IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

PLANNED PARENTHOOD CENTER 

FOR CHOICE, et al., 

Plaintiffs, 

v. 

GREG ABBOTT, et al., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

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

STATE DEFENDANTS’1 SUPPLEMENTAL RESPONSE TO 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

 

 

1 Defendants Greg Abbott, in his official capacity as Governor of Texas, Ken Paxton, 

in his official capacity as Attorney General of Texas, Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission, Stephen Brint Carlton, in his official capacity as Executive Director of the 

Texas Medical Board, and Katherine A. Thomas, in her official capacity as the Executive Director of the Texas Board of Nursing (collectively “State Defendants”).

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

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................... 3

STATEMENT OF FACTS ............................................................................................. 3

LEGAL STANDARD...................................................................................................... 6

ARGUMENT.................................................................................................................. 6

I. The Court Should Deny the Motion for Preliminary Injunction 

Because Plaintiffs Have No Likelihood of Success on the Merits. ....................... 6

A. The Court lacks jurisdiction to grant prospective injunctive relief 

as to the enforcement of GA-09 and the corresponding Emergency 

Rule because GA-09 and the Emergency Rule are no longer in 

effect. ................................................................................................................ 7

B. This Court lacks jurisdiction over any GA-15 claims..................................... 8

1. Plaintiffs may not sue the Governor and Attorney General for 

injunctive relief......................................................................................... 8

2. There is no case or controversy regarding GA-15. .................................. 9

3. Plaintiffs lack standing to challenge GA-15............................................ 9

II. If the Court considers the merits of Plaintiffs’ motion, it should deny 

relief because Plaintiffs fail to show a constitutional violation “beyond 

question.”............................................................................................................... 13

A. Plaintiffs cannot show any burden on abortion rights because GA15 does not require certifying facilities to postpone procedures.................. 13

B. Following the mandate rule, as the Court must, provides no 

means for Plaintiffs to obtain relief because their evidence is still 

insufficient. .................................................................................................... 14

1. Plaintiffs lack evidence showing how much PPE should be used 

and is being used for abortion procedures during the COVID-19 

pandemic................................................................................................. 15

2. Plaintiffs lack evidence showing how an increase in travel for 

abortion patients compares to the decrease in travel for many 

patients across the state. ....................................................................... 17

3. Plaintiffs lack evidence showing how often medication abortions 

require follow-up surgical aspiration, not just hospitalization. ........... 17

4. Plaintiffs lack evidence of specific patients who are approaching 

18 weeks LMP and would suffer a specific burden on abortion 

access. ..................................................................................................... 18

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

5. Plaintiffs lack evidence of specific patients who would be over 22 

weeks LMP before expiration of GA-15 and would suffer a 

complete deprivation of abortion access................................................ 19

III. Plaintiffs Cannot Satisfy The Remaining Factors For Preliminary 

Injunctive Relief.................................................................................................... 20

CONCLUSION............................................................................................................. 21

CERTIFICATE OF FILING AND SERVICE ............................................................. 22

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 3 of 24
3

INTRODUCTION

Plaintiffs may no longer obtain injunctive relief as to GA-09, as that executive 

order and the corresponding TMB emergency rule have been supplanted as of last 

night, April 21, 2020. The new executive order addressing elective surgeries and procedures, GA-15, went into effect this morning, April 22, 2020. Should Plaintiffs challenge GA-15 and continue to seek injunctive relief, as this Court stated it would allow 

them to do, there is no legal basis for relief for multiple reasons. First, this Court 

lacks jurisdiction to grant such relief because there is no case or controversy remaining, as Plaintiffs have already certified they are in compliance with an exception to 

GA-15, one that was not included in GA-09. Second, because Plaintiffs admit that the 

exemption now applies to them based on their certification, Plaintiffs are not being 

injured and can show no burden on the rights of their patients. Third, even if GA-15 

was identical to GA-09—and it clearly is not—the Fifth Circuit has already held that 

Plaintiffs lack evidence to show they are entitled to injunctive relief. Plaintiffs’ new 

evidence is either cumulative to evidence already before the Court or irrelevant. This 

Court should deny the motion for preliminary injunction.

STATEMENT OF FACTS

The spread of COVID-19, the disease caused by the novel coronavirus known as 

SARS-CoV-2, is a global pandemic. Thompson Decl. ¶ 3 (DX-8). Since the last time 

State Defendants filed a brief in this Court, the number of COVID-19 cases in Texas 

has grown from around 2,500 cases to nearly 22,000. DX-3.2

Texas law makes the Governor “responsible for meeting the dangers to the state 

 

2 See also Tex. Dep’t of State Health Servs., COVID-19 Texas Case Counts, 

https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298

ab01e8b9cafc8b83 (accessed Apr. 22, 2020).

