June Medical Services LLC et al v. Caldwell et al

Filing 234

ORDER denying 229 Defendants Motion for Stay Pending Appeal, for Expedited Consideration, and forTemporary Stay. Signed by Judge John W. deGravelles on 02/16/2016. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JUNE MEDICAL SERVICES LLC, ET
AL.,
CIVIL ACTION
Plaintiffs,
No. 3:14-00525-JWD-RLB
VERSUS

KATHY H. KLIEBERT, Secretary,
Louisiana Department of Health and
Hospitals,
Defendant.

RULING ON DEFENDANT’S MOTION FOR STAY PENDING APPEAL, FOR
EXPEDITED CONSIDERATION, AND FOR TEMPORARY STAY

I.

INTRODUCTION
Before the Court is the Defendant’s Motion for Stay Pending Appeal, for Expedited

Consideration, and for Temporary Stay (“Motion for Stay”), (Doc. 229), as well as the
Defendant’s Memorandum in Support of Her Motion for Stay Pending Appeal, for Expedited
Consideration, and for Temporary Stay (“Supporting Memorandum”), (Doc. 229-1)
(collectively, “Defendant’s Motions”). These documents were filed by Doctor Rebekah Gee
(“Gee,” “Secretary,” or “Defendant”) in her official capacity as Secretary of the Louisiana
Department of Health and Hospitals (“DHH”), who has replaced her predecessor, Ms. Kathy H.

1 of 30

Kliebert (“Kliebert”).1 To the request sought in the Motion for Stay and the points made in the
Supporting Memorandum, Plaintiffs—June Medical Services LLC, d/b/a Hope Medical Group
for Women (“Hope”); Bossier City Medical Suite (“Bossier”); Choice, Inc., of Texas, d/b/a
Causeway Medical Clinic (“Causeway”);2 Doctor John Doe 1 (“Doe 1”); and Doctor John Doe 2
(“Doe 2”), (collectively, “Plaintiffs”)—have responded with the Memorandum in Opposition to
Defendant’s Motion to Stay the Preliminary Injunction Pending Appeal (“Opposition”). (Doc.
232; see also Doc. 216 at 5, 9.)
So as to win her requested stay, Defendant bore the burden of proving four separate
elements: (1) a strong showing that she will likely prevail on the merits, (2) proof that she will be
irreparably harmed in a stay’s absence, (3) the relative unlikelihood that other parties and
persons interested in the proceeding would be substantially injured, and (4) that the public
interest favors a stay’s issue. Generally, a stay is an extraordinary remedy, and the burden to
demonstrate that a stay is warranted is rather heavy, with the need to balance equities paramount.
Having evaluated the arguments raised by Plaintiffs and Defendant (collectively, “Parties”), both
at the telephonic conference held on February 10, 2016, and in their most recent filings, this
Court concludes that Defendant has not shown she is likely to prevail. The Court’s application of
the undue burden test is amply supported by existing precedent and the weight of the evidence.
Her other ground for reversal, that this Court must grant absolute deference to Defendant’s
statutory interpretation at odds with the plain and unambiguous wording of the statute, is

1

This recent change may induce some confusion. Whenever this Ruling refers to the actions of
the Secretary prior to Gee’s appointment on January 5, 2016, Kliebert was the “Secretary.” This
Ruling will distinguish between the two women whenever practical.
2

The three clinics are suing on behalf of themselves and their patients, physicians, and staff.
(See, e.g., Doc. 14 at 1–2; see also Doc. 232 at 1.) By stipulation, the Ruling covers Doctor John
Doe 4. (Doc. 224.)
2 of 30

likewise unlikely to succeed. With her showing on these two points insufficiently convincing,
precedent compels the preservation of the status quo, “the last, peaceable, noncontested status of
the parties,” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The harm to all
persons and parties will thereby be minimized, substantial injuries to many likely prevented,
until a final legal determination regarding the proper application of a well-established
constitutional right can definitively be made.
For these reasons, as more fully stated below, this Court DENIES the Defendant’s
Motion for Stay Pending Appeal, for Expedited Consideration, and for Temporary Stay, (Doc.
232).

II.

BACKGROUND3

A.

RELEVANT FACTS
On January 26, 2016, this Court issued its Findings of Fact and Conclusions of Law

(“Ruling”). (Doc. 216.) Briefly put, after reviewing the Parties’ extensive evidentiary
submissions and six days’ worth of testimony, this Court preliminarily enjoined Defendant from
enforcing Section A(2)(a) of Act Number 620 (“Act” or “Act 620”), which amended Louisiana
Revised Statutes § 40:1299.35.2. (Id. at 5.) The Court did so upon finding Act 620 to violate “the
substantive due process rights of Louisiana women to obtain an abortion, a right guaranteed by
the Fourteenth Amendment of the United States Constitution as established in Roe v. Wade, 410
U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) . . ., and pursuant to the test first set forth in
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674

3

Only the facts relevant to the instant dispute are here recapped. An exhaustive summary
appears in the Court’s Findings of Fact and Conclusions of Law. (Doc. 216.)
3 of 30

(1992), and subsequently refined by the Fifth Circuit.” (Id. at 8.) The Supreme Court’s major
cases total three: Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007);
Casey, 505 U.S. 833; and Roe, 410 U.S. 113. The key Fifth Circuit cases number at least five:
Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015); Whole Woman’s Health v. Lakey,
769 F.3d 285 (5th Cir. 2014); Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir.
2014); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th
Cir. 2014) (“Abbott II”); and Planned Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott, 734 F.3d 406 (5th Cir. 2013) (“Abbott I”).
On February 10, 2016, upon Defendant’s request, “[f]or the reasons stated” in the Ruling
(Doc. 216), and pursuant to Federal Rule of Civil Procedure 58,4 the Judgment (“Judgment”)
issued. (Doc. 227.) Its second paragraph preliminarily enjoined
Defendant Kathy H. Kliebert and her successors, as well as any and all
employees, agents, entities, or other persons acting in concert with her, . . . from
enforcing LA. R.S. § 40:1299.35.2 et seq. against the following persons: Doctor
John Doe 1; Doctor John Doe 2; June Medical Services, LLC, d/b/a Hope
Medical Group for Women, and its physicians and staff; Bossier City Medical
Suite, as well as its physicians and staff; Choice, Inc. of Texas, d/b/a Causeway
Medical Clinic, and its physicians and staff, including Doctor John Doe 4; and
any and all others encompassed by the Parties’ stipulations.

