Isaacson et al v. Brnovich et al
Filing
66
ORDER denying 57 Motion for a Stay Pending Appeal. See document for complete details. Signed by Judge Douglas L Rayes on 10/18/2021. (RMV)
Case 2:21-cv-01417-DLR Document 66 Filed 10/18/21 Page 1 of 3
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Paul A Isaacson, et al.,
Plaintiffs,
10
11
ORDER
v.
12
No. CV-21-01417-PHX-DLR
Mark Brnovich, et al.,
13
Defendants.
14
15
16
Defendants move for a stay of the Court’s September 28, 2021 preliminary
17
injunction order (Doc. 52), but only to the extent it preliminarily enjoins § 2 of the Act.
18
(Doc. 57.)
19
A stay pending appeal is not a right, it is a case-by-case exercise of judicial
20
discretion guided by four factors: “(1) whether the stay applicant has made a strong
21
showing that he is likely to succeed on the merits; (2) whether the applicant will be
22
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure
23
the other parties interested in the proceeding; and (4) where the public interest lies.”
24
Nken v. Holder, 556 U.S. 418, 433-34 (2009). The first two are the most critical. Id. at
25
434. Regarding the first factor, a movant need only show that there is a substantial case
26
for relief on appeal. Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012). As for the
27
second, the movant must show more than some possibility of irreparable injury; it must
28
establish that there is a probability of irreparable injury if a stay is not granted. Id. at
Case 2:21-cv-01417-DLR Document 66 Filed 10/18/21 Page 2 of 3
1
1214.
2
Even assuming Defendants can make out a substantial case for relief on the merits
3
of their appeal, a stay pending appeal is unwarranted because Defendants have not
4
established a probability of irreparable injury in the absence of a stay, and a stay likely
5
would substantially injure other parties interested in the proceeding. Defendants argue
6
that they will be irreparably harmed absent a stay because the Court’s preliminary
7
injunction order will preclude Arizona from carrying out the laws passed by its
8
democratic process. (Doc. 57 at 13); but see Marbury v Madison, 5 U.S. 137 (1803)
9
(establishing principle of judicial review, which necessarily authorizes courts to preclude
10
the enforcement of laws enacted through the democratic process when courts determine
11
that those laws violate the Constitution). Defendants further argue that “Plaintiffs and
12
their patients, by contrast, will suffer no irreparable harm in the absence of preliminary
13
relief. As the Court concluded, the Reason Regulation will not prohibit any woman from
14
obtaining an abortion. And Plaintiffs cannot manufacture harm to their patients by
15
refusing to provide abortions based on speculative and unreasonable fears about the
16
potential reach of the law.” (Doc. 64 at 8.) Defendants’ argument overstates the injury to
17
Arizona and minimizes the harms to Plaintiffs and their patients by misconstruing the
18
Court’s preliminary injunction order.
19
Beginning with the harm to Arizona, even though “a state may suffer an abstract
20
form of harm whenever one of its acts is enjoined,” that “is not dispositive of the balance
21
of harms analysis. If it were, then the rule requiring balance of competing claims of
22
injury would be eviscerated.” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572
23
F.3d 644, 658 (9th Cir. 2009) (internal quotation and citation omitted), vacated and
24
remanded on other grounds sub nom. Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565
25
U.S. 606 (2012); Latta v. Otter, 771 F.3d 496, 500 n.1 (9th Cir. 2014) (“Individual
26
justices, in orders issued from chambers, have expressed the view that a state suffers
27
irreparable injury when one of its laws is enjoined. No opinion for the Court adopts this
28
view.” (internal citations omitted)). Indeed, this Court has previously explained that
-2-
Case 2:21-cv-01417-DLR Document 66 Filed 10/18/21 Page 3 of 3
1
“[a]lthough a state suffers a form of irreparable injury whenever it is enjoined from
2
implementing its laws, that injury alone does not support a stay when balanced against
3
the harms a stay would impose on others.” Arizona Democratic Party v. Hobbs, No. 20-
4
01143-PHX-DLR, 2020 WL 6555219, at *1 (D. Ariz. Sept. 18, 2020) (internal citation
5
omitted).
6
Such is the case here. Defendants argue otherwise only because they misread the
7
Court’s order. Although the Court found that the plain language of § 2 did not outright
8
ban pre-viability abortions because of a fetal genetic abnormality, the Court nonetheless
9
found that enforcement of the Reason Regulations likely would make it substantially
10
more difficult for women seeking to terminate their pre-viability pregnancies because of a
11
genetic fetal abnormality to receive constitutionally protected care. The Court also found
12
Plaintiffs’ fears about the potential reach of the law to be reasonable and supported by the
13
evidence, the plain language of the law, and common sense. Under these circumstances,
14
Defendants’ abstract injury is outweighed by the real-world harms a stay would visit
15
upon the provider Plaintiffs and their patients.1
16
17
18
IT IS ORDERED that Defendants’ motion for a stay pending appeal (Doc. 57) is
DENIED.
Dated this 18th day of October, 2021.
19
20
21
Douglas L. Rayes
United States District Judge
22
23
24
25
26
27
28
Moreover, Defendants’ argument about the harms to a state whenever it is
enjoined from enforcing a democratically enacted law is undermined by their decision to
appeal only a portion of the Court’s preliminary injunction order—evidently this harm is
tolerable as it pertains to the other enjoined portions of the Act.
1
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?