OCTOBER TERM, 1993
Opinion in Chambers
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA ET AL. v. CASEY ET AL.
ON APPLICATION FOR STAY OF MANDATE No. A-655. Decided February 7,1994
The application for a stay of the Court of Appeals's mandate allowing enforcement of Pennsylvania's Abortion Control Act, pending the filing of a petition for certiorari, is denied. The applicants are correct that, if it is proven that the Act would have the effect that applicants allege, enforcement of the Act's pertinent provisions may interpose a substantial obstacle to the exercise of the right to reproductive freedom guaranteed by the Due Process Clause and affirmed in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833. However, there is no reasonable probability that this Court will grant review and no fair prospect that the applicants will ultimately prevail on the merits. The Court of Appeals's decision-that the District Court erred in reopening the record in the facial constitutional challenge to the Act and continuing its injunction against enforcement of various provisions-does not represent such an arguable departure from this Court's mandate in Casey as to warrant discretionary review or an award of the relief applicants seek. This Court did not remand Casey to the lower courts for application of the proper legal standard, but undertook to apply the standard to the statute, upholding the constitutionality of most of its provisions. None of Casey's five opinions took the position that the District Court record was inadequate in a way that would counsel leaving those judgments to the District Court in the first instance. In addition, it was at least unusual for the District Court to enjoin enforcement of the statute on a showing of "plausible likelihood" of success.
JUSTICE SOUTER, Circuit Justice.
Addressing me in my capacity as Circuit Justice for the Third Circuit, the applicants seek a stay of the Court of Appeals's mandate in this case, pending their filing a petition for certiorari. See 28 U. S. C. § 2106. In the decision from which applicants intend to seek review, 14 F.3d 848 (CA3 1994), the Court of Appeals held that the District Court's order allowing applicants to reopen the record in their facial constitutional challenge to Pennsylvania's Abortion Controlcralaw
Opinion in Chambers
Act, 18 Pa. Cons. Stat. §§ 3203-3220 (1990 and Supp. 1993), and continuing its order enjoining the Commonwealth from enforcing various provisions of that statute, see 822 F. Supp. 227 (ED Pa. 1993), was inconsistent with both the mandate of this Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833, and that of the Third Circuit on remand, see 978 F.2d 74 (1992).1 For the reasons set out below, I decline to stay the mandate of the Court of Appeals.
The conditions that must be shown to be satisfied before a Circuit Justice may grant such an application are familiar: a likelihood of irreparable injury that, assuming the correctness of the applicants' position, would result were a stay not issued; a reasonable probability that the Court will grant certiorari; and a fair prospect that the applicant will ultimately prevail on the merits, see generally Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). The burden is on the applicant to "rebut the presumption that the decisions below-both on the merits and on the proper interim disposition of the case-are correct." Ibid.
With respect to the first consideration, the applicants assert that enforcement of the pertinent provisions of the Abortion Control Act will, for a "large fraction," Casey, 505 U. S., at 895, of the affected population, interpose a "substantial obstacle," id., at 877, to the exercise of the right to reproductive freedom guaranteed by the Due Process Clause and affirmed in this Court's Casey opinion.2 I have no difficulty concluding that such an imposition, if proven, would qualify as "irreparable injury," and support the issuance of a stay if
1 The Third Circuit panel also denied a motion, substantially identical to the one presented here, to stay its mandate.
2 For the purposes of this opinion, I join the applicants and the courts below in treating the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, see 505 U. S., at 843 (opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) as controlling, as the statement of the Members of the Court who concurred in the judgment on the narrowest grounds. See Marks v. United States, 430 U. S. 188 (1977).cralaw