Okpalobi v. Foster , 244 F.3d 405 ( 2001 )


Menu:
  •                      REVISED - March 16, 2001
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
                          _____________________
    
                               No. 98-30228
                          _____________________
    
    
    IFEANYI CHARLES ANTHONY OKPALOBI,
    doing business as Gentilly Medical
    Clinic for Women,
    
                                                    Plaintiff-Appellee,
    
    and
    
    CAUSEWAY MEDICAL SUITE; BOSSIER CITY
    MEDICAL SUITE; HOPE MEDICAL GROUP FOR
    WOMEN; DELTA WOMEN’S CLINIC; WOMEN’S
    HEALTH CLINIC; JAMES DEGUERCE;
    A. JAMES WHITMORE, III,
    
                                                  Intervenors-Appellees,
    
                                  versus
    
    MIKE FOSTER, Governor of the State of
    Louisiana; STATE OF LOUISIANA,
    Substituted in place of Kenneth Duncan,
    Treasurer of the State of Louisiana,
    
                                               Defendants-Appellants.
    _________________________________________________________________
    
           Appeal from the United States District Court for the
                       Eastern District of Louisiana
                           USDC No. 97-CV-2214-T
    _________________________________________________________________
                               March 12, 2001
    Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
    WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
    PARKER, and DENNIS, Circuit Judges.*
    
          *
           Fourteen judges participated in this en banc proceeding.
    Seven judges join Judge Jolly’s opinion in full, both with regard
    to standing and the Eleventh Amendment analysis (Jolly, Davis,
    E. GRADY JOLLY, Circuit Judge:
    
           Sitting as an en banc court, we consider whether the district
    
    court properly enjoined the “operation and effect” of the Louisiana
    
    state tort statute at issue, which provides a private cause of
    
    action against medical doctors performing abortions.          Although, in
    
    this   facial   attack   on   the   constitutionality   of   the   statute,
    
    consideration of the merits may have strong appeal to some, we are
    
    powerless to act except to say that we cannot act: these plaintiffs
    
    have no case or controversy with these defendants, the Governor and
    
    Attorney General of Louisiana, and consequently we lack Article III
    
    jurisdiction to decide this case.         Seven members of this en banc
    
    court conclude that the panel was in serious error, as indeed is
    
    the dissent, in finding that this case presents an Ex parte Young
    
    exception to the Eleventh Amendment immunity from suit in federal
    
    court, which these defendants, the Governor and Attorney General of
    
    Louisiana, enjoy.    Accordingly, we reverse, vacate, and remand for
    
    entry of a judgment of dismissal.
    
                                          I
    
    
    
    Jones, Smith, Barksdale, Emilio Garza, and DeMoss). Three judges
    join Judge Jolly’s opinion with regard to standing only (King,
    Higginbotham, and, in part, Benavides). Four judges join Judge
    Parker’s dissent (Parker, Wiener, Stewart, and Dennis). Judge King
    joins Judge Higginbotham’s opinion. However, to fully understand
    the scope of the partial concurrences to Judge Jolly’s opinion, the
    reader is referred to the opinions of Judges Higginbotham and
    Benavides.
    
    
    
    
                                          2
         Dr. Ifeanyi Charles Anthony Okpalobi (“Okpalobi”), joined
    
    through       intervention   by   five   health   care   clinics   and   other
    
    physicians, individuals, and businesses who perform abortions in
    
    the State of Louisiana,1 challenge the constitutionality of La.
    
    R.S. Ann., tit. 9, § 2800.12 (West Supp. 1999), or, more commonly,
    
    “Act 825.”2      The defendants are Mike Foster, Governor of Louisiana,
    
              1
            Because we find no significant distinction between the
    positions of Dr. Okpalobi and the intervening clinics and
    physicians on appeal, we use “plaintiffs” in this opinion to
    include all intervenors as well as Dr. Okpalobi.
         2
          Act 825 states:
    
         Section 2800.12 Liability for termination of a pregnancy
    
         A. Any person who performs an abortion is liable to the
         mother of the unborn child for any damage occasioned or
         precipitated by the abortion, which action survives for
         a period of three years from the date of the discovery of
         the damage with a preemptive period of ten years from the
         date of the abortion.
         B. For purposes of this Section:
         (1) “Abortion” means the deliberate termination of an
         intrauterine human pregnancy after fertilization of a
         female ovum, by any person, including the pregnant woman
         herself, with an intention other than to produce a live
         birth or to remove a dead unborn child.
         (2) “Damage” includes all special and general damages
         which   are   recoverable   in   an   intentional   tort,
         negligence, survival, or wrongful death action for
         injuries suffered or damages occasioned by the unborn
         child or mother.
         (3) “Unborn child” means the unborn offspring of human
         beings from the moment of conception through pregnancy
         and until termination of the pregnancy.
         C.(1) The signing of a consent form by the mother prior
         to the abortion does not negate this cause of action, but
         rather reduces the recovery of damages to the extent that
         the content of the consent form informed the mother of
    
    
    
    
                                             3
    and Richard Ieyoub, Attorney General of Louisiana.3   No patients of
    
    the plaintiffs appear as parties in this suit.
    
         Act 825 provides to women who undergo an abortion a private
    
    tort remedy against the doctors who perform the abortion.        It
    
    exposes those doctors to unlimited tort liability for any damage
    
    caused by the abortion procedure to both mother and “unborn child.”
    
    Damages may be reduced, but not eliminated altogether (and perhaps
    
    not at all with respect to any damages asserted on behalf of the
    
    fetus), if the pregnant woman signs a consent form prior to the
    
    abortion procedure.
    
         The plaintiffs argue that Act 825 constitutes an “undue
    
    burden” on a woman’s right to obtain an abortion and is thus
    
    unconstitutional under Planned Parenthood v. Casey, 
    505 U.S. 833
    ,
    
    
    112 S. Ct. 2791
     (1992).   The plaintiffs further claim that the Act
    
    
    
         the risk of the type of injuries or loss for which she is
         seeking to recover.
         (2) The laws governing medical malpractice or limitations
         of liability thereof provided in Title 40 of the
         Louisiana Revised Statutes of 1950 are not applicable to
         this Section.
           3
            Although the record shows that the Attorney General of
    Louisiana was named as a party and was served with citation, and
    although he is named as a party in all of defendants’ pleadings, in
    the injunction orders, and on the notice of appeal, he does not
    appear as a party on the docket sheet in this court.             He
    nevertheless has invoked the appellate jurisdiction of this court
    and is a party to this appeal.
    
    
    
    
                                     4
    will force physicians in Louisiana to cease providing abortion
    
    services to women because of the potential exposure to civil damage
    
    claims authorized by the Act.4           Finally, the plaintiffs assert
    
    that, if they are forced to discontinue providing their services,
    
    the State may have achieved in practical terms what it could not
    
    constitutionally do otherwise--eliminate abortions in Louisiana.
    
                                        II
    
         The district court granted a temporary restraining order
    
    enjoining implementation of the Act on August 14, 1997.        Act 825,
    
    according to the district court, “has the purpose and effect of
    
    infringing and chilling the exercise of constitutionally protected
    
    rights.”    The court therefore granted the plaintiffs’ request for
    
    a preliminary injunction on January 7, 1998.           See Okpalobi v.
    
    Foster, 
    981 F. Supp. 977
    , 986 (E.D. La. 1998). The following month,
    
    finding that the Act places an unconstitutional undue burden on a
    
    woman’s right to abortion, the court converted the temporary
    
    injunction   into   a   permanent   injunction.5     The   State   timely
    
    appealed.
    
    
    
    
            4
            Plaintiffs provide over eighty percent of the abortion
    services rendered in Louisiana.
        5
         In the district court neither party, nor the district court,
    raised the question of an Article III case or controversy or the
    Eleventh Amendment.
    
    
    
    
                                        5
         On appeal, a panel of this court upheld the injunction.
    
    Okpalobi v. Foster, 
    190 F.3d 337
     (5th Cir. 1999).                       The panel
    
    specifically addressed the Eleventh Amendment issue--whether, under
    
    Ex parte Young, 
    209 U.S. 123
    , 
    28 S. Ct. 441
     (1908), the state
    
    official defendants had sufficient “connection” to the act in
    
    question to overcome the Eleventh Amendment bar of suits against
    
    states in federal court.6         The panel determined that “the Governor
    
    and the Attorney General have powers and duties under state law
    
    sufficient to meet the minimum requirements under the Eleventh
    
    Amendment.” Okpalobi, 190 F.3d at 346. The panel further concluded
    
    that the plaintiffs had standing to assert their rights and the
    
    rights of their patients.               Id. at 350-353.         The panel then
    
    concluded   that    a    case    and    controversy   existed    between    these
    
    plaintiffs and defendants and affirmed the district court’s holding
    
    that Act 825 is unconstitutional in its entirety.
    
