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Supreme Court of the United States No. 19A_____ IN THE Supreme Court of the United States PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER, WHOLE WOMAN’S HEALTH, WHOLE WOMAN’S HEALTH ALLIANCE, SOUTHWESTERN WOMEN’S SURGERY CENTER, BROOKSIDE WOMEN’S MEDICAL CENTER PA D/B/A BROOKSIDE WOMEN’S HEALTH CENTER AND AUSTIN WOMEN’S HEALTH CENTER, AND ROBIN WALLACE, M.D., Applicants, v. GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS; KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS; PHIL WILSON, IN HIS OFFICIAL CAPACITY AS ACTING EXECUTIVE COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION; STEPHEN BRINT CARLTON, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS MEDICAL BOARD; AND KATHERINE A. THOMAS, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS BOARD OF NURSING, Respondents. EMERGENCY APPLICATION TO JUSTICE ALITO TO VACATE ADMINISTRATIVE STAY OF TEMPORARY RESTRAINING ORDER ENTERED BY THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PATRICK J. O’CONNELL JULIE A. MURRAY Law Offices of Patrick J. O’Connell PLLC Counsel of Record 5926 Balcones Dr., Ste. 220 HANNAH SWANSON Austin, Texas 78731 Planned Parenthood Federation of America (512) 852-5918 1110 Vermont Ave., NW, Ste. 300 [email protected] Washington, DC 20005 (202) 973-4800 [email protected] [email protected] ADDITIONAL COUNSEL AND REPRESENTATION INFORMATION ON NEXT PAGE JENNIFER SANDMAN Planned Parenthood Federation of America 123 William St., 9th Floor New York, NY 10038 (212) 541-7800 STEPHANIE TOTI RUPALI SHARMA Lawyering Project 25 Broadway, 9th Floor New York, NY 10004 (646) 490-1083 MOLLY DUANE Center for Reproductive Rights 199 Water St., 22nd Floor New York, NY 10038 (917) 637-3631 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................................... ii STATEMENT ...............................................................................................................................5 A. The Governor’s Executive Order .......................................................................5 B. Abortion In Texas .................................................................................................7 C. The District Court’s First TRO ........................................................................10 D. The District Court’s Second TRO ....................................................................13 STANDARD OF REVIEW......................................................................................................16 ARGUMENT ..............................................................................................................................17 I. THE STAY IMPOSES SERIOUS AND IRREPARABLE INJURY ON APPLICANTS’ PATIENTS AND THE PUBLIC ..................................................................18 II. THE FIFTH CIRCUIT WAS DEMONSTRABLY WRONG IN ITS APPLICATION OF ACCEPTED STANDARDS TO ISSUE THE STAY ...............................22 A. Respondents Are Not Likely To Succeed On Their Mandamus Petition .............................................................................................22 B. Respondents Have An Effective Remedy ......................................................27 III. THIS COURT WOULD LIKELY GRANT REVIEW OF A WRIT OF MANDAMUS ENTERED BY THE FIFTH CIRCUIT .........................................................28 CONCLUSION ...........................................................................................................................30 APPENDIX .......................................................................................................................... App.1 CERTIFICATE OF SERVICE - i - TABLE OF AUTHORITIES Page(s) Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) ..................................................27 Cheney v. U.S. District Court for District of Columbia, 542 U.S. 367 (2004) ....................22 Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) .....................................................................23 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ..........................................................................22 Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992) ..........................................................................................................................23 Hollingsworth v. Perry, 558 U.S. 183 (2010) ...........................................................................16 Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) ...................................................................23 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) .............12, 15, 23, 24, 26 Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996) .............................................................23 June Medical Services L.L.C. v. Gee, 139 S. Ct. 663 (2019) ..................................................30 Kerr v. U.S. District Court for Northern District of California, 426 U.S. 394 (1976) ..........................................................................................................................27 Mistretta v. United States, 488 U.S. 361 (1989) ......................................................................29 MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015) ................................23 Nken v. Holder, 556 U.S. 418 (2009) .........................................................................................22 Office of Personnel Management v. American Federation of Government Employees, 473 U.S. 1301 (1985) ..................................................................................16 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ....................................................................................................................15, 26 Preterm-Cleveland v. Attorney General of Ohio, 2020 WL 1673310 (6th Cir. Apr. 6, 2020) .............................................................................................................13 Reynolds v. International Amateur Athletic Federation, 505 U.S. 1301 (1992) .................................................................................................................................16 Robinson v. Marshall, 2020 WL 1520243 (M.D. Ala. Mar. 30, 2020) .............................18, 28 - ii - Robinson v. Marshall, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020) ...............................13, 28 Roe v. Wade, 410 U.S. 113 (1973) ..............................................................................................23 Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992) ...........................................................23 South Wind Women’s Center LLC v. Stitt, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) .........................................................................................................13, 18, 28 Western Airlines, Inc. v. International Brotherhood of Teamsters, 480 U.S. 1301 (1987) ..................................................................................................16, 28 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) .............................8, 20, 24, 30 Wilson v. U.S. District Court for Northern District of California, 161 F.3d 1185 (9th Cir. 1998) .........................................................................................................27 DOCKETED CASES In re Greg Abbott, No. 20-50264 (5th Cir.) .................................................................7, 8, 11, 19 June Medical Services L.L.C. v. Gee, Nos. 18-1323, 18-1460 (U.S.) ....................................29 New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280 (U.S.) .................................................................................................................................29 Planned Parenthood Center for Choice v. Abbott, No. 1:20-cv-00323 (W.D. Tex.) ..................................................................................................................................24 Preterm-Cleveland v. Yost, No. 19-cv-00360 (S.D. Ohio) ......................................................18 United States Department of Homeland Security v. Regents of the University of California, No. 18-587 (U.S.) ................................................................29 STATUTES, RULES, AND REGULATIONS 28 U.S.C. § 1292 ...........................................................................................................................27 22 Tex. Admin. Code § 139.53..............................................................................................................................25 § 187.57 (emergency regulation adopted Mar. 23, 2020) .......................................6, 13 Tex. Gov’t Code Ann. § 418.012..............................................................................................................................5 § 418.173..............................................................................................................................5 - iii - Tex. Health & Safety Code § 171.012............................................................................................................................25 § 171.042..............................................................................................................................8 § 171.044..............................................................................................................................8
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