994 F.3d 774
6th Cir.2021Background
- Tennessee enacted a statutory abortion "waiting period" requirement that was challenged by reproductive-health providers; the district court enjoined the law after factual findings about delays and burdens on patients, especially regarding medication abortion.
- The State (Tennessee) sought a stay of the district court’s injunction pending appeal; a Sixth Circuit panel previously denied that stay in Bristol Regional Women’s Health Ctr. v. Slatery, 988 F.3d 329 (6th Cir. 2021).
- The Sixth Circuit granted en banc consideration and a majority voted to GRANT the State’s motion for a stay pending appeal and VACATED the earlier panel opinion.
- Two judges filed dissents: Judge Karen Nelson Moore would have denied the stay (adhering to the panel), and Judge Julia Smith Gibbons wrote separately explaining she finds the stay a close question and that the State has not yet shown it is likely to succeed on the merits under the Nken standard.
- Central legal question: whether Tennessee’s waiting-period law imposes an undue burden under Planned Parenthood v. Casey and whether the State has shown a likelihood of success on the merits sufficient to justify a stay pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to grant a stay of the district court’s injunction pending appeal | Stay should be denied because the law likely imposes an undue burden and plaintiffs/patients will suffer serious irreparable harms if injunction is lifted | Stay should be granted so the State can enforce its duly enacted law while appeal proceeds; precedents and similar statutes support constitutionality | En banc Sixth Circuit granted the stay and vacated the prior panel opinion denying it (majority). Two judges dissented. |
| Whether Casey precludes finding waiting periods unconstitutional here | Casey does not bless all waiting periods; each law must be judged on its factual record and whether it creates a "substantial obstacle" in a large fraction of relevant cases | Casey supports the general constitutionality of reasonable waiting periods; existence of similar statutes in other states bolsters that view | The en banc majority was willing to stay enforcement pending appeal; dissenters emphasized that Casey’s fact-specific inquiry counsels caution and that the State has not shown likely success. |
| Proper application of the Nken stay factors (especially likelihood of success) | Plaintiffs: the State has not shown a strong likelihood of success on the merits; other stay factors weigh against enjoining the injunction | State: Nken factors justify a stay; irreparable harm to the State from inability to enforce its law favors stay | Court granted stay; Judge Gibbons (dissent) emphasized that likelihood of success is the most important factor and concluded the State had not met that burden at this stage. |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (articulates standard and factors for stays pending appeal, emphasizing likelihood of success)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (framework for assessing whether abortion regulations impose an "undue burden")
- Bristol Reg’l Women’s Health Ctr., P.C. v. Slatery, 988 F.3d 329 (6th Cir. 2021) (panel opinion denying a stay; later vacated by en banc order)
- Cincinnati Women’s Servs. v. Taft, 468 F.3d 361 (6th Cir. 2006) (upholding an Ohio waiting period under a large-fraction test)
- A Woman’s Choice–E. Side Women’s Clinic v. Newsom, 305 F.3d 684 (7th Cir. 2002) (upholding an Indiana waiting period based on evidentiary record)
- Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999) (upholding Wisconsin waiting period where plaintiffs’ evidence failed to distinguish the case from Casey)
- Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992) (upholding Mississippi waiting period in absence of developed factual record)
- Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020) (noting that likelihood of success on the merits is often dispositive in stay analysis)
- Frank v. Walker, 769 F.3d 494 (7th Cir. 2014) (noting the centrality of likelihood of success among stay factors)