(Id. at 1–2.)
On that same day, Defendant filed two separate documents. The first—Defendant’s
Notice of Appeal (“Notice”)—simply gave the required notice that the Defendant has appealed
the Judgment and the Ruling to the United States Court of Appeals for the Fifth Circuit. (Doc.
228.) The second was the Motion for Stay and the Supporting Memorandum, its requests three in

4

Unless otherwise noted, any and all references to “Rules” or “Rule []” in this order are to the
Federal Rules of Civil Procedure.
4 of 30

number: (1) “for a stay of the Court’s judgment (Doc. 227) and ruling (Doc. 216),” pending their
appeal; (2) “for expedited consideration” of the Motion for Stay; and (3) “for a temporary stay
pending the Court’s disposition” of the Motion for Stay and, if denied, “pending disposition of
any stay motion filed in the court of appeals.” (Doc. 229 at 1.) At the telephonic conference held
on February 10, 2016, bearing in mind both Plaintiffs’ explicit opposition as well as the
expiration of the temporary restraining order—and thus any protection that it afforded any and
all parties and persons—upon the Ruling’s release, (Doc. 233 at 8–9), this Court denied
Defendant’s request for a temporary stay pending consideration of the Motion for Stay. (Doc.
231 at 1–2.) In addition, with Defendant’s consent, this Court authorized Plaintiffs to more
formally respond to the Motion for Stay and the Supporting Memorandum on or before February
12, 2016, (Id. at 2), effectively denying Defendant’s second request for a ruling on its recent
motions on or before that date, (Doc. 229 at 1).
Following the hearing, one issue, the subject of this order, remained: whether this Court
should stay its own Ruling and Judgment. (See, e.g., Doc. 229-1.)

B.

PARTIES’ ARGUMENTS

1.

Defendant’s Points
The Defendant correctly states the four factors which must be considered in determining

whether a stay should issue —“(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 interested in the
proceeding; and (4) where the public interest lies,” Abbott I, 734 F.3d at 410 & n.10 (internal

5 of 30

quotation marks omitted)—and now maintains that all four favor her request. (Doc. 229-1 at 5–
14.)
Initially, Defendant contends reversal of the Ruling and Judgment on “either of two
grounds” is “likely.” (Id. at 6.) First, as she has read the Ruling and this circuit’s precedent, this
“Court’s ‘large fraction’ analysis departs from the Fifth Circuit’s ‘large fraction’ analysis.” (Id.
at 6.) In making this conclusion, Defendant describes this Court’s two alternative methods for
calculating large fraction in the following terms. At first, the Court took the annual number of
abortions provided in 2013 by the four Louisiana-based doctors who have yet to obtain the
admitting privileges required by Act 620, divided by the total number of abortions provided in
Louisiana in 2013 (“Method 1”). As an additional calculation, this Court then took the number of
Louisiana women of reproductive age, minus the number of abortions performed in 2013 by nonprivileged Louisiana doctors, divided by the Louisiana reproductive-age women (“Method 2”).
(Id. at 7–8.) The controlling standard, by Defendant’s reckoning, mandated that this Court
“determine[] the fraction of women burdened by an admitting privileges law by (1) taking the
number of women who must travel significantly farther to reach a qualified provider, and (2)
dividing by all women of reproductive age in the state.” (Id. at 6 (citing to Abbott I, 734 F.3d at
415, and Abbott II, 748 F.3d at 598, 600).
Defendant discerns fatal flaws in the Court’s two methods. (Id.) In her view, this Court’s
Method 1 employed an “incorrect” numerator as well as an “incorrect” denominator. (Id. at 8.)
The numerator should not have incorporated the actual and documented number of abortions
provided by the relevant doctors in 2013. (See Doc. 216 ¶¶ 308, 311, at 82.) Instead, it should
have used the number of abortions that these doctors could theoretically provide while working
“at a considerably higher rate” and at a “higher capacity.” (Doc. 229-1 at 8.) Next, the

6 of 30

denominator should not have been the total number of abortions provided in Louisiana. (See
Doc. 216 ¶¶ 308, 311, at 82.) Rather, the number of abortions provided to non-Louisiana women
in every Plaintiff clinic should have been subtracted. (Doc. 229-1 at 8.) Such a subtraction, she
argues, would have necessarily led to a “significantly lower” denominator. (Id.) As to Method 2,
Defendant contends it exhibits one defect. In Defendant’s words, “[t]he numerator should have
been the number of Louisiana women required to travel significantly farther to reach a qualified
provider,” (Id. at 7), not the number of women of reproductive age, (See Doc. 216 ¶ 311, at 82).
In sum, Defendant concludes that reversal is likely “because the Court’s analyses used incorrect
numbers that significantly inflated the percentages of Louisiana women allegedly denied
abortion access.” (Doc. 229-1 at 8.)
Moving beyond the large fraction test, Defendant adds that she is likely to prevail due to
this Court’s incorrect application of administrative law’s pendent principle. In her words, this
Court “legally erred in disregarding the Secretary’s determination that Doe 2 had qualifying
privileges at Tulane” and “exceeded its jurisdiction” by doing so. (Id. at 9.) In support of this
second “likely” ground, Defendant makes three points.
First, because the Secretary determined that one doctor, Doe 2, could continue legally
providing abortions” at one of the three party clinics, this Court overstepped its rightful bounds.
(Id.) Thus, even as she denies the applicability of this body of law’s seminal case, Chevron
U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694
(1984), describing any “Chevron analysis”5 as “inappropriate,” (Doc. 229-1 at 9, 10), she
maintains that her interpretive decision “should have settled the question of the Act’s impact on

5

The Supporting Memorandum leaves it unclear whether this phrase is being used as a shorthand
for all forms of agency deference, a fact noted by this Court in the Ruling. (See Doc. 216 ¶ 236,
at 64.)
7 of 30

Doe 2’s ability to continue providing abortions.” (Id. at 9–10.) In other words, the law’s
“indisputable” practical effect resolved any constitutional issues, for the then-Secretary, “the
state official charged with enforcing the Act, made a sworn declaration that Doe 2’s privileges
were satisfactory and allowed him to continue providing abortions at Causeway.” (Id. at 9
(referring to JX 191 ¶ 6).) Even while this decision merited deference as the official charged
with enforcing Act 620, then, this case did not present the classic scenario suitable for the
application of a “Chevron-type analysis”: “[A]ggrieved plaintiffs challeng[ing] an agency’s
interpretation of a law as exceeding the agency’s statutory authority.” (Id. at 9 & n.2 (citing to
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2439, 189 L. Ed. 2d 372 (2014), and Women’s
& Children’s Hosp. v. State, 2007-1157 (La. App. 1 Cir. 02/08/09); 984 So. 2d 760, 762, 766).)
Second, Defendant contends that this Court should have still accepted her interpretation
of the law as incontestable and unreviewable, her interpretive declaration obviating this Court’s
authority to review Act 620’s constitutionality. This is so, Defendant argues, because “[a] federal
court lacks independent authority to interpret state law or to bind state officials to its
interpretation of state law.” (Id. at 10 (quoting Pennhurst v. Halderman, 465 U.S. 89, 106, 104 S.
Ct. 900, 911, 79 L. Ed. 2d 67 (1984)), 10 n.3 (citing for support Earles v. State Bd. of Certified
Pub. Accountants of La., 139 F.3d 1033, 1039 (5th Cir. 1998)); Saahir v. Estelle, 47 F.3d 758,
761 (5th Cir. 1995); and Hughes v. Savell, 902 F.2d 376, 378 & n.2 (5th Cir. 1990)).
Concededly, “a federal court has limited authority to interpret state law in a diversity case,” but,
“[i]n a federal question case like this one, . . . a federal court has no authority to tell a state
official how to interpret state law, even if the court would reach a different conclusion on its
own.” (Id. (citing to Lelsz v. Kavanaugh, 807 F.2d 1243, 1252 (5th Cir. 1987)).) By not
accepting the Secretary’s interpretation of Act 620 in preliminarily adjudicating its apparent

