Bristol Regional Women’s Center, P.c. v. HERBERT H. SLATERY, III, Attorney General of Tennessee, GLENN R. FUNK, District…

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRISTOL REGIONAL WOMEN’S CENTER, P.C.; MEMPHIS
CENTER FOR REPRODUCTIVE HEALTH, on behalf of
itself and its patients, KNOXVILLE CENTER FOR
REPRODUCTIVE HEALTH; PLANNED PARENTHOOD OF
TENNESSEE AND NORTH MISSISSIPPI, formerly known
as Planned Parenthood of Middle and East Tennessee,
and DR. KIMBERLY LOONEY,
Plaintiffs-Appellees,
v.
HERBERT H. SLATERY, III, Attorney General of
Tennessee, GLENN R. FUNK, District Attorney General
of Nashville, Tennessee, AMY P. WEIRICH, District
Attorney General of Shelby County, Tennessee,
BARRY P. STAUBUS, District Attorney General of
Sullivan County, Tennessee, CHARME P. ALLEN, LISA
PIERCEY, Commissioner of the Tennessee Department
of Health, and W. REEVES JOHNSON, JR., M.D.,
President of the Tennessee Board of Medical
Examiners, in their official capacities,
Defendants-Appellants.
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No. 20-6267
On Motion to Stay and Motion for Expedited Consideration.
United States District Court for the Middle District of Tennessee at Nashville;
No. 3:15-cv-00705—Bernard A. Friedman, District Judge.
Decided and Filed: April 23, 2021
Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON, GRIFFIN,
KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,
NALBANDIAN, READLER, and MURPHY, Circuit Judges.
>

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No. 20-6267 Bristol Reg’l Women’s Center et al. v. Slatery et al. Page 2
_________________
COUNSEL
ON MOTIONS AND REPLY: Sarah K. Campbell, Mark Alexander Carver, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants.
ON RESPONSE: Autumn Katz, Michelle Moriarty, Rabia Muqaddam, CENTER FOR
REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED
PARENTHOOD FEDERATION OF AMERICA, New York, New York, Scott Tift, BARRETT
JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, Jason M.
Moff, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York for Appellees.
The En Banc Court of the Sixth Circuit Court of Appeals issued an order. MOORE, J.
(pg. 3), in which CLAY, WHITE, STRANCH, and DONALD, JJ., joined, and GIBBONS, J. (pp.
4–6), delivered separate dissenting opinions.
_________________
ORDER
_________________
Appellants have filed a motion to stay the district court’s judgment and injunction pending
appeal. Appellants have also filed a motion for expedited consideration of the motion to stay. Appellees
oppose both motions. A majority of judges of this court having voted in favor of the motions,
It is ORDERED that the motion for expedited consideration is GRANTED.
It is further ORDERED that the motion to stay the district court’s judgment and injunction
pending appeal is GRANTED, and that our prior opinion to the contrary, 988 F.3d 329, is VACATED.

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No. 20-6267 Bristol Reg’l Women’s Center et al. v. Slatery et al. Page 3
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. I vote to deny Appellants’
motion for a stay pending appeal for the reasons given by the panel in Bristol Regional Women’s
Center, P.C. v. Slatery, 988 F.3d 329 (6th Cir. 2021), denying a stay pending appeal.

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No. 20-6267 Bristol Reg’l Women’s Center et al. v. Slatery et al. Page 4
_________________
DISSENT
_________________
JULIA SMITH GIBBONS, Circuit Judge, dissenting. I was not in favor of granting
initial hearing en banc in this case. I believe that doing so was unnecessary and damaged our
traditional system of panel review. I recognize that a majority of my colleagues disagree with
my views, however, and I will not belabor this point.
Instead, I am writing separately to emphasize that I find the question of whether to grant
the State’s motion for a stay pending appeal to be a close one. As is often the case, whether to
grant the stay turns primarily on whether the State has made “a strong showing that [it] is likely
to succeed on the merits.” Nken v. Holder, 556 U.S. 418, 434 (2009); Mich. State A. Philip
Randolph Inst. v. Johnson, 749 F. App'x 342, 344 (6th Cir. 2018) (“The likelihood of success is
perhaps the most important factor.”); see also Frank v. Walker, 769 F.3d 494, 495–96 (7th Cir.
2014). Although there is a possibility—perhaps even a strong possibility—that the State will
eventually convince me that the district court erred, it has not currently persuaded me that such a
result is “likely.” See Nken, 556 U.S. at 434 (holding that a “possibility” of success on the merits
is never sufficient).
As an initial matter, Casey does not say that “waiting periods are constitutional,” as both
Judge Thapar’s panel dissent and the State claim. Bristol Reg’l Women’s Health Ctr., P.C. v.
Slatery, 988 F.3d 329, 344 (6th Cir. 2021) (Thapar, J., dissenting); CA6 R.76, Mot. for Recons.,
at 1. The Casey plurality emphasized that its decision was based on the sparse factual record
before it. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 887 (1992) (asserting that
the Court’s decision was based “on the record before us”); see also Planned Parenthood of Se.
Pa. v. Casey, 510 U.S. 1309, 1310 (1994) (Souter, J., in chambers) (interpreting Casey as leaving
litigants “free to challenge similar [waiting period] restrictions in other jurisdictions”). It defies
precedent to summarily conclude that all waiting periods are constitutional, no matter the
circumstances.

