Planned Parenthood of Southeastern Pennsylvania v. Casey No. A-655

Background

A group challenging parts of Pennsylvania’s Abortion Control Act asked a Circuit Justice to pause the Third Circuit’s mandate while they planned to seek Supreme Court review. The District Court had allowed the challengers to reopen the trial record and continued an injunction stopping enforcement of several statutory provisions. The Third Circuit said that reopening the record and continuing the injunction was inconsistent with this Court’s earlier Casey opinion and the remand instructions, and the challengers asked the Court to stay that mandate.

Reasoning

Justice Souter reviewed the usual factors for a stay: likely irreparable harm if enforcement resumed, a reasonable chance the Supreme Court would accept review, and a fair prospect the challengers would win. He agreed that enforcement could cause serious, irreparable harm if proven. But he found the other factors lacking: the Third Circuit’s reading of the Casey opinion was reasonable, the Supreme Court had already addressed the statute’s core provisions on the record, and the District Court had previously developed an extensive factual record. He also noted it was unusual to enjoin on a showing of only a “plausible likelihood” of success when the Supreme Court recently upheld the statute’s core provisions.

Real world impact

Because the stay was denied, the Third Circuit’s mandate will issue and the challengers cannot keep the injunction in place by seeking an immediate pause here. The decision leaves open the possibility that other litigants may bring as-applied challenges, but it makes further facial relief for these parties unlikely under Casey.