hospital capacity due to COVID-19; and
WHEREAS, the "governor is responsible for meeting . . . the dangers to the state and people presented by disasters" under Section 41 -S.O 11 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, under Section 418.012, the "governor may issue executive orders .. . hav[ing] the force and effect of law;" and
WHEREAS, under Section 418.016(a), the "governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster;" and
FILED IN THE OFFICE OF THE
:,3-, S~CRETAfRllY'v\OFO'SCTLAOTC!K
MAR 2 2 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 13 of 40

Governor Greg Abbott March 22, 2020

Executive Order GA-09 Page 2

WHEREAS, under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order that, beginning now and continuing until l l :59 p.m. on April 21, 2020, all 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;
PROVIDED, however, that this prohibition 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.
At the request of the Texas Health and Human Services Commission, I hereby suspend the following provisions to the extent necessary to implement increased occupancy in the event of surge needs for hospital capacity due to COVID-19:
25 TAC Sec. L33.162(d)(4)(A)(iii)(I); 25 TAC Sec. l33.163(f)(l)(A)(i)(Il)-(III); 25 TAC Sec. I 33. l 63(f)(1)(B)(i)(III)-(N); 25 TAC Sec. 133. l 63(m)(l)(B)(ii); 25 TAC Sec. 133.163(t)(l)(B)(iii)-(iv); 25 TAC Sec. 133.163(t)(l)(C); 25 TAC Sec. 133. l 63(t)(5)(B)-(C); and any other pertinent regulations or statutes, upon written approval of the Office of the Governor.
This executive order shall remain in effect and in full force until ll:59 p.m. on April 21, 2020, unless it is mo 'fi d nded, rescinded, or superseded by me or by a succeeding governor.
Given under my hand this the 22nd day of March, 2020.
GREG ABBOTT Governor

Secretary of State

FILED IN THE OFFIC!: 0:- ri :::

e~ SE4CR:aET:A, RY

OF STArt:
O'CLOCK

MAR 2 2 2020

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 14 of 40 DX-5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 15 of 40

Induced Terminations of Pregnancy by Procedure and Post-Fertilization Age - 2017* **

PROCEDURE

TOTAL <9 WEEKS 9-10

11-12

13-14

WEEKS WEEKS WEEKS

SUCTION CURETTAGE

33,444

27,310

3,730

1,676

628

MEDICAL (NON SURGICAL)

17,050

16,975

12

1

6

DILATION AND EVACUATION

3,255

100

172

576

897

15-16 WEEKS
54 8 730

17-20 WEEKS
13 16 771

21-24 WEEKS
0 6 7

>=25 WEEKS
0 1 0

NOT STATED
33 25 2

INTRA-UTERINE INSTILLATION

2

0

1

0

0

1

0

0

0

0

SHARP CURETTAGE (D&C)

6

4

0

2

0

0

0

0

HYSTEROTOMY/HYSTERECTO

4

0

0

0

0

1

3

0

MY

OTHER/NOT STATED

82

78

0

0

0

2

0

2

TOTAL

53,843

44,467

3,915

2,255

1,531

796

803

15

0

0

0

0

0

0

1

60

Notes: * Based on the 83rd Texas Legislature requirement, starting with 2014 Induced Terminations of Pregnancy (ITOP) data, fetus age is reported in weeks post-fertilization versus the previously reported weeks of gestation. Post-Fertilization Age (PFA) is generally two weeks less than gestational age. For out-of-state records, post-fertilization age is estimated based on gestational age. ** Includes reported abortions that were either performed in Texas on out of state residents (1,174) or were performed on Texas residents elsewhere (566).

Definitions: Dilation and evacuation: Surgical procedures performed after 14 weeks 0 days gestation are called dilation and evacuation (D & E) procedures. This type of surgical procedure typically requires a greater degree of cervical dilation and the use of grasping forceps. Hysterotomy: Evacuation of the pregnancy through incision of the uterus. Induced termination of pregnancy: Any act or procedure performed after a pregnancy is medically verified with the intent to cause the termination of an intra-uterine pregnancy other than for the purpose of either the birth of a live infant or removing a dead fetus. Intrauterine Instillation: Injecting saline or prostaglandin into the uterus to cause contractions, which expel the contents of the uterus. Medical (Nonsurgical) Abortion: Administration of medications for the purpose of inducing an abortion. Sharp Curettage (dilation and curettage, D&C, or surgical curettage): A surgical procedure in which the uterine contents are removed with curette. Suction Curettage (Vacuum Aspiration): Removal of uterine contents through a flexible tube attached to a suction apparatus.
Data Sources: Reports of induced termination of pregnancy sent to Texas Health and Human Services per the Texas Abortion Facility Reporting and Licensing Act, Health and Safety Code, Chapter 245 and through public health surveillance agreements with other states. Prepared by: Data Dissemination, Center for Analytics and Decision Support, Texas HHSC, February 2019 Filename: 2017 ITOP by Post-Fertilization Age and Procedure_Final.xlsx
End of worksheet

Page 1 of 1

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 16 of 40
DX-6

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 17 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DMSION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. l:20-CV-00323-LY

§

§

§

§

DECLARATION OF HEIDI ABRAHAM, M.D., FAEMS

I, Heidi Abraham, M.D., FAEMS, declare the following:
1. I am an Associate EMS Medical Director for Austi.n/l'ravis County Emergency
Medical Services. I am also the Medical Director for the New Braunfels Fire Department, and I am an ER physician. I make this Declaration based upon my personal knowledge and am competent to testify thereto.
2. I am a medical doctor licensed in the State ofTexas and in good standing with the Texas Medical Board. I am a Fellow of the Academy of Emergency Medical Services. I completed my emergency medicine residency as a chief resident at the Wright State University Integrated Residency in Emergency Medicine. I also completed a fellowship in EMS and Disaster Medicine at The University of Texas at Houston.
3. The recent spread of COVID-19 in central Texas has created a crisis for emergency medical care. The Austin/l'ravis County area is already experiencing significant community spread of COVID-19. An exponential increase in COVID-19
Page 1 of4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 18 of 40
cases is expected over the next few days and weeks. Such a drastic increase in COVID19 cases poses serious threats to the ability ofour local emergency healthcare system to continue providing effective care both for COVID-19 patients and for other patients in need ofemergency medical care.
4. One threat posed by a sudden increase in COVID-19 cases is the threat of insufficient personal protective equipment ("PPE"). PPE includes things like masks, gloves, gowns, and face shields. It is critical that all healthcare personnel be adequately supplied with PPE. ff even one person providing care is carrying COVID-19 but not yet symptomatic, the results could be devastating ifthat person is not equipped with proper PPE. An infectious individual could unknowingly transmit COVID-19 to dozens if not hundreds of patients before that individual becomes symptomatic and is removed from patient interactions.
5. A related threat posed by insufficient PPE is a decrease in the number of available healthcare workers. Emergency medical personnelin Austin/I'ravis County have already been infected with COVID-19 and placed under quarantine. Inadequate PPE fails to protect healthcare workers from becoming infected and potentially infecting other healthcare workers and patients. This is another reason why ensuring adequate supplies ofPPE is critical to protect healthcare workers on the front lines of treating COVID-19 patients.
6. The current COVID-19 crisis has caused a dangerous shortage of PPE. For example, hospitals and other emergency medical personnel in Austi.nfl'ravis County are currently experiencing shortages of proper masks (both N95 masks and regular surgical masks), gowns, and face shields. Most healthcare workers are having to
Page 2 of 4

..... - - - - - -- - -- - Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 19 of 40
reuse PPE because of the shortage. Normally, PPE is discarded between patients to prevent transmission of pathogens. The current shortages must be corrected immediately to prevent the spread of COVID-19 from becoming exponentially worse over the next few days and weeks. Under current circumstances, available PPE should be directed to healthcare workers on the front lines of treating COVID-19 patients.
7. An important way to slow the spread of COVID-19 is to enforce social distancing and minimfae contact wherever possible. The emergency medical community needs everyone to strictly comply with these standards.
8. The next few days and weeks are critical for slowing the spread of COVID-19 in Texas. Immediate and drastic action is necessary. As part ofthe effort to slow the spread ofCOVID-19 and protect the capacity ofthe Texas healthcare system to handle a surge of COVID-19 patients, it is important for all medical facilities to cease any procedures that require personal interactions between patients and staff, use PPE, or impact hospital capacity, unless such procedures are immediately medically necessary, as described in the Governor's recent order dated March 22, 2020.
9. Unless the infection rate can be slowed and PPE and hospital capacity preserved, emergency medical healthcare personnel and facilities in the Austin/I'ravis County area are in danger of becoming overburdened in a very short time. Uniform compliance with the Governor's recent order is therefore vital for the immediate safety ofour community.
II II
Page 3 of4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 20 of 40
DECLARATION UNDER PENALTY OF PERJURY I, Heidi Abraham , M.D., FAEMS, a citizen of the United States and a resident of Texas, hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing Declaration is true and correct.
Executed this _11_ day of March, 2020.
Page 4 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 21 of 40
DX-7

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 22 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Pl aintiffs,
V.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. 1:20-CV-00323-LY

§

§

§

§

DECLARATION OF TIMOTHY HARSTAD, M.D.

I , Timothy Harstad, M.D., declare the following: 1. I am the Medical Director of Texas Perinatal Group, located in Austin, Texas.
I am also the perinatal medical director at St. David's Medical Center, in Austin, Texas. I make this Declaration based upon my personal knowledge and am competent to testify thereto.
2. I am a medical doctor licensed in the State of Texas and in good standing with the Texas Medical Board. I attended medical school at the University of Wisconsin School ofMedicine, and I completed a family medicine internship at the University of Illinois Medical School. I completed my OB-GYN residency at St. Mary's Hospital in Milwaukee, Wisconsin, and my fellowship training in maternal-fetal medicine at University of Texas Southwestern Medical Center in Dallas, Texas. I am board certified in both OB-GYN and maternal-fetal medicine. I am a member of the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine.
Page 1 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 23 of 40
3. Due to the nature of my work, I am personally familiar with various fetal and maternal conditions in which abortion may be entertained as a therapeutic intervention. Some ofthese might include medical conditions that would threaten the mother's life or various fetal conditions that are incompatible with life or that would cause severe deformity. The ultimate decision whether to offer a termination in such cases is generally determined by an ethics committee, and the termination is performed in an acute care hospital with adequate surgical personnel and anesthesia. The vast majority of abortions do not fall into this category. Abortions are typically elective procedures, not medically necessary procedures.
4. Any physician performing an in-office abortion procedure (i.e., a procedure involving the use of suction and/or instruments) should use personal protective equipment ("PPE") while performing such a procedure. Staff assisting with those procedures should likewise use appropriate PPE. PPE includes masks, gloves, gowns, and face shields. The facial mask is critical. Due to the current COVID-19 outbreak, the specific type of mask that is currently required is a N95 mask. All surgeons performing non-elective surgery at the present time are required to wear N95 masks. Those masks are in short supply. During the current COVID-19 crisis, it would be especially important for PPE to be used during any in-office abortion procedure and for items such as masks and gloves to be changed between each patient and not reused or used with multiple patients. This is critical to minimize the possible spreading of COVID-19.
5. Due to the current COVID-19 outbreak, many different types ofprocedures that are not immediately medically necessai·y are being suspended. Some examples
Page 2 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 24 of 40
include cosmetic surgery, bariatric surgery, elective orthopedic procedures (joint replacement), or some gynecologic surgeries such as tubal ligations. The vast majority of abortion procedures are generally similar to those procedures in that they are not immediately medically necessary. As with other procedures that are not immediately medically necessary, suspending elective abortion procedures would help preserve valuable PPE and hospital capacity in the event of abortion complications, which do occur and are typically handled by a local acute cal'e hospital.
II II II II II II II II II II II II II II II II II
Page 3 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 25 of 40

DECLARATION UNDER PENALTY OF PERJURY

I, Timothy Harstad, M.D., a citizen of the United States and a resident ofTexas,

hereby declai-e under penalty of perjury pursuant to 28 U.S.C. § 1746 that the

foregoing Declaration is true and correct.

r J n 2 g Executed this

day of March, 2020.

TI~a:(~k D

Page 4 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 26 of 40
DX-8

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 27 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD

§

CENTER FOR CHOICE, et al.,

§

§

Plaintiffs,

§

V.

§

§

GREG ABBOTT, et al.,

§

' §

Defendants. §

CAUSE NO. 1:20-CV-00323-LY

DECLARATION OF MAYRA B. JIMENEZ THOMPSON, M.D.

I, Mayra B. Jimenez Thompson, M.D., declare the following: 1. I am a me mber of UT Southwestern Medical Center's Division of Gynecology
in the Department of Obstetrics and Gynecology, located in Dallas, Texas. I make this Declaration based upon my personal knowledge and am competent to testify thereto.
2. I am a medical doctor licensed in the State ofTexas and in good standing with the Texas Medical Board, I received my undergradua te degree from Northwestern University and earned my medical degree at the University of Illinois Abraham Lincoln School of Medicine. I completed my residency in obstetrics and gynecology at the University of Illinois Research Hospital. I am board certified in obstetrics and gynecology and a Fellow of the American Congress of Obstetricians and Gynecologists. I have lectured and proctored courses in the use of minimally invasive surgical techniques at UT Southwestern and elsewhere. I am a member of

Page 1 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 28 of 40
numerous professional organizations, including the Association of Advanced Laparoscopic Surgeons, the American Association of Gynecologic Laparoscopists, the Texas Medical Association, and the Dallas County Medical Society.
3. The spread of COVID-19, the disease caused by the novel coronavirus known as SARS-CoV-2, has become a global pandemic. Medical providers in Texas are enacting strong measures to slow the spread of COVID-19, to preserve limited supplies of personal protective equipment (PPE) and hospital beds for treatment of COVID-19 patients. PPE includes things like masks, gloves, gowns, and face shields.
4. All physicians at UT Southwestern Medical Center are restricted to performing surgery only in life-threatening cases in order to preserve PPE and hospital capacity to treat COVID-19 patients. All of my surgical cases at UT Southwestern Medical Center have been postponed or canceled for at least several weeks, including patients with possible uterine cancer and cervical cancer diagnoses who are in need of surgeries, as well as patients with heavy bleeding who need surgery but where we ca~ temporarily control the bleeding with medication. At UT Southwestern Medical Center physicians are currently only permitted to perform procedures in life-threatening cases, such as appendectomies, advanced cancer tumors, and medically urgent procedures such as dialysis treatments and liver and kidney transplants.
5. I am aware of Governor Abbott's executive order that requires all physicians and medical providers in the State of Texas to postpone all procedures that are not
Page 2 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 29 of 40
"immediately medically necessary." I am also aware that numerous abortion providers in Texas have filed a lawsuit asking the federal court to allow them to continue to perform elective abortion procedures in Texas during this global health crisis. Elective abortions are never "immediately medically necessary," and abortion providers should not be exempted from Governor Abbott's executive order.
II II II II II II II II II II II II II II II II II II II
Page 3 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 30 of 40 II
DECLARATION UNDER PENALTY OF PERJURY I, Mayra Thompson, M.D., a citizen of the United States and a resident of Texas, hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing Declaration is true and correct.
µ,/) ~
Executed this :l/1 ~ay of March, 2 0 2 ~ ~ c....._
Mayra . Jimenez Thompson, M.D.
Page 4 of 4

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 31 of 40
DX-9

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 32 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. 1:20-CV-00323-LY

§

§

§

§

DECLARATION OF ROBERT L. MARIER, M.D., M.H.A., F.A.C.P.

I, Robert L. Marier, M.D., M.H.A., declare the following: 1. I am the System Vice Chairman of Hospital Medicine for the Ochsner Health
System located in Louisiana. I served as a member of the Hospital's Medical Staff Credentialing Committee until recently. I make this Declaration based upon my personal knowledge and am competent to testify thereto. 2. I received my M.D. degree from Yale University School of Medicine, New Haven, Connecticut in 1969. My post-graduate training in internal medicine took place at Massachusetts General Hospital in Boston, Massachusetts. I served as an Epidemic Intelligence Service Officer, National Center for Disease Control, USPHS, Atlanta, Georgia from 1971-1973, followed by a fellowship in infectious disease at Yale University. 3. In 1978, I joined the faculty of LSU School of Medicine, where over the years I served as Professor of Medicine and Public Health, Medical Director of Charity Hospital, Director of the Public Hospital System in the State of Louisiana, and
Page 1 of 5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 33 of 40
Dean of the Schools of Medicine and Public Health. In 2006, I was appointed to be Executive Director of the Louisiana State Board of Medical Examinersa position I held until 2012, when I joined the staff at Ochsner Medical Center. 4. I am Board Certified in Internal Medicine and Infectious Diseases and am a Diplomat of the American Board of Medical Management (now known as the Certifying Commission in Medical Management). I hold a Master's degree in health system administration from Tulane University School of Public Health. 5. I am aware of Governor Abbott's Executive Order that postpones all "surgeries and procedures" in Texas that are "not immediately medically necessary'' during the coronavirus disease 2019 (COVID-19) outbreak. 6. Patients with COVID-19 infection may infect others prior to the onset of symptoms, especially in the health care setting due to the proximity of contact. We have had two such cases over the past few days at Ochsner Medical Center. 7. The onset and duration of viral shedding and period of infectiousness for COVID-19 are not yet known. 8. According to the United States Centers for Disease Control (CDC) 1
a. It is possible that SARS-CoV-2 RNA may be detectable in the upper or lower respiratory tract for weeks after illness onset, similar to infection with MERS-CoV and SARS-CoV. However, detection of viral RNA does not necessarily mean that infectious virus is present. Asymptomatic infection with SARS-CoV-2 has been reported, but it is not yet known
1 See https://www.cdc.gov/coronavirus/2019-ncov/hcp/fag .html. Page 2 of 5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 34 of 40
what role asymptomatic infection plays in transmission. Similarly, the role of pre-symptomatic transmission (infection detection during the incubation period prior to illness onset) is unknown. Existing literature regarding SARS-CoV-2 and other coronaviruses (e.g. MERS-CoV, SARSCoV) suggest that the incubation period may range from 2-14 days. b. Very limited data are available about detection of SARS-CoV-2 and infectious virus in clinical specimens, so it is unknown exactly which bodily fluids may transmit the virus, so that we have a full picture of how to prevent transmission between people. SARS-CoV-2 RNA has been detected from upper and lower respiratory tract specimens, and SARS-CoV-2 has been isolated from upper respiratory tract specimens and bronchoalveolar lavage fluid. SARS-CoV-2 RNA has been detected in blood and stool specimens, but whether infectious virus is present in extrapulmonary specimens is currently unknown. The duration of SARS-CoV-2 RNA detection in upper and lower respiratory tract specimens and in extrapulmonary specimens is not yet known but may be several weeks or longer, which has been observed in cases of MERSCoV or SARS-CoV infection. While viable, infectious SARS-CoV has been isolated from respiratory, blood, urine, and stool specimens, in contrast, viable, infectious MERS-CoV has only been isolated from respiratory tract specimens. It is not yet known whether other nonrespiratory body fluids from an infected person, including vomit, urine, breast milk, or semen, can contain viable, infectious SARS-CoV-2.
Page 3 of 5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 35 of 40
9. Health Care workers caring for patients under investigation for COVID 19 or for patients with confirmed COVID 19 infection routinely wear face masks and other personal protective equipment (PPE).
10.Health care workers do not routinely wear face masks and other PPE when caring for patients who are not under investigation for COVID 19 or for patients with confirmed infection.
11. Wearing face masks and other PPE when carmg for patients under investigation for COVID 19 or for patients with confirmed COVID 19 infections reduces the risk of transmission but does not eliminate it.
12.Not wearing face masks and other PPE when caring for patients who are not under investigation for COVID 19 or for patients with confirmed COVID 19 infections exposes health care workers to transmission of infection from patients who are incubating infection and asymptomatic.
13. The President and CEO of Ochsner Health reported on March 25, 2020, that 60 employees have tested positive for COVID-19, and approximately 300 employees have been quarantined attesting to the importance paragraphs 11 and 12 above.
14. Given the risk of transmission in health care settings, Governor Abbott has a sound basis for limiting all surgeries except those that are immediately medically necessary so as to prevent the spread of COVID 19.
II II II
Page 4 of 5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 36 of 40
II II II II II II II II II II II II
DECLARATION UNDER PENALTY OF PERJURY I, Robert L. Marier, M.D., M.H.A., F.A.C.P., a citizen of the United States and a resident ofLouisiana, hereby declare under penalty ofperjury pursuant to 28 U.S.C. § 1746 that the foregoing Declaration is true and correct. Executed this _29_ day of March 2020.
Robert L. Marier, M.D., M.H.A
Page 5 of 5

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 37 of 40
DX-10

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 38 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
V.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. 1:20-CV-00323-LY

§

§

§

§

DECLARATION OF JEFFREY HOOGHEEM

I, Jeffrey Hoogheem, declare t he following: 1. I am the Director, Center for Health Emergency Preparedness and Response at
the Texas Department of State Health Services (DSHS). I have served in this role more than two years. I make this Declaration based upon my personal knowledge and am competent to testify thereto.
2. Resource requests, during a disaster, are submitted via a State of Texas Assistance Request (STAR) to the Texas State Operations Center (SOC). The State Medical Operations Center (SMOC), run by DSHS, handles all STARs for health and medical assistance.
3. Personal protective equipment (PPE) is essential to protect Texas health care providers and their patients, including COVID-19 patients. Without proper PPE, t he ability of health care facilities to care for and treat COVID-19 patients will be diminished.

Page 1 of 3

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 39 of 40
4. The following PPE is used to protect medical providers and patients from COVID-19 and to treat COVID-19 patients:
a . Gowns: isolation gowns, surgical gowns, coveralls; b. Face masks: facemasks with ties, facemasks wit h elastic ear hooks; c. N95 respirators; d. Ventilators; and e. Eye protection: goggles, face shields .1 5. DSHS has received 2,178 STARs for PPE as of 6:00 p.m. on March 27, 2020. 6. Facilities/entities r equesting PPE during the COVID-19 health disaster include the following: a. Long term care facilities: nursing homes, assisted living centers, h ome
health providers, hospices; b. First r esponders: emergency medical services, fire departments, law
enforcement; c. Hospitals; and d. County/city/public health officials. 7. At t he time of the signing of t his declaration DSHS and the Texas Department of Emergency Management (TDEM) have issued approximately 90 purchase orders for PPE. II
II
1 See https://www.cdc.gov/coronavfrus/2019-ncov/hcp/ppe-strategy/index.html. Page 2 of 3

Case 1:20-cv-00323-LY Document 30-1 Filed 03/30/20 Page 40 of 40

II II II II
DECLARATION UNDER PENALTY OF PERJURY I, Jeffrey Hoogheem, a citizen of the United States and a resident of Texas, hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing Declaration is true and correct.

Executed this 29 day of March, 2020.

Jeffre~

1:+n--- -

Page 3 of 3

Case 1:20-cv-00323-LY Document 30-2 Filed 03/30/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs, v.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. 1:20-CV-00323-LY

§

§

§

§

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

On this date the Court considered Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction and Memorandum of Law in Support (the “Motion”). After considering the Motion, State Defendants’ Response to the Motion, any further replies filed by the parties, and the other pleadings in this matter, the Court is of the opinion that the Motion is not meritorious and should be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion is denied. This Court declines to issue a temporary restraining order or any preliminary injunctive relief at this time.

SIGNED this _____ day of ____________________, 2020.

LEE YEAKEL UNITED STATES DISTRICT JUDGE

 
 Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 1 of 9

iN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2U2UMAR3O PM 3:05

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER, AND

§

ROBIN WALLACE, M.D., M.A.S.,

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. A-20-CV-323-LY

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON

§

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BRINT

§

CARLTON, EXECUTIVE DIRECTOR

§

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH

§

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY,

§

JOE GONZALES, CRIMINAL

§

DISTRICT ATTORNEY FOR BEXAR

§

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY,

§

JOHN CREUZOT, DISTRICT

§

ATTORNEY FOR DALLAS COUNTY,

§

SHAREN WILSON, CRIMINAL

§

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 2 of 9

DISTRICT ATTORNEY TARRANT

§

COUNTY, RICARDO RODRIGUEZ, JR., §

CRIMiNAL DISTRICT ATTORNEY

§

FOR HIDALGO COUNTY, BARRY

§

JOHNSON, CRIMINAL DISTRICT

§

ATTORNEY FOR MCLENNAN

§

COUNTY, KIM OGG, CRIMINAL

§

DISTRICT ATTORNEY FOR HARRIS §

COUNTY, AND BRIAN MIDDLETON §

CRIMINAL DISTRICT ATTORNEY

§

FOR FORT BEND COUNTY, EACH IN §

THEIR OFFICIAL CAPACITY,

§

DEFENDANTS.

§

ORDER GRANTING PLAINTIFFS' REOUEST FOR TEMPORARY RESTRAINING ORDER

Before the court is the above styled and numbered cause. Plaintiffs include several licensed

abortion facilities, Robin Wallace, a board-certified family medicine physician who provides

abortion care and is co-medical director at Southwestern Women's Surgery Center, who bring this

action on behalf of herself and her patients, and other organizations that provide abortion services

in the State of Texas. Plaintiffs bring this constitutional challenge, pursuant to Title 42 United States Code section 1983, following the publication of a March 23, 2020 press release by the Texas attorney general titled, "Health Care Professionals and Facilities, Including Abortion Providers, Must

Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to
Fight COVID- 19 Pandemic." The press release interprets the governor ofTexas's "Executive Order
GA-09 relating to hospital capacity during the COVID- 19 disaster" ("Executive Order") signed

'Available at https://www.texasattorneygeneral.gov/news/releases/health-care-professionsand-facilities-including-abortion-providers-must-immediately-stop-all.

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 3 of 9
March 22, 2020.2 To the extent the attorney general's interpretation is consistent with the Executive
Order, Plaintiffs challenge the Executive Order itself. Plaintiffs also challenge the Texas Medical
Board's emergency amendment to Title 22 Texas Administrative Code section 187.57 ("Emergency
Rule"), which imposes the same requirements as the Executive Order.3 The Executive Order
remains in effect until 11:59 PM on April 21, 2020, at the earliest, or until the governor rescinds or
modifies it.
Pending now before the court is Plaintiffs' Motion for Temporary Restraining Order and/or
Preliminary Injunction filed March 25, 2020 (Clerk's Document No. 7). The court held a telephone
conference on March 26, 2020, at which Plaintiffs and several Defendants participated by counsel.
The court granted the State Defendants'4 request to file a written response to the motion. The State
2 Available at https ://gov.texas.gov/news/postlgovorner-abbott-issues-executive-order-
increasing-hospital-capacity-announces-supply-chain-strike-force-for-COVID- 19-response. Under
the Emergency Management Chapter of the Texas Government Code, "the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law." Tex. Gov't Code Ann. § 418.012
(West 2019).
Available at https://tinyurl.com/v4pz99u. On March 24, 2020, the Texas Medical Board
adopted an emergency rule to enforce the Executive Order. Under preexisting law, the Texas
Medical Board could temporarily suspend or restrict a physician's license if the physician's
"continuation in practice would constitute a continuing threat to the public welfare." 22 Tex. Admin. Code § 187.57(b). The Emergency Rule expands this basis for discipline to include "performance of a non-urgent elective surgery or procedure."
Because the Emergency Rule contains the same requirements to postpone surgeries and procedures that are not immediately necessary, Plaintiffs discuss the Emergency Rule together with the Executive Order.
"Defendants Greg Abbott, Governor of Texas, Ken Paxton, Attorney General of Texas, Phil Wilson, Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, Executive Director of the Texas Medical Board, Katherine A. Thomas, Executive Director of the Texas Board of Nursing, each in their official capacity, are referred to as
"State Defendants."
ci

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 4 of 9
Defendants responded March 30, 2020 (Clerk's Document No. 30), and Plaintiffs filed a Supplemental Statement In Support of Motion For Temporary Restraining Order the same day (Clerk's Document No. 29).
Plaintiffs argue that they have shown they are entitled to a temporary restraining order following the attorney general's press release. Plaintiffs interpret the press release as "suggesting that [the attorney general] believes continuing to provide any abortion care (other than for an immediate medical emergency) would violate the Executive Order, and as a warning to abortion
providers that '[t]hose who violate the [Executive O]rder will be met with the full force of the law." The Executive Order provides that failure to comply is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. See Tex. Gov't Code Ann. § 418.173 (West 2019) ("Penalty forViolation ofEmergency Management Plan"). These
criminal penalties also trigger administrative enforcement provisions for the Texas Health and
Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing, each of
which is authorized to pursue disciplinary action against licensees who violate criminal laws. See 25 Tex. Admin. Code § 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); Tex. 0cc. Code Ann. § 164.05 1(a)(2)(B), (a)(6); 301.452(b)(3), (b)(10).
Plaintiffs move for a temporary restraining order that restrains Defendants and their employees, agents, successors, and all others acting in concert or participating with them from enforcing the Executive Order and the Texas Medical Board's Emergency Rule as banning all medication abortions and procedural abortions.
The court, having considered the pleadings, the motion and supporting exhibits, the response,
the applicable law, and arguments of counsel, finds and concludes for the specific reasons required
4

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 5 of 9
under Federal Rule of Civil Procedure 65(d) and Local Rule 65.01, that Plaintiffs have shown (1) a likelihood of success on the merits, (2) that they will suffer irreparable harm iftemporary relief is not granted, (3) that the injury to Plaintiffs outweighs any harm the temporary relief might cause
Defendants; and (4) that a temporary restraining order will not disserve the public interest. See, e.g.,
Jackson Women's Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014) ("Jackson r'); Janvey
v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). Substantial likelihood of success on the merits
Specifically, the court finds that Plaintiffs have established a substantial likelihood ofsuccess on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates Plaintiffs' patients' Fourteenth Amendment rights, which derive from the Bill of Rights, by effectively banning all abortions before viability. See Planned Parenthood v. Casey, 505 U.S. 833,
848-49 (1992) (citing Griswoldv. Conn., 381 U.S. 479, 481-82(1965); Roe v. Wade, 410 U.S. 113,
153-54 (1973)). The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a woman's right to choose abortion, Roe v. Wade, 410 U.S. 113, 153-54
(1973), and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions. Roe, 410 U.S. at 163-65; see also Casey, 505 U.S. at 846, 871 (1992) (reaffirming Roe's "central principle" that "[b]efore viability, the State's interests are not strong
enough to support a prohibition of abortion"); Jackson Women 's Health Org. v. Dobbs, 951 F.3d
246, 248 (5th Cir. 2020) (per curiam) ("Jackson II]"); Jackson Women 's Health Org. v. Dobbs, 945 F.3d 265, 268-69 (5th Cir. 2019) ("Jackson I]").
Under the attorney general's interpretation, the Executive Order either bans all nonemergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of
S

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 6 of 9
pregnancy, and even earlier among patients for whom medication abortion is not appropriate. Either interpretation amounts to a previability ban which contravenes Supreme Court precedent, including Roe. See, e.g., Jackson III, 951 F.3d at 248 (ban on abortions starting at six weeks). Previability abortion bans are "unconstitutional under Supreme Court precedent without resort to the undue burden balancing test." Id. States "may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions." Jackson II, 945 F.3d at 269.
The State Defendants well describe the emergency facing this country at the present time. They do not overstate when they say, "Texas faces it worst public health emergency in over a century." The Executive Order, as written, does not exceed the governor's power to deal with the
emergency. But the attorney general's interpretation of that order constitutes the threat of criminal penalties against those whose interpretation differs. Yes, the attorney general is not the enforcer of those penalties, but many of those who are charged with enforcement are named as defendants in this action. The court takes notice that the opinion or notion of the attorney general as to the breadth of a law, even if expressed informally, carries great weight with those who must enforce it.
Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent "except-in-a-national-emergencyclause" in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court. For now, the State Defendants, and perhaps the others, agree that the Executive Order bans all pre-fetal-viability abortions. This is inconsistent with Supreme Court precedent. Plaintiffs have demonstrated a strong likelihood of success on the merits of their action.

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 7 of 9
Plaintiffs will suffer irreparable harm Plaintiffs' patients will suffer serious and irreparable harm in the absence of a temporary
restraining order. The attorney general's interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable. It is well established that, upon a plaintiff's demonstrating a constitutional violation, no further irreparable injury is necessary. See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of [constitutional] freedoms . . . unquestionably
constitutes irreparable injury."); Opulent Life Church v. City ofHolly Springs, 697 F.3d 279, 295 (5th Cir. 2012); Deerfield Med. Ctr. v. City ofDeerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981).
The threatened injury to Plaintiffs outweigh any damage the temporary restraining order may cause Defendants
A delay in obtaining abortion care causes irreparable harm by "result[ing] in the progression
of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal." Planned ParenthoodofWis., Inc. v. Van Hollen, 738 F.3d 796 (7th Cir. 2013). This "disruption or denial of
. patients' health care cannot be undone after a trial on the merits." Planned ParenthoodofKan.
v. & Mid Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018). For some patients, such a delay
will deprive them of any access to abortion. See Tex. Health & Safety Code Ann. § 171.044 (West
2017) (prohibiting abortions after 20 or more weeks post-fertilization age). The court finds that the threatened injury to Plaintiffs outweighs any damage the temporary restraining order may cause Defendants.
7

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 8 of 9
Temporary restraining order will not disserve the public interest "The grant of an injunction will not disserve the public interest. . . when an injunction is
designed to avoid constitutional deprivations." Jackson 's Woman 's Health Org. v. Currier, 940 F. Supp. 2d 416,424 (S.D. Miss. 2013), aff'd, 760 F.3d 448 (5th Cir. 2014). Plaintiffs' requested relief will essentially continue the status quo, tipping the balance of equities toward Plaintiffs and serving the public interest. Id.; United States v. Tex., 508 F.2d 98, 101(5th Cir. 1975). The 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, as well as the risks of travelling to other states in search of time-sensitive medical care. The court finds that a temporary restraining order will not
disserve the public interest. The court concludes that Plaintiffs have shown that they are entitled to a temporary
restraining order. Therefore, IT IS ORDERED that Plaintiffs' Motion for Temporary Restraining Order filed March 25,
2020 (Clerk's Document No. 7) is GRANTED. IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and
all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09, "Relating to hospital capacity during the COVID- 19 disaster," and the Texas Medical Board's emergency amendment to Title 22 Texas Administrative Code section 187.57, as applied to medication abortions and procedural abortions.5
Pursuant to an Agreed Stipulation for Non-Enforcement Pending Final Resolution, Attorneys Fees and Costs filed March 28, 2020 (Clerk's DocumentNo. 25) this order does not apply to Defendant Brian Middleton, Criminal District Attorney for Fort Bend County.
8

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 9 of 9

IT IS FURTHER ORDERED that this Temporaiy Restraining Order shall expire on April

13, 2020 at

p.m. This order may be extended for good cause, pursuant to Federal

Rule of Civil Procedure 65.

Plaintiffs have also moved for a preliminary injunction. Therefore,

IT IS ORDERED that the hearing on Plaintiffs' motion for a preliminary injunction is set

for a telephonic hearing on April 13, 2020 at 9:30 a.m. Counsel and parties may call in to the court's

conference line at (877) 873-8017, with Access Code 7996289.

Plaintiffs shall not be required to post a bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624,

628 (5th Cir. 1996). SIGNED at

.m., this

day of March, 2020.

UN ED STATES

 
 Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, et al., Defendants.

§ § § § Civil Action No. 1:20-cv-00323-LY § § § § §

STATEMENT OF INTEREST OF THE STATES OF ALABAMA, ARKANSAS, IDAHO, INDIANA, KENTUCKY, LOUISIANA, MISSISSIPPI, MISSOURI, NEBRASKA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, AND WEST VIRGINIA

Lill Firm, P.C. DAVID S. LILL State Bar No. 12352500 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 330-0252 Facsimile: (844) 402 9814 Email: david@lillfirm.com

Jeff Landry
LOUISIANA ATTORNEY GENERAL
ELIZABETH B. MURRILL Solicitor General JOSEPH S. ST. JOHN Deputy Solicitor General LOUISIANA DEPARTMENT OF JUSTICE 1885 N. Third Street Baton Rouge, LA 70804 Tel: (225) 456-7544 (cell) emurrill@ag.louisiana.gov stjohnj@ag.louisiana.gov

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 2 of 13
BACKGROUND In the span of only two weeks, the COVID-19 virus has upended life as most people know it. Louisiana has gone from one confirmed case on March 9 to 3,540 active cases and 151 deaths on March 29, with a tenfold increase in only 10 days.1 The Governor of Louisiana is standing up a 1,000 bed field hospital in a New Orleans convention center, while health care personnel face the real possibility of systemic collapse of the health care system.2 Washington, New Jersey, Michigan, and Illinois are experiencing exponential growth in COVID19 cases. Other states, including Texas, are on similar tracks. As of Sunday, March 29, the United States had registered approximately 125,000 COVID-19 infections and 2,200 deaths.3 Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Disease and a nowfamiliar face to Americans everywhere, warned that the outbreak could kill 100,000–200,000 Americans. Officials throughout the country are warning of shortages of personal protective equipment (“PPE”) used to protect healthcare providers and prevent the spread of infections. COVID-19 appears to be transmissible by asymptomatic and presymptomatic carriers.4 The virus has an incubation period of up to 14 days, during which “[i]nfected individuals produce a large quantity of virus . . . , are mobile, and carry on usual activities, contributing to the spread of infection.”5 The virus can remain on surfaces many days6, and patients may remain infectious for weeks after their symptoms subside.7 Not surprisingly, healthcare professionals have tested positive
1 http://ldh.la.gov/Coronavirus/ 2 https://www.wwltv.com/article/news/health/coronavirus/1000-beds-at-convention-center-fieldhospital-to-help-with-surge-capacity/289-d8a4bfc1-ffa6-4124-a545-40961d5fd64d 3 https://www.reuters.com/article/us-health-coronavirus-usa/us-virus-deaths-could-reach-200000fauci-warns-as-medical-supplies-run-short-idUSKBN21G0ME 4 https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm?s_cid=mm6912e3_w 5 https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30374-3/fulltext 6 https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm?s_cid=mm6912e3_w 7 https://www.thelancet.com/journals/langas/article/PIIS2468-1253(20)30083-2/fulltext
2

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 3 of 13
even while going to great lengths to protect themselves,8 and healthcare facilities have been
identified as a vector for COVID-19 transmission.9
Citing the grave threat posed by the epidemic, the President declared a national emergency
March 13, 2020.10 He then invoked the Defense Production Act to prioritize and allocate medical
resources, to prevent hoarding of resources, and “to expand domestic production of health and
medical resources needed to respond to the spread of COVID-19, including personal protective
equipment and ventilators.”11 At the same time, the Centers for Disease Control and Prevention
(“CDC”) issued guidance that healthcare providers should “delay all elective ambulatory provider
visits” and “delay inpatient and outpatient elective surgical procedural cases.”12 The CDC explained
that doing so “can preserve staff, personal protective equipment, and patient care supplies; ensure
staff and patient safety; and expand available hospital capacity during the COVID-19 pandemic.”
Indeed, the CDC issued detailed guidance on optimizing the supply of PPE under both contingency
and crisis conditions.13 The Centers for Medicare and Medicaid Services (“CMS”) issued detailed
recommendations, prefaced as:
To aggressively address COVID-19, CMS recognizes that conservation of critical resources such as ventilators and Personal Protective Equipment (PPE) is essential, as well as limiting exposure of patients and staff to the SARS-CoV-2 virus. Attached is guidance to limit non-essential adult elective surgery and medical and surgical procedures, including all dental procedures. These considerations will assist in the management of vital healthcare resources during this public health emergency.14
8 https://www.ajc.com/news/state--regional-govt--politics/nine-doctors-positive-for-coronavirusaccording-gupta/2pBtOgGO0ibyUgGX0wAR4O/ 9 https://catalyst.nejm.org/doi/full/10.1056/CAT.20.0080 10 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/ 11 https://www.whitehouse.gov/presidential-actions/eo-delegating-additional-authority-dpa-respecthealth-medical-resources-respond-spread-covid-19/ 12 https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html 13 https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html 14 https://www.cms.gov/files/document/31820-cms-adult-elective-surgery-and-proceduresrecommendations.pdf
3

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 4 of 13
The CMS concern with PPE shortages was palpable: it noted even “dental procedures use PPE,”
and “to reduce the risk of spread and to preserve PPE, we are recommending that all non-essential
dental exams and procedures be postponed until further notice.” Heeding that advice, healthcare
providers have deferred a wide variety of procedures, even life-saving transplants.15
Consistent with the declaration of a national emergency, Texas’ Governor declared a state of
disaster in connection with the COVID-19 pandemic.16 On March 19, 2020, the Commissioner of
the Texas Department of State Health Services certified:
the introduction and spread of the communicable disease known as COVID-19 in the State of Texas has created an immediate threat, 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.17
The Commissioner therefore declared a public health disaster. In reliance on that declaration and
guidance issued by the CDC, the Governor issued executive orders prohibiting gatherings of more
than 10 people,18 requiring daily reports of hospital utilization,19 and quarantining travelers from
certain areas.20 On March 22, the Governor found that hospital capacity and personal protective
equipment were being depleted by surgeries and procedures that were not medically necessary. He
therefore additionally ordered that
all 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
15 https://www.wsj.com/articles/coronavirus-threat-forces-longer-waits-for-some-organ-transplantpatients-11585137601 16https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE _03-13-2020.pdf 17 https://gov.texas.gov/news/post/dr-john-hellerstedt-issues-public-health-disaster-declaration-intexas 18 https://gov.texas.gov/uploads/files/press/EO-GA_08_COVID19_preparedness_and_mitigation_FINAL_03-19-2020_1.pdf 19 https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-to-strengthenreporting-capabilities 20 https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-mandating-14-dayquarantine-for-travelers-arriving-from-new-york-tri-state-area-new-orleans2
4

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 5 of 13
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[.]21
The following day, Texas Attorney General Ken Paxton explained:
This prohibition applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.
The COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus. Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals.22
ARGUMENT
I. STATES HAVE VAST POWER TO PROTECT THE PUBLIC FROM EPIDEMICS.
The States’ police power “is universally conceded to include everything essential to the
public safety, health, and morals, and to justify the destruction or abatement, by summary
proceedings, of whatever may be regarded as a public nuisance.” Lawton v. Steele, 152 U.S. 133, 136
(1894). “The power to protect the public health lies at the heart of [that] power.” Banzhaf v. F.C.C.,
405 F.2d 1082, 1096-97 (D.C. Cir. 1968). Indeed, protection of the public health “has sustained
many of the most drastic exercises of that power, including quarantines, condemnations, civil
commitments, and compulsory vaccinations.” Id. And where necessity warrants, States may go
further still. See, e.g., United States v. Caltex, 349 U.S. 149 , 154 (1953) (“[T]he common law had long
recognized 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
21 https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-increasing-hospitalcapacity-announces-supply-chain-strike-force-for-covid-19-response2 22 https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilitiesincluding-abortion-providers-must-immediately-stop-all
5

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 6 of 13
lives of many more could be saved.”); Bowditch v. City of Boston, 101 U.S. 16, 18 (1879) (“There are many other cases besides that of fire—some of them involving the destruction of life itself—where the same rule is applied. The rights of necessity are a part of the law.”).
Jacobson v. Massachusetts, 197 U.S. 11 (1905), is instructive. In Jacobson, Massachusetts authorized a board of health to require vaccination “if, in its opinion, it is necessary for the public health or safety.” Id. at 12-13. Reciting that “smallpox . . . was prevalent to some extent in the city of Cambridge, and the disease was increasing,” the city of Cambridge adopted a mandatory vaccination regulation. Id. at 12-13, 27-28. Jacobsen was convicted for refusing to be vaccinated. Id. at 21. The Supreme Court rejected his Fourteenth Amendment challenge, explaining that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27.
Pointing to the State’s authority to conscript for military service and to forcibly quarantine its citizens, the Court held that “in 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 . . . restraint.” Id. at 29. The Court acknowledged the “power of a local community to protect itself against an epidemic . . . 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[.]” Id. at 28. But where the existence of the emergency was undisputed, the Court declined to “usurp the functions of another branch of government” by reweighing the risks and benefits of the emergency action. Id. at 27-28, 36-37.
Similarly, in Compagnie Francaise de Navigation a Vapeur v. State Board of Health, 186 U.S. 380 (1902), the Supreme Court upheld a geographic quarantine of several parishes around New Orleans. That quarantine sought to “exclude healthy persons from a locality infested with a contagious or
6

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 7 of 13
infectious disease.” Id. at 385. “The object in view was to keep down, as far as possible, the number of persons to be brought within danger of contagion or infection, and by means of this reduction to accomplish the subsidence and suppression of the disease and the spread of the same.” Id. The quarantine was held not to violate the Fourteenth Amendment. Id. at 387, 393.
The United States has thankfully had limited experience with epidemics for over 100 years. Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016), for example, is one of only a handful of postwar cases addressing the power of a State to quarantine. But that case makes clear that Jacobson and Compagnie Francaise remain good law. In Hickox, a nurse who returned to New Jersey after caring for ebola patients was quarantined and sued State officials alleging Fourth and Fourteenth Amendment violations. Id. at 584. The court began by pragmatically observing “[t]he State is entitled to some latitude . . . in its prophylactic efforts to contain what is, at present, an incurable and often fatal disease.” Id. at 584. The court then explained that although “the federal government has the power to declare and enforce a quarantine,” it generally plays “a supportive role, with the States taking the lead in quarantine matters.” Id. at 590-91.
With respect to ebola, the CDC had issued guidance that healthcare workers who had provided care to ebola victims were at higher risk for viral exposure and suggested that “additional precautions may be recommended.” Id. at 590. Ms. Hickox was detained pursuant to an executive order by the New Jersey Governor that was consistent with the CDC’s guidance. Id. at 585, 591. The court rejected Hickox’s contention “that she wore protective gear and took appropriate measures to prevent the spread of disease.” Id. “The authorities were not required . . . to take it on faith that Ms. Hickox had been 100% compliant, or the measures 100% effective.” Id. Citing Jacobsen, and Compagnie Francaise, the court found no unconstitutionality. Id. at 591-94. It concluded that “[t]o permit these constitutional claims to go forward . . . would be a judicial second-guessing of the
7

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 8 of 13
discretionary judgments of public health officials acting within the scope of their (and not [the court’s]) expertise.” Id. at 594.
That the States’ vast power to deal with epidemics has been repeatedly upheld is unsurprising. The Fourteenth Amendment does not ban the deprivation of any right. Rather, it provides that no State shall “deprive any person of life, liberty, or property without due process of law.” Even as to fundamental rights, “the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Where the government’s interests are sufficiently compelling, even the most fundamental rights will yield. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“Like most rights, the right secured by the Second Amendment is not unlimited.”); Kansas v. Hendricks, 521 U.S. 346, 366 (1997) (upholding civil commitment of persons who pose a danger to others); Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent . . . the publication of the sailing dates of transports or the number and location of troops.”).23 II. PLAINTIFFS ARE NOT ENTITLED TO A CATEGORICAL EXEMPTION FROM
EMERGENCY RULES, ISSUED UNDER RAPIDLY-DEVELOPING EMERGENCY CONDITIONS, THAT THREATEN THE HEALTH AND SAFETY OF MILLIONS.
Plaintiffs concede COVID-19 is a “worldwide pandemic,” “federal and state officials expect a surge of infections . . . to test the limits of the healthcare system,” and “[h]ealthcare workers are facing a shortage of [at least] certain types of PPE.” Compl. ¶ 45. They further concede they “use some PPE,” Compl. ¶ 54, including “gloves, a surgical mask, disposable protective eyewear,
23 This Court has already found that a fundamental right must yield to the public interests: it has twice continued various criminal proceedings after finding continuances due to COVID-19 outweigh a defendant’s right to a speedy trial.
8

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 9 of 13
disposable or washable gowns, hair covers, and shoe covers. Mem. at 8. Finally, Plaintiffs concede the FDA believes “demand could exceed supply” even for gloves. Compl. ¶ 54 n.26. Plaintiffs nevertheless ask this Court to “usurp the functions of another branch of government,” Jacobson, 197 U.S. at 28, by reweighing the risks and benefits of Governor Abbott’s emergency action. That the court cannot do. Id. at 28, 39.
Plaintiffs spend pages rehashing the existence of a right to abortion and demand a blanket exemption—not granted for any other provider or procedure—from a facially neutral regulation that is applicable to all surgeries and medical procedures.24 That regulation complies with Jacobson, 197 U.S. at 38-39, and provides a full exception for procedures “immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient.” Plaintiffs nevertheless insist they are entitled to an extraordinary exception and that their judgment should override the judgment of subject matter experts at every level of government that the health of the public as a whole, medical provider health, and PPE should be protected and conserved, together with the judgment that delaying medical procedures will protect the public from the spread of a deadly disease.
Professional bodies have emphasized that patient-specific judgment is what the situation requires. The American College of Surgeons emphasizes that “[p]lans for case triage should avoid blanket policies and instead rely on data and expert opinion from qualified clinicians and administrators, with a site-specific granular understanding of the medical and logistical issues in play.”25 And while doctors all over the country are responsibly exercising such case-specific judgment, Plaintiffs’ doctors apparently contend they cannot be required to exercise patient-specific 24 Jacobson contemplates individual, as-applied challenges even to emergency public health orders. 197 U.S. at 38-39. Modern abortion law is in accord. See generally Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006). Plaintiffs do not pursue that option, and instead pursue a broad challenge that is adverse to the interest of at least any patient who would be able to pursue such an individual challenge. Cf. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 & n.7 (2004) (third party standing vitiated by potential conflict of interest). 25 https://www.facs.org/covid-19/clinical-guidance/triage
9

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 10 of 13
judgment as to the medical necessity of an abortion. That conclusion is not only medically unsupportable, but also irresponsible and dangerous. III.THIS CASE POSES A GRAVE THREAT TO STATE AUTHORITY TO PROTECT
PUBLIC HEALTH. This case is not occurring in isolation. Almost all states have issued similar emergency
restrictions on medical procedures that are not immediately medically necessary. At the same time, our States are experiencing this disaster at different levels of development. Governors, in consultation with public health experts and federal experts, simply must have the flexibility to address the rapidly changing needs in each of their states. The federal judiciary, moreover, is uniquely unsuited to the task it is being asked to undertake—second-guessing the judgment of infectious disease experts, public health system and state disaster managers, and officials expressly tasked with protecting the health and safety of their state’s residents from a deadly contagious virus.
Plaintiffs specifically ask this Court to interfere in Texas’ decisions on the basis of weak evidence that actually demonstrates the threat to the clinics patients, staff, and the public as a whole. Each of the Plaintiffs treats thousands of patients per year, many for surgical abortions. E.g., DewittDick Decl. (ECF 7-2) ¶ 2; Klier Decl. (ECF 7-5) ¶ 9. Yet all insist that they do not use significant amounts of PPE, see, e.g., Dewitt-Dick Decl. ¶ 6, raising concerns about the adequacy of staff and patient protection. Some appear to extensively use PPE. Dewitt-Dick Decl. (ECF 7-2) ¶ 19-20. But some are, astonishingly, having doctors and staff use the same PPE for multiple procedures. Barraza Decl. (ECF 7-1) ¶ 7. Others appear to make use of PPE entirely optional despite the obvious necessity of close contact with patients. Ferringo Decl. (ECF 7-3) ¶¶ 10, 12 (noting that “some physicians also use surgical masks, disposable shoe covers, and reusable goggles” and “the staff member may use gloves, a surgical gown, face shield, or disposable shoe covers.”).
Given their patients volume, Plaintiffs have likely treated at least some individuals infected with COVID-19, even if asymptomatic. At least one implicitly acknowledges having treated patients
10

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 11 of 13
“for whom there is a concern for COVID-19” by giving the patients “a mask” but apparently not protecting staff with an N95 respirator. Barraza Decl. ¶ ¶ 7 n.1, 8. And Southwestern baldly states that it “would” treat a patient with COVID-19 by supplying the patient with a N95 respirator. Dewitt-Dick Decl. ¶ 2. Southwest confesses it sent symptomatic staff home, but has apparently not followed CDC guidance requiring all staff who may have been in contact with a symptomatic person to self-quarantine. See Dewitt-Dick Decl. ¶ 13-14. Far from providing grounds for an exception to Governor Abbott’s order, Plaintiffs declarations prove they should not be performing any procedures while a deadly virus is spreading through the nation.26
Regardless, in the middle of responding to this threat as it unfolds, States should not be required to provide blanket exclusions to public health orders when such exclusions undoubtedly threaten the public as a whole, and no federal court should assume that grave responsibility. It was well within the State’s power to articulate a simple, workable rule requiring physicians to defer procedures that are not immediately medically necessary.
CONCLUSION Plaintiffs invite this Court on a perilous journey. They challenge emergency orders issued by the Governor of Texas under conditions expressly authorized by Texas law, when his powers are at a zenith, and to address a grave threat to public health. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (Jackson, J., concurring). Plaintiffs nevertheless ask this Court to permit medical procedures that, in the judgment of both State and Federal experts, risk further spreading a deadly epidemic. This Court should decline that request.
26 Plaintiffs declarations are from administrators, business managers and two doctors who are not experts in epidemiology or infectious disease and who offer no opinions on these issues. Their backgrounds and training are insufficient to even compare with the expert opinions of State and Federal public health officials responding to the pandemic.
11

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 12 of 13

Dated March 30, 2020

Respectfully submitted,
LILL FIRM, P.C.
By: /s/ David S. Lill
DAVID S. LILL
State Bar No. 12352500 4407 Bee Caves Road, Suite 111 Austin, Texas 78746 Telephone: (512) 330-0252 Facsimile: (844) 402 9814 Email: david@lillfirm.com
JEFF LANDRY LOUISIANA ATTORNEY GENERAL *ELIZABETH B. MURRILL Solicitor General *JOSEPH S. ST. JOHN Deputy Solicitor General LOUISIANA DEPARTMENT OF JUSTICE 1885 N. Third Street Baton Rouge, LA 70804 Tel: (225) 456-7544 (cell) emurrill@ag.louisiana.gov stjohnj@ag.louisiana.gov *pro hac vice applications pending

12

Case 1:20-cv-00323-LY Document 41 Filed 03/30/20 Page 13 of 13

Steve Marshall Alabama Attorney General
Leslie Rutledge Arkansas Attorney General
Lawrence Wasden Idaho Attorney General
Curtis T. Hill Jr. Indiana Attorney General,
Daniel Cameron Kentucky Attorney General,
Lynn Fitch Mississippi Attorney General,
Eric Schmitt Missouri Attorney General

Douglas J. Peterson Nebraska Attorney General
Dave Yost Ohio Attorney General,
Mike Hunter Oklahoma Attorney General
Alan Wilson South Carolina Attorney General
Jason Ravnsborg South Dakota Attorney General
Herbert Slatery III Tennessee Attorney General
Sean Reyes Utah Attorney General
Patrick Morrisey West Virginia Attorney General

13

 
 Case 1:20-cv-00323-LY Document 95 Filed 04/21/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS 97jJ APR 2 I
AUSTIN DIVISION

AM tO: 19
q:.

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER,

§

ROBIN WALLACE, M.D., M.A.S.,

§

ALAMO CITY SURGERY CENTER

§

PLLC D/B/A ALAMO WOMEN'S

§

REPRODUCTIVE SERVICES,

§

HOUSTON WOMEN'S

§

REPRODUCTIVE SERVICES, AND

§

HOUSTON WOMEN'S CLINIC,

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. A-20-CV-323-LY

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON

§

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BRINT

§

CARLTON, EXECUTIVE DIRECTOR

§

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH

§

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY,

§

JOE GONZALES, CRIMINAL

§

Case 1:20-cv-00323-LY Document 95 Filed 04/21/20 Page 2 of 3
DISTRICT ATTORNEY FOR BEXAR COUNTY, JAIME ESPARZA, DISTRICT ATTORNEY FOR EL PASO COUNTY, JOHN CREUZOT, DISTRICT ATTORNEY FOR DALLAS COUNTY, SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY TARRANT COUNTY, RICARDO RODRIGUEZ, JR., CRIMINAL DISTRICT ATTORNEY FOR HIDALGO COUNTY, BARRY JOHNSON, CRIMINAL DISTRICT ATTORNEY FOR MCLENNAN COUNTY, KIM OGG, CRIMINAL DISTRICT ATTORNEY FOR HARRIS COUNTY, AND BRIAN MIDDLETON CRIMINAL DISTRICT ATTORNEY FOR FORT BEND COUNTY, EACH IN THEIR OFFICIAL CAPACITY,
DEFENDANTS.
nj 1,) 31
IN THIS CASE on April 13, 2020, Plaintiffs filed an Amended Complaint for Injunctive and
Declaratory Relief adding Houston Women's Clinic as a plaintiff (Clerk's Doc. #67). On April 14,
2020, Houston Women's Clinic filed a Motion for Temporary Restraining Order (Clerk's Doc. #79).
On April 17, 2020, Plaintiffs filed a Second Amended Complaint for Injunctive and Declaratory
Relief adding Alamo City Surgery Center PLLC dlb/a Alamo Women's Reproductive Services and
Houston Women's Reproductive Services as plaintiffs (Clerk's Document #86). Also, on April 17,
202, Alamo City Surgery Center and Houston Women's Reproductive Services filed a Motion for
Temporary Restraining Order (Clerk's Doc. #87).
On April 9, 2020, before Houston Women's Clinic, Alamo City Surgery Center, and Houston
Women's Reproductive Services appeared plaintiffs, this court rendered an Order Granting
Plaintiffs' Second Motion for a Temporary Restraining Order (Clerk's Doe. #63). Houston

Case 1:20-cv-00323-LY Document 95 Filed 04/21/20 Page 3 of 3

Women's Clinic, Alamo City Surgery Center, and Houston Women's Reproductive Services each

move for a temporary restraining order to place it in the same position in this case as the other

plaintiffs. The court finds that Houston Women's Clinic, Alamo City Surgery Center, and Houston

Women's Reproductive Services are similarly situated to the other plaintiffs and bringing them under

the existing temporary restraining order will neither delay resolution of this case nor change the

status of or work a hardship on any other party.

IT IS THEREFORE ORDERED that Plaintiff Houston Women's Clinic's Motion for

Temporary Restraining Order (Clerk's Doe. #79) and Plaintiffs Alamo City Surgery Center's and

Houston Women's Reproductive Services; Motion for Temporary Restraining Order (Clerk's Doe.

#87) are GRANTED as follows: Houston Women's Clinic, Alamo City Surgery Center, and

Houston Women's Reproductive Services as plaintiffs in this case, are covered by and subject to this

court's April 9, 2020, temporary restraining order to the same extent as the original plaintiffs and

are entitled to all rights, privileges, and immunities set forth in the April 9, 2020 order, as modified

by the United States Court of Appeals for the Fifth Circuit by that court's orders of April 10 and

April 13, 2020. In all other respects, the motion is DENIED.

SIGNED

day of April, 2020.

ITED STA ES DIS

 
 Case 1:20-cv-00323-LY Document 99 Filed 04/21/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS 2QZliPR2I AUSTIN DIVISION

HIQ:2O

PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER, WHOLE WOMAN'S HEALTH, WHOLE WOMAN'S HEALTH ALLIANCE, SOUTHWESTERN WOMEN'S SURGERY CENTER, BROOKSIDE WOMEN'S MEDICAL CENTER PA D/BA BROOKSIDE WOMEN'S HEALTH CENTER AND AUSTIN'S WOMEN'S HEALTH CENTER, ROBIN WALLACE, M.D., M.A.S., ALAMO CITY SURGERY CENTER PLLC DIB/A ALAMO WOMEN'S REPRODUCTIVE SERVICES, HOUSTON WOMEN'S REPRODUCTIVE SERVICES, AND HOUSTON WOMEN'S CLINIC,
PLAINTIFFS,
V.
GREG ABBOTT, GOVERNOR OF TEXAS, KEN PAXTON, ATTORNEY GENERAL OF TEXAS, PHIL WILSON ACTING EXECUTIVE COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION, STEPHEN BR1NT CARLTON, EXECUTIVE DIRECTOR OF THE TEXAS MEDICAL BOARD, KATHERINE A. THOMAS, EXECUTIVE DIRECTOR OF THE TEXAS BOARD OF NURSING, EACH IN THEIR OFFICIAL CAPACITY, AND MARGARET MOORE, DISTRICT ATTORNEY FOR TRAVIS COUNTY, JOE GONZALES, CRIMINAL

§
§ § § § § § § § § § § § § § § § § § § §
§ §
§ CAUSE NO. A-20-CV-323-LY
§ § § §
§ § § § § § § § § § § § §

Case 1:20-cv-00323-LY Document 99 Filed 04/21/20 Page 2 of 3

DISTRICT ATTORNEY FOR BEXAR §

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY, §

JOHN CREUZOT, DISTRICT

§

ATTORNEY FOR DALLAS COUNTY, §

SHAREN WILSON, CRIMINAL

§

DISTRICT ATTORNEY TARRANT

§

COUNTY, RICARDO RODRIGUEZ, JR., §

CRIMINAL DISTRICT ATTORNEY

§

FOR HIDALGO COUNTY, BARRY

§

JOHNSON, CRIMINAL DISTRICT

§

ATTORNEY FOR MCLENNAN

§

COUNTY, KIM OGG, CRIMINAL

§

DISTRICT ATTORNEY FOR HARRIS §

COUNTY, AND BRIAN MIDDLETON §

CRIMINAL DISTRICT ATTORNEY

§

FOR FORT BEND COUNTY, EACH IN §

THEIR OFFICIAL CAPACITY,

§

DEFENDANTS.

§

0 I) 1 ai

On April 9, 2020, this court entered an Order Granting Plaintiffs' Second Motion for a Temporary Restraining Order (Dkt. #63). On April 20, 2020, the United States Court of Appeals
for the Fifth Circuit issued an opinion on several Defendants' request for a writ of mandamus and

directed this court to
vacate any part of the April 9 TRO that (1) restrains enforcement of
GA-09 as a "categorical ban on all abortions provided by Plaintiffs;" (2) restrains the Governor and Attorney General; (3) restrains
enforcement of GA-09 after 11:59 p.m. on April 21, 2020; (4) restrains enforcement of GA-09 as to medication abortions; and (5) restrains enforcement of GA-09 as to abortions for patients who will reach 18 weeks LMP during the operation of GA-09 and would be
"unlikely" to obtain abortion services in Texas.

In re Abbott, No. 20-50296 (April 20, 2020). Solely because of the circuit court's order, this court VACATES only the following portions of the court's April 9, 2020 Order:
2

Case 1:20-cv-00323-LY Document 99 Filed 04/21/20 Page 3 of 3

any part ofthe April 9 TRO that (1) restrains enforcement of GA.09 as a "categorical ban on

all abortions provided by Plaintiffs;" (2) restrains the Governor and Attorney General; (3) restrains

enforcement of GA-09 after 11:59 p.m. on April 21, 2020; (4) restrains enforcement of GA-09 as

to medication abortions; and (5) restrains enforcement ofGA-09 as to abortions for patients who will

reach 18 weeks LMP during the operation of GA-09 and would be "unlikely" to obtain abortion

services in Texas.

In all other respects, the court's April 9, 2020 order remains in full force and effect.

(lay SIGNED this

of April, 2020.

TED STATES

 
 Case: 20-50314 Document: 00515388333 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 93 Filed 04/20/20 Page 1 of 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________
No. 20-50314 _______________________

United States Court of Appeals Fifth Circuit
FILED
April 20, 2020

D.C. Docket No. 1:20-CV-323

Lyle W. Cayce Clerk

SOUTHWESTERN WOMEN'S SURGERY CENTER; BROOKSIDE WOMEN'S MEDICAL CENTER, P.A., doing business as Brookside Women's Health Center and Austin Women's Health Center; ROBIN WALLACE, M.D., M.A.S.; HOUSTON WOMEN'S CLINIC; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; WHOLE WOMAN'S HEALTH; WHOLE WOMAN'S HEALTH ALLIANCE,
Plaintiffs - Appellees
v.
GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS, in his official capacity; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Defendants – Appellants

Appeal from the United States District Court for the Western District of Texas

Case: 20-50314 Document: 00515388333 Page: 2 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 93 Filed 04/20/20 Page 2 of 5
Before DENNIS, ELROD, and DUNCAN, Circuit Judges. J U D G M E N T
This cause was considered on emergency motion to for stay. It is ordered and adjudged that the appeal is dismissed for lack of jurisdiction.
Certified as a true copy and issued as the mandate on Apr 20, 2020 Attest: Clerk, U.S. Court of Appeals, Fifth Circuit

Case: 20-50314 Document: 00515388334 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 93 Filed 04/20/20 Page 3 of 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 20-50314

April 20, 2020 Lyle W. Cayce

Clerk

SOUTHWESTERN WOMEN'S SURGERY CENTER; BROOKSIDE WOMEN'S MEDICAL CENTER, P.A., doing business as Brookside Women's Health Center and Austin Women's Health Center; ROBIN WALLACE, M.D., M.A.S.; HOUSTON WOMEN'S CLINIC; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; WHOLE WOMAN'S HEALTH; WHOLE WOMAN'S HEALTH ALLIANCE,

Plaintiffs - Appellees

v.

GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS, in his official capacity; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,

Defendants - Appellants

Appeal from the United States District Court for the Western District of Texas USDC No. 1:20-CV-323

Case: 20-50314 Document: 00515388334 Page: 2 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 93 Filed 04/20/20 Page 4 of 5
No. 20-50314 Before DENNIS, ELROD, and DUNCAN, Circuit Judges. PER CURIAM:*
Defendants-Appellants appeal the order entered by the district court on April 9, 2020 and extended on April 14, 2020. Temporary restraining orders are not appealable; however, an order styled a temporary restraining order may be appealed if its “actual content, purport, and effect” is that of a preliminary injunction. Smith v. Grady, 411 F.2d 181, 186 (5th Cir. 1969); see also 28 U.S.C. § 1292. We conclude that the orders involved here are properly understood as an extended temporary restraining order and that we lack jurisdiction over the appeal. Accordingly, we DISMISS this appeal for want of jurisdiction and DENY AS MOOT the emergency motion to stay.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 20-50314 Document: 00515388338 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 93 Filed 04/20/20 Page 5 of 5

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130
April 20, 2020

Ms. Jeannette Clack Western District of Texas, Austin United States District Court 501 W. 5th Street Austin, TX 78701-0000

No. 20-50314

Planned Parenthood Center, et al v. Greg Abbott, Governor of TX, et al USDC No. 1:20-CV-323

Dear Ms. Clack,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Peter A. Conners, Deputy Clerk 504-310-7685
cc: Mrs. Molly Rose Duane Ms. Heather Gebelin Hacker Mr. Kyle Douglas Hawkins Ms. Julie A. Murray Ms. Jennifer Sandman Mr. Andre Segura Ms. Rupali Sharma Mr. Andrew Bowman Stephens Ms. Hannah Swanson Mrs. Natalie Deyo Thompson Ms. Stephanie Toti

 
 Case 1:20-cv-00323-LY Document 56 Filed 04/08/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

PLAINTIFFS’ SECOND MOTION FOR A TEMPORARY RESTRAINING ORDER AND MEMORANDUM IN SUPPORT
Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs file a second motion for a narrow temporary restraining order (“TRO”) to enjoin Defendants from enforcing Executive Order GA09, ECF No. 1-2, as that order applies to Plaintiffs’ provision of (1) medication abortion; and (2) procedural abortion where, in the treating physician’s medical judgment, the patient would otherwise be denied access to abortion entirely because (a) the patient’s pregnancy would reach twenty-two weeks LMP by April 21, 2020; or (b) the patient’s pregnancy would reach eighteen weeks LMP by April 21, 2020, thus requiring abortion care at an ambulatory surgical center (“ASC”) and the patient is unlikely to be able to obtain an abortion at an ambulatory surgical center before the patient’s pregnancy reaches the 22-week cutoff (hereinafter, abortion for “Covered
1
Circumstances”).
1
To the same extent, Plaintiffs also seek a TRO enjoining enforcement of the Texas Medical Board’s (“Medical Board”) emergency amendment to 22 Tex. Admin. Code § 187.57 (“Emergency Rule”). Plaintiffs discuss the Emergency Rule together with the Executive Order here and throughout. Pursuant to the Agreed Stipulation for Non-Enforcement Pending Final

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Plaintiffs seek this narrow relief in light of the U.S. Court of Appeals for the Fifth Circuit’s April 7, 2020, decision granting a writ of mandamus to vacate this Court’s earlier TRO. In re Greg Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) (“Slip Op.”). The Fifth Circuit concluded that this Court erred in granting a TRO as applied to all medication and procedural abortion and in applying Roe v. Wade’s longstanding rule against previability abortion bans to
2
assess Plaintiffs’ likelihood of success on their substantive due-process claim. The Court of Appeals nevertheless made clear that this Court, on remand, could still “make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access,” and thus address— under the legal standard set out in the Fifth Circuit’s decision—the “validity of applying GA-09 in specific circumstances.” Slip Op. at 3.
The Court of Appeals emphasized two circumstances in particular. The first is that the Executive Order contains an exception for procedures 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,’” and that this Court’s TRO contained no findings about the use of PPE in medication abortion, id. at 19–20, 22. The second is that as-applied relief may be appropriate as to patients whose pregnancies will reach or exceed Texas’s gestational age cut-off while abortion services remain suspended. Id. at 23.
Applying the Fifth Circuit’s analysis, this Court should grant Plaintiffs’ second motion for a narrow TRO addressing these two circumstances pending briefing and decision on Plaintiffs’ broader preliminary injunction application. Plaintiffs are likely to prevail on their substantive due-
Resolution, Att’ys’ Fees, and Costs, ECF No. 25, Plaintiffs’ motion does not apply to Defendant Brian Middleton, District Attorney of Fort Bend County, Texas.
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Plaintiffs dispute the correctness of the Fifth Circuit’s decision but assume that it is controlling for purposes of this motion.
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process claim that in the Covered Circumstances the Executive Order violates the patient’s right to an abortion because, “beyond all question,” id. at 12, 13, the burdens imposed by the Executive Order in those circumstances far outweigh any benefits of barring these patients from obtaining an abortion during the month-long Executive Order, and, because of clinic crowding, potentially for weeks thereafter even if the Executive Order itself is not extended. And as set forth in prior briefing, injunctive relief is urgently needed to prevent further irreparable harm to Plaintiffs’ patients’ health and rights. Plaintiffs have been forced to turn away hundreds of patients in need of abortion care for more than two weeks already, resulting in severe and ongoing harm to patients.
Plaintiffs respectfully request entry of a second TRO pending resolution of their motion for a preliminary injunction. In the alternative, Plaintiffs request expedited review of Plaintiffs’ motion for a preliminary injunction. Plaintiffs intend to file additional briefing on their motion for preliminary injunction, providing further evidence and developing arguments responsive to the Fifth Circuit’s mandamus opinion, and would request a hearing by Thursday, April 16.
State Defendants have advised that they will oppose this motion. For the Court’s reference and in accordance with Local Rule CV-7(g), Plaintiffs attach a proposed temporary restraining order consistent with the relief sought here.
BACKGROUND Plaintiffs incorporate by reference the facts as recited in their March 25, 2020, Motion for Temporary Restraining Order and/or Preliminary Injunction and Memorandum in Support, ECF No. 7; the declarations filed in support of that motion, ECF Nos. 7-1–7-9; the additional facts as recited in Plaintiffs’ Supplemental Statement in Support of Motion for TRO, ECF No. 29; the declaration of Jane Doe filed March 30, 2020, ECF No. 29-1; the declarations filed as attachments to Plaintiffs’ Notice of Supplemental Filing in Support of the Preliminary Injunction Motion, ECF
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Nos. 49-1–49-9; and the declaration of Rashae Ward, filed herewith as Exhibit 20. Plaintiffs also offer the following recitation of the procedural history most pertinent to this second motion for a TRO:
This Court entered a TRO on March 30, 2020, enjoining Defendants from enforcing the Executive Order as banning all medication abortions and procedural abortions. The Court set a hearing for April 13, 2020, on Plaintiffs’ pending motion for a preliminary injunction.
Defendants filed a petition for a writ of mandamus in the Fifth Circuit. They also filed a motion to stay the TRO pending resolution of the mandamus petition, or in the alternative, for an administrative stay. On March 31, 2020, a divided panel of the Fifth Circuit granted an administrative stay of the TRO. In re Abbott, No. 20-50264 (5th Cir. Mar. 31, 2020). On April 7, 2020, that same divided panel issued a writ of mandamus vacating this Court’s earlier TRO. In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020). The majority concluded that mandamus was appropriate for three reasons.
First, the panel believed that this Court erred by not applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which the panel described as setting forth “the framework [that] govern[s]” the constitutionality of “emergency public health measures like GA-09.” Slip Op. at 2. In the majority’s view, under Jacobson, this 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.” Id. at 16 (citing 197 U.S. at 31).
Second, the majority rejected Plaintiffs’ argument that the Executive Order operates as an “outright ban” on abortion, instead viewing the Executive Order as a “temporary postponement” of access which operates only for some subset of abortions. Id. at 21. The Court of Appeals stated, for example, that the Executive Order exempts “‘any procedure’ that, if performed under normal
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clinical standards, ‘would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.’” Id. at 19. Because the Fifth Circuit concluded the Executive Order did not impose a previability ban, it held that the undue-burden balancing test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), applies, Slip Op. at 21–24, requiring this Court to weigh the burdens that the Executive Order places on patients seeking abortion against the benefits of the Executive Order in furthering the state’s goals of conserving PPE and resources for hospitals treating COVID-19 patients. Given the overlay of Jacobson, the majority held that “certain applications of GA-09 may constitute an undue burden under Casey,” where Plaintiffs are able to “prove that, ‘beyond question,’ GA-09’s burdens outweigh its benefits in those situations.” Id. at 18 (quoting Jacobson, 197 U.S. at 31) (emphasis added). And as noted above, the Fifth Circuit’s analysis called into question two specific applications of the Executive Order: its application to medication abortion, given that the record is “unclear how PPE is consumed in medication abortions,” id. at 22, and its application to patients whose opportunity to obtain an abortion in Texas will be foreclosed while services remain suspended. Id. at 23.
Third, the majority held that any determination whether the TRO served the public interest should “weigh the potential injury to the public health” from enjoining enforcement of the Executive Order. Id. at 25.
The Fifth Circuit declined to issue a writ of mandamus on other grounds raised by Defendants. It had no need to address the sovereign immunity of the Governor and Attorney General because “a justiciable controversy exists as to the [Defendant] health officials, who may enforce the order’s administrative penalties.” Id. at 8 n.17 (citing, e.g., 22 Tex. Admin. Code
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3
§ 187.57(b)). The Court of Appeals also determined that Plaintiffs have “standing to sue on their own behalf because GA-09 ‘directly operates’ against them.” Id. (quoting Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976)). It therefore did not reach the question whether Plaintiffs have third-party standing to sue on behalf of their patients.
Throughout its opinion, the majority emphasized the “limits of [its] decision, which [was] based only on the record before” it. Id. at 3. It acknowledged that this Court, so long as it relied on the Fifth Circuit’s legal standard, could still “make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access,” and thus address the “validity of applying GA-09 in specific circumstances.” Id. In this context, the Fifth Circuit acknowledged that other federal courts have recently enjoined state orders similar to Texas’s Executive Order, but distinguished those TROs on the grounds that they were “narrowly tailored and did not permit blanket provision of abortion.” Id. at 10 n.18 (discussing TROs at issue in Preterm-Cleveland v. Att’y. Gen. of Ohio, No. 20-3365, 2020 WL 1673310, at *1–2 (6th Cir. Apr. 6, 2020) (holding that TRO was sufficiently “narrowly tailored” where it authorized provision of abortion “deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions” per the healthcare provider’s “determin[ation], on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions”); Robinson v. Marshall, No. 2:19cv365-MHT, 2020 WL 1659700, at *3 (M.D. Ala. Apr. 3, 2020) (narrowing TRO in light of state defendants’ representations that challenged executive order authorized provision of abortion where provider determined that, in her
3
The Court did, however, instruct that on remand, this Court “should consider whether the Eleventh Amendment requires dismissal of the Governor or Attorney General because they lack any ‘connection’ to enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908).” Slip Op. at 8 n.17.
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“reasonable medical judgment,” the patient would otherwise “lose her right to lawfully seek an abortion in Alabama based on the [challenged] order’s mandatory delays”); S. Wind Women’s Center LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2, 5–6 (W.D. Okla. Apr. 6, 2020) (entering TRO as to executive order’s “imposi[tion of] requirements that effectively deny a right of access to abortion” because such requirements “imposed an ‘undue burden’ on abortion access” and were thus “‘unreasonable,’ ‘arbitrary,’ and ‘oppressive’” in violation of Jacobson).
The Fifth Circuit also recognized that in evaluating Plaintiffs’ need for relief this Court may ask whether a state’s emergency measures “are pretextual—that is, arbitrary or oppressive,” and thus run afoul of Jacobson. Slip Op. at 13. Although it concluded that the record before it did not include “evidence that GA-09 applies any differently to abortions than to any other procedure” or evidence of “any comparable procedures that are exempt from GA-09’s requirements,” id. at 26, it left open the possibility that Plaintiffs could rely on such evidence to seek narrower relief from this Court on remand.
ARGUMENT To warrant relief, plaintiffs seeking a temporary restraining order must show: (1) a likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the injury to the plaintiffs outweighs any harm that the TRO might cause the defendants; and (4) that granting the TRO will not disserve the public interest. See, e.g., Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014); Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). Plaintiffs easily meet this standard with respect to their provision of abortion under the Covered Circumstances, even under the legal standard announced by the Fifth Circuit.
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I. Plaintiffs Will Succeed on the Merits of Their Substantive Due-Process Claim as to Abortion in the Covered Circumstances Under the Fifth Circuit panel’s order granting Defendants’ petition for writ of mandamus,
“certain applications of GA-09 may constitute an undue burden under Casey” where, “‘beyond question,’ GA-09’s burdens outweigh its benefits in those situations.” Slip Op. at 18 (emphasis in original) (quoting Jacobson, 197 U.S. at 31). Plaintiffs have demonstrated that they are likely to succeed on their substantive due-process claim under this standard at least as to abortion in the Covered Circumstances.
A. The Executive Order Is Unconstitutional as to Plaintiffs’ Provision of Medication Abortion
Temporarily restraining enforcement of the Executive Order as to medication abortion is consistent with the Fifth Circuit’s order, see id. at 22, and supported by a recent, persuasive opinion by a sister court. Earlier this week, a district court entered a TRO preventing enforcement of Oklahoma’s executive order as to medication abortion on the grounds that “the benefit to public health of the ban on medication abortions is minor and outweighed by the intrusion on Fourteenth Amendment rights caused by that ban,” such that Oklahoma’s executive order so applied violated Jacobson’s rule against “unreasonable,” “arbitrary,” and “oppressive” uses of the state’s emergency powers. See S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *2, 5 (quoting Jacobson, 197 U.S. at 31).
Moreover, under the balancing test required by the Fifth Circuit, the burdens of prohibiting medication abortion far outweigh its benefits in furthering the state’s interests. Specifically, the prohibition on medication abortion will impose a severe burden on patients seeking this method of abortion in Texas. Because of Defendants’ threatened application of the Executive Order to medication abortion, patients seeking medication abortion have been subjected to a month-long
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delay, assuming the Order is not extended beyond April 21, 2020. Compl. Ex. B at 4, ECF No. 12. In Texas, medication abortion is only available until ten weeks LMP. Tex. Health & Safety Code § 171.063(a)(2). Further, record evidence demonstrates that the Executive Order will, in fact, cause an even longer delay for these patients because abortion providers in Texas will not be capable of absorbing the full backlog of patients in need of abortion care after the Executive Order expires. Johnson Decl. ¶ 12; Nguyen Decl. ¶ 23. Some medication patients who have the means to travel will be forced to seek access to medication abortion care in other states while the Executive Order remains in effect. Doe Decl. ¶¶ 12–27; Johnson Decl. ¶¶ 8–10; Nguyen Decl. ¶ 17; Ward Decl. ¶ 7.
On the other side of the scale, a ban on medication abortion does nothing to serve the Executive Order’s purported goals. As to preserving hospital capacity, medication abortion is overwhelmingly safe. Levison Decl. ¶ 9; Schutt-Aine Decl. ¶¶ 12, 14. While Defendants assert without evidence that medication abortion frequently results in complications necessitating “surgery,” the complication rates they cite are outdated and inconsistent with the best, current medical evidence. Levison Decl. ¶ 9. In general, complications associated with medication abortion—including those requiring hospital care—are exceedingly rare. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311–12, 2315 (2016). Nearly all abortions in Texas are provided
4
in outpatient facilities, such as Plaintiffs’ abortion facilities and ASCs, not hospitals, and indeed almost all medication abortion patients choose to complete their abortion at home rather than in a medical facility of any kind. Further, the evidence demonstrates that individuals with ongoing
4 Tex. Health & Human Servs., Induced Terminations of Pregnancy, 2017 Selected Characteristics of Induced Terminations of Pregnancy (2018), https://hhs.texas.gov/about-hhs/ records-statistics/data-statistics/itop-statistics (in 2017, 99.8% of abortions among Texas residents in Texas were provided in abortion facilities or ASCs).
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pregnancies are far more likely to require treatment in a hospital than individuals who have abortions. Chang Decl. ¶¶ 16–18; Levison Decl. ¶¶ 8–11.
Regarding the Executive Order’s second asserted interest—preserving PPE—medication abortion itself requires no PPE, while the patient’s only alternative to medication abortion— continuing the pregnancy—does require PPE. Texas law does require that medication abortion be preceded by an ultrasound and be offered in conjunction with a confirmation visit. Tex. Health & Safety Code §§ 171.012, 171.063(e); Tex. Admin. Code § 139.53(b)(4); Barraza Decl. ¶ 7; Ferrigno Decl. ¶ 9; Hagstrom Miller Decl. ¶ 12; Lambrecht Decl. ¶ 12; Schutt-Aine Decl. ¶¶ 15, 23. But patients with ongoing pregnancies also require ultrasound examinations. Chang Decl. ¶¶ 11–12; Macones Decl. ¶ 12; Wood Decl. ¶ 14. And in any event, a transabdominal ultrasound and follow-up appointment are not procedures, and thus are not covered by the Executive Order. See Tex. Med. Bd., Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020), http://www.tmb.state.tx.us/idl/59C97062-84FA-BB8691BF-F9221E4DEF17 (“TMB Guidance”); see also Levison Decl. ¶¶ 18–19 (saying that ultrasounds are still being performed during the COVID-19 pandemic); Macones Decl. ¶ 12 (same); Wood Decl. ¶ 14 (same). Although the Fifth Circuit held that the record underlying this Court’s prior decision did not sufficiently address the extent to which an ultrasound might require PPE and constitute a procedure, that question is addressed in the record now before this Court. Transabdominal ultrasounds do not require the use of any PPE. Ferrigno Decl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Decl. ¶ 14. Transvaginal ultrasounds require the use of one pair of non-sterile gloves, at most. Ferrigno Decl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Decl. ¶ 14. And the Medical Board’s published guidance concerning the Executive Order indicates that non-
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invasive diagnostic tests—like ultrasound—are not procedures in the first place. TMB Guidance. Further, the record establishes that medication abortion, including any incidental lab work and diagnostic tests, requires the use of less PPE than the monthly diagnostic tests and ultrasounds that are required for a patient with an ongoing pregnancy. Levison Decl. ¶¶ 12–14; Macones Decl. ¶ 20; Schutt-Aine Decl. ¶ 26.
Thus, Defendants’ application of the Executive Order to medication abortion does not advance their asserted interests to a degree sufficient to justify the harm to patients from not being able to access abortion for a month or more. See S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *2, 5 (quoting Jacobson, 197 U.S. at 31). Plaintiffs are therefore likely to succeed on their substantive due-process claim as to this category of patients.
In addition, Plaintiffs are separately likely to succeed on this claim because the record now demonstrates that the Executive Order, as interpreted by Defendants, in fact, “applies . . . differently” to this type of medication “than to any other.” Slip Op. at 26. Indeed, Defendants have identified no other oral medication they consider prohibited by the Executive Order, which on its face applies only to “surgeries and procedures.” See Compl. Ex. B at 4, ECF No. 1-2. Moreover, Plaintiffs have now presented evidence, which was not part of the record at the time this Court entered its TRO, showing that treatments “comparable” in terms of in-person contact and PPE use “are exempt from GA-09’s requirements.” Slip Op. at 26; Levison Decl. ¶¶ 18–19 (saying that obstetric care like blood draws, ultrasounds, and other in-person diagnostics are still performed during prenatal visits); Wood Decl. ¶¶ 9–11, 14, 16–17 (saying that ultrasound examinations are still being performed for obstetrical patients). Indeed, a person with an ongoing pregnancy can and must obtain routine prenatal care and testing even though it requires the use of more PPE than medication abortion. Chang Decl. ¶¶ 8, 12, 15; Levison Decl. ¶¶ 12–14. Under these
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circumstances, the record demonstrates that “Texas has exploited the present crisis as a pretext to target abortion providers sub silentio,” justifying judicial intervention. Slip Op. at 12, 26 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)).
B. The Executive Order Is Unconstitutional as to Patients for Whom Abortion Will Be Inaccessible After Expiration of the Order
Plaintiffs are similarly likely to prevail on their substantive due-process claim as applied to their provision of abortion to patients (1) whose pregnancies would exceed twenty-two weeks LMP—the statutory gestational-age limit for most legal abortion in Texas—by the expiration of the order, or (2) whose pregnancies would exceed eighteen weeks LMP by the expiration of the order and who are unlikely, in the judgment of the treating physician, to be able to access care at an ambulatory surgical center (in one of the four Texas metropolitan areas where abortions are provided) before the patient’s pregnancy reaches the 22-week cutoff.
Even if the Executive Order does not operate as a substantial obstacle in all cases, the record demonstrates that it will do so at least as to many patients who will pass Texas’s twentytwo week LMP statutory gestational-age limit before the Executive Order expires or whose pregnancies will, by the expiration of the order, reach eighteen weeks LMP, at which time the patient will be ineligible to have an abortion at a licensed abortion facility under Texas law. Tex. Health & Safety Code 171.004. At that point, outpatient procedural abortions may only be performed at ASCs, id., but there are no ASCs that provide abortion care outside of Texas’ four largest metropolitan areas, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016). Because the Executive Order as applied to abortion in those circumstances would have the effect of foreclosing the right to abortion for some patients altogether, see id. at 2316–18, as to those patients, it extends “beyond the reach of even the considerable powers allotted to a state in a public health emergency,” and should be enjoined. S. Wind Women’s Ctr. LLC, 2020 WL 1677094, at *5;
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see also Slip Op. at 18 (stating that Plaintiffs would have the opportunity to show that “certain applications of GA-09 that may constitute an undue burden under Casey” such that those applications are “beyond question, in palpable conflict with the Constitution” (emphasis in original)).
Contrary to Defendants’ assertions earlier in this litigation, the existence of this subset of patients is not hypothetical. Record evidence demonstrates that some patients have already exceeded the gestational age limit to obtain an abortion in Texas while the EO has been in place. Hagstrom Miller Decl. ¶ 27; Johnson Decl. ¶ 10; Nguyen Decl. ¶¶ 7–8, 11; Ward Decl. ¶¶ 12–13, 16. Moreover, Defendants’ own evidence shows that in 2017, 3,146 abortions were provided at or after fifteen weeks LMP (thirteen weeks post-fertilization), and 819 abortions occurred after eighteen weeks LMP (sixteen weeks post-fertilization). See Exs. in Supp. of Defs.’ Resp. to Pls.’ Mot. for TRO at 15, ECF No. 28-3.
For these patients, the Executive Order’s month-long duration (even assuming the order is not extended and causes no further delay past its expiration) would result in a complete denial of abortion access, and thus constitutes a “plain, palpable invasion” of that fundamental right. Slip Op. at 12 (quoting Jacobson, 197 U.S. at 31); id. at 18–21 (contemplating that an “outright ban” would violate Jacobson); see also Roe v. Wade, 410 U.S. 113, 166 (1973); Casey, 505 U.S. at 846 (stating that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion”); Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per curiam) (enjoining ban on abortions starting at six weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 268–69 (5th Cir. 2019) (enjoining ban on abortions starting at fifteen weeks).
Neither the Fifth Circuit nor Defendants maintain otherwise. In its mandamus decision, the Fifth Circuit acknowledged that the Executive Order might violate Roe, Casey, and Jacobson if it
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operated as an “outright ban” on abortion. See Slip Op. at 18, 21. Similarly, in their mandamus filings before the Fifth Circuit, Defendants’ only comment on these circumstances was to assert that such patients could seek as-applied relief, not that they were unentitled to such relief. See Pet. for Writ of Mandamus at 22 n.28, In re Greg Abbott, No. 20-50264 (5th Cir. March 30, 2020); Pet’rs’ Emergency Mot. to Stay TRO Pending Mandamus at 14 n.18, In re Greg Abbott, No. 2050264 (5th Cir. March 30, 2020).
The Executive Order is also unconstitutional as applied to these patients because it is pretextual and thus “arbitrary and oppressive.” Slip Op. at 13. The Fifth Circuit concluded that the record before it did not include “evidence that GA-09 applies any differently to abortions than to any other procedure” or evidence of “any comparable procedures that are exempt from GA-09’s requirements.” Id. at 26. But as discussed, see supra Part I.A, the record before this Court now includes evidence that physicians are continuing to provide obstetrical and gynecological procedures comparable to abortion in PPE use and/or time-sensitivity, based on their professional medical judgment. See Chang Decl. ¶ 24; Levison Decl. ¶ 18. The Executive Order permits them to do so. Plaintiffs seek limited relief requiring Defendants to treat abortion similarly. Cf. Robinson, 2020 WL 1659700, at *3 (ordering that “[t]he reasonable medical judgment of abortion providers will be treated with the same respect and deference as the judgments of other medical providers. The decisions will not be singled out for adverse consequences because the services in question are abortions or abortion-related.”). II. Plaintiffs’ Patients Will Suffer Irreparable Harm If the Executive Order Is Fully
Enforced As discussed above with respect to application of the undue-burden test, and as set forth more fully in the attached proposed temporary restraining order, Plaintiffs’ patients will suffer
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serious and irreparable harm in the absence of the more narrowly defined temporary relief sought here. III. The Balance Of Harms And Public Interest Support Injunctive Relief
Plaintiffs’ more narrowly tailored TRO request will serve the public interest and is favored by the balance of equities. As instructed by the Fifth Circuit, assessment of these factors involves, among other things, “weigh[ing] the potential injury to the public health” if Defendants are enjoined from enforcing the Executive Order as applied to the two narrow categories of abortion care at issue in this motion. Slip Op. at 25.
As is clear from the previous discussion of the benefits and burdens of the Executive Order under Casey’s undue-burden test, the Order will exacerbate rather than alleviate the public health crisis. Preventing patients in need of medication abortion from obtaining it will not save any PPE. Moreover, even assuming that Defendants are correct that some medication abortions require a follow-up aspiration procedure, the number of those cases is exceedingly small, Levison Decl. ¶ 9; Schutt-Aine Decl. ¶ 12, and can generally be handled in an outpatient setting. In contrast, the number of Texas women in need of medication abortion who will be foreclosed from obtaining it will increase the demand for hospital capacity. Levison Decl. ¶¶ 8–10, 21; Macones Decl. ¶¶ 19– 20; Schutt-Aine Decl. ¶ 26. And, as Defendants concede, some patients unable to obtain a medication abortion are traveling to other states during a pandemic, thus increasing the risk of COVID-19 transmission (and conserving no PPE). See Doe Decl. ¶¶ 9, 19–22. Accordingly, the record demonstrates that entry of the TRO to restore abortion access would serve the State’s interest in public health. See, e.g., Bassett Decl. ¶¶ 6–8; Levison Decl. ¶¶ 20–23; Sharfstein Decl. ¶¶ 9–12. That outcome, combined with the consideration of the interests of patients in need of care, weighs heavily in favor of entering a TRO.
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CONCLUSION

For these reasons, this Court should grant Plaintiffs’ second motion for a temporary

restraining order enjoining enforcement of the Executive Order and Emergency Rule as to (1)

medication abortion; and (2) procedural abortion where (a) based on the treating physician’s

medical judgment, the patients would be past the gestational age limit for an abortion in Texas

(twenty-two weeks LMP) on April 22, 2020, and (b) based on the treating physician’s medical

judgment, the patient would be more than eighteen weeks LMP and therefore no longer be eligible

to have an abortion in a licensed abortion facility in Texas on April 22, 2020, and the patient would

be likely be unable to obtain care at an ASC at or after that time.

Dated: April 8, 2020

Respectfully submitted,

/s/ Patrick J. O’Connell Patrick J. O’Connell Texas Bar No. 15179900 Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for all Plaintiffs

Julie Murray* Hannah Swanson* PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org hannah.swanson@ppfa.org

16

Case 1:20-cv-00323-LY Document 56 Filed 04/08/20 Page 17 of 18
Jennifer Sandman* PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
Molly Duane* Rabia Muqaddam* Francesca Cocuzza* CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Attorneys for Plaintiffs Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace, M.D.
Stephanie Toti Rupali Sharma* LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org
Attorneys for Plaintiffs Whole Woman’s Health and Whole Woman’s Health Alliance
*Admitted Pro Hac Vice
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Case 1:20-cv-00323-LY Document 56 Filed 04/08/20 Page 18 of 18

CERTIFICATE OF SERVICE

I certify that on this 8th day of April, 2020, I filed a copy of the foregoing with this Court’s

CM/ECF system, which will serve a copy on the following individuals:

Heather Gebelin Hacker Andrew Bowman Stephens Benjamin S. Walton Office of the Attorney General of Texas 209 W. 14th Street 7th Floor Austin, TX 78701 512-836-2540 512-474-2697 (fax) heather.hacker@oag.texas.gov andrew.stephens@oag.texas.gov benjamin.walton@oag.texas.gov
John J. Butrus, Jr. Dallas County District Attorney's Office 133 N. Riverfront Blvd LB 19 Dallas, TX 75207 (214) 653-3691 (214) 653-2899 (fax) john.butrus@dallascounty.org

David S. Lill Lill Firm, P.C. 4407 Bee Caves Road Suite 111 Building 1 Austin, TX 78746 (512) 330 0252 844 402 9814 (fax) david@lillfirm.com
Elizabeth Murrill Louisiana Dept. of Justice 1885 North Third Street Baton Rouge, LA 70804 225-456-7544 murrille@ag.louisiana.gov

Justin C. Pfeiffer Fort Bend County Attorney's Office 401 Jackson Street Third Floor Richmond, TX 77469 (281) 341-4555 281-341-4557 (fax) justin.pfeiffer@fortbendcountytx.gov

/s/ Julie Murray Julie Murray

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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 1 of 7
EXHIBIT 20

Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF RASHAE WARD

RASHAE WARD, hereby declares under penalty of perjury that the following statements

are true and correct:

1. I am the Hotline Coordinator of Lilith Fund, an Austin-based nonprofit organization

that has been providing direct financial assistance to Texans who want to end a pregnancy, but

cannot afford the cost of an abortion. Lilith Fund has served over 10,000 people since its founding

nearly twenty years ago.

2. As Hotline Coordinator, I: 1) respond to requests from people struggling to arrange

the costs of terminating a pregnancy; 2) recruit, train, supervise and support over 20 volunteers to

do so; 3) decide how to allocate our limited budget to clients each day; 4) work with peer

organizations and abortion providers throughout Texas, and more recently the country, to help

ensure our clients can complete their appointments; 5) collaborate with our Program Manager to

address systemic challenges in our clients’ lives, including unemployment, housing insecurity, and

intimate partner violence; and 6) partner with our Statewide Coordinator to help interested clients

1

Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 3 of 7
educate their communities about the importance of meaningful abortion access. I have served in this position for almost a year.
3. I provide the following testimony based on personal knowledge acquired through my service at Lilith Fund and review of the organization’s business records.
Barriers to Abortion Access in Texas Before the Executive Order 4. Our callers, most of whom are parents, lack insurance coverage for abortion care except in extremely narrow circumstances. Consequently, they must pay for their care of-outpocket. Last year, Lilith Fund received nearly 6,600 calls, served over 1,617 individuals, and distributed over $489,515. The average cost of an abortion for our callers was $1,230. Unfortunately, we are able to help only about a quarter of all callers and even for the callers we can help, we can seldom cover the full cost of their care. 5. To assess their needs, we ask each caller their gestational age and discuss their socioeconomic circumstances in detail. If we are able to help the caller with the cost of care, Lilith Fund sends a financial voucher to the abortion provider with whom the caller has scheduled an appointment and pays the provider after the patient receives care. 6. Lilith Fund tries to prioritize callers who have reached later gestational ages, both because they risk exceeding the cut-off for a legal abortion in Texas—22 weeks, as measured from the first day of the last menstrual period (“lmp”)), or for an abortion provided in an abortion clinic, as opposed to an ambulatory surgery center (“ASC”), in the State—18 weeks lmp. There are few ASCs in Texas, all of them in metropolitan areas, so many of the clients who exceed 18 weeks lmp must travel lengthy distances to obtain care, which in turn increases the funds they need to raise beforehand, including transportation and childcare costs. Another reason we try to prioritize callers
2

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at later gestational ages is that the costs of abortion care rise as a pregnancy progresses. The average gestational age of our clients is 13 weeks lmp.
7. Lilith Fund also tries to prioritize callers who have decided that medication abortion is more appropriate for them than procedural abortion, but who risk exceeding Texas’s gestational age cut-off for that care, 10 weeks lmp. Given when some of our callers discover they are pregnant, and the time it can take someone living in poverty to raise money for unexpected extended travel, the State’s requirement that most abortion patients make two trips to obtain care makes it especially difficult not to pass this window.
8. Likewise, Lilith Fund tries to prioritize callers contending with multiple hardships, including homelessness, incarceration, intimate partner violence, and physical or mental health issues. To serve these clients, we typically coordinate with organizations that offer practical support for obtaining an abortion, including assistance with transportation, lodging, and meals. We have a practice of following up with clients soon after their scheduled appointment. In some cases, we learn that the client never made it to the abortion provider because, even with organizational assistance, they were unable to meet the total costs of obtaining an abortion in Texas.
9. Collaborating with our Program Manager to continue serving clients after they have obtained abortion care has helped me understand these barriers, how they exacerbate one another, and how Texas abortion restrictions compound them, even more deeply. Last year, we connected 64 clients with food banks and programs offering job assistance, help paying utility bills, and free diapers. Similarly, partnering with our Statewide Coordinator to connect clients to support groups and story-telling campaigns has shown me how our clients carry the strain and indignity of struggling to terminate a pregnancy in Texas with them long after they obtain care.
3

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10. As with the rest of the country, the COVID-19 crisis has challenged our clients in unprecedented ways. Many work in the food services industry. So, in addition to coping with serious illness among their families and communities, they are losing their jobs, including their health insurance, and facing eviction. One client recently worked to raise money for her abortion care for weeks only to have to use it for rent. And some clients are effectively stuck in abusive situations. Since January 2020, callers have tended to be further along in their pregnancies due to the increasing difficulty of making travel arrangements, particularly for long-distance travel. The average gestational age has increased from 13 weeks lmp to 16 weeks lmp. Lilith Fund has increased the average amount of its vouchers from $207 to $267 to help meet these challenges. Nevertheless, I struggle with decisions of how to allocate funds among callers now more than ever. All too many people need them, there are never enough, and the stakes could not be higher.
Impact of Executive Order on Abortion Access During the Pandemic 11. After Attorney General Paxton threatened to enforce Governor Abbott’s Executive Order (EO) as an abortion ban, thirteen of our clients’ appointments were cancelled. Thankfully, four clients were able to terminate their pregnancies during the less-than-24-hour-period when the State was unable to enforce the EO due to a legal decision. 12. At least ten of our clients have lost or will lose the ability to obtain an abortion in Texas because they will have exceeded 22 weeks lmp as of the EO’s expiration date. As of today, these clients are traveling out of state during a pandemic to secure medical services they could otherwise obtain in Texas, and in some cases, their own communities. They will be forced to travel to incredibly far destinations because they offer the earliest opportunity to obtain critical healthcare. In fact, the average distance traveled by our clients has jumped from 158 miles in 2019 to 734 miles since the EO.
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13. One client, who the EO pushed to 19 weeks lmp, recently traveled over 300 miles from Houston to Atlanta, Georgia, an epicenter of the COVID-19 outbreak, because she would be at the precipice of 22 weeks lmp when the EO expires. Without the EO, she would have been able to terminate her pregnancy 3 weeks earlier within 3 miles of her home. Likewise, eight clients at 23, 22, 22, 19, 19, 19, 19, and 20 weeks lmp have secured abortion appointments in Albuquerque, New Mexico. Given the limited availability of abortion appointments at later gestational ages throughout the country, Lilith Fund is working to build relationships with another abortion provider in New Mexico and one in Illinois, where Texans affected by the EO will likely seek care in future weeks as they too near the gestational cut-off for legal abortion in Texas.
14. Most of our clients are flying rather than driving out of state because the health risks involved in air travel have made it much more affordable—and our clients lack the privilege to choose the more expensive, but likely safer option of driving.
15. These journeys, fraught in ordinary times, would be impossible without ongoing financial and practical support from nonprofit organizations. This includes funding for abortions at later gestational ages; since the EO, the average cost of an abortion for our clients has skyrocketed from $1,230 to $2,689, a 118% increase. Thus, we have further increased the average amount of our vouchers from $267 to $363. Support also includes the rapid arrangement of transportation and lodging, including the bravery of volunteers risking their health and safety to drive abortion patients to and from unfamiliar airports, and reimbursement for gasoline.
16. At least one client, who is at 19 weeks lmp, and whose abortion appointment was scheduled in Houston before the EO, worries about raising the funds and coordinating the travel needed to make a lengthy trip during the public health crisis, even with organizational assistance.
5

Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 7 of 7 She also agonizes about the risk of contracting COVID-19, and of exposing her fetus to the virus, if the trip is unsuccessful and she is forced to carry to term.
17. Indeed, many clients are wrestling with acute fear and anxiety over whether they will be able to complete such trips, all the while contending with symptoms of pregnancy, such as severe morning sickness. And they are frustrated and angry that their Government, while urging other Texans to stay home, is driving them into hotbeds for the virus and putting them at greater risk of contracting and transmitting COVID-19 to their loved ones. Dated: April 8, 2020
/S/ Rashae Ward Rashae Ward Hotline Coordinator Lilith Fund
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Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

[PROPOSED] TEMPORARY RESTRAINING ORDER Before the Court is Plaintiffs’ Second Motion for a Temporary Restraining Order. Having considered the motion, the evidence in the record, the legal arguments made by all parties to date, and the Fifth Circuit’s April 7, 2020, decision granting a writ of mandamus and directing this Court to vacate the temporary restraining order (“TRO”) it entered on March 30, 2020, the Court has determined that good cause exists to grant the limited relief now requested by Plaintiffs. The Court makes the following findings of fact: 1. On March 13, 2020, the United States declared a state of emergency and the State of Texas declared a state of disaster related to the COVID-19 pandemic. See Proclamation by the
1
Governor of the State of Texas (Mar. 13, 2020) ; Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020).

