AMENDED

United States Court of Appeals

for the Fifth Circuit ____________ 

No. 17-51060

____________ 

Whole Woman’s Health, on behalf of itself, its staff, physicians and 

patients; Planned Parenthood Center for Choice, on behalf of 

itself, its staff, physicians, and patients; Planned Parenthood of 

Greater Texas Surgical Health Services, on behalf of itself, its 

staff, physicians, and patients; Planned Parenthood South Texas 

Surgical Center, on behalf of itself, its staff, physicians, and patients; 

Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff, 

physicians, and patients, doing business as Alamo Women’s 

Reproductive Services; Southwestern Women’s Surgery 

Center, on behalf of itself, its staff, physicians, and patients; Curtis 

Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe, 

M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik 

Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients; 

Alan Braid, M.D., on his own behalf and on behalf of his patients; 

Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her 

patients,

Plaintiffs—Appellees,

versus

Ken Paxton, Attorney General of Texas, in his official 

capacity; John Creuzot, District Attorney for Dallas 

County, in his official capacity; Sharen Wilson, Criminal 

District Attorney for Tarrant County, in her official 

capacity; Barry Johnson, Criminal District Attorney for 

McLennan County, in his official capacity,

Defendants—Appellants.

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2020

Lyle W. Cayce

Clerk
No. 17-51060

2

_______________________________ 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:17-CV-690

_______________________________ 

Before Stewart, Dennis, and Willett, Circuit Judges.

IT IS ORDERED that Appellants’ joint opposed motion for stay 

pending appeal is DENIED.
No. 17-51060

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James L. Dennis, Circuit Judge.

Nearly 1,000 days ago, a federal district court declared that Texas 

Senate Bill 8 placed an undue burden on a woman’s right to access a previability abortion and enjoined its enforcement. Texas appealed that same 

day. Now, almost three years later, the State seeks to stay the judgment 

below. Because the State’s motion is procedurally improper, it must be 

denied.

I.

As an initial matter, we address our dissenting colleague’s view that 

the motion should be granted, and this case remanded, because the governing 

legal standards have supposedly changed in light of the Supreme Court’s 

decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020). 

Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 

(2020), has not disturbed the undue-burden test, and Whole Woman’s Health 

v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit. 

June Medical was a 4-1-4 decision. “Ordinarily, ‘[w]hen a fragmented

Court decides a case and no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be viewed asthe position

taken by those Members who concurred in the judgment[] on the narrowest

grounds.’” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 

2013) (first alteration in original) (quoting Marks v. United States, 430 U.S. 

188, 193 (1977)). But as we have repeatedly explained, this “principle . . . is

only workable where there is some ‘common denominator upon which all of

the justices of the majority can agree.’” Id. (quoting United States v. Eckford,

910 F.2d 216, 219 n. 8 (5th Cir. 1990)). When a concurrence does not share 

a “common denominator” with, or cannot “be viewed as a logical subset of,” 

a plurality’s opinion, it “does not provide a controlling rule” that establishes 

or overrules precedent. Id.
No. 17-51060

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In June Medical, the only common denominator between the plurality 

and the concurrence is their shared conclusion that the challenged Louisiana 

law constituted an undue burden. Compare 140 S. Ct. at 2132 (plurality 

opinion), with id. at 2141-42 (Roberts, C.J., concurring in the judgment). 

What they obviously disagreed on is the proper test for conducting the 

undue-burden analysis: the plurality applied Hellerstedt’s balancing of the 

law’s burdens against its benefits, while the concurrence analyzed only the 

burdens. Compare 140 S. Ct. at 2132, with id. at 2141-42. Indeed, the Chief 

Justice expressly disavowed the plurality’s test. See id. at 2136; cf. DuronCaldera, 737 F.3d at 994 n.4 (holding that, in the Supreme Court’s decision

in “Williams[ v. Illinois, 132 S. Ct. 2221 (2012)], there is no such common

denominator between the plurality opinion and Justice Thomas’s concurring

opinion. Neither of these opinions can be viewed as a logical subset of the

other. Rather, Justice Thomas expressly disavows what he views as ‘the

plurality’s flawed analysis,’ including the plurality’s ‘new primary purpose

test.’” (quoting Williams, 132 S. Ct. at 2255, 2262 (Thomas, J., concurring) 

(emphasis added))).

Thus, under our Circuit’s reading of the Marks principle, that the

challenged Louisiana law posed an undue burden on women seeking an

abortion is the full extent of June Medical’s ratio decidendi. The decision

does not furnish a new controlling rule as to how to perform the undueburden test. Therefore, Hellerstedt’s formulation of the test continues to

govern this case, and because the district court correctly applied Hellerstedt’s

balancing test, remand is not warranted.

Curiously, the dissent does not cite our relevant precedents or our 

court’s common-denominator/logical-subset rule. Instead, it cites Justice 

Kavanaugh’s statement, in dissent in June Medical, that five Justices 

disapproved of the Hellerstedt’s balancing test for determining undue burden. 