8 of 30

unconstitutionality, Defendant contends that this Court therefore defied the rule set forth in
Pennhurst.
Third, Defendant argues that this Court lacked any jurisdiction because Doe 2 himself has
no standing to challenge the Secretary’s application of Act 620 and even benefitted from her then
chosen construction. (Id. at 10–11.) Doe 2 “merely speculated that a future Secretary might
change her mind. . . . [, b]ut plaintiffs lack standing to challenge unknowable future applications
of a law.” (Id. at 11 (citing to Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147, 185 L. Ed.
2d 264 (2013)). Like Doe 2, she argues, this Court “lacked jurisdiction to enjoin the Act based on
speculation about how future Secretaries might apply it [to Doe 2 as well as other doctors]—
especially on a facial challenge.” (Id. at 10–11.) To summarize, the Court’s alleged error was not
to “accept[] as fact the Secretary’s approval of Doe 2’s . . . privileges” as consistent with Act
620’s mandate or treat her construction of a plain law, as encapsulated in a single declaration,
(Id. at 9), as that statute’s singularly binding and conclusive reading. (Id. at 11.)
Thereupon, Defendant contends that the other three factors required for a stay pending
appeal, when set against this professed likelihood, militate in her favor. As to the second—
whether she will be irreparably harmed—she insists no reasonable doubt about this possibility
can be raised, as “[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm
of denying the public interest in the enforcement of its laws.” (Id. at 12 (citing Abbott I, 734 F.3d
at 419).) As to the fourth—the public’s interest—Louisiana’s “interest and harm” has “merge[d]
with that of the public,” by implication rendering any other public concern irrelevant. (Id.
(quoting Abbott I, 734 F.3d at 419).) She explicitly discounts the pertinence of the third factor—

9 of 30

“whether the issuance of a stay will substantially injure the other parties interested in the
proceeding”—based on her perceived likelihood of appellate success.6 (Id.)

2.

Plaintiffs’ Opposition
Filed on February 12, 2016, pursuant to this Court’s order, (Doc. 231), the Opposition

counters Defendant’s every point with Plaintiffs’ own ten reasons for why a stay must not be
allowed, “[n]one of the relevant factors, nor consideration of equity, weigh[ing] in favor of a
stay.” (Doc. 232 at 2.)
The first five deal with the validity of this Court’s large-fraction analyses. First, Plaintiffs
argue that, since “this Court need[ed] only find that the challenged statute imposes an undue
burden on the women whom Plaintiff serves,” the large fraction test “need not even be met in
order for the Fifth Circuit to affirm this Court’s injunctive relief.” (Id. at 3.) For this reason,
Defendant’s attack, (Doc. 229-1 at 6–8), on this Court’s two mathematical computations, (See
Doc. 216 ¶¶ 305–15, at 81–83), “misses the mark.” (Doc. 232 at 2.) Second, regardless of the
foregoing, Plaintiffs contend that this Court properly applied the large fraction test. While
Defendant “argues that the ‘large fraction’ test requires an analysis of distance traveled by
women to reach an abortion provider,” (Id. at 3 (construing Doc. 229-1 at 6)), she has
“mistaken[ly]” construed this test, since “a substantial obstacle in the undue burden analysis can
take different forms.” (Id. at 3.) Rather, Casey “had nothing to do with driving distances.” (Id. at

6

The Supporting Memorandum’s final substantive paragraph states the reasons for the Motion
for Stay’s expedited consideration. (Doc. 229-1 at 12.) Though this order was not issued by
Friday, February 12, 2016, as requested, it was issued on the first business day thereafter so as to
allow Plaintiffs to respond in the interest of fairness and justice. Cf. FED. R. CIV. P. 1.
Regardless, the reasons summarized therein have no bearing on the Motion for Stay’s substantive
merits, as analyzed in this order. See infra Part III.B.
10 of 30

3–4 (construing Casey, 505 U.S. at 887–95).) As the Fifth Circuit has recognized, “Casey
counsels against striking down a statute solely because women may have to travel long distances
to obtain abortions,” (Id. at 4 (emphasis added) (quoting Abbott II, 748 F.3d at 598).)
Third, Plaintiffs characterize “Defendant’s assertion that a ‘large fraction’ of women who
seek abortions from Louisiana” will not be impacted when one doctor, rather than six, can
legally provide such operations as “def[ying] common sense.” (Id. at 4–5.) Fourth, the Court’s
calculations (and related findings) “were supported by substantial record evidence.” (Id. at 5.)
Fifth, Plaintiffs address Defendant’s argument that this Court should have excluded nonLouisiana women from its calculations by stressing Casey’s focus on “women for whom the law
is a restriction, not women of a particular state for whom the law is a restriction.” (Id. (emphasis
in original)) Casey did not even “mention[] the residency of the women affected by the
challenged requirements.” (Id. (construing Casey, 505 U.S. at 894).) Thus, because “Act 620
restricts the rights of all Americans seeking an abortion in the state of Louisiana” and because
the large fraction test “contains no residency test,” Defendant’s reading lacks any legal support.
(Id.) As further support for this proposition, Plaintiffs note that the Constitution forbids a state
from infringing on the fundamental rights of out-of-state residents. (Id. (citing U.S. CONST. art.
IV, § 2, and Corfield v. Coryell, 6 F. Cas. 546, (C.C. E.D. Pa. 1823)).) Defendant has essentially
asked this Court to treat such women as “having no weight” for ascertaining the constitutionality
of a restriction on a fundamental right, (Id.), though “[a] law that deprives out-of-state women of
their constitutional rights is flatly unconstitutional,” (Id. (citing Doe v. Bolton, 410 U.S. 179,
200, 93 S. Ct. 739, 751–52, 35 L. Ed. 2d 201 (1973)).)
The next two reasons concern Defendant’s second argued ground for reversal. While
Defendant insists that this Court should have given “due deference” to the Secretary’s “opinion,”

