WHP Stay Request

8/2/2019 WHP Stay Request

http://slidepdf.com/reader/full/whp-stay-request 1/27

No. 12-50377

In the United States Court of Appeals

for 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., and

PLANNED 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 Division

Case No. 1:12-cv-322-LY

EMERGENCY MOTION TO S TAY PRELIMINARY INJUNCTION PENDING A PPEAL

N ATURE OF THE EMERGENCY

At 11:50 AM Central Time today, Judge Yeakel preliminarily enjoined the State

of 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 cannot

continue to operate the Texas Women’s Health Program unless it provides taxpayer

subsidies 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 its

analysis of the “unconstitutional conditions” doctrine is flawed in many respects and

is 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 be

irreparably 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 go

into effect (and Texas will be irreparably injured if they do not) at midnight tonight.

This emergency situation is of Planned Parenthood’s own making. Planned

Parenthood 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 district

court and the litigants into an abbreviated briefing schedule, and causing the district

court to rule one day before the law was scheduled to go into effect.




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 FED. R.

APP. P. 8(a)(2)(A)(i). Moreover, in light of the district court’s ruling earlier today, the

district 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 CIR . 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 FED. R.

APP. 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’s

knowledge. See 5 TH CIR . R. 27.3. Undersigned counsel further certifies that the par-

ties conferred by email regarding this motion, and Planned Parenthood opposes it.

See id.




iv

CERTIFICATE OF INTERESTED PERSONS

Planned Parenthood of Austin Family Planning, Inc., et al. v. Suehs ,

No. 12-50377

The undersigned counsel of record certifies that the following listed personsand entities as described in the fourth sentence of Rule 28.2.1 have an interest in theoutcome of this case. These representations are made in order that the judges of thiscourt may evaluate possible disqualification or recusal.

• Planned Parenthood Association of Hidalgo County Texas, Inc. — Plaintiff;

• Planned Parenthood Association of Lubbock, Inc. —Plaintiff;

• Planned Parenthood of Cameron and Willacy Counties —Plaintiff;

• Family Planning Associates of San Antonio —Plaintiff;

• Planned Parenthood of Central Texas —Plaintiff;

• Planned Parenthood of Gulf Coast, Inc. —Plaintiff;

• Planned Parenthood of North Texas, Inc. —Plaintiff;

• Planned Parenthood of West Texas, Inc. —Plaintiff;

• Planned Parenthood of Austin Family Planning, Inc. —Plaintiff;

• Carrie Y. Flaxman, Helene T. Krasnoff, Roger K. Evans, PlannedParenthood Federation of America—counsel for Plaintiffs;

• P. M. Schenkkan, Susan G. Conway, Matthew B. Baumgartner, GRAVESDOUGHERTY HEARON & MOODY , PC—counsel for Plaintiffs;

• Thomas M. Suehs, Executive Commissioner, Texas Health and Human Ser- vices Commission, in his Official Capacity — Defendant;

• Jonathan F. Mitchell, Arthur C. D’Andrea, OFFICE OF THE A TTORNEY

GENERAL —counsel for Defendant.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell Attorney for Defendant-Appellant




1

A RGUMENT AND A UTHORITIES

A preliminary injunction is “an extraordinary and drastic remedy, one that

should not be granted unless the movant, by a clear showing, carries the burden of per-

suasion.” Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (citation omitted). The

plaintiffs in this case have not made this “clear showing” on any of the factors rele-

vant to a preliminary injunction. Whether this Court should stay the district court’s

preliminary injunction pending appeal turns on four factors:

(1) whether the stay applicant has made a strong showing that he is likely tosucceed on the merits; (2) whether the applicant will be irreparably injured ab-sent a stay; (3) whether issuance of the stay will substantially injure the otherparties interested in the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill , 481 U.S. 770, 776 (1987). All four factors favor a stay.

I. DEFENDANT WILL LIKELY PREVAIL ON THE MERITS.

The district court held that Plaintiffs would likely prevail on the merits of their

federal constitutional claims. Order at 22-23. The State contends, however, that it

likely will succeed in persuading either the Fifth Circuit or the Supreme Court to reject

this analysis.