         In addressing the issues before this en banc court, we first
    
    take note that the panel opinion’s jurisdictional holding rested
    
    primarily   on     the   Ex     parte   Young   exception   to    the    Eleventh
    
    
          6
           The Eleventh Amendment states: “The Judicial power of the
    United States shall not be construed to extend to any suit in law
    or equity, commenced or prosecuted against one of the United States
    by Citizens of another State, or by Citizens or subjects of any
    Foreign State.”    U.S. CONST. amend. XI.   The Supreme Court has
    interpreted the amendment to also constitute a bar on a suit
    brought against a State by its own citizens in federal court. See
    Hans v. Louisiana, 
    134 U.S. 7
    , 
    10 S. Ct. 504
     (1890).
    
    
    
    
                                              6
    Amendment.   It is, of course, one of the purposes of taking a case
    
    en banc to clarify the law when a “panel decision conflicts with a
    
    decision of the United States Supreme Court” or the case “involves
    
    one or more questions of exceptional importance.”    Fed. R. App. P.
    
    35(b)(1).     Because   the   panel   opinion   erroneously   applied
    
    established Eleventh Amendment jurisprudence, and because it was
    
    the focus of its jurisdictional holdings, we first address those
    
    panel errors before turning to the more basic question of whether
    
    this case presents an Article III case or controversy.
    
                                    III
    
         The crux of the Eleventh Amendment issue in this case is
    
    whether the named defendants, Louisiana’s Governor and Attorney
    
    General, have the requisite “connection” to the statutory scheme to
    
    remove the Eleventh Amendment barrier to suits brought in federal
    
    court against the State.   We first say a very brief word about the
    
    historical and constitutional forces that underlie the Eleventh
    
    Amendment.
    
         The Eleventh Amendment was adopted in 1798 in direct response
    
    to the Supreme Court’s decision in Chisholm v. Georgia, 2 U.S. (2
    
    Dall.) 419 (1793), holding that the State of Georgia could properly
    
    be called to defend itself in federal court against a citizen’s
    
    suit. The alacrity with which Congress and the states approved the
    
    Eleventh Amendment to nullify Chisholm evinces the absolutely
    
    
    
    
                                     7
    certain and fundamental respect the early fathers demanded the
    
    federal courts pay to the sovereignty of the several states.7
    
    Although the attention given to the Eleventh Amendment has waxed
    
    and   waned     in   the    two   hundred       years   since    its    adoption,     the
    
    importance of it as a structural definition of our constitutional
    
    system has never been doubted.              Thus, the Supreme Court recently
    
    reemphasized that this structural principle remains intact in Alden
    
    v. Maine, 
    527 U.S. 706
    , 713, 
    119 S. Ct. 2246
     (1999).                           There, the
    
    Court   stated       that   “as   the   Constitution’s          structure,      and   its
    
    history, and the authoritative interpretations by this Court make
    
    clear, the States’ immunity from suit is a fundamental aspect of
    
    the sovereignty which the States enjoyed before the ratifications
    
    of the Constitution, and which they retain today.”8                     Indeed, it is
    
    “a settled doctrinal understanding, consistent with the leading
    
    advocates       of   the    Constitution’s        ratification,        that    sovereign
    
    immunity derives not from the Eleventh Amendment but from the
    
    structure of the original Constitution itself.”                    Id. at 728.
    
    
            7
           The Supreme Court decided Chisholm on February 14, 1794.
    Three weeks later, Congress had approved the Eleventh Amendment,
    and within one year the requisite number of states had ratified the
    amendment.
                8
             “The States thus retain ‘a residuary and inviolable
    sovereignty.’ They are not relegated to the role of mere provinces
    or political corporations, but retain the dignity . . . of
    sovereignty.” Id. at 715 (quoting The Federalist No. 39, p. 245
    (C. Rossiter ed. 1961) (J. Madison)).
    
    
    
    
                                                8
         It is against this background of the overriding importance of
    
    the Eleventh Amendment in limiting the power of the federal courts
    
    over the sovereignty of the several states, that we now consider
    
    whether the facts of this appeal can fit into the exception carved
    
    from the Eleventh Amendment in Ex parte Young, so as to allow the
    
    federal courts to enjoin Act 825.
    
    
    
    
                                    IV
    
                                     A
    
         The Eleventh Amendment bars suits by private citizens against
    
    a state in federal court, irrespective of the nature of the relief
    
    requested.   See Hutto v. Finney, 
    437 U.S. 678
    , 700, 
    98 S. Ct. 2565
    
    (1978).   A plaintiff may not avoid this bar simply by naming an
    
    individual state officer as a party in lieu of the State.   Yet, few
    
    rules are without exceptions, and the exception to this rule allows
    
    suits against state officials for the purpose of enjoining the
    
    enforcement of an unconstitutional state statute.   This exception
    
    rests on the fiction of Ex parte Young–-that because a sovereign
    
    state cannot commit an unconstitutional act, a state official
    
    enforcing an unconstitutional act is not acting for the sovereign
    
    state and therefore is not protected by the Eleventh Amendment.
    
    
    
    
                                     9
    Indeed, the Eleventh Amendment inquiry today turns on a proper
    
    interpretation and application of the Supreme Court’s holding in
    
    Young.
    
         Young, in relevant part, reads:
    
         If, because they were law officers of the state, a case
         could be made for . . . testing the constitutionality of
         the statute, by an injunction suit brought against them,
         then the constitutionality of every act passed by the
         legislature could be tested by a suit against the
         governor and the attorney general . . . . That would be
         a very convenient way for obtaining a speedy judicial
         determination of . . . constitutional law . . ., but it
         is a mode which cannot be applied to the states . . .
         consistently with the fundamental principle that they
         cannot, without their assent, be brought into any court
         at the suit of private persons . . . In making an officer
         of the state a party defendant in a suit to enjoin the
         enforcement     of     an    act     alleged     to    be
         unconstitutional, . . . such officer must have some
         connection with the enforcement of the act, or else it is
         merely making . . . the state a party.
    
    209 U.S. at 157 (emphasis added).
    
         The principle of Young grew out of two predecessor cases, and
    
    can best be understood by reference to Smyth v. Ames, 
    169 U.S. 466
    ,
    
    
    18 S. Ct. 418
     (1898), and Fitts v. McGhee, 
    172 U.S. 516
    , 
    19 S. Ct. 269
     (1899).   We begin with a discussion of these two decisions
    
    before addressing Young and its progeny.
    
                                    B
    
         In Smyth, the plaintiffs challenged the constitutionality of
    
    a Nebraska act regulating railroad rates for the transportation of
    
    freight and establishing penalties for violations of the act.    The
    
    
    
    
                                    10
    statute authorized the assessment of substantial fines by state
    
    authorities in addition to private liability.              See Smyth, 169 U.S.
    
    at 476.       The plaintiffs named officers of the State as defendants.
    
    The defendants contested the federal court’s jurisdiction on the
    
    grounds “that these suits are, in effect, suits against the state,
    
    of which the circuit court of the United States cannot take
    
    jurisdiction consistently with the eleventh amendment.”                 169 U.S.
    
    at 518.       After holding that “a suit against individuals for the
    
    purpose of preventing them as officers of a state from enforcing an
    
    unconstitutional enactment to the injury of the rights of the
    
    plaintiff is not a suit against the state within the meaning of
    
    [the eleventh] amendment,” the court assumed jurisdiction of the
    
    case and struck down the law.            Id. at 519.9
    
         Although Smyth did not raise the question of how close a
    
    connection is required between the defendant state officers and the
    
    enforcement      of   the   act,   the   Supreme   Court   elaborated    on   the
    
    principle when the question was presented the following year in
    
    
    
    
              9
             The panel opinion suggests that Smyth stands for the
    proposition that no special connection is required between a
    defendant state official and the challenged statute. See Okpalobi,
    190 F.3d at 344.    However, the excerpt from Smyth quoted above
    clearly indicates that the defendant officers had a duty to enforce
    the statute in question and seems to undermine the panel’s
    conclusion that Smyth did not involve a ‘special relationship’
    between the defendants and the challenged statute. Id.
    