11 of 30

which would have in turn diminished its large fractions, Plaintiffs first recount the nature of this
opinion. (Id. at 6.) The declaration came only “one business day before the [relevant] evidentiary
hearing,” and the Secretary later testified that she had “limited knowledge and understanding of
the hospital admitting privileges process, including what type of hospital admitting privileges
meet Act 620’s requirements.” (Id. (referencing Doc. 191 at 202–07).) In fact, argue Plaintiffs,
Defendant’s own expert contradicted her construction. (Id. at 7.) Second, pursuant to wellestablished principles of administrative law and statutory interpretation,7 this Court was bound to
construe Act 620 according to “its plain meaning” and, if it found the law to be both plain and
unambiguous, this alone determines its constitutionality. (Id.) Because the Court did so, Plaintiffs
maintain that precedent did not compel this Court to “uncritically defer to Secretary Kliebert’s
flawed interpretation of the law” or to disregard its terms “solely on the basis of . . . [her]
assertions.” (Id.) For these two reasons, the perception that this Court exceeded its jurisdiction is
“frivolous.” (Id. at 8.)
Plaintiffs’ last three arguments focus on the remaining three elements for a stay’s issue,8
Plaintiffs holding that “Defendant cannot establish that any of these factors weigh in her favor.”
(Id. (emphasis in original).) Frist, Defendant has not hinted at any “damage” that would follow
from the injunction’s imposition.9 (Id. at 9 (citing to Doc. 216 ¶ 408, at 110).) Second, regardless
of the harm to Defendant effected by the Ruling, a stay of the injunction would harm numerous

7

These principles are discussed below, see infra Part III.B.2, as well as in the Ruling, (Doc. 216
¶¶ 235–49, at 64–69).
8

Plaintiffs also disparage Defendant’s attempt to address these issues in “two desultory
sentences.” (Doc. 232 at 8.)

9

This statement is somewhat inaccurate. While Defendant did not prove any type of damages at
trial, she does now maintain that she will suffer a form of irreparable harm. (Doc. 229-1 at 12.)
Whether that form of harm outweighs others’ injuries or the totality of the public interest is an
entirely separate question. See infra Part III.B.2–5.
12 of 30

parties and persons, including the Plaintiffs, their physicians, and their patients. (Id. (citing to
Doc. 216 ¶¶ 403–06, at 109–10).) Third, even as Defendant states that the public interest has
merged with the Secretary’s own and “offers a circular complaint,” “the public interest is best
served by not enforcing an unconstitutional state law.” (Id. (emphasis added) (citing to Doc. 216
¶ 409, at 111).)
As Plaintiffs ultimately conclude, with only compelling circumstances sufficient to
support a stay, Defendant’s purported failure to make a “strong showing that she is likely to
succeed on the merits” and “to meaningfully address the remaining factors” compels denial of
the Motion for Stay. (Id. at 9–10.)

III.

DISCUSSION

A.

GOVERNING STANDARD
Pursuant to Federal Rule of Appellate Procedure 8(a)(1)(A), “[a] party must ordinarily

move first in the district court for . . . a stay of the judgment or order of a district court pending
appeal.” FED. R. APP. P. 8(a)(1)(A); Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 95 (1st Cir.
2003). The district court must thereupon consider four factors in deciding whether to grant such a
stay: “(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 interested in the proceeding; and (4)
where the public interest lies.” Abbott I, 734 F.3d at 410 & n.9 (relying on, among others, Nken
v. Holder, 556 U.S. 418, 425–26, 129 S. Ct. 1749, 1756, 173 L. Ed. 2d 550 (2009)); see also,
e.g., Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 712 (5th Cir. 2015) (quoting id.);
Woodfox v. Cain, 789 F.3d 565, 568–69 (5th Cir. 2015) (same). The movant bears the burden of

13 of 30

showing each and every circumstance, and a stay “is not a matter of right, even if irreparable
injury might otherwise result to the appellant.” Nken, 556 U.S. at 433–34; see also, e.g., Lair v.
Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (citing id.). Although a particularly strong
likelihood of success may negate the need to prove extensive harm, “an adequate showing” as to
all factors must still be made. Abbott I, 734 F.3d at 419; cf. Golden Gate Rest. Ass’n v. City &
Cnty. of San Francisco, 512 F.3d 1112, 1119 (9th Cir. 2008) (“[T]he standard for granting a stay
is a continuum.” (internal quotation marks omitted)).
Like the injunctive remedy that it so resembles, a stay is “always an extraordinary
remedy.” Bhd. of Ry. & S.S. Clerks, etc. v. Nat’l Mediation Bd., 374 F.2d 269, 275 (D.C. Cir.
1966); accord, e.g., Nabers v. Morgan, No. 3:09-cv-00070-CWR-FKB, 2011 U.S. Dist. LEXIS
28408, at *3, 2011 WL 830217, at *3 (S.D. Miss. Mar. 4, 2011) (quoting id.). The burden upon
the movant is accordingly a heavy one. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d
988, 990 (D.D.C. 2006); see also, e.g., Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs.,
Ltd., No. 04 Civ. 4991 (RJH), 2004 U.S. Dist. LEXIS 24079, at *8, 2004 WL 2734562, at *2
(S.D.N.Y. Nov. 29, 2004); U.S. v. Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 44
F.3d 1082, 1084 (2d Cir. 1995). In the course of this analysis, imperfectly and roughly, equities
must be balanced. See, e.g., Winter v. NRDC, Inc., 555 U.S. 7, 23, 129 S. Ct. 365, 376, 172 L.
Ed. 2d 249 (2008) (“Even if plaintiffs have shown irreparable injury . . . , any such injury is
outweighed by the public interest and the [balance of the equities].”); Cuomo v. U.S. Nuclear
Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985) (denying motion for stay when “the
petitioners . . . failed to establish that they have a substantial case on the merits, and . . . further
failed to demonstrate that the balance of equities or the public interest strongly favors the
granting of a stay”).

14 of 30

B.

APPLICATION

1.

Likely Success on the Merits

(a)

Likelihood of Reversal for Failure to Apply Defendant’s Version of the Undue Burden
Test
For Defendant to merit a stay on this first ground, she must prove that the Court’s

application of the standard set forth in Roe, Casey, and their Fifth Circuit descendants was in
error. Under that precedent, the ultimate question for the Court was whether a likely effect of Act
620 is to place an undue burden or substantial obstacle in the path of women’s right to an
abortion. As noted above, see infra Part II.B.1, Defendant reduces the relevant test to a single
formulation: “the Fifth Circuit determines the fraction of women burdened by an admitting
privileges law by (1) taking the number of women who must travel significantly farther to reach
a qualified provider, and (2) dividing by all women of reproductive age in the state.” (Doc. 229-1
at 6 (citing to Abbott I, 734 F.3d at 415).) Her entire brief as to the probability of success on this
first ground depends upon the incontestable soundness of this particular construction.
When Roe, Casey, Abbott I, Abbott II, and other recent cases are examined in toto,
however, one conclusion follows: Defendant has read too narrowly the Fifth Circuit’s test for
determining whether the burden is “undue” or the obstacle “substantial” by arguing that the sole
method for determining undue burden or substantial obstacle rests on the distance a woman must
travel to reach a qualified provider. (Doc. 229-1 at 6.) While it is true that the Fifth Circuit’s
recent jurisprudence considered distance travelled as a factor, see, e.g., Abbott I, 734 F.3d at 415;
Abbott II, 748 F.3d at 597–98, these cases do not hold or suggest that this is the only way that
undue burden can be measured, see, e.g., Currier, 760 F.3d at 457–58 (holding that where the
effect of the law is to remove all access to abortions within a state, the law is unconstitutional).

