In Whole Woman's Health v. Paxton, (5th Cir., Aug. 21, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision refused to stay a district court decision handed down nearly 3 years ago which struck down a Texas abortion law banning the standard dilation and evacuation procedure. The majority explained:
[W]e address our dissenting colleague’s [Judge Willett's] view that the motion should be granted, and this case remanded, because the governing legal standards have supposedly changed in light of the Supreme Court’s decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020). Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.
The State’s stay motion is also patently procedurally defective.... [T]he problem here is that the State does not even attempt to explain why it would be “pointless” to move first in the district court.
[Thanks to Scott Mange for the lead.]