    
    
    
                                             11
    Fitts.10 There, the court was faced with a constitutional challenge
    
    to an Alabama act that prescribed certain maximum rates of toll to
    
    be charged on a Tennessee river bridge.        The act provided that, if
    
    the maximum rate was exceeded, the aggrieved party could recover
    
    twenty dollars per infraction from the offender.           172 U.S. at 516.
    
    The plaintiffs, arguing that the rates of toll were “arbitrary” and
    
    “unreasonable” and constituted a deprivation of property, sued the
    
    governor    and   attorney   general   of   Alabama   as   defendants   and
    
    requested injunctive relief.      The defendants moved “that the bill
    
    be dismissed upon the ground that the suit was one against the
    
    state, and prohibited by the constitution of the United States.”
    
    Id. at 518.
    
         In concluding that the suit against the governor and attorney
    
    general was effectively a suit against the state and thus barred by
    
    the Eleventh Amendment, the Supreme Court reasoned that neither the
    
    governor nor the attorney general “appear[s] to have been charged
    
    by law with any special duty in connection with the act.”           Id. at
    
    529. The court distinguished other cases in which it had exercised
    
    jurisdiction (including Smyth) by noting that “the defendants in
    
    each of those cases were officers of the state, specially charged
    
    
           10
            The sufficiency of the enforcement power vested in the
    defendant state officials was never addressed in Smyth.      It is
    clear, however, that the defendants in Smyth possessed enforcement
    powers not found in the defendants in the case before us.      See
    Smyth, 169 U.S. at 476.
    
    
    
    
                                       12
    with    the   execution     of   a   state    enactment   alleged   to   be
    
    unconstitutional.”        Id. (emphasis added).      Thus, in Fitts, the
    
    Supreme Court articulated the requirement that there be a “close”
    
    connection or a “special relation” between the statute and the
    
    defendant state officer’s duty before the Eleventh Amendment bar
    
    could be overcome:
    
           There is a wide difference between a suit against
           individuals, holding official positions under a state, to
           prevent them, under the sanction of an unconstitutional
           statute, from committing by some positive act a wrong or
           trespass, and a suit against officers of a state merely
           to test the constitutionality of a state statute, in the
           enforcement of which those officers will act only by
           formal judicial proceedings in the courts of the state.
           In the present case, as we have said, neither of the
           state officers named held any special relation to the
           particular statute alleged to be unconstitutional. They
           were not expressly directed to see to its enforcement.
    
    Id. at 529-30 (emphasis added).              The court rationalized this
    
    relationship requirement by reference to the core constitutional
    
    principle embodied in the Eleventh Amendment:
    
           If, because they were law officers of the state, a case
           could be made for the purpose of testing the
           constitutionality of the statute . . . then the
           constitutionality of every act passed by the legislature
           could be tested by a suit against the governor and the
           attorney general, based upon the theory that the former,
           as the executive of the state, was, in a general sense,
           charged with the execution of all its laws, and the
           latter, as attorney general, might represent the state in
           litigation involving the enforcement of its statutes.
           This would be a very convenient way for obtaining a
           speedy   judicial    determination   of    questions   of
           constitutional law . . . but it is a mode which cannot be
           applied to the states of the Union consistently with the
           fundamental principle that they cannot, without their
    
    
    
    
                                         13
         assent, be brought into any court at the suit of private
         persons.
    
    Id. at 530.    Thus, Fitts illuminated the important precept that
    
    allowing state officers to be sued in lieu of the State absent some
    
    “special connection” would permit the narrow exception to swallow
    
    the fundamental, constitutionally-based rule.       It was upon this
    
    foundation that the Young doctrine was constructed.
    
                                     C
    
         In Young, the plaintiffs challenged a Minnesota statute that
    
    created a railroad commission, which executed an order fixing the
    
    rates various railroad companies could charge for the carriage of
    
    merchandise. 209 U.S. at 127. The legislature delineated specific
    
    penalties for violations of such railroad regulations, including
    
    fines and possible imprisonment.11   The attorney general, Edward T.
    
    Young, was named as a defendant in the suit, which challenged the
    
    constitutionality of the series of state acts regulating the
    
    railroad   companies.12   Specifically,   the   plaintiffs   requested
    
         11
          “It was provided in the act that ‘any railroad company, or
    any officer, agent, or representative thereof, who shall violate
    any provision of this act, shall be guilty of a felony, and, upon
    conviction thereof, shall be punished by a fine not exceeding five
    thousand dollars, or by imprisonment . . .’” Id. at 128.
          12
           “For this reason the complainants allege that the above-
    mentioned orders and acts . . . denied to the . . . railway company
    
    
    
    
                                    14
    “[a]ppropriate relief by injunction against the action of the
    
    defendant Young.”   Id. at 131.      Young asserted that the federal
    
    court had no jurisdiction over him as attorney general because the
    
    suit was, in effect, against the state of Minnesota and barred by
    
    the Eleventh Amendment.    Nevertheless, the federal court issued a
    
    temporary injunction against Young, enjoining him “from taking or
    
    instituting any action or proceeding to enforce the penalties and
    
    remedies specified in the act.”         Id. at 132.     Young ignored the
    
    court order and immediately filed a mandamus action in state court
    
    to compel the railroad’s compliance with the state law.          Young was
    
    held in contempt by the federal court and taken into custody.             He
    
    then petitioned for habeas corpus to the United States Supreme
    
    Court, asserting that the federal court injunction violated the
    
    Eleventh Amendment.       The   Supreme   Court   was   thus   required   to
    
    determine whether Young, as a state officer, could be sued in
    
    federal court despite the Eleventh Amendment bar.
    
         The court determined that the Eleventh Amendment did not bar
    
    a federal court injunction against the enforcement of the state
    
    statute.   It held that Young, as attorney general, could properly
    
    
    and its stockholders . . . the equal protection of the laws, and
    deprived it and them of their property without due process of
    law . . .” Id. at 131.
    
    
    
    
                                       15
    be enjoined in federal court from enforcing unconstitutional state
    
    penalties against the railroad.          In so holding, the court stated:
    
          The various authorities we have referred to furnish ample
          justification for the assertion that individuals who, as
          officers of the state, are clothed with some duty in
          regard to the enforcement of the laws of the state, and
          who threaten and are about to commence proceedings,
          either of a civil or criminal nature, to enforce against
          parties affected [by] an unconstitutional act, violating
          the Federal Constitution, may be enjoined by a Federal
          court of equity from such action.
    
    Id. at 155-56 (emphasis added).          Finding that Young possessed such
    
    enforcement authority over the acts in question, and recognizing
    
    his   clear     threat   to   exercise     said   authority   under   alleged
    
    unconstitutional state law,13 the court concluded that the Eleventh
    
    Amendment was no barrier to the suit.14            In authorizing the suit
    
    
          13
               The Court also observed:
    
          The question remains whether the attorney general had, by
          the law of the state, so far as concerns these rate acts,
          any duty with regard to the enforcement of the same. By
          his official conduct it seems that he regarded it as a
          duty connected with his office to compel the company to
          obey the commodity act, for he commenced proceedings to
          enforce such obedience immediately after the injunction
          issued, at the risk of being found guilty of contempt by
          so doing.
    
    Id. at 160.
          14
               In full, the Court said:
    
          In making an officer of the state a party defendant in a
          suit to enjoin the enforcement of an act alleged to be
          unconstitutional, it is plain that such officer must have
          some connection with the enforcement of the act, or else
          it is merely making him a party as a representative of
          the state, and thereby attempting to make the state a
    
    
    
                                          16
    against Young, the court distinguished the earlier finding of no
    
    jurisdiction in Fitts by noting that, in that case, the penalties
    
    for disobeying the act were to be collected by the individuals who
    
    were overcharged and “[n]o officer of the state had any official
    
    connection with the recovery of such penalties.”   Id. at 156.
    
         Thus, Young solidified the doctrine that state officers could
    
    be sued in federal court despite the Eleventh Amendment, while
    
    simultaneously emphasizing the requirements that the officers have
    
    “some connection with the enforcement of the act” in question or be
    
    “specially charged with the duty to enforce the statute” and be
    
    threatening to exercise that duty.   Id. at 157, 158.15
    
    
    
                                    D
    
         Young was decided almost 100 years ago.     From its earliest
    
    years until the present, it has spawned numerous cases upholding,
    
    explaining, and recognizing its fundamental principle: that the
    
    
    
         party. . . . The fact that the state officer, by virtue
         of his office, has some connection with the enforcement
         of the act, is the important and material fact. . .”
    
