After the Trump Administration exposed the numerous fatal flaws underlying a federal judge’s order requiring the government to continue funding Planned Parenthood, the court entered a revised order to keep the cash flowing to the abortion giant. But rather than correcting any errors, the revised Temporary Restraint Order (“TRO”) reveals the court’s outrageous overreach — that of an imperialist judge, one might even say.

Late Friday, Massachusetts federal judge Indira Talwani, a Barack Obama appointee, dissolved the TRO she had entered earlier in the week against the Trump Administration. Mere hours after Planned Parenthood filed suit against the Department of Health and Human Services, challenging Congress’s decision in the Big, Beautiful Bill to no longer fund abortion providers, Judge Talwani issued a TRO. That 5:15 p.m. Monday TRO failed to provide any legal justification for her decision requiring the Trump Administration to continue disbursing Medicaid funding to all Planned Parenthood organizations.

The Trump Administration responded with a Motion to Dissolve the TRO, stressing that “a TRO cannot issue without complying with a series of mandatory procedural requirements” and that Judge Talwani “ignored those most basic criteria.” Accordingly, the Trump Administration argued in its Motion, “[t]he Court must therefore dissolve its TRO as soon as possible.”

In entering the TRO, Judge Talwani clearly violated federal rules by, among other things, entering the order on an “ex parte” basis, meaning she granted the TRO before providing the government an opportunity to respond. Ex parte TROs are only permissible if “irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” But there was no exigency that required Judge Talwani to issue the TRO at 5:15 p.m., as opposed to setting a hearing for that time to allow the government an opportunity to present its case in opposition.

Federal rules also require a judge who enters an ex parte TRO to “describe the [movant’s] injury and state why it is irreparable [and] state why the order was issued without notice.” Again, Judge Talwani blatantly violated that mandatory rule, by failing to explain the purported irreparable harm.

Judge Talwani attempted to rectify her errors on Friday by dissolving her initial TRO and entering an amended TRO that “provide[d] the court’s reasons for the emergency order.” But rather than remedy the defective TRO, Judge Talwani’s reasoning confirms that she never should have entered a TRO in the first instance.

To obtain either a TRO or a preliminary injunction, a Plaintiff must establish “(i) the likelihood that the movant will succeed on the merits; (ii) the possibility that, without an injunction, the movant will suffer irreparable harm; (iii) the balance of relevant hardships as between the parties; and (iv) the effect of the court’s ruling on the public interest.”

In issuing her amended TRO, Judge Talwani focused on the merits of only one of the abortion-giant’s legal claims, namely, the Plaintiffs’ argument that Section 71113 of the Big Beautiful Bill violates their First Amendment right of association by excluding Planned Parenthood “affiliates” from Medicaid funding, even though some affiliates do not provide abortions. This provision punishes affiliates based solely on their association with other Planned Parenthoods, the Plaintiffs argued. Judge Talwani agreed, finding the Plaintiffs were likely to succeed on the merits of that First Amendment claim.

Judge Talwani’s reasoning ignores, however, that Planned Parenthood does not distinguish between the federation and affiliates, commingling funds for purposes of financial reporting. As such, Congress could reasonably consider the entity as an undivided whole in making funding decisions. 

But even accepting Judge Talwani’s conclusion that Section 71113 unconstitutionally abridged the association rights of organizations not performing abortions, that would only establish that the sub-set of Plaintiffs who do not perform abortions were likely to succeed on the merits of their First Amendment claims. Yet, Judge Talwani’s TRO required the federal government to continue disbursing Medicaid funds to all Planned Parenthood organizations, including those performing abortions.

Not only did Judge Talwani err in granting relief to all Planned Parenthoods based on the First Amendment’s right to association claim, but her amended TRO failed, as a whole, because Planned Parenthood did not establish the Plaintiffs would “suffer irreparable harm” before the court could hold a hearing on their motion.

Judge Talwani’s reasoning was not to the contrary. Rather, the Obama appointee found that Section 71113 would cause “widespread disruptions to patient care would occur in the absence of a Temporary Restraining Order,” and that “[d]isruption or delays in receiving healthcare is irreparable harm.” But those purported harms are not injuries to the Planned Parenthood clinics who sued and thus cannot establish the Plaintiffs will suffer irreparable harm.

The case Judge Talwani cited to support her analysis actually reveals the error in her reasoning. In Planned Parenthood of Kansas v. Andersen, which the Judge Talwani cited for the proposition that disruption or delays in receiving healthcare constitute irreparable harm sufficient to justify a preliminary injunction, the only issue before the appellate court was whether the patients had shown they would suffer irreparable harm absent a preliminary injunction. The court expressly did not consider whether the Planned Parenthood clinics had “met their burden of showing irreparable harm.”

The Obama appointee flubbed that point, which is precisely why courts should not enter ex parte TROs absent extremely rare circumstances: Without an adversary to reveal the flaws of a party’s argument, the court is apt to make a mistake. And here there was absolutely no need for the court to rule before hearing from the government on the merits of the case. That much should have been clear from the Plaintiffs’ memorandum in support of the requested TRO, with Planned Parenthood explaining it had “been forced to stop submitting claims for Medicaid reimbursement as of ‘the date of enactment.’”

In what world is not being able to submit a claim for reimbursement for a day or two “irreparable harm?” Apparently, in the world we now live — in which single federal court judges now also hold legislative and executive authority.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.