        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    April 13, 2020
                                 No. 20-50296
                                                                    Lyle W. Cayce
                                                                         Clerk
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN
PAXTON, in his official capacity as Attorney General of Texas; PHIL
WILSON, in his official capacity as Acting Executive Commissioner of the
Texas Health and Human Services Commission; STEPHEN BRINT
CARLTON, in his official capacity as Executive Director of the Texas Medical
Board; KATHERINE A. THOMAS, in her official capacity as the Executive
Director of the Texas Board of Nursing,

             Petitioners




                     On Petition for Writ of Mandamus to
                       the United States District Court
                      for the Western District of Texas


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
      On April 10, 2020, Petitioners filed an emergency motion to stay the
district court’s order (Doc. 63) temporarily restraining executive order GA-09,
pending our consideration of their mandamus petition. Having addressed
emergency motions concerning GA-09 more than once in the past week, we
refer readers to our description of this fast-moving litigation elsewhere. See In
re Abbott, --- F.3d ---, 2020 WL 1685929, at *2–4 (5th Cir. Apr. 7, 2020) (Abbott
II). For present purposes, suffice it to say that GA-09 is an emergency public
health measure, issued by the Governor of Texas on March 22, 2020, that
postpones non-essential surgeries and procedures until April 22 in the face of
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the COVID-19 pandemic. Id. at *2–3. GA-09 applies to a broad range of
procedures, does not mention abortion, and contains exceptions for procedures
immediately necessary to preserve the life or health of patients. Id. at *3, 9-10.
GA-09 is enforceable by both criminal and administrative penalties and is
currently set to expire after 11:59 p.m. on April 21, 2020. Id. at *3.
      On March 30, the district court entered a TRO against GA-09 as applied
to all abortion procedures. Planned Parenthood Ctr. for Choice et al. v. Abbott,
2020 WL 1502102, at *4 (W.D. Tex. Mar. 30, 2020) (Abbott I). We
administratively stayed that TRO on March 31 and, on April 7, we issued a
writ of mandamus directing the district court to vacate its TRO. Abbott II, 2020
WL 1685929, at *2. In doing so, we explained that the challenge to GA-09 must
be analyzed under the controlling legal standards set forth in Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11 (1905). See Abbott II, 2020 WL
1685929, at *2. We emphasized that our decision was based only on the record
before us, and that both sides would presumably have a chance to present
evidence concerning narrower remedies at a preliminary injunction hearing
then scheduled for April 13. Id. at *2.
      The next day, April 8, the district court vacated its TRO and cancelled
the April 13 preliminary injunction hearing. Doc. 54. The district court stated
it “anticipates that the governor will extend or amend and extend [GA-09] to a
date past April 21, 2020,” and that “[i]t makes no sense to take up the request
for [a] preliminary injunction until the parties and the court have the benefit
of any subsequent order.” Doc. 58 at 3. The district court therefore ordered the
parties to confer and agree to a schedule and procedures for the yet-
undetermined preliminary injunction hearing. Id.
      That same day Respondents sought another TRO, which the district
court granted the next day, April 9, following a brief telephone hearing at
which Petitioners were not allowed to present evidence or file an opposition.
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Transcr. of 4/9/20 Tel. Conf. at 14:39; Planned Parenthood Ctr. for Choice v.
Abbott, 2020 WL 1815587 (W.D. Tex. Apr. 9, 2020) (Abbott III). The April 9
TRO prevents GA-09 from applying, until April 19, to three categories of
abortion: (1) medication abortions; (2) abortions for women who would be more
than 18 weeks LMP (“last menstrual period”) by April 22 and unable to reach
an ambulatory surgical center; and (3) abortions for women who would be past
Texas’s legal limit—22 weeks LMP—for abortion by April 22. Abbott III, 2020
WL 1815587, at *7. On April 10, Petitioners sought another writ of mandamus
from our court, as well as an emergency stay. Later that day, we granted a
partial administrative stay of the TRO, except as to the part applying to women
who would be 22 weeks LMP by April 22. We expedited briefing on both the
emergency stay motion and the mandamus petition.
      We now consider Petitioners’ motion for emergency stay of the April 9
TRO as it applies to the provision of medication abortions. Four factors guide
our analysis: (1) whether Petitioners have made a strong showing of
entitlement to mandamus; (2) whether Petitioners will be irreparably harmed
absent a stay; (3) whether other parties will be substantially harmed by a stay;
and (4) the public interest. See Nken v. Holder, 556 U.S. 418, 426 (2009);
ODonnell v. Goodhart, 900 F.3d 220, 223 (5th Cir. 2018). “The first two factors
are the most critical.” ODonnell, 900 F.3d at 223 (citing Barber v. Bryant, 833
F.3d 510, 511 (5th Cir. 2016)).
      The first inquiry is whether Petitioners have made a strong showing they
are entitled to mandamus. Nken, 556 U.S. at 426. To be entitled to mandamus
relief, Petitioners must demonstrate, inter alia, “a clear abuse of discretion
that produces patently erroneous results.” In re JPMorgan Chase & Co., 916
F.3d 494, 500 (5th Cir. 2019) (cleaned up). We have serious concerns about
whether the district court’s April 9 TRO adhered to our order in Abbott II. For
example, despite citing the decision once, the TRO does not discuss or apply
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“the framework governing emergency public health measures like GA-09,”
established by the Supreme Court in Jacobson. Abbott II, 2020 WL 1685929,
at *1. Nor does the TRO appear to “careful[ly] pars[e] . . . the evidence,” id. at
*11, developed after a hearing at which “all parties [would] presumably have
the chance to present evidence on the validity of applying GA-09 in specific
circumstances,” id. at *2—something our decision emphasized. 1 Finally, the
TRO persists in “usurp[ing] the state’s authority to craft emergency health
measures” by “substitut[ing] [the court’s] own view of the efficacy of applying
GA-09 to abortion.” Id. at *1; cf. Abbott III, 2020 WL 1815587, at *4 (finding
“delaying access to abortion will not conserve [personal protective equipment]”
“[b]ecause individuals with ongoing pregnancies require more in-person
healthcare . . . than individuals who have previability abortions”).
       Conversely, however, we have doubts about Petitioners’ showing as to
medication abortions. As to that category, Respondents argue that medication
abortions are not covered by GA-09 because neither dispensing medication nor
ancillary diagnostic elements (such as a physical examination or ultrasound)
qualify as “procedures.” Guidance by the Texas Medical Board may support
this interpretation of the order. 2 Furthermore, the parties’ helpful written
responses to our questions did not settle whether GA-09 applies to medication