    Id. at 157 (emphasis added).
          15
           We note the dissent’s reliance on Justice Harlan’s Young
    dissent in its attempt to show that “it is flatly wrong to assert
    that Young and Fitts are consistent.” Although dissents may be
    scholarly and persuasive to some, they are not binding law to any.
    The dissent’s reliance upon Justice Harlan’s words suggests that
    they, like Justice Harlan, are simply disenchanted with the
    fundamental principle articulated in Young.
    
    
    
                                    17
    defendant state official must have some enforcement connection with
    
    the challenged statute.       Two years after Young, the Supreme Court
    
    in Western Union Telegraph Co. v. Andrews, 
    216 U.S. 165
    , 
    30 S. Ct. 286
     (1910), again upheld a suit against a state official that
    
    enjoined enforcement of a state act.           The act in question, which
    
    regulated fees to be paid by foreign corporations, declared that
    
    the defendant state officials “would, unless restrained by the
    
    order of     the   court,   institute    numerous    actions,     as   they   had
    
    threatened to do, for the recovery of the penalties aforesaid.”
    
    Id.   at   166.    Concluding    that    the   recent   Young     decision    was
    
    “precisely    applicable    to   the    case   at   bar,”   the   court   found
    
    sufficient connection between the defendant state officials and the
    
    challenged statute, stating:
    
           The statute specifically charges the prosecuting
           attorneys with the duty of bringing actions to recover
           the penalties. It is averred in the bill, and admitted
           by the demurrer, that they threatened and were about to
           commence proceedings for that purpose.
    
    Id.    Western Union, therefore, reinforced the interpretation that
    
    Young requires both a close connection between the official and the
    
    act and the threatening or commencement of enforcement proceedings
    
    by the official.16
    
    
          16
         See also Dombrowski v. Pfister, 
    380 U.S. 479
    , 483 (1965) (“In
    Ex parte Young . . . , the fountainhead of federal injunctions
    against state prosecutions, the Court characterized the power and
    its proper exercise in broad terms: it would be justified where
    state officers ‘. . . threaten and are about to commence
    proceedings, either of a civil or criminal nature, to enforce
    
    
    
                                            18
         More recently, other circuit courts have applied the Young
    
    guidelines when adjudicating the Eleventh Amendment question raised
    
    in this appeal.   In Children’s Healthcare v. Deters, 
    92 F.3d 1412
    
    (6th Cir. 1996), the plaintiffs brought a civil rights action
    
    against the Ohio Attorney General and state prosecutors.   The suit
    
    challenged statutes that provided exemptions from the duty to
    
    provide adequate care for children for persons who treat children
    
    by spiritual means.   The court rejected federal court jurisdiction
    
    over the matter, reaffirming that “Young does not apply when a
    
    defendant state official has neither enforced nor threatened to
    
    enforce the allegedly unconstitutional state statute.”       Id. at
    
    1415.   The requirement that there be some actual or threatened
    
    enforcement action before Young applies has been repeatedly applied
    
    by the federal courts.   See also 1st Westco Corp. v. School Dist.
    
    of Philadelphia, 
    6 F.3d 108
    , 113 (3d Cir. 1993)(citing Rode v.
    
    Dellarciprete, 
    845 F.2d 1195
    , 1209 n.9 (3d Cir. 1988)); Long v. van
    
    de Kamp, 
    961 F.2d 151
    , 152 (9th Cir. 1992); Kelley v. Metropolitan
    
    County Bd. of Educ., 
    836 F.2d 986
    , 990-91 (6th Cir. 1987).
    
         Other federal courts have invoked Young’s rationale when
    
    ascertaining the applicability of this narrow Eleventh Amendment
    
    exception.   In Gras v. Stevens, 
    415 F. Supp. 1148
     (S.D.N.Y. 1976),
    
    Judge Friendly rejected the notion that a governor’s general duty
    
    
    against parties affected [by] an unconstitutional act, violating
    the Federal Constitution . . .’”).
    
    
    
                                     19
    to “take care that the laws are faithfully executed” is sufficient
    
    connection under Young and Fitts to dissolve the Eleventh Amendment
    
    bar.     Id. at 1151-52.       The court noted that “[i]n our view this
    
    would extend Ex parte Young beyond anything which the Supreme Court
    
    intended or has subsequently held.”           Id. at 1152.
    
           As late as 2001, the Fourth, Ninth, Eleventh and Seventh
    
    Circuits       rearticulated   the   criteria      of   Young.   In   Lytle   v.
    
    Griffith, 
    2001 WL 133189
    , at *6 (4th Cir. Feb. 16, 2001), the
    
    Fourth Circuit, in remanding the case to determine whether the
    
    defendant Governor had the requisite connection to the challenged
    
    law, noted that “[t]he Young exception is limited, however, by its
    
    requirement that named state officials bear a special relation to
    
    the challenged statute.”          In Snoeck v. Brussa, 
    153 F.3d 984
     (9th
    
    Cir. 1998), the Ninth Circuit found that the Eleventh Amendment
    
    barred     a    claim   against    the    Nevada    Commission   on   Judicial
    
    Discipline, emphasizing that compliance with the requirements of
    
    Young “must be determined under state law depending on whether and
    
    under what circumstances a particular defendant has a connection
    
    with the challenged state law.”           Id. at 986.      The court concluded
    
    that, “[u]nder Nevada law, the Commission has no enforcement power,
    
    and therefore, it has no connection to the enforcement of the
    
    challenged law as required under Ex Parte Young.” Id. at 987.
    
    
    
    
                                             20
         Moreover, in Summit Medical Association, P.C. v. Pryor, 
    180 F.3d 1326
     (11th Cir. 1999), the Eleventh Circuit took note of the
    
    private civil enforcement provision of the statute in question and
    
    stated that “the doctrine of Ex parte Young cannot operate as an
    
    exception to Alabama’s sovereign immunity where no defendant has
    
    any connection to the enforcement of the challenged law.”          Id. at
    
    1341.     Finally, the Seventh Circuit in Hope Clinic v. Ryan, 
    195 F.3d 857
     (7th Cir. 1999), vacated on other grounds by 
    120 S. Ct. 2738
     (2000), also observed that the statute in question was to be
    
    enforced in private litigation: “[T]he states’ Attorneys General
    
    and local prosecutors have nothing to do with civil suits.         Relief
    
    against the public officials therefore would be pointless even if
    
    the civil-liability provisions were problematic.”         Id. at 875.
    
                                         E
    
         The Supreme Court’s decision in Young, appraised in the light
    
    of its predecessors Smyth and Fitts and its progeny, is thus
    
    properly understood to create a precise exception to the general
    
    bar against suing states in federal fora.            This exception only
    
    applies    when   the   named   defendant   state   officials   have   some
    
    connection with the enforcement of the act and “threaten and are
    
    about to commence proceedings” to enforce the unconstitutional act.
    
    Young, 209 U.S. at 155-56.
    
    
    
    
                                         21
         We now consider the application of the Young principle to the
    
    facts in the case before us.
    
                                         V
    
         The present inquiry is how to read and apply the requirement
    
    that the defendants have some connection with the enforcement of
    
    the Act.     Specifically, the question raised before this en banc
    
    court is whether the Young fiction requires that the defendant
    
    state official have some enforcement powers with respect to the
    
    particular statute at issue, or whether the official need have no
    
    such enforcement powers and only need be charged with the general
    
    authority and responsibility to see that all of the laws of the
    
    state be faithfully executed.
    