1 Available at https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_ proclamation_IMAGE_03-13-2020.pdf.

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 2 of 13
2. On March 22, 2020, Governor Greg Abbott issued an executive order barring “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.” Executive Order GA-09, “Relating to hospital capacity during the
2
COVID-19 disaster” (March 22, 2020) (“Executive Order”) at 3. That order further states that procedures 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” are exempt from the order. Id. The Executive Order remains in effect until 11:59 PM on April 21, 2020, unless Governor Abbott rescinds or modifies it. Id.
3. Federal officials and medical professionals expect the pandemic to last well beyond April 21, 2020. Schutt-Aine Decl. ¶ 40. The current shortage of personal protective equipment (“PPE”) is expected to continue for the next three to four months. Sharfstein Decl. ¶ 13.
4. Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both. Executive Order at 3 (citing Tex. Gov’t Code § 418.173). Violation of the Executive Order may also give rise to disciplinary action against licensed healthcare providers by the Texas Health and Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing. See 25 Tex. Admin. Code §§ 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); Tex. Occ. Code Ann. §§ 164.051(a)(2)(B), (a)(6); 301.452(b)(3), (B)(10).
2 Available at https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID19_hospital_ capacity_IMAGE_03-22-2020.pdf.
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5. On March 23, 2020, the Texas Attorney General issued a press release titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 Pandemic.” The press release stated that providing any abortion care (other than for an immediate medical emergency) would violate the Executive Order, and warned that “[t]hose who violate the governor’s order will be met with the full force of the law.” Id.
6. On March 24, 2020, the Texas Medical Board (“Medical Board”) adopted an emergency rule (“Rule”) to enforce the Executive Order. Under pre-existing law, the Medical Board can temporarily suspend or restrict a physician’s license if the physician’s “continuation in practice would constitute a continuing threat to the public welfare.” 22 Tex. Admin. Code § 187.57(b). The Emergency Rule expands this basis for discipline to include “performance of a non-urgent elective surgery or procedure,” and incorporates the terms of the Executive Order, requiring all licensed health care professionals to postpone all surgeries and procedures that are not immediately necessary. 22 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar.
3
23, 2020). 7. On March 29, 2020, the Medical Board published updated guidance regarding the
scheduling of elective surgeries and procedures in light of Governor Abbott’s COVID-19 disaster declaration. Tex. Med. Bd., Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas Disaster
4
Declaration for COVID-19 Pandemic (Mar. 29, 2020) (“TMB Guidance”). The Medical Board explained that postponing non-urgent elective cases would preserve PPE, ventilator availability,
3 Available at https://tinyurl.com/v4pz99u. 4 Available at http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF-F9221E4DEF17.
3

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and ICU beds.” Id. It defined “urgent or elective urgent” procedures as those where “there is a risk of patient deterioration or disease progression likely to occur if the procedure is not undertaken or is significantly delayed.” Id. It noted that “the prohibition does not apply to office-based visits without surgeries or procedures.” Id. Further, it explained that “[a] ‘procedure’ does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests.” Id.
8. The Attorney General’s interpretation of the Executive Order, which has been adopted by the State Defendants in litigation, creates a credible threat of enforcement against Plaintiffs and their agents for the provision of any abortion. This has had a profound chilling effect on the provision of abortion care in Texas. Plaintiffs and their agents have ceased providing nearly all abortion care as a result. Barraza Decl. ¶ 15; Dewitt-Dick Decl. ¶ 8; Ferrigno Decl. ¶¶ 25–28; Hagstrom Miller ¶¶ 26–28; Klier Decl. ¶ 17; Lambrecht Decl. ¶¶ 18–20; Schutt-Aine ¶¶ 32–34; Wallace Decl. ¶ 9.
9. Plaintiffs use two methods of providing an abortion: medication abortion and procedural abortion. Schutt-Aine Decl. ¶ 12.
10. Medication abortion is not a surgery or procedure. It involves the patient ingesting a combination of two pills: mifepristone and misoprostol. Schutt-Aine Decl. ¶ 13. The patient takes the mifepristone in the health center and then, typically twenty-four to forty-eight hours later, takes the misoprostol at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Schutt-Aine Decl. ¶ 13. Texas law restricts this method to the first ten weeks of pregnancy as measured from the first day of a pregnant person’s last menstrual period (“LMP”). Tex. Health & Safety Code § 171.063. Plaintiffs provide medication abortion to that ten-week limit.
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11. Despite sometimes being referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Schutt-Aine Decl. ¶ 16. Early in pregnancy, procedural abortions are performed using a technique called aspiration, in which the clinician uses gentle suction from a narrow, flexible tube to empty the contents of the patient’s uterus. SchuttAine Decl. ¶ 16. Beginning around fifteen weeks LMP, clinicians generally must use instruments to complete the procedure, a technique called dilation and evacuation (“D&E”). Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself, resulting in a two-day procedure. Schutt-Aine Decl. ¶ 16. Plaintiffs provide procedural abortion in both the first and second trimester. Procedural abortions may not be performed in an abortion clinic after eighteen weeks LMP. Tex. Health & Safety Code 171.004. At that point, outpatient procedural abortions may only be performed at ambulatory surgery centers (“ASCs”), id., but there are no ASCs that provide abortion care outside of Texas’ four largest metropolitan areas, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016).
12. Absent exceptional circumstances, Texas law prohibits abortion care altogether after twenty-two weeks LMP. See Tex. Health & Safety Code § 171.044.
13. Abortion patients rarely require hospitalization. Ferrigno Decl. ¶ 14; Hagstrom Miller Decl. ¶ 17; Schutt-Aine Decl. ¶ 12; Whole Woman’s Health, 136 S. Ct. at 2311.
14. Although some medication abortions require a follow-up aspiration procedure, the number of those cases is exceedingly small and can generally be handled in an outpatient setting. Levison Decl. ¶ 9; Schutt-Aine Decl. ¶ 12,
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15. Providing medication abortion does not require the use of any PPE. Barraza Decl. ¶ 7; Dewitt-Dick Decl. ¶ 19; Ferrigno Decl. ¶ 10; Hagstrom Miller Decl. ¶ 13; Lambrecht Decl. ¶ 12; Klier Decl. ¶ 11; Schutt-Aine Decl. ¶ 25; Wallace Decl. ¶ 12.
16. Texas law requires an in-person consultation between patient and provider, which must include an ultrasound examination, prior to every abortion. See Tex. Health & Safety Code § 171.012(a)(4), (b). For patients who reside within one hundred miles of the facility where the abortion will be performed, the consultation must occur at least twenty-four hours prior to the abortion procedure. See id. According to the Medical Board’s guidance, “non-invasive diagnostic tests” such as ultrasounds are not procedures, and the prohibition contained in the Executive Order “does not apply to office-based visits without surgery or procedures.” TMB Guidance. In any event, pre-procedure ultrasound examinations require minimal PPE. Use of PPE is not required at all for abdominal ultrasound examinations. Ferrigno Decl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Decl. ¶ 14. For vaginal ultrasound examinations, doctors or ultrasound technicians typically wear only non-sterile gloves that are discarded after each scan. Ferrigno Decl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Decl. ¶ 14. When laboratory testing is required, technicians likewise utilize only non-sterile gloves. Hagstrom Miller Decl. ¶ 14.
17. For procedural abortion, providers may use some or all of the following PPE items, depending on the circumstances: gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, hair covers, and shoe covers. Barraza Decl. ¶ 7; Dewitt-Dick Decl. ¶ 19; Ferrigno Decl. ¶¶ 10, 12; Hagstrom Miller Decl. ¶¶ 13, 15; Klier Decl. ¶ 11; Lambrecht Decl. ¶ 12; Schutt-Aine Decl. ¶ 25; Wallace Decl. ¶ 12.
18. Following a procedural abortion, the tissue removed from a patient is examined in a pathology laboratory. Ferrigno Decl. ¶ 12; Hagstrom Miller ¶ 15. This task is typically performed
6

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by a single staff member who utilizes one washable gown per shift, either one disposable face shield per shift or one set of reusable goggles, one set of disposable shoe covers per shift, one disposable hair cap per shift, and one or more sets of non-sterile gloves. Hagstrom Miller ¶ 15. According to the Medical Board’s guidance, “the performing of lab tests” is not subject to the Executive Order. TMB Guidance; see also Tex. Med. Ass’n, TMB Releases Emergency Rules:
5
Non-Urgent Surgeries and Procedures, at 3, 6 (Mar. 29, 2020). 19. Abortion providers generally do not use N95 masks. Only one physician associated
with Plaintiffs has used an N95 mask since the beginning of the COVID-19 pandemic, and that physician has been reusing the same mask over and over. Barraza Decl. ¶ 8; Ferrigno Decl. ¶ 13; Hagstrom Miller Decl. ¶ 16; Klier Decl. ¶ 6; Lambrecht Decl. ¶ 12; Schutt-Aine Decl. ¶ 27.
20. Pregnant individuals prevented from accessing abortion will still require medical care. Chang Decl. ¶ 8; Levison Decl. ¶ 8; Macones Decl. ¶ 10. Consistent with recommendations from ACOG and other medical authorities for providing obstetrical care during the COVID-19 pandemic, obstetricians are generally having two in-person visits with pregnant patients during the first-trimester and more frequent in-person visits during later trimesters. Chang Decl. ¶ 11; Levison Decl. ¶ 19; Macones Decl. ¶¶ 9–10; Wood Decl. ¶ 11. High-risk patients, including those with diabetes or high blood pressure, must have more frequent in-person visits. Chang Decl. ¶ 10; Levison Decl. ¶ 14; Macones Decl. ¶¶ 7, 10; Wood Decl. ¶¶ 11–12. Urine specimens are generally collected and tested at each in-person visit, and blood is sometimes collected and tested also. Chang Decl. ¶ 12; Levison Decl. ¶ 13; Macones Decl. ¶ 11; Wood Decl. ¶ 11. Additionally, obstetricians are generally performing at least one ultrasound during the first trimester and another
5 Available at https://www.texmed.org/uploadedFiles/Current/2016_Public_Health/Infectious_Diseases/Emerg ency%20rule%20guidance%20-%203.25%20Update.pdf.
7

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 8 of 13
one at 20 weeks LMP. Chang Decl. ¶¶ 11–12; Macones Decl. ¶ 12; Wood Decl. ¶ 14. High-risk patients will require more frequent ultrasounds. Macones Decl. ¶ 12; Wood Decl. ¶ 14.
21. Because individuals with ongoing pregnancies require more in-person healthcare— including lab tests and ultrasounds—at each stage of pregnancy than individuals who have previability abortions, delaying access to abortion will not conserve PPE. Levison Decl. ¶¶ 12–14; Macones Decl. ¶ 20; Schutt-Aine Decl. ¶ 26.
22. Individuals with ongoing pregnancies are more likely to seek treatment in a hospital—for a variety of conditions—than individuals who have pre-viability abortions. Therefore, delaying access to abortion will not conserve hospital resources. Levison Decl. ¶¶ 8– 11; Macones Decl. ¶ 19; Schutt-Aine Decl. ¶ 26; Whole Woman’s Health, 136 S. Ct. at 2311.
23. Individuals who are delayed past the legal limit for abortion will have to deliver babies. Delivery generally takes place in a hospital and requires extensive use of PPE. Thus, requiring patients to carry unwanted pregnancies to term will not conserve PPE or hospital resources. Chang Decl. ¶¶ 16–17; Levison Decl. ¶¶ 9, 15–17; Macones Decl. ¶ 18; Schutt-Aine Decl. ¶ 26.
24. Physicians are continuing to provide obstetrical and gynecological procedures comparable to abortion in PPE use and/or time-sensitivity, based on their professional medical judgment. See Chang Decl. ¶ 24; Levison Decl. ¶ 18.
25. The inability to obtain abortion care in Texas as a result of the Executive Order is causing individuals with unwanted pregnancies who have the ability to travel to go to other states to obtain abortions. The record shows that these individuals are traveling by both car and airplane to places as far away as Colorado and Georgia. Doe Decl. ¶¶ 15–22; Johnson Decl. ¶¶ 8–10; Nguyen Decl. ¶ 17; Ward Decl. ¶¶ 12-14. This long-distance travel increases an individual’s risk
8

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 9 of 13
of contracting COVID-19. Bassett Decl. ¶¶ 7–8; Schutt-Aine Decl. ¶ 37; Sharfstein Decl. ¶ 10; Doe Decl. ¶ 18. The record shows that patients traveling to other states for abortion care include patients seeking medication abortion. Doe Decl. ¶¶ 9, 19–22.
26. Plaintiffs have already had to turn away hundreds of patients seeking abortion care, and will have to turn away hundreds more absent entry of a TRO. Barraza Decl. ¶¶ 6, 15; DewittDick Decl. ¶ 8; Ferrigno Decl. ¶¶ 26–28; Hagstrom Miller Decl. ¶¶ 27–28; Johnson Decl. ¶ 4; Klier Decl. ¶ 17; Lambrecht Decl. ¶¶ 18–20; Nguyen Decl. ¶ 8; Schutt-Aine Decl. ¶¶ 33–34; Wallace Decl. ¶ 9.
27. There will be significant pent-up need for abortion care when the Executive Order expires. It will take Plaintiffs weeks to resolve the resulting backlog of patients, meaning that a significant number of patients will face additional delays in accessing abortion even after the Executive Order’s now month-long duration expires. Ferrigno Decl. ¶ 29; Hagstrom Miller Decl. ¶ 29; Johnson Decl. ¶ 12; Nguyen Decl. ¶ 23.
28. Patients delayed past 10 weeks LMP are no longer eligible for a medication abortion in Texas. See Tex. Health & Safety Code § 171.063(a)(2). Patients delayed past fourteen to sixteen weeks LMP are no longer eligible for an aspiration abortion, and must instead have a D&E, which is a lengthier and more complex procedure. Ferrigno Decl. ¶ 35; Hagstrom Miller Decl. ¶ 34; Lambrecht Decl. ¶ 18; Schutt-Aine Decl. ¶¶ 16, 39. Patients who are delayed past eighteen weeks LMP are no longer eligible for an abortion at an abortion clinic in Texas and must obtain care from an ambulatory surgical center. See Tex. Health & Safety Code § 171.004. Patients delayed past twenty-two weeks LMP are no longer eligible to obtain an abortion in Texas at all, absent exceptional circumstances. See Tex. Health & Safety Code § 171.044. Declarations in the record demonstrate that some patients have already exceeded the gestational age limit to obtain an
9

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 10 of 13

abortion in Texas while the EO has been in place. Hagstrom Miller Decl. ¶ 27; Johnson Decl. ¶ 10;

Nguyen Decl. ¶¶ 7–8, 11; Ward Decl. ¶¶ 12-13, 16. 29. The health risks associated with both pregnancy and abortion increase with

gestational age. Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 36; Hagstrom Miller Decl. ¶ 35; Schutt-

Aine Decl. ¶ 22; Macones Decl. ¶ 8. As ACOG and other well-respected medical professional

organizations have observed, specifically in relation to the COVID-19 pandemic, abortion “is an

essential component of comprehensive health care” and “a time-sensitive service for which a delay

of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it

completely inaccessible.” ACOG et al., Joint Statement on Abortion Access During the COVID-

19

Outbreak

(Mar.

18,

6
2020);

Schutt-Aine

Decl.

¶

22;

Sharfstein

Decl.

¶

8.

30. In addition to increasing health risks, delayed access to abortion imposes financial

and emotional costs on people with unwanted pregnancies. The cost of an abortion increases with

gestational age. Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 36; Hagstrom Miller Decl. ¶ 35; Schutt-

Aine Decl. ¶ 39. Further, people with ongoing pregnancies must cope with the physical symptoms

of pregnancy, which often include morning sickness and weight gain; must struggle to conceal

their pregnancies from abusive partners or family members; and must deal with the stress and

anxiety of not knowing when—or if—they will be able to obtain an abortion. Connor Decl. ¶ 11;

Ferrigno Decl. ¶ 34; Hagstrom Miller Decl. ¶ 33; Nguyen Decl. ¶¶ 10–14; Northcutt Decl. ¶¶ 5–

6; Ward Decl. ¶¶ 16-17.

Based on these findings, the Court concludes that Plaintiffs are entitled to the requested

TRO. In particular, the Court concludes that Plaintiffs are likely to succeed on the merits of their

6 Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
10

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 11 of 13
substantive due-process claim because, based on the Court’s findings of fact, it is “‘beyond question’ . . . [that] GA-09’s burdens outweigh its benefits as applied to Plaintiffs’ provision of (1) medication abortion; and (2) procedural abortion where, in the treating physician’s medical judgment, the patient would otherwise be denied access to abortion entirely because (a) the patient’s pregnancy would reach twenty-two weeks LMP by April 21, 2020; or (b) the patient’s pregnancy would reach eighteen weeks LMP by April 21, 2020, thus requiring abortion care at an ASC and in the judgment of the treating physician the patient is unlikely to be able to obtain an abortion at an ASC before the patient’s pregnancy reaches the twenty-two-week cutoff. This Court therefore concludes that application of the Executive to these categories of abortion care violates the standards set forth in both Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
The Court further concludes that Plaintiffs have standing to bring their claim and that a justiciable controversy exists. See Slip Op. at 8 n.17. It also concludes for purposes of sovereign immunity that the Governor and Attorney General likely have “some connection with the enforcement of the [challenged] act.” City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). The Executive Order, by its own terms, may be “modified, amended, rescinded, or superseded” by the Governor, Executive Order at 3, consistent with the Governor’s statutory authority, Tex. Gov’t Code Ann. § 418.012. Similarly, the Attorney General has the authority to prosecute Plaintiffs and their agents, at the request of local prosecutors, for alleged violations of the Executive Order, Tex. Gov’t Code Ann. § 402.028(a), and he has publicly threatened enforcement against abortion providers in particular.
The Court further concludes that Plaintiffs and their patients will suffer irreparable harm in the absence of a TRO; the balance of equities favors Plaintiffs; and entry of a TRO serves the
11

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 12 of 13
public interest. In particular, the record demonstrates that entry of the TRO to restore abortion access would serve the State’s interest in public health. See, e.g., Bassett Decl. ¶¶ 6–8; Levison Decl. ¶¶ 20–23; Sharfstein Decl. ¶¶ 9–12. Therefore,
IT IS ORDERED that Plaintiffs’ Second Motion for a Temporary Restraining Order, filed on April 8, 2020, is GRANTED.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09, “Relating to hospital capacity during the COVID-19 disaster,” and the Texas Medical Board’s emergency amendment to Title 22 Texas Administrative Code section 187.57, as a categorical ban on all abortions provided by Plaintiffs.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing the aforementioned Executive Order and Rule against Plaintiffs or agents of Plaintiffs who provide medication abortions.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing the aforementioned Executive Order and Rule against Plaintiffs or agents of Plaintiffs who provide a procedural abortion to any patient who, based on the treating physician’s medical judgment, would be more than eighteen weeks LMP on April 22, 2020, and likely unable to reach an ambulatory surgical center in Texas on to obtain abortion care.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing the aforementioned Executive Order and Rule against Plaintiffs or agents of
12

Case 1:20-cv-00323-LY Document 56-2 Filed 04/08/20 Page 13 of 13
Plaintiffs who provide a procedural abortion to any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas (twenty-two weeks LMP) on April 22, 2020.
IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire on April ____, 2020, at ____________. This order may be extended for good cause, pursuant to Federal Rule of Civil Procedure 65.
IT IS FURTHER ORDERED that a hearing on Plaintiffs’ pending motion for a preliminary injunction shall be reset for April 16, 2020, at ____________. Counsel and parties may call in to the Court’s conference line at (877) 873-8017, with Access Code 7996289.
Plaintiffs shall not be required to post a bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).
SIGNED at ______________, this _______ day of April, 2020.
____________________________________ HON. LEE YEAKEL UNITED STATES DISTRICT JUDGE
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 Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 1 of 16

iN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

2020APR9

Pi

t4:33

AUSTIN DIVISION

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER, AND

§

ROBIN WALLACE, M.D., M.A.S.,

§

PLAINTIFFS,

§

§

V.

§

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON §

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BR1NT

§

CARLTON, EXECUTIVE DIRECTOR §

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH §

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY, §

JOE GONZALES, CRIMINAL

§

DISTRICT ATTORNEY FOR BEXAR

§

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY, §

JOHN CREUZOT, DISTRICT

§

CAUSE NO. A-20-CV-323-LY

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 2 of 16
ATTORNEY FOR DALLAS COUNTY, SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY TARRANT COUNTY, RICARDO RODRIGUEZ, JR., CRIMINAL DISTRICT ATTORNEY FOR HIDALGO COUNTY, BARRY JOHNSON, CRIMINAL DISTRICT ATTORNEY FOR MCLENNAN COUNTY, KIM OGG, CRIMINAL DISTRICT ATTORNEY FOR HARRIS COUNTY, AND BRIAN MIDDLETON CRIMINAL DISTRICT ATTORNEY FOR FORT BEND COUNTY, EACH IN THEIR OFFICIAL CAPACITY,
DEFENDANTS.
ORDER GRANTING PLAINTIFFS' SECOND MOTION FOR A TEMPORARY RESTRAINING ORDER
Before the court is Plaintiffs' Second Motion for a Temporary Restraining Order and
Memorandum in Support (Dkt. #56). Having considered the motion, the evidence in the record, the
legal arguments made by all parties to date, and the opinion, order, and writ of mandamus issued by
the United States Court of Appeals for the Fifth Circuit April 7, 2020, In re Abbott, No. 20-50264
2020 WL 1685929 (5th Cir. April 7, 2020), the court again considers whether Plaintiffs are entitled
to temporary relief limiting the scope of Executive Order GA-09 issued by the governor of Texas on
March 22, 2020.
Accompanying Plaintiffs' motion are proposed findings of fact and conclusions of law. The
proposed findings and conclusions carefully and painstakingly track the evidence before the court
regarding both of Plaintiffs' motions for temporary relief and the applicable law. The court has
reviewed and considered these proposed findings and conclusions and determined that they are, in
2

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 3 of 16
substantial part, accurate and in concurrence with court's own review of the evidence and the law. The court will, therefore, adopt the bulk of the proposed findings and conclusions as its own.
The court makes the following findings of fact: 1. On March 13, 2020, the United States declared a state of emergency and the State of Texas declared a state of disaster related to the COVID-1 9 pandemic. See Proclamation by the Governor of the State of Texas (Mar. 13, 2020);1 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL
1272563 (Mar. 13, 2020). 2. On March 22, 2020, the governor issued an executive order barring "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." Executive Order GA-09, "Relating to hospital capacity during the COVID- 19 disaster" (March 22, 2020) ("Executive Order") at 3 2 The Executive Order further states that procedures 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" are exempt from the order. Id. The Executive Order remains in effect until 11:59 PM on April 21, 2020, unless the governor rescinds or modifies it. Id.
3. Federal officials and medical professionals expect the pandemic to last well beyond April 21,2020. Schutt-Aine Dccl. ¶ 40. This court likewise expects the pandemic to last beyond April21.
Available at https://gov.texas.gov/uploads/files/press/DISASTER_covid 1 9_disaster_ proclamation_IMAGE_03- 13 -2020.pdf.
Available at https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID 1 9_hospital_ capacity_IMAGE_03-22-2020.pdf.
3

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 4 of 16
The current shortage of personal protective equipment ("PPE") is expected to continue for the next
three to four months. Sharfstein Deci. ¶ 13.
4. Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement injail for up to 180 days, or both. Executive Order at 3 (citing Tex. Gov't Code § 418.173). Violation of the Executive Order may also give rise to disciplinary action against
licensed health-care providers by the Texas Health and Human Services Commission, the Texas
Medical Board, and the Texas Board of Nursing. See 25 Tex. Admin. Code § 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(1 1); Tex. 0cc. Code Ann. § 164.051(a)(2)(B),
(a)(6); 301.452(b)(3), (B)(10). 5. On March 23, 2020, the Texas Attorney General issued a press release titled "Health Care
Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 Pandemic." The press release states that providing any abortion care (other than for an immediate medical emergency) would violate the Executive Order and warned that "[t]hose who violate the governor's order will be
met with the full force of the law."
6. On March 24, 2020, the Texas Medical Board ("Medical Board") adopted an emergency rule ("Emergency Rule") to enforce the Executive Order. Under pre-existing law, the Medical Board
can temporarily suspend or restrict a physician's license if the physician's "continuation in practice
would constitute a continuing threat to the public welfare." 22 Tex. Admin. Code § 187.57(b). The
Emergency Rule expands this basis for discipline to include "performance of a non-urgent elective surgery or procedure" and incorporates the terms of the Executive Order, requiring all licensed health-
4

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 5 of 16
care professionals to postpone all surgeries and procedures that are not immediately necessary. 22 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020).
7. On March 29, 2020, the Medical Board published updated guidance regarding the scheduling of elective surgeries and procedures in light of the Executive Order. Tex. Med. Bd., Updated Texas Medical Board [] Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas DisasterDeclaration for COVID-19 Pandemic (Mar. 29, 2020) ("Medical Board Guidance").4 The Medical Board explained that postponing non-urgent elective cases would preserve PPE, ventilator availability, and [intensive-care-unit] beds." It defined
"urgent or elective urgent" procedures as those where "there is a risk of patient deterioration or disease progression likely to occur ifthe procedure is not undertaken or is significantly delayed." The
Medical Board noted that "the prohibition does not apply to office-based visits without surgeries or procedures." Further, the Medical Board explained that "[a] 'procedure' does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests."
8. The attorney general's interpretation of the Executive Order, which has been adopted by the State Defendants,5 creates a credible threat of enforcement against Plaintiffs and their agents for the provision of any abortion. This has had a profound chilling effect on the provision of abortion
Available at https://tinyurl.comlv4pz99u. ' Available at http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-9 1 BF-F922 1 E4DEF 17.
Defendants Greg Abbott, Governor of Texas, Ken Paxton, Attorney General of Texas, Phil Wilson, Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, Executive Director of the Texas Medical Board, Katherine A. Thomas, Executive Director of the Texas Board of Nursing, each in their official capacity, are referred to as
"State Defendants."
5

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 6 of 16
care in Texas. Plaintiffs and their agents have ceased providing nearly all abortion care as a result.
Barraza Decl. ¶ 15; Dewitt-Dick Decl. ¶ 8; Ferrigno Deci. ¶IJ 25-28; Hagstrom MillerJ 26-28; Klier
Deci. ¶ 17; Lambrecht Decl. ¶J 18-20; Schutt-Aine ¶IJ 32-34; Wallace Deci. ¶ 9. 9. Plaintiffs use two methods of providing an abortion: medication abortion and procedural
abortion. Schutt-Aine Deci. ¶ 12. 10. Medication abortion is not a surgery or procedure. It involves the patient ingesting a
combination of two pills: mifepristone and misoprostol. Schutt-Aine Deci. ¶ 13. The patient takes
the mifepristone in the health center and then, typically 24 to 48 hours later, takes the misoprostol at
a location of their choosing, most often at their home, after which they expel the contents of the
pregnancy in a maimer similar to a miscarriage. Schutt-Aine Deci. ¶ 13. Texas law restricts this
method to the first 10 weeks of pregnancy as measured from the first day of a pregnant woman's last
menstrual period ("LMP"). Tex. Health & Safety Code § 171.063. Plaintiffs provide medication abortion up to the 10-week limit.
11. Despite sometimes being referred to as "surgical abortion," procedural abortion is not what is commonly understood to be "surgery"; it involves no incision, no need for general anesthesia, and
no requirement of a sterile field. Schutt-Aine Deci. ¶ 16. Early in pregnancy, procedural abortions
are performed using a technique called aspiration, in which a clinician uses gentle suction from a
narrow, flexible tube to empty the contents ofthe patient's uterus. Schutt-Aine Dccl. ¶ 16. Beginning
around 15 weeks LMP, the clinician generally must use instruments to complete the procedure, a
technique called dilation and evacuation ("D&E"). Later in the second trimester of pregnancy, the
clinician may begin cervical dilation the day before the procedure itself, resulting in a two-day procedure. Schutt-Aine Decl. ¶ 16. Plaintiffs provide procedural abortion in both the first and second

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 7 of 16
trimester. Procedural abortions may not be performed in an abortion clinic after 18 weeks LMP. Tex. Health & Safety Code 171.004. At that point, outpatient procedural abortions may only be performed at an ambulatory surgery center ("ASC"), Id., but there are no ASCs that provide abortion care outside
of Texas's four largest metropolitan areas, Whole Woman 's Health v. Hellerstedt, 136 S. Ct. 2292,
2316 (2016). 12. Absent exceptional circumstances, Texas law prohibits abortion care altogether after 22
weeks LMP. See Tex. Health & Safety Code § 171.044. 13. Abortion patients rarely require hospitalization. Ferrigno Dccl. ¶ 14; Hagstrom Miller
Decl. ¶ 17; Schutt-Aine Dccl. ¶ 12; Whole Woman's Health, 136 S. Ct. at 2311. 14. Although some medication abortions require a follow-up aspiration procedure, the number
of those cases is exceedingly small and can generally be handled in an outpatient setting. Levison Deci. ¶ 9; Schutt-Aine Dccl. ¶ 12.
15. Providing medication abortion does not require the use of any PPE. Barraza Deci. ¶ 7; Dewitt-Dick Dccl. ¶ 19; Ferrigno Dccl. ¶ 10; Hagstrom Miller Dccl. ¶ 13; Lambrecht Dccl. ¶ 12; Klier Dccl. ¶ 11; Schutt-Aine Dccl. ¶ 25; Wallace Dccl. ¶ 12.
16. Texas law requires an in-person consultation between patient and provider, which must include an ultrasound examination, before every abortion. See Tex. Health & Safety Code
§ 171.01 2(a)(4), (b). For patients who reside within 100 miles of the facility where the abortion will
be performed, the consultation must occur at least 24 hours prior to the abortion procedure. See Id. According to the Medical Board, "non-invasive diagnostic tests" such as ultrasounds are not procedures, and the prohibition contained in the Executive Order "does not apply to office-based visits without surgery or procedures." Medical Board Guidance. In any event, pre-procedure
7

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 8 of 16
ultrasound examinations require minimal PPE. Use of PPE is not required at all for abdominal ultrasound examinations. Ferrigno Dccl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Deci. ¶ 14. For
vaginal ultrasound examinations, doctors or ultrasound technicians typically wear only non-sterile gloves that are discarded after each scan. Ferrigno Dccl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Dccl. ¶ 14. When laboratory testing is required, technicians likewise utilize only non-sterile gloves. Hagstrom Miller Deci. ¶ 14.
17. For procedural abortion, providers may use some or all of the following PPE items,
depending on the circumstances: gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, hair covers, and shoe covers. Barraza Dccl. ¶ 7; Dewitt-Dick Dccl. ¶ 19; Ferrigno Dccl. ¶J 10, 12; Hagstrom Miller Dccl. ¶J 13, 15; Klier Dccl. ¶ 11; Lambrecht Dccl. ¶ 12; SchuttAine Dccl. ¶ 25; Wallace Dccl. ¶ 12.
18. Following a procedural abortion, the tissue removed from a patient is examined in a pathology laboratory. Ferrigno Dccl. ¶ 12; Hagstrom Miller ¶ 15. This task is typically performed by a single staff member who utilizes one washable gown per shift, either one disposable face shield per shift or one set of reusable goggles, one set of disposable shoe covers per shift, one disposable hair cap per shift, and one or more sets of non-sterile gloves. Hagstrom Miller ¶ 15. According to the Medical Board, "the performing of lab tests" is not subject to the Executive Order. Medical Board Guidance; see also Tex. Med. Ass'n, TMB Releases Emergency Rules: Non-Urgent Surgeries and Procedures, at 3, 6 (Mar. 29, 2020).6
6 Available at https://www.texmed.org/uploadedFiles/Current/20 1 6_Public_Healthllnfectious_Diseases/Emerg ency%2Orule%2Oguidance%20-%203 .25%20Update.pdf.
8

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 9 of 16
19. Abortion providers generally do not use N95 masks. Only one physician associated with Plaintiffs has used an N95 mask since the beginning ofthe COVID-19 pandemic, and that physician has been reusing the same mask over and over. Barraza Decl. ¶ 8; Ferrigno Dccl. ¶ 13; Hagstrom Miller Decl. ¶ 16; Klier Deci. ¶ 6; Lambrecht Decl. ¶ 12; Schutt-Aine Dccl. ¶ 27.
20. Pregnant women prevented from accessing abortion will still require medical care. Chang Deci. ¶ 8; Levison Decl. ¶ 8; Macones Dccl. ¶ 10. Consistent with recommendations from the
American College of Obstetricians and Gynecologists ("ACOG") and other medical authorities for
providing obstetrical care during the C OVID- 19 pandemic, obstetricians are generally having two inperson visits with pregnant patients during the first-trimester and more frequent in-person visits during later trimesters. Chang Dccl. ¶ 11; Levison Decl. ¶ 19; Macones Dccl. ¶IJ 9-10; Wood Dccl. ¶ 11. High-risk patients, including those with diabetes or high blood pressure, must have more frequent in-person visits. Chang Dccl. ¶ 10; Levison Dccl. ¶ 14; Macones Dccl. ¶IJ 7, 10; Wood Dccl. ¶J 11-12. Urine specimens are generally collected and tested at each in-person visit, and blood is sometimes collected and tested also. Chang Dccl. ¶ 12; Levison Dccl. ¶ 13; Macones Dccl. ¶ 11; Wood Dccl. ¶ 11. Additionally, obstetricians are generally performing at least one ultrasound during the first trimester and another one at 20 weeks LMP. Chang Dccl. ¶IJ 11-12; Macones Dccl. ¶ 12; Wood Dccl. ¶ 14. High-risk patients will require more frequent ultrasounds. Macones Dccl. ¶ 12; Wood Dccl. ¶ 14.
21. Because individuals with ongoing pregnancies require more in-person healthcare,
including lab tests and ultrasounds, at each stage of pregnancy than individuals who have previability
abortions, delaying access to abortion will not conserve PPE. Levison Dccl. ¶IJ 12-14; Macones Dccl. ¶ 20; Schutt-Aine Dccl. ¶ 26.

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 10 of 16
22. Individuals with ongoing pregnancies are more likely to seek treatment in a hospitalfor a variety of conditionsthan individuals who have pre-viability abortions. Therefore, delaying
access to abortion will not conserve hospital resources. Levison Deci. ¶IJ 8-11; Macones Decl. ¶ 19; Schutt-Aine Decl. ¶ 26; Whole Woman 's Health, 136 S. Ct. at 2311.
23. Individuals who are delayed past the legal limit for abortion will have to deliver babies.
Delivery generally takes place in a hospital and requires extensive use of PPE. Thus, requiring
patients to carry unwanted pregnancies to term will not conserve PPE or hospital resources. Chang Deci. ¶IJ 16-17; Levison Deci. ¶IJ 9, 15-17; Macones Deci. ¶ 18; Schutt-Aine Decl. ¶ 26.
24. Physicians are continuing to provide obstetrical and gynecological procedures comparable to abortion in PPE use or time-sensitivity, based on their professional medical judgment. See Chang Decl. ¶ 24; Levison Deci. ¶ 18.
25. The inability to obtain abortion care in Texas as a result of the Executive Order is causing
individuals with unwanted pregnancies who have the ability to travel to go to other states to obtain abortions. The record shows that these individuals are traveling by both car and airplane to places as far away as Colorado and Georgia. Doe Decl. ¶J 15-22; Johnson Decl. ¶ 8-10; Nguyen Dccl. ¶
17; Ward Dccl. ¶J 12-14. This long-distance travel increases an individual's risk of contracting COVID- 19. Bassett Decl. ¶IJ 7-8; Schutt-Aine Dccl. ¶ 37; Sharfstein Dccl. ¶ 10; Doe Decl. ¶ 18. The record shows that patients traveling to other states for abortion care include patients seeking
medication abortion. Doe Decl. ¶J 9, 19-22.
26. Plaintiffs have turned away hundreds of patients seeking abortion care, and will turn away hundreds more, absent entry of a temporary restraining order. Barraza Decl. ¶IJ 6, 15; Dewitt-Dick
III]

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 11 of 16
Deci. ¶ 8; Ferrigno Deci. ¶IJ 26-28; Hagstrom Miller Deci. ¶J 27-28; Johnson Decl. ¶ 4; Klier Decl. ¶ 17; Lambrecht Decl. ¶J 18-20; Nguyen Dccl. ¶ 8; Schutt-Aine Dccl. ¶IJ 33-34; Wallace Dccl. ¶ 9.
27. There will be significant pent-up need for abortion care when the Executive Order expires.
It will take Plaintiffs weeks to resolve the resulting backlog of patients, meaning that a significant number of patients will face additional delays in accessing abortion even after the Executive Order's now month-long duration expires. Ferrigno Dccl. ¶ 29; Hagstrom Miller Dccl. ¶ 29; Johnson Dccl.
¶ 12; Nguyen Dccl. ¶ 23. 28. Patients delayed past 10 weeks LMP are no longer eligible for a medication abortion in
Texas. See Tex. Health & Safety Code § 171.063(a)(2). Patients delayed past 14 to 16 weeks LMP are no longer eligible for an aspiration abortion, and must instead have a D&E, which is a lengthier and more complex procedure. Ferrigno Dccl. ¶ 35; Hagstrom Miller Dccl. ¶ 34; Lambrecht Dccl. ¶
18; Schutt-Aine Deci. ¶J 16, 39. Patients who are delayed past 18 weeks LMP are no longer eligible
for an abortion at an abortion clinic in Texas and must obtain care from an ASC. See Tex. Health & Safety Code § 171.004. Patients delayed past 22 weeks LMP are no longer eligible to obtain an abortion in Texas at all, absent exceptional circumstances. See Tex. Health & Safety Code § 171.044. Declarations in the record demonstrate that some patients have already exceeded the gestational age limit to obtain an abortion in Texas while the Executive Order has been in place. Hagstrom Miller Dccl. ¶ 27; Johnson Dccl. ¶ 10; Nguyen Dccl. ¶J 7-8, 11; Ward Dccl. ¶J 12-13, 16.
29. The health risks associatedwith both pregnancy andabortion increase with gestational age. Dewitt-Dick Dccl. ¶ 22; Ferrigno Dccl. ¶ 36; I-Iagstrom Miller Dccl. ¶ 35; Schutt-Aine Dccl. ¶ 22; Macones Dccl. ¶ 8. As ACOG and other well-respected medical professional organizations have observed, specifically in relation to the COVID- 19 pandemic, abortion "is an essential component of
11

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 12 of 16
comprehensive health care" and "a time-sensitive service for which a delay of several weeks, or in
some cases days, may increase the risks [to patients] or potentially make it completely inaccessible." ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020); Schutt-Aine Decl. ¶ 22; Sharfstein Decl. ¶ 8.
30. In addition to increasing health risks, delayed access to abortion imposes financial and
emotional costs on people with unwanted pregnancies. The cost of an abortion increases with
gestational age. Dewitt-Dick Decl. ¶ 22; Ferrigno Deci. ¶ 36; Hagstrom Miller Decl. ¶ 35; SchuttAine Deci. ¶ 39. Women with ongoing pregnancies must cope with the physical symptoms of pregnancy, which often include morning sickness and weight gain; must struggle to conceal their pregnancies from abusive partners or family members; and must deal with the stress and anxiety of
not knowing whenor ifthey will be able to obtain an abortion. Connor Deci. ¶ 11; Ferrigno Deci.
¶ 34; Hagstrom Miller Decl. ¶ 33; Nguyen Decl. ¶J 10-14; Northcutt Deci. ¶115-6; Ward Deci. ¶IJ 16-
17.
31. The court incorporates by reference the findings of fact contained in the court's March 30, 2020 Order Granting Plaintiffs' Request for Temporary Restraining Order. Planned Parenthood Center for Choice v. Abbott, 1 :20-CV-323-LY (W.D. Tex. Mar. 30, 2020).
The court makes the following conclusions of law: 1. Plaintiffs have standing to bring their claim and ajusticiable controversy exists. See In re
Abbott, No. 20-50264, slip op. at 8 n.17, 2020 WL 1685929 (5th Cir. Apr. 7, 2020). For purposes
of sovereign immunity, the governor and attorney general likely have "some connection with the
Available at https://www.acog.org/news/news-releases/2020/03/j oint-statement-on-abortionaccess-during-thecovid- 19-outbreak.
12

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 13 of 16
the governor, Executive Order at 3, consistent with the governor's statutory authority, Tex. Gov't Code Ann. § 418.012. Similarly, the attorney general has the authority to prosecute Plaintiffs and their agents, at the request of local prosecutors, for alleged violations of the Executive Order, Tex. Gov't Code Ann. § 402.028(a), and he has publicly threatened enforcement against abortion providers in particular.
2. Plaintiffs are entitled to the requested temporary restraining order. In particular, the court
concludes that Plaintiffs are likely to succeed on the merits of their substantive due-process claim because, based on the court's findings of fact, it is beyond question that the Executive Order's burdens outweigh the order's benefits as applied to Plaintiffs' provision of(1) medication abortion;
and (2) procedural abortion where, in the treating physician's medical judgment, the patient would otherwise be denied access to abortion entirely because (a) the patient's pregnancy would reach 22 weeks LMP by April 21, 2020; or (b) the patient's pregnancy would reach 18 weeks LMP by April
21, 2020, thus requiring abortion care at an ASC and, in the judgment of the treating physician, the patient is unlikely to be able to obtain an abortion at an ASC before the patient's pregnancy reaches the 22-week cutoff. The court therefore concludes that application of the Executive Order to these categories of abortion care violates the standards set forth in both Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11(1905).
To women in these categories, the Executive Order is an absolute ban on abortion. When a temporary delay reaches 22 weeks LMP, the ban is not temporary, it is absolute. A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion.
13

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 14 of 16
limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion.
3. Plaintiffs and their patients will suffer irreparable harm in the absence of a temporary restraining order; the balance of equities favors Plaintiffs; and entry of a temporary restraining order serves the public interest. In particular, the record demonstrates that entry of a temporary restraining order to restore abortion access would serve the State's interest in public health. See, e.g., Bassett Deci. ¶IJ 6-8; Levison Deci. ¶J 20-23; Sharfstein Dccl. ¶J 9-12.
4. The court incorporates by reference the conclusions of law contained in the court's March 30, 2020 Order Granting Plaintiffs' Request for Temporary Restraining Order. Planned Parenthood
Center ofChoice, No. 1 :20-CV-323-LY (W.D. Tex. Mar. 30, 2020). Therefore, IT IS ORDERED that Plaintiffs' Second Motion for Temporary Restraining Order (Dkt.
#56), filed April 8, 2020, is GRANTED. IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and
all others acting in concert or participating with them are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09, "Relating to hospital capacity during the COVID-19 disaster," and the Texas Medical Board's emergency amendment to Title 22 Texas Administrative Code section 187.57, as a categorical ban on all abortions provided by Plaintiffs.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs
who provide medication abortions.
14

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 15 of 16

IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and

all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from

enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs

who provide a procedural abortion to any patient who, based on the treating physician's medical

judgment, would be more than 18 weeks LMP on April 22, 2020, and likely unable to reach an

ambulatory surgical center in Texas or to obtain abortion care.

IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and

all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from

enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs

who provide a procedural abortion to any patient who, based on the treating physician's medical
judgment, would be past the legal limit for an abortion in Texas-22 weeks LMPon April 22,2020.

IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire on April

19, 2020, at

-. This order may be extended for good cause, pursuant to

Federal Rule of Civil Procedure 65.

Pursuant to an Agreed Stipulation for Non-Enforcement Pending Final Resolution, Attorneys

Fees and Costs filed March 28, 2020 (Clerk's Dkt. #25) this order does not apply to Defendant Brian

Middleton, Criminal District Attorney for Fort Bend County.

Plaintiffs shall not be required to post a bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d

624, 628 (5th Cir. 1996).

15

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 16 of 16

This court's April 8, 2020 Order (Dkt. #58) is not affected by this order, and the parties shall

continue to comply with the April 8 order.

SIGNED this

day of April, 2020 at

ZDEDISSTATcTmDGE

16

 
 Case: 20-50296 Document: 00515378889 Page: 1 Date Filed: 04/10/2020 Case 1:20-cv-00323-LY Document 65 Filed 04/10/20 Page 1 of 5
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20-50296
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Petitioners
Petition for Writ of Mandamus to the United States District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges. PER CURIAM:
On April 7, 2020, we issued a writ of mandamus directing the district court to vacate its temporary restraining order (“TRO”) that exempted abortion procedures from GA-09, an emergency executive order issued on March 22 by the Governor of Texas postponing certain non-essential medical procedures for three weeks during the escalating COVID-19 pandemic. See In re Abbott, --F.3d ---, 2020 WL 1685929 (5th Cir. April 7, 2020). As we explained, GA-09 sought to preserve critical medical resources and slow the spread of a pandemic during what the district court itself recognized was Texas’s “worst public health emergency in over a century.” Id. at *1, 4, 9. We further explained that GA-09 “is a concededly valid public health measure that applies to all

Case: 20-50296 Document: 00515378889 Page: 2 Date Filed: 04/10/2020 Case 1:20-cv-00323-LY Document 65 Filed 04/10/20 Page 2 of 5
No. 20-50296 ‘surgeries and procedures,’ does not single out abortion, and . . . has an exemption for serious medical conditions.” Id. at *10.
In our opinion, we emphasized that the district court had “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.” Id. at *2. The evidence presented at this hearing, we said, would allow the district court to make “targeted findings, based on competent evidence, about the effects of GA-09 on abortion access.” Id. We emphasized that “those proceedings” must “adhere to the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures like [GA-09].” Id. As we stated in our opinion, those “controlling” standards come from the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In re Abbott, 2020 WL 1685929, at *1, 6–7. Having already painstakingly explained those standards in our opinion, we reiterate our holding:
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30. In re Abbott, 2020 WL 1685929, at *7 (cleaned up). We also articulated how the Jacobson framework would apply to the Casey undue-burden analysis. Id. at *11 (discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). We explained that this analysis “ask[s] whether GA-09 imposes burdens on abortion that ‘beyond question’ exceed its
2

Case: 20-50296 Document: 00515378889 Page: 3 Date Filed: 04/10/2020 Case 1:20-cv-00323-LY Document 65 Filed 04/10/20 Page 3 of 5
No. 20-50296 benefits in combating the epidemic Texas now faces.” Id. (quoting Jacobson, 197 U.S. at 31). We explained further that this analysis would “require[] careful parsing of the evidence,” and we noted some of the conflicting evidence in the record. Id. But we emphasized that “[t]hese 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 . . . in any particular circumstance.” Id. at *12 (cleaned up).
The day following our mandamus, April 8, 2020, the district court did the following: (1) it vacated its March 30 TRO (Doc. 54); (2) it cancelled the telephonic preliminary injunction hearing previously scheduled for April 13 (Doc. 54); and (3) it ordered the parties to confer and propose a status report before April 15 setting out the parties’ agreement on procedures and a schedule for a new preliminary injunction hearing on a yet-unannounced date (Doc. 58).
Also on April 8, plaintiffs filed in the district court a new application for TRO supported only by one additional declaration (Doc. 56). The next day, April 9, the district court—without allowing defendants either to file a pleading or to submit evidence in opposition to the TRO application—entered an order granting plaintiffs a TRO (Doc. 63). The new TRO enjoins all defendants from enforcing GA-09 against Plaintiffs or their agents in the following ways: (1) it enjoins enforcement of GA-09 “as a categorical ban on all abortions provided by Plaintiffs”; (2) it enjoins enforcement as to providing “medication abortions”; (3) it enjoins enforcement as to providing “procedural abortion[s] to any patient who, based on the treating physicians’ medical judgment, would be more than 18 weeks LMP [“last menstrual period”] on April 22, 2020, and likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care”; and, finally (4) it enjoins enforcement as to providing “procedural abortion[s] to any patient who, based on the treating physician’s medical judgment, would
3

Case: 20-50296 Document: 00515378889 Page: 4 Date Filed: 04/10/2020 Case 1:20-cv-00323-LY Document 65 Filed 04/10/20 Page 4 of 5
No. 20-50296 be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” (Doc. 63, at 14–15).
Texas officials have now filed a petition for writ of mandamus seeking vacatur of the April 9 TRO, as well as an emergency motion for stay of the TRO and a temporary administrative stay of the TRO.
IT IS ORDERED that the motion for temporary administrative stay of the district court’s order of April 9, 2020 (Doc. 63) is GRANTED, until further order of this court, to allow sufficient time to consider the mandamus petition and emergency stay motion. This stay operates against the April 9 TRO in all respects EXCEPT that part of the TRO applying to “any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020” (Doc. 63, at 15). Our stay does not operate against that part of the April 9 TRO.*
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the emergency stay motion no later than Saturday, April 11, 2020, at 8:00 p.m. Any reply by petitioners is due no later than Monday, April 13, 2020, at noon.
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the petition for writ of mandamus no later than Tuesday, April 14, 2020, at 2:00 p.m. Any reply by petitioners is due no later than Wednesday, April 15, 2020, at 2:00 p.m.
* Judge Dennis dissents, in part, because he would not stay any part of the district court’s April 9 TRO.
4

Case: 20-50296 Document: 00515378890 Page: 1 Date Filed: 04/10/2020 Case 1:20-cv-00323-LY Document 65 Filed 04/10/20 Page 5 of 5

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

April 10, 2020

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 20-50296 In re: Greg Abbott, et al USDC No. 1:20-CV-323

Enclosed is an order entered in this case.

Sincerely, LYLE W. CAYCE, Clerk

Ms. Jeannette Clack Mrs. Molly Rose Duane Ms. Heather Gebelin Hacker Mr. Kyle Douglas Hawkins Ms. Beth Ellen Klusmann Mr. Richard Muniz Ms. Julie A. Murray Mr. Patrick J. O'Connell Ms. Jennifer Sandman Ms. Rupali Sharma Ms. Hannah Swanson Mrs. Natalie Deyo Thompson Ms. Stephanie Toti

By: _________________________ Amanda Sutton-Foy, Deputy Clerk 504-310-7670

 
 Case: 20-50296 Document: 00515380735 Page: 1 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 1 of 7
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20-50296
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Petitioners
On Petition for Writ of Mandamus to the United States District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges. PER CURIAM:
On April 10, 2020, Petitioners filed an emergency motion to stay the district court’s order (Doc. 63) temporarily restraining executive order GA-09, pending our consideration of their mandamus petition. Having addressed emergency motions concerning GA-09 more than once in the past week, we refer readers to our description of this fast-moving litigation elsewhere. See In re Abbott, --- F.3d ---, 2020 WL 1685929, at *2–4 (5th Cir. Apr. 7, 2020) (Abbott II). For present purposes, suffice it to say that GA-09 is an emergency public health measure, issued by the Governor of Texas on March 22, 2020, that postpones non-essential surgeries and procedures until April 22 in the face of

Case: 20-50296 Document: 00515380735 Page: 2 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 2 of 7
No. 20-50296 the COVID-19 pandemic. Id. at *2–3. GA-09 applies to a broad range of procedures, does not mention abortion, and contains exceptions for procedures immediately necessary to preserve the life or health of patients. Id. at *3, 9-10. GA-09 is enforceable by both criminal and administrative penalties and is currently set to expire after 11:59 p.m. on April 21, 2020. Id. at *3.
On March 30, the district court entered a TRO against GA-09 as applied to all abortion procedures. Planned Parenthood Ctr. for Choice et al. v. Abbott, 2020 WL 1502102, at *4 (W.D. Tex. Mar. 30, 2020) (Abbott I). We administratively stayed that TRO on March 31 and, on April 7, we issued a writ of mandamus directing the district court to vacate its TRO. Abbott II, 2020 WL 1685929, at *2. In doing so, we explained that the challenge to GA-09 must be analyzed under the controlling legal standards set forth in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). See Abbott II, 2020 WL 1685929, at *2. We emphasized that our decision was based only on the record before us, and that both sides would presumably have a chance to present evidence concerning narrower remedies at a preliminary injunction hearing then scheduled for April 13. Id. at *2.
The next day, April 8, the district court vacated its TRO and cancelled the April 13 preliminary injunction hearing. Doc. 54. The district court stated it “anticipates that the governor will extend or amend and extend [GA-09] to a date past April 21, 2020,” and that “[i]t makes no sense to take up the request for [a] preliminary injunction until the parties and the court have the benefit of any subsequent order.” Doc. 58 at 3. The district court therefore ordered the parties to confer and agree to a schedule and procedures for the yetundetermined preliminary injunction hearing. Id.
That same day Respondents sought another TRO, which the district court granted the next day, April 9, following a brief telephone hearing at which Petitioners were not allowed to present evidence or file an opposition.
2

Case: 20-50296 Document: 00515380735 Page: 3 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 3 of 7
No. 20-50296 Transcr. of 4/9/20 Tel. Conf. at 14:39; Planned Parenthood Ctr. for Choice v. Abbott, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) (Abbott III). The April 9 TRO prevents GA-09 from applying, until April 19, to three categories of abortion: (1) medication abortions; (2) abortions for women who would be more than 18 weeks LMP (“last menstrual period”) by April 22 and unable to reach an ambulatory surgical center; and (3) abortions for women who would be past Texas’s legal limit—22 weeks LMP—for abortion by April 22. Abbott III, 2020 WL 1815587, at *7. On April 10, Petitioners sought another writ of mandamus from our court, as well as an emergency stay. Later that day, we granted a partial administrative stay of the TRO, except as to the part applying to women who would be 22 weeks LMP by April 22. We expedited briefing on both the emergency stay motion and the mandamus petition.
We now consider Petitioners’ motion for emergency stay of the April 9 TRO as it applies to the provision of medication abortions. Four factors guide our analysis: (1) whether Petitioners have made a strong showing of entitlement to mandamus; (2) whether Petitioners will be irreparably harmed absent a stay; (3) whether other parties will be substantially harmed by a stay; and (4) the public interest. See Nken v. Holder, 556 U.S. 418, 426 (2009); ODonnell v. Goodhart, 900 F.3d 220, 223 (5th Cir. 2018). “The first two factors are the most critical.” ODonnell, 900 F.3d at 223 (citing Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016)).
The first inquiry is whether Petitioners have made a strong showing they are entitled to mandamus. Nken, 556 U.S. at 426. To be entitled to mandamus relief, Petitioners must demonstrate, inter alia, “a clear abuse of discretion that produces patently erroneous results.” In re JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up). We have serious concerns about whether the district court’s April 9 TRO adhered to our order in Abbott II. For example, despite citing the decision once, the TRO does not discuss or apply
3

Case: 20-50296 Document: 00515380735 Page: 4 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 4 of 7
No. 20-50296 “the framework governing emergency public health measures like GA-09,” established by the Supreme Court in Jacobson. Abbott II, 2020 WL 1685929, at *1. Nor does the TRO appear to “careful[ly] pars[e] . . . the evidence,” id. at *11, developed after a hearing at which “all parties [would] presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances,” id. at *2—something our decision emphasized.1 Finally, the TRO persists in “usurp[ing] the state’s authority to craft emergency health measures” by “substitut[ing] [the court’s] own view of the efficacy of applying GA-09 to abortion.” Id. at *1; cf. Abbott III, 2020 WL 1815587, at *4 (finding “delaying access to abortion will not conserve [personal protective equipment]” “[b]ecause individuals with ongoing pregnancies require more in-person healthcare . . . than individuals who have previability abortions”).
Conversely, however, we have doubts about Petitioners’ showing as to medication abortions. As to that category, Respondents argue that medication abortions are not covered by GA-09 because neither dispensing medication nor ancillary diagnostic elements (such as a physical examination or ultrasound) qualify as “procedures.” Guidance by the Texas Medical Board may support this interpretation of the order.2 Furthermore, the parties’ helpful written responses to our questions did not settle whether GA-09 applies to medication
1 See, e.g., id. at *2 (noting “[t]he district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020,” after which the court could “make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access”); id. at *12 (noting that the question of a narrowly tailored injunction could be pursued by “the parties . . . at the preliminary injunction stage”); id. at *13 (noting that “Respondents will have the opportunity, of course, to present additional evidence” on pretext “in conjunction with the district court’s preliminary injunction hearing scheduled for April 13, 2020”).
2 See Texas Medical Board, Frequently Asked Questions Regarding Non-Urgent, Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020), http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BFF9221E4DEF17 (explaining “[a] ‘procedure’ [under GA-09] does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests”).
4

Case: 20-50296 Document: 00515380735 Page: 5 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 5 of 7
No. 20-50296 abortions. Given the ambiguity in the record, we conclude on the briefing and record before us that Petitioners have not made the requisite strong showing of entitlement to mandamus relief. Because a failure on that first inquiry is sufficient to deny the stay, we need not proceed to the remaining prongs.
We express no ultimate decision on the ongoing mandamus proceeding or on the remaining aspects of the emergency stay motion.
*** IT IS ORDERED that Petitioners’ emergency motion to stay the district court’s April 9 TRO is DENIED as to medication abortions. We also DISSOLVE the temporary administrative stay as it applies to medication abortions.
JAMES L. DENNIS, Circuit Judge, concurring. I concur in the majority’s conclusion that the petitioners have failed to
make a strong showing that they are entitled to mandamus with respect to medication abortions. The petitioners’ stated desire to enforce GA-09 against medication abortions despite the executive order’s apparent inapplicability is a strong indication that the enforcement is pretextual and does not bear a “‘real or substantial relation’ to the public health crisis” we are experiencing. In re Abbott, --- F.3d ---, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (quoting in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905).
I disagree, however, with the majority’s unnecessary critique of the district court’s decision. I believe the district court properly exercised its inherent authority “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases” in choosing to issue a second TRO rather than to immediately proceed to a hearing on a preliminary injunction as the majority suggested in its last mandamus opinion. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–631 (1962)). Further, far from “usurp[ing] the state’s authority to craft emergency
5

Case: 20-50296 Document: 00515380735 Page: 6 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 6 of 7 No. 20-50296
health measures” by “substitut[ing] [the court’s] own view of the efficacy of applying GA-09 to abortion,” I believe the court properly considered the evidence to determine whether “beyond question, GA-09’s burdens outweigh its benefits” when applied to medication abortions, as the majority previously instructed. Abbott, 2020 WL 1685929, at *1, 9 (internal quotations omitted).
Accordingly, I concur only in the denial of the petitioner’s emergency motion as it applies to medication abortions and to the corresponding dissolving of the administrative stay.
6

Case: 20-50296 Document: 00515380736 Page: 1 Date Filed: 04/13/2020 Case 1:20-cv-00323-LY Document 74 Filed 04/13/20 Page 7 of 7

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

April 13, 2020

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 20-50296 In re: Greg Abbott, et al USDC No. 1:20-CV-323

Enclosed is an order entered in this case.

Sincerely, LYLE W. CAYCE, Clerk

Ms. Jeannette Clack Mrs. Molly Rose Duane Ms. Heather Gebelin Hacker Mr. Kyle Douglas Hawkins Ms. Beth Ellen Klusmann Mr. Richard Muniz Ms. Julie A. Murray Mr. Patrick J. O'Connell Ms. Jennifer Sandman Ms. Rupali Sharma Ms. Hannah Swanson Mrs. Natalie Deyo Thompson Ms. Stephanie Toti

By: _________________________ Amanda Sutton-Foy, Deputy Clerk 504-310-7670

 
 Case 1:20-cv-00323-LY Document 82 Filed 04/14/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS 2020 PR
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER,

§

ROBIN WALLACE, M.D., M.A.S., AND §

HOUSTON WOMEN'S CLINIC,

§

PLAiNTIFFS,

§

§

V.

§

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON

§

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BRINT

§

CARLTON, EXECUTIVE DIRECTOR

§

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH

§

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY,

§

JOE GONZALES, CRIMINAL

§

DISTRICT ATTORNEY FOR BEXAR

§

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY,

§

JOHN CREUZOT, DISTRICT

§

ATTORNEY FOR DALLAS COUNTY,

§

p 14: 2'?

Case 1:20-cv-00323-LY Document 82 Filed 04/14/20 Page 2 of 4

SHAREN WILSON, CRIMINAL

§

DISTRICT ATTORNEY TARRANT

§

COUNTY, RICARDO RODRIGUEZ, JR., §

CRIMINAL DISTRICT ATTORNEY

§

FOR HIDALGO COUNTY, BARRY

§

JOHNSON, CRIMINAL DISTRICT

§

ATTORNEY FOR MCLENNAN

§

COUNTY, KIM OGG, CRIMINAL

§

DISTRICT ATTORNEY FOR HARRIS §

COUNTY, AND BRIAN MIDDLETON §

CRIMINAL DISTRICT ATTORNEY

§

FOR FORT BEND COUNTY, EACH IN §

THEIR OFFICIAL CAPACITY,

§

DEFENDANTS.

ORDER EXTENDING ORDER GRANTING PLAINTIFFS' SECOND MOTION FOR TEMPORARY RESTRAINING ORDER AND
SCHEDULING ORDER FOR PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Before the court in the above styled and numbered cause is the parties' Joint Status Report filed this day (Clerk's Doe. #78). The court finds there is good cause to schedule Plaintiffs' Motion for Preliminary Injunction (Clerk's Doe. #7) for hearing and to extend the existing temporary restraining order so that the court and parties have adequate time to prepare for that hearing.
IT IS ORDERED that the Order Granting Plaintiffs' Second Motion For Temporary Restraining Order entered April 9, 2020 (Clerk's Doe. #63), is EXTENDED in its entirety under its same terms and conditions except as MODIFIED by the orders of the United States Court of

Appeals for the Fifth Circuit rendered April 10, 2020, and April 13, 2020, until 5:00 p.m. on May

1, 2020. See Fed. R. Civ. P. 65(b)(2).
IT IS FURTHER ORDERED that Plaintiffs' Motion for Preliminary Injunction is set for a telephonic hearing on April 29, 2020, at 9:30 a.m. Each side will have one hour. As agreed by the parties, there will be no live testimony at the hearing. The court will consider the parties'
2

Case 1:20-cv-00323-LY Document 82 Filed 04/14/20 Page 3 of 4
declarations, affidavits, designations, and exhibits ("supporting evidence"), as well as any
stipulations of the parties. IT IS FURTHER ORDERED that any party desiring the court to consider previously filed
briefing or supporting evidence shall specifically designate the briefing or supporting evidence at the time the party files its first brief described below.
IT IS FURTHER ORDERED that: Plaintiffs may serve and file additional briefing, limited to 25 pages, and any additional supporting evidence on or before April 17, 2020, at 5:00 p.m. Defendants may serve and file a response brief, limited to 25 pages, and any additional supporting evidence on or before April 21, 2020, at 5:00 p.m. In the response brief, Defendants may address any extension, modification, or superseding order related to the governor's Executive
Order No. GA-09. Plaintiffs may serve and file a reply brief, limited to 10 pages, with any supporting evidence
and may address any extension, modification, or superseding order related to the governor's
Executive Order No. GA-09 on or before April 23, 2020, at 5:00 p.m.
Defendants may serve and file a rebuttal brief, limited to 10 pages, with any supporting
evidence on or before April 24, 2020, at 5:00 p.m. The parties may file Stipulations of Fact on or before April 24, 2020, at 5:00 p.m.
3

Case 1:20-cv-00323-LY Document 82 Filed 04/14/20 Page 4 of 4

The parties shall file detailed Proposed Findings of Fact and Conclusions of Law on or

before April 27, 2020, at 5:00 p.m. The parties should not presume that the court will allow

amendments or supplements.

SIGNED this

day of April, 2020.

UN ED STAT

4

 
 Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 1 of 30

RECEIVED

YT -APR 172020 IN THE UNITED STATES DISTRICT COURT
cLERK U.S DISTRICT cyj'FOR THE WESTERN DISTRICT OF TEXAS

STR1CT OF TEXA$

AUSTIN DIVISION

-fl

,LANNED PARENTHOOD CENTER FOR

CHOICE; PLANNED PARENTHOOD OF

FILED

APR 1 7 2020

pcLt CLEK,. DIS1jICT CLER(

WESTERN

OF TEXAS

BY

(I)IL1

GREATER TEXAS SURGICAL HEALTH

SERVICES; PLANNED PARENTHOOD SOUTH

TEXAS SURGICAL CENTER; WHOLE WOMAN'S

HEALTH; WHOLE WOMAN'S HEALTH

No. I :20-cv-323-LY

ALLIANCE; SOUTHWESTERN WOMEN'S

SURGERY CENTER; BROOKSIDE WOMEN'S

MEDICAL CENTER PA dfb/a BROOKSIDE

WOMEN'S HEALTH CENTER AND AUSTIN

WOMEN'S HEALTH CENTER; ROBIN

WALLACE, M.D.; HOUSTON WOMEN'S CLINIC;

ALAMO CITY SURGERY CENTER PLLC d/bla

ALAMO WOMEN'S REPRODUCTIVE SERVICES;

and HOUSTON WOMEN'S REPRODUCTIVE

SERVICES,

Plaintiffs,

GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as
Attorney General of Texas; PHIL WILSON, in his
official capacity as Acting Executive Commissioner
of the Texas Health and Human Services
Commission; STEPHEN BRINT CARLTON, in his
official capacity as Executive Director of the Texas
Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the
Texas Board of Nursing; MARGARET MOORE,
District Attorney for Travis County; JOE
GONZALES, Criminal District Attorney for Bexar County; JOHN CREUZOT, District Attorney for Dallas County; JAIME ESPARZA, District Attorney for El Paso County; KIM OGG, Criminal District Attorney for Harris County; RICARDO RODRIGUEZ, JR., Criminal District Attorney for Hidalgo County; BARRY JOHNSON, Criminal
District Attorney for McLennan County; SHAREN WILSON, Criminal District Attorney for Tarrant

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 2 of 30
County; and BRIAN MIDDLETON, Criminal District Attorney for Fort Bend County,
Defendants.
SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION 1. This is a constitutional challenge under 42 U.S.C. § 1983 to an interpretation by the Texas Attorney General of Governor Greg Abbott's March 22, 2020, Executive Order GA 09, "Relating to hospital capacity during the COVID- 19 disaster" ("the Executive Order"), as applied to abortion, and to the extent that interpretation is consistent with the Executive Order, a challenge to the order itself. The Texas Attorney General's interpretation is attached as Exhibit A. The Executive Order is attached as Exhibit B. This lawsuit also challenges the Texas Medical Board's emergency amendment to 22 TAC § 187.57 ("Emergency Rule"), which imposes the same requirements as the Executive Order. The Emergency Rule is attached as Exhibit C. 2. Citing the ongoing COVID-19 pandemic and the need to preserve hospital capacity and personal protective equipment ("PPE"), the Executive Order prohibits all surgeries and
procedures thatas determined by a patient's physicianare not immediately medically
necessary to correct a serious medical condition of, or to preserve the life of, a patient who without
immediate receipt of such care would be at risk for serious adverse medical consequences or death.
It applies to all licensed health care practitioners and all licensed health care facilities in Texas. The Executive Order directs regulated parties to stop performing all covered services, with the
exception of procedures that, if performed using the commonly accepted standard of clinical
2

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 3 of 30
practice, would not deplete the hospital capacity or the PPE needed to cope with the COVID- 19 disaster.
3. The Executive Order took effect the afternoon of March 22, 2020, and will remain
in effect until at least April 21, 2020.
4. As the American College of Obstetricians and Gynecologists ("ACOG") has
recognized, abortion care is essential care because it cannot be delayed without risking the health
and safety of the patient. Accordingly, Plaintiffs believe that providing this care is entirely consistent with the Governor's Executive Order.
5. However, on March 23, 2020, Texas Attorney General Ken Paxton issued a press
release singling out abortion providers and suggesting that he believed provision of non-
emergency abortions would violate the Executive Order. The release stated that "[t]hose who
violate the governor's order will be met with the full force of the law" and threatened criminal penalties, including jail time.
6. By stating that the Executive Order applies to "any type of abortion," the Attorney General's news release suggests it even prohibits medication abortion, which involves only taking medications by mouth and is not "surgery" or a "procedure" that falls within the terms of the Executive Order. See id. (emphasis added). This appears to be the only oral medication targeted in this manner.
7. For nearly fifty years, the U.S. Supreme Court has recognized the fundamental federal constitutional right to make the profoundly personal decision whether to terminate a pregnancy. See Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court has repeatedly recognized that this right is foundational to equality and to respect for the dignity, autonomy, and bodily
3

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 4 of 30
integrity of all people. The "central principle" ofRoe is that "{b]efore viability, the State's interests are not strong enough to support a prohibition on abortion," Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846, 871(1992), regardless whether that prohibition contains an exception to preserve the life or health of the pregnant woman.
8. The Texas Attorney General's enforcement threats are a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity. As a result of these threats, this week Plaintiffs have already been forced to turn away patients in need of time-sensitive care.
9. Without injunctive relief, Plaintiffs will be forced to continue turning away patients seeking abortion care. At a minimum, those patients will not be able to obtain an abortion for weeks or even months, given that the COVID-19 pandemic is likely to last far beyond the order's stated expiration date. Some will not be able to access abortion at all and will be forced to carry pregnancies to term. Not only will these patients be deprived of their constitutional right to essential healthcare and self-determination, but forcing them to continue their pregnancies will in fact impose far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve much greater exhaustion of hospital health care services and PPE than abortions. All will be delayed in getting the abortion care they are seeking, with attendant risks to their health, wellbeing, and economic security. This violates Plaintiffs' patients' fundamental constitutional right to decide whether to have an abortion prior to viability.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action under 28 U.S.C. § 1331 and 1343.
4

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 5 of 30
11. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.s.c. § 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court.
12. Venue is appropriate under 28 U.S.0 § 1391(b) because one or more of the Defendants resides in this judicial district and because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this judicial district.
PLAINTIFFS 13. Plaintiff Planned Parenthood Center for Choice ("PP Houston"), a Texas not-forprofit corporation headquartered in Houston, operates a licensed ambulatory surgical center in Houston and a licensed abortion facility in Stafford. PP Houston and its predecessor organizations have provided abortions in Houston and southeast Texas since 1973. PP Houston provides a range of reproductive health services, including medication and procedural abortions. PP Houston sues on behalf of itself, its staff, physicians, nurses, and patients. 14. Plaintiff Planned Parenthood of Greater Texas Surgical Health Services ("PPGT Surgical Health Services") is a Texas not-for-profit corporation, headquartered in Dallas. PPGT Surgical Health Services and its predecessor organizations have provided high-quality reproductive health care in Texas for decades. PPGT Surgical Health Services operates licensed ambulatory surgical centers in Austin, Dallas, and Fort Worth, and licensed abortion facilities in Waco and Austin. PPGT Surgical Health Services provides a range of reproductive health services, including medication and procedural abortions. PPGT Surgical Health Services sues on behalf of itself, its staff, physicians, nurses, and patients.

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 6 of 30
15. Plaintiff Planned Parenthood South Texas Surgical Center ("PPST Surgical Center"), a not-for-profit corporation headquartered in San Antonio, operates a licensed ambulatory surgical center and a licensed abortion facility in San Antonio. PPST Surgical Center provides a range of reproductive health services, including medication and procedural abortions. PPST Surgical Center sues on behalf of itself, its staff, physicians, nurses, and patients.
16. Plaintiff Whole Woman's Health operates licensed abortion facilities in Fort Worth and McAllen. Whole Woman's Health provides a range of reproductive health services, including medication and procedural abortions. Whole Woman's Health sues on behalf of itself, its staff, physicians, nurses, and patients.
17. Plaintiff Whole Woman's Health Alliance is a Texas not-for-profit corporation. Its mission is to provide abortion care in underserved communities and shift the stigma around abortion in our culture. It operates a licensed abortion facility in Austin that provides both medication and procedural abortions. Whole Woman's Health Alliance sues on behalf of itself, its staff, physicians, nurses, and patients.
18. Plaintiff Southwestern Women's Surgery Center ("Southwestern") operates a licensed ambulatory surgical center in Dallas. Southwestern provides a range of reproductive health services, including medication and procedural abortions. Southwestern sues on behalf of itself, its staff, physicians, nurses, and patients.
19. Plaintiff Robin Wallace, M.D. is co-medical director at Southwestern. Dr. Wallace is a board-certified family medicine physician who provides abortion care. Dr. Wallace sues on her own behalf and on behalf of her patients.

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 7 of 30
20. Plaintiff Brookside Women's Medical Center PA dlbla Brookside Women's Health Center and Austin Women's Health Center ("Austin Women's") operates a licensed abortion facility in Austin. Austin Women's provides a range of reproductive health services, including medication and procedural abortions. Austin Women's sues on behalf of itself, its staff, physicians, nurses, advanced practice registered nurses, and patients.
21. Plaintiff Houston Women's Clinic operates a licensed abortion facility in Houston. Houston Women's Clinic provides a range of reproductive health services, including medication and procedural abortions. Houston Women's Clinic sues on behalf of itself, its staff, and its patients.
22. Plaintiff Alamo City Surgery Center PLLC d/b/a Alamo Women's Reproductive Services ("Alamo") operates a licensed ambulatory surgical center in San Antonio. Alamo provides a range of reproductive health services, including medication and procedural abortions. Alamo sues on behalf of itself, its staff, and its patients.
23. Plaintiff Houston Women's Reproductive Services ("HWRS") operates a licensed abortion facility in Houston. HWRS provides medication abortion services. HWRS sues on behalf of itself its staff, and its patients.
DEFENDANTS 24. Defendant Greg Abbott is the Governor of Texas and the author of the Executive Order, which he issued pursuant to his emergency authority.1 He is sued in his official capacity and may be served with process at 1100 San Jacinto Blvd., Austin, Texas 78701.
Tex. Gov't Code § 418.012.
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Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 8 of 30
25. Defendant Ken Paxton is the Attorney General of Texas. He is empowered to assist county and district attorneys in the prosecution of criminal offenses,2 including criminal violations of the Executive Order. He authored the challenged legal interpretation ofthe Executive Order. He
is sued in his official capacity and may be served with process at 300 West 15th Street, Austin, Texas 78701.
26. Defendant Phil Wilson is the Acting Executive Commissioner of the Texas Health and Human Services Commission ("HHSC"). HHSC is authorized to enforce violations of the
Executive Order administratively.3 As Executive Commissioner, Mr. Wilson has general
supervision and control over all matters relating to the health of the people of Texas.4 He is sued
in his official capacity and may be served with process at 4900 N. Lamar Blvd., Austin, TX 78751.
27. Defendant Stephen Brint Carlton is the Executive Director of the Texas Medical Board ("TMB"). TMB is authorized to enforce violations of the Executive Order using
administrative action against physicians and physician assistants licensed in Texas.5 TMB has implemented the Executive Order through its Emergency Rule. As Executive Director, Mr. Carlton
serves as the chief executive and administrative officer of the Board.6 He is sued in his official
capacity and may be served with process at 333 Guadalupe, Tower 3, Suite 610, Austin, TX 78701.
28. Defendant Katherine A. Thomas is the Executive Director of the Texas Board of Nursing ("TBN"). TBN is authorized to enforce violations of the Executive Order using
2 Id. § 402.028. Tex. Health & Safety Code § 243.0115, 245.012(c); 25 Tex. Admin. Code §
l35.24(a)(1)(F), 139.32(b)(6); Tex. Gov't Code § 53 1.02011(2) (transferring all "regulatory functions. . . of the Department of State Health Services" to HHSC).
Tex. Health & Safety Code Ann. § 12.00 1(a).
Tex. 0cc. Code § 164.051; 22 Tex. Admin. Code § 185.17(1 1). 6 Tex. 0cc. Code § 152.05 1.
8

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 9 of 30
administrative action against nurses licensed in Texas.7 As Executive Director, Ms. Thomas performs duties as required by Chapter 301 or designated by the board.8 She is sued in her official capacity and may be served with process at 333 Guadalupe, Suite 3-460, Austin, TX 78701-3944.
29. Defendant Margaret Moore is the District Attorney for Travis County. She is
responsible for prosecuting criminal violations of the Executive Order occurring in Travis County.
She is sued in her official capacity and may be served with process at 509 West 11th Street, Room 300, Austin, Texas 78701.
30. Defendant Joe Gonzales is the Criminal District Attorney for Bexar County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Bexar County. He is sued in his official capacity and may be served with process at 101 West Nueva Street, 4th Floor, San Antonio, Texas 78205.
31. Defendant John Creuzot is the District Attorney for Dallas County. He is responsible for prosecuting criminal violations ofthe Executive Order occurring in Dallas County. He is sued in his official capacity and may be served with process at 133 North Riverfront Boulevard, LB 19, Dallas, Texas 75207.
32. Defendant Jaime Esparza is the District Attorney for El Paso County. He is
responsible for prosecuting criminal violations of the Executive Order occurring in El Paso
County. He is sued in his official capacity and may be served with process at El Paso County Courthouse, 500 East San Antonio Avenue, Room 201, El Paso, Texas 79901.
71d. § 301.452. 81d § 301.101.

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 10 of 30
33. Defendant Kim Ogg is the Criminal District Attorney for Harris County. She is responsible for prosecuting criminal violations of the Executive Order occurring in Harris County. She is sued in her official capacity and may be served with process at 1201 Franklin Street, Suite 600, Houston, Texas 77002.
34. Defendant Ricardo Rodriguez, Jr., is the Criminal District Attorney for Hidalgo County. He is responsible for prosecuting criminal violations of the Executive Order occurring in Hidalgo County. He is sued in his official capacity and may be served with process at 100 East Cano, Edinburg, Texas 78539.
35. Defendant Barry Johnson is the Criminal District Attorney for McLennan County. He is responsible for prosecuting criminal violations of the Executive Order occurring in McLennan County. He is sued in his official capacity and may be served with process at 219 North 6th Street, Suite 200, Waco, Texas 76701.
36. Defendant Sharen Wilson is the Criminal District Attorney for Tarrant County. She
is responsible for prosecuting criminal violations of the Executive Order occurring in Tarrant
County. She is sued in her official capacity and may be served with process at the Tim Curry Criminal Justice Center, 401 West Belknap Street, Fort Worth, Texas 76196-0201.
37. Defendant Brian Middleton is the Criminal District Attorney for Fort Bend County.
He is responsible for prosecuting criminal violations ofthe Executive Order occurring in Fort Bend
County. He is sued in his official capacity and may be served with process at 1422 Eugene Heimann Circle, Suite 21004, Richmond, TX 77469.
FACTUAL ALLEGATIONS A. Abortion Generally and As Provided in Texas
10

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 11 of 30
38. Pregnancy is commonly measured from the first day of the pregnant person's last menstrual period ("LMP"). A full-term pregnancy has a duration of approximately forty weeks LMP. In Texas, abortion is almost entirely banned about halfway through pregnancy, at twentytwo weeks LMP.
39. Up to ten weeks LMP, patients wishing to terminate their pregnancy can choose between medication abortion (where the patient takes pills to end and expel the pregnancy) and abortion by procedure or "procedural abortion," as it is commonly called (where a clinician uses gentle suction, sometimes along with instruments, to empty the patient's uterus). After ten weeks LMP, only procedural abortion is available in Texas.
40. Medication abortion involves the patient ingesting a combination of two pills:
mifepristone and misoprostol. The patient takes the first medication, mifepristone, in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication,
misoprostol, at a location of their choosing, most often at home, after which they expel the
pregnancy in a manner similar to a miscarriage. While medication abortion is safe and effective up to eleven weeks LMP, Texas law prohibits medication abortion after ten weeks LMP.9
41. Despite sometimes being referred to as "surgical abortion," procedural abortion is not what is commonly understood to be "surgery," as it involves no incisions and no need for general anesthesia. In a procedural abortion, the clinician uses gentle suction from a thin, flexible tube to empty the contents of the patient's uterus. Before inserting the tube through the patient's cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, expandable rods. Beginning around fifteen weeks LMP, clinicians generally must use instruments
See Tex. Health & Safety Code § 171 .063(a)(2).
11

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 12 of 30

to complete the procedure, a technique called dilation and evacuation ("D&E"). Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself.
42. Both medication abortion and procedural abortion are effective in terminating a pregnancy. For some patients, however, one method is medically indicated over the other. For
example, a patient may be allergic to one of the medications used in medication abortion, or may have medical conditions that make procedural abortion relatively more safe.'° According to the latest data from the Texas Department of Health and Human Services, in 2017, more than 68 percent of all abortions in the state were procedural abortions."
43. Legal abortion is one of the safest medical procedures in the United States.'2 The vast majority of abortions in the United States are provided in an outpatient setting. In comparison, more than ninety-eight percent of births in the United States take place in a hospital.'3
Complications from both medication and procedural abortion are rare, and when they occur, they
can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complicationsdefined as complications requiring hospital admission, surgery, or blood transfusionoccur in less than one-quarter of one percent (0.23%) of abortion cases: specifically, such complications arise in just 0.3 1% of medication abortion cases, 0.16% of

'°Nat'l Acads. of Scis. Eng'g & Med., The Safety & Quality ofAbortion Care in the United

States 8 (2018) ("Few women are medically ineligible for abortion. There are, however, specific

contrain"dicTaetxio.nHs teoaluthsin&g

mifepristone for Human Servs.,

a medication abortion or induction."). 2017 Induced Terminations of Pregnancy

by

Post-

Fertilization Age and Procedure (2018), https://hhs.texas.gov/about-hhs/records-statistics/

data-statistics/itop-statistics. The remaining 0.1% of abortions before eleven weeks LMP had a

reported method of "other/not stated."

12 Nat'! Acads., supra note 10 at 77-78, 162-63. ' Marian F. MacDorman et al., Nat'l Ctr, for Health Statistics, NCHS Data Brief No. 144:

Trends in Out-of-Hospital Births in the United States, 1990-2012 (2014),

https://www.cdc.gov/nchs/products/databriefs/db 1 44.htm.

12

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 13 of 30
first-trimester procedural abortion cases, and 0.4 1% of procedural cases in the second trimester or later.'4 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits
in the United States.'5 44. Indeed, both medication abortion and procedural abortion are substantially safer
than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is
approximately fourteen times higher than that associated with abortion,'6 and complications such as hemorrhage are far more likely to occur with childbirth than following an abortion.
45. Even with an uncomplicated pregnancy in an otherwise healthy individual, carrying a pregnancy to term and giving birth poses serious medical risks and can have long-term medical and physical consequences. For a person with a medical condition caused or exacerbated by
pregnancy or for a person who receives a diagnosis of a severe or lethal fetal anomaly, these risks
are increased.
46. People decide to end a pregnancy for a variety of reasons, including familial,
medical, financial, and personal reasons. Some people end a pregnancy because they conclude it is not the right time in their lives to have a child; some do so because they already have one or more children and decide they cannot add to their families; some do so to preserve their life, health,
or safety; some do so because they receive a diagnosis of a fetal anomaly; some do so because they have become pregnant as a result of rape or incest; and some do so because they choose not to
14 Ushma D. Upadhyay et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecology 175 (2015).
15 Ushma D. Upadhyay et al., Abortion-related Emergency Room Visits in the United States: An Analysis ofa National Emergency Room Sample, 16(1) BMC Med. 1, 1 (2018).
16 Nat'l Acads., supra note 10 at 11, 74-75.
13

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 14 of 30
have biological children. Approximately one in four women in this country will have an abortion by age forty-five.
47. Plaintiffs provide medication abortion, procedural abortion, or both medication and procedural abortion. Plaintiffs provide medication abortion up to ten weeks LMP. Plaintiffs provide procedural abortion to varying gestational points in pregnancy within the bounds of Texas law, which prohibits abortion care except in narrow circumstances at or after twenty-two weeks
LMP.'7
B. The COVID-19 Pandemic 45. Since first identified in December 2019,18 COVID-19 has grown to a worldwide
pandemic. The disease has spread to 195 countries, infecting hundreds of thousands of people and
killing more than 16,000.19 In the United States, the virus has reached every state, including nearly
1,000 confirmed cases and twelve deaths in Texas as of the time of filing.20 Federal and state officials and medical professionals expect a surge of infectionswhich may last for a year or

17

Health & Safety Code section 17 1.044 prohibits abortion when "the probable post-

fertilization age of the unborn child is 20 or more weeks." "Post-fertilization age" means 'the age

of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum,"

id. § 171.042, which occurs approximately two weeks after the first day of a patient's last

menstrual period. Thus, twenty weeks post-fertilization is twenty-two weeks LMP.

18 Derrick Bryson Taylor, A Time/me of the Coronavirus Pandemic, N.Y. Times (updated

Mar. 24, 2020), https://www.nytimes.com/article/coronavirus-timeline.html.

19 World Health Org., Coronavirus Disease (COVID-19) Pandemic,

https ://www.who.intlemergencies/diseases/novel-coronavirus-20 19 (last viewed Mar. 24, 2020).

20 Tex. Dep't of State Health Servs., Texas Case Counts: COVID-19 (last updated Mar. 24,

2020), https ://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab0 I

e8b9cafc8b83.

14

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 15 of 30

1to eighteen months2

test the limits of the healthcare system.22 Healthcare workers are facing a

shortage of certain types of PPE, particularly N95 masks.23

46. On March 13, 2020, the White House issued a proclamation declaring that the

COVID- 19 outbreak in the United States constitutes a national emergency. That same day,

Governor Abbott issued a disaster declaration certifying that COVID-19 poses an imminent threat

of disaster for all counties in Texas.

47. On March 18, 2020, a group of preeminent national medical organizations issued a

joint statement on "Abortion Access During the COVTD- 19 Outbreak."24 That guidance instructs

that "[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing

procedures that can be delayed during the COVID-19 pandemic, abortion should not be

categorized as such a procedure" because it "is an essential component of comprehensive health

care" and "a time-sensitive service for which a delay of several weeks, or in some cases days, may

increase the risks [to patients] or potentially make it completely inaccessible."

21 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y.
Times (Mar. 8, 2020), https ://www.nytimes.com/2020/03/08/healthlfauci-coronavirus.html.
22 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities: Preparingfor Community Transmission ofCOVJD-19 in the United States, (last updated Feb. 29,
2020), https://www.cdc.gov/coronavirus/20 I 9-ncov/healthcare-facilities/guidance-hcf.html 23 Andrew Jacobs, Matt Richtel & Mike Baker, 'At War With No Ammo': Doctors Say
Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/
2020/03/1 9/health/coronavirus-masks-shortage.html. 24 The medical organizations issuing this joint guidance were ACOG, the American Board
of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the
American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine,
the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family
Planning, and the Society for Maternal-Fetal Medicine.
15

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 16 of 30
48. On March 19, 2020, the Texas Department of State Health Services ("DSHS") determined that COVID- 19 constitutes a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code.
49. On March 21, 2020, the Texas Medical Board ("TMB") issued guidance to its
licenseesall physicians licensed in the state of Texasregarding the scheduling of elective
surgeries and procedures in light of Governor Abbott's COVID-19 disaster declaration. Consistent with guidance from the Centers for Disease Control and Prevention ("CDC"), TMB recommended that licensees "postpone all non-urgent elective surgeries and procedures in inpatient and outpatient settings."25 TMB explained that postponing non-urgent elective cases would preserve PPE, ventilator availability, ICU beds, and "significant healthcare practitioner time."
50. As further guidance, TMB clarified that "elective, non-urgent cases" are cases where "there is no anticipated short-term nor long-term negative impact because of delaying a procedure or surgery," such as "screening for a chronic condition or most cosmetic procedures." By contrast, TMB defined "urgent or elective urgent" procedures as those where "there is a risk of patient deterioration or disease progression likely to occur if the procedure is not undertaken or is significantly delayed." Significantly, TMB stressed that for these cases, "[t]he resulting decline in [the patient's] health could make them more vulnerable to COVID-19 and other issues." TMB categorized as "emergent" those cases where the patient would suffer a life-threatening condition

25Tex Med. Bd., Texas Medical Board (TMB) Guidance on the Scheduling of Non-Urgent

Elective Surgeries and Procedures During Texas Disaster Declaration for COVID- 19 Pandemic

(Mar.

21,

2020),

available

at http ://www.tmb.state.tx.us/idl/05 863196-

2EC6-BEOE-3036-9 I 0D363B6C25.

16

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 17 of 30
if the procedure were not undertaken or cases that cannot be safely delayed for any significant period of time.
51. Plaintiffs are committed to responding to the current public health crisis, including by preserving much-needed medical resources that are in short supply during the pandemic. Since
the onset of the COVID- 19 outbreak Plaintiffs have taken precautions to maximize the safety of their patients and staff and to conserve PPE. For example, they have begun screening patients for
COVID- 19 symptoms before each visit. They have reduced patient volume and/or increased appointment spacing between patients to comply with social-distancing precautions. They have begun requiring patients to wait in their cars rather than in the waiting room after checking in for an appointment. They have postponed or cancelled non-essential procedures that require health care staff to use PPE, such as masks. For procedural abortions and other essential medical procedures, they have reduced use of PPE as much as possible.
52. Plaintiffs do not provide inpatient care and are not equipped to do so.
53. Abortion does not require extensive use of PPE. Providing patients with pills for medication abortion does not require the use of any PPE.
54. While clinicians use some PPE for procedural abortionsuch as gloves, a surgical mask, and protective eyewearonly a small number of health care staff are physically present for these procedures or their preparation/recovery and therefore in need of PPE. Plaintiffs generally
do not use N95 respirators, the PPE in shortest supply during the COVID- 19 pandemic, and only do so to protect patients and staff from potential COVID-l9 transmission. In Plaintiffs'
17

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 18 of 30
communities there does not appear to be a shortage of the non-sterile gloves Plaintiffs use for
procedural abortions and exams.26
55. The COVID-19 pandemic and its fallout do not reduce patients' needs for abortion;
if anything, they make timely access to abortion even more urgent, while raising additional
obstacles for patients seeking that care.
56. While much is unknown about COVID-19, including whether it can complicate
pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to
additional health risks from the disease. ACOG has warned that "pregnant women are known to
be at greater risk of severe morbidity and mortality from other respiratory infections such as
influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population
for COVID-19."27
57. Meanwhile, Texas legal restrictions on abortion, which are some of the harshest in
the country, impose burdens that weigh even more heavily during the current pandemic and that
also undermine Defendants' stated goal of preserving PPE. For example, Texas law requires most
patients to make at least two in-person appointments for an abortion, even though most patients
26 U.S. Food & Drug Admin., Medical Glove Conservation Strategies: Letter to Health Care Providers (last updated Mar. 20, 2020), available at https://www.fda.gov/medicaldevices/letters-health-care-providers/medical-glove-conservation-strategies-letter-health-careproviders (referring to a potential shortage but that the FDA is monitoring for any widespread shortages); U.S. Food & Drug Admin., FAQs on Shortages of Medical Gloves (last updated Mar. 20, 2020), available at https://www.fda.gov/medical-devices/personal-protective-equipment-
infection-control/faqs-shortages-medical-gloves (not noting a shortage of medical gloves at this
time, but acknowledging demand could exceed supply, which the FDA is monitoring). 27 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020),
https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novel-
coronavirus-20 19; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (Mar. 16, 2020),
https://www.cdc.gov/coronavirus/20 1 9-ncov/hcp/pregnant-women-faq.html.
18

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 19 of 30
could obtain care just as safely in one visit.28 Texas law also mandates medically unnecessary
ultrasounds,29 as well as in-person follow-up visits that could safely be provided through
telemedicine.3° Texas law unnecessarily restricts medication abortion to ten weeks when it can
safely be provided through eleven weeks, thereby eliminating an evidence-based method to reduce
the need for abortion by procedure.31 And minor patients, unless emancipated, must obtain either
written consent from a parent or a judicial order before they can receive care.32 During the COVID-
19 pandemic, patients must navigate these barriers against the backdrop ofjob insecurity, minimal
public transit availability, and limited childcare assistance due to mandatory social-distancing and
shelter-in-place orders.
58. In addition to all other harms, the pandemic has caused layoffs and other work
disruptions, and has shuttered schools and childcare facilities. Unemployment claims are soaring.33
28 Tex. Health & Safety Code § 171.012 (mandating that patients receive an ultrasound at least twenty-four hours before an abortion procedure).
29
30 Tex. Health & Safety Code § 171.063(e); 25 Tex. Admin Code § 139.53(b)(4). Indeed, to respond to the pandemic, the state has suspended restrictions on telemedicine generally, 28 Tex. Admin. Code § 35.1 (emergency regulation adopted Mar. 17, 2020); Tex. Med. Bd., Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Telemedicine During Texas Disaster Declaration for COVID- 19 Pandemic (Mar. 19, 2020), http://www.tmb.state.tx.us/ idl/A2936385-466D- 1 5D 1 -OF9E-F486D049 I A27, and could suspend the existing restrictions barring Plaintiffs from using telemedicine to provide medication abortion and post-abortion
follow-up care. Tex. 0cc. Code § 111.005(c); Tex. Health & Safety Code § 171.063(e); 25 Tex.
Admin Code § 139.53(b)(4). 31 Tex. Health & Safety Code § 171.063(a)(2) 32 Tex. Family Code § 33.003. Chris Costa, Texas Workforce Commission encourages employers to use 'Shared Work'
program instead of layoffs due to COVID-19, KHOU.com (last updated March 22, 2020), https://www.khou.com/article/news/health/coronavirus/texas-workforce-commissionencourages-employers-to-use-shared-work-program-instead-of-layoffs-due-to-covid- 19/285cdd5527b-7764-4806-af5d-9509f66Oefd ("The Texas Workforce Commission was overwhelmed by thousands of Texans are applying for unemployment benefits because of layoffs and reduced hours due to C OVID- 19.").
19

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 20 of 30
People who receive health insurance through their employers are being laid off and left without insurance coverage for themselves and their families. Other workers are remaining on the job despite symptoms and increasingly dire public health warnings, fearing the loss of work even more than the disease.
59. As trusted healthcare providers, Plaintiffs understand their responsibility to be there when their patients need them most.
C. The Governor's and Attorney General's Threats to Abortion Access
60. On March 22, 2020, Governor Abbott issued Executive Order GA 09, barring "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." The Order states that it is responding to the fact that "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," and
it 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." See Ex. B. 61. Although the order does not define "personal protective equipment," Plaintiffs
understand that term to refer to, for example, surgical masks, sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. Plaintiffs also understand that term to refer to N95 respirators.
20

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 21 of 30
62. Failure to comply with the Executive Order is a criminal offense punishable by a
fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. See Ex.
B. These criminal penalties may in turn trigger administrative enforcement by the Texas Health
and Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing,
which are authorized to pursue disciplinary action against licensees who violate criminal laws.34 63. To implement the Executive Order, Plaintiffs promptly developed internal policies
identifying the relevant factors physicians must consider when making a determination whether a procedure would be permissible under the Order. Those considerations included not only the text
of the Order itself, but also the guidance of trusted national medical organizations, which highlight
that abortion is a time-sensitive procedure for which delay would cause harm to the patient. 64. On March 23, 2020, the Texas Attorney General issued a press release titled
"Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 Pandemic." This press release singled out abortion providers multiple times. It suggested that the Attorney General interprets the Executive Order, contrary to its plain language, as prohibiting the
provision of non-emergency abortions and warned that "[t]hose who violate the governor's order will be met with the full force of the law." See Ex. A.
65. Because medication abortion involves only taking medications by mouth it is not a "surgery" or 'procedure" that falls within the terms of the Executive Order. However, by stating that the Executive Order applies to "any type of abortion," the Attorney General's news release
25 Tex. Admin. Code § 139.32(b)(6); 25 Tex. Admin. Code § 135.24(a)(1)(F); Tex. 0cc. Code § 164.05 1(a)(2)(B), (a)(6); 22 Tex. Admin. Code § 185.17(11); Tex. 0cc. Code Ann. §
301 .452(b)(3), (B)(10).
21

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 22 of 30
suggests that the Attorney General interprets the Executive Order contrary to its plain language as prohibiting medication abortion. See id. (emphasis added).
66. On March 24, 2020, the TMB adopted an emergency rule to enforce the Executive Order. Under preexisting law, the TMB can temporarily suspend or restrict a physician's license if the physician's "continuation in practice would constitute a continuing threat to the public welfare."35 The Emergency Rule expands this basis for discipline to include "performance of a non-urgent elective surgery or procedure," and incorporates the terms of the Executive Order, requiring all licensed health care professionals to postpone all surgeries and procedures that are not immediately necessary.36
67. If the Executive Order is enforced, as interpreted by the Attorney General (contrary to its plain language), to apply to both procedural abortion and medication abortion, it effectively bans abortion in Texas for the duration of the COVID-19 public health emergency. Given the enforcement threat sparked by the Attorney General's press release and the criminal and other penalties specified in the Executive Order, Plaintiffs, their physicians, nurses, and staff have been and will continue to be forced to cancel scheduled appointments. They must stop providing all non-emergency abortion care that uses PPE or subject themselves to risk of criminal prosecution
or other penalties.
68. If the Executive Order is understood (consistent with its plain language) as not
applying to medication abortion, which is provided through medications by mouth and not a
"procedure," it will still effectively outlaw abortion after ten weeks of pregnancy. This
22 Tex. Admin. Code § 187.57(b). 3622 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020), available at https://tinyurl.com/v4pz99u.
22

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 23 of 30
interpretation of the Executive Order, allowing medication abortion but not procedural abortion,
still operates as a ban for those patients who would otherwise obtain a procedural abortionthat
is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate.
69. Under either interpretation, the Executive Order will deprive Plaintiffs' patients of the freedom to make a very personal decision in consultation with their medical providers, which is all the more weighty given the increased health risks to pregnant persons during the COVID-19 pandemic. It will harm patients' physical, emotional, and financial wellbeing and the wellbeing of their families. Patients' abortions will be delayed, and in some cases, denied altogether. As a result, Texas patients will be forced to carry pregnancies to term, resulting in a deprivation of their fundamental right to determine when and whether to have a child or to add to their existing families.
70. If a person is forced to continue a pregnancy against their will, particularly during a global pandemic, it can pose a risk to their physical, mental, and emotional health, as well as to the stability and wellbeing of their family, including their existing children. Pregnancy, childbirth,
and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence. And research has found that women denied an abortion were four times more likely than women who received an abortion to experience economic hardship and insecurity lasting for years, with serious consequences for those women
and their families. As a result of the COVID-19 pandemic, unemployment rates are soaring,
meaning that families are losing not only their income but in many cases their employer-provided
23

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 24 of 30
health insurance; the medical and economic hardships of pregnancy and childrearing, for many
families, is thus more acute now than ever. 71. Delaying abortion poses risks to patients, too. Although abortion is significantly
safer than continuing pregnancy through childbirth, the risks associated with abortion increase as pregnancy advances. And carrying an unwanted pregnancy burdens patients physically, emotionally, psychologically, and financially. Finally, in Texas, as in many other states, legal
restrictions make abortion harder to access with each passing weekand almost entirely unlawful
at or after twenty-two weeks LMP. As ACOG and other well-respected medical professional
organizations have observed, abortion is "a time-sensitive service for which a delay of several
weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible."37 For these reasons, abortion is an especially urgent medical treatment during the COVID- 19 pandemic.
72. Patients generally seek abortion as soon as they are able, but many face financial and logistical obstacles that can delay their access to abortion. For example, low-wage workers
often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time offwork. Many patients must also arrange and pay for childcare while they travel to their abortion
appointment. These barriers routinely delay abortion access for people with low incomes, including delay past the point in pregnancy when medication abortion is no longer available, and
37ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion -access-during-the-covid- 19-outbreak.
24

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 25 of 30
for some, to the point that a more complex, two-day procedure is required. Although abortion is safe throughout pregnancy, the risk, complexity, duration, and thus cost increase as pregnancy progresses. As a result, patients who are delayed in obtaining care as they save money for the procedure may find that even more money is needed for the delayed procedure, necessitating even more delay.
73. The Executive Order will remain in force until April 21, 2020, at the earliest. It is
subject to extension for the duration of the coronavirus pandemic, which experts believe will last at least one year to eighteen months, if not more.38 The current shortage of PPE is expected to continue for months.39 As a result, the Attorney General's interpretation of the Executive Order
threatens to ban abortion for all Texans who are currently pregnant or who will become pregnant in the coming months.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 74. Plaintiffs reallege and incorporate by reference the allegations contained above. 75. By banning all non-emergency abortion prior to viability, or alternatively by banning non-emergency abortion after ten weeks of pregnancy and allowing no exception for
patients prior to ten weeks of pregnancy for whom medication abortion is contraindicated, the
Executive Order and corresponding Attorney General interpretation and the Emergency Rule, as applied to abortion, violate the right to substantive due process.
38 See Grady, supra note 21. Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective
Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/201 9ncov/hcp/healthcare-supply-ppe.html
25

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 26 of 30
76. Unless enjoined, the Executive Order and corresponding Attorney General interpretation and the Emergency Rule will subject Plaintiffs' patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
COUNT 2 (Equal Protection) 77. Plaintiffs reallege and incorporate by reference the allegations contained above. 78. By selectively burdening patients' fundamental right to abortion without justification and singling abortion providers and their patients out for differential treatment from
providers of other medical services and their patients, the Executive Order and corresponding
Attorney General interpretation and the Emergency Rule, as enforced, violate Texans' right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution.
79. Unless enjoined, the Executive Order and corresponding Attorney General interpretation and the Emergency Rule will subject Plaintiffs and their patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order, followed by a preliminary injunction, and ultimately a permanent injunction, restraining Defendants, their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them,
26

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 27 of 30
from enforcing or complying with the Executive Order and corresponding Attorney General
interpretation and the Emergency Rule, as applied to abortion;
B. To enter ajudgment declaring that the Executive Order and corresponding Attorney
General interpretation and Emergency Rule, as applied to abortion, violate the Fourteenth
Amendment to the U.S. Constitution;
C. To award Plaintiffs their attorneys' fees and costs pursuant to 42 U.S.C. § 1988,
and
D. To grant such other and further relief as the Court deems just and proper.
Dated: April 17, 2020
Respectfully submitted,
Is! Patrick J. O'Connell Patrick J. O'Connell Texas Bar No. 15179900 Law Offices of Patrick J. O'Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for Plaint ffs
Julie Murray* Hannah Swanson* PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800
ju1ie.murrayppfa.org hannah.swansonppfa.org
Jennifer Sandman*
27

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 28 of 30
PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for
Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
Molly Duane* Rabia Muqaddam* Francesca Cocuzza* CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Attorneys for Plaint ffs Southwestern Women 's
Surgery Center, Brookside Women 's Medical Center PA d/b/a Brookside Women 's Health Center and Austin Women 's Health Center, Robin Wallace, MD., Alamo City Surgery Center PLLC d/b/a Alamo Women 's Reproductive Services, and Houston Women 's Reproductive Services
Stephanie Toti Rupali Sharma* Sneha Shah* LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083
stotilawyeringproject.org rsharma@lawyeringproject.org sshahlawyeringproject.org
Attorneys for Plaintiffs Whole Woman 's Health and
Whole Woman 's Health Alliance
28

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 29 of 30
Anjali Salvador, TX Bar No. 24110324* Andre Segura, TX Bar No. 24107112* ACLU FOUNDATION OF TEXAS, INC. 5225 Katy Freeway, Suite 350 Houston, TX 77007 Tel. (713) 942-8146 Fax: (713) 942-8966
asalvadoraclutx.org
asegura@aclutx.org Brigitte Amiri* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 Fax: (212) 549-2652 bamiri@aclu.org
Attorneysfor PlaintiffHouston Women 's Clinic *admitted pro hac vice
29

Case 1:20-cv-00323-LY Document 86 Filed 04/17/20 Page 30 of 30

CERTIFICATE OF SERVICE

I certify that on this 17th day of April, 2020, a copy of the foregoing was filed with

this Court's CMIECF system, which will serve a copy on the following individuals:

Heather Gebelin Hacker Andrew Bowman Stephens Benjamin S. Walton
Office of the Attorney General of Texas
209 W. 14th Street 7th Floor Austin, TX 78701 512-836-2540 512-474-2697 (fax) heather.hacker(doag.texas.gov andrew.stephensoag.texas.gov benjarnin.walton(doag.texas.gov
John J. Butrus, Jr. Dallas County District Attorney's Office 133 N. Riverfront Blvd LB 19 Dallas, TX 75207 (214) 653-3691 (214) 653-2899 (fax) john .butrusàdalIascountv.org

David S. Lill Lill Firm, P.C. 4407 Bee Caves Road Suite 111 Building I Austin, TX 78746 (512) 330 0252 844 402 9814 (fax) da'id(2i)jillfirm.com
Elizabeth Murrill
Louisiana Dept. of Justice 1885 North Third Street Baton Rouge, LA 70804 225-456-7544
murri ile(2iag.loui siana.gov

Justin C. Pfeiffer Fort Bend County Attorney's Office 401 Jackson Street Third Floor Richmond, TX 77469 (281) 341-4555 281-341-4557 (fax) justin.pfeifferfortbendcountvtx.gov

/s/ Patrick 1 O'Connell Patrick J. O'Connell

30

 
 Case: 20-50296 Document: 00515388772 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 1 of 70

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 20-50296 _______________________

United States Court of Appeals Fifth Circuit
FILED
April 20, 2020

D.C. Docket No. 1:20-CV-323

Lyle W. Cayce Clerk

In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Petitioners
Appeal from the United States District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
J U D G M E N T
This cause was considered on the petition for writ of mandamus.
It is ordered and adjudged that the petition is granted in part and denied in part.

Certified as a true copy and issued as the mandate on Apr 20, 2020 Attest:
Clerk, U.S. Court of Appeals, Fifth Circuit

Case: 20-50296 Document: 00515388773 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 2 of 70

REVISED April 20, 2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 20-50296

April 20, 2020 Lyle W. Cayce

Clerk

In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,

Petitioners

Petition for Writ of Mandamus to the United States District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges. JENNIFER WALKER ELROD and STUART KYLE DUNCAN, Circuit Judges:
On April 7, 2020, we issued a writ of mandamus vacating the district court’s temporary restraining order (“TRO”)1 that exempted abortions from GA-09, an emergency measure temporarily postponing non-essential medical procedures during the COVID-19 pandemic. In re Abbott, --- F.3d ---, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) (Abbott II). Two days later, on April 9, the district court entered a second TRO, exempting various categories of abortion
1 See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020) (Abbott I).

Case: 20-50296 Document: 00515388773 Page: 2 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 3 of 70
No. 20-50296 from GA-09. See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV323, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) (Abbott III). A flurry of litigation ensued, during which state officials again sought mandamus and we administratively stayed parts of the April 9 TRO.2 Over this period—from April 7 to 20—Texas COVID-19 cases, hospitalizations, and deaths more than doubled.3
We now consider the mandamus petition directed to the April 9 TRO. We are persuaded by Petitioners’ arguments that the district court, in the April 9 TRO, disregarded our mandate in Abbott II. The court again “fail[ed] to apply . . . the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).” Abbott II, 2020 WL 1685929, at *5. Moreover, the court again second-guessed the basic mitigation strategy underlying GA-09 (that is, the concept of “flattening the curve”), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. Those errors led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures “during the escalating COVID-19 pandemic.” Id. at *1.
Once again, the dissenting opinion accuses the majority of treating abortion differently and once again it is wrong. At issue is whether abortion can be treated the same as other procedures under GA-09. It is the district
2 See In re Abbott, No. 20-50296, 2020 WL 1844644 (5th Cir. Apr. 10, 2020) (administratively staying TRO in part) (Abbott IV); In re Abbott, 2020 WL 1866010 (5th Cir. Apr. 13, 2020) (denying stay in part and lifting administrative stay in part) (Abbott V).
3 See Tex. Dep’t of State Health Servs., Texas Case Counts COVID-19, https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9 cafc8b83 (last visited Apr. 20, 2020).
2

Case: 20-50296 Document: 00515388773 Page: 3 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 4 of 70
No. 20-50296 court that treated abortion differently, issuing back-to-back TROs that did not follow the law.
We therefore grant the writ in part and direct the district court to vacate these parts of the April 9 TRO:
• That part restraining enforcement of GA-09 as a “categorical ban on all abortions provided by Plaintiffs.”
• That part restraining the Governor of Texas and the Attorney General. • That part restraining enforcement of GA-09 as to medication abortions. • That part restraining enforcement of GA-09 as to patients who would
reach 18 weeks 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.”
I. We summarize the pertinent background, which we have chronicled in greater detail elsewhere. See Abbott II, 2020 WL 1685929, at *1–4; Abbott IV, 2020 WL 1844644, at *1–2. GA-09 is an emergency public health measure, issued by the Governor of Texas on March 22, 2020, that postpones nonessential surgeries and procedures until April 22 to combat the COVID-19 pandemic. It applies to all licensed healthcare providers in Texas, covers a broad range of procedures, does not mention abortion, and contains life-and-
4 That is, eighteen weeks after the first day of a pregnant woman’s last menstrual period.
3

Case: 20-50296 Document: 00515388773 Page: 4 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 5 of 70
No. 20-50296
health exceptions committed to a physician’s judgment. Specifically, GA-09
requires healthcare professionals and facilities 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 immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.5
The order does not apply to procedures that, if performed under accepted
standards, “would not deplete the hospital capacity or the personal protective
equipment [“PPE”] needed to cope with the COVID-19 disaster.”6 GA-09 is
enforceable by criminal and administrative penalties and expires at 11:59 p.m.
on April 21, 2020.7 See Abbott II, 2020 WL 1685929, at *2–4 & nn.10–12.
When ordering vacatur of the first TRO, we explained that Respondents’
challenge to GA-09 must satisfy the standards in Jacobson v. Massachusetts,
197 U.S. 11 (1905). Specifically, we held:
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however,

5

Tex.

Exec.

Order

No.

GA-09

(Mar.

22,

2020),

https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_

03-22-2020.pdf.

6 Id.

7 Id. On April 17, 2020, the Governor announced executive order GA-15, which becomes effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020. As discussed infra, GA-15 imposes similar—but not identical—requirements as those imposed by GA-09.

4

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No. 20-50296 courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30. Abbott II, 2020 WL 1685929, at *7 (cleaned up). We also articulated how the Jacobson framework works with the Casey undue-burden analysis. Id. at *11 (discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). A court should “ask[ ] whether GA-09 imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic Texas now faces.” Id. (quoting Jacobson, 197 U.S. at 31). We emphasized that this analysis would “require[ ] careful parsing of the evidence” and that “[t]hese 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 . . . in any particular circumstance.” Id. at *11–12 (cleaned up). The day following our mandamus, April 8, 2020, the district court: (1) vacated its March 30 TRO; (2) cancelled the telephonic preliminary injunction hearing previously scheduled for April 13; and (3) ordered the parties to file a joint status report by April 15 outlining a schedule for a new preliminary injunction hearing on a yet-unannounced date. That same day, Respondents filed a new TRO application supported by one new declaration. The next day, April 9, the district court convened a brief telephone conference with the parties, during which the court declined to allow Petitioners either to file a responsive pleading or submit evidence opposing the application. In doing so, the court remarked to Petitioners, “[I]f I were to make a ruling that was unsatisfactory to the State defendants before then, then you may head back to the Circuit with it.” Transcript of 4/9/20 Tele. Conf. at 14:39. Later that day, the court issued a new TRO. Abbott III, 2020 WL 1815587. Adopting Respondents’ proposed findings of fact and conclusions of law, compare id. at *1–7, with Proposed TRO, App. 445–57, this TRO restrains Petitioners from enforcing GA-09 as follows: (1) “as a categorical ban on all
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No. 20-50296 abortions provided by Plaintiffs”; (2) as to “medication abortions”; (3) as to “procedural8 abortion[s] [provided] to any patient who, based on the treating physician’s medical judgment, would be more than 18 weeks LMP on April 22, 2020, and likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care”; and (4) as to “procedural abortion[s] [provided] to any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” Abbott III, 2020 WL 1815587, at *7.
On April 10, Petitioners again requested mandamus from our court, this time seeking vacatur of the April 9 TRO. On April 10, we administratively stayed the TRO except as to women who would reach 22 weeks LMP on April 22. Abbott IV, 2020 WL 1844644. On April 13, we denied an emergency stay, and lifted the administrative stay, as to that part of the TRO applying to medication abortions. Abbott V, 2020 WL 1866010.9
On April 14, the district court set a telephonic preliminary injunction hearing for April 29. Doc. 82. The court also extended the April 9 TRO—“in its entirety under the same terms and conditions except as modified by [our
8 “Procedural” abortions, the term used by Respondents and the district court, refers to what are more commonly called “surgical” abortions. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 175 (2007) (Ginsburg, J., dissenting) (referring to “surgical abortions”) (quoting Carhart v. Ashcroft, 331 F. Supp.2d 805, 1011 (D. Neb. 2004), aff’d, 413 F.3d 791 (8th Cir. 2005)); Stenberg v. Carhart, 530 U.S. 914, 924 (2000) (citing M. Paul et al., A Clinician’s Guide to Medical and Surgical Abortion (1999)); Casey, 505 U.S. at 969 (Rehnquist, J., concurring in the judgment in part and dissenting in part) (referring to “any other surgical procedure except abortion”) (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 517 (1989) (plurality opinion)); see also, e.g., Brief for Petitioners at 33 n.64, Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006398 (referring to “induced abortion” as a “surgical procedure[ ]”).
9 It is curious that the dissenting opinion accuses the majority of altering the availability for abortion six times. In the first place, it was back-to-back TROs following a mandamus that altered abortions availability. In the second place, the dissenting judge joined the denial of the stay as to medication abortions.
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No. 20-50296 orders]”—until May 1, 2020, at 5:00 p.m. Id. The court stated there was “good
cause” for extending the TRO “so that the court and parties have adequate time to prepare for [the April 29] hearing.” Id.
On April 15, the Governor issued executive order GA-15, which becomes
effective when GA-09 expires and continues until 11:59 p.m. on May 8, 2020. GA-1510 is similar to GA-09, but has some textual differences as well as an additional exception for certain facilities.11
10 Here is the pertinent text of the two orders, with differences noted in italics: GA-09: [A]ll licensed health care professionals and all licensed health care facilities
shall postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician. GA-15: All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician[.] See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files /press/EO-GA-15_hospital_capacity_COVID-19_ TRANS_04-17-2020.pdf. Because the TRO as issue in this petition only restrains enforcement of GA-09, we express no opinion on the effect, if any, of the different language in GA-15. 11 The new exception applies to: any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both: (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID19 disaster. Id. Again, we express no opinion on the effect, if any, of this new exception on the issues in this litigation.
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No. 20-50296 II.
Federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). That includes the writ of mandamus sought by Petitioners. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004); In re Gee, 941 F.3d 153, 157 (5th Cir. 2019). Mandamus is proper only in “exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.” In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc) (quoting Cheney, 542 U.S. at 380). An “abuse of discretion” becomes a “clear abuse of discretion” when it “produce[s] a patently erroneous result.” Id. at 310. The writ has issued “where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations [and] where it was necessary to confine a lower court to the terms of an appellate tribunal’s mandate.” Will v. United States, 389 U.S. 90, 95–96 (1967) (citing Maryland v. Soper, 270 U.S. 9 (1926) (federal-state relations) and United States v. U.S. Dist. Ct., 334 U.S. 258 (1948) (effectuating appellate mandate)).
Before prescribing this strong medicine, “[w]e ask (1) whether the petitioner has demonstrated that it has no other adequate means to attain the relief it desires; (2) whether the petitioner’s right to issuance of the writ is clear and indisputable; and (3) whether we, in the exercise of our discretion, are satisfied that the writ is appropriate under the circumstances.” In re Itron, Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting Cheney, 542 U.S. at 380–81) (cleaned up). “These hurdles, however demanding, are not insuperable. They simply reserve the writ for really extraordinary causes.” Gee, 941 F.3d at 158 (cleaned up). In such cases, mandamus provides a “useful ‘safety valve[ ]’ for promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558
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No. 20-50296 U.S. 100, 111 (2009) (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994)).
As in Abbott II, we address each prong in turn, beginning with the second. Abbott II, 2020 1685929, at *5.
III. A. Failure to Narrowly Tailor April 9 TRO We first address two threshold errors in the April 9 TRO that demonstrate Petitioners’ right to the writ. Because “the scope of injunctive relief is dictated by the extent of the violation established, [t]he district court must narrowly tailor an injunction to remedy the specific action which gives rise to the order.” John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004) (cleaned up). The April 9 TRO fails this narrow tailoring requirement in two obvious ways. First, the TRO enjoins enforcement of GA-09 “as a categorical ban on all abortions provided by Plaintiffs.” Abbott III, 2020 WL 1815587, at *7. But GA09 is obviously not a “categorical ban on all abortions.” Because it expires on April 22, it is not a ban, but a generally applicable postponement of PPEconsuming surgeries and procedures. And as we have explained already, GA09 facially exempts surgeries and procedures immediately 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.” Abbott II, 2020 WL 1685929, at *3. The district court reached its overbroad construction of GA-09 by referring to the Attorney General’s “interpretation” in a “press release,” which the court maintained “has been adopted by the State Defendants.” Abbott III, 2020 WL 1815587, at *2. But Abbott II already found this chain of reasoning flawed. We found “no
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No. 20-50296 reason to believe [the] press release has the force of law,” and, in any event, the press release itself recognized GA-09 exempts abortions “medically necessary to preserve the life or health of the mother.” Abbott II, 2020 WL 1685929, at *13 n.25. The district court also cited no evidence suggesting that the “State Defendants” have adopted its overreading of GA-09.
Second, as now extended to May 1, the April 9 TRO is not “narrowly tailor[ed]” to remedy any harm caused by GA-09 because it extends beyond the expiration of GA-09. See John Doe #1, 380 F.3d at 818. By its terms, GA-09 lasts “until 11:59 p.m. on April 21, 2020.”12 After that point, there will be no “actual case or controversy” between the parties, John Doe #1, 380 F.3d at 814 (citation omitted), and no enforcement of GA-09 for a court to restrain. The fact that the Governor has since announced that a new order—GA-15—will take effect on April 22 does nothing to change this conclusion, as the extended TRO at issue here applies only to GA-09. By purporting to restrain Petitioners past the expiration date of GA-09, the district court exceeded its jurisdiction. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (a federal court’s judgment must award “specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts”) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). Likewise, “since the scope of injunctive relief is dictated by the extent of the violation established,” the relief was overbroad because no violation can occur after 11:59 p.m. on April 21. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979). We therefore conclude that Petitioners have demonstrated entitlement to the writ.