15 of 30

Instead, since Casey, whether an undue burden exists has always been more than just a question
of miles traveled. See, e.g., Casey, 505 U.S. at 878 (“Unnecessary health regulations that have
the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose
an undue burden on the right.”). The full panoply of “effects within the regulating state” must be
considered; distance is only one salient factor. See Currier, 760 F.3d at 457, 458.
Here, the critical issue is not distance but availability and access. In this case, the
evidence showed that the effect of implementing Act 620’s admitting privileges requirement
would be to eliminate altogether the ability at least four of Louisiana’s six abortion providers to
perform abortions in Louisiana. (Doc. 216 ¶¶ 305–21, at 405–06.)10 Of the two remaining
doctors able to perform abortions, one would be unable to do so at one of the two facilities where
he now performs abortions. (Id.)
Further, no fewer than three of Louisiana’s five abortion facilities would be left without
any provider and therefore would likely close. (Id.)11 This would leave, at most, two facilities
with half their normal staff of physicians to serve the entire state which, the evidence showed,
could not be done. (Id.) This would result, regardless of the distances to be travelled, in a large
fraction of women being unable to get an appointment at a Louisiana abortion facility at all. This
would cause significant and potentially dangerous delays for women seeking an abortion which,
in turn, would cause an increased health risk for the patient. (Id.) It would also result in an

10

In its Ruling, the Court found as a matter of fact that Act 620 would cause the loss of five of
Louisiana’s six abortion physicians. (Doc 216 ¶¶ 298–302 at 78–80, ¶ 305 at 81.) However,
because the reasons given by Dr. Doe 3 for discontinuing his abortion practice cannot be
considered under Fifth Circuit precedent, Doe 3’s likely departure from abortion practice was not
considered. (Id. ¶ 363, at 98.)
11

If Doe 3’s likely departure could be considered, four of five of Louisiana’s six abortion
facilities would close. (Doc. 216 ¶¶ 305–21, at 81–85.) However, for reasons stated above, it was
not.
16 of 30

increased risk of self-performed, unlicensed and unsafe abortions. (Id.) These are but some of the
deleterious effects likely to flow from Act 620’s enforcement, all of which must be borne in
mind pursuant to Casey’s clear terms.
In sum, the Court rejects Defendant’s suggestion that distance travelled is the sole criteria
for gauging undue burden. Regardless of the issue of travel distance, Act 620’s admitting
privileges requirement would place a substantial obstacle in the path of a large fraction of
women seeking an abortion in Louisiana. Casey itself, as Plaintiffs persuasively stress, (See Doc.
232 at 5), did not make distance the sole lodestar for measuring an undue burden; even in
highlighting the usefulness of distance in this limited regard, neither has the Fifth Circuit. As
such, Defendant’s first argument seems unlikely to prevail on appeal.

(b)

Viability of Defendant’s Proposed Numerator and Denominators
Without citing to a single case so holding, (See Doc. 229-1 at 7–8), Defendant next

argues that comparing the number of women no longer able to get an abortion in Louisiana
(because of the probable loss of two thirds of the abortion physicians in Louisiana) to either the
number of women seeking abortions in Louisiana or the number of women of reproductive age is
not an “analysis prescribed by circuit law.” (Id. at 7.) As this Court explained in the Ruling, (Doc
216 ¶¶ 35–58), in determining whether a law has caused a substantial obstacle to be placed in the
path of a large fraction of women seeking an abortion, the Fifth Circuit’s “binding precedent”
requires that the number of women of reproductive age be used as the denominator. Cole, 790
F.3d at 589 (citing Abbott I, 734 F.3d at 414; Abbott II, 748 F.3d at 598; and Lakey, 769 F.3d at
299). But, because there is some suggestion that the denominator can consist only of women

17 of 30

“seek[ing] an abortion,” Cole, 790 F.3d at 589 (quoting Lakey, 769 F.3d at 299), this Court used
both numbers, the results equally unconstitutional.
Defendant begins with criticism of the numerator used by the Court: the number of
patients who would no longer have ready access to an abortion because of the severely reduced
number of available physicians and clinics. (Doc. 229-1 at 7–8). This number was calculated by
subtracting the number of women being treated by doctors who would no longer be able to
provide abortions because of Act 620, from the number of women who seek abortions in
Louisiana annually. Alternatively, the Court subtracted that number of women from the total
number of women of reproductive age in Louisiana.
The first basis for Defendant’s attack is factual: Defendant’s contention that “undisputed
testimony” shows that the two doctors unaffected by Act 620, Doctors John Doe 3 (“Doe 3”) and
John Doe 5 (“Doe 5”), could have performed more abortions than they were actually performing.
(Id. at 8.) This, argues Defendant, “significantly inflate[s]” the percentage of women denied
access to abortion. (Id. at 7.) The Court is unpersuaded by this argument.
The source for the Court’s finding that Doe 5 performed 2,950 abortions in 2013, (Doc.
216 ¶ 308, at 82), was Doe 3’s Declaration, (JX 110 ¶ 7), in which he stated that he performed
approximately 2,000 abortions at Delta Clinic and 950 abortions at Woman’s Clinic. (JX 110 ¶
7). The testimony cited by Defendant is not inconsistent with this conclusion. Doe 5 testified
that, “in a typical week” he performed between 40 to 60 surgical abortions and 20 to 30 chemical
abortions. (Doc 168-6 at 8.) At another point of his testimony, he lowered his estimate to 40 to
60 procedures per week “on average.” (Id. at 15.) Given the fact that it is likely that Doe 3 is not
performing abortions 52 weeks per year, the estimated ranges given in his deposition are
consistent with the yearly estimate given in his Declaration. The Court carefully weighed the

18 of 30

evidence on this point and concludes that this number used in the Court’s calculation is well
supported in the record.
Doe 3 has an active general obstetrical practice in addition to his abortion practice. (Doc.
216 ¶ 56, at 22.) In his abortion practice, he testified that he sees approximately 20-30 abortion
patients per week. This testimony was the basis for the Court’s conclusion that, (assuming a 50
week work year), Doe 3 was seeing approximately 1,000 to 1,500 patients per year (Id. ¶ 58, at
22.) Defendant points to Doe 3’s testimony that “there have been occasions at Hope when you’ve
provided between 40 and 50 abortions in one day [],” (Doc. 190 at 155), to argue that the Court’s
conclusion was in error. However, to base Doe 3’s yearly abortion rate on an aberrational single
day number, as Defendant suggests, would fly in the face of the weight of the evidence,
contravene both common sense and reality, and unrealistically deflate the number of women
denied access to abortion. It is the Court’s duty to predict the realistic effect of Act 620 on the
right of women to obtain an abortion in Louisiana. It is not for the Court (or for the Defendant) to
presume that a party will choose to make the exceptional into the typical or to somehow force a
person to abandon their every other professional effort just so as to manufacture a better number.
Rather than indulging in speculation, the Court carefully weighed the evidence on this point and
concludes that its calculation is well supported by the record.
Defendant thereafter contends that the Court erred in its alternative use of the total
number of abortions performed in Louisiana in calculating the numerator because this population
includes some patients from outside Louisiana. (Doc. 229-1 at 8.) Defendant points to evidence
that non-Louisiana residents make up 31% of the patient population at one of the six clinics,
(Hope in Shreveport). (Doc. 216 ¶ 31, at 18.) The cogency of this ground is undermined by three
facts.

