Filed: Apr. 22, 2020
Latest Update: Apr. 22, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 20-1791 _ In re: Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman of Arkansas State Medical Board; Robert Breving, M.D., in his official capacity as member of the Arkansas St
Summary: United States Court of Appeals For the Eighth Circuit _ No. 20-1791 _ In re: Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman of Arkansas State Medical Board; Robert Breving, M.D., in his official capacity as member of the Arkansas Sta..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1791
___________________________
In re: Leslie Rutledge, in her official capacity as Attorney General of the State of
Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski
County; Matt Durrett, in his official capacity as Prosecuting Attorney of
Washington County; Sylvia D. Simon, M.D., in her official capacity as Chairman
of Arkansas State Medical Board; Robert Breving, M.D., in his official capacity as
member of the Arkansas State Medical Board; Veryl D. Hodges, D.O., in his
official capacity as member of the Arkansas State Medical Board; John H.
Scribner, M.D., in his official capacity as member of the Arkansas State Medical
Board; Omar Atiq, M.D., in his official capacity as member of the Arkansas State
Medical Board; Rhys L. Branman, M.D., in his official capacity as member of the
Arkansas State Medical Board; Rodney Griffin, M.D., in his official capacity as
member of the Arkansas State Medical Board; Marie Holder, in her official
capacity as member of the Arkansas State Medical Board; Brian T. Hyatt, M.D., in
his official capacity as member of the Arkansas State Medical Board; Larry D.
Lovell, "Buddy" in his official capacity as member of the Arkansas State Medical
Board; Timothy C. Paden, M.D., in his official capacity as member of the
Arkansas State Medical Board; Don R. Phillips, M.D., in his official capacity as
member of the Arkansas State Medical Board; William L. Rutledge, M.D., in his
official capacity as member of the Arkansas State Medical Board; David L.
Staggs, M.D., in his official capacity as member of the Arkansas State Medical
Board; Nathan Smith, M.D., M.P.H., in his official capacity as Director and State
Health Officer of the Arkansas Department of Health
lllllllllllllllllllllPetitioners
------------------------------
American Academy of Family Physicians
lllllllllllllllllllllAmicus Curiae
State of Alabama
lllllllllllllllllllllAmicus on Behalf of Petitioner
American Academy of Nursing
lllllllllllllllllllllAmicus Curiae
State of Alaska
lllllllllllllllllllllAmicus on Behalf of Petitioner
American Academy of Pediatrics
lllllllllllllllllllllAmicus Curiae
State of Idaho
lllllllllllllllllllllAmicus on Behalf of Petitioner
American College of Osteopathic Obstetricians and Gynecologists
lllllllllllllllllllllAmicus Curiae
State of Indiana
lllllllllllllllllllllAmicus on Behalf of Petitioner
American Psychiatric Association
lllllllllllllllllllllAmicus Curiae
State of Kentucky
lllllllllllllllllllllAmicus on Behalf of Petitioner
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American Society for Reproductive Medicine
lllllllllllllllllllllAmicus Curiae
State of Louisiana
lllllllllllllllllllllAmicus on Behalf of Petitioner
North American Society for Pediatric and Adolescent Gynecology
lllllllllllllllllllllAmicus Curiae
State of Mississippi
lllllllllllllllllllllAmicus on Behalf of Petitioner
National Association of Nurse Practitioners in Women's Health
lllllllllllllllllllllAmicus Curiae
State of Missouri
lllllllllllllllllllllAmicus on Behalf of Petitioner
Society of Family Planning
lllllllllllllllllllllAmicus Curiae
State of Montana
lllllllllllllllllllllAmicus on Behalf of Petitioner
Society of Gynecologic Surgeons
lllllllllllllllllllllAmicus Curiae
-3-
State of Nebraska
lllllllllllllllllllllAmicus on Behalf of Petitioner
Society of OB/GYN Hospitalists
lllllllllllllllllllllAmicus Curiae
State of Oklahoma; State of Ohio; State of South Dakota; State of South Carolina;
State of Tennessee; State of Texas; State of Utah; State of West Virginia;
American Center for Law and Justice
lllllllllllllllllllllAmici on Behalf of Petitioner
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: April 16, 2020
Filed: April 22, 2020
____________
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
The State of Arkansas1 petitions for a writ of mandamus after the district court
entered a temporary restraining order (TRO) enjoining it from enforcing a health
directive against a provider of surgical abortions. Having jurisdiction under 28
U.S.C. § 1651(a), we grant the writ of mandamus in part and direct the district court
1
Petitioners are elected and appointed state officials, hereinafter referred to as
the State of Arkansas or the State.
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to dissolve the TRO. We deny the pending emergency motion to stay the ex parte
TRO and for a temporary administrative stay as moot.
I.