12

Tex.

Exec.

Order

No.

GA-09

(Mar.

22,

2020),

https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_

03-22-2020.pdf.

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No. 20-50296 B. Failure to Dismiss Governor and Attorney General
Under Eleventh Amendment Petitioners also argue they are entitled to mandamus relief because the district court violated the Eleventh Amendment by purporting to enjoin the Governor and Attorney General. We agree. In Abbott II, we instructed the district court to “consider whether the Eleventh Amendment requires dismissal of the Governor or Attorney General because they lack any ‘connection’ to enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908).” Abbott II, 2020 WL 1685929, at *5 n.17 (citing City of Austin v. Paxton, 943 F.3d 993, 999 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir. 2014)). The district court’s cursory analysis of this question in its April 9 TRO was wrong. Ex parte Young allows suits for injunctive or declaratory relief against state officials, provided they have sufficient “connection” to enforcing an allegedly unconstitutional law. City of Austin, 943 F.3d at 997 (citing Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013)). Otherwise, the suit is effectively against the state itself and thus barred by the Eleventh Amendment and sovereign immunity. See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Edelman v. Jordan, 415 U.S. 651, 663–69 (1974). If the official sued is not “statutorily tasked with enforcing the challenged law,” then the requisite connection is absent and “our Young analysis ends.” City of Austin, 943 F.3d at 998 (citing Morris, 739 F.3d at 746). As to the Governor, the district court reasoned he has “some connection” to GA-09 because of his “statutory authority [under] Texas Government Code § 418.012.” Abbott III, 2020 WL 1815587, at *6 (cleaned up). But the cited section empowers the Governor to “issue,” “amend,” or “rescind” executive orders, not to “enforce” them. Tex. Gov’t Code § 418.012. The power to
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No. 20-50296 promulgate law is not the power to enforce it. Cf. Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 152 (1991) (distinguishing between the Secretary of Labor’s “powers to promulgate and to enforce national health and safety standards”). The April 9 TRO addresses only “enforcing” GA-09 against plaintiffs who provide certain abortion procedures. Abbott III, 2020 WL 1815587, at *7. And we have already explained that violating GA-09 may result in “administrative or criminal penalties,” Abbott II, 2020 WL 1685929, at *3 n.12, enforced by health and law enforcement officials and not the Governor. Consequently, we hold the Governor lacks the required enforcement connection to GA-09 and may not be sued for injunctive relief under the Eleventh Amendment. See Morris, 739 F.3d at 746 (when challenged law “does not specially task [Texas] Governor . . . with its enforcement, or suggest that he will play any role at all in its enforcement,” Governor “is not a proper defendant”).
As to the Attorney General, the district court reasoned that he has “authority” to prosecute violations of GA-09 “at the request of local prosecutors,” and that he has also “publicly threatened enforcement” against abortion providers. Abbott III, 2020 WL 1815587, at *6. Neither rationale establishes the Attorney General’s “connection” to enforcing GA-09 for Ex parte Young purposes. Nothing in GA-09 tasks the Attorney General with enforcing it. Speculation that he might be asked by a local prosecutor to “assist” in enforcing GA-09, see Tex. Gov’t Code § 402.028, is inadequate to support an Ex parte Young action against the Attorney General. See City of Austin, 943 F.3d at 1000 (evidence that Attorney General “might . . . bring a proceeding to enforce” the law insufficient under Ex parte Young). Nor does a “press release” by the Attorney General, Abbott III, 2020 WL 1815587, at *2, show authority to enforce GA-09 for Ex parte Young purposes. Here, the Attorney General did not even threaten to enforce GA-09 in the disputed press release. The release
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No. 20-50296 warns that “[t]hose who violate the governor’s order will be met with the full force of the law.” App. 31. The Attorney General threatened that GA-09 would be enforced, not that he would enforce it. Moreover, our cases do not support the proposition that an official’s public statement alone establishes authority to enforce a law, or the likelihood of his doing so, for Young purposes. Cf., e.g., City of Austin, 943 F.3d at 1001 (applying Ex parte Young exception because Attorney General sent “threatening letters” to enforce DTPA and was authorized to enforce that law) (discussing NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 392–95 (5th Cir. 2015)). Consequently, we hold the Attorney General also lacks the required enforcement connection to GA-09 and may not be sued for injunctive relief under the Eleventh Amendment. See City of Austin, 943 F.3d at 1002.
Mandamus is appropriate to “control jurisdictional excesses,” Gee, 941 F.3d at 158 (citation omitted), such as allowing suits against state officials in violation of the Eleventh Amendment and sovereign immunity. See, e.g., Block v. Tex. Bd. of Law Examiners, 952 F.3d 613, 617 (5th Cir. 2020) (“Under the Eleventh Amendment, federal courts lack jurisdiction over suits against nonconsenting states.”); Sissom v. Univ. of Tex. High Sch., 927 F.3d 343, 347 (5th Cir. 2019) (“[B]ecause the Eleventh Amendment textually divests federal courts of jurisdiction over states, it is indispensable to assessing this court’s jurisdiction.”). Petitioners have demonstrated a clear and indisputable right to the writ on this ground.
C. Failure to Follow Abbott II Mandate Petitioners are also entitled to mandamus because the district court, in entering the April 9 TRO, failed to follow our mandate in Abbott II. Most obviously, we instructed the district court to analyze GA-09 under “the framework governing emergency exercises of state authority during a public health crisis, established . . . in Jacobson.” Abbott II, 2020 WL 1685929, at *5.
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No. 20-50296 We articulated the Jacobson framework, id. at *6–7, and emphasized that adhering to its narrow compass of judicial review is necessary to prevent courts from “second-guess[ing] the wisdom or efficacy” of emergency public health measures. Id. at *7. Yet the district court did not apply Jacobson: indeed, the court did not even state what Jacobson’s framework is, but instead merely cited Jacobson in passing in its conclusion. See Abbott III, 2020 WL 1815587, at *6 (stating only that applying GA-09 to certain abortion categories “violates the standards set forth in both [Casey] and [Jacobson]).” That flatly contradicted our Abbott II mandate, which left no doubt that “[o]ur overriding consideration” was that any further proceedings “adhere to the controlling standards” in Jacobson “for adjudging the validity of emergency measures like [GA-09].” Abbott II, 2020 WL 1685929, at *2.
The April 9 TRO violated the “mandate rule,” a particular manifestation of the law-of-the-case doctrine barring reexamination of issues already decided by an appellate court. See United States v. Smith, 814 F.3d 268, 273 (5th Cir. 2016). Under the mandate rule, a district court “must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). Thus, this court has held that a district court violated the mandate rule when, after an appeal, a district court modified a consent decree “without holding a hearing and demanding a more developed factual record.” League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 437–38 (5th Cir. 2012) (LULAC II). Where a district court fails to fully implement the mandate, a party may seek a writ of mandamus to enforce compliance. See Kapche v. City of San Antonio, 304 F.3d 493, 500 (5th Cir. 2002).
Our Abbott II opinion plainly expected, as a foundational premise for applying Jacobson, that the district court would allow the parties to adduce
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No. 20-50296 additional evidence about the effects of GA-09 in specific circumstances. Our opinion made this impossible to miss. For example, we said that “[t]he district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances.” Abbott II, 2020 WL 1685929, at *2 (emphases added). Following that adversarial hearing, we explained, “[t]he district court can then make targeted findings . . . about the effects of GA-09 on abortion access.” Id. (emphasis added). We said the same thing a few pages later: despite finding no evidence in the record that GA-09 violated Casey, we stated that “Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may” violate Casey “if they prove that, ‘beyond question,’ GA-09’s burdens outweigh its benefits in those situations.” Id. at *9 (first and third emphases added). Similarly, after canvassing the record, we declined to decide whether a more narrowly tailored injunction would satisfy Jacobson because “parties may pursue [those issues] at the preliminary injunction stage,” then scheduled for April 13. Id. at *12 (emphasis added). And again: in assessing whether Respondents had any evidence showing GA-09 pretextually targeted abortion, we found “no evidence . . . [on] the record before us” of pretext, but stated that “Respondents will have the opportunity . . . to present additional evidence in conjunction with the district court’s preliminary injunction hearing.” Id. at *13 (emphasis added).
To be sure, the district court could have rescheduled the preliminary injunction hearing (as it now has done, to April 29) or afforded the parties some other way of presenting new evidence on the burdens and benefits of GA-09 in specific circumstances. But our opinion left no doubt that an additional evidentiary showing was necessary to properly apply Jacobson in particular circumstances. Among other gaps in the record, for example, was evidence
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No. 20-50296 showing what PPE is being used in medication and surgical abortions during the current pandemic, or evidence showing the standard of care for those procedures during the pandemic. See infra Part III.D.1.a. Without any means of answering critical questions like those, the district court lacked any basis for finding, as Jacobson requires, that GA-09 lacks a “real or substantial relation” to the health crisis, or that “beyond all question” it “plain[ly]” violates Casey. Abbott II, 2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31).
It is no answer to say that a TRO may be based on a one-sided evidentiary record. See Fed. R. Civ. P. 65(b)(1) (allowing issuance of TRO without notice); Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965) (observing that TROs are “generally issued ex parte or after a hearing of a summary character”). Our plain instructions in Abbott II were that properly applying Jacobson to GA-09 required “additional evidence” targeted to specific circumstances. Abbott II, 2020 WL 1685929, at *13. It is also no answer to say that our decision did not tell the district court not to cancel the preliminary injunction hearing and enter a different TRO. The mandate rule requires the district court to “implement both the letter and the spirit of the appellate court’s mandate.” Lee, 358 F.3d at 321. Our decision mentioned the thenupcoming preliminary injunction hearing seven times as a forum for adducing evidence from both sides about specific applications of GA-09. See Abbott II, 2020 WL 1685929, at *2, *4 n.16, *8 n.19, *9, *11 n.24, *12, *13. The district court flouted both the letter and the spirit of our mandate by cancelling that adversarial hearing, convening a snap-TRO “hearing” at which one side was barred from offering evidence or argument, and then immediately issuing a new TRO based on evidence we had already ruled insufficient to show a violation of Jacobson and Casey. See LULAC II, 675 F.3d at 438.
The LULAC litigation provides helpful guidance. In LULAC I, this court vacated the modification of a consent decree because “the paucity of the record
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No. 20-50296 in [that] case provided an insufficient basis for the district court to determine that modification was warranted.” League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011) (LULAC I). This court instructed that on remand, “the district court should permit supplemental filings and conduct proceedings, as necessary, to develop a sufficient record.” Id. at 439–40. Yet on remand, the district court entered a new “temporary” modification of the consent decree, without “permit[ting] the parties to conduct discovery, or hold an evidentiary hearing to receive competing expert and lay testimony, or even offer [one party] a substantial opportunity to rebut the evidence that [the other parties] presented.” LULAC II, 675 F.3d at 438. The LULAC II panel vacated that new “temporary” order, holding that “[b]y approving a modification of the Consent Decree without holding a hearing and demanding a more developed factual record, the district court failed to follow the ‘letter and spirt’ of the LULAC I mandate.” Id. at 438.
So too here. After explaining that the factual record was insufficient to support the TRO in Abbott I, we instructed that after the “preliminary injunction hearing scheduled for April 13, 2020” at which the parties could “present additional evidence,” Abbott II, 2020 WL 1685929, at *13, the district court could find that GA-09 constituted an undue burden if “beyond question” the law’s burdens exceeded its benefits. Id. at *11. “The district court was required to do this analysis” the first time, we explained, and “that analysis would have required careful parsing of the evidence.” Id. Yet on remand the district court entered a second TRO “without holding a hearing and demanding a more developed factual record.” See LULAC II, 675 at 438. In doing so, “the
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No. 20-50296
district court failed to follow the ‘letter and spirit’ of the” Abbott II mandate.
See id.13
To be sure, Respondents suggest that the April 9 TRO is based on a “more
robust” record than the one on which the district court based its March 30 TRO.
But on critical points, which we analyze in more detail below, the April 9 TRO
relied on the same ten declarations already before the district court when it
issued the March 30 TRO.14 Furthermore, after the March 30 TRO issued,
Respondents filed supplemental declarations in the district court record—and
then proceeded to use those declarations to defend against mandamus in our
court.15 In granting mandamus, we reviewed the record—including those
13 There is one minor distinction between this case and LULAC. As here, after the district court entered the second “temporary” modification of the order, the intervenorappellant sought mandamus. See LULAC II, 675 F.3d at 437. Unlike here, however, the LULAC II panel denied the writ because the second order, though labeled “temporary,” was “not a temporary restraining order,” in substance, and could be appealed as a preliminary injunction. See LULAC II, 675 F.3d at 437 n.2 (citing LULAC v. City of Boerne, No. 12-50111, slip op. at 2–3). In this litigation, we held that this court lacked jurisdiction over an appeal of the extended April 9 order, concluding that it was in effect TRO. See Planned Parenthood Ctr. for Choice v. Abbott, No. 12-50314, slip op. at 2. But that is a distinction without a difference: Mandamus is an appropriate remedy for violations of the mandate rule. See Will, 389 U.S. at 96 (explaining mandamus is appropriate where “necessary to confine a lower court to the terms of an appellate tribunal’s mandate”); Kapche, 304 F.3d at 500 (“[T]he appropriate action at this point would appear to involve the issuance of a writ of mandamus, compelling the district court to comply with our prior mandate.”).
14 Compare Abbott III, 2020 WL 1815587, at *2–6 (relying, inter alia, on declarations from Barraza, Dewitt-Dick, Ferrigno, Hagstrom Miller, Klier, Lambrecht, Schutt-Aine, Wallace, Connor, and Jane Doe), with Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20cv-00323-LY (W.D. Tex.) (Dkt. Nos. 7 & 29) (Mar. 25, 2020 & Mar. 30, 2020) (listing same declarations as exhibits to TRO application).
15 Compare Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 49) (Apr. 2, 2020) (noting “supplemental filing” of declarations supporting preliminary injunction), with Abbott II, ECF 53 at 4, 6, 14, 17–21, 23 (5th Cir. Apr. 2, 2020) (No. 20-50264) (opposition to mandamus relying on supplemental declarations). Indeed, Respondents’ opposition conceded that it “cite[s] to declarations filed in the district court on April 2, 2020,” in support of its preliminary injunction motion. ECF 53 at 4 n.2 (citing Dist. Ct. Dkt. No. 49).
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No. 20-50296 supplemental affidavits—and found the record before us failed to support the conclusion that GA-09 violates Jacobson and Casey.16 The district court hardly answered Abbott II’s call for more evidence by relying on evidence we had already reviewed and found wanting. Moreover, we called for additional evidence from both sides. See Abbott II, 2020 WL 1685929, at *2 (emphasizing “all parties” would be able to “present evidence on the validity of applying GA09 in specific circumstances”). Yet the district court barred Petitioners from proffering new evidence or argument with respect to the April 9 TRO.
Mandamus is justified to correct the district court’s failure to follow our Abbott II mandate. See, e.g., Will v. United States, 389 U.S. 90, 95–96 (1967) (explaining that “the writ [of mandamus] has been invoked . . . where it was necessary to confine a lower court to the terms of an appellate tribunal’s mandate”). This is all the more vital here because the failure to follow our mandate led the district court to “embarrass the executive arm of the Government” and “intru[de] . . . on a delicate area of federal-state relations.” Cheney, 542 U.S. at 381 (cleaned up).17 Here too, Petitioners have demonstrated their clear and indisputable right to the writ.
16 See Abbott II, 2020 WL 1685929, at *9 (“[I]t cannot be maintained on the record before us that GA-09 bears ‘no real or substantial relation’ to . . . the COVID-19 pandemic.”) (quoting Jacobson, 197 U.S. at 31); id. at *11 & n.23–24 (noting conflicting evidence regarding whether abortion procedures consume PPE based on “[o]ur own review of the record”); id. at *13 (“[O]n this record, we see no evidence that GA-09 was meant to exploit the pandemic in order to ban abortion or . . . unreasonably delay abortions” (cleaned up)); id. (“Based on that record, we cannot say that GA-09 is a pretext for targeting abortion.”).
17 Curiously, and as a possible further indication that the district court failed to follow our Abbott II mandate, the April 9 TRO “incorporate[d] by reference” the conclusions of law from Abbott I that this court held were mistaken in Abbott II. See Abbott III, 2020 WL 1815587, at *7.
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No. 20-50296 D. Patently Erroneous Results and Usurpation of the State’s
Authority to Craft Emergency Health Measures Mandamus relief is also justified because the district court’s failure to follow our Abbott II mandate led to patently erroneous results and usurped the state’s authority to craft emergency public health measures. See In re JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up) (mandamus warranted where there has been a “usurpation of judicial power” or “a clear abuse of discretion that produces patently erroneous results”). We discuss these problems below, both to explain why we grant mandamus as to two of the three categories of abortion procedures restrained by the April 9 TRO, and also to provide guidance at the preliminary injunction stage. 1. The April 9 TRO Patently Erred by Exempting Medication Abortions
from GA-09 There is no constitutional right to any particular abortion procedure. Gonzales v. Carhart, 550 U.S. 124, 164–65 (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. See Abbott III, 2020 WL 1815587 at *6 (concluding, “based on the court’s findings of fact, it is beyond question that [GA-09’s] burdens outweigh the order’s benefits as applied to . . . medication abortion”). 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
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No. 20-50296 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.” Abbott II, 2020 WL 1685929, at *5 (quoting JPMorgan Chase, 916 F.3d at 500 (cleaned up)).
a. Failure to consider PPE usage and standard of care during the pandemic
As a general matter, we observe that the regulation of medication abortion in Texas differs from some other states. In Texas, “[b]efore the physician gives, sells, dispenses, administers, provides, or prescribes an abortion-inducing drug, the physician must examine the pregnant woman.” Tex. Health & Safety Code § 171.063(c). During that examination, the patient must receive an ultrasound examination. Tex. Health & Safety Code § 171.012(a)(4). The physician cannot provide the patient an abortion until the second visit. Id. And the patient must schedule a follow-up appointment to ensure the abortion is complete. Tex. Health & Safety Code § 171.063(e)-(f); 25 Tex. Admin. Code 139.53(b)(4).18
The district court found, as a matter of fact, that “[p]roviding medication abortion does not require the use of any PPE.” Abbott III, 2020 WL 1815587, at *3, ¶ 15. The pertinent question, however, is whether medication abortions require PPE during the COVID-19 pandemic. See GA-09 (stating that “a shortage of hospital capacity or [PPE] would hinder efforts to cope with the COVID-19 disaster”). Respondents submitted no evidence on that question: they neither stated what PPE they were consuming “during the COVID-19 disaster,” nor submitted evidence establishing the standard of care for
18 At the preliminary injunction stage, a relevant question is whether these acts ancillary to a medication abortion, such as the ultrasound or follow-up appointment, are to be considered when determining PPE usage.
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No. 20-50296 medication abortions during the pandemic. Scour the twenty declarations Respondents submitted to support their claim. Does any testify that during the current pandemic, abortion providers are not wearing masks? No. Nor would one expect such a statement when everyday life now presents police officers, priests, mail carriers, grocery store cashiers, gas station attendants, and retail clerks wearing them every day.19 The question, then, is not whether medication abortions consume PPE in normal times, but whether they consume PPE during a public health emergency involving a spreading contagion that places severe strains on medical resources. See Abbott II, 2020 WL 1685929, at *1. The record contains scant material to answer that question—certainly not to a degree to permit the conclusion that merely postponing medication abortions “beyond question” violates the right to abortion.
The April 9 TRO did not analyze PPE consumption for medication abortions during the COVID-19 pandemic. The district court, with one minor exception, relied exclusively on declarations that were before it when it issued the March 30 TRO. See Abbott III, 2020 WL 1815587 at *3, ¶¶ 10, 13, 15 (relying on prior declarations); but see id. ¶ 14 (relying on new declaration). In Abbott II, we explained that those declarations were “unclear” as to “how PPE is consumed in medication abortions.” See Abbott II, 2020 WL 1685929 at *11. Those declarations did not, and still do not, speak to the question of PPE usage during the present public health emergency.
19 For their part, Petitioners did submit evidence showing the standard of care may have changed and that abortion providers may be consuming more PPE because of COVID19. See, e.g., Harstad Decl. at ¶ 4, App. 230 (“Due to the current COVID-19 outbreak, the specific type of mask that is currently required is a N95 mask.”). But our point is not to weigh the evidence. Rather, the point is to demonstrate that the record before the district court does not purport to answer the pertinent question about PPE use during the pandemic.
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No. 20-50296 Moreover, there has been no consideration yet how the pandemic has affected the standard of care for abortion. No record evidence supports the contention—which provides the unstated premise of the district court’s findings—that the standard of care for medication abortion during the COVID19 is identical to the normal standard. Relatedly, the record does not establish what PPE abortion providers presently use to protect against the spread of the virus. Indeed, some record evidence indicates that reasonable abortion providers would change PPE usage during the pandemic. For instance, the state’s infectious disease expert declared that “[n]ot wearing face masks and other PPE when caring for patients who are not under investigation for COVID 19 . . . exposes health care workers to transmission of infection” from asymptomatic patients. Marier Decl. ¶ 12, App. 242. The declarations the district court cited (which are exclusively those of Respondents) consider medication abortion only during normal times. Abbott III, 2020 WL 1815587 at *3, ¶ 15. One physician describes a clinic’s PPE usage during an “average week.” Wallace Decl. ¶ 12. That says nothing about PPE usage during a pandemic. Cf. Klier Declaration ¶ 11, App. 110 (“Before the COVID-19 outbreak, Austin Women’s used no PPE for medication abortion.”) (emphasis added). And a declaration recently filed in the district court clarifies that at least one plaintiff began using surgical masks in response to COVID19. See Rosenfeld Decl. ¶ 13 (“Since the COVID-19 outbreak began, Houston Women’s Clinic has . . . provided our staff with surgical masks (not N95 respirators) . . . .”).20
20 Amici have submitted a report that one of the plaintiff clinics has been operating without sufficient PPE. See Amicus Brief of 19 States in Support of Petitioners at 16 n. 8 (citing Alex Caprariello, Planned Parenthood employees laid off, claim it’s retaliation for voicing concerns (KXAN, Apr. 10, 2020), https://www.kxan.com/news/local/austin/plannedparenthood-employees-laid-off-claim-its-retaliation-for-voicing-concerns/) (“[The former staff
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No. 20-50296 In sum, the relevant question is not what PPE is consumed during normal times but “during the COVID-19 disaster,” as GA-09 states. Cf. Abbott II, 2020 WL 1685929 at *12 (“[T]he essence of equity is the ability to craft a particular injunction meeting the exigencies of a particular situation.”). The failure even to consider that question—as well as to support its findings with record evidence—was patently erroneous.21 b. Usurping state authority to craft emergency health measures As we explained before, Jacobson prohibits courts from “usurp[ing] the state’s authority to craft measures responsive to a public health emergency.” See Abbott II, 2020 WL 1685929, at *12. Courts have no authority to ask whether a “particular method [is]—perhaps, or possibly—not the best.” Jacobson, 197 U.S. at 35. Instead, courts may ask only whether the state has acted in an “arbitrary, unreasonable manner.” Id. at 28. 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. Abbott II, 2020 WL 1685929, at *1–2. Respondents have submitted declarations of infectious disease experts who believe GA-09 is profoundly misguided. See, e.g., Bassett
member] said there is not enough PPE at the clinics, workers are being forced to do nonessential work for patients in-person and they’re not being offered paid sick leave if they come down with COVID-19 symptoms.”)). This may be relevant to assessing the benefits of GA-09 in combatting the spread of COVID-19.
21 Additionally, Respondents concede medication abortions sometimes result in hospitalization. See App. 129. The FDA label for Mifeprex states that hospitalization “related to medical abortion” occurs in up to 0.6% of cases. App. 129–30 (describing use of Mifeprex); U.S. Food & Drug Admin., Mifeprex Label 17, Table 2, https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687s020lbl.pdf. Applying this figure to Petitioners’ uncontested evidence that about 17,000 medication abortions were performed in Texas in 2017, see App. 222, medication abortions can be expected to result in slightly over 100 hospitalizations per year in Texas—or about two per week. In comparing the benefits and burdens of GA-09, the district court must weigh those hospitalizations against the delay in women obtaining a medication abortion.
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No. 20-50296 Decl. ¶ 6–8, App. 311; Sharfstein Decl. ¶ 9–12, App. 280–81. Texas authorities believe, to the contrary, that GA-09 is critical to protect the state’s citizens and has supported that view with its own medical experts. See, e.g., Marier Decl. ¶ 12, App. 242. The Supreme Court, and this court, have already explained how to resolve such an impasse: “[I]f the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities.” Abbott II, 2020 WL 1685929, at *12 (citing Jacobson, 197 U.S. at 30); cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2570 (2019) (explaining, in context of different legal standard, that “the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make”). The district court’s findings in support of the April 9 TRO failed to heed this basic constraint on judicial power.
In the April 9 TRO, as in the one before, the district court’s weighing of the public interest substituted its own opinion for the judgment of the governing authorities. What we said before applies here:
[T]he district court did little more than assert its own view of the effectiveness of GA-09. The district court did not provide any explanation of its conclusion that the public health benefits from an emergency measure like GA-09 are “outweighed” by any temporary loss of constitutional rights. Abbott II, 2020 WL 1685929 at *12 (discussing Abbott I, 2020 WL 1502102 at *3). In the April 9 TRO, the district court concluded in cursory fashion that Plaintiffs and their patients would “suffer irreparable harm” absent a TRO, that the “balance of equities favors Plaintiffs” and that a TRO “serves the public interest.” Abbott III, 2020 WL 1815587 at *6. The court added “that entry of a [TRO] to restore abortion access would serve the State’s interest in public health.” Id. We find the district court’s approach as flawed this time as the last.
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No. 20-50296 To begin with, the district court ignored the entire point of a mitigation measure like GA-09. The concept of “flattening the curve” has become all-toofamiliar during the pandemic: as applied to GA-09, it means that delaying procedures now may prevent short-term exhaustion of critical medical resources. This is one stated goal of GA-09: it does not prohibit non-essential procedures, it delays them. As its findings show, however, the district court preferred to second-guess this strategy. For instance, the district court found that delaying abortion access “will not conserve PPE or hospital resources” because women will remain pregnant and thus consume more PPE in the long run. See Abbott III, 2020 WL 1815587 at *4, ¶¶ 20–23. But that is not a policy choice federal judges are permitted to make during a public health crisis, if ever.22 Public authorities are entitled to make a different calculation to protect citizens: even if GA-09 may increase consumption of medical resources in the long run, decreasing consumption now will help weather the immediate surge of COVID-19 cases.23 Instead of re-weighing the state’s cost-benefit calculus, a federal court “must assume that, when [GA-09] was [issued], the [Governor of Texas] was not unaware of these opposing theories, and was compelled, of necessity, to choose between them.” Jacobson, 197 U.S. at 30. The district court patently erred by doing the opposite. See Jacobson, 197 U.S. at 31; Abbott II, 2020 WL 1685929, at *7. Similarly, the district court found that GA-09 did not promote the public health, in part, because some women might travel to other states to obtain
22 Likewise, the dissenting opinion misunderstands the record regarding PPE use for pregnancy during the pandemic. Tests and visits have been reduced for pregnancy just as other medical diagnosis and well visits have.
23 Nor did the district court consider that months will pass between the time when a woman can generally lawfully obtain an abortion (20-weeks gestation) and the full-term of a pregnancy (40-weeks gestation).
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No. 20-50296 abortions. See Abbott III, 2020 WL 1815587 at *5, ¶ 25. But the evidence shows, as does common sense, that an emergency measure like GA-09 weighs heavily on people suffering all kinds of health issues. One physician declares she has postponed or canceled surgeries for “patients with possible uterine cancer and cervical cancer diagnoses who are in need of surgeries, as well as patients with heavy bleeding who need surgery but where we can temporarily control the bleeding with medication.” Thompson Decl. ¶ 4, App. 235. It is possible that those patients too may travel to other states to obtain desired procedures.
Moreover, evidence that some women travel to other states to receive an abortion does not demonstrate that GA-09 increases the risk of COVID-19 transmission. Such a claim would require comparing the amount of travel that GA-09 has increased with the amount of travel it has reduced. That calculation is uncertain: One respondent provider declares that some women “come from over a hundred miles to receive care at our clinic.” Dewitt-Dick Decl. ¶ 22, App. 87. Another testifies that patients at her clinic “hail from all over Texas.” Ferrigno Decl. ¶ 30, App. 95.
A court must assume that the public health experts at the Texas Department of State Health Services—not to mention the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services— weighed these difficult trade-offs between medical care and public health. Jacobson, 197 U.S. at 30. Federal judges get no vote on the matter. As the Supreme Court instructed: “[N]o court . . . is justified in disregarding the action of the [Governor] simply because in its opinion that particular method was— perhaps, or possibly—not the best.” Jacobson, 197 U.S. at 35 (cleaned up). The district court’s disregard of that command usurped the power of the state in a public health emergency.
c. Failure to carefully parse record evidence
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No. 20-50296 The April 9 TRO also failed to “careful[ly] pars[e] the evidence,” as instructed by our previous mandate. See Abbott II, 2020 WL 1685929 at *11. For instance, the district court did not discuss, or even cite, a single declaration of submitted by Petitioners.24 It did not explain why, to take a conspicuous example, it disregarded the declaration of the state’s infectious disease expert. Nor did the district court mention the undisputed evidence that, “[i]f even one person providing care is carrying COVID-19 but not yet symptomatic, the results could be devastating if that person is not equipped with proper PPE.” Abraham Decl. ¶ 4, App. 225. The district court did not explain whether it disagreed with this statement or thought it was inapplicable to abortion providers. Nor did the district court mention record evidence indicating that N95 masks are now required for surgical abortions to be performed safely. See Harstad Decl. ¶ 4.25 We say this, not to make findings ourselves, but to show why the delicate inquiry in this case requires “careful parsing of the evidence.” Abbott II, 2020 WL 1685929 at *11. A scalpel must be employed, not a rubber stamp.
24 As a general matter, Federal Rule of Civil Procedure 52 does not require “punctilious detail [or] slavish tracing of the claims issue by issue and witness by witness.” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.1993).Certain classes of cases, however, require district courts to address contrary evidence. See, e.g., Houston v. Lafayette County, Miss., 56 F.3d 606, 612 (5th Cir.1995) (voting rights); Lopez v. Current Director, 807 F.2d 430, 434 (5th Cir.1987) (employment discrimination). Because we specifically required such an undertaking here, Abbott II, 2020 WL 1685929, at *11, the district court’s failure to do so violated the mandate rule. See LULAC, 675 F.3d at 438.
25 Consider another jarring incongruity regarding surgical abortions: Petitioners submitted a declaration from a physician stating that any physician performing a surgical abortion must use a face mask and that “[d]ue to the current COVID-19 outbreak, the specific type of mask that is currently required is a N95 mask.” Harstad Decl. at ¶ 4, App. 230. This declaration is striking, in light of the district court’s finding that “[o]nly one physician associated with Plaintiffs has used an N95 mask since the beginning of the COVID-19 pandemic, and that physician has been reusing the same mask over and over.” Abbott III, 2020 WL 1815587 at *4, ¶ 19.
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No. 20-50296 Moreover, the district court’s wholesale adoption of Respondents’ proposed findings resulted in findings that are not supported by the record. One example may suffice. The district court found that, “[a]lthough some medication abortions require a follow-up aspiration procedure, the number of those cases is exceedingly small and can generally be handled in an outpatient setting.” Abbott III, 2020 WL 1815587, at *3, ¶ 14 (citing Levison Decl. ¶ 9; Schutt-Aine Decl. ¶ 12). The Levinson paragraph cited speaks only to the frequency of hospitalization; it says nothing about how many medication abortions require follow-up aspiration. See App. 373. Nor does the cited SchuttAine paragraph provide any support for the frequency of follow-up aspiration. See App. 129. Schutt-Aine states that “[m]ajor complications—defined as complications requiring hospital admission, surgery or blood transfusion— occur in less than one-quarter of one percent (0.23%) of all abortion cases.” App. 129 (citing Ushma Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecology, 175 (2015)). But Figure 1 of the cited article clarifies that subsequent uterine aspirations (i.e., surgical abortions) were not considered “surgery” within the meaning of the article. See Upadhyay, 125 Obstetrics & Gynecology at 176. Petitioners, by contrast, submitted evidence demonstrating the rate of medication abortions resulting in incomplete abortions, which are treated either with a repeat dose of medication or aspiration.26 In our court,
26 See American College of Obstetricians and Gynecologists, Clinical Guidelines: Medical management of first-trimester abortion, 89 Contraception 148, 149 (2014), https://www.contraceptionjournal.org/article/S0010-7824(14)00026-2/pdf (estimating that 4– 8% of mifepristone-induced abortions at seven weeks gestation, and more than 15% after seven weeks gestation, result in incomplete abortions).
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No. 20-50296 Respondents contend those numbers are outdated.27 Analysis of such conflicting evidence is hard; it requires careful parsing. We reach no conclusions on the point. District courts, who can make fact findings after adversarial hearings, are better suited to the task. Here, however, the district court declined to avail itself of those tools, instead cancelling the scheduled preliminary injunction hearing and issuing a second TRO that adopted all 30 of Respondents’ proposed findings without citing or discussing a single declaration submitted by Petitioners. To be sure, a district court need not “recite every piece of evidence supporting its findings.” Schlesinger, 2 F.3d at 139. But “the record must nevertheless support the district court’s decision.” Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993). Here the record fails to do so.
The failure to parse the evidence led the district court to reach legally erroneous results in two respects. First, under Whole Woman’s Health v. Hellerstedt, to determine whether a law “unduly burdens” the abortion right, a court must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” 136 S. Ct. 2292, 2309–10, 2319 (2016). The April 9 TRO does not meaningfully weigh either one. As noted, the order does not cite or discuss a single declaration submitted by Petitioners explaining the benefits of GA-09. Nor does the order articulate the burden of a delay or why that delay should be considered a “ban” on abortion. The record belies any such notion. Medication abortion is available until 10 weeks LMP, and surgical abortion until 22 weeks LMP. Given that GA-09 had only a 30-day duration, no woman would be pushed beyond the legal limit by a 30-day delay in obtaining a medication abortion. Moreover, health risks of a delay are
27 See Opp. to Mandamus at 19 (citing U.S. Food & Drug Admin., Mifeprex 13 tbl.3 (rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687 s020lbl.pdf).
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No. 20-50296 mitigated because GA-09, by its terms, permits procedures that a patient’s physician determines are “immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death.” Abbott II, 2020 WL 1685929, at *10 (quoting GA-09). The district court factored none of this into its cursory analysis. That weighing of burdens versus benefits would be inadequate under Hellerstedt in normal circumstances. A fortiori it is inadequate under the Jacobson framework, which asks whether burdens outweigh the benefits “beyond question.” 197 U.S. at 31. Moreover, as we have explained, the Supreme Court has approved “a wide variety of abortion regulations . . . that in practice can occasion real-world delays of several weeks.” Abbott II, 2020 WL 1685929 at *10 (quoting Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (mem.) (Kavanaugh, J., dissenting)). That leads us to the second legal error resulting from the district court’s findings: they treat a medication abortion as an absolute right. But the constitutional right to abortion does not include the right to the abortion method of the woman’s (or the physician’s) choice. Gonzales, 550 U.S. at 164–65. On this record it was patently erroneous to find that a mere 30-day postponement of medication abortions “beyond question” violates Casey.
d. The Pennhurst doctrine. We address an additional point that arose during our consideration of
Petitioners’ emergency stay motion, because it may become important as the litigation continues. In the April 9 TRO, the district court adopted Respondents’ proposed fact finding that “[m]edication abortion is not a surgery or procedure.” Abbott III, 2020 WL 1815587 at *3, ¶ 10; cf. ECF 56-2, Plaintiff’s
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No. 20-50296 Proposed Order ¶ 10 (“Medication abortion is not a surgery or procedure.”).28 When considering Petitioners’ stay motion, we expressed uncertainty as to whether medication abortions were covered by GA-09, given ambiguity in the Texas Medical Board’s guidance on the order. See Abbott V, 2020 WL 1866010, at *3. For that reason, we denied a stay as to the part of the TRO applicable to medication abortions, while “express[ing] no ultimate decision on the ongoing mandamus proceeding.” Id. We have since benefitted from additional briefing on this issue. Given the lack of legal analysis in the April 9 order, we are unable to discern what impact the district court’s finding had on its decision to grant the TRO. Going forward, however, we caution that any relief ordering a state official to comply with state law would be barred by the Pennhurst doctrine. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).
Under Pennhurst, a federal court may not grant “relief against state officials on the basis of state law.” Id. at 106. A federal court may determine state officials’ enforcement of state law violates a federal right, but it may not order state officials to conform their conduct to state law. See, e.g., Williams On Behalf of J.E. v. Reeves, 19-60069, 2020 WL 1638411, at *7 (5th Cir. Apr. 2, 2020) (under Pennhurst, “the rule announced in Ex parte Young cannot be used to redress a state official’s violation of state law”); Hughes v. Savell, 902 F.2d
28 It is unclear how Respondents tie this contention (which revolves around the interpretation of GA-09) to their substantive due process claim, which is the only claim they pursued on their first and second applications for TROs. In any event, Respondents may develop their arguments further at the preliminary injunction stage, if they choose. Finally, based on this finding and others, the dissenting opinion, infra at 18–21, suggests that the April 9 TRO concludes that GA-09 was a “pretext” for targeting abortion. But we discern no such conclusion in the April 9 TRO. Instead, in its conclusions of law, the April 9 TRO merely states that GA-09’s “burdens outweigh [its] benefits,” Abbott III, 2020 WL 1815587 at *6, and makes no legal finding that GA-09 pretextually targets abortion over other medical procedures. Respondents, of course, may choose to develop such a claim at the preliminary injunction stage, but we do not find that legal issue presented by the April 9 TRO.
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No. 20-50296 376, 378 (5th Cir. 1990) (Pennhurst bars “a claim that state officials violated state law in carrying out their official responsibilities”).
To the extent the April 9 TRO finds that GA-09 violates Casey by postponing medication abortions, we have already explained that it patently erred. But to the extent the TRO might be construed to order relief on a claim that state officials failed to conform their actions to state law, the TRO would violate Pennhurst. State health officials, who are Petitioners here, insist that GA-09’s postponement of “procedures” encompasses medication abortions. Pennhurst bars a federal court from considering a claim that those officials failed to comply with a proper interpretation of the state executive order. See, e.g., Hughes, 902 F.3d at 378 (quoting Pennhurst, 465 U.S. at 106) (explaining that “instruct[ing] state officials on how to conform their conduct to state law . . . conflicts directly with the principles of federalism that underlie the Eleventh Amendment”).29 The district court should be aware of this issue in further proceedings.
2. The April 9 TRO Patently Erred by Exempting 18-Week Gestation from GA-09
We turn to the part of the April 9 TRO blocking application of GA-09 as to patients who “would reach 18 weeks LMP by April 21, 2020,” and who, in a physician’s judgment, are “unlikely to be able to obtain an abortion at an [ambulatory surgical center] before [her] pregnancy reaches the 22-week cutoff.” Abbott III, 2020 WL 1815587, at *6. For those patients, the district court concluded GA-09 would amount to “an absolute ban on abortion” that
29 Such a claim would need to be brought in state court. Cf. Russell v. Harris Cty., CV H-19-226, 2020 WL 1866835, at *12 (S.D. Tex. Apr. 14, 2020) (abstaining, under R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941), from hearing COVID-19 related equal protection and due process claims because there was “a pending state-court lawsuit challenging the Executive Order that raises questions about novel, uncertain issues of state law”) (referring to Tex. Crim. Def. Laws. Ass’n v. Abbott, No. GN-20-002034, 459th District Court of Travis County, Texas (Apr. 8, 2020)).
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No. 20-50296 violates Casey. Id. Once again, the district court’s failure to apply the framework articulated in Abbott II led to a patently erroneous result that cannot be sustained on this record.
As we explained in Abbott II, a state emergency measure like GA-09 violates the right to abortion if it “has no real or substantial relation” to the public crisis “or is, beyond all question, a plain, palpable invasion of [Casey].” 2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31). Here, we take the district court’s conclusion to turn only on the second part of the analysis— whether GA-09 is “beyond all question” a violation of Casey to the extent it results in delaying a woman’s pregnancy to 18 weeks LMP.
The district court’s treatment of GA-09 as “an absolute ban on abortion” as applied to this category of women was obviously wrong. Abbott III, 2020 WL 1815587, at *6. A woman who would be 18 weeks LMP when GA-09 expires has up to four weeks to legally procure an abortion in Texas. No case we know of calls that an “absolute ban” on abortion. Cf., e.g., Casey, 505 U.S. at 874 (explaining that “[n]umerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure”).
The district court may have had in mind an as-applied challenge to GA09 on behalf of a woman facing this particular combination of circumstances. See, e.g., Gonzales, 550 U.S. at 167 (explaining that “as-applied challenges” are “the proper manner to protect the health of the woman if it can be shown in discrete and well-defined instances” that particular procedures are required). That would require evidence of “discrete and well-defined instances” sufficient to support such a challenge, id., but the district court cited none and we can find none in the record. Respondents attempt to bridge this gap by relying on a new affidavit from a hotline coordinator at an abortion-funding nonprofit. But that affidavit speaks only in general terms about women at later stages of
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No. 20-50296 pregnancy and does not even attempt to identify any “discrete and well-defined instances” of a woman in the 18-week category sufficient to support an asapplied challenge here. See App. 439–44.
Respondents also speculate that, due to patient backlogs and the burden of traveling to one of the limited number of Texas ASCs, women in the 18-week category will not be able to obtain an abortion. Once again, this is the stuff of a possible as-applied challenge. But we know of no precedent saying that it violates Casey “beyond question” when a generally applicable emergency health measure causes backlogs and travel delays for women seeking abortion. In fact, even outside of a public health crisis, the Supreme Court has “recognize[d] that increased driving distances do not always constitute an ‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313 (quoting Casey, 505 U.S. at 885–87). To the contrary, the Court has treated increased travel distance only as one factor that—“when taken together with others” such as “the virtual absence of any health benefit”—could support a conclusion of undue burden under Casey on a particular record. Id. (emphasis added).
Perhaps in the context of a preliminary injunction hearing, Respondents will be able to adduce evidence to support an as-applied challenge to GA-09 (or its successor order, GA-15) along these lines. But the record presently before the district court fails to provide even an arguable basis to conclude that GA09, as applied to women in the 18-week category, is “beyond all question, a plain, palpable invasion of [Casey].” Abbott II, 2020 WL 1685929, at *6 (quoting Jacobson, 197 U.S. at 31).
3. The April 9 TRO Did Not Patently Err by Exempting 22-Week Gestation from GA-09.
The district court also concluded that GA-09 “beyond question” violates Casey as applied to a woman who “would otherwise be denied access to abortion entirely because . . . [her] pregnancy would reach 22 weeks LMP” before GA-
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No. 20-50296 09 expires. Abbott III, 2020 WL 1815587, at *6. While we harbor some doubts about the evidentiary basis for the district court’s conclusion, we conclude that any error is not so clear and indisputable as to warrant mandamus.
Unlike the 18-week category, Respondents have adduced some evidence that they have clients who will reach 22 weeks LMP during the operation of GA-09. See App. 103, 353, 442. While this evidence is secondhand, and thus weak, we cannot conclude it was a “clear abuse of discretion” for the district court to rely on it at this early stage. Abbott II, 2020 WL 1685929, at *4. The district court concluded that GA-09’s delay of non-essential medical procedures would operate as a permanent ban on abortion for women in this category, and that the order’s burdens far outweighed its benefits as to those women. Again, given the weak evidence, we are not fully satisfied with this cursory conclusion. Further, it remains unclear whether GA-09’s exception for “patient[s] who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences . . . as determined by the patient’s physician,” id. at *3, already covers women in these circumstances. But Petitioners’ arguments do not convince us, at this early stage, that the district court’s order enjoining GA-09 as to women who will reach 22 weeks LMP during the order’s operation was so patently erroneous that mandamus is appropriate. Cf. Gee, 941 F.3d at 158 (noting that mandamus is only appropriate “for really extraordinary causes”).
As a result, we conclude Petitioners have not shown entitlement to the writ of mandamus as to this part of the TRO.
* * * To sum up, Petitioners have shown entitlement to the writ of mandamus as to the parts of the April 9 TRO that: • restrain enforcement of GA-09 as a “categorical ban on all abortions
provided by plaintiffs”;
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No. 20-50296 • restrain enforcement of GA-09 after 11:59 p.m. on April 21, 2020; • restrain the Governor and Attorney General; • restrain enforcement of GA-09 as to medication abortions; • restrain enforcement of GA-09 as to abortions for patients who will
reach 18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain abortion services in Texas. Petitioners have not demonstrated entitlement to the writ as to that part of the April 9 TRO that: • restrains enforcement of GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”
IV. The other two requirements for mandamus relief are satisfied here. First, Petitioners “‘have no other adequate means’ to obtain the relief they seek.” Abbott II, 2020 WL 1685929, at *13. TROs, unlike preliminary injunctions, are not appealable. See Smith v. Grady, 411 F.2d 181, 186 (5th Cir. 1969); see also 28 U.S.C. § 1292. Although Petitioners argued in their separate appeal that the TRO at issue here has the “actual content, purport, and effect” of a preliminary injunction, Smith, 411 F.2d at 186, we concluded otherwise and dismissed that appeal for lack of jurisdiction. Second, for substantially the same reasons set out in Abbott II, “[w]e are persuaded that this petition presents an extraordinary case justifying issuance of the writ.” Abbott II, 2020 WL 1685929, at *15. As we stated there, 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 . . . .
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No. 20-50296 Id. The district’s failure to apply Jacobson and its usurpation of the state’s power by second-guessing “the wisdom and efficacy of [its] emergency measures” are just as extraordinary now as they were on April 7. Id. Moreover, the issues addressed in this litigation “have an importance beyond the immediate case.” Id. (quoting Volkswagen, 545 F.3d at 318).
“[W]e are aware of nothing that would render the exercise of our discretion to issue the writ inappropriate.” Id. (quoting Volkswagen, 545 F.3d at 319). We therefore exercise our discretion to grant mandamus relief.
CONCLUSION The petition for writ of mandamus is GRANTED IN PART and DENIED IN PART. The district court is directed to vacate any part of the April 9 TRO that (1) restrains enforcement of GA-09 as a “categorical ban on all abortions provided by Plaintiffs”; (2) restrains the Governor and Attorney General; (3) restrains enforcement of GA-09 after 11:59 p.m. on April 21, 2020; (4) restrains enforcement of GA-09 as to medication abortions; and (5) restrains enforcement of GA-09 as to abortions for patients who will reach 18 weeks LMP during the operation of GA-09 and would be “unlikely” to obtain abortion services in Texas. We do not grant the writ or direct vacatur as to that part of the April 9 TRO restraining enforcement of GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” Any portions of our April 10 administrative stay remaining in effect are LIFTED. As indicated in Abbott II, any future appeals or mandamus petitions in this case will be directed to this panel and will be expedited. See Gee, 941 F.3d at 173; In re First South Sav. Ass’n, 820 F.2d 700, 716 (5th Cir. 1987).
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The mandate shall issue forthwith.
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No. 20-50296 JAMES L. DENNIS, Circuit Judge, dissenting in part.
For the second time in as many weeks, the majority invokes the “drastic and extraordinary remed[y]” of mandamus, Ex parte Fahey, 332 U.S. 258, 259 (1947), simply to second guess the district court’s reasonable evaluation of the evidence and to interfere with its inherent power to control the proceedings before it. In so doing, the majority once again places us at odds with seemingly every other federal court to have considered whether the need to conserve hospital capacity and personal protective equipment (“PPE”) during the current COVID-19 pandemic can justify so drastically curtailing the constitutional right to an abortion. See In re Abbott, No. 20-50264, 2020 WL 1685929, at *16 (5th Cir. Apr. 7, 2020) (Abbott II) (Dennis, J., dissenting) (collecting cases).1 This second ruling is particularly inappropriate because, although the district court properly fulfilled this court’s previous mandate— unwarranted though the mandate may have been—the majority now moves the goal posts and chastises the district court for not abiding by a series of phantom instructions that can be found nowhere in its previous order. At bottom, the majority simply disagrees with the district court’s decisions on matters that are squarely within its discretion. This is not a proper use of “one of the most potent weapons in the judicial arsenal.” In re JPMorgan Chase & Co., 916 F.3d 494, 504 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)).
1 Indeed, in the interim between this case and our last decision, one of our sister circuits has explicitly rejected the proposition that a very similar temporary restraining order (TRO) to the one at issue here would work such irreparable harm that bypassing the normal appeals process was appropriate. See S. Wind Women’s Ctr. LLC v. Stitt, No. 206045, 2020 WL 1860683, at *2-3 (10th Cir. Apr. 13, 2020); see also id. at 3 (Lucero, J., concurring) (observing that where—as here—the State failed to present any evidence that abortion procedures would result in a shortage of PPE or hospital capacity needed for the COVID-19 response, it failed to establish that the TRO had irreparable consequences).
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No. 20-50296 This Circuit thus once again does not apply the applicable rules of law because of the subject matter of the case, and, equally troubling, ignores the words of its own ruling from less than two weeks ago. I again echo the words of a colleague in dissent in a case now before the United States Supreme Court: “It is apparent that when abortion comes on stage it shadows the role of settled judicial rules.” June Med. Services L.L.C. v. Gee, 905 F.3d 787, 816 (5th Cir. 2018) (Higginbotham, J., dissenting), cert. granted, 140 S. Ct. 35, 204 L. Ed. 2d 1193 (2019).
I. The facts and procedural history of this case have been documented in detail in our previous decision. See In re Abbott, No. 20-50264, 2020 WL 1685929 at *1-4 (5th Cir. Apr. 7, 2020) (Abbott II); id. at *17 (Dennis, J., dissenting). To briefly recount, on March 22, 2020, the Governor of Texas issued executive order GA-09 in response to the current COVID-19 pandemic and the accompanying shortage of personal protective equipment (“PPE”) and hospital capacity. GA-09 requires all Texas healthcare providers 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 immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.
Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/ uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-222020.pdf. The order contains an exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the [PPE] needed to cope with the COVID-19 disaster.” Id. Violations of GA-09 are punishable by
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No. 20-50296 criminal penalties and, by virtue of a subsequent emergency rule with identical requirements that was issued by the Texas Medical Board, see 22 Tex. Admin. Code § 187.57, may effectively result in the suspension or restriction of a practitioner’s license.2 By its terms, GA-09 remains in effect until 11:59 p.m. on April 21, 2020.
The day after GA-09 was issued, the Texas Attorney General released a press release stating, among other things, that GA-09 applied to “any kind of abortion that is not medically necessary to preserve the life and health of the mother,” and that “[t]hose who violate the governor’s order will be met with the full force of the law.” App. at 31.3 The Respondents, who provide abortion services in Texas, filed suit in district court under 42 U.S.C. § 1983 against the Petitioners, who are various state officials. The Respondents asserted that the application of GA-09 to prohibit abortion violated, inter alia, substantive due process. The Respondents sought to enjoin the Petitioners from enforcing GA-09 as applied to abortion, and, after reviewing argument and evidence on the point from both parties, the district court issued a temporary restraining order (“TRO”) doing just that. See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020).
Before the district court could hold a scheduled hearing on whether to issue a longer preliminary injunction, the Petitioners filed a petition for mandamus with this court, and on April 7, the majority granted the petition and ordered that the district court vacate its TRO. Abbott II, 2020 WL 1685929 at *16. The Respondents then moved for a second, more limited TRO in the
2 Because the requirements of GA-09 and the emergency rule are coextensive, all parties to this litigation have consistently referred to them collectively as GA-09, and this opinion will follow suit.
3 References to “App.” in this opinion refer to the appendix to the mandamus petition. See ECF 4 (5th Cir. No. 20-50296).
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No. 20-50296 district court, which the court granted. Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1815587, at *7 (W.D. Tex. Apr. 9, 2020) (Abbott III). The second TRO restrained the Petitioners from enforcing GA-09 (1) “as a categorical ban on all abortions provided by [the Respondents]”; (2) as a prohibition on “medication abortions”; (3) as a prohibition on “procedural abortion[s] [for] any patient who, based on the treating physician’s medical judgment, would be more than 18 weeks LMP[4] on April 22, 2020, and [who are] likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care” (“the 18-week category”); and (4) as a prohibition on “procedural abortion[s] [for] any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020” (“the 22-week category”). Id. The Petitioners filed a second petition for a writ of mandamus with this court the following day.
II. Petitioners once again ask that we direct the district court to vacate its TRO. As noted, mandamus is an “extraordinary remedy” that should only issue in “exceptional circumstances.” See Cheney, 542 U.S. at 380 (quoting Will v. United States, 389 U.S. 90, 95 (1967)); In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 288, 294 (5th Cir. 2015); In re Volkswagen of Am., Inc., 545 F.3d 304, 309, 311 (5th Cir. 2008). It is not sufficient for the petitioners to prove simply “that the court erred.” In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000). Rather, 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
4 LMP refers to the length of time that has passed since the first day of a pregnant woman's last menstrual period. See Tex. Health & Safety Code § 171.063.
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No. 20-50296 petitioner[s] must satisfy the burden of showing that [their] 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.” Cheney, 542 U.S. at 380-81 (internal quotation marks and citations omitted).
The “clear and indisputable” prong of this test is not met here. That the Petitioners’ right to relief is indeed disputable should be evident by the very existence of this dissent and the many other courts that have concluded that relief is not warranted in very similar circumstances. But I will elaborate. To establish a clear and indisputable right to relief, the Petitioners must show that the district court not only committed a “clear abuse[] of discretion,” but also that the abuse “produce[d] patently erroneous results.” In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at 312). Neither precondition is met here.
A. The majority asserts that the district court abused its discretion in several ways. None of these assertions warrants mandamus relief.
1. The majority first engages in what would appear to be an academic exercise, concluding that the district court erred by restraining the Petitioners’ conduct in ways that apparently had no practical impact even under the majority’s reasoning. Mandamus relief cannot be warranted to fix a mistake that is of no consequence. To start, the majority faults the district court for restraining the Petitioners from enforcing GA-09 “as a categorical ban on all abortions” because it does not interpret GA-09 to be a categorical ban on all abortions. Majority at 9 (citing Abbott III, 2020 WL 1815587, at *7). As the majority acknowledges, however, a federal court may determine that a state official’s
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No. 20-50296 purported enforcement of state law would violate a federal right, and this principle applies regardless of whether that enforcement is a correct interpretation of the state law. Majority at 31; See Louise B. v. Coluatti, 606 F.2d 392, 399 (3d Cir. 1979) (“To put the matter more bluntly, where a state violates federal law, it is no better off because it also violates its own law.”). Whether GA-09 actually is a categorical ban on abortions under state law is therefore irrelevant. If the district court correctly found a credible threat that the Petitioners would enforce GA-09 as a categorical ban on abortion, that factual finding is sufficient to restrain such enforcement as a violation of a federal constitutional right. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (stating that when “plaintiffs face a credible threat of enforcement,” they “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief” (internal quotations omitted)).
But as I said, this discussion is academic. By restraining the Petitioners from enforcing GA-09 as to medication abortions and those abortions falling into the 18-week and 22-week categories, the district court’s TRO also necessarily prevented the Petitioners from enforcing GA-09 as a categorical ban on abortions. Neither the Petitioners nor the majority identify any possible conduct that would violate the “categorical ban” prohibition in the district court’s order that would not also violate the prohibition on enforcing GA-09 against providers of medication abortions or those that provide abortions that fall into the 18-week or 22-week categories. Quite simply, the TRO’s prohibition on enforcing GA-09 “as a categorical ban on all abortions” has no independent effect; it does not burden the Petitioners because it does not alter the Petitioners’ rights or responsibilities in any way. Accordingly, even if correct regarding the error, the majority’s decision to order this portion of the order vacated also does not change the rights and responsibilities of any party and serves no purpose but to point out the district court’s purported
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No. 20-50296 mistake. Invoking “one of the most potent weapons in the judicial arsenal,” In re JPMorgan Chase, 916 F.3d at 504, simply to correct an alleged legal error with no practical consequences is inappropriate. Indeed, we have explicitly stated that mandamus is not warranted upon a showing “merely that the court erred.” Occidental Petroleum Corp., 217 F.3d at 295. The Petitioners and the majority have not demonstrated how the district court’s purported error on this point could produce “patently erroneous results,” In re Volkswagen of Am., Inc., 545 F.3d at 312, when, as a practical matter, it does not produce any results at all.
Similarly, the majority concludes that, because the district court restrained the enforcement of GA-09 past its nominal April 22 expiration date, the district court abused its discretion by not narrowly tailoring its TRO to end when the executive order potentially expired. Majority at 9-10. But the majority fully acknowledges that, following GA-09’s expiration, there will be “no enforcement of GA-09 for a court to restrain,” Majority at 10, and so the district court’s TRO will have no effect on the Petitioners after the executive order expires. By contrast, under the majority’s reasoning, had GA-09 been extended, the district court would have had to again extend its TRO in order to maintain the status quo until the scheduled preliminary injunction hearing—something that it is not even clear the district court would have authority to do under FED. R. CIV. P. 65(b)(2), which some authorities have held limits a district court to one TRO extension.5 See Clements Wire & Mfg. Co. v. N. L. R. B., 589 F.2d 894, 896 (5th Cir. 1979) (stating that TROs “must expire not later than 20 days after issuance,” when Rule 65(b) imposed a 10-day time limit); U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 (4th Cir.
5 The district court already extended its second TRO once on April 14. See Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 82) (Apr. 14, 2020).
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No. 20-50296 2006) (stating “a TRO is limited in duration to 10 days plus one 10–day extension” under the former time limit (emphasis added)). The extension of the TRO was a reasonable action by the district court that was well within its discretion—either its TRO would be harmless and would not affect any rights or responsibilities after GA-09’s expiration, or it would be appropriately tailored to its purpose. We now know that, fortunately, GA-09 will indeed expire on April 22,6 and the majority’s order will not wreak the harm that it might have had GA-09 been extended and the district court been left with a gap between the expiration of the TRO and the preliminary injunction hearing that it may arguably have been powerless to fill. But again, the majority utilizes mandamus, a “‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes,’” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332 U.S. at 259–60), simply to correct what it wrongly perceives to be a run-of-themill legal error that the majority acknowledges has no practical consequences.
The majority next concludes that the district court erred by failing to dismiss the Texas Governor and Attorney General and by restraining them from enforcing GA-09 in the proscribed manner because neither officer has the “connection” to enforcement of GA-09 needed to overcome sovereign immunity under Ex parte Young, 209 U.S. 123 (1908). Majority at 10-13. With respect to the Attorney General, the majority concludes that neither the fact that Texas law permits the Attorney General to participate in prosecutions for violations of GA-09, see TEX. GOV’T CODE § 402.028, nor that the Attorney General publicly singled out abortion providers for potential enforcement; stated that GA-09 prohibits all abortion except in the case of a medical emergency; and threatened that “[t]hose who violate the governor’s order will
6 See Tex. Exec. Order No. GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads /files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf.
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No. 20-50296 be met with the full force of the law,” App. at 30, are sufficient to establish a connection to GA-09 enforcement. Our cases have not explicitly held as much, and indeed we have previously stated that authority and a willingness to enforce a law can be inferred by an official’s threats to do so. City of Austin v. Paxton, 943 F.3d 993, 1001 (5th Cir. 2019) (“[T]he fact that Paxton sent letters threatening enforcement of the DTPA makes it clear that he had not only the authority to enforce the DTPA, but was also constraining the manufacturer’s activities, in that it faced possible prosecution if it continued to make and distribute its products.”). It is difficult to see, then, how the district court’s preliminary7 determination that the Attorney General had a connection to enforcement was so contrary to established law as to constitute a “clear abuse of discretion,” In re Volkswagen of Am., Inc., 545 F.3d at 312, and thereby justify this court’s extraordinary intervention on this point.
But even assuming arguendo that the majority is correct, the sum effect of restraining the Governor and Attorney General from enforcing GA-09 would be nil if they lack any authority to enforce GA-09 in the first place. Thus, the majority acts again to use the “drastic and extraordinary remedy” of mandamus, where it at most has little, if any, practical effect. Fahey, 332 U.S. at 259.
I therefore disagree that mandamus is appropriate with respect to any of these alleged errors.
2. Next the majority concludes that the district court violated the “mandate rule” by not following the instructions issued in Abbott II. Majority at 14 (citing
7 Notably, the Petitioners have not at any point filed a motion to dismiss the Respondents’ claims against the Governor and Attorney General, instead raising their jurisdictional arguments only in opposition to the TRO. Had one been filed, the denial of the motion would have been immediately appealable, see Texas v. Caremark, Inc., 584 F.3d 655, 658 (5th Cir. 2009), obviating any need for mandamus on this point.
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No. 20-50296 United States v. Smith, 814 F.3d 268, 273 (5th Cir. 2016)). But a review of the district court’s substantive and procedural decisions makes clear that the court complied fully with the majority’s previous directives.
a. The majority first argues that the district court failed to apply the legal framework that the majority previously derived from Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and Planned Parenthood v. Casey, 505 U.S. 833 (1992). Majority at 13. This is contradicted by the district court’s plain statement that applying GA-09 to the classes of abortions identified in its TRO “violates the standards set forth in both [Casey] and [Jacobson].” Abbott III, 2020 WL 1815587. The majority appears to regard this as only a formalistic recitation. On the contrary, the district courts’ findings and conclusions makes clear that it properly considered each step of the majority’s framework. Specifically, the test the majority previously formulated required the district court to determine (1) whether applying GA-09 to the abortions at issue8 lacks a “real or substantial relation” to the current public health crisis, and (2) whether the benefits of applying GA-09 to these abortions are “beyond all question” outweighed by its burden on the constitutional right to an abortion, thus creating an undue burden under Casey. Abbott II, 2020 WL
8 In its previous decision, the majority without explanation chose to analyze whether GA-09 as a whole had a real or substantial relation to the current public health crisis, notwithstanding the fact that the Respondents were not challenging GA-09 as a whole, nor had the district court enjoined all applications of GA-09. As discussed in more detail below, the proper focus should have been whether the application of GA-09 to abortions bore any real or substantial connection to the current public health crisis. See Jacobson, 197 U.S. at 28 (“We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” (emphases added)).
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No. 20-50296 1685929, at *7, *9. The district court faithfully made findings and conclusions tied to both steps of this analysis.
With respect to the first, the majority stated in its previous opinion that the district court should “inquire whether Texas has exploited the present crisis as a pretext to target abortion providers sub silentio.” Id. at *13 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)). On this point, the district court found that “[m]edication abortion is not a surgery or procedure” within conventional definitions of the terms and that “[p]roviding medication abortion does not require the use of any PPE,” which would suggest that it is not covered by the plain language of the prohibition within GA-09. Abbott III, 2020 WL 1815587, at *3. And the court found that “[p]hysicians are continuing to provide [other] obstetrical and gynecological procedures comparable to abortion in PPE use or time-sensitivity, based on their professional medical judgment” without hinderance from GA-09. Id. at *5. And, though this significantly overlaps with the second prong of the majority’s test, the district court made extensive findings as to why applying GA-09 to abortions “will not conserve PPE” and “will not conserve hospital resources”—the two explicitly stated goals of the executive order. Id. at *4. These findings all suggest that the application of GA-09 to abortions—particularly medication abortions—is pretextual and not motivated by any desire to conserve PPE or hospital capacity, meaning it lacks a “real or substantial relation” to the current public health crisis under the framework the majority instructed the district court to employ. Abbott II, 2020 WL 1685929, at *7.
The district court’s analysis is even more explicit at the second stage of the inquiry in which the majority instructed it to weigh the benefits of applying GA-09 to abortions against the burden on the constitutional right to an abortion. Id. at *9. As stated, the district court made a range of findings indicating that applying GA-09 to abortions not only would not result in a
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No. 20-50296 public health benefit but in fact would be a net drain on PPE and hospital capacity and would be otherwise harmful to public health. The court made specific findings as to how much and what kind of PPE are consumed during the performance of medication and procedural abortions and their surrounding services, as well as the frequency with which complications require hospitalization with each method. Abbott III, 2020 WL 1815587, at *3-4. The court then compared this figure to the amount of each resource typically consumed by a woman continuing a pregnancy and found that substantially more of each resource is consumed “at each stage of the [continued] pregnancy” than in a pre-viability abortion. 9 Id. at *4. And the district court noted that continuing a pregnancy requires significantly more “in-person healthcare” and that many women denied an abortion by GA-09 are traveling out-of-state to obtain one, increasing their risk of contracting COVID-19. Id. at *4-5.
The district court then made a variety of findings regarding the burden that applying GA-09 to the classes of abortion at issue placed on the constitutional right to abortion. The court found that the Respondents had “turned away hundreds of patients seeking abortion care,” and that “[t]here will be significant pent-up need for abortion care when the Executive Order expires,” resulting in further delays. Id. at *5. The court noted that progressively more invasive techniques are required to perform an abortion the
9 The majority now faults the district court for not explicitly stating that its findings were with regard to how much of each resource are being consumed during the current COVID-19 pandemic. Majority at 20-23. As discussed in more detail below, this is an incorrect reading of the district court’s order, see Abbott II, 2020 WL 1685929, at *4 (noting the amount of N95 masks the physicians associated with the Respondents had used “since the beginning of the COVID-19 pandemic” and citing the “recommendations from the American College of Obstetricians and Gynecologists (‘ACOG’) and other medical authorities for providing obstetrical care during the COVID-19 pandemic” (emphasis added)), and the majority mistakenly insists on punctilious formality rather than making reasonable inferences from the evidence and the district court’s findings. For now, suffice it to say that this new requirement can be found nowhere in the majority’s previous order.
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No. 20-50296 longer that it is delayed. Id. And the court found that the health risks, financial costs, and emotional cost of an abortion increases with gestational age, meaning the delays make abortions riskier and more cost prohibitive. Id. at *5-6. The court also found that for many women, the delay would result in them being effectively denied a legal right to an abortion in Texas, either because they would exceed the 22-week maximum legal limit or they would reach a gestational age at which they were legally required to go to a facility that they did not have access to in order to receive an abortion. Id.
The district court then weighed these benefits and burdens against each other, just as the majority instructed, and concluded that “based on the court’s findings of fact, it is beyond question that the Executive Order’s burdens outweigh the order’s benefits as applied” to the classes of abortion at issue. Id. at *6. And in doing so, it explicitly relied Jacobson.
It is one thing for the majority to disagree with the district court’s findings or its weighing of the relative benefits and burdens of applying GA-09 to these abortions (though, as will be discussed, the majority is wrong to do so). But it is simply inaccurate for the majority to conclude that the district court disregarded its instructions to apply a legal framework that it is abundantly clear the district court in fact applied. I therefore disagree that the district court violated the mandate rule in this respect and, therefore, that mandamus is appropriate to correct the supposed error.
b. The majority next reprimands the district court for entering a TRO at all. Majority at 14-19. The majority seems to have wanted the district court to instead proceed directly to an adversarial hearing on a preliminary injunction without issuing another TRO to preserve the status quo until that hearing could be held. This requirement is stated nowhere in the previous mandamus order and cannot be reconciled with the principle that district
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No. 20-50296 courts have broad discretion in ordering their affairs. To be sure, the majority made several references to the sort of evidence that could be adduced and arguments that could be made at an upcoming preliminary injunction hearing. See, e.g., Abbott II, 2020 WL 1685929, at *2 (“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.”); id. at *9 (“Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may” violate Casey); id. at *12 (“These are issues that parties may pursue at the preliminary injunction stage[.]”). But even assuming arguendo these off-hand comments could be construed as a directive to hold a preliminary injunction hearing—they obviously cannot—at no point did the majority suggest the district court was not permitted to issue a TRO to prevent irreparable harm in the interim until a hearing could be held.
Nor is it clear by what authority the majority would have imposed such a restriction if it had been contained in the previous mandamus order. It is well established that “[d]istrict courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.” Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C. Cir. 1987). This broad discretion extends to “manag[ing] the timing and process for entry of all interlocutory injunctions—both TROs and preliminary injunctions[.]” Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000).
The majority and the Petitioners make much of the fact that the district court did not permit the Petitioners to “respond [to the second TRO motion] in writing” before entering the second TRO. Transcript of 4/9/20 Tele. Conf. at 14:39; see Majority at 18 (“Moreover, we called for additional evidence from both sides.”). But as the majority acknowledges, the district court was not required to do so, as the Rules explicitly allow a TRO to be entered ex parte.
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No. 20-50296 Majority at 14 (citing Fed. R. Civ. P. 65(b)(1)). Further, the Petitioners had already been permitted to make argument and introduce evidence in response to the Respondents’ first motion for a TRO. See Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323-LY (W.D. Tex.) (Dkt. No. 30) (March 30, 2020). It was not an abuse of the district court’s discretion for it to conclude that, given the time constraints and the potential for irreparable harm that had been established, it was imprudent to wait for further argument or evidence from the Petitioners before entering a TRO to preserve the status quo until the preliminary injunction hearing. All that was required was that “the opposing party [be] given a reasonable opportunity, commensurate with the scarcity of time under the circumstances, to prepare a defense and advance reasons why the [preliminary] injunction should not issue.” Ciena Corp., 203 F.3d at 319. The Petitioners would have had that opportunity at the rescheduled preliminary injunction hearing, and they could have filed a motion to dissolve the TRO with accompanying exhibits at any time under Rule 65(b)(4) if they truly believed that time was of the essence such that they could not wait for the hearing.10 Instead, they filed the present motion for mandamus.
The majority alternately argues that the district court defied the mandate by entering a TRO on essentially the same record that the previous mandamus order found was inadequate to support a TRO. Majority at 14-19. This is simply inaccurate. Following the district court’s first March 30 TRO order, which was based on ten declarations submitted by the Respondents, the
10 Petitioners’ failure to do so, together with their stated resistance to “an overly ambitious schedule” in the latest status report filed with the district court in which they requested that the preliminary injunction hearing be held no earlier than April 30, Abbott, No. 1:20-cv-00323-LY (Dkt. No. 78) at 3 (Apr. 14, 2020), conflicts with any assertion that time truly is so of the essence that Petitioners had “no other adequate means to attain the relief [they] desire[],” as is required for a grant of mandamus. Occidental Petroleum Corp., 217 F.3d at 380.
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No. 20-50296 Respondents filed nine additional declarations as supplements to their motion for a preliminary injunction. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 49) (April 2, 2020). And the Respondents included a new tenth declaration with their second motion for a TRO. See Abbott, No. 1:20-cv-00323-LY (Dkt. No. 56) (April 8, 2020). The district court thus had twice the number of declarations filed by the Respondents before it when it entered its second TRO than when it entered its first.
In an attempt to overcome the fact that the record was clearly substantially more developed when the district court entered its second TRO, the majority argues that the Respondents cited to the supplemental declarations in their opposition to the Petitioners last mandamus petition, and so these declarations were included in the record that the majority reviewed and declared insufficient. Majority at 17-18. But the majority’s last mandamus order commented only on “the record before us.” Abbott II, 2020 WL 1685929, at *9. The fact that the Respondents cited to additional declarations in their briefing is of no moment. The additional declarations were not included in the appendix filed with the previous mandamus petition and they were not before the district court when it made the decision we reviewed. Further, the majority did not explicitly take judicial notice of the additional declarations, and the contents of the declarations are not the type of indisputable information suitable for judicial notice in any event. See Gov’t of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979) (noting that Federal Rule of Evidence 201, which permits judicial notice only of generally known facts or those that can be readily determined from an indisputably reliable source, applies at every stage of a proceeding). There was no reason for the district court—or anyone, for that matter—to assume the supplemental declarations were included in the majority’s review of “the record before us” that resulted in its conclusion that the evidence was inadequate. Abbott II,
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No. 20-50296 2020 WL 1685929, at *9. Indeed, if the additional declarations were included in that review, the majority’s statement was arguably an improper advisory opinion on matters not before the court because the sufficiency of those declarations had no bearing on whether the district court’s previous decision was correct at the time it was made. Cf. United States v. Marine Shale Processors, 81 F.3d 1329, 1352 (5th Cir. 1996) (declining to give an advisory opinion on matters that did not affect the issues before it and that could be litigated in a later proceeding); Henry v. Dep’t of Hous. & Urban Dev. (HUD), Washington, D. C., 451 F.2d 355, 356 (8th Cir. 1971) (noting that the court could not give an advisory opinion as to the validity of a different complaint that was not the complaint the district court dismissed).
In sum, the district court considered new evidence just as the majority instructed, and it applied the legal framework that the majority prescribed. The majority is thus wrong to now hold that the district court failed to fulfill the majority’s previous mandate simply because it did not meet new additional requirements that were not stated in the majority’s order, and I therefore disagree that this supposed defiance warrants mandamus.
B. That the district court did not commit a clear abuse of discretion is sufficient reason on its own to deny mandamus. See In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290 (quoting In re Volkswagen of Am., Inc., 545 F.3d at 312). But mandamus is also not warranted because, contrary to the majority’s contention, the district court’s analysis did not lead to patently erroneous results. Assuming arguendo that the majority’s interpretation of Jacobson is correct and the standard it articulated applies here, restraining the enforcement of GA-09 as a prohibition on the classes of abortion at issue was appropriate if (1) that enforcement is “pretextual—that is, arbitrary or oppressive” because it “has no real or substantial connection” to protecting
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No. 20-50296 public health during the COVID-19 epidemic; or (2) if that enforcement is “‘beyond all question, a plain, palpable invasion’ of the [constitutional] right to abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S. at 31). There is ample evidence in the record to support the conclusion that both of these requirements are met with respect to the applications of GA-09 the district court restrained through its second TRO, and the majority’s disagreement with the district court’s reasonable evaluation of this evidence does not make the TRO palpably erroneous.
As an initial matter, the majority breezes past the pretext prong of its test, barely even mentioning it in its analysis of the results of the district court’s reasoning. This is likely because, in its previous order, the majority without explanation elected to analyze this question as whether GA-09 as a whole had a real or substantial relation to the current public health crisis, and so was able to easily conclude that it did. See id. at *8 (“The answer is obvious: the district court itself conceded that GA-09 is a valid emergency response to the COVID-19 pandemic.”). But this is the wrong focus of the inquiry. The Respondents were not challenging GA-09 as a whole, nor had the district court enjoined all applications of GA-09. The Respondents had challenged, and the district court had restrained, the application of GA-09 to abortions, and Jacobson itself makes clear that the question should not have been whether “GA-09 is a pretext for targeting abortion.” Id. at *13. It should have been whether the enforcement of GA-09, a concededly valid public health measure, was being used as a pretext to target abortions by state actors motivated by hostility to abortion rights. See Jacobson, 197 U.S. at 28 (“We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond
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No. 20-50296 what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” (emphases added)). Indeed, to hold otherwise would sanction the use of valid public health measures as tools for the arbitrary deprivation of any number of constitutional rights, regardless of the logical efficacy of applying the measure in that manner or even whether the enforcement was in fact motivated by a desire to further public health. See, e.g., On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV264-JRW, 2020 WL 1820249, at *2 (W.D. Ky. Apr. 11, 2020) (finding that a ban on public gatherings during the pandemic, which would obviously be a valid public heath measure, was unconstitutional when used to prevent a drivethrough Easter Sunday church service in which parishioners remained in their cars and had no direct personal contact (quoting Jacobson, 197 U.S. 11, 31 (1905)).
Considered in this light, there was sufficient evidence in the record to conclude that the enforcement of GA-09 as a prohibition on all three of the classes of abortion at issue was pretextual and motivated not by a desire to advance public health, but rather to reduce the number of abortions performed for its own sake. To begin with, as the district court determined and as the majority acknowledged in a previous order in this case, see In re Abbott, No. 20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020), medication abortion, which in itself consists entirely of providing a patient with two sets of oral medication, is not a “surgery or procedure” under either the conventional definitions of those terms or the meaning assigned to them in informal guidance from the Texas Medical Board. See TEXAS MEDICAL BOARD, Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020), https//www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BFF9221E4DEF17 (last visited Apr. 19, 2020). And, as a wide range of
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No. 20-50296 declarations in the record establish, medication abortion consumes no PPE whatsoever when considered in isolation without the preceding ultrasound or post-abortion tests that Texas law requires. See App. at 73, 86, 91-92, 100, 110, 117, 134, 157. Medication abortion therefore does not appear to fall within the facial, plain meaning of GA-09’s prohibition on non-urgent elective “surgery or procedures,” and if it did, it would seem to fall into the exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”11 Texas Executive Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_ capacity_IMAGE_03-22-2020.pdf. The Petitioners’ stated desire to nonetheless enforce the order against the providers of medication abortion raises a strong inference that the enforcement against abortion providers more generally is pretextual and motivated by hostility to abortion rights. Further supporting this inference are multiple declarations from practicing physicians stating that GA-09 is not being enforced to prohibit many obstetrical and gynecological procedures that consume as much or more PPE and hospital capacity than the categories of abortion at issue here, suggesting that abortions were being singled out for differential treatment. See App. at 368, 373-74. And, as discussed in more detail below, there is substantial evidence in the
11 The majority theorizes that, because the district court found that medication abortion is not a surgery or procedure within the meaning of GA-09, its TRO might be construed as enjoining state officials to comply with state law, which would violate principles of sovereign immunity. Majority at 30-31 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)). But “[a]scertaining state law is a far cry from compelling state officials to comply with it.” Williams ex rel. J.E. v. Reeves, No. 19-60069, 2020 WL 1638411, at *7 (5th Cir. Apr. 2, 2020) (quoting Everett v. Schramm, 772 F.2d 1114, 1119 (3d Cir. 1985)). To the extent the district court interpreted GA-09 and considered that the Petitioners were likely improperly enforcing it in determining whether the enforcement was pretextual, it did nothing improper.
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No. 20-50296 record that enforcing GA-09 against these categories of abortion leads to a net loss of PPE and hospital capacity because the amount of each resource consumed at every stage of a continued pregnancy is greater than the amount consumed in the performance of a medication or procedural abortion. See App. at 135, 372-74, 414.
Based on this evidence, the district court could reasonably conclude at the TRO stage that Petitioner’s enforcement of GA-09 as a prohibition against the categories of abortion at issue here was “pretextual” and had “no real or substantial connection” to protecting public health during the COVID-19 epidemic. Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S. at 31). Under the majority’s framework, this fact alone is enough to demonstrate that the district court’s determinations did not produce “patently erroneous results” as required for the issuance of mandamus. See 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). But the majority doubly errs because there was also ample evidence to conclude that enforcement of GA-09 against each of these categories of abortion fails the second prong of its test by being “‘beyond all question, a plain, palpable invasion’ of the [constitutional] right to abortion.” Abbott II, 2020 WL 1685929, at *7, *8 (quoting Jacobson, 197 U.S. at 31). I will consider the two classes of abortions the majority vacates the TRO with respect to in turn.
1. The majority first considers whether the evidence was sufficient for a district court to reasonably conclude that enforcing GA-09 against providers of medication abortion “beyond all question” violated the constitutional right to an abortion. Majority at 19-31. The majority begins by asserting that the district court considered only the relative consumption of PPE associated with medication abortions under normal circumstances and
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No. 20-50296 asserts that there is no evidence documenting PPE usage rates during the current pandemic. Majority at 20-23.
First, it is worth reiterating that the majority’s previous order did not include a directive to the district court to specify that findings it was making regarding relative usage were about rates during the current pandemic. The majority now changes the rules in order to find error where there is none. Its new requirement is based solely on the majority’s own supposition that, during the current pandemic, there is PPE used during medication abortions that would not otherwise be used by abortion providers furnishing other healthcare services, and that this increase shifts the balance between the relative benefits and burdens of applying GA-09 to prohibit medication abortions. There is no evidence for the majority’s supposition.
In support of its contention that the rate of PPE usage has likely changed, the majority points to a declaration by an infectious disease expert that states “[n]ot wearing face masks and other PPE when caring for patients who are not under investigation for COVID 19 . . . exposes health care workers to transmission of infection” from asymptomatic patients. Majority at 22. But there is no indication that the abortion providers would not wear the same amount of PPE “caring for patients” in ways other than providing abortion. The majority fails to make the simple logical inference that, if medication abortion requires no PPE under normal conditions, it requires no more PPE than would be used by medical staff providing other services under pandemic conditions. For the majority’s premise to be correct, one would have to assume that abortion providers only (or at least primarily) provide abortion services and would not fill canceled abortion appointment slots with appointments for
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No. 20-50296 other medical services that would bring them into personal contact with patients at a similar frequency.12
Even assuming arguendo that medication abortions do consume more PPE in a pandemic, the pertinent question is not whether prohibiting medication abortion prevents the use of some marginal amount of PPE. It is whether it creates a net benefit that outweighs its burden on the constitutional right to abortion. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016). As I stated before, there was no evidence in the record suggesting that any PPE purchased by or in the possession of abortion providers that would be conserved by applying GA-09 to abortions could be redirected to the COVID-19 response, nor have the majority or Petitioners articulated any logical way in which this could be so. Abbott II, 2020 WL 1685929, at *22 (Dennis, J., dissenting). Moreover, there are multiple declarations in the record from health care professionals documenting that any increase in PPE consumption from medication abortion during the pandemic is more than matched by an increase in PPE consumption from the necessary medical services associated with continuing a pregnancy. See, e.g., App. at 135 (“By comparison, even if a provider of prenatal care reduces the scheduling of such care during the COVID-19 outbreak, it will still involve use of masks, sterile gloves, and potentially other PPE during multiple visits. A patient continuing pregnancy will thus require significantly more PPE than a patient presenting for abortion.”); App. at 375 (stating that “most prenatal and postpartum care is continuing” during the COVID-19 pandemic and cannot be done remotely
12 According to Planned Parenthood’s website, in addition to abortion services, the organization provides health services associated with emergency contraception, general preventative healthcare, testing and treatment for HIV and other sexually transmitted diseases, LGBT services, fertility treatments, treatment for sexual dysfunction, pregnancy testing and associated services, pelvic exams, and cancer screenings. See Our Services, Planned Parenthood, https://www.plannedparenthood.org/get-care/our-services (last visited Apr. 20, 2020).
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No. 20-50296 before concluding that “requiring people to continue unwanted pregnancies utilizes more PPE and more hospital resources than abortion care”). Thus, there is more than sufficient evidentiary support to conclude that applying COVID-19 to prohibit medication abortions does not preserve PPE during the current pandemic.
The majority attempts to overcome this basic conclusion by asserting that the state made a policy judgment that it was more important to conserve PPE in the near term than the long term in order to “flatten the curve.” Majority at 25. But this ignores the evidence that continuing a pregnancy results in more PPE usage at every stage of the pregnancy than is typically used in an abortion of any sort. See App. at 414 (“[T]he imaging and laboratory tests alone needed during early pregnancy require the use of more PPE than is typically used in connection with an abortion.”) There is thus ample evidentiary support to conclude that applying GA-09 to medication abortions results in no conservation of PPE in the short or long term.
Similar evidence exists with respect to hospital capacity; when a pregnancy is continued, more hospital beds and resources are consumed than when a woman obtains a pre-viability abortion, and there is no indication that the current pandemic has changed this. See, e.g., App. at 375. And significant evidence supports a conclusion that women who are unable to obtain an abortion because of GA-09 will travel out of state to obtain one, increasing their risk of contracting COVID-19 and spreading it to others.13 See, e.g., App. at 258-59, 311. Thus, this is not an instance in which the district court made a “choice . . . between two reasonable responses to a public crisis,” that should
13 The majority’s unsupported supposition that similar travel might occur as a result of any medical procedures being postponed, Majority at 26, is particularly misplaced. There is no evidence that any other delayed medical service increases in cost and health risk if delayed in the same manner as an abortion, nor that there exists a legal deadline by which such procedures must be procured comparable to Texas’s ban on post 22-week abortions.
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No. 20-50296 have been “left to the governing state authorities.” Abbott II, 2020 WL 1685929, at *12 (citing Jacobson, 197 U.S. at 30). This is an instance in which the district court logically concluded that applying GA-09 to medication abortions was not reasonable because it produced no public health benefit, and indeed, was detrimental to achieving even its ostensible goals. And against this total lack of a benefit, there is substantial evidence that applying GA-09 to prohibit medication abortions posed a significant burden on the constitutional right to abortion, including by increasing the health risks, financial costs, and emotional toll associated with obtaining an abortion. It was thus entirely reasonable for the district court to conclude that the benefits of applying GA09 to medication abortions are “beyond all question” outweighed by its burden on the constitutional right to an abortion, Abbott II, 2020 WL 1685929, at *7, *9, thereby creating an unconstitutional undue burden under Casey.
The majority faults the district court for not citing to the Petitioners’ exhibits purportedly containing contrary evidence on some of these points, calling this a failure to “carefully parse the evidence.” Majority at 2630. But “[i]t is the province of the district court to weigh conflicting evidence,” including by choosing which evidence to credit and which evidence to discount. R. S. by & through Ruth B. v. Highland Park Indep. Sch. Dist., 951 F.3d 319, 337 (5th Cir. 2020). It is not our role to second guess what would appear to be a reasonable evaluation of the evidence under commonplace circumstances, let alone on mandamus review. There is thus no basis to conclude that the district court’s reasoning produced “patently erroneous results” as to medication abortions. 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).
2. The majority similarly concludes that the district court’s reasoning led to a patently erroneous result with regard to the TRO’s blocking application
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No. 20-50296 of GA-09 to those abortions in the 18-week category—that is, those abortions for women who would exceed the maximum gestational age to legally have an abortion other than in an ambulatory surgical center by the expiration of the executive order and who would, in their physicians’ judgment, be unable to obtain an abortion at one of these centers. Majority at 32-34.
The majority first criticizes the district court for categorizing the application of GA-09 to women in this 18-week category as an “absolute ban on abortion” because, it contends, women falling into this category can, theoretically, still legally obtain an abortion. Majority at 32 (quoting Abbott III, 2020 WL 1815587, at *6). The majority’s argument is based on a theoretical legal possibility that is a practical impossibility. Many women in this category will not be able to obtain an abortion for a number of reasons. In reality, there are no ambulatory surgical centers that provide abortion care outside of Texas’s four largest metropolitan areas, see Hellerstedt, 136 S. Ct. at 2316, and thus many women in rural areas of Texas would need to secure transportation over a great distance and lodging in a metropolitan area in order to undergo the two-day procedure necessary for an abortion after the 18week mark. See App. at 130-31. For many this will not be possible due to time constraints, financial limitations, health reasons, or any number of other factors. And there is evidence that, because of the buildup of need for abortion care during the time GA-09 is in effect, the delays associated with the resulting backlog may prevent many women who will be past the 18-week mark upon the expiration of the executive order from obtaining an abortion before the 22week legal cutoff.14 See, e.g., App. at 95. For these women, GA-09 is for all intents and purposes an absolute ban on abortion. And the majority offers no
14 This is especially true because the 18-week category contains even women that will be only one or a few days shy of the 22-week legal cutoff for an abortion when GA09 expires.
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No. 20-50296 authority for the prospect that a law that theoretically leaves a legal path to abortion cannot as a practical matter function as the sort of absolute ban that violates “the essential holding of Roe v. Wade,” Casey, 505 U.S. at 846.
In light of the balancing test for identifying an undue burden set forth in Casey, 505 U.S. at 874, and Hellerstedt, 136 S. Ct. at 2310, the outright ban on previability abortion might be thought of as the ultimate burden on the constitutional right to abortion which no benefit or interest yet identified can outweigh. In that case, a law that nominally allows abortion but places it functionally out of reach for a class of women is only slightly less of a burden, and it stands to reason that a truly compelling benefit would be required to justify it.
We need not speculate what that benefit might be, though, because on the evidence in the record, it was reasonable for the district court to conclude that applying GA-09 to prohibit this class of abortions offered no benefit at all. Much of the evidence already recounted concerned not only the relative consumption of PPE and hospital capacity between a medication abortion and a continued pregnancy, but rather any pre-viability abortion and a continued pregnancy. See, e.g., App. at 135 (“By comparison, even if a provider of prenatal care reduces the scheduling of such care during the COVID-19 outbreak, it will still involve use of masks, sterile gloves, and potentially other PPE during multiple visits. A patient continuing pregnancy will thus require significantly more PPE than a patient presenting for abortion.”); App. at 375 (stating that “most prenatal and postpartum care is continuing” during the COVID-19 pandemic and cannot be done remotely before concluding that “requiring people to continue unwanted pregnancies utilizes more PPE and more hospital resources than abortion care”).
It is true that, as the majority notes, the Supreme Court acknowledged that “increased driving distances do not always constitute an
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No. 20-50296
‘undue burden.’” Hellerstedt, 136 S. Ct. at 2313. But the district court’s
conclusion was not based on increased driving distance alone. The distance
was “one additional burden, which, when taken together” with the forced
postponement of abortion care, which created a significant backlog of need with
a “virtual absence of any health benefit,” id., “beyond question” constituted an
undue burden, Abbott II, 2020 WL 1685929, at *11. This conclusion was a
reasonable interpretation of the evidence, and it therefore did not produce
palpably erroneous results such that mandamus is appropriate.15
CONCLUSION
The present case is an excellent demonstration of the dangers of
using the extraordinary remedy of mandamus to overmanage matters that are
properly left to a district court’s discretion. In part because of the decisions of
this court, the legality of abortion in Texas has changed no less than six times
since the beginning of the COVID-19 pandemic. This court has expended
substantial time and judicial resources in an effort to prevent interference with
the state’s pandemic response at a most urgent time, only to instead contribute
to a confusion that is likely more disruptive than the alleged harm it sought to
15 The majority determines that the district court did not patently err by enjoining the enforcement of GA-09 against abortions in the 22-week category. Majority at 34-35. I agree that the district court did not patently err and that mandamus is not warranted. However, I disagree with the majority’s characterization of the evidence of women who would be denied abortions in this category as “second-hand” and “weak.” Majority at 34. Contra App. at 103 (declaration from CEO of nonprofit operator of an abortion clinic stating from personal knowledge that her clinic canceled two appointments with women who will be past the 22-week legal limit for an abortion by the expiration of GA-09); App at 349 (declaration from general manager of surgical center stating from personal knowledge that at least three of the patients whose appointments were canceled will be past the 22-week legal limit for abortion by the expiration of GA-09); App. at 353 (declaration from senior director of ambulatory surgical center stating from personal knowledge that, based on ultrasound dating, at least three of the appointments the clinic canceled were for women who will be beyond the legal gestational age limit to obtain an abortion by the expiration of GA09); App. at 442 (declaration from employ of abortion financial assistance fund stating from personal knowledge that at least ten of the funds clients will be past the 22-week gestational age limit for an abortion by the expiration of GA-09).
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prevent. Even today’s order will have little practical effect other than to briefly change the legality once more. Under GA-15, which takes effect at midnight on April 22, abortion legality in Texas will apparently change for an eighth time, as the Respondents have represented that all of their abortion care will fall into the new exception that exempts services provided by heath facilities that certify they will not draw upon any public supply of PPE.
The majority again concludes that mandamus is appropriate to correct what it perceives as rampant abuses of discretion by the district court that produced patently erroneous results. As I have said, I strongly disagree with the majority’s critique of the district court’s work, and I do not believe that this case warrants mandamus relief. I therefore once again respectfully but emphatically dissent.
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Case: 20-50296 Document: 00515388775 Page: 1 Date Filed: 04/20/2020 Case 1:20-cv-00323-LY Document 94 Filed 04/20/20 Page 70 of 70

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130
April 20, 2020

Ms. Jeannette Clack Western District of Texas, Austin United States District Court 501 W. 5th Street Austin, TX 78701-0000
No. 20-50296 In re: Greg Abbott, et al USDC No. 1:20-CV-323

Dear Ms. Clack,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Peter A. Conners, Deputy Clerk 504-310-7685
cc: Mrs. Molly Rose Duane Ms. Heather Gebelin Hacker Mr. Kyle Douglas Hawkins Ms. Beth Ellen Klusmann Mr. Richard Muniz Ms. Julie A. Murray Ms. Elizabeth Baker Murrill Mr. Patrick J. O'Connell Ms. Jennifer Sandman Ms. Rupali Sharma Ms. Hannah Swanson Mrs. Natalie Deyo Thompson Ms. Stephanie Toti Mr. Edward Lawrence White

 
 Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER §

FOR CHOICE, et al.,

§

§

Plaintiffs,

§ §

Civil Action No. 1:20-cv-00323-LY

v.

§

§

GREG ABBOTT, et al.,

§

§

Defendants.

§

§

STATE DEFENDANTS’1 SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Defendants Greg Abbott, in his official capacity as Governor of Texas, Ken Paxton, in his official capacity as Attorney General of Texas, Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board, and Katherine A. Thomas, in her official capacity as the Executive Director of the Texas Board of Nursing (collectively “State Defendants”).