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 4 of 24
4

and people presented by disasters.” Tex. Gov’t Code § 418.011. The Governor declared 

a statewide disaster on March 13, 2020 pursuant to Texas Government Code section 

418.014. DX-1. The Government Code grants the Governor broad authority once he 

has declared a disaster. Id. §§ 418.016, 418.017(c). These powers are exercised by the 

Governor through the issuance of executive orders, proclamations, and regulations, 

which the Governor also has the power to amend or rescind. Id. at § 418.012. Executive orders, proclamations, and regulations “have the force and effect of law.” Id. On 

March 19, 2020, Dr. John Hellerstedt, Commissioner of the Department of State 

Health Services, declared a public health disaster under Texas Health and Safety 

Code section 81.082 because the virus “poses a high risk of death to a large number 

of people and creates a substantial risk of public exposure because of the disease’s 

method of transmission and evidence that there is community spread in Texas.” DX2.

On March 22, 2020, the Governor issued an executive order designed to increase 

the capacity of Texas’s healthcare system to absorb a surge of COVID-19 patients and 

address the severe shortage of PPE. DX-4 (GA-09). Shortly thereafter, the Texas Medical Board (TMB) issued an Emergency Rule, 22 Tex. Admin. Code § 187.55, providing 

a mechanism for enforcement. GA-09 applied to all licensed health care professionals 

and all licensed health care facilities in the State. It required that they “postpone all 

surgeries and procedures that are not immediately necessary to correct a serious 

medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical 

consequences or death, as determined by the patient’s physician.” Id. It did not apply 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 5 of 24
5

to “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.” Id. GA-09 expired on

its own terms on April 21, 2020. Id.

At 11:59pm on April 21, 2020, a new Executive Order pertaining to elective surgeries and procedures took the place of GA-09. GA-15 also applies to all licensed 

health care professionals and all licensed health care facilities in the State. DX-11. It 

requires that they “postpone all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, 

a patient who without timely performance of the surgery or procedure would be at 

risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Id. It also does not apply to “any procedure that, if performed in 

accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with 

the COVID-19 disaster.” Id. 

Significantly, GA-15 provides an additional exception for “any surgery or procedure performed in a licensed health care facility that has certified in writing to the 

Texas Health and Human Services Commission both: (1) that it will reserve at least 

25% of its hospital capacity for treatment of COVID-19 patients, accounting for the 

range of clinical severity of COVID-19 patients; and (2) that it will not request any 

personal protective equipment from any public source, whether federal, state, or local, 

for the duration of the COVID-19 disaster.” Id. GA-15 expires on May 8, 2020. Id.

Under the text of GA-15, providers are responsible for certifying that they meet 

the conditions of the new exception. Id. Both HHSC and the Texas Medical Board 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 6 of 24
6

(TMB) agree that HHSC’s role is limited to receiving certifications from facilities and 

acknowledging receipt. Id.; DX-13, DX-14. TMB issued an emergency rule, which 

went into effect at midnight on April 22, 2020 along with GA-15, and replaces 22 Tex. 

Admin. Code § 187.55, the previous Emergency Rule that corresponded with GA-09. 

DX-12. The New Emergency Rule tracks the language of GA-15, including the new 

exception, and provides a mechanism for enforcement. 

Every Plaintiff clinic has certified to HHSC that it meets the requirements of the

new exception in GA-15. DX-15. 

LEGAL STANDARD

A preliminary injunction is “an extraordinary remedy that should only issue if 

the movant shows: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened 

injury outweighs any harm that will result to the non-movant if the injunction is 

granted; and (4) the injunction will not disserve the public interest.” Ridgely v. Fed. 

Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). At the preliminary injunction stage, Plaintiffs “bear the burden to prove, by a ‘clear showing’ that they are 

entitled to relief.” In re Abbott, No. 20-50264, 2020 WL 1685929, at *12 (5th Cir. Apr. 

7, 2020) (Abbott I) (citation omitted).

ARGUMENT

I. The Court Should Deny the Motion for Preliminary Injunction Because 

Plaintiffs Have No Likelihood of Success on the Merits.

Plaintiffs cannot show an entitlement to injunctive relief as to GA-09 because it 

is no longer effective. DX-4. To the extent Plaintiffs may yet raise challenges to GA15 and the New Emergency Rule (and they have not done so) and to the extent the 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 7 of 24
7

Court entertains those challenges under this motion,3 the Court lacks jurisdiction 

because Plaintiffs lack standing to obtain any relief and there is no case or controversy between the parties.

