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RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
`
`File Name: 21a0093p.06
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE SIXTH CIRCUIT
`
`
`
`
`
`
`
`
`
`No. 20-6267
`
`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.
`
`┐
`│
`│
`│
`│
`>
`│
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`│
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`│
`┘
`
`
`
`
`
`On Motion to Stay and Motion for Expedited Consideration.
`
`United States District Court for the Middle District of Tennessee at Nashville;
`No. 3:15-cv-00705—Bernard A. Friedman, District Judge.
`
`Decided and Filed: April 23, 2021
`
`Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON, GRIFFIN,
`KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,
`NALBANDIAN, READLER, and MURPHY, Circuit Judges.
`
`
`
`
`
`

`

`No. 20-6267
`
`Bristol Reg’l Women’s Center et al. v. Slatery et al.
`
`Page 2
`
`
`
`_________________
`
`COUNSEL
`
`ON MOTIONS 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.
`
`The En Banc Court of the Sixth Circuit Court of Appeals issued an order. MOORE, J.
`
`(pg. 3), in which CLAY, WHITE, STRANCH, and DONALD, JJ., joined, and GIBBONS, J. (pp.
`4–6), delivered separate dissenting opinions.
`
`_________________
`
`ORDER
`
`_________________
`
`Appellants have filed a motion to stay the district court’s judgment and injunction pending
`
`appeal. Appellants have also filed a motion for expedited consideration of the motion to stay. Appellees
`
`oppose both motions. A majority of judges of this court having voted in favor of the motions,
`
`It is ORDERED that the motion for expedited consideration is GRANTED.
`
`It is further ORDERED that the motion to stay the district court’s judgment and injunction
`
`pending appeal is GRANTED, and that our prior opinion to the contrary, 988 F.3d 329, is VACATED.
`
`
`
`
`
`

`

`No. 20-6267
`
`Bristol Reg’l Women’s Center et al. v. Slatery et al.
`
`Page 3
`
`
`
`_________________
`
`DISSENT
`
`_________________
`
`KAREN NELSON MOORE, Circuit Judge, dissenting. I vote to deny Appellants’
`
`motion for a stay pending appeal for the reasons given by the panel in Bristol Regional Women’s
`
`Center, P.C. v. Slatery, 988 F.3d 329 (6th Cir. 2021), denying a stay pending appeal.
`
`
`
`
`
`

`

`No. 20-6267
`
`Bristol Reg’l Women’s Center et al. v. Slatery et al.
`
`Page 4
`
`
`
`_________________
`
`DISSENT
`
`_________________
`
`JULIA SMITH GIBBONS, Circuit Judge, dissenting. I was not in favor of granting
`
`initial hearing en banc in this case. I believe that doing so was unnecessary and damaged our
`
`traditional system of panel review. I recognize that a majority of my colleagues disagree with
`
`my views, however, and I will not belabor this point.
`
`Instead, I am writing separately to emphasize that I find the question of whether to grant
`
`the State’s motion for a stay pending appeal to be a close one. As is often the case, whether to
`
`grant the stay turns primarily on whether the State has made “a strong showing that [it] is likely
`
`to succeed on the merits.” Nken v. Holder, 556 U.S. 418, 434 (2009); Mich. State A. Philip
`
`Randolph Inst. v. Johnson, 749 F. App'x 342, 344 (6th Cir. 2018) (“The likelihood of success is
`
`perhaps the most important factor.”); see also Frank v. Walker, 769 F.3d 494, 495–96 (7th Cir.
`
`2014). Although there is a possibility—perhaps even a strong possibility—that the State will
`
`eventually convince me that the district court erred, it has not currently persuaded me that such a
`
`result is “likely.” See Nken, 556 U.S. at 434 (holding that a “possibility” of success on the merits
`
`is never sufficient).
`
`As an initial matter, Casey does not say that “waiting periods are constitutional,” as both
`
`Judge Thapar’s panel dissent and the State claim. Bristol Reg’l Women’s Health Ctr., P.C. v.
`
`Slatery, 988 F.3d 329, 344 (6th Cir. 2021) (Thapar, J., dissenting); CA6 R.76, Mot. for Recons.,
`
`at 1. The Casey plurality emphasized that its decision was based on the sparse factual record
`
`before it. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 887 (1992) (asserting that
`
`the Court’s decision was based “on the record before us”); see also Planned Parenthood of Se.
`
`Pa. v. Casey, 510 U.S. 1309, 1310 (1994) (Souter, J., in chambers) (interpreting Casey as leaving
`
`litigants “free to challenge similar [waiting period] restrictions in other jurisdictions”). It defies
`
`precedent to summarily conclude that all waiting periods are constitutional, no matter the
`
`circumstances.
`
`