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 2 of 24

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................... 3
STATEMENT OF FACTS ............................................................................................. 3
LEGAL STANDARD...................................................................................................... 6
ARGUMENT .................................................................................................................. 6
I. The Court Should Deny the Motion for Preliminary Injunction Because Plaintiffs Have No Likelihood of Success on the Merits. ....................... 6
A. The Court lacks jurisdiction to grant prospective injunctive relief as to the enforcement of GA-09 and the corresponding Emergency Rule because GA-09 and the Emergency Rule are no longer in effect. ................................................................................................................ 7
B. This Court lacks jurisdiction over any GA-15 claims..................................... 8
1. Plaintiffs may not sue the Governor and Attorney General for injunctive relief......................................................................................... 8
2. There is no case or controversy regarding GA-15. .................................. 9
3. Plaintiffs lack standing to challenge GA-15............................................ 9
II. If the Court considers the merits of Plaintiffs’ motion, it should deny relief because Plaintiffs fail to show a constitutional violation “beyond question.”............................................................................................................... 13
A. Plaintiffs cannot show any burden on abortion rights because GA15 does not require certifying facilities to postpone procedures.................. 13
B. Following the mandate rule, as the Court must, provides no means for Plaintiffs to obtain relief because their evidence is still insufficient. .................................................................................................... 14
1. Plaintiffs lack evidence showing how much PPE should be used and is being used for abortion procedures during the COVID-19 pandemic................................................................................................. 15
2. Plaintiffs lack evidence showing how an increase in travel for abortion patients compares to the decrease in travel for many patients across the state. ....................................................................... 17
3. Plaintiffs lack evidence showing how often medication abortions require follow-up surgical aspiration, not just hospitalization. ........... 17
4. Plaintiffs lack evidence of specific patients who are approaching 18 weeks LMP and would suffer a specific burden on abortion access. ..................................................................................................... 18

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Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 3 of 24 5. Plaintiffs lack evidence of specific patients who would be over 22
weeks LMP before expiration of GA-15 and would suffer a complete deprivation of abortion access. ............................................... 19 III. Plaintiffs Cannot Satisfy The Remaining Factors For Preliminary Injunctive Relief.................................................................................................... 20 CONCLUSION............................................................................................................. 21 CERTIFICATE OF FILING AND SERVICE ............................................................. 22
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INTRODUCTION Plaintiffs may no longer obtain injunctive relief as to GA-09, as that executive order and the corresponding TMB emergency rule have been supplanted as of last night, April 21, 2020. The new executive order addressing elective surgeries and procedures, GA-15, went into effect this morning, April 22, 2020. Should Plaintiffs challenge GA-15 and continue to seek injunctive relief, as this Court stated it would allow them to do, there is no legal basis for relief for multiple reasons. First, this Court lacks jurisdiction to grant such relief because there is no case or controversy remaining, as Plaintiffs have already certified they are in compliance with an exception to GA-15, one that was not included in GA-09. Second, because Plaintiffs admit that the exemption now applies to them based on their certification, Plaintiffs are not being injured and can show no burden on the rights of their patients. Third, even if GA-15 was identical to GA-09—and it clearly is not—the Fifth Circuit has already held that Plaintiffs lack evidence to show they are entitled to injunctive relief. Plaintiffs’ new evidence is either cumulative to evidence already before the Court or irrelevant. This Court should deny the motion for preliminary injunction.
STATEMENT OF FACTS The spread of COVID-19, the disease caused by the novel coronavirus known as SARS-CoV-2, is a global pandemic. Thompson Decl. ¶ 3 (DX-8). Since the last time State Defendants filed a brief in this Court, the number of COVID-19 cases in Texas has grown from around 2,500 cases to nearly 22,000. DX-3.2 Texas law makes the Governor “responsible for meeting the dangers to the state
2 See also Tex. Dep’t of State Health Servs., COVID-19 Texas Case Counts, https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298 ab01e8b9cafc8b83 (accessed Apr. 22, 2020).
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and people presented by disasters.” Tex. Gov’t Code § 418.011. The Governor declared a statewide disaster on March 13, 2020 pursuant to Texas Government Code section 418.014. DX-1. The Government Code grants the Governor broad authority once he has declared a disaster. Id. §§ 418.016, 418.017(c). These powers are exercised by the Governor through the issuance of executive orders, proclamations, and regulations, which the Governor also has the power to amend or rescind. Id. at § 418.012. Executive orders, proclamations, and regulations “have the force and effect of law.” Id. On March 19, 2020, Dr. John Hellerstedt, Commissioner of the Department of State Health Services, declared a public health disaster under Texas Health and Safety Code section 81.082 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.” DX2.
On March 22, 2020, the Governor issued an executive order designed to increase the capacity of Texas’s healthcare system to absorb a surge of COVID-19 patients and address the severe shortage of PPE. DX-4 (GA-09). Shortly thereafter, the Texas Medical Board (TMB) issued an Emergency Rule, 22 Tex. Admin. Code § 187.55, providing a mechanism for enforcement. GA-09 applied to all licensed health care professionals and all licensed health care facilities in the State. It required that they “postpone all surgeries and procedures that are not immediately 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.” Id. It did not apply
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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.” Id. GA-09 expired on its own terms on April 21, 2020. Id.
At 11:59pm on April 21, 2020, a new Executive Order pertaining to elective surgeries and procedures took the place of GA-09. GA-15 also applies to all licensed health care professionals and all licensed health care facilities in the State. DX-11. It requires that they “postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Id. It also does 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.” Id.
Significantly, GA-15 provides an additional exception for “any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both: (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.” Id. GA-15 expires on May 8, 2020. Id.
Under the text of GA-15, providers are responsible for certifying that they meet the conditions of the new exception. Id. Both HHSC and the Texas Medical Board
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(TMB) agree that HHSC’s role is limited to receiving certifications from facilities and acknowledging receipt. Id.; DX-13, DX-14. TMB issued an emergency rule, which went into effect at midnight on April 22, 2020 along with GA-15, and replaces 22 Tex. Admin. Code § 187.55, the previous Emergency Rule that corresponded with GA-09. DX-12. The New Emergency Rule tracks the language of GA-15, including the new exception, and provides a mechanism for enforcement.
Every Plaintiff clinic has certified to HHSC that it meets the requirements of the new exception in GA-15. DX-15.
LEGAL STANDARD A preliminary injunction is “an extraordinary remedy that should only issue if the movant shows: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest.” Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). At the preliminary injunction stage, Plaintiffs “bear the burden to prove, by a ‘clear showing’ that they are entitled to relief.” In re Abbott, No. 20-50264, 2020 WL 1685929, at *12 (5th Cir. Apr. 7, 2020) (Abbott I) (citation omitted).
ARGUMENT I. The Court Should Deny the Motion for Preliminary Injunction Because
Plaintiffs Have No Likelihood of Success on the Merits. Plaintiffs cannot show an entitlement to injunctive relief as to GA-09 because it is no longer effective. DX-4. To the extent Plaintiffs may yet raise challenges to GA15 and the New Emergency Rule (and they have not done so) and to the extent the
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Court entertains those challenges under this motion,3 the Court lacks jurisdiction because Plaintiffs lack standing to obtain any relief and there is no case or controversy between the parties.
“A district court’s obligation to consider a challenge to its jurisdiction is non-discretionary.” In re Gee, 941 F.3d 153, 159 (5th Cir. 2019). “When the defendant ‘challenge[s] the jurisdiction of the district court in an appropriate manner,” that court has a “duty of making further inquiry as to its own jurisdiction.’ Id. (quoting Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666 (5th Cir. 1971)).
A. The Court lacks jurisdiction to grant prospective injunctive relief as to the enforcement of GA-09 and the corresponding Emergency Rule because GA-09 and the Emergency Rule are no longer in effect.
The “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Plaintiffs cannot show that they will “likely” suffer irreparable injury with respect to GA-09 because it is no longer effective and no longer being enforced. DX-4. The Fifth Circuit recently confirmed that this Court lacks jurisdiction to order prospective relief against officials who do not enforce an executive order. In re Abbott, No. 20-50296, 2020 WL 1911216, at *6-7 (5th Cir. Apr. 20, 2020) (Abbott II). No one is enforcing GA-09 or the Emergency Rule because neither remains operative. In re Abbott thus forecloses any relief as to GA-09 and the Emergency Rule.
3 The Court indicated at the telephone conference of April 20, 2020 that despite GA15 not being part of the current lawsuit, the Court would entertain a challenge to GA15 as part of the already-pending motion for preliminary injunction.
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B. This Court lacks jurisdiction over any GA-15 claims. Plaintiffs state that they include GA-15 in their request for preliminary injunctive relief (despite it not being included in the operative complaint) “[t]o the extent Defendants intend to interpret and enforce the rule consistent with their interpretation of GA-09 and inconsistent with GA-15’s new exception.” Suppl. Mem. Supp. Mot. 1 n.1. As explained above, GA-15 and GA-09 are not the same, and GA-15 contains an exception GA-09 lacked and that Plaintiffs certify they meet, so it is unclear how they would be applied the same way. Thus, according to their own motion, Plaintiffs have no basis for preliminary injunctive relief against GA-15. But even if the Court entertained a claim for relief related to GA-15, the Court lacks jurisdiction over any putative claims related to GA-15 because there is no case or controversy and Plaintiffs lack standing.
1. Plaintiffs may not sue the Governor and Attorney General for injunctive relief.
As the Fifth Circuit already held, “the Governor lacks the required enforcement connection to GA-09 and may not be sued for injunctive relief under the Eleventh Amendment.” Abbott II, 2020 WL 1911216, at *6. The Fifth Circuit also settled the question as to the Attorney General: “The Attorney General also lacks the required enforcement connection to GA-09 and may not be sued for injunctive relief under the Eleventh Amendment.” Id. Like GA-09, GA-15 provides no enforcement connection to these state officials. DX-11. The Governor and the Attorney General therefore are not proper parties to any suit challenging GA-15, and the Court lacks jurisdiction to enter injunctive relief against them. Abbott II, 2020 WL 1911216, at *7.
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2. There is no case or controversy regarding GA-15. “The exercise of judicial power under Article III of the United States Constitution depends upon the existence of a case or controversy. Without an actual case or controversy, a federal court has no jurisdiction.” John Doe #1 v. Veneman, 380 F.3d 807, 814 (5th Cir. 2004). ‘“There must be a case or controversy through all stages of a case’—not just when a suit comes into existence but throughout its existence.” Yarls v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018) (quoting K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013)). For about two weeks, GA-15 delays surgeries or procedures that are not medically necessary, but provides an exception for procedures performed in facilities that make the specified certification to HHSC. DX-11. Plaintiffs state that they can truthfully certify that they qualify for the exception. Suppl. Mem. Supp. for Prelim. Inj. at 1. Plaintiffs in fact have made those certifications and received acknowledgment from HHSC. DX-15. Having done so, Plaintiffs admit the exemption applies to them. There is no controversy between the parties, and the Court therefore lacks jurisdiction.4
3. Plaintiffs lack standing to challenge GA-15. Closely related to the above is Plaintiffs’ lack of standing to challenge GA-15.
4 As the Fifth Circuit just cautioned, were the Court to find that the plain text of GA15 is ambiguous or disagree with state officials’ interpretation of it, “any relief ordering a state official to comply with state law would be barred by the Pennhurst doctrine. Abbott II, 2020 WL 1911216, at *15 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Moreover, the Supreme Court has long held that district courts must abstain from deciding cases where a state-law question—like the proper interpretation of state law—would “avoid or significantly modify” the federal analysis. Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 512 (1972); see R.R. Comm’n v. Pullman Co., 312 U.S. 496, 500 (1941).
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‘“[F]ederal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” In re Gee, 941 F.3d at 159 (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (citation omitted)). Plaintiffs cannot show they are being injured by any State Defendant and lack standing to pursue relief from GA-15 or the New Emergency Rule. This Court therefore lacks jurisdiction over any future challenge by Plaintiffs as to those provisions.
a. A plaintiff seeking relief in federal court must first plausibly allege “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation marks omitted). The “threatened injury must be certainly impending to constitute injury in fact, and . . . allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013) (quotations and brackets omitted). “By ensuring a future injury is not ‘too speculative,’ the imminence requirement [of article III standing] ‘reduce[s] the possibility of deciding a case in which no injury would have occurred at all.’ ” Ctr. for Biological Diversity v. United States Envt’l Prot. Agency, 937 F.3d 533, 537 (5th Cir. 2019) (quoting Lujan, 504 U.S. at 564 n.2).
Because GA-15 is not addressed in the operative complaint, there are no allegations of injury. 2d Am. Compl. 2-27. But assuming Plaintiffs will make allegations regarding GA-15 like those they made for GA-09, there is no injury in fact traceable to the State Defendants. All the Plaintiff abortion clinics have submitted certifications, and HHSC has acknowledged receipt of those certifications. DX-15. According to the text of GA-15 and HHSC, that is the extent of HHSC’s role under GA-15. DX-
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11; see also DX-13, DX-14. TMB will enforce GA-15 only if it receives a complaint of non-compliance and verifies the allegation through investigation. DX-14.5 Because Plaintiffs have now certified to HHSC that they qualify for the exemption, neither HHSC nor TMB will take any unilateral enforcement action against them.
If Plaintiffs choose not to perform abortions despite making the certification to qualify for the exemption, that does not give them standing. “A plaintiff ’s decision to forego action based on speculation is not an injury sufficient to confer standing.” Zimmerman v. City of Austin, 881 F.3d 378, 389-90 (5th Cir. 2018); see also Ctr. for Biological Diversity, 937 F.3d at 540-42. “Parties ‘cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.’” Glass v. Paxton, 900 F.3d 233, 239 (5th Cir. 2018) (quoting Clapper, 568 U.S. at 416).
b. Next, the plaintiff must show it is “likely,” as opposed to merely “speculative,” that the claimed injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Plaintiffs’ GA-15 claims against the State Defendants do not meet that standard. Assuming Plaintiffs would seek an order enjoining State Defendants from enforcing GA-15 and the New Emergency Rule as applied to abortions like they did with GA-09, Plaintiffs cannot show any likelihood of enforcement if they have certified that
5 Plaintiffs have never articulated what their theory of injury is with respect to the Texas Nursing Board. TNB, unlike TMB, has not passed any emergency rules providing for enforcement for non-compliance with either GA-09 or GA-15, and the disciplinary code section cited by Plaintiffs in the Complaint does not mention anything about compliance with Executive Orders. See 2d Am. Compl. ¶ 28; Tex. Occ. Code. § 301.452. In light of the absence of any allegations, let alone evidence, this Court cannot enter relief against TNB.
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they meet GA-15’s exemption. Standing to seek prospective relief against the enforcement of state law requires “a credible threat of prosecution.” Cruz v. Abbott, 849 F.3d 594, 602 (5th Cir. 2017). Any prosecution based on the Executive Order would be pursued by the District Attorney Defendants, and there is no allegation that these Defendants are at all likely to pursue prosecution, let alone under GA-15. See 2d Am. Compl. 2-27. Before any Plaintiff could suffer injury, the relevant District Attorney would have to find that Plaintiffs are in violation of GA-15 despite their certifications and decide to pursue prosecution. And as to TMB, it will issue sanctions for violation of GA-15 only if it first (1) receives a complaint of non-compliance, (2) the complaint contains sufficient evidence to prompt an investigation; and (3) verifies the allegation through investigation. DX-14. Injury that relies on such an “attenuated chain of inferences” does not suffice for standing. Clapper, 568 U.S. at 414 n.5.
A mere fear of prosecution absent any indication it will occur is not enough to establish standing. Hypothetical injuries are insufficient to establish Article III jurisdiction. Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017), cert. denied, 138 S. Ct. 468 (2017). The Fifth Circuit, in upholding this Court’s standing conclusion in Glass, held that “[b]y adjudicating claims for which the alleged harm is not certainly impending, federal courts risk disregarding their constitutional mandate to limit their jurisdiction to actual cases and controversies and thereby avoid the issuance of advisory opinions.” 900 F.3d at 242. GA-15 causes no harm to Plaintiffs, nor is any “certainly impending.” Plaintiffs therefore lack standing, and this Court lacks jurisdiction to enter injunctive relief.
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II. If the Court considers the merits of Plaintiffs’ motion, it should deny relief because Plaintiffs fail to show a constitutional violation “beyond question.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 35 (1905), “prohibits
courts from ‘usurp[ing] the state’s authority to craft measures responsive to a public health emergency.’” Abbott II, 2020 WL 1911216, at *12 (citing Abbott I, 2020 WL 1685929, at *12). “Courts have no authority to ask whether a ‘particular method [is]— perhaps, or possibly—not the best.’” Id. (quoting Jacobson, 197 U.S. at 35). “Instead, courts may ask only whether the state has acted in an ‘arbitrary, unreasonable manner.’” Id. (quoting Jacobson, 197 U.S. at 28). In the context presented here, where Plaintiffs claim a burden on the right to abortion, “a court should ‘ask[ ] whether GA09 imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic Texas now faces.” Id. (quoting Abbott I, 2020 WL 1685929, at *11 (quoting Jacobson, 197 U.S. at 31)). The Fifth Circuit emphasized that this “delicate inquiry” requires ‘careful parsing of the evidence.’” Id. at *13 (quoting Abbott I, 2020 WL 1685929 at *11). Evaluating the evidence under the prescribed standard shows that Plaintiffs are not entitled to injunctive relief.
A. Plaintiffs cannot show any burden on abortion rights because GA15 does not require certifying facilities to postpone procedures.
As stated above, on its face, GA-15 does not require facilities to postpone procedures if the facility has certified it meets the exception. DX-11. Thus, all of Plaintiffs’ arguments about burdens caused by GA-09’s postponements are irrelevant. Plaintiffs cannot show any entitlement to injunctive relief because no patients’ rights are being burdened.
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B. Following the mandate rule, as the Court must, provides no means for Plaintiffs to obtain relief because their evidence is still insufficient.
Even if GA-15 were identical to GA-09—it’s not—and this Court had jurisdiction to grant relief—it doesn’t—Plaintiffs’ evidence is insufficient to show a likelihood of success on the merits, as the Fifth Circuit has already determined twice. This Court must follow the mandate rule, “a particular manifestation of the law-of-the-case doctrine barring reexamination of issues already decided by an appellate court.” Abbott II, 2020 WL 1911216, at *7 (citing United States v. Smith, 814 F.3d 268, 273 (5th Cir. 2016)). “Under the mandate rule, a district court ‘must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.’” Id. (citing United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)).
The Fifth Circuit has twice found that the record before it “failed to support the conclusion that GA-09 violates Jacobson [v. Commonwealth of Massachusetts] and [Planned Parenthood of Southeastern Pennsylvania v.] Casey.” Id. at *9. Thus, in evaluating Plaintiffs’ claim for relief, the Court should look beyond evidence “already found wanting.” Id. Instead, the Court must consider whether Plaintiffs’ new evidence—Exhibits 21-40—addresses the deficiencies identified by the Fifth Circuit. If it does not, the mandate rule bars relief.
In its most recent opinion, the Fifth Circuit identified examples of areas where additional evidence might help Plaintiffs meet their heavy burden to show a constitutional violation “beyond question” under Jacobson:
1. Evidence showing how much PPE should be used and/or is being used for abortion procedures during the current pandemic, not under normal circumstances. Abbott II, 2020 WL 1911216, at *10.
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2. Evidence showing how any increase in travel for some patients compares to the amount of travel GA-09 has reduced. Id. at *13.
3. Evidence showing how often medication abortions require follow-up surgical aspiration, not just hospitalization. Id. at *14.
4. Evidence of “discrete and well-defined instances” of a woman over 18 weeks LMP who would suffer a specific burden on abortion access to support an as-applied challenge. Id. at *16.
5. Direct, not “secondhand, and thus weak,” evidence of specific patients who will be 22 weeks LMP before expiration of GA-09 and for whom GA-09 operates as a permanent ban. Id. at *17.6
Plaintiffs’ evidence is still deficient. At best, it is merely cumulative of the evidence already rejected twice by the Fifth Circuit. At worst, it is irrelevant given the Fifth Circuit’s legal conclusions. Each of the five categories will be addressed in turn below.
1. Plaintiffs lack evidence showing how much PPE should be used and is being used for abortion procedures during the COVID-19 pandemic.
To start, GA-15 does not require any facility that certifies compliance with the exception to postpone any procedure. DX-11. But even if it somehow did despite GA15’s plain text, Plaintiffs have failed to proffer evidence justifying injunctive relief. In the second mandamus opinion, the Fifth Circuit held that the record contained insuf-
6 While the Fifth Circuit concluded that this was the only part of the second TRO that it could not conclude was a “clear abuse of discretion” “at this early stage,” it also stated that “given the weak evidence, we are not fully satisfied with this [Court’s ] cursory conclusion” as to women exceeding the legal limit.” Id.
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ficient evidence to support “the conclusion that merely postponing medication abortions ‘beyond question’ violates the right to abortion.” Id. at *10. As part of that conclusion, the Court observed that there was no evidence showing how abortion providers are using PPE during the pandemic: “Scour the twenty declarations [Plaintiffs] submitted to support their claim. Does any testify that during the current pandemic, abortion providers are not wearing masks? No. Nor would one expect such a statement when everyday life now presents … grocery store cashiers, gas station attendants, and retail clerks wearing them every day.” Id. (footnote omitted).7 “Scour” the new declarations, and there is again a lack of evidence on this point, and only more of the same—PPE usage under normal circumstances. See Roe Decl. ¶ 98 (opinion on general PPE usage not specific to pandemic); ¶ 14 (seeing pregnant patients during pandemic requires extra PPE to prevent transmission of virus); Schutt-Aine 2d Decl. ¶¶ 15, 22 (PPE use for pregnant patients during pandemic); ¶¶ 38, 40, 43 (general assertions on PPE usage not specific to pandemic); see also generally Pls.’ Exs. 23-39. Plaintiffs have once again failed to support the conclusion that merely postponing medication abortions—or any type of abortion—“‘beyond question’ violates the right to abortion.” Abbott II, 2020 WL 1911216, at *10.
7 At least one plaintiff—Planned Parenthood of Greater Texas—is requiring all patients to wear a “face covering” because of COVID-19. https://perma.cc/4SKV-Y7KD. 8 State Defendants vehemently object to Plaintiffs’ use of declarations from anonymous purported experts and anonymous non-essential fact witnesses, especially given that these witnesses are not even identified to counsel and the parties will have no opportunity to cross-examine these supposed witnesses. State Defendants soon intend to file a motion for reconsideration of the Court’s order granting the protective order and allowing these witnesses to not identify themselves, since they were not given time to respond under the Local Rules of this Court.
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2. Plaintiffs lack evidence showing how an increase in travel for abortion patients compares to the decrease in travel for many patients across the state.
The Fifth Circuit held that this Court “usurp[ed] state authority to create publichealth measures” when it previously concluded that GA-09 did not serve the public interest. The Court had relied on hearsay evidence previously submitted by Plaintiffs to show that some women were choosing to travel out of state to receive an abortion rather than wait until GA-09 expired. Id. at *13. Again, the plain text of GA-15 does not require any facility that certifies compliance with the exception to postpone procedures, so it follows that any continued traveling out of state for procedures is not attributable to GA-15. DX-11. But even if it did, the Fifth Circuit held that “evidence that some women travel to other states to receive an abortion does not demonstrate that GA-09 increases the risk of COVID-19 transmission. Such a claim would require comparing the amount of travel that GA-09 has increased with the amount of travel it has reduced.” Id. It pointed out Plaintiffs’ admissions that women normally travel all over Texas to receive abortions. Id. In other words, it is unclear that some women choosing to travel out of state creates more risk of the spread of COVID-19 than is being reduced by delaying abortion procedures. Plaintiffs submitted no evidence on this point. See generally Pls.’ Exs. 21-40.
3. Plaintiffs lack evidence showing how often medication abortions require follow-up surgical aspiration, not just hospitalization.
The Fifth Circuit determined that the Court’s previous conclusion that the number of medication abortions that require a follow-up surgical procedure “is exceedingly small” was unsupported by the record. Abbott II, 2020 WL 1911216, at *14. The Fifth Circuit explained that Plaintiffs’ evidence did not support that statement, as it referred only to hospitalization, and that State Defendants submitted evidence showing
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the opposite was true. Id. Plaintiffs have now submitted a second declaration from Dr. Schutt-Aine, which admits that the FDA states that the surgical aspiration follow-up rate is 2.6%. Schutt-Aine 2d Decl. ¶ 45. First, that number is not “exceedingly small.” Abbott II, 2020 WL 1911216, at *14. According to 2017 figures, that would be 443 surgical follow-ups per year, or more than eight per week. DX-5. But it also fails to clarify much according to Plaintiffs’ own arguments. Plaintiffs argued that State Defendants’ evidence— an ACOG practice bulletin reaffirmed in 20169--was “outdated.” Id. But Dr. Schutt-Aine’s evidence is also from 2016. See Schutt-Aine 2d Decl. ¶ 45 n. 22. None of Plaintiffs’ other evidence addresses this. See generally Exs. 21-36, 38-40.
4. Plaintiffs lack evidence of specific patients who are approaching 18 weeks LMP and would suffer a specific burden on abortion access.
The Fifth Circuit held that delaying an abortion procedure for a woman who was approaching 18 weeks LMP is not an absolute ban on abortion and surmised that this Court instead “had in mind an as-applied challenge to GA-09 on behalf of a woman facing this particular combination of circumstances.” Id. at 16. But the Fifth Circuit held that such relief “would require evidence of ‘discrete and well-defined instances’ sufficient to support such a challenge . . . but the district court cited none and we can find none in the record.” Id. at *16 (citation omitted). Nor is there any now. Like the
9 See TRO Resp. 18 n. 41 (citing Am. Coll. of Obstetricians and Gynecologists, Medical Management of First-Trimester Abortion, Practice Bulletin 143 (2016), https://www.acog.org/clinical/clinicalguidance/practice-bulletin/articles/2014/03/ medical-management-of-first-trimesterabortion); Reply in Support of Petition for Writ of Mandamus 5 n. 6, Abbott II, 2020 WL 1911216 (5th Cir. filed Apr. 15, 2020).
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declaration of the abortion-hotline coordinator Rashae Ward (Ex. 21), which was rejected by the Fifth Circuit as insufficient, id., Plaintiffs’ new declarations only provide more of the same non-specific evidence. Compare Ward Decl. ¶¶ 13, 16 with Bennett Decl. ¶ 24, Hagstrom-Miller 2d Decl. ¶ 5, Sanford Decl. ¶ 17, Moe Decl. ¶¶ 18-19.
5. Plaintiffs lack evidence of specific patients who would be over 22 weeks LMP before expiration of GA-15 and would suffer a complete deprivation of abortion access.
The Fifth Circuit found that this Court’s TRO as to women who would exceed the gestational limit for abortion in Texas before GA-09 expired was not “so patently erroneous that mandamus is appropriate,” but expressed serious reservations about the sufficiency of Plaintiffs’ evidence past the TRO stage. Abbott II, 2020 WL 1911216, at *17. In particular, the Court pointed out that the only evidence was “secondhand” and therefore “weak.” Id. That is still true of Plaintiffs’ new evidence. See Moe Decl. ¶19; Nguyen 2d Decl. ¶ 5. Further, the Fifth Circuit pointed out that it is unknown whether “GA-09’s exception for ‘patient[s] who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences ... as determined by the patient’s physician,’” already covers women in these circumstances.” Id. (quoting Abbott I, 2020 WL 1685929, at *3). Plaintiffs have submitted no evidence on that point, and to the extent that question is a matter of interpretation of state law, the proper forum for answering that question is state court. See Reetz v. Bozanich, 397 U.S. 82, 86 (1970); Pullman, 312 U.S. at 511.
* * * Plaintiffs have failed to meet the exacting burden required to merit the extraordinary remedy of a preliminary injunction. Plaintiffs cannot show any burden because the text of GA-15 does not require facilities that have certified compliance with
19

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the exception to postpone procedures. Even if it did, Plaintiffs’ evidence is still insufficient to warrant injunctive relief according to the Fifth Circuit because it fails to establish that the right to abortion has been violated “beyond question.” III. Plaintiffs Cannot Satisfy The Remaining Factors For Preliminary
Injunctive Relief. Plaintiffs cannot show irreparable harm because they cannot show that they are being prohibited from doing anything by GA-15. See Ridgely, 512 F.3d at 734; Parts I.B.2, II.A supra. Conversely, the State will be harmed if the Court exempts Plaintiffs from compliance with a law that every other medical provider must follow, so the balance of equities weighs decisively in the State’s favor. See Ridgely, 512 F.3d at 734. Moreover, COVID-19 is a serious and imminent threat to public health. Abraham Decl. ¶ 3 (DX-6). GA-15 is a necessary but temporary measure to protect the public. As the Fifth Circuit held, when it comes to determining what serves the public interest, “a court must assume that the public health experts at the Texas Department of State Health Services—not to mention the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services—weighed these difficult tradeoffs between medical care and public health. Federal judges get no vote on the matter.” Abbott II, 2020 WL 1911216, at *13 (citing Jacobson, 197 U.S. at 35).
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Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 22 of 24
CONCLUSION For the foregoing reasons, the State Defendants respectfully request that the
Court deny the motion for a preliminary injunction.
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief, General Litigation Division
/s/ Andrew B. Stephens ANDREW B. STEPHENS Texas Bar No. 24079396 BENJAMIN S. WALTON Texas Bar No. 24075241 Assistant Attorneys General General Litigation Division
HEATHER GEBELIN HACKER Assistant Solicitor General Texas Bar No. 24103325
Office of the Attorney General 300 West 15th Street P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2120 (phone) (512) 320-0667 (fax)
Attorneys for State Defendants
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Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 23 of 24

CERTIFICATE OF FILING AND SERVICE

I certify that on April 22, 2020, this document was served through the Court’s CM/ECF Document Filing System or through electronic mail, upon the following counsel of record:

Patrick J. O’Connell Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, TX 78731 (512) 852-5918 pat@pjofca.com

Molly Duane Rabia Muqaddam Francesca Cocuzza Center for Reproductive Rights 199 Water St. 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org

Julie Murray Alice Clapman Richard Muniz Hannah Swanson Planned Parenthood Federation of America 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org alice.clapman@ppfa.org richard.muniz@ppfa.org hanna.swanson@ppfa.org

Stephanie Toti Rupali Sharma Sneha Shah Lawyering Project 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org

Jennifer Sandman Planned Parenthood Federation of America 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org

Justin C. Pfeiffer Assistant Fort Bend County Attorney 301 Jackson Street (Mail) Richmond, Texas 77469 (281) 341-4555 Justin.Pfeiffer@fortbendcountytx.gov

Brigitte Adrienne Amiri American Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 549-2633 bamiri@aclu.org

John Butrus Assistant District Attorney for Dallas County 133 N. Riverfront Blvd., L.B. 19 Dallas, TX 75207 (214) 653-3691 John.buterus@dallascounty.org

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Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 24 of 24

Elizabeth Murrill Solicitor General Joseph Scott S. John Louisiana Department of Justice 1885 N. Third Street Baton Rouge, LA 70804 (225) 456-7544 / (225) 485-2458 emurrill@ag.louisiana.gov stjohnj@ag.louisiana.gov
Adam Arthur Biggs Special Litigation Counsel P.O. Box 12548, Capitol Station Austin, TX 78711 (512) 463-2120 adam.biggs@oag.texas.gov Counsel for Tarrant and McClennan County District Attorneys

Anjali Salvador Andre Segura ACLU Foundation of Texas, Inc. P.O. Box 8306 Houston, TX 77288 (713)942-8146 asalvador@aclutx.org asegura@clutx.org

/s/ Andrew B. Stephens
ANDREW B. STEPHENS Assistant Attorney General

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Case 1:20-cv-00323-LY Document 100-1 Filed 04/22/20 Page 1 of 5
DX-11

Case 1:20-cv-00323-LY Document 100-1 Filed 04/22/20 Page 2 of 5

GOVERNOR GREG ABBOTT

April 17, 2020

The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701
Dear Secretary Hughs:

FILED IN THE OFFICE OF THE SECRETARY OF STATE
ll 4DAffi'CLOCK
4 ~,) 72020
1'd ~ t•

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:

Executive Order No. GA-15 relating to hospital capacity during the COVID-19 disaster.

The original executive order is attached to this letter of transmittal.

Respectfully submitted,

Attachment

POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES

Case 1:20-cv-00323-LY Document 100-1 Filed 04/22/20 Page 3 of 5
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas April 17, 2020
EXECUTIVE ORDER GA 15
Relating to hospital capacity during the COVID-19 disaster.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and
WHEREAS, the Commissioner of the Texas Department of State Health Services, Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, I have issued numerous executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster; and
WHEREAS, hospital capacity and personal protective equipment were being depleted by surgeries and procedures that were not medically necessary to correct a serious medical condition or to preserve the life of a patient, contrary to recommendations from the President's Coronavirus Task Force, the Centers for Disease Control and Prevention, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services; and
WHEREAS, various hospital licensing requirements would stand in the way of implementing increased occupancy in the event of surge needs for hospital capacity due to COVID-19; and
WHEREAS, I issued Executive Order GA-09 on March 22, 2020, in an effort to avoid a shortage of hospital capacity or personal protective equipment, and it is subject to expiration at 11:59 p.m. on April 21, 2020, absent further action by the governor; and
WHEREAS, the "governor is responsible for meeting ... the dangers to the state and people presented by disasters" under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
FILED IN THE OrFlCE OF THE
SE\CI ~R4EoTAfR\bY OFO'SCTLAOTCEK
APR 17 2020

Case 1:20-cv-00323-LY Document 100-1 Filed 04/22/20 Page 4 of 5

Governor Greg Abbott April 17, 2020

Executive Order GA-15 Page 2

WHEREAS, under Section 418.012, the "governor may issue executive orders ... hav[ing] the force and effect of law;" and
WHEREAS, under Section 418.016(a), the "governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster;" and
WHEREAS, under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis beginning at 11:59 p.m. on April 21, 2020, and continuing until 11:59 p.m. on May 8, 2020:
All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient's physician; provided, however, that this prohibition shall not apply to either of the following:
• 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; or
• any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both: (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID19 disaster.
I hereby continue the suspension of the following provisions to the extent necessary to implement increased occupancy in the event of surge needs for hospital capacity due to COVID-19:
25 TAC Sec. 133.162(d)(4)(A)(iii)(I); 25 TAC Sec. 133.163(f)(l)(A)(i)(m-(III); 25 TAC Sec. 133. l 63(f)(l)(B)(i)(IIl)-(IV); 25 TAC Sec. 133.163(m)(l)(B)(ii); 25 TAC Sec. 133.163(t)(l)(B)(iii)-(iv); 25 TAC Sec. 133.163(t)(l)(C); 25 TAC Sec. 133.163(t)(5)(B)-(C); and Any other pertinent regulations or statutes, upon written approval of the Office of the Governor.
This executive order shall remain in effect and in full force until 11:59 p.m. on May 8, 2020, unless it is modified, amended, rescinded, or superseded by the governor.
FILED IN THr-: ~FF:CE OF THE
SE\CI IR$E0TAARWY\OFO'SCTLAOTCEK
APR 17 2020

Case 1:20-cv-00323-LY Document 100-1 Filed 04/22/20 Page 5 of 5

Governor Greg Abbott April 17, 2020

Executive Order GA-15 Page 3

ATTESTED BY: Secretary of State

Given under my hand this the 17th day of April, 2020.
GREG ABBOTT Governor

FILED IN THE OFFk:E C F;·,,..
SE\CI R: 4ET0AARtY\,-O. OF 'SCTLAOhC:r
APR 17 2020

Case 1:20-cv-00323-LY Document 100-2 Filed 04/22/20 Page 1 of 2
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Case 1:20-cv-00323-LY Document 100-2 Filed 04/22/20 Page 2 of 2
Texas Medical Board Press Release
FOR IMMEDIATE RELEASE April 21, 2020
Media contact: Jarrett Schneider, 512-305-7018 Customer service: 512-305-7030 or 800-248-4062
TMB Adopts Emergency Rule to Enforce Gov. Abbott’s Executive Order GA-15
Following Governor Greg Abbott’s issuance of Executive Order GA-15, the Texas Medical Board’s Executive Committee today adopted rules on an emergency basis to enforce the Governor’s Executive Order which continues the postponement of certain surgeries and procedures as outlined in the order.
The adopted rule amends 22 TAC Chapter 190.8 Violation Guidelines, and adds to the definition of “Unprofessional and Dishonorable Conduct” under 22 TAC §190.8(2)(U). The adopted emergency rule goes into effect later today at 11:59 p.m. when GA-15 goes into effect.
The rule adds to the definition to include the following:
(U) a violation of Texas Executive Order GA-15, issued April 17, 2020, which states: “All licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician; provided, however, that this prohibition shall not apply to either of the following:
(i) 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; or
(ii) any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both:
(1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.”
The Executive Committee also withdrew emergency rules related to Executive Order GA-09 effective today at 11:59 p.m.
The Board has published updated FAQs on the TMB website at www.tmb.state.tx.us/page/coronavirus.
For the latest COVID-19 information for health providers and the public, visit the Department of State Health Services (DSHS) COVID-19 web page at dshs.texas.gov/coronavirus/.
###

Case 1:20-cv-00323-LY Document 100-3 Filed 04/22/20 Page 1 of 4
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Case 1:20-cv-00323-LY Document 100-3 Filed 04/22/20 Page 2 of 4
Texas Health and Human Services Commission
Phil Wilson Executive Commissioner
Health Facility Licensing Guidance Letter
Number: GL 20-1007 Title: Executive Order GA-15 Licensed Health Care Facilities Certification Provider Types: Licensed Health Care Facilities Date Issued: April 17, 2020
1.0 Subject and Purpose
Governor Greg Abbott issued Executive Order GA-09 on March 22, 2020, concerning the postponement of surgeries and procedures in certain circumstances, in response to the state of disaster declared in Texas and the United States of America relating to COVID-19. That order remains in effect and in full force until 11:59 p.m. on April 21, 2020.
Governor Abbott issued Executive Order GA-15 on April 17, 2020, also concerning the postponement of surgeries and procedures in certain circumstances. This letter describes the requirements set forth in Executive Order GA-15, and the responsibilities of licensed health care facilities.
2.0 Executive Order GA-15 Details
Beginning at 11:59 p.m. on April 21, 2020, and continuing until 11:59 p.m. on May 8, 2020, all licensed health care facilities are ordered to postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.
By its terms, this prohibition in GA-15 does not apply to any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both:
P.O. Box 13247 • Austin, Texas 78711-3247 • 512-424-6500 • hhs.texas.gov

Case 1:20-cv-00323-LY Document 100-3 Filed 04/22/20 Page 3 of 4

GL 20-1007

April 17, 2020

Page 2 of 3

(1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
(2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
2.1 Health Care Facility Certification Submission Requirements:
A licensed health care facility’s certification, under GA-15, must be submitted to the Health and Human Services Commission in the form of a letter. The certification letter must:
• Be on the licensed health care facility’s letterhead;
• Be addressed to:
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
• Reference the facility’s name, license type, and license number in the subject line;
• Identify by name the facility’s administrator, director, or other individual with authority to bind the facility;
• Include the following language:
o I certify, on behalf of [name of licensed health care facility], that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
I certify, on behalf of [name of licensed health care facility], that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
• Not limit or qualify the required certification language in any way;

Case 1:20-cv-00323-LY Document 100-3 Filed 04/22/20 Page 4 of 4

GL 20-1007

April 17, 2020

Page 3 of 3

• Be signed by the facility’s administrator, director, or other individual with authority to bind the facility, as identified above; and
• Be submitted to the Health and Human Services Commission via e-mail to HFLCertificationCoordinator@hhsc.state.tx.us.
A licensed health care facility that submits a certification with the required elements, as described above, will receive an acknowledgement via e-mail from the Health and Human Services Commission
3.0 Background/History
Chapter 418 of the Texas Government Code, Emergency Management, authorizes the Governor to declare a state of disaster if a disaster has occurred or the threat or occurrence of a disaster is imminent. See Tex. Gov’t Code §418.014. Chapter 418 also authorizes the Governor to issue executive orders and establishes that those orders have the force and effect of law. See Tex. Gov’t Code §418.012.
4.0 Resources
Executive Order GA-15: https://gov.texas.gov/uploads/files/press/EO-GA15 hospital capacity COVID-19 TRANS 04-17-2020.pdf
5.0 Contact Information
If you have any questions about this letter, please contact the Policy, Rules and Training Unit by email at HCQ PRT@hhsc.state.tx.us.
If you have any questions about the certification process, please contact HFLCertificationCoordinator@hhsc.state.tx.us.

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Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries and Procedures During
Texas Disaster Declaration for COVID-19 Pandemic April 21, 2020
*Disclaimer – The COVID-19 Disaster is a fluid and rapidly evolving situation. Please check these FAQs often as, events may warrant frequent updates.
On April 17, 2020, Governor Abbott issued Executive Order GA-15, which will replace Executive Order GA-09 at 11:59 pm on April 21, 2020. The new executive order will be in effect from 11:59 pm on April 21, 2020 until 11:59 pm on May 8, 2020, unless terminated, modified, or extended by the governor.
1. What will happen to Executive Order GA-09 and the two Texas Medical Board emergency rules associated with it?
Executive Order GA-09 will expire on April 21, 2020 at 11:59 pm. When it expires, it will also end the need for the two TMB emergency rules associated with it. The two emergency rules will no longer be effective and will be withdrawn from the Texas Register.
2. What is the effect of Executive Order GA-15?
Executive Order (EO) GA-15 loosens restrictions placed on surgeries and procedures set forth by Governor Abbott. The loosening of the restrictions is now possible due to actions that resulted in increased hospital bed availability, increased supply of personal protective equipment (PPE), and enhanced supply chains for vital medical resources to address COVID-19.
Executive Order GA-15 continues to focus on preservation of hospital capacity and PPE. GA-15 recognizes and continues to remind physicians to be mindful of their obligations for the safety of patients, fellow healthcare providers, providing quality

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 3 of 12
care, and ensuring best possible outcomes for their patients. This obligation is always at the forefront of medical care. But given the unique situation created by the COVID-19 pandemic, these obligations are more critical than ever before.
GA-15 states that all licensed healthcare professionals and facilities must postpone all surgeries and procedures not medically necessary to diagnose or correct a serious medical condition of or to preserve the life of a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.
There are two exceptions to this restriction. If one of the following conditions is met, then the surgery or procedure can go forward even if it does not meet the restriction above. The exceptions are:
• Any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with COVID-19, or
• Any surgery or procedure performed in a licensed health care facility that has certified in writing to Texas HHSC both (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients, and (2) that it will not request any PPE from any public source—whether federal, state, or local—for the duration of the COVID-19 disaster.
3. What does the first exception about PPE mean?
If the procedure is performed in accordance with the commonly accepted standards of clinical practice and would not potentially deplete the hospital capacity or the PPE needed to cope with the COVID-19 disaster, then the procedure may go forward. However, if the procedure could deplete hospital capacity or the PPE needed to cope with the COVID-19 disaster, then the procedure may not go forward, unless the second exception applies, as discussed above.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 4 of 12
4. What does this second exception about facility certification mean? The healthcare providers must continue to determine if they have to postpone all non-urgent elective surgeries or procedures, unless the surgery or procedure will be performed in a licensed healthcare facility that has completed a written certification submitted to the Texas HHSC. The certification must state both that:
1. The facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID19 patients; and
2. The facility will not request any PPE from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
5. How do I know if the licensed healthcare facility where the surgery or procedure would be completed is one that qualifies for the second exception? The Texas HHSC is the agency that is receiving certifications from healthcare facilities. The physician performing the surgery or procedure must verify with Texas HHSC that the facility where the surgery or procedure will be held has submitted a written certification to the Texas HHSC. This verification must be documented in the medical record. Information from Texas HHSC about how to submit certification for a facility under EO GA-15 can be found -he-r-e.
6. Should I reschedule non-urgent elective in-patient, out-patient, and officebased surgeries and procedures? Yes, unless the physician determines, that the surgery or procedure cannot be postponed, or that the surgery or procedure meets one of the exceptions in GA-15.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 5 of 12
7. What is the effect of emergency rule 22 Texas Administrative Code (TAC) §190.8(2)(U)?
The Texas Medical Board (TMB) Executive Committee, during an emergency meeting on April 21, 2020, adopted an emergency rule amendment to 22 TAC §190.8(2)(U). This emergency amendment adds language clarifying that a violation of Executive Order GA-15 related to the practice of medicine will be considered as potential unprofessional conduct.
8. Is there a mandatory reporting requirement for TMB licensees when the TMB licensee knows or suspects another TMB licensee of violating EO GA-15 like there was EO GA-09?
No. TMB did not pass an emergency rule that included a violation of EO GA-15 to be defined as a “continuing threat” to the public as was done with EO GA-09. Because a violation of EO GA-15 is not defined as a continuing threat, there was no need for an emergency rule amending the pre-COVID-19 mandatory reporting requirement for TMB licensees when the licensee knows or suspects another TMB licensee of being a continuing threat. These measures were not taken for EO GA15 because of the availability of hospital capacity and PPE and a flattened curve that did not exist or was unknown at the time EO GA-09 became effective.
However, the duty to report continuing threats as defined in TMB rules prior to the COVID-19 outbreak still remains.
9. Can I still schedule and perform office-based visits for my patients?
Office-based visits that do not include surgeries or procedures may continue without prohibition. However, the office-based visits should be conducted in accordance with standard protocols, including safety measures that prevent the spread of COVID-19.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 6 of 12
10. What is not included in the term “procedure”? A “procedure” does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests.
11. If I report a violation, will it be confidential? Yes. While the law does not allow for the TMB to accept anonymous complaints, a complainant’s identity will remain confidential. This means that the TMB will know the complainant’s identity, but no one else will.
12. Can I be sued, fired, or otherwise retaliated against for filing a complaint? Texas law prohibits retaliation against any complainant, regardless of the complainant’s identity as a physician, patient, family member or concerned citizen. All complaints to TMB are confidential and your identity will not be disclosed to the individual against whom the complaint is made.
13. How long will this prohibition on non-urgent elective surgeries last? Until Executive Order GA-15 expires on May 8, 2020, unless terminated, modified, or extended by the Governor.
14. What are some sources that might help a physician in deciding whether to proceed with a procedure or surgery? The following sources would be helpful:
- CDC guidelines - CMS guidelines

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 7 of 12
- American College of Surgeons, American Society of Anesthesiologists, Association of Perioperative Registered Nurses and American Hospital Association - Joint Statement: Roadmap for Resuming Elective Surgery after COVID-19 Pandemic, https://www.asahq.org/aboutasa/newsroom/news-releases/2020/04/joint-statement-on-elective-surgeryafter-covid-19-pandemic
- Specialty Society Guidance - Recognized scientific or medical journals, research, or other literature
15. Why does the TMB use the phrase “non-urgent elective surgery or procedure”?
Facilities have different levels of need for “elective” surgeries. These levels are often distinguished by the terms “urgent” or “emergent” by facilities. Some facilities or providers may use the term “acuity.” Regardless, the physician must determine whether, if any medically necessary surgeries or procedures are delayed or canceled, the patient will be at risk for serious adverse medical consequences or death.
“Elective, Non-urgent” cases are defined as cases where there is no anticipated short-term or long-term negative impact as a result of delaying a procedure or surgery. Examples include screening for a nonlife-threatening chronic condition or most cosmetic procedures.
“Urgent or Elective Urgent” means a surgery or procedure where there is a risk of patient deterioration or disease progression that is likely to occur if the procedure or surgery is not timely undertaken and/or the surgery or procedure is significantly delayed. The resulting decline in the patient’s health could make them more vulnerable to COVID-19 and other issues.
“Emergent” means a life-threatening condition in which the surgery or procedure must be undertaken and/or cannot be safely delayed for any significant period of time.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 8 of 12
16. What should I do if I determine a surgery or procedure is necessary and will not violate Executive Order GA-15?
Documentation is key. EO GA-15 expressly states what is needed when a procedure or surgery is done in a facility that has made the requisite certifications to Texas HHSC.
In the context of the clinical practice exception, it is very important that the medical record clearly reflects why the physicians determined a surgery or procedure was urgent and necessary to prevent serious adverse medical consequences or death, as well as the impact on hospital bed availability and usage of PPE. This documentation could include information on the patient’s medical history, prescriptions, lab results, imaging, or other relevant factors used to make the determination of the urgent necessity of the surgery or procedure.
17. If a complaint is received, how will the TMB determine if the surgery or procedure met the requirements of Executive Order GA 15?
The TMB can only act on a valid written complaint. Complaints can be filed confidentially, but not anonymously. The complainant’s identity will remain confidential with TMB. If a complaint is received, then TMB will begin by reviewing the complaint. If there is enough information in the complaint to proceed with an investigation, including requesting medical records for review.
When reviewing the medical records, TMB will determine, based on the medical record documentation, if the surgery or procedure complied with the requirements of EO GA-15. Further, TMB will determine whether or not the standard of care (SOC) was met by, in part, consulting applicable guidelines such as the Centers for Disease Control and Prevention (CDC), Centers of Medical and Medicaid Services (CMS), or other medical or specialty guidelines and literature. These guidelines and the medical records will help determine if the SOC was met and if the surgery or procedure was appropriate and consistent under EO GA-15.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 9 of 12
If it appears there was a violation of EO GA-15, TMB will follow all statues, rules, and standard processes when proceeding with an investigation.
18. What are the benefits resulting from GA-15? This Order continues to focus on several key benefits, including:
1. It preserves resources such as, Personal Protective Equipment (PPE), ventilators, and creates a general reduction in the overall use of critical medical resources; 2. It keeps beds available for treatment of COVID-19 patients, especially intensive care unit (ICU) beds; and 3. It preserves significant healthcare practitioner time and availability which can be devoted to COVID-19 patients.
19. What can help me make decisions on whether I should perform a surgery or procedure? The Texas Medical Board has developed the following questions to help.
1. Does this prohibition apply to me or my practice location? The prohibition applies to ALL licensed healthcare providers and their delegates. It also applies to all licensed healthcare facilities. If you are a licensed healthcare professional or delegate, or performing the medical act in a licensed healthcare facility, proceed to #2. If you are practicing in a non-licensed healthcare facility, then please be aware that the following exception to the prohibition does not apply: Any surgery or procedure performed in a licensed health care facility that has certified in writing to Texas HHSC both (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients, and (2) that it will

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 10 of 12
not request any PPE from any public source—whether federal, state, or local—for the duration of the COVID-19 disaster.
However, the following exception to the prohibition may apply:
Any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with COVID-19.
If you are practicing in an unlicensed healthcare facility that meets this exception, then proceed to #2.
2. Is the medical act a surgery or procedure? • Yes, proceed to #3. • No, I am performing another medical act, such as a history, physical exam, non-invasive diagnostics, or a lab test. If your answer is no, you may proceed with the medical act.
3. If the medical act is a surgery or procedure, then you must ask the following questions: • Is this medically necessary to diagnose or correct a serious medical condition of or to preserve the life of a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death? • Would this patient, without performance of the surgery or procedure, be at risk for serious adverse medical consequences or death?
If you answer yes to this question, you can proceed with the medical act. You should document the medical necessity and serious risk in the patient’s medical record.
If you answer no to this question, then proceed to #4.

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 11 of 12
4. Could the surgery or procedure deplete hospital capacity or the supply of personal protective equipment needed to cope with the COVID-19 disaster?
If your answer is yes regarding the first exception to the prohibition, then you need to determine if the procedure or surgery can proceed under the second exception in EO GA-15. Under the second exception, you may proceed if the surgery or procedure is being performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both: • that it will reserve at least 25% of its hospital capacity for treatment
of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and • that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
20. I have read everything, and I am still confused. In plain English, what I am supposed to do?
Unfortunately, TMB cannot tell you exactly what to do. TMB understands these are very difficult times for everyone around the world. While TMB has a duty to enforce the law, TMB also wants to help patients and licensees navigate providing care as much as possible. TMB cannot provide an exhaustive list of approved or prohibited surgeries and procedures during this time. Nor can TMB answer specific questions about whether or not to provide certain care.
However, TMB can provide these 10 Tips:
1. GA 15 and the TMB rules allow providers to use their judgment in determining whether timely performance of a surgery or procedure is needed to prevent serious adverse medical consequences or death;
2. If you normally could or would wait a few weeks to provide the surgery or procedure being considered for a specific patient based on the patient’s unique circumstances, then that might help you decide what to do;

Case 1:20-cv-00323-LY Document 100-4 Filed 04/22/20 Page 12 of 12
3. If you normally could not or would not wait a few weeks to provide the surgery or procedure being considered for a specific patient based on the patient’s unique circumstances, then that might help you decide what to do;
4. If you do proceed with a surgery or procedure during this time, then be sure to clearly document why you made that decision;
5. Referencing legitimate literature and guidelines, such as from the CDC, CMS, the Joint Statement from ACS, ASA, APRN, and AHA, or other specialty guidelines will be very helpful;
6. TMB cannot put anyone in jail; 7. The decision to hold a temporary suspension or restriction hearing will meet
the same standard as before the COVID-19 disaster; 8. TMB understands the importance of having as many safe licensees available
as possible during this time; 9. The TMB Board Members include 12 physicians that also must navigate
these times, the Executive Order, and the rules while providing safe patient care; and 10.TMB is and will continue to be understanding that these are unprecedented times.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 1 of 60
DX-1

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 2 of 60

From: To: Subject: Attachments:

HHSC HFL Certification Coordinator Polin Barraza RE: Scanned AB Facility Letters _ ASC # 130241; and ABO #140015 &, #140016 image001.jpg HHSC - Facility Licensing .pelf

Good evening, The healt h ca re facility's certificat ions, under Execut ive Order GA-15, have been received for the licensed health care faci lit ies listed below/attached.

Thank you, Lisa

From: Polin Barraza <polin.barraza@ppsouthtexas.org> Sent: Monday, April 20, 2020 4:39 PM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Subject: Scanned AB Facility Letters

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know the content is safe .
Dear Certificat e Coordinat or,
Attached please find ce1t ifications pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
These ce1i ifications apply to:
2140 Babcock Road, Suit e 100, San Antonio, Texas 78229, Ambulatory Surgical Center License, License #130241
2140 Babcock Road, Suite 200, San Antonio, Texas 78229, Abortion Facility License, License, #140015
920 San Pedro Avenue, Suite 150, San Ant onio, Texas 78212, Abortion Facilit y License, License, #140016

Thank you for your time. We look forward t o your response.

Polin C Barraza
In This Together.
President 2140 Babcock Road I San Antonio, TX 78229
P: (210) 736-2244 Ext. 334 I F: (210) 736-0011

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 3 of 60 C3 BOM Logo South Texas Surgical Center Horz PP Primary Blue.jpg
Make an Appointment. Donate. Volunteer.
The information in this email and any documents transmitted with it, are confidential, privileged and exempt from disclosure under applicable law. This email is intended to be read only by the individuals named in the email. If the reader of this email is not the intended recipient, you are hereby notified that any review, dissemination, or copy of this email or the information contained herein is prohibited. If you receive this email in error, please immediately notify the sender by reply email and delete this email from your system.

CJ.Planned Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 4 of 60
11..J Parenthood ·
Planned Parenthood South Texas Surgical Center

April 20, 2020
Health Facility Licensing Certificatio n Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: 2140 Babcock Road, Suite 100, San Antonio, Texas 78229, Ambulatory Surgical Center
License, License #130241 2140 Babcock Road, Suite 200, San Antonio, Texas 78229, Abortion Facility License, License, # 140015 920 San Pedro Avenue, Suite 150, San Antonio, Texas 78212, Abortion Facility License, License, #140016

Dear Health Facility Licensing Certification Coordinator,

Attached please find certifications pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letler No. G L 20-1007.

As HHSC is aware, because Planned Parenthood South Texas Surgical Center' s facilities (the three faci lities indicated above) are licensed abortion facilities, they do not have any hospital c ap ac ity .

Planned Parenthood South Texas Surgical Center understands that because it has submitted the attached certifications, Executive Order GA-15 ' s requirements relating to postponement of
certain s urgeries and procedures do not apply Lo it. If HHSC has a contrary understanding, we
respectfully request that you advise us to that effect b y no later than April 21 , 2020, at 3:00 central time.

Q&L

tvJ

Polin C. Barraza, RN~
President & Board Chair

2140 Babcock Road

San Antonio, Texas 78229

210/736-2244

www.ppsouthtexas.org

FAX 210/736-0011

(;].Planned Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 5 of 60
11.J Parenthood ®
Planned Parenthood South Texas Surgical Center

April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: Planned Parenthood, Abortion Facility License, #140016

Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Planned Parenthood South Texas Surgical Center hereby provides the following certifications.
I, Polin C. Barraza, am the Planned Parenthood South Texas Surgical Center President, and as such have authority to bind Planned Parenthood South Texas Surgical Center' s facility at 920 San Pedro Avenue, Suite 150, San Antonio, Texas 78212 in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID19 patients, accounting for the range of clinical severity of COVID-19 patients; and

(2) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Sincerely,

~ ~,az~ R~
President & Board Chair

I f_tv

2140 Babcock Road

San Antonio, Texas 78229

210/736-2244

www.ppsouthtexas.org

FAX 210/736-0011

r,:J.Planned Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 6 of 60
I I J Parenthood GD
Planne d Parenthood South Texas Surgical Center

April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licens ing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: Planned Parenthood, Abortion Facility License, #140015

Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Planned Parenthood South Texas Surgical Center hereby provides the following certifications.
I, Polin C. Barraza, am the Planned Parenthood South Texas Surgical Center President, and as such have authority to bind Planned Parenthood South Texas Surgical Center's faci lity at 2140 Babcock Road, Suite 200, San Antonio, Texas 78229 in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID19 patients, accounting for the range of clinical severity of COVID-19 patients; and

(2) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

~ r .s:Rt Sincerely, President & Board Chair

f!_~

2140 Babcock Road

San Antonio, Texas 78229

210/736-2244

www.ppsouthtexas.org

FAX 210/736-0011

CJ.Planned Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 7 of 60
11.J Parenthood·
Planned Parenthood South Texas Surgical Center

April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: Planned Parenthood South Texas Surgical Center, Ambulatory Surg ical Center License, #130241

Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Planned Parenthood South Texas Surgical Center hereby provides the following certificatio ns .
I, Polin C. Barraza, am the Planned Parenthood South Texas Surgical Center President, and as such have authority to bind Planned Parenthood South Texas Surgical Center's facility at 2140 Babcock Road, Suite 100, San Antonio, Texas 78229 in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID19 patients, accounting fo r the range of clinical severity of COYID-19 patients; and

(2) I certify, on behalf of Planned Parenthood South Texas Surgical Center, that this facility will not request any personal protective equipment from any public sou rce, whether federal, state, or local, for the duration of the COYID 19 disaster.
Sincerely,

~

za~ N(}<c_f

President & Board Chair

2140 Babcock Road

San Antonio, Texas 78229

210/736-2244

www.ppsouthtexas.org

FAX 210/736-0011

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 8 of 60

From: To: Subject: Attachments:

HHSC HFL Certification Coordinator Jessica Klier RE: Austin Women"s Health Center, Licensed Abortion Facility, 007882 SKM C4S82004201S3S0.pdf

Good even ing, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa

From: Jessica Klier <jklier@brooksidewomensmedical.com> Sent: Monday, April 20, 2020 3:44 PM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Cc: Jessica Klier <jklier@brooksidewomensmedical.com> Subject: Aust in Women's Health Center, Licensed Abortion Facilit y, 007882
WARNING: This emai l is from outside the HHS system. Do not click on lin ks or attachments unless you expect them from the sender and know t he cont ent is safe.
Please see the attached letter and certification.
Thank you,
Jessica Klier
Jessica M. Klier Administrat or Austin Women's Healt h Cent er 1902 S. IH 35 Austin, TX 78704
512.443.9595 office 512.394.2380 cell

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 9 of 60
AUSTIN WOMBN'S
HBALTH CBNTBR
April 20, 2020 Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Austin Women's Health Center, Licensed Abortion Facility, 007882
Dear Health Facility Licensing Certification Coordinator, Attached please find certifications pursuant to Executive Order GA-15 and Health
Facility Licensing Guidance Letter No. GL 20-1007. As HHSC is aware, because Austin Women's Health Center is a licensed abortion
facility, it does not have any hospital capacity. Austin Women's Health Center understands that because it has submitted the attached
certifications, Executive Order GA-I S's requirements relating to postponement of certain surgeries and procedures do not apply to it. If HHSC has a contrary understanding, we respectfully request that you advise me to that effect by no later than April 21 , 2020 at 3:00 central time.
Sincerely, /-L(f,·&,,~ Uessica Klier
1902 s. IH 35, Austin, TX 78704 • 512.443.2888 • fax 512.443.7077 • www.austinwomenshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 10 of 60
AUSTIN WOMBN'S
HBALTH CBNTBR
April 20, 2020 Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Austin Women's Health Center, Licensed Abortion Facility, 007882 Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Austin Women's Health Center hereby provides the following certifications.
I, Jessica Klier, am the Administrator, and as such have authority to bind Austin Women's Health Center in connection with the required certifications.
(!) I certify, on behalf of Austin Women 's Health Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
(2) I certify, on behalf of Austin Women's Health Center, that this facility will not request any personal protective equipment from any public source, whether federal , state, or local, for the duration of the COVID 19 disaster.
. -

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 11 of 60

From: To: Cc: Subject:
Attac hments:
Importance:

HHSC HFL Certification Coordinator Marva Sadler Soraya Dadras; Veronica Montoya; Andrea Ferrigno ACTION NEEDED_ RE: Executive Order GA-15 Licensed Health Care Facilities Certification image002.jpg McAllen 2020-04-20 Letter re GA-15.docx Fort Worth 2020-04-20 Letter re GA-15.docx Austin 2020-04-20 Letter re GA-15.docx
High

Good evening, The certification letters must be signed by the administrator or other deemed individual, etc. as instructed on GL 20-1007 . Please have them signed and resubmit. Also, to facil itate processing please include the faci lity name and license number in the subject line as indicated in the guidance letter.

Thank you, Lisa

From: Marva Sadler <marva@wholewomanshealt h.com> Sent: Monday, April 20, 2020 4:41 PM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Cc: Soraya Dadras <sdadras@wholewomanshealth.com>; Veronica Montoya <vmont oya@w holewomanshealth.com>; Andrea Ferrigno <andrea@wholewomanshealth.com> Subject: Executive Order GA-15 Licensed Healt h Care Facilities Certification

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments unless you expect them from the sender and know the content is safe.
Good afternoon,
Please fid t he GA-15 Licensed Healt h Care Facilities Certification for W hole Woman's Health Alliance, Whole Woman's Health of Fort Worth and Whole Woman's Health of McAllen. If t here are any f urther questions, please feel free to reach out using t he contact informat ion below.
Thank you,
Marva N. Sadler Director of Clinical Services m arva@wh o le w om ansh e alth .c om 512-835-6858 Pronouns She/ Her/ Hers
I• lwiiole Woman's Health, LLC
Changing the World, One Woman at a Time w w w.w h olewomanshealth .com
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 12 of 60
contain material protected by HIPAA legislation (45 CFR, Parts 160 and 164). If you are not the intended recipient or the person responsible for delivering this email to the intended recipient, be advised that you have received this email in error and that any use, disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this email in error, please notify the sender via telephone (Administration: 512-835-6858) or by return e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 13 of 60
Whole Woman’s Health of Austin 4100 Duval Rd
Austin, TX 78759

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Austin Licensed Abortion Facility N.# 140013

Dear Health Facility Licensing Certification Coordinator:
Attached please find a certification pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Whole Woman’s Health of Austin is a licensed abortion facility, it does not have any hospital capacity.
Whole Woman’s Health of Austin understands that because it has submitted the attached certification, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it.
If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020 at 3:00 p.m.

Sincerely,
Soraya Dadras Clinic Administrator sdadras@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 14 of 60
Whole Woman’s Health of Austin 4100 Duval Rd
Austin, TX 78759

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Austin Licensed Abortion Facility N.# 140013

Dear Health Facility Licensing Certification Coordinator:
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Whole Woman’s Health of Austin hereby provides the following certifications:
I, Soraya Dadras, am the Administrator of Whole Woman’s Health of Austin and as such have authority to bind Whole Woman’s Health of Austin in connection with the required certifications.
(1) I certify, on behalf of Whole Woman’s Health of Austin, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Whole Woman’s Health of Austin, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

Sincerely,
Soraya Dadras, Clinic Administrator Sdadras@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 15 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Fort Worth, LLC Licensed Abortion Facility N.# 140000

Dear Health Facility Licensing Certification Coordinator:
Attached please find a certification pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Whole Woman’s Health of Fort Worth, LLC is a licensed abortion facility, it does not have any hospital capacity.
Whole Woman’s Health of Fort Worth, LLC understands that because it has submitted the attached certification, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it.
If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020 at 3:00 p.m.

Sincerely,
Marva Sadler Clinic Administrator marva@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 16 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Fort Worth, LLC Licensed Abortion Facility N.# 140000

Dear Health Facility Licensing Certification Coordinator:
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Whole Woman’s Health of Fort Worth, LLC hereby provides the following certifications:
I, Marva Sadler, am the Administrator of Whole Woman’s Health of Fort Worth, LLC and as such have authority to bind Whole Woman’s Health of Fort Worth, LLC in connection with the required certifications.
(1) I certify, on behalf of Whole Woman’s Health of Fort Worth, LLC, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Whole Woman’s Health of Fort Worth, LLC, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

Sincerely,
Marva Sadler, Clinic Administrator marva@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 17 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 18 of 60
Whole Woman’s Health of McAllen, LLC 802 South Main St. McAllen, TX 78501

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of McAllen, LLC Licensed Abortion Facility N.# 008036

Dear Health Facility Licensing Certification Coordinator:
Attached please find a certification pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Whole Woman’s Health of McAllen, LLC is a licensed abortion facility, it does not have any hospital capacity.
Whole Woman’s Health of McAllen, LLC understands that because it has submitted the attached certification, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it.
If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020 at 3:00 p.m.

Sincerely,
Veronica Montoya, Clinic Administrator vmontota@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 19 of 60
Whole Woman’s Health of McAllen, LLC 802 South Main St. McAllen, TX 78501

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of McAllen, LLC Licensed Abortion Facility N.# 008036

Dear Health Facility Licensing Certification Coordinator:
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Whole Woman’s Health of McAllen hereby provides the following certifications:
I, Veronica Montoya, am the Administrator of Whole Woman’s Health of McAllen, LLC and as such have authority to bind Whole Woman’s Health of McAllen, LLC in connection with the required certifications.
(1) I certify, on behalf of Whole Woman’s Health of McAllen, LLC, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Whole Woman’s Health of McAllen, LLC, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

Sincerely,
Veronica Montoya, Clinic Administrator vmontota@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 20 of 60

From: To: Subject: Attachments:

HHSC HFL Certification Coordinator HWC San Jacinto RE: GL 20-1007 Certification_ Houston Women"s d inic, Licensed Abortion Facility, License# 007326 HWC GL 20-1007 Cert.pelf

Good even ing, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa

From: HWC San Jacint o <houstonwomensclinic@gmail.com> Se nt: Monday, April 20, 2020 3:56 PM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Subject: GL 20-1007 Certification

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments unless you expect them from the sender and know the content is safe.
Dear Health Facilit y Licensing Certification Coordinator,
Please find t he certificat ions attached to this email RE: Execut ive Order GA-15. Please let us know if you have any quest ions.
Sincerely,
Sheila Venkat esh Cl inic Direct or

***Confidentiality Notice: This email message, including any attachments, is for the sole use of intended recipient (s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 21 of 60
Houston Women's Clinic
4820 San Jacinto Houston, Texas 77004
713-868-4483 800-646-4483 713-524-0702 Fax www.houstonwomensclinic.com

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Houston Women's Clinic, Licensed Abortion Facility, License# 007326

Dear Health Facility Licensing Certification Coordinator,

Attached please find certifications pursuant to Executive Order GA0 15 and Health Facility Licensing Guidance Letter No. GL 20-1007.

As HHSC is aware, because Houston Women's Clinic is a licensed abortion facility, it does not have any hospital capacity.

Houston Women's Clinic understands that because it has submitted the attached

certifications, Executive Order GA-15 's requirements relating to postponement of certain

surgeries and procedures do not apply to it. If HHSC has a contrary understanding, we

respectfully request that you advise us to that effect by no later than April 21, 2020 at 3:00

central time.

f4.;fJ I) Sincerely,
½·

/11

I

.

Bernard L. Rosenfeld, M.D., Ph.D. Medical Director

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 22 of 60
Houston Women's Clinic
4820 San Jacinto Houston, Texas 77004
713-868-4483 800-646-4483 713-524-0702 Fax www.houstonwomensclinic.com
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347
April20,2020 Re: Houston Women's Clinic, Licensed Abortion Facility, License# 007326
Dear Health Facility Licensing Certification Coordinator: Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No.
GL 20-1007, Houston Women's Clinic hereby provides the following certifications. I, Dr. Bernard L. Rosenfeld, am the Medical Director of Houston Women's Clinic, and a
such have authority to bind Houston Women's Clinic in connection with the required certifications.
I certify, on behalf of Houston Women's Clinic, that this facility will reserve at least 25'1/c of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
I certify, on behalfof Houston Women's Clinic, that this facility will not request any personal protective equipment from any public source whether federal, state, or local, for the duration of the COVID-19 disaster.
Bernard L. Rosenfeld, M.D., Ph.D. Medical Director

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 23 of 60

From: To: Subject: Attachments:

HHSC HFL Certification Coordinator alicia@southwesternwomens.com Southwestern Women"s Surgery Center, Ambulatory Surgery Center, # 130019 image001.png SWSC LETTER TO HHSC - 2.pdf

Good even ing, The hea lt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa

From: Alicia Dewitt-Dick <alicia@sout hwesternwomens.com> Sent: Monday, April 20, 2020 3:53 PM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Subject: Executive Order GA-15 Licensed Healt h Care Facilities Certification
WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know t he content is saf e.
To Whom It May Concern,
Please see attached documents in response to Executive Order GA-15.
Kindest Regards,
Alicia DeWitt-Dick, MS Administrat or Pronouns: she/her/ hers Sout hwest ern Women's Surgery Center Telephone (214) 742-9310 Fax (214) 969-9468 www.southwest ernwomens.com
.J; Please don't print this e-mail unless you really need to.
••• ••• Confidentiality Notice
The documents accompanying this telecopy transmission contains confidential information belonging to the sender that is legally privileged. This information is intended only for the use of the individual or entity named above. The authorized reci pient of this information is prohibited from disclosing this infonnation to any other party and is requi red to destroy the infonnation after its stated need has been fulfilled, unless otherwise required by state law. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or action taken in reliance on the contents of these documents is strictly prohibited. If you have received this telecopy in error, please notify the sender immediately to arrange for the return of these documents.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 24 of 60
Southwestern Women's Surgery Center
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714•9347
Re: Southwestern Women's Surgery Center, Ambulatory Surgery Center, license #130019 Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA· 15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Southwestern Women's Surgery Center hereby provides the following certifications.
I, Alicia DeWitt-Dick, am the facility/ASC's administrator and as such have authority to bind Southwestern Women's Surgery Center in connection with the required
certifications. (1) I certify, on behalfofSouthwestern Women's Surgery Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range ofclinical severity of COVID-19 patients; and (2) I certify, on behalf of Southwestern Women's Surgery Center, that this
facility will not request any personal protective equipment from any public
source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Alicia eWitt-Dick, MS
Administrator Southwestern Women's Surgery Center
Southwestern Women's Surgery Center, LP
8616Greenville,Suitc101 <:>.J Dallas,Tcxas75243 us (214) 742-93 10 0<1 (800)727-2255

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 25 of 60

From: To: Cc: S ubj e c t:
A t t ac h m en t s:

HHSC HFL Certification Coordinator White. Kasia McKinney. Sheila RE: Executive Order GA-15 certifications_ Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC licenses, #130121, # 130193, #130148 and abortion licenses, # 140018, #140017 and #140010. Executive Order GA-15 Licensed Health Care Facilities Certification signed.pelf

Good morning, The health care facility's certifications, under Executive Order GA- 15, have been received for:
Planned Parenthood of Greater Texas Surgical Health Services, ASC licenses : # 130 121, # 130193, # 130148 and Abortion licenses : # 140018, # 1400 17 and # 140010.

Thank you , Li sa
From: White, Kasia <kasia.whi te@ppgt.org> Sent: Tuesday, April 21, 2020 8:11 AM To: HHSC HFLCertification Coordinator <HFLCertificatio nCoordinator@hhsc.state.tx.us> Cc: McKinney, Sheila <Sheila.McKinney@ppgt.org> Subject: Executive Orde r GA-15 certifications
WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments unless you expect them from the sender and know the content is safe.
Dear Health Facility Licensing Certification Coordinator,
Attached please find ce1tifications pursu ant to Executive Order GA- 15 and Health Facility Licensing Guidance Letter No. GL 20- 1007 for the abo1tion facilities and A SCs maintained and operated by Planned Parenthood of Greater Texas Surgical Health Services.
Planned Parenthood of Greater Texas Surgical Health Services does not have any hospital capacity. Planned Parenthood of Greater Texas Surgical Health Services understands that because it has submitted the attached ce1tifications, Executive Order GA- l S's requirements relating to postponement of ce1t ain surgeries and procedures do not apply to it.
Kasia White RN, BSN Vice President of Quality, Risk Management & Training Planned Parenthood of Greater Texas 201-B East Ben White Blvd. Austin, TX 78704 512-276-8077

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 26 of 60
Image removed by sender.
DISCLAIMER: This e-mail is for the sole use of the intended recipient(s) and contains information belonging to Planned Parenthood of Greater Texas, which is confidential and/or legally privileged. If you are not the intended recipient, you are hereby notified that any disclosme, copying, distribution or taking of any action in reliance on the contents of this e-mail infonnation is strictly prohibited. Ifyou have received this e-mail in eITor, please immediately notify the sender by reply e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 27 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC licenses, #130121, #130193,
#130148 and abortion licenses, #140018, #140017 and #140010.
Dear Health Facility Licensing Certification Coordinator, Attached please find certifications pursuant to Executive Order GA-15 and Health Facility Licensing
Guidance Letter No. GL 20-1007. As HHSC is aware, because Planned Parenthood of Greater Texas Surgical Health Services maintains and
operates licensed abortion facilities and ASCs, it does not have any hospital capacity. Planned Parenthood of Greater Texas Surgical Health Services understands that because it has submitted
the attached certifications, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it. If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020, at 3:00 central time.
Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 28 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130121.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 29 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130193.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have
authority to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and (2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 30 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130148.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 31 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140018.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 32 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140017.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 33 of 60
April 20, 2020 Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140010.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 34 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC licenses, #130121, #130193,
#130148 and abortion licenses, #140018, #140017 and #140010.
Dear Health Facility Licensing Certification Coordinator, Attached please find certifications pursuant to Executive Order GA-15 and Health Facility Licensing
Guidance Letter No. GL 20-1007. As HHSC is aware, because Planned Parenthood of Greater Texas Surgical Health Services maintains and
operates licensed abortion facilities and ASCs, it does not have any hospital capacity. Planned Parenthood of Greater Texas Surgical Health Services understands that because it has submitted
the attached certifications, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it. If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020, at 3:00 central time.
Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 35 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130121.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 36 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130193.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have
authority to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and (2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 37 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, ASC license, #130148.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 38 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140018.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 39 of 60
April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140017.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 40 of 60
April 20, 2020 Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood of Greater Texas Surgical Health Services, abortion facility license, #140010.
Dear Health Facility Licensing Certification Coordinator, Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007,
Planned Parenthood of Greater Texas Surgical Health Services hereby provides the following certifications. I, Ken Lambrecht, am the facility/ASC’s president and Chief Executive Officer, and as such have authority
to bind Planned Parenthood of Greater Texas Surgical Health Services in connection with the required certifications.
(1) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Planned Parenthood of Greater Texas Surgical Health Services, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster. Sincerely,
Ken Lambrecht President and Chief Executive Officer
Serving Central and North Texas

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 41 of 60

From: To: Subject:
A t t a ch me n ts:

HHSC HFL Certification Coordinator
Gottlieb. Kathryn (Katie Beth) RE: Executive Order GA-15 Licensed Health Care Facilities Certifications_ ASC License # 130061 & ABO License #
140014
image001.png image002.png image003.png image004.png PPCFC HHSC Certifications 04.21.2020.pdf

Good morning, The hea lt h ca re facility's certificat ions, under Execut ive Order GA-15, have been received.

Thank you, Lisa

From: Gottlieb, Kathryn (Katie Beth) <Kathryn.Gottlieb@ppgulfcoast.org> Sent: Monday, April 20, 2020 9:30 PM To: HHSC HFL Certification Coordinator <HFLCert ificationCoord inator@ hhsc.state.tx.us> Subject: Executive Order GA-15 Licensed Healt h Care Facilit ies Certifications

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know t he content is saf e.
Dear Health Facilit y Licensing Cert ification Coordinator,
Please see the attached health care faci lity certifications, and contact me if you have any questions.
Best, Katie Beth

R

I

Katie Beth Gottlieb, JD, MPH
Pronouns: she, her, hers (learn more) General Counsel & Chief Compliance Officer
Planned Parenthood 4600 Gulf Freeway Houston, TX 77023 PH: 713.831.6517 CELL: 832.274.2084 FAX: 713.535.2517 INTEGRITY HOTLINE: 1-877-778-5463 www.ppgulfcoast.org

This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for
the addressee), you many not use, copy or disclose to anyone the message or any information contained in the message. If you have

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 42 of 60
received the message in error, please advise the sender by replying and delete the message.

Case 1:20-cv-00323-LY

Document 100-5

Filed 04/22/20

Page446030 oGful6f F0reeway, Ste. 300
Houston, TX 77023 p: 713.535.2400 f: 713.535.2418
wvm.ppcenterforchoice.org

Planned Parenthood Center for Choice

April 20, 2020
VIA EMAIL TO HFLCERTIFICATIONCOORDINATOR@HHSC.STATE.TX.US
Health Facility Licensing Certification Coordinator Health and Hwnan Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Re: Planned Parenthood Center for Choice ASC, Ambulatory Surgical Center, License# 130061 Planned Parenthood Center for Choice Stafford, Abortion Facility, License# 140014
Dear Health Facility Licensing Certification Coordinator,
Attached please find certifications pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Planned Parenthood Center for Choice ASC and Planned Parenthood Center for Choice Stafford are a licensed ambulatory surgical center and a licensed ab011ion facility respectively, they do not have any hospital capacity.
Planned Parenthood Center for Choice ASC and Planned Parenthood Center for Choice Stafford understand that because they have submitted the attached certifications, Executive Order GA-15 's requirements relating to postponement ofcertain surgeries and procedures do not apply to them. IfHHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020, at 3:00 p.m. CST.
Sincerely,

Melaney A. Linton President & CEO Planned Parenthood Center for Choice, Inc.
Enclosures

Case 1:20-cv-00323-LY

Document 100-5

Filed 04/22/20

Page446040 oGful6f F0reeway, Ste. 300
Houston, TX 77023 p: 713.535.2400 f: 713.535.2418
wvm.ppcenterforchoice.org

Planned Parenthood Center for Choice

April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: Planned Parenthood Center for Choice ASC, Ambulatory Surgical Center, License# 130061
Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Planned Parenthood Center for Choice ASC hereby provides the following certifications.
I, Melaney A. Linton, am the ASC's President & CEO, and as such have authority to bind Planned Parenthood Center for Choice ASC in connection with the required certifications.
(I) I ce1tify, on behalf of Planned Parenthood Center for Choice ASC, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
(2) I ce1tify, on behalf of Planned Parenthood Center for Choice ASC, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Sincerely,

Melaney A. Linton President & CEO Planned Parenthood Center for Choice, Inc.

Case 1:20-cv-00323-LY

Document 100-5

Filed 04/22/20

Page446050 oGful6f F0reeway, Ste. 300
Houston, TX 77023 p: 713.535.2400 f: 713.535.2418
wvm.ppcenterforchoice.org

Planned Parenthood Center for Choice

April 20, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

Re: Planned Parenthood Center for Choice Stafford, Abortion Facility, License# 140014
Dear Health Facility Licensing Certification Coordinator,
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Planned Parenthood Center for Choice Stafford hereby provides the following ce1tifications.
I, Melaney A. Linton, am the facility's President & CEO, and as such have authority to bind Planned Parenthood Center for Choice Stafford in connection with the required ce1tifications.
(I) I ce1tify, on behalf of Planned Parenthood Center for Choice Stafford, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
(2) I ce1tify, on behalf of Planned Parenthood Center for Choice Stafford, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.
Sincerely,

Melaney A. Linton President & CEO Planned Parenthood Center for Choice, Inc.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 46 of 60

From: To: Cc: Subject:
Attachments:

HHSC HFL Certification Coordinator Marva Sadler Andrea Ferrigno : Veronica Montoya RE: GA-15 Licensed Health Care Facilities Certification for Whole Woman"s Health of McAllen ABO License Number 008036 image002.jpg McAllen 2020-04-20 Letter re GA-15 final.pdf

Good afternoon, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa
From: Marva Sadler <marva@wholewomanshealt h.com> Sent: Tuesday, April 21, 2020 11:20 AM To: HHSC HFL Certification Coordinator <HFLCertificationCoordinator@hhsc.state.tx.us> Cc: Andrea Ferrigno <andrea@wholewomanshealth.com>; Veronica Mont oya <vmont oya@wholewomanshealth.com> Subject: GA-15 Licensed Health Care Facilities Certification for Whole Woman's Health of McAllen ABO License Number 008036

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know the content is safe .
Good afternoon,

Please find t he GA-15 Licensed Health Care Facilit ies Certification for Whole Woman's Health of McAllen. If t here are any fu rther questions, please feel free to reach out using t he contact informat ion below.

Marva N . Sadler Director of Clinical Services marva@wholewomanshealth.com 8 17-8 8 9-4247 Pronouns She/ Her/ Hers
IBJ lwiiole Woman's Health, LLC
Changing the World, One Woman at a Time w w w.wh olewomansh e al t h .com
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may contain material protected by HIPAA legislation (45 CFR, Pa1ts 160 and 164). If you are not the intended recipient or the person responsible for delivering this email to the intended recipient , be advised that you h ave received this email in error and that any use, disclosure,

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 47 of 60
copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this email in error, please notify the sender via telephone (Administration: 512-835-6858) or by return e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 48 of 60

From: To: Cc: Subject:
Attachments:

HHSC HFL Certification Coordinator Marva Sadler Andrea Ferrigno
RE: GA-15 Licensed Health Care Facilities Certification for Whole Woman"s Health of Fort Worth_ ABO License
Number 140000 image002.jpg
Fort Worth 2020-04-20 Letter re GA-15.docx

Good morni ng, The healt h care facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa
From: Marva Sadler <marva@wholewomanshealt h.com> Sent: Tuesday, April 21, 2020 9:32 AM To: HHSC HFL Certification Coordinator <HFLCert ificationCoordinator@hhsc.state.tx.us> Cc: Andrea Ferrigno <andrea@wholewomanshealth.com> Subject: GA-15 Licensed Health Ca re Facilities Certification for Whole Woman's Health of Fort Worth License Number 140000

WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments unless you expect them from the sender and know t he cont ent is saf e.
Good morning,
Please fid t he GA-15 Licensed Healt h Care Facilit ies Certification for W hole Woma n's Health of Fort Worth. If t here are any f urt her questions, please feel free to reach out using t he contact informat ion below.

Ma1va N. Sadler Direct or of Clinical SeIVices m a1v a @ wh o lewom an sh e al t h .com 8 17-8 8 9- 424 7 Pronouns She/ Her/ Hers
I[g b ole Woman's Health, LLC
Changing the World, One Woman at a Time www.w h olewomansh e al t h .com
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication m ay contain material protected by HIPAA legislation (45 CFR, Pa1ts 160 and 164). Ifyou are not the intended recipient or the person responsible for delivering this email to the intended recipient, be advised that you have received this email in error and that any use, disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Ifyou have received this email in error, please notify the

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 49 of 60
sender via telephone (Administration: 512-835-6858) or by return e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 50 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Fort Worth, LLC Licensed Abortion Facility N.# 140000

Dear Health Facility Licensing Certification Coordinator:
Attached please find a certification pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Whole Woman’s Health of Fort Worth, LLC is a licensed abortion facility, it does not have any hospital capacity.
Whole Woman’s Health of Fort Worth, LLC understands that because it has submitted the attached certification, Executive Order GA-15’s requirements relating to postponement of certain surgeries and procedures do not apply to it.
If HHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 21, 2020 at 3:00 p.m.

Sincerely,
Marva Sadler Clinic Administrator marva@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 51 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing – MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman’s Health of Fort Worth, LLC Licensed Abortion Facility N.# 140000

Dear Health Facility Licensing Certification Coordinator:
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Whole Woman’s Health of Fort Worth, LLC hereby provides the following certifications:
I, Marva Sadler, am the Administrator of Whole Woman’s Health of Fort Worth, LLC and as such have authority to bind Whole Woman’s Health of Fort Worth, LLC in connection with the required certifications.
(1) I certify, on behalf of Whole Woman’s Health of Fort Worth, LLC, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID19 patients, accounting for the range of clinical severity of COVID-l9 patients; and
(2) I certify, on behalf of Whole Woman’s Health of Fort Worth, LLC, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

Sincerely,
Marva Sadler, Clinic Administrator marva@wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 52 of 60
Whole Woman’s Health of Fort Worth, LLC 3256 Lackland Rd
Fort Worth, TX 76116

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 53 of 60

From: To: Cc: Subject:
Attachments:

HHSC HFL Certification Coordinator Marva Sadler Soraya Dadras; Andrea Ferrigno RE: GA-15 Licensed Health Care Facilities Certification for Whole Woman"s Health of Austin License Number 140013 Austin 04-20-20 GA-15 Certification.pdf

Good morni ng, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa
From: Marva Sadler <marva@wholewomanshealt h.com> Sent: Wednesday, April 22, 2020 6:26 AM To: HHSC HFL Certification Coordinator <HFLCert ificationCoordinator@hhsc.state.tx.us> Cc: Soraya Dadras <sdad ras@wholewoma nshea lt h.com>; And rea Ferrigno <andrea@wholewomanshea lt h.com> Subject: RE: GA-15 Licensed Health Ca re Facilit ies Certification for Whole Woman's Health of Austin License Number 140013

WARNING: This email is from outside the HHS system . Do not cli ck on links or attachments unless you expect them from the sender and know t he cont ent is saf e.
Good morning,
I am resubmit t ing the GA-15 Licensed Care Facilit ies Certification for W hole Woman's Health of Austin. We did not receive the confirmation email t hat it was received and would like t o follow up to ensure t hat it has been processed correct ly. Thank you for your assist ance, and if t here are any f urt her questions or concerns, please feel free tor each out.
Thank you,
Ma1va N . Sadler Director of Clinical SeIVices m a1v a @ wh o le w om ansh e al t h .com 512-835-6858 Pronouns She/Her/ Hers
I[g b ole Woman's Health, LLC
Changing the World, One Woman at a Time w w w.w h olewomansh e al t h .com
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication m ay contain material protected by HIPAA legislation (45 CFR, Pa1t s 160 and 164). If you are not the intended recipient or the person responsible for delivering this email t o the intended recipient, be advised that you have received this email in error and that any use, disclosure,

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 54 of 60
copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this email in error, please notify the sender via telephone (Administration: 512-835-6858) or by return e-mail and destroy all copies of the original message.
From: Marva Sadler Sent: Tuesday, April 21, 2020 9:33 AM To: HFLCertificationCoordinator@hhsc.state.tx.us Cc: Soraya Dadras <sdadras@wholewomanshealth.com>; Andrea Ferrigno <andrea@wholewomanshealth.com> Subject: GA-15 Licensed Health Care Facilities Certification for Whole Woman's Health of Austin License Number 140013
Good morning,
Please fid the GA-15 Licensed Health Care Facilities Certification for Whole Woman’s Health of Austin. If there are any further questions, please feel free to reach out using the contact information below.
Marva N. Sadler Director of Clinical Services marva@wholewomanshealth.com 817-889-4247 Pronouns She/Her/Hers
Whole Woman's Health, LLC Changing the World, One Woman at a Time www.wholewomanshealth.com
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may contain material protected by HIPAA legislation (45 CFR, Parts 160 and 164). If you are not the intended recipient or the person responsible for delivering this email to the intended recipient, be advised that you have received this email in error and that any use, disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this email in error, please notify the sender via telephone (Administration: 512-835-6858) or by return e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 55 of 60

Whole Woman's Health ofAustin 4100 Duval Rd bldg 2, ste 201 Austin, TX 78759

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman's Health ofAustin Licensed Abortion Facility N.# 140013

Dear Health Facility Licensing Certification Coordinator:
Attached please find a certification pursuant to Executive Order GA-15 and IIcalth Facility Licensing Guidance Letter No. GL 20-1007.
As HHSC is aware, because Whole Woman·s Health of Austin is a licensed abortion facility, it does not have any hospital capacity.
Whole Woman·s Health of Austin understands that because it has submitted the attached
certification, Executive Order GA-1 s·s requirements relating to postponement ofcertain surgeries
and procedures do not apply to it.
If 1-IHSC has a contrary understanding, we respectfully request that you advise us to that effect by no later than April 2 I, 2020 at 3:00 p.m.

Sincerely,
Soraya Dadras Clinic Administrator sdadras'wwhole\\omanshealth.com

...

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 56 of 60
Whole Woman's Health ofAustin
4100 Duval Rd bldg 2, ste 201 Austin, TX 78759

I[ealth Facility Licensing Certification Coordinator I lealth and Human Services Commission
Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347

April 20, 2020

Re: Whole Woman's Health of Austin Licensed Abortion Facility N.# 140013

Dear Health Facility Licensing Certification Coordinator:
Pursuant to Executive Order GA-15 and Health Facility Licensing Guidance Letter No. GL 20-1007, Whole Woman's Health of Austin hereby provides the following certifications:
I, Soraya Dadras, am the Administrator of Whole Woman' s Health of Austin and as such have authority to bind Whole Woman·s Health of Austin in connection with the required certifications.
(l) I certify, on behalf of Whole Woman·s Health of Austin, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
(2) I certify, on behalf of Whole Woman's Health of Austin. that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.

Soraya Dadras, Clinic Administrator Sdadras,,~wholewomanshealth.com

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 57 of 60

From: To: Subject:
Attachments :

HHSC HFL Certification Coordinator
Kathy K
RE: Houston Women"s Reproductive Services, Licensed Abortion Facility, License #140019 HWRS Covid 19 certification state.pdf

Good afternoon, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived .

Thank you, Lisa

From: Kathy K <kathykleinfeld@gmail.com> Sent: Sunday, April 19, 2020 12:07 PM To: HHSC HFL Certification Coordinator <HFLCert ificationCoord inator@ hhsc.state.tx.us> Subject: Houst on Women's Reproductive Services , Licensed Abortion Facility, License #140019
WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know t he cont ent is saf e.
Attached,please find our signed Health Care Facility certification letter re: GA-15

Kathy Kleinfeld, Administrator Houston Women's Reproductive Services
281-501-2197 (o)

***Confidentiality Notice: This email message, including any attachments, is for the sole use of intended recipient (s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or
distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 58 of 60

April 19,2020

HOUSTON WOMEN'S REPRODUCTIVE SERVICES 5225 KA1Y Fwv, Suire 370 HOUSTON, TX 77007
PHONE 281-501-2197 FAX 281-501-8176

Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing - MC 1868 P.O. Box 149347 Austin, TX 78714-9347
Submitted Via email to HFLCertificationCoordinator@hhsc.state.tx.us.
Re: Houston Women's Reproductive Services , Licensed Abortion Facility, License #140019
I certify, on behalf of Houston Women's Reproductive Services, that this facility will reserve at least 25% of its hospital capacity for treatment of COVI0-19 patients, accounting for the range of clinical severity of COVID-19 patients; and I certify, on behalf of Houston Women's Reproductive Services that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.

Kathy Kleinfeld, Administrator

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 59 of 60

From: To: Subject:
Attachments :

HHSC HFL Certification Coordinator Alan Braid RE: Alamo City Surge!)' Center; Texas licensed Ambulatory Surgery Center; lic#130238 certification letter.pdf

Good afternoon, The healt h ca re facility's certificat ion, under Executive Order GA-15, has been rece ived.

Thank you, Lisa

From: Alan Braid <abraid45@gma il.com> Sent: Sunday, April 19, 2020 10:40 AM To: HHSC HFL Certification Coordinator <HFLCertificationCoord inator@ hhsc.state.tx.us> Subject: Alamo City Surgery Center; Texas licensed Ambulatory Surgery Center; lic#130238
WARNING: This emai l is from outside the HHS system . Do not cli ck on links or attachments un less you expect them from the sender and know t he cont ent is saf e.
Certification letter attached:

Case 1:20-cv-00323-LY Document 100-5 Filed 04/22/20 Page 60 of 60
Alamo City Surgery Center 7402 John Smith Drive, suite 102
San Antonio, Texas .78229
April 18, 2020
Health Facility Licensing Certification Coordinator Health and Human Services Commission Health Facility Licensing-MC 1868 PO BOX 149347 Austin, Texas 78714-9347 Re: Alamo City Surgery Center, Licensed Ambulatory Surgery Center (ASC), License number 130238
Dear Sir, I certify, on behalf of Alamo City Surgery Center, that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and I certify, on behalf of Alamo City Surgery Center, that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
~~nt>-
Alan Braid, M .D. Administrator, Medical Director, Owner
© Gartner Studios

Case 1:20-cv-00323-LY Document 100-6 Filed 04/22/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs, v.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

§

CAUSE NO. 1:20-CV-00323-LY

§

§

§

§

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

On this date the Court considered Plaintiffs’ Motion for Preliminary Injunction. After considering the Motion, Plaintiffs’ briefing in support, State Defendants’ responses, any further replies filed by the parties, and the other pleadings in this matter, the Court is of the opinion that the Motion is not meritorious and should be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Preliminary Injunction is denied. This Court declines to issue any preliminary injunctive relief at this time.

SIGNED this _____ day of ____________________, 2020.

LEE YEAKEL UNITED STATES DISTRICT JUDGE

1

 
 Case 1:20-cv-00323-LY Document 101 Filed 04/23/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

NOTICE OF WITHDRAWAL OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs hereby provide notice that they are withdrawing their pending motion for a
preliminary injunction, ECF No. 7, in light of State Defendants’ representations in their opposition
to the preliminary injunction motion, see ECF No. 100. Plaintiffs intend to reach out to opposing
counsel to discuss the status of the case and will submit a proposed way forward to this Court in
short order.
Dated: April 23, 2020
Respectfully submitted,
/s/ Patrick J. O’Connell Patrick J. O’Connell Texas Bar No. 15179900 Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
Attorney for All Plaintiffs

Case 1:20-cv-00323-LY Document 101 Filed 04/23/20 Page 2 of 4
Julie Murray* Hannah Swanson* PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW Ste. 300 Washington, D.C. 20005 (202) 973-4800 julie.murray@ppfa.org hannah.swanson@ppfa.org
Jennifer Sandman* PLANNED PARENTHOOD FEDERATION OF AMERICA 123 William Street New York, NY 10038 (212) 541-7800 jennifer.sandman@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center
Molly Duane* Rabia Muqaddam* Francesca Cocuzza* CENTER FOR REPRODUCTIVE RIGHTS 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org rmuqaddam@reprorights.org fcocuzza@reprorights.org
Attorneys for Plaintiffs Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center, Robin Wallace, M.D., Alamo City Surgery Center PLLC d/b/a Alamo Women’s Reproductive Services, and Houston Women’s Reproductive Services
2

Case 1:20-cv-00323-LY Document 101 Filed 04/23/20 Page 3 of 4
Stephanie Toti Rupali Sharma* Sneha Shah* LAWYERING PROJECT 25 Broadway, Fl. 9 New York, NY 10004 (646) 490-1083 stoti@lawyeringproject.org rsharma@lawyeringproject.org sshah@lawyeringproject.org
Attorneys for Plaintiffs Whole Woman’s Health and Whole Woman’s Health Alliance
Anjali Salvador, TX Bar No. 24110324* Andre Segura, TX Bar No. 24107112* ACLU FOUNDATION OF TEXAS, INC. 5225 Katy Freeway, Suite 350 Houston, TX 77007 Tel. (713) 942-8146 Fax: (713) 942-8966 asalvador@aclutx.org asegura@aclutx.org
Brigitte Amiri* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 bamiri@aclu.org
Attorneys for Plaintiff Houston Women’s Center
*Admitted Pro Hac Vice
3

Case 1:20-cv-00323-LY Document 101 Filed 04/23/20 Page 4 of 4

CERTIFICATE OF SERVICE

I certify that on April 23, 2020, I filed a copy of the foregoing with this Court’s CM/ECF

system, which will serve a copy on the following individuals:

Heather Gebelin Hacker Andrew Bowman Stephens Benjamin S. Walton Office of the Attorney General of Texas 209 W. 14th Street 7th Floor Austin, TX 78701 (512) 836-2540 (512) 474-2697 (fax) heather.hacker@oag.texas.gov andrew.stephens@oag.texas.gov benjamin.walton@oag.texas.gov
John J. Butrus, Jr. Dallas County District Attorney's Office 133 N. Riverfront Blvd LB 19 Dallas, TX 75207 (214) 653-3691 (214) 653-2899 (fax) john.butrus@dallascounty.org
Justin C. Pfeiffer Fort Bend County Attorney's Office 401 Jackson Street Third Floor Richmond, TX 77469 (281) 341-4555 (281) 341-4557 (fax) justin.pfeiffer@fortbendcountytx.gov

Adam Arthur Biggs Special Litigation Counsel General Litigation Division P.O. Box 12548, Capitol Station Austin, TX 78711-2548 (512) 463-2120 (512) 320-0667 (fax) adam.biggs@oag.texas.gov
David S. Lill Lill Firm, P.C. 4407 Bee Caves Road Suite 111 Building 1 Austin, TX 78746 (512) 330-0252 (844) 402-9814 (fax) david@lillfirm.com
Elizabeth Murrill Joseph Scott St. John Louisiana Dept. of Justice 1885 North Third Street Baton Rouge, LA 70804 225-456-7544 murrille@ag.louisiana.gov stjohnj@ag.louisiana.gov

Ruben Gabriel Duarte El Paso County Attorney's Office 500 E. San Antonio - Rm 503 El Paso, TX 79901 (915) 546-2083 rduarte@epcounty.com

/s/ Julie Murray Julie Murray

4

 
 No. 19A_____
IN THE
Supreme Court of the United States

PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, PLANNED PARENTHOOD SOUTH TEXAS SURGICAL
CENTER, WHOLE WOMAN’S HEALTH, WHOLE WOMAN’S HEALTH ALLIANCE, SOUTHWESTERN WOMEN’S SURGERY CENTER, BROOKSIDE WOMEN’S MEDICAL CENTER
PA D/B/A BROOKSIDE WOMEN’S HEALTH CENTER AND AUSTIN WOMEN’S HEALTH CENTER, AND ROBIN WALLACE, M.D., Applicants, v.
GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS; KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS; PHIL WILSON, IN HIS OFFICIAL CAPACITY AS ACTING EXECUTIVE COMMISSIONER OF THE TEXAS HEALTH AND HUMAN
SERVICES COMMISSION; STEPHEN BRINT CARLTON, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS MEDICAL BOARD; AND KATHERINE A. THOMAS, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS BOARD OF NURSING,
Respondents.
EMERGENCY APPLICATION TO JUSTICE ALITO TO VACATE ADMINISTRATIVE STAY OF TEMPORARY RESTRAINING ORDER ENTERED
BY THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PATRICK J. O’CONNELL Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com

JULIE A. MURRAY Counsel of Record
HANNAH SWANSON Planned Parenthood Federation of America 1110 Vermont Ave., NW, Ste. 300 Washington, DC 20005 (202) 973-4800 julie.murrary@ppfa.org hannah.swanson@ppfa.org

ADDITIONAL COUNSEL AND REPRESENTATION INFORMATION ON NEXT PAGE

JENNIFER SANDMAN Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 541-7800
STEPHANIE TOTI RUPALI SHARMA Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 (646) 490-1083
MOLLY DUANE Center for Reproductive Rights 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................... ii

STATEMENT ...............................................................................................................................5

A. The Governor’s Executive Order .......................................................................5

B. Abortion In Texas .................................................................................................7

C. The District Court’s First TRO ........................................................................10

D. The District Court’s Second TRO ....................................................................13

STANDARD OF REVIEW......................................................................................................16

ARGUMENT ..............................................................................................................................17

I.

THE STAY IMPOSES SERIOUS AND IRREPARABLE INJURY ON

APPLICANTS’ PATIENTS AND THE PUBLIC..................................................................18

II. THE FIFTH CIRCUIT WAS DEMONSTRABLY WRONG IN ITS APPLICATION OF ACCEPTED STANDARDS TO ISSUE THE STAY ...............................22

A. Respondents Are Not Likely To Succeed On Their Mandamus Petition .............................................................................................22

B. Respondents Have An Effective Remedy ......................................................27

III. THIS COURT WOULD LIKELY GRANT REVIEW OF A WRIT OF MANDAMUS ENTERED BY THE FIFTH CIRCUIT .........................................................28

CONCLUSION ...........................................................................................................................30

APPENDIX.......................................................................................................................... App.1

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES Page(s)
Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) ..................................................27 Cheney v. U.S. District Court for District of Columbia, 542 U.S. 367 (2004)....................22 Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) .....................................................................23 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)..........................................................................22 Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th
Cir. 1992) ..........................................................................................................................23 Hollingsworth v. Perry, 558 U.S. 183 (2010)...........................................................................16 Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013)...................................................................23 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).............12, 15, 23, 24, 26 Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996).............................................................23 June Medical Services L.L.C. v. Gee, 139 S. Ct. 663 (2019) ..................................................30 Kerr v. U.S. District Court for Northern District of California, 426 U.S.
394 (1976) ..........................................................................................................................27 Mistretta v. United States, 488 U.S. 361 (1989) ......................................................................29 MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015) ................................23 Nken v. Holder, 556 U.S. 418 (2009).........................................................................................22 Office of Personnel Management v. American Federation of Government
Employees, 473 U.S. 1301 (1985) ..................................................................................16 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833 (1992) ....................................................................................................................15, 26 Preterm-Cleveland v. Attorney General of Ohio, 2020 WL 1673310 (6th
Cir. Apr. 6, 2020) .............................................................................................................13 Reynolds v. International Amateur Athletic Federation, 505 U.S. 1301
(1992) .................................................................................................................................16 Robinson v. Marshall, 2020 WL 1520243 (M.D. Ala. Mar. 30, 2020).............................18, 28
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Robinson v. Marshall, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020) ...............................13, 28 Roe v. Wade, 410 U.S. 113 (1973) ..............................................................................................23 Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992) ...........................................................23 South Wind Women’s Center LLC v. Stitt, 2020 WL 1677094 (W.D. Okla.
Apr. 6, 2020) .........................................................................................................13, 18, 28 Western Airlines, Inc. v. International Brotherhood of Teamsters,
480 U.S. 1301 (1987) ..................................................................................................16, 28 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) .............................8, 20, 24, 30 Wilson v. U.S. District Court for Northern District of California, 161 F.3d
1185 (9th Cir. 1998) .........................................................................................................27 DOCKETED CASES
In re Greg Abbott, No. 20-50264 (5th Cir.).................................................................7, 8, 11, 19 June Medical Services L.L.C. v. Gee, Nos. 18-1323, 18-1460 (U.S.) ....................................29 New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280
(U.S.) .................................................................................................................................29 Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323 (W.D.
Tex.) ..................................................................................................................................24 Preterm-Cleveland v. Yost, No. 19-cv-00360 (S.D. Ohio)......................................................18 United States Department of Homeland Security v. Regents of the
University of California, No. 18-587 (U.S.) ................................................................29 STATUTES, RULES, AND REGULATIONS
28 U.S.C. § 1292 ...........................................................................................................................27 22 Tex. Admin. Code
§ 139.53..............................................................................................................................25 § 187.57 (emergency regulation adopted Mar. 23, 2020) .......................................6, 13 Tex. Gov’t Code Ann. § 418.012..............................................................................................................................5 § 418.173..............................................................................................................................5
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Tex. Health & Safety Code § 171.012............................................................................................................................25 § 171.042..............................................................................................................................8 § 171.044..............................................................................................................................8 § 171.063........................................................................................................................9, 25
Sup. Ct. R. 10 ...............................................................................................................................29 OTHER AUTHORITIES
ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/newsreleases/2020/03/joint-statement-on-abortion-access-during-thecovid-19-outbreak..............................................................................................................7
Texas Health & Human Services, Induced Terminations of Pregnancy, 2017 Selected Characteristics of Induced Terminations of Pregnancy (2018), https://hhs.texas.gov/about-hhs/recordsstatistics/data-statistics/itop-statistics ........................................................................24
Texas Medical Board, Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020), http://www.tmb.state.tx.us/idl/59C9706284FA-BB86-91BF-F9221E4DEF17 ..................................................................6, 7, 9, 20
U.S. Food & Drug Administration, Mifeprex 13 tbl.3 (rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687 s020lbl.pdf.........................................................................................................................25
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TO THE HONORABLE SAMUEL A. ALITO, JR., ASSOCIATE JUSTICE OF THE SUPREME COURT AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT:
On April 10, 2020, the U.S. Court of Appeals for the Fifth Circuit, for the second time in a matter of days, entered an administrative stay of temporary injunctive relief that would protect the constitutional right of pregnant Texans to obtain time-sensitive abortion care, and did so without any opportunity for Applicants to respond. As a consequence of the stay, virtually all Texas residents with unplanned pregnancies are unable to access early abortion care through medication abortion and must instead wait until they reach a more advanced stage of pregnancy. Delaying abortions by weeks does nothing to further the State’s interest in combatting COVID-19, and indeed runs directly contrary to that interest: individuals will require more health care—even in the shortterm—if they remain pregnant than if they have a desired abortion, and some will engage in risky, out-of-state travel in an attempt to access earlier abortion services, thus increasing contagion risks in the midst of a pandemic. This Court’s intervention is urgently needed. Applicants respectfully request that the Fifth Circuit’s administrative stay be vacated as to medication abortions provided up to 10 weeks of pregnancy.
The COVID-19 pandemic is a serious public health crisis. Every American, including each medical provider, has an obligation to make needed changes to combat it. To that end, virtually all health care providers—including Applicants—have changed their practices over the last two months to conserve personal protective equipment (“PPE”) and to reduce the risk of COVID-19 transmission. Most governors have issued Executive Orders that recommend or require that physicians exercise their medical

judgment to determine which procedures should go forward and which can be postponed without risk to the patient.
On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order that gave rise to this litigation. That order, which currently expires on April 21, 2020, but is expected to be extended, bars—under pain of criminal prosecution—the performance of all “surgeries and procedures” that are “not immediately medically necessary.” App.81. The Executive Order specifically exempts surgeries and procedures that do not deplete the capacity of PPE or hospital beds necessary to confront the crisis. Id.
From there, certain Texas state officials—not least, the Attorney General of Texas—dramatically departed from the approach of their counterparts in other states by singling out abortion care as categorically prohibited by the order. They did so despite the fact that medication abortion is not a “procedure” at all, but instead involves taking oral medications. They ignored the conclusions of major medical authorities, including the American Medical Association (“AMA”) and the American College of Obstetricians and Gynecologists (“ACOG”), which agree that abortion is time-sensitive health care that cannot be postponed without exposing patients to increased medical risks. And they failed to account for the fact that a person who cannot obtain an early abortion remains pregnant, and will ultimately require more PPE and hospital resources to have an abortion later on, to access pregnancy-related care, or ultimately to undergo labor and delivery.
The enforcement threat made by these State officials has had a profound chilling effect on the provision of abortion care in Texas, causing most doctors to cease providing abortions altogether. Hundreds of patients have already been turned away from
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Applicants’ facilities. To protect those patients’ health and rights from the harms imposed by State officials’ threat of enforcement, the district court entered a carefully tailored temporary restraining order (“TRO”), supported by extensive findings of fact, that permitted abortion in two specific categories—abortion induced by oral medications (commonly referred to as “medication abortion”) and abortion for those who will be too late in pregnancy to obtain an abortion after the Executive Order’s current expiration date. A divided panel of the Fifth Circuit, without waiting to hear from Applicants, granted an administrative stay of that TRO, except as applied to “‘any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion—22 weeks LMP [from the last menstrual period]—on April 22, 2020.’” App.4.
Thus, the Fifth Circuit’s stay requires Applicants to cease providing early medication abortions or risk enforcement action by State officials.1 No other court in the country has countenanced the type of categorical ban on medication abortion the State is attempting to enforce here as a response to the COVID-19 pandemic. Accordingly, Texas now has the most restrictive abortion policy in the nation.
Without this Court’s urgent intervention, the Fifth Circuit’s stay will continue to deny hundreds of Texas residents their constitutional right to obtain an abortion while exacerbating the current public health crisis, thereby inflicting irreparable harm. Patients who could otherwise obtain early medication abortions under the district court’s
1 The Fifth Circuit’s stay also reinstates the threat of enforcement as to abortions provided to patients who would be past the legal limit for an abortion at a licensed clinic, as opposed to an ambulatory surgery center (“ASC”), on April 22, 2020, and would likely be unable to obtain care at an ASC. Applicants do not seek relief from that part of the Fifth Circuit’s order at this time.
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narrow TRO will be unable to obtain an abortion in Texas for at least several weeks. As a result, they will be forced either to remain pregnant and endure the physical, economic, and emotional consequences of pregnancy or to undertake risky and expensive travel to other states where abortion is still available. And if they do eventually obtain an abortion in Texas following expiration of the Executive Order, they will be forced to have an abortion later in pregnancy that carries a higher risk of complications and uses more PPE. These burdens are severe and ongoing.
By contrast, Respondents will suffer no harm from vacatur of the stay. Contrary to Respondents’ claims, there is no evidence that prohibiting medication abortions will conserve hospital capacity or PPE to fight COVID-19. In fact, forcing Texans to travel out of state for abortion care or to remain pregnant for additional weeks (or months if the Executive Order is extended) harms public health by increasing the amount of PPE required to provide abortion or pregnancy-related care to patients, further straining hospital capacity, and increasing the risk of COVID-19 transmission as anxious patients fly or drive hundreds of miles across state lines to attempt to obtain abortion services.
The Fifth Circuit’s extraordinary decision to impose an administrative stay of the TRO plainly departs from settled principles of law and has already resulted in serious and irreparable injury. As this Court is also likely to grant review of the Fifth Circuit’s decision on Respondents’ pending petition for a writ of mandamus or ultimate judgment in this case, vacatur of the stay is both warranted and urgently needed.
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STATEMENT A. The Governor’s Executive Order On March 13, 2020, Texas declared a state of disaster related to the COVID-19 pandemic. In anticipation of the impending strain on hospital capacity, Governor Greg Abbott issued an Executive Order on March 22, 2020, effective immediately, with two stated purposes: (1) conservation of hospital beds, and (2) conservation of the PPE necessary for medical providers to treat COVID-19 patients. App.80-81. Although the Executive Order does not define PPE, that term is generally understood to refer to N95 respirator masks, surgical masks, nonsterile and sterile gloves, and disposable protective eyewear, gowns, hair covers, and shoe covers. The Executive Order bars “all surgeries and procedures that are not immediately medically necessary,” but exempts procedures that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” App.81. The Executive Order remains in effect through April 21, 2020, unless Governor Abbott rescinds or modifies it. App.81. Governor Abbott can extend the Order at any time, for any amount of time he deems necessary to respond to the pandemic. Federal officials and medical professionals expect the pandemic to last well past April 21. App.78, 255, 272. Experts further expect the COVID-related PPE shortage to last at least three to four months. App.7-8, 272. The Executive Order has the “force and effect of law.” App.80; Tex. Gov’t Code Ann. § 418.012. Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both. Tex. Gov’t Code Ann. § 418.173. Violation of the Executive Order may also trigger disciplinary
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action against licensees by the Texas Health and Human Services Commission, the Texas Medical Board, or the Texas Board of Nursing. App.85.
On March 23, 2020, Texas Attorney General Ken Paxton issued a press release stating that provision of abortion care, other than for an immediate medical emergency, would violate the Executive Order. App.82. The Attorney General singled out abortion care, referring three separate times to the Executive Order’s application to “abortion providers,” and warned that “[t]hose who violate the governor’s order will be met with the full force of the law.” App.84. The Attorney General’s statement does not distinguish between medication and procedural abortion.
The Attorney General’s enforcement threat and the serious criminal and other penalties specified in the Executive Order have had a dramatic chilling effect on abortion in Texas. In light of the risk of enforcement, on March 23, 2020, Applicants, their physicians, and staff began cancelling hundreds of appointments.
On March 24, 2020, the Texas Medical Board (“Medical Board”) adopted an emergency amendment to 22 Tex. Admin. Code § 187.57 (“Emergency Rule”) incorporating the terms of the Executive Order. 22 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020).
Days later, the Medical Board published updated guidance regarding the scheduling of elective surgeries and procedures in light of Governor Abbott’s COVID-19 disaster declaration. Tex. Med. Bd., Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020) (“TMB Guidance”), http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF-F9221E4DEF17. The Medical
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Board explained that postponing nonurgent, elective cases would preserve PPE, ventilator availability, and ICU beds. Id. It defined “urgent or elective urgent” procedures as those where “there is a risk of patient deterioration or disease progression that is likely to occur if the procedure or surgery is not undertaken immediately and/or … is significantly delayed.” Id. It noted that the Executive Order’s prohibition “does not apply to office-based visits without surgeries or procedures.” Id. Further, it explained that “[a] ‘procedure’ does not include physical examinations, noninvasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests.” Id.
B. Abortion In Texas Leading medical professional organizations, including the AMA and ACOG, have advised states not to categorize abortion as health care “that can be delayed during the COVID-19 pandemic” given its critical nature for patients, even if those states are requiring postponement of non-time-sensitive health care during the crisis.2 That is so because “[t]here is a broad medical consensus that abortion is essential health care” that cannot be delayed. Br. of ACOG, et al. as Amici Curiae in Opp. to Pet. for Writ of Mandamus at 4, 10, In re Greg Abbott, No. 20-50264 (5th Cir. Apr. 2, 2020) (“ACOG Br.”). Moreover, “[t]here is no evidence that prohibiting abortions during the pandemic will mitigate PPE shortages or promote public health and safety.” Id. at 4. Applicants are health care providers that offer, among other services, abortion care using two main methods: medication abortion and procedural abortion. App.10.
2 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/jointstatement-on-abortion-access-during-the-covid-19-outbreak.
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Abortion is extremely safe, complications from abortion are rare, and those complications that do occur seldom result in hospital care. See ACOG Br. at 6-7; see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311-2312, 2315 (2016). These facts remain true for medication abortion: only 0.31 percent of medication abortions result in complications requiring hospitalization, surgery, or blood transfusion. App.245.
However, the health risks associated with abortion, as well as the health risks from pregnancy itself, increase with gestational age. App.15-16, 145-146, 161, 218, 229, 248. As ACOG and others have observed, “abortion is … a time-sensitive [service] for which a delay may increase the risks [to patients] or potentially make it completely inaccessible.” ACOG Br. at 9. Delaying abortion “can compromise patients’ health,” as “[t]he chance of a major complication is higher in the second trimester than in the first trimester” of pregnancy. Id. at 10-11. Delays also result in increased health risks to a patient from a continuing pregnancy, as well as higher financial and emotional costs. App.16, 138-139, 145-146, 161, 228, 249, 303.
In Texas, except in narrow circumstances, abortion is illegal beyond 22 weeks of pregnancy, as dated from the first day of the patient’s last menstrual period (“LMP”). Tex. Health & Safety Code §§ 171.044, 171.042. Abortion care is almost universally provided in an outpatient, nonhospital setting. App. 11, 185, 245. Applicants provide abortion exclusively at outpatient facilities that are not set up to provide inpatient care. App.89, 175, 251, 299.
Medication abortion is not a surgery or a “procedure”; the patient simply ingests two oral medications. App.10, 245-246. The patient takes the first medication at a health center and then generally takes the second medication 24 to 48 hours later at a location
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of her choosing, often at home, after which she expels the pregnancy as in a miscarriage. Id. Medication abortion does not require the use of any PPE. App.11; see also App.88, 145, 156-157, 169, 175, 224, 250, 302.
While in other states medication abortion is commonly provided up to 11 weeks LMP, Texas law prohibits it after 10 weeks LMP. Tex. Health & Safety Code § 171.063(a)(2). If patients are prevented from obtaining an abortion past this early stage of pregnancy, they lose the option of medication abortion altogether; if they are able to obtain an abortion at all, they will be required to have a procedural abortion, which requires the use of more PPE. App.11-12. Moreover, depending on the duration of the delay, they may be forced to have a two-day procedure rather than a one-day procedure, which again requires the use of more PPE. App. 10-12.
The State has identified no other oral medication it considers prohibited by the Executive Order, which on its face applies only to “surgeries and procedures.” As TMB’s guidance on the Executive Order emphasizes, the order’s “prohibition does not apply to office-based visits without surgeries or procedures.” TMB Guidance at 3.
Applicants are committed to doing their part to protect patients and staff and to minimize use of PPE during the pandemic. Even before the Executive Order, Applicants had taken numerous steps to further those ends—by, for example, limiting the number of individuals present for any procedure that would require PPE and by curtailing nonabortion services that can safely be delayed, such as annual well-person visits and routine tests for sexually transmitted infections. App.88-90, 143-144, 160, 169-170, 175176, 251-252, 302. Applicants have also taken extensive precautions to reduce the possibility of COVID-19 infection among patients and staff, by, for example, spreading
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out patient appointments, conducting patient intake by phone, screening all patients before or upon entry for COVID-19 symptoms, and having patients wait in their cars instead of the waiting room until a clinician is ready to see them. App.88-90, 143-144, 157158, 169-170, 175-176, 225, 251-252, 302. However, to meet the critical needs of their patients and where legally permitted, Applicants intend to continue providing abortion, including medication abortion, to patients during the pandemic.
C. The District Court’s First TRO Following the Attorney General’s March 23, 2020, enforcement threat against abortion providers, Applicants sued in the U.S. District Court for the Western District of Texas to protect their patients’ access to abortion. Applicants named as defendants Texas’s Governor, Attorney General, Acting Executive Commissioner of the Texas Health and Human Service Commission, and the directors of the state medical and nursing boards, along with the local prosecutors in each Texas county where Applicants offer abortion care. They alleged violations of the Due Process and Equal Protection Clauses of the U.S. Constitution on behalf of themselves and their patients. Applicants sought a TRO and preliminary injunctive relief based on the due-process claim. In opposing Applicants’ request for a TRO, State officials confirmed their categorical view that the Executive Order prohibits all abortions not involving a medical emergency, including medication abortions. After permitting argument during a telephonic conference and reviewing Respondents’ opposition to the TRO motion, the district court entered a TRO on March 30, 2020. The court found that Applicants had “established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the
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attorney general, violates Providers’ patients’ Fourteenth Amendment rights … by effectively banning abortions before viability.” App.74. The court further observed that “[t]he Due Process Clause … protects a woman’s right to choose abortion, and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions.” Id. (citation omitted; alteration in original).
The district court likewise concluded that absent a TRO, Applicants’ patients would “suffer serious and irreparable harm” from delayed access to abortion services and that some would be denied their constitutional right to abortion altogether if their pregnancies advanced to a stage at which abortion would no longer be available in Texas. App.76. The court further found that the Executive Order’s significant harm to Applicants’ patients outweighed any harm a TRO would cause to Respondents, particularly given that the ban would create only a “limited potential reduction,” if any, of PPE. App.77. It also concluded that the preservation of Applicants’ patients’ constitutional rights served the public interest. Id. The court set a hearing for April 13, 2020, on Applicants’ pending motion for a preliminary injunction.
That same day, Respondents filed a petition for writ of mandamus in the Fifth Circuit, and also moved for a stay of the TRO pending resolution of that petition, or in the alternative, an “administrative stay.” Respondents reiterated their position that the Executive Order prohibits all abortions, absent a medical emergency. See Pet. for Writ of Mandamus at 17, In re Greg Abbott, No. 20-50264 (5th Cir. Mar. 30, 2020) (“the EO unambiguously prohibits … abortions”).
The following morning, Applicants filed a letter with the Fifth Circuit indicating their intent to respond by 6 p.m. that day to the motion to stay the TRO pending
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mandamus review and for an administrative stay. Without awaiting that filing, a divided panel of the Fifth Circuit administratively stayed the TRO without explanation. App.6869. Judge Dennis dissented from that order. He would have denied the motion for an administrative stay and emphasized that the district court had already found that Texas residents seeking an abortion would suffer irreparable harm in the absence of a TRO. App.69. Applicants once again began cancelling appointments and sending home dozens of patients already waiting at their facilities for abortion care.
Though the stay motion was fully briefed on April 1, 2020, and the mandamus petition was fully briefed on April 3, 2020, the Fifth Circuit did not issue any further orders until late in the day on April 7, 2020, at which point the administrative stay of the TRO had been in place for a full week. On April 7, the same divided panel issued a writ of mandamus to the district court to vacate its TRO. The majority concluded that the district court had erred by not applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which the panel described as setting forth “the framework [that] govern[s]” the constitutionality of “emergency public health measures like” the Executive Order. App.22. In addition, the majority rejected Applicants’ argument that the Executive Order operates as an “outright ban” on abortion, instead viewing the Executive Order as a “temporary postponement” of access which operates only for abortions that are not necessary to “protect the health and life” of the patient. App.41.
Throughout its opinion, however, the majority acknowledged that the district court could still “make targeted findings, based on competent evidence, about the effects of [the Executive Order] on abortion access,” and thus address the “validity of applying [the Executive Order] in specific circumstances.” App.23. In this context, the Fifth
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Circuit acknowledged that other federal courts had recently enjoined state orders similar
to Texas’s Executive Order, but distinguished those TROs on the grounds that they were
“‘narrowly tailored’ and did not permit ‘blanket’ provision of abortions.” App.30 n.18.3 The
majority also acknowledged that (1) the Executive Order contains an exception for
procedures that would not deplete hospital capacity or PPE needed to cope with COVID-
19, and that the district court had not made findings about the use of PPE in medication
abortion, App.39, 42, and (2) relief may be appropriate for patients whose pregnancies
will reach or exceed Texas’s gestational age cut-off prior to the expiration date of the
Executive Order, App.43. Judge Dennis again dissented.
D. The District Court’s Second TRO
In line with the Fifth Circuit’s suggestions, Plaintiffs filed a second motion for a
TRO on April 8, 2020, seeking narrower relief. Specifically, Plaintiffs sought a TRO:
enjoining enforcement of the Executive Order and Emergency Rule as to (1) medication abortion; and (2) procedural abortion where (a) based on the treating physician’s medical judgment, the patients would be past the gestational age limit for an abortion in Texas (twenty-two weeks LMP) on April 22, 2020, and (b) based on the treating physician’s medical judgment,
3 See Preterm-Cleveland v. Att’y Gen. of Ohio, 2020 WL 1673310, at *1-2 (6th Cir. Apr. 6, 2020) (concluding that TRO was “narrowly tailored” such that it would not “inflict irretrievable harms or consequences before it expires” where executive order did not prevent medication abortion and where TRO authorized provision of abortion “deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions” according to the health care provider’s “determin[ation], on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed”); Robinson v. Marshall, 2020 WL 1659700, at *3 (M.D. Ala. Apr. 3, 2020) (narrowing TRO in light of state defendants’ representations that challenged executive order authorized provision of abortion where provider determined that, in her “reasonable medical judgment,” the patient would otherwise “lose her right to lawfully seek an abortion in Alabama based on the [challenged] order’s mandatory delays”); South Wind Women’s Ctr. LLC v. Stitt, 2020 WL 1677094, at *2, *5-6 (W.D. Okla. Apr. 6, 2020) (entering TRO as to medication abortion and “requirements that effectively deny a right of access to abortion”), appeal filed, No. 20-6045 (10th Cir. Apr. 7, 2020).
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the patient would be more than eighteen weeks LMP and therefore no longer be eligible to have an abortion in a licensed abortion facility in Texas on April 22, 2020, and the patient would [] likely be unable to obtain care at an ASC at or after that time. Pls.’ Second Mot. for a TRO & Mem. in Support at 16, No. 1:20-cv-00323 (W.D. Tex. Apr. 8, 2020), ECF No. 56. The district court granted that second TRO, finding that the Attorney General’s interpretation of the Executive Order “creates a credible threat of enforcement against Plaintiffs and their agents for the provision of any abortion.” App.9 (emphasis added). The district court further found that Applicants “have ceased providing nearly all abortion care” and have already “turned away hundreds of patients seeking abortion care” while the Executive Order has been in place. App.10, 14. As a result, the court found, “some patients have already exceeded the gestational age limit to obtain an abortion in Texas while the Executive Order has been in place.” App.15. Some patients have also traveled “by both car and airplane to places as far away as Colorado and Georgia,” which “increases an individual’s risk of contracting COVID-19.” App.14. Moreover, the district court found that because “[t]he health risks associated with both pregnancy and abortion increase with gestational age,” App.15, “delaying access to abortion will not conserve hospital resources,” App.14. It also concluded that “individuals with ongoing pregnancies require more in-person healthcare, including lab tests and ultrasounds, at each stage of pregnancy than individuals who have previability abortions.” App.13. As a result, “delaying access to abortion will not conserve PPE.” Id. Additionally, the district court found that “[p]roviding medication abortion does not
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require the use of any PPE,” App.11; that procedural abortions use minimal PPE, App.12; and that “[a]bortion providers generally do not use N95 masks,” App.13.
Based on these factual findings, the district court concluded that the Executive Order, as interpreted by Respondents, “is an undue burden on a woman’s right to a previability abortion.” App.17. It likewise held that application of the Executive Order to medication abortion, as well as the other circumstances described in the TRO, “violates the standards set forth in both Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).” Id. The court concluded that Applicants and their patients “will suffer irreparable harm in the absence of a [TRO].” App.18.
As with the first TRO, the following morning, Respondents filed a motion to stay and a mandamus petition with the Fifth Circuit. Applicants informed the Fifth Circuit Clerk’s office that they would file a brief in opposition to the stay by 5 p.m. CST that same day. However, just after 3 p.m. CST, the same Fifth Circuit panel, again divided, granted another administrative stay of the district court’s TRO, except as to those patients whose pregnancies would exceed 22 weeks or more on April 22. App.1-4.4
Accordingly, with the exception of approximately 24 hours when the first TRO was in effect and approximately 24 hours when the second TRO was in effect, Applicants
4 Briefing on Respondents’ pending motion for stay and petition for writ of mandamus will not be complete in the Fifth Circuit until April 13 and April 15, respectively. Meanwhile, preparation for an evidentiary hearing on the preliminary injunction motion in the district court is underway; the parties have until April 15 to propose a new date for that hearing.
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have now been forced to turn away patients for abortion care in Texas for almost three weeks, resulting in a denial of care to hundreds of patients.
Upon entry of the Fifth Circuit’s administrative stay of the second TRO on April 10, 2020, Applicants filed an emergency motion with the Fifth Circuit asking that the administrative stay be lifted before day’s end. App.314. The Fifth Circuit effectively denied this motion by ordering the State officials to file a response by Saturday, April 11, at 5 p.m. CST. App.333.
STANDARD OF REVIEW The full Court or Circuit Justice has jurisdiction to vacate a stay by a court of appeals, including one characterized as an “administrative stay,” see Office of Pers. Mgmt. v. American Fed’n of Gov’t Emps., 473 U.S. 1301, 1306 (1985) (Burger, C.J., in chambers), “regardless of the finality of the judgment below,” Western Airlines, Inc. v. International Bhd. of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers). The Court, or a Circuit Justice, may vacate a stay entered by a court of appeals if the applicant shows (1) “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari”; (2) “a fair prospect that a majority of the Court will vote to reverse the judgment below”; and (3) “a likelihood that irreparable harm will result” from the denial of the relief sought. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); see also, e.g., Reynolds v. International Amateur Athletic Fed’n, 505 U.S. 1301 (1992) (Stevens, J., in chambers) (in determining whether to vacate stay of preliminary injunction, “[t]he dispositive questions … are, first, whether the applicant has established a probability of success on the merits, and second, … irreparable harm.”).
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ARGUMENT Vacatur of the Fifth Circuit’s stay is clearly warranted. First, the Fifth Circuit’s stays have already seriously and irreparably injured Applicants’ patients and leaving the current stay in place will compound this harm. In denying patients access to medication abortion, the stay singles out medication abortion as the only oral medication that cannot be provided under the Executive Order—even though its provision requires no PPE and delaying it forces patients to undergo more invasive abortion procedures later in their pregnancies or to attempt to travel out of state to access early abortion. On the other hand, Respondents will suffer little harm if the TRO remains in place until the preliminary injunction hearing because the Executive Order, as applied to medication abortions, will exacerbate rather than alleviate shortages of PPE and hospital capacity necessary to combat the COVID-19 pandemic. Second, the Fifth Circuit plainly erred in imposing an administrative stay of the TRO. In doing so, the court failed to give due consideration of the irreparable harm that would result from the stay. Further, the court of appeals effectively gave Respondents the relief they are seeking in their petition for a writ of mandamus, and that writ plainly should not issue. In temporarily enjoining the Executive Order’s enforcement to permit a narrow category of abortions during the pandemic, the district court faithfully adhered to the Fifth Circuit’s earlier mandamus opinion, which in turn purported to apply this Court’s longstanding precedent on both the fundamental right to terminate a pregnancy and a state’s ability to take appropriate measures during a public health crisis. While Applicants disagree with the Fifth Circuit’s articulation of the applicable analysis, under any interpretation this precedent makes clear that a state may not suspend, or
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substantially restrict, the constitutional right to abortion during a public health crisis

when doing so does not actually advance public health in a material way.

