Fifth Circuit Temporarily Stays Order Blocking Texas Coronavirus-Related Abortion Restrictions,

calls for complete briefing by Friday.

|The Volokh Conspiracy |

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM: IT IS ORDERED that the district court's order of March 30, 2020 is TEMPORARILY STAYED until further order of this court to allow this court sufficient time to consider petitioners' emergency motion for stay and petition for writ of mandamus.

IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the emergency motion for stay no later than Wednesday, April 1, 2020, at 8:00 a.m. Any reply by petitioners is due no later than Wednesday, April 1, 2020, at 8:00 p.m.

IT IS FURTHER ORDERED that plaintiffs-respondents be directed to file a response to the petition for writ of mandamus no later than Thursday, April 2, 2020, at 8 p.m. Any reply by petitioners is due no later than Friday, April 3, 2020, at 5 p.m.

IT IS FURTHER ORDERED that the filing of an amicus brief by States, Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia, is allowed.

JAMES L. DENNIS, Circuit Judge, dissenting: A federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time. I would deny the stay. Moreover, I write separately to make clear that, per the Executive Order, "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" is exempt.

You can see the district court decision and stay briefing here, and my thoughts on the underlying question here. (Recall that the restrictions are part of a general restriction on "non-essential" surgeries and procedures.) Thanks to Josh Blackman for the pointer.

NEXT: Not Even COVID-19 Can Shake New Jersey's Fear of Letting Drivers Pump Their Own Gas

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  1. I didn’t know that all of those states were in the 5th Circuit…..

    That’s the problem with these “nationwide” injunctions — it used to be that the authority of a judge was limited to the court’s jurisdiction. Why exactly should a judge in Hawaii have authority over Logan Airport some 6000 miles away — why shouldn’t that be the authority of the Massachusetts Federal District Court?

    SCOTUS is going to have to resolve this, and soon, or it will be whoever got to the courthouse first. Like why should Utah or West Virginia be bound by what the 5th Circuit decides?

    1. I’m not a big fan of ritualistic amicus briefs anyway, but states have a legitimate interest in a case that calls into question state powers in an emergency. It has nothing to do with nationwide injunctions.

  2. write separately to make clear that, per the Executive Order, “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” is exempt.

    Then what is the purpose of the EO?

    Its rationale seems to be to stop stampedes of women draining hospital resources so they can get their recreational abortions in defiance of God.

    1. “Then what is the purpose of the EO?”

      The EO stops all elective procedures, not just abortions. Do you really think he issued a EO halting all elective procedures during a pandemic just to stop women from getting abortions?

  3. “Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia”

    What are the lowest-achieving American states with respect to education, Alex?

    1. How is all that “education” doing in stopping the spread of Covid-19 in New York, New Jersey, Massachusetts, and California?

      Hint – those 4 states represent 62% of the reported cases, 48% of the deaths, but only 22% of the population of the US.

      1. Let’s check notes in four or five weeks, a perspective apparently beyond the apprehension of bigoted, half-educated clingers.

        Meanwhile, ask an informed, educated person to try to explain this situation in terms you can understand.

      2. In Massachusetts it was a Biogen Conference that spread it – really educated people.

    2. Sometimes I think Kirkland is Rush Limbaugh’s parody sock here on Reason.

      1. Nah, too foul mouthed, IMO. He does come across as a very consistent parody account, though.

        Either that, or a lunatic.

    3. “Rev. Arthur L. Kirkland”

      Who is the most intolerant, bigoted commentor on the Reason threads, Alex?

      1. Which part of my point would you attempt to controvert, clinger?

        Still wondering why my side is stomping yours in the culture war?

        1. “Still wondering why my side is stomping yours in the culture war?”

          I gotta admit, it’s pretty clever the way you guys are getting rid of women’s sports.

        2. Hmm. Seems my side is the one that is keeping America alive and fed these days, while your side has come to realize how truly “unessential” you all actually are.

  4. If the purpose of the EO is to slow the spread of COvid19, ie self quarantine, social distancing, then the EO has merit.

    If the purpose of the EO is to free up medical resources, then it is premature to issue the EO for Abortions or any other elective surgery. Texas for the most part is no where near the crisis stage that NY is in, When capacity is starting to be reached, then they can stop all the elective procedures and shift to treating the virus.

    1. It’s called husbanding resources.

  5. Lets stop our efforts to control a deadly pandemic and save lives so that we can deploy scarce resources to killing babies

  6. The extreme politicization of the 5th Circuit since around 2000 is a shame. Its power remains intact (and, with its political activism running rampant, perhaps is even more forcefully and frequently asserted), but its credibility (outside CPAC) is in shambles.

    1. CPAC ain’t conservative any more….

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