See Dissenting Op. at 2 (quoting June Med. Servs. LLC, 140 S. Ct. at 2182 
No. 17-51060

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(Kavanaugh, J., dissenting)). With all due respect, this observation is of no 

moment in determining the Court’s holding. See 430 U.S. at 193 (explaining 

that when no opinion receives a majority of votes the Court’s holding is 

“viewed as that position taken by those Members who concurred in the 

judgment[] on the narrowest grounds (emphasis added)). And any 

intimation that the views of dissenting Justices can be cobbled together with 

those of a concurring Justice to create a binding holding must be rejected. 

That is not the law in this or virtually any court following common-law 

principles of judgments.

II.

The State’s stay motion is also patently procedurally defective. To 

understand why, it bears emphasizing that the State’s appeal has been 

pending before this court for nearly 1,000 days. Never during this time 

period has the State moved in the district court for a stay. Instead, it asks this 

court to hear in the first instance its profoundly belated motion. But Federal 

Rule of Appellate Procedure 8(2) mandates that the party moving for a stay 

in a court of appeals must have either first tried and failed to obtain a stay in 

the district court or, alternately, “show that moving first in the district court 

would be impracticable.” FED. R. APP. P. 8(a)(2)(A). As noted, Texas 

bypassed the first route. 

As for the second, Texas’s explanations for the purported 

impracticability of moving in the district do not pass muster. The State cites 

Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981), in which we explained that 

stay motions must first be presented to the district court “unless it clearly 

appears that further arguments in support of the stay would be pointless in 

the district court.” But the problem here is that the State does not even 

attempt to explain why it would be “pointless” to move first in the district 

court. Perhaps that is because, under our precedents, it would not be. Cf.
No. 17-51060

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Bayless v. Martine, 430 F.2d 873, 879 (5th Cir. 1970) (“It does not follow from 

the refusal to grant a preliminary injunction pending a trial in the court below 

that the district court would refuse injunctive relief pending an appeal.”). 

The State appears to apply a presumption of bad faith on the part of the 

district court when the appropriate presumption is of course just the 

opposite. See Evans v. Michigan, 568 U.S. 313, 325-266 (2013) (“We presume 

here, as in other contexts, that courts exercise their duties in good faith.”).

Notably, after waiting years to file this motion, the only recent 

development the State identifies is the Supreme Court’s decision in June 

Medical. But that the State may now presume its litigation position to be more 

favorable due to an intervening Supreme Court decision clearly does not bear 

on its ability to move in the district. Preference and impracticability are not 

synonyms. 

The State’s failure to show the impracticability of moving first in the 

district court is sufficient grounds to deny its motion. See, e.g., SEC v. 

Dunlap, 253 F.3d 768, 774 (4th Cir. 2001) (explaining that movant’s failure 

to move first in the district court for a stay or explain why doing so was 

impracticable “constitutes an omission we cannot properly ignore” and thus 

denying the motion (citing Hirschfield v. Bd. of Elections, 984 F.2d 35, 38 (2d 

Cir. 1993) (denying motion to stay judgment because there was ‘no 

explanation why the instant motion for a stay pending appeal was made in the 

first instance to [the appellate court]”))); Baker v. Adams Cnty./Ohio Valley 

Sch. Bd., 310 F.3d 927, 930-31 (6th Cir. 2002) (seeking a stay pending appeal 

first in the district court is “[t]he cardinal principle of stay applications” and 

denying the stay motion where “[t]he defendant did not so move below and 

has not made any showing that such a motion would be impracticable” (first 

alteration in original) (quoting 16A CHARLES ALAN WRIGHT, ARTHUR R.

MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE §

3954 (3d ed. 1999))).
No. 17-51060

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III.

For these reasons, the State’s motion for a stay is denied.

Carl E. Stewart, Circuit Judge, concurs.
No. 17-51060

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Don R. Willett, Circuit Judge, dissenting:

I would grant the State of Texas’s motion to stay the injunction.

The Supreme Court recently divided 4-1-4 in June Medical Services 

LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the

takeaway seems clear: The three-year-old injunction issued by the district 

court in this case rests upon a now-invalid legal standard. See Hopkins v. 

Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020) 

(explaining that June Medical upended the previous cost-benefit balancing 

test for reviewing the constitutionality of abortion restrictions); June Med. 

Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) (“Today, five Members 

of the Court reject the Whole Woman’s Health cost-benefit standard.”). 

I would grant the motion to stay. Additionally, I would remand the 

underlying merits appeal to the district court for reconsideration under the 

now-governing legal standard. See Box v. Planned Parenthood of Ind. & Ky., 

Inc., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020) and Box v. 

Planned Parenthood of Ind. & Ky., Inc., No. 18-1019, 2020 WL 3578669 (U.S. 

July 2, 2020) (remanding “for further consideration in light of June 

Medical”).

Because the majority does otherwise, I respectfully dissent.