STATE OF NORTH DAKOTA IN DISTRICT COURT COUNTY OF BURLFIGH SOUTH CENTRAL JUDICIAL DISTRICT Access Independent Health Services, Inc., d/b/a Red River Women’s Clinic, on behalf of itself and its patients, and Kathryn L. Eggleston, M.D., on behalf of herself and her | BRIEF IN SUPPORT OF EXPEDITED patients, MOTION FOR STAY OF ORDER PENDING APPEAL, Plaintiffs, vs Civil No. 08-2022-CV-01608 Drew H. Wrigley, in his official capacity as Attorney General for the State of North Dakota; Birch P. Burdick, in his official capacity as the State Attomey for Cass County, Defendants Introduction and Background [41] On August 25, 2022, this Court issued a Preliminary Injunction enjoining N.D.C.C. § 12.1- 31-12, (R95). In its Order granting Red River Women’s Clinic’s (*RRWC”) Motion for Preliminary Injunction, the Court recognized “the central question in the... case is one of a purely legal matter, that is the constitutionality of § 12.1-31-12.” (R9S:3:47). And, “the underlying issue before the Court has no questions of facts.” (R95:4:47). The Court also recognized that neither the North Dakota Supreme Court nor the Court has declared a right to abortion under the North Dakota Constitution. (R95:4°10). [2] Although the Court clearly recognized the importance of the legal question at issue in the case, and that there is no right to an abortion under the State Constitution, the Court made no ndings towards the substantial probability of succeeding on the merits”, the first of four factors a court uses to evaluate motions for preliminary injunctions. (R95:4:47). The Court declined to make the finding because, the Court reasoned, this “would essentially have the Court determine the final validity of the parties’ claims.” Jd The Court granted the Plaintiffs’ Motion for a Preliminary Injunction based upon remaining factors. (R9S:4-6).Argument [43] _ Under Rule 62(d) of the North Dakota Rules of Civil Procedure, a party may obtain a stay of an interlocutory order that grants an injunction, See also N.D.R.App.P. 8(a)(1) (Ordinarily a party must first move in the district court to obtain a stay of a district court order pending appeal. ); see also Lund v. Lund, 2011 ND 53, { 20-21, 795 N.W.2d 318. No bond, obligation, or other security is required when the State moves for a stay, N.D.R.Civ.P, 62(e). In Cass County Joint Water Resource District v. Aaland, the North Dakota Supreme Court explained its criteria for deciding whether to grant an application for a stay: 1) astrong showing that the appellant is likely to succeed on appeal; 2) that unless the stay is granted, the appellant will suffer irreparable injury; 3) that no substantial harm will come to any party by reason of the issuance of the stay; and 4) that granting the stay will do no harm to the public interest. 2020 ND 196, { 4, 948 N.W.2d 829. L The State has made a strong showing that it is likely to succeed on appeal [S41 A stay of this Court’s Order enjoining Section 12.1-31-12 is justified here because the Court did not consider all four factors necessary to evaluate a motion for a preliminary injunction. Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, § 12, 875 N.W.2d 515. The Court cannot omit consideration of the “substantial probability of success on the merits” factor when consideration bears on the ultimate question in the case [45] In Libertarian Party of Arkansas v. Thurston, the Eighth Circuit Court of Appeals recently explained, in the context of the four factors for an injunetion recognized by the Court in Dataphase sstems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981), that “parties seeking to preliminarily enjoin the ‘implementation of a state statute’ must demonstrate that they are ‘likely to prevail on the merits.” 962 F.3d 390, 399 (8th Cir. 2020) (quoting Rodgers v. Bryant, 942 F.3d 451,455 (8th Cir. 2019)).' “This heightened standard ‘reflects the idea that governmental policies ' When a state rule is derived from a corresponding federal rule, the federal courts’ interpretation of the federal rule may be persuasive authority when interpreting our rule.” Johnson v. Menard, Inc., 2021 ND 19, 10, 955 N.W.2d 27 (quoting White v. T.P. Motel, L.L.C., 2015 ND 118, 420, 863 N.W.2d 915), see also Vorachek v. Citizens State Bank of Lankin, 461 N.W 2d 580, 585 (N.D. 1990) (relying upon Dataphase).implemented through legislation .. . [and] developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly."” /d. at 455 (quoting Rodgers, 942 F.3d, at 455-56). This is a heightened standard when compared to the “fair-chance of