Bristol Regional Women's Center, P.C. v. Slatery, 021921 FED6, 20-6267

Docket Nº:20-6267
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:BRISTOL REGIONAL WOMEN'S CENTER, P.C.; MEMPHIS CENTER FOR REPRODUCTIVE HEALTH, on behalf of itself and its patients, KNOXVILLE CENTER FOR REPRODUCTIVE HEALTH; PLANNED PARENTHOOD OF TENNESSEE AND NORTH MISSISSIPPI, formerly known as Planned Parenthood of Middle and East Tennessee, and DR. KIMBERLY LOONEY, Plaintiffs-Appellees, v. HERBERT H. SLAT...
Attorney:Sarah K. Campbell, Mark Alexander Carver, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Autumn Katz, Michelle Moriarty, Rabia Muqaddam, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, Ne...
Judge Panel:MOORE, J., delivered the order of the court in which WHITE, J., joined. THAPAR, J. (pp. 20-33), delivered a separate dissenting opinion. Before: MOORE, WHITE, and THAPAR, Circuit Judges. THAPAR, Circuit Judge, dissenting.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

BRISTOL REGIONAL WOMEN'S CENTER, P.C.; MEMPHIS CENTER FOR REPRODUCTIVE HEALTH, on behalf of itself and its patients, KNOXVILLE CENTER FOR REPRODUCTIVE HEALTH; PLANNED PARENTHOOD OF TENNESSEE AND NORTH MISSISSIPPI, formerly known as Planned Parenthood of Middle and East Tennessee, and DR. KIMBERLY LOONEY, Plaintiffs-Appellees,

v.

HERBERT H. SLATERY, III, Attorney General of Tennessee, GLENN R. FUNK, District Attorney General of Nashville, Tennessee, AMY P. WEIRICH, District Attorney General of Shelby County, Tennessee; BARRY P. STAUBUS, District Attorney General of Sullivan County, Tennessee, CHARME P. ALLEN, LISA PIERCEY, Commissioner of the Tennessee Department of Health, and W. REEVES JOHNSON, JR., M.D., President of the Tennessee Board of Medical Examiners, in their official capacities, Defendants-Appellants.

No. 20-6267

United States Court of Appeals, Sixth Circuit

February 19, 2021

On Motion for Stay Pending Appeal United States District Court for the Middle District of Tennessee at Nashville; No. 3:15-cv-00705-Bernard A. Friedman, District Judge.

ON MOTION AND REPLY:

Sarah K. Campbell, Mark Alexander Carver, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants.

ON RESPONSE:

Autumn Katz, Michelle Moriarty, Rabia Muqaddam, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, Scott Tift, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, Jason M. Moff, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York for Appellees.

MOORE, J., delivered the order of the court in which WHITE, J., joined. THAPAR, J. (pp. 20-33), delivered a separate dissenting opinion.

Before: MOORE, WHITE, and THAPAR, Circuit Judges.

ORDER

KAREN NELSON MOORE, Circuit Judge.

"Unfortunately, the teachings of precedent are not always as clear as we might wish." Wright v. Spaulding, 939 F.3d 695, 699 (6th Cir. 2019) (Thapar, J.). This bit of wisdom rings particularly true for the resolution of the motion to stay pending appeal before us today, which targets the district court's judgment declaring unconstitutional and permanently enjoining a Tennessee statute that imposes a waiting period of 48 or 24 hours on women seeking an abortion in the state. Defendants1 argue that a stay is warranted because two precedents, EMW Women's Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418 (6th Cir. 2020), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), will compel us to vacate the district court's judgment and permanent injunction on appeal. Our dissenting colleague-in his zeal to uphold what appears to be yet another unnecessary, unjustified, and unduly burdensome state law that stands between women and their right to an abortion-agrees. We think, however, that this case is not so simple. Because neither Casey nor EMW has foreclosed Plaintiffs'[2] arguments, we must decline Defendants' invitation to follow them blindly. After all, we are bound by "complementary duties: adhering to precedent when an issue has already been decided and considering an issue with an open mind when it has not." Wright, 939 F.3d at 702. Assessing the parties' preliminary arguments with the requisite clear eyes, we conclude that a stay is unwarranted. Accordingly, we DENY the motion for a stay pending appeal.3

I. BACKGROUND

At issue in this case is the constitutionality of Tennessee Code Annotated § 39-15-202(a)-(h), which imposes informational and temporal requirements on women seeking an abortion in Tennessee. These requirements are asserted to "ensure" that the woman's "consent for an abortion is truly informed consent." Tenn. Code Ann. § 39-15-202(b).