A. The District Court Erred By Concluding That Provisions of StateLaw Violate the First Amendment.

The district court’s analysis of the unconstitutional-conditions doctrine is legal-

ly flawed. It has never been the law that the government “may not condition partici-

pation in a government program or receipt of a government benefit upon an appli-

cant’s exercise of protected rights.” Order at 12. That proposition contradicts nu-




2

merous decisions of the Supreme Court—some of which the district court acknowl-

edged, see Order at 17, and others that the district court did not reference in its deci-

sion. Based upon that flawed premise, the district court held that Texas is forbidden

to withhold taxpayer subsidies from any entity that wishes to participate in the Wom-

en’s Health Program on account of its First Amendment activities—even when that

First Amendment activity is antithetical to the goals of the program. But the Consti-

tution does not require Texas to admit all comers into the Women’s Health Program,

and the unconstitutional-conditions doctrine allows Texas to exclude organizations

who seek to advance agendas contrary to the values that the State and its Legislature

seek to promote in this program.

The district court was correct to note that the unconstitutional-conditions doc-

trine prohibits States from withholding subsidies in an effort to “penalize” would-be

recipients for their constitutionally protected conduct. But an unconstitutional “pen-

alty” occurs only when the condition is non-germane to the benefits provided by the

government subsidy. If, for example, the State of Texas decided to withhold police

and fire protection for Planned Parenthood on account of its First Amendment activi-

ty, that would represent an unconstitutional “penalty” because it is not related to the

goals of police and fire protection and would be undertaken only to spite Planned

Parenthood for its abortion-related advocacy. But the district court erred by assuming

that an unconstitutional “penalty” arises whenever the government withholds taxpayer

subsidies on account of constitutionally protected conduct that occurs “beyond the




3

scope of the government program”—even when the condition is admittedly germane

to the benefits that the government subsidies seek to provide.

1. The District Court Erred by Holding That Texas “May NotCondition Participation in a Government Program or Re-ceipt of a Government Benefit Upon an Applicant’s Exerciseof Protected Rights.”

The district court’s assertion that “government may not condition participation

in a government program or receipt of a government benefit upon an applicant's ex-

ercise of protected rights,” Order at 12, contradicts at least six decisions of the Su-

preme Court. The Supreme Court’s rulings in Christian Legal Society v. Martinez , 130 S.

Ct. 2971 (2010) (“CLS ”), and Locke v. Davey , 540 U.S. 712 (2004), establish that States

do not violate the Constitution when they condition taxpayer subsidies on refraining

from certain First Amendment activity or speech. Locke upheld a state law that pro-

hibited “even indirectly funding religious instruction,” 540 U.S. at 719, and required

students wishing to study theology to enroll at a separate institution from the one re-

ceiving the state scholarship funds, id . at 721 n.4. Distinct from imposing civil or

criminal sanctions or requiring students to choose between their religious beliefs and

receiving government benefits, the restriction was simply a choice “not to fund a dis-

tinct category of instruction.” Id . at 721. Christian Legal Society allowed a public law

school to deny recognition to a student chapter of the Christian Legal Society on ac-

count of its First Amendment activities, and upheld the prohibition because the state

was “dangling the carrot of subsidy, not wielding the stick of prohibition.” 130 S. Ct.




4

at 2986. The district court did not address either of these binding Supreme Court

pronouncements.

South Dakota v. Dole , 483 U.S. 203 (1987), also cannot be reconciled with the

district court’s overbroad assertion. Dole permitted the federal government to with-

hold federal highway money from States that failed to raise their drinking age to 21,

even though the States enjoyed a constitutionally protected prerogative to set their

own drinking age. This federal highway program undoubtedly “condition[ed] . . . the

receipt of a government benefit upon an applicant’s exercise of protected rights,” and

the Supreme Court upheld it anyway.

Finally, it has long been established that governments may condition public

employment on the relinquishment of First Amendment freedoms. See, e.g., United

Public Workers v. Mitchell , 330 U.S. 75 (1973); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of

Letter Carriers , 413 U.S. 548 (1973); Garcetti v. Ceballos , 547 U.S. 410, 418 (2006); and

Dole , 483 U.S. 203. The district court acknowledged these rulings (as well as Dole ), but

dismissed them as not “relevant or instructive.” Order at 17. They are surely rele-

vant, as they contradict the major premise of the district court’s argument: that “gov-

ernment may not condition participation in a government program or receipt of a

government benefit upon an applicant’s exercise of protected rights.” Order at 12.