Arkansas, along with the rest of the nation and the world, is in the midst of an
unprecedented health crisis occasioned by the worldwide COVID-19 pandemic.
Every day, the number of people infected with COVID-19 continues to rise, along
with the virus’s death toll. As of April 20, 2020, testing has revealed 746,625 cases
in the United States with 39,083 deaths.2 In Arkansas, as of April 20, 2020, 1,853
cases have been confirmed with 41 deaths.3 Experts believe that hospitalizations
related to the disease have not yet peaked within the state, and personal protective
equipment (PPE) for healthcare workers is in short supply while concerns remain
about the demand for ventilators. In response to the COVID-19 pandemic, Arkansas
has issued a number of emergency orders and directives in order to slow the spread
of the disease and prevent hospitals and other healthcare providers from becoming
overwhelmed due to the rising number of patients. These include the closing of
schools for the remainder of the academic year, requiring state employees to telework,
prohibiting restaurants and bars from offering dine-in service, and requiring
healthcare facilities to screen staff and visitors for fever and other symptoms.
2
Centers for Disease Control and Prevention, Coronavirus Disease 2019
(COVID-19): Cases in the US, (last updated Apr. 20, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
3
Arkansas Department of Health, COVID-19, (last updated Apr. 20, 2020),
https://www.healthy.arkansas.gov/programs-services/topics/novel-coronavirus.
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A.
One such directive from the Arkansas Department of Health (ADH), issued on
April 3, 2020, requires that all non-medically necessary surgeries be postponed. The
purpose of this directive is multifold, but it primarily stems from a need to preserve
existing PPE resources and limit social contact among patients, healthcare providers,
and hospital staff. The directive itself is facially neutral: it applies to all types of
surgical procedures. Currently, only those procedures that are deemed to be
immediately necessary may take place. If it is safe to postpone an elective surgery,
then it must be postponed. However, it is left to a patient’s healthcare provider to
determine whether a surgery is immediately necessary or whether it may be safely
performed at a later date.
On March 11, 2020, the Governor of Arkansas signed Executive Order 20-03,
directing the ADH to “do everything reasonably possible to respond to and recover
from the COVID-19 virus.” The ADH directive was subsequently promulgated in
response to Executive Order 20-03 and pursuant to the ADH’s general authority
under Ark. Code Ann. §§ 20-7-109, 20-7-110. Although it has no explicit expiration
date, and “while neither the ADH nor [the Governor of Arkansas] have determined
how long [the directive] will remain in effect,” the current state of emergency
declared by the State of Arkansas may not continue “for longer than sixty (60) days
unless renewed by the Governor.” Ark. Code Ann. § 12-75-107(b)(2). In that the
current state of emergency was declared on March 11, 2020, under state law, it may
last no longer than May 10, 2020, unless renewed by the Governor of Arkansas.4 The
4
It bears mentioning that the President, on March 13, 2020, issued a
proclamation declaring a National Emergency concerning COVID-19. Proclamation
No. 9994, 85 Fed. Reg. 15337 (Mar. 18, 2020).
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State concedes in its brief that, absent an extension to the current state of emergency,
the ADH directive must expire on May 11, 2020.5
B.
Surgical abortions, like other surgical procedures, ordinarily require providers
to use PPE to prevent “exposure to blood and other bodily fluids and tissue, and to
protect the patient from infection.” The relevant PPE in a surgical abortion could
include a surgical mask, gloves, gown, and eye protection. Moreover, given the
increasing risk of infection, all patients who undergo any type of surgical procedure
may themselves need to use PPE in order to avoid contracting COVID-19. Unless
deemed immediately medically necessary by a woman’s healthcare provider, surgical
abortions are prohibited under the ADH directive. It appears, however, that non-
surgical abortions, such as medication abortions, may still continue—again, the
directive only prohibits elective or non-emergency surgical procedures.
On April 9, 2020, inspectors from the ADH conducted an unannounced
inspection of the Little Rock Family Planning Services (LRFP) facility, which is a
provider of surgical abortions in Arkansas. It was found that the facility was still
providing surgical abortions that were not deemed immediately necessary. The
following day, April 10, 2020, the ADH sent LRFP a cease-and-desist letter stating
that LRFP was violating the ADH directive and ordering it to stop performing non-
emergency abortion surgeries. That letter stated that surgical abortions, consistent
5
The White House recently issued guidelines that are meant to advise local and
state governments on when it is safe to ease existing restrictions and begin reopening
the economy. White House, Guidelines: Opening Up America Again (Apr. 16, 2020),
https://www.whitehouse.gov/openingamerica/. This seems to suggest that, as time
goes on, state and local governments will prepare to relax measures intended to
combat the spread of COVID-19.
-7-
with the ADH directive, may not take place “except where immediately necessary to
protect the life or health of the patient.”