success” standard. See Sleep No. Corp. v. Young, 33 F.Ath 1012, 1016 (8th Ci 2022), “If the party with the burden of proof makes a threshold showing that itis likely to prevail on the merits, the district court should then proceed to weigh the other Dataphase factors.” Planned Parenthood Minn., N.D., S.D. v. Rounds, $30 F.3d 724, 732 (8th Cir. 2008), Conversely if the party does not satisfy the factor, consideration of the additional factors is unnecessary. [6] The North Dakota Supreme Court's decision in Black Gold OilField Services contemplates that a court may only consider substantial probability of success on the merits, without evaluating the other factors even when the implementation of a state statute is not being challenged. 2016 ND 30, §|27, 875 N.W.2d 515. In that case a district court denied a motion for preliminary injunction because the plaintiff failed to establish a substantial probability of succeeding on the merits of its underlying lawsuit. /d. The plaintiff subsequently appealed the district court’s denial of its request for a preliminary injunction. /d. at 1 ‘The North Dakota Supreme Court concluded the district court did not abuse its discretion by denying Black Gold’s request for a preliminary injunetion. Id. at $27. The Supreme Court further concluded the district court did not need to address the other factors for granting or denying a preliminary injunction, beyond probability of success on the merits, because Black Gold failed to establish this factor. Id. [47] Respectfully, the Court should have expressly evaluated RRWC’s “substantial probability Of success on the merits” standard, even when the factor considers the primary legal issue in the case, Consideration of this factor always addresses the legal merits of the movants claims. ‘The ‘omission of this factor from the Court’s Order is inconsistent with applicable state and federal precedent, and creates a fatal defect in the Court’s Order, > The North Dakota Supreme Court treated Black Gold’s appeal as a petition for the exercise of the Court's supervisory jurisdiction. Black Gold OilField Servs., 2016 ND 30, €€ 1, 9-10, 875 N.W.2d 515; but see N.D.C.C. § 28-27-02(3), Mann v. N.D. Tax Comm'r, 2005 ND 36, € 8, 692 N.W.2d 490.Il. The State will suffer irreparabl \jury if the stay is not granted. [48] The State will be irreparably harmed if the Court does not stay its injunetion of N.D.C.C. § 12-1.31-12, because this legislation, developed through a presumptively democratic process, is entitled to a high degree of deference. Libertarian Party of Ark., 962 F.3d at 455. Failure to expressly evaluate or consider RRWC’s probability of success on the merits irreparably injures the government's interest in the law and the democratic process for enacting the law II No substantial harm will come to any party by reason of issuance of the stay and granting of the stay will do no harm to the public interest. [19] No substantial harm will come to RRWC and the granting of the stay will not harm the public interest, because the State Constitution does not contain or provide a fundamental right to abortion, And, RRWC has not proven the State Constitution contains such a right; a stay of the Court’s Order is not inconsistent with the State Constitution, Furthermore, application of Section 12.1-31-12 while this case is decided will not cause substantial harm to RWC or harm the public interest because there is no recognized state constitutional right to be harmed [{10] The only right the Court could have preserved as the status quo was the federal constitutional right to an abortion recognized by the United States Supreme Court’s decisions in Roe v. Wade, 410 U.S, 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). This Court recognized those cases were overruled by the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. 142 8, Ct. 2228 (2022 Continued reliance upon overruled precedent as a basis for harm has no basis in the law, and such precedent cannot be construed as the “status quo.” Conelusion [11] ‘The State respectfully requests that the Court stay its Order enjoining N.D.C.C § 12.1-31-12.Dated this 8"" day of September, 2022 State of North Dakota Drew H. Wrigley Attorney General By: is/ Matthew A. Sagsveen ___ Matthew A. Sagsveen Solicitor General State Bar ID No, 05613 Email masagsve@nd,gov si Courtney R. Titus Courtney R. Titus Assistant Attorney General State Bar ID No, 08810 Office of Attorney General 500 North 9" Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Email ctitus@nd,gov Attomeys for State Defendant