5

2. The District Court Erred By Holding That Strict Scrutiny Applies to Conditions on Recipients of Government Benefits That Implicate Free-Speech Rights.

The district court further erred when it held that strict scrutiny must be applied

whenever the government conditions the receipt of a government benefit on the re-

linquishment of First Amendment freedoms. See Order at 12. The only authority

that the district court cited for this proposition is Shapiro v. Thompson , 394 U.S. 618,

634 (1969), a case that dealt with the right to travel rather than the First Amendment.

Yet numerous decisions of the Supreme Court have refused to apply strict scrutiny

when governments withhold taxpayer subsidies on account of First Amendment ac-

tivity. When the Supreme Court upheld the Hatch Act, which prohibits the exercise

of certain First Amendment rights on the part of federal employees, it refused to ap-

ply strict scrutiny. Mitchell , 330 U.S. at 567 (balancing the needs of the government

with the freedoms of the employee); see also Nat’l Ass'n of Letter Carriers , 413 U.S. at

564-67 (finding congressional concerns sufficient to enact law). And recently, in CLS

the Supreme Court declined to apply strict scrutiny to a rule that excluded certain reli-

gious groups from using campus facilities on account of their First Amendment ac-

tivity. 130 S. Ct. at 2985-86; see also Locke , 540 U.S. at 725 (refusing to apply strict

scrutiny to law that prohibited funding of theology instruction). The implication of

First Amendment rights is not enough, and the trial court erred in subjected the

State’s regulation to strict scrutiny.




6

3. The District Court’s Overbroad Readings of Sherbert andSpeiser Cannot Be Reconciled with Locke , CLS , and Nu-merous Other Precedents of the Supreme Court.

The district court’s citation of Sherbert v. Verner , 374 U.S. 398 (1963)—and the

assertion that every denial of a government subsidy is functionally equivalent to a fine,

see Order at 12, is unreconcilable with Locke , CLS , and National Endowment for the Arts

v. Finley , 524 U.S. 569, 587-88. Sherbert must be limited to the context of denying un-

employment benefits on account of First Amendment activity—otherwise it cannot

be squared with the later precedents of the Court that distinguish between fines and

withholding of taxpayer subsidies.

Speiser v. Randall , 357 U.S. 513 (1958), also does not support the district court’s

broad conclusion that a government benefit cannot be conditioned on the recipient’s

agreement to restrain from exercising a constitutional right. See Order at 12. In

Speiser , the condition (a loyalty oath) was not germane to the benefit (a tax exemption);

it was aimed at the suppression of “dangerous ideas.” Id . at 519. Whether a withhold-

ing of a subsidy “penalizes” the right depends on germaneness. And as the Supreme

Court has made clear, not all withholdings of subsidies amount to unconstitutional

“penalties.” See Locke , 540 U.S. 712; CLS , 130 S. Ct. 2971.

4. The District Court Erred by Adopting Planned Parenthood’s“Outside the Program” Theory of Unconstitutional Condi-tions.

The district court erred in adopting Planned Parenthood’s “outside the pro-

gram” theory of unconstitutional conditions. To begin with, several precedents of the




7

Supreme Court directly contradict this approach by permitting governments to with-

hold taxpayer subsidies on account of constitutionally protected conduct that occurs

outside the scope of the federally funded program. See, e.g., Mitchell , 330 U.S. 75; Nat’l

Ass’n of Letter Carriers , 413 U.S. 548; Garcetti , 547 U.S. at 418; and Dole , 483 U.S. 203.

Mitchell rejected a First Amendment challenge to the Hatch Act, which prohib-

ited federal executive-branch employees from actively participating in political man-

agement or in political campaigns, even on the employees’ free time, away from work.

Mitchell , 330 U.S. at 78-79, 95. Contradicting the district court’s “outside the pro-

gram” theory in this case, the Mitchell Court had no trouble finding the restriction—

which extended to conduct outside the scope and hours of government employ-

ment—to be a constitutional means for Congress to ensure efficient public service

and to avoid distortions in the political process. Id . at 99, 103.