C.
On April 13, 2020, LRFP challenged the ADH directive in federal district
court. However, instead of filing a new action in the district court, it sought leave to
file a supplemental complaint in a pending case filed on June 26, 2019. See Little
Rock Family Planning Servs. v. Rutledge, No. 4:19-CV-00449-KGB (E.D. Ark. filed
June 26, 2019). In that case, LRFP, along with other plaintiffs, challenged the
constitutionality of three separate abortion-related laws passed by the Arkansas
General Assembly. The district court preliminarily enjoined Arkansas from enforcing
those statutes, and the State has taken an interlocutory appeal from that injunction.
See Little Rock Family Planning Servs. v. Rutledge, No. 19-2690. That appeal
remains pending before this Court. See id.
In the supplemental complaint, LRFP challenged the ADH directive as it
applies to surgical abortions. It alleges that, rather than being motivated by any
concern for public health, the directive is “the latest effort in the State’s long-running
campaign to eliminate women’s access to constitutionally guaranteed health care” and
that it effectively operates as a ban on pre-viability surgical abortions.
That same day, after moving for leave to file the supplemental complaint,
LRFP moved for an ex parte TRO. The following day, on April 14, 2020, the district
court entered a TRO enjoining the State from enforcing the directive against surgical-
abortion providers. Now, unlike all other surgical procedures, Arkansas cannot
proscribe non-emergency surgical abortions in its effort to conserve PPE and to limit
social contact.
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The State filed the instant petition for a writ of mandamus directing the district
court to dissolve the ex parte TRO and dismiss the supplemental complaint. It also
has moved to stay the district court’s TRO and for expedited briefing and
consideration of the motion and petition. We entered an order granting expedited
briefing on the motion and petition, and we now consider the merits of the State’s
petition for mandamus relief.
II.
Mandamus relief is an “extraordinary remedy” to be employed only under the
most “exceptional circumstances.” Will v. United States, 389 U.S. 90, 95 (1967). In
order to obtain it, petitioners must show that they “have no other adequate means to
attain the relief [they] desire[ ].” Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380
(2004) (internal quotation marks omitted). Indeed “[t]he traditional use of the writ
. . . has been to confine [the court against which mandamus is sought] to a lawful
exercise of its prescribed jurisdiction.”
Id. (third alteration in original) (internal
quotation marks omitted). Put differently, mandamus may only lie in “exceptional
circumstances amounting to a judicial usurpation of power, or a clear abuse of
discretion.”
Id. (internal quotation marks and citations omitted). “[A] clear error of
law or clear error of judgment leading to a patently erroneous result may constitute
a clear abuse of discretion.” In re Apple, Inc.,
602 F.3d 909, 911 (8th Cir. 2010) (per
curiam).
To grant a writ of mandamus, this court weighs three factors: (1) the
petitioning party must satisfy the court that he has no other adequate
means to attain the relief he desires; (2) his entitlement to the writ is
clear and indisputable; and (3) the issuing court, in the exercise of its
discretion, must be satisfied that the writ is appropriate under the
circumstances.
In re Kemp, 894 F.3d 900, 905 (8th Cir. 2018) (internal quotation marks omitted).
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III.
We first consider whether the State is entitled to mandamus relief concerning
the district court’s entry of the order granting the TRO. We conclude that it is, and
in so holding, adopt the reasoning of the Fifth Circuit in In re Abbott, No. 20-50264,
2020 WL 1685929 (5th Cir. April 7, 2020). Indeed, the State has satisfied its burden
in demonstrating that it has no other means to obtain the relief that it seeks, that it is
clearly and indisputably entitled to the writ, and that entry of the writ is appropriate
under the circumstances.
A.
First, we find that the State has no other means to attain the relief that it seeks.
This “condition [is] designed to ensure that the writ will not be used as a substitute
for the regular appeals process.” Cheney, 542 U.S. at 380-81. In light of the “surging
tide of COVID-19 cases and deaths, [the State has] made this showing.” In re Abbott,
2020 WL 1685929, at *14.
Under 28 U.S.C. § 1292(a)(1), courts of appeals have jurisdiction “to review
[i]nterlocutory orders of the district courts of the United States . . . or of the judges
thereof, . . . granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions, except where a direct review may be had
in the Supreme Court.” Nordin v. Nutri/System, Inc., 897 F.2d 339, 341 (8th Cir.