Finally, this Court is likely to grant review of this case upon the Fifth Circuit’s

resolution of the pending petition for a writ of mandamus or after a direct appeal of the

district court’s decision on the pending preliminary injunction motion. Numerous other

cases involving similar state restrictions on abortion during the COVID-19 pandemic are

currently in the federal courts and, notably, none has permitted a prohibition as extreme

as the one Texas seeks to impose here, with the Fifth Circuit’s approval. See South Wind

Women’s Ctr. LLC v. Stitt, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020), appeal filed, No.

20-6045 (10th Cir. April 7, 2020); Robinson v. Marshall, 2020 WL 1520243 (M.D. Ala. Mar.

30, 2020), appeal voluntarily dismissed, No. 20-11270 (11th Cir. Apr. 4, 2020); Preterm-

Cleveland v. Yost, No. 19-cv-00360 (S.D. Ohio Mar. 30, 2020), ECF No. 43 (“Ohio Order”),

appeal dismissed, No. 20-3365 (6th Cir. Apr. 6, 2020). Indeed, absent intervention by this

Court, this stay makes Texas the only state in the country permitted to enforce an

interpretation of a COVID-19 executive order that categorically bars medication

abortion. The issues presented by this case are ones of national importance whose

urgency merits this Court’s review at the earliest possible time.

I.

THE STAY IMPOSES SERIOUS AND IRREPARABLE INJURY ON APPLICANTS’ PATIENTS

AND THE PUBLIC

The Fifth Circuit’s stay is severely and irreparably injuring Applicants’ patients—

particularly those seeking early abortions—and it will continue to do so absent this

Court’s intervention. Applicants have already had to turn away hundreds of patients

seeking abortion care and will have to turn away hundreds more absent reinstatement of

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a TRO. App.14, 88, 90, 143, 159-160, 163, 170, 177-178, 227, 231, 252-253, 301; see also, e.g., App. 168 (in 2019 half of the abortions they provided were medication); App.223 (in a “typical” week the Austin clinic provides medication abortions to approximately 30 patients). These cancellations have left patients “devastated,” “scared,” “stunned,” and “anguish[ed].” App.163, 151, 139-140, 232. Even if this Court promptly intervenes to lift the stay, some patients’ pregnancies will have advanced beyond the legal limit for medication abortion in Texas and—because procedural abortion is currently unavailable because of the Executive Order as well—they will have no access to abortion in the State. App.146, 161, 231, 253, 271, 303.
Moreover, it is undisputed that the risk of a serious complication from abortion increases with weeks’ gestation. App. 15-16, 161, 170, 228-229, 254-255. The same is true of the ongoing health risks to individuals of remaining pregnant, which increase over the course of a pregnancy. App.161, 229. Delays in the availability of abortion care necessarily lead patients to require more invasive, time-consuming, and expensive abortion procedures. App.161, 170, 229, 254-255. And some individuals anxious to end their pregnancies may resort to unsafe methods to induce abortion. See ACOG Br. at 12-14.
In addition to increasing health risks, delayed access to abortion imposes financial and emotional costs on people with unwanted pregnancies. For example, people with ongoing pregnancies must struggle to conceal their pregnancies from abusive partners or family members, and must deal with the stress and anxiety of not knowing when—or if— they will be able to obtain an abortion. App.16; see also App.139-140, 161, 228, 232, 240241, 308-309. Individuals also bear emotional costs of being forced to carry a pregnancy
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for weeks, despite desiring an abortion far earlier. App.15; see also App.164, 227, 231-232, 307-309.
Second, continued imposition of the stay will do irreparable injury to public health by increasing, not decreasing, demands for PPE and hospital resources. It will drive up the use of needed PPE because a pregnant patient denied an abortion remains pregnant and will require medical care related to pregnancy. At every stage of pregnancy, a pregnant person will need services—including ultrasound imaging, lab tests, and other diagnostic tests—that require the use of more PPE than abortion. App.130-132, 184-188, 220. These ultrasounds and other diagnostic tests are not covered by the Executive Order and are thus not banned during the pandemic. See TMB Guidance; App.9, 11-12. Further, people with ongoing pregnancies are more likely to require treatment in a hospital for a wide range of conditions than people who have abortions. App.184-185, 220, 251; see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016).
In addition, the longer an abortion is delayed, the more PPE the abortion procedure itself will require. Medication abortion available in the first 10 weeks of pregnancy, as explained above, requires no PPE. After 10 weeks, a patient’s only option in Texas is procedural abortion. Patients delayed past 14 to 16 weeks LMP are no longer eligible for an aspiration abortion, and must instead have a dilation and evacuation (“D&E”) abortion, which later in the second trimester becomes a two-day procedure requiring two consecutive trips to a health center, twice as much contact with health care providers, and at least twice the amount of PPE. App.10-11; see also, e.g., App.161, 177, 228-229, 246-247, 254-255. The Fifth Circuit’s stay means more patients will require more PPE-intensive abortions, and some patients will be entirely deprived of their
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constitutional right to an abortion given Texas’s regulations and the cost of later abortion care.
Moreover, in response to the stay, some patients will attempt to leave Texas—as some are already doing—to obtain abortion care in other states, driving or flying as far away as Colorado and Georgia, which exposes patients and third parties to greater risk of COVID-19 infection than seeking care locally. App.14; see also App.151-152 (describing patient’s three-day trip to Colorado for abortion care shortly after the Attorney General’s statement); App.233 (one out-of-state provider treated 30 abortion patients from Texas in the week after the Attorney General’s statement); App.163 (at least four patients denied care at one Texas health center flew to Colorado for care, and another three drove roughly 11 hours to New Mexico); App.307-308 (average distance traveled by clients for abortion care has increased from 158 miles in 2019 to 734 miles after the Executive Order). The record shows that patients traveling to other States for abortion care include patients seeking medication abortion. App.150, 152.
In sum, as the record demonstrates, vacatur of the stay of the TRO with respect to medication abortion is necessary to restore some abortion access in Texas and prevent ongoing irreparable harm to patients and the public health. Respondents will suffer no harm if the stay is vacated because, for the reasons discussed above, their threatened enforcement of the Executive Order undermines rather than advances their stated public health goals.
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II. THE FIFTH CIRCUIT WAS DEMONSTRABLY WRONG IN ITS APPLICATION OF ACCEPTED STANDARDS TO ISSUE THE STAY The court of appeals’ decision to enter an administrative stay of the TRO pending
resolution of the mandamus petition plainly departs from this Court’s precedent. To warrant a stay, Respondents had the burden to demonstrate: (1) “a strong showing” that they are likely to succeed on their petition for writ of mandamus; (2) that they are likely to suffer irreparable injury absent a stay; (3) that Providers and their patients will not be substantially harmed by a stay; and (4) that granting the stay will serve the public interest. Nken v. Holder, 556 U.S. 418, 425-426, 434 (2009) (citations omitted).
Respondents cannot possibly demonstrate that they are likely to prevail on their pending mandamus petition. Mandamus is a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004). To obtain the writ before the Fifth Circuit, Respondents must show that they have (1) a “clear and indisputable” right to the writ, (2) “no other adequate means to attain … relief,” and (3) the writ is otherwise warranted. Id. at 380-381. They cannot do so here. Moreover, the remaining equitable factors relevant to a stay favor Applicants and restoration of the district court’s TRO.
A. Respondents Are Not Likely To Succeed On Their Mandamus Petition Even during a crisis, fundamental rights secured by the U.S. Constitution remain steadfast, see Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-121 (1866), and this Court’s precedents, from Jacobson to Casey, all establish that the State cannot ban early abortion
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during a pandemic.5 While the government has authority to “safeguard the public health
and the public safety” in an emergency, the State may not—even while exercising that
power—impose a restriction that is “a plain, palpable invasion of rights secured by the
fundamental law.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 31
(1905). Regardless of whether the Executive Order’s prohibition of medication abortion
operates as an outright ban on previability abortion at early gestational ages, or—as the
Fifth Circuit characterized it—a temporary restriction, it is “beyond question that the
Executive Order’s burdens outweigh the order’s benefits as applied to” patients seeking
medication abortion. App.17.
First, as applied to medication abortion, the Executive Order does not serve the
State’s asserted interests in reducing PPE use, conserving hospital capacity, or
preventing COVID-19 exposure. Specifically, based on evidence provided in 20
declarations submitted by Applicants, the district court found that “[p]roviding
medication abortion does not require the use of any PPE,” while the alternative—
continuing the pregnancy—“will not conserve PPE.” App.11, 13. The court also concluded
that complications associated with medication abortion, including those requiring
5 In the years since Casey, federal courts of appeals have uniformly struck down previability bans on abortion as incompatible with Roe v. Wade, 410 U.S. 113 (1973), and this Court has consistently declined to grant certiorari to reconsider the issue. See, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772-773 (8th Cir. 2015) (six-week ban), cert. denied, 136 S. Ct. 981 (2016); Edwards v. Beck, 786 F.3d 1113, 1117-1119 (8th Cir. 2015) (per curiam) (twelve-week ban), cert. denied, 136 S. Ct. 895 (2016); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013) (20-week ban), cert. denied, 571 U.S. 1127 (2014); Jane L. v. Bangerter, 102 F.3d 1112, 1117-1118 (10th Cir. 1996) (22-week ban), cert. denied, 520 U.S. 1274 (1997); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992) (ban on all abortions), cert. denied, 507 U.S. 972 (1993); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368-1369, 1371-1372 (9th Cir. 1992) (ban on all abortions), cert. denied, 506 U.S. 1011 (1992).
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hospital care, are exceedingly rare, App.11; see also Whole Woman’s Health, 136 S. Ct. at 2311-2312, 2315, and that (as is true with abortion generally) nearly all medication abortions are provided in outpatient facilities, not hospitals, App.11.6 In contrast, the district court concluded that individuals who remain pregnant “are more likely to seek treatment in a hospital” than individuals who have previability abortions. App.14. Moreover, the district court found that some patients are already traveling across state lines to obtain abortion care elsewhere, id., including medication abortion, id., therefore increasing the risk of exposure to COVID-19 relative to obtaining care closer to home. In light of this evidence, the Executive Order’s prohibition on medication abortion lacks any “real or substantial relation” to the public health goals on which the State relies. Jacobson, 197 U.S. at 31.
While State officials assert that medication abortion results in complications necessitating “surgical intervention” 8 to 15 percent of the time, State Defs.’ Resp. to Pls.’ Mot. for TRO at 17-18, Planned Parenthood Ctr. for Choice v. Abbott, No. 1:20-cv-00323 (W.D. Tex. Mar. 30, 2020) (“Defs.’ TRO Resp.”), ECF No. 30, the rates they cite are not for complications requiring hospitalization,7 but rather are outdated figures referring to the incidence of medication abortions that are completed using aspiration. More current data show that the regimen on the label for one of the medications involved in medication
6 Tex. Health & Human Servs., Induced Terminations of Pregnancy, 2017 Selected Characteristics of Induced Terminations of Pregnancy (2018), https://hhs.texas.gov/ about-hhs/records-statistics/data-statistics/itop-statistics (in 2017, 99.8 percent of abortions among Texas residents in Texas were provided in abortion facilities or ASCs).
7 In fact, only 0.31 percent of medication abortions result in complications requiring hospitalization, surgery, or blood transfusion. App.245; see also App.11.
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abortion, which has been approved by the U.S. Food and Drug Administration and is used by Applicants, has an aspiration follow-up rate of 2.6 percent.8 And for those patients, aspiration involves the same incision-free suction procedure used for early procedural abortions; it takes approximately five to 10 minutes in an outpatient setting. App.11; see also App.185, 246. Hospital treatment related to an ongoing pregnancy is far more common. App.13; see also App. 185 (“[A]t least twenty percent of pregnant patients will visit a hospital at some point prior to delivery, and some patients will visit the hospital for evaluation or treatment on multiple occasions.”).
State officials also assert that prohibiting medication abortion saves PPE because, under Texas law, a medication abortion must be preceded by an ultrasound and offered in conjunction with a follow-up visit. Tex. Health & Safety Code §§ 171.012, 171.063(e); Tex. Admin. Code § 139.53(b)(4); see also App.88-89, 156, 175, 223, 246, 249. However, the record establishes that medication abortion, including any incidental lab work and diagnostic testing, requires the use of less PPE than the monthly diagnostic tests and ultrasounds that are required for a patient with an ongoing pregnancy. App.13; see also App.185-186, 220, 251.9 In any event, as the district court found, the Texas Medical Board’s own guidance makes clear that “physical examinations, non-invasive diagnostic
8 Defs.’ TRO Resp. at 16 n.33 (citing U.S. Food & Drug Admin., Mifeprex 13 tbl.3 (rev. Mar. 2016), https://www.accessdata.fda.gov/drugsatfda_docs/label/2016/020687 s020lbl.pdf (listing rate of 2.6 percent for “surgical intervention” due to ongoing pregnancy, medical necessity, persistent or heavy bleeding after treatment, patient request, or incomplete expulsion)).
9 Transabdominal ultrasounds do not require the use of any PPE. App.11-12, 157, 219, 224. Transvaginal ultrasounds, if necessary, require the use of one pair of nonsterile gloves, at most. App.12, 157, 219, 224.
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tests, the performing of lab tests, or obtaining specimens to perform laboratory tests” are not “procedures” and are therefore not covered by the Executive Order. App.9.
Against the Executive Order’s nonexistent benefits, the burden of the order as applied to medication abortion patients is severe and ongoing. Even assuming the Executive Order is not extended beyond April 21, it subjects all patients to at least a month-long delay—a delay many orders of magnitude larger than the 24-hour delay permitted by this Court in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). App.81. Moreover, record evidence demonstrates that the Executive Order will, in fact, cause an even longer delay for these patients because abortion providers in Texas will not be capable of absorbing the full backlog of patients in need of abortion care after the Executive Order expires. App.15; see also App.164, 234-235. As noted, these delays will lead to greater health risks for pregnant individuals, force patients to travel to other states during a pandemic to obtain abortion care, and impose numerous other financial and emotional costs. Balanced against the Executive Order’s illusory benefits as applied to medication abortion, these burdens are unquestionably “undue.” Casey, 505 U.S. at 857.
In addition, the Executive Order, as interpreted by State officials, singles out medication abortion for differential treatment. See Jacobson, 197 U.S. at 26 (law justified on public safety grounds may not be “unreasonable, arbitrary, [or] oppressive”). State officials have identified no other oral medication they consider prohibited by the Executive Order, which on its face applies only to “surgeries and procedures.” App.81. Moreover, the record shows that treatments comparable to medication abortion, and those other aspects of medical care that accompany it, are exempt from the Executive
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Order’s requirements. See App.7, 14; see also App.187 (obstetric care like blood draws, ultrasounds, and other in-person diagnostics still performed during prenatal visits); App.311-313 (ultrasound examinations still being performed for obstetrical patients). Meanwhile, Texas would deny medication abortion patients access to care altogether. Under these circumstances, the record demonstrates that Texas has exploited the COVID-19 crisis as a pretext to target abortion, thus justifying judicial intervention.
B. Respondents Have An Effective Remedy Respondents cannot prevail on their petition for a writ of mandamus for the additional reason that they have an effective remedy through the normal litigation and appeal process. See Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976). The TRO is in effect until April 19, and if a preliminary injunction is granted, Respondents will have an immediate right to appeal. 28 U.S.C. § 1292(a). Accordingly, Respondents would have an adequate remedy later in litigation. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (“[M]andamus indisputably undermines the policy against piecemeal appellate review[.]”); see also, e.g., Wilson v. U.S. Dist. Ct. for N. Dist. of Cal., 161 F.3d 1185, 1187 (9th Cir. 1998) (denying mandamus review of TRO staying prisoner’s execution where “[t]he district court ha[d] scheduled a full show cause hearing on issuance of a preliminary injunction for December 3, 1998, which [was] less than three weeks hence,” and “[t]hat order [would] be fully reviewable on appeal and expedited proceedings [could] be requested”).
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III. THIS COURT WOULD LIKELY GRANT REVIEW OF A WRIT OF MANDAMUS ENTERED BY THE FIFTH CIRCUIT Vacatur of the Fifth Circuit’s administrative stay is appropriate for the final
reason that this Court “could and very likely would” review a decision from the mandamus petition currently pending in the Fifth Circuit or from a direct appeal of the district court’s grant or denial of the preliminary injunction. Western Airlines, 480 U.S. at 1305.
This case will present the question whether a district court may partially enjoin a previability abortion ban during the COVID-19 pandemic when the court determines that the ban is not reasonably designed to protect public health. That question is currently at issue in other cases pending in the federal courts. Specifically, district courts in Ohio, Alabama, and Oklahoma have issued TROs enjoining the enforcement of respective state orders purporting to ban abortions during the pandemic in order to preserve PPE and hospital capacity. Those courts held that plaintiffs were likely to succeed in their challenges to a ban on abortion based on the COVID-19 pandemic where continued access to abortion care would not impede necessary conservation of PPE and hospital capacity. See South Wind Women’s Ctr., 2020 WL 1677094, at *4-5; Robinson, 2020 WL 1520243, at *2; Ohio Order 5-6.10
In circumstances as time-sensitive and pressing as these, any conflict on this question among lower courts would warrant granting certiorari, despite the absence of
10 The TRO in the Alabama case was later partially stayed, following clarification by defendants that the executive order would not prohibit all abortions, and would instead permit “providers, exercising their reasonable medical judgment, to protect their patients’ right to terminate a pregnancy.” Robinson, 2020 WL 1659700, at *3.
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conflicting decisions from courts of appeals to date. Cf. Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting certiorari before judgment in part “because of the disarray among the Federal District Courts”); see also Pet. for Writ of Cert. at 16, United States Dep’t of Homeland Security v. Regents of the Univ. of Cal., No. 18-587 (U.S. Nov. 5, 2018) (observing, amidst division among courts of appeals and district courts, that “[o]nly this Court can resolve the conflict in the lower courts and provide much-needed clarity”). Given that other States’ officials have also suggested an interest in using the pandemic as a justification for banning abortion, more challenges like this are bound to follow. Guidance from this Court is urgently needed.
In addition, this Court is likely to grant certiorari review of the Fifth Circuit’s mandamus decision or a decision on appeal from a preliminary injunction order because such decisions will present questions of national importance. See Sup. Ct. R. 10(c). Where, as here, important constitutional issues are at stake, this Court will grant certiorari even absent a conflict among the lower courts. See, e.g., June Medical Servs. L.L.C. v. Gee, Nos. 18-1323, 18-1460 (U.S.); New York State Rifle & Pistol Ass’n v. City of N.Y., No. 18280 (U.S.). Moreover, application of the Executive Order to abortion providers in Texas, and similar measures in other States, is already having severe negative public health effects, not only in the States using this national emergency to further their own antiabortion agendas, but also in neighboring States where patients are traveling for abortion care. The drastic consequences of the Executive Order for public health, women’s health, and the constitutional right to a previability abortion plainly present issues of national importance warranting this Court’s review.
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CONCLUSION This Court has continually recognized the importance of maintaining injunctions against enforcement of drastic state restrictions on access to previability abortion, pending later review. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2303 (2016); June Medical Servs. L.L.C. v. Gee, 139 S. Ct. 663, 663 (2019). For the foregoing reasons, the Court should do the same here and vacate the stay entered by the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted.

PATRICK J. O’CONNELL Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com
JENNIFER SANDMAN Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 541-7800

/s/ Julie A. Murray JULIE A. MURRAY
Counsel of Record HANNAH SWANSON Planned Parenthood Federation of America 1110 Vermont Ave., NW, Ste. 300 Washington, DC 20005 (202) 973-4800 julie.murrary@ppfa.org hannah.swanson@ppfa.org

STEPHANIE TOTI RUPALI SHARMA Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 (646) 490-1083

MOLLY DUANE Center for Reproductive Rights 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631

April 11, 2020

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CORPORATE DISCLOSURE STATEMENT Plaintiff Planned Parenthood Center for Choice has no parent corporation, and no publicly held corporation holds 10% or more of its shares. Plaintiff Planned Parenthood of Greater Texas Surgical Health Services has no parent corporation, and no publicly held corporation holds 10% or more of its shares. Plaintiff Planned Parenthood South Texas Surgical Center is a subsidiary of Planned Parenthood South Texas. No publicly held corporation holds 10% or more of shares in either organization. Plaintiff Whole Woman’s Health is the doing business name of a consortium of limited liability companies held by a holding company, the Booyah Group, which includes Whole Woman’s Health of McAllen, LLC, and Whole Woman’s Health of Fort Worth, LLC. Whole Woman’s Health has no parent corporation, and no publicly held corporation holds 10% or more of its shares. Plaintiff Whole Woman’s Health Alliance is a Texas non-profit corporation. It has no parent corporation, and no publicly held corporation holds 10% or more of its shares. Plaintiff Southwestern Women’s Surgery Center has no parent corporation, and no publicly held corporation holds 10% or more of its shares. Plaintiff Brookside Women’s Medical Services PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center has no parent corporation, and no publicly held corporation holds 10% or more of its shares.
s/ Julie A. Murray JULIE A. MURRAY
Counsel of Record

APPENDIX TABLE OF CONTENTS
TAB
Court of Appeals Decision Granting Motion for a Temporary Administrative Stay of the District Court’s Order of April 9, 2020 (5th Cir. Apr. 10, 2020).........................................................................App.1
District Court Order Granting Plaintiffs’ Second Motion for a Temporary Restraining Order (W.D. Tex. Apr. 9, 2020) ........................App.5
Court of Appeals Mandamus Opinion (5th Cir. Apr. 7, 2020) ..........................App.21
Court of Appeals First Administrative Stay (5th Cir. Mar. 31, 2020)............App.68
District Court Order Granting Plaintiffs’ Motion for a Temporary Restraining Order (W.D. Tex. Mar. 30, 2020) .........................................App.70
Executive Order GA-09 (Mar. 22, 2020)..............................................................App.79
Texas Attorney General Ken Paxton Press Release (Mar. 23, 2020).............App.82
22 Tex. Admin. Code § 187.57 (Apr. 3, 2020) ......................................................App.85
Declarations: Declaration of Polin C. Barraza.................................................................App.87 Declaration of Mary Travis Bassett .........................................................App.96 Declaration of Stephanie Chang..............................................................App.129 Declaration of Kamyon Conner ...............................................................App.137 Declaration of Alicia Dewitt-Dick...........................................................App.141 Declaration of Jane Doe............................................................................App.148 Declaration of Andrea Ferrigno..............................................................App.155 Declaration of Clora Johnson...................................................................App.162 Declaration of Jessica Klier .....................................................................App.166 Declaration of Ken Lambrecht................................................................App.172 Declaration of Judy Levison ....................................................................App.183 Declaration of George A. Macones..........................................................App.217 Declaration of Amy Hagstrom Miller.....................................................App.222 Declaration of Tram Nguyen ...................................................................App.230 Declaration of Frances Northcutt...........................................................App.239 Declaration of Ann Schutt-Aine..............................................................App.242 Declaration of Joshua Sharfstein ............................................................App.269 Declaration of Robin Wallace ..................................................................App.299 Declaration of Rashae Ward ....................................................................App.304 Declaration of Rita Golikeri Wood .........................................................App.310
i

Respondents’ Emergency Motion to Lift Partial Administrative Stay (Apr. 10, 2020) ...................................................................................App.314
Court of Appeals Letter Directing Responses to Motion to Lift Stay (Apr. 10, 2020) ............................................................................................App.333
ii

Case: 20-50296 Document: 00515378889 Page: 1 Date Filed: 04/10/2020
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20-50296
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Petitioners
Petition for Writ of Mandamus to the United States District Court for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges. PER CURIAM:
On April 7, 2020, we issued a writ of mandamus directing the district court to vacate its temporary restraining order (“TRO”) that exempted abortion procedures from GA-09, an emergency executive order issued on March 22 by the Governor of Texas postponing certain non-essential medical procedures for three weeks during the escalating COVID-19 pandemic. See In re Abbott, --F.3d ---, 2020 WL 1685929 (5th Cir. April 7, 2020). As we explained, GA-09 sought to preserve critical medical resources and slow the spread of a pandemic during what the district court itself recognized was Texas’s “worst public health emergency in over a century.” Id. at *1, 4, 9. We further explained that GA-09 “is a concededly valid public health measure that applies to all
App.1

Case: 20-50296 Document: 00515378889 Page: 2 Date Filed: 04/10/2020
‘surgeries and procedures,’ does not single out abortion, and . . . has an exemption for serious medical conditions.” Id. at *10.
In our opinion, we emphasized that the district court had “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.” Id. at *2. The evidence presented at this hearing, we said, would allow the district court to make “targeted findings, based on competent evidence, about the effects of GA-09 on abortion access.” Id. We emphasized that “those proceedings” must “adhere to the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures like [GA-09].” Id. As we stated in our opinion, those “controlling” standards come from the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In re Abbott, 2020 WL 1685929, at *1, 6–7. Having already painstakingly explained those standards in our opinion, we reiterate our holding:
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30. In re Abbott, 2020 WL 1685929, at *7 (cleaned up). We also articulated how the Jacobson framework would apply to the Casey undue-burden analysis. Id. at *11 (discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). We explained that this analysis “ask[s] whether GA-09 imposes burdens on abortion that ‘beyond question’ exceed its
App.2

Case: 20-50296 Document: 00515378889 Page: 3 Date Filed: 04/10/2020
benefits in combating the epidemic Texas now faces.” Id. (quoting Jacobson, 197 U.S. at 31). We explained further that this analysis would “require[] careful parsing of the evidence,” and we noted some of the conflicting evidence in the record. Id. But we emphasized that “[t]hese 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 . . . in any particular circumstance.” Id. at *12 (cleaned up).
The day following our mandamus, April 8, 2020, the district court did the following: (1) it vacated its March 30 TRO (Doc. 54); (2) it cancelled the telephonic preliminary injunction hearing previously scheduled for April 13 (Doc. 54); and (3) it ordered the parties to confer and propose a status report before April 15 setting out the parties’ agreement on procedures and a schedule for a new preliminary injunction hearing on a yet-unannounced date (Doc. 58).
Also on April 8, plaintiffs filed in the district court a new application for TRO supported only by one additional declaration (Doc. 56). The next day, April 9, the district court—without allowing defendants either to file a pleading or to submit evidence in opposition to the TRO application—entered an order granting plaintiffs a TRO (Doc. 63). The new TRO enjoins all defendants from enforcing GA-09 against Plaintiffs or their agents in the following ways: (1) it enjoins enforcement of GA-09 “as a categorical ban on all abortions provided by Plaintiffs”; (2) it enjoins enforcement as to providing “medication abortions”; (3) it enjoins enforcement as to providing “procedural abortion[s] to any patient who, based on the treating physicians’ medical judgment, would be more than 18 weeks LMP [“last menstrual period”] on April 22, 2020, and likely unable to reach an ambulatory surgical center in Texas or to obtain abortion care”; and, finally (4) it enjoins enforcement as to providing “procedural abortion[s] to any patient who, based on the treating physician’s medical judgment, would
App.3

Case: 20-50296 Document: 00515378889 Page: 4 Date Filed: 04/10/2020
be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.” (Doc. 63, at 14–15).
Texas officials have now filed a petition for writ of mandamus seeking vacatur of the April 9 TRO, as well as an emergency motion for stay of the TRO and a temporary administrative stay of the TRO.
IT IS ORDERED that the motion for temporary administrative stay of the district court’s order of April 9, 2020 (Doc. 63) is GRANTED, until further order of this court, to allow sufficient time to consider the mandamus petition and emergency stay motion. This stay operates against the April 9 TRO in all respects EXCEPT that part of the TRO applying to “any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020” (Doc. 63, at 15). Our stay does not operate against that part of the April 9 TRO.*
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the emergency stay motion no later than Saturday, April 11, 2020, at 8:00 p.m. Any reply by petitioners is due no later than Monday, April 13, 2020, at noon.
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the petition for writ of mandamus no later than Tuesday, April 14, 2020, at 2:00 p.m. Any reply by petitioners is due no later than Wednesday, April 15, 2020, at 2:00 p.m.
* Judge Dennis dissents, in part, because he would not stay any part of the district court’s April 9 TRO.
App.4

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 1 of 16

iN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

2020APR9

Pi

t4:33

AUSTIN DIVISION

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER, AND

§

ROBIN WALLACE, M.D., M.A.S.,

§

PLAINTIFFS,

§

§

V.

§

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON §

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BR1NT

§

CARLTON, EXECUTIVE DIRECTOR §

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH §

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY, §

JOE GONZALES, CRIMINAL

§

DISTRICT ATTORNEY FOR BEXAR

§

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY, §

JOHN CREUZOT, DISTRICT

§

CAUSE NO. A-20-CV-323-LY

App.5

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 2 of 16
ATTORNEY FOR DALLAS COUNTY, SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY TARRANT COUNTY, RICARDO RODRIGUEZ, JR., CRIMINAL DISTRICT ATTORNEY FOR HIDALGO COUNTY, BARRY JOHNSON, CRIMINAL DISTRICT ATTORNEY FOR MCLENNAN COUNTY, KIM OGG, CRIMINAL DISTRICT ATTORNEY FOR HARRIS COUNTY, AND BRIAN MIDDLETON CRIMINAL DISTRICT ATTORNEY FOR FORT BEND COUNTY, EACH IN THEIR OFFICIAL CAPACITY,
DEFENDANTS.
ORDER GRANTING PLAINTIFFS' SECOND MOTION FOR A TEMPORARY RESTRAINING ORDER
Before the court is Plaintiffs' Second Motion for a Temporary Restraining Order and
Memorandum in Support (Dkt. #56). Having considered the motion, the evidence in the record, the
legal arguments made by all parties to date, and the opinion, order, and writ of mandamus issued by
the United States Court of Appeals for the Fifth Circuit April 7, 2020, In re Abbott, No. 20-50264
2020 WL 1685929 (5th Cir. April 7, 2020), the court again considers whether Plaintiffs are entitled
to temporary relief limiting the scope of Executive Order GA-09 issued by the governor of Texas on
March 22, 2020.
Accompanying Plaintiffs' motion are proposed findings of fact and conclusions of law. The
proposed findings and conclusions carefully and painstakingly track the evidence before the court
regarding both of Plaintiffs' motions for temporary relief and the applicable law. The court has
reviewed and considered these proposed findings and conclusions and determined that they are, in
2
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 3 of 16
substantial part, accurate and in concurrence with court's own review of the evidence and the law. The court will, therefore, adopt the bulk of the proposed findings and conclusions as its own.
The court makes the following findings of fact: 1. On March 13, 2020, the United States declared a state of emergency and the State of Texas declared a state of disaster related to the COVID-1 9 pandemic. See Proclamation by the Governor of the State of Texas (Mar. 13, 2020);1 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL
1272563 (Mar. 13, 2020). 2. On March 22, 2020, the governor issued an executive order barring "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." Executive Order GA-09, "Relating to hospital capacity during the COVID- 19 disaster" (March 22, 2020) ("Executive Order") at 3 2 The Executive Order further states that procedures 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" are exempt from the order. Id. The Executive Order remains in effect until 11:59 PM on April 21, 2020, unless the governor rescinds or modifies it. Id.
3. Federal officials and medical professionals expect the pandemic to last well beyond April 21,2020. Schutt-Aine Dccl. ¶ 40. This court likewise expects the pandemic to last beyond April21.
Available at https://gov.texas.gov/uploads/files/press/DISASTER_covid 1 9_disaster_ proclamation_IMAGE_03- 13 -2020.pdf.
Available at https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID 1 9_hospital_ capacity_IMAGE_03-22-2020.pdf.
3
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 4 of 16
The current shortage of personal protective equipment ("PPE") is expected to continue for the next
three to four months. Sharfstein Deci. ¶ 13.
4. Failure to comply with the Executive Order is a criminal offense punishable by a fine of up to $1,000, confinement injail for up to 180 days, or both. Executive Order at 3 (citing Tex. Gov't Code § 418.173). Violation of the Executive Order may also give rise to disciplinary action against
licensed health-care providers by the Texas Health and Human Services Commission, the Texas
Medical Board, and the Texas Board of Nursing. See 25 Tex. Admin. Code § 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(1 1); Tex. 0cc. Code Ann. § 164.051(a)(2)(B),
(a)(6); 301.452(b)(3), (B)(10). 5. On March 23, 2020, the Texas Attorney General issued a press release titled "Health Care
Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 Pandemic." The press release states that providing any abortion care (other than for an immediate medical emergency) would violate the Executive Order and warned that "[t]hose who violate the governor's order will be
met with the full force of the law."
6. On March 24, 2020, the Texas Medical Board ("Medical Board") adopted an emergency rule ("Emergency Rule") to enforce the Executive Order. Under pre-existing law, the Medical Board
can temporarily suspend or restrict a physician's license if the physician's "continuation in practice
would constitute a continuing threat to the public welfare." 22 Tex. Admin. Code § 187.57(b). The
Emergency Rule expands this basis for discipline to include "performance of a non-urgent elective surgery or procedure" and incorporates the terms of the Executive Order, requiring all licensed health-
4
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 5 of 16
care professionals to postpone all surgeries and procedures that are not immediately necessary. 22 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020).
7. On March 29, 2020, the Medical Board published updated guidance regarding the scheduling of elective surgeries and procedures in light of the Executive Order. Tex. Med. Bd., Updated Texas Medical Board [] Frequently Asked Questions (FAQs) Regarding Non-Urgent Elective Surgeries and Procedures During Texas DisasterDeclaration for COVID-19 Pandemic (Mar. 29, 2020) ("Medical Board Guidance").4 The Medical Board explained that postponing non-urgent elective cases would preserve PPE, ventilator availability, and [intensive-care-unit] beds." It defined
"urgent or elective urgent" procedures as those where "there is a risk of patient deterioration or disease progression likely to occur ifthe procedure is not undertaken or is significantly delayed." The
Medical Board noted that "the prohibition does not apply to office-based visits without surgeries or procedures." Further, the Medical Board explained that "[a] 'procedure' does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests."
8. The attorney general's interpretation of the Executive Order, which has been adopted by the State Defendants,5 creates a credible threat of enforcement against Plaintiffs and their agents for the provision of any abortion. This has had a profound chilling effect on the provision of abortion
Available at https://tinyurl.comlv4pz99u. ' Available at http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-9 1 BF-F922 1 E4DEF 17.
Defendants Greg Abbott, Governor of Texas, Ken Paxton, Attorney General of Texas, Phil Wilson, Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, Executive Director of the Texas Medical Board, Katherine A. Thomas, Executive Director of the Texas Board of Nursing, each in their official capacity, are referred to as
"State Defendants."
5
App.9

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 6 of 16
care in Texas. Plaintiffs and their agents have ceased providing nearly all abortion care as a result.
Barraza Decl. ¶ 15; Dewitt-Dick Decl. ¶ 8; Ferrigno Deci. ¶IJ 25-28; Hagstrom MillerJ 26-28; Klier
Deci. ¶ 17; Lambrecht Decl. ¶J 18-20; Schutt-Aine ¶IJ 32-34; Wallace Deci. ¶ 9. 9. Plaintiffs use two methods of providing an abortion: medication abortion and procedural
abortion. Schutt-Aine Deci. ¶ 12. 10. Medication abortion is not a surgery or procedure. It involves the patient ingesting a
combination of two pills: mifepristone and misoprostol. Schutt-Aine Deci. ¶ 13. The patient takes
the mifepristone in the health center and then, typically 24 to 48 hours later, takes the misoprostol at
a location of their choosing, most often at their home, after which they expel the contents of the
pregnancy in a maimer similar to a miscarriage. Schutt-Aine Deci. ¶ 13. Texas law restricts this
method to the first 10 weeks of pregnancy as measured from the first day of a pregnant woman's last
menstrual period ("LMP"). Tex. Health & Safety Code § 171.063. Plaintiffs provide medication abortion up to the 10-week limit.
11. Despite sometimes being referred to as "surgical abortion," procedural abortion is not what is commonly understood to be "surgery"; it involves no incision, no need for general anesthesia, and
no requirement of a sterile field. Schutt-Aine Deci. ¶ 16. Early in pregnancy, procedural abortions
are performed using a technique called aspiration, in which a clinician uses gentle suction from a
narrow, flexible tube to empty the contents ofthe patient's uterus. Schutt-Aine Dccl. ¶ 16. Beginning
around 15 weeks LMP, the clinician generally must use instruments to complete the procedure, a
technique called dilation and evacuation ("D&E"). Later in the second trimester of pregnancy, the
clinician may begin cervical dilation the day before the procedure itself, resulting in a two-day procedure. Schutt-Aine Decl. ¶ 16. Plaintiffs provide procedural abortion in both the first and second
App.10

Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 7 of 16
trimester. Procedural abortions may not be performed in an abortion clinic after 18 weeks LMP. Tex. Health & Safety Code 171.004. At that point, outpatient procedural abortions may only be performed at an ambulatory surgery center ("ASC"), Id., but there are no ASCs that provide abortion care outside
of Texas's four largest metropolitan areas, Whole Woman 's Health v. Hellerstedt, 136 S. Ct. 2292,
2316 (2016). 12. Absent exceptional circumstances, Texas law prohibits abortion care altogether after 22
weeks LMP. See Tex. Health & Safety Code § 171.044. 13. Abortion patients rarely require hospitalization. Ferrigno Dccl. ¶ 14; Hagstrom Miller
Decl. ¶ 17; Schutt-Aine Dccl. ¶ 12; Whole Woman's Health, 136 S. Ct. at 2311. 14. Although some medication abortions require a follow-up aspiration procedure, the number
of those cases is exceedingly small and can generally be handled in an outpatient setting. Levison Deci. ¶ 9; Schutt-Aine Dccl. ¶ 12.
15. Providing medication abortion does not require the use of any PPE. Barraza Deci. ¶ 7; Dewitt-Dick Dccl. ¶ 19; Ferrigno Dccl. ¶ 10; Hagstrom Miller Dccl. ¶ 13; Lambrecht Dccl. ¶ 12; Klier Dccl. ¶ 11; Schutt-Aine Dccl. ¶ 25; Wallace Dccl. ¶ 12.
16. Texas law requires an in-person consultation between patient and provider, which must include an ultrasound examination, before every abortion. See Tex. Health & Safety Code
§ 171.01 2(a)(4), (b). For patients who reside within 100 miles of the facility where the abortion will
be performed, the consultation must occur at least 24 hours prior to the abortion procedure. See Id. According to the Medical Board, "non-invasive diagnostic tests" such as ultrasounds are not procedures, and the prohibition contained in the Executive Order "does not apply to office-based visits without surgery or procedures." Medical Board Guidance. In any event, pre-procedure
7
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 8 of 16
ultrasound examinations require minimal PPE. Use of PPE is not required at all for abdominal ultrasound examinations. Ferrigno Dccl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Deci. ¶ 14. For
vaginal ultrasound examinations, doctors or ultrasound technicians typically wear only non-sterile gloves that are discarded after each scan. Ferrigno Dccl. ¶ 11; Hagstrom Miller Decl. ¶ 14; Macones Dccl. ¶ 14. When laboratory testing is required, technicians likewise utilize only non-sterile gloves. Hagstrom Miller Deci. ¶ 14.
17. For procedural abortion, providers may use some or all of the following PPE items,
depending on the circumstances: gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, hair covers, and shoe covers. Barraza Dccl. ¶ 7; Dewitt-Dick Dccl. ¶ 19; Ferrigno Dccl. ¶J 10, 12; Hagstrom Miller Dccl. ¶J 13, 15; Klier Dccl. ¶ 11; Lambrecht Dccl. ¶ 12; SchuttAine Dccl. ¶ 25; Wallace Dccl. ¶ 12.
18. Following a procedural abortion, the tissue removed from a patient is examined in a pathology laboratory. Ferrigno Dccl. ¶ 12; Hagstrom Miller ¶ 15. This task is typically performed by a single staff member who utilizes one washable gown per shift, either one disposable face shield per shift or one set of reusable goggles, one set of disposable shoe covers per shift, one disposable hair cap per shift, and one or more sets of non-sterile gloves. Hagstrom Miller ¶ 15. According to the Medical Board, "the performing of lab tests" is not subject to the Executive Order. Medical Board Guidance; see also Tex. Med. Ass'n, TMB Releases Emergency Rules: Non-Urgent Surgeries and Procedures, at 3, 6 (Mar. 29, 2020).6
6 Available at https://www.texmed.org/uploadedFiles/Current/20 1 6_Public_Healthllnfectious_Diseases/Emerg ency%2Orule%2Oguidance%20-%203 .25%20Update.pdf.
8
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 9 of 16
19. Abortion providers generally do not use N95 masks. Only one physician associated with Plaintiffs has used an N95 mask since the beginning ofthe COVID-19 pandemic, and that physician has been reusing the same mask over and over. Barraza Decl. ¶ 8; Ferrigno Dccl. ¶ 13; Hagstrom Miller Decl. ¶ 16; Klier Deci. ¶ 6; Lambrecht Decl. ¶ 12; Schutt-Aine Dccl. ¶ 27.
20. Pregnant women prevented from accessing abortion will still require medical care. Chang Deci. ¶ 8; Levison Decl. ¶ 8; Macones Dccl. ¶ 10. Consistent with recommendations from the
American College of Obstetricians and Gynecologists ("ACOG") and other medical authorities for
providing obstetrical care during the C OVID- 19 pandemic, obstetricians are generally having two inperson visits with pregnant patients during the first-trimester and more frequent in-person visits during later trimesters. Chang Dccl. ¶ 11; Levison Decl. ¶ 19; Macones Dccl. ¶IJ 9-10; Wood Dccl. ¶ 11. High-risk patients, including those with diabetes or high blood pressure, must have more frequent in-person visits. Chang Dccl. ¶ 10; Levison Dccl. ¶ 14; Macones Dccl. ¶IJ 7, 10; Wood Dccl. ¶J 11-12. Urine specimens are generally collected and tested at each in-person visit, and blood is sometimes collected and tested also. Chang Dccl. ¶ 12; Levison Dccl. ¶ 13; Macones Dccl. ¶ 11; Wood Dccl. ¶ 11. Additionally, obstetricians are generally performing at least one ultrasound during the first trimester and another one at 20 weeks LMP. Chang Dccl. ¶IJ 11-12; Macones Dccl. ¶ 12; Wood Dccl. ¶ 14. High-risk patients will require more frequent ultrasounds. Macones Dccl. ¶ 12; Wood Dccl. ¶ 14.
21. Because individuals with ongoing pregnancies require more in-person healthcare,
including lab tests and ultrasounds, at each stage of pregnancy than individuals who have previability
abortions, delaying access to abortion will not conserve PPE. Levison Dccl. ¶IJ 12-14; Macones Dccl. ¶ 20; Schutt-Aine Dccl. ¶ 26.
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 10 of 16
22. Individuals with ongoing pregnancies are more likely to seek treatment in a hospitalfor a variety of conditionsthan individuals who have pre-viability abortions. Therefore, delaying
access to abortion will not conserve hospital resources. Levison Deci. ¶IJ 8-11; Macones Decl. ¶ 19; Schutt-Aine Decl. ¶ 26; Whole Woman 's Health, 136 S. Ct. at 2311.
23. Individuals who are delayed past the legal limit for abortion will have to deliver babies.
Delivery generally takes place in a hospital and requires extensive use of PPE. Thus, requiring
patients to carry unwanted pregnancies to term will not conserve PPE or hospital resources. Chang Deci. ¶IJ 16-17; Levison Deci. ¶IJ 9, 15-17; Macones Deci. ¶ 18; Schutt-Aine Decl. ¶ 26.
24. Physicians are continuing to provide obstetrical and gynecological procedures comparable to abortion in PPE use or time-sensitivity, based on their professional medical judgment. See Chang Decl. ¶ 24; Levison Deci. ¶ 18.
25. The inability to obtain abortion care in Texas as a result of the Executive Order is causing
individuals with unwanted pregnancies who have the ability to travel to go to other states to obtain abortions. The record shows that these individuals are traveling by both car and airplane to places as far away as Colorado and Georgia. Doe Decl. ¶J 15-22; Johnson Decl. ¶ 8-10; Nguyen Dccl. ¶
17; Ward Dccl. ¶J 12-14. This long-distance travel increases an individual's risk of contracting COVID- 19. Bassett Decl. ¶IJ 7-8; Schutt-Aine Dccl. ¶ 37; Sharfstein Dccl. ¶ 10; Doe Decl. ¶ 18. The record shows that patients traveling to other states for abortion care include patients seeking
medication abortion. Doe Decl. ¶J 9, 19-22.
26. Plaintiffs have turned away hundreds of patients seeking abortion care, and will turn away hundreds more, absent entry of a temporary restraining order. Barraza Decl. ¶IJ 6, 15; Dewitt-Dick
III]
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 11 of 16
Deci. ¶ 8; Ferrigno Deci. ¶IJ 26-28; Hagstrom Miller Deci. ¶J 27-28; Johnson Decl. ¶ 4; Klier Decl. ¶ 17; Lambrecht Decl. ¶J 18-20; Nguyen Dccl. ¶ 8; Schutt-Aine Dccl. ¶IJ 33-34; Wallace Dccl. ¶ 9.
27. There will be significant pent-up need for abortion care when the Executive Order expires.
It will take Plaintiffs weeks to resolve the resulting backlog of patients, meaning that a significant number of patients will face additional delays in accessing abortion even after the Executive Order's now month-long duration expires. Ferrigno Dccl. ¶ 29; Hagstrom Miller Dccl. ¶ 29; Johnson Dccl.
¶ 12; Nguyen Dccl. ¶ 23. 28. Patients delayed past 10 weeks LMP are no longer eligible for a medication abortion in
Texas. See Tex. Health & Safety Code § 171.063(a)(2). Patients delayed past 14 to 16 weeks LMP are no longer eligible for an aspiration abortion, and must instead have a D&E, which is a lengthier and more complex procedure. Ferrigno Dccl. ¶ 35; Hagstrom Miller Dccl. ¶ 34; Lambrecht Dccl. ¶
18; Schutt-Aine Deci. ¶J 16, 39. Patients who are delayed past 18 weeks LMP are no longer eligible
for an abortion at an abortion clinic in Texas and must obtain care from an ASC. See Tex. Health & Safety Code § 171.004. Patients delayed past 22 weeks LMP are no longer eligible to obtain an abortion in Texas at all, absent exceptional circumstances. See Tex. Health & Safety Code § 171.044. Declarations in the record demonstrate that some patients have already exceeded the gestational age limit to obtain an abortion in Texas while the Executive Order has been in place. Hagstrom Miller Dccl. ¶ 27; Johnson Dccl. ¶ 10; Nguyen Dccl. ¶J 7-8, 11; Ward Dccl. ¶J 12-13, 16.
29. The health risks associatedwith both pregnancy andabortion increase with gestational age. Dewitt-Dick Dccl. ¶ 22; Ferrigno Dccl. ¶ 36; I-Iagstrom Miller Dccl. ¶ 35; Schutt-Aine Dccl. ¶ 22; Macones Dccl. ¶ 8. As ACOG and other well-respected medical professional organizations have observed, specifically in relation to the COVID- 19 pandemic, abortion "is an essential component of
11
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 12 of 16
comprehensive health care" and "a time-sensitive service for which a delay of several weeks, or in
some cases days, may increase the risks [to patients] or potentially make it completely inaccessible." ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020); Schutt-Aine Decl. ¶ 22; Sharfstein Decl. ¶ 8.
30. In addition to increasing health risks, delayed access to abortion imposes financial and
emotional costs on people with unwanted pregnancies. The cost of an abortion increases with
gestational age. Dewitt-Dick Decl. ¶ 22; Ferrigno Deci. ¶ 36; Hagstrom Miller Decl. ¶ 35; SchuttAine Deci. ¶ 39. Women with ongoing pregnancies must cope with the physical symptoms of pregnancy, which often include morning sickness and weight gain; must struggle to conceal their pregnancies from abusive partners or family members; and must deal with the stress and anxiety of
not knowing whenor ifthey will be able to obtain an abortion. Connor Deci. ¶ 11; Ferrigno Deci.
¶ 34; Hagstrom Miller Decl. ¶ 33; Nguyen Decl. ¶J 10-14; Northcutt Deci. ¶115-6; Ward Deci. ¶IJ 16-
17.
31. The court incorporates by reference the findings of fact contained in the court's March 30, 2020 Order Granting Plaintiffs' Request for Temporary Restraining Order. Planned Parenthood Center for Choice v. Abbott, 1 :20-CV-323-LY (W.D. Tex. Mar. 30, 2020).
The court makes the following conclusions of law: 1. Plaintiffs have standing to bring their claim and ajusticiable controversy exists. See In re
Abbott, No. 20-50264, slip op. at 8 n.17, 2020 WL 1685929 (5th Cir. Apr. 7, 2020). For purposes
of sovereign immunity, the governor and attorney general likely have "some connection with the
Available at https://www.acog.org/news/news-releases/2020/03/j oint-statement-on-abortionaccess-during-thecovid- 19-outbreak.
12
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 13 of 16
the governor, Executive Order at 3, consistent with the governor's statutory authority, Tex. Gov't Code Ann. § 418.012. Similarly, the attorney general has the authority to prosecute Plaintiffs and their agents, at the request of local prosecutors, for alleged violations of the Executive Order, Tex. Gov't Code Ann. § 402.028(a), and he has publicly threatened enforcement against abortion providers in particular.
2. Plaintiffs are entitled to the requested temporary restraining order. In particular, the court
concludes that Plaintiffs are likely to succeed on the merits of their substantive due-process claim because, based on the court's findings of fact, it is beyond question that the Executive Order's burdens outweigh the order's benefits as applied to Plaintiffs' provision of(1) medication abortion;
and (2) procedural abortion where, in the treating physician's medical judgment, the patient would otherwise be denied access to abortion entirely because (a) the patient's pregnancy would reach 22 weeks LMP by April 21, 2020; or (b) the patient's pregnancy would reach 18 weeks LMP by April
21, 2020, thus requiring abortion care at an ASC and, in the judgment of the treating physician, the patient is unlikely to be able to obtain an abortion at an ASC before the patient's pregnancy reaches the 22-week cutoff. The court therefore concludes that application of the Executive Order to these categories of abortion care violates the standards set forth in both Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11(1905).
To women in these categories, the Executive Order is an absolute ban on abortion. When a temporary delay reaches 22 weeks LMP, the ban is not temporary, it is absolute. A ban within a limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion.
13
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 14 of 16
limited period becomes a total ban when that period expires. As a minimum, this is an undue burden on a woman's right to a previability abortion.
3. Plaintiffs and their patients will suffer irreparable harm in the absence of a temporary restraining order; the balance of equities favors Plaintiffs; and entry of a temporary restraining order serves the public interest. In particular, the record demonstrates that entry of a temporary restraining order to restore abortion access would serve the State's interest in public health. See, e.g., Bassett Deci. ¶IJ 6-8; Levison Deci. ¶J 20-23; Sharfstein Dccl. ¶J 9-12.
4. The court incorporates by reference the conclusions of law contained in the court's March 30, 2020 Order Granting Plaintiffs' Request for Temporary Restraining Order. Planned Parenthood
Center ofChoice, No. 1 :20-CV-323-LY (W.D. Tex. Mar. 30, 2020). Therefore, IT IS ORDERED that Plaintiffs' Second Motion for Temporary Restraining Order (Dkt.
#56), filed April 8, 2020, is GRANTED. IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and
all others acting in concert or participating with them are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09, "Relating to hospital capacity during the COVID-19 disaster," and the Texas Medical Board's emergency amendment to Title 22 Texas Administrative Code section 187.57, as a categorical ban on all abortions provided by Plaintiffs.
IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs
who provide medication abortions.
14
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 15 of 16

IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and

all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from

enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs

who provide a procedural abortion to any patient who, based on the treating physician's medical

judgment, would be more than 18 weeks LMP on April 22, 2020, and likely unable to reach an

ambulatory surgical center in Texas or to obtain abortion care.

IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and

all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from

enforcing Executive Order GA-09 and the Emergency Rule against Plaintiffs or agents of Plaintiffs

who provide a procedural abortion to any patient who, based on the treating physician's medical
judgment, would be past the legal limit for an abortion in Texas-22 weeks LMPon April 22,2020.

IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire on April

19, 2020, at

-. This order may be extended for good cause, pursuant to

Federal Rule of Civil Procedure 65.

Pursuant to an Agreed Stipulation for Non-Enforcement Pending Final Resolution, Attorneys

Fees and Costs filed March 28, 2020 (Clerk's Dkt. #25) this order does not apply to Defendant Brian

Middleton, Criminal District Attorney for Fort Bend County.

Plaintiffs shall not be required to post a bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d

624, 628 (5th Cir. 1996).

15
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Case 1:20-cv-00323-LY Document 63 Filed 04/09/20 Page 16 of 16

This court's April 8, 2020 Order (Dkt. #58) is not affected by this order, and the parties shall

continue to comply with the April 8 order.

SIGNED this

day of April, 2020 at

ZDEDISSTATcTmDGE

App16.20

Case: 20-50264 Document: 00515374865 Page: 1 Date Filed: 04/07/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit
FILED

No. 20-50264

April 7, 2020
Lyle W. Cayce Clerk

In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,

Petitioners

Petition for a Writ of Mandamus to the United States District Court for the Western District of Texas

Before DENNIS, ELROD, and DUNCAN, Circuit Judges. STUART KYLE DUNCAN, Circuit Judge:
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.

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Case: 20-50264 Document: 00515374865 Page: 2 Date Filed: 04/07/2020
The “drastic and extraordinary” remedy of mandamus is warranted for several reasons. In re JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019) (citation omitted).
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 previability 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
1 Our dissenting colleague suggests our decision “follows not because of the law or facts, but because of the subject matter of this case.” Dissent at 3. That is wrong. As explained below, infra III.A.1, Jacobson governs a state’s emergency restriction of any individual right, not only the right to abortion. The same analysis would apply, for example, to an emergency restriction on gathering in large groups for public worship during an epidemic. See Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”).
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Case: 20-50264 Document: 00515374865 Page: 3 Date Filed: 04/07/2020
decide which measures are “likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at 30.
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
2 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last visited April 6, 2020).
3 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/how-covid-spreads.html (last visited April 6, 2020).
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Case: 20-50264 Document: 00515374865 Page: 4 Date Filed: 04/07/2020
confirmed in all fifty states, the District of Columbia, and several territories.4 Over the past two weeks, confirmed cases in the United States have increased by over 2,000%.5 Federal projections estimate that, even with mitigation efforts, between 100,000 and 240,000 people in the United States could die.6 In Texas, the virus has spread rapidly over the past two weeks and is predicted to continue spreading exponentially in the coming days and weeks.
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
4 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last visited April 6, 2020).
5 Id. On March 19, 2020, the CDC reports that there were 15,219 diagnosed cases in the United States, excluding cases among persons repatriated to the United States from China and Japan. Id. By April 6, 2020, the number of cases reported has risen to 330,891. Id.
6 Rick Noack, et al., White House task force projects 100,000 to 240,000 deaths in U.S., even with mitigation efforts, WASHINGTON POST (Mar. 31, 2020), https://www.washingtonpost.com/world/2020/03/31/coronavirus-latest-news/.
7 See Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Tex. Proc. of Mar. 13, 2020, https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_ proclamation_IMAGE_03-13-2020.pdf.
8 Tex. Proc. of Mar. 19, 2020, https://gov.texas.gov/uploads/files/press/ DECLARATION_of_public_health_disaster_Dr_Hellerstedt_03-19-2020.pdf.
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Case: 20-50264 Document: 00515374865 Page: 5 Date Filed: 04/07/2020
equipment, and personal protective equipment (“PPE”).9 The executive order at issue here, GA-09, responds to this crisis. Issued by the Governor of Texas on March 22, 2020, GA-09 applies to all licensed healthcare professionals and facilities in Texas and requires that they:
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.
9 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Strategies for Optimizing the Supply of Facemasks, https://www.cdc.gov/coronavirus/2019ncov/hcp/ppe-strategy/face-masks.html (last visited April 6, 2020); Megan L. Ranney, M.D., M.P.H., et al., Critical Supply Sources—The Need for Ventilators and Personal Protective Equipment during the COVID-19 Pandemic, NEW ENG. J. OF MED. (Mar. 25, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2006141?query=featured_coronavirus.
10 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files /press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
11 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files /press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
12 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files /press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf (citing Tex. Gov’t Code § 418.173); see also 25 Tex. Admin. Code § 139.32(b)(6); 25 Tex. Admin. Code § 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); 22 Tex. Admin. Code § 185.57(c) (Mar. 23, 2020); Tex. Occ. Code § 164.051(a)(2); Tex. Occ. Code § 164.051(a)(6); Tex. Occ. Code § 301.452(b)(3); Tex. Occ. Code § 301.452(b)(10).
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Case: 20-50264 Document: 00515374865 Page: 6 Date Filed: 04/07/2020
On March 25, 2020, various Texas abortion providers13 (“Respondents”) filed suit in federal district court against multiple Texas officials, including the Governor, Attorney General, three state health officials, and nine District Attorneys (“Petitioners”14). Respondents brought substantive due process and equal protection claims and sought to enjoin enforcement of GA-09, as well as the Texas Medical Board’s Emergency Rule implementing the order. See 22 Tex. Admin. Code § 187.57(c) (Mar. 23, 2020). Simultaneously, Respondents sought a temporary restraining order (“TRO”) or a preliminary injunction, based only on their due process claim. Following a March 26 conference call, the district court gave Petitioners until March 30 at 9:00 a.m. to respond, which they did. Later that same day, the district court entered a TRO.
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
13 Plaintiffs are Texas abortion providers Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Whole Woman’s Health, Whole Woman’s Health Alliance, Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace, M.D. Plaintiffs purport to sue on behalf of themselves, their staff, physicians, nurses, and patients.
14 Petitioners here do not include the defendant District Attorneys.
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Case: 20-50264 Document: 00515374865 Page: 7 Date Filed: 04/07/2020
Petitioners, from enforcing GA-09 and the emergency rule “as applied to medication abortions and procedural15 abortions.” App. 267–68, 270.16
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.” 28 U.S.C. § 1651(a). That includes the writ of mandamus sought by Petitioners. See Cheney, 542 U.S. at 380; In re Gee, 941 F.3d 153, 157 (5th Cir. 2019). Mandamus is proper only in “exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.” In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc) (quoting Cheney, 542 U.S. at 380). Before prescribing this strong medicine, “we ask (1) whether the
15 “Procedural” abortions, the term used by Respondents and the district court, refers to what are also called “surgical” abortions. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 924 (2000) (citing M. Paul et al., A Clinician’s Guide to Medical and Surgical Abortion (1999)); Gonzales v. Carhart, 550 U.S. 124, 175 (2007) (Ginsburg, J., dissenting) (referring to “surgical abortions”) (quoting Carhart v. Ashcroft, 331 F.Supp.2d 805, 1011 (D. Neb. 2004), aff’d, 413 F.3d 791 (8th Cir. 2005)); Planned Parenthood v. Casey, 505 U.S. 833, 969 (1992) (Rehnquist, J., concurring in the judgment in part and dissenting in part) (referring to “any other surgical procedure except abortion”) (quoting Webster v. Reproductive Health Servs., 492 U.S. 490, 517 (1989) (plurality opinion)); see also, e.g., Br. for Petitioners at 33 n.64, Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006398 (referring to “induced abortion” as a “surgical procedure[ ]”).
16 The TRO is scheduled to expire at 3:00 p.m. on April 13, 2020. The district court has scheduled a telephonic hearing on Plaintiffs’ request for a preliminary injunction for 9:30 a.m. that same day. App. 271. Our references to “App.” throughout this opinion are to the appendix to the mandamus petition. See ECF 3 (5th Cir. No. 20-50264).
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petitioner has demonstrated that it has no other adequate means to attain the relief it desires; (2) whether the petitioner’s right to issuance of the writ is clear and indisputable; and (3) whether we, in the exercise of our discretion, are satisfied that the writ is appropriate under the circumstances.” In re Itron, Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting Cheney, 542 U.S. at 380–81) (cleaned up). “These hurdles, however demanding, are not insuperable. They simply reserve the writ for really extraordinary causes.” Gee, 941 F.3d at 158 (cleaned up). In such a case, mandamus provides a “useful ‘safety valve[]’ for promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009) (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994)).
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,
17 Alternatively under prong two, Petitioners assert that (1) no justiciable controversy exists as to the Governor and Attorney General because they lack authority to enforce GA09, and (2) Respondents lack third-party standing to sue on behalf of their patients. We decline to grant relief on these grounds. First, quite apart from the Governor and Attorney General, a justiciable controversy exists as to the Petitioner health officials, who may enforce the order’s administrative penalties. See, e.g., 22 Tex. Admin. Code § 187.57(b). On remand, however, the district court should consider whether the Eleventh Amendment requires dismissal of the Governor or Attorney General because they lack any “connection” to enforcing GA-09 under Ex parte Young, 209 U.S. 123 (1908). City of Austin v. Paxton, 943 F.3d 993, 999 (5th Cir. 2019); see also Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir. 2014). Second, Respondents have standing to sue on their own behalf because GA-09 “directly operates” against them. Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976) (cleaned up). We therefore need not consider at this time whether Respondents may sue on
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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,
behalf of their patients. We note that the Supreme Court recently granted a certiorari petition raising this third-party standing issue. See Russo v. June Med. Servs., No. 18-1460.
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389 U.S. at 95; Ex parte Peru, 318 U.S. 578, 588 (1943); Maryland v. Soper (No. 1), 270 U.S. 9 (1926)) (cleaned up).
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.”
18 This case differs from Preterm-Cleveland v. Atty. Gen. of Ohio, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020), which declined to review a TRO against Ohio’s nonessential-surgeries order. Ohio appealed on the basis that the TRO “threaten[ed] to inflict irretrievable harms.” Id. at *1. Observing the TRO was “narrowly tailored” and did not permit “blanket” provision of abortions, the majority concluded that the TRO would not inflict irreparable harms and thus that it lacked jurisdiction over the appeal. Id. at *1–2. By contrast, here Petitioners seek not appeal but mandamus, a drastic remedy that we nonetheless find appropriate. Moreover, the TRO here is not “narrowly tailored” but exempts all abortions from GA-09. The TRO’s broad sweep also distinguishes this case from recent district court decisions in Alabama and Oklahoma. See Robinson v. Marshall, No. 2:19cv365MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020); South Wind Women’s Center v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020).
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Id. at 26. 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.” Id. Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. 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. Id. at 29. 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
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could be reasonably restricted during those times. Jacobson, 197 U.S. at 29. 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. 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
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effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.”).
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
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two constitutional restrictions on states’ ability to regulate abortion. First, states “may not prohibit any woman from making the ultimate decision to terminate” a pre-viability pregnancy. Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (quoting Casey, 505 U.S. at 879 (plurality opinion)). In other words, states may not impose outright bans on pre-viability abortions. See Jackson Women’s Health Org. v. Dobbs [Jackson II], 945 F.3d 265, 273 (5th Cir. 2019). Second, states “may not impose” on the right “an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Id. (quoting Casey, 505 U.S. at 878 (plurality opinion)); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (explaining “[t]he rule announced in Casey . . . requires that courts consider the burdens a law imposes of abortion access together with the benefits those laws confer”).
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
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Court cited Jacobson to show it had “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” 550 U.S. at 163 (citing Jacobson, 197 U.S. at 30–31).
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 longestablished 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
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mandamus prong. See Itron, 883 F.3d at 568 (petitioners had a “clear and indisputable right to the writ” because failure to apply the proper legal standard was “obvious” error); see also In re Ford Motor Co., 591 F.3d 406, 415 (5th Cir. 2009) (granting writ where “[i]t was patently erroneous for the [district] court to ignore . . . binding precedent”).
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
19 Although not necessary to our decision, we note that the district court purported to enjoin GA-09 as to all abortion providers in Texas. But Respondents are only a subset of Texas abortion providers and did not sue as class representatives. The district court lacked authority to enjoin enforcement of GA-09 as to anyone other than the named plaintiffs. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”). The district court should be mindful of this limitation on federal jurisdiction at the preliminary injunction stage.
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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.” App. 268. 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.” App. 34. The order also references, and reinforces, the Governor’s prior executive order, GA-08, “aimed at slowing the spread of COVID-19.” Id.20 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. App. 35. 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.” ECF 53 at 3.
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
20 Tex. Exec. Order No. GA-08 (Mar. 19, 2020), https://gov.texas.gov/uploads /files/press/EO-GA_08_COVID-19_preparedness_and_mitigation_FINAL _03-19-2020_1.pdf. The dissent is therefore mistaken that GA-09 “was not adopted to serve th[e] interest” in preventing the spread of COVID-19. Dissent at 12.
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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.” App. 242. 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. Jacobson, 197 U.S. at 31.
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 GA09 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
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date. Tex. Gov’t Code Ann. § 418.012. Second, GA-09 includes an emergency exception for the mother’s life and health, based on the determination of the administering physician. App. 30; App. 35. 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.” App. 35. These characteristics, which the district court failed to mention,21 place GA-09 in stark contrast with the restrictions in Jackson II and III.
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
21 The district court’s only allusion to the scope of GA-09 was its statement that the order “either bans all non-emergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of pregnancy.” App. 267–68 (emphasis added). But the district court did not mention GA-09’s expiration date, nor cite, quote, or discuss GA-09’s exceptions.
22 Respondents imply that GA-09 is effectively indefinite in duration. For example, they claim that “[f]or many women, the denial of access to abortion will be permanent . . . given the uncertain duration of the emergency.” But the district court did not temporarily restrain some indefinite regulation; it restrained GA-09, which by all accounts expires on
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date makes GA-09 a delay, not a ban, and also shows GA-09 is reasonably tailored to the present crisis. “The Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes,” even those—such as parental consent laws—that “in practice can occasion real-world delays of several weeks.” Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017) (en banc) (mem.) (Kavanaugh, J., dissenting). Second, Mississippi’s laws contained narrower medical exceptions than GA-09. The fifteen-week ban exempted only “medical emergenc[ies]” and “severe fetal abnormalit[ies].” Jackson II, 945 F.3d at 269. The fetal-heartbeat law exempted only abortions that would prevent the mother’s death or “substantial and irreversible” bodily injury. Jackson III, 951 F.3d at 248. GA-09, by contrast, contains a broader exception: it allows procedures that are “immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death.” App. 35. It also separately exempts procedures that, if performed under accepted clinical standards, would not deplete needed medical resources. Id.
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, Miss. Code Ann. § 4141-191(3)(j), and the physician’s “reasonable medical judgment” of a qualifying fetal abnormality, id. § 41-41-191(3)(h). The fetal-heartbeat law required the physician to “declare in writing, under penalty of perjury,” that the abortion
April 21, 2020. App. 35. If anything, Respondents’ concern about the indefinite duration “of the emergency” serves to strengthen Petitioners’ position that “extraordinary measures” must be taken now to mitigate the “‘exponential increase’ in COVID-19 cases . . . expected over the next few days and weeks.” ECF 2 at 6.
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met the exception, id. § 41-41-34.1(2)(b)(ii). Here, GA-09 merely states that the health exception attaches “as determined by the patient’s physician.” App. 35. There are no statutory requirements confining the physician’s judgment, and the physician need not report his determination to the state.
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. GA09 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 nonessential 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 undueburden test. App. 268. This was error. Under Casey, courts must ask whether an abortion restriction is “undue,” which requires “consider[ing] the burdens a
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law imposes on abortion access together with the benefits those laws confer.” Hellerstedt, 136 S. Ct. at 2310, 2309–10 (discussing Casey, 505 U.S. at 887– 98). The district court was required to do this analysis—that is, it should have asked whether GA-09 imposes burdens on abortion that “beyond question” exceed its benefits in combating the epidemic Texas now faces. Jacobson, 197 U.S. at 31. But that analysis would have required careful parsing of the evidence. See Hellerstedt, 136 S. Ct. at 2310 (Casey “place[s] considerable weight upon evidence . . . presented in judicial proceedings”). Any consideration of the evidence, however, is entirely absent from the district court’s order.
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
23 For instance, Respondents’ complaint states that clinicians use “gloves, a surgical mask, and protective eyewear” for surgical abortions. See Complaint at ¶ 54 (App. 17). Their declarations similarly attest that surgical abortions consume sterile and non-sterile gloves, masks, gowns, and shoe covers. See Southwestern Declaration ¶ 19, App. 86; Fort Worth and McAllen Declaration ¶ 10, App. 91–92; PPGTSHS Declaration, ¶ 12, App. 117; Austin Women’s Declaration ¶ 11, App. 110. Second-trimester abortions require more extensive PPE, including face shields. See, e.g., Southwestern Declaration ¶ 19, App. 86; Austin Women’s Declaration ¶ 11, App. 110. After a surgical abortion, a provider examines the fetal tissue in a pathology laboratory, which requires a gown, face shield or goggles, shoe covers, and gloves. See Fort Worth and McAllen Declaration ¶ 12, App. 092; WWHA Austin Declaration ¶ 15, App. 100.
24 Respondents assert PPE is not used in “providing the pills” for medication abortions, ECF 53 at 31, whereas Petitioners counter that, for medication abortions, Texas requires a physical examination, ultrasound, and follow-up visits—all of which consume PPE. ECF 67 at 7–8; ECF 2 at 17–18. See also Tex. Health & Safety Code § 171.063(c) (requiring physician to examine pregnant woman before prescribing “an abortion-inducing drug”); Tex. Health & Safety Code § 171.012(a)(4) (requiring patient receive ultrasound during initial examination); Tex. Health & Safety Code § 171.063(e)–(f) (requiring follow-up appointment to ensure abortion complete); 25 Tex. Admin. Code 139.53(b)(4) (same). Petitioners also point out that some number of medication abortions result in incomplete abortions that require
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whether Respondents could prove that GA-09 infringes abortion rights in specific contexts. For example, in their stay opposition, Respondents argue that GA-09 cannot apply to “patients whose pregnancies will, before the expiration of the stay, reach or exceed twenty-two weeks LMP [“last menstrual period”], the gestational point at which abortion may no longer be provided in Texas.” ECF 30 at 21 (brackets added). As Petitioners point out, if competent evidence shows that a woman is in that position, nothing prevents her from seeking asapplied relief. ECF 2 at 22 n.28.
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
hospitalization. ECF 2 at 18; ECF 67 at 7–8; see also American College of Obstetricians and Gynecologists, Clinical Guidelines: Medical management of first-trimester abortion, 89 Contraception 148, 149 (2014), https://www.contraceptionjournal.org/article/S00107824(14)00026-2/pdf (estimating “efficacy” of medication abortions using mifepristone). The dissent appears to accept at face value Respondents’ representations about how medication abortions consume PPE. See Dissent at 11. We think that evidentiary determination is better left to the district court at the preliminary injunction stage.
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benefits and burdens in any particular circumstance. The district court therefore lacked any basis for declaring that GA-09 constitutes an across-theboard violation of Casey.
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
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to craft a particular injunction meeting the exigencies of a particular situation. “Flexibility rather than rigidity has distinguished it.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Thus, a court must at the very least weigh the potential injury to the public health when it considers enjoining state officers from enforcing emergency public health laws. A single conclusory statement that does not explain this balancing falls far short.
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.
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To be sure, the judiciary is not completely sidelined in a public health crisis. We have already explained that Respondents may seek more targeted relief, if they can prove their entitlement to it, at the preliminary injunction stage. Additionally, a court may inquire whether Texas has exploited the present crisis as a pretext to target abortion providers sub silentio. See Lawton, 152 U.S. at 137. Respondents make allegations to that effect, contending that Petitioners are using GA-09 “to exploit the COVID-19 pandemic to achieve their longtime goal of banning abortion in Texas.” ECF 53 at 1. Nonetheless, on this record, we see no evidence that GA-09 was meant to exploit the pandemic in order to ban abortion or was crafted “as some kind of ruse to unreasonably delay . . . abortion[s] past the point where a safe abortion could occur.” Garza, 874 F.3d at 753 n.3 (Kavanaugh, J., dissenting). To the contrary, GA-09 applies to a whole host of medical procedures and regulates abortions evenhandedly with those other procedures. The order itself does not even mention abortion—or any other particular procedure—at all. Instead, it refers broadly to “all surgeries or procedures” that meet its criteria.25 Respondents point to no evidence that GA-09 applies any differently to abortions than to any other procedure. Nor do they cite any comparable procedures that are exempt from GA-09’s requirements. On the other hand, Petitioners produce evidence that myriad other procedures are affected just as abortions are. For example, Petitioners offer a declaration from Dr. Timothy Harstad, M.D., who testified that some cosmetic, bariatric, orthopedic, and gynecologic procedures
25 The district court relied heavily on the Attorney General’s press release of March 23, 2020, which clarified that in the Attorney General’s view, the GA-09 “includ[es] abortion providers.” App. 31, 264–65. But the district court gave no reason to believe this press release has the force of law. And, in any event, the press release also reads the order to apply “to all surgeries and procedures[,] . . . including routine dermatological, ophthalmological, and dental procedures, as well as . . . orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” App. 30.
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“are being suspended” alongside abortions. App. 230–31. Petitioners also point to the fact that the Centers for Medicare & Medicaid Services have recommended postponing several other critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures for low-risk patients.26 This evidence undermines Respondents’ contention that GA-09 exploits the present crisis to ban abortion. Respondents will have the opportunity, of course, to present additional evidence in conjunction with the district court’s preliminary injunction hearing scheduled for April 13, 2020. Our decision, however, must be limited to the record before us. Based on that record, we cannot say that GA-09 is a pretext for targeting abortion.
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.
26 See CMS Adult Elective Surgery and Procedures Recommendations, https://www.cms.gov/files/document/31820-cms-adult-elective-surgery-and-proceduresrecommendations.pdf (last visited April 6, 2020).
27 Likewise, the dissent contends that “[r]estricting contact between abortion providers and their patients cannot further the goals of GA-09 if the same order permits inperson contact between providers and patients in other settings.” Dissent at 13. But this is true of all surgeries and procedures. Nonetheless, in part to “limit[ ] exposure of patients and staff to the virus that causes COVID-19,” CMS recommends postponing “non-essential surgeries and other procedures.” See CMS Adult Elective Surgery and Procedures Reccomendations (Mar. 15, 2020), https://www.cms.gov/files/document/31820-cms-adultelective-surgery-and-procedures-recommendations.pdf. GA-09 notes that it follows recommendations from “the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services.” And the state’s infectious disease expert said that the risk of spreading the virus is real, “especially in the health care setting due to the proximity.” Marier Declaration ¶ 6, App. 240. We reiterate that Jacobson commands that it is not the court’s role “to determine which one of two modes [i]s likely to be most effective for the protection of the public against disease.” 197 U.S. at 30.
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*** 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 28 U.S.C. § 1292(a)(1). In other cases, a surety bond may ensure that a party wrongfully enjoined can be compensated for any injury caused. See Fed. R. Civ. P. 65(c). 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
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were, per the WHO’s daily report, 234,073 confirmed cases of COVID-19 and 9,840 deaths.28 As of April 6, there were 1,210,956 confirmed cases, and 67,954 deaths.29 As of April 1, Texas had 4,544 cases; by April 6, the number had risen to 7,359 cases.30 That number will undoubtedly rise substantially in coming days absent successful preventative measures. As the Dallas Morning News wrote on April 1: “The greatest number of cases will come in about a 10-day period that will begin soon.”31 On April 2, Respondents conceded 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[.]” ECF 53 at 3. Respondents also concede that surgical abortions consume PPE, such as “gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, and . . . shoe covers.” Id. at 6. Moreover, abortion is a common procedure: the evidence shows 53,843 total abortions— 36,793 of those surgical—were performed in Texas in 2017. App. 222. In sum, were Petitioners required to wait and appeal an adverse preliminary injunction, the harms from a broad suspension of GA-09 for all abortion procedures could not “be put back in the bottle.” Volkswagen, 545 F.3d at 319.
28 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19) SITUATION REPORT – 60 (March 20, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200320-sitrep-60-covid-19.pdf?sfvrsn=d2bb4f1f_2.
29 WORLD HEALTH ORGANIZATION, CORONAVIRUS DISEASE 2019 (COVID-19) SITUATION REPORT – 77 (April 6, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200406-sitrep-77-covid-19.pdf?sfvrsn=21d1e632_2.
30 Johns Hopkins University & Medicine Coronavirus Resource Center, Coronavirus COVID-10 Global Cases, https://coronavirus.jhu.edu/map.html (last visited April 6, 2020).
31 Steven Gjerstad, U.S. cases of COVID-19 will peak in a couple of weeks; Only social distancing will break the virus, DALLAS MORNING NEWS (April 1, 2020), https://www.dallasnews.com/opinion/commentary/2020/04/01/us-cases-of-covid-19-will-peakin-a-couple-of-weeks-only-social-distancing-will-break-the-virus/
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The error would be “truly irremediable” through ordinary appeal. JPMorgan Chase, 916 F.3d at 499 (cleaned up).32
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
32 Federal courts of appeals have issued writs of mandamus to vacate TROs in a number of less-urgent scenarios. See, e.g., In re King World Prods., Inc., 898 F.2d 56 (6th Cir. 1990) (vacating TRO enjoining news organization from broadcasting video recording); Truck Drivers Local Union No. 807, Int’l Bhd. of Teamsters v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976) (vacating TRO enjoining Board from conducting unfair labor practice proceedings); O’Neill v. Battisti, 472 F.2d 789 (6th Cir. 1972) (vacating TRO enjoining Ohio Supreme Court from enforcing its own disciplinary order or taking further disciplinary action against state judge). A fortiori, mandamus is an appropriate mechanism for challenging the TRO in the present case, which restrains Petitioners from fully implementing emergency public health measures in a time of unprecedented crisis.
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“exponential increase in COVID-19 cases is expected over the next few days and weeks.” App. 224–25. It is hard to imagine a more urgent situation.
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
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JPMorgan Chase, we concluded that the district court’s error, while significant, was not “clear and indisputable” because it “followed numerous others” who had made the same mistake. 916 F.3d at 504.
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.
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JAMES L. DENNIS, dissenting. 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
1 Okla. Exec. Order No. 2020-07 (Mar. 24, 2020), https://www.sos.ok.gov/documents/executive/1919.pdf; Press Release, Office of the Oklahoma Governor, Governor Stitt Clarifies Elective Surgeries and Procedures Suspended under Executive Order (Mar. 27, 2020), https://www.governor.ok.gov/articles/press_releases/ governor-stitt-clarifies-elective-surgeries (“[A]ny type of abortion services . . . which are not a medical emergency . . . or otherwise necessary to prevent serious health risks to the unborn child’s mother are included in that Executive Order.”)
2 Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19 (Mar. 27, 2020), https://governor.alabama.gov/assets/2020/03/ Amended-Statewide-Social-Distancing-SHO-Order-3.27.2020-FINAL.pdf; Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *1 (M.D. Ala. Mar. 30, 2020) (explaining that the Alabama state’s attorney “in his oral representations on the record, took the position that the March 27 order requires the postponement of any abortion that is not medically necessary to protect the life or health of the mother”).
3 Ohio Department of Health, RE: Director’s Order for the Management of Nonessential Surgeries and Procedures throughout Ohio (Mar. 17, 2020); Preterm-Cleveland v. Attorney Gen. of Ohio, No. 1:19-cv-00360, slip op. at 2-3 (S.D. Ohio Mar. 30, 2020) (stating that Ohio’s attorney general sent letters to abortion providers citing the Director’s Order and they must “immediately stop performing non-essential and elective surgical abortions”).
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burden’ on abortion access—in imposing requirements that effectively deny a right of access to abortion. Further, the court concludes that the benefit to public health of the ban on medication abortions is minor and outweighed by the intrusion on Fourteenth Amendment rights caused by that ban.”); Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1520243, at *2 (M.D. Ala. Mar. 30, 2020) (“Because Alabama law imposes time limits on when women can obtain abortions, the March 27 order is likely to fully prevent some women from exercising their right to obtain an abortion. And for those women who, despite the mandatory postponement, are able to vindicate their right, the required delay may pose an undue burden that is not justified by the State’s purported rationales.”); Preterm-Cleveland v. Attorney Gen. of Ohio, No. 1:19cv-00360, slip op. at 7 (S.D. Ohio Mar. 30, 2020) (“Defendants have not demonstrated to the Court, at this point, that Plaintiffs’ performance of these surgical procedures will result in any beneficial amount of net saving of PPE in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion.”), appeal dismissed, No. 20-3365 (6th Cir. Apr. 6, 2020). The American College of Obstetricians and Gynecologists released a statement that “abortion should not be categorized” as a “procedure[] that can be delayed during the COVID-19 pandemic.”4 The statement emphasized, as the district court did, that abortion is “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible.”
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
4 Joint Statement on Abortion Access During the COVID-19 Outbreak, THE AMERICAN COLLEGE OF OBSTETRICS AND GYNECOLOGISTS (Mar. 18, 2020), https://www.acog.org/news /news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak.
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remedied by “one of the most potent weapons in the judicial arsenal.” See In re JPMorgan Chase & Co., 916 F.3d 494, 504 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). Unfortunately, this is a recurring phenomenon in this Circuit in which a result follows not because of the law or facts, but because of the subject matter of this case. See June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 835 (5th Cir. 2018) (“[W]hen abortion shows up, application of the rules of law grows opaque.” (Higginbotham, J., dissenting)), cert. granted, 140 S. Ct. 35 (2019)). For the reasons that follow, I dissent.
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,” TEX. GOV’T CODE ANN. § 418.012 (West 2019), states that until 11:59 p.m. on April 21, 2020, [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.”
5 Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press /EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf.
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The day after the Governor signed GA-09, Texas Attorney General Ken Paxton issued a news release stating that GA-09’s prohibition on medically unnecessary surgeries and procedures “applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including . . . any type of abortion that is not medically necessary to preserve the life or health of the mother.”6 The release states that “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.” Paxton emphasized that “[n]o one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers,” and “[t]hose who violate the governor’s order will be met with the full force of the law.”
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 42 U.S.C. § 1983, challenging GA-09 and the Texas Medical Board’s emergency amendment to Title 22 Texas Administrative Code section 187.57, which imposes the same requirements. Respondents moved for a temporary restraining order (“TRO”) to enjoin enforcement of GA-09 and the Emergency Rule insofar as they purport to ban all medication abortions and procedural abortions, as the attorney general’s news release suggests.
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
6 News Release, Office of the Texas Attorney General, Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-andfacilities-including-abortion-providers-must-immediately-stop-all.
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though the attorney general’s interpretation of that order constitutes the crux of the constitutional issues present in this case, it is GA-09 and only GA-09 that we are interpreting. The majority agrees that the attorney general’s news release interpreting GA-09 is not legally binding. Maj. Op. at 25 n.22. The attorney general cannot modify the text of the governor’s executive order through his news release; only the governor has the power to “issue executive orders . . . [that] have the force and effect of law.” TEX. GOV’T CODE ANN. § 418.012. And GA-09 grants abortion providers the power to determine whether a procedure is “immediately medically necessary to correct a serious medical condition of . . . a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences.” It also permits an exception for any abortion 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 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
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exercised only in “exceptional circumstances.” See Cheney, 542 U.S. at 380 (quoting Will v. United States, 389 U.S. 90, 95 (1967)); In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 288, 294 (5th Cir. 2015); In re Volkswagen of Am., Inc., 545 F.3d 304, 309, 311 (5th Cir. 2008). To obtain relief, Petitioners “must do more than prove merely that the court erred.” In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000). “The traditional use of the writ . . . has been to confine the court against which mandamus is sought to a lawful exercise of its prescribed jurisdiction.” Cheney, 542 U.S. at 380 (alteration omitted) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). Its use is justified in “only exceptional circumstances amounting to a judicial ‘usurpation of power,’ or a ‘clear abuse of discretion.’” Id. (quoting Will, 389 U.S. at 95; Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)).
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 38081 (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
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its result, allowing medication and procedural abortions to proceed, was patently erroneous. It also concludes that “the court usurped the power of the governing state authority when it passed judgment on the wisdom and efficacy of those emergency measures, something squarely foreclosed by Jacobson.” Maj. Op. at 9-10. For several reasons, the majority is wrong.
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,
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even though such laws may impose restraints on citizens’ liberties, so long as that regulation is “justified by the necessities of the case” and does not violate rights secured by the Constitution “under the guise of exerting a police power.” Id. at 28-29.
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
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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 (emphases added). The Court certainly did not disclaim any power to so rule, under appropriate circumstances, however, explaining:
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
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Case: 20-50264 Document: 00515374865 Page: 42 Date Filed: 04/07/2020
states attempt to unjustifiably seize and wield power in the name of the health and safety.
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
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Case: 20-50264 Document: 00515374865 Page: 43 Date Filed: 04/07/2020
hospitalization of women,” reducing hospital capacity for COVID-19 patients, and (3) “contribute[] to the spread of the COVID-19 virus.”
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 timesensitive 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
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Case: 20-50264 Document: 00515374865 Page: 44 Date Filed: 04/07/2020
to abortion now may simply change the purpose for which the PPE is used, without any surplus that is able to be reallocated to healthcare workers treating COVID-19 patients. Other pregnant patients with the resources to do so may choose to seek abortions outside of Texas—a result clearly contrary to Texas’s purported goal of avoiding the spread of the virus. GA-09 has already led patients to travel to other states to obtain abortion care in a pandemic, exposing patients and third parties to infection risks. One out-of-state physician stated that he treated 30 abortion patients from Texas in the week after the attorney general’s statement.
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 GA09 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
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Case: 20-50264 Document: 00515374865 Page: 45 Date Filed: 04/07/2020
abortions in accordance with [GA-09].” The majority agrees, concluding that “the expiration date makes GA-09 a delay, not a ban.” Maj. Op. at 19. But it is painfully obvious that a delayed abortion procedure could easily amount to a total denial of that constitutional right: If currently scheduled abortions are postponed, many women will miss the small window of opportunity they have to access a legal abortion. Texas generally prohibits abortion after twenty-two weeks from the first day of the pregnant person’s last menstrual period (“LMP”), see TEX. HEALTH & SAFETY CODE § 171.044, and therefore GA-09 has the potential to deny a woman’s constitutional right to an abortion where that right will lapse during the duration of GA-09. A woman has only a small window of opportunity to exercise her constitutional right to choose, and therefore Petitioners’ action in further narrowing that window will present a burden in many cases.
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
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Case: 20-50264 Document: 00515374865 Page: 46 Date Filed: 04/07/2020
proceed was not patently erroneous. See In re Lloyd’s Register N. Am., Inc., 780 F.3d at 290.
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
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Case: 20-50264 Document: 00515374865 Page: 47 Date Filed: 04/07/2020 constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of timesensitive medical care.
I respectfully but emphatically dissent.
App.67

Case: 20-50264 Document: 00515366144 Page: 1 Date Filed: 03/31/2020
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________
No. 20-50264 ___________________
In re: GREGG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; KATHERINE A. THOMAS, in her official capacity as the Executive Director of the Texas Board of Nursing,
Petitioners _______________________
Petition for a Writ of Mandamus to the United States District Court for the
Western District of Texas _______________________
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the district court’s order of March 30, 2020 (Dkt. No. 40) is TEMPORARILY STAYED until further order of this court to allow this court sufficient time to consider petitioners’ emergency motion for stay and petition for writ of mandamus.
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the emergency motion for stay no later than Wednesday, April 1, 2020, at 8:00 a.m. Any reply by petitioners is due no later than Wednesday, April 1, 2020, at 8:00 p.m.
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Case: 20-50264 Document: 00515366144 Page: 2 Date Filed: 03/31/2020
IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the petition for writ of mandamus no later than Thursday, April 2, 2020, at 8 p.m. Any reply by petitioners is due no later than Friday, April 3, 2020, at 5 p.m.
IT IS FURTHER ORDERED that the filing of an amicus brief by States, Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia, is allowed. JAMES L. DENNIS, Circuit Judge, dissenting:
A federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time. I would deny the stay. Moreover, I write separately to make clear that, per the Executive Order, “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” is exempt.
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 1 of 9

iN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2U2UMAR3O PM 3:05

PLANNED PARENTHOOD CENTER

§

FOR CHOICE, PLANNED

§

PARENTHOOD OF GREATER TEXAS §

SURGICAL HEALTH SERVICES,

§

PLANNED PARENTHOOD SOUTH

§

TEXAS SURGICAL CENTER, WHOLE §

WOMAN'S HEALTH, WHOLE

§

WOMAN'S HEALTH ALLIANCE,

§

SOUTHWESTERN WOMEN'S

§

SURGERY CENTER, BROOKSIDE

§

WOMEN'S MEDICAL CENTER PA

§

D/BA BROOKSIDE WOMEN'S

§

HEALTH CENTER AND AUSTIN'S

§

WOMEN'S HEALTH CENTER, AND

§

ROBIN WALLACE, M.D., M.A.S.,

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. A-20-CV-323-LY

§

GREG ABBOTT, GOVERNOR OF

§

TEXAS, KEN PAXTON, ATTORNEY

§

GENERAL OF TEXAS, PHIL WILSON

§

ACTING EXECUTIVE

§

COMMISSIONER OF THE TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, STEPHEN BRINT

§

CARLTON, EXECUTIVE DIRECTOR

§

OF THE TEXAS MEDICAL BOARD,

§

KATHERINE A. THOMAS,

§

EXECUTIVE DIRECTOR OF THE

§

TEXAS BOARD OF NURSING, EACH

§

IN THEIR OFFICIAL CAPACITY, AND §

MARGARET MOORE, DISTRICT

§

ATTORNEY FOR TRAVIS COUNTY,

§

JOE GONZALES, CRIMINAL

§

DISTRICT ATTORNEY FOR BEXAR

§

COUNTY, JAIME ESPARZA, DISTRICT §

ATTORNEY FOR EL PASO COUNTY,

§

JOHN CREUZOT, DISTRICT

§

ATTORNEY FOR DALLAS COUNTY,

§

SHAREN WILSON, CRIMINAL

§

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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 2 of 9

DISTRICT ATTORNEY TARRANT

§

COUNTY, RICARDO RODRIGUEZ, JR., §

CRIMiNAL DISTRICT ATTORNEY

§

FOR HIDALGO COUNTY, BARRY

§

JOHNSON, CRIMINAL DISTRICT

§

ATTORNEY FOR MCLENNAN

§

COUNTY, KIM OGG, CRIMINAL

§

DISTRICT ATTORNEY FOR HARRIS §

COUNTY, AND BRIAN MIDDLETON §

CRIMINAL DISTRICT ATTORNEY

§

FOR FORT BEND COUNTY, EACH IN §

THEIR OFFICIAL CAPACITY,

§

DEFENDANTS.

§

ORDER GRANTING PLAINTIFFS' REOUEST FOR TEMPORARY RESTRAINING ORDER

Before the court is the above styled and numbered cause. Plaintiffs include several licensed

abortion facilities, Robin Wallace, a board-certified family medicine physician who provides

abortion care and is co-medical director at Southwestern Women's Surgery Center, who bring this

action on behalf of herself and her patients, and other organizations that provide abortion services

in the State of Texas. Plaintiffs bring this constitutional challenge, pursuant to Title 42 United States Code section 1983, following the publication of a March 23, 2020 press release by the Texas

attorney general titled, "Health Care Professionals and Facilities, Including Abortion Providers, Must

Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to
Fight COVID- 19 Pandemic." The press release interprets the governor ofTexas's "Executive Order

GA-09 relating to hospital capacity during the COVID- 19 disaster" ("Executive Order") signed

'Available at https://www.texasattorneygeneral.gov/news/releases/health-care-professionsand-facilities-including-abortion-providers-must-immediately-stop-all.
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 3 of 9
March 22, 2020.2 To the extent the attorney general's interpretation is consistent with the Executive
Order, Plaintiffs challenge the Executive Order itself. Plaintiffs also challenge the Texas Medical
Board's emergency amendment to Title 22 Texas Administrative Code section 187.57 ("Emergency
Rule"), which imposes the same requirements as the Executive Order.3 The Executive Order
remains in effect until 11:59 PM on April 21, 2020, at the earliest, or until the governor rescinds or
modifies it.
Pending now before the court is Plaintiffs' Motion for Temporary Restraining Order and/or
Preliminary Injunction filed March 25, 2020 (Clerk's Document No. 7). The court held a telephone
conference on March 26, 2020, at which Plaintiffs and several Defendants participated by counsel.
The court granted the State Defendants'4 request to file a written response to the motion. The State
2 Available at https ://gov.texas.gov/news/postlgovorner-abbott-issues-executive-order-
increasing-hospital-capacity-announces-supply-chain-strike-force-for-COVID- 19-response. Under
the Emergency Management Chapter of the Texas Government Code, "the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law." Tex. Gov't Code Ann. § 418.012
(West 2019).
Available at https://tinyurl.com/v4pz99u. On March 24, 2020, the Texas Medical Board
adopted an emergency rule to enforce the Executive Order. Under preexisting law, the Texas
Medical Board could temporarily suspend or restrict a physician's license if the physician's
"continuation in practice would constitute a continuing threat to the public welfare." 22 Tex. Admin. Code § 187.57(b). The Emergency Rule expands this basis for discipline to include "performance of a non-urgent elective surgery or procedure."
Because the Emergency Rule contains the same requirements to postpone surgeries and procedures that are not immediately necessary, Plaintiffs discuss the Emergency Rule together with the Executive Order.
"Defendants Greg Abbott, Governor of Texas, Ken Paxton, Attorney General of Texas, Phil Wilson, Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, Executive Director of the Texas Medical Board, Katherine A. Thomas, Executive Director of the Texas Board of Nursing, each in their official capacity, are referred to as
"State Defendants."
ci
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 4 of 9
Defendants responded March 30, 2020 (Clerk's Document No. 30), and Plaintiffs filed a Supplemental Statement In Support of Motion For Temporary Restraining Order the same day (Clerk's Document No. 29).
Plaintiffs argue that they have shown they are entitled to a temporary restraining order following the attorney general's press release. Plaintiffs interpret the press release as "suggesting that [the attorney general] believes continuing to provide any abortion care (other than for an immediate medical emergency) would violate the Executive Order, and as a warning to abortion
providers that '[t]hose who violate the [Executive O]rder will be met with the full force of the law." The Executive Order provides that failure to comply is a criminal offense punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. See Tex. Gov't Code Ann. § 418.173 (West 2019) ("Penalty forViolation ofEmergency Management Plan"). These
criminal penalties also trigger administrative enforcement provisions for the Texas Health and
Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing, each of
which is authorized to pursue disciplinary action against licensees who violate criminal laws. See 25 Tex. Admin. Code § 139.32(b)(6), 135.24(a)(1)(F); 22 Tex. Admin. Code § 185.17(11); Tex. 0cc. Code Ann. § 164.05 1(a)(2)(B), (a)(6); 301.452(b)(3), (b)(10).
Plaintiffs move for a temporary restraining order that restrains Defendants and their employees, agents, successors, and all others acting in concert or participating with them from enforcing the Executive Order and the Texas Medical Board's Emergency Rule as banning all medication abortions and procedural abortions.
The court, having considered the pleadings, the motion and supporting exhibits, the response,
the applicable law, and arguments of counsel, finds and concludes for the specific reasons required
4
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 5 of 9
under Federal Rule of Civil Procedure 65(d) and Local Rule 65.01, that Plaintiffs have shown (1) a likelihood of success on the merits, (2) that they will suffer irreparable harm iftemporary relief is not granted, (3) that the injury to Plaintiffs outweighs any harm the temporary relief might cause
Defendants; and (4) that a temporary restraining order will not disserve the public interest. See, e.g.,
Jackson Women's Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014) ("Jackson r'); Janvey
v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). Substantial likelihood of success on the merits
Specifically, the court finds that Plaintiffs have established a substantial likelihood ofsuccess on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates Plaintiffs' patients' Fourteenth Amendment rights, which derive from the Bill of Rights, by effectively banning all abortions before viability. See Planned Parenthood v. Casey, 505 U.S. 833,
848-49 (1992) (citing Griswoldv. Conn., 381 U.S. 479, 481-82(1965); Roe v. Wade, 410 U.S. 113,
153-54 (1973)). The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a woman's right to choose abortion, Roe v. Wade, 410 U.S. 113, 153-54
(1973), and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions. Roe, 410 U.S. at 163-65; see also Casey, 505 U.S. at 846, 871 (1992) (reaffirming Roe's "central principle" that "[b]efore viability, the State's interests are not strong
enough to support a prohibition of abortion"); Jackson Women 's Health Org. v. Dobbs, 951 F.3d
246, 248 (5th Cir. 2020) (per curiam) ("Jackson II]"); Jackson Women 's Health Org. v. Dobbs, 945 F.3d 265, 268-69 (5th Cir. 2019) ("Jackson I]").
Under the attorney general's interpretation, the Executive Order either bans all nonemergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of
S
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 6 of 9
pregnancy, and even earlier among patients for whom medication abortion is not appropriate. Either interpretation amounts to a previability ban which contravenes Supreme Court precedent, including Roe. See, e.g., Jackson III, 951 F.3d at 248 (ban on abortions starting at six weeks). Previability abortion bans are "unconstitutional under Supreme Court precedent without resort to the undue burden balancing test." Id. States "may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions." Jackson II, 945 F.3d at 269.
The State Defendants well describe the emergency facing this country at the present time. They do not overstate when they say, "Texas faces it worst public health emergency in over a century." The Executive Order, as written, does not exceed the governor's power to deal with the
emergency. But the attorney general's interpretation of that order constitutes the threat of criminal penalties against those whose interpretation differs. Yes, the attorney general is not the enforcer of those penalties, but many of those who are charged with enforcement are named as defendants in this action. The court takes notice that the opinion or notion of the attorney general as to the breadth of a law, even if expressed informally, carries great weight with those who must enforce it.
Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent "except-in-a-national-emergencyclause" in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court. For now, the State Defendants, and perhaps the others, agree that the Executive Order bans all pre-fetal-viability abortions. This is inconsistent with Supreme Court precedent. Plaintiffs have demonstrated a strong likelihood of success on the merits of their action.
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 7 of 9
Plaintiffs will suffer irreparable harm Plaintiffs' patients will suffer serious and irreparable harm in the absence of a temporary
restraining order. The attorney general's interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable. It is well established that, upon a plaintiff's demonstrating a constitutional violation, no further irreparable injury is necessary. See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of [constitutional] freedoms . . . unquestionably
constitutes irreparable injury."); Opulent Life Church v. City ofHolly Springs, 697 F.3d 279, 295 (5th Cir. 2012); Deerfield Med. Ctr. v. City ofDeerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981).
The threatened injury to Plaintiffs outweigh any damage the temporary restraining order may cause Defendants
A delay in obtaining abortion care causes irreparable harm by "result[ing] in the progression
of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal." Planned ParenthoodofWis., Inc. v. Van Hollen, 738 F.3d 796 (7th Cir. 2013). This "disruption or denial of
. patients' health care cannot be undone after a trial on the merits." Planned ParenthoodofKan.
v. & Mid Mo. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018). For some patients, such a delay
will deprive them of any access to abortion. See Tex. Health & Safety Code Ann. § 171.044 (West
2017) (prohibiting abortions after 20 or more weeks post-fertilization age). The court finds that the threatened injury to Plaintiffs outweighs any damage the temporary restraining order may cause Defendants.
7
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 8 of 9
Temporary restraining order will not disserve the public interest "The grant of an injunction will not disserve the public interest. . . when an injunction is
designed to avoid constitutional deprivations." Jackson 's Woman 's Health Org. v. Currier, 940 F. Supp. 2d 416,424 (S.D. Miss. 2013), aff'd, 760 F.3d 448 (5th Cir. 2014). Plaintiffs' requested relief will essentially continue the status quo, tipping the balance of equities toward Plaintiffs and serving the public interest. Id.; United States v. Tex., 508 F.2d 98, 101(5th Cir. 1975). The 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, as well as the risks of travelling to other states in search of time-sensitive medical care. The court finds that a temporary restraining order will not
disserve the public interest. The court concludes that Plaintiffs have shown that they are entitled to a temporary
restraining order. Therefore, IT IS ORDERED that Plaintiffs' Motion for Temporary Restraining Order filed March 25,
2020 (Clerk's Document No. 7) is GRANTED. IT IS FURTHER ORDERED that Defendants and their employees, agents, successors, and
all others acting in concert or participating with them, are TEMPORARILY RESTRAINED from enforcing Executive Order GA-09, "Relating to hospital capacity during the COVID- 19 disaster," and the Texas Medical Board's emergency amendment to Title 22 Texas Administrative Code section 187.57, as applied to medication abortions and procedural abortions.5
Pursuant to an Agreed Stipulation for Non-Enforcement Pending Final Resolution, Attorneys Fees and Costs filed March 28, 2020 (Clerk's DocumentNo. 25) this order does not apply to Defendant Brian Middleton, Criminal District Attorney for Fort Bend County.
8
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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 9 of 9

IT IS FURTHER ORDERED that this Temporaiy Restraining Order shall expire on April

13, 2020 at

p.m. This order may be extended for good cause, pursuant to Federal

Rule of Civil Procedure 65.

Plaintiffs have also moved for a preliminary injunction. Therefore,

IT IS ORDERED that the hearing on Plaintiffs' motion for a preliminary injunction is set for a telephonic hearing on April 13, 2020 at 9:30 a.m. Counsel and parties may call in to the court's

conference line at (877) 873-8017, with Access Code 7996289. Plaintiffs shall not be required to post a bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624,

628 (5th Cir. 1996). SIGNED at

.m., this

day of March, 2020.

UN ED STATES

App.78

Case 1:20-cv-00323 Document 1-2 Filed 03/25/20 Page 2 of 4

GOVERNOR GREG ABBOTT

March 22, 2020

FILED IN THE OFFICE OF THE
SEC4R;E3TARYOOCFLSOTACTKE

The Honorable Ruth R. Hughs Secretary of State State Capitol Room 1E.8 Austin, Texas 78701

Secretary of State

Dear Secretary Hughs:

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:

Executive Order No. GA-09 relating to hospital capacity during the COVID-19 disaster.

The original executive order is attached to this letter of transmittal.

Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VoICE) DIAL 7-1-1 FOR RELAY SERVICES

App.79

App.033

Case 1:20-cv-00323 Document 1-2 Filed 03/25/20 Page 3 of 4

3xrcuMir Irrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas March 22, 2020
EXECUTIVE ORDER GAO9
Relating to hospital capacity during the COVID-19 disaster.

WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.0 14 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, the Texas Department of State Health Services has determined that, as of March 19, 2020, COVID- 19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, on March 19, 2020, I issued an executive order in accordance with the President’s Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC), and mandated certain obligations for Texans that are aimed at slowing the spread of COVID-19; and
WHEREAS, a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster; and
WHEREAS, 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, contrary to recommendations from the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services; and
WHEREAS, various hospital licensing requirements would stand in the way of implementing increased occupancy in the event of surge needs for hospital capacity due to COVLD-19; and
WHEREAS, the “governor is responsible for meeting... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, under Section 418.0 12, the “governor may issue executive orders... hav[ing] the force and effect of law;” and
WHEREAS, under Section 418.0 16(a), the “governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster;” and

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FILESDECIRNETTHAEROYFOFIFCSET

E

—fI..O’CLOCK

MAR 2 2A2p0p20.034

Case 1:20-cv-00323 Document 1-2 Filed 03/25/20 Page 4 of 4

Governor Greg Abbott March 22, 2020

Executive Order GA-09 Page 2

WHEREAS, under Section 4 18.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.

NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order that, beginning now and continuing until 11:59 p.m. on April 21, 2020, all 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;

PROVIDED, however, that this prohibition 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.

At the request of the Texas Health and Human Services Commission, I hereby suspend the following provisions to the extent necessary to implement increased occupancy in the event of surge needs for hospital capacity due to COVTD-19:

25 TAC Sec. 133.1 62(d)(4)(A)(iii)(I); 25 TAC Sec. 133. 163(O( 1)(A)(i)(fl)—(ffl); 25 TAC Sec. 133.1 63(fl( 1)(B)(i)(ffl)—(W); 25 TAC Sec. 133.163(m)(1)(B)(ii); 25 TAC Sec. 133. 163(t)(1)(B)(iii)—(iv); 25 TAC Sec. 133.163(t)(1)(C); 25 TAC Sec. 133.163(t)(5)(B)—(C); and any other pertinent regulations or statutes, upon written approval of the Office of the Governor.

This executive order shall remain in effect and in full force until 11:59 p.m. on April 21, 2020,

unless it is molif ‘ -

rescinded, or superseded by me or by a succeeding governor.

Given under my hand this the 22nd day of March, 2020.

GREG ABBOTT Governor

RIJTH R. HUGHS Secretary of State

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FILED IN THE

C!

SECRETARY OF TAi

4 =

O’CLOCK

MAR 2 2 2020

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Case 1:20-cv-00323 Document 1-1 Filed 03/25/20 Page 2 of 4

(https://www.texasattorneygeneral.gov/)

Menu

March 23, 2020
Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic

Texas Attorney General Ken Paxton today warned all licensed health care professionals and all licensed health care facilities, including abortion providers, that, pursuant to Executive Order GA 09 issued by Gov. Greg Abbott, they must postpone all surgeries and procedures that are not immediately medically necessary.

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On Saturday, Gov. Abbott issued an executive order that “all 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.” This prohibition applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.
The COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus. Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals. Failure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.

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“We must work together as Texans to stop the spread of COVID-19 and ensure that our health care professionals and facilities have all the resources they need to ght the virus at this time,” said Attorney General Paxton. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
For information on the spread or treatment of Coronavirus (COVID-19), please visit the Texas Department of State Health Services (https://dshs.texas.gov/coronavirus/) website.

