Planned Parenthood of Greater Tex. Surgical Health Services v. Abbott ( 2013 )

Cite as: 571 U. S. ____ (2013) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13A452
_________________
PLANNED PARENTHOOD OF GREATER TEXAS SUR-
GICAL HEALTH SERVICES ET AL. v. GREGORY
ABBOTT, ATTORNEY GENERAL
OF TEXAS ET AL.
ON APPLICATION TO VACATE STAY
[November 19, 2013]
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUS-
TICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting from
denial of application to vacate the stay.
In July of this year, the State of Texas passed two
amendments to its abortion laws, which were to go into
effect on October 29. See 2013 Texas House Bill No. 2.
The amendment now at issue requires a physician per-
forming an abortion to have admitting privileges at a
hospital within 30 miles. Applicants challenged the
amendments in Federal District Court, arguing (among
other things) that they violate the constitutional right to
have an abortion. See Planned Parenthood of Southeast-
ern Pa. v. Casey, 505 U. S. 833 (1992).
The District Court held a bench trial and, on the day
before the amendments were to go into effect, issued an
opinion and order holding that the admitting privileges
requirement is unconstitutional and permanently enjoin-
ing its enforcement. __ F. Supp. 2d __, 2013 WL 5781583(WD Tex., Oct. 28, 2013). The District Court concluded
that “admitting privileges have no rational relationship to
improved patient care” and “do not rationally relate to the
State’s legitimate interest in protecting the unborn.” Id.,
at *5. And the court explained that, in its view, the admit-
ting privileges requirement is unconstitutional because it
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HEALTH SERVICES v. ABBOTT
BREYER, J., dissenting
is “without a rational basis and places a substantial obsta-
cle in the path of a woman seeking an abortion of a nonvi-
able fetus.” Id., at *2; see also Gonzales v. Carhart, 550
U. S. 124, 146 (2007) (A State “may not impose upon this
right [to an abortion] an undue burden, which exists if a
regulation’s ‘purpose or effect is to place a substantial ob-
stacle in the path of a woman seeking an abortion before
the fetus attains viability’ ” (quoting Casey, supra, at 878)).
The State appealed the District Court’s decision and
asked the Court of Appeals for the Fifth Circuit to stay the
injunction pending resolution of the appeal. The Court of
Appeals granted the stay, which had the effect of allowing
the admitting privileges requirement to go into force im-
mediately. ___ F. 3d ___, 2013 WL 5857853 (Oct. 31,
2013). In deciding to issue the stay, the Fifth Circuit
undertook to apply the traditional analysis, which re-
quires a balancing of four factors: “ ‘(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties inter-
ested in the proceeding; and (4) where the public interest
lies.’ ” Nken v. Holder, 556 U. S. 418, 426 (2009) (quoting
Hilton v. Braunskill, 481 U. S. 770, 776 (1987)). The Fifth
Circuit thought that the State was likely to prevail on the
merits, that the injunction would irreparably injure it by
preventing it from implementing its statute at least until
the Fifth Circuit reached a final decision, and that the
public interest merged with the State’s interest in the en-
forcement of its law. The Fifth Circuit recognized that ap-
plicants had “made a strong showing that their interests
would be harmed by staying the injunction,” but it con-
cluded that “given the State’s likely success on the merits,
this is not enough, standing alone, to outweigh the other
factors.” 2013 WL 5857853, *9.
As a practical matter, the Fifth Circuit’s decision to stay
Cite as: 571 U. S. ____ (2013) 3
BREYER, J., dissenting
the injunction meant that abortion clinics in Texas whose
physicians do not have admitting privileges at a hospital
within 30 miles of the clinic were forced to cease offering
abortions. And it means that women who were planning
to receive abortions at those clinics were forced to go else-
where—in some cases 100 miles or more—to obtain a safe
abortion, or else not to obtain one at all. The Fifth Circuit
set the appeal for expedited consideration, with oral argu-
ment to be held in January 2014 and, I assume, a deci-
sion to issue soon thereafter. See ibid.Applicants, the plaintiffs in the District Court, now ask
this Court to vacate the Fifth Circuit’s stay, meaning that
the District Court’s injunction would be reinstated and
those clinics that were forced to close could reopen while
the Fifth Circuit receives briefing and renders its consid-
ered decision on the merits.
This Court may vacate a stay entered by a court of
appeals where the case “ ‘could and very likely would be
reviewed here upon final disposition in the court of ap-
peals,’ ” “ ‘the rights of the parties . . . may be seriously and
irreparably injured by the stay,’ ” and “ ‘the court of ap-
peals is demonstrably wrong in its application of accepted
standards in deciding to issue the stay.’ ” Western Airlines,
Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor,
J., in chambers) (quoting Coleman v. Paccar Inc., 424
U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers)). For
the following reasons, I believe that these conditions are
satisfied here.
First, under the status quo that existed in Texas prior to
the enactment of the admitting privileges requirement,
women across the State of Texas who needed abortions
had a certain level of access to clinics that would provide
them. If allowed to stand, the District Court’s injunction
would maintain that status quo pending the decision of
this case by the Court of Appeals.
Second, the Fifth Circuit’s stay seriously disrupts that
4 PLANNED PARENTHOOD OF GREATER TEX. SURGICAL
HEALTH SERVICES v. ABBOTT
BREYER, J., dissenting
status quo. By putting Texas’ new law into immediate
effect, it instantly leaves “24 counties in the Rio Grande
Valley . . . with no abortion provider because those provid-
ers do not have admitting privileges and are unlikely to
get them,” 2013 WL 5781583, *5, and it may substantially
reduce access to safe abortions elsewhere in Texas. Ap-
plicants assert that 20,000 women in Texas will be left
without service. While the State denies this assertion, it
provides no assurance that a significant number of women
seeking abortions will not be affected, and the District
Court unquestionably found that “there will be abortion
clinics that will close.” Ibid. The longer a given facility
remains closed, the less likely it is ever to reopen even if
the admitting privileges requirement is ultimately held
unconstitutional.
Third, the Fifth Circuit has agreed to expedite its con-
sideration of the challenge, minimizing the harm that the
injunction, if entered in error, would do to the State and
bolstering my view that it is a mistake to disrupt the
status quo so seriously before the Fifth Circuit has arrived
at a considered decision on the merits.
Fourth, the balance of harms tilts in favor of applicants.
If the law is valid, then the District Court’s injunction
harms the State by delaying for a few months a change to
the longstanding status quo. If the law is invalid, the
injunction properly prevented the potential for serious
physical or other harm to many women whose exercise of
their constitutional right to obtain an abortion would be
unduly burdened by the law. And although the injunction
will ultimately be reinstated if the law is indeed invalid,
the harms to the individual women whose rights it re-
stricts while it remains in effect will be permanent.
Fifth, the underlying legal question—whether the new
Texas statute is constitutional—is a difficult question. It
is a question, I believe, that at least four Members of this
Court will wish to consider irrespective of the Fifth Cir-
Cite as: 571 U. S. ____ (2013) 5
BREYER, J., dissenting
cuit’s ultimate decision.
Sixth, I can find no significant “public interest” consid-
erations beyond those I have already mentioned.
Given these considerations, in my view, the standard
governing the Fifth Circuit’s decision whether to stay the
District Court’s injunction was not satisfied, and the
standard governing this Court’s decision whether to va-
cate the Fifth Circuit’s stay is satisfied. See Nken, 556
U. S., at 426; Western Airlines, supra, at 1305. I would
maintain the status quo while the lower courts consider
this difficult, sensitive, and controversial legal matter.
Thus, I would vacate the stay, and I dissent from the
Court’s refusal to do so.