1990) (alterations in original) (internal quotation marks omitted). We have, however,
interpreted this to mean that we would ordinarily lack jurisdiction to hear an
interlocutory appeal from the district court’s grant or denial of a TRO. See Schlafly
v. Eagle Forum, 771 F. App’x 723, 724 (8th Cir. 2019) (per curiam); see also S. Wind
Women’s Ctr. LLC v. Stitt, No. 20-6045,
2020 WL 1860683 (10th Cir. April 13,
2020) (dismissing interlocutory appeal from a similar order granting a TRO for lack
of jurisdiction); Pre-Term Cleveland v. Att’y Gen. of Ohio, No. 20-3365, 2020 WL
-10-
1673310, at *1 (6th Cir. April 6, 2020) (per curiam) (noting that jurisdiction did not
lie in the court of appeals from a similar order granting a TRO). If a litigant would
suffer “serious, perhaps irreparable consequence” from the district court’s TRO, then
an interlocutory appeal may properly lie from that order. Hunter v. Bradford, 642 F.
App’x 648, 649 (8th Cir. 2016) (per curiam) (quoting Carson v. Am. Brands, Inc.,
450 U.S. 79, 84 (1981)). However, “where mandamus is clearly an appropriate
remedy, we are not bound to require that the petitioner first seek interlocutory
review.” In re
Apple, 602 F.3d at 912. Therefore, even if we assumed, without
deciding, that an interlocutory appeal from the district court’s TRO is available to the
State, we may nevertheless consider the petition for a writ of mandamus. See
id.
Moreover, given the broader context of the COVID-19 pandemic, we agree
with the Fifth Circuit that “[i]n mill-run cases, it might be a sufficient remedy to
simply wait until the expiration of the TRO, and then appeal an adverse preliminary
injunction. In other cases, a surety bond may ensure that a party wrongfully enjoined
can be compensated for any injury caused. Those methods would be woefully
inadequate here.” In re Abbott,
2020 WL 1685929, at *14 (internal citations
omitted). Day after day, the number of individuals testing positive for, and dying
from, COVID-19 continues to climb both in Arkansas and nationally. Additionally,
PPE continues to be used in hospitals each day. The “peak” of infections in Arkansas
has not yet occurred, and if the State were “required to wait and appeal an adverse
preliminary injunction, the harms from a . . . suspension of [the ADH directive] for
all [surgical abortions] could not be put back in the bottle.”
Id. (internal quotation
marks omitted).
Also relevant to the issue of whether the State has no other means to attain the
relief that it seeks is the fact that LRFP chose to seek judicial relief from the ADH
directive via a motion for permission to file a supplemental complaint in Little Rock
Family Planning Servs., No. 4:19-CV-00449-KGB, rather than by instituting a new
action. LRFP took this path even though that case has been confined to the
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consideration of a challenge to certain laws passed by the Arkansas General
Assembly, a matter now on appeal to this Court, and did not involve a challenge to
the very recent ADH directive, which was issued pursuant to an executive order from
the Governor of Arkansas. As discussed below, utilization of this procedure in the
context of this case is procedurally suspect at best, however, the order permitting the
filing of the supplemental complaint is interlocutory and not appealable until entry
of final judgment. Thus, the State has no ability to challenge the amended complaint
which gave rise to the TRO.
Accordingly, we are satisfied that the State has no other means to attain the
relief that it seeks.
B.
Second, we address whether the State has a clear and indisputable right to
issuance of the writ. A petitioner’s right to issuance of the writ is clear and
indisputable “only [in] exceptional circumstances amounting to a judicial usurpation
of power or a clear abuse of discretion.” Cheney, 542 U.S. at 380 (internal quotation
marks and citations omitted). The Supreme Court has sanctioned the use of the writ
“to restrain a lower court when its actions would threaten the separation of powers by
embarrass[ing] the executive arm of the Government, or result in the intrusion by the
federal judiciary on the delicate area of federal-state relations.”
Id. at 381 (alteration
in original) (internal quotation marks and citations omitted).
We conclude that the State has shown that it is clearly and indisputably entitled
to issuance of the writ. In issuing the TRO, the district court first interpreted the
ADH directive as “prohibit[ing] nearly all pre-viability abortions past 10 weeks LMP
[(last menstrual period)].” On that basis, the court found the directive to be “facially
unconstitutional,” and thus concluded that LRFP was likely to prevail on the merits.
See Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (noting that the Supreme Court
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has held that the Constitution restricts states from “prohibit[ing] any woman from
making the ultimate decision to terminate” a pre-viability pregnancy (quoting Planned
Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 879 (1992) (plurality opinion)). In
reaching this conclusion, however, the court failed to meaningfully apply the
Supreme Court’s framework for reviewing constitutional challenges to state actions
taken in response to a public health crisis. Such a failure constitutes a clear abuse of
discretion.
In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court held
that, when faced with a public health crisis, a state may implement measures that
infringe on constitutional rights, subject to certain limitations. The Court explained
that the “liberty secured by the Constitution . . . does not import an absolute right in
each person to be, at all times and in all circumstances, wholly freed from restraint.”