                                         A
    
         As we have pointed out, the Young principle teaches that it is
    
    not merely the general duty to see that the laws of the state are
    
    implemented that substantiates the required “connection,” but the
    
    particular    duty   to   enforce   the   statute   in   question   and   a
    
    demonstrated willingness to exercise that duty.          For a duty found
    
    in the general laws to constitute a sufficient connection, it must
    
    “include[] the right and the power to enforce the statutes of the
    
    state, including, of course, the act in question . . .”        Id. at 161
    
    (emphasis added).     Thus, any probe into the existence of a Young
    
    
    
    
                                        22
    exception should gauge (1) the ability of the official to enforce
    
    the statute at issue under his statutory or constitutional powers,
    
    and (2) the demonstrated willingness of the official to enforce the
    
    statute.17
    
         Although the panel opinion addressed the connection of the
    
    defendants to the law in question, it nevertheless pursued a
    
    different, and we believe, seriously erroneous course.          The panel
    
    applied      a   two-part   formula    to   assess   whether   sufficient
    
    “connection” exists to warrant waiver of the Eleventh Amendment
    
    protection: (1) an analysis of “what powers the defendants wield to
    
    enforce the law in question,” and (2) consideration of “the nature
    
    of the law and its place on the continuum between public regulation
    
    
    
    
        17
          Our review of the Supreme Court’s abortion cases shows that,
    as the dissent notes, the Court has apparently relaxed certain
    standing requirements in the abortion context and authorized pre-
    enforcement challenges to criminal abortion statutes.      However,
    none of these cases suggest, as the dissent intimates, that the
    requirements of Ex parte Young have in any way been relaxed or
    vitiated in the abortion context.     Indeed, none of the Supreme
    Court abortion cases expressly address the requirements of Ex Parte
    Young in the abortion context. This is not surprising in that in
    all of the abortion cases, unlike the case before us, the
    defendants had clear capabilities of enforcing the challenged
    statutes.
    
    
    
    
                                          23
    and private action.”   Okpalobi, 190 F.3d at 346.18   We address, in
    
    turn, the flaws in each part of the panel’s analysis.
    
                                     1
    
         After noting at the outset that “Act 825, on its face, does
    
    not direct the State or its officers to do anything,” the panel
    
    nevertheless concluded “that the Governor and the Attorney General
    
    have powers and duties under state law sufficient to meet the
    
    minimum requirements under the Eleventh Amendment.”    Id. at 347.19
    
    The basis for this conclusion was the assertion that a mere duty to
    
    uphold the laws of the state is sufficient under Young to authorize
    
    an Eleventh Amendment waiver. The panel stated that its conclusion
    
    is discernible from a proper reading of Young and Smyth, noting
    
    that, while the Fitts Court required a “close” connection or a
    
    “special charge” between the statute and the state officer’s duty,
    
    
    
    
              18
            The panel “glean[ed]” this test from Gras v. Stevens,
    Federal Nat’l Mortgage Ass’n v. Lefkowitz, 
    383 F. Supp. 1294
    (S.D.N.Y. 1974), and Allied Artists Pictures Corp. v. Rhodes, 
    473 F. Supp. 560
     (S.D. Ohio 1979), aff’d 
    679 F.2d 656
     (6th Cir. 1982).
         19
            The panel relied on the governor’s constitutional duty to
    “faithfully support the constitution and laws of the state,” LA.
    CONST. art. IV, § 5(A), and the attorney general’s power and right
    “to institute, prosecute, or intervene in any civil action or
    proceeding[.]” Id., art. IV, § 8. See Okpalobi, 190 F.3d at 346.
    
    
    
    
                                    24
    the Young Court adopted the more relaxed connection requirements
    
    outlined in Smyth.20
    
         In essence, the panel suggests that there is some conflict
    
    between Fitts, on the one hand, and Smyth and Young, noting that
    
    “[t]o the extent that there is tension between Fitts’s focus on the
    
    state    officials’    express     enforcement   power   and   the   later
    
    articulation in Young, we are controlled by the Smyth doctrine and
    
    the unequivocal holding of Young that a state officer’s connection
    
    with the enforcement of the challenged act can ‘[arise] out of the
    
    general law . . . so long as it exists.’” Id. at 344 (citing Young,
    
    209 U.S. at 157). We do not, however, find this tension in the
    
    Smyth-Fitts-Young triad.         The resolution in each of these three
    
    cases was dictated, not by the application of a different legal
    
    rule, but by the particular statutes and the connection to those
    
    statutes of the defendant state officials. The challenged statutes
    
    in Young and Smyth (wherein the defendants had enforcement powers
    
    over the railway acts) stand in sharp contrast to the statute in
    
    Fitts (wherein the defendants were granted no enforcement powers
    
    
    
    
            20
            The panel noted the Young Court’s statement that “[t]he
    doctrine of Smyth v. Ames was neither overruled nor doubted in the
    Fitts case.” 209 U.S. at 156.
    
    
    
    
                                         25
    whatsoever with respect to the statute).21      Fitts involved the
    
    establishment of toll rates for a single bridge.        The act in
    
    question was self-enforcing; if the operators of the bridge charged
    
    an excessive toll, the statute entitled the aggrieved to sue for
    
    twenty dollars.22   Thus, the court in Young characterized the Fitts
    
    statute as one in which
    
         [n]o officer of the state had any official connection
         with the recovery of such penalties. . . . As no state
         officer who was made a party bore any close official
         connection with the act fixing the tolls, the making of
         such officer a party defendant was a simple effort to
         test the constitutionality of such act in that way, and
         there is no principle upon which it could be done. A
         state superintendent of schools might as well have been
         made a party.
    
    Id. at 156. In differentiating the “general duty” authority of the
    
    officials in Fitts, which the court found was insufficient to
    
    
    
              21
             The Fitts Court specifically recognized this critical
    difference in distinguishing the facts of Smyth and finding that
    the defendants in that case were “specially charged with the
    execution” of the challenged statute. Fitts, 172 U.S. at 529. It
    would seem that this distinction between Smyth and Fitts, noted by
    the Supreme Court, calls into question the panel’s understanding of
    Smyth as support for its interpretation of Young as imposing a
    lesser legal standard than Fitts.
         22
          The statute challenged in Smyth authorized not only private
    suits for overcharges, but also enumerated a system of substantial
    and escalating fines to be paid to the state. See 169 U.S. at 517.
    Thus, the statute involved liability to the state in addition to
    private contractual liability.     A system of fines implies an
    enforcement power in the state.
    
    
    
    
                                     26
    dissolve the Eleventh Amendment bar, the Young Court noted that
    
    “[t]he officers in the Fitts case occupied the position of having
    
    no duty at all with regard to the act . . .”                 209 U.S. at 158.   The
    
    court then referenced with approval a distinction noted by the
    
    court        in   Fitts,   wherein   the        facts   in   Fitts   were   clearly
    
    distinguished from the facts in Smyth and Reagan v. Farmer’s Loan
    
    & T. Co., 
    154 U.S. 362
    , 
    14 S. Ct. 1047
     (1894):
    
         In [Smyth and Reagan] the only wrong or injury or
         trespass involved was the threatened commencement of
         suits to enforce the statute as to rates, and the threat
         of such commencement was in each case regarded as
         sufficient to authorize the issuing of an injunction to
         prevent the same. The threat to commence those suits
         under such circumstances was therefore necessarily held
         to be equivalent to any other threatened wrong or injury
         to the property of a plaintiff which had theretofore been
         held sufficient to authorize the suit against the
         officer.
    
    Young, 209 U.S. at 158.23
    
    
            23
                 The immediately following sentence, in the same paragraph,
    reads:
    
         The being specially charged with the duty to enforce the
         statute is sufficiently apparent when such duty exists
         under the general authority of some law, even though such
         authority is not to be found in the particular act. It
         might exist by some reason of the general duties of the
         officer to enforce it as a law of the state.
    
    This use in Young of the “specially charged” language from Fitts
    reinforces the holding in Fitts and clearly suggests that the court
    did not intend the “some connection” to be without authority to
    enforce the statute.
    
    
    
    
                                               27
            Considering         the   obvious   enforcement      potential    that    the
    
    defendant Young had under the Minnesota statute, the panel’s
    
    interpretation of the “some connection” language as necessitating
    
    only an undefined, inchoate, general duty to see that all of the
    
    laws        of   the   state       are   enforced    exceeded      any   reasonable
    
    interpretation         of    Young.      Indeed,    Young   does   not   reject   the
    
    “special charge” language in Fitts;24 instead, Young merely allows
    
    the “special charge” to be drawn implicitly from the laws of the
    
    state, rather than requiring that it be stated explicitly in the
    
    challenged statute.               Thus, the correct interpretation of Young
    
    concludes that no such special charge need be found directly in the
    
    challenged statute to meet the requisite “some connection” so long
    
    as there is sufficient indicia of the defendant’s enforcement
    
    
    
    
           24
          We note especially the Young Court’s adoption of the “special
    charge” language from Fitts: “The being specially charged with the
    duty to enforce the statute is sufficiently apparent when such duty
    exists under the general authority of some law. . .” Young, 209
    U.S. at 158.
    
    
    
    
                                                28
    powers        found   elsewhere   in   the   laws   of   the   state.25   This
    
    interpretation finds support in the following language in Young:
    
         It has not, however, been held that it was necessary that
         such duty should be declared in the same act which is to
         be enforced.   In some cases, it is true, the duty of
         enforcement has been so imposed . . . but that may
         possibly make the duty more clear; if it otherwise
         exist[s] it is equally efficacious.
    