19 of 30

The first two are evidentiary. First, Defendant herself provided no additional evidence as
to what percentage, if any, the other clinics’ patients are from out of state, her present argument
predicated on extrapolation. Relatedly, unless Louisiana somehow intends to bar its borders to
out-of-state residents, Hope’s capacity (and that of the other clinics) will remain practically
circumscribed by its (and their) total number of patients, whether they come from within or
without this state. Certainly, neither logic nor law compel this Court to pretend that such visits
both do not happen and do not affect the ability of the clinics to provide abortion services to
women in Louisiana as well as the women of Louisiana. Cf. Cole, 790 F.3d at 597–98
(describing it as “wholly inequitable to ignore . . . reality”). Second, even if one were to remove
non-residents from the large fraction analysis, the percentage of Louisiana women denied access
to an abortion remains the same, roughly 55%.12 Mathematically, a fraction greater than 50% is
still a large one.
Third (and more importantly), Defendant provides no legal support for her contention
that non-residents must be excluded in the large fraction analysis, Casey holding to the contrary.
As the Supreme Court there observed, “[l]egislation is measured for consistency with the

12

For this analysis, the Court accepts Defendant’s premise that 31% of the total annual patient
population for all abortion facilities were nonresidents. This means that 69% of the total annual
patient population for all abortion facilities were Louisiana residents. The total annual patient
population for all abortion facilities was 9,976. 69% of this number is 6,883. The total number of
women obtaining an abortion by Does 3 and 5 after Act 620 is enacted is 4,500. Critically, the
same 31/69% ratio must be applied again at this point; this is critical because Louisiana women
would have to compete with non-residents for the limited number of available abortion
physicians, and access would likely be in the same proportion as with the total patient
population. This means that 69% percent of women obtaining an abortion after Act 620 is
implemented are Louisiana residents, and this total (69% of 4,500) is 3,105. Thus, the total
number of women denied access to abortions after Act 620 - that is, 3,105 (total number of
Louisiana women obtaining abortions after the Act) divided by 6,883 (total number of Louisiana
women obtaining abortions before the Act) - is about 55%. 55% is, by any reasonable measure, a
large fraction.
20 of 30

Constitution by its impact on those whose conduct if affects”; as it explicitly stated, “[t]he proper
focus of constitutional inquiry is the group for whom the law is a restriction.” Casey, 505 U.S. at
894. Similarly telling language appears in Lakey. See Lakey, 769 F.3d at 299 (emphasizing that
the appropriate denominator includes “includes all women affected by these limited options,” as
the relevant requirement “applie[d] to every abortion clinic in the State, limiting the options for
all women in Texas who seek an abortion” (emphases added)). Not to be understated, this
understanding of the inviolability of a constitutional right can be partly justified by the
Constitution’s Privileges and Immunities Clause. U.S. CONST. art. IV, § 2, cl. 1; see, e.g., Sup.
Ct. of N.H. v. Piper, 470 U.S. 274, 281 n.11, 105 S. Ct. 1272, 1277, 84 L. Ed. 2d 205 (1985)
(“The Court has never held that the Privileges and Immunities Clause protects only economic
interests.” (citing Doe v. Bolton, 410 U.S. 179 (1973) (concluding that a Georgia statute
permitting only residents to secure abortions violated the Privileges and Immunities Clause)));
Bach v. Pataki, 408 F.3d 75, 90 (2d Cir. 2005) (“The Supreme Court has never held that the
Privileges and Immunities Clause protects only economic interests.” (internal quotation marks
omitted)). In fact, Cole itself cited to Doe, 790 F.3d at 569 n.5, in which the Supreme Court
forbade a state from restricting the abortion access of out-of-state residents on the basis of this
clause, Doe, 410 U.S. at 200.
For these reasons, this Court does not find that Defendant has made the strong showing of
likely success on the merits as to this issue required for a stay to be granted.

(c)

Likelihood of Reversal on Basis of Non-deference
Lastly, this Court finds that Defendant’s administrative law argument is not a likely

ground for reversal. In Defendant’s view, the fact that she has once declared her intent to

21 of 30

interpret Act 620 in a way that minimizes its effects upon Doe 2 “settle[s] the question of the
Act’s impact,” her authority to enforce the law affording her discretion to do so, and has
deprived this Court of the power to deem the law as written to be unconstitutional. (Doc. 229-1
at 9–10.) To do otherwise, Defendant argues, is to impermissibly “bind state officials to . . . [a
federal court’s] interpretation of state law.” (Id. at 10.)
Defendant’s first point, however, cannot be squared with the binding principle that
“[a]gencies exercise discretion only in the interstices created by statutory silence or ambiguity.”
Util. Air Regulatory Grp., 134 S. Ct. at 2442; see also, e.g., Sexton v. Panel Processing, Inc., 754
F.3d 332, 336 (6th Cir. 2014) (rejecting an agency interpretation as contrary to the statutory
language as interpreted). As this Court stressed in the Ruling, “no deference is owed to an
opinion contrary to . . . [a] law’s unambiguous and plain meaning.” (Doc. 216 ¶ 236, at 64.)
Under both Louisiana and federal law, deference is hence only given when the statute is truly
“ambiguous” regarding the precise “question at issue” and if the agency’s interpretation is a
“reasonable” and hence “permissible construction of the statute” at hand. (Id. ¶¶ 237–38, at 65–
66.) In other words, if the law’s certain meaning can be discerned via the standard array of
interpretive tools, Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 846, 136 L. Ed.
2d 808 (1997), an administrative actor cannot imbue its text with any other meaning by
exercising its supposed discretionary prerogative, see, e.g., Doctors Hosp. of Augusta v. Dep’t of
Health & Hosps., 2013 1762 (La. App. 1 Cir. 09/17/14); 2014 La. App. Unpub. LEXIS 481, at
*19–20, 2014 WL 4658202, at *7. Despite the rise of the administrative state, then, what was
said in 1803 remains equally true today: “It is the province and duty of the judicial department to
say what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803), an agency
accorded deference solely when a law’s plain and unambiguous import is not susceptible to