The district court’s conclusion also cannot withstand National Association of Let-

ter Carriers , in which the Court “unhesitatingly reaffirm[ed] the Mitchell holding” that

the Hatch Act was constitutional. 413 U.S. at 556. There, the Court held that “nei-

ther the First Amendment nor any other provision of the Constitution invalidates a

law” that prohibits partisan political conduct by federal employees, even when they

are off the clock. Id . The Court found significant the fact that the restriction was an

employment condition, since “it seems fundamental in the first place that employees

in the Executive Branch of the Government, or those working for any of its agencies,

should administer the law in accordance with the will of Congress, rather than in ac-




8

cordance with their own or the will of a political party.” Id . at 564-65. Like the Hatch

Act, the WHP statute and regulations simply condition participation in the Program

on avoiding certain conduct in order to ensure that the State does not directly or indi-

rectly fund conduct that it opposes.

The district court’s argument is also shut down by Dole , 483 U.S. 203, in which

the Court upheld Congress’s authority to exercise its spending power to condition

federal funding for highway construction on the States’ raising the drinking age to 21.

The Court was not troubled that the drinking-age was set outside the federally funded

highway-construction program. Id . at 210-211. Although the district court considered

South Dakota , its discussion obscured the fact that it withheld taxpayer subsidies on

account of constitutionally protected decisions that were made outside the scope of

the federally funded program.

Garcetti also forecloses the district court’s conclusion that the Commission can-

not withhold subsidies on account of speech activity that occurs outside of a taxpayer-

funded “program.” 547 U.S. at 418 (a public employer may punish an employee for

speech on matter of public concern so long as employer has “an adequate justification

for treating the employee differently from any other member of the general public.”);

Larry Alexander, Impossible , 72 DENV . U. L. R EV . 1007, 1009 (1995).




9

5. The District Court Erred By Interpreting Rust to Establish aCeiling on Government’s Ability to Withhold Taxpayer Sub-sidies From Abortion-Performing Entities.

Rust v. Sullivan , 500 U.S. 173 (1991), never establishes, even in dictum, that the

Constitution categorically forbids governments to withhold taxpayer subsidies on ac-

count of constitutionally protected conduct that occurs outside the scope of the tax-

payer-funded program. Although Rust turned aside the “unconstitutional conditions”

claim by holding that governments may implement measures to ensure that taxpayer

funds are spent for their designated purposes, Rust never suggested that this is the only

basis on which a court may reject an unconstitutional-conditions claim; if it did, it

would have overruled Dole , 483 U.S. 203; National Ass'n of Letter Carriers , 413 U.S. 548;

and Mitchell , 330 U.S. 75. Rust establishes that a law designed to ensure that taxpayer

funds are spent for their designated purposes will always prevail over an unconstitu-

tional-conditions challenge.

6. The District Court Erred by Holding that PlannedParenthood’s Abortion-Related First Amendment ActivityOccurs “Outside of” the Taxpayer-Funded Program.

The district court failed to address the State’s argument that the plaintiffs’ “af-

filiation” activities fall within the scope of the Women’s Health Program. As pointed

out in the State’s briefing, the plaintiffs have been excluded from the Texas Women’s

Health Program for four independent reasons: (1) They “promote” elective abortions

by advocating for legalized abortion on demand; (2) They “affiliate” with entities that

both “perform” elective abortions and “promote” elective abortions by advertising




10

for them. (3) They “affiliate” with abortion-performing and abortion-promoting enti-

ties by using the “Planned Parenthood” registered service mark; and (4) They “affili-

ate” with Planned Parenthood Federation of America (“PPFA”), an organization that

“promotes” elective abortions. See PI Motion at 6. The plaintiffs’ affiliation with

abortion-performing and abortion-promoting entities is a continuous activity that oc-

curs both inside and outside the program.

The plaintiffs do not suddenly drop the Planned Parenthood moniker and logo,

and suspend all of their affiliations with abortion-performing entities, whenever a

WHP patient walks into the door, or whenever they collect reimbursement from the

State’s taxpayers for services provided to these patients. The initial decision to affili-

ate may occur “outside the program,” but the act of affiliating remains continuous—

and it is this act for which the plaintiffs are excluded from the program.