    209 U.S. at 157.
    
         Thus, the panel erred by not recognizing that Fitts’s “special
    
    charge” requirement is an essential part of Young’s holding.              See
    
    also Gras, 415 F.Supp. at 1151 (characterizing the statute in Young
    
    as “implicitly charg[ing] [the attorney general] by statute with
    
    the duty of collecting an allegedly unconstitutional tax.”).              This
    
    
             25
            This conclusion is essentially the one reached by Judge
    Friendly in Gras:
    
         The argument would continue that although Fitts v. McGhee
         held that the bar of the Eleventh Amendment could not be
         avoided by suing state officers in the absence of “any
         special relation” on their part “to the particular
         statute alleged to be unconstitutional,” this was altered
         by the statement in Ex parte Young [regarding “some
         connection”]. In our view this would extend Ex parte
         Young beyond anything which the Supreme Court intended or
         has subsequently held. . . . [W]e know of no case in
         which the general duty of a governor to enforce state
         laws has been held sufficient to make him a proper party
         defendant in a civil rights action attacking the
         constitutionality of a state statute concerning . . .
         private civil actions.
    
    415 F.Supp. at 1152.
    
    
    
    
                                            29
    failing led to the panel’s conclusion that the general charge of
    
    the governor and attorney general to implement and enforce all of
    
    the laws of the state satisfies the requirements of Young.
    
         In sum, Young does not minimize the need to find an actual
    
    enforcement connection–-some enforcement power or act that can be
    
    enjoined--between      the       defendant    official    and   the   challenged
    
    statute.      Instead, it provides that this connection can be found
    
    implicitly elsewhere in the laws of the state, apart from the
    
    challenged statute, so long as those duties have the same effect as
    
    a “special charge” in the statute.
    
                                             2
    
         We turn now to the second prong of the panel’s test--the place
    
    of Act 825 on a public-to-private “continuum.” The panel concluded
    
    that Act 825 implicates “public” action because “the purpose and
    
    effect   of    the   Act    is   to   prevent   women    from   obtaining   legal
    
    abortion.” Okpalobi, 190 F.3d at 347.             This continuum element was
    
    derived from Allied Artists Pictures Corp. v. Rhodes, 
    473 F. Supp. 560
     (S.D. Ohio 1979), aff’d 
    679 F.2d 656
    , 665 n.5 (6th Cir. 1982)
    
    (holding that statutory regulation of private contracting with
    
    respect to movies amounted to state regulation of movie producers
    
    and distributors).         Notwithstanding the equivocal nature of Allied
    
    
    
    
                                             30
    Artists’ “continuum” holding,26 the majority seized upon this result
    
    
         26
              Allied Artists states:
    
         Thus the problem now before the Court becomes that of
         properly placing this case on the continuum. Defendants
         would argue that since the Act purports to regulate
         contractual rights between private parties, namely motion
         picture distributors and exhibitors, there is no
         realistic potential that the defendant governor would act
         to enforce the statutory rights which could be vindicated
         by private action. Plaintiffs on the other hand would
         claim that the alleged substantial and immediate impact
         upon them of the Act is tantamount to direct state
         regulation which could reasonably require the governor’s
         attention under his general duty to see to the faithful
         execution of the laws. . . . I believe it can be
         reasonably maintained that the Act amounts to state
         regulation of movie producers and distributors doing
         business in Ohio. Presumably, then, this exercise of the
         state’s regulatory power is designed to implement and
         serve the public interest of Ohio. The Court is aware
         that there is no criminal sanction attached to the Act,
         and also that plaintiffs could possibly await a dispute
         with an exhibitor and sue, raising there the question of
         the Act’s constitutionality.     However, that begs the
         question in the case at bar. The pertinent question is:
         does the governor of Ohio, as the chief executive of the
         state, have an interest in the enforcement of the Act?
         Or, on the other hand, is this simply an Act near the
         Gras end of the continuum where the public interest is
         not crucial, the dispute is such that the governor’s
         interest is absent, and the matter can be adequately
         decided in an action between concerned private parties?
         The question is difficult; the real thrust of the Act is
         somewhat obscure on its face. However, in ruling on this
         motion to dismiss, the Court must view the complaint most
         favorably for plaintiffs. Thus, in the exercise of great
         caution . . . I hold that plaintiffs have alleged facts
         sufficient to invoke the Young fiction and to avoid the
         Eleventh Amendment bar.
    
    
    
    
                                       31
    and compared it to an act affecting availability of abortion
    
    services: “We place such interference [with abortion rights] on the
    
    Allied continuum near the end closest to laws respecting the voting
    
    rights of citizens [see Socialist Workers Party v. Rockefeller, 
    314 F. Supp. 984
     (S.D.N.Y. 1970), aff’d, 
    400 U.S. 806
     (1970)], rather
    
    than alongside procedural aspects of domestic relations law [see
    
    Gras, 
    415 F. Supp. 1148
    ].”   Okpalobi, 190 F.3d at 347.
    
         The first weakness in the panel’s use of this analysis to find
    
    a sufficient connection between the state officials and Act 825 is
    
    its almost exclusive reliance on Allied Artists.   The sum total of
    
    the panel’s support lies in two district court cases, Allied
    
    Artists and Federal National Mortgage.   Allied Artists is not only
    
    not binding on this circuit, but it seems to have been rejected as
    
    binding authority in its own circuit.    See Children’s Healthcare,
    
    92 F.3d at 1414-15, 1416; see also Kelley v. Metropolitan County
    
    Bd. Of Educ., 
    836 F.2d 986
    , 990-91 (6th Cir. 1987).   In Children’s
    
    Healthcare, the Sixth Circuit highlighted Allied Artists’ tension
    
    
    473 F.Supp. at 569.      Of course, presumably every statute is
    designed to serve the public interest in some way or another. More
    importantly, the placement of this statute on the “public” side of
    the continuum seems not to have been much of a weighed decision at
    all, given the obvious deference to the plaintiff’s argument in a
    Rule 12(b)(6) motion. Allied Artists is, however, the sum total of
    the panel’s support for its adoption of a “continuum” prong and its
    placement of Act 825 on the “public” side of the continuum.
    
    
    
    
                                    32
    with Supreme Court jurisprudence, apparently rejecting the holding
    
    that “general duty” provisions are sufficient for purposes of
    
    Eleventh Amendment waiver.   See 92 F.3d at 1416.   See also Kelley,
    
    836 F.2d at 990-91.   Furthermore, even Allied Artists--the panel’s
    
    sole support for its “continuum” prong--does not support the
    
    panel’s argument as to the degree of “connection” required under
    
    Young.   Allied Artists states:
    
         Although I disagree with Gras insofar as it declines to
         find Young enforcement power in the governor’s general
         duty to see to the execution of state laws, I agree with
         the Gras result. Furthermore, I believe to be accurate
         Judge Friendly’s evaluation that the cases which have
         permitted a governor to be joined as a defendant
         concerned the enforcement of programs, civil or criminal,
         dealing with the relations between the state and the
         individual.   This valid limitation serves to preclude
         parties from testing the constitutionality of state
         legislation by simply naming the governor as defendant,
         a practice which if unchecked would effectively
         eviscerate the Eleventh Amendment. Thus, to satisfy the
         Young fiction, as I understand it, not only must there be
         a state officer who has a connection with the enforcement
         of the challenged statute, but there must also be a real,
         not ephemeral, likelihood or realistic potential that the
         connection   will   be   employed   against   plaintiffs’
         interests.
    
    473 F.Supp. at 568 (emphasis added). Thus, the panel’s reliance on
    
    Allied Artists places it in the awkward position of relying on a
    
    case in support of the second part of its analysis when that case
    
    rejects the panel’s conclusion as to the first part.
    
    
    
    
                                      33
             Second, the panel’s approach ignores the ‘state/individual’
    
    vs. ‘predominately private/private’ distinction set forth in Gras:
    
    “[These cases finding no Eleventh Amendment immunity] have been
    
    concerned with the enforcement of programs, civil or criminal,
    
    dealing with the relations between the state and the individual .
    
    .   .”     415   F.Supp.    at   1152.         Indeed,      the   propriety    of    this
    
    distinction was echoed in Allied Artists.                   See 473 F.Supp. at 568.
    