The informational component of § 39-15-202(a)-(h) prohibits a physician from performing an abortion unless the woman has been informed, "orally and in person by the attending physician who is to perform the abortion, or by the referring physician": (1) that she is pregnant; (2) of the probable gestational age of the fetus; (3) that the fetus may be viable if enough time has elapsed since the woman's last menstrual cycle or the time of conception; (4) of the "numerous public and private agencies and services [that] are available to assist her during her pregnancy and after the birth of her child, if she chooses not to have the abortion"; and (5) of "[t]he normal and reasonably foreseeable medical benefits, risks, or both of undergoing an abortion or continuing the pregnancy to term." Tenn. Code Ann. § 39-15-202(b). At the same time, the attending or referring physician must inform the woman of the "particular risks associated with her pregnancy and continuing the pregnancy to term, . . . as well as the risks of undergoing an abortion," and provide a description of "the method of abortion to be used and the medical instructions to be followed subsequent to the abortion." Tenn. Code Ann. § 39-15-202(c).

The temporal component of § 39-15-202(a)-(h) establishes a 48-hour waiting period that begins when the woman receives the mandated information described above. Tenn. Code Ann. § 39-15-202(d)(1). The statute provides that the waiting period will be reduced to 24 hours in the event of a court order "temporarily, preliminarily, or permanently" enjoining enforcement of the 48-hour waiting period or declaring it unconstitutional. Tenn. Code Ann. § 39-15-202(d)(2). After the waiting period has ended, but before having the procedure, the woman must sign a "consent form" acknowledging that she has received the requisite information. Tenn. Code Ann. § 39-15-202(d)(1). Because the woman must receive the statutorily mandated information in person, the effect of the waiting period is that a woman seeking an abortion in Tennessee must make at least two visits to the clinic where she will receive abortion care. The statute's requirements apply to all abortions in Tennessee, except in cases of medical emergency that prevent compliance. See Tenn. Code Ann. § 39-15-202(d).

Plaintiffs-suing on their own behalf and on behalf of their patients-brought suit to challenge, on two grounds, the constitutionality of § 39-15-202(a)-(h). First, Plaintiffs alleged that the statute imposes an undue burden on the accessibility of abortion in violation of the Due Process Clause of the Fourteenth Amendment. Second, they alleged that the statute discriminates against women on the basis of sex and gender stereotypes in violation of the Equal Protection Clause of the Fourteenth Amendment. To remedy the alleged constitutional violations, Plaintiffs sought declaratory relief and a permanent injunction prohibiting the enforcement of § 39-15-202(a)-(h).

On October 14, 2020, following five years of litigation and a four-day bench trial, the district court issued a comprehensive, 136-page opinion setting forth the findings of fact and conclusions of law that supported its ultimate conclusion that § 39-15-202(a)-(h)'s waiting period (whether 48 or 24 hours) violates the Due Process Clause of the Fourteenth Amendment. Adams & Boyle, P.C. v. Slatery, __ F.Supp.3d __, No. 3:15-cv-00705, 2020 WL 6063778 (M.D. Tenn. Oct. 14, 2020).4 Accordingly, the district court declared the statute's waiting period unconstitutional and permanently enjoined its enforcement. Because its conclusion as to Plaintiffs' due process claim was sufficient to enjoin the waiting period's enforcement, the district court declined to rule on Plaintiffs' equal protection claim.

Defendants filed their notice of appeal on November 4, 2020. The same day, Defendants filed in the district court a motion to stay the judgment and the permanent injunction pending appeal. After the district court denied a stay, R. 287 (Op. & Order) (Page ID #6718-23), Defendants filed a motion for the same relief in this court. See Fed. R. App. P. 8(a).

II. DISCUSSION

The issuance of a stay pending appeal is a matter of our discretion, not a matter of right. Nken v. Holder, 556 U.S. 418, 433 (2009). To determine whether to exercise our discretion, we consider four familiar factors: (1) "whether the stay applicant has made a strong showing that he is likely to succeed on the merits"; (2) the likelihood that, absent a stay, "the applicant will be irreparably injured"; (3) "whether issuance of the stay will substantially injure the other parties interested in the proceeding"; and (4) the public interest. Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987). However, in constitutional cases like this one, the likelihood of success on the merits is typically determinative. See Commonwealth v. Beshear, 981 F.3d 505, 508 (6th Cir. 2020) (order) (per curiam). The party seeking a stay bears the burden of showing that we should exercise our discretion in its favor. See Nken, 556 U.S. at 433-34. Defendants have not met that burden here.

A.

Most importantly, Defendants have not persuaded us that they are likely to succeed on the merits. Various standards of review will govern Defendants' appeal of the district court's grant of a permanent injunction: "we review factual findings for clear error, legal conclusions de novo, and the scope of injunctive relief for abuse of discretion." Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 546 (6th Cir. 2005). Yet at this stage, Defendants have not endeavored to demonstrate any clear error in the district court's fact finding, and do not challenge the scope of the injunction except to the extent that they believe no injunction should have issued at all. Rather, Defendants attribute their likelihood of success entirely to legal error. Specifically, they contend that: (1) the district court applied the wrong standard for determining whether a state abortion restriction is...

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