The plaintiffs suggested that at least some of them “engage[] in advocacy in-

tended to protect and facilitate access to safe and legal abortion for women who

choose to exercise their constitutional right to choose.” See PI Motion at 6. But nei-

ther the plaintiffs nor the district court explained how the plaintiffs separate their

abortion-promoting activities from the Women’s Health Program or the taxpayer sub-

sidies that it provides. “Money is fungible,” Holder v. Humanitarian Law Project , 130 S.

Ct. 2705, 2725 (2010), and when the State of Texas reimburses Planned Parenthood

for the family-planning services it provides to low-income women, it frees up other

resources for Planned Parenthood to use for its “advocacy” and promotion of elective




11

abortion. Although the plaintiffs claim that they do not subsidize the abortion proce-

dure or encourage abortions, the “promotion” of elective abortion extends well be-

yond these two activities.

The plaintiffs have not made any “clear showing” that they have established

sufficient separation between their abortion-promoting advocacy and the taxpayer

subsidies that they receive under the Women’s Health Program. Planned

Parenthood’s silence on these matters should have led the district court to deny the

preliminary injunction under Mazurek.

7. The Proper Test Is Whether The Decision to Withhold Tax- payer Subsidies from Planned Parenthood Is Germane to thePurpose of the Benefits Offered By The Women’s HealthProgram, and the Conditions Imposed by the Texas Wom-en’s Health Program Satisfy This Test.

Planned Parenthood’s claim that a State violates the Constitution whenever it

withholds a taxpayer subsidy on account of constitutionally protected conduct that

occurs “outside the program” is irreconcilable with at least four decisions of the Su-

preme Court, and in all events Planned Parenthood’s unconstitutional-conditions

claim fails even on its own terms. The proper test for resolving an unconstitutional-

conditions challenge is to ask whether the restriction is related to the benefit that the

State seeks to confer. In Dole , for example, the Court concluded that a State’s deci-

sion to establish a drinking age below 21—even though it occurred outside the scope

of the federally funded highway program—was sufficiently related to the goals of the

federal project (safe and effective transportation) to survive an unconstitutional condi-




12

tions challenge. Had the federal statute conditioned the receipt of federal highway

funds on a State decision to provide agricultural subsidies, then a different result

would have obtained. See Daryl J. Levinson, Framing Transactions in Constitutional Law ,

111 Y ALE L. J. 1311 (2002).

Numerous decisions of the Supreme Court, along with lower federal courts and

scholarly commentators, have recognized that germaneness is the touchstone for

evaluating an unconstitutional-conditions claim. See, e.g., Dole , 483 U.S. at 208; Dolan

v. City of Tigard , 512 U.S. 374, 386 (1994) (“[T]he government may not require a per-

son to give up a constitutional right . . . in exchange for a discretionary benefit con-

ferred by the government where the property sought has little or no relationship to

the benefit.”); Nollan v. Cal. Coastal Comm’n , 483 U.S 825, 839 (1987) (requiring a

“nexus” between the benefit and the right surrendered); Nat'l Amusements, Inc. v. Town

of Dedham , 43 F.3d 731, 747-48 (1st Cir. 1995) ("Not all conditions are prohibited,

however; if a condition is germane—that is, if the condition is sufficiently related to

the benefit—then it may validly be imposed. In the final analysis, the legitimacy of a

government proposal depends on the degree of relatedness between the condition on

a benefit and the reasons why government may withhold the benefit altogether.”);

Palmer v. Valdez , 560 F.3d 965, 972 (9th Cir. 2009) (McKeown, J., concurring in part

dissenting in part) ("To determine whether the government has violated the unconsti-

tutional conditions doctrine, the court must look to whether the condition placed up-

on the receipt of a benefit furthers the end advanced as the justification for the prohi-




13

bition. In other words, the government cannot impose a condition for a reason not

germane to one that would have justified denial of the benefit.”) (citations and quota-

tion marks omitted); see also Robert L. Hale, Unconstitutional Conditions and Constitutional

Rights , 35 COLUM. L. R EV . 321, 350-52 (1935); Kathleen M. Sullivan, Unconstitutional

Conditions , 102 H ARV . L. R EV . 1415, 1456-76 (1989). The conditions that Texas has

imposed on participants in the State’s WHP easily satisfy the germaneness test.

