In view of this Court's Rule 58 permitting a petition for
rehearing to be granted only by a Justice who concurred in the
initial judgment or decision, MR. JUSTICE MARSHALL abstains from
acting on an application for stay, pending a petition for
rehearing, of the Court's order vacating the District Court's
judgment and remanding for further consideration in light of
Maher v. Roe, 432 U. S. 464, and
Beal v. Doe, 432 U. S. 438,
since he dissented in both of those cases.
MR. JUSTICE MARSHALL, Circuit Justice.
Section 209 of Pub.L. 9 139, 90 Stat. 1434, generally prohibits
the Secretary of Health, Education, and Welfare from expending
federal Medicaid funds for abortions. In the instant case, the
United States District Court for the Eastern District of New York
enjoined operation of the law. On June 29, 1977, this Court entered
the following order:
"The judgment is vacated and the case is remanded to the United
States District Court for the Eastern District of New York for
further consideration in light of
Maher v. Roe,
432 U. S.
464 (1977), and
Beal v. Doe, 432 U. S.
438 (1977)."
See 433 U.S. 916.
This is an application for
"a stay of execution of this Court's vacatur of the district
court's injunction of Section 209 of Public Law 94-439 (the 'Hyde
Amendment') and/or, in the alternative for a stay as follows: "
Page 434 U. S. 1302
"1. A stay, pending conclusion of the district court's
reconsideration of this case in light of
Maher v. Roe,
432 U. S.
464 (1977), and
Beal v. Doe, 432 U. S.
438 (1977), as ordered by this Court on [June] 29, 1977,
in this case. A stay is necessary to prevent irreparable harm
during the remand proceedings in the district court and to assure
full and effective presentation to and consideration by the
district court of the issues left open by this Court's remand
order; and/or in the alternative,"
"2. A stay, pending the timely filing and disposition in this
Court of a petition for rehearing pursuant to Rule 59(2) of this
Court."
It is obvious that, in essence, applicants seek to have this
Court reconsider its order vacating the District Court's judgment,
and seek an injunction to protect them during the consideration of
a petition for rehearing. It is also clear that the controlling
legal precedents bearing on whether to grant rehearing are
Maher v. Roe, 432 U. S. 464
(1977), and
Beal v. Doe, 432 U. S. 438
(1977). I dissented in both of those eases. This Court's Rule 58
governing rehearings provides:
"A petition for rehearing . . . will not be granted,
except
at the instance of a justice who concurred in the judgment or
decision and with the concurrence of a majority of the
court."
(Emphasis added.) For that reason, I have decided to abstain on
this application, and suggest that the application be made to one
of the Justices "who concurred in the judgment or decision" in
Maher and
Beal.
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