The Supreme Court/The Supreme Court.iso/pc/ascii/1994/order/082294.zr

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SUPREME COURT OF THE UNITED STATES
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No. A-124
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EDWIN EDWARDS, GOVERNOR OF LOUISIANA,
et al., v. HOPE MEDICAL GROUP
FOR WOMEN, et al.
on application for stay
[August 17, 1994]

  Justice Scalia, Circuit Justice.
  Applicants, officers of the State of Louisiana, ask that
I stay an order entered by the United States District
Court for the Eastern District of Louisiana which enjoins
them from enforcing La. Rev. Stat. Ann. 40:1299.34.5
(West 1994) while at the same time accepting federal
Medicaid funds pursuant to Title XIX of the Social
Security Act, 42 U. S. C. 1396 et seq.  The District
Court stayed its judgment until 5:00 p.m. on August 19,
1994.  Yesterday, the Court of Appeals for the Fifth
Circuit unanimously denied the applicants' motion for
stay pending appeal.
  Section 40:1299.34.5 provides in relevant part:
[N]o public funds . . . shall be used in any way for,
to assist in, or to provide facilities for an abortion,
except when the abortion is medically necessary to
prevent the death of the mother.
The District Court concluded that this statute was
inconsistent with what it determined to be the require-
ment of Title XIX, as modified by the 1994 version of
the Hyde Amendment, Pub. L. No. 103-112 509, 107
Stat. 1082, 1113 (1993), that States participating in the
Medicaid program fund medically necessary abortions
upon fetuses conceived by acts of rape or incest.
Accordingly, it ordered applicants either to cease
enforcing section 40:1299.34.5 or to withdraw from
participation in the Medicaid program.  Hope Medical
Group for Women v. Edwards, No. 94-1129 (E.D. La.
July 28, 1994).
  The practice of the Justices has consistently been to
grant a stay only when three conditions obtain.  There
must be a reasonable probability that certiorari will be
granted, a significant possibility that the judgment below
will be reversed, and a likelihood of irreparable harm
(assuming the applicant's position is correct) if the
judgment below is not stayed.  Barnes v. E-Systems, Inc.
Group Hosp. Medical & Surgical Ins. Plan, ___ U. S.
___, ___, 112 S. Ct. 1, 2 (1991) (Scalia, J., in chambers).
Moreover, when a District Court judgment is reviewable
by a Court of Appeals that has denied a motion for a
stay, the applicant seeking an overriding stay from this
Court bears -an especially heavy burden,- Packwood v.
Senate Select Comm. on Ethics, ___ U. S. ___, ___, 114
S. Ct. 1036, 1037 (1994) (Rehnquist, C.J., in chambers).
  Under this standard, I have no authority to stay the
judgment here.  The only issue potentially worthy of
certiorari is the premise underlying the District Court's
decision: that Title XIX requires States participating in
the Medicaid program to fund abortions (at least
-medically necessary- ones) unless federal funding for
those procedures is proscribed by the Hyde Amendment.
The Courts of Appeals to address this question have
uniformly supported that premise.  See Roe v. Casey,
623 F. 2d 829, 831, 834 (CA3 1980); Hodgson v. Board
of County Comm'rs, 614 F. 2d 601, 611 (CA8 1980);
Zbaraz v. Quern, 596 F. 2d 196, 199 (CA7 1979), cert.
denied, 448 U. S. 907 (1980); Preterm, Inc. v. Dukakis,
591 F. 2d 121, 126-27, 134 (CA1), cert. denied, 441
U. S. 952 (1979).  We have already denied certiorari in
two of those cases, and it is in my view a certainty that
four Justices will not be found to vote for certiorari on
the Title XIX question unless and until a conflict in the
Circuits appears.
  Accordingly, the application for a stay of the judgment
of the District Court for the Eastern District of Louisi-
ana is denied.