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/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 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 § 

2U2UMAR3O PM 3:05 

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

Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 1 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 of Texas'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 2 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-orderincreasing-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." 

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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 3 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 for Violation of Emergency 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 4 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 if temporary 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 of success 

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 5 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-emergency clause" 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 6 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 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). 

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 Parenthood of Kan. 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. 

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Case 1:20-cv-00323-LY Document 40 Filed 03/30/20 Page 7 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 Document No. 25) this order does not apply 

to Defendant Brian Middleton, Criminal District Attorney for Fort Bend County. 

8 

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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 

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