Id. at 26. Rather, “a community has the right to protect itself against an epidemic of
disease which threatens the safety of its members.”
Id. at 27. Therefore, while
constitutional rights do not disappear during a public health crisis, “the rights of the
individual in respect of his liberty may at times, under the pressure of great dangers,
be subjected to such restraint, to be enforced by reasonable regulations, as the safety
of the general public may demand.”
Id. at 29. With these conflicting considerations
in mind, the Court set forth the following two-part framework: in the context of a
public health crisis, a state action is susceptible to constitutional challenge only if it,
“purporting to have been enacted to protect the public health, the public morals, or
the public safety, has no real or substantial relation to those objects, or is, beyond all
question, a plain, palpable invasion of rights secured by the fundamental law[.]”
Id.
at 31. As the Fifth Circuit accurately explained,
[t]he bottom line is this: when faced with a society-threatening
epidemic, a state may implement emergency measures that curtail
constitutional rights so long as the measures have at least some “real or
substantial relation” to the public health crisis and are not “beyond all
question, a plain, palpable invasion of rights secured by the fundamental
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law.” Courts may ask whether the state’s emergency measures lack
basic exceptions for “extreme cases,” and whether the measures are
pretextual—that is, arbitrary or oppressive. At the same time, however,
courts may not second-guess the wisdom or efficacy of the measures.
In re Abbott, 2020 WL 1685929, at *7 (quoting
Jacobson, 197 U.S. at 31, 38).
Here, the ADH directive, pursuant to the Governor’s Executive Order, was
issued in response to the impact of the COVID-19 pandemic in Arkansas.
Accordingly, even assuming, arguendo, that the district court correctly interpreted the
directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the
directive is not subject to constitutional challenge unless it “has no real or substantial
relation to” the public health crisis, or “is, beyond all question, a plain, palpable
invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31; see also
In re Abbott, 2020 1685929, at *8 (“[T]he effect on abortion arising from a state’s
emergency response to a public health crisis must be analyzed under the standards in
Jacobson.”). Aside from summarily stating that its conclusion is consistent with
Jacobson, the district court failed to apply that requisite framework and, thus, abused
its discretion.
Furthermore, we find that the district court’s failure to apply the Jacobson
framework produced a patently erroneous result. As discussed, Jacobson provides
that a court may review a constitutional challenge to a government’s response to a
public health crisis only if the state’s response lacks a “real or substantial relation”
to the public health crisis or it is, “beyond all question, a plain, palpable invasion” of
the right to abortion. 197 U.S. at 31. We address each prong separately.
1.
Under Jacobson, we must first consider whether the ADH directive has a “real
or substantial relation” to the public health crisis in Arkansas brought about by the
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COVID-19 pandemic.
Id. at 31.
In our analysis, we must take care not to “usurp the
functions of another branch of government,”
id. at 28, such as by “second-guess[ing]
the state’s policy choices in crafting emergency public health measures.” In re
Abbott,
2020 WL 1685929, at *6.
LRFP argues that the district court correctly found that there is no real or
substantial relationship between the ADH directive and the State’s public health
rationale. In support, it points out that it is “wholly self-sustaining in terms of PPE,
and has no intent of utilizing the State’s stockpile.” Moreover, it contends that
requiring women to continue their pregnancies will actually utilize more PPE and
hospital resources than allowing non-emergency surgical abortions. Put differently,
LRFP does not suggest that the ADH directive itself bears no real or substantial
relation to public health—rather, it argues that the directive has no real or substantial
relation to public health as applied to surgical abortions.
At the outset, we note that although the district court’s analysis of Jacobson
was perfunctory, it did acknowledge the State’s “legitimate interests in protecting or
promoting the public’s health and safety during the COVID-19 panic.” And as
discussed above, the ADH directive has stopped all elective or non-emergency
surgical procedures, not just surgical abortions, in order to deal with PPE shortages,
the rising number of people infected with COVID-19, and existing burdens on
hospitals and other healthcare facilities. On the record before us, the State’s interest
in conserving PPE resources and limiting social contact among patients, healthcare
providers, and other staff is clearly and directly related to public health during this
crisis. That interest is being effectuated by the ADH directive. The directive is a
legally valid response to the circumstances confronted by the Governor and state
health officials. As the Fifth Circuit has noted, this is similar to other extreme
measures that the State has taken, such as closing schools, prohibiting gatherings of
more than ten people, and prohibiting restaurants and bars from offering dine-in
services. See id. at *9 (noting that such “measures would be constitutionally
-15-
intolerable in ordinary times, but are recognized as appropriate and even necessary
responses to the present crisis”).
