Texas Files Motion in the En Banc Court to Stay Injunction Pending Appeal in Whole Woman's Health v. Paxton (Updated)

As far as I am aware, the Texas SG is the first litigant to seek en banc review of an interim panel order.


Does the Fifth Circuit permit en banc review of interim rulings? Last year, Judge Willett said the answer was no, citing "nonpublic 'internal court policies." But those rules have changed. In January 2020, the Fifth Circuit revised those "internal court policies" through the new internal operating procedures. The IOP now states, "The [Federal Rules] covering rehearings en banc do apply to interlocutory orders of this Court issued pursuant to [Rule] 8."

The Texas Attorney General has become–as far as I know–the first litigant to rely on this new IOP. The document is styled, a Motion in the En Banc Court to Stay Injunction Pending Appeal. (Update: Apparently, the clerk bounced the initial motion because of the unusual caption. A revised document is simply styled, Petition for Rehearing En Banc.)  And Texas chose a huge case to file in: Whole Woman's Health v. Paxton, No. 17-51060 (5th Cir.). This case considered Texas's prohibition of "dismemberment abortions."

This case has a long procedural posture. In November 2017, the district court enjoined the enforcement of the law. I described the appellate procedural posture in March:

The panel (Stewart, Dennis, and Willett) heard oral arguments on November 5, 2018. Six months later, on March 13, 2019, the panel issued an order placing the case in abeyance [pending June Medical]:

Let's consider the chronology.

  • The Fifth Circuit decided June Medical v. Gee on September 26, 2018, before the dismemberment case was argued.
  • The Supreme Court granted a stay on February 7, 2019.
  • And on March 13, 2019, the panel held the dismemberment case in abeyance for June Medical.
  • A petition for certiorari was filed in June Medical in April 2019.
  • Cert was granted on October 4, 2019.

June Medical was decided on June 29, 2020. At that point, more than eighteen months had elapsed from oral arguments. Shortly after June Medical was decided, Texas sought a stay of the injunction pending appeal.

On August 22, the panel denied the stay of the injunction pending appeal. Judge Willett dissented, and would have granted the injunction. He agreed with the Eighth Circuit, and Justice Kavanaugh, that the Chief's opinion in June Medical was now the controlling precedent:

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 blogged about Willett's dissent here.

Judge Dennis wrote a separate opinion. He contended that Whole Woman's Health remains the controlling standard. Dennis's opinion concludes with the line, "Carl E. Stewart, Circuit Judge, concurs." Usually, joins are noted at the beginning of an opinion, not at the end. It isn't clear if Stewart concurred with Dennis's opinion, or if he concurred in the justification for the denial of the stay. If Stewart joined Dennis's opinion, then the panel has set a new circuit precedent about the scope of June Medical. And the panel would have created a clean circuit split with the Eighth Circuit. I this reading of Dennis's opinion makes en banc review far more likely.

Here is an excerpt from Texas's motion:

In November 2017, the district court below enjoined the enforcement of an important Texas abortion regulation. Texas filed a notice of appeal the same day. This appeal has been pending ever since. Though the Panel assigned to this case heard oral argument almost two years ago, it has not yet issued its decision, and it has denied Texas's motion to stay the injunction below pending resolution of this appeal. Whether a State may enforce a duly enacted law is a question of exceptional importance, see Fed. R. App. P. 35(b)(1)(B), and the Panel's published order denying a stay conflicts with June Medical Services v. Russo, 140 S. Ct. 2103 (2020), see Fed. R. App. P. 35(b)(1)(A). Furthermore, the Panel's order creates an acknowledged circuit split with the Eighth Circuit's decision in Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020) (per curiam). Therefore, pursuant to Rules 8 and 35(a), Texas now asks the en banc Court to stay the district court's injunction and allow Texas to enforce its law immediately.

Texas now asks the en banc Court to stay the district court's injunction immediately. As Judge Willett explained, a stay is plainly warranted. First, Texas is very likely to prevail in this appeal, because June Medical confirms that the district court's injunction is unlawful. Second, the injunction below irreparably harms Texas, by preventing it from enforcing its law and requiring it to tolerate the "brutal and inhumane procedure," Gonzales, 550 U.S. at 157, of live-dismemberment abortion. Third, the equities strongly favor Texas, as plaintiffs face no harm of their own, and the public interest supports the immediate enforcement of Texas law.

If the en banc Fifth Circuit grants a stay of the injunction pending appeal, Whole Woman's Health would likely seek a stay from the Supreme Court. That is, Whole Woman's Health will seek to reimpose the injunction. In general, the Roberts Court does not like granting an injunction. We will see, perhaps before the election, what the Chief thinks about June Medical. Will Whole Woman's Health II formally overrule Whole Woman's Health I? Stay tuned.

NEXT: Dean Lyrissa Lidsky on the Nicholas Sandmann Litigation

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  1. So what is the effect of overruling WWH I? That we go back to Casey being the governing standard, with no clarity about whether medical benefits are part of the undue burden analysis? Because I don’t see how “under Marks, WWH I is overruled” gets you to “the dissents in WWH I and June Medical are now the law.”

    1. I’ll be blunter: Who’s on first?

  2. Liberals will demand to satisfy their bloodlust for little baby body parts. Any resistance won’t be tolerated.

    1. You sound like a half-educated, superstition-driven clinger, Sam Gompers. A disaffected culture war casualty. A bigoted right-wing kook.

      The kind of guy who will spend the rest of his life complying with the preferences of guys like me (your betters). Just as you have spent your entire life complying with rules established against your wishes and efforts by the mainstream.

      You get to whine about it all you want — so long as you toe that line, Sam.

      Enjoy the rest of the culture war, Sam Gompers. Of course, that’s easy for me to say.

      1. Kirkland reminds me of those who advocated secession in 1860.

        How’d that work out?

  3. I have long been skeptical of the Supreme Court’s abortion jurisprudence, but this is complete nonsense.

    In June Medical, Justice Roberts found that Whole Women’s Health was the law of the land based on stare decisis, even though he had dissented from it at the time.

    For a lower court to conclude that Whole Woman’s Health is not the law of the land based on this opinion is to defy that opinion.

    June Medical was all about defying the Supreme Court. Roberts was sending a signal that lower courts can’t defy the Supreme Court and must follow precedent as the Supreme Court gives it, like it or not.

    For a lower court to use that very signal as justification for defying binding Supreme Court precedent is asking for a smackdown.

    The whole point of June Medical is that lower courts must follow the decisions of the Suprume Court as the court announces them, not their private psychoanalyses of what they think the individual justices personally think.

    1. I would have thought this language from Agostini v. Felton overruling Aguillar v. Felton would control, the eighth circuit and Justice Kavanaugh notwithstanding:

      We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas, 490 U. S., at 484.

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