ORDER
Appellants have filed a motion to stay the district courts 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 courts judgment and injunction pending appeal is GRANTED, and that our prior opinion to the contrary, 988 F.3d 329, is VACATED.
DISSENT
I vote to deny Appellants motion for a stay pending appeal for the reasons given by the panel in Bristol Regional Womens Center, P.C. v. Slatery, 988 F.3d 329 (6th Cir. 2021), denying a stay pending appeal.
DISSENT
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 States 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); Mich. State A. Philip Randolph Inst. v. Johnson, 749 F. Appx 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, 129 S.Ct. 1749 (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 Thapars panel dissent and the State claim. Bristol Regl Womens 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, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (asserting that the Courts decision was based “on the record before us”); see also Planned Parenthood of Se. Pa. v. Casey, 510 U.S. 1309, 1310, 114 S.Ct. 909, 127 L.Ed.2d 352 (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.
The State also intimates that the existence of similar waiting periods in fourteen other states should lead us to find that Tennessees waiting period is constitutional. See CA6 R.39, Pet. for Initial Hrg 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 Womens Servs. v. Taft, 468 F.3d 361, 373–74 (6th Cir. 2006) (upholding Ohios waiting period because plaintiffs could not satisfy the “large-fraction test”); A Womans Choice-E. Side Womens Clinic v. Newsom, 305 F.3d 684, 691 (7th Cir. 2002) (upholding Indianas 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 Wisconsins 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 Mississippis waiting period in the absence of a developed factual record because the law was functionally identical to Casey). Given Caseys 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 Tennessees 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 [Tennessees law] is relevant, it will operate as a substantial obstacle to a womans choice to undergo an abortion.” Casey, 505 U.S. at 895, 112 S.Ct. 2791. 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 courts 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.
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, 129 S.Ct. 1749. It has not done so, and I would deny the States motion for a stay.
1
I respectfully dissent.
FOOTNOTES
1
. The 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, 129 S.Ct. 1749 (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 States 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 courts 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.
The En Banc Court of the Sixth Circuit Court of Appeals issued an order. MOORE, J. (pg. 775), in which CLAY, WHITE, STRANCH, and DONALD, JJ., joined, and GIBBONS, J. (pp. 775–77), delivered separate dissenting opinions.