Additionally, we find unpersuasive LRFP’s arguments that the ADH directive,
as applied to surgical abortions, fails to bear a real or substantial relation to public
health. First, we do not read Jacobson to require that courts take a piecemeal
approach and scrutinize individual surgical procedures or otherwise create an
exception for particular providers, such as those performing non-emergency, surgical
abortions. Indeed, this would encroach upon the State’s policy determinations in how
best to combat COVID-19, and we are not empowered to “usurp the functions of
another branch of government.” Jacobson, 197 U.S. at 28. Second, we are not
convinced by LRFP’s contention that it has a self-sustaining amount of PPE and that
it will not draw upon state stockpiles—the purpose behind the ADH directive is that,
by delaying all non-emergency surgeries, conservation of a finite amount of PPE
resources across Arkansas may be possible today. Additionally, the fact that LRFP
has its own reserve of PPE does not lessen the problem of additional social contact
between patients and providers. Third, the claim that non-emergency surgical
abortions actually further the State’s public health goals by reducing the demand for
PPE required for pre-natal care and delivery and reducing the burden on hospitals
occasioned by continued pregnancies and childbirths is a policy argument, and the
judiciary may not “second-guess the state’s policy choices in crafting emergency
public health measures.” In re Abbott,
2020 WL 1685929, at *6.
For these reasons, and on this record, we conclude that the ADH directive bears
a real and substantial relation to the State’s interest in protecting public health in the
face of the COVID-19 pandemic.6
6
We also note that the record does not suggest that the Governor of Arkansas
or the ADH issued the directive in an attempt to deliberately “exploit[] the present
crisis as a pretext to target abortion providers sub silentio.” In re Abbott, 2020 WL
1685929, at *13 (citing Lawton v. Steele,
152 U.S. 133, 137 (1894)).
-16-
2.
The second Jacobson inquiry is whether the ADH directive is “beyond all
question, a plain, palpable invasion” of the right to abortion. The Supreme Court has
held that the Constitution imposes two restrictions on a state’s ability to regulate
abortion. The first, addressed above, is that a state “may not prohibit any woman
from making the ultimate decision to terminate” a pre-viability pregnancy. Gonzales,
550 U.S. at 146 (quoting
Casey, 505 U.S. at 879). The second constitutional
restriction is that a state “may not impose upon this right an undue burden, which
exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path
of a woman seeking an abortion before the fetus attains viability.’”
Id. (quoting
Casey, 505 U.S. at 878). Accordingly, in order for the court to have the authority to
intervene in the State’s response to the public health crisis, the ADH directive must,
“beyond all question,” violate at least one of these constitutional restrictions. On the
record before the district court, we find that it does not.
a.
The ADH directive does not operate as an outright ban on all or virtually all
pre-viability abortions. First, the directive does not apply to medication abortions,
which are available in Arkansas up to 10 weeks LMP. Moreover, contrary to the
district court’s finding, the directive does not operate as an outright ban on pre-
viability abortions for women who are past 10 weeks LMP or for whom medication
abortion is contraindicated.
In finding that the directive “prohibit[s] virtually all pre-viability abortions
after 10 weeks LMP and prohibit[s] virtually all pre-viability abortions for patients
for whom medication abortion is contraindicated,” the district court interpreted the
directive to be indefinite. However, Arkansas law provides that “[n]o state of disaster
emergency may continue for longer than sixty (60) days unless renewed by the
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Governor.” Ark. Code Ann. § 12-75-107(b)(2). The Governor declared a state of
emergency on March 11, 2020. Accordingly, the ADH directive, which was issued
pursuant to the Governor’s emergency powers and the ADH’s general authority under
Ark. Code Ann. §§ 20-7-109, 20-7-110, will necessarily expire on May 11, 2020
unless the Governor renews the state of emergency. Such an expiration date makes
the ADH directive a delay, not a ban. “The Supreme Court has repeatedly upheld a
wide variety of abortion regulations that entail some delay in the abortion but that
serve permissible Government purposes.” Garza v. Hargan, 874 F.3d 735, 755 (D.C.
Cir. 2017) (en banc) (Kavanaugh, J., dissenting), vacated sub nom. Azar v. Garza,
138 S. Ct. 1790 (2018).
Moreover, the directive contains emergency exceptions, including where “there
is a threat to the patient’s life if the procedure is not performed.” The directive
explicitly applies only to “surgical abortions that are not immediately necessary to
protect the life or health of the patient.” Accordingly, the directive complies with
Jacobson’s requirement that the emergency measures contain basic exceptions for
“extreme cases.”
“Properly understood, then, [the ADH directive is] a temporary postponement
of all non-essential medical procedures, including abortion, subject to facially broad
exceptions.” In re Abbott, 2020 WL 1685929, at *10. We agree with the Fifth
Circuit’s conclusion that such an emergency measure “does not constitute anything
like an ‘outright ban’ on pre-viability abortion[.]”