“A district court’s obligation to consider a challenge to its jurisdiction is non-discretionary.” In re Gee, 941 F.3d 153, 159 (5th Cir. 2019). “When the defendant ‘challenge[s] the jurisdiction of the district court in an appropriate manner,” that court 

has a “duty of making further inquiry as to its own jurisdiction.’ Id. (quoting Opelika 

Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666 (5th Cir. 1971)). 

A. The Court lacks jurisdiction to grant prospective injunctive relief 

as to the enforcement of GA-09 and the corresponding Emergency 

Rule because GA-09 and the Emergency Rule are no longer in effect. 

The “frequently reiterated standard requires plaintiffs seeking preliminary relief 

to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Plaintiffs cannot show that 

they will “likely” suffer irreparable injury with respect to GA-09 because it is no 

longer effective and no longer being enforced. DX-4. The Fifth Circuit recently confirmed that this Court lacks jurisdiction to order prospective relief against officials 

who do not enforce an executive order. In re Abbott, No. 20-50296, 2020 WL 1911216, 

at *6-7 (5th Cir. Apr. 20, 2020) (Abbott II). No one is enforcing GA-09 or the Emergency Rule because neither remains operative. In re Abbott thus forecloses any relief 

as to GA-09 and the Emergency Rule.

 

3 The Court indicated at the telephone conference of April 20, 2020 that despite GA15 not being part of the current lawsuit, the Court would entertain a challenge to GA15 as part of the already-pending motion for preliminary injunction. 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 8 of 24
8

B. This Court lacks jurisdiction over any GA-15 claims. 

Plaintiffs state that they include GA-15 in their request for preliminary injunctive relief (despite it not being included in the operative complaint) “[t]o the extent 

Defendants intend to interpret and enforce the rule consistent with their interpretation of GA-09 and inconsistent with GA-15’s new exception.” Suppl. Mem. Supp. Mot. 

1 n.1. As explained above, GA-15 and GA-09 are not the same, and GA-15 contains 

an exception GA-09 lacked and that Plaintiffs certify they meet, so it is unclear how 

they would be applied the same way. Thus, according to their own motion, Plaintiffs 

have no basis for preliminary injunctive relief against GA-15. But even if the Court 

entertained a claim for relief related to GA-15, the Court lacks jurisdiction over any 

putative claims related to GA-15 because there is no case or controversy and Plaintiffs 

lack standing. 

1. Plaintiffs may not sue the Governor and Attorney General for 

injunctive relief.

As the Fifth Circuit already held, “the Governor lacks the required enforcement 

connection to GA-09 and may not be sued for injunctive relief under the Eleventh 

Amendment.” Abbott II, 2020 WL 1911216, at *6. The Fifth Circuit also settled the 

question as to the Attorney General: “The Attorney General also lacks the required 

enforcement connection to GA-09 and may not be sued for injunctive relief under the 

Eleventh Amendment.” Id. Like GA-09, GA-15 provides no enforcement connection to 

these state officials. DX-11. The Governor and the Attorney General therefore are not 

proper parties to any suit challenging GA-15, and the Court lacks jurisdiction to enter 

injunctive relief against them. Abbott II, 2020 WL 1911216, at *7.

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 9 of 24
9

2. There is no case or controversy regarding GA-15.

“The exercise of judicial power under Article III of the United States Constitution 

depends upon the existence of a case or controversy. Without an actual case or controversy, a federal court has no jurisdiction.” John Doe #1 v. Veneman, 380 F.3d 807, 

814 (5th Cir. 2004). ‘“There must be a case or controversy through all stages of a 

case’—not just when a suit comes into existence but throughout its existence.” Yarls 

v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018) (quoting K.P. v. LeBlanc, 729 F.3d 427, 

438 (5th Cir. 2013)). For about two weeks, GA-15 delays surgeries or procedures that 

are not medically necessary, but provides an exception for procedures performed in 

facilities that make the specified certification to HHSC. DX-11. Plaintiffs state that 

they can truthfully certify that they qualify for the exception. Suppl. Mem. Supp. for 

Prelim. Inj. at 1. Plaintiffs in fact have made those certifications and received acknowledgment from HHSC. DX-15. Having done so, Plaintiffs admit the exemption 

applies to them. There is no controversy between the parties, and the Court therefore 

lacks jurisdiction.4

3. Plaintiffs lack standing to challenge GA-15.

Closely related to the above is Plaintiffs’ lack of standing to challenge GA-15. 

 

4 As the Fifth Circuit just cautioned, were the Court to find that the plain text of GA15 is ambiguous or disagree with state officials’ interpretation of it, “any relief ordering a state official to comply with state law would be barred by the Pennhurst doctrine. Abbott II, 2020 WL 1911216, at *15 (citing Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 106 (1984). Moreover, the Supreme Court has long held that 

district courts must abstain from deciding cases where a state-law question—like the 

proper interpretation of state law—would “avoid or significantly modify” the federal 

analysis. Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 512 (1972); see R.R. 

