The abortion clinics that sought a wholesale exemption from the Texas governor’s executive order, GA-09, postponing non-essential medical procedures through April 21 did not ask the Supreme Court to review the strong decision that the Fifth Circuit issued against them on Tuesday, April 7. But they now appear poised to ask the Court to intervene to override a temporary and partial administrative stay that the Fifth Circuit entered yesterday (Friday, April 10) to allow it to consider a mandamus petition and emergency stay motion that Texas filed regarding a new TRO (temporary restraining order) that the district court entered on remand on Thursday, April 9. This strikes me as a very odd occasion to expect the Court to intrude on the process below.
The Fifth Circuit in its opinion on Tuesday had contemplated that the abortion clinics might seek limited relief on the ground that certain applications of the executive order might constitute an undue burden under Supreme Court precedent. It emphasized that a hearing would allow the district court to make “targeted findings, based on competent evidence, about the effects of GA-09 on abortion access,” and it spelled out how the emergency framework of the Court’s decision in Jacobson v. Commonwealth of Massachusetts (1905) would apply to the undue-burden analysis.
But when the abortion clinics on Wednesday filed their new request for a TRO—“supported,” as the Fifth Circuit notes, “only by one additional declaration”—the district court did not even allow Texas to file a brief or to submit evidence in opposition to the TRO request. Instead, it granted the abortion clinics the TRO they requested, with no evident effort to abide by the Fifth Circuit’s analysis.
In its order yesterday, the Fifth Circuit set a highly accelerated schedule for briefing on Texas’s filings: response from abortion clinics by this evening on the emergency stay motion, reply by Texas by Monday afternoon, response from abortion clinics by Tuesday afternoon on the mandamus petition, and reply by Texas by Wednesday afternoon. Further, the Fifth Circuit excluded from its administrative stay the portion of the TRO that applied 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. In other words, the district court’s TRO currently prevents Texas from enforcing GA-09 against an abortion clinic with respect to any such patient.
Rather than have parallel accelerated briefing going on in the Fifth Circuit and in the Supreme Court, it would seem far more sensible to let the Fifth Circuit, after hearing from both sides, rule on the merits, with any possible review by the Supreme Court taking place thereafter.