    The panel’s thin retort is simply that Act 825 is “designed to
    
    implement and serve the public interest of the state.”                        Okpalobi,
    
    190 F.3d at 347 (citation omitted).                  This tautological reasoning,
    
    however, can easily be applied to every statute: What statute of
    
    general application is not so designed? Even those statutes on the
    
    opposite end of the continuum (e.g., domestic relations law in
    
    Gras) are presumably enacted to serve the public’s interest in the
    
    private ordering of individuals.                We therefore doubt whether this
    
    analysis     serves   any   real     use    in       determining    whether      a   case
    
    improperly tests the constitutionality of a state statute.                       If Act
    
    825, a private tort statute, is on the public interest side of the
    
    continuum,       almost   anything   can        be   said    to   affect   the   public
    
    interest.     For this and other reasons, we reject the panel’s use of
    
    this rationale to resolve the Eleventh Amendment question.
    
                                               B
    
    
    
    
                                               34
           In sum, the panel generated a new two-pronged test spun out of
    
    hardly more than a wisp of authority (a single district court’s
    
    ruling), while ignoring critical factors examined by virtually all
    
    prior Eleventh Amendment jurisprudence.              For example, we note that
    
    the panel’s reading failed to note that the necessary fiction of
    
    Young    requires   that   the    defendant        state    official      be   acting,
    
    threatening to act, or at least have the ability to act.                        Young,
    
    209 U.S. at 159 (noting that the fiction applies “where an official
    
    claims to be acting under the authority of the state.”).                        It is
    
    this unconstitutional conduct, or at least the ability to engage in
    
    the     unconstitutional    conduct,        that     makes    him    no      longer   a
    
    representative of the sovereign.             Without at least the ability to
    
    commit the unconstitutional act by the official defendant, the
    
    fiction cannot be sustained.           See, e.g., Fitts, 172 U.S. at 530;
    
    Children’s Healthcare, 92 F.3d at 1415-16.                 Indeed, if there is no
    
    act,    or   potential   act,    of   the    state    official      to    enjoin,     an
    
    injunction would be utterly meaningless. Here, there is no act, no
    
    threat to act, and no ability to act.
    
                                            VI
    
                                            A
    
           We take a moment now to address the dissent’s view of the
    
    Eleventh     Amendment     question     in     this        case.       The     dissent
    
    
    
    
                                            35
    substantially departs from the panel majority opinion, abandoning
    
    many of the views expressed therein and raising theories apparently
    
    dismissed by the plaintiff-appellees.27         The panel opinion, as we
    
    have noted, exhibited as its centerpiece Allied Artists, a twenty
    
    year old Ohio district court case.          The dissent now jettisons
    
    Allied Artists as support for the panel’s novel position and turns
    
    to Title 40 of the Louisiana Revised Statutes, a statutory scheme
    
    that attempts to review, regulate, oversee, and partially fund
    
    medical malpractice claims.      See 22C La. Rev. Stat. Ann. § 40:1299.
    
    It quickly becomes clear, however, that Title 40 is an even less
    
    reliable ally than was Allied Artists for the position that these
    
    defendants have enforcement powers with regard to Act 825.
    
         This is the essence of the dissent’s argument as best we
    
    understand    it:   Title   40   applies   to   all   medical   malpractice
    
    claims;28 the   Patients Compensation Fund Oversight Board (“PCFOB”)
    
    must review all malpractice claims to determine if they qualify for
    
    
        27
         None of the plaintiff-appellees appear willing to rely on the
    dissent’s theory. Indeed, the appellees expressly observe in their
    briefs that the medical malpractice scheme does not apply to any
    cause of action under Act 825.
             28
             The dissent asserts that “[u]nder Title 40's medical
    malpractice system, all malpractice claims against private and
    public health care providers must be reviewed by a medical review
    panel before the claimant can file suit in court.” (emphasis
    added).
    
    
    
    
                                        36
    the damage caps and other benefits provided by Title 40; this
    
    oversight authority means that the PCFOB would review all medical
    
    malpractice claims based on or related to abortion claims; the
    
    PCFOB would have discretionary authority to deny benefits of Title
    
    40 to defendant doctors for procedures determined by the Board to
    
    be covered by Act 825; and, because the Governor appoints members
    
    of the PCFOB, and because appointees of the Attorney General must
    
    approve certain payments ultimately determined to be payable from
    
    the Self-Insurance Fund--all the aforementioned acts authorized by
    
    Title 40--each of the defendants has enforcement powers with
    
    respect     to   Act   825.   The        dissent   makes   this   argument
    
    notwithstanding the express provision of Act 825 that “[t]he laws
    
    governing medical malpractice or limitations of liability thereof
    
    provided in Title 40 of the Louisiana Revised Statutes of 1950 are
    
    not applicable to this Section.” See § 2800.12(C)(2) (emphasis
    
    added).29   Furthermore, the dissent makes this argument even though
    
    
    
    
          29
           The dissent incorrectly observes that Act 825 “remov[es]
    abortion doctors from the umbrella of medical malpractice
    protections.” Act 825 does not exempt abortion doctors from the
    provisions of Title 40. Rather, all claims brought pursuant to Act
    825 are exempt from Title 40.    It is upon this initial flawed
    foundation that the entirety of the dissent’s argument is
    constructed.
    
    
    
    
                                        37
    no official connected with Title 40 has been named as a defendant
    
    in this case.
    
         Very   little   need   be   said    about   this   patently   untenable
    
    argument.   We need not draw attention to the fact that, even under
    
    the dissent’s argument, the defendants who have been sued in this
    
    case have no enforcement connection with Title 40, much less the
    
    statute at issue (Act 825).       The most obvious--and fatal--flaw in
    
    the dissent’s effort to connect Act 825 to Title 40 is that the
    
    argument is premised and dependent upon a plainly false assumption:
    
    the assumption that the agencies operating under Title 40 have
    
    jurisdiction, authority, or discretion ever to review or consider
    
    any claims brought under Act 825.        Act 825 creates a specific cause
    
    of action; Act 825 provides that claims brought under the statute
    
    are not subject to Title 40; consequently, any governmental bodies
    
    or agents acting under Title 40 have no authority or jurisdiction--
    
    that is, enforcement powers--over claims brought under Act 825. In
    
    short, the foundation of the dissent’s argument, to wit, that
    
    “[u]nder Title 40's medical malpractice system, all malpractice
    
    claims against private and public health care providers must be
    
    reviewed by a medical review panel,” is false--the actual fact
    
    being that Title 40 applies to all medical malpractice claims
    
    except those brought pursuant to Act 825.           There is therefore no
    
    
    
    
                                        38
    connection between Title 40 and Act 825.   In concluding, however,
    
    we emphasize that, notwithstanding the dissent’s newest theory that
    
    attempts to relate Act 825 to Title 40, we should not be diverted
    
    from the crucial and determinative consideration under Ex parte
    
    Young and its progeny: These defendants have no ability to enforce
    
    Act 825, a purely private tort statute, which can be invoked only
    
    by private litigants.
    
                                     B
    
         We turn now to comment on the various authorities addressed by
    
    the dissent.   We would first note that the dissent fails to cite
    
    any case in which a federal court enjoined enforcement of a statute
    
    even remotely like Act 825--that is, one with private civil, but no
    
    criminal penalties.   In every case cited by the dissent to support
    
    its claim that an injunction was proper in this case, there were
    
    simply no Eleventh Amendment or Article III problems that would bar
    
    the court from asserting jurisdiction over the complaint for this
    
    reason: federal jurisdiction plainly existed over the claims for
    
    injunctive relief to strike the criminal provisions of the statutes
    
    at issue in those cases.30   When there were also civil provisions
    
    
         30
          See, e.g., Causeway Med. Suite v. Foster, 
    221 F.3d 811
     (5th
    Cir. 2000), aff’g, Causeway Med. Suite v. Foster, 
    43 F. Supp. 2d 604
    , 609 (E.D. La. 1999); Planned Parenthood of Southeastern
    Pennsylvania v. Casey, 
    505 U.S. 833
    , 909, 
    112 S. Ct. 2791
     (1992);
    
    
    
    
                                    39
    contained in these statutes they were, without analysis, swept up
    
    and bundled as one package with the struck criminal provisions.   In
    
    no case cited by the dissent did the court address the civil
    
    provisions separately under an Ex parte Young analysis, as we are
    
    called upon to do today.   Indeed, in assessing the value of those
    
    cases to the issues before us today, we must conclude that it is
    
    determinative that these cases fail to even mention Ex parte Young.
    