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Texas Register

TITLE 22

EXAMINING BOARDS

PART 9

TEXAS MEDICAL BOARD

CHAPTER 187 PROCEDURAL RULES

SUBCHAPTER F TEMPORARY SUSPENSION AND RESTRICTION PROCEEDINGS

RULE §187.57 Charge of the Disciplinary Panel

ISSUE

04/03/2020

ACTION

Emergency

Preamble

Texas Admin Code Rule

(a)The disciplinary panel shall determine from the evidence or information presented to it whether a person's continuation in practice constitutes a continuing threat to the public welfare.

(b)If the disciplinary panel determines that a person's continuation in practice would constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person.

(c)In accordance with the Act, §151.002(a)(2), "continuing threat to the public welfare," means a real danger to the health of a physician's patients or the public caused through the physician's lack of competence, impaired status, performance of a non-urgent elective surgery or procedure, or failure to care adequately for the physician's patients. A real danger exists if patients have an exposure to or risk of injury that is not merely abstract, hypothetical or remote and is based on actual actions or inactions of the physician. Information that the physician has committed similar actions or inactions in the past shall be considered by the disciplinary panel.

(1)For purposes of this rule all licensed health care professionals 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.

(2)Provided, however, that this prohibition 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.

(d)The disciplinary panel may also temporarily restrict or suspend a license of a person upon proof that a person has been arrested for an offense under:

(1)Section 22.011(a)(2), Penal Code (sexual assault of a child);

(2)Section 22.021(a)(1)(B), Penal Code (aggravated sexual assault of a child);

(3)Section 21.02, Penal Code (continuous sexual abuse of a young child or children); or

(4)Section 21.11, Penal Code (indecency with a child).

The agency certiﬁes that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Ofﬁce of the Secretary of State on March 23, 2020
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Case 1:20-cv-00323 Document 1-3 Filed 03/25/20 Page 3 of 3 TRD-202001217 Scott Freshour General Counsel Texas Medical Board Effective date: March 23, 2020 Expiration date: July 20, 2020 For further information, please call: (512) 305-7016

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Re-Query Register

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, ​et al​.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, ​et al​.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF POLIN C. BARRAZA IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Polin C. Barraza declares as follows: 1. I am President and Board Chair of Plaintiff Planned Parenthood South Texas Surgical Center (“PPST Surgical Center”), a not-for-profit corporation headquartered in San Antonio. PPST Surgical Center operates a licensed ambulatory surgical center and a licensed abortion facility in San Antonio. PPST Surgical Center provides a range of reproductive health services, including medication and surgical abortions. 2. I am responsible for the management of PPST Surgical Center (as well as the operations of its parent organization, Planned Parenthood South Texas), and therefore am familiar with our operations and finances, including the services we provide and the communities we serve. 3. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order

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No. GA-09, as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, a press release by the Texas Attorney General interpreting it, and the Emergency Rule. PPST Surgical Center has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit A.
4. The facts I state here are based on my experience, my review of PPST Surgical Center business records, information obtained in the course of my duties at PPST Surgical Center and PPST, and personal knowledge that I have acquired through my service at PPST Surgical Center and PPST. If called and sworn as a witness, I could and would testify competently thereto. PPST Surgical Center’s Provision of Abortion Care
5. In 2019 PPST Surgical Center provided 1855 abortions, and of those, 1258 were medication abortions and 597 were surgical abortions.
6. In January and February 2020, PPST Surgical Center performed 550 abortions, and of those, 396 were medication abortions and 154 were surgical abortions.
7. Neither medication nor surgical abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of ​any ​PPE. And while surgical abortion at PPST Surgical Center requires the use of sterile gloves for each procedure, a surgical mask that includes protective eyewear (one per provider per day, unless a mask becomes soiled), disposable gowns (one per provider per
2
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day, unless a gown becomes soiled), disposable hair and shoe covers, and reuable lab coats and face shields, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.1 PPST uses only non-sterile gloves or condoms to perform ultrasound or laboratory exam, including one that accompanies medication or surgical abortion.
8. PPST Surgical Center does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID-19 pandemic.
9. PPST Surgical Center does not provide inpatient care, nor is it set up to do so. PPST Surgical Center’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
10. PPST Surgical Center is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
11. Since the COVID-19 outbreak, PPST Surgical Center has taken steps to preserve much-needed medical resources that are in short supply during the pandemic. Even before the Governor’s Executive Order, for example, we had excluded residents and medical students from observing or participating in surgeries or procedures, which reduced the number of individuals requiring PPE.
12. We have also taken numerous steps to help prevent the spread of COVID-19 infection in the communities where we offer services. Although in normal times we welcome support companions accompanying abortion patients, we have decided not to allow such
1 Per CDC guidance, Plaintiffs provide patients for whom there is a concern for COVID-19 or other upper respiratory disease with a mask.
3
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Case 1:20-cv-00323-LY Document 7-1 Filed 03/25/20 Page 5 of 10

companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
13. We have also made dramatic changes to the flow of our patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms. Only those individuals who are positively screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a medical assistant will contact them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. We have reconfigured our waiting rooms and check-in practices to limit the number of people in our facility, as well as to ensure they can and are maintaining the recommended social-distance.
14. More recently, PPST has curtailed other non-abortion services that can safely be delayed, such as annual well-person visits and routine STI tests.
15. In light of the Executive Order, we have cancelled surgical abortions scheduled for this week, and PPST Surgical Center will cancel non-emergency future surgical abortions appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, PPST Surgical Center has stopped providing non-emergency medication abortions because of concerns about whether these abortions are permissible under the Attorney General’s interpretation of the Executive Order.
16. I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Polin C. Barraza
4
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EXHIBIT A
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 2 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF MARY TRAVIS BASSETT, M.D., M.P.H., IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Mary Travis Bassett, M.D., M.P.H. declare as follows: 1. I am the Director of the François-Xavier Bagnoud (“FXB”) Center for Health and
Human Rights at Harvard University, as well as the FXB Professor of the Practice of Health and Human Rights at the Harvard T.H. Chan School of Public Health. I am offering this declaration on my own behalf and not on that of Harvard University or other professional organizations that are noted.
2. I served as Commissioner of the New York City Department of Health and Mental Hygiene (DOHMH) from 2014–2018 and led New York’s response to the Ebola pandemic. I also led DOHMH as the City responded to a large outbreak of Legionnaires’ disease and the Zika outbreak in South America and the Caribbean. Previously, I had been the Program Director for the African Health Initiative and the Child Well-Being Program at the Doris Duke Charitable Foundation (2009–2014). Prior to that, I served as Deputy Commissioner of Health Promotion and Disease Prevention, for the New York City Department of Health and Mental Hygiene (2002– 2009).

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3. My awards and honors include the Frank A. Calderone Prize in Public Health, a Kenneth A. Forde Lifetime Achievement Award from Columbia University, a Victoria J. Mastrobuono Award for Women’s Health, and the National Organization for Women’s Champion of Public Health Award. I am an elected a member of the National Academy of Medicine. For over a decade, I served as an associate editor of the American Journal of Public Health. My recent publications include articles in The Lancet and in the New England Journal of Medicine addressing structural racism and health inequities in the United States. My complete curriculum vitae is attached as Exhibit A.
4. I am a member of the National Academies of Sciences, Engineering and Medicine Standing Committee on Emerging Infectious Diseases and 21st Century Health Threats, a group of experts established at the request of Office of Science and Technology Policy (OSTP) and the Office of the Assistant Secretary for Preparedness and Response (ASPR), to help inform the federal government on critical science and policy issues related to emerging infectious diseases and other twenty-first century health threats, currently focused on COVID-19. See Nat’l Acads. of Scis., Eng’g & Med., Standing Committee on Emerging Infection Diseases and 21st Century Health Threats (last updated Mar. 28, 2020), https://www.nationalacademies.org/ourwork/standing-committee-on-emerging-infectious-diseases-and-21st-century-healththreats#sectionPublications. My areas of teaching and research include focus on reducing socioeconomic and racial inequalities in health. I have written several newspaper perspectives on the COVID-19 pandemic, including in the Washington Post and New York Times, where I note the racial and economic disparities in vulnerability to COVID-19.
5. I have reviewed the Declaration of Joshua Sharfstein, M.D., in Support of Plaintiffs’ Motion for Preliminary Injunction, and I agree with the opinions set forth therein.
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 4 of 34
6. My recent service as Commissioner of DOHMH underscores the reasons why Texas’s implementation of its executive order is profoundly misguided as a public health measure aimed at conserving personal protective equipment (“PPE”) and hospital resources. New York City is the current epicenter of the COVID-19 pandemic in the United States, and the public health challenges of the crisis are very real. But for all of the reasons explained in Dr. Sharfstein’s declaration, prohibiting abortion services is not an effective way to conserve PPE or hospital resources. Even aside from the harm to the patients who are denied access to timely care, patients who are forced to obtain a procedure later in pregnancy are likely to have a procedure that requires the use of more PPE. And if patients travel to another state to try to end their pregnancies, again PPE is not conserved.
7. Implementing a public health policy that increases the likelihood that patients will travel to try to get an abortion elsewhere is particularly counterproductive. The single most effective thing people can do to slow the spread of COVID-19 and “flatten the curve” is to avoid unnecessary contact and travel. Over two dozen states have issued “shelter in place” or “stay at home” orders in order to accomplish this. And if patients succeed in obtaining an abortion in another state, then of course there has been no net savings of PPE. To the contrary, by potentially exposing patients and others with whom they come in contact to increased risk of contagion, the net effect of forcing patients to travel is to deplete both PPE and other hospital resources.
8. In the years before abortion was available in every state, patients who were able to do so traveled from across the country to obtain an abortion in New York City. The prospect of large numbers of patients traveling from Texas to other states during the current pandemic crisis is truly frightening from a public health perspective.
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 5 of 34 9. Access to health care varies by income and employment status and contributes to longstanding disparities in health status. While inadvisable from a public health perspective to travel to seek care during the COVID-19 outbreak, only patients with the resources required to do so will have this option. This means that resources and not a woman’s preference may determine access to care. 10. I declare under penalty of perjury that the foregoing is true and correct.
Executed on: April 2, 2020
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 6 of 34
EXHIBIT A
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 8 of 34

Board Certification and Licensure

Board Qualification

1983

Diplomate, American Board of Internal Medicine

Candidate 089171

Licensure 1981

New York (active)

Committees, Professional Organizations and Societies

Member Member
Member
Member Member
Member Member
Chair Chair and President
Member
Associate Editor International Editor Member

National Academy of Medicine (inducted 2018) The Center for Climate, Health, and the Global Environment at Harvard T.H. Chan School of Public Health (Harvard C-CHANGE) (2020-present). Tobacco Products Scientific Advisory Committee, Food and Drug Administration (February 2018-August 31 2018) National Academy of Medicine (2017-present) Advisory Board, New York University College of Global Public Health (2017-present) Board of Directors, Truth Initiative (2017-present) External Advisory Board, NYU School of Medicine, Department of Population Health (2016-present) NYC Board of Health (2014-2018) Board of Directors, Fund for Public Health in New York City (20142018) Committee on Planning the Assessment/Evaluation of HIV/AIDS Programs Implemented Under United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008 (2008-2013) American Journal of Public Health (2002- 2014) American Journal of Public Health (2000- 2002) American Public Health Association (1998-present)

Academic Appointments/Employment

2018- present

Director and FXB Professor of Public Health Practice Francois-Xavier Bagnoud Center for Health and Human Rights at Harvard University Harvard T.H. Chan School of Public Health Boston, Massachusetts

2014- 2018

Commissioner New York City Department of Health and Mental Hygiene New York, New York

2
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2009-2014
2002-2009 2001-2002 1995-2018
1985-2005
1997-2001 1995-1997 1987-1988 Honors 2019 2019 2019 2018

Program Director African Health Initiative and Child Well-Being Prevention Program Doris Duke Charitable Foundation New York, New York
Deputy Commissioner, Health Promotion and Disease Prevention New York City Department of Health and Mental Hygiene New York, New York
Associate Director, Health Equity Rockefeller Foundation Southern Africa Office
Associate Professor, Clinical Public Health and Clinical Medicine Columbia University, College of Physicians and Surgeons (on leave) New York, New York
Department of Community Medicine University of Zimbabwe Harare, Zimbabwe
1985-1991 Lecturer 1992-2000 Senior Lecturer (on leave 1987-88, 199597) 2000-2005 Associate Professor (on leave 2001-05)
Research Associate, Department of Medicine Stanford University Medical Center Stanford, California
Director, Harlem Center for Disease Prevention Columbia School of Public Health New York, New York
Attending Physician, Department of Medicine Harlem Hospital Center New York, New York
Public Health Hall of Fame. Public Health Solutions Stephen Smith Award. New York Academy of Medicine Elisabeth B. Weintz Humanitarian Award, Harvard Humanitarian Initiative Notable Women in Health Care, Crain’s New York Business
3
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2018
2017
2017
2017 2017 2017
2017
2017 2016 2016
2016 2016
2014 2014
2014 2013 1979
1974

John Dewey Award for Distinguished Service, Bard Prison Initiative Kenneth A. Forde Lifetime Achievement Award, Columbia University Baseball Leadership Award, Arthur Ashe Institute for Urban Health Beny J. Primm Humanitarian Award, START Honoree, VOCAL-NY Victoria J. Mastrobuono Award for Women's Health, National Organization for Women Champion of Public Health, City University of New York, School of Public Health Fuerza Award, Latino Commissioner on AIDS Sapientia et Doctrina Medal, Fordham University Frank A. Calderone Prize in Public Health, Columbia University, Mailman School of Public Health Founders’ Award, Citizens’ Committee for Children of New York Marshall England Memorial Pubic Health Award, Commission on the Public's Health System Public Health Leadership Award, Treatment Action Group
Lucille Bulger Community Service Award, Community League of the Heights Public Service Award, Coalition of Behavioral Health Agencies Haven Emerson Award, Public Health Association of New York City Franklin McLean Award for “Best Graduating Black Medical Student,” Columbia College of Physicians and Surgeons Ames Award for “Courage and Leadership,” Harvard-Radcliffe

Fellowship and Grant Support

Apr. 1999-Mar. 2003 Targeted Epidemiological Treatment vs. General Population Approaches to STD/HIV prevention. Supported by USAID under the Horizons programme. (David Wilson, Principal Investigator)

Dec. 1999-Jan. 2002 Use of Lay Volunteers in HIV Counselling and Testing among Antenatal Women in Chitungwiza. Supported by Swedish International Development Agency (SIDA) and National Institute of Health, United States

Aug. 1999-Sept. 2001 Factory based AIDS Prevention (FWAPP). Supported by AusAID in collaboration with Australian Overseas Volunteers

Aug. 1999-Sept. 2001 Cost-sharing for peer education in workplace-based AIDS prevention. Supported by the Royal Netherlands Embassy

4
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Nov. 1997-Feb. 2001 Investigator and programme director. Zimbabwe AIDS Prevention Project, a HIVNET (NIH) site

Aug. 1994-Dec. 1995 "User acceptability of over-the-counter vaginal preparations" Population Council. Multicentre study; Zimbabwe (Principal Investigator)

Apr. 1994-Mar. 1995 "Adolescents AIDS Prevention," Ford Foundation

Jan 1993-Jan. 1994 "User acceptability of the female condom in Zimbabwe, awarded by WHO, Special Programme of Research Development and Research Training in Human Reproduction

Apr.1992-Dec. 1994 "Women and AIDS in Zimbabwe: An Ethnographic Study" International Center for Research on Women Washington, District of Columbia

Mar. 1992-Feb. 1995 "Impact of structural adjustment on health in an urban and a rural area of Zimbabwe," funded by Nordic Institute for African Studies. (David M. Sanders, Principal Investigator)

Jan. 1992-Dec. 1994 Preparation for evaluation of AIDS vaccine (PAVE) funded by National Institutes of Health. (David Katzenstein, Principal Investigator)

Consultancy Work

May-Dec. 2000

Team member, AIDS Exploration, Rockefeller Foundation

Nov.1997- Mar.1998 Assessment of the impact of the Family Health Project in collaboration with the Ministry of Health, World Bank

June-July 1997

Team member, Assessment of Malawi AIDS Control Program World Bank

Aug. 1992

Evaluation of Village Community Worker Program in Zimbabwe, Commissioned by UNICEF

Jan. 1992

Review of water- and sanitation-related diseases in Zimbabwe. Commissioned by the World Bank, funded by UNICEF

Publications Original, peer-reviewed articles

5
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Case 1:20-cv-00323-LY Document 49-2 Filed 04/02/20 Page 12 of 34
Bassett MT. “Public Health Addresses Police Violence: A Beginning.” American Journal of Public Health 110, S7_S8, https://doi.org/10.2105/AJPH.2019.305435. January 2020.
Cloud DH, Bassett MT, Graves F, Fullilove RE, Brinkley-Rubinstein L. “2020: Documenting and Addressing the Health Impacts of Carceral Systems.” American Journal of Public Health 110, S5_S5, https://doi.org/10.2105/AJPH.2019.305475. January 2020.
Williams C, Amon J, Bassett MT, Diez Roux Anna V, Farmer PE. “25 Years: Exploring the Health and Human Rights Journey.” Health and Human Rights Journal. 2019 December, Vol.21(2), pp. 279-282.
Bassett, MT. “No Justice, No Health: The Black Panther Party’s Fight for Health in Boston and Beyond.” Journal of African American Studies. (2019) 23: 352. https://doi.org/10.1007/s12111019-09450-w.
Perl SB, Merrill TG, Lopez W, Bassett MT. The Legacy of 1987 Boreali v. Axelrod: Board of Health Rule-Making Under Siege. Am J Public Health. Published online ahead of print November 29, 2018: e1–e4. doi:10.2105/AJPH.2018.304755.
Bailey ZD, Krieger N, Agénor M, Graves J, Linos N, Bassett MT. Structural racism and health inequities in the USA: Evidence and interventions. Lancet. 2017; 389(10077): 1453-63.
Tsao TY, Konty KJ, Van Wye G, Barbot O, Hadler JL, Linos N, Bassett MT. Estimating potential reductions in premature mortality in New York City from raising the minimum wage to $15. Am J Public Health. 2016; 106(6):1036-41.
Bassett MT, Gallin EK, Adedokun L, Toner C. From the ground up: Strengthening health systems at district level. BMC Health Serv Res. 2013; 13(Suppl 2):S2.
Dumanovsky T, Huang CY, Nonas CA, Matte TD, Bassett MT, Silver LD. Changes in energy content of lunchtime purchases from fast food restaurants after introduction of calorie labelling: Cross sectional customer surveys. BMJ. 2011; 343:d4464.
Dumanovsky T, Huang CY, Bassett MT, Silver LD. Consumer awareness of fast-food calorie information in New York City after implementation of a menu labeling regulation. Am J Public Health. 2010; 100(12):2520-5.
Farley TA, Caffarelli A, Bassett MT, Silver L, Frieden TR. New York City’s fight over calorie labeling. Health Aff (Millwood). 2009; 28 (6):w1098-109.
Chamany S, Silver LD, Bassett MT, Driver CR, Berger DK, Neuhaus CE, Kumar N, Frieden TR. Tracking diabetes: New York City’s A1C registry. Milbank Q. 2009; 87(3): 547–70.
6
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Huang C, Dumanovsky T, Silver LD, Nonas C, Bassett MT. Calories from beverages purchased at 2 major coffee chains in New York City, 2007. Prev Chronic Dis. 2009; 6(4): A118.
Angell SY, Silver LD, Goldstein GP, Johnson CM, Deitcher DR, Frieden TR, Bassett MT. Cholesterol control beyond the clinic: New York City’s trans fat restriction. Ann Intern Med. 2009 151(2):129-34.
Dumanovsky T, Nonas CA, Huang CY, Silver LD, Bassett MT. What people buy from fast-food restaurants: Caloric content and menu item selection, New York City 2007. Obesity (Silver Spring). 2009; 17(7):1369-74.
Cowan FM, Pascoe SJ, Barlow KL, Langhaug LF, Jaffar S, Hargrove JW, Robinson NJ, Bassett MT, Wilson D, Brown DW, Hayes RJ. A randomised placebo-controlled trial to explore the effect of suppressive therapy with acyclovir on genital shedding of HIV-1 and herpes simplex virus type 2 among Zimbabwean sex workers. Sex Transm Infect. 2008; 84(7):548-53.
Springer CM, Tannert Niang KM, Matte TD, Miller N, Bassett MT, Frieden TR. Do medical students know enough about smoking to help their future patients? Assessment of New York City fourth-year medical students’ knowledge of tobacco cessation and treatment for nicotine addiction. Acad Med. 2008; 83(10):982-9.
Bassett MT, Dumanovsky T, Huang C, Silver LD, Young C, Nonas C, Matte TD, Chideya S, Frieden TR. Purchasing behavior and calorie information at fast-food chains in New York City, 2007. Am J Public Health. 2008; 98(8):1457-9.
Frieden TR, Bassett MT, Thorpe LE, Farley TA. Public health in New York City, 2002-2007: Confronting epidemics of the modern era. Int J Epidemiol 2008; 37(5):966-77.
Foerster SB, Silver LD, Kohatsu ND, Frieden TR, Bassett MT, Horton MB. Childhood obesity on the front lines. Am J Prev Med. 2007; 33(4 Suppl):S175-7.
Karpati AM, Bassett MT, McCord C. Neighbourhood mortality inequalities in New York City, 1989-1991 and 1999-2001. J of Epidemiol Community Health 2006; 60(12):1060-4.
Corbett EL, Dauya E, Matambo R, Cheung YB, Makamure B, Bassett MT, Chandiwana S, Munyati S, Mason PR, Butterworth AE, Godfrey-Faussett P, Hayes RJ. Uptake of workplace HIV counselling and testing: A cluster-randomised trial in Zimbabwe. PLoS Med. 2006; 3(7):e238.
Cowan FF, Pascoe SJ, Barlow KL, Langhaug LF, Jaffar S, Hargrove JW, Robinson NJ, Latif AS, Bassett MT, Wilson D, Brown DW, Hayes RJ. Association of genital shedding of herpes simplex virus type 2 and HIV-1 among sex workers in rural Zimbabwe. AIDS. 2006; 20(2):261-7.
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Martin-Herz SP, Shetty AK, Bassett MT, Ley C, Mhazo M, Moyo S, Herz AM, Katzenstein D. Perceived risks and benefits of HIV testing, and predictors of acceptance of HIV counselling and testing among pregnant women in Zimbabwe. Int J STD AIDS 2006; 17(12):835-41.
Lee EJ, Kantor R, Zijenah L, Sheldon W, Emel L, Mateta P, Johnston E, Wells J, Shetty AK, Coovadia H, Maldonado Y, Jones SA, Mofenson LM, Contag CH, Bassett M, Katzenstein DA. Breast-milk shedding of drug-resistant HIV-1 subtype C in women exposed to single-dose nevirapine. J Infect Dis. 2005; 192(7):1260-4.
Thorpe LE, Berger D, Ellis JA, Bettegowda VR, Brown G, Matte T, Bassett M, Frieden TR. Trends and racial/ethnic disparities in gestational diabetes among pregnant women in New York City, 19902001. Am J Public Health 2005; 95(9):1536-9.
Miller N, Frieden TR, Liu SY, Matte TD, Mostashari F, Deitcher DR, Cummings KM, Chang C, Bauer U, Bassett MT. Effectiveness of a large-scale distribution programme of free nicotine patches: A prospective evaluation. Lancet. 2005; 365(9474):1849-54.
Shetty AK, Mhazo M, Moyo S, von Lieven A, Mateta P, Katzenstein DA, Maldonado Y, Hill D, Bassett MT. The feasibility of voluntary counselling and HIV testing for pregnant women using community volunteers in Zimbabwe. Int J STD AIDS. 2005; 16(11):755-9.
Cowan FM, Langhaug LF, Hargrove JW, Jaffar S. Mhuriyengwe L, Swarthout TD, Peeling R, Latif A, Basset [sic] MT, Brown DW, Mabey D, Hayes RJ. Wilson D. Is sexual contact with sex workers important in driving the HIV epidemic among men in rural Zimbabwe? J Acquir Immune Defic Syndr. 2005; 40(3):371-6.
Cowan FM, Hargrove JW, Langhaug LF, Jaffar S, Mhuriyengwe L, Swarthout TD, Peeling R, Latif A, Bassett MT, Brown DW, Mabey D, Hayes RJ, Wilson D. The appropriateness of core group interventions using presumptive periodic treatment among rural Zimbabwean women who exchange sex for gifts or money. J Acquir Immune Defic Syndr. 2005; 38(2):202-7.
Power R, Langhaug LF, Nyamurera T, Wilson D, Bassett MT, Cowan FM. Developing complex interventions for rigorous evaluation – A case study from rural Zimbabwe. Health Educ Res. 2004; 19(5):570-5.
Gottlieb D, Shetty AK, Mapfungautsi RM, Bassett MT, Maldonado Y, Katzenstein DA. Infant feeding practices of HIV-infected and uninfected women in Zimbabwe. AIDS Patient Care STDs 2004; 18(1):45-53.
Gondos A, Chokunonga E, Brenner H, Parkin DM, Sankila R, Borok M Z, Chirenje ZM, Nyakabau AM, Bassett MT. Cancer survival in a southern African urban population. Int J Cancer 2004; 112(5):860-4.
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Krieger N, Northridge M, Gruskin S, Quinn M, Kriebel D, Davey Smith G, Bassett M, Rehkopf DH, Miller C, HIA “promise and pitfalls” conference group. Assessing health impact assessment: Multidisciplinary and international perspectives. J Epidemiol Community Health. 2003; 57(9):65962.
Shetty AK, Coovadia HM, Mirochnick MM, Maldonado Y, Mofenson LM, Eshleman SH, Fleming T, Emel L, George K, Katzenstein DA, Wells J, Maponga CC, Mwatha A, Jones SA, Abdool Karim SS, Bassett MT, HIVNET 023 Study Team. Safety and trough concentrations of nevirapine prophylaxis given daily, twice weekly, or weekly in breast-feeding infants from birth to 6 months. J Acquir Immune Def Syndr. 2003; 34(5): 482-90.
Zabos GP, Northridge MW, Ro MJ, Trinh C, Vaughan R, Howard JM, Lamster I, Bassett MT, Cohall AT. Lack of oral health care for adults in Harlem: A hidden crisis. Am J Public Health. 2002; 92(1):49-52 and 2008; 98(9 Suppl):S102-5 (republished).
Fritz KE, Woelk GB, Bassett MT, McFarland WC, Routh JA, Tobaiwa, O, Stall RD. The association between alcohol use, sexual risk behavior, and HIV infection among men attending beerhalls in Harare, Zimbabwe. AIDS Beh, 2002; 6(3):221-8.
Cowan FM, Langhaug LF, Mashungupa GP, Nyamurera T, Hargrove J, Jaffar S, Peeling RW, Brown DW, Power R, Johnson AM, Stephenson JM, Bassett MT, Hayes RJ; Regai Dzive Shiri Project. School based HIV prevention in Zimbabwe: Feasibility and acceptability of evaluation trials using biological outcomes. AIDS. 2002; 16(12):1673-8.
Machekano R, Bassett M, McFarland W, Katzenstein D. Clinical signs and symptoms in the assessment of immunodeficiency in men with subtype C HIV Infection in Harare, Zimbabwe. HIV Clin Trials 2002; 3(2):148-54.
Bassett MT. Ensuring a public health impact of programs to reduce HIV transmission from mothers to infants: The place of voluntary counseling and testing. Am J Public Health. 2002; 92(3):347-52.
Ashford AR, Albert SM, Hoke G, Cushman LF, Miller DS, Bassett M. Prostate carcinoma knowledge, attitudes and screening behavior among African-American men in Central Harlem, New York City. Cancer 2001; 91(1):164-72.
Bassett MT. Keeping the M in MTCT: Women, mothers and HIV prevention. Am J Public Health. 2001; 91(5):701-3.
Bassett MT. The pursuit of equity in health: Reflections on race and public health data in Southern Africa. Am J Public Health. 2000; 90(11):1690-3.
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Bassett MT. Psychosocial and community perspectives on alternatives to breastfeeding. Ann N Y Acad Sci. 2000; 918:128-35.
Machekano RN, Bassett MT, Zhou PS, Mbizvo M T, Latif AS, Katzenstein DA. Report of sexually transmitted diseases by HIV infected men during follow up: Time to target the HIV infected? Sex Transm Infect. 2000; 76(3):188-92.
Machekano R, McFarland W, Hudes ES, Bassett MT, Mbizvo MT, Katzenstein D. Correlates of HIV test results seeking and utilization of partner counseling services in a cohort of male factory workers in Zimbabwe. AIDS Beh. 2000; 4(1):63-70.
Chokunonga E, Levy LM, Bassett MT, Mauchaza BG, Thomas DB, Parkin DM. Cancer incidence in the African population of Harare, Zimbabwe: Second results from the cancer registry 1993-1995. Int J Cancer. 2000; 85(1):54-9.
Fullilove RE, Fullilove MT, Northridge ME, Ganz ML, Bassett MT, McLean DE, Aidala AA, Gemson DH, McCord C. Risk factors for excess mortality in Harlem: Findings from the Harlem Household Survey. Am J Prev Med. 1999; 16(3 Suppl): 22-8.
Chokunonga E, Levy LM, Bassett MT, Borok MZ, Mauchaza BG, Chirenje MZ, Parkin DM. AIDS and cancer in Africa: The evolving epidemic in Zimbabwe. AIDS. 1999; 13(18): 2583-8.
Gwanzura L, Latif A, Bassett M, Machekano R, Katzenstein DA, Mason PR. Syphilis serology and HIV infection in Harare, Zimbabwe. Sex Trans Infect. 1999; 75(6):426-30.
McFarland W, Gwanzura L, Bassett MT, Machekano R, Latif AS, Ley C, Parsonnet J, Burke RL, Katzenstein D. Prevalence and incidence of herpes simplex virus type 2 infections among male Zimbabwean factory workers. J Inf Dis. 1999; 180(5):1459-65.
Sherman JB, Bassett MT. Adolescents and AIDS prevention. A school-based approach in Zimbabwe. Appl Psychol. 1999; 48(2):109-24.
Diez-Roux AV, Northridge ME, Morabia A, Bassett MT, Shea S. Prevalence and social correlates of cardiovascular disease risk factors in Harlem. Am J Public Health. 1999; 89(3): 302-7.
Hanmer L, Bijlmakers L, Basset [sic] MT, Sanders DM, Chapman G. Human capital, targeting and social safety nets: An analysis of household data from Zimbabwe. Oxf Dev Stud 1998; 26(2):245-65.
Machekano R, McFarland W, Mbizvo MT, Bassett MT, Katzenstein DA, Latif AS. Impact of HIV counselling and testing on HIV seroconversion and reported STD incidence among male factory workers in Harare, Zimbabwe. Cent Afr J Med. 1998; 44(4):98-102.
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Northridge ME, Morabia A, Ganz ML, Bassett MT, Gemson D, Andrews H, McCord C. Contribution of smoking to excess mortality in Harlem. Am J Epidemiol. 1998; 147(3):250-8.
Mbizvo MT, Latif AS, Machekano R, MacFarland W, Bassett MT, Ray S, Katzenstein D. HIV seroconversion among factory workers in Harare. Who is getting newly infected? Cent Afr J Med. 1997; 43(5):135-9.
Bassett MT, Bijlmakers L, Sanders DM. Professionalism, patient satisfaction and quality of health care: Experience during Zimbabwe's structural adjustment programme. Soc Sci Med. 1997; 45(2):1845-52.
Bassett MT, McFarland WC, Ray S, Mbizvo MT, Machekano R, van de Wijgert JH, Katzenstein DA. Risk factors for HIV infection at enrollment in an urban male factory cohort in Harare, Zimbabwe. J Acquir Immune Defic Syndr Hum Retrovirol. 1996; 13(3):287-93.
Mbizvo MT, Machekano R, McFarland W, Ray S, Bassett M, Latif A, Katzenstein D. HIV seroincidence and correlates of seroconversion in a cohort of male factory workers in Harare, Zimbabwe. AIDS. 1996; 10(8):895-901.
Mbizvo MT, Bassett MT. Reproductive health and AIDS prevention in sub-Saharan Africa: The case for increased male participation. Health Policy Plan. 1996; 11(1):84-92.
Bassett MT, Chokunonga E, Mauchaza B, Levy L, Ferlay J, Parkin DM. Cancer in the African population of Harare, Zimbabwe, 1990-92. Int J Cancer 1995; 63(5):763.
Bassett MT, Levy L, Chokunonga E, Mauchaza B, Ferlay J, Parkin DM. Cancer in the European population of Harare, Zimbabwe, 1990-92. Int J Cancer. 1995; 63(1):24-2.
Ray S, Bassett M, Maposhere C, Manangazira P, Nicolette JD, Machekano R, Moyo J. Acceptability of the female condom in Zimbabwe: Positive but male-centered responses. Reprod Health Matters. 1995; 3(5): 68-78.
Mbizvo MT, Ray S, Bassett M, McFarland W, Machekano R, Katzenstein D. Condom use and the risk of HIV infection: Who is being protected? Cent Afr J Medicine. 1994; 40(11):294-9.
Houston S, Ray S, Mahari M, Neill P, Legg W, Latif AS, Emmanuel J, Bassett M, Pozniak A, Tswana S, Flowerdew G. The association of tuberculosis and HIV infection in Harare, Zimbabwe. Tuber Lung Dis. 1994; 75(3):220-6.
Mbizvo MT, Danso AP, Tswana S, Bassett M, Marowa E, Mbengeranwa L. Reduced semen quality and risk behaviour amongst men consulting a referral STD clinic. Cent Afr J Med. 1994; 40(7):1706.
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Taylor C, Sanders D, Bassett M, Goings S. Surveillance for equity in maternal care in Zimbabwe World Health Stat Q. 1993; 46(4):242-7.
Fawcus SR, Mwase R, Bassett MT. Chest circumference as an indicator of low birth weight in Zimbabwe. J Trop Pediatr. 1993; 39(1):48-9.
Bassett MT, Levy LM, Chetsanga C, Chokunonga E. Zimbabwe National Cancer Registry: Summary data 1986-1989. National Cancer Registry Advisory Committee. Cent Afr J Med. 1992; 38(3):91-4.
Bassett MT, Latif A, Katzenstein D, Emmanuel JC. Sexual behavior and risk factors for HIV infection in a group of male factory workers in Harare, Zimbabwe. J Acquir Immune Defic Syndr. 1992; 5(6):556-9.
Bassett MT, Mhloyi M. Women and AIDS in Zimbabwe: The making of an epidemic. Int J Health Ser. 1991; 21(1):143-156.
Bassett MT, Taylor P, Bvirakare J, Chiteka F, Govere E. Clinical diagnosis of malaria: Can we improve? J Trop Med Hyg. 1991; 94(1):64-9.
Bassett T [sic], Ndoro EZ, Mhadzemira A, Mbengeranwa OL. Hypertension control in Harare municipal clinics. Cent Afr J Med 1990; 36(7):176-80.
Thomas JE, Bassett MT, Sigola LB, Taylor P. Relationship between bladder cancer incidence, Schistosoma haematobium infection, and geographic region in Zimbabwe. Trans R Soc Trop Med Hyg. 1990; 84(4):551-3.
Katzenstein DA, Latif AS, Grace SA, Basset [sic] M, de Villers DM, Carrow EW, Hendry RM, Marowa E, Emmanuel JC. Clinical and laboratory characteristics of HIV-1 infection in Zimbabwe. J Acquir Immune Def Syndr 1990; 3(7):701-7.
Latif AS, Katzenstein DA, Bassett MT, Houston S, Emmanuel JC, Marowa E. Genital ulcer and transmission of HIV among couples in Zimbabwe. AIDS. 1989; 3(8):519-23.
Emmanuel JC, Bassett MT, Smith HJ, Jacobs JA. Pooling of sera for human immunodeficiency virus (HIV) testing: An economical method for use in developing countries. J Clin Pathol. 1988; 41(5):582-5.
Emmanuel JC, Bassett MT, Smith HJ. Risk of hepatitis B infection among medical and paramedical workers in a general hospital in Zimbabwe. J Clin Pathol. 1988; 41(3):334-6.
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Krieger N, Bassett M. The health of black folk: Disease, class, and ideology in science. Monthly Review 1986; 38(3):74-86.
Bassett MT, Krieger N. Social class and black-white differences in breast cancer survival. Am J Public Health. 1986; 76(12):1400-3.
Bassett M, Coons TA, Wallis W, Goldberg EH, Williams RC Jr. Suppression of stimulation in mixed leukocyte culture by newborn splenic lymphocytes in the mouse. J Immunol. 1977; 119(5):1855-7.
Commentaries, peer-reviewed journals Bassett MT, Graves JD. Uprooting Institutionalized Racism as Public Health Practice. Am J Public Health. 2018 Apr;108(4):457-458. Merrill TG, Lopez W, Perl SB, Bassett MT. The Judicial Threat to Public Health – The “Sword of Boreali.” N Engl J Med. 2018 Feb 8;378(6):499-501.
Narayan R, Gwynn RC, Bassett MT. New York City: Measuring progress as it's made. Int J Epidemiol. 2017; 464(4):1248-1250.
Bassett MT. Public health meets the problem of the color line. Am J Public Health. 2017; 107(5):666-7.
Bassett MT, Balter S. Regulating cooling towers to prevent outbreaks of Legionnaires’ disease: The need for more research. Public Health Reps. 2017; 132(2):133-5.
Bassett MT. Beyond berets: The Black Panthers as health activists. Am J Public Health. 2016; 106(10):1741-3.
Belkin G, Linos N, Perlman S, Norman C, Bassett MT. A roadmap for better mental health in New York City. Lancet. 2016; 387(10015):207-8.
Bassett MT. #BlackLivesMatter – A challenge to the medical and public health communities. N Engl J Med. 2015; 372(12):1085-7.
Bassett MT, Brudney K. Treating our way out of AIDS? Am J Public Health. 2014; 104(2):200-3.
Bassett MT. Of personal choice and level playing fields: Why we need government policies on food content. Am J Public Health 2012; 102(9):1624.
Bassett MT. Advocacy: A leadership role for public health. Am J Public Health. 2011; 101(2):202.
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Bassett MT. Bold steps for the health of Americans: Yes we can. Am J Public Health 2009; 99(4):587. Silver L, Bassett MT. Food safety for the 21st century. JAMA. 2008; 300(8): 957-9. Bassett MT. Health for all in the 21st century. Am J Public Health. 2006; 96(12): 2089-9.
Bassett MT. Diabetes is epidemic. Am J Public Health. 2005; 95(9):1456. Bassett MT, Perl S. Obesity: The public health challenge of our time. Am J Public Health 2004; 94(9):1477. Stover GN, Bassett MT. Practice is the purpose of public health. Am J Public Health 2003; 93(11):1799-801.
Letters, peer-reviewed journals
Bassett MT, Krieger N, Baily Z. Charlottesville: blatant racism, not grievances, on display. Lancet. 2017 Nov 18;390(10109):2243. Bassett MT, Wye GV, Huynh M, Paone D, Kunins HV. White individuals' risk of premature mortality in context. Lancet. 2017; 389(10077):1393. Linos N, Bassett MT. Added sugar intake and public health. JAMA. 2015; 314(2):187. Bassett MT, Brudney K. WHO’s new guidelines for antiretroviral treatment. Lancet. 2013; 382(9907):1777–8. Silver L, Bassett M. Authors’ reply to Pande and Soumerai. BMJ. 2011 Sep 13; 343:d5800.
Johnson CM, Angell SY, Lederer A, Dumanovsky T, Huang C, Bassett MT, Silver LD. Sodium content of lunchtime fast food purchases at major US chains. Arch Intern Med. 2010; 170(8):732-4.
Bassett MT. Smoking among deprived populations: Not just a matter of choice. Am J Public Health. 2003; 93(7):1035-6.
Feldman GE, McCord CW, Bassett MT, Frieden TR. Screening for colorectal cancer. JAMA. 2003; 290(2):191.
Coggins C, Elias CJ, Atisook R, Bassett M, Ettiegne-Traore V, Jenkins-Woelk GL, Van Devanter N. Safety of three formulations of nonoxynol-9 containing vaginal spermicides. N-9 Formulation Preferences Study Group Committee. Int J Gynaecol Obstet. 2000; 68(3): 267-8.
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Coggins C, Elias CJ, Atisook R, Bassett MT, Ettiegne-Traore V, Ghys PD, Jenkins-Woelk L, Thongkrajai E, VanDevanter NL. Women’s preferences regarding the formulation of over-thecounter vaginal spermicides. AIDS. 1998; 12(11):1389-91.
Emmanuel JC, Bassett MT, Smith HJ, Paterson LE. Measurement of alanine aminotransferase (ALT) levels in Zimbabwean donor serum – A possible indicator of non-A, non-B hepatitis. Cent Afr J Med. 1989; 35(8):469.
Emmanuel JC, Bassett MT, Smith HJ, Patterson LE. Prevalence of HTLV1 in Zimbabwe: A pilot survey. J Clin Pathol. 1989; 42(6):669-70.
Book Chapter, Monographs, Reports, Working Papers
Committee on Informing the Selection of Leading Health Indicators for Healthy People 2030 (External Reviewer). Health and Medicine Division of the National Academies of Sciences, Engineering, and Medicine.
Bassett MT. From Harlem to Harare. Lessons in How Social Movements and Social Policy Change Health. In: Birn A, Brown T (Eds.) Comrades in Health. US Health Internationalists at Home and Abroad. Rutgers University Press, New Brunswick, New Jersey; 2013.
Institute of Medicine. Evaluation of PEPFAR (President's Emergency Plan for AIDS Relief). The National Academies Press, Washington, District of Columbia; 2013.
Institute of Medicine and National Research Council. Strategic approach to the evaluation of programs implemented under the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008. The National Academies Press, Washington, District of Columbia; 2010.
Perl SB, Ellis JA, Vichinsky LE, Larson K, Levy J, Silver L, Bassett MT, Frieden TR. Smoking Cessation Strategies in New York City: 2002 – 2006. In: Progress in Smoking and Health Research. Nova Publishers, New York, New York; 2007; 89 – 115.
Bassett MT, Frieden TR, Deitcher DR, Matte T. “Strategies that promote health in cities: A local health department’s perspective.” In Galea S, Vlahov D (Eds.) Handbook of Urban Health: Populations, Methods, and Practice. Springer, New York, New York; 2005.
Bassett MT, Biljmakers L, Sanders DM. “Experiencing Structural Adjustment in Rural and Urban Households in Zimbabwe” In Turshen M (ed.) African Women’s Health, pp 167-192. Africa World Press Inc., Trenton, New Jersey; 2000.
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Bijlmakers L, Bassett MT, Sanders D. Socioeconomic stress, health and child nutritional status in Zimbabwe at the time of Economic Structural Adjustment. Nordic Institute of African Studies. Research report no. 105. Uppsala, Sweden; 1998.
Hamner L, Bijlmakers L, Bassett MT, Sanders D, Chapman G. “Social safety nets, who needs them? An analysis of household data from Zimbabwe. Working Paper Series No. 211. Institute of Social Studies. P.O. Box 29776 2502LT, The Hague, Netherlands; February 1996.
Bijlmakers L, Bassett MT, Sanders D. Health and structural adjustment in a rural and urban area of Zimbabwe. In Gibbon P (ed.) Structural Adjustment and the Working Poor in Zimbabwe. Scandinavian Institute of African Studies; 1995.
Bassett MT, Mhloyi M. “Women and AIDS: The making of an epidemic.” Reprinted in Krieger N, Margo G (Eds.) AIDS and the Politics of Survival. Baywood Publishing Company, Amityville, New York; 994. Also reprinted in Fee E, Krieger N (Eds.) Women’s Health, Politics and Power. Baywood Publishing Company, Amityville, New York; 1994.
Other Writing
Berger DK, Silver L, Bassett MT. Lipid control: Preventing cardiovascular events in patients with atherosclerotic disease or diabetes. City Health Information 2006; 25(5):33-40.
Henning KJ, Bassett MT, Silver L, Sederer L, Lyman A. Take Care New York: A policy for a healthier New York City. City Health Information 2004: 23(3) 11-18.
“What they do not know can hurt them: How school-based reproductive health programmes can help adolescents lead healthy reproductive lives.” Document prepared for ARHEP/TARSC June 2000. 47 Van Praagh Ave, Milton Park, Harare, Zimbabwe.
"Impact of peer education on HIV infection in Zimbabwe." Sexual Health Exchange 1998/4. KIT/SafAIDS). Royal Tropical Institute, POB 9500, 1090HA Amsterdam, The Netherlands.
"Zimbabwe: Social roots of AIDS." UNESCO Courier, 1994; 48: 17-19.
"Ethics in HIV/AIDS Research." Medical Research Council of Zimbabwe. Report of a Workshop held in Kadoma, Zimbabwe. July 1994.
"The Female Condom." SAfAIDS Newsletter, April 1994.
"Epidemic cholera – Burundi and Zimbabwe, 1992-1993." Morbidity and Mortality Weekly Report 1993; 42(21): 407-409.
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Manual for training mid-level health workers in community health and epidemiology. Prepared on request for the Ministry for Health, Zimbabwe, 1987. Revised for second printing, 1992. Media (selected) Bassett, MT. ”How Does Racism Affect Your Health?” TED Radio Hour. 13 December 2019. Bassett MT. “How Genetics Is Changing Our Understanding of ‘Race,’” Letter to the Editor, New York Times, April 2, 2018. Bassett MT. In Honor of Lucy, Betsey, and Anarcha: How the Planned Removal of the Dr. J. Marion Sims Statue Honors the Women He Enslaved. Shondaland. Feb. 7, 2018. Bassett MT. Americans Deserve to Know: Congress Must Resume Funding for Gun Violence Research. Huffington Post. Nov. 8, 2017. Bassett MT, Morita J, Ferrer B. President Trump’s Says He Wants to Stop the Opioid Crisis. His Actions Don’t Match. Time. Nov. 2, 2017. Bassett MT. “One in nine men have oral HPV, but we can fix this.” CNN Opinion. Oct. 19, 2017. Bassett MT. “Strengthening the City’s Sexual Health Clinics.” Gay City News. February 10, 2017. Bassett M. “Health Department Engages in Internal reform to Advance Health Equity.” Opinion piece. New York Daily News. January 16, 2017. Bassett MT. “#WhatADoctorLooksLike – How racism and implicit bias affect health care.” Opinion piece. Essence. October 19, 2016. Bassett M. “Why Congress drags its feet on Zika.” Opinion piece. New York Daily News. September 21, 2016. Bassett MT. “New York City Offers a Model for Mental-Health Treatment,” Opinion piece, Time Magazine, May 31, 2016. Bassett M. “How the $15 Minimum Wage May Save Lives,” Opinion piece, New York Daily News, April 15, 2016. Bassett M. “Texas Abortion Case,” Letter to the Editor, New York Times, February 26, 2016.
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Bassett M. “Why We're Taking Big Moves to Curb Salt Intake: With Health Risks this Serious, People Need Better Information to Decide What to Eat,” Opinion piece, New York Daily News, September 10, 2015.
Bassett M. “Low-fat Milk and Obesity in Kids,” Letter to the Editor, New York Times, February 18, 2006.
Bassett MT. “Race: A Word, an Ideology or a Fact?” Letter to the Editor, New York Times, March 20, 2005.
Bassett MT. “Smoking isn’t fashionable,” Letter to the Editor, New York Times, October 11, 2004.
Bassett M. “Cancer: Finding it and Treating it,” Letter to the Editor, New York Times, October 20, 2002.
Profiles (selected)
“New York City Health Commissioner Dr. Mary Bassett on Making Public Health a Social Justice.” NY1. One-on-1. January 30, 2017. (By Budd Mishkin.)
“Trailblazer for Health in New York City. Perspective Profile: Mary Bassett.” Lancet 2016: 387(1): 219. (By Sarah Boseley).
“A Champion of Health Equity at the Helm at the NYC Department of Health. Alumni Profile: Mary T. Bassett ’79.” Columbia Medicine. Columbia University. College of Physicians and Surgeons. Fall/Winter 2015. (By Rick Owens).
“In New York, Bringing a Comforting Message During a Chaotic Time: NYC Health Commissioner Has Helped Quell Ebola Fear.” The New York Times. October 24, 2014. (By Michael M. Grynbaum).
Invited and Honorary Lectures (selected)
“Social Justice and Epidemiology: How Equity Advances Excellence.” Massachusetts Department of Public Health. Boston, Massachusetts. December 16th, 2019.
“Foundations of Global Health and Population.” Harvard Chan Department of Global Health and Population. Boston, Massachusetts. December 9th, 2019.
“Breaking Bondage: The Intersection of Race and Public Health.” Vital Talks. New York, New York. November 25th, 2019.
2019 Elisabeth B. Weintz Humanitarian Award. Harvard Humanitarian Initiative. Boston, Massachusetts. November 21st, 2019.
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“Critical Thinking Series.” Harvard T.H. Chan School of Public Health. Boston, Massachusetts. November 18th, 2019.
Stephen Smith Award Ceremony. New York Academy of Medicine. New York, New York. November 7th, 2019.
Global Health Night. McGill University. Montreal, Quebec. November 5th, 2019.
“Global Health and Health Equity Session” APHA Student Assembly. Philadelphia, Pennsylvania. November 2nd, 2019.
“400 Years of Inequality.” Harvard T.H. Chan School of Public Health. Boston, Massachusetts: October 28th, 2019.
“Not Just Personal: Why Understanding Structural Racism Matters.” American Society for Bioethics and Humanities Plenary Talk. The Hastings Foundation Pittsburgh, PA. October 28th, 2019.
“The Color of Healthcare: Mary Travis Bassett and Harriet Washington in Conversation.” Brooklyn Historical Society. New York, NY. October 17th, 2019.
“Social Justice and Racial Equity at the Center: NYC Health Department (2014-18)” Truth and Transformation. Initiative for Institutional Anti-Racism and Accountability at the Shorenstein Center on Media, Politics and Public Policy. Cambridge, Massachusetts. October 16th, 2019.
“Law and the Nation’s Health.” Georgetown Law Journal. Washington, DC: October 15th, 2019.
Stigma and Access to Treatment: Harvard University and University of Michigan Summit on the Opioid Crisis. Harvard University Office of the President/François-Xavier Bagnoud Center for Health and Human Rights at Harvard University/Harvard T.H. Chan School of Public Health Office of the Dean. Boston, Massachusetts: October 10th, 2019.
“Unnatural and Unfair: How Clinicians Challenge Health Inequities.” The 16th Annual Melvin H. Chalfen, MD Lecture on Public Health. Cambridge Health Alliance. Cambridge, Massachusetts. October 2nd, 2019.
Public Health Hall of Fame Award. Public Health Solutions. New York, New York: June 18th, 2019.
“Aligning Our Mission, Defining Our Future.” Why Health Equity Matters: Brigham and Women’s Hospital. Boston, Massachusetts. May 29th, 2019.
SUNY Downstate Medical Center Commencement. SUNY Downstate. New York, New York: May 22nd, 2019.
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Yale School of Public Health Commencement. Yale School of Public Health. New Haven, Connecticut: May 20th, 2019.
Opioids: Policy to Practice – A University of Michigan – Harvard University Summit. FXB Center for Health and Human Rights at Harvard University. Boston, Massachusetts: May 10th, 2019.
“An Unbroken Thread: The Pursuit of Health, Equity, and Racial Justice.” 2019 Hubie Jones Lecture in Urban Health. Boston University’s Center for Innovation in Social Work and Health. Boston, Massachusetts: May 1st, 2019.
“Neglected Voices: The Global Roma Diaspora.” FXB Center for Health and Human Rights at Harvard University. Cambridge, Massachusetts: April 5th, 2019.
“No Health = No Justice.” Legal Action Center. New York, New York: April 3rd, 2019.
“Life and Death in Rikers Island.” Vera Institute of Justice. New York, NY. March 11th, 2019.
“Reflections on Social Epidemiology: Numbers Count, History Counts More”. 10th Annual Social Epidemiology Grand Rounds, Johns Hopkins Bloomberg School of Public Health. February 22, 2019.
“W.E.B. Du Bois As a Public Health Thinker” Cambridge Health Alliance, Cambridge, Massachusetts. February 15th, 2019.
“Action Beyond the Health Sector – Addressing the Social Determinants of NCDs” Panel Discussion, Prince Madihol Award Conference, Bangkok, Thailand. February 1st, 2019.
“Cities and Geography of Inequality.” 15th International Conference on Urban Health. International Society for Urban Health, Kampala, Uganda: Nov. 28, 2018
“Can We Overcome Inequalities in Health: Experiences from New York City and USA.” 2018 Future Health City Seoul Symposium. Seoul Health Foundation, Seoul, South Korea: Oct. 26, 2018.
“Uprooting Racism as Public Health Practice.” Robert Wood Johnson Foundation Presidential Speaking Series. Princeton, NJ: Feb. 6, 2018.
“Discrimination: A Public Health Threat” – A Conversation. City University of New York Law Center. Queens, New York: Sept 12, 2017.
“Bending the Arc of the Moral Universe: Doing Good by Making Systems Better.” Medecins Sans Frontieres-USA General Assembly: Plenary on Race, Inclusion, and Movements. New York, New York: June 23, 2017.
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“Structural Racism and Health: From Evidence to Action.” The Lancet: Inequality and Health in the United States: A Social Justice Symposium. Harvard Medical School. Boston, Massachusetts: April 24, 2017
“Success Stories and the Path Forward in Tobacco Prevention and Control: New York City.” Closing Plenary. National Conference on Tobacco or Health. Austin, Texas: March 24, 2017.
“Epidemiology and Equity: Using Data to Advance Justice.” Alexander D. Langmuir Honorary Lecture, American Epidemiological Society 90th Annual Meeting. New York, New York: March 23, 2017
“Social Work, Health Equity and Racial Justice.” Sapientia et Doctrina Lecture. Fordham University Graduate School of Social Service, New York, New York; November 17, 2016.
“Advancing Health Equity as a Robert Wood Johnson Foundation Clinical Scholar.” Annie Lea Schuster Alumni Speaker. Robert Wood Johnson Foundation Clinical Scholar Summit, Atlanta, Georgia; November 16, 2016.
“Public Health Meets the Problem of the Color Line.” Frank A. Calderone Prize in Public Health Lecture, New York, New York; Oct. 25, 2016.
“From Bedside Manner to Sidewalk Manner.” Commencement Address. Boston University School of Medicine, Boston, Massachusetts; May 12, 2016.
“The Role of Public Health Data in Advancing Health Equity in All Policies.” America Public Health Association Conference, Chicago, Illinois; November 2015.
“#BlackLivesMatter: A Challenge to the Medical and Public Health Communities.” Harvard T.H. Chan School of Public Health, Cambridge, Massachusetts; October 2015.
“#BlackLivesMatter: A Challenge to the Medical and Public Health Communities.” David Sanders Lecture in Public Health and Social Justice. University of the Western Cape. Bellville, South Africa; July 8, 2015.
“Calories, Fat and Salt: How New York City Helped Redefine Modern Food Safety.” University of the Western Cape, Bellville, South Africa; July 2015.
“Public Health as Social Justice: Addressing Health Inequities in New York City.” Council of State and Territorial Epidemiologists Conference, Boston, Massachusetts; June 2015.
“Bringing a Public Health Lens to Healthcare Delivery.” John Lindenbaum Memorial Lecture. Columbia University Medical Center, New York, New York; April 15, 2015.
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“Public Health as Social Justice: Lessons from Harlem to Harare.” Stephen Stewart Gloyd Endowed Lecture. University of Washington, Seattle, Washington; April 3, 2015.
Commencement address. New York University College of Global Public Health. New York, New York; May 14, 2012.
“Health Policy and Research in Africa: How Research in a Small Developing Country Proved Relevant to Public Health Practice in New York City.” Plenary presentation. Fogarty Fellows. National Institutes of Health, Bethesda, Maryland; July 20, 2010.
“The Implementation Gap.” Panel Discussion. Consortium of Universities for Global Health, Seattle, Washington; 2010.
“New York City’s Lifestyle Health: Obesity, The Environment, Policy & Programs.” YMCA Community Forum on Lifestyle Health, New York, New York; September 11, 2008.
“Using Local Government Authority to Meet the Challenge of Obesity: The New York City Experience.” CDC National Summit on Legal Preparedness for Obesity Prevention and Control, Atlanta, Georgia; June 18, 2008.
“Tackling Health Inequalities in New York City: Top Down or Bottom Up?” MacArthur Foundation, Research on Socioeconomic Status and Health Network, New York, New York; September 27, 2007.
“Creating a Healthy Environment: The Trans Fat Ban in New York City.” 84th Annual Conference New York State Association for Food Protection, Syracuse, New York; September 20, 2007.
“Tobacco Control in New York City.” Flight Attendant Medical Research Institute. Johns Hopkins School of Public Health, Baltimore, Maryland; January 29, 2007.
“New York City Approaches to Colon Cancer.” National Colorectal Cancer Round Table, Washington, District of Columbia; December 6, 2006.
“Implementing Multilevel Interventions: Challenges for Health Department.” 2nd International Conference on Urban Health. New York Academy of Medicine, New York, New York; October 18, 2003.
“Voluntary Counseling and Testing: Optimizing the impact.” Plenary presentation. Third annual meeting. Global Strategies for Prevention of HIV transmission from Mother to Infant, Kampala Uganda; September 9, 2001.
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Debate: “Does Structural Adjustment fuel the AIDS epidemic?” XIIIth International Conference on HIV/AIDS, Durban, South Africa; July 2000.
“Impact of Structural Adjustment on Urban and Rural Households in Zimbabwe.” Plenary presentation. Epidemiology Association of Southern Africa (ESSA), East London, South Africa; February 2000.
“Psychosocial and Community Perspectives on Alternatives to Breastfeeding.” Plenary presentation. Global Strategies for Prevention of HIV transmission from Mother to Infant, Montreal, Canada; September 3, 1999.
“User and Community Perspectives of Microbicide/Spermicides.” Plenary presentation. Proceedings of the 10th World Congress on Human Reproduction, Salvador, Brazil; May 4-8, 1999 Edited by Coutinho E.M. and Spinola P. Department of Gynecology, Obstetrics and Human Reproduction. Faculty of Medicine, Federal University of Bahia, Brazil.
"Public Health Crisis in Africa: AIDS and Economic Reform." Plenary presentation. Health and Society in African. Berkeley-Stanford (California) Joint Center; April 24, 1999.
“Strategies for Preserving Breast Feeding.” Social Science Track D Plenary, XIIth International Conference on AIDS, Geneva, Switzerland: June 30, 1998.
"Enabling strategies in HIV prevention: Experience from Zimbabwe." Global Program on AIDS. World Health Organization, Geneva, Switzerland; September 1993.
"Social and Economic Determinants of Vulnerability to HIV Infection." Plenary presentation. VIIIth International Conference on AIDS, Berlin, Germany; June 7-11, 1993.
"Women and AIDS in Zimbabwe." Institute for History of Science, Massachusetts Institute of Technology, Cambridge, Massachusetts; April 1990.
"AIDS in Africa: Epidemiology and Social Dimensions." Lecture series on "AIDS: Biological and Social Dimensions." Massachusetts Institute of Technology, Cambridge, Massachusetts; October 1989.
“Evaluating asbestos-related research in Africa." Occupational Safety and Health, Ministry of Labour and Asbestos Institute, Montreal, Canada; August 1987.
Hosted Lectures (selected)
“Are Epidemiologists Scientists or Public Health Practitioners?”. Society for Epidemiologic Research. November 13th, 2019. Online.
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Critical Thinking Series. Harvard Chan School Department of Global Health and Population. Location: Boston, Massachusetts. November 18th, 2019.
“Making It Practical: The Pursuit of Equity in Public Health.” Ounce of Prevention. Massachusetts Department of Public Health. Boston, Massachusetts; April 2nd, 2019.
“Invisible Hands Film Screening.” FXB Center for Health and Human Rights at Harvard University. Boston, Massachusetts; March 28th, 2019.
“Empowering Transgender Youth, their Families and Communities: Lessons Learned the Gender & Family Project,” Jean Malpas, LMHC, LMFT, Ackerman Institute for the Family. Queens: New York; July 30, 2018.
“In Plain Sight: Race, Racism and Colorblindness,” Alvin Starks, Senior Program Officer, Open Society Foundations. Queens: New York; July 16, 2018.
“Reflections on Resiliency,” Dr. Oxiris Barbot, First Deputy Commissioner, and the DOHMH Mental Health Response Team. Queens: New York; May 1, 2018.
“Maryland’s Health Enterprise Zones: A Model for Addressing Social Determinants of Health,” Michelle Spencer, Johns Hopkins University. Queens: New York; April 24, 2018.
“Working Toward Recovery: U.S. Virgin Islands,” DOHMH U.S. Virgin Islands Recovery Team. Queens: New York; March 7, 2018.
“Insecurity and Energy Justice: A Call for Public Health,” Dr. Diana Hernández, Assistant Professor of Sociomedical Sciences at Columbia University’s Mailman School of Public Health. Queens: New York; March 5, 2018.
"Characterizing and Measuring Racism: Implications for Addressing Racial Inequities in Health," Dr. Courtney Cogburn, Assistant Professor, Columbia School of Social Work. Queens: New York; January 29, 2018.
“After Hurricane Maria: A Discussion on DOHMH’s Relief Effort,” Oxiris Barbot, MD, First Deputy Commissioner, New York City Department of Health and Mental Hygiene. Queens: New York; December 20, 2017.
“Health and Racist Ideas: A History,” Ibram X. Kendi, PhD, Professor of History and International Service, American University and Director of the Anti-Racist Research and Policy Center at American University. Queens: New York; December 5, 2017.
“Leveling the Playing Field: Achieving Equity and Eliminating Racial/Ethnic Disparities in Children’s Health and Healthcare,” Glenn Flores, MD, FAAP, Chief Research Officer and
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Director of the Health Services Research Institute, Connecticut Children's Medical Center. Queens: New York; November 29, 2017.
“Building Health,” Stephen Yablon, AIA, LEED AP, Stephen Yablon Architecture. Queens: New York; October 30, 2017.
“Overview of Contemporary Issues in Global Public Health Law and Responses to Global Public Health Crises,” Lawrence O. Gostin, JD, University Professor, Georgetown University Law Center; Founding O'Neill Chair in Global Health Law; Faculty Director, O'Neill Institute for National and Global Health Law, and Director, World Health Organization Collaborating Center on National & Global Health Law. Queens: New York; September 26, 2017.
“How We Created a Public Health Crisis by Segregating our Neighborhoods,” Richard Rothstein, Research Associate, Economic Policy Institute; Senior Fellow, Chief Justice Earl Warren Institution on Law and Social Policy, and University of California, Berkeley School of Law. Queens: New York; September 14, 2017.
“Latino Immigrants, Acculturation and Health: Promising New Directions in Research,” Ana Abraído-Lanza, PhD, Professor, Department of Sociomedical Sciences; Program Director, Initiative for Maximizing Student Development, and Mailman School of Public Health, Columbia University. Queens: New York; July 17, 2017.
“Dismantling Structural Racism: Strategies for Public Health Practitioners,” Zinzi Bailey, ScD, MSPH, Director of Research and Evaluation, Center for Health Equity, NYC Department of Health and Mental Hygiene. Queens: New York; June 20, 2017.
“The State of Black Immigrants,” Carl Lipscombe, Deputy Director, Black Alliance for Just Immigration, and Co-Founder of #BlackLivesMatter. Queens: New York; May 8, 2017.
“Labor of Love: Transforming the Way We Care.” Ai-jen Poo, Executive Director of the National Domestic Workers Alliance and Co-Director of Caring Across Generations. Queens, New York; April 17, 2017.
“Race, Place and Chronic Disease: Segregation as a Root Determinant of Health Inequities,” Brian Smedley, Ph.D., Co-Founder and Executive Director, National Collaborative for Health Equity. Queens, New York; March 1, 2017.
“Screening RIKERS & Discussing Mass Incarceration with Just Leadership USA,” Khalil A. Cumberbatch, Manager of Trainings, JustLeadershipUSA, and Janos Marton, Director of Policy and Campaigns, JustLeadershipUSA. (JustLeadershipUSA is dedicated to cutting the U.S. correctional population in half by 2030.) Queens, New York; February 22, 2017.
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“Drug Policy, Black Life and History: Notes toward a Harm Reduction of Color Critique,” Samuel Kelton Roberts, Jr., PhD, Director, Columbia University Institute for Research in African-American Studies; Associate Professor of History, Columbia University School of Arts and Sciences, and Associate Professor of Sociomedical Sciences, Columbia University, Mailman School of Public Health. Queens, New York; January 30, 2017.
“Violence Against Transgender Individuals and Communities as a Public Health Crisis,” LaLa Zannell, Lead Organizer, New York City Anti-Violence Project; Elana Redfield, Director, LGBTQI Affairs, New York City Human Resources Administration, and Olympia Perez, TransJustice Program Co-Coordinator for Leadership Development, Audre Lorde Project. Queens, New York; November 21, 2016.
“Medical Apartheid in Hospitals in New York City,” Neil S. Calman, MD, FAAFP, President and Chief Executive Officer, Institute for Family Health, and Chair, Department of Family Medicine and Community Health, Icahn School of Medicine, Mount Sinai. Queens, New York; July 20, 2016.
“Shifting Social Climates and the Health of Sexual Minorities in the United States,” Ilan Meyer, PhD, Williams Senior Scholar of Public Policy, Williams Institute, University of California, Los Angeles, School of Law. Queens, New York; June 6, 2016.
“The Politics of Premature Death in Black America,” Khalil Gibran Muhammad, PhD, Director, Schomburg Center for Research in Black Culture, New York Public Library. Queens, New York; May 4, 2016.
“The Health of Latino Populations: Key Questions and Issues,” Ana Abraido-Lanza, PhD, Associate Professor, Sociomedical Sciences, Columbia University, Mailman School of Public Health. Queens, New York; April 12, 2016.
"Pursuing Equality for Mental Health: Lessons from the United Kingdom," Right Honorable Norman Lamb, Member of Parliament, and Minister of State for Community and Social Care at the Department of Health in the United Kingdom Government (2012-2015). Queens, New York; April 4, 2016.
A Conversation and Musical Performance with the Kuumbra Singers of Harvard College. Queens, New York; March 14, 2016.
A Conversation with Yusef Salaam, convicted of assault and rape in 1990 as one of the Central Park Five. Queens, New York; February 28, 2016.
“From Mississippi Freedom Summer to Black Lives Matter: Recollections on Race, Health and the Civil Rights Movement,” Robert Fullilove, EdD, Professor and Associate Dean, Community and
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Minority Affairs, Sociomedical Sciences, Columbia University Medical Center. Queens, New York; February 24, 2016.
“The Protest Psychosis: How Schizophrenia Became a Black Disease,” Jonathan Metzl, MD, PhD, Director of the Center for Medicine, Health and Society, and Professor of Psychiatry, Vanderbilt University. Queens, New York; January 25, 2016.
“Mistreating Health Inequities: Race, Medicine and Justice,” Dorothy E. Roberts, JD, Professor of Law, University of Pennsylvania. Queens, New York; October 2, 2015.
“Avertable Deaths: The Power and Limitations of the Message,” Dr. Steven Woolf, MD, MPH, Director of the Virginia Commonwealth University Center on Society and Health, and Professor of Family Medicine and Population Health, Virginia Commonwealth University. Queens, New York; June 26, 2015.
“Body and Soul: The Black Panther Party and the Fight Against Medical Discrimination,” Alondra Nelson, PhD, Dean of Social Science, Professor of Sociology and Gender Studies, Columbia University. Queens, New York; June 22, 2015.
“Community Loss and Neighborhood Risks: New Social Indicators,” Mimi Abramovitz, DSW, Bertha Capen Reynolds Professor of Social Policy, and Chair, Social Policy Curriculum Area, Silberman School of Social Work at Hunter College, City University of New York; City University of New York Graduate Center. Queens, New York; May 4, 2015.
“Taking Population Health Seriously: Implications for Research and Practice,” Ana V. Diez Roux, MD, PhD, MPH, Dean, Drexel University School of Public Health. Queens, New York; April 1, 2015.
“Re-framing Women's Health with a Reproductive Justice Lens,” Lynn Roberts, Assistant Professor, Community Health, City University of New York School of Public Health. Queens, New York; March 16, 2015.
Black History Month film “Changing Face of Harlem” introduction, Chirlane McCray, First Lady of New York City. Queens, New York; February 17, 2015.
A Conversation with Victor Dzau, MD, President, National Academy of Medicine, and Community Health Leaders. Attendees included representation from area hospitals and universities, local and national funders, community-based organization such as Makes the Road New York and the New York City Justice Alliances and other key stakeholders. Queens, New York; Jan. 13, 2015.
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“The Housing and Neighborhood Study: Research Design and Preliminary Findings,” Elyzabeth Gaumer, Acting Assistant Commissioner, Research & Evaluation, New York City Department of Housing Preservation and Development. Queens, New York; January 12, 2015. “Neighborhoods, Housing and Health: A Panel Discussion with Emerging Researchers,” Dustin T. Duncan, ScD, Assistant Professor, Department of Population Health, New York University School of Medicine, and Mariana C. Arcaya, ScD, Yerby Postdoctoral Research Fellow, Harvard University Center for Population and Development Studies. Queens, New York; December 8, 2014. “Fair Society, Healthy Lives: Getting Evidence into Action,” Sir Michael Marmot, Professor of Epidemiology and Public Health, and Director, Institute for Health Equity, University College London. Queens, New York; November 5, 2014. “Health As Equity Actualized: Real Life Communications Approaches to Addressing Root Causes,” Makani Themba, Executive Director, Praxis Project. Queens, New York; October 14, 2014. “Racial Equity at the Intersection of Public Health and Health Care: Lessons Learned through the W.K. Kellogg Foundation America Healing Racial Equity Initiative,” Gail Christopher, DN, Vice President for Program Strategy, W.K. Kellogg Foundation. Queens, New York; June 23, 2014. “Making the Case for Equity: Advancing Health Equity Through Place-Based Solutions,” Angela Glover Blackwell, Founder and Chief Executive Officer, PolicyLink; and Mildred Thompson, Director, PolicyLink, Center for Health Equity and Place. Queens, New York; May 19, 2014.
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Case 1:20-cv-00323-LY Document 49-6 Filed 04/02/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF STEPHANIE CHANG, M.D. Stephanie Chang, M.D., declares as follows: 1. I am a board-certified obstetrician and gynecologist (“OB/GYN”), and a medical doctor licensed in the State of Texas and in good standing with the Texas Medical Board. My clinical practice includes both obstetrics and gynecology. 2. I graduated from UT Southwestern Medical School in 2007, completed a residency in obstetrics and gynecology at UT Southwestern Medical Center in 2011, and thereafter joined the faculty at UT Southwestern Medical Center as a member of the Department of Obstetrics and Gynecology. My primary site of practice is at Parkland Memorial Hospital. 3. I am a fellow/member of the American College of Obstetricians and Gynecologists (“ACOG”), the American Association of Gynecologic Laparoscopists, and the Association of Professors of Gynecology and Obstetrics. I am also a member of Parkland Memorial Hospital’s Medical Executive Committee.

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4. I make this declaration based upon my personal knowledge and am competent to testify thereto.
5. The statements in this declaration are attributable solely to me; I do not speak on behalf of any institution or organization with which I am affiliated.
6. Based on my practice, I am familiar with the use of personal protective equipment (“PPE”) during obstetrical and gynecologic care, including prenatal care, labor and delivery, abortion, and other essential procedures, as well as non-essential procedures.
7. As a physician, I understand well the impact COVID-19 will have on patients and the health care systems. Like other members of the medical community, I do my part to conserve needed PPE and preserve hospital resources for potential COVID-19 patients. However, this does not mean turning away patients in need of time-sensitive care.
8. Throughout pregnancy, regular visits with an OB/GYN are strongly recommended.1 These prenatal care visits are essential to ensuring the health of the mother and fetus. For these reasons, prenatal care visits are continuing during the COVID-19 outbreak.
9. During prenatal care visits, OB/GYNs perform diagnostic tests (such as ultrasounds, blood tests, and genetic testing) and physical exams (such as blood pressure tests and pelvic exams) to, for example, ensure fetal growth and check for any complications, not just for the fetus, but also for the pregnant patient.
10. The American Academy of Pediatrics and ACOG, as well as the federal government,2 recommend that for uncomplicated first pregnancies, the patient visit their OB/GYN
1 Am. Acad. of Pediatrics & ACOG, Guidelines for Perinatal Care 149 (8th ed. 2017). 2 Office on Women’s Health in the U.S. Dep’t of Health & Human Servs., Prenatal Care and Tests (last updated Jan. 30, 2019), https://www.womenshealth.gov/pregnancy/yourepregnant-now-what/prenatal-care-and-tests.
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every four weeks during the first and second trimesters (to twenty-eight weeks), every two weeks
until thirty-six weeks, and every week from thirty-six weeks to delivery. Thus, for a patient who
initiates prenatal care at eight weeks of pregnancy (which is the recommended timing of the first
visit), the patient will have approximately fourteen visits with their OB/GYN, including delivery.
Patients with risk factors for complications (such as multiple pregnancies, pre-existing medical conditions such as high blood pressure, or advanced age) require more visits.3 A majority of Texas
women seek prenatal care during the first trimester, according to the most recent data from the Texas Department of State Health Services.4
11. During the COVID-19 pandemic, ACOG recommends that “[a]ntenatal fetal surveillance and ultrasonography . . . should continue as medically indicated when possible.”5
ACOG acknowledges the crisis may warrant delaying some prenatal care only “if the risk of
exposure and infection within the community outweighs the benefit of [prenatal] testing” and
ultrasonography. In places where there is a high risk of inadvertent exposure, ACOG suggests a
reduced or modified schedule (no less than five in-person visits) may be appropriate, but normal care schedules should resume when the risk subsides.6
3 Risk factors for pregnancy complications are relatively common. For example, in 2018, 28% of pregnant women in Texas fell in the obese range of the pre-pregnancy Body Mass Index, a risk factor for developing hypertension, diabetes, and a variety of other medical problems during pregnancy. Tex. Dep’t of State Health Servs., 2019 Texas Healthy Mothers & Babies Data Book at 42–45 & Fig. 30 (revised Feb. 6, 2020), available at https://www.dshs.Texas.gov/ healthytexasbabies/Documents/HTMB-Data-Book-2019-20200206.pdf.
4 Tex. Dep’t of State Health Servs., Onset of Prenatal Care Within the First Trimester, (last updated Apr. 12, 2019), https://www.dshs.texas.gov/chs/vstat/vs15/t12.asp.
5 ACOG, COVID-19 FAQs for Obstetrician-Gynecologists, Obstetrics (last updated Mar. 26, 2020), https://www.acog.org/clinical-information/physician-faqs/covid-19-faqs-for-ob-gynsobstetrics.
6 ACOG, Examples of Alternate or Reduced Prenatal Care Schedules (Mar. 24, 2020), https://www.acog.org/clinical-information/physician-faqs/-/media/287cefdb936e4cda99a683d3c d56dca1.ashx.
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12. Prenatal visits to conduct diagnostic tests necessarily must be in person, and as a result, require the use of PPE. The initial prenatal care visit requires a physical exam (including a pelvic examination and sometimes a pap smear), blood testing, urine tests, STD screening, and an ultrasound if needed to confirm the gestational age of the pregnancy.
13. Throughout prenatal care visits, patients are provided several genetic tests. Cellfree DNA testing, which is done to screen for various genetic conditions or aneuploidy, is done during the initial or an early prenatal visit. Two additional genetic tests requiring blood draws, including quadruple-marker screening test (which measures the levels of four different hormones in the patient’s blood), are done between eleven and twenty-two weeks. If a patient needs a chorionic villus sampling (which analyzes a biopsy from the placenta), that is usually provided between ten and thirteen weeks, and amniocentesis (which analyzes fetal cells in a sample of amniotic fluid taken from the gestational sac) is done beginning at approximately fifteen weeks. Both procedures involve the insertion of a needle into the uterus, which can be painful, and both procedures carry the risk of complications, such as infection, miscarriage, and preterm labor.7
14. Some patients with risk factors for complications, including patients over thirtyfive years of age, may need additional genetic testing.
15. Gloves are used when conducting an ultrasound, obtaining fetal heart tones, drawing blood, or collecting specimens. If a pelvic exam is needed, both the OB/GYN and a nursechaperone wear gloves.
7 Johns Hopkins Med., Chorionic Villus Sampling (CVS), https://www.hopkinsmedicine. org/health/treatment-tests-and-therapies/chorionic-villus-sampling-cvs (last visited Apr. 1, 2020); Johns Hopkins Med., Amniocentesis, https://www.hopkinsmedicine.org/health/treatment-testsand-therapies/amniocentesis (last visited Apr. 1, 2020).
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16. Nearly all births in Texas occur in a hospital,8 and approximately one-third of
deliveries are by cesarean section (“C-section”), an open abdominal surgery requiring hospitalization for at least a few days.9 During a vaginal delivery, the nurse, the OB/GYN, and
between one to four pediatricians or pediatric nurse practitioners, depending on the status of the
infant, are present. The delivering provider wears a surgical mask with face shield and a surgical
gown. Each pediatric clinician wears a surgical mask and a disposable contact isolation gown.
Everyone wears non-sterile gloves, except for the delivering provider, who wears sterile gloves.
17. C-sections require more hospital staff and thus comparatively more PPE use. For a
C-section, two OB/GYN surgeons, an operating room technician, a circulating nurse, one to two
anesthesia providers, and at least one pediatric provider are needed. If the mother or newborn needs
to be intubated, even more staff is required.
18. In light of the governor’s Executive Order and the risks to pregnant patients from obtaining care at the hospital, all scheduled procedures (i.e., elective procedures10) are performed
in the outpatient setting—either at an office visit or ambulatory surgical center. Hospital-based
care is reserved for emergent and urgent cases, as well as all deliveries. At the hospital, each patient
8 Tex. Dep’t of State Health Servs., Summary of Vital Statistics for Texas 2014 (last updated Apr. 1, 2019), https://www.dshs.texas.gov/chs/vstat/vs14/nsumm.aspx (“In 2014, 98.5 percent of Texas resident births were delivered in a hospital.”).
9 Id.; Am.’s Health Rankings, United Health Found., Low-Risk Cesarean Delivery in Texas, https://www.americashealthrankings.org/explore/health-of-women-and-children/measure/low_ risk_cesarean/state/TX (last visited Apr. 1, 2020).
10 As the American Hospital Association has recognized, “‘elective’ simply means a procedure is scheduled rather than a response to an emergency.” Am. Hosp. Ass’n et al., AHA Letter to Surgeon General Re: Elective Surgeries and COVID-19 (Mar. 15, 2020), https://www .aha.org/lettercomment/2020-03-15-aha-letter-surgeon-general-re-elective-surgeries-and-covid19. Johns Hopkins Med., Types of Surgery, https://www.hopkinsmedicine.org/health/treatmenttests-and-therapies/types-of-surgery (“An elective surgery does not always mean it is optional. It simply means that the surgery can be scheduled in advance.”) (last visited Apr. 1, 2020).
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is allowed one support person in the labor and delivery unit and in the postpartum unit. No visitors
or support people are allowed in for prenatal visits or antepartum admissions. 19. Most gynecologic care is medically indicated,11 and thus the decision whether to
postpone care is made after weighing other factors, including the risk to the patient.
20. I understand the Executive Order directs individual physicians to determine
whether it is safe to postpone their patients’ care. I also understand the Executive Order does 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.” 21. Similarly, CMS,12 the American College of Surgeons,13 ACOG,14 and other
professional medical organizations recommend that the decision to postpone non-urgent cases
should be weighed against current and projected COVID-19 cases, PPE supply, and other factors.
22. At present, hospital policies to preserve PPE have been put in place so that adequate
PPE supplies are maintained to manage current patients with urgent or medically-indicated need
while also preserving supplies for a potential COVID-19 surge. Thus, time-sensitive procedures
required to correct gynecologic conditions or to evaluate for or treat malignancy are still being
provided. These procedures include but are not limited to loop electrosurgical excision procedures
11 Am. Coll. of Surgeons, COVID-19 Guidelines for Triage of Gynecology Patients (Mar. 24, 2020), https://www.facs.org/covid-19/clinical-guidance/elective-case/gynecology; ACOG et al,, Joint Statement on Elective Surgeries (Mar. 16, 2020), https://www.acog.org/clinicalinformation/physician-faqs/~/link.aspx?_id=CBA52761BB3B4A6EA5D07729597C0609&_z=z.
12 Sameer Siddiqui, CMS Adult Elective Surgery and Procedures Recommendations, Ctrs. for Medicare & Medicaid Servs., (Mar. 15, 2020), https://www.cms.gov/files/document/31820 cms-adult-elective-surgery-and-procedures-recommendations.pdf.
13 Am. Coll. of Surgeons, COVID-19: Guidance for Triage of Non-Emergent Surgical Procedures (Mar. 17, 2020), https://www.facs.org/covid-19/clinical-guidance/triage; Am. Coll. of Surgeons, COVID-19 Guidelines for Triage of Gynecology Patients, supra note 11.
14 ACOG et al., supra note 11. 6
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(“LEEPs”), colposcopies, hysteroscopies, and cervical dilation with curettage (to manage miscarriage, or for evaluation of abnormal bleeding or intracavitary uterine masses).15 LEEPs are procedures used to remove abnormal cells that may cause cervical cancer. Colposcopies are diagnostic procedures used to detect abnormal cells in the cervix and vagina. Hysteroscopy is a procedure to view the inside of the cervix and uterus for any abnormalities and if necessary remove abnormal tissue.
23. These procedures use minimal PPE: sterile gloves, a surgical gown, and a surgical mask. Given the conservation measures put in place, performing these outpatient procedures does not currently deplete hospital capacity or the PPE that is needed to cope with the COVID-19 pandemic.
24. The PPE used for procedural abortion is not greater than that used for currently allowable procedures. It is similar to that needed for prenatal care visits for patients at the same gestational ages, and most certainly less if one includes unplanned ER visits, labor, and delivery for a pregnancy that is carried to term. As with other outpatient procedures, practitioners providing procedural abortions may wear some or all of the following items: gloves, a surgical mask, and reusable scrubs.
25. The pandemic does not require use of N95 respirators for all procedures. Instead, an N95 mask is used if the patient has COVID-19 risk factors, symptoms, or a known exposure. Consistent with CDC guidance (and the guidance of medical professional organizations),16 if a face mask is needed, a surgical face mask is adequate, and therefore, I use a surgical mask for all
15 However, tubal ligations (other than after a C-section) and insertions of intrauterine devices and contraceptive implants are postponed.
16 Am. Coll. of Surgeons, COVID-19: Elective Case Triage Guidelines for Surgical Care (Mar. 24, 2020), https://www.facs.org/covid-19/clinical-guidance/elective-case.
7
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Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF KAMYON CONNER, M.S.W.

KAMYON CONNER, M.S.W. hereby declares under penalty of perjury that the following

statements are true and correct:

1. I am the Executive Director of the North Texas Equal Access Fund (“TEA Fund”),

a Dallas-based nonprofit organization that provides direct financial assistance to people who want

to end a pregnancy but cannot afford abortion care in Texas.

2. I have provided services at TEA Fund for nearly fifteen years, first as a volunteer

fielding calls for assistance to our hotline, known as the Helpline, from 2006 to 2013, and then as

a Board Member and Intake Coordinator until 2018. In the latter roles, I helped shape the mission

and strategy of the organization based on our clients’ experiences, and I participated in the TEA

Fund’s financial and resource distribution planning .

3. In my current role as Executive Director of the TEA Fund, I oversee our Helpline;

Client Engagement Program, which supports clients throughout the process of terminating a

pregnancy, including in-person support during an abortion procedure; Caller Engagement

Program, which organizes people throughout Texas to advocate for abortion access with dignity,

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Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 3 of 5
including by sharing stories of their abortion experiences; and Communications. These programs are run by six other staff members and over 125 active volunteers.
4. I provide the following testimony based on personal knowledge acquired through my service at the TEA Fund and review of the organization’s business records.
Ongoing Challenges to Obtaining Abortion Care in Texas 5. In 2019, the Helpline received over 6,500 calls from people seeking help paying for an abortion. The calls came from 110 counties in Texas, many of them rural. At least 70% of the callers already had a child. Texas requires most patients to make two trips to obtain abortion care, which imposed transportation and childcare costs on many of the callers while depriving them of wages. For some, efforts to gather resources on their own had forced them to delay their appointments, which only increased the cost of their abortion care because it occurred at a later gestational age. 6. The TEA Fund allocates funds for abortions per week and only provides financial assistance for those scheduled within seven days of a call. A caller can qualify for assistance depending on their financial circumstances, the amount of financial aid they are able to obtain from other sources, and the total cost of the abortion. When a caller qualifies, the TEA Fund sends a financial voucher to the abortion provider with whom the patient’s appointment is scheduled and pays the provider after the patient has received care. In 2019, the TEA Fund provided over $277,000 to assist 924 Texas residents in obtaining abortions. 7. Unfortunately, financial constraints prevent us from providing financial assistance to every caller who needs it and from covering the full cost of the abortion for the callers we can help. In 2019, we were able to provide financial assistance to about one-quarter of the people who requested it. Through our Client Engagement Program, we have observed that some callers who
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Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 4 of 5
receive our assistance experience an emotional strain from having to meet the remaining costs, which makes their overall abortion experience stressful.
Impact of Executive Order 8. The public health crisis precipitated by COVID-19 has exacerbated the difficulties Texans, particularly low-income people and people of color, have affording abortion care. Many of our recent callers are struggling with layoffs and furloughs, dealing with the possibility of eviction, experiencing other unforeseen medical costs, and contending with increased utility bills caused by sheltering at home. 9. I understand that Attorney General Paxton has interpreted an Executive Order by Governor Abbott concerning the public health crisis to ban most abortions. I also understand that this interpretation would eliminate most or all abortion care for my clients, which would have a devastating effect on their well-being. 10. The TEA Fund began committing funding for abortions in Texas for the current seven-day period on Thursday, March 19. The Attorney General publicized its interpretation on Monday, March 23. Between March 19 and 23, we committed funding to more than two dozen clients, many of whom will now be unable to obtain an abortion in Texas while the Executive Order remains in effect. At least four of those clients are over 18 weeks lmp. They will undoubtedly lose the ability to obtain an abortion in Texas before the Executive Order expires on April 21, 2020. 11. The inability to receive an abortion in Texas usually drives TEA Fund clients to seek that care out-of-state, including New Mexico, Colorado, and Louisiana. But long-distance travel is increasingly dangerous and difficult during the public health crisis given the toll of COVID-19 on already-limited resources and the pronounced difficulty of securing childcare
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Case 1:20-cv-00323-LY Document 7-9 Filed 03/25/20 Page 5 of 5 during the crisis. Moreover, my understanding from collaborating with abortion funds and providers in other states is that abortion care is presently unavailable in Louisiana. Clients who are unable to access abortion in Texas or do so in another State are forced to remain pregnant against their will, which can cause them and their families extreme anguish, and potentially forced to carry to term. Dated: March 25, 2020
/S/ Kamyon Conner Kamyon Conner Executive Director TEA Fund
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF ALICIA DEWITT-DICK IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, ALICIA DEWITT-DICK, declare as follows:
1. I am the administrator of Plaintiff Southwestern Women’s Surgery Center (“Southwestern”).
2. Southwestern operates a licensed ambulatory surgical center in Dallas. Southwestern provides medication abortion up to 10 weeks as measured from the first day of the woman’s last menstrual period (“LMP”) and procedural abortions through 21.6 weeks LMP, as well as miscarriage management and contraceptive services. Southwestern provides care to approximately 9000 patients a year.
3. As administrator, I oversee operations at the clinic and am familiar with all aspects of our policies and practices. The facts I state here are based on my experience, my review of Southwestern’s business records, information obtained in the course of my duties at Southwestern, and personal knowledge that I have acquired through my service at Southwestern.

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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 3 of 8
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin the March 22, 2019 Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General on March 23, 2020 to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a patient. I have reviewed the Executive Order and the interpretation by the Attorney General.
5. The Executive Order, effective until 11:59 p.m. on April 21, 2020, although it may be extended, directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
6. Southwestern understands the term PPE to refer to surgical masks, N95 respirators (a face covering designed to block at least 95 percent of very small test particles), sterile and nonsterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. The services Southwestern provides do not involve significant amounts of PPE or deplete PPE.
7. On Monday, March 23, 2020, the Attorney General issued a press release interpreting the Executive Order, titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.” The press release states that the Executive
2
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 4 of 8
Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers four times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
8. Southwestern is uncertain as to the scope of the Executive Order and the subsequent press release by the Attorney General, and, as a result, largely stopped seeing patients on March 23, 2020. The clinic has cancelled approximately 225 appointments for the last two days, March 24 and March 25. Unless we obtain immediate relief, we intend to continue canceling appointments going forward. Southwestern’s Response to COVID-19:
9. Approximately a month prior to the Executive Order, in late February, Southwestern began to take actions within the clinic to address the spread of COVID-19 around the country and developed practices directed at reducing the risk of transmission and preserving PPE.
10. On February 24, 2020, the clinic began screening all patients for potential exposure to COVID-19, using screening questions related to existing respiratory symptoms and recent travel. We instructed staff to stay home if they were experiencing any symptoms associated with COVID-19.
3
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 5 of 8
11. On March 13, 2020, we also began limiting the number of people in waiting areas to ensure social distancing of at least 6 feet between all persons, and implemented staff techniques to minimize the use of PPE, including restricting the use of new surgical masks and gowns.
12. On March 16, 2020, Southwestern began checking the temperatures of all patients upon arrival in addition to continuing to ask patients screening questions regarding their symptoms and travel. Southwestern also began requiring that patients complete admission paperwork and wait in their vehicles to be seen by the physician.
13. On March 18, 2020, we began checking temperatures of staff daily. 14. There have only been a few instances where staff have experienced potential symptoms or contact that raises a low but non-negligible possibility of infection, and we have sent the staff members home. 15. Southwestern has only canceled an appointment for one patient due to concern for a possible COVID-19 infection. 16. While we have a limited number of N95 masks at the clinic, we would only use them if we were treating a patient with a suspected or confirmed COVID-19 infection. We have not used any of these masks to date during the pandemic. 17. Southwestern has also suspended its training program for residents and fellows until the end of April and halted onboarding of new staff. Southwestern Uses Minimal PPE: 18. In 2019, Southwestern performed 8800 abortions, including 2321 medication abortions prior to 10 weeks LMP. Of the procedural abortions, 5689 were performed at or before 14.6 weeks LMP via suction procedure. The remaining 790 were performed from 15 weeks LMP through 21.6 weeks LMP. Southwestern also performed 240 miscarriage management procedures
4
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 6 of 8
in 2019. The clinic does not have 2020 data available yet, but the first months of 2020 are in line with these earlier figures.
19. For consults and ultrasounds, Southwestern typically only uses one pair of nonsterile gloves per patient, but has reduced such use in light of the COVID-19 pandemic. PPE is not typically used for dispensing medication abortion. For procedures prior to approximately 15 weeks LMP, the physician will use 3 non-sterile gloves per patient, and assisting staff might use 2-3 additional pairs of non-sterile gloves per patient. For procedures beyond 15 weeks LMP, the physician typically uses a gown, face shield, and one pair of sterile gloves, and other staff assisting in the procedure wear non-sterile gloves. For some procedures beyond 15 weeks LMP, Southwestern may also use reusable eyewear. Staff assisting with abortion procedures will typically wear 1-2 pairs of shoe coverings every day.
20. Based on Southwestern’s patient load, in an average week, we use the following PPE: a few boxes of non-sterile gloves; approximately 15 pairs of sterile gloves for procedures after 15 weeks LMP; approximately 15 gowns; around 24 pairs of shoe coverings per day; and a handful of simple surgical masks and reusable eyewear.
21. The clinic has a small number of N95 masks on hand. In early March, when the clinic was taking action addressing the COVID-19 pandemic, we were in touch with Dallas County Health and Human Services who recommended that we keep some N95 masks on site. Harm to Southwestern and our Patients:
22. Although abortion is a very safe medical procedure, the health risks associated with an abortion procedure generally increase with gestational age. The complexity of the procedure, the PPE needed to complete the procedure, and the associated expense also increase with gestational age. Our patients generally seek abortion as soon as they are able, but many face
5
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 7 of 8
logistical obstacles that can delay their access to abortion care. Some come from over a hundred miles to receive care at our clinic. Patients need to schedule an appointment, gather the resources to pay for the abortion and related costs, and arrange transportation to a clinic, time off of work, and possibly childcare during appointments. Texas law requires them to make these arrangements multiple times for repeated trips to the clinic, even though most patients could safely obtain care in one visit. These existing delays already result in higher financial and emotional costs for our patients.
23. The COVID-19 pandemic has only exacerbated these burdens. It has limited public transit availability, caused layoffs and other work disruptions, shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing.
24. Many recent patients have expressed gratitude that they were able to receive care with us. Many have expressed that they feel protected by the clinic’s measures, and that they are relieved that the clinic was operating and continuing to provide services that are so time-sensitive and essential.
25. The patients whose appointments have been cancelled in light of the Executive Order and the Attorney General’s interpretation have been extremely upset. Some of the dozens of patients we intended to see this week will be pushed out of eligibility for receiving a medication abortion. Others will be pushed into more complex procedures. And, some may not be able to return for their procedure with us at all.
26. Southwestern reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that our physicians deem necessary to “correct a serious medical condition of … a patient who
6
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Case 1:20-cv-00323-LY Document 7-2 Filed 03/25/20 Page 8 of 8
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,” as permitted by the Executive Order. Our physicians also reasonably fear that the Attorney General will understand the Order to prohibit medication abortions, despite the fact that these are not “procedures” under the common medical understanding of the term, and therefore do not fall within the terms of the Executive Order as understood by our medical staff.
27. Based on this enforcement risk, Southwestern is unsure how to proceed but plans to resume certain appointments where care does not involve new PPE.
28. If the Executive Order, as interpreted by the Attorney General, is enforced, it will delay and deny access to care for our patients. It will, as a result, harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

______________________________ Alicia Dewitt-Dick

7
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JANE DOE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Jane Doe declares the following: 1. I am a 24-year-old college student and reside in Arlington, Texas. My appointment
for an abortion in Texas on March 23, 2020, was cancelled because of Governor Abbott’s Executive Order No. GA-09.
2. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin the Executive Order, as interpreted by the Texas Attorney General to ban most abortions in Texas as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order.
3. The facts I state here are based on my personal experience. 4. I am studying to become a secondary school teacher. I am planning to graduate this spring, but I have not gotten a teaching position yet.

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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 3 of 8
5. Throughout college, I have been waiting tables part-time to support myself. About three weeks ago, I lost my job. Because of the COVID-19 outbreak, my restaurant announced that it would close down for eight weeks. It gave my coworkers and me information about applying for unemployment.
6. The same week I lost my job waiting tables, I became worried that I might be pregnant, even though my partner and I had been using birth control. Even before I took the athome pregnancy test, I knew what I was going to do if it was positive. My partner and I were on the same page: This wasn’t the right time. I had just lost my job. I was still in school. And I would need to start applying and interviewing for new jobs, which I expected would be harder to get if schools knew I was pregnant. And the biggest factor for me was simply that I didn’t want to become a parent right now.
7. Coronavirus was all over the news, but I wasn’t panicked about getting an appointment until I started calling abortion clinics. That’s when I realized it was going to be tough to be seen in a timely fashion. Clinics kept telling me they couldn’t see me for three or four weeks. Eventually, I secured an appointment in Fort Worth for the following week.
8. On Friday, March 20, I went to the clinic alone. I wasn’t allowed to bring my partner because of the social distancing rules in place. In order to limit the number of patients inside the clinic, they actually had us sign in and wait in our cars. I sat in my car in the clinic parking lot for two hours before I was able to enter the building. Lots of other patients were waiting in their cars, too. Meanwhile, anti-abortion protesters stood about 10 feet away with signs and screamed at me and other patients. Later, I heard some nurses talking about how one woman got intimidated and drove off.
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 4 of 8
9. The appointment took five hours. The clinic gave me a sonogram over my belly and took blood. I was under 10 weeks pregnant so I qualified for a medication abortion. But Texas has a 24-hour waiting period, so the clinic couldn’t let me go forward with the medication abortion that day even though I was certain of my decision and did not want to expose myself or anyone else to further risk of infection by having to come in for a second appointment. I had to come back for a second appointment. The soonest they could see me was in four days, which was Tuesday, March 24.
10. I was experiencing severe pregnancy symptoms. I was throwing up every day throughout the day. I wasn’t able to study or eat. I felt so tired I could barely get out of bed. But I had no choice except to wait.
11. The night of Monday, March 23, I got a phone call from the clinic. My second appointment the next day was cancelled. The staffer told me that Gov. Greg Abbott halted all abortions in the state, claiming that medical supplies needed to be saved for other patients. I started to cry, and she cried too. She told me my only option at that point was to go out of state or delay my abortion and possibly be forced to have a baby. I was dumbfounded. I had a plan and everything came crashing down.
12. My partner was with me during the call, and we cried together afterward. Waiting to see if I could get an abortion later in Texas was not an option. I felt so sick. I didn’t want to be pregnant one day longer, and I couldn’t risk the possibility that I would run out of time to have an abortion while the outbreak continued. It seemed to be getting more and more difficult to travel. I also wanted to have a medication abortion so that I could do it in the privacy of my own home with my partner. Because of the clinic’s rules during the COVID-19 outbreak, support companions weren’t allowed in the clinic at all during procedural abortions. The clinic told me that medication
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 5 of 8
abortion wasn’t available after ten weeks of pregnancy in Texas, so I knew that if I wanted to obtain a medication abortion, I needed to act quickly.
13. After the call, my partner and I began researching abortion restrictions in the states nearest Texas. Oklahoma has a 72-hour waiting period so I didn’t want go there. I would have had to make more than one trip during the pandemic to meet that requirement and spend even more than I already had to.
14. We also looked at clinics in New Mexico, which would have been about a ninehour drive each way for me. One was closed, and the others told me they couldn’t see me for three or four weeks.
15. So then we looked at Colorado. I made a bunch of calls. On Monday night at about 11 p.m., I finally was able to make an online appointment with a clinic in Denver that could see me for a medication abortion on Thursday.
16. It’s a 12-hour drive from my house and roughly 780 miles on the road one-way to Denver. My partner couldn’t afford to miss work to accompany me. We were worried that he would have to explain to his boss why he was taking three days away from work. We didn’t want to reveal to his employer that I was having an abortion. Luckily, my partner still has a job.
17. I couldn’t have done the drive alone, and I was scared. My best friend came up on Tuesday from Austin to go with me. She also lost her job at a restaurant a couple weeks ago, so she was free.
18. My partner packed a box of sanitizing supplies for us to take on our trip, and we brought food to help avoid the need to make stops and risk exposure to the virus. My friend and I started out early on Wednesday and drove throughout the day. I rented the cheapest AirBnB I could find in Denver, and we wiped it down with disinfectant when we got there before sleeping.
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 6 of 8
19. My appointment was in the afternoon on Thursday, March 26. I noticed when we arrived at the clinic that two other cars with Texas license plates were in the parking lot. I had to go through the sonogram, bloodwork, and counseling all over again. But since Colorado does not have a 24-hour waiting period, the clinic I went to was able to give me the medication for my abortion without further delay. I took the first pill there and they sent me home with the second pill.
20. My friend and I started the twelve-hour drive home at 3:30 p.m. It felt like we were in a race against time because the clinic recommended that I take the second pill 24 to 30 hours after the time I took the first pill. We didn’t want to take breaks or rest because I was worried about having my abortion in the car.
21. We drove about six hours but had to stop. It was pitch black, and we were exhausted. It was too dangerous for us to keep going. We had to rent a hotel room and stay there until the morning.
22. I got home in the afternoon on Friday, March 27. The provider in Colorado had recommended that I try to get as comfortable as possible before taking the second pill. I wanted to make sure I could eat a meal before taking the medication because I worried I would feel too nauseous afterwards to eat anything. By the time I took the second pill, nearly thirty hours had passed since the first one.
23. I was exhausted, and only then was I able to have my abortion. I passed the pregnancy Friday night at home with my partner.
24. With the cost of the AirBnB, gas, food, and parking, I’ve had to pay a lot more money out of pocket to get this abortion than I should have had to. I’ve spent nearly $1,000,
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 7 of 8
including the cost of the abortion itself, which is not covered by my health insurance. I’ve had to drain my savings to pay these costs.
25. Then there’s the additional stress. Obviously, had this pregnancy not been a factor, I wouldn’t be traveling during a pandemic. I already felt like it was risky for me to travel to a nearby clinic in Fort Worth to have my appointment. Instead, I was forced to drive across the country, to stop at dirty gas stations, to stay in an unfamiliar home, just to get health care. I feel like Texas put me, and my best friend, in danger.
26. With all of this stress and unexpected travel, I haven’t been able to finish my application for unemployment benefits yet, so I probably won’t get a check for at least another week. Even then the benefits will be a fraction of what I made working at a restaurant, and I now have fewer savings to cover the difference.
27. Despite everything I’ve been through this week, I feel incredibly grateful. I had savings. I have a partner with income. I don’t already have kids. I had a best friend with a car who could go with me on a long, unexpected trip. So far I’m not sick. So many Texans don’t have those things right now. And unlike me, many of them are much further along in pregnancy than I was. I have no idea how they’re going to get the abortion care they need. Based on my own experience, I expect many will not. I know I was desperate, and desperate people take desperate steps to protect themselves.
28. I was born and raised in Texas. Right now, I feel let down by my government. I feel like Governor Abbott doesn’t care about me or other patients who need essential abortion care. Why is my life not important enough to him and the other men making these decisions? Frankly, I feel like my constitutional rights were violated when I needed them the most.
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Case 1:20-cv-00323-LY Document 29-1 Filed 03/30/20 Page 8 of 8 29. I want to submit this declaration under a pseudonym because the information I am sharing in this action about my reproductive health care history is private and personal. I would not feel comfortable if this information and my name became public, especially because I will be looking for a job in the coming weeks. I also fear that if this information and my name became public, I would become a target for harassment by anti-abortion protestors. 30. I swear under penalty of perjury that the foregoing is true and correct. Executed March 29, 2020
/s/ Jane Doe* Jane Doe
*I have signed a copy of this declaration with my actual name and given it to Plaintiffs’ attorneys for their records.
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Case 1:20-cv-00323-LY Document 7-3 Filed 03/25/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF ANDREA FERRIGNO ANDREA FERRIGNO hereby declares under penalty of perjury that the following statements are true and correct: 1. I am the Corporate Vice-President with Whole Woman’s Health (“WWH”), a plaintiff in this case. 2. WWH is a consortium of limited liability companies, each incorporated under Texas law. The consortium includes a property management company, healthcare management company specializing in the management of abortion clinics, and a network of abortion clinics. 3. WWH currently owns and operates two abortion clinics in Texas, one in Fort Worth (the “Fort Worth Clinic”) and one in McAllen (the “McAllen clinic”). WWH also owns and operates an abortion clinic in Baltimore, Maryland; Minneapolis, Minnesota; and Alexandria, Virginia.

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4. My responsibilities as Corporate Vice-President include ensuring that each clinic complies with all statutes and regulations concerning the provision of the health services they offer, including abortion care, as well as recruiting physicians.
5. I have worked at WWH in a variety of roles since 2004, when I first joined as a Patient Advocate. As a result, I am well-versed in abortion clinic operations and patient care.
6. I provide the following testimony based on personal knowledge and review of WWH’s business records.
Provision of Abortion Care at the WWH Clinics in Texas 7. Both the Fort Worth and McAllen clinics offer surgical abortions up to 17.6 weeks gestation, as measured from the first day of a patient’s last menstrual period (“lmp”). Texas law prohibits licensed abortion facilities from providing surgical abortions past this gestational age. See Tex. Health & Safety Code § 171.004. 8. Both clinics also offer medication abortions up to 10 weeks lmp. Texas law prohibits the provision of medication abortion past this gestational age. See Tex. Health & Safety Code § 171.063(a)(2).
Use of PPE in WWH Clinics in Texas 9. Texas law requires abortion patients who live within 100 miles of a licensed abortion facility to make two trips to obtain care. See Tex. Health & Safety Code § 171.012(a)(4), (b). During the first visit, we must provide the patient with State-mandated information and perform an ultrasound examination. See id. The physician cannot provide the patient an abortion until the second visit. See id. 10. There is minimal use of personal protective equipment (“PPE”) at the WWH clinics in Texas. Physicians do not use it to provide medication abortions and use sterile gloves and
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surgical gowns to provide surgical abortions. Some physicians also use surgical masks, disposable shoe covers and reusable goggles for dilation & evacuation (“D&E”) abortions.
11. Additionally, physicians do not use PPE to perform an abdominal ultrasound examination before an abortion and use only gloves to perform a transvaginal ultrasound examination before an abortion.
12. After a surgical abortion, a staff member examines the tissue removed from the patient in the pathology laboratory. To do so, the staff member may use gloves, a surgical gown, face shield, or disposable shoe covers.
13. The WWH clinics in Texas do not have or intend to acquire any N-95 respirators, which are face coverings designed to block at least 95 percent of very small test particles.
14. Our abortion patients rarely require hospitalization. WWH’s Response to the COVID-19 Public Health Crisis
15. WWH has adopted certain policies to help ensure the safety of its patients and staff during the COVID-19 public health crisis.
16. We screen staff members for symptoms of COVID-19 and require anyone who is exhibiting them or has been exposed to someone with a confirmed case to self-quarantine for at least fourteen consecutive days.
17. Additionally, staff members screen all potential patients by phone for symptoms of COVID-19. If a patient is exhibiting symptoms, we ask them to self-quarantine, contact their primary care provider, and not visit the clinic unless they have been asymptomatic for at least fourteen consecutive days.
18. Further, we limit the number of people in a clinic at any given time and help ensure patients keep a safe distance from each other in the waiting room and recovery area.
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19. We also train staff on best practices to prevent the spread of infection and require them to observe strict practices for handwashing and disinfecting surfaces. Texas law prohibits the provision of State-mandated information using telemedicine. See, e.g., Tex. Occ. Code § 111.005(c); Tex. Health & Safety Code § 171.063(c); 25 Tex. Admin. Code § 139.53(b)(5).
Effect of the Governor’s Executive Order 20. On March 22, 2020, Governor Abbott issued Executive Order GA-09 (“Executive Order”), which concerns hospital capacity during the COVID-19 public health crisis, and applies until 11:59 p.m. on April 21, 2020, assuming it is not renewed. The Executive Order directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order clarifies that the prohibition does 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.” Id. 21. The Executive Order does not define PPE. We at WWH understand PPE to include surgical masks, N-95 respirators, sterile and non-sterile gloves, disposable protective eyewear, surgical gowns, and disposable shoe covers. 22. Both the Fort Worth and McAllen clinics are willing and able to continue providing abortion care consistent with the Executive Order. 23. On March 23, 2020, however, WWH received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Paxton, entitled
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“Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
24. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
25. WWH’s clinics in Texas were concerned that they would be prosecuted given the Attorney General’s interpretation of the Executive Order as prohibiting “any type of abortion” even though the Executive Order permits abortions that physicians have determined are necessary to “correct a serious medical condition 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,” and/or those that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 health disaster.”
26. On March 24, the Fort Worth Clinic cancelled appointments for 13 abortion patients, who now are unable to obtain care anywhere in Texas. The following day, the clinic cancelled another 18 appointments for abortion patients, who now are unable to obtain an abortion in the State.
27. On March 24, the McAllen Clinic cancelled appointments for two abortion patients, who now are unable to obtain care anywhere in Texas. The following day, the clinic cancelled
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another two appointments for abortion patients, who now are unable to obtain an abortion in the State.
28. People continue to seek appointments at both clinics. We must turn them away unless we are certain that no aspect of their care will involve the use of PPE. Between today and April 21, 2020, we anticipate turning away over 100 patients from the Fort Worth Clinic and at least 40 patients from the McAllen Clinic.
29. Each of our abortion clinics has a maximum capacity based on the size of our facility and the availability of our physicians. The maximum capacity of the Fort Worth Clinic is 130 patients per week and the maximum capacity of the McAllen Clinic is about 60 patients per week. Even if we were able to resume abortion care on April 22, 2020, it would take us a significant amount of time to treat all of the patients that we will have to turn away between now and then, in addition to our regular patient load.
Impact on Patients 30. A majority of the patients at the Fort Worth Clinic are people of color and Spanish speakers. They hail from all over Texas. 31. A majority of the patients at the McAllen Clinic are Spanish speakers and many face immigration-related restrictions on traveling outside of the Rio Grande Valley. 32. The patients at both clinics seek abortion care for a variety of reasons. Many are low-income, uninsured, and the parents of dependent children. 33. And many would suffer substantial burdens if they were forced to seek abortion care out-of-state ordinarily. Such long-distance travel is virtually impossible now due to travel restrictions, more severe financial constraints for those in need of abortion care, school closures, and the unlikelihood of finding childcare.
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34. Consequently, our patients and would-be patients will be forced to live with an unwanted pregnancy for an indefinite amount of time—if they are able to obtain an abortion at all. This can involve physical symptoms, such as morning sickness, considerable stress and anxiety, and the increased possibility that an abusive partner or family member will learn of the pregnancy.
35. People who are delayed past ten weeks lmp will no longer be able to obtain a medication abortion. See Tex. Health & Safety Code § 171.063(a)(2). Similarly, those who are delayed past 14-16 weeks lmp will no longer be able to obtain an aspiration abortion, a type of surgical abortion, and will instead have to receive a D&E, which is a lengthier and more complex procedure. Those who are pushed past 18 weeks lmp, see Tex. Health & Safety Code § 171.004, will no longer be able to obtain an abortion at an abortion clinic, while those who are delayed past 22 weeks lmp will no longer be able to obtain an abortion in Texas at all, absent a medical emergency. See Tex. Health & Safety Code § 171.044.
36. The medical risks of abortion and pregnancy, as well as the costs of abortion care, increase with gestational age.
37. Thus, the patients that WWH will be forced to turn away for fear of prosecution will suffer in significant and lasting ways.

