Debevoise & Plimpton LLP delivered arguments in the United States Fifth Circuit Court of Appeals against efforts by the state of Louisiana to use a writ of mandamus, an extraordinary writ typically reserved for extraordinary circumstances, to prematurely stop a lawsuit against state statutes and regulations that makes it almost impossible for abortion facilities to remain open.
The underlying case, which Debevoise & Plimpton and the Center for Reproductive Rights filed in 2017, argues that certain sections of the state’s Outpatient Abortion Facility Licensing Law and several “Sham Health Statutes”, as with many so-called health laws around the country, are designed solely to create onerous restrictions for abortion facilities. In Louisiana, the number of abortion clinics has dropped from 11 to three since 2001, when the licensing law took effect.
Louisiana filed its petition with the Fifth Circuit after losing a motion to have the case dismissed at the district level. The petition seeks a writ from the Court of Appeals to dismiss key portions of the case preemptively, before discovery and a hearing on the merits in the district court.
Shannon Rose Selden, the partner leading the Debevoise team, argued that the Court of Appeals should not bypass the District Court, and should not foreclose discovery on these urgent constitutional claims. In her argument, which was covered in depth by the National Law Journal, Selden warned, “The only question before this panel today is how far it is willing to go to bypass the ordinary rules of civil and appellate procedure to create a fast track for merits review in abortion cases.”
She also urged the court not “to be in the business of reviewing the factual allegations of a complaint after the denial of a motion to dismiss,” saying that “defendants would line up down the block” if they thought they could petition for mandamus whenever a trial judge denied a motion to dismiss.
“One of the great promises of the federal rules and process is any litigant can file a claim and will be heard and the same rules apply to all,” Selden said.
The Debevoise team is led by partner Shannon Rose Selden and includes partner Courtney Dankworth and associates Kelsey Gann, Carolina Kupferman, Nina Monfredo, Gabriel Panek, Zachary Saltzman and Brooke Willig.
To hear oral arguments in this case, click here.
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