       1   See, e.g., id. at *2 (noting “[t]he district court has scheduled a telephonic preliminary
injunction hearing for April 13, 2020,” after which the court could “make targeted findings,
based on competent evidence, about the effects of GA-09 on abortion access”); id. at *12
(noting that the question of a narrowly tailored injunction could be pursued by “the parties
. . . at the preliminary injunction stage”); id. at *13 (noting that “Respondents will have the
opportunity, of course, to present additional evidence” on pretext “in conjunction with the
district court’s preliminary injunction hearing scheduled for April 13, 2020”).
       2 See Texas Medical Board, Frequently Asked Questions Regarding Non-Urgent,
Elective Surgeries and Procedures During Texas Disaster Declaration for COVID-19
Pandemic (Mar. 29, 2020), http://www.tmb.state.tx.us/idl/59C97062-84FA-BB86-91BF-
F9221E4DEF17 (explaining “[a] ‘procedure’ [under GA-09] does not include physical
examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining
specimens to perform laboratory tests”).
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abortions. Given the ambiguity in the record, we conclude on the briefing and
record before us that Petitioners have not made the requisite strong showing
of entitlement to mandamus relief. Because a failure on that first inquiry is
sufficient to deny the stay, we need not proceed to the remaining prongs.
      We express no ultimate decision on the ongoing mandamus proceeding
or on the remaining aspects of the emergency stay motion.
                                      ***
      IT IS ORDERED that Petitioners’ emergency motion to stay the district
court’s April 9 TRO is DENIED as to medication abortions. We also DISSOLVE
the temporary administrative stay as it applies to medication abortions.


JAMES L. DENNIS, Circuit Judge, concurring.
      I concur in the majority’s conclusion that the petitioners have failed to
make a strong showing that they are entitled to mandamus with respect to
medication abortions. The petitioners’ stated desire to enforce GA-09 against
medication abortions despite the executive order’s apparent inapplicability is
a strong indication that the enforcement is pretextual and does not bear a “‘real
or substantial relation’ to the public health crisis” we are experiencing. In re
Abbott, --- F.3d ---, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (quoting in
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905).
      I disagree, however, with the majority’s unnecessary critique of the
district court’s decision. I believe the district court properly exercised its
inherent authority “to manage [its] own affairs so as to achieve the orderly and
expeditious disposition of cases” in choosing to issue a second TRO rather than
to immediately proceed to a hearing on a preliminary injunction as the
majority suggested in its last mandamus opinion. Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–631
(1962)). Further, far from “usurp[ing] the state’s authority to craft emergency
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health measures” by “substitut[ing] [the court’s] own view of the efficacy of
applying GA-09 to abortion,” I believe the court properly considered the
evidence to determine whether “beyond question, GA-09’s burdens outweigh
its benefits” when applied to medication abortions, as the majority previously
instructed. Abbott, 2020 WL 1685929, at *1, 9 (internal quotations omitted).
      Accordingly, I concur only in the denial of the petitioner’s emergency
motion as it applies to medication abortions and to the corresponding
dissolving of the administrative stay.




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