Comm’n v. Pullman Co., 312 U.S. 496, 500 (1941). 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 10 of 24
10

‘“[F]ederal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” 

In re Gee, 941 F.3d at 159 (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 

(1990) (citation omitted)). Plaintiffs cannot show they are being injured by any State 

Defendant and lack standing to pursue relief from GA-15 or the New Emergency 

Rule. This Court therefore lacks jurisdiction over any future challenge by Plaintiffs 

as to those provisions.

a. A plaintiff seeking relief in federal court must first plausibly allege “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation marks 

omitted). The “threatened injury must be certainly impending to constitute injury in 

fact, and . . . allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013) (quotations and brackets omitted). “By ensuring a future injury is not ‘too speculative,’ the imminence requirement [of article 

III standing] ‘reduce[s] the possibility of deciding a case in which no injury would 

have occurred at all.’” Ctr. for Biological Diversity v. United States Envt’l Prot. 

Agency, 937 F.3d 533, 537 (5th Cir. 2019) (quoting Lujan, 504 U.S. at 564 n.2). 

Because GA-15 is not addressed in the operative complaint, there are no allegations of injury. 2d Am. Compl. 2-27. But assuming Plaintiffs will make allegations 

regarding GA-15 like those they made for GA-09, there is no injury in fact traceable 

to the State Defendants. All the Plaintiff abortion clinics have submitted certifications, and HHSC has acknowledged receipt of those certifications. DX-15. According 

to the text of GA-15 and HHSC, that is the extent of HHSC’s role under GA-15. DXCase 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 11 of 24
11

11; see also DX-13, DX-14. TMB will enforce GA-15 only if it receives a complaint of 

non-compliance and verifies the allegation through investigation. DX-14.5 Because 

Plaintiffs have now certified to HHSC that they qualify for the exemption, neither 

HHSC nor TMB will take any unilateral enforcement action against them. 

If Plaintiffs choose not to perform abortions despite making the certification to 

qualify for the exemption, that does not give them standing. “A plaintiff’s decision to 

forego action based on speculation is not an injury sufficient to confer standing.” Zimmerman v. City of Austin, 881 F.3d 378, 389-90 (5th Cir. 2018); see also Ctr. for Biological Diversity, 937 F.3d at 540-42. “Parties ‘cannot manufacture standing merely 

by inflicting harm on themselves based on their fears of hypothetical future harm 

that is not certainly impending.’” Glass v. Paxton, 900 F.3d 233, 239 (5th Cir. 2018)

(quoting Clapper, 568 U.S. at 416). 

b. Next, the plaintiff must show it is “likely,” as opposed to merely “speculative,” that the claimed injury will be “redressed by a favorable decision.” Lujan, 504 

U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 

(1976)). Plaintiffs’ GA-15 claims against the State Defendants do not meet that standard. Assuming Plaintiffs would seek an order enjoining State Defendants from enforcing GA-15 and the New Emergency Rule as applied to abortions like they did with 

GA-09, Plaintiffs cannot show any likelihood of enforcement if they have certified that 

 

5 Plaintiffs have never articulated what their theory of injury is with respect to the 

Texas Nursing Board. TNB, unlike TMB, has not passed any emergency rules providing for enforcement for non-compliance with either GA-09 or GA-15, and the disciplinary code section cited by Plaintiffs in the Complaint does not mention anything 

about compliance with Executive Orders. See 2d Am. Compl. ¶ 28; Tex. Occ. Code. § 

301.452. In light of the absence of any allegations, let alone evidence, this Court cannot 

enter relief against TNB. 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 12 of 24
12

they meet GA-15’s exemption. Standing to seek prospective relief against the enforcement of state law requires “a credible threat of prosecution.” Cruz v. Abbott, 849 F.3d 

594, 602 (5th Cir. 2017). Any prosecution based on the Executive Order would be 

pursued by the District Attorney Defendants, and there is no allegation that these

Defendants are at all likely to pursue prosecution, let alone under GA-15. See 2d Am. 

Compl. 2-27. Before any Plaintiff could suffer injury, the relevant District Attorney 

would have to find that Plaintiffs are in violation of GA-15 despite their certifications

and decide to pursue prosecution. And as to TMB, it will issue sanctions for violation 

of GA-15 only if it first (1) receives a complaint of non-compliance, (2) the complaint 

contains sufficient evidence to prompt an investigation; and (3) verifies the allegation 

through investigation. DX-14. Injury that relies on such an “attenuated chain of inferences” does not suffice for standing. Clapper, 568 U.S. at 414 n.5. 