The Texas Legislature created the Women’s Health Program to expand access

to preventative health and family-planning services among low-income women who

do not qualify for Medicaid. One important aim of the program is to reduce elective

abortions by preventing unwanted pregnancies; WHP achieves this end by subsidizing

birth-control strategies but not elective abortion. This is a legitimate and constitu-

tionally permissible goal for States to pursue, so long as they do not impose “undue

burdens” on women who want an abortion. See Harris v. McRae , 448 U.S. 297 (1980)

(holding that States are permitted to allocate tax subsidies in a manner that prefers al-

ternatives to abortion over abortion).

The Texas Legislature excluded Planned Parenthood from the program for two

reasons—both of which are germane to the benefits that WHP seeks to provide.

First, Planned Parenthood’s mission and philosophy is fundamentally inconsistent

with the goals of the Women’s Health Program. The Women’s Health Program is de-

signed to promote women’s health and reduce unwanted pregnancies by encouraging

family-planning methods and birth-control strategies, while specifically excluding




14

abortion. The Women’s Health Program does not pay for abortions, and it seeks to

reduce abortions and unwanted births by encouraging women to avoid unintended

pregnancies before the fact, rather than aborting their fetuses after the fact. Although

Planned Parenthood shares some of the program’s goals (such as promoting women’s

health and reducing unwanted pregnancies), it also contravenes the very purpose of

the program by actively promoting elective abortion as an appropriate and ethical

means of birth control. Planned Parenthood and its affiliates have every right to hold

that belief and advocate for elective abortion, but they are not entitled to receive tax-

payer subsidies from a government program that is designed to encourage preventa-

tive birth control and discourage abortion.

It is no answer to say that Planned Parenthood finances its abortion-related ac-

tivities and advocacy with funds that come from outside the State’s coffers. Planned

Parenthood does not provide any assurance that the tax subsidies it receives from the

Women’s Health Program have not been used directly or indirectly to subsidize its

advocacy of elective abortion. Nor is it possible for Planned Parenthood to provide

this assurance. Money is fungible, and taxpayer subsidies—even if “earmarked” for

nonabortion activities—free up other resources for Planned Parenthood to spend on

its mission to promote elective abortions. Cf. Holder , 130 S. Ct. at 2725-26 (because

“[m]oney is fungible,” First Amendment does not prohibit application of federal ma-

terial-support statute to individuals who give money to “humanitarian” activities per-

formed by terrorist organizations). Planned Parenthood’s involvement in the Wom-




15

en’s Health Program enables Planned Parenthood affiliates across the country to redi-

rect their fundraising efforts toward their abortion-related activities, now that their

non-abortion activity receives a generous subsidy from state taxpayers. Id. (noting

that “money is fungible” and that when organizations “that have a dual structure raise

funds, they highlight the civilian and humanitarian ends to which such moneys could

be put.”). And by empowering Planned Parenthood to expand its provision of pre-

ventative health care and family-planning services throughout the State, it enables

Planned Parenthood to cultivate additional paying clients and makes those patients

more receptive to Planned Parenthood’s ideology—even though the services are

funded by the taxpayers of Texas rather than Planned Parenthood donors who sup-

port its desire to promote abortion.

Planned Parenthood was excluded from the Women’s Health Program for a

second reason: Planned Parenthood’s exclusion was necessary to persuade the Texas

House of Representatives, the Texas Senate, and the Governor to establish the Wom-

en’s Health Program in 2005. Without the Planned Parenthood exclusion, the Wom-

en’s Health Program would not exist because the statute creating it would never have

been enacted into law. And if Planned Parenthood succeeds in persuading this Court

to put Texas to the all-or-nothing choice of operating a women’s health program that

provides taxpayer subsidies to Planned Parenthood or having no program at all, state

law requires HHSC to “ensure” that no taxpayer flows to abortion-promoting entities,

which means that the program will cease to exist and cannot be revived. The legisla-




16

tors duly elected to represent the interests of their constituents object to Planned

Parenthood’s mission, and they are not willing to support any government program

that causes Planned Parenthood to receive taxpayer subsidies—no matter how much

good that program may accomplish. There is nothing a federal court can do to change

that legislative policy prerogative. The exclusion of Planned Parenthood is therefore

“germane” to benefits provided by the Women’s Health Program, because without

that restriction there would be insufficient legislative support for the program to exist.