`

`No. 20-6267
`
`Bristol Reg’l Women’s Center et al. v. Slatery et al.
`
`Page 5
`
`
`
`The State also intimates that the existence of similar waiting periods in fourteen other
`
`states should lead us to find that Tennessee’s waiting period is constitutional. See CA6 R.39,
`
`Pet. for Initial Hr’g En Banc, at 10 n.2 (listing statutes). Certainly, if each of those laws had
`
`been tested and upheld in authoritative court decisions, those decisions would signal that waiting
`
`periods are constitutional in all but the narrowest circumstances. But, by my count, federal
`
`courts of appeals have only decided that four of those waiting periods do not infringe upon the
`
`right to an abortion, and the courts’ rationales vary. See Cincinnati Women’s Servs. v. Taft, 468
`
`F.3d 361, 373–74 (6th Cir. 2006) (upholding Ohio’s waiting period because plaintiffs could not
`
`satisfy the “large-fraction test”); A Woman’s Choice-E. Side Women’s Clinic v. Newsom, 305
`
`F.3d 684, 691 (7th Cir. 2002) (upholding Indiana’s waiting period because the evidence did not
`
`show that the law unduly burdened the right to an abortion); Karlin v. Foust, 188 F.3d 446, 485–
`
`86 (7th Cir. 1999) (upholding Wisconsin’s waiting period because the evidence plaintiffs
`
`presented to distinguish their case from Casey was not convincing); Barnes v. Moore, 970 F.2d
`
`12, 14 (5th Cir. 1992) (upholding Mississippi’s waiting period in the absence of a developed
`
`factual record because the law was functionally identical to Casey). Given Casey’s directive to
`
`consider the specific factual record in each case, the existence of similar laws elsewhere—many
`
`of which are untested in the federal appellate courts—does not convince me that Tennessee’s law
`
`is constitutional.
`
`Because this case cannot be easily resolved by the mere presence of Casey or other
`
`states’ similar waiting periods, our task is to determine whether, “in a large fraction of the cases
`
`in which [Tennessee’s law] is relevant, it will operate as a substantial obstacle to a woman’s
`
`choice to undergo an abortion.” Casey, 505 U.S. at 895. That is no easy feat. On the one hand,
`
`as the State argues, many of the burdens in this case mirror the burdens in Casey. On the other,
`
`some of the district court’s factual findings—such as the specific length of the delays caused by
`
`the law, the impact of those delays on the ability of plaintiffs’ patients to obtain a medication
`
`abortion (a safer and substantially less invasive procedure than a surgical abortion), and the
`
`effect of those delays on the emotional and psychological well-being of plaintiffs’ patients—
`
`differentiate this case from Casey. The crucial question, therefore, is whether these differences
`
`are so significant that they require a different result than the one reached in Casey. See id.
`
`

`

`No. 20-6267
`
`Bristol Reg’l Women’s Center et al. v. Slatery et al.
`
`Page 6
`
`
`
`I forthrightly admit that I do not yet know the answer to this question. To answer it will
`
`take time. I will need to pore through the extensive record, analyze the merits briefs, and hear
`
`the parties’ arguments. Ultimately, however, at this stage the State bears the burden of
`
`convincing me that it is likely to succeed on the merits. See Nken, 556 U.S. at 433–34. It has not
`
`done so, and I would deny the State’s motion for a stay.1
`
`I respectfully dissent.
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
`
`
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`
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`
`
`
`ENTERED BY ORDER OF THE COURT
`
`Deborah S. Hunt, Clerk
`
`
`1The fact that the State has not made a strong showing that it is likely to succeed on the merits influences
`my weighing of the other stay factors. See Nken, 556 U.S. at 434 (listing the stay factors); see also Commonwealth
`v. Beshear, 981 F.3d 505, 508 (6th Cir. 2020) (order) (per curiam) (observing that likelihood of success on the
`merits is often dispositive). For example, the irreparable harm that the State asserts it will face in the absence of a
`stay—the inability to enforce its duly-enacted laws—is most compelling only if the State’s law is likely
`constitutional. Likewise, if there is not a strong likelihood that the waiting period is constitutional, plaintiffs and
`their patients may suffer serious harms if the district court’s decision is stayed. Thus, although I took all of the stay
`factors into account while reaching this result, at bottom, my decision is largely driven by my resolution of the first
`factor.
`
`

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