A mere fear of prosecution absent any indication it will occur is not enough to 

establish standing. Hypothetical injuries are insufficient to establish Article III jurisdiction. Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017), cert. denied, 138 S. Ct. 

468 (2017). The Fifth Circuit, in upholding this Court’s standing conclusion in Glass, 

held that “[b]y adjudicating claims for which the alleged harm is not certainly impending, federal courts risk disregarding their constitutional mandate to limit their 

jurisdiction to actual cases and controversies and thereby avoid the issuance of advisory opinions.” 900 F.3d at 242. GA-15 causes no harm to Plaintiffs, nor is any “certainly impending.” Plaintiffs therefore lack standing, and this Court lacks jurisdiction to enter injunctive relief.

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 13 of 24
13

II. If the Court considers the merits of Plaintiffs’ motion, it should deny 

relief because Plaintiffs fail to show a constitutional violation “beyond 

question.” 

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 35 (1905), “prohibits 

courts from ‘usurp[ing] the state’s authority to craft measures responsive to a public 

health emergency.’” Abbott II, 2020 WL 1911216, at *12 (citing Abbott I, 2020 WL 

1685929, at *12). “Courts have no authority to ask whether a ‘particular method [is]—

perhaps, or possibly—not the best.’” Id. (quoting Jacobson, 197 U.S. at 35). “Instead, 

courts may ask only whether the state has acted in an ‘arbitrary, unreasonable manner.’” Id. (quoting Jacobson, 197 U.S. at 28). In the context presented here, where 

Plaintiffs claim a burden on the right to abortion, “a court should ‘ask[ ] whether GA09 imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic Texas now faces.” Id. (quoting Abbott I, 2020 WL 1685929, at *11 

(quoting Jacobson, 197 U.S. at 31)). The Fifth Circuit emphasized that this “delicate 

inquiry” requires ‘careful parsing of the evidence.’” Id. at *13 (quoting Abbott I, 2020 

WL 1685929 at *11). Evaluating the evidence under the prescribed standard shows 

that Plaintiffs are not entitled to injunctive relief.

A. Plaintiffs cannot show any burden on abortion rights because GA15 does not require certifying facilities to postpone procedures.

As stated above, on its face, GA-15 does not require facilities to postpone procedures if the facility has certified it meets the exception. DX-11. Thus, all of Plaintiffs’ 

arguments about burdens caused by GA-09’s postponements are irrelevant. Plaintiffs 

cannot show any entitlement to injunctive relief because no patients’ rights are being 

burdened. 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 14 of 24
14

B. Following the mandate rule, as the Court must, provides no means 

for Plaintiffs to obtain relief because their evidence is still insufficient.

Even if GA-15 were identical to GA-09—it’s not—and this Court had jurisdiction 

to grant relief—it doesn’t—Plaintiffs’ evidence is insufficient to show a likelihood of 

success on the merits, as the Fifth Circuit has already determined twice. This Court 

must follow the mandate rule, “a particular manifestation of the law-of-the-case doctrine barring reexamination of issues already decided by an appellate court.” Abbott 

II, 2020 WL 1911216, at *7 (citing United States v. Smith, 814 F.3d 268, 273 (5th Cir. 

2016)). “Under the mandate rule, a district court ‘must implement both the letter and 

the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.’” Id. (citing United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) 

(quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). 

The Fifth Circuit has twice found that the record before it “failed to support the 

conclusion that GA-09 violates Jacobson [v. Commonwealth of Massachusetts] and 

[Planned Parenthood of Southeastern Pennsylvania v.] Casey.” Id. at *9. Thus, in evaluating Plaintiffs’ claim for relief, the Court should look beyond evidence “already 

found wanting.” Id. Instead, the Court must consider whether Plaintiffs’ new evidence—Exhibits 21-40—addresses the deficiencies identified by the Fifth Circuit. If 

it does not, the mandate rule bars relief. 

In its most recent opinion, the Fifth Circuit identified examples of areas where 

additional evidence might help Plaintiffs meet their heavy burden to show a constitutional violation “beyond question” under Jacobson: 

1. Evidence showing how much PPE should be used and/or is being used for 

abortion procedures during the current pandemic, not under normal circumstances. Abbott II, 2020 WL 1911216, at *10.

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 15 of 24
15

2. Evidence showing how any increase in travel for some patients compares 

to the amount of travel GA-09 has reduced. Id. at *13.

3. Evidence showing how often medication abortions require follow-up surgical aspiration, not just hospitalization. Id. at *14.

4. Evidence of “discrete and well-defined instances” of a woman over 18 

weeks LMP who would suffer a specific burden on abortion access to support an as-applied challenge. Id. at *16.

