Friday's order — the second one the circuit court has issued in this case in a week — granted Texas a temporary administrative stay from U.S. District Judge Lee Yeakel's temporary restraining order on Thursday. But the Fifth Circuit agreed with Judge Yeakel's ruling on one point: The governor's order won't apply to any patient seeking an abortion who would be too far along in her pregnancy by April 22 to legally seek the procedure.
The executive order issued by Texas Gov. Greg Abbott on March 22 postpones "all surgeries and procedures that are not immediately medically necessary" until April 21. The Fifth Circuit wrote that it was granting the temporary administrative stay that Texas had requested Friday morning "to allow sufficient time to consider the mandamus petition and emergency stay motion."
By 8 p.m. Saturday, Planned Parenthood and other clinics challenging the governor's order must file a brief to the Fifth Circuit responding to the emergency stay motion, according to the Friday order.
The petition for writ of mandamus Texas filed Friday asked the Fifth Circuit to do exactly what it did Tuesday — overturn Judge Yeakel's temporary restraining order blocking enforcement of Abbott's executive order.
Judge Yeakel's first temporary restraining order, issued March 30, halted the governor's order banning abortions in its entirety. The Fifth Circuit undid that ruling Tuesday, holding Judge Yeakel had given an exemption to abortion not given to other medical procedures and had ignored the state's right to respond to a public health crisis. It sent the case back to the district court.
Texas told the Fifth Circuit in Friday's filing that Judge Yeakel on Thursday had once again entered a temporary restraining order that "endangers the health of Texans in the face of the worst pandemic to reach our state in over a century."
The Thursday order "compromises the state's efforts to protect public health in the name of advancing a theory of the right to abortion that the Supreme Court has never endorsed," Texas argued in the petition. "These clear and indisputable errors are all the more pronounced because they disregard this court's own directives issued just three days ago."
The state wrote that while Judge Yeakel's second temporary restraining order was "narrower" than the initial one, it was devoid of the "careful parsing of the evidence" the Fifth Circuit has instructed lower courts to undertake.
"The district court appears to have largely cut-and-pasted the factual findings from the proposed order submitted by respondents, and incorporated the findings of fact and conclusions of law from its first TRO rejected by this court just three days ago," Texas said.
The more limited restraining order allowed health care providers to perform medication abortions — which involves patients taking two pills — as well as abortion procedures for patients who would be too far along in their pregnancies to access the procedure after the state's ban is lifted.
Finding that Planned Parenthood was likely to succeed in its challenge to the ban, Judge Yeakel held Thursday that "it is beyond question that the executive order's burdens outweigh the order's benefits." For the patients who will need abortion care before the ban is lifted, he wrote, the executive order is an "absolute ban on abortion."
Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing some clinics bringing suit against Texas, issued a statement Friday slamming the Fifth Circuit's decision.
"The court is unjustifiably forcing women to wait until the eleventh hour to get the time-sensitive, essential health care that they are constitutionally guaranteed," she said. "We will pursue all legal options to ensure no women are left behind."
Judges James L. Dennis, Jennifer Walker Elrod and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.
Texas is represented by Heather Gebelin Hacker, Beth Klusmann and Natalie D. Thompson of the Texas Attorney General's Office.
Planned Parenthood is represented by Patrick J. O'Connell of the Law Offices of Patrick J. O'Connell PLLC and Julie Murray, Alice Clapman, Richard Muniz, Hannah Swanson and Jennifer Sandman of Planned Parenthood Federation of America.
The other clinics are represented by Stephanie Toti, Rupali Sharma and Sneha Shah of The Lawyering Project and Molly Duane, Rabia Muqaddam and Francesca Cocuzza of the Center for Reproductive Rights.
The case is In re: Greg Abbott et al., case number 20-50296, in the U.S. Court of Appeals for the Fifth Circuit.
--Additional reporting by Hailey Konnath and Kevin Stawicki. Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.