22 of 30

definite derivation, see Salazar-Regino v. Rominski, 415 F.3d 436, 448 (5th Cir. 2005) (citing
this maxim in the context of weighing the reasonableness of an agency’s particular
interpretation). Plainly and unambiguously, Act 620 does not recognize Doe 2’s privileges as
sufficient. Notwithstanding the Secretary’s assessment, that plain meaning must control when a
court must classify a physician’s so-called “admitting privileges” for its purposes, a fact that
depletes Defendant’s second ground of its essential likelihood.
Defendant’s second claim, meanwhile, misconstrues the modest effect of the Ruling and
Judgment. In deeming the Secretary’s interpretation unpersuasive due to its inconsistency with
the Act’s express text, her own expert’s statements, and her less than clear testimony, this Court
did not order her to conform to its own view of state law, as Pennhurst and its progeny forbid,
see, e.g., Pennhurst, 465 U.S. 89. Whether she would or would not act as the statute plainly
commands was not relevant to whether Act 620, as written and enacted, imposed an undue
burden upon the exercise of a recognizable constitutional right. As such, this Court did not order
the Secretary to adhere to a particular state law or enforce its own construction of that statute.
Subject to a later trial, it preliminarily held the admitting privileges requirement to be
unconstitutional. The result of such a determination—that the Secretary cannot enforce an
unconstitutional state law—does not mean she was ordered to enforce it in accordance with this
Court’s own terms, as no enforcement was actually demanded.
In addition, Defendant has misread Pennhurst. In this seminal case, the Supreme Court
held that the Eleventh Amendment bars federal injunctive relief against a state official if (1) “the
judgment sought would expend itself on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment would be to restrain the Government from
acting, or to compel it to act,” and (2) “if the conduct to be restrained is within the scope of

23 of 30

authority delegated to the official by state law.” Pennhurst, 465 U.S. at 101 n.11, 102 (internal
quotation marks omitted). Thus, in other circumstances, federal jurisdiction over a claim based
on the existence of a federal question is not barred under Pennhurst even when “the resolution of
. . . constitutional issues . . . requires this court to ascertain what state law means.” Coalition of
N.J. Sportsmen, Inc. v. Whitman, 44 F. Supp. 2d 666, 673 (D.N.J. 1999). For this very reason, in
soundly rejecting an argument akin to Defendant’s own, the Third Circuit has observed—“The
ascertainment of state law is an everyday function of the federal court”—and clarified:
“[A]scertaining state law is a far cry from compelling state officials to comply with it.” Everett v.
Schramm, 772 F.2d 1114, 1119 (3d Cir. 1985); cf., e.g., Okpalobi v. Foster, 190 F.3d 337, 349
(5th Cir. 1999) (“We are convinced that Article III does not require a plaintiff to plead or prove
that a defendant state official has enforced or threatened to enforce a[n abortion-related] statute
in order to meet the case or controversy requirement when that statute is immediately and
coercively self-enforcing.”), superseded on other grounds, 244 F.3d 405 (5th Cir. 2001). No less
and no more was done by this Court in the Ruling when it rejected Kliebert’s construal,
embodied in a single declaration lacking in the formal trappings of the most considered agency
interpretations.
Three more observations are in order. First, even as she makes a plea for deference based
on her role as Secretary of DHH, Defendant simultaneously demands to be released from the
obligations to earn such deference. As emphasized above, as a matter of state and federal law,
such deference can only come when the law in question has a meaning neither plain nor
unambiguous. (See also Doc. 216 ¶ 236, at 64 (collecting the relevant cases).) The Secretary,
however, has insisted upon such deference without meeting a single predicate; more colloquially
put, she wishes to have her cake and eat it too. Second, no exercise of discretion can suddenly

24 of 30

transform an unconstitutional law into a constitutional stricture, and no administrative agent can
insulate a plain law from constitutional scrutiny by demanding that a court forsake its duty under
Article III. Cf., e.g., Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir.
1979) (noting that “there is clear Supreme Court authority that the probability of enforcement is
not relevant to a court'’ jurisdiction over an anticipatory challenge” to a statute). Due to this
reason, the extent to which the Secretary’s interpretation benefitted Doe 2 is irrelevant, as is his
possible lack of standing to sue her. Regardless of her opinion, his privileges still do not satisfy
the law as naturally construed, and as this Court is bound to apply the law’s plain and
unambiguous meaning, the beneficent effects of her construction cannot justify disregarding Act
620’s language. Just as surely, the questionable claim that Doe 2 may lack standing to sue the
Secretary13 does not mean he was not impacted by Act 620’s passage or enforcement,14 and the
fact that Kliebert’s successor could change her mind about how to enforce the law does not
deprive this Court of the power to declare it unconstitutional. Cf., e.g., Virginia v. Am.

13

“[W]here the plaintiff faces a credible threat of enforcement,” standing exists. Consumer Data
Indus. Ass’n v. King, 678 F.3d 898, 907 (10th Cir. 2012); cf. Babbitt v. UFW Nat’l Union, 442
U.S. 289, 298 99 S. Ct. 2301, 2308, 60 L. Ed. 2d 895 (1979) (finding standing where “a realistic
danger of sustaining a direct injury as a result of a statute’s operation or enforcement” existed
(emphasis added)). In these situations, a plaintiff is typically “not . . . required to await and
undergo [enforcement] as the sole means of seeking relief.” Consumer Data Indus. Ass’n, 678
F.3d at 907; see also, e.g., Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 9
(1st Cir. 2012) (“[T]he Supreme Court has made clear that when a plaintiff alleges an intention
to engage in a course of conduct arguably affected with a constitutional interest, but proscribed
by a statute, and there exists a credible threat of prosecution thereunder, he should not be
required to await and undergo a criminal prosecution as the sole means of seeking relief.”
(internal quotation marks omitted)); R.I. Ass’n of Realtors v. Whitehouse, 199 F.3d 26, 33 (1st
Cir. 2002) (“[T]he Supreme Court repeatedly has found standing to mount pre-enforcement
challenges to laws that had never been enforced.”).
14

In fact, that possibility strengthens the argument for denying deference to the Secretary’s
decision. To wit, if he could not “challenge the Secretary’s application of the Act under
Chevron,” (Doc. 229-1 at 10–11), whatever it is, the legal foundation for her exercise of
discretion should be clearly defined. Otherwise, injury with impunity may follow though both
Louisiana and federal law bar “arbitrary” and “capricious” administrative action.
25 of 30