5. Direct, not “secondhand, and thus weak,” evidence of specific patients who 

will be 22 weeks LMP before expiration of GA-09 and for whom GA-09 

operates as a permanent ban. Id. at *17.6

Plaintiffs’ evidence is still deficient. At best, it is merely cumulative of the evidence already rejected twice by the Fifth Circuit. At worst, it is irrelevant given the 

Fifth Circuit’s legal conclusions. Each of the five categories will be addressed in turn 

below. 

1. Plaintiffs lack evidence showing how much PPE should be used 

and is being used for abortion procedures during the COVID-19 

pandemic.

To start, GA-15 does not require any facility that certifies compliance with the 

exception to postpone any procedure. DX-11. But even if it somehow did despite GA15’s plain text, Plaintiffs have failed to proffer evidence justifying injunctive relief. In 

the second mandamus opinion, the Fifth Circuit held that the record contained insuf-

 

6 While the Fifth Circuit concluded that this was the only part of the second TRO that 

it could not conclude was a “clear abuse of discretion” “at this early stage,” it also 

stated that “given the weak evidence, we are not fully satisfied with this [Court’s ] 

cursory conclusion” as to women exceeding the legal limit.” Id. 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 16 of 24
16

ficient evidence to support “the conclusion that merely postponing medication abortions ‘beyond question’ violates the right to abortion.” Id. at *10. As part of that conclusion, the Court observed that there was no evidence showing how abortion providers are using PPE during the pandemic: “Scour the twenty declarations [Plaintiffs]

submitted to support their claim. Does any testify that during the current pandemic, 

abortion providers are not wearing masks? No. Nor would one expect such a statement when everyday life now presents ... grocery store cashiers, gas station attendants, and retail clerks wearing them every day.” Id. (footnote omitted).7 “Scour” the 

new declarations, and there is again a lack of evidence on this point, and only more 

of the same—PPE usage under normal circumstances. See Roe Decl. ¶ 98 (opinion on 

general PPE usage not specific to pandemic); ¶ 14 (seeing pregnant patients during 

pandemic requires extra PPE to prevent transmission of virus); Schutt-Aine 2d Decl. 

¶¶ 15, 22 (PPE use for pregnant patients during pandemic); ¶¶ 38, 40, 43 (general 

assertions on PPE usage not specific to pandemic); see also generally Pls.’ Exs. 23-39.

Plaintiffs have once again failed to support the conclusion that merely postponing 

medication abortions—or any type of abortion—“‘beyond question’ violates the right 

to abortion.” Abbott II, 2020 WL 1911216, at *10.

 

7 At least one plaintiff—Planned Parenthood of Greater Texas—is requiring all patients to wear a “face covering” because of COVID-19. https://perma.cc/4SKV-Y7KD. 

8 State Defendants vehemently object to Plaintiffs’ use of declarations from anonymous purported experts and anonymous non-essential fact witnesses, especially 

given that these witnesses are not even identified to counsel and the parties will have 

no opportunity to cross-examine these supposed witnesses. State Defendants soon 

intend to file a motion for reconsideration of the Court’s order granting the protective 

order and allowing these witnesses to not identify themselves, since they were not 

given time to respond under the Local Rules of this Court.

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 17 of 24
17

2. Plaintiffs lack evidence showing how an increase in travel for 

abortion patients compares to the decrease in travel for many 

patients across the state.

The Fifth Circuit held that this Court “usurp[ed] state authority to create publichealth measures” when it previously concluded that GA-09 did not serve the public 

interest. The Court had relied on hearsay evidence previously submitted by Plaintiffs 

to show that some women were choosing to travel out of state to receive an abortion 

rather than wait until GA-09 expired. Id. at *13. Again, the plain text of GA-15 does 

not require any facility that certifies compliance with the exception to postpone procedures, so it follows that any continued traveling out of state for procedures is not 

attributable to GA-15. DX-11. But even if it did, the Fifth Circuit held that “evidence 

that some women travel to other states to receive an abortion does not demonstrate 

that GA-09 increases the risk of COVID-19 transmission. Such a claim would require 

comparing the amount of travel that GA-09 has increased with the amount of travel 

it has reduced.” Id. It pointed out Plaintiffs’ admissions that women normally travel 

all over Texas to receive abortions. Id. In other words, it is unclear that some women 

choosing to travel out of state creates more risk of the spread of COVID-19 than is 

being reduced by delaying abortion procedures. Plaintiffs submitted no evidence on 

this point. See generally Pls.’ Exs. 21-40. 

3. Plaintiffs lack evidence showing how often medication abortions require follow-up surgical aspiration, not just hospitalization.

