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- SUPREME COURT OF THE UNITED STATES
- --------
- No. A-742
- --------
- 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
- 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) (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
- 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 applica-
- tions only -upon the weightiest considerations.- O'Rourke
- v. Levine, 80 S. Ct. 623, 624 (1960) (Harlan, J., in cham-
- bers). 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
- 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.
-