                              AMENDED

        United States Court of Appeals
             for the Fifth Circuit
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                            ____________                               FILED
                                                                 August 21, 2020
                             No. 17-51060                         Lyle W. Cayce
                            ____________                               Clerk

Whole Woman’s Health, on behalf of itself, its staff, physicians and
patients; Planned Parenthood Center for Choice, on behalf of
itself, its staff, physicians, and patients; Planned Parenthood of
Greater Texas Surgical Health Services, on behalf of itself, its
staff, physicians, and patients; Planned Parenthood South Texas
Surgical Center, on behalf of itself, its staff, physicians, and patients;
Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff,
physicians, and patients, doing business as Alamo Women’s
Reproductive Services; Southwestern Women’s Surgery
Center, on behalf of itself, its staff, physicians, and patients; Curtis
Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe,
M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik
Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients;
Alan Braid, M.D., on his own behalf and on behalf of his patients;
Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her
patients,

                                                     Plaintiffs—Appellees,

                                  versus

Ken Paxton, Attorney General of Texas, in his official
capacity; John Creuzot, District Attorney for Dallas
County, in his official capacity; Sharen Wilson, Criminal
District Attorney for Tarrant County, in her official
capacity; Barry Johnson, Criminal District Attorney for
McLennan County, in his official capacity,

                                                  Defendants—Appellants.
                            No. 17-51060


            _______________________________

            Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 1:17-CV-690
            _______________________________


Before Stewart, Dennis, and Willett, Circuit Judges.
     IT IS ORDERED that Appellants’ joint opposed motion for stay
pending appeal is DENIED.




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                                  No. 17-51060


James L. Dennis, Circuit Judge.
       Nearly 1,000 days ago, a federal district court declared that Texas
Senate Bill 8 placed an undue burden on a woman’s right to access a pre-
viability abortion and enjoined its enforcement. Texas appealed that same
day. Now, almost three years later, the State seeks to stay the judgment
below. Because the State’s motion is procedurally improper, it must be
denied.
                                       I.
      As an initial matter, we address our dissenting colleague’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.
       June Medical was a 4-1-4 decision. “Ordinarily, ‘[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as the position
taken by those Members who concurred in the judgment[] on the narrowest
grounds.’” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir.
2013) (first alteration in original) (quoting Marks v. United States, 430 U.S.
188, 193 (1977)). But as we have repeatedly explained, this “principle . . . is
only workable where there is some ‘common denominator upon which all of
the justices of the majority can agree.’” Id. (quoting United States v. Eckford,
910 F.2d 216, 219 n. 8 (5th Cir. 1990)). When a concurrence does not share
a “common denominator” with, or cannot “be viewed as a logical subset of,”
a plurality’s opinion, it “does not provide a controlling rule” that establishes
or overrules precedent. Id.



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                                  No. 17-51060


       In June Medical, the only common denominator between the plurality
and the concurrence is their shared conclusion that the challenged Louisiana
law constituted an undue burden. Compare 140 S. Ct. at 2132 (plurality
opinion), with id. at 2141-42 (Roberts, C.J., concurring in the judgment).
What they obviously disagreed on is the proper test for conducting the
undue-burden analysis: the plurality applied Hellerstedt’s balancing of the
law’s burdens against its benefits, while the concurrence analyzed only the
burdens. Compare 140 S. Ct. at 2132, with id. at 2141-42. Indeed, the Chief
Justice expressly disavowed the plurality’s test. See id. at 2136; cf. Duron-
Caldera, 737 F.3d at 994 n.4 (holding that, in the Supreme Court’s decision
in “Williams[ v. Illinois, 132 S. Ct. 2221 (2012)], there is no such common
denominator between the plurality opinion and Justice Thomas’s concurring
opinion. Neither of these opinions can be viewed as a logical subset of the
other. Rather, Justice Thomas expressly disavows what he views as ‘the
plurality’s flawed analysis,’ including the plurality’s ‘new primary purpose
test.’” (quoting Williams, 132 S. Ct. at 2255, 2262 (Thomas, J., concurring)
(emphasis added))).
       Thus, under our Circuit’s reading of the Marks principle, that the
challenged Louisiana law posed an undue burden on women seeking an
abortion is the full extent of June Medical’s ratio decidendi. The decision
does not furnish a new controlling rule as to how to perform the undue-
burden test. Therefore, Hellerstedt’s formulation of the test continues to
govern this case, and because the district court correctly applied Hellerstedt’s
balancing test, remand is not warranted.
       Curiously, the dissent does not cite our relevant precedents or our
court’s common-denominator/logical-subset rule. Instead, it cites Justice
Kavanaugh’s statement, in dissent in June Medical, that five Justices
disapproved of the Hellerstedt’s balancing test for determining undue burden.
See Dissenting Op. at 2 (quoting June Med. Servs. LLC, 140 S. Ct. at 2182



