Whole Woman's Health v. Ken Paxton

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.

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