Dated: March 25, 2020

/S/Andrea Ferrigno Andrea Ferrigno Corporate Vice-Present Whole Woman’s Health

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Case 1:20-cv-00323-LY Document 49-4 Filed 04/02/20 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, ​et al​.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, ​et al​.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF CLORA JOHNSON IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I, Clora Johnson, declare as follows: 1. I am the General Manager for Plaintiff Planned Parenthood South Texas Surgical
Center, where I oversee the operations of three facilities that provide abortion care. 2. I submit this declaration in further support of Plaintiffs’ motion for a preliminary
injunction, which seeks to enjoin Executive Order No. GA-09, as applies to previability abortion care, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements.
3. The facts I state here are based on the conversations I have had directly with patients to cancel their abortion appointments after the Texas Attorney General issued his press release regarding the Executive Order, as well as conversations I had on March 31, 2020, after the Fifth Circuit Court of Appeals stayed the District Court’s temporary restraining order. If called and sworn as a witness, I could and would testify competently thereto.

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4. As of the end of the day on March 31, 2020, PPST’s health centers had cancelled 112 abortions as a result of the Executive Order.
5. I have worked for 19 years with patients who are facing some of the most difficult circumstances of their lives—and so I am accustomed to talking to people in crisis. However, the conversations I have had over the last few days, when telling people that their appointments are suddenly cancelled and that they can no longer obtain abortion services in Texas, have been some of the most difficult conversations of my life.
6. Almost every patient I have spoken with has cried and all have been devastated. 7. Many of these patients have lost their jobs because of the pandemic and they told me they do not know how they are supposed to continue a pregnancy while trying to support themselves and their families without a job. Some patients who have jobs are concerned that their pregnancies will cause them to lose their jobs, particularly where they are suffering pregnancy-related symptoms that make it difficult for them to continue working. They do not know how they are going to survive or how they are supposed to support themselves and their families, let alone support a pregnancy. 8. I know from conversations that at least some patients, after being denied care in Texas, travelled out of state, including by air travel, to obtain their abortion care. I know of at least four patients who traveled to Colorado to obtain care by plane. Two of these four patients said that they were afraid of flying during the COVID-19 pandemic, but that they had no other choice. 9. I know of at least three patients who traveled to New Mexico—roughly an eleven hour drive—though my understanding is that appointments there are scarce.
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10. I know that at least three of the patients who traveled out of state were forced to do so because their pregnancies were so far along that they could not wait until the Executive Order’s current expiration date in order to obtain care (even assuming the order does not get extended). These are only the patients who have told us that they are travelling out of state, I can only imagine how many others of our patients who have been turned away are currently trying to obtain out-of-state abortion care.
11. Every time I have to call one of these patients to cancel an appointment, I know it is causing them to experience a major change in their life, one that could seriously harm them, their health and their future. I do not know what to say to them—what do I even say to someone whose future I’m throwing into tumult? I can only apologize that they have to go through this.
12. In my role, I am familiar with how abortion care is scheduled in our health centers. Although we try very hard to schedule patients as quickly as we can, sometimes that is not possible, even in the absence of a pandemic. Even if the Executive Order is not extended beyond its current expiration date, I am worried that all the patients who have not been able to get abortion care will suddenly try to get appointments at the same time, and that this will create a multi-week backlog. If that happens, not all patients will be able to receive care, and many others will be delayed far longer than the Executive Order requires.
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Case 1:20-cv-00323-LY Document 7-5 Filed 03/25/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JESSICA KLIER IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION JESSICA KLIER, declares under penalty of perjury that the following statements are true
and correct: 1. I am the Administrator at Austin Women’s Health Center and Brookside
Women’s Medical Center, a position that I have held for 16 years. Along with the Medical Director, I provide overall leadership for the clinic. My responsibilities include carrying out the clinic’s organizational goals, developing and implementing clinic policies and procedures with operational oversight of financial and budgetary activities, and ensuring compliance with all regulatory agencies governing health care delivery.
2. Austin Women’s Health Center is a licensed abortion facility and Brookside Women’s Medical Center is a gynecological and primary care practice. Together, these two facilities (collectively “Austin Women’s”) have provided high-quality reproductive services to Texas women for over 40 years. Austin Women’s provides medication abortion up to 70 days of gestation and procedural abortions (sometimes referred to as “surgical abortions”) up to 17

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weeks, 6 days as dated from the first day of the patient’s last menstrual period. Austin Women’s also provides contraception, miscarriage management, and gynecologic surgical procedures, including colposcopies, biopsies, and loop electrosurgical excision procedures (“LEEPs”), in which a layer of cervical tissue is removed to diagnose and treat cancer or precancerous cells.
3. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a pregnant person. I have reviewed the Executive Order and a press release by the Texas Attorney General interpreting it.
4. The facts I state here are based on my experience, my review of Austin Women’s business records, information obtained in the course of my duties at Austin Women’s, and personal knowledge that I have acquired through my service at Austin Women’s.
5. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does not apply to “any procedure that, if performed in accordance with the commonly accepted standard of clinical
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practice, would not deplete the hospital capacity or the personal protective equipment [“PPE”] needed to cope with the COVID-19 disaster.” Id.
6. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators, sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. Austin Women’s stocks surgical masks, non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. We also have a small number of N95 respirators that we generally do not use.
7. On Monday, March 23, 2020, Austin Women’s received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton, entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
8. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers four times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
9. In 2019, Austin Women’s performed 3058 abortions, 1601 of which were medication abortions.
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10. In January and February 2020, Austin Women’s performed 570 abortions, 309 of which were medication abortions.
11. Neither medication nor procedural abortion requires extensive, if any, PPE or otherwise would deplete PPE necessary to address the current pandemic. Before the COVID-19 outbreak, Austin Women’s used no PPE for medication abortion, and limited PPE for procedural abortions—non-sterile gloves and disposable shoe covers for most procedures, with the addition of gowns, face masks, and face shields for second trimester procedures.
12. An ultrasound or laboratory exam, including one that accompanies medication or procedural abortion at Austin Women’s, requires only non-sterile gloves, similar to what are used in nearly all medical visits by health care providers.
13. Since the COVID-19 outbreak began, Austin Women’s has taken extra steps to conserve PPE while protecting our patients and staff from potential sources of transmission. Austin Women’s primary physician, for example, has been wearing and reusing a single N95 mask during all face-to-face interactions with patients and switched to using washable gowns during procedural abortions.
14. We have also taken numerous steps to help prevent the spread of COVID-19 infection in our facility. We have taken measures to ensure social distancing, including utilizing the large outdoor space around our clinic, where, where the weather is pleasant, we have set up chairs at least six feet apart. Inside the facility we have similarly spaced chairs in the waiting room at least six feet apart. We now ask patients to fill out paperwork and wait for their procedure in their car. In addition, although we normally welcome support companions accompanying abortion patients, we have decided not to allow such companions (except parents
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accompanying minors or language translators) to enter our facility to reduce the number of overall people exposed to one another.
15. We have also begun spacing out appointments to reduce crowding in our facility and have deactivated the automatic online appointment feature on our website to prevent double booking. We have also changed the patient flow in our facility so that each patient stays in their assigned patient room for the duration of their visit, instead of going back and forth to the waiting room in between visits with different staff members.
16. We have also been screening patients both on the phone when they make their appointment and upon entry for potential infection, including: asking each patient if she has a fever or a cough, asking if she has been exposed to potential COVID-19 patients, and taking each patient’s temperature upon entry to the facility. Beginning this week, we were planning to start screening staff members each day for fever and other potential symptoms.
17. Based on the risk of enforcement of the Executive Order, we have already had to cancel nearly 100 abortion patient appointments, though we are still seeing some patients including for follow-ups and urgent gynecological care. If we are unable to see certain patients for the rest of the week, we will need to cancel dozens of additional patient appointments.
18. Many, if not all of these patients, in addition to the patients Austin Women’s planned to serve through April 21, will be significantly burdened by the delays in their access to care. Many will be unable to access abortion at all, while others will be forced to travel out of state. All will suffer increased risks to their health by the delay in access to abortion care. Many will also face increased costs related to abortion, as their abortion access is pushed to later gestational points when abortion is more expensive and may require a two-day procedure, instead of one, and thus additional use of PPE.
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I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Jessica Klier

6
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Case 1:20-cv-00323-LY Document 7-6 Filed 03/25/20 Page 2 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF KEN LAMBRECHT IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Ken Lambrecht, declare as follows:
1. I am the CEO of Planned Parenthood Greater Texas, Inc. (“PPGT”) as well as of its related entity, Planned Parenthood of Greater Texas Surgical Health Services (“PPGTSHS”). I am responsible for the management of these organizations and therefore am familiar with our operations and finances, including the services we provide and the communities we serve.
2. PPGT is a not-for-profit organization incorporated in Texas and headquartered in Dallas, Texas. It operates health centers throughout Central and North Texas, including Austin, Dallas, El Paso, Fort Worth, Paris, Tyler, Waco, and surrounding communities. PPGT provides comprehensive reproductive health care services, including birth control, emergency contraception, testing and treatment for sexually transmitted infections (STIs), pregnancy testing and prenatal referrals, clinical breast exams, breast and cervical cancer screenings, PrEP, PEP,

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colposcopy, Loop Electrosurgical Excision Procedure (LEEP), and condyloma treatment. PPGT also provides Gender Affirming Hormone Therapy and hormone replacement therapy.
3. An ancillary of PPGT, PPGTSHS, also provides medication and procedural abortion at three health centers.
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09, as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, a press release by the Texas Attorney General interpreting it, and the Emergency Rule.
5. The facts I state here are based on my experience, my review of PPGT and PPGTSHS business records, information obtained in the course of my duties at PPGT and PPGTSHS, and personal knowledge that I have acquired through my service at PPGT and PPGTSHS. If called and sworn as a witness, I could and would testify competently thereto. The Executive Order and Threatened Enforcement
6. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.”
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Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
7. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, protective eyewear, gowns, and shoe covers.
8. PPGTSHS has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit A. That policy permitted PPGTSHS to continue offering procedural and medication abortion, consistent with the Executive Order’s purpose and plain language and the views of trusted national medical organizations.
9. On Monday, March 23, 2020, PPGTSHS received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton that interprets the Executive Order and which threatens abortion providers with enforcement measures if they violate the order. PPGTSHS’ Provision of Abortion Care
10. In 2019 PPGTSHS performed 6,982 abortions. Of those, 1,643 occurred beyond 10 weeks LMP, and were therefore necessarily performed as procedural abortion. Of those 5,339 occurring before 10 weeks LMP, 1,668 were done by procedural abortion and the remainder by medication abortion.
11. In January and February 2020, PPGTSHS performed 924 abortions, 285 of which occurred beyond 10 weeks LMP and were therefore necessarily performed as procedural abortions.
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Of those 639 abortions occurring before 10 weeks LMP, 197 were done by procedural abortion and the remainder by medication abortion.
12. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. And while procedural abortion at PPGTSHS requires the use of five non-sterile gloves for each procedure, a procedural mask that includes protective eyewear (one per provider per day, unless a mask becomes soiled), disposable gowns and hair cover (one per provider per day, unless they become soiled), and disposable shoe covers, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.1 For an ultrasound or laboratory exam, including one that accompanies medication or procedural abortion, our providers currently use non-sterile gloves. PPGTSHS does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID19 pandemic.
13. PPGTSHS does not provide inpatient care, nor is it set up to do so. PPGTSHS’ Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
14. PPGTSHS is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
15. Since the COVID-19 outbreak, PPGTSHS has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the
1 Per CDC guidance, PPGTSHS provides patients for whom there is a concern for COVID19 or other upper respiratory disease with a mask. Ctrs. for Disease Control & Prevention, Frequently Asked Questions about Personal Protective Equipment (Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html.
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spread of COVID-19 in the communities where we offer services. Even before the Governor’s order, for example, we had excluded residents and medical students from observing or participating in surgeries or procedures, which reduced the number of individuals requiring PPE. As a result of the outbreak, we have reduced our patient volume to ensure that we comply with current social-distancing recommendations. In addition, although in normal times we welcome support companions accompanying abortion patients, we have decided not to allow such companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
16. We have also made changes to the flow of patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever. Only those individuals who are positively screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a nurse will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
17. PPGTSHS reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that PPGTSHS’s physicians have determined are necessary to “correct a serious medical condition 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,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
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18. Based on this enforcement risk, PPGTSHS cancelled twenty-two medication abortions and six procedural abortions on Tuesday, March 24. Even if each one of these patients were able to access abortion after the order’s current expiration date (i.e., even if the order is not extended), many of the medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE), and five of the six procedural abortion patients would require a comparatively more complicated procedural abortion method known as the D&E (or Dilation & Evacuation) technique. That technique requires more time in the clinic and a larger number of staff than aspiration abortion. Moreover, because these patients would continue to be pregnant for a longer period of time, they would be at increased risk of negative health outcomes if they are diagnosed with COVID-19.2
19. Between Wednesday and Friday of this week, PPGTSHS has seventeen medication abortions and eleven procedural abortions scheduled. Even if each one of these patients were able to access abortion after the order’s current expiration (i.e., it is not extended), many medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE). One of the procedural abortion patients would be beyond the legal gestational limit for abortion in Texas, another would be within days of that limit, and two others would be more than twenty weeks pregnant.
20. PPGTSHS will cancel non-emergency future surgical abortion appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, because of the AG’s interpretation of the Executive Order, we have
2 Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq.html.
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Case 1:20-cv-00323-LY Document 7-6 Filed 03/25/20 Page 8 of 12 cancelled all non-emergency medication abortions until we obtain clarity on the scope of the Executive Order or the Court grants relief.
21. I declare under penalty of perjury that the foregoing is true and correct.
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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JUDY LEVISON, M.D., M.P.H., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I, Judy Levison, M.D., M.P.H., do declare as follows: 1. I am a board-certified obstetrician and gynecologist (“OB/GYN”) and have
practiced medicine in the field of obstetrics and gynecology for thirty-eight years. In that time, I have delivered many thousands of babies. I am licensed to practice medicine in the State of Texas and am in good standing with the Texas Medical Board. A copy of my curriculum vitae is attached as Exhibit A.
2. I graduated from Tufts University School of Medicine, obtained a Master’s Degree in Public Health from the University of Texas School of Public Health, and completed my medical residency in obstetrics and gynecology at the University of Washington.
3. I am a member of the American College of Obstetricians and Gynecologists (“ACOG”) and the American Academy of HIV Medicine (“AAHIVM”).
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4. I make this declaration based upon my education, training, practical experience, and personal knowledge that I have obtained as an OB/GYN; my attendance at professional conferences; review of relevant medical literature; and conversations with other medical professionals. I am competent to testify thereto.
5. The statements in this declaration are attributable solely to me; I do not speak on behalf of my employer or any institution or organization with which I am affiliated.
6. As a result of my extensive experience in the field of obstetrics and gynecology, as both an academic and a practitioner, I am familiar with the standard of care for both abortion and obstetrics, including prenatal care and labor and delivery. Specifically, I am familiar with the hospital resources and the amount of personal protective equipment (“PPE”) required to provide such care safely. I am also quite familiar with the complications that can arise during pregnancy and childbirth.
7. Based on my experience and knowledge of obstetrics and gynecology practice in Texas, the provision of abortion care will not deplete hospital capacity or PPE needed to fight COVID-19. Abortion Care Does Not Deplete Hospital Capacity
8. Abortion care does not deplete hospital capacity. Pregnant patients need medical care, whether that care is abortion care, prenatal care, or delivery. Each of those things may lead to hospitalization, but abortion care is significantly less likely to result in hospitalization than continuing to carry a pregnancy, particularly doing so to term, or experiencing a serious pregnancyrelated complication. Some common examples of potentially life-threatening pregnancy-related complications that will result in hospitalization include preeclampsia, placenta previa, and pulmonary embolism.
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9. Carrying a pregnancy to term is a significant months-long medical event which, for the vast majority of people, culminates in a multi-day hospitalization. By contrast, abortion almost never requires hospitalization, either to provide abortion safely or to treat the rare complication that arises. Indeed, many complications from abortion can be treated out-patient, at the clinic, and do not require hospitalization.
10. Moreover, even leaving labor and delivery aside, a pregnancy is much more likely to result in a visit to a hospital than an abortion. Based on published literature and my experience, at least twenty percent of pregnant patients will visit a hospital at some point prior to delivery, and some patients will visit the hospital for evaluation or treatment on multiple occasions.1 By contrast, I rarely see patients hospitalized for abortion complications.
11. Furthermore, if a patient attempts a self-managed abortion using unsafe methods, this may result in hospital care as well. In Texas, abortion is all but banned after twenty-two weeks LMP. Thus, some patients cannot wait three weeks for the Executive Order’s stated expiration in order to obtain a legal abortion. While some of those patients will likely try to travel out of state for care (despite the risks of traveling long distances during the COVID-19 pandemic), I fear others may turn to unsafe methods to try and induce their own abortions. Abortion Care Does Not Deplete PPE Needed to Fight the COVID-19 Pandemic
12. More PPE is used in prenatal and intrapartum care than in abortion care, whether medication abortion or procedural abortion. As noted, pregnant people need medical care, whether
1 See, e.g., Shayna D. Cunningham et al., Association Between Maternal Comorbidities and Emergency Department Use Among a National Sample of Commercially Insured Pregnant Women, 24 Acad. Emergency Med. 940, 942 (2017); Kimberly A. Kilfoyle et al., Non-Urgent and Urgent Emergency Department Use During Pregnancy: An Observational Study, 216 Am. J. Obstetrics & Gynecology 181.e1 (2017); Urania Magriples et al., Prenatal Health Care Beyond the Obstetrics Service: Utilization and Predictors of Unscheduled Care, 198 Am. J. of Obstetrics & Gynecology 75.e1 (2008).
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in the form of abortion care, prenatal care, or delivery. Abortion care uses less PPE than prenatal care, let alone care for a pregnancy complication or for labor and delivery.
13. Prenatal care generally involves multiple visits, which may include physical examinations (including pelvic exams), ultrasounds, and blood draws for genetic testing—each of which requires the use of, at the very least, one pair of disposable gloves per clinician seen.
14. Some pregnant patients require more, or different, prenatal care, which may involve more PPE, such as when there is a complication with the pregnancy or when the patient has other risk factors. Some conditions require substantially more blood draws, such as pregnant patients with HIV or preeclampsia. Each of those blood draws requires a set of disposable gloves.
15. If the Executive Order is extended beyond its current expiration date, it will result in even greater use of PPE. Labor and delivery requires substantial PPE, particularly given the number of medical staff involved in even uncomplicated deliveries. For a vaginal delivery, the patient will be assisted by, at the very least, a physician (or midwife) and a nurse, though frequently it will be four or more individuals. The primary personnel must wear PPE, including a gown, gloves, shoe covers, and often surgical masks. After an uncomplicated vaginal delivery, the patient and her baby typically remain in the hospital for about forty-eight hours.
16. Delivery by cesarean section (“C-section”), which is common, requires substantially more staff and more PPE than vaginal delivery, as a C-section is an abdominal surgery with an inpatient recovery period of two to four days. For a C-section, personnel involved will generally include an OB/GYN, an assistant, a scrub tech, a circulating nurse, an anesthesiologist, and very possibly a neonatal team. Each of these personnel generally wear PPE, including a surgical mask and gloves, with some wearing gowns and shoe covers as well.
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17. For deliveries for patients with confirmed or suspected COVID-19 infection, all personnel wear full PPE, including masks, gloves, gowns, shoe covers, and face shields. Preventing People from Obtaining Abortion Care Does Not Make Sense from a Public Health Perspective
18. I understand the need to conserve PPE and to reduce hospitalizations during this public health crisis. Like medical practitioners around the country, I am doing my part in my own practice. As required by the Executive Order, I am cancelling routine visits and procedures that can be delayed, based on my best medical judgment. However, pregnancy-related medical care is urgent and time-sensitive by its very nature. While some care can be provided remotely by telehealth, much prenatal and postpartum care cannot, nor can it wait. Thus, most prenatal and postpartum care is continuing, though measures are being taken to reduce the risk of transmission, including by spacing out appointments to ensure that waiting rooms are not crowded.
19. Typically, the full course of prenatal care may involve between ten and fourteen prenatal visits, but given the COVID-19 pandemic, my colleagues and I have attempted to reduce that number of visits where possible. Some visits we can conduct by telehealth, such as follow-up consultations, chart checks, or lab result reviews. Because obstetric care requires blood draws and ultrasounds, as well as other in-person diagnostics, it is not possible to conduct most prenatal appointments via telehealth.
20. In my opinion, preventing people from obtaining abortion care does not make sense from a public health perspective.
21. As described above, requiring people to continue unwanted pregnancies utilizes more PPE and more hospital resources than abortion care—particularly, but certainly not only, in the circumstance where people are required to carry those pregnancies to term. Indeed, even if
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Case 1:20-cv-00323-LY Document 49-7 Filed 04/02/20 Page 7 of 35 patients can ultimately obtain an abortion after the Executive Order expires, many will be so far along that they may require a two-day procedure, meaning that twice as much PPE will be used.
22. Moreover, it is my understanding that pregnant people with any upper respiratory infection may be more likely to experience serious symptoms from the disease than a non-pregnant patient, which in turn makes her more likely to need hospital care than someone who is not pregnant, and more likely to die.
23. Finally, if patients cannot obtain abortions in Texas, that will not stop most of them from seeking to terminate their pregnancies. Some will travel long distances during the pandemic to try and obtain care elsewhere. Some, I fear, will turn to unsafe means to induce their own abortions. Neither is a positive public health outcome.
24. I declare under penalty of perjury that the foregoing is true and correct.
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EXHIBIT A
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Judy Levison, MD, MPH Baylor College of Medicine
Northwest Community Health Center 1100 West 34th St. Houston, TX 77018
jlevison@bcm.edu

I. GENERAL BIOGRAPHICAL INFORMATION

A. Personal

1. Name: Judy Levison, M.D., M.P.H.

2.

citizenship: U.S.

B. Education 1. Undergraduate education 1968-1972 Tufts University

Medford, Massachusetts 2. Medical education
1972-1976 Tufts University School of Medicine Boston, Massachusetts
3. Postgraduate training 1977-1978 Internship, Internal Medicine St. Elizabeth's Hospital (Tufts University affiliated hospital) Brighton, Massachusetts

1978-1981 Residency, Obstetrics and Gynecology University of Washington Seattle, Washington

2005-2010 Masters in Public Health University of Texas School of Public Health Houston, Texas

C. Academic appointments 1. Faculty positions at BCM 2015-present Professor, Baylor College of Medicine, primary appointment to the Department of Obstetrics and Gynecology and secondary appointment to the Department of Family and Community Medicine 1-14-20

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2007-2015 Associate professor, Baylor College of Medicine, primary appointment to the Department of Obstetrics and Gynecology and secondary appointment to the Depar tment of Family and Community Medicine 2000-2007 Assistant professor, Baylor College of Medicine, Department of Family and Community Medicine with joint appointment to the Department of Obstetrics and Gynecology 2. Previous faculty positions at other institutions 1996-1999 Assistant professor, Department of Obstetrics and Gynecology, Santa Clara Valley Medical Center, San Jose, California and Stanford University Medical Center, Stanford, California 3. Faculty appointments at other institutions while at BCM 2014-present Consultant to University of California San Francisco (UCSF) Clinical Care Center Perinatal Hotline D. Other advanced training/experience
1. Formal sabbatical leave: none 2. Other specialized training following academic appointment
2005-2010 Masters in Public Health University of Texas School of Public Health Houston, Texas
E. Other information 1. Honors or awards a. 2004 BCM Department of Obstetrics and Gynecology Teaching award b. 2005 Council on Resident Education in Obstetrics and Gynecology (CREOG) Excellent Resident Education Award c. 2005 BCM Department of Obstetrics and Gynecology Teaching Award d. 2006 BCM Department of Obstetrics and Gynecology Excellence in Resident Teaching Award e. 2006 Bradley Scott Award for Excellence in HIV Care, Houston f. 2010 American College of Obstetricians and Gynecologists (ACOG) Community Service Award, ACOG 58th Annual Clinical Meeting, San Francisco g. 2011 BCM Obstetrics and Gynecology Residency Class of 2011 Humanitarian Award h. 2012 BCM Family Medicine Residency Teaching Award i. 2013 Houston Woman Magazine “Wise Woman” Award j. 2014 BCM Fulbright and Jaworski Teaching Award k. 2014 BCM Institute for Clinical and Translational Research (ICTR) Clinical Investigator Award l. 2019 Inaugural Department of Obstetrics and Gynecology Professionalism
Award
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2. Board eligibility/certification 1984 Board certified (lifetime), American Board of Obstetrics and Gynecology 1997 Voluntary recertification, American Board of Obstetrics and Gynecology 2006 Voluntary recertification, American Board of Obstetrics and Gynecology 2007 Voluntary recertification, American Board of Obstetrics and Gynecology 2008 Voluntary recertification, American Board of Obstetrics and Gynecology 2010 Voluntary recertification, American Board of Obstetrics and Gynecology 2013 Voluntary recertification, American Board of Obstetrics and Gynecology 2016 Voluntary recertification, American Board of Obstetrics and Gynecology 2018 Voluntary recertification, American Board of Obstetrics and Gynecology
2002-present Certification as HIV specialist, American Academy of HIV Medicine 3. Other non academic positions
1981 – 1982 Attending physician Group Health Cooperative Seattle, Washington
1983 – 1995 Private Practice Everett, Washington Private practice with special interest in high risk obstetrics and gynecologic surgery
2004 Consultant to Secure the Future (prevention of mother to child transmission of HIV (PMTCT) projects): Mbabane, Swaziland, March 2004 (three weeks) Katima Mulilo, Namibia, November 2004 (four weeks)
2006 Consultant to American International Health Alliance (AIHA): Krivy Rih, Ukraine (one week)
II. RESEARCH INFORMATION
A. Research support 1. Trichomonas and HIV a. Title: Trichomonas recurrence among HIV-positive women b. Funding agency: National Institutes of Health c. Investigator relationship: Co-principal investigator (site PI); principal investigators David Martin PI/Patty Kissinger –Project 4 PI d. Dates of funding: 01/01/07 through 08/31/09 e. Annual total direct cost $86,500
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f. NIH grant to Tulane University/Louisiana State University (LSU) with subcontract from Tulane to BCM. Gulf South STI/Topical Microbicide Cooperative Research Center—Project 4/Project number 1 U19 AI61972-01
2. Prevention of Perinatal HIV Transmission a. Title: Texas Rapid-testing Implementation At Delivery (TRIAD) project— program originally developed to introduce rapid testing to Houston hospitals for patients who present with no prenatal care; now centered on education of clinicians in Texas about prevention of perinatal HIV transmission. Current focus: development of FIMR (Fetal and Infant Mortality Review) adapted for HIV—to analyze root causes of perinatal HIV transmission in Texas and direct findings to institutions that can effect change b. Funding agency: Centers for Disease Control (CDC) via Texas Department of Social and Health Services (DSHS) c. Investigator relationship: Principal investigator d. Dates of funding: 01/01/07 through present e. Annual total direct cost $120,000-140,000 g. Grant from CDC to Texas Division of HIV/STD with contract to Harris Health System. Contract number 2007-021777-001
3. Education on HIV Perinatal Transmission Prevention a. Title: HIV Perinatal Transmission Prevention--development of five online interactive modules (2 hours of CME/CNE) to educate Texas obstetric providers and nurses about standard of care prenatal HIV and syphilis testing. Working in conjunction with Microassist to produce interactive videos http://www microassist com/ b. Funding agency: Centers for Disease Control (CDC) via Texas Department of Social and Health Services (DSHS) c. Investigator relationship: Principal investigator d. Dates of funding: 09/01/10-12/31/10 e. Annual total direct cost $55,824 f. Grant from CDC to Texas Division of HIV/STD with contract to Harris County Hospital District. Supplement to contract number 2007-021777-001
B. National scientific participation 1. Journal editorial boards
2012-present: Have reviewed manuscripts for Journal for Acquired Deficiency Syndromes (JAIDS), American Journal of Obstetrics and Gynecology (AJOG), PLoS ONE, HIV/AIDS Research and Palliative Care, Lancet ID, Journal of Perinatology, Pediatrics, Sexually Transmitted Infections, Clinical Infectious Diseases, Journal of the International AIDS Society, Law and Ethics
2. Review panels 2011-present: Elimination of Mother to Child Transmission of HIV Panel, sponsored by CDC
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2013-present: Scientific Advisory Council to the Ryan White Planning Council and Community Planning Group, Houston, Texas
2013 and 2014: National Institutes of Health (NIH) Office of Aids Research: review of the women and girls section of the proposed FY 2015 Trans-NIH Plan for HIV Research
2013 and 2014: Invited judge, National Undergraduate Global Health Technologies Design Competition, Rice University, Houston, Texas
2013-present: Invited member, The DHHS Panel on Treatment of HIV-Infected Pregnant Women and Prevention of Perinatal Transmission/Working Group of the Office of AIDS Research Advisory Council (OARAC)—reviews and updates national perinatal HIV guidelines
3. Professional societies American Congress of Obstetricians and Gynecology American Academy of HIV Medicine
4. Invited lectures/presentations (those marked with * are refereed) National *Levison, J., Peters, M., Hansen, I., Lewis, S. Mistakes We Made/Lessons We Learned. Poster and oral presentation at Elements of Success/International Conference on Adherence to Antiretroviral Therapy, Dallas, Texas, December 5, 2003.
*Levison, J. and McFarlane, J. Houston, First to Implement Labor and Delivery Rapid HIV Testing in Texas. Poster presented at CDC Perinatal Conference on Promising Practices, Atlanta, Georgia, June 15-16, 2005.
*Levison, J., Peters, Y., and Moore, A. The HIV-Specific Ob-Checklist: Management and Communication Tool. Poster presented at Treatment & Management of HIV Infection in the United States Conference, Atlanta, Georgia, September 15-18, 2005.
*Levison, J., Peters, Y., and Trimble, D. A Model for Prenatal Care of the HIVPositive Woman. Poster presented at Treatment & Management of HIV Infection in the United States Conference, Atlanta, Georgia, September 15-18, 2005.
*Doyle, N., Levison, J., and Gardner, M. Rapid HIV vs. ELISA Screening in a Low Risk Mexican American Population Presenting in Labor: A CostEffectiveness Analysis. Poster presented by Dr. Doyle at the 2005 Society for Maternal-Fetal Medicine annual meeting, Reno, Nevada, February 7-12, 2005.
Tung, C., Sangi-Haghpeykar, H. and Levison, J. A comparison of prenatal rapid HIV testing to HIV ELISA testing in a low socioeconomic population (submitted for publication). Presented at
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Ob/Gyn Resident Research Day (by Dr. Tung), May 2006 (first place among 12 Baylor Ob/Gyn resident projects) Harris County Hospital District Quality Assurance Committee (by Dr. Levison), June 2006 *Texas Association of Obstetricians and Gynecologists Resident Research Day (by Dr. Tung), May 2007 (second place in the state of Texas)
Beasley, A.,Sangi-Haghpeykar, H., Giordano, T. and Levison, J. HIV Perinatal Data Base. Presented at Ob/Gyn Resident Research Day, May 2007
Beard, L., Levison, J., Ramin, S. and Berens, P. Assessment of provider knowledge regarding HIV and pregnancy , prior to and following initiation of rapid HIV testing hospital protocol. Presented (by Dr. Beard) June 23, 2007 at University of Texas Ob/Gyn Resident Research Day.
Mendiola, M., Aziz, N., Sokoloff, A., Cohan, D., and Levison, J. Days to viral load suppression in naïve and experienced pregnant HIV patients treated with highly active antiretroviral therapy. Presented at Ob/Gyn Resident Research Day, May 2009 (third place out of 12 Baylor Ob/Gyn residents) *Texas Association of Obstetricians and Gynecologists Resident Research Day (by Dr. Mendiola), May 2010 (second place in the state of Texas).
Coleman, A., Levison, J., Sangi-Haghpeykar, H., and Ankobea, F. Knowledge, attitudes, and practices regarding human papilloma virus vaccination in Ghana, West Africa. Presented at Ob/Gyn Resident Research Day, May 2010 (tied for third place among 12 Baylor Ob/Gyn residents).
*Pratts, M., Sangi-Haghpeykar, H., Parkerson, G.R., and Levison, J. Single-visit “See-and-Treat” cervical cancer screening project in rural Honduras. Poster for ACOG District Meeting, October 18, 2010, Maui, Hawaii.
*Siddiqui, R., Levison, J., Sangi-Haghpeykar, H., and Bell, T. Predictive factors for loss to postpartum follow-up in HIV-positive women in Harris Country Hospital District. Poster for 2012 CFAR (Center for AIDS Research) Joint Symposium on HIV Research in Women, September 19, 2012, Providence, Rhode Island.
*Levison, J., Nanthuru, D., Chiudzu, G., Kazembe, P., Phiri, H., and Aagaard, K. Utility of qualitative research for assessment of attitudes and knowledge on preterm birth in a low resource setting. Poster at Society for Maternal Fetal Medicine, February 14-16, 2013, San Francisco, California.
*Rahangdale, L., Cohen, S., Stewart, R., Levison, J., Lazenby, G., Baddell, M. et al. Predictors of unplanned pregnancies among women living with HIV in the United States. Poster at 20th Conference on HIV and Opportunistic Infections (CROI), March 3-6, 2013, Atlanta, Georgia.
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*Adamski, A., Clark, R.A., Mena, L., Henderson,H., Levison, J., Schmidt, N., Martin, D.H., and Kissinger, P. The influence of ART on the treatment of Trichomonas vaginalis among HIV-infected women. Poster presentation at the Society for Pediatric and Perinatal Epidemiologic Research, June 17-18, 2013, Boston, Massachusetts.
*Acacia Cognata, MD, MSPH, Rebecca Hoban, MD, MPH, Maame Aba Coleman, MD, Judy Levison, MD, MPH, Kjersti Aagaard, MD., Ph.D., Alina Saldarriaga, MD and Elizabeth Montgomery, MD, MPH. Knowledge, Skills, and Use of Neonatal Resuscitation in Malawi, Before and After Participation in a Helping Babies Breath Train the Trainer Program. Poster at American Academy of Pediatrics, October 26-29, 2013.
*Acacia Cognata, MD, MSPH, Rebecca Hoban, MD, MPH, Jennifer Ann Werdenberg, MD, Alina Saldarriaga, MD, Asad Moten, BS, Kjersti Aagaard, MD., Ph.D., Maame Aba Coleman, MD, Judy Levison, MD, MPH, Nicole SalazarAustin, MD, Norma Perez, DO, Sarah Perry, MD, Lineo Thahane, MD, MPH, Marape Marape, MD, Gabriel Anabwani, MB.Ch.B., Edith Mohapi, MBBS, FAAP and Elizabeth Montgomery, MD, MPH Knowledge and Skill Acquisition After "Helping Babies Breathe" Training in Sub-Saharan Africa: A 4 Country Experience. Poster at American Academy of Pediatrics, October 26-29, 2013.
*Elizabeth Montgomery Collins, Acacia Cognata, Rebecca Hoban, Asad Moten, Sarah Perry, Nicole Salazar-Austin, Alina Saldarriaga, Norma Perez, Marape Marape, Mogomotsi Matshaba, Lineo Thahane, Edith Mohapi, Peter Kazembe, Jennifer Werdenberg, Linda Malilo, Hailu N Sarero, Dipesalema Joel, Grace Karugaba, Judy Levison, Kjersti Aagaard, Aba Coleman, Gabriel Anabwani. Neonatal Resuscitation Knowledge & Skill Acquisition, Retention, & Use in Botswana, Lesotho, Malawi, & Swaziland Before & After Participation In a Helping Babies Breathe Train-the-Trainer Program. AAP National Conference & Exhibition, Section on International Child Health, Global Child Health Abstract Symposium, October 28, 2013, Orlando, FL.
*Williams, N., Peters, Y., Green, M., Deverson, C., and Levison, J. Postpartum Retention in Care Among Women with HIV. Poster at 2014 Texas HIV-STD Conference, August 19-21, Austin, TX.
*Fastring, D., Amedee, A., Gatski, M., Clark, R.A., Mena, L., Levison, J., Schmidt, N., Gustat, J., Hassig, S., and Kissinger, P. Heavy Alcohol Consumption and Vaginal Shedding of HIV. Poster at American Public Health Association, November 15-19, 2014, New Orleans, LA.
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Levison, J., Smith, H., and Eppes, C. Innovations in Retention in Care after Delivery: CenteringPregnancy. Presented at the Elimination of Mother to Child Transmission Stakeholders annual meeting (sponsored by CDC and ACOG), July 27, 2016, Washington, DC.
*Stewart, K., Allen, S., Chesnokova, A., Syed, F., and Levison, J. Prevalence of Abnormal Cervical and Vaginal Cytology in HIV-Infected Women over the Age of 65. Poster at Annual Clinical Meeting, American College of Obstetricians and Gynecologists, April 27-10 2018, Austin, TX.
*Bowden, E., Dorland, J., Hawkins, J., Hickerson, L., and Levison, J. Outcomes of Breastfeeding Among HIV-Exposed Infants in Houston, Texas. Poster at Annual Meeting of American College of Obstetricians and Gynecologists Districts IV, VII, and XI, September 27-29 2019, New Orleans, LA.
International: *Levison, J. Perinatal transmission of HIV and vaginal delivery: the Houston experience. Lecture to German Austrian AIDS Congress, Frankfurt, Germany. Presented June 30, 2007.
*Kissinger, P., Mena, L., Levison, J., Clark, R.A., Henderson, H., Rosenthal, S., Schmidt, N., Reilly, K., Gatski, M., Barnes, T., Thomas, A., and Martin, D. Adherence to patient delivered partner treatment by HIV-infected women with Trichomonas vaginalis. Poster presented at the 18th International Society for Sexually Transmitted Diseases Research, June 28-30, 2009, London, England.
*Williams, N., Peters, Y., Green, M., Deverson, C., and Levison, J. Postpartum Retention in Care Among Women with HIV. Poster at the Ninth InternationalConference on HIV and Prevention, June 8-10, 2014, Miami, FL.
*
B. Publications 1. Full papers a. published in peer review journals 1) Doyle, N., Levison, J., and Gardner, M. Rapid HIV versus enzyme-linked immunosorbent assay screening in a low-risk Mexican American population presenting in labor: A cost-effectiveness analysis. American Journal of Obstetrics and Gynecology (2005), 193:1280-5.
2) Levison, J. The ostrich syndrome: Obstetrician-gynecologists and human immunodeficiency virus exposure. Obstetrics and Gynecology (2008), 111(1):183186.
3) Arya, M., Levison, J., and Giordano, T.P. Ongoing barriers to HIV testing during pregnancy: A need for media campaigns addressing low knowledge about
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perinatal HIV transmission among women in the United States. Letter to the editor, AIDS Patient Care and STDs (2010), 25(2):71-2.
4) Tung, C., Sangi-Haghpeykar, H. and Levison, J. A comparison of prenatal rapid HIV testing to HIV ELISA testing in a low socioeconomic population. Journal of Perinatology (2010), 30:30-32.
5) Levison, J., Williams, L., Moore, A., McFarlane, J., and Davila, J. Increasing Use of Rapid HIV Testing in Labor and Delivery Among Women with No Prenatal Care: A Local Initiative. Maternal and Child Health Journal (2010), 16(9):17481753.
6) Kissinger, P., Mena, L., Levison, J., Clark, R. A., Gatski, M., Henderson, H., Schmidt, N., Rosenthal, S., Myers, L., and Martin, D. A randomized treatment trial: Single versus 7 day dose of metronidazole for the treatment of Trichomonas vaginalis among HIV-infected women. Journal of Acquired Immune Deficiency Syndromes (2010), 55(5):565-571.
7) Gatski, M., Mena, L., Levison, J., Clark, R., Henderson, H., Schmidt, N., Rosenthal, S., Martin, D., and Kissinger, P. Patient-delivered treatment and Trichomonas vaginalis repeat infection among HIV-infected women. Sexually Transmitted Disease (2010), 37(8):502-5.
8) Levison, J., Gillespie, S., and Montgomery, E. Think twice before recommending pre-masticated food as a source of infant nutrition. Maternal and Child Nutrition (2011), 7, 104.
9) Kissinger, P., Mena, L., Levison, J., Clark, R. A., Gatski, M., Henderson, H., Schmidt, N., Rosenthal, S., Myers, L., and Martin, D. The influence of bacterial vaginosis on the response to Trichomonas vaginalis treatment among HIV-infected women. Sexually Transmitted Infections (2011), 87(3):205-208.
10) Coleman, M.A., Levison, J., and Sangi-Haghpeykar, H. HPV vaccine acceptability in Ghana, West Africa. Vaccine (2011) May 23. 29(23):3945-3950.
11) Levison, J., Williams, L., Moore, A. McFarlane, J., and Davila, J. Educating professionals in obstetrics and gynecology regarding rapid human immunodeficiency virus (HIV) testing in labor and delivery: A local initiative. Maternal and Child Health Journal (2012), 16(9), 1748-1753.
12) Robicheaux McKinney, J., Halpern, M., Levison, J., Callender, G., LereboursNadal, L., and Fernandez-Esquer, M.E. Factors influencing use of family planning services among HIV-positive women in the PMTCT program at Clinica Familia La Romana in the Dominican Republic. Sexuality and Research (2013), 10(3):200207.
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13) Nacius, L., Levison, J., Minard, C., Spence, L., and Davila, J. Serodiscordance and disclosure Among HIV-Positive Pregnant Women. AIDS Patient Care and STDs (2013), 27(4):242-7.
14) Kissinger, P., Adamski, A., Clark, R., Mena, L., Levison, J., and Martin, D. Does antiretroviral therapy interfere with the treatment of Trichomonas vaginalis among HIV+ women? Sexually Transmitted Diseases (2013), 40(6):506-7.
15) Aziz, N., Leva, N.V., Sokoloff, A., Mendiola, M.L., Levison, J., Feakins, C., Shannon, M., and Cohan, D. Time to viral suppression in antiretroviral-naïve and – experienced pregnant women on highly active antiretroviral therapy: implications for pregnant women presenting late in gestation. British Journal of Obstetrics and Gynecology (2013), 120(12):1534-47.
16) Levison, J. Reproductive health and preconception care for women and men: What HIV providers should know. HIV Specialist/ American Academy of HIV Specialists (2013), 5(4):37-39.
17) Fastring, D., Amedee, A., Gatski, M., Clark, R., Mena, L., Levison, J., Schmidt, N., Rice, J., Gustat, J., and Kissinger, P. Co-occurrence of Trichomonas vaginalis, and bacterial vaginosis and vaginal shedding of HIV-1 RNA. Sexually Transmitted Diseases (2014), 41(3):173-9.
18) Rahangdale, L., Stewart, A., Stewart, R.D., Badell, M., Levison, J., et al. Pregnancy intention among women living with HIV in the United States. Journal of Acquired Immunodeficiency Syndromes (2014), 65(3):306-11.
19) Siddiqui, R., Bell, T., Sangi-Haghpeykar, H., Minard, C., and Levison, J. Predictive factors for loss to postpartum follow-up among low income HIVinfected women in Texas. AIDS Patient Care and STDs (2014), 28(5):248-253.
20) Levison, J., Nanthuru, D., Chiudzu, G., Kazembe, P., Phiri, H., Ramin, S., and Aagaard, K. Qualitative assessment of attitudes and knowledge on preterm birth in Malawi and within country framework of care. BMC Pregnancy and Childbirth (2014), 14:123.
21) Levison, J., Weber, S., and Cohan, D. Breastfeeding and human immunodeficiency virus-positive women in the United States: Harm reduction counseling strategies. Clinical Infectious Diseases (2014). 59(2):304-309.
22) Adamski, A., Clark, R., Mena, L., Henderson, H., Levison, J., Schmidt, N., Gebrekristos, H., Martin, D., and Kissinger. The influence of ART on the treatment of Trichomonas vaginalis among HIV-infected women. Clinical Infectious Diseases (2014), 59(6):883-887.
23) Buzi, R. and Levison, J. Missed opportunities: HIV in Houston. Baylor College of Medicine Office of Communications newsletter. September 15, 2014.
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24) Levison, J., Weber, S. and Cohan, D. Reply to Kennedy, et al. Clinical Infectious Diseases 2014; doi: 10.1093/cid/ciu855
25) Buchberg, M, Fletcher, F., Vidrine, D., Levison, J., Peters, M., Hardwicke, R., Yu, X., and Bell, T. A mixed-methods approach to understanding barriers to postpartum retention in care among low-income, HIV-infected women. AIDS Patient Care and STDs (2015), 29(3),1-7.

26) Dominika Seidman

, Theodore Ruel, Lisa Rahangdale, Pooja Mittal,

Christine Pecci, Shannon Weber, Ronald Goldschmidt, Deborah Cohan, Judy

Levison. A clinical approach to elimination of perinatal HIV transmission in

resource-richsettings. International Journal of Gynecology and Obstetrics (2015),

131(3), 309-310.

27) Kahr, M., Padgett, S., Shope, C., Griffin, E., Xie, S.S., Gonzalez, P.J., Levison, J., Mastrobattista, J., Abramovici, A.R., Northrup, T.F., Stotts, A.L., Aagaard, K., and Suter, M.A. A qualitative assessment of the perceived risks of electronic cigarette and hookah use in pregnancy. BMC Public Health 2015. 15: 1273.

28) Antony, K., Harris, R.A., Levison, J., Banda, B., Chiudzu, G., Chirwa, R., Nyondo, M., Marko, E., Chigano, A., Ramin, S., Phiri, H., Raine, S., Belfort, M,. Kazembe, P., and Aagaard. K. Population-based estimation of the peridontal disease rate in Malawi and compliance with preventive/treatment measures. AJOG (2016). 214(1): S295-6.

29) Finocchario-Kessler, S., Champassak, S., Hoyt, M.J., Short, W., Chakraborty, R., Weber, S, Levison, J., Phillips, J., Storm, D., and Anderson, J. Pre-Exposure Prophylaxis (PrEP) for Safer Conception Among Serodifferent Couples: Findings from Healthcare Providers Serving Patients with HIV in Seven US Cities. AIDS Patient Care and STDs (2016), 30(2), 78-83.

30) Lisa Rahangdale, MD, MPH

, Jordan Cates, MSPH, JoNell Potter, PhD,

Martina L. Badell, MD, Dominika Seidman, MD, Emilly S. Miller, MD, MPH,

Jenell S. Coleman, MD, MPH, Gweneth B. Lazenby, MD, MSCR, Judy Levison,

MD, William R. Short, MD, MPH, Sigal Yawetz, MD, Andrea Ciaranello, MD,

MPH, Elizabeth Livingston, MD, Lunthita Duthely, EdD, MS, Bassam H. Rimawi,

MD, Jean R. Anderson, MD, Elizabeth M. Stringer, MD, HOPES (HIV OB

Pregnancy Education Study) Group. Integrase inhibitors in late pregnancy and

rapid HIV viral load reduction. AJOG (2016), 214(3): 385.e1-385.e7.

31) Smeltzer, S., Yu, X., Schmeler, K., and Levison, J. Abnormal vaginal Pap test results after hysterectomy in human immunodeficiency virus–infected women. Obstetrics and Gynecology (2016), 158(1), 52-57.

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32) Johnson, G, Levison, J, and Malek, J. Should providers discuss breastfeeding with women living with HIV in high-income countries? An ethical analysis. Clinical Infectious Diseases (2016), 63(10), 1368-1372.
33) Levison, J. Editorial: Safe sex includes knowing your partner’s HIV status. Journal of Perinatology (2017), 37, 1.
34) Pollack, L. and Levison, J. Role of preexposure prophylaxis in the reproductive health of women at risk for human immunodeficiency virus infection. Obstetrics and Gynecology (2018), 132(3), 687-691.
35) Antony, K., Levison, J., Suter, M., Raine, S., Chiudzu, G. Phiri, H., Sclafani, J., Belfort, M., Kazembe, P., and Aagaard, K. Qualitative assessment of knowledge transfer regarding preterm birth in Malawi following the implementation of targeted health messages over 3 years. International Journal of Women’s Health (2019), 11, 75-95.
36) Badell, M., Sheth, A., Momplaisir, F., Rahangdale, L., Potter, J., Woodham, P., Lazenby, G., Short, W., Gillespie, S., Balreldrin, N., Miller, E., Alleyne, G., Duthely, L., Allen, S., Levison, J. and Chakraborty, R. A multicenter analysis of elvitegravir use during pregnancy on HIV viral suppression and perinatal outcomes. Open Forum Infectious Diseases (2019), 6(4), ofz129.
37) Levison, J. and Pollock, L. Letter to the Editor: Pediatric care of HIV-exposed breastfeeding infants. Journal of Pediatric Infectious Diseases (2019).
Accepted or in press: 2. Other full papers a. published without review by peer group
Levison, J. Prevention of Perinatal Transmission of HIV in 2008. Research Initiative/ Treatment Action (2008), 13(2), 41-46.
b. in preparation
3. Abstracts: none 4. Books: none 5. Other works communicating research results to scientific colleagues: 6. Other works communicating research results to general public HIV and pregnancy. Houston Chronicle 1-18-07.
Rapid HIV testing. KUHF Houston public radio 3-9-07. http://www.kuhf.org/site/News2?page=NewsArticle&id=19620
III. TEACHING INFORMATION A. Didactic course work
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BCM 2000-present Lectures on topics including abnormal Paps, contraception, infertility, and abnormal uterine bleeding to Family Medicine residents (minimum of two per year)

2003- present

Annual lecture

Women’s Health section of International Health, BCM International Health track class

(two to three hour seminar for 40-50 second year medical students)

2007-present

Annual lecture

Women’s Issues in International Health (focus on obstetric fistula, female genital

cutting and HIV). BCM International Health track (one hour lecture to 30-40 first year

medical students)

2012-present

Semi-annual lecture

Gynecologic and Obstetric Care of Women Living with HIV in Low Resource Settings.

BCM National School of Tropical Medicine.

2013 and 2014 Women’s Health: A Focus on Female Genital Cutting. BCM first year medical school women’s health elective.

University of Texas School of Public Health 2005-2008 Lecture on prevention of perinatal HIV transmission to Dr. Richard Grimes’ Masters in Public Health class 2012 Lecture on HIV and women to Dr. Sheryl McCurdy’s PhD class on global issues related to HIV

B. Non-didactic teaching 1. Resident teaching 2001-present Precept Family Medicine residents in consultative Ob/Gyn and HIV-associated Ob/Gyn as part of their two month Women’s Health rotation (20-26 hours/week)
2005-2010 Precept Obstetric and Gynecology residents in consultative Ob/Gyn and HIV-related Ob/Gyn as part of an elective in HIV Ob/Gyn (20 hours/week about 6 months per year)
2003-2011 Precept pediatric residents on infectious disease rotation in prenatal HIV clinic (about 12 half day sessions per year)
Resident mentoring: Ob/Gyn resident research projects (see research information above)

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Celestine Tung 2006 Anitra Beasley 2007 Monica Mendiola 2008-9 Aba Coleman 2009-10 Amy Kung 2009-11 Robaab Siddiqui 2010-2011 Karen Sargent 2012-2014 Stephanie Smeltzer 2013-2016 Chioma Erondu 2016-2017 Emily Bowman 2018-2019
Physician assistant mentoring: Research project Lori Nacius 2010-2011 Scott Braddock 2015-2016
2. Clinical fellow training 2003-2011 Precept pediatric infectious disease fellows on retrovirology rotation in prenatal HIV clinic (about 4-6 half day sessions/year) 2015-present Precept maternal fetal medicine fellow in prenatal HIV clinic (1-2 weeks/year)
3. Research fellow training: 2017-present Post-doc research coordinator who coordinated multiple clinical research projects
4. Graduate student training --Have had eight to ten visiting physicians and nurses from Lesotho, Swaziland, Botswana, and The Netherlands attend my HIV clinics (up to 12 hours/week each for 46 weeks during 2003-2006) --Precepted Aitebureme Aigbe, DrPH candidate in at UT School of Public Health 20122014 --Multiple MPH students 2014-2018
5. Medical student mentoring Lee Bar-Eli MS3 2006-7: precepted in clinic and supported her in obtaining Fogarty fellowship for international experience in Lesotho (scheduled for 2008)
Jennifer M. Lopez MS3 2007-8: precepted in clinic and supervised her on trip to La Romana, Dominican Republic 7-08
Jennifer Robicheaux McKinney/ Class of 2014: precepted in clinic, was mentor from 2000-2014, co-authored study on contraception among HIV-positive teens
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2009-present Precept medical student on core ob/gyn rotation one half day per week year round
2010-2016 Precept third year medical student on LACE rotation one half day per month year round
2013-2016 Precept first year medical student in PPS course one half day every two-three weeks year round
2016-present Precept second year physician assistant students 1-3 days per month
6. Curriculum development 2002-present Developed reading list for two month Family Medicine residency Women’s Health rotation and one month Ob/Gyn elective in a community health center
2007-2012 Liaison between BCM Dept of Ob/Gyn and resident/medical student elective in La Romana, Dominican Republic. With Columbia University on site physician, annually revamp schedule for visiting student or resident experience in outpatient HIV clinic, public hospital, and private clinic (average of 2 per year)
2010-2011 Worked with Family Medicine, Internal Medicine, and Emergency Department faculty and 6-8 medical students in the International Track to restructure the second year International Track curriculum. Recruited two professors from the University of Texas School of Public Health to present information on development of public health interventions as well as methods to monitor and assess interventions; they are now an integral part of the program.
2012-present Development of online tool to educate clinicians, nurses, and social workers about diagnosis/management of HIV in pregnancy/in labor, management of the HIV-exposed newborn, routine HIV screening in a gynecology practice, and prevention of congenital syphilis (2 hours CME and CNE for physicians, nurses, and social workers). Perinatal HIV Prevention. Course #1029521. https://tx.train.org
C. Lectures 1. International Practical Management of HIV in Pregnancy. Mbabane, Swaziland. March 2004.
Frankfurt, Germany. Perinatal transmission of HIV and vaginal delivery: the Houston experience. German Austrian AIDS Congress. June 30, 2007.
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Katmandu, Nepal. Prevention of Mother to Child HIV Transmission/Training of Trainers. UNICEF/Baylor International Pediatric AIDS Initiative. June 21-25, 2010.
Levison, J., Aagaard, K., and Antony, K. Saving Lives at Birth: Being Born Too Soon. March of Dimes-sponsored lecture to clinical officers, nurses, and health workers at the Baylor-Malawi Center for Excellence, Lilongwe, Malawi. May 9, 2015.
Levison, J., Aagaard, K., and Antony, K. HIV, Pregnancy, and Preterm Birth. March of Dimes-sponsored lecture to clinical officers, nurses, and health workers at the BaylorMalawi Center for Excellence, Lilongwe, Malawi. May 9. 2015.
Levison, J. HIV and Women: A Global Challenge. Lecture to physicians, clinical officers, and nurses at the Ethel Mutharika Maternity Wing, Kamuzu Central Hospital, Lilongwe, Malawi, January 23, 2016.
Smith, H, Eppes, C, Peters, Y, Deverson, C, Davis, V, and Levison, J. et al. Poster: Impact of Group Prenatal Care on Postpartum Retention in Care Among Women Living with HIV. Seventh International Workshop on HIV and Women. Seattle, WA, February 11-12, 2017.
Levison, J, Pollock, L and Friedman, N. Disclosure of HIV Status to Partners. Seminar for practitioners attending Conference for Retroviruses and Opportunistic Infections. Seattle, WA, February 15, 2017.
Pollock, L., Levison, J., and Matthews, L. Does U = U in the Perinatal Setting? Seminar for practitioners attending Conference for Retroviruses and Opportunistic Infections (CROI). Boston, MA, March 6, 2018.
Dilemmas in the Choice of Antiretroviral Therapy in Women. Roundtable hosted by the Clinicians Consultation Center, Conference for Retroviruses and Opportunistic Infections. Seattle, WA, March 5, 2019.
2. National Annual Northwest Obstetrics and Gynecology Conference. HIV in Pregnancy. Everett, Washington, April 1, 2004.
Annual Northwest Obstetrics and Gynecology Conference. Metabolic Syndrome and Ob/Gyn. Everett, Washington, April 1, 2004.
Grand Rounds presentation to the Department of Obstetrics and Gynecology, Santa Clara Valley Medical Center, San Jose, California. HIV in Pregnancy: Prevention of Perinatal Transmission. April 2005.
Santa Clara Valley Medical Center, San Jose, California. International Challenges: Prevention of Perinatal HIV Transmission. April 2005.
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IV Cumbre de Educadores de Tratamientos del VIH/SIDA. Prevencion de la Transmision Perinatal de VIH. Houston, Texas, June 19, 2008 (presented in Spanish).
Centers for Disease Control, invited panelist, for campaign to edúcate gynecologists about routine HIV screening. Atlanta, Georgia, March 25, 2009.
Office of Family Planning/Office of Population Affairs HIV Prevention Project Annual Technical Support Conference. Reproductive health needs of HIV-positive women. New Orleans, Louisiana, March 16, 2011.
2012 Federal Training Centers Collaboration Meeting. Preconception and Reproductive Health for Women and Men Living with HIV. Dallas, Texas, April 24-26, 2012.
Reproductive Health and HIV: Preconception Care, Family Planning, and Safer Conception. Teleconference sponsored by FXB Center at UMDNJ, Drexel University, Jefferson School of Medicine, and Baylor College of Medicine and supported by Centers for Disease Control. May 15, 2012.
2012 Elimination of Mother-to-Child HIV Transmission Stakeholders’ Meeting. Invited speaker on breastfeeding among HIV-positive women in the United States. Sponsored by FXB Center, Centers for Disease Control, and Health Research and Educational Trust (HRET). Washington, D.C. September 13, 2012.
2013 American Conference for the Treatment of HIV (ACTHIV) annual conference. Invited speaker on Preconception Care, Contraception, and Safer Conception for Women, Men, and Couples Living with HIV. Denver, Colorado, March 21-23, 2013.
2014 HIV/STD Update: Advances in Care and Prevention. Invited speaker on Reproductive Health and HIV. Sponsored by Midwest AIDS Training and Education Center. Indianapolis, Indiana, May 9, 2014.
2014 What Is New in the Perinatal Guidelines? Recommendations for Use of Antiretroviral Drugs in Pregnant HIV-1-Infected Women for Maternal Health and Interventions to Prevent Perinatal HIV Transmission in the United States. CDC’s Elimination of Mother-to-Child (EMCT) Stakeholders Group, in collaboration with the Franҫois-Xavier Bagnoud (FXB) Center and AETC National Resource Center. National webinar, May 20, 2014.
Introduction to CenteringPregnancy/HIV. Presentation at CDC-sponsored Elimination of Maternal Child Transmission of HIV Panel. Washington, DC, May 29, 2014.
New Frontiers in Safe Sex. National Hemophilia Foundation Annual Meeting, Grapevine TX, August 15, 2015.
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Retention in Care After Delivery among Women Living with HIV: Innovation Approaches. Elimination of Mother to Child Transmission Stakeholders Group. Washington, DC, July 28, 2016.
Pre-Exposure Prophylaxis: What Obstetricians and Gynecologists Need to Know. With Carey Eppes, MD and Kevin Ault, MD. Webinar sponsored by the American College of Obstetricians and Gynecologists and CDC’s Expert Panel on HIV Reproductive Health and Preconception Care, October 26, 2016.
Update in Perinatal Guidelines 2016. Presentation to the Clinicians Consultation Center with Lisa Rahangdale. University of California San Francisco, November 9, 2016.
What is New in the 2016 Perinatal HIV Treatment Guidelines? With Lisa Rahangdale. National webinar sponsored by the Elimination of Mother to Child Transmission Stakeholders Group, December 7, 2016.
HIV and Women. AIDS Clinical Conference series. University of Washington, Seattle, April 18, 2017.
Post-exposure Prophylaxis in Women/New Frontiers in Safe Sex. Women and HIV International Clinical Conference (WHICC). San Antonio, TX, June 11-12, 2017.
Update on Women Living with HIV. Presented to Project LEAP (HIV community leadership training), sponsored by the Ryan White Program at the Harris County Public Health and Environmental Services, June 17, 2017.
CenteringPregnancy: Adapted for Women Living with HIV. National webinar sponsored by the Centering Health Institute (Boston), October 10, 2017.
The Controversy Surrounding Breastfeeding among Women Living with HIV in High Resource Countries. Mountain West AIDS Education and Training Center webinar, November 2, 2017.
Pregnancy Management and HIV. Southeast AIDS Education and Training Center webinar, January 10, 2018.
What is New in the Guidelines November 2017. Clinicians Consultation Center, webinar for University of California San Francisco clinical staff, January 24, 2018.
Update in the Perinatal Guidelines. National webinar, February 27, 2018.
Reproductive Decision Making, Sexual Health, and HIV. Presentation at ACT HIV, Chicago, IL, April 24, 2018.
Innovations in Prenatal Care of Women Living with HIV. Presentation at CityMatch, Portland, OR, September 12, 2018.
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Evaluation of HIV-Adapted CenteringPregnancy Group Prenatal Care Among Women Living with HIV in Houston, Texas. Poster at the Society for Maternal Fetal Medicine, Las Vegas, NV, February 15, 2019.
Approaching HIV Epidemic from a Reproductive Justice Framework. 2019 Washington State HIV Conference. Spokane, WA, May 17, 2019.
Management of Pregnancy for Women Living with HIV. Mid-Atlantic States AIDS Education Center Training webinar. May 22, 2019.
Evaluation of HIV-Adapted CenteringPregnancy Group Prenatal Care Among Women Living with HIV in Houston, Texas. Oral presentation by Jennifer McKinney, Infectious Disease Society of Obstetrics and Gynecology, Big Sky, MT, August 8, 2019.
3. Regional Women and HIV International Clinical Conference. Office Gynecology and the HIV+ Woman. San Antonio, Texas, March 7, 2007.
Panelist and facilitator for CDC workshop. Implementation of HIV Screening in Acute Care Settings. San Antonio, Texas, February 25-26, 2008.
16th Texas HIV/STD Conference. HIV Perinatal Transmission Prevention Projects in Texas—presented in collaboration with Jenny McFarlane from the Texas Department of State Health Services, Austin, Texas, May 19, 2008.
Women and HIV International Clinical Conference (WHICC). Office Gynecology and the HIV+ Woman. Dallas, Texas, April 30, 2008.
AIDS Education Training Center conference. Rapid HIV Testing in Labor and Delivery…and Beyond. Amarillo, Texas, June, 2008.
Triangle AIDS Network 21st AIDS Update Conference. Prevention of Perinatal HIV. Beaumont, Texas, October 13, 2008.
Valley AIDS Council 16th Annual HIV-AIDS Update Conference. Rapid Testing in Labor and Delivery. South Padre Island, Texas, October 30, 2008.
Kaleidoscope: 26th Annual Perinatal Nursing Symposium. Rapid HIV Testing in Labor… and Beyond. Galveston, Texas, February18, 2009.
Triangle AIDS Network CME for physicians, nurses and social workers. Rapid HIV Testing in Labor and Delivery. Beaumont, Texas, March 17, 2009.
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St. David’s Hospital CEU for nurses, social workers. Rapid HIV Testing in Labor and Delivery…and Beyond. Round Rock, Texas May 21, 2009.
Valley Baptist Hospital Harlingen CEU for nurses, social workers. Rapid HIV Testing in Labor and Delivery…and Beyond. Harlingen, Texas July 23, 2009.
St Luke’s Baptist Hospital CEU for nurses, social workers. Rapid HIV Testing in Labor and Delivery…and Beyond. San Antonio, Texas, September 3, 2009.
Rio Grande Valley Perinatal Symposium Rapid HIV Testing in Labor and Delivery. Harlingen, Texas , November 7, 2009.
Women and HIV International Clinical Conference (WHICC). Panelist – Update on HIV Testing of Pregnant Women. Houston, Texas, January 25, 2010.
17th Texas HIV/STD Conference. The Journey to Change Texas HIV Testing of Pregnant Women. Austin, TX May 25, 2010
Update on Texas HIV Testing Requirements for Pregnant Women: 2-19-10 St. Joseph Medical Center, Houston 4-9-10 HIV Update Conference, Panhandle AIDS Support Organization (PASO), Amarillo 4-26-10 Beaumont Baptist Hospital, Beaumont 6-29-10 Cypress Fairbanks Hospital, Houston 7-1-10 Christus-St. Elizabeth Hospital, Beaumont 11-23-10 Nagadoches Medical Center, Nacogdoches
Jasper-Newton County Medical Society. Reproductive Health Needs of HIV-Positive Women/Routine HIV Testing. Jasper, Texas, October 17, 2012.
Amarillo Area HIV/STDs Symposium 2013. Reproductive Health Needs of HIVPositive Women. Amarillo, Texas, April 12, 2013.
American College of Obstetricians and Gynecologists District 11/Texas Association of Obstetricians and Gynecologists (TAOG). Update on STDs. San Antonio, Texas, September 28, 2013.
2014 Women and HIV International Clinical Care. Invited speaker on Reproductive Health and HIV: Reproductive Health: Preconception Care, Contraception and Safer Conception. Sponsored by Texas Oklahoma AIDS Education and Training Center. Webinar (Dallas, Texas), May 16, 2014.
Houston Global Health Consortium. Challenges to Developing Health Care Programs…Wherever You Are. Presented with Jennifer Robicheaux McKinney. Baylor College of Medicine, May 2014.
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Women’s Health Symposium. So You Have HIV and You Want to Have a Baby? Houston, TX, May 21, 2015.
PrEPHouston: HIV Prevention Summit. New Frontiers in Safe Sex including PrEPception. Presented in Houston, TX, February 5, 2016.
2018 Texas HIV/STD Conference. Sex, Reproductive Health, and HIV. Austin, TX, November 29, 2018.
Women and HIV 2019: Reproductive Decision Making and Sexual Health. University of Texas Medical Branch, Galveston, TX, March 14, 2019.
Abnormal Cervical Cytology in 2019: What Do I Do Next? Primary Care Update 2019. Baylor College of Medicine, Houston, TX, March 23, 2019.
4. Local Obstetrics and Gynecology Grand Rounds presentation. Baylor College of Medicine Prevention of Perinatal Transmission of HIV. January 29, 2003.
Obstetrics and Gynecology Resident Research Day, discussant of presentation on high false positive rate of ELISA testing in a predominantly Hispanic prenatal population (Zacharias, N.), May 2003.
Guest lecturer for Dr. Richard Grimes’ course on HIV/AIDS, University of Texas School of Public Health. Women and HIV. September 29, 2003.
Obstetrics and Gynecology Grand Rounds presentation, Baylor College of Medicine. Women and HIV. February 25, 2004.
Infectious disease physicians and staff conference at Thomas Street Clinic, Houston, Texas. HIV in Swaziland. June 29, 2004.
Guest lecturer for Dr. Richard Grimes’ course on HIV/AIDS, University of Texas School of Public Health. HIV in Pregnancy. September 28, 2004.
Obstetrics and Gynecology Grand Rounds presentation. Baylor College of Medicine. International Challenges: Prevention of HIV Transmission. January 19, 2005.
Guest lecturer for Dr. Richard Grimes’ course on HIV/AIDS, University of Texas School of Public Health. Women and HIV. September 2005.
Guest lecturer for Dr. Richard Grimes’ course on HIV/AIDS, University of Texas School of Public Health. Women and HIV. September 2006.
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Harris County Hospital District Annual HIV conference, Houston, TX. International Challenges in HIV. December 2005.
2005-2008 Multiple talks to physicians and nurses on Rapid HIV testing in Labor and Delivery (part of research projects above) at Ben Taub General Hospital, BCM Department of Obstetrics and Gynecology residents lecture series, LBJ Hospital, Houston Perinatal Task Force—4 to 6 presentations per year
Global Coalition of UNAIDS, University of Texas School of Public Health. Prevention of Perinatal HIV Transmission. June 12, 2006.
Harris County Hospital District coders, LBJ Hospital, Houston, TX. Coding and Gynecology: What Does the Gynecologist Really Do? July 2006.
Baylor Pediatric AIDS Initiative (BIPAI) first Pediatric AIDS Corps (PAC) physicians orientation. Prevention of Perinatal HIV Transmission—in the U.S. and Beyond. July 2006.
Association of AIDS Nurses (ANAC), Houston, TX. Women and HIV. August, 2006.
Obstetrics and Gynecology Resident Research Day, discussant of presentation on factors influencing breastfeeding intentions among low income Hispanic women (Champion, S.), May 2007.
University of Texas School of Public Health. World AIDS Day. HIV and Pregnancy: What is Happening in Houston? December 1, 2008.
Infectious disease physicians and staff conference at Thomas Street Clinic, Houston, Texas. The Serodiscordant Couple. December 2, 2008.
Texas Children’s Hospital Women’s Services Nursing leadership. Update on Texas HIV Testing Requirements for Pregnant Women. Houston, TX. November 18, 2009.
Thomas Street Health Center – staff conference. Update on Texas HIV Testing Requirements for Pregnant Women. Houston, TX. December 3, 2009.
Obstetrics and Gynecology Grand Rounds presentation. Baylor College of Medicine Update on Texas HIV Testing Requirements for Pregnant Women. Houston, TX. February 10, 2010.
Harris County Hospital District/AIDS Education Training Center/Department of State Health Services. Fundamentals of HIV Treatment and Disease Management: Managing Special Populations. Houston, TX. September 10, 2011.
Obstetrics and Gynecology Grand Rounds presentation. Baylor College of Medicine. Reproductive Health and HIV. Houston, TX. October 10, 2012.
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Houston Department of Health and Human Services/Center for AIDS Research. Why do women drop out of care after they have their babies? Community Scientific Forum. Houston, TX. April 22, 2014. Rice University Department of Bioengineering class. Update on Challenges to Developing Health Care Programs…Wherever You Are. Houston, TX. September 16, 2014. AIDS Research Forum. New Frontiers in Safe Sex: HIV, Serodiscordant Couples, and PrEPception. Baylor College of Medicine, Houston, TX, February 15, 2016. What is New in HIV Testing. Lecture to Maternal Fetal Medicine fellows. Texas Childrens Hospital Pavilion for Women, Houston, November 4, 2016. Innovations in Retention in Care Among Women Living with HIV. Lecture to Adolescent Medicine fellows. Texas Childrens Hospital, Houston, November 4, 2016. New Frontiers in HIV: What Do Obstetrician/Gynecologists Really Need to Know? Department of Ob/Gyn Grand Rounds, Baylor College of Medicine, January 25, 2017. HIV and Women: CROI 2017 Update. Thomas Street Health Center, Houston, TX, March 7, 2017. Women and HIV. Project LEAP (community education program). Harris County Department of Health and Environmental Services, Houston, TX, June 21, 2017. Women and HIV: 2018 Update from the Conference for Retroviruses and Opportunistic Infections, Thomas Street Health Center, Houston, TX, April 2, 2018. Breastfeeding and HIV in the United States: A Reasonable or Unreasonable Option? Department of Neonatology, Texas Children’s Hospital, Houston, TX March 15, 2019. What Women Around the World Have Taught Me. National Perinatal Association Student Society. Baylor College of Medicine, Houston, TX, February 12, 2019. Women and HIV: 2019 Update. Thomas Street Health Center, Houston, TX, April 30, 2019. Going Beyond (what is expected of physicians). University of Houston, Faculty Senate Partnerships conference, Houston, TX, October 4, 2019. D. Visiting professorships: none
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Case 1:20-cv-00323-LY Document 49-7 Filed 04/02/20 Page 33 of 35
IV. MEDICAL AND SERVICE INFORMATION
A. Patient care responsibilities at BCM 1. Department –wide
Division of time: • 50% direct patient care for HIV+ women at Thomas Street Clinic and Northwest Health
Center including 24/7 on call for clients and personally attending the deliveries of Women’s Program clients (at Ben Taub General Hospital and Texas Childrens Hospital Pavilion for Women). 15-20 patients per week seen as outpatients. 60-70 deliveries per year. Quality indicators include less than 1% transmission of HIV from mother to child and increase in annual Paps from 25% to 75% in HIV+ female population at Thomas Street Clinic. • 20% direct patient care/Ob/Gyn consultative service for the Department of Family Medicine at Northwest Health Center. 20-35 patients per week. • 10% Rapid HIV Testing education for professionals. Includes development of computer modules for education of physicians and nurses regarding HIV testing and prevention of perinatal HIV transmission and development of FIMR-HIV methodology for Texas to assess causes of cases of perinatal HIV transmission. • Consultant for the University of California, San Francisco (UCSF) Clinicians Consultation Center (real time advising clinicians nationally on management of HIV in pregnancy) • Other: supervision of Ob/Gyn residents on Labor and Delivery 3 times per month (7-12 deliveries per 14 hour shift) and in surgery once or twice per month (3-5 major and minor cases per session) • Supervision of Family Medicine residents in clinic • 2012-present Development of a CenteringPregnancy model tailored to the needs of HIVpositive pregnant women 2. Section or specialty: Development of global health initiative and research (Malawi) 10% time 2011 through 2017
B. Clinical lab responsibilities at BCM: none (though work closely with Harris Health Laboratory in the interpretation of equivocal HIV tests)
C. National education or voluntary health organization participation:
2006-present Member, Doctors for Change (local advocacy group) www.doctorsforchange.org
April 2007 Participated in UT United We Serve volunteer day
2009-2011 President, Doctors for Change (local advocacy group) www.doctorsforchange.org
2012-present
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Case 1:20-cv-00323-LY Document 49-7 Filed 04/02/20 Page 34 of 35
Pro bono examinations for Tahirih Justice Center asylum seekers
2013 and 2014 Houston Refugee Center clinic health fair volunteer
2013-present Member, Board of Directors, Doctors for Change (see above)
2017-present Member, Advisory Board, Schweitzer Fellowship Foundation, which provides chosen students with leadership in community health project planning
D. Administrative assignments at BCM: Institutional Safety committee 2007- present
E. Other pertinent information
1985 – 1986 Chair, Department of Obstetrics and Gynecology Providence General Hospital of Everett Everett, Washington
1986 – 1995 Medical Director Prenatal Care Center (providing care for low-income women) General Hospital Medical Center of Everett Everett, Washington
2003-present Physician coordinator, Harris County Hospital District Women’s Program**, providing obstetric and gynecologic care for women with HIV
2005-2008 Chair, Harris County Hospital District HIV OB Task Force
2007-present Chair, Perinatal Task Force (public and private hospital consortium with primary focus on bringing rapid HIV testing to Labor and Delivery and educating clinicians statewide)
2008-present Member, Texas Consortium for Perinatal HIV Transmission—affiliate of Department of State Health Services/Division of HIV/STD—developed guidelines for legislation passed 6-5-09 and enacted 1-1-10 regarding timing of HIV testing in pregnancy http://www aidseducation org/documents/PerinatalHIVGuidelines pdf
2013-present
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Case 1:20-cv-00323-LY Document 49-7 Filed 04/02/20 Page 35 of 35 Initiator/PI of CenteringPregnancy/HIV: first in the U.S. group prenatal care program for HIVpositive pregnant women. Part of a research study to assess 1) changes in knowledge/attitudes toward HIV and 2) retention in care one year postpartum. We predict higher fund of knowledge, more positive self-image, and higher rate of retention in care one year postpartum after group intervention (compared to controls). **The Harris Health System Women’s Program offers:
• Prenatal care for HIV+ women • A unique collaboration between BCM and UT Health Science Center • A multidisciplinary team approach to care involving physicians, nurses, nurse
practitioner, nurse educator, social worker, and case managers with weekly review of ongoing clients • Personalized care for a vulnerable population • Resident and medical student opportunities for clinical rotations and research
App.216

Case 1:20-cv-00323-LY Document 49-9 Filed 04/02/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CASE NO. 1:20-cv-323-LY

DECLARATION OF GEORGE A. MACONES, M.D., M.S.C.E., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

GEORGE A. MACONES, M.D., M.S.C.E., hereby declares under penalty of perjury that

the following statements are true and correct:

1. I am an obstetrician-gynecologist (“OB/GYN”) specializing in maternal-fetal

medicine (“MFM”). I currently serve as Chair of the Department of Women’s Health at Dell

Medical School at the University of Texas at Austin.

2. I earned an M.D. from Jefferson Medical College in Philadelphia, Pennsylvania,

and a Master of Science in Clinical Epidemiology from the University of Pennsylvania. I

completed a residency in obstetrics and gynecology at Pennsylvania Hospital and fellowships in

MFM and clinical epidemiology at Thomas Jefferson Hospital and the University of Pennsylvania,

respectively.

3. I am board certified by the American Board of Obstetrics and Gynecology in both

general obstetrics and gynecology and MFM.

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Case 1:20-cv-00323-LY Document 49-9 Filed 04/02/20 Page 3 of 6
4. I am an elected member of the National Academy of Medicine, a Fellow of the American College of Obstetricians and Gynecologists (“ACOG”), and a Fellow of the Society of Maternal-Fetal Medicine (“SMFM”).
5. I also serve as the Women’s Health Service Line Leader at a major health system in Austin, Texas.
6. I provide the following testimony based on my personal knowledge as well as my training and experience as an OB/GYN and MFM specialist. The statements in this declaration are attributable solely to me; I do not speak on behalf of any institution or organization with which I am affiliated.
7. As an MFM doctor, I specialize in treating patients with high-risk pregnancies. A number of factors can make a pregnancy high risk, including underlying medical conditions such as diabetes and high blood pressure, diagnosed fetal anomalies, multiple gestations, a history of adverse pregnancy outcomes; and pregnancy-related complications such as pre-eclampsia. Approximately ten percent of all pregnancies in the United States are high risk. I also treat patients with low-risk pregnancies.
8. The risks of pregnancy generally increase with gestational age. 9. I see patients in both outpatient and inpatient settings. The medical care I provide is informed by evidence-based guidelines published by ACOG and SMFM. These organizations have recently published special guidelines for patient care during the COVID-19 pandemic that incorporate recommendations from the Centers for Disease Control and Prevention (“CDC”). 10. Under normal circumstances, I would typically see a patient for routine prenatal care every four weeks until the middle of the second trimester, and more often after that. High-risk patients generally require more frequent visits. Currently, because of COVID-19, I have reduced
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Case 1:20-cv-00323-LY Document 49-9 Filed 04/02/20 Page 4 of 6
in-person visits for my low risk patients by fifty percent. Every other visit is now conducted via telemedicine. This means that I am still seeing most patients at least twice during the first trimester. I have not changed the frequency of in-person visits for high-risk patients.
11. At each in-person prenatal visit, I collect a urine sample from the patient. Sometimes, I also collect a blood sample.
12. As a result of COVID-19, I have reduced the number of ultrasound examinations that my patients receive. I currently perform an ultrasound when I see a patient for the first time to determine gestational age and whether the patient is carrying multiples. I perform a second ultrasound at 20 weeks. Patients with complications may require additional ultrasounds.
13. Ultrasound examinations can be performed either trans-vaginally or transabdominally. A number of factors influence the choice of ultrasound method including the gestational age of the pregnancy, the size and shape of the patient’s body, and the quality of the ultrasound machine.
14. My colleagues and I always wear gloves when performing trans-vaginal ultrasound examinations. There is no national recommendation concerning the use of gloves for transabdominal ultrasounds. I do not wear them during trans-abdominal ultrasound examinations, but some practitioners do.
15. Phlebotomists and laboratory technicians always wear gloves when collecting or handling blood or urine samples.
16. For routine prenatal visits in an outpatient setting, I typically do not use PPE when meeting with the patient unless the patient is experiencing symptoms of COVID-19 or is at high risk for contracting the virus. My colleagues and I generally try to screen out these patients and refer them for testing, but some require urgent treatment.
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Case 1:20-cv-00323-LY Document 49-9 Filed 04/02/20 Page 5 of 6
17. For example, I saw a pregnant patient last week who had fever and a cough but required immediate care for a pregnancy-related issue. The patient and I both wore surgical masks during our encounter, and I also wore a gown and gloves. Other staff members who were assisting me wore surgical masks, gowns and gloves as well.
18. In the hospital, my colleagues and I are currently using N-95 respirator masks, gowns, and sterile gloves for all Caesarian sections. We are using standard surgical masks and sterile gloves for vaginal deliveries.
19. Pregnant patients come to the hospital for a variety of reasons prior to delivery. In a typical day, our center may see 30 to 40 pregnant patients presenting with various conditions and injuries. Surgical masks, gowns, and gloves are required for treating any pregnant patient who presents at the hospital with symptoms of COVID-19, and some or all of this PPE may be required to care for asymptomatic patients, depending on the type of treatment they need. In addition, anyone performing trans-vaginal ultrasound at the hospital or handling blood or urine samples wears gloves.
20. There is no doubt in my mind that delaying a pregnant patient’s abortion by weeks or months will result in a net increase in the consumption of PPE because the imaging and laboratory tests alone needed during early pregnancy require the use of more PPE than is typically used in connection with an abortion. Preventing a patient from having a wanted abortion altogether will result in an even greater net increase in the consumption of PPE because the healthcare providers treating a woman who carries to term will utilize far more PPE over the course of the pregnancy and during delivery than would be needed for an abortion.
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Dated: April 2, 2020

George Macones
George A. Macones, M.D., M.S.C.E.

App.221

Case 1:20-cv-00323-LY Document 7-4 Filed 03/25/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-CV-00323-LY

DECLARATION OF AMY HAGSTROM MILLER AMY HAGSTROM MILLER hereby declares under penalty of perjury that the following statements are true and correct: 1. I am the President and Chief Executive Officer (“CEO”) of Whole Woman’s Health Alliance (“WWHA”), a plaintiff in this case. 2. WWHA is a nonprofit organization incorporated under Texas law. Its mission is to provide abortion care in underserved communities and shift the stigma around abortion in our culture. 3. WWHA currently operates an abortion clinic in Austin, Texas (the “Austin clinic”), as well as abortion clinics in Indiana and Virginia. The Austin clinic opened in 2017 and is licensed in accordance with Texas law. 4. As President and CEO of WWHA, I oversee all aspects of the organization’s work. 5. I have been working in the abortion care field since 1989. Prior to my work at WWHA, I founded a consortium of limited liability companies involved in the provision of abortion care throughout the United States. These companies do business under the name “Whole

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Case 1:20-cv-00323-LY Document 7-4 Filed 03/25/20 Page 3 of 9
Woman’s Health.” I continue to serve as President and CEO of Whole Woman’s Health, which opened its first abortion clinic in 2003.
6. I am thoroughly familiar with all aspects of abortion clinic operations and patient care.
7. I provide the following testimony based on my personal knowledge and review of WWHA’s business records.
Provision of Abortion Care at the Austin Clinic 8. The Austin clinic provides surgical abortions up to 17.6 weeks of pregnancy as measured from the first day of a patient’s last menstrual period (“lmp”). Under Texas law, licensed abortion facilities are not permitted to provide surgical abortions beyond this gestational age. See Tex. Health & Safety Code § 171.004. 9. The Austin clinic provides medication abortions up to 70 days lmp. Under Texas law, medication abortions are prohibited after this gestational age. See Tex. Health & Safety Code § 171.063(a)(2). 10. In a typical week, the Austin clinic provides surgical abortions to approximately 30 patients. 11. In a typical week, the Austin clinic provides medication abortions to approximately 30 patients. 12. Texas law requires abortion patients who reside within 100 miles of a licensed abortion clinic to make two separate visits to the clinic to obtain care. See Tex. Health & Safety Code § 171.012(a)(4), (b). During the first visit, we must provide the patient with certain statemandated information and perform an ultrasound examination. See id. During the second visit, we provide abortion care. Most of our patients reside within 100 miles of the Austin clinic.
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13. Providing abortion care requires minimal use of personal protective equipment (“PPE”). In fact, medical staff members at the Austin clinic do not utilize any PPE when providing medication abortion to patients. Doctors who provide surgical abortions at the Austin clinic typically wear sterile or non-sterile gloves that are discarded after each procedure but do not utilize other forms of PPE. If a patient is receiving sedation, a nurse is also present in the procedure room and will utilize sterile or non-sterile gloves. One or more surgical assistants may also be present for a procedure, but they do not utilize any PPE.
14. Likewise, pre-procedure ultrasound examinations require minimal PPE. Use of PPE is typically not required at all for abdominal ultrasound examinations. For vaginal ultrasound examinations, doctors and ultrasound technicians typically wear non-sterile gloves that are discarded after each scan. When laboratory testing is required, technicians likewise utilize only non-sterile gloves.
15. Following a surgical abortion procedure, the tissue removed from a patient is examined in the pathology laboratory. This task is typically performed by a single staff member who utilizes one washable gown per shift, either one disposable face shield per shift or one set of reusable goggles, one set of disposable shoe covers per shift, one disposable hair cap per shift, and one or more sets of non-sterile gloves.
16. WWHA does not use or have any N95 respirators. 17. Abortion patients seldom require hospitalization. The Austin clinic had only a single hospital transfer during all of last year. Further, we keep detailed complication logs that record, among other things, when a patient receives hospital treatment after being discharged from the clinic. This happens only a handful of times each year.
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WWHA’s Response to the COVID-19 Outbreak 18. In response to the COVID-19 outbreak, WWHA has adopted policies to protect its patients and staff members from exposure to the virus. 19. For example, staff members screen all patients by telephone before they come to the Austin clinic to determine if they have symptoms of COVID-19. Symptomatic patients are directed to self-quarantine and contact their primary healthcare providers. We will not schedule a patient for a clinic visit unless the patient has been symptom free for fourteen days. We are also limiting the number of people who enter the clinic and ensuring that patients maintain a safe distance from one another in the waiting room and recovery area. In addition, we are screening staff members for symptoms and directing everyone who is symptomatic or who has come in contact with someone who has a confirmed case of the virus to self-quarantine for at least fourteen days. 20. We have provided staff members with training on best practices to prevent the spread of infection, and we are vigilant about enforcing protocols for hand washing and disinfecting surfaces. In other states, we have begun using telehealth platforms for pre-abortion counseling, which reduces unnecessary trips to the clinic for patients and providers, but Texas law requires that certain mandatory disclosures be delivered in person prior to the abortion.
Suspension of Services Following the Governor’s Executive Order 21. On March 22, 2020, Texas Governor Greg Abbott issued Executive Order GA-09 (“Executive Order”), relating to hospital capacity during the COVID-19 pandemic. It is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” to “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve
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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.” Id. at 1. The Executive Order states that this prohibition does 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 COVID19 disaster.” Id.
22. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers.
23. I believe that the Austin clinic can continue to provide abortion care in a manner consistent with the Executive Order, and WWHA has adopted policies and procedures to ensure that the care that we provide while the Executive Order remains in effect is fully compliant with its letter and spirit.
24. On Monday, March 23, 2020, WWHA received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton. That press release was entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.”
25. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type
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Case 1:20-cv-00323-LY Document 7-4 Filed 03/25/20 Page 7 of 9
of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
26. WWHA reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General and other enforcement officials may understand the Executive Order to prohibit “any type of abortion” that entails the use of PPE even though the Executive Order expressly permits abortions that WWHA’s physicians have determined are necessary to “correct a serious medical condition 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,” and/or those that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 health disaster.”
27. Based on this enforcement risk, WWHA has cancelled appointments for more than 20 abortion patients since receiving the Attorney General’s press release. At least two of these patients were in the second-trimester of pregnancy and will be past the legal limit for abortion in Texas by the time the Executive Order expires.
28. Patients continue to call the clinic to schedule appointments. We have to turn them away unless we can be sure that no aspect of their care will require the use of PPE. We expect that, between today and April 21, 2020, we will have to turn away dozens of patients.
29. The Austin clinic’s capacity is limited by the size of the facility, doctor availability, and the need for most patients to make two trips to the clinic to obtain care. The maximum capacity of the Austin clinic is sixty to seventy patients per week. Even if we were able to resume providing
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abortion care on April 22, 2019, which is uncertain, we would not be able to treat all the patients who had been previously been turned away within a week.
Impact on Patients 30. Our patients seek abortion care for a variety of reasons. Many do not have the resources to add an additional child to their family. Some are students who want to complete their education before having children. Some do not want to be tied financially or emotionally to the putative father, or fear abuse if their pregnancy is discovered. 31. Many of the patients who seek care at the Austin clinic are low-income, and many are parents of dependent children. The majority are uninsured. 32. It would be difficult for many of our patients to travel out of state to access abortion care even during normal times. But now, given the travel restrictions and business closures resulting from the COVID-19 crisis, it is nearly impossible. Moreover, in the current circumstances, long-distance travel is both risky and nerve-wracking. 33. Being forced to delay a wanted abortion is also nerve-wracking. Patients who are delayed from accessing abortion must continue to cope with the physical symptoms of pregnancy, which for many include morning sickness. Weight gain will require some to buy new clothes, which can be a financial strain. The longer a patient remains pregnant, the more likely it is that others will discover the pregnancy, including abusive partners or family members. Patients who are delayed from accessing abortion must also cope with the fear of not being able to obtain abortion care in time—and of the life-altering consequences of having to carry an unwanted pregnancy to term. 34. Patients who are delayed past 70 days lmp are no longer eligible for a medication abortion. See Tex. Health & Safety Code § 171.063(a)(2). Patients who are delayed past 14-16
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weeks lmp are no longer eligible for an aspiration abortion, a type of surgical abortion available early in pregnancy, and must instead have a D&E abortion, which is a lengthier and more complex procedure. Patients who are delayed past 17.6 weeks lmp are no longer eligible for an abortion at the Austin clinic or any abortion clinic in Texas. See Tex. Health & Safety Code § 171.004. Patients who are delayed past 22 weeks lmp are no longer able to obtain an abortion in Texas at all, absent a medical emergency. See Tex. Health & Safety Code § 171.044.
35. The cost of abortion care (as well as the medical risks of pregnancy and abortion) increase significantly with gestational age.
36. The patients that the Austin clinic is forced to turn away because of the Attorney General’s threat of enforcement will therefore be harmed in significant and irreparable ways.

Dated: March 25, 2020

Amy Hagstrom Miller
AMY HAGSTROM MILLER

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Case 1:20-cv-00323-LY Document 49-5 Filed 04/02/20 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF TRAM NGUYEN IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I, Tram Nguyen, declare as follows: 1. I am the Senior Director of Quality Assurance & Abortion Access at Planned
Parenthood Gulf Coast (“PPGC”), as well as the Ambulatory Surgical Center Administrator at Plaintiff Planned Parenthood Center for Choice (“PPCfC”), where I have worked since 2006.
2. In my role at PPCfC, I am responsible for the total operation of the ASC, as well as the quality assurance of our healthcare delivery at both PPCfC and PPGC.
3. I submit this declaration in further support of Plaintiffs’ motion for a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 as applied to previability abortion care, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements.
4. The facts and opinions included here are known to me because of my role in overseeing operations related to abortion care at PPCfC’s health centers, including coordinating all of our staff who have been forced to call our patients and tell them that their scheduled
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appointments for abortion care have been cancelled, as well as from personal knowledge. If called and sworn as a witness, I could and would testify competently thereto.
5. On March 31, 2020, I personally saw patients in one health center seeking to obtain a medication abortion—who had already received their counseling, waited for 24 hours, and obtained their ultrasounds—have to suddenly be turned away without being able to take the pill that they came for, because the temporary restraining order had been stayed, and our doctors no longer felt comfortable providing care. The same happened for patients who were at the health center to receive their procedural abortions.
6. I do not understand how PPE is preserved by this action. Many of the medication abortion patients who have been turned away will no longer be able to have medication abortions after the Executive Order’s current expiration date in April 2020, even assuming it expires then, because their pregnancies will have progressed too far. They will instead require procedural abortions, which require more PPE than medication abortions.
7. As of the end of the day on March 31, 2020, PPCFC’s ambulatory surgical center had been forced to cancel appointments for abortion services for 170 patients.
8. I know for certain that at least three of these patients will be beyond the gestational age limit in Texas by the time the Executive Order expires on April 21, 2020, assuming it is not extended. This figure is an underestimate, however, because so many of the 170 patients whose appointments were cancelled had not yet had ultrasounds to date their pregnancies.
9. The staff who have had to make the calls to cancel appointments include reception desk staff and staff educators, who counsel patients about their options and obtain informed consent for procedures, as well as call center employees who generally assist with scheduling.
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10. My understanding is that patients have been uniformly devastated to learn that they cannot obtain their abortions in the state of Texas.
11. One patient was in the clinic, getting an ultrasound, when she heard that she would not be permitted to return for her abortion because enforcement of the Executive Order as to abortion was no longer enjoined. That patient has obtained a diagnosis of a lethal fetal anomaly— anencephaly. I know that she does not independently have the means to travel out of state to obtain an abortion now that she can no longer have one in Texas. If she cannot obtain abortion care at all, she will be forced to carry a pregnancy for many months until she either miscarries or she gives birth to a child that is either stillborn or likely to survive only a few hours before dying. Additionally, as the pregnancy progresses, risks for pregnancy-associated complications increase.
12. At least one of our patients already had a child at home, but said that she could not continue on with being forced to have a baby she does not want, implying that she wanted to kill herself and stating that she might try to induce her own abortion. Staff reminded her that she has a child that needs her, encouraged her to see a physician, and gave her resources to call for further assistance.
13. Another patient had been taking medication which is harmful to a pregnancy. When she was told she could not obtain an abortion in Texas, she became hysterical at the thought that she might have to go off her medication. She was so upset she had to pull over to the side of the road, because she could no longer drive safely.
14. Another patient who is not English proficient was so overcome with sobbing that the interpreter could not understand her well enough to interpret anything she was saying.
15. Another patient was stunned that such decisions could be made with such short notice to people, saying, “I was just there an hour ago and had my ultrasound.”
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16. Some patients asked about out of state referrals, even though reaching nearby out

of state health centers require traveling long distances. Others refused referrals that were offered,

because they simply cannot travel out of state at all, meaning they have been entirely denied access

to abortion care.

17. Many patients who could travel out of state, however, did so. I have heard from a

Planned Parenthood affiliate with health centers in Colorado, New Mexico and Southern Nevada

that they saw 30 patients from Texas in the week after the Attorney General’s statements applying

the Executive Order to abortion, compared with only 16 the prior week. Indeed, I heard that

affiliate’s health centers saw only 35 patients from Texas in the entire month of February.

18. I know of one patient who is a minor and who obtained a judicial bypass order to

get an abortion, and she cannot obtain an abortion in Texas now. I obtained a copy of the judicial

bypass order from the minor’s attorney, a true and correct copy of which is attached hereto as

Exhibit A. That court found, among other things:

a. “Clear and convincing evidence” that the young woman is “mature and sufficiently well-informed to make the decision to have an abortion” and, moreover, that “[n]otifying and attempting to obtain the consent of either the applicant’s parents, managing conservator, or guardian would not be in her best interest”;

b. That, though the Executive Order was already in place, the patient’s ability to obtain an abortion “immediately is medically necessary because compelling her to wait to do so increases the risk to the applicant’s health” and that “compelling applicant to wait until after April 21, 2020, restricts her ability to elect to have the abortion that is the safest procedure for her and increases the risk that she will suffer complications if she elects to have an abortion” and

Exhibit A.

c. That neither medication abortion nor procedural abortion is prohibited by the Executive Order because neither method of abortion “depletes hospital capacity or personal protective equipment needed to cope with the COVID-19 disaster.

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19. That minor patient’s guardian ad litem told me how utterly devastated her client was when she learned that she could no longer obtain an abortion legally in Texas. Given that the client had to obtain a judicial bypass in order to obtain an abortion, it is likely that the patient lacks the resources, both financially and socially, to go out of state to obtain her abortion.
20. After the District Court for the Western District of Texas issued the Temporary Restraining Order on March 30, 2020, and before the Fifth Circuit Court of Appeals stayed that order, I began calling patients back to reschedule their appointments.
21. I cannot sufficiently describe how relieved patients were that they would be able to get their care. Those patients who were making arrangements to leave the state for care were incredibly relieved that they did not have to go out of state.
22. I can only imagine how devastated they will be to learn that their care is, once again, cancelled and that they cannot obtain an abortion. This is particularly true for patients whose pregnancies will have progressed too far to obtain an abortion in Texas once the Executive Order has expired and who will be forced to carry their pregnancies to term. This is also true for patients whose pregnancies will have progressed to the point that they will require a more expensive and involved two-day abortion procedure (which also uses more personal protective equipment). Many of our patients are already on the brink financially as it is, with one patient telling me recently that, due to COVID-19, the money she had saved to travel to obtain her abortion had to be spent on groceries for that week.
23. Even if the Executive Order is not extended, I worry that all the patients who have been denied abortion care will need an appointment at the same time, and that this will create a serious backlog, meaning that patients will need to wait even longer to get the abortion care they
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need. Based on the number of patients we have had to turn away so far1, I would expect a backlog of at least six weeks, assuming the Executive Order is not extended. That means many patients will have been delayed over two months in obtaining an abortion, assuming their pregnancies had not progressed so far that they could no longer obtain an abortion in Texas.
24. I declare under penalty of perjury that the foregoing is true and correct.

Executed April 2, 2020

________________________________ Tram Nguyen

1 The true number of patients turned away includes not only patients whose appointments for abortion care were canceled, it also includes patients who had appointments cancelled for their ultrasound, which Texas law requires be done at least 24 hours prior to the abortion appointment, meaning these patients never had an appointment made for their abortion care.
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EXHIBIT A
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Case 1:20-cv-00323-LY Document 49-3 Filed 04/02/20 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF FRANCES NORTHCUTT IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I, Frances “Poppy” Northcutt, declare as follows: 1. I am an attorney licensed to practice law in the state of Texas. I have
been practicing for nearly forty years. 2. I frequently represent minors as their attorney in obtaining judicial
bypasses to obtain abortions in Texas without parental notification and consent. I also am occasionally appointed as a guardian ad litem for minors seeking judicial bypasses.
3. I have been assisting minors in obtaining judicial bypasses since the Texas bypass statute was first adopted in 1999. I am very familiar with the complex and often devastating life circumstances that lead these young women to not only need an abortion, but also to need a judicial bypass. Some of the young women I have represented have been orphaned and have no one who is legally authorized to sign for them to have an abortion. Others have no parent available to sign for them because the parent is in another country, is mentally or physically incapacitated, has abandoned the
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family, or is incarcerated. Some are refugees from foreign lands separated from their parents by war. Some are sexual assault victims. Many come from homes where they are physically or emotionally abused.
4. I have watched with dismay over the last week as the young women whose interests I represent, who are already in a crisis situation, have been informed that, although they have gone through the process of convincing a Texas judge by clear and convincing evidence that they satisfy the requirements for a judicial bypass, they still may not legally have an abortion in Texas. In my experience, these young women are in no position to travel out of state to obtain medical care, as they lack the financial, social, and familial resources to do so.
5. One young woman for whom I acted as guardian ad litem obtained a judicial bypass because she already has a child and, if her mother discovers that she is pregnant again, she and her existing child will be kicked out of their home and become homeless. Her abortion appointment has been cancelled twice now due to Executive Order No. GA-09. She was devastated when she received the news. At the time that she received her judicial bypass, her pregnancy was in the first trimester. Now with the repeated cancellations, her pregnancy has moved into the second trimester, which makes the procedure more costly and more complicated, and she meanwhile risks becoming a homeless pregnant teen with a young child. I have no idea how she could possibly obtain an abortion out of state.
6. I recently represented another minor who obtained a judicial bypass only to have her appointment cancelled. She is seeking to escape an abusive relationship while also caring for an elderly relative who has cancer. She and her elderly
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relative were alarmed when they learned of the health center's suspended services and concerned about the difficulty of traveling out of state to obtain an abortion.
7. The harm these young women will suffer from not being able to timely obtain abortion care is great and irreparable. They cannot wait three weeks for the Executive Order to expire (even if the Executive Order is not extended, as it seems likely to be). They are in no position economically to travel great distances to obtain an abortion. Each of them has expressed to me their emotional distress at being denied access to a safe and legal abortion. Each has found it confounding to be told by local officials that in response to the COVID-19 virus they should stay at home and not travel while being forced by state officials to either carry a pregnancy against their will, which is riskier to them than an abortion, or to endanger themselves and others by traveling out of state to secure a safe and legal abortion.

Executed April I, 2020

---.-.-
� FrancesN ��L>

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,

Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF ANN SCHUTT-AINE, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Ann Schutt-Aine, M.D., declare as follows:
1. I am a board-certified obstetrician and gynecologist licensed to practice in the state of Texas, and I have been practicing in Houston, Texas, since 2008. I have served as the Chief Medical Officer of Planned Parenthood Center for Choice (“PPCFC”) since 2017.
2. PPCFC is a Texas not-for-profit corporation that is headquartered in Houston. It operates a licensed ambulatory surgical center in Houston and a licensed abortion facility in Stafford. PPCFC and its predecessor organizations have provided abortion in Houston and southeast Texas since 1973.
3. In my current role at PPCFC, I supervise physicians and clinicians and have oversight responsibility for PPCFC’s medical services. This includes responsibility for the quality assurance of those medical services, as well for the promulgation of and adherence to the medical protocols pursuant to which the services are provided. I also provide abortion care.

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4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 as interpreted by the Texas Attorney General to ban all previability abortion in the state except where immediately necessary to protect the life or health of a pregnant person, as well as the Texas Medical Board’s emergency amendment to 22 TAC § 187.57 (“Emergency Rule”), which imposes the same requirements as the Executive Order. I am familiar with the Executive Order, the Emergency Rule, and a press release by the Texas Attorney General interpreting the Executive Order.
5. The facts and opinions included here are based on my education, training, practical experience, information, and personal knowledge I have obtained as an OBGYN and an abortion provider; my attendance at professional conferences; review of relevant medical literature; and conversations with other medical professionals. If called and sworn as a witness, I could and would testify competently thereto.
6. My curriculum vitae, which sets forth my experience and credentials more fully, is attached as Exhibit A. The Executive Order and Threatened Enforcement
7. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.”
2
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Id. at 1. The Executive Order states that this prohibition does 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 [“PPE”] needed to cope with the COVID-19 disaster.” Id.
8. Although the order does not define PPE, I understand that term to refer to surgical masks, N95 respirators (a face covering that is designed to block at least 95 percent of very small test particles and which, when used appropriately, is a more effective filtration system than a surgical mask), sterile and non-sterile gloves, protective eyewear, gowns, and shoe covers.
9. PPCFC has adopted a policy to implement the Executive Order, a true and correct copy of which is attached as Exhibit B. That policy permitted PPCFC to continue offering procedural and medication abortion, consistent with the Executive Order’s purpose and plain language and the views of trusted national medical organizations.
10. On Monday, March 23, 2020, PPCFC received a copy of an email from the Texas Office of the Attorney General announcing a press release by Attorney General Ken Paxton. A true and correct copy of that release, entitled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic,” is attached as Exhibit C.
11. The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-
3
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19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.” PPCFC’s Provision of Abortion Care
12. Legal abortion is one of the safest medical procedures in the United States.1 There are two main methods of abortion: medication abortion and procedural abortion. Both methods are effective in terminating a pregnancy.2 Complications from both medication and procedural abortion are rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than onequarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester procedural abortion cases, and in 0.41% of procedural cases in the second trimester or later.3 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.4
13. Medication abortion involves a combination of two pills: mifepristone and misoprostol.5 The patient takes the first medication in the health center and then, typically twentyfour to forty-eight hours later, takes the second medication at a location of their choosing, most
1 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018).
2 Luu Doan Ireland et al., Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecol. 22 (2015).
3 Ushma Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecol. 175 (2015).
4 Ushma Upadhyay, et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16(1) BMC Med. 1, 1 (2018).
5 Nat’l Acads., supra note 1, at 51. 4
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often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Medication abortion is not a “procedure.”
14. Current medical evidence demonstrates that medication abortion is safe and effective through eleven weeks of pregnancy as measured from the first day of a pregnant patient’s last menstrual period (“LMP”). However, Texas law, Tex. Health & Safety Code § 171.063, restricts the first drug used in medication abortion to use as described in the federally approved label, which is for pregnancies less than ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-informationpatients-and-providers/mifeprex-mifepristone-information. Accordingly, although PPCFC would provide medication abortion up to eleven weeks LMP if it could legally do so, it currently cannot provide this method of abortion in Texas beyond ten weeks LMP (through seventy days).
15. Texas law also requires that medication abortion be preceded by an ultrasound, Tex. Health & Safety Code § 171.012(a)(4), and followed by an in-person follow-up appointment within fourteen days, Tex. Health & Safety Code § 171.063(a)(2), (e), even though neither step is medically necessary in every case.
16. While sometimes referred to as “surgical abortion,” procedural abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Up to approximately fifteen weeks LMP, clinicians use the aspiration abortion technique, which involves dilating the natural opening of the cervix using medications and/or small, expandable rods, inserting a narrow, flexible tube into the uterus, and emptying the uterus through suction. This procedure typically takes five to ten minutes. To perform abortions after that gestational point in pregnancy, clinicians must dilate the cervix further and use instruments to empty the uterus, which is called the dilation and evacuation (“D&E”) technique.
5
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Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself. In the absence of a lethal fetal anomaly, PPCFC performs procedural abortion up to twentyone weeks, six days LMP.
17. For some patients with pregnancies less than ten weeks LMP, medication abortion is not available because it is contraindicated or there are other factors that necessitate a procedural abortion, such as where the patient has an allergy to the medications or other medical conditions that make procedural abortion relatively more safe.6
18. In 2019, PPCFC performed 6,152 abortions. Of those, 1,083 occurred beyond ten weeks LMP, and were therefore necessarily performed as procedural abortion. Of those 5,069 occurring before ten weeks LMP, 2,877 were done by procedural abortion and the remainder by medication abortion.
19. In January and February 2020, PPCFC performed 1,074 abortions, 216 of which occurred beyond ten weeks LMP and were therefore necessarily performed as procedural abortions. Of those 858 abortions occurring before ten weeks LMP, 429 were done by procedural abortion and the remainder by medication abortion.
20. Individuals seek abortion for a multitude of complicated and personal reasons. By way of example, some patients have abortions because they conclude it is not the right time to become a parent or have additional children,7 they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or
6 Nat’l Acads., supra note 1, at 51–52. 7 Indeed, a majority of women having abortions in the United States already have at least one child. Guttmacher Inst., Induced Abortions in the United States 1 (2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; see also Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda, Guttmacher Inst., Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, at 6, 7 (2016), https://www.guttmacher.org/sites/default/ files/report_pdf/characteristics-us-abortion-patients-2014.pdf.
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stability.8 Other patients seek abortions because continuing with the pregnancy could pose a
greater risk to their health.9 Indeed, while much is unknown about COVID-19, including whether
it can complicate pregnancy, some pregnant people may be exposed to additional health risks from
the disease. The American College of Obstetricians and Gynecologists (“ACOG”) has warned that
“pregnant women are known to be at greater risk of severe morbidity and mortality from other
respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be
considered an at-risk population for COVID-19.”10
21. The window during which a patient can obtain an abortion in Texas is limited.
Pregnancy is generally forty weeks in duration, but Texas prohibits abortion after twenty-two
weeks LMP. See Tex. Health & Safety Code § 171.044.11
22. Although abortion is a very safe medical procedure, the health risks associated with
it increase with gestational age.12 As ACOG and other well-respected medical professional
organizations have observed, abortion “is an essential component of comprehensive health care”
8 That strain is all the more apparent if one considers that the vast majority— approximately 75%—of abortion patients nationwide are poor or have low incomes. Guttmacher Inst., Induced Abortions in the United States 1, supra note 7.
9 M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13 BMC Women’s Health 7 (2013).
10 Am. Coll. of Obstetricians & Gynecologists, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/ practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-womenfaq.html.
11 This provision prohibits an abortion when “the probable post-fertilization age of the unborn child is 20 or more weeks.” Id. “Post-fertilization age” means “the age . . . as calculated from the fusion of a human spermatozoon with a human ovum,” id. § 171.042, which is two weeks before a patient’s last menstrual period. Thus, twenty weeks post-fertilization age is twenty-two weeks LMP.
12 Nat’l Acads., supra note 1, at 77–78, 162–63. 7
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and “a time-sensitive service for which a delay of several weeks, or in some cases days, may
increase the risks [to patients] or potentially make it completely inaccessible.”13
23. Patients generally seek abortion as soon as they are able, but many face logistical
obstacles that can delay access to abortion care. Patients will need to schedule an appointment,
gather the resources to pay for the abortion and related costs,14 and arrange transportation to a
clinic, time off of work (often unpaid, due to a lack of paid time off or sick leave), and possibly
childcare during appointments.15 Texas law requires most patients to make these arrangements
multiple times even though they could just as safely obtain care in one visit. Tex. Health & Safety
Code § 171.012 (mandating that patients receive an ultrasound at least twenty-four hours before
an abortion procedure).16 Delay results in higher financial and emotional costs to the patient. Minor
patients, unless emancipated, must also obtain written consent from a parent or a judicial order
before they can receive care. Tex. Family Code § 33.003.
24. The COVID-19 pandemic has only exacerbated these burdens on patients seeking
abortion care. It has limited public transit availability, caused layoffs and other work disruptions,
13 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
14 Texas prohibits public insurance, including Medicaid, and insurance purchased on the state health exchange from covering abortion services except in the very limited circumstances where a patient’s physical health or life is at risk, or where the pregnancy is a result of rape or incest that has been reported to law enforcement. Tex. Insurance Code § 1218.001; Tex. Human Resources Code § 32.024.
15 Jerman et al., supra note 7; Sarah E. Baum et al., Women’s Experience Obtaining Abortion Care in Texas After Implementation of Restrictive Abortion Laws: A Qualitative Study, 11 PLoS One 1, 7–8, 11 (2016); Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, & Ann M. Moore, Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 335 (2006).
16 A patient who lives more than 100 miles from the nearest abortion provider can rely on a waiver of the twenty-four requirement, but will still be subjected to a two-hour requirement. See id.
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shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation and childcare support during a time of recommended social-distancing.17 Indeed, jobless claims are soaring due to the virus.18
25. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. And while clinicians performing procedural abortion at PPCFC use some PPE, such as gloves for each procedure, a mask, and protective eyewear, only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.19 For an ultrasound or laboratory exam, including one that accompanies medication or procedural abortion, we use only non-sterile gloves.

