Fifth Circuit Sides with Texas Governor For Second Time


A federal appeals court on Monday approved a ban on most abortions in Texas during the coronavirus pandemic – including those induced by medication – and continued to flex its muscle in a back-and-forth with an Austin-based district court judge who believes most abortions should be exempt from the state’s ban on non-emergency procedures.
To see the original story CLICK HERE.
To read the Court's opinion CLICK HERE.  
The 5th Circuit used unusually strong language that was directed at the U.S. District Judge Lee Yeakel. Quotes from opinion-
The April 9 TRO violated the “mandate rule,” a particular manifestation of the law-of-the-case doctrine barring reexamination of issues already decided by an appellate court.
Our Abbott II opinion plainly expected, as a foundational premise for applying Jacobson, that the district court would allow the parties to adduce additional evidence about the effects of GA-09 in specific circumstances.
[O]ur opinion left no doubt that an additional evidentiary showing was necessary to properly apply Jacobson in particular circumstances.
The district court flouted both the letter and the spirit of our mandate by cancelling that adversarial hearing, convening a snap-TRO “hearing” at which one side was barred from offering evidence or argument, and then immediately issuing a new TRO based on evidence we had already ruled insufficient to show a violation of Jacobson and Casey.
Mandamus is justified to correct the district court’s failure to follow our Abbott II mandate.
This is all the more vital here because the failure to follow our mandate led the district court to “embarrass the executive arm of the Government” and “intru[de] . . . on a delicate area of federal-state relations.” Cheney, 542 U.S. at 381 (cleaned up).
As indicated in Abbott II, any future appeals or mandamus petitions in this case will be directed to this panel and will be expedited. See Gee, 941 F.3d at 173; In re First South Sav. Ass’n, 820 F.2d 700, 716 (5th Cir. 1987).

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