## Facts

- During the early COVID-19 pandemic, Texas issued Executive Order GA-09 requiring licensed health-care professionals and facilities to postpone surgeries and procedures that were not immediately medically necessary, aiming to conserve hospital capacity and PPE.
- The order was broadly framed, did not mention abortion, and included exceptions for procedures necessary to preserve a patient’s life or health.
- The Texas Attorney General publicly stated that GA-09 applied to abortions not medically necessary to preserve the life or health of the pregnant patient and warned of enforcement, including potential criminal penalties.
- Texas abortion providers sued state officials, alleging the order’s application to abortions operated as an unconstitutional prohibition of pre-viability abortions.
- The federal district court entered a temporary restraining order (TRO) barring enforcement of GA-09 against abortion providers, reasoning the order, as applied, functioned as an “outright ban” inconsistent with controlling abortion precedents.
- State officials sought emergency mandamus relief in the Fifth Circuit to vacate the TRO, arguing the district court used the wrong legal framework for a public-health emergency.

## Issues

1. Whether the extraordinary remedy of mandamus was available to vacate the district court’s TRO given the short duration and time-sensitive nature of the emergency order.
2. Whether challenges to a pandemic-related postponement order affecting abortions had to be assessed under Jacobson v. Massachusetts rather than solely under the ordinary abortion framework (including Casey’s undue-burden test).
3. Whether GA-09, as applied to abortions, lacked a real or substantial relation to public-health objectives or constituted a plain, palpable invasion of constitutional rights under Jacobson.

## Decision

- The Fifth Circuit granted the petition for a writ of mandamus and directed the district court to vacate its TRO.
- The court held the district court clearly abused its discretion by failing to apply Jacobson’s controlling framework for reviewing emergency public-health measures.
- The court concluded that, on the record before it, GA-09 bore a real and substantial relation to Texas’s asserted public-health objectives during the pandemic and was not facially unconstitutional under Jacobson.
- The court rejected the district court’s characterization of GA-09 as an “outright ban,” emphasizing the order’s temporary nature and its medical-necessity exceptions, and noting that some abortions (including medication abortions and those within exceptions) could proceed.

## Legal Principles

- Mandamus may issue when a petitioner shows a clear and indisputable right to relief and inadequate alternative means to obtain effective review, including where time-limited orders would likely expire before ordinary appellate review can occur.
- During a public-health emergency, Jacobson requires courts to uphold state measures unless they have no real or substantial relation to protecting public health or amount, beyond all question, to a plain, palpable invasion of rights.
- Constitutional rights are not eliminated during emergencies, but temporary, emergency-driven restrictions may be permissible when supported by a substantial relation to the health crisis and not plainly invasive of protected rights.
- Where an emergency public-health order affects abortion access, the Fifth Circuit required analysis to proceed through Jacobson’s standards rather than treating the restriction as categorically invalid based only on pre-viability abortion doctrine.

## Conclusion

The Fifth Circuit vacated a TRO that had exempted abortions from Texas’s COVID-19 postponement order, holding that emergency public-health measures must be reviewed under Jacobson’s deferential test and that the district court erred by treating the temporary postponement regime as an outright, categorically unconstitutional abortion ban.


In re Abbott, 954 F.3d 772 (5th Cir. 2020)