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No. 20-6267 Bristol Reg’l Women’s Center et al. v. Slatery et al. Page 5
The State also intimates that the existence of similar waiting periods in fourteen other
states should lead us to find that Tennessee’s waiting period is constitutional. See CA6 R.39,
Pet. for Initial Hr’g En Banc, at 10 n.2 (listing statutes). Certainly, if each of those laws had
been tested and upheld in authoritative court decisions, those decisions would signal that waiting
periods are constitutional in all but the narrowest circumstances. But, by my count, federal
courts of appeals have only decided that four of those waiting periods do not infringe upon the
right to an abortion, and the courts’ rationales vary. See Cincinnati Women’s Servs. v. Taft, 468
F.3d 361, 373–74 (6th Cir. 2006) (upholding Ohio’s waiting period because plaintiffs could not
satisfy the “large-fraction test”); A Woman’s Choice-E. Side Women’s Clinic v. Newsom, 305
F.3d 684, 691 (7th Cir. 2002) (upholding Indiana’s waiting period because the evidence did not
show that the law unduly burdened the right to an abortion); Karlin v. Foust, 188 F.3d 446, 485–
86 (7th Cir. 1999) (upholding Wisconsin’s waiting period because the evidence plaintiffs
presented to distinguish their case from Casey was not convincing); Barnes v. Moore, 970 F.2d
12, 14 (5th Cir. 1992) (upholding Mississippi’s waiting period in the absence of a developed
factual record because the law was functionally identical to Casey). Given Casey’s directive to
consider the specific factual record in each case, the existence of similar laws elsewhere—many
of which are untested in the federal appellate courts—does not convince me that Tennessee’s law
is constitutional.
Because this case cannot be easily resolved by the mere presence of Casey or other
states’ similar waiting periods, our task is to determine whether, “in a large fraction of the cases
in which [Tennessee’s 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. That is no easy feat. On the one hand,
as the State argues, many of the burdens in this case mirror the burdens in Casey. On the other,
some of the district court’s factual findings—such as the specific length of the delays caused by
the law, the impact of those delays on the ability of plaintiffs’ patients to obtain a medication
abortion (a safer and substantially less invasive procedure than a surgical abortion), and the
effect of those delays on the emotional and psychological well-being of plaintiffs’ patients—
differentiate this case from Casey. The crucial question, therefore, is whether these differences
are so significant that they require a different result than the one reached in Casey. See id.

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No. 20-6267 Bristol Reg’l Women’s Center et al. v. Slatery et al. Page 6
I forthrightly admit that I do not yet know the answer to this question. To answer it will
take time. I will need to pore through the extensive record, analyze the merits briefs, and hear
the parties’ arguments. Ultimately, however, at this stage the State bears the burden of
convincing me that it is likely to succeed on the merits. See Nken, 556 U.S. at 433–34. It has not
done so, and I would deny the State’s motion for a stay.1
I respectfully dissent.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
1The fact that the State has not made a strong showing that it is likely to succeed on the merits influences
my weighing of the other stay factors. See Nken, 556 U.S. at 434 (listing the stay factors); see also Commonwealth
v. Beshear, 981 F.3d 505, 508 (6th Cir. 2020) (order) (per curiam) (observing that likelihood of success on the
merits is often dispositive). For example, the irreparable harm that the State asserts it will face in the absence of a
stay—the inability to enforce its duly-enacted laws—is most compelling only if the State’s law is likely
constitutional. Likewise, if there is not a strong likelihood that the waiting period is constitutional, plaintiffs and
their patients may suffer serious harms if the district court’s decision is stayed. Thus, although I took all of the stay
factors into account while reaching this result, at bottom, my decision is largely driven by my resolution of the first
factor.

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