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SUPREME COURT OF THE UNITED STATES
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No. A-742
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FARGO WOMEN'S HEALTH ORGANIZATION, ET
AL., APPLICANTS v. EDWARD T. SCHAFER, ____
GOVERNOR OF NORTH DAKOTA, ET AL.
ON APPLICATION FOR STAY AND INJUNCTION
PENDING APPEAL
[April 2, 1993]
The application for stay and injunction pending appeal, presented to JUSTICE
BLACKMUN and by him referred to the Court, is denied. The order heretofore
entered by JUSTICE BLACKMUN on March 31, 1993 is vacated.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins, concurring.
Applicants challenged certain provisions of the North Dakota Abortion Control
Act, N. D. Cent. Code S14-02.1-01 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) (slip op., at 5-6) (quoting Salerno, supra, at 745 (1987)). 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 A-742 - APPLICATION
2 FARGO WOMEN'S HEALTH ORGANIZATION v. SCHAFER ____
District Court that the Salerno standard applied and concluded that this Court's _______
decision last Term in Planned Parenthood of Southeastern Pennsylvania v. Casey, _______________________________________________ _____
505 U. S. ___ (1992), did not counsel a different approach. See Fargo Women's _____________
Health Organization v. Schafer, No. 93-1579 (Mar. 30, 1993) (slip op., at 5-7). ___________________ _______
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 ________ ______
(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 District, 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 ___ A-742 - APPLICATION
FARGO WOMEN'S HEALTH ORGANIZATION v. SCHAFER 3 ____
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, 502 U. S., at ___. 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 ___-___ (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.
JUSTICE BLACKMUN and JUSTICE STEVENS would grant the application.