IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________ 

No. 20-50296

_______________________ 

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

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. 

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2020

Lyle W. Cayce

Clerk

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REVISED April 20, 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.

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).

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2020

Lyle W. Cayce

Clerk

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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). 

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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-and4 That is, eighteen weeks after the first day of a pregnant woman’s last menstrual 

period.

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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.

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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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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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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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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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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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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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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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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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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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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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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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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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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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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. 1:20-

cv-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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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• 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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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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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. 20-

6045, 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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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_03-22-

2020.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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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 26-

30. 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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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 18-

week 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 22-

week 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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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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‘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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United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

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

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