Whole Woman's Health v. Ken Paxton ( 2020 )

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 21, 2020
No. 17-51060 Lyle W. Cayce
____________ Clerk
Whole Woman’s Health, on behalf of itself, its staff, physicians and
patients; Planned Parenthood Center for Choice, on behalf of
itself, its staff, physicians, and patients; Planned Parenthood of
Greater Texas Surgical Health Services, on behalf of itself, its
staff, physicians, and patients; Planned Parenthood South Texas
Surgical Center, on behalf of itself, its staff, physicians, and patients;
Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff,
physicians, and patients, doing business as Alamo Women’s
Reproductive Services; Southwestern Women’s Surgery
Center, on behalf of itself, its staff, physicians, and patients; Curtis
Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe,
M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik
Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients;
Alan Braid, M.D., on his own behalf and on behalf of his patients;
Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her
patients,
Plaintiffs—Appellees,
versus
Ken Paxton, Attorney General of Texas, in his official
capacity; John Creuzot, District Attorney for Dallas
County, in his official capacity; Sharen Wilson, Criminal
District Attorney for Tarrant County, in her official
capacity; Barry Johnson, Criminal District Attorney for
McLennan County, in his official capacity,
Defendants—Appellants.
No. 17-51060
_______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-690
_______________________________
Before Stewart, Dennis, and Willett, Circuit Judges. 1
IT IS ORDERED that Appellants’ joint opposed motion for stay
pending appeal is DENIED.
1
A separate opinion by Judge Dennis concerning the motion is forthcoming.
2
No. 17-51060
Don R. Willett, Circuit Judge, dissenting:
I would grant the State of Texas’s motion to stay the injunction.
The Supreme Court recently divided 4-1-4 in June Medical Services
LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the
takeaway seems clear: The three-year-old injunction issued by the district
court in this case rests upon a now-invalid legal standard. See Hopkins v.
Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020)
(explaining that June Medical upended the previous cost-benefit balancing
test for reviewing the constitutionality of abortion restrictions); June Med.
Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) (“Today, five Members
of the Court reject the Whole Woman’s Health cost-benefit standard.”).
I would grant the motion to stay. Additionally, I would remand the
underlying merits appeal to the district court for reconsideration under the
now-governing legal standard. See Box v. Planned Parenthood of Ind. & Ky.,
Inc., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020) and Box v.
Planned Parenthood of Ind. & Ky., Inc., No. 18-1019, 2020 WL 3578669 (U.S.
July 2, 2020) (remanding “for further consideration in light of June
Medical”).
Because the majority does otherwise, I respectfully dissent.
3