Id. Accordingly, the ADH
directive is not, beyond all question, a prohibition of pre-viability abortion in
violation of the Constitution.
b.
Finally, we turn to whether the ADH directive, beyond all question, imposes
an “undue burden” on a woman’s ability to choose whether to terminate a pre-
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viability pregnancy. Casey, 505 U.S. at 876. A state action imposes an “undue
burden” when it places a “substantial obstacle in the path of a woman seeking an
abortion before the fetus obtains viability.”
Id. at 878. “Not all burdens on the right
to decide whether to terminate a pregnancy will be undue.”
Id. at 876. Further, for
a burden to be facially undue, the benefits of the directive must be “substantially
outweighed by the burdens it imposes on a large fraction of women seeking” non-
essential surgical abortion in Arkansas. Planned Parenthood of Ark. & E. Okla. v.
Jegley,
864 F.3d 953, 960 n.9 (8th Cir. 2017). Applying this standard within the
Jacobson framework, the question is whether the burdens imposed by the ADH
directive on a large fraction of women seeking non-essential surgical abortions in
Arkansas “beyond all question” substantially outweigh the benefits to the State.
Because the district court erroneously found the ADH directive to be per se
unconstitutional as a prohibition on nearly all pre-viability abortions, it determined
that Casey’s undue burden standard does not apply to its analysis. The court
nonetheless concluded that, “[e]ven if the undue-burden standard applies[,] . . . the
Supplemental Complaint Plaintiffs are likely to prevail because the burdens of the
Challenged Provisions far outweigh their purported benefits.” We find that, in its
perfunctory analysis of Casey’s undue burden standard, the district court committed
clear abuses of discretion and, further, usurped the functions of the state government
by second-guessing the State’s policy choices in responding to the COVID-19
pandemic. Moreover, the district court failed to consider whether LRFP satisfied
Casey’s undue burden standard “beyond all question,” as required under Jacobson.
First, in assessing the benefits of the directive, the district court found that
LRFP is likely to prevail on its argument that the directive does not meaningfully
further the State’s admittedly legitimate interests in protecting or promoting the
public’s health and safety during the COVID-19 pandemic. However, the purpose
of the ADH directive is to delay all non-emergency surgeries so that the State may
conserve its finite amount of PPE resources and limit social contact among patients,
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healthcare providers, and other staff. As discussed above, this facially-neutral
directive has a real and substantial relation to the State’s interest in combating the
COVID-19 pandemic, and the directive’s benefits in addressing this public health
crisis are clear. Further, the district court’s conclusory determination that the
directive does not meaningfully address the COVID-19 pandemic constitutes an
improper “second-guess[ing of] the state’s policy choices in crafting its emergency
public health measures.” In re Abbott, 2020 WL 1685929, at *6. Accordingly, we
find that the district court abused its discretion by erroneously minimizing the
directive’s benefits in combating the public heath crisis.
Next, in assessing the claimed burdens of the directive, the district court found
that LRFP is likely to prevail on its argument that, in a large fraction of cases in
which the directive is relevant, the directive will likely operate as a substantial
obstacle to a woman’s choice to undergo an abortion. There are two issues with the
district court’s finding. First, the court’s determination that a “large fraction” of
women will face a substantial obstacle in seeking a pre-viability abortion is based on
the court’s erroneous finding that the directive indefinitely postpones non-essential
surgical abortions. As discussed, however, the directive is not indefinite; it merely
postpones non-essential surgical abortions until May 11, unless the Governor renews
the state of emergency declaration for another sixty days. Because we must apply
Jacobson’s “beyond all question” standard to our analysis, we cannot say that it is
beyond all question that the state of emergency will continue beyond May 11.
Accordingly, the district court abused its discretion in assuming that the directive will
continue indefinitely.
Further, the district court failed to conduct any analysis to support its finding
that a “large fraction” of women would face a substantial obstacle in seeking pre-
viability abortions. Specifically, the court did not determine the number of women
currently seeking but unable to obtain a surgical abortion in Arkansas; how many of
those women will be past the legal limit for obtaining an abortion by May 11; how
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many of those women will be forced to obtain a dilation and evacuation (D&E)
abortion instead of an aspiration abortion by May 11; or how many of those women
will be forced to undergo a two-day D&E abortion instead of the one-day procedure
by May 11. “As a result, we are left with no concrete district court findings
estimating the number of women who would be unduly burdened by [the ADH
directive] . . . and whether they constitute a ‘large fraction’ of women seeking [non-
essential surgical] abortions in Arkansas[.]” Jegley, 864 F.3d at 960. Accordingly,
we find that the district court clearly abused its discretion in finding that LRFP is
likely to prevail on its argument that, in a large fraction of cases in which the
directive is relevant, the directive will likely operate as a substantial obstacle to a
woman’s choice to undergo an abortion.
