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

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul A Isaacson, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-21-01417-PHX-DLR

Mark Brnovich, et al.,

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Defendants.

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Defendants move for a stay of the Court’s September 28, 2021 preliminary

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injunction order (Doc. 52), but only to the extent it preliminarily enjoins § 2 of the Act.

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(Doc. 57.)

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A stay pending appeal is not a right, it is a case-by-case exercise of judicial

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discretion guided by four factors: “(1) whether the stay applicant has made a strong

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showing that he is likely to succeed on the merits; (2) whether the applicant will be

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irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure

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the other parties interested in the proceeding; and (4) where the public interest lies.”

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Nken v. Holder, 556 U.S. 418, 433-34 (2009). The first two are the most critical. Id. at

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434. Regarding the first factor, a movant need only show that there is a substantial case

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for relief on appeal. Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012). As for the

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second, the movant must show more than some possibility of irreparable injury; it must

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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

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1214.

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Even assuming Defendants can make out a substantial case for relief on the merits

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of their appeal, a stay pending appeal is unwarranted because Defendants have not

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established a probability of irreparable injury in the absence of a stay, and a stay likely

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would substantially injure other parties interested in the proceeding. Defendants argue

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that they will be irreparably harmed absent a stay because the Court’s preliminary

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injunction order will preclude Arizona from carrying out the laws passed by its

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democratic process. (Doc. 57 at 13); but see Marbury v Madison, 5 U.S. 137 (1803)

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(establishing principle of judicial review, which necessarily authorizes courts to preclude

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the enforcement of laws enacted through the democratic process when courts determine

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that those laws violate the Constitution). Defendants further argue that “Plaintiffs and

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their patients, by contrast, will suffer no irreparable harm in the absence of preliminary

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relief. As the Court concluded, the Reason Regulation will not prohibit any woman from

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obtaining an abortion. And Plaintiffs cannot manufacture harm to their patients by

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refusing to provide abortions based on speculative and unreasonable fears about the

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potential reach of the law.” (Doc. 64 at 8.) Defendants’ argument overstates the injury to

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Arizona and minimizes the harms to Plaintiffs and their patients by misconstruing the

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Court’s preliminary injunction order.

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Beginning with the harm to Arizona, even though “a state may suffer an abstract

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form of harm whenever one of its acts is enjoined,” that “is not dispositive of the balance

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of harms analysis. If it were, then the rule requiring balance of competing claims of

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injury would be eviscerated.” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572

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F.3d 644, 658 (9th Cir. 2009) (internal quotation and citation omitted), vacated and

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remanded on other grounds sub nom. Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565

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U.S. 606 (2012); Latta v. Otter, 771 F.3d 496, 500 n.1 (9th Cir. 2014) (“Individual

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justices, in orders issued from chambers, have expressed the view that a state suffers

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irreparable injury when one of its laws is enjoined. No opinion for the Court adopts this

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view.” (internal citations omitted)). Indeed, this Court has previously explained that

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Case 2:21-cv-01417-DLR Document 66 Filed 10/18/21 Page 3 of 3

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“[a]lthough a state suffers a form of irreparable injury whenever it is enjoined from

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implementing its laws, that injury alone does not support a stay when balanced against

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the harms a stay would impose on others.” Arizona Democratic Party v. Hobbs, No. 20-

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01143-PHX-DLR, 2020 WL 6555219, at *1 (D. Ariz. Sept. 18, 2020) (internal citation

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omitted).

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Such is the case here. Defendants argue otherwise only because they misread the

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Court’s order. Although the Court found that the plain language of § 2 did not outright

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ban pre-viability abortions because of a fetal genetic abnormality, the Court nonetheless

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found that enforcement of the Reason Regulations likely would make it substantially

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more difficult for women seeking to terminate their pre-viability pregnancies because of a

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genetic fetal abnormality to receive constitutionally protected care. The Court also found

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Plaintiffs’ fears about the potential reach of the law to be reasonable and supported by the

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evidence, the plain language of the law, and common sense. Under these circumstances,

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Defendants’ abstract injury is outweighed by the real-world harms a stay would visit

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upon the provider Plaintiffs and their patients.1

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IT IS ORDERED that Defendants’ motion for a stay pending appeal (Doc. 57) is
DENIED.
Dated this 18th day of October, 2021.

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Douglas L. Rayes
United States District Judge

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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.
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