17 Tex. Exec. Order No. GA-08 (Mar. 19, 2020) (closing Texas schools and discouraging

Texans from participating in non-essential activities); Jacqulyn Powell, Will Child Care Centers

Shut Down During COVID-19 Outbreak?, KXAN, Mar. 23, 2020, https://www.kxan.com/news/

education/will-child-care-centers-shut-down-during-covid-19-outbreak/ (“Statewide, the

Department of Health and Human Services says 2,400 child care operations have reported closures

due to COVID-19.”); Metro. Transit Authority of Harris Cty., METRO Response to Coronavirus

(COVID-19), https://www.ridemetro.org/Pages/Coronavirus.aspx (last visited Mar. 24, 2020)

(public transit authority in Harris County noting a “sharp ridership decline” and announcing

reduced frequency of bus services and reducing customer seating); see also White House, The

President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/

wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf;

Rebecca

Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More

Weeks, NBC News, Mar. 20, 2020, https://www.nbcnews.com/politics/donald-trump/fauci-

predicts-americans-will-likely-need-stay-home-least-several-n1164701.

18 See Matt Largey, COVID-19 Is Costing People Their Jobs. Here’s How to Apply for Unemployment in Texas, KUT 90.5, Mar. 19, 2020, https://www.kut.org/post/covid-19-costingpeople-their-jobs-heres-how-apply-unemployment-texas (Texas unemployment claims between March 15 and March 18 were eleven times higher than for the same period in 2019); Tex. Workforce Comm’n, TWC Extends Call Center Hours (Mar. 23, 2020), https://twc.texas.gov/ news/twc-extends-call-center-hours (Texas Workforce Commission reporting that it has received “an unprecedented call volume as a result of COVID-19”).

19 Per CDC guidance, PPCFC provides patients for whom there is a concern for COVID19 or other upper respiratory disease with a mask. Ctrs. for Disease Control & Prevention,

9

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26. By comparison, even if a provider of prenatal care reduces the scheduling of such care during the COVID-19 outbreak, it will still involve use of masks, sterile gloves, and potentially other PPE during multiple visits.20 A patient continuing a pregnancy will thus require significantly more PPE than a patient presenting for abortion. Furthermore, every time a pregnant person presents to the hospital for evaluation prior to labor, which could happen multiple times, this will require the use of masks and sterile gloves. An actual birth could involve anywhere from seven to ten gowns, masks, and sterile gloves.
27. PPCFC does not use or have any N95 respirators, which I understand are the PPE in shortest supply during the COVID-19 pandemic.
28. PPCFC does not provide inpatient care, nor is it set up to do so. PPCFC’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
29. PPCFC is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
30. Since the COVID-19 outbreak, PPCFC has taken steps to preserve much-needed medical resources and help prevent the spread of COVID-19 in the communities where we offer services. Even before the Governor’s order, for example, we had reduced our patient volume to ensure that we comply with current social-distancing recommendations. In addition, although in normal times we welcome support companions accompanying abortion patients, we have decided
Frequently Asked Questions about Personal Protective Equipment (Mar. 14, 2020), https://www. cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html.
20 ACOG, Examples of Alternate or Reduced Prenatal Care Schedules (Mar. 24, 2020), https://www.acog.org/en/Clinical%20Information/Physician%20FAQs/-/media/287cefdb936e4c da99a683d3cd56dca1.ashx.
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not to allow such companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
31. We have also made dramatic changes to the flow of our patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever. Only those individuals who are thoroughly screened can proceed to the front desk to check in and provide their phone number. Patients are then asked to wait in their cars, where a nurse will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
32. PPCFC reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that PPCFC’s physicians have determined are necessary to “correct a serious medical condition 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,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
33. Based on this enforcement risk, PPCFC has already cancelled services for more than fifty abortion patients through Wednesday of this week.
34. PPCFC will cancel non-emergency future procedural abortion appointments unless and until the Executive Order and Emergency Rule expire or are rescinded, or unless the Court grants relief. Additionally, because of the AG’s interpretation of the Executive Order, we have
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cancelled all non-emergency medication abortions until we obtain clarity on the scope of the Executive Order or the Court grants relief.
35. Even if each one of these patients were able to access abortion after the order’s current expiration date (i.e., even if the order is not extended), many of the medication abortion patients would require procedural abortions instead (and correspondingly greater amounts of PPE), and some procedural abortion patients would require a comparatively more complicated procedural abortion method using the D&E technique. That technique requires more time in the clinic and a larger number of staff than aspiration abortion, another method of procedural abortion. Moreover, because these patients would continue to be pregnant for a longer period of time, they would also be at increased risk of negative health outcomes if they are diagnosed with COVID19.21 Other patients could be foreclosed from receiving an abortion altogether because the delay of the order would extend their pregnancies beyond the legal gestational limit for abortion in Texas.
36. The Executive Order could well exacerbate the COVID-19 crisis, by delaying abortion care for patients with health problems until they need intensive emergency care or by forcing patients to travel to other states, potentially using public transportation, even though public health experts have advised the public to minimize activities outside the home. If the Executive Order, as interpreted by the Attorney General, is enforced, it will deprive PPCFC’s patients of the freedom to make a very personal decision, in consultation with their families and doctors, regarding whether to continue or end their pregnancies. It will harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
21 Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID19 and Pregnant Women, supra note 10.
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37. Without access to PPCFC’s abortion services and those of other Texas abortion
providers, some patients will be forced to travel hundreds of miles across state lines to try to access
abortion care. Given the logistical hurdles of traveling out-of-state, particularly during the COVID-
19 pandemic, these patients are likely to obtain abortions later than they would have had they accessed care from PPCFC, which necessarily entails greater risks than an earlier procedure.22
Efforts to travel are also likely to expose both patients and other people to additional risk of
contagion, at a time when other states and Texas’s most populous counties have given urgent
directives to their citizens to stay home as much as possible to avoid inadvertently spreading the
COVID-19 virus.
38. For other patients, travel to another state will simply not be possible to the extent
travel remains legally possible during the pandemic. As a result, these patients will be forced to
carry unwanted pregnancies to term, resulting in a deprivation of their fundamental right to
determine when and whether to have a child or to add to their existing families, as well as greater health and other risks to them and their children.
39. Even if some patients affected by the Executive Order are able to obtain an abortion
after the order is lifted, they will still suffer increased risks to their health by the delay in access to abortion care.23 Many will also face increased costs related to abortion, as their abortion access is
22 As of this filing, eighteen Texas counties have issued stay-at-home orders. See Wes Wilson, Here’s Which Texas Cities and Counties Have Issued Stay-at-Home Orders, KXAN (last updated Mar. 24, 2020), https://www.kxan.com/news/coronavirus/heres-which-texas-citiesand-counties-have-issued-stay-at-home-orders/; Alex Samuels, Texas’ Largest Counties Are Issuing Stay-at-Home Orders, Tex. Tribune (Mar. 23, 2020), https:// www.texastribune.org/2020/03/23/austin-travis-county-issue-stay-home-order-tuesday/. In some counties, non-compliance with these orders is punishable by fines or jail time. See, e.g., Texas County’s Curfew Amid Coronavirus Spread is Punishable by Fines Up to $1,000, Jail Time, WHNT News 19 (Mar. 21, 2020), https://whnt.com/news/texas-countys-curfew-amidcoronavirus-spread-is-punishable-by-fines-up-to-1000-jail-time/.
23 Nat’l Acads., supra note 1, at 77–78, 162–63.
13
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pushed to later gestational points when abortion is more expensive and may require a two-day procedure, instead of one. These costs, in turn, will likely lead to additional delay and present an even greater hardship to vulnerable populations during the economic fallout of the COVID-19 pandemic.
40. Although the Order indicates that it will expire after a 30-day period, the likelihood that it will be extended is high. Certainly it is clear that the pandemic is likely to continue well beyond this period.24
41. I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

onions ________________________________
Ann Schutt-Aine, M.D.

24 See, e.g., Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/healthcare-supply-ppe.html.
14
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EXHIBIT A
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Ann I. Schutt-Ainé, MD, FACOG

E​DUCATION​ ​AND​ T​RAINING

U​NDERGRADUATE​: September 1992 – May 1996

Yale University New Haven, CT BS, Biology, 1996 cum laude​, distinction in Biology

G​RADUATE​: September 1996 – June 2000

Harvard Medical School Boston, MA MD, 2000

P​OSTGRADUATE​:

June 2000 – June 2004

Magee-Womens Hospital of the

University of Pittsburgh Medical Center

Pittsburgh, PA

Obstetrics, Gynecology and Reproductive Sciences

P​ROFESSIONAL​ E​XPERIENCE

August 2017 – Present

Chief Medical Officer Planned Parenthood Gulf Coast Houston, TX

April 2017 – August 2017

Medical Director Planned Parenthood Gulf Coast Houston, TX

September 2008 – Present

Assistant Professor, Obstetrics and Gynecology Baylor College of Medicine Houston, TX

September 2011 – March 2017

Associate Medical Director Planned Parenthood Gulf Coast and PPCfC Houston, TX

August 2008 – Present August 2007 – July 2008

Contract Physician Planned Parenthood Center for Choice (PPCfC) Houston, TX
Associate Medical Director, Ob/Gyn

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Planned Parenthood Golden Gate San Francisco Bay Area

July 2004 – July 2007

Obstetrician/Gynecologist Primary Care Health Services, Inc. Pittsburgh, PA

March 2004 – June 2007 Planned Parenthood of Western Pennsylvania

Contract Physician Pittsburgh, PA

A​DDITIONAL​ ​TRAINING​/​EXPERIENCE

October 2018 – March 2019

US Physician Leadership Academy A six-month program produced by Deloitte and the Wharton School, “targeted to practicing physicians who have taken on increasing levels of leadership and administrative responsibility in their careers and aspire to be enterprise-wide leaders.”

February 2015

Excellence in Family Planning Research Course An intensive one week course in epidemiology, research design, and evidence-based medicine.

September 2009 – April 2010

Fellow – Leadership Training Academy

Physicians for Reproductive Choice and Health

An eight-month, intensive program aimed to develop and internalize the skills and attributes needed

to be a powerful, effective advocate for

comprehensive sexual and reproductive health

care.

A​PPOINTMENTS​ ​AND​ P​OSITIONS

A​CADEMIC

September 2008 – present

Assistant Professor, Obstetrics and Gynecology

Director – Ryan Residency Training Program in Family Planning (2010-2018)

July 2004 – July 2007

Clinical Assistant Professor of Obstetrics, Gynecology and Reproductive Sciences University of Pittsburgh School of Medicine

N​ON​-A​CADEMIC April 2011 – April 2019

Board of Directors, National Abortion Federation

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Chair, Quality Assessment and Improvement Committee Chair-Elect, Board of Directors: 2015-2016 Chair, Board of Directors: 2016-2018
C​OMMITTEES​/O​THER​ A​CTIVITIES
ACOG District XI Legislative Committee (2013) ACOG Committee on Healthcare for Underserved Women (2015-2019) Baylor College of Medicine, Department of Ob/Gyn Clinical Competencies Committee Ben Taub Hospital Ob/Gyn Quality Committee Ben Taub OB/GYN Peer Review Committee Houston Endowment’s Improving Maternal Health Initiative – Implicit Bias Workgroup Society of Family Planning Clinical Affairs Subcommittee Trainer – Merck/Nexplanon contraceptive implant (2011 – 2016)
C​ERTIFICATION​ ​AND​ L​ICENSURE
M​EDICAL​ L​ICENSURE​: Texas medical license Louisiana medical license California medical license (expired) Pennsylvania medical license (expired) DEA license
S​PECIALTY​ C​ERTIFICATION​: Certified Diplomate of the American Board of Obstetrics and Gynecology, December 2006
M​EMBERSHIP​ ​IN​ P​ROFESSIONAL​ ​AND​ S​CIENTIFIC​ S​OCIETIES
American College of Obstetricians and Gynecologists, 1999 – present National Medical Association, 2001 – present Pennsylvania Medical Society, 2005 – 2007 Pittsburgh Obstetrical and Gynecology Society, 2005 – 2007 Association of Reproductive Health Professionals, 2007 – present Harris County Medical Society, 2007 – present Houston Medical Forum, 2009 – present National Abortion Federation, 2010 – present Society of Academic Specialists in General Obstetrics and Gynecology, 2013 – present
H​ONORS
National Health Service Corps Scholarship Recipient, 1997 Medical Student Teaching Award, 2001 National Medical Association/NIH Resident Travel Award, 2001 Fulbright and Jaworski Faculty Excellence Award in Training and Evaluation, 2012
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English Spanish

L​ANGUAGES​ S​POKEN

P​UBLICATIONS

Schutt-Aine A, Crabtree D, Peck M and Levy JS. R1022: 34-year-old G2P2 Caucasian female who desires contraception [Internet]. Newtown Square, PA: CaseNetwork; 2015. http://cases.casenetwork.com​.

Contraceptive Procedures Beasley A and Schutt-Ainé A. Obstet Gynecol Clin North Am. 2013 Dec;40(4):697-729.

Schutt-Aine AI and Timmins AE (2013). Sexual Assault Examination. In EF Reichman (Ed.), Emergency Medicine Procedures (Second Edition). New York: McGraw Hill Education.

Linares AC and Schutt-Aine, AI (2011). Contraception. In R. Rakel and D.Rakel (Eds.), Textbook of Family Medicine (Eighth Edition). Philadelphia: Saunders.

I​NVITED​ P​RESENTER​/P​ANELIST

“What do women need and want with respect to contraception after medical abortion?” – Gynuity Health Projects Conference, Contraception after Medical Abortion: Evidence-based Practice to Meet Women’s Needs; Santa Monica, CA; March 2016

“Real World Systems Change” – Physicians for Reproductive Health Alumni Professional Development Summit; Washington, DC; May 2016

“Métodos y esquemas medicamentosos para la interrupción lega del embarazo (ILE)” – Gynuity Health Projects and Corporación Miles Conference, Uso de Mifepristona y Misoprostol en la Ginecología y Obstetricia; Santiago, Chile; August 2017.

“In Pursuit of Healthcare Equality, The Healthcare Crisis for Women in Texas: Maternal Mortality and Other Medical Issues” – Anti-Defamation League Women’s Initiative Breakfast; Houston, TX; March 2018

Keynote Address – ACLU of Texas Reproductive Freedom in Action Annual Conference; April 2018

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EXHIBIT B
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Planned Parenthood Center for Choice (“PPCFC”) Policy in Response to Texas Executive Order GA 09 Relating to Hospital Capacity During the COVID-19 Disaster
PURPOSE
In light of the global pandemic of COVID-19, Governor Abbott signed Executive Order (“EO”) GA 09 on March 22, 2020, attached, which is in effect until 11:59 p.m. on April 21, 2020. EO GA 09 directs “all licensed health care professionals and all licensed health care facilities” 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 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.” EO GA 09 goes on to state that this prohibition does 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.”
POLICY
To comply with EO GA 09, PPCFC hereby establishes the following policies which shall remain in effect until rescinded or modified:
1. Surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or 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, and which would deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster, are not to be scheduled while this policy is in effect.
2. Physicians shall determine on a case-by-case basis whether a procedure that would deplete hospital capacity or personal protective equipment needed to cope with COVID-19 can be delayed without risk for serious adverse medical consequences or death.
3. PPCFC’s physicians have made the determination that abortion is a time-sensitive service and an essential component of comprehensive care, for which a delay of 30 days, or even less, increases the risks to patients, or make abortion completely inaccessible, and that such delay in accessing or inability to access an abortion exposes patients to risk of a serious adverse medical consequence.
4. In making this determination, PPCFC’s physicians considered or will consider the following:
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a. The purpose and text of EO GA 09, namely: concern for “a shortage of hospital capacity or personal protective equipment” that could “hinder efforts to cope with the COVID-19 disaster.”
b. The stated 30-day duration of a the delay, taking into account the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
c. The fact that pregnancy has a duration of approximately forty weeks, as measured from the first day of a woman’s last menstrual period (LMP) and that most abortions are banned in Texas beginning at 20 weeks gestation. Tex. Health & Safety Code § 171.044.
d. The fact that, while abortion is an extremely safe medical procedure, delay increases the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 16263 (2018). Delay is of particular concern during the COVID-19 crisis, given guidance from the Center for Disease Control (“CDC”) and American College of Obstetricians and Gynecologists (“ACOG”) that pregnant women may be at heightened risk of severe illness, morbidity, or mortality from viral respiratory infections such as COVID-19.1
e. The Joint Statement by the American College of Obstetricians and Gynecologists (“ACOG”), the American Association of Gynecologic Laparoscopists, et al., on Elective Surgeries2, issued March 16, 2020, which states that “Obstetric and gynecologic procedures for which a delay will negatively affect patient health and safety should not be delayed. This includes gynecologic procedures and procedures related to pregnancy for which delay would harm patient health. Obstetrician–
1 Available at https://www.acog.org/clinical/clinical-guidance/practiceadvisory/articles/2020/03/novel-coronavirus-2019 and https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq.html
2 Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-electivesurgeries
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gynecologists and other health care practitioners should be aware of the unintended impact that policies responding to COVID-19 may have, including limiting access to time-sensitive obstetric and gynecological procedures.” f. The Joint Statement by the ACOG, the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak3, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a timesensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.” 3. All procedures which cannot be reasonably delayed and thus which are scheduled and performed, in accordance with the above considerations and in compliance with EO GA 09, shall be performed while making every effort to conserve PPE and to reduce the possibility of spread and transmission of COVID-19.
3 Available at https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak
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EXHIBIT C
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(https://www.texasattorneygeneral.gov/)

Menu

March 23, 2020
Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic

Texas Attorney General Ken Paxton today warned all licensed health care professionals and all licensed health care facilities, including abortion providers, that, pursuant to Executive Order GA 09 issued by Gov. Greg Abbott, they must postpone all surgeries and procedures that are not immediately medically necessary.

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On Saturday, Gov. Abbott issued an executive order that “all 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.” This prohibition applies throughout the State and to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.
The COVID-19 pandemic has increased demands for hospital beds and has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus. Postponing surgeries and procedures that are not immediately medically necessary will ensure that hospital beds are available for those suffering from COVID-19 and that PPEs are available for health care professionals. Failure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.
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“We must work together as Texans to stop the spread of COVID-19 and ensure that our health care professionals and facilities have all the resources they need to ght the virus at this time,” said Attorney General Paxton. “No one is exempt from the governor’s executive order on medically unnecessary surgeries and procedures, including abortion providers. Those who violate the governor’s order will be met with the full force of the law.”
For information on the spread or treatment of Coronavirus (COVID-19), please visit the Texas Department of State Health Services (https://dshs.texas.gov/coronavirus/) website.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF JOSHUA SHARFSTEIN, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Joshua Sharfstein, M.D., declare as follows: 1. I am Professor of the Practice in Health Policy and Management at the Johns
Hopkins Bloomberg School of Public Health. 2. I am offering this declaration on my own behalf and not on behalf of Johns Hopkins
University. 3. Prior to my current position, I served as Secretary of the Maryland Department of
Health and Mental Hygiene (including during the Ebola pandemic in 2014), the Acting Commissioner and then the Principal Deputy Commissioner of the U.S. Food and Drug Administration (including during the H1N1 Flu pandemic of 2009), and Commissioner of Health for the City of Baltimore. I have been elected as a member of the National Institute of Medicine and the National Academy of Public Administration. My complete curriculum vitae is attached as Exhibit A.
4. My areas of teaching and research include public health crisis and response, healthcare payment, and the opioid epidemic. I teach a class entitled “Crisis and Response in Public

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Health Policy and Practice” and am the author of the Public Health Crisis Survival Guide: Leadership and Management in Trying Times, from Oxford University Press.
5. I am closely following the COVID-19 pandemic. I have written articles about the pandemic in the Journal of the American Medical Association, USA Today, and the New York Times.
6. I understand that as part of its efforts to conserve personal protective equipment and hospital resources, Texas has issued an executive order barring “all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition, 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,” with an exception for surgeries or procedures that “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”
7. I further understand that Texas state officials have interpreted this executive order to prohibit most or all abortion services in the state, and that if a patient is not able to obtain an abortion in Texas while this prohibition remains in effect, they will be forced to either remain pregnant for the duration of the order or travel to another state to attempt to obtain an abortion.
8. Delaying non-essential procedures is a responsible act by public health officials and the healthcare system as a mitigation measure during a public health crisis. However, multiple medical professional organizations,1 led by the American College of Obstetricians and Gynecologists (“ACOG”), have stated that
1 These include: the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine.
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Abortion is an essential component of comprehensive health care. It is also a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks or potentially make it completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being. Joint Statement on Abortion Access During the COVID-19 Outbreak, ACOG (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-duringthe-covid-19-outbreak. If Texas is leaving to physicians the determination of whether a procedure can be delayed without risk of serious adverse medical consequences, it does not make sense from a public health perspective to categorically exclude abortion services from this area of clinical judgment. 9. I am concerned that stopping abortion care will unnecessarily complicate the response to the coronavirus pandemic and, indeed, may worsen the public health crisis for three reasons. 10. First, if patients travel to attempt to obtain an abortion in another state, they will expose themselves and others they come in contact with to an increased risk of COVID-19 infection. 11. Second, I have reviewed the declaration of Dr. Schutt-Aine (Decl. of Anne SchuttAine, M.D., in Supp. of Pls.’ Mot. for TRO & Prelim. Inj., attached as Ex. 7 to Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 7-7) and understand from that declaration that if patients are delayed for weeks or more in obtaining an abortion, some will be required to have a two-day procedure instead of a one-day procedure, or a procedural abortion instead of a medication abortion, and that either of these changes results in the use of more personal protective equipment. 12. Third, there is concern that coronavirus infection is more severe in pregnant women. ACOG has stated, Currently available data on COVID-19 does not indicate that pregnant women are at increased risk. However, pregnant women are known to be at greater risk of severe
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morbidity and mortality from other respiratory infections such as influenza and SARSCoV. As such, pregnant women should be considered an at-risk population for COVID-19. Practice Advisory: Novel Coronavirus 2019 (COVID-19), ACOG (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-2019. Delaying a woman from being able to access abortion services may increase the risk for a severe infection that places her and the healthcare system at greater risk. 13. I understand that state officials are taking the position that prohibiting most or all abortion services in the state for some period of time is acceptable because services may be resumed in three weeks absent additional action. Given the trajectory of the pandemic, it is highly unlikely that the United States or Texas will be in a substantially better position in three weeks. The White House has made recommendations for social distancing to be in place until at least April 30. With respect to personal protective equipment, the Centers for Disease Control and Prevention (“CDC”) has stated that “shortfalls may be anticipated to continue for the next 3–4 months.” Healthcare Supply of Personal Protective Equipment, CDC, Nat’l Center for Immunization and Respiratory Diseases (NCIRD), Division of Viral Diseases (last reviewed Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/healthcare-supply-ppe.html. It is thus foreseeable that the state will have no basis to change its position in three weeks, which will exacerbate the unintended consequences mentioned above. 14. Texas has other public health measures available that are calculated to be more effective than prohibiting abortion, such as imposing more stringent social distancing measures, which many other states have done and which are showing results in reducing the number of coronavirus infections.
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15. As another alternative to the current approach, Texas could take steps to assure that all healthcare providers, including providers of abortion services, have specific plans to reduce spread of coronavirus infection.
16. These alternative steps would accomplish the goals of the state in the coronavirus pandemic, unlike the policy at issue in this case.
17. I declare under penalty of perjury that the foregoing is true and correct.

Executed on: April 2, 2020

Joshua Sharfstein, M.D.

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EXHIBIT A
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PROFESSIONAL EXPERIENCE

1/15 -

Faculty, Johns Hopkins Bloomberg School of Public Health

Professor of the Practice in the Department of Health Policy and Management. Associate Dean for Public Health Practice and Training (1/15-3/18). Inaugural Director, Bloomberg American Health Initiative (11/15-). Vice Dean for Public Health Practice and Community Engagement (3/18-)

1/11 - 12/14

Secretary, Maryland Department of Health and Mental Hygiene

Appointed by Governor Martin O’Malley and confirmed by Maryland State Senate. Co-chair of Maryland Health Care Quality & Cost Council and chair of Maryland Health Benefit Exchange.

3/09 - 1/11

Acting Commissioner (until 6/09) and then Principal Deputy Commissioner, U.S. Food and Drug Administration

Appointed by President Barack Obama to second-highest ranking position in the agency.

12/05 - 3/09

Commissioner of Health, Baltimore City

Appointed by Mayor Martin O’Malley and re-appointed by Mayor Sheila Dixon, with confirmation by City Council, to lead the oldest, continuously operating health department in the United States. Chair of Baltimore Substance Abuse Systems, Inc., Baltimore Healthcare Access, Inc., Baltimore City Healthy Start, Inc., and Baltimore Animal Rescue and Care Shelter, Inc.

7/01 - 12/05

Minority Professional Staff and Health Policy Advisor, Government Reform Committee, U.S. House of Representatives.

For Congressman Henry A. Waxman.

PROFESSIONAL ACTIVITIES
Society Membership and Leadership
● Elected Fellow, Institute of Medicine, 2014-Present ● Elected Fellow, National Academy of Public Administration, 2013-Present ● Fellow, American Academy of Pediatrics, 2001-Present

2
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Advisory Panels
● Member, Committee of Science, Technology, and Law of the National Academies of Science, Engineering, and Medicine.
● Co-Chair, Population Health Roundtable, National Academies of Science, Engineering and Medicine, 1/18-
● Chair, Advisory board for Network for Public Health Law, 6/2017- 2/2019.
● Member, Board on Population Health and Public Health Practice, Institute of Medicine, 2007-2009 and 2013-2019.
● Member, Health Information Technology Policy Advisory Committee, U.S. Department of Health and Human Services, 2012-2014.
● Member, Advisory Board, Leadership for Healthy Communities, 2007-2009
EDITORIAL ACTIVITIES
Peer Review Activities (recent)
● Journal of the American Medical Association ● New England Journal of Medicine ● JAMA Internal Medicine ● JAMA Pediatrics ● Pediatrics
Editorial Board Membership
● Journal of the American Medical Association, 2011- . ○ Co-editor of Special Issue on Health Policy, November 13, 2013.
● Public Health Reports, Contributing Editor for Local Acts, 2007-2009
Other Editorial Activity
● Guest Editor, JAMA Internal Medicine, October 2014 issue on medical devices

HONORS AND AWARDS

2018

Advising, Mentoring, Teaching Recognition Award, Johns Hopkins Bloomberg School of Public Health

3
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2014
2013
2008 1999 1996
1994 1991

Heart Healthy, Stroke Free Award, National Forum for Heart Disease & Stroke Prevention
Circle of Commendation Award, Consumer Product Safety Commission NARAL Pro-Choice Maryland Leadership Award
Public Official of the Year, Governing Magazine
Alpha Omega Alpha, Boston University School of Medicine
Rose Seegal Award for Research, Community Service Award, Robert H. Ebert Prize in Primary Care, Harvard Medical School
Jay S. Drotman Memorial Award, American Public Health Association
Phi Beta Kappa, Thomas Temple Hoopes Prize, Frederick Sheldon Traveling Fellowship, Harvard College

Named Lectureships

February 6, 2019
October 25, 2019
May 24, 2018 November 15, 2016 April 18, 2014 October 15, 2013
June 26, 2013 October 4, 2012

Ernest M. Haddad Lecture. Massachusetts General Hospital Internal Medicine Grand Rounds. ​Mission Impossible? Asking Health Care to Advance the Health of the Population
C. Everett Koop Distinguished Lecture, C. Everett Koop Institute, Dartmouth College. ​The Politics of Public Health: The Case of the Opioid Epidemic.
Leon Kassel Lecture, Sinai Hospital. ​The U.S. Opioid Epidemic: Past, Present, and Future.
John C. Robinson Lecture, Massachusetts General Hospital for Children. Will Changes in Healthcare Mean Better Health for Children?
Charles C. Leighton MD Memorial Lecture, Leonard Davis Institute at the University of Pennsylvania. ​Maryland’s Unique Hospital Payment Policy.
Seidman Lecture, Harvard Medical School. ​Lashed to the Mast: Navigating through Health CarePolicy, Politics, and Reform in 2014 and Beyond.
Hunt Lectureship, Maryland State Medical Society. ​History of the FDA.
Hirsch Lecture in Health Law and Policy, George Washington School of Public Health. ​Aligning Health Care with Health.

4
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April 26, 2012 April 27, 2011 October 5, 2010 April 24, 2010 August 21, 2008

Albert J. Himelfarb Lecture, Sinai Hospital Department of Medicine, Health Care 2015 -- and How Do We Get There?
Paul A. Harper Lecture, Johns Hopkins Bloomberg School of Public Health, ​Advocacy for Children
Francis S. Balassone Lecture, University of Maryland School of Pharmacy. ​Regulation at FDA
Theodore E. Woodward Annual Lecture, University of Maryland School of Medicine, ​FDA, Clinical Medicine, and Public Health
Moira J. Whitehead Memorial Lecture, Children’s Hospital of Pittsburgh. From Bedside to Policy: Pediatrics and Public Health

PUBLICATIONS
Journal Articles​:​ Peer Reviewed Studies and Reviews
1. Heyward J, Olson L, Sharfstein JM, Stuart EA, Lurie P, Alexander GC. Evaluation of the Extended-Release/Long-Acting Opioid Prescribing Risk Evaluation and Mitigation Strategy Program by the US Food and Drug Administration: A Review. JAMA Intern Med. 2019 Dec 30. [Epub ahead of print]
2. Pérez AV, Trujillo AJ, Mejia AE, Contreras JD, Sharfstein JM. Evaluating the centralized purchasing policy for the treatment of hepatitis C: The Colombian CASE. Pharmacol Res Perspect. 2019 Dec 10;7(6):e00552.
3. Wallace M, Sharfstein J, Lessler J. Performance and Priorities: A Cross-sectional Study of Local Health Department Approaches to Essential Public Health Services. Public Health Rep. 2020 Jan;135(1):97-106.
4. Rollman JE, Heyward J, Olson L, Lurie P, Sharfstein J, Alexander GC. Assessment of the FDA Risk Evaluation and Mitigation Strategy for Transmucosal Immediate-Release Fentanyl Products. ​Journal of the American Medical Association​. 2019 Feb 19;321(7):676-685.
5. Wallace M, Sharfstein JM, Kaminsky J, Lessler J. Comparison of US County-Level Public Health Performance Rankings With County Cluster and National Rankings: Assessment Based on Prevalence Rates of Smoking and Obesity and Motor Vehicle Crash Death Rates. JAMA Network Open. ​2019 Jan 4;2(1):e186816.

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6. Xu T, Klein EY, Zhou M, Lowenthal J, Sharfstein JM, Peterson SM. Emergency Department Utilization Among the Uninsured During Insurance Expansion in Maryland. Ann Emerg Med.​ 2018 Aug;72(2):156-165.
7. Horon IL, Singal P, Fowler DR, Sharfstein JM. Standard Death Certificates Versus Enhanced Surveillance to Identify Heroin Overdose-Related Deaths.​ Am J Public Health.​ 2018 Jun;108(6):777-781.
8. Alexander GC, Ballreich J, Socal MP, Karmarkar T, Trujillo A, Greene J, Sharfstein J, Anderson G. Reducing branded prescription drug prices: A review of policy options. ​Pharmacotherapy​. 2017 Aug 14. [Epub ahead of print]
9. Tschudy MM, Sharfstein J, Matsui E, Barnes CS, Chacker S, Codina R, Cohn JR, Sandel M, Wedner HJ. Something new in the air: Paying for community-based environmental approaches to asthma prevention and control. ​J Allergy Clin Immunol.​ 2017 Feb 10. pii: S0091-6749(17)30223-3.
10. Rebbert-Franklin K, Haas E, Singal P, Cherico-Hsii S, Baier M, Collins K, Webner K, Sharfstein J. Development of Maryland Local Overdose Fatality Review Teams: A Localized, Interdisciplinary Approach to Combat the Growing Problem of Drug Overdose Deaths.​ Health Promot Pract​. 2016 Jul;17(4):596-600.
11. Horrocks D, Kinzer D, Afzal S, Alpern J, Sharfstein JM. The Adequacy of Individual Hospital Data to Identify High Utilizers and Assess Community Health. JAMA Internal Medicine​. 2016 Jun 1;176(6):856-8. Research letter.
12. Cherico-Hsii S, Bankoski A, Singal P, Horon I, Beane E, Casey M, Rebbert-Franklin K, Sharfstein J. Sharing Overdose Data Across State Agencies to Inform Public Health Strategies: A Case Study. ​Public Health Rep​. 2016 Mar-Apr;131(2):258-63..
13. Hussein CA, Luckner M, Samson R, Matsuoka K, Mann DA, Rekhi R, Richardson E, Hurson JA, Reece EA, Sharfstein JM. Working with communities to achieve health equity in Maryland’s five health enterprise zones. ​Journal of Health Care for the Poor and Underserved​ 2014; 25(1 Suppl): 4-10.
14. Schwartz RP, Gryczynski J, O'Grady KE, Sharfstein JM, Warren G, Olsen Y, Mitchell SG, Jaffe JH. Opioid agonist treatments and heroin overdose deaths in Baltimore, Maryland, 1995-2009. ​American Journal of Public Health​ 2013;103:917-22.
15. Schnitzer, MI, Kaplin DB, Keane VA, Zuckerman B, Sharfstein JM. Giving literacy a shot in the arm. ​Public Health Reports​ 2008; 123(4): 523-6.
16. O’Keefe, G, Veale L, North M, Goetzinger K, Stewart J, Sharfstein J. A public health response to the implementation of Medicare Part D. ​Public Health Reports​ 2007; 122(1)101-4.
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17. Averbach AR, Lam D, Lam LP, Sharfstein J, Cohen B, Koh H. Smoking behaviours and attitudes among male restaurant workers in Boston’s Chinatown: a pilot study. ​Tobacco Control​ 2002;11 Suppl 2: ii34-7
18. Atkinson KA, Zuckerman B, Sharfstein J, Levin D, Blatt R, Koh H. A public health response to emerging technology: expansion of the Massachusetts newborn screening program. ​Public Health Reports​ 2001; 116:122-31.
19. Bauchner H, Sharfstein J. Failure to report ethical approval in child health research: review of published papers. ​British Medical Journal​ 2001;323:318-9.
20. Sharfstein J, Sandel M, Kahn R, Bauchner H. Is child health at risk while families wait for housing vouchers? ​American Journal of Public Health​ 2001; 91:1191-2.
21. Sharfstein J. Blowing smoke: How cigarette manufacturers argued that nicotine is not addictive. ​Tobacco Control​ 1999;8:210-213.
22. Sharfstein J. Tackling tobacco or limiting malpractice awards? The campaign contribution priorities of the American Medical Association in the 1996 U.S. Congressional elections. American Journal of Public Health​ 1998; 88: 1233-1236.
23. Sharfstein J and Wise P. Inadequate hepatitis B vaccination of adolescents and adults at an urban community health center. ​Journal of the National Medical Association ​1997; 89:86–92.
24. Sharfstein J and Sharfstein SS. Campaign contributions from the American Medical Political Action Committee to members of Congress: For or against the public health? ​New England Journal of Medicine​.1994; 330: 32–37. Correction: 332:1450.
Books or Monographs
1. Olsen Y and Sharfstein J. ​The Opioid Epidemic: What Everyone Needs to Know.​ Oxford: Oxford University Press, 2019.
2. Sharfstein J.​ The Public Health Crisis Survival Guide: Leadership and Management in Trying Times​. Oxford: Oxford University Press, 2018.
3. Sharfstein JM, Chrysler D, Bernstein J, Armijos L, Tolosa-Leiv, L, Taylor H, and Rutkow, . (2017, December). Using Electronic Health Data for Community Health:Example Cases and Legal Analysis. Retrieved from http://www.debeaumont.org/EHDforCommunityHealth​.
4. Sharfstein J, Gerovich S, Moriarty E, Chin D. An emerging approach to payment reform: All-payer global budgets for large safety-net hospital systems. Commonwealth Fund. August 2017.
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5. Emanuel E, Spiro T, Calsyn M, Price C, Altman S, Armstrong S, Colmers C, Cutler D, de Brantes F, Egerman P, Kocher K, Orzag P, Rosenthal M, Selig, J, Sharfstein J, Stern A, Tanden N. ​Accountable Care States: the Future of Health Care Cost Control.​ Washington: Center For American Progress, August 2014.
6. Sharfstein, J and Sandel M. Editors. ​Not Safe at Home: How America’s Housing Crisis Threatens the Health of Its Children.​ Boston: Boston Medical Center Department of Pediatrics, 1998. Reprinted in ​Health Policy & Child Health​ 1998; 5(1):1-6. and ​Journal of Housing and Community Development​ 1998;55(4): 14-24.
7. Torrey EF, Stieber J, Ezekiel R, Wolfe S, Sharfstein J, Noble J and Flynn L. ​Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals.​ Washington D.C.: Public Citizen and the National Alliance for the Mentally Ill, 1992.
Commentaries and Editorials 1. Sharfstein JM, Olsen Y. How Not to Spend an Opioid Settlement. JAMA. 2020 Mar
17;323(11):1031-1032.
2. Sharfstein JM, Becker SJ, Mello MM. Diagnostic Testing for the Novel Coronavirus. JAMA. 2020 Mar 9. [Epub ahead of print]
3. Sunderji A, Mena KN, Winickoff J, Melinek J, Sharfstein J. Influenza Vaccination and Migration at the US Southern Border. Am J Public Health. 2020 Apr;110(4):466-467. doi: 10.2105/AJPH.2019.305547.
4. Sharfstein JM. Reform at the FDA-In Need of Reform. JAMA. 2020 Jan 14;323(2):123-124.
5. Felix C, Sharfstein JM, Olsen Y. Help Is on the Way: Medicare Coverage of Opioid Treatment Programs. J Am Geriatr Soc. 2019 Dec 11. doi: 10.1111/jgs.16281. [Epub ahead of print]
6. Pytell JD, Sharfstein JM, Olsen Y. Facilitating Methadone Use in Hospitals and Skilled Nursing Facilities. ​JAMA Internal Medicine. ​2019 Nov 18.
7. Sharfstein JM. Adolescence: An Opportunity for Population Health. ​Milbank Quarterly. 2019 Nov 6.
8. Sharfstein JM, Olsen Y. Lessons Learned From the Opioid Epidemic. ​Journal of the American Medical Association​. 2019 Aug 5. doi: 10.1001/jama.2019.9794. [Epub ahead of print]
9. Kawasaki S, Sharfstein JM. The cost of the opioid epidemic, in context. ​American Journal of Managed Care. ​2019 Jul;25(13 Suppl):S241-S242. PubMed PMID: 31361433.
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10. Sharfstein JM, Slocum J. Private Equity and Dermatology-First, Do No Harm.​ JAMA Dermatology. ​2019 Jul 24.
11. Cohen PA, Sharfstein J. The Opportunity of CBD - Reforming the Law. ​New England Journal of Medicine. ​2019 Jul 25;381(4):297-299.
12. Sharfstein JM, Olsen Y. Making Amends for the Opioid Epidemic. ​Journal of the American Medical Association​. 2019 Apr 16;321(15):1446-1447.
13. Sharfstein JM. Introduction: State Innovation Models. ​Milbank Quarterly​. 2019 Jun;97(2):505. 30957298; PubMed Central PMCID: PMC6554553.
14. Sharfstein JM. The Promise-and Politics-of State Innovation for Health. ​Milbank Quarterly​. 2019 Jun;97(2):387-390. doi: 10.1111/1468-0009.12384. Epub 2019 Apr 4.
15. Resnick BA, Morlock L, Diener-West M, Stuart EA, Spencer M, Sharfstein JM. PH WINS and the Future of Public Health Education. ​J Public Health Manag Pract. ​2019 Mar/Apr;25 Suppl 2, Public Health Workforce Interests and Needs Survey 2017:S10-S12.
16. Sharfstein JM. Common Ground on Health. ​JAMA​. 2018 Dec 25;320(24):2518-2519.
17. Rajagopal S, Barnhill A, Sharfstein JM. The evidence-and acceptability-of taxes on unhealthy foods. ​Isr J Health Policy Res​. 2018 Nov 20;7(1):68.
18. Sharfstein JM, Leighton J, Sommer A, MacKenzie EJ. Public Health Rising to the Challenge: The Bloomberg American Health Initiative. ​Public Health Rep. ​2018 Nov/Dec;133(1_suppl):3S-4S.
19. Sharfstein J, Santamaria R. Enabling School Success to Improve Community Health. JAMA. ​2018 Sep 18;320(11):1096.
20. Sharfstein JM. The Fires Are Burning. ​Milbank Q. ​2018 Oct 21.
21. Bommersbach T, Borger K, Steverman S, Manderscheid RW, Sharfstein J, Everett A. Behavioral Health, Local Health Department Accreditation, and Public Health 3.0: Leveraging Opportunities for Collaboration. ​Am J Public Health. ​2018 Oct;108(10):1334-1340.
22. Sharfstein JM. How Do You Solve a Problem Like Juul? ​Milbank Q.​ 2018 Sep;96(3):417-420.
23. Sharfstein JM, Stuart EA, Antos J. Global Budgets in Maryland: Assessing Results to Date. JAMA. 2018 Jun 26;319(24):2475-2476.
24. Sharfstein JM. Crises and Population Health. ​Milbank Quarterly​. 2018 Apr 13.. [Epub ahead of print].
25. Sharfstein JM. A Health Policy Sonnet. ​Milbank Quarterly​. 2018 Mar;96(1):9-12.
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26. Green TC, Rich JD, Sharfstein J. Commentary on 'Revisiting the 'paradigm shift' in opioid use: Developments and implications 10 years later'. ​Drug Alcohol Rev.​ 2018 Apr;37 Suppl 1:S206-S207.
27. Sharfstein JM. A New Year's Wish on Opioids. JAMA. 2018 Feb 13;319(6):537-538.
28. Sharfstein JM, Stuart EA, Antos J. Maryland's All-Payer Health Reform-A Promising Work in Progress. JAMA Intern Med. 2018 Feb 1;178(2):269-270.
29. Sharfstein JM. Common Ground on Responsibility for Health. ​Milbank Quarterly​. 2017 Dec;95(4):718-721.
30. Hatef E, Sharfstein JM, Labrique AB. Innovation and Entrepreneurship: Harnessing the Public Health Skill Set in a New Era of Health Reforms and Investment.​ J Public Health Manag Pract​. 2017 Oct 24.
31. Sharfstein JM, Gerovich S, Chin D. Global Budgets for Safety-Net Hospitals. Journal of the American Medical Association.​ 2017 Nov 14;318(18):1759-1760.
32. Sharfstein JM. Science and the Trump Administration. ​Journal of the American Medical Association.​ 2017 Oct 10;318(14):1312-1313
33. Sharfstein JM. Public Health Bundles.​ Milbank Quarterly​. 2017 Sep;95(3):474-477.
34. Poku MK, Blum AB, Sharfstein JM. US Hospital Awards and Community Health Improvement. Am J Public Health. 2017 Jul;107(7):1076-1077.
35. Redberg RF, Jacoby AF, Sharfstein JM. Power Morcellators, Postmarketing Surveillance, and the US Food and Drug Administration. ​Journal of the American Medical Association.​ 2017 Jul 25;318(4):325-326.
36. Sharfstein JM, Silver DL. Relationship Between the American Academy of Pediatrics and Infant Formula Companies. ​JAMA Pediatr.​ 2017 Jul 1;171(7):613-614.
37. Sharfstein JM. Vaccines and the Trump Administration. ​Journal of the American Medical Association.​ 2017 Apr 4;317(13):1305-1306.
38. Sharfstein J. Déjà Vu at the FDA. ​Milbank Quarterly​. 2017 Jun;95(2):245-248. Epub 2017 Apr 4.
39. Sharfstein JM, Stebbins M. Enhancing Transparency at the US Food and Drug Administration: Moving Beyond the 21st Century Cures Act. ​Journal of the American Medical Association​. 2017 Apr 25;317(16):1621-1622.
40. Sharfstein JM. The Opioid Crisis From Research to Practice. ​Milbank Quarterly.​ 2017 Mar;95(1):24-27.
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41. Hughes HK, Landa MM, Sharfstein JM. Marketing Claims for Infant Formula: The Need for Evidence. ​JAMA Pediatrics.​ 2017 Feb 1;171(2):105-106.
42. Sharfstein JM. Violent Injury as a Preventable Condition. ​Milbank Quarterly. ​2016 Dec;94(4):708-711.
43. Conti RM, Gee RE, Sharfstein JM. Pharmaceuticals and Public Health.​ Journal of the American Medical Association​. 2016 Nov 22;316(20):2083-2084.
44. Sharfstein JM. Banishing "Stakeholders." ​Milbank Quarterly​. 2016 Sep;94(3):476-9.
45. Poku MK, Hellmann DB, Sharfstein JM. Hospital Accreditation and Community Health. ​American Journal of Medicine.​ 2016 Aug 1. pii: S0002-9343(16)30743-4.
46. Sharfstein JM. Global Budgets for Rural Hospitals. ​Milbank Quarterly.​ 2016 Jun;94(2):255-9.
47. Saloner B, Sharfstein J. A Stronger Treatment System for Opioid Use Disorders. Journal of the American Medical Association​. 2016 May 24-31;315(20):2165-6
48. Sharfstein JM, Greene J. Promise and Peril for Generic Drugs. ​JAMA Internal Medicin​e 2016 Jun 1;176(6):733-4.
49. Baciu A, Sharfstein JM. Population Health Case Reports: From Clinic to Community.​ Journal of the American Medical Association​. 2016 Jun 28;315(24):2663-4.
50. Kapoor A, Sharfstein JM. Breaking the gridlock: Regulation of dietary supplements in the United States. ​Drug Test Anal​. 2016 Mar-Apr;8(3-4):424-30.
51. Sharfstein JM. Rethinking Science and Politics. ​Milbank Q​. 2016 Mar;94(1):39-42. doi: 10.1111/1468-0009.12177.
52. Sharfstein JM, Psaty BM. Evaluation of the Cardiovascular Risk of Naltrexone-Bupropion: A Study Interrupted. ​Journal of the American Medical Association​. 2016 Mar 8;315(10):984-6.
53. Greene JA, Anderson G, Sharfstein JM. Role of the FDA in Affordability of Off-Patent Pharmaceuticals. ​Journal of the American Medical Association​. 2016 Feb 2;315(5):461-2.
54. Sharfstein JM. Accountability for Health. ​Milbank Quarterly​ 2015; 93(4):675-8.
55. Patel A, Rajkumar R, Colmers JM, Kinzer D, Conway PH, Sharfstein JM. Maryland's Global Hospital Budgets--Preliminary Results from an All-Payer Model. New England Journal of Medicine​ 2015;373(20):1899-901.
56. Sharfstein JM, Charo A. The Promotion of Medical Products in the 21st Century: Off-label Marketing and First Amendment Concerns. ​Journal of the American Medical Association​ 2015;314(17):1795-6.
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57. Sharfstein JM. Public Health and the First Amendment. ​Milbank Quarterly 2015;93(3):459-62.
58. Hwang A, Sharfstein JM, Koller CF. State Leadership in Health Care Transformation: Red and Blue. ​Journal of the American Medical Association​ 2015; 314:349-50.
59. Sharfstein JM, Kesselheim AS. The Safety of Prescription Drugs. ​Journal of the American Medical Association​ 2015;314:233-4.
60. Sharfstein JM. A Spotlight on Sunscreen Regulation. ​New England Journal of Medicin​e. 2015 Jul 9;373(2):101-3.
61. Sharfstein JM. Electronic cigarettes: gateway to understanding the FDA? ​Milbank Quarterly​. 2015 Jun;93(2):251-4.
62. Sharfstein JM. Using healthcare data to track and improve public health. Journal of the American Medical Association​. 2015 May 26;313(20):2012-3.
63. Sharfstein JM, Kinzer D, Colmers JM. An Update on Maryland's All-Payer Approach to Reforming the Delivery of Health Care. ​JAMA Internal Medicine​ 2015; 175:1083-4.
64. Wen LS, Sharfstein JM. Unrest in Baltimore: The Role of Public Health. ​Journal of the American Medical Association​ 2015​;313:2425-6.
65. Sharfstein JM. Of mouse and measles. ​Journal of the American Medical Association​. 2015 Apr 21;313(15):1504-5.
66. Gold D, Newman-Toker DE, Sharfstein JM. Neurology and the Affordable Care Act. JAMA Neurology​ 2015;​ 72(6):623-4.
67. Sharfstein JM. Dear health care lobbyists . . . ​Milbank Quarterly​. 2015; 93(1):15-8.
68. Wong WF, LaVeist TA, Sharfstein JM. Achieving Health Equity by Design. ​Journal of the American Medical Association​. 2015; ​313(14):1417-8.
69. Sharfstein JM. On fear, distrust, and Ebola. ​Journal of the American Medical Association​. 2015 Feb 24;313(8):784.
70. Sharfstein J. FDA regulation of laboratory-developed diagnostic tests: protect the public, advance the science. ​Journal of the American Medical Association​. 2015 Feb 17;313: 667-8.
71. Sharfstein JM. Health care and poverty. ​Journal of the American Medical Association​. 2014 Dec 3;312(21):2200-1.
72. Sharfstein J. The strange career of population health. ​Milbank Quarterly​ 2014; 92: 640-643.
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73. Dietrich E, Sharfstein J. Improving medical device regulation: a work in progress. ​JAMA Internal Medicine ​ ​2014;174(11):1779-1780​.
74. Sharfstein J. Speaking with Doctors in Restaurants. ​Milbank Quarterly​ 2014; 92: 422-5.
75. Sharfstein J. On Working for Henry Waxman. ​Milbank Quarterly​ 2014; 92: 186-190.
76. Olsen Y, Sharfstein J. Chronic Pain, Addiction, and Zohydro. ​New England Journal of Medicine​ 2014; 370: 2061-2063.
77. Olsen Y, Sharfstein J. Confronting the stigma of opioid use disorder—and its treatment. Journal of the American Medical Association ​2014; 311: 1393-4.
78. Rajkumar R, Patel A, Murphy K, Colmers JM, Blum JD, Conway PH, Sharfstein JM. Maryland's All-Payer Approach to Delivery-System Reform. ​New England Journal of Medicine​ 2014; 370(6) 493-5.
79. Sharfstein J, Fontanarosa PB, Bauchner H. Critical issues in US health care: health care on the edge. ​Journal of the American Medical Association ​2013; 310:1945-6.
80. Reece EA, Brown AG, Sharfstein JM. New incentive-based programs: Maryland's health disparities initiatives. ​Journal of the American Medical Association​ 2013; 310:259-60.
81. Steinbrook R, Sharfstein JM. The FDA Safety and Innovation Act. ​Journal of the American Medical Association​ 2012; Oct 10;308(14):1437-8.
82. Wilson LE, Blythe D, Sharfstein JM. Fungal meningitis from injection of contaminated steroids: a compounding problem. ​Journal of the American Medical Association​ 2012; 308:2461-2.
83. Emanuel E, Tanden N, Altman S, Armstrong S, Berwick D, de Brantes F, Calsyn M, Chernew M, Colmers J, Cutler D, Daschle T, Egerman P, Kocher B, Milstein A, Oshima Lee E, Podesta JD, Reinhardt U, Rosenthal M, Sharfstein J, Shortell S, Stern A, Orszag PR, Spiro T. A systemic approach to containing health care spending. ​New England Journal of Medicine​ 2012; 367:949-54.
84. Sharfstein JM. The FDA--a misunderstood agency. ​Journal of the American Medical Association​ 2011; 306:1250-1.
85. Woodcock A, Sharfstein JM, and Hamburg MA. Regulatory Action on Rosiglitazone by the U.S. Food and Drug Administration. ​New England Journal of Medicine​ 2010; 363: 1489-1491.
86. Asamoah A and Sharfstein JM. Transparency at the Food and Drug Administration. ​New England Journal of Medicine​ 2010; 362: 2341-2343.
87. Deyton L, Sharfstein JM, and Hamburg MA. Tobacco Product Regulation – A Public Health Approach. ​New England Journal of Medicine​ 2010; 362: 1753-1756.
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88. Hamburg MA and Sharfstein JM. The FDA as a Public Health Agency. ​New England Journal of Medicine​ 2009; 360: 2493-2495.
89. Sharfstein JM, North M, Serwint JR. Over the counter but no longer under the radar—pediatric cough and cold medications. ​New England Journal of Medicine​ 2007; 357: 2321-4.
90. Sharfstein J. Kids first?​ Int J Health Serv.​ 2000;30(4):763-9.
Selected Other Publications 1. Sharfstein JM, Marx MA. Testing is just the beginning in the battle against Covid-19. ​The
New York Times. ​30 March 2020. https://www.nytimes.com/2020/03/30/opinion/coronavirus-testing.html
2. Sharfstein J, Nuzzo J, Anderson G. 4 reasons America needs a new coronavirus crisis insurance program based on Medicare. ​The USA Today. ​19 March 2020. https://www.usatoday.com/story/opinion/2020/03/19/pass-coronavirus-crisis-insurance-use -medicare-networks-billing-column/2865457001/
3. Alexander GC, Sharfstein J. Opioid Epidemic: Fight addiction and chronic pain together to save lives. ​The USA Today.​ 25 April 2019. https://www.usatoday.com/story/opinion/2019/04/25/opioid-epidemic-overdose-treat-addic tion-pain-management-prescription-drugs-column/3548434002/
4. Bollyky TJ, Kesselheim AS, Sharfstein JM. What Trump should actually do about the high cost of drugs. ​The New York Times​. 14 May 2018. https://www.nytimes.com/2018/05/14/opinion/trump-costs-drugs-pricing.html
5. Sharfstein J, Lee J, Conti R. We have a cure for hepatitis C. But the neediest can’t afford it. Louisiana wants to change that. Vox. 27 September 2017. https://www.vox.com/science-and-health/2017/9/27/16350562/hepatitis-c-drug-prices-louis iana
6. Sharfstein J. Trump’s opioid declaration is meaningless without action. ​The USA Today.​ 25 August 2017.
7. Sharfstein J, Phillips F. Dirty Buses, Sick Kids. ​The New York Times​. 8 January 2016.
8. Sharfstein JM. Flow Resistant caps prevent the rapid ingestion of liquid medicine.​ Journal of Pediatrics ​2014; 164: 1242.
9. Mixter S, Yang JX, Sharfstein J. Tuberculosis in Maryland: Global and Historical Perspectives. ​Maryland Medicine​ 2013; 14: 1.
10. Sharfstein J. The state of breastfeeding in a state. ​Breastfeeding Medicine​ 2012; 7: 369.
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11. Sharfstein J. In sickness and in health: physicians as captains of the ship. ​Maryland Medicine​ 2011; 12: 13-4.
12. Phillips F and Sharfstein J. A Medicaid provision to repeal. ​Washington Post​. 4 March 2007: B8.
13. Story E and Sharfstein J. Needed: ‘MCAS’ for children’s mental health care. ​Boston Globe​. 15 April 2001: D4.
14. Sharfstein J. Unhealthy Partnership. ​The American Prospect​. January 1-15, 2001: 24-28.
15. Sharfstein J. Folic Acid Antagonists during pregnancy and risk of birth defects. Letter. ​New England Journal of Medicine​ 2001; 344:933.
16. Sharfstein J, Babl F. Cat scratch disease without cat scratch. ​Infectious Diseases in Children​ 1999; August: 58.
17. Sharfstein J, Jeffery P and Agrawal D. A case of phenytoin toxicity. ​Pediatrics​ 1998 Nov;102(5):1223.
18. Sharfstein J. Pfizer Night at Boston Billiards. Letter. ​New England Journal of Medicine 1997; 337(2):134.
19. Sharfstein J, Wise P. Cost-effectiveness of hepatitis B virus immunization. JAMA. 1996 Mar 27;275(12):908; author reply 909.
20. Sharfstein J and Gupta A. Confidentiality of radiologic images. Letter. ​Radiology​ 1995: 873–4.
Selected Blog Posts
1. Sharfstein J. JAMA Forum: Science and the Trump Administration. 6 September 2017. Available at https://newsatjama.jama.com/2017/09/06/jama-forum-science-and-the-trump-administratio n/​.
2. Sharfstein J. JAMA Forum: After 50 Years, a Leap Backward for Children? 17 May 2017. Available at https://newsatjama.jama.com/2017/05/17/jama-forum-after-50-years-a-leap-backward-for-c hildren/​.
3. Sharfstein J. JAMA Forum: Notes on the Presidential Transition. 16 November 2016. Available at https://newsatjama.jama.com/2016/11/16/jama-forum-notes-on-the-presidential-transition/
4. Sharfstein J. JAMA Forum: “Mayor’s Night Out” and the Politics of Health. Available at https://newsatjama.jama.com/2016/08/22/jama-forum-mayors-night-out-and-the-politics-of -health/​.
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5. Sharfstein J. JAMA Forum: The Zika Virus and Abortion Politics. 11 May 2016. Available at https://newsatjama.jama.com/2016/05/11/jama-forum-the-zika-virus-and-abortion-politics/​.
6. Sharfstein J. JAMA Forum: Flint, Michigan and the Failure of Public Agencies. 17 February 2016. Available at https://newsatjama.jama.com/2016/02/17/jama-forum-flint-michigan-and-the-failure-of-pu blic-agencies/​.
7. Sharfstein J. JAMA Forum: Neonatal Abstinence Syndrome: Deja Vu All Over Again? 21 October 2015. Available at http://newsatjama.jama.com/2015/10/21/neonatal-abstinence-syndrome-deja-vu-all-over-ag ain/​.
8. Sharfstein J. JAMA Forum: “Loose Change” for Population Health. Available at https://newsatjama.jama.com/2015/06/24/jama-forum-loose-change-for-population-health/
9. Sharfstein J. JAMA Forum: A global epidemic in plain sight. 25 June 2014 Available at http://newsatjama.jama.com/2014/06/25/jama-forum-a-global-epidemic-in-plain-sight/
10. Sharfstein J. JAMA Forum: Medical boards and the public’s health. 10 April 2014. http://newsatjama.jama.com/2014/04/10/jama-forum-hiding-in-plain-sight-medical-boardsand-the-publics-health/
11. Sharfstein J. JAMA Forum: The public health challenge of drug overdose. 22 January 2014. Available at
http://newsatjama.jama.com/2014/01/22/jama-forum-the-public-health-challenge-of-drug-overdose​/
12. Sharfstein J. JAMA Forum: Behind the curtain of Maryland’s health enterprise zone initiative. 7 August 2013. Available at http://newsatjama.jama.com/2013/08/07/jama-forum-behind-the-curtain-of-marylands-heal th-enterprise-zone-initiative/
13. Sharfstein J. JAMA Forum: Public health regulation as a public process. 22 May 2013. Available at
http://newsatjama.jama.com/2013/05/22/jama-forum-public-health-regulation-as-a-public-process/
14. Sharfstein J. JAMA Forum: The State Role in Health Care Innovation, 6 March 2013. Available at ​http://newsatjama.jama.com/2013/03/06/jama-forum-the-state-role-in-health-care-innovation/
15. Sharfstein, J. JAMA Forum: Implementing the Affordable Care Act. 5 July 2012. Available at ​http://newsatjama.jama.com/2012/07/05/jama-forum-implementing-the-affordable-care-act-getting-the-job-done/
S​ELECTED PRACTICE ACTIVITIES
Johns Hopkins Bloomberg School of Public Health
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● Supported strategic plans on opioids in Staten Island (2018), West Virginia (2018), and Louisiana (2018).
● Supported launch of Johns Hopkins Baltimore Violence Reduction Collaborative. 2016. ● Developed proposal and advised Baltimore City Health Department for BFRIEND falls
prevention initiative. Proposal funded by Robert Wood Johnson Foundation. 2015-2017. ● Advised Baltimore City Public Schools, Baltimore City Health Department, and DC
Public Schools on absenteeism project. 2016-2018. ● Advised Rhode Island Health Commissioner on response to opioid epidemic.
2015-Present. ● Led review of teen pregnancy and healthy birth strategy for Baltimore’s Promise. 2015. Maryland Department of Health and Mental Hygiene ● Led the negotiation with the Centers for Medicare & Medicaid Services to establish a
new model for hospital payment in Maryland, essentially ending fee-for-service payment across all payers for Maryland residents. ● Established clear public health goals for Maryland through the State Health Improvement Process, which involves 18 local planning coalitions and a website with accessible, local data. ● Oversaw a strategic shift to community-based long-term care, including the merger of several waiver programs, the introduction of consumer choice, and a significant expansion of access to home care. ● Led the consolidation of the Alcohol and Drug Abuse Administration with the Mental Hygiene Administration into the new Behavioral Health Administration, and developed and implemented a more rational financing approach to behavioral and somatic care. ● Led several regulatory initiatives, including a ban on the sale of baby bumper pads and a revised consent form for indoor tanning devices for teenagers. ● Oversaw the building of a new public health laboratory, the reform of the Developmental Disabilities Administration, improvements in state psychiatric facilities, and transformation of the Maryland Board of Physicians. ● Oversaw reports on youth use of candy-flavored tobacco and health care worker-related transmission of the Hepatitis B virus.
Food and Drug Administration
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● Led the development of FDA-Track, a performance management system across the agency. The U.S. Department of Health and Human Services recognized FDA-Track with an award for innovation in 2011.
● Led the agency’s transparency initiative, which made substantially more information available about the regulatory process.
● Coordinated federal efforts between CDC, FDA, and the Trade and Tax Bureau on caffeinated, alcoholic beverages, leading to a ban on these unsafe products.
● Represented FDA on key public issues including the use of antibiotics in animals, the safety of bisphenol-A, the safety of infant positioners, the labeling of bottled water, the safety of dietary supplements, the ​Salmonella ​outbreak from contaminated eggs, and drug safety.
● Oversaw reports on integrity in FDA decisionmaking and transparency at the agency.
Baltimore City Health Department
● Developed initiatives that won four model practice awards from the National Association of County and City Health Officers, including:
○ Facilitating the transition to Medicare Part D using an emergency management approach;
○ The Reach and Read Public Health Challenge to promote literacy in pediatric primary care;
○ The Baltimore Buprenorphine Initiative, which expanded access to effective drug treatment and was associated with a substantial reduction in heroin overdoses; and
○ The Fluoride Varnish initiative, which trained and reimbursed pediatric practices for applying fluoride varnish to reduce dental caries.
● Led successful regulatory initiatives to improve reporting for influenza vaccination and ban the sale of lead-tainted children’s jewelry.
● Introduced Health Leads programs on the Hopkins, UMBC, and Loyola campuses, which have involved more than 1,000 students volunteering to connect patients to resources at multiple health care sites in the city.
● Oversaw significant progress towards making the city animal shelter a “no-kill” shelter.
● Drafted the city plan on infant mortality that would be implemented and contribute to substantial improvements over time.
● Advocated for and implemented the ban on indoor smoking in bars and restaurants and the ban on transfats in foods.
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● Led a successful, national petition calling for the removal of cough-and-cold medications for young children from the market.
● Oversaw reports on heart disease and salt and arsenic contamination at Swann Park.
Congressional Testimony

April 3, 2014

Testimony before the House Oversight and Government Reform Committee, Subcommittee on Economic Growth, Job Creation, and Regulatory Affairs, Subcommittee on Energy Policy, Health Care, and Entitlements, on the Maryland Health Benefit Exchange

December 13, 2012

Testimony before the House Energy and Commerce Committee, Subcommittee on Health, on Implementation of the Affordable Care Act in Maryland

March 17, 2011

Testimony before the Senate Committee on Health, Education, Labor, and Pensions, on the Implementation of the Affordable Care Act in Maryland

September 30, 2010

Testimony before the House Committee on Oversight and Government Reform, Johnson and Johnson’s Recall of Children’s Tylenol and Other Children’s Medicines

September 22, 2010

Testimony before the House Energy and Commerce Committee, Subcommittee on Oversight and Investigations, on the Outbreak of Salmonella in Eggs

July 14, 2010

Testimony before the House Energy and Commerce Committee, Subcommittee on Health, on Antibiotic Resistance and the Use of Antibiotics in Animal Agriculture

May 27, 2010

Testimony before the House Committee on Oversight and Government Reform, Johnson and Johnson’s Recall of Children’s Tylenol and Other Children’s Medicines

May 26, 2010

Testimony before the Senate Special Committee on Aging, Oversight of Dietary Supplements

March 10, 2010

Testimony before the House Energy and Commerce Committee, Subcommittee on Health, on Drug Safety: An Update from FDA.

July 13, 2009

Testimony before the House Committee on Rules on the Preservation of Antibiotics for Medical Treatment Act of 2009

July 8, 2009

Testimony before the House Committee on Oversight and Government Reform, Subcommittee on Oversight and Investigations, on Regulation

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May 21, 2009 May 7, 2009 April 30, 2009

of Bottled Water.
Testimony before the House Committee on Appropriations, Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies, on President’s FY 2010 Budget Request
Testimony before the before the Senate Committee on Appropriations, Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies, on H1N1 Flu Virus
Testimony before the House Energy and Commerce Committee, Subcommittee on Health, on H1N1 Flu Virus.

Testimony Before the Maryland General Assembly
I have testified more than 75 times before the Maryland General Assembly on budget and policy matters. Successful legislative initiatives have included:

2007 session 2011 session 2012 Session
2013 Session
2014 Session

SB 349 Expedited Partner Therapy Pilot Program for Baltimore City
HB 166 Maryland Health Benefit Exchange Act
HB 86 Health Improvement and Disparities Reduction Act HB 443 Maryland Health Benefit Exchange Act HB 658 Emergency Plans for Human Services Facilities and Dialysis Centers
HB 228 Maryland Health Progress Act HB 986 Sterile Compounding HB 1009 Regulation of Cosmetic Surgery Centers SB 1057 Regulation of Health Care Staffing Agencies
HB 1510 Establishment of Behavioral Health Administration

TEACHING 1/1/20157/1/2006 - 6/30/2009 9/15/2006 - 6/30/2018

Professor of the Practice, Department of Health Policy and Management
Adjunct Assistant Professor, Department of Health Policy and Management, Johns Hopkins Bloomberg School of Public Health
Adjunct Professor, Volunteer, Department of Pediatrics, University of Maryland School of Medicine
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Advisees
MPH Capstone
1. Marc Rabner.​ School Absenteeism and Public Health. 2016 2. Laura Mandel. ​Provider Network Adequacy in Maryland Managed Care Organizations.
2016. 3. Megan Collins. ​Vision for Baltimore - a 3 year program to provide school-based eye
care. 2017. 4. Maria Armijos. ​A policy recommendation for antibiotic use in upper respiratory tract
infections in Ecuador. 2017. 5. Madeline Jackson. ​Section 1498 and Public Health Access to Specialty Drugs. 2017. 6. Charlotte Kaye. ​Integrating Public Health Programming into Child Welfare Policy in
Baltimore City. 2017. 7. Jenny X. Wen. ​Overcoming systemic barriers to opioid use disorder treatment: evidence
and recommendations for the National Academy of Medicine, 2018. 8. Ali Bokhari. ​Drug pricing in public health emergencies, 2018.
Oral Exams
1. Roza Vazin. Health Policy and Management, PhD. 2016. 2. Amber Cox. International Health, PhD. 2016. 3. Megan Wallace. Epidemiology, DrPH. 2016.
Classroom Instruction: Principal Instructor
1. Crisis and Response in Public Health Policy and Practice. 300.650.01. 3nd term. 29 students. 2018-2019.
2. The Opioid Crisis: Problem Solving Seminar. PH 308.615. 1st term. 71 students. 2018-2019.
3. Crisis Response in Public Health Practice: International Perspectives. 302.843.98. Barcelona Institute. 20 students. 2018.
4. Public Health Policy. 300.610. Summer term. 260 students. 2018. 5. The Practice of Public Health Through Vaccine Case Studies: Problem Solving Seminar.
223.630. 4th Term. 33 students. 2017-2018. 6. Crisis and Response in Public Health Policy and Practice. 300.650.01. 2nd term. 38
students. 2017-2018. 7. Crisis Response in Public Health Practice: International Perspectives. 302.843.98.
Barcelona Institute. 15 students. 2017. 8. Crisis Response in Public Health Practice: Workshop. Barcelona Institute. Approximately
10 students. 2017. 9. The Opioid Crisis: Problem Solving Seminar. 308.615.81. 62 students. 2017. 10. Crisis and Response in Public Health Policy and Practice. 300.650.01. 2nd term. 33
students. 2016-2017.
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11. Crisis Response in Public Health Practice: International Perspectives. 302.843.98. Barcelona Institute. 25 students. 2016.
12. Crisis and Response in Public Health Policy and Practice. 300.650.01. 1st term. 40 students. 2015-2016.
The Crisis and Response in Public Health Policy and Practice (domestic and international) and Opioid Crisis Problem Solving Seminar have received outstanding range evaluations.

RESEARCH GRANT PARTICIPATION

Technical support for De Beaumont

data sharing

Foundation

April 2019-March 2020

90.000

Co-Investigator.​ We are working with principal investigators at the University of Michigan to provide technical support for localities seeking to

Global Budgeting Policy Academy

Robert Wood Johnson Foundation (via Princeton University)

March 1, 2018 August 1, 2018

30,000

Principal Investigator.​ We hosted a policy academy and produced a Q and A document for states on global hospital budgeting in rural areas.

Using Healthcare

De Beaumont

Data in Public Health Foundation

Practice

September 1, 2016 to $100,000 September 1, 2017

Principal Investigator. ​The purpose of this grant was to develop use cases and legal pathways for public health departments to use healthcare data. This project was a collaboration with the National Public Health Law Network, and the paper was published in December 2017.

Transparency at the U.S. Food and Drug Administration

Laura and John Arnold Foundation

August 8, 2016 to March 31, 2018

$175,583

Principal Investigator​. The purpose of this grant was to develop recommendations to improve transparency at the U.S. FDA. I coordinated an academic team including experts from Johns

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Hopkins, Harvard, and Yale, and we published a supplement to the Journal of Law, Medicine, and Ethics.

Assessing the Applicability of Global Hospital Budgeting to Large Safety Net Systems

Commonwealth Fund June 1, 2016 to June $49,489 30, 2017

Principal Investigator. ​The purpose of this grant was to develop a report for the Commonwealth Fund on global hospital budgeting for safety net health systems. This report was published in the summer of 2017.

Reforming States Group letter to the New Administration

Milbank Memorial Fund

April 1, 2016 -

$10,000

December 31, 2016

Principal Investigator. ​The purpose of this grant was to help draft a bipartisan letter on opportunities in health policy for the new administration. This letter was sent in the fall of 2016, and the lead members of the Reforming States Group published an article summarizing the letter in the ​New England Journal of Medicine​.

Pharmaceutical

Laura and John

2016 - 2019

*

Pricing

Arnold Foundation 2019-

Investigator. ​Professor Gerard Anderson is the Principal Investigator on this project. My main role is to develop public health approaches to pharmaceutical pricing. These efforts culminated in a publication in the ​Journal of the American Medical Association​ and support for Louisiana’s subscription model for hepatitis C elimination.

Healthcare Pricing Laura and John

2019-

*

Arnold Foundation

Investigator. ​Professor Gerard Anderson is the Principal Investigator on this project. My main role is to assist with work on global-budget type arrangements for hospitals and others in the healthcare system.

SCHOOL SERVICE

Committee

Role

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Committee of the Whole Graduate Medical Education Committee Practice Integration Committee

Member, 2015Chair, 2015Chair, 2015-2019

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Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR CHOICE, et al.,
Plaintiffs,
v.
GREG ABBOTT, in his official capacity as Governor of Texas, et al.,
Defendants.

No. 1:20-cv-00323-LY

DECLARATION OF PLAINTIFF ROBIN WALLACE, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION I, Robin Wallace, M.D., declare as follows:
1. I am a board-certified family medicine physician, with additional specialty training in family planning, and an M.A.S. in clinical research. I am licensed to practice in Texas. I am a Plaintiff in this case, representing myself and my patients.
2. I am the co-medical director of Southwestern Women’s Surgical Center (“Southwestern”), a licensed ambulatory surgical center in Dallas, Texas. Southwestern provides medication abortion through 10 weeks as measured from the first day of the patient’s last menstrual period (“LMP”) and procedural abortion services through 21.6 weeks LMP. Southwestern does not provide inpatient care, nor is it set up to do so.
3. As co-medical director, my responsibilities include: review and development of clinic protocols, training of all new physician staff, quality assurance review, and representing the medical staff on the administrative management team and governing board. In addition to my other

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Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 3 of 6
responsibilities as co-medical director, I also personally provide abortion care to patients through 21.6 weeks LMP.
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Executive Order No. GA-09 (the “Executive Order”), as interpreted by the Texas Attorney General to ban all previability abortion procedures in the state except where immediately necessary to protect the life or health of a pregnant person. I have reviewed the Executive Order and a press release by the Texas Attorney General interpreting it.
5. The facts I state here are based on my experience, my review of Southwestern’s business records, information obtained in the course of my duties at Southwestern, and personal knowledge that I have acquired through my service at Southwestern. If called and sworn as a witness, I could and would testify competently thereto. The Executive Order and Threatened Enforcement
6. On March 22, 2020, Texas Governor Greg Abbott issued the Executive Order, relating to hospital capacity during the COVID-19 pandemic. That order is in effect until 11:59 p.m. on April 21, 2020, although it may be extended. It directs “all licensed health care professionals and all licensed health care facilities” 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 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.” Id. at 1. The Executive Order states that this prohibition does not apply to “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not
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Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 4 of 6
deplete the hospital capacity or the personal protective equipment [“PPE”] needed to cope with the COVID-19 disaster.” Id.
7. Southwestern understands the term PPE to refer to surgical masks, N95 respirators (a face covering designed to block at least 95 percent of very small test particles), sterile and nonsterile gloves, disposable protective eyewear, disposable gowns, and disposable shoe covers. The services Southwestern provides do not involve significant amounts of PPE or deplete PPE.
8. On Monday, March 23, 2020, the Attorney General issued a press release interpreting the Executive Order, titled “Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic.” The press release states that the Executive Order applies to “all surgeries and procedures that are not immediately medically necessary,” including “most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.” The release invokes the order’s application to abortion providers multiple times. It states that a “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time” and warns that “[t]hose who violate the governor’s order will be met with the full force of the law.”
9. Southwestern is uncertain as to the scope of the Executive Order and the subsequent press release by the Attorney General, and, as a result, largely stopped seeing patients on March 23, 2020. The clinic has cancelled approximately 225 appointments for the last two days, March 23 and March 24. Unless we obtain immediate relief, we intend to continue canceling appointments.
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10. The window during which a patient can obtain an abortion in Texas is limited. Pregnancy is generally forty weeks in duration, but Texas prohibits abortion after twenty-two weeks LMP except in very narrow circumstances. See Tex. Health & Safety Code § 171.044. Southwestern’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
11. Southwestern is committed to doing its part to minimize spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
12. Neither medication nor procedural abortion requires extensive PPE or otherwise would deplete PPE. In fact, for medication abortion, providing patients with the medication does not require the use of any PPE. Based on Southwestern’s patient load, in an average week, we use the following PPE: a few boxes of non-sterile gloves; approximately 15 pairs of sterile gloves for procedures after 15 weeks LMP; approximately 15 gowns; around 24 pairs of shoe coverings per day; and a handful of simple surgical masks and reusable eyewear.
13. Since the COVID-19 outbreak, and prior to the Executive Order, Southwestern took extensive steps to protect patients and staff and minimize the use of PPE. For example, we have been screening our patients and staff for COVID-19; we have cancelled trainings for medical students, residents, and fellows; and have begun restricting the use of new surgical masks and gowns. Harms Caused by the Executive Order and the Attorney General’s Interpretation of It
14. Southwestern reasonably fears the Attorney General’s threat of enforcement, given that the Attorney General may understand the Executive Order to prohibit procedural abortions that Southwestern’s physicians have determined are necessary to “correct a serious medical condition of … a patient who without immediate performance of the surgery or procedure would
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Case 1:20-cv-00323-LY Document 7-8 Filed 03/25/20 Page 6 of 6

be at risk for serious adverse medical consequences or death, as determined by the patient’s physician,” as permitted by the Executive Order. It also reasonably fears that the Attorney General will understand the order to prohibit medication abortions, despite the fact that these are not “procedures” and therefore do not fall within the terms of the Executive Order at all.
15. Based on this enforcement risk, Southwestern cancelled 225 appointments scheduled for Tuesday, March 24 and Wednesday, March 25. Southwestern is unsure how to proceed but plans to resume certain appointments where care does not involve new PPE. Still, some patients who would have had medication abortions as scheduled prior to the Executive Order will require procedural abortions instead (and correspondingly greater amounts of PPE). And, some procedural patients may be pushed within days of the limit in Texas or beyond it.
16. If the Executive Order, as interpreted by the Attorney General, is enforced, it will deprive some patients of the freedom to make an intimate and personal decision essential to their dignity and autonomy. It will immeasurably harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families.
I declare under penalty of perjury that the foregoing is true and correct.

Executed March 25, 2020

________________________________ Dr. Robin Wallace

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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CIVIL ACTION CASE NO. 1:20-cv-323-LY

DECLARATION OF RASHAE WARD

RASHAE WARD, hereby declares under penalty of perjury that the following statements

are true and correct:

1. I am the Hotline Coordinator of Lilith Fund, an Austin-based nonprofit organization

that has been providing direct financial assistance to Texans who want to end a pregnancy, but

cannot afford the cost of an abortion. Lilith Fund has served over 10,000 people since its founding

nearly twenty years ago.

2. As Hotline Coordinator, I: 1) respond to requests from people struggling to arrange

the costs of terminating a pregnancy; 2) recruit, train, supervise and support over 20 volunteers to

do so; 3) decide how to allocate our limited budget to clients each day; 4) work with peer

organizations and abortion providers throughout Texas, and more recently the country, to help

ensure our clients can complete their appointments; 5) collaborate with our Program Manager to

address systemic challenges in our clients’ lives, including unemployment, housing insecurity, and

intimate partner violence; and 6) partner with our Statewide Coordinator to help interested clients

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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 3 of 7
educate their communities about the importance of meaningful abortion access. I have served in this position for almost a year.
3. I provide the following testimony based on personal knowledge acquired through my service at Lilith Fund and review of the organization’s business records.
Barriers to Abortion Access in Texas Before the Executive Order 4. Our callers, most of whom are parents, lack insurance coverage for abortion care except in extremely narrow circumstances. Consequently, they must pay for their care of-outpocket. Last year, Lilith Fund received nearly 6,600 calls, served over 1,617 individuals, and distributed over $489,515. The average cost of an abortion for our callers was $1,230. Unfortunately, we are able to help only about a quarter of all callers and even for the callers we can help, we can seldom cover the full cost of their care. 5. To assess their needs, we ask each caller their gestational age and discuss their socioeconomic circumstances in detail. If we are able to help the caller with the cost of care, Lilith Fund sends a financial voucher to the abortion provider with whom the caller has scheduled an appointment and pays the provider after the patient receives care. 6. Lilith Fund tries to prioritize callers who have reached later gestational ages, both because they risk exceeding the cut-off for a legal abortion in Texas—22 weeks, as measured from the first day of the last menstrual period (“lmp”)), or for an abortion provided in an abortion clinic, as opposed to an ambulatory surgery center (“ASC”), in the State—18 weeks lmp. There are few ASCs in Texas, all of them in metropolitan areas, so many of the clients who exceed 18 weeks lmp must travel lengthy distances to obtain care, which in turn increases the funds they need to raise beforehand, including transportation and childcare costs. Another reason we try to prioritize callers
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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 4 of 7
at later gestational ages is that the costs of abortion care rise as a pregnancy progresses. The average gestational age of our clients is 13 weeks lmp.
7. Lilith Fund also tries to prioritize callers who have decided that medication abortion is more appropriate for them than procedural abortion, but who risk exceeding Texas’s gestational age cut-off for that care, 10 weeks lmp. Given when some of our callers discover they are pregnant, and the time it can take someone living in poverty to raise money for unexpected extended travel, the State’s requirement that most abortion patients make two trips to obtain care makes it especially difficult not to pass this window.
8. Likewise, Lilith Fund tries to prioritize callers contending with multiple hardships, including homelessness, incarceration, intimate partner violence, and physical or mental health issues. To serve these clients, we typically coordinate with organizations that offer practical support for obtaining an abortion, including assistance with transportation, lodging, and meals. We have a practice of following up with clients soon after their scheduled appointment. In some cases, we learn that the client never made it to the abortion provider because, even with organizational assistance, they were unable to meet the total costs of obtaining an abortion in Texas.
9. Collaborating with our Program Manager to continue serving clients after they have obtained abortion care has helped me understand these barriers, how they exacerbate one another, and how Texas abortion restrictions compound them, even more deeply. Last year, we connected 64 clients with food banks and programs offering job assistance, help paying utility bills, and free diapers. Similarly, partnering with our Statewide Coordinator to connect clients to support groups and story-telling campaigns has shown me how our clients carry the strain and indignity of struggling to terminate a pregnancy in Texas with them long after they obtain care.
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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 5 of 7
10. As with the rest of the country, the COVID-19 crisis has challenged our clients in unprecedented ways. Many work in the food services industry. So, in addition to coping with serious illness among their families and communities, they are losing their jobs, including their health insurance, and facing eviction. One client recently worked to raise money for her abortion care for weeks only to have to use it for rent. And some clients are effectively stuck in abusive situations. Since January 2020, callers have tended to be further along in their pregnancies due to the increasing difficulty of making travel arrangements, particularly for long-distance travel. The average gestational age has increased from 13 weeks lmp to 16 weeks lmp. Lilith Fund has increased the average amount of its vouchers from $207 to $267 to help meet these challenges. Nevertheless, I struggle with decisions of how to allocate funds among callers now more than ever. All too many people need them, there are never enough, and the stakes could not be higher.
Impact of Executive Order on Abortion Access During the Pandemic 11. After Attorney General Paxton threatened to enforce Governor Abbott’s Executive Order (EO) as an abortion ban, thirteen of our clients’ appointments were cancelled. Thankfully, four clients were able to terminate their pregnancies during the less-than-24-hour-period when the State was unable to enforce the EO due to a legal decision. 12. At least ten of our clients have lost or will lose the ability to obtain an abortion in Texas because they will have exceeded 22 weeks lmp as of the EO’s expiration date. As of today, these clients are traveling out of state during a pandemic to secure medical services they could otherwise obtain in Texas, and in some cases, their own communities. They will be forced to travel to incredibly far destinations because they offer the earliest opportunity to obtain critical healthcare. In fact, the average distance traveled by our clients has jumped from 158 miles in 2019 to 734 miles since the EO.
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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 6 of 7
13. One client, who the EO pushed to 19 weeks lmp, recently traveled over 300 miles from Houston to Atlanta, Georgia, an epicenter of the COVID-19 outbreak, because she would be at the precipice of 22 weeks lmp when the EO expires. Without the EO, she would have been able to terminate her pregnancy 3 weeks earlier within 3 miles of her home. Likewise, eight clients at 23, 22, 22, 19, 19, 19, 19, and 20 weeks lmp have secured abortion appointments in Albuquerque, New Mexico. Given the limited availability of abortion appointments at later gestational ages throughout the country, Lilith Fund is working to build relationships with another abortion provider in New Mexico and one in Illinois, where Texans affected by the EO will likely seek care in future weeks as they too near the gestational cut-off for legal abortion in Texas.
14. Most of our clients are flying rather than driving out of state because the health risks involved in air travel have made it much more affordable—and our clients lack the privilege to choose the more expensive, but likely safer option of driving.
15. These journeys, fraught in ordinary times, would be impossible without ongoing financial and practical support from nonprofit organizations. This includes funding for abortions at later gestational ages; since the EO, the average cost of an abortion for our clients has skyrocketed from $1,230 to $2,689, a 118% increase. Thus, we have further increased the average amount of our vouchers from $267 to $363. Support also includes the rapid arrangement of transportation and lodging, including the bravery of volunteers risking their health and safety to drive abortion patients to and from unfamiliar airports, and reimbursement for gasoline.
16. At least one client, who is at 19 weeks lmp, and whose abortion appointment was scheduled in Houston before the EO, worries about raising the funds and coordinating the travel needed to make a lengthy trip during the public health crisis, even with organizational assistance.
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Case 1:20-cv-00323-LY Document 56-1 Filed 04/08/20 Page 7 of 7 She also agonizes about the risk of contracting COVID-19, and of exposing her fetus to the virus, if the trip is unsuccessful and she is forced to carry to term.
17. Indeed, many clients are wrestling with acute fear and anxiety over whether they will be able to complete such trips, all the while contending with symptoms of pregnancy, such as severe morning sickness. And they are frustrated and angry that their Government, while urging other Texans to stay home, is driving them into hotbeds for the virus and putting them at greater risk of contracting and transmitting COVID-19 to their loved ones. Dated: April 8, 2020
/S/ Rashae Ward Rashae Ward Hotline Coordinator Lilith Fund
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Case 1:20-cv-00323-LY Document 49-8 Filed 04/02/20 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD CENTER FOR )

CHOICE; et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GREG ABBOTT, in his official capacity as )

Governor; et al.,

)

)

Defendants.

)

CASE NO. 1:20-cv-323-LY

DECLARATION OF RITA GOLIKERI WOOD, D.O., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

RITA GOLIKERI WOOD, D.O., hereby declares under penalty of perjury that the

following statements are true and correct:

1. I am an obstetrician-gynecologist (“OB/GYN”) with a private practice in Fort

Worth, Texas.

2. I obtained my medical degree from the Texas College of Osteopathic Medicine at

University of North Texas Health Science Center.

3. I completed a residency in obstetrics and gynecology at John Peter Smith Hospital

in Fort Worth.

4. I am a member of the American College of Obstetricians and Gynecologists

(“ACOG”) and the Texas Medical Association.

5. I provide the following testimony based on my personal knowledge as well as my

training and experience as an OB/GYN.

6. In my office, I provide general gynecological care, family planning services, and

obstetrics care. In January and February of this year, I treated 15 patients per day, on average.

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7. I also provide labor and delivery services in a hospital setting. I currently have admitting privileges at two hospitals in Fort Worth. In January and February of this year, I delivered approximately 20 to 25 babies.
8. Since the COVID-19 outbreak, I have altered my practice in various ways to minimize the risk that my patients, my colleagues, or I will be exposed to the virus. For example, I have cancelled office visits for routine gynecological care and family planning services. I treat these patients via telemedicine when possible. My office screens patients for COVID-19 symptoms by phone in advance of their appointments and declines to see symptomatic patients, instead referring them for virus testing and treatment as consistent with current federal and state guidelines. We also take patients’ temperatures at the door and similarly screen out those with fevers. We have tried to minimize the number of people in the office at a given time by asking patients not to bring companions and having them wait in their cars until I can see them.
9. Currently, I see fewer than ten patients per day in my office—primarily those who are pregnant or have urgent gynecological needs that cannot be addressed through telemedicine.
10. Some obstetrical care may be provided via telemedicine, but much of it requires inperson visits.
11. I currently recommend that patients with low-risk, uncomplicated pregnancies come in for an appointment once per month during the first trimester and early second-trimester. Beginning at 28 weeks of pregnancy, I recommend that they come in every two weeks. Patients with high-risk pregnancies or complications need to come in more often. I typically request a urine sample from patients during each visit. The samples are tested by a medical assistant in an on-site laboratory in my office.
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12. Factors that make pregnancies high risk include being over 35 years old; obesity; underlying medical conditions such as high blood pressure, diabetes, epilepsy, etc.; and carrying twins or higher order multiples. Pregnancy-related complications include abnormal placentation; gestational diabetes; and pre-eclampsia, among others.
13. Approximately 30 percent of my obstetrical patients are high-risk or have complications.
14. In addition to regular office visits, obstetrical patients also require ultrasound examinations to determine whether the pregnancy is developing normally. For patients with lowrisk, uncomplicated pregnancies, I currently recommend one ultrasound examination at the start of care to establish gestational age and viability of the pregnancy; one at 18-20 weeks of pregnancy; and one in the late second trimester or early third trimester. Patients with high-risk pregnancies or complications require more frequent ultrasounds.
15. My recommendations about the frequency of pre-natal visits and ultrasound examinations are based on guidelines from ACOG and the Society for Maternal-Fetal Medicine.
16. When treating pregnant patients in my office, I typically wear the following forms of personal protective equipment (“PPE”): non-sterile gloves, surgical masks, and scrubs. I may also wear sterile gloves if I need to perform a sterile vaginal examination. I change gloves between patients and may also change gloves several times during a single patient’s appointment, depending on the circumstances. I also change my mask between patients. The medical assistant who processes urine samples wears non-sterile gloves and changes them periodically.
17. The ultrasound technician in my office typically wears non-sterile gloves for both transvaginal and transabdominal ultrasound examinations. I sometimes perform ultrasound examinations myself, and I also wear non-sterile gloves. The choice between transvaginal
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ultrasound and transabdominal ultrasound varies based on several factors including the sensitivity of the ultrasound machine; the gestational age of the pregnancy; and the size and shape of the patient’s body.
18. I am currently offering all pregnant patients the option of wearing a surgical mask in my office.

Dated: April 2, 2020

Rita Golikeri Wood
Rita Golikeri Wood, D.O.

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Case: 20-50296 Document: 00515379017 Page: 1 Date Filed: 04/10/2020

No. 20-50296
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
In re GREG ABBOTT, in his official capacity as Governor of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas; PHIL WILSON, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; STEPHEN BRINT CARLTON, in his official capacity as Executive Director of the Texas Medical Board; and KATHERINE A. THOMAS, in her official capacity as Executive
Director of the Texas Board of Nursing.

On Petition for a Writ of Mandamus from the United States District Court, Western District of Texas, Austin Division No. 1:20-cv-00323-LY

RESPONDENTS’ EMERGENCY MOTION TO LIFT PARTIAL ADMINISTRATIVE STAY

PATRICK J. O’CONNELL Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com Counsel for Plaintiffs-Respondents
[Additional counsel on inside cover]

JULIE A. MURRAY HANNAH SWANSON Planned Parenthood Federation of America 1110 Vermont Ave., NW, Ste. 300 Washington, DC 20005 (202) 973-4800
JENNIFER SANDMAN Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 541-7800 Counsel for Plaintiffs-Respondents Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center

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Additional counsel:

STEPHANIE TOTI RUPALI SHARMA Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 (646) 490-1083 Counsel for Plaintiffs-Respondents Whole Woman’s Health and Whole Woman’s Health Alliance

MOLLY DUANE Center for Reproductive Rights 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 Counsel for Plaintiffs-Respondents Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace, M.D.

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CERTIFICATE OF INTERESTED PERSONS

No. 20-50296, In re Greg Abbott, et al. The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

Plaintiffs-Respondents

Counsel

1. Planned Parenthood Center for Choice 2. Planned Parenthood of Greater Texas
Surgical Health Services 3. Planned Parenthood South Texas
Surgical Center 4. Whole Woman’s Health 5. Whole Woman’s Health Alliance 6. Southwestern Women’s Surgery
Center 7. Brookside Women’s Medical Center
PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center 8. Robin Wallace, M.D.

1. Law Offices of Patrick J. O’Connell PLLC (Patrick J. O’Connell)
2. Planned Parenthood Federation of America (Jennifer Sandman, Julie Murray, Hannah Swanson)
3. Center for Reproductive Rights (Molly Duane, Rabia Muqaddam, Francesca Cocuzza)
4. Lawyering Project (Stephanie Toti, Rupali Sharma)

Defendants-Petitioners

Counsel

1. Greg Abbott, Governor of the State of Texas
2. Ken Paxton, Attorney General of Texas
3. Phil Wilson, Acting Executive Commissioner of the Texas Health and

1. Office of the Attorney General of Texas (Kyle D. Hawkins, Jeffrey C. Mateer, Andrew B. Stephens, Heather G. Hacker, Benjamin S. Walton, Beth Klusmann, Natalie D.

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Human Services Commission 4. Stephen Brint Carlton, Executive
Director of the Texas Medical Board 5. Katherine A. Thomas, Executive
Director of the Texas Board of Nursing

Thompson)

Defendants

Counsel

1. Margaret Moore, District Attorney for Travis County
2. Joe Gonzales, Criminal District Attorney for Bexar County
3. John Creuzot, District Attorney for Dallas County
4. Jaime Esparza, District Attorney for El Paso County
5. Kim Ogg, Criminal District Attorney for Harris County
6. Ricardo Rodriguez, Jr., Criminal District Attorney for Hidalgo County
7. Barry Johnson, Criminal District Attorney for McLennan County
8. Sharen Wilson, Criminal District Attorney for Tarrant County
9. Brian Middleton, Criminal District Attorney for Fort Bend County

1. Office of the Dallas County District Attorney (John J. Butrus, Jr.)
2. Office of the Fort Bend County District Attorney (Justin C. Pfeiffer)

Amici Curiae

Counsel

1. Attorneys General of the States of Alabama, Alaska, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia
2. American Center for Law and Justice 3. American Association of Pro-Life
Obstetricians and Gynecologists; Texas Values; Indiana Family

1. Louisiana Department of Justice (Jeff Landry, Elizabeth Murrill, J. Scott St. John)
2. Lill Firm, P.C. (David S. Lill) 3. American Center for Law and
Justice (Jay A. Sekulow, Edward L. White III, Jordan Sekulow, Stuart J. Roth, Erik M. Zimmerman, Benjamin P. Sisney, Olivia F. Summers, Christina A. Stierhoff)

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Institute; Family Heritage Alliance Action, South Dakota; Minnesota Family Council; Wisconsin Family Action; Alaska Family Action; California Family Council; Ohio Citizens for Community Values; Nebraska Family Alliance; Family Policy Institute of Washington; The Family Foundation (Kentucky); Louisiana Family Forum 4. American College of Obstetricians and Gynecologists; American Medical Association; American Academy of Family Physicians; American Academy of Nursing; American Academy of Pediatrics; AAGL; American College of Nurse-Midwives; American College of Osteopathic Obstetricians and Gynecologists; American College of Physicians; American Osteopathic Association; American Psychiatric Association; American Society of Reproductive Medicine; American Urogynecologic Society; North American Society for Pediatric and Adolescent Gynecology; National Association of Nurse Practitioners in Women’s Health; Society of Family Planning; Society for Maternal-Fetal Medicine; Society of Gynecologic Oncology; Society of Gynecologic Surgeons; Society of OB/GYN Hospitalists 5. Attorneys General of the States of New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island,

4. Mitchell Law PLLC (Jonathan F. Mitchell)
5. Texas Values (Jonathan M. Saenz)
6. Mayer Brown (Nicole A. Saharsky, Kathleen S. Messinger)
7. American College of Obstetricians and Gynecologists (Skye L. Perryman)
8. Office of the New York State Attorney General (Letitia James, Barbara D. Underwood, Anisha S. Dasgupta, Laura Etlinger)

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Vermont, Virginia, Washington, and the District of Columbia
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TABLE OF AUTHORITIES
Cases
In re Greg Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) .............. 3, 6
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905) ..................................................................... 3, 5
Preterm-Cleveland v. Att’y. Gen. of Ohio, No. 1:19-cv-00360-MRB, slip op. (S.D. Ohio Mar. 30, 2020)............ 7
Preterm-Cleveland v. Att’y. Gen. of Ohio, No. 20-3365, 2020 WL 1673310 (6th Cir. Apr. 6, 2020) .................... 8
Robinson v. Marshall, No. 2:19cv365-MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020) .. 7
S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) 5, 7
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ......................................................................... 6
Statutes
Tex. Health & Safety Code § 171.044 ....................................................... 2, 6
Other Authorities
Defendants Ohio Dep’t of Health, State Med. Bd. of Ohio, and Ohio Att’y Gen. Dave Yost’s Response to Plantiffs’ Motion for Preliminary Injunction at 27, Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19cv-00360 (S.D. Ohio Apr. 8, 2020), ECF No. 59 ................................ 7
Tex. Med. Bd., Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020).................................................................... 4
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INTRODUCTION On April 10, 2020, Defendants-Petitioners (“State Officials”) filed an emergency motion for an administrative stay of the district court’s limited temporary restraining order (“Limited TRO”), which partially enjoined enforcement of a Texas executive order that State Officials interpret to prohibit nearly all abortions during the COVID-19 pandemic. Without awaiting an opposition from PlaintiffsRespondents (“Providers”), this Court granted the motion in part and entered an administrative stay with no formal expiration date of key portions of the Limited TRO. Providers file this emergency motion to lift the administrative stay. On remand, responding directly to this Court’s guidance, the district court issued a narrow TRO tailored to the record before it (which contains evidence not before the district court at the time of its prior TRO). This Limited TRO temporarily blocks enforcement of Texas Governor Greg Abbott’s March 22, 2020, Executive Order GA-09 (“Executive Order”) only as to (1) medication abortion and (2) abortion for patients who would otherwise be prevented from accessing that care before expiration of the Executive Order, as described more specifically in the Limited TRO. Immediate dissolution of the administrative stay is necessary to prevent severe and lasting harm to Providers’ patients and public health.
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Respondents have conferred with Petitioners, who indicate that they oppose this motion.
ARGUMENT The administrative stay is at odds with the district court’s express finding that the Limited TRO is necessary to prevent irreparable harm to Providers’ patients who have been unable to obtain abortions since the Executive Order went into effect on March 22, 2020. Providers have already turned away hundreds of patients seeking abortion care, including during a previous week-long administrative stay entered by this Court to resolve State Officials’ first petition for a writ of mandamus. They will turn away hundreds more in the coming days if this Court does not lift its latest administrative stay. App.473–74. Those patients will include individuals likely or certain to lose their right to obtain an abortion in the State of Texas by the time the Executive Order expires, even assuming the order is not extended, because the patients’ pregnancies will exceed eighteen weeks LMP by April 22, 2020, and, in the judgment of their medical providers, they will likely be unable to access care at one of the few ambulatory surgical centers (“ASCs”) in Texas.1 Those patients will also include those seeking
1 Tex. Health & Safety Code § 171.044. This statute bans most abortion after twenty weeks post-fertilization. Fertilization generally occurs about two weeks after the first day of the pregnant patient’s last menstrual period (“LMP”), so twenty weeks post-fertilization equates to roughly twenty-two weeks LMP.
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a medication abortion, which is not a “procedure” under the Executive Order and, as the district court found, does not require the use of PPE.
There is no basis for State Officials’ claim that mandamus is appropriate here. As Providers would describe in an opposition to that petition, the district court correctly applied this Court’s previous mandamus order. Under that decision, certain applications of the Executive Order may amount to an undue burden under Planned Parenthood Southeast Pennsylvania v. Casey where, “‘beyond question,’ the Executive Order’s burdens outweigh its benefits in those situations.” In re Greg Abbott, No. 20-50264, 2020 WL 1685929, at *9 (5th Cir. Apr. 7, 2020) (quoting Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)). This Court’s mandamus order expressly recognized that the Executive Order contains an exception for procedures 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,’” and stated that the district court’s prior, broad TRO contained no findings about the use of PPE in medication abortion. Id. at *9, *11. It also recognized that relief may be appropriate for patients whose pregnancies will reach or exceed a point after which abortion services would be unavailable in Texas. Id. at *11. The district court correctly concluded that Providers are likely to meet the standard set forth in this Court’s mandamus order as to abortion in the limited circumstances at issue here.
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First, the record demonstrates that medication abortion is not a “procedure” and requires no PPE, App.73, 86, 91, 100, 110, 117, 129–30, 134, 157, 469–70, so it does not cause any of the problems addressed by the Executive Order, which on its face applies only to “surgeries and procedures.” App.35; see also Tex. Med. Bd., Updated Texas Medical Board (TMB) Frequently Asked Questions (FAQs) Regarding Non-Urgent, Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19 Pandemic (Mar. 29, 2020).2 The record further shows that complications from medication abortion are exceedingly rare, and follow-up aspiration procedures, where necessary, can almost always be performed in an outpatient setting. App.129, 373, 470. The district court also found that the ultrasounds and ancillary services attendant to medication abortion are not “procedures” governed by the Executive Order based on Defendant Texas Medical Board’s own guidance document, and that, in any event, the PPE used at this stage of pregnancy is greater for individuals who remain pregnant than for those who have an abortion. App.470, 472–73. In addition, it found that Texas obstetricians are continuing to provide in-person visits to pregnant patients, including ultrasounds and other ancillary services. App.472.
2 Available at http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BFF9221E4DEF17.
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As to the burdens of the Executive Order as applied to medication abortion, the district court found, based on the evidentiary record, that the health risks associated with both pregnancy and abortion increase with gestational age. App.474. The district court likewise found, based on the record, that people with ongoing pregnancies must cope with the physical symptoms of pregnancy; must struggle to conceal their pregnancies from abusive partners or family members; and must deal with the stress and anxiety of not knowing when—or if—they will be able to obtain an abortion. App.475. The district court also found that the Executive Order is causing individuals who have the ability to travel to go to other states to obtain abortions. The record shows that these individuals, including individuals seeking medication abortion, are traveling by both car and airplane to places as far away as Colorado and Georgia, at odds with the recommendations of public health officials. App.473.
The district court was correct that the burdens the Executive Order imposes on these individuals, beyond all doubt, outweigh any benefits that the Executive Order may confer. See S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2, 5 (W.D. Okla. Apr. 6, 2020) (quoting Jacobson, 197 U.S. at 31) (“[T]he benefit to public health of the ban on medication abortions is minor and outweighed by the intrusion on Fourteenth Amendment rights caused by that ban.”). There is no error in the district court’s conclusion in this regard.
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Second, the Executive Order undeniably operates as an undue burden as to people whose pregnancies will, by expiration of the Executive Order, reach eighteen weeks LMP and who, in the judgment of their physician, would not be able to access abortion care at one of the State’s few ASCs. At that point, outpatient procedural abortions may only be performed at ASCs,3 but there are no ASCs that provide abortion care outside of Texas’s four largest metropolitan areas. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016). Accordingly, patients who are unable to obtain care at an ASC after eighteen weeks LMP will be denied an abortion entirely. Because the Executive Order as applied to abortion in those circumstances would have the effect of foreclosing the right to abortion altogether, see id. at 2316– 18, it “constitute[s] an undue burden under Casey” and is, “beyond question, in palpable conflict with the Constitution,” In re Greg Abbott, 2020 WL 1685929, at *10.
The district court’s Limited TRO grants relief in these limited circumstances only, and for a limited time: it expires in just over a week, on April 19, 2020. As the district court expressly found, again in response to this Court’s previous decision, the Executive Order as applied to this limited subset of patients does not serve public health. Indeed, based on the declarations of Texas obstetrician-gynecologists and national public-health experts, the district court found that entry of the Limited TRO
3 Tex. Health & Safety Code § 171.004. 6
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to restore some abortion access would serve Texas’s interest in public health.
App.477. This is because patients denied access to medication abortion and
procedural abortion later in pregnancy will consume more PPE and hospital
resources by remaining pregnant than if they receive abortions.4
Finally, Providers request that this Court lift the administrative stay because
the stay’s result—permitting Texas officials to impose the most extreme abortion
restriction in the country—is at odds with the decisions of every district court to
consider these issues and enter relief. Those other courts have enjoined application
of “essential surgery” executive orders to abortion in circumstances similar to those
at issue in this case,5 and a sister circuit has concluded that such relief would not
“inflict irretrievable harms or consequences before the TRO expires.” Preterm-
Cleveland v. Att’y. Gen. of Ohio, No. 20-3365, 2020 WL 1673310, at *1–2 (6th Cir.
4 Indeed, in enforcing a similar executive order, Ohio recognized the public health need to allow medication abortions and abortions for patients close to a gestational-age cutoff. See Defendants Ohio Dep’t of Health, State Med. Bd. of Ohio, and Ohio Att’y Gen. Dave Yost’s Response to Plantiffs’ Motion for Preliminary Injunction at 27, Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-cv00360 (S.D. Ohio Apr. 8, 2020), ECF No. 59 (“Doctors should perform medicinal abortions (rather than surgical abortions) where that option is safe and available. Doctors remain free to perform surgical abortions necessary for a mother’s health or life, and also surgical abortions that cannot be delayed without jeopardizing the patient’s abortion rights.”)
5 See generally Preterm-Cleveland v. Att’y. Gen. of Ohio, No. 1:19-cv-00360MRB, slip op. (S.D. Ohio Mar. 30, 2020); Robinson v. Marshall, No. 2:19cv365MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020); S. Wind Women’s Center LLC v. Stitt, 2020 WL 1677094.
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Apr. 6, 2020). Meanwhile, the administrative stay is already causing irreparable harm to the health and rights of hundreds of Texans, and will exacerbate the spread of COVID-19 by forcing people to travel out of state for care that the TRO would allow them to obtain safely closer to home.
CONCLUSION For the foregoing reasons, this Court should lift the administrative stay without delay. Given the nature of the harms imposed by the stay, Respondents request a decision on their emergency motion by April 10, 2020.

Dated: April 10, 2020

Respectfully submitted,

/s/ Patrick J. O’Connell PATRICK J. O’CONNELL Law Offices of Patrick J. O’Connell PLLC 5926 Balcones Dr., Ste. 220 Austin, Texas 78731 (512) 852-5918 pat@pjofca.com Counsel for Plaintiffs-Respondents
STEPHANIE TOTI RUPALI SHARMA Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 (646) 490-1083

/s/ Julie A. Murray JULIE A. MURRAY HANNAH SWANSON Planned Parenthood Federation of America, Inc. 1110 Vermont Ave., NW, Ste. 300 Washington, DC 20005 (202) 973-4800 julie.murray@ppfa.org hannah.swanson@ppfa.org
JENNIFER SANDMAN Planned Parenthood Federation of America, Inc. 123 William St., 9th Floor New York, NY 10038

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stoti@lawyeringproject.org rsharma@lawyeringproject.org Counsel for Plaintiffs-Respondents Whole Woman’s Health and Whole Woman’s Health Alliance
MOLLY DUANE Center for Reproductive Rights 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 mduane@reprorights.org Counsel for Plaintiffs-Respondents Southwestern Women’s Surgery Center, Brookside Women’s Medical Center PA d/b/a Brookside Women’s Health Center and Austin Women’s Health Center, and Robin Wallace, M.D

(212) 541-7800 jennifer.sandman@ppfa.org Counsel for Plaintiffs-Respondents Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center

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CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system. I certify that counsel for the Defendants-Petitioners are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Julie Murray Julie Murray
CERTIFICATION OF COMPLIANCE WITH RULE 27.3 In compliance with Fifth Circuit Rule 27.3, I certify the following:
● Before filing this motion, counsel for Respondents contacted the clerk’s office and opposing counsel to advise them of Respondents’ intent to file this motion.
● The facts stated herein supporting emergency consideration of this motion are true and complete.
● The Court’s review of this motion is requested as soon as possible, but no later than 9 p.m. Central Time, Friday, April 10, 2020.
● True and correct copies of relevant orders and other documents are included in the Appendix to Petitioners’ petition for writ of mandamus.
● This motion is being served at the same time it is being filed. /s/ Julie Murray Julie Murray
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CERTIFICATE OF COMPLIANCE WITH TYPE-FACE AND VOLUME LIMITATIONS

Pursuant to Fed. R. App. P. 32(g), I hereby certify that the foregoing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 1,759 words, excluding the items exempted by Fed. R. App. P. 32(f). This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font.

Dated: April 10, 2020

/s/ Julie Murray Julie Murray

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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130
April 10, 2020

Ms. Heather Gebelin Hacker Office of the Attorney General for the State of Texas 209 W. 14th Street Price Daniels Sr. Building Austin, TX 78701-1614
Mr. Kyle Douglas Hawkins Office of the Attorney General Office of the Solicitor General P.O. Box 12548 (MC 059) Austin, TX 78711-2548
Ms. Beth Ellen Klusmann Office of the Attorney General Office of the Solicitor General P.O. Box 12548 (MC 059) Austin, TX 78711-2548
Mrs. Natalie Deyo Thompson Office of the Attorney General Office of the Solicitor General P.O. Box 12548 (MC 059) Austin, TX 78711-2548
No. 20-50296 In re: Greg Abbott, et al USDC No. 1:20-CV-323

Dear Counsel:
This letter will serve to advise the parties that the court has requested a response to the Respondents' Motion to lift stay be filed in this office on or before 5:00pm, April 11, 2020.

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Sincerely, LYLE W. CAYCE, Clerk By: _________________________ Mary Frances Yeager, Deputy Clerk 504-310-7686 cc: Mrs. Molly Rose Duane Mr. Richard Muniz Ms. Julie A. Murray Mr. Patrick J. O'Connell Ms. Jennifer Sandman Ms. Rupali Sharma Ms. Hannah Swanson Ms. Stephanie Toti
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CERTIFICATE OF SERVICE
I, Julie A. Murray, a member of the bar of this Court, certify that on this 11th
day of April, 2020, I caused all parties requiring service in this matter to be served with
a copy of the foregoing by email and first class mail to the individuals listed below:
KYLE D. HAWKINS, SOLICITOR GENERAL HEATHER GEBELIN HACKER BETH KLUSMANN Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 Kyle.Hawkins@oag.texas.gov Heather.Hacker@oag.texas.gov Beth.Klusmann@oag.texas.gov
/s/ Julie A. Murray JULIE A. MURRAY
Counsel of Record