We conclude that the State is clearly and indisputably entitled to issuance of
the writ.
C.
Finally, we consider whether it is appropriate to exercise our discretion to issue
the writ in light of the circumstances of this case. See Kerr v. U.S. Dist. Ct. for N.
Dist. of Cal., 426 U.S. 394, 403 (1976) (noting that “it is important to remember that
issuance of the writ is in large part a matter of discretion with the court to which the
petition is addressed”). “The longstanding view is that discretion to issue the writ[]
should be exercised only in special cases . . . .” In re Abbott,
2020 WL 1685929, at
*15 (second alteration in original) (quoting 16 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3933 (3d ed. 2019)).
Because of the impact of the ongoing global pandemic in Arkansas, “[w]e are
persuaded that this petition presents an extraordinary case justifying issuance of the
writ.” Id. As discussed above, the total number of Arkansas residents infected with,
and dying from, COVID-19 is growing daily; PPE continues to be used; and state
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officials remain concerned with continued spread of the disease, supply shortages,
and burdens on hospitals and other healthcare facilities. Because “even a minor delay
in fully implementing the [S]tate’s emergency measures could have major
ramifications,” it is appropriate for us to exercise our discretion in issuing the writ.
Id.
Our conclusion is supported by our concern that the district court committed
a serious error in failing to meaningfully apply the Jacobson framework, which
resulted in a clear abuse of discretion. The consequence of this error, which
effectively “bestow[ed] on [surgical] abortion providers a blanket exemption from a
generally-applicable emergency public health measure,” is magnified because of its
“effect on the [S]tate’s ongoing emergency efforts to slow COVID-19.”
Id. Further,
we think that in so doing, the district court “usurped the power of state authorities by
passing judgment on the wisdom and efficacy of . . . emergency measures” in the
midst of a public health crisis.
Id. Mandamus is an appropriate remedy to correct this
error.
IV.
Finally, we consider whether the State is entitled to mandamus relief
concerning the district court’s order granting LRFP leave to file the supplemental
complaint pursuant to Federal Rule of Civil Procedure 15(d). We begin by noting
that we lack appellate jurisdiction to review the district court’s decision to allow
LRFP to file the supplemental complaint. Mo.-Kan.-Tex. R. Co. v. Randolph, 182
F.2d 996, 999 (8th Cir. 1950) (“We think the order granting plaintiffs leave to file
their supplemental and dependent bill of complaint was not appealable.”); 6A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1504 (3d ed. 2019)
(“The decision to permit or deny leave to file a supplemental pleading is interlocutory
and cannot be reviewed except on an appeal from the final judgment.”). Further, this
is not the sort of error ordinarily entitled to mandamus relief. See Kay Ferer, Inc. v.
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Hulen, 160 F.2d 146, 149 (8th Cir. 1947) (denying petition for writ of mandamus to
set aside order allowing supplemental complaint).
Nevertheless, because the decision to allow the supplemental complaint is
unreviewable and not remediable by mandamus relief, we consider the propriety of
the decision to the extent it bears on the appropriateness of mandamus relief
regarding the TRO. As discussed above, LRFP sought leave to file the supplemental
complaint challenging the ADH directive in a pending case. See Little Rock Family
Planning Servs. v. Rutledge, No. 4:19-CV-00449-KGB. In that case, LRFP
challenged the constitutionality of three separate abortion-related laws in Arkansas.
Unlike the ADH directive, none of those laws seek to limit surgical abortions on the
basis of the COVID-19 pandemic. Because the ADH directive is distinct and separate
from the Arkansas statutes challenged in that case, we express serious doubt that the
supplemental complaint challenging the directive “cover[s] matters subsequently
occurring but pertaining to the original cause” within the meaning of Rule 15(d).
United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977) (internal quotation
marks omitted); see also Planned Parenthood of S. Ariz. v. Neely,
130 F.3d 400, 402-
03 (9th Cir. 1997) (per curiam) (holding district court abused its discretion in
allowing supplemental complaint because “[a]lthough both the original suit and the
supplemental complaint sought to challenge Arizona’s parental consent law, the
supplemental complaint challenged a different statute than the one that had been
successfully challenged in the original suit”).
Accordingly, we decline to exercise our mandamus power to direct the district
court to dismiss the supplemental complaint. We consider the district court’s
decision to allow the supplemental complaint only for the limited purpose of further
demonstrating why mandamus relief regarding the TRO is appropriate.
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V.
For these reasons, we grant a writ of mandamus in part and direct the district
court to dissolve the TRO of April 14, 2020. We deny the emergency motion to stay
the ex parte TRO and for a temporary administrative stay as moot.
LOKEN, Circuit Judge, dissents.
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