No. 12-50377
In the United States Court of Appealsfor the Fifth Circuit
PLANNED PARENTHOOD OF AUSTIN FAMILY PLANNING, INC.,PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS,INC., PLANNED PARENTHOOD ASSOCIATION OF LUBBOCK, INC.,PLANNED PARENTHOOD OF CAMERON AND WILLACY COUNTIES,FAMILY PLANNING ASSOCIATES OF SAN ANTONIO, PLANNEDPARENTHOOD OF CENTRAL TEXAS, PLANNED PARENTHOOD GULFCOAST, INC., PLANNED PARENTHOOD OF NORTH TEXAS, INC., andPLANNED PARENTHOOD OF WEST TEXAS, INC.
Plaintiffs-Appellees
, v. THOMAS M. SUEHS, Executive Commissioner, Texas Health and Human ServicesCommission, in his official capacity,
Defendant-Appellant
.On Appeal from the United States District Court for the Western District of Texas, Austin DivisionCase No. 1:12-cv-322-LY
E
MERGENCY
M
OTION
T
O
S
TAY
P
RELIMINARY
I
NJUNCTION
P
ENDING
A
PPEAL
N
ATURE OF THE
E
MERGENCY
At 11:50 AM Central Time today, Judge Yeakel preliminarily enjoined the Stateof Texas, acting through the Executive Commissioner of its Health and Human Ser- vices Commission, from enforcing state regulations governing the Texas Women’s
Case: 12-50377 Document: 00511839869 Page: 1 Date Filed: 04/30/2012
ii
Health Program (“WHP”).
See
Preliminary Injunction Order, April 30, 2012 (Doc.25) (“the Order”) (attached).
In particular, the district court held that Texas cannotcontinue to operate the Texas Women’s Health Program unless it provides taxpayersubsidies to entities that promote elective abortions—even though the Texas Wom-en’s Health Program is designed to
reduce
abortion by subsidizing nonabortion meth-ods of family planning. Although the State respects the district court, we believe itsanalysis of the “unconstitutional conditions” doctrine is flawed in many respects andis likely to be overturned on appeal. Absent a stay pending appeal, the State of Tex-as—and the women of Texas who depend on the Women’s Health Program—will beirreparably harmed because state law prohibits Texas from continuing to operate the Texas Women’s Program if taxpayer money must be provided to entities that affiliate with abortion-promoting entities . Consequently, the district court’s preliminary in-junction effectively forces Texas to choose between contravening state law and shut-ting down the program. The administrative provisions at issue are scheduled to gointo effect (and Texas will be irreparably injured if they do not) at midnight tonight. This emergency situation is of Planned Parenthood’s own making. PlannedParenthood has been on notice of the state law at the heart of this suit for months. Yet Planned Parenthood filed this lawsuit a mere 19 days ago, forcing the districtcourt and the litigants into an abbreviated briefing schedule, and causing the districtcourt to rule one day before the law was scheduled to go into effect.
Case: 12-50377 Document: 00511839869 Page: 2 Date Filed: 04/30/2012
iii
Given the time pressure caused by Planned Parenthood’s litigation strategy, it was impracticable for Texas to file this motion first in the district court.
See
F
ED
.
R.
A
PP
. P. 8(a)(2)(A)(i). Moreover, in light of the district court’s ruling earlier today, thedistrict court’s likely ruling on that motion is apparent. Given the timing of Judge Yeakel’s ruling, it also was impossible for Texas to file this motion in the Fifth Cir-cuit’s clerk’s office by 2 PM.
See
5
TH
C
IR
. R. 27.3. And given the exceptional circum-stances forced upon the State and the court because of the plaintiffs’ dilatory filing,this motion should be considered by a single circuit judge if necessary.
See
F
ED
.
R.
A
PP
. P. 8(a)(2)(D).Undersigned counsel certifies (1) that this motion was preceded by multiple tel-ephone calls to the clerk’s office before 2 PM today, and (2) that the facts supporting emergency consideration of this motion are true and complete to the best of counsel’sknowledge.
See
5
TH
C
IR
. R. 27.3. Undersigned counsel further certifies that the par-ties conferred by email regarding this motion, and Planned Parenthood opposes it.
See
id.
Case: 12-50377 Document: 00511839869 Page: 3 Date Filed: 04/30/2012
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State Of Texas' Motion For Stay Against Planned Parenthood
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