Case: 19-30353 Document: 00515163811 Page: 1 Date Filed: 10/18/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 18, 2019 No. 19-30353 Lyle W. Cayce Clerk In re: REBEKAH GEE, in her official capacity as Secretary of the Louisiana Department of Health; JAMES E. STEWART, SR., in his official capacity as District Attorney for Caddo Parish, Petitioners. Petition for a Writ of Mandamus to the United States District Court for the Middle District of Louisiana Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges. PER CURIAM: This is an extraordinary case. An abortion clinic and two of its doctors seek a federal injunction against virtually all of Louisiana’s legal framework for regulating abortion. As part of this effort, Plaintiffs challenge legal provisions that do not injure them now and could not ever injure them. The district court, however, concluded it would be “untenable” to make Plaintiffs establish their standing because doing so would make it more difficult for them to succeed on the merits. That was obvious error. Still, we exercise our discretion not to grant Defendants’ mandamus petition at this time because we are confident it is unnecessary. I. Plaintiffs brought a “cumulative-effects challenge” to Louisiana’s laws regulating abortion. They argued the provisions taken as a whole were unconstitutional, even if the individual provisions were not. Louisiana moved Case: 19-30353 Document: 00515163811 Page: 2 Date Filed: 10/18/2019 No. 19-30353 to dismiss on jurisdictional grounds and because Plaintiffs’ theory is foreclosed by precedent. The district court denied the motion to dismiss but certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained the cumulative-effects issue is one “of first impression that requires the interpretation of recent Supreme Court precedent without the benefit of clarification from the [Fifth Circuit].” May 15, 2018 Order, Doc. 76 at 3. Plaintiffs then persuaded the district court to rescind the certification so they could amend their complaint to add individual-effect challenges to some of the provisions. After Plaintiffs amended their complaint, Louisiana again moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The district court again denied the motion. But this time, the district court did not certify its decision for interlocutory appeal. It’s difficult to understand why because the court found that the Amended Complaint still contained a “cumulative effects cause of action” and that “[w]ith respect to the applicable law which guides this Court, nothing has appreciably changed.” March 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of heart, the district court concluded “this is not a case of first impression.” Id. at 20. Stranger still, the district court refused to consider Louisiana’s jurisdictional arguments because doing so might make it difficult for Plaintiffs to prevail on the merits. Id. at 15. The court acknowledged Louisiana’s argument that Plaintiffs’ challenges to certain provisions “could not possibly be justiciable” and said that argument “appear[ed] persuasive” “[i]n a vacuum.” ...
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