The Hope Clinic v. James R. Ryan, Attorney General of Illinois, and Richard K. Devine, State's Attorney of Cook County, Illinois
197 F.3d 876
7th Cir.
1999
Check Treatment

*1 876 812, persons jury. Apfel, Milner v. a class of See rights

tional or declare Cir.1998) (“If challenged law the Amend a under Fourteenth 817 “suspect” Flores, City equal 521 and all protection, ment. Boerne as denial of See 138 L.Ed.2d up S.Ct. with in de- U.S. the can come government (“The (1997) design of people [Four law is that the fense of the § text Amendment and the irrationally teenth] hated by happen hurt suggestion with the inconsistent irrationally by majority of vot- or feared Congress power to decree ers, law is argue difficult to Amendment’s Cleburne, substance of the Fourteenth rational.”); see also States.”). Rather, “[i]t on the restrictions However, gov- 105 S.Ct. 3249. province duty emphatically in this Ms. Wilson ernment case struck judicial department say to what the concern, accepted by stated because its Madison, Marbury law is.” Cranch court, was that she would become district 2 L.Ed. pay at- drowsy and would not be to congressional With due deference to legiti- during the trial. This is a tention legislation affecting the dis approach to rationally to related mate concern abled, to follow the lead this Court chooses of a fair trial for Harris. provision of our circuit and the di fellow Therefore, government’s use of its by rection indicated challenge emptory to Ms. strike Wilson conclude that disabled a sus disability to related her did not vi- Therefore, pect quasi-suspect class. equal protection olate the of either rationality apply review to claims of dis or Ms. Harris Wilson. persons crimination made this class. ease, government used III. CONCLUSION challenges to peremptory one of its strike disability, Ms. her or the Wilson because reasons, foregoing ruling For disability, her medication taken control permitting govern- district prone made drowsiness. Harris her juror ment to strike for reasons related deprived contends that her of disability is to her Affirmed. right jury tried selected non-discriminatory according criteria partici

and denied Ms. Wilson her jury

pate the civic ser above, chal peremptory

vice. As noted

lenges person’s made on basis

disability rationality under scrutinized Consequently,

review. the strike must be legitimate

rationally related the state’s

purpose selecting impartial jury. an

Ordinarily, a chal peremptory subject

lenge of a member of a class rationality review will not be scrutinized CLINIC, The HOPE However, by the court. because Harris Plaintiffs-Appellees, rationality contests Ms. Wil exclusion,

son’s we will discuss the peremptory gov exercised here. Attorney RYAN, had struck because of ernment Ms. Wilson Devine, K. toward or fear of and Richard animosity irrational County, Illi people, legiti disabled not be a State’s of Cook would nois, Defendants-Appellants. mate excluding reason for *2 Christensen, of petitions Dennis D. eration for certiorari. Plaintiffs-Appellants, Five other members of the court have voted the requested stay. The split means that there is no majority Doyle, Attorney in favor which means in turn Nicks, Dis and Diane M. will on mandates issue the date County, Dane trict Wis for in specified being order issued today. consin, Defendants-Appellees. The insistence of five members of the 99-2528, court on immediate implementation 99-2533. decision does assist United of Appeals, States Court presentation of fundamental constitutional questions highest court in our coun- try. Furthermore, explain I as be- Nov.

low, injunctions” the “precautionary opinion directs the (which district courts to enter of course yet have not been nor tested in law) any by design insufficient prevent harm irreparable while the pursue plaintiffs in their remedies the Su- I preme Court. therefore dissent from the deny court’s decision to stay Order By asserting planned “precau-