The Fifth Circuit determined that the Court’s previous conclusion that the number of medication abortions that require a follow-up surgical procedure “is exceedingly 

small” was unsupported by the record. Abbott II, 2020 WL 1911216, at *14. The Fifth 

Circuit explained that Plaintiffs’ evidence did not support that statement, as it referred only to hospitalization, and that State Defendants submitted evidence showing 

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 18 of 24
18

the opposite was true. Id. Plaintiffs have now submitted a second declaration from 

Dr. Schutt-Aine, which admits that the FDA states that the surgical aspiration follow-up rate is 2.6%. Schutt-Aine 2d Decl. ¶ 45. First, that number is not “exceedingly 

small.” Abbott II, 2020 WL 1911216, at *14. According to 2017 figures, that would be 

443 surgical follow-ups per year, or more than eight per week. DX-5. But it also fails 

to clarify much according to Plaintiffs’ own arguments. Plaintiffs argued that State 

Defendants’ evidence— an ACOG practice bulletin reaffirmed in 20169--was “outdated.” Id. But Dr. Schutt-Aine’s evidence is also from 2016. See Schutt-Aine 2d Decl. 

¶ 45 n. 22. None of Plaintiffs’ other evidence addresses this. See generally Exs. 21-36, 

38-40.

4. Plaintiffs lack evidence of specific patients who are approaching 18 weeks LMP and would suffer a specific burden on abortion access.

The Fifth Circuit held that delaying an abortion procedure for a woman who was 

approaching 18 weeks LMP is not an absolute ban on abortion and surmised that this 

Court instead “had in mind an as-applied challenge to GA-09 on behalf of a woman 

facing this particular combination of circumstances.” Id. at 16. But the Fifth Circuit 

held that such relief “would require evidence of ‘discrete and well-defined instances’ 

sufficient to support such a challenge . . . but the district court cited none and we can 

find none in the record.” Id. at *16 (citation omitted). Nor is there any now. Like the 

 

9 See TRO Resp. 18 n. 41 (citing Am. Coll. of Obstetricians and Gynecologists, Medical 

Management of First-Trimester Abortion, Practice Bulletin 143 (2016), 

https://www.acog.org/clinical/clinicalguidance/practice-bulletin/articles/2014/03/

medical-management-of-first-trimesterabortion); Reply in Support of Petition for 

Writ of Mandamus 5 n. 6, Abbott II, 2020 WL 1911216 (5th Cir. filed Apr. 15, 2020).

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 19 of 24
19

declaration of the abortion-hotline coordinator Rashae Ward (Ex. 21), which was rejected by the Fifth Circuit as insufficient, id., Plaintiffs’ new declarations only provide 

more of the same non-specific evidence. Compare Ward Decl. ¶¶ 13, 16 with Bennett 

Decl. ¶ 24, Hagstrom-Miller 2d Decl. ¶ 5, Sanford Decl. ¶ 17, Moe Decl. ¶¶ 18-19.

5. Plaintiffs lack evidence of specific patients who would be over 

22 weeks LMP before expiration of GA-15 and would suffer a 

complete deprivation of abortion access.

The Fifth Circuit found that this Court’s TRO as to women who would exceed the 

gestational limit for abortion in Texas before GA-09 expired was not “so patently erroneous that mandamus is appropriate,” but expressed serious reservations about the 

sufficiency of Plaintiffs’ evidence past the TRO stage. Abbott II, 2020 WL 1911216, at 

*17. In particular, the Court pointed out that the only evidence was “secondhand” 

and therefore “weak.” Id. That is still true of Plaintiffs’ new evidence. See Moe Decl. 

¶19; Nguyen 2d Decl. ¶ 5. Further, the Fifth Circuit pointed out that it is unknown 

whether “GA-09’s exception for ‘patient[s] who without immediate performance of the 

surgery or procedure would be at risk for serious adverse medical consequences ... as 

determined by the patient’s physician,’” already covers women in these circumstances.” Id. (quoting Abbott I, 2020 WL 1685929, at *3). Plaintiffs have submitted 

no evidence on that point, and to the extent that question is a matter of interpretation 

of state law, the proper forum for answering that question is state court. See Reetz v. 

Bozanich, 397 U.S. 82, 86 (1970); Pullman, 312 U.S. at 511. 

* * *

Plaintiffs have failed to meet the exacting burden required to merit the extraordinary remedy of a preliminary injunction. Plaintiffs cannot show any burden because the text of GA-15 does not require facilities that have certified compliance with 

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

the exception to postpone procedures. Even if it did, Plaintiffs’ evidence is still insufficient to warrant injunctive relief according to the Fifth Circuit because it fails to 

establish that the right to abortion has been violated “beyond question.”

III. Plaintiffs Cannot Satisfy The Remaining Factors For Preliminary 

Injunctive Relief.