                                       4
                                  No. 17-51060


(Kavanaugh, J., dissenting)). With all due respect, this observation is of no
moment in determining the Court’s holding. See 430 U.S. at 193 (explaining
that when no opinion receives a majority of votes the Court’s holding is
“viewed as that position taken by those Members who concurred in the
judgment[] on the narrowest grounds (emphasis added)).                 And any
intimation that the views of dissenting Justices can be cobbled together with
those of a concurring Justice to create a binding holding must be rejected.
That is not the law in this or virtually any court following common-law
principles of judgments.
                                       II.
       The State’s stay motion is also patently procedurally defective. To
understand why, it bears emphasizing that the State’s appeal has been
pending before this court for nearly 1,000 days. Never during this time
period has the State moved in the district court for a stay. Instead, it asks this
court to hear in the first instance its profoundly belated motion. But Federal
Rule of Appellate Procedure 8(2) mandates that the party moving for a stay
in a court of appeals must have either first tried and failed to obtain a stay in
the district court or, alternately, “show that moving first in the district court
would be impracticable.” FED. R. APP. P. 8(a)(2)(A). As noted, Texas
bypassed the first route.
       As for the second, Texas’s explanations for the purported
impracticability of moving in the district do not pass muster. The State cites
Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981), in which we explained that
stay motions must first be presented to the district court “unless it clearly
appears that further arguments in support of the stay would be pointless in
the district court.” But the problem here is that the State does not even
attempt to explain why it would be “pointless” to move first in the district
court. Perhaps that is because, under our precedents, it would not be. Cf.




                                        5
                                  No. 17-51060


Bayless v. Martine, 430 F.2d 873, 879 (5th Cir. 1970) (“It does not follow from
the refusal to grant a preliminary injunction pending a trial in the court below
that the district court would refuse injunctive relief pending an appeal.”).
The State appears to apply a presumption of bad faith on the part of the
district court when the appropriate presumption is of course just the
opposite. See Evans v. Michigan, 568 U.S. 313, 325-266 (2013) (“We presume
here, as in other contexts, that courts exercise their duties in good faith.”).
       Notably, after waiting years to file this motion, the only recent
development the State identifies is the Supreme Court’s decision in June
Medical. But that the State may now presume its litigation position to be more
favorable due to an intervening Supreme Court decision clearly does not bear
on its ability to move in the district. Preference and impracticability are not
synonyms.
       The State’s failure to show the impracticability of moving first in the
district court is sufficient grounds to deny its motion. See, e.g., SEC v.
Dunlap, 253 F.3d 768, 774 (4th Cir. 2001) (explaining that movant’s failure
to move first in the district court for a stay or explain why doing so was
impracticable “constitutes an omission we cannot properly ignore” and thus
denying the motion (citing Hirschfield v. Bd. of Elections, 984 F.2d 35, 38 (2d
Cir. 1993) (denying motion to stay judgment because there was ‘no
explanation why the instant motion for a stay pending appeal was made in the
first instance to [the appellate court]”))); Baker v. Adams Cnty./Ohio Valley
Sch. Bd., 310 F.3d 927, 930-31 (6th Cir. 2002) (seeking a stay pending appeal
first in the district court is “[t]he cardinal principle of stay applications” and
denying the stay motion where “[t]he defendant did not so move below and
has not made any showing that such a motion would be impracticable” (first
alteration in original) (quoting 16A CHARLES ALAN WRIGHT, ARTHUR R.
MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE §
3954 (3d ed. 1999))).



                                        6
                             No. 17-51060


                                 III.

For these reasons, the State’s motion for a stay is denied.

Carl E. Stewart, Circuit Judge, concurs.




                                  7
                                No. 17-51060


Don R. Willett, Circuit Judge, dissenting:
      I would grant the State of Texas’s motion to stay the injunction.
     The Supreme Court recently divided 4-1-4 in June Medical Services
LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the
takeaway seems clear: The three-year-old injunction issued by the district
court in this case rests upon a now-invalid legal standard. See Hopkins v.
Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020)
(explaining that June Medical upended the previous cost-benefit balancing
test for reviewing the constitutionality of abortion restrictions); June Med.
Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) (“Today, five Members
of the Court reject the Whole Woman’s Health cost-benefit standard.”).
      I would grant the motion to stay. Additionally, I would remand the
underlying merits appeal to the district court for reconsideration under the
now-governing legal standard. See Box v. Planned Parenthood of Ind. & Ky.,
Inc., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020) and Box v.
Planned Parenthood of Ind. & Ky., Inc., No. 18-1019, 2020 WL 3578669 (U.S.
July 2, 2020) (remanding “for further consideration in light of June
Medical”).
       Because the majority does otherwise, I respectfully dissent.




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