SOUTHWESTERN WOMEN SURGERY CENTER v. ABBOTT (2020)

United States Court of Appeals, Fifth Circuit.

SOUTHWESTERN WOMEN'S SURGERY CENTER; Brookside Women's Medical Center, P.A., doing business as Brookside Women's Health Center and Austin Women's Health Center; Robin Wallace, M.D., M.A.S.; Houston Women's Clinic; Planned Parenthood Center for Choice; Planned Parenthood of Greater Texas Surgical Health Services; Planned Parenthood South Texas Surgical Center; Whole Woman's Health; Whole Woman's Health Alliance, Plaintiffs-Appellees v. Greg ABBOTT, Governor of the State of Texas, in his official capacity; Ken Paxton, in his official capacity as Attorney General of Texas; Phil Wilson, in his official capacity as Acting Executive Commissioner of the Texas Health and Human Services Commission; Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board; Katherine A. Thomas, in her official capacity as the Executive Director of the Texas Board of Nursing, Defendants-Appellants

No. 20-50314

Decided: April 20, 2020

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, New York, NY, for Plaintiffs-Appellees Southwestern Women's Surgery Center, Brookside Women's Medical Center, P.A., Robin Wallace Andre Segura, American Civil Liberties Union of Texas, Houston, TX, for Plaintiff-Appellee Houston Women's Clinic Julie A. Murray, Hannah Swanson, Planned Parenthood Federation of America, Washington, DC, Jennifer Sandman, Planned Parenthood Federation of America, New York, NY, for Plaintiff-Appellee Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center Rupali Sharma, Lawyering Project, Portland, ME, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, New York, NY, for Plaintiffs-Appellees Whole Woman's Health, Whole Woman's Health Alliance Kyle Douglas Hawkins, Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Heather Gebelin Hacker, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Austin, TX, Andrew Bowman Stephens, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendant-Appellant

Defendants-Appellants appeal the order entered by the district court on April 9, 2020 and extended on April 14, 2020. Temporary restraining orders are not appealable; however, an order styled a temporary restraining order may be appealed if its “actual content, purport, and effect” is that of a preliminary injunction. Smith v. Grady, 411 F.2d 181, 186 (5th Cir. 1969); see also 28 U.S.C. § 1292. We conclude that the orders involved here are properly understood as an extended temporary restraining order and that we lack jurisdiction over the appeal. Accordingly, we DISMISS this appeal for want of jurisdiction and DENY AS MOOT the emergency motion to stay.

FOOTNOTES

FOOTNOTE.

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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