The Volokh Conspiracy
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Fifth Circuit Temporarily Stays Order Blocking Texas Coronavirus-Related Abortion Restrictions,
calls for complete briefing by Friday.
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.