Booksellers Ass’n, Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988) (holding
that the injury-in-fact requirement was met, in part, because “plaintiffs have alleged an actual
and well-founded fear that the law will be enforced against them”); Steffel v. Thompson, 415
U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (“[I]t is not necessary that [a party] first
expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims
deters the exercise of his constitutional rights.”). That variability is irrelevant when the plain
meaning leaves no other course open. Finally, even as it is still unclear what kind of deference
the Secretary would like this Court to give her, her opinion appears in a single declaration
submitted to this Court shortly before a hearing as a tool of litigation.15 (See Doc. 232 at 6.)
Even putting aside its dubiousness in light of the Secretary’s subsequent questioning, it simply
does not resemble the kind of formal agency opinions to which the greatest deference is owed.
See United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L. Ed. 2d 292 (2001)
(explicating the various forms of agency deference).
When controlling principles are applied, it is clear that Act 620, as drafted and signed,
does “pose[]” a “present barrier to Doe 2’s abortion practice in the New Orleans area,” (Doc.
229-1 at 11), an interpretation consistent with that of Defendant’s own expert, (See, e.g., Doc.
193 at 94, 123; Doc. 216 ¶¶ 241–42, at 67), and not strongly alleviated by her one declaration.
While well-established law compels this result, binding precedent clinches it: as the Fifth Circuit
itself has written, “[t]o determine the constitutionality of a state law, we ask whether the Act,
measured by its text in this facial attack, imposes a substantial obstacle to . . . previability[]
abortions.” Lakey, 769 F.3d at 293 (alteration in original) (emphasis added) (internal quotation

15

The relevant declaration was submitted on June 19, 2015, (Doc. 154), and her entire opinion is
embodied in a single paragraph, (Id. ¶ 6, at 3).
26 of 30

marks omitted). Hence, upon careful scrutiny, this final purported error thus does not form a
likely ground for reversal.

2.

Irreparable Harm to the Appellant
On this issue, the law is clear. “When a statute is enjoined, the State necessarily suffers

the irreparable harm of denying the public interest in the enforcement of its laws.” Abbott I, 734
F.3d at 419; see also, e.g., Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014). The second
element for a stay pending appeal has thus been suitably shown.

3.

Injury to Others
Yet, as the Ruling makes clear, Plaintiffs and other persons will also endure great harm if

Act 620 is enforced and thus if the Motion for Stay is granted. (Doc. 216 ¶¶ 364–91 at 99–106,
¶¶ 404–06 at 110.) The plaintiff clinics will face nearly insurmountable hurdles and may find
themselves without a doctor able to provide abortions to a single woman, operations so sharply
curtailed as to possibly prompt their closure; logically, their medical and administrative staff will
suffer derivative yet equally harmful effects. See, e.g., Jackson Women’s Health Org. v. Currier,
940 F. Supp. 2d 416, 424 (S.D. Miss. 2013), aff’d in part, 760 F.3d 448. Most significantly, the
women of Louisiana will face irreparable harms from the burdens associated with finding an
abortion clinic with sufficient capacity to perform their abortions; “unreasonable and dangerous
delays in scheduling abortion procedures” will likely follow from a decrease in the total number
of available doctors. (Doc. 216 ¶¶ 404–06 at 110.) Crucially, “the deprivation of [any and all]
constitutional rights,” whether arising from the First, Second, or Fourteenth Amendment, has
always “constitute[d] irreparable harm as a matter of law.” Cohen v. Coahoma Cnty., Miss., 805

27 of 30

F. Supp. 398, 406 (N.D. Miss. 1992) (citations omitted); see also, e.g., Deerfield Med. Ctr. v.
Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). Consequently, as with Act 620, the issuance
of a stay will likely inflict an array of substantial injuries on the sundry parties interested in this
proceeding, likely subjecting many to economic and physical injury and thousands of women to
harm as irreparable as Defendant’s own.16 These are harms to which Defendant has given no
persuasive response, (See Doc. 232 at 8–9), no “adequate” demonstration of this factor made,
(See Doc. 229-1 at 12).

4.

Public Interest
In addressing the final factor, Defendant maintains that its interest in enforcing Act 620

“merge[s] with that of the public.” (Doc. 229-1 at 12 (citing Abbott I, 734 F.3d at 419).) True,
“[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of
its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, 3, 183 L. Ed.
2d 667 (2012). But the public interest, for purposes of ordering a stay, is never so monolithic. In
declaring its apparent desire, no state entity, whether legislature or governor or both, annuls the
countervailing concerns and rights of a state’s every citizen. If so, this final factor will always
favor the issuance of a stay when a state law, though found to be likely unconstitutional, is

16

Thus, the Defendant misapplies Abbott I when she says that “[g]iven the State’s likelihood of
success on the merits, any showing of harm plaintiffs might make is not enough, standing alone
to outweigh the other factors.” (Doc. 229-1 at 12 (emphasis added) (citing Abbott I, 734 F.3d at
419).) First, Defendant has failed to show a likelihood of success on the merits. Further, in
Abbott I, the Fifth Circuit expressly stated that the appellant had “adequate[ly]” shown every
other factor, including “whether issuance of the stay will substantially injure the other parties
interested in the proceeding.” 734 F.3d at 419. The Fifth Circuit did not suggest that a strong
likelihood of success, even if found, somehow made “any showing of harm” irrelevant. (Doc.
229-1 at 12.) It simply stated the “strong harm” shown by a plaintiff was not itself enough
considering defendant’s sufficient showing of every other factor. (Id.)
28 of 30

challenged, no further analysis ever required. As case law well shows, however, the public
interest to be weighed is broader than a state’s asserted claim. Indeed, as the Fifth Circuit has
noted, “it is always in the public interest to prevent the violation of a party’s constitutional
rights,” Currier, 760 F.3d at 458 n.9 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.
2012)), and not too much forbearance is required when the relevant law has never gone into
effect, cf. R.I. Med. Soc’y v. Whitehouse, 66 F. Supp. 2d 288, 303 (D.R.I. 1999). Thus, two
different public interests here exist and must be set against each other, the state’s asserted claim
but one amidst many equally viable others.

5.

The Balance
As the foregoing shows, the balance of factors clearly calls for the denial of the Motion

for Stay. Defendant has failed to make the required strong showing of a likelihood of success on
the merits, and thus the first factor favors denial. Per binding precedent, the second factor favors
Defendant, but the third favors Plaintiffs as the injuries which others will endure with a stay’s
granting are likely to be substantial in comparison to Defendant’s lone form of irreparable injury.
As to the fourth factor, while there are competing public interests involved, preventing the
violation of a constitutional right, in this case, prevails, especially since denying the Motion for
Stay merely maintains the status quo.

IV.

CONCLUSION
For the foregoing reasons, the overall balance of factors and justice counsels against a

stay of the Ruling and Judgment. Based on the Supporting Memorandum, Defendant’s
probability of success is too low relative to the likely harms that will be inflicted upon Plaintiffs

29 of 30

(and others) and in light of the public interest, fully and holistically considered. Accordingly,
Defendant’s Motion for Stay Pending Appeal, for Expedited Consideration, and for
Temporary Stay, (Doc. 229), is DENIED.
Signed in Baton Rouge, Louisiana, on February 16, 2016.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

30 of 30