II.

DEFENDANT WILL SUFFER IRREPARABLE INJURY A BSENT A S TAY .

Refusing to stay the district court’s injunction will prevent the State from en-

forcing a statute duly enacted by the Texas Legislature. The 2005 Act passed with

overwhelming majorities, and it is undisputed that the administrative rule faithfully

implements the 2005 Act. See Order at 9; Doc. 24-1. Enjoining the enforcement of

democratically enacted legislation harms the State by keeping its Legislature from im-

plementing the will of the people that they represent. See New Motor Vehicle Bd. v. Or-

rin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a

State is enjoined by a Court from effectuating statutes enacted by representatives of

its people, it suffers a form of irreparable injury.”); Coal. for Econ. Equity v. Wilson , 122

F.3d 718, 719 (9th Cir. 1997) (“[I]t is clear that a state suffers irreparable injury when-

ever an enactment of its people . . . is enjoined.”).




17

III. ISSUING A S TAY WILL NOT SUBSTANTIALLY INJURE O THER P ARTIES

INTERESTED IN THE LITIGATION.

On the other side of the balance, Planned Parenthood has not clearly shown

that enforcement of the law pending appeal will cause it irreparable injury. Through

unsworn declarations, Planned Parenthood claims that it will be deprived of hundreds

of thousands in taxpayer funding, and suggests that it may be forced to shut down

clinics, though it “hope[s] it will not come to this.” See, e.g ., Mot. for Prelim. Inj. Ex.

L at 4; Ex. K at 3. But monetary damages incurred by private plaintiffs rise to the lev-

el of irreparable injury if and only if the private party’s “financial viability is threat-

ened.” Caballo Coal Co. v. Indiana Michigan Power Co., 305 F.3d 796, 801 (8th Cir. 2002).

None of the plaintiffs has demonstrated that its “financial viability is threatened”; at

very most, they have baldly asserted that they may , at some point in the future, have to

close one or more of their hundreds of clinics because their revenues from the State

of Texas and its taxpayers may drop. See Order at 20. A temporary loss of public

funding is neither a substantial nor irreparable injury. See People Who Care v. Rockford

Bd. of Educ. Dist. No. 205 , 921 F.2d 132, 135 (7th Cir. 1991) (“[Plaintiffs] prefer money

now to money later, but the difference is not an irreparable loss . . . .”) (Easterbrook,

J.).

Moreover, plaintiffs’ allegations of harm are speculative and conclusory. Plain-

tiffs have not alleged—much less shown with the certainty that should be demanded

for winning a federal injunction against a State official—particularized facts to support




18

their allegations of harm. Cf. Bell Atl. Corp. v. Twombly , 550 U.S. 544 (2007). Planned

Parenthood also has not shown that any losses in State reimbursements will not be

recouped from private donations or other sources. To the contrary, Planned

Parenthood has demonstrated that it does not need taxpayer money to thrive. See

Meghan McCarthy, Planned Parenthood Raises $3 Million in Wake of Komen Funding Contro-

versy , N ATIONAL JOURNAL (Feb. 3, 2012).

Moreover, Plaintiffs have not shown that the temporary loss of taxpayer money

will prevent a single woman from undergoing an abortion, or that it will prevent a sin-

gle Plaintiff from affiliating with anyone. Planned Parenthood simply and incorrectly

claims that a federal-court injunction is the only way to prevent irreparable injury to

the women of Texas. But as Commissioner Suehs explained in a sworn affidavit if

Planned Parenthood obtains the relief it seeks, it will cause the entire Women’s Health

Program to be shut down. It is in the best interest of Texas women for this Court to

ensure that does not happen by staying the preliminary injunction pending appeal.

