FARGO WOMEN'S HEALTH ORGANIZATION ET AL.
v.
SCHAFER, GOVERNOR OF NORTH DAKOTA, ET AL.

U.S. | 1993-04-02
No. A-742
Justice Blackmun and Justice Stevens would grant the application., with whom Justice Souter joins,
507 U.S. 1013 Supreme Court of the United States (1993) Positive Treatment
Cited by 8 cases
Topics
Undue Burden Stay Pending Appeal Facial Challenge Injunctive Relief

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Concurrence
Justice O’Connor,

Justice O’Connor,

with whom Justice Souter joins,

concurring.

Applicants challenged certain provisions of the North Dakota Abortion Control Act, N.

D. Cent. Code §§ 14-02.1-01 to 14-02.1-12 (1991), in the United States District Court for the District of North Dakota. Relying on our decision in United States v. Salerno, 481 U. S. 739 (1987), the District Court granted summary judgment against applicants. The court reasoned that applicants could not mount a successful facial challenge because they were unable to show that “ ‘no set of circumstances exists under which the [challenged provisions] would be valid.’” Fargo Women's Health Organization v. Skinner, No. A3-91-95 (Feb. 19, 1993) (quoting Salerno, supra, at 745).

The court denied applicants’ motion for a stay and injunction pending appeal. See Fargo Women’s Health Organization v. Schafer, No. A3-91-95 (Mar. 9, 1993).

The Court of'Appeals for the Eighth Circuit also denied a motion for stay and injunction pending appeal. It agreed with the District Court that the Salerno standard applied and concluded that this Court’s decision last Term in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not counsel a different approach.. See Fargo Women’s Health Organization v. Schafer, No. 93-1579 (Mar. 30, 1993).

The appeal was expedited, and argument is scheduled for April 14, 1993.

Applicants now ask us for a stay of the District Court’s judgment and for injunctive relief. When a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only “upon the weightiest considerations.” O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed.2d 615, 616 (1960) (Harlan, J., in chambers).

Accord, Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U. S. 1327, 1330 (1980) (Powell, J., in chambers); see also Heckler v. Redbud Hospital Dist., 473 U. S. 1308, 1312 (1985) (Rehnquist, J., in chambers) (“[A] stay application to a Circuit Justice on a matter before a court of appeals is rarely granted” (internal quotation marks omitted)); Heckler v. Lopez, 464 U. S. 879, 884 (1983) (Stevens, J., joined by Blackmun, J., dissenting in part) (“[I]n such a case the granting of a stay by a Circuit Justice should be extremely rare and great deference should be shown to the judgment of the Court of Appeals”).

Consistent with that practice, I vote to deny the stay application. I do not believe applicants have demonstrated that this is one of those rare and exceptional cases in which a stay pending appeal is warranted.

I write separately, however, to point out that our denial of relief should not be viewed as signaling agreement with the lower courts’ reasoning. In my view, the approach taken by the lower courts is inconsistent with Casey. In striking down Pennsylvania’s spousal-notice provision, we did not require petitioners to show that the provision would be invalid in all circumstances. Rather, we made clear that a law restricting abortions constitutes an undue burden, and hence is invalid, if, “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U. S., at 895. And the joint opinion specifically examined the record developed in the District Court in determining that Pennsylvania’s informed-consent provision did not create an undue burden. See id., at 885-887 (opinion of O’Connor, Kennedy, and Souter, JJ.).

While I express no view as to whether the particular provisions at issue in this case constitute an undue burden, I believe the lower courts should have undertaken the same analysis.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Stenberg v. Carhart, 530 U.S. 914 (U.S. 2000)
    …tion of the statute would be improper even assuming that Casey rejected this standard sub silentio (at least so far as abortion cases are concerned) in favor of a so-called “ ‘large fraction’ ” test. See Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’Connor, J., joined by Souter, J., concurring) (arguing that the “no set of circumstances” standard is incompatible with Casey). See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174, 1177-1179 (1996) (Scalia, J…
  • Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (U.S. 1994)
    …especially heavy burden. “When a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only ‘upon the weightiest considerations.’” Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’Connor, J., concurring in denial of stay application) (quoting O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d, 615, 616 (1960) (Harlan, J., in chambers); see also Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marsh…
  • Janklow v. Planned Parenthood, 517 U.S. 1174 (U.S. 1996)
    …(noting that the provisions at issue were “substantially identical” to provisions upheld in Casey). Furthermore, it is not at all clear to me, given intervening statements by Members of this Court, see Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993), that subsequent Fifth Circuit panels would follow Barnes’ application of the “no circumstance” test, providing yet another reason to deny the petition in this case.…
    1 / 2

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