By the Court: injunctions” enough to fore- stays The motions for mandate harm, irreparable stall those who think the By divided denied court. stays have should be denied assumed the vote, pursuant App. to Fed. R. P. very some of questions answer to 41(b), the court has determined that put Supreme be before the Court in on mandates issue December doing, for certiorari. so did not Ripple participate Circuit they have the perspective misunderstood consideration decision of these adopt stage we final of pro- should eases. ceedings appeals. the court of When we stay consider of our mandate to allow the WOOD, DIANE P. Circuit Judge, act, Supreme longer we are no POSNER, Judge, ILANA whom acting single question as circuit. ROVNER, DIAMOND TERENCE T. instead how the views circuit’s EVANS, WILLIAMS, Judges, judges correspond expressed to the views join, country. other around That mandate. in which should the context measure harm, Displaying a regrettable disregard irreparable the risk of and from that importance of the issues implicated standpoint, considerable. We are split two about after dealing, views with matters life and proper death, within relate to a woman’s exercise country, court but around the and the of a constitutional inadequacy recognized. See, repeatedly Court has contemplates, e.g., these cases five Planned Parenthood Southeastern deny Pennsylvania Casey, members voted to (1992); motions for of the man- S.Ct. 120 L.Ed.2d 674 Roe v. Wade, dates Court’s consid- 93 S.Ct. indepen- talking about total of stay oppo- Even L.Ed.2d that the cir- dispute states, cannot nents in the two county prosecutors dent whether are divided cuits (also assumed just as real the risk the Illinois and Wisconsin like statutes small) that led by the *3 “precaution- constitutional. The laws are begin injunctions to with. precautionary that district courts ary” injunctions from to enter on remand expected addition, Posner’s In much do to ameliorate court will clearly the merits contemplated risk. The that many who will be un- there explains, to the exception add a “health” will not the D line able to draw sensible between statutes, apart and and Illinois Wisconsin “precautionary” procedure E that & doctor from the one on whom allegedly once injunctions, relied, great respect- majority number the D & X way to and protect, find some the American physicians (including they permit that states procedure Gynecologists, of Obstetricians and College (on pain imprisonment in of life prohibit ACOG) exception believe that a health remembering, lesser medical necessary. is and wrong turns out prediction potential and loss imprisonment region right, some women ACOG places). license both professional may health country find their that the be drawn is not Saying line can “precau- manently impaired even with the it, thing drawing no matter the same injunctions in tionary” place. majority what scienter standards the problem another as well There is doctors, who have little articulated. injunctions, which is “precautionary” gain donning legal hat personally from they do even exist how the line guessing close to its merits explained now. For lose, go, everything will inevi- dare that there is opinion, the thinks tably approach take a conservative enough danger improper enforcement will burden constitutional both statutes warrant the the rationale that patients. This is injunc- directing the step of issuance underlay positions of the Sixth and weeks, process may tions. But that take months, in the leaving legal Stenberg, void v. Eighth or even Circuits. See Carhart during meantime which states (8th Cir.1999); 1142,1149-52 192 F.3d Lit- if the Attor- utterly unconstrained. Even Services, Family P.A. Planning tle Rock counted neys General themselves can be (8th Cir.1999); Jegley, during position on not to abuse Corp. Medical Women’s Professional lacuna, all the same cannot be said for (6th Voinovich, 197-200 Cir. F.3d Law enforcement in both prosecutors. 1997). Indeed, Eighth thought decentralized, carried out local states is wording essentially clear that identi- it so elected prosecutors independently who pro- cal to that found in our two statutes Particularly during pe- the time officials. D E it procedure the & seems hibited prosecutors legally riod while local have found the statutes before it not to compelled decipher precau- whatever why proceeded which vague entered, injunction may some analysis. the undue burden See Planned prosecute providers decide to abortion procedures literally D E perform Iowa, & Inc. v. Greater Mil- Parenthood of statutory conform to definition Cir.1999). ler, 195 F.3d abortion,” “partial-birth which view, my only responsible constitutionally protected. concedes are standpoint can take probability prosecu- No doubt of such small, but, and role is given tions is the fact that its national the mandates Court’s for cer- America, UNITED STATES of I note in this connection that Plaintiff-Appellee, tiorari. General of Wis- counsel consin, in response to the PIGEE, Webb, Michael Ramon

motion, this court on informed November Lipscomb, and Denishha Ann 18, 1999, defendants-appellees Defendants-Appellants. oppose do not Christensen 98-2823 and 98-3212. stay. Although that notification reached 17, 1999, after its November United States Court of Appeals, *4 properly it is now us, plain and it language before tells us Argued May Wisconsin believes proceedings which, course of Decided Dec. — recalling, different furthered,

merits —will be or at least not

harmed, by stay. Should the cases, decide not to hear im-

Court

plementation of the majority’s conclusions delayed by at most four to six If, however, grants

months. the Court grants in these in one of

the other cases holds these on docket,

its that means it has concluded cases are indeed of

national importance. The lack of harm (recall

from a of the requested

that both state laws been on hold

throughout pendency litigation), irreparable injury risk of to both wom- denial,

en and their doctors from its

our to preserve the status Court,

quo for the all demon-

strate how the action by ill-advised truly divided court I respect- is.

fully dissent from the denial of the motions