Plaintiffs cannot show irreparable harm because they cannot show that they are 

being prohibited from doing anything by GA-15. See Ridgely, 512 F.3d at 734; Parts 

I.B.2, II.A supra. Conversely, the State will be harmed if the Court exempts Plaintiffs 

from compliance with a law that every other medical provider must follow, so the 

balance of equities weighs decisively in the State’s favor. See Ridgely, 512 F.3d at 

734. Moreover, COVID-19 is a serious and imminent threat to public health. Abraham Decl. ¶ 3 (DX-6). GA-15 is a necessary but temporary measure to protect the 

public. As the Fifth Circuit held, when it comes to determining what serves the public 

interest, “a court must assume that the public health experts at the Texas Department of State Health Services—not to mention the CDC, the U.S. Surgeon General, 

and the Centers for Medicare and Medicaid Services—weighed these difficult tradeoffs between medical care and public health. Federal judges get no vote on the matter.” Abbott II, 2020 WL 1911216, at *13 (citing Jacobson, 197 U.S. at 35).

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 21 of 24
21

CONCLUSION

For the foregoing reasons, the State Defendants respectfully request that the 

Court deny the motion for a preliminary injunction. 

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

RYAN L. BANGERT

Deputy First Assistant Attorney General 

DARREN MCCARTY

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief, General Litigation Division

/s/ Andrew B. Stephens 

ANDREW B. STEPHENS

Texas Bar No. 24079396

BENJAMIN S. WALTON

Texas Bar No. 24075241

Assistant Attorneys General 

General Litigation Division

HEATHER GEBELIN HACKER

Assistant Solicitor General

Texas Bar No. 24103325

Office of the Attorney General

300 West 15th Street

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2120 (phone)

(512) 320-0667 (fax)

Attorneys for State Defendants

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

CERTIFICATE OF FILING AND SERVICE

I certify that on April 22, 2020, this document was served through the Court’s 

CM/ECF Document Filing System or through electronic mail, upon the following 

counsel of record: 

Patrick J. O’Connell

Law Offices of Patrick J. O’Connell PLLC

5926 Balcones Dr., Ste. 220

Austin, TX 78731

(512) 852-5918

pat@pjofca.com

Molly Duane 

Rabia Muqaddam

Francesca Cocuzza

Center for Reproductive Rights

199 Water St. 22nd Floor

New York, NY 10038

(917) 637-3631

mduane@reprorights.org

rmuqaddam@reprorights.org

fcocuzza@reprorights.org

Julie Murray

Alice Clapman

Richard Muniz

Hannah Swanson

Planned Parenthood Federation of America

1110 Vermont Ave., NW Ste. 300

Washington, D.C. 20005

(202) 973-4800

julie.murray@ppfa.org

alice.clapman@ppfa.org

richard.muniz@ppfa.org

hanna.swanson@ppfa.org

Stephanie Toti

Rupali Sharma

Sneha Shah

Lawyering Project

25 Broadway, Fl. 9

New York, NY 10004

(646) 490-1083

stoti@lawyeringproject.org

rsharma@lawyeringproject.org

sshah@lawyeringproject.org

Jennifer Sandman

Planned Parenthood Federation of America

123 William Street

New York, NY 10038

(212) 541-7800

jennifer.sandman@ppfa.org

Justin C. Pfeiffer

Assistant Fort Bend County Attorney

301 Jackson Street (Mail)

Richmond, Texas 77469

(281) 341-4555

Justin.Pfeiffer@fortbendcountytx.gov

Brigitte Adrienne Amiri

American Civil Liberties Union

125 Broad Street

New York, NY 10004

(212) 549-2633

bamiri@aclu.org

John Butrus

Assistant District Attorney for

Dallas County

133 N. Riverfront Blvd., L.B. 19

Dallas, TX 75207

(214) 653-3691

John.buterus@dallascounty.org

Case 1:20-cv-00323-LY Document 100 Filed 04/22/20 Page 23 of 24
23

Elizabeth Murrill

Solicitor General

Joseph Scott S. John

Louisiana Department of Justice

1885 N. Third Street

Baton Rouge, LA 70804

(225) 456-7544 / (225) 485-2458

emurrill@ag.louisiana.gov

stjohnj@ag.louisiana.gov

Anjali Salvador

Andre Segura

ACLU Foundation of Texas, Inc.

P.O. Box 8306

Houston, TX 77288

(713)942-8146

asalvador@aclutx.org

asegura@clutx.org

Adam Arthur Biggs

Special Litigation Counsel

P.O. Box 12548, Capitol Station

Austin, TX 78711

(512) 463-2120

adam.biggs@oag.texas.gov

Counsel for Tarrant and McClennan 

County District Attorneys

/s/ Andrew B. Stephens

ANDREW B. STEPHENS

Assistant Attorney General

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