IV. A S TAY PENDING A PPEAL IS BY DEFINITION IN THE PUBLIC INTEREST.

A stay of the preliminary injunction would allow Defendants to carry out the

statutory policy of the Legislature, which “is in itself a declaration of the public inter-

est which should be persuasive.” Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515,

552 (1937). See also Ill. Bell Tel. Co. v. WorldCom Techs., Inc., 157 F.3d 500, 503 (7th Cir.

1998) (“When the opposing party is the representative of the political branches of a




19

government the court must consider that all judicial interference with a public pro-

gram has the cost of diminishing the scope of democratic governance.”).

V. THE TRIAL COURT’S F AILURE TO ORDER THE PLAINTIFFS TO POST

SECURITY PURSUANT TO R ULE 65(C) R EQUIRES R EVERSAL OF THE

INJUNCTION.

The district court decided, without any explanation, that no bond would be re-

quired from Plaintiffs under Federal Rule of Civil Procedure 65(c). Order at 23. This

Court has held that the failure to require a bond, alone, is sufficient to reverse an in-

junction. Nichols v. Alcatel USA, Inc., 532 F.3d 364, 379 (5th Cir. 2008); Phillips v.

Charles Schreiner Bank, 894 F.2d 127, 131 (5th Cir. 1990); Continuum Co. v. Incepts, Inc.,

873 F.2d 801, 804 (5th Cir. 1989); see also FED. R CIV . P. 65(c) (preliminary injunction

may issue “only if” the movant gives proper security). The bond requirement ensures

that the enjoined party may collect its damages should a court eventually determine

that the injunction was wrongful. Phillips , 894 F.2d at 131. If a plaintiff cannot post a

sufficient bond, an injunction should not issue. Nichols , 532 F.3d at 379.

In the present case, Plaintiffs receive funding of over $1 million a month. Or-

der at 19 (noting that Plaintiffs receive $13.5 million in annual funding). Should the

State ultimately prevail in this suit, it will have no recourse to recover those taxpayer

dollars spent contrary to State law. Moreover, Plaintiffs have given no indication that

they have the means to repay such an amount to the State, failing to brief the bond

issue entirely. The trial court’s failure to order any type of security requires reversal of




20

the injunction, and should Plaintiffs be unable to post sufficient security, no injunc-

tion should be permitted.

CONCLUSION

The district court’s preliminary injunction should be stayed pending appeal.




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Respectfully submitted.

GREG ABBOTT Attorney General of Texas

DANIEL T. HODGEFirst Assistant Attorney General

DAVID C. MATTAX Deputy Attorney General for Defense Litigation


JONATHAN F. MITCHELLSolicitor GeneralState Bar No. 24075463

ANDREW S. OLDHAMDeputy Solicitor General

ARTHUR C. D’ANDREA Assistant Solicitor General

MICHAEL P. MURPHY Assistant Solicitor General

OFFICE OF THE A TTORNEY GENERAL P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548 Tel. (512) 936-1695Fax. (512) 474-2697

Counsel for Defendant




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CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of April, 2012, a copy of this Emergency

Motion was served via the CM/ECF system to Plaintiffs’ counsel.

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELLCounsel for Defendant-Appellant




CERTIFICATE OF ELECTRONIC COMPLIANCE

Counsel also certifies that on April 30, 2012, the foregoing Emergency Motionof Appellant to Stay Preliminary Injunction Pending Appeal was transmitted to Mr.Lyle W. Cayce, Clerk of the United States Court of Appeals for the Fifth Circuit, viathe Court’s CM/ECF Document Filing System, https://ecf.ca5.uscourts.gov/.

Counsel further certifies that: (1) required privacy redactions have been made,5 TH CIR . R. 25.2.13; (2) the electronic submission is an exact copy of the paper docu-ment, 5 TH CIR . R. 25.2.1; and (3) the document has been scanned with the most re-cent version of Symantec Endpoint Protection and is free of viruses.


Jonathan F. MitchellCounsel for Defendant-Appellant

CERTIFICATE OF CONFERENCE

On April 30, 2012, we conferred with counsel for plaintiffs and they opposethis motion and intend to file an opposition.

/s/ Jonathan F. Mitchell Jonathan F. MitchellCounsel for Defendant-Appellant


WHP Stay Request

Documents

Transcript of WHP Stay Request