David Pickup, et al. v. Gavin Newsom, Governor of California, et al.

When this Court ruled that California’s Reproductive FACT Act violates the First Amendment, National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361, 2371- 74 (2018) (“NIFLA”), it also abrogated by name the panel decision at bar, rendering it demonstrably wrong. Other circuits when confronted with supervening decisions by this Court that do not mention a lower court opinion by name but place its core holdings in question have recalled the mandate. See e.g., Am. Iron & Steel Inst. v. E.P.A., 560 F.2d 589, 596–97 (3d Cir. 1977). However, here, the Ninth Circuit refused to recall the mandate, leaving in place a blatant content-based violation of the First Amendment that creates irreparable harm each day the mandate is not recalled. See Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). The questions presented are:

1. Whether the Court of Appeals erred when it refused to recall its mandate after this Court explicitly abrogated its opinion by name.

2. Whether a lower court mandate should be recalled when this Court expressly abrogates the ruling by name and when the