         In sum, nothing argued or cited by the dissent suggests that
    
    there is any enforcement connection between these defendants--the
    
    Governor and the Attorney General--and Act 825 that satisfies
    
    either of the requirements of Ex parte Young.31       It is clear
    
    
    Colautti v. Franklin, 
    439 U.S. 379
    , 381, 
    99 S. Ct. 675
     (1979);
    Planned Parenthood of Central Missouri v. Danforth, 
    428 U.S. 52
    ,
    83-84, 
    96 S. Ct. 2831
     (1976); Karlin v. Foust, 
    188 F.3d 446
    , 456
    (7th Cir. 1999); Women’s Medical Prof’l Corp. v. Voinovich, 
    130 F.3d 187
    , 191 (6th Cir. 1997); Planned Parenthood, Sioux Falls
    Clinic v. Miller, 
    63 F.3d 1452
    , 1454 (8th Cir. 1995).
         31
           We also briefly respond to Judge Benavides’ concurring and
    dissenting opinion. We understand that opinion to suggest that we
    should “pragmatically” apply Ex Parte Young in a declaratory
    judgment action, without regard to the fact that no case has ever
    rejected the Young fiction as the only means of avoiding the
    Eleventh Amendment; that we should assume that the Eleventh
    Amendment makes an exception for the Declaratory Judgment Act for
    any case that seeks to enforce a federal right denied by the state,
    when this position has never been held by any court;        that we
    should find no Article III controversy in this case as to the
    injunction, and then turn and find a controversy on the same set of
    facts, including the same parties, alleging the same claim and
    seeking the same resolution via a declaratory judgment; and that we
    
    
    
    
                                    40
    should assume that the Declaratory Judgment Act provides an
    independent cause of action, notwithstanding that the law makes
    clear that--although the Declaratory Judgment Act provides a remedy
    different from an injunction--it does not provide an additional
    cause of action with respect to the underlying claim. See Earnest
    v. Lowentritt, 
    690 F.2d 1198
    , 1203 (5th Cir. 1982). Neither case
    law or the Constitution allows for this creative analysis.
         The opinion makes the novel and cryptic contention that “the
    Supreme Court’s modern standing doctrine has subsumed the
    connection inquiry [of Young].” The revelation that the connection
    inquiry of Young is no longer applicable law would come as a
    surprise to the numerous federal courts that continue to apply this
    connection inquiry as the binding law of the land.       See, e.g.,
    Lytle v. Griffith, 
    2001 WL 133189
     (4th Cir. Feb. 16, 2001);
    Confederated Tribes & Bands of the Yakama Indian Nation v. Locke,
    
    176 F.3d 467
     (9th Cir. 1999); Snoeck v. Brussa, 
    153 F.3d 984
     (9th
    Cir. 1998);   Luckey v. Harris, 
    860 F.2d 1012
     (11th Cir. 1988);
    Finberg v. Sullivan, 
    634 F.2d 50
     (3d Cir. 1980); Shell Oil Co. v.
    Noel, 
    608 F.2d 208
     (1st Cir. 1979). That the doctrine of standing
    has “subsumed” the connection inquiry under Young would likely
    surprise the Supreme Court itself, which has never questioned the
    continuing viability of Young and, indeed, has recently reaffirmed
    the vitality of the doctrine.     Idaho v. Coeur d’Alene Tribe of
    Idaho, 
    521 U.S. 261
    , 262, 
    117 S. Ct. 2028
     (1997). We note that the
    Supreme Court has frequently emphasized its unwillingness to
    recognize the overruling of its precedent by implication.       See
    Agostini v. Felton, 
    521 U.S. 203
    , 237, 
    117 S. Ct. 1997
     (1997) (“We
    do not acknowledge, and we do not hold, that other courts should
    conclude our more recent cases have, by implication, overruled an
    earlier precedent. We reaffirm that if a precedent of this Court
    has direct application in a case, yet appears to rest on reasons
    rejected in some other line of decisions, the Court of Appeals
    should follow the case which directly controls, leaving to this
    Court the prerogative of overruling its own decisions.") (citation
    omitted).
         This opinion effectively asks us to jettison the traditional
    connection inquiry outlined in Young and hold that the state qua
    state may be sued in federal court when the plaintiff, in a
    declaratory judgment action, seeks to assert federal constitutional
    rights against the state because the Fourteenth Amendment trumps
    the Eleventh Amendment. To borrow the concurring and dissenting
    
    
    
    
                                    41
    therefore to this en banc court, and we hold, alternatively, that
    
    the defendants in this case enjoy Eleventh Amendment immunity from
    
    this suit.32
    
    
    
    
                                    VII
    
    
    
    opinion’s words:   “That [is] beyond the power of this intermediate
    court.”
         32
           We are at a loss to grasp what drives Judge Higginbotham’s
    concurring opinion, in which he states that our effort to resolve
    the crucial Eleventh Amendment question in this case “should not
    have been undertaken.”    Despite its opposition, the concurring
    opinion in no way hints at where our treatment of Ex parte Young
    runs astray of the established law and does not deny that the issue
    has been central to both the panel opinion and these en banc
    proceedings.
         Indeed, the opinion seems to ignore the prominence, not to
    mention the importance, of that issue in this case and the purpose
    of the en banc court.     The panel opinion based its holding on
    Young.   This court voted for en banc to consider the Eleventh
    Amendment issues that the parties and the panel had raised. The
    State has vigorously asserted its Eleventh Amendment immunity in
    both its petition for rehearing and in its en banc briefs. The
    plaintiff-appellees addressed the Young issue before this en banc
    court as well. Therefore, once this case reached the full court,
    the State was forcefully claiming its Eleventh Amendment immunity,
    and the plaintiff-appellees were vigorously arguing the Young
    exception. The purpose of the en banc court is to clarify the law
    when a “panel decision conflicts with a decision of the United
    States Supreme Court” or the case “involves one or more questions
    of exceptional importance”. Fed. R. App. P. 35(b)(1). Under the
    circumstances of this case, it would be difficult, if not
    irresponsible, to remain silent on the panel’s and the dissent’s
    misreading of the Young exception.
    
    
    
    
                                     42
         Now that we have addressed the Eleventh Amendment issues that
    
    have been presented in this case, we turn to the question of
    
    jurisdiction under Article III.     Recently, the Supreme Court, when
    
    confronted with both an Eleventh Amendment and an Article III
    
    question,   chose   to   decide   the   case   based   on   Article   III
    
    jurisdiction.   See Calderon v. Ashmus, 
    523 U.S. 740
    , 745, 
    118 S. Ct. 1694
     (1998) (“[We] have decided that we must first address whether
    
    this action for a declaratory judgment is the sort of ‘Article III’
    
    ‘case or controversy’ to which federal courts are limited.”).33
    
    
         33
           In Calderon, the Ninth Circuit had rejected the defendant
    state officers’ Eleventh Amendment defense and affirmed a
    declaratory judgment regarding a portion of the Antiterrorism and
    Effective Death Penalty Act of 1996. The Supreme Court, which had
    granted certiorari on the court’s rejection of the defendants’
    Eleventh Amendment defense, passed the opportunity to address the
    question of Eleventh Amendment immunity, and decided the case based
    on Article III standing.
         Whether the Supreme Court would come to the same conclusion
    were it faced with the case before us, where the issue on appeal is
    the propriety of an injunction rather than a judgment under the
    Declaratory Judgment Act, is surely open to question. We note that
    the authority cited by the Calderon court for first addressing
    standing does not support the proposition that courts must always
    address standing before considering the Eleventh Amendment.
         The Court first relied on Patsy v. Board of Regents of
    Florida, 
    457 U.S. 496
    , 
    102 S. Ct. 2557
     (1982). In Patsy, the Court
    decided not to address the Eleventh Amendment issue in part because
    the State had expressly requested that the Court address the
    substance of the claim. See Id. at 515. It is relevant to our case
    to note, however, that one of the reasons the Court decided to look
    past the Eleventh Amendment and to address the merits of the
    exhaustion claim was that the exhaustion issue was “decided below
    and vigorously pressed in this Court.” Id. Here, too, have the
    
    
    
    
                                       43
    Calderon does not hold that a court always must, or even always
    
    should, decide the Article III issues before addressing Eleventh
    
    Amendment issues.     Nevertheless, given that the Supreme Court has
    
    followed this path in a case that has similarities to today’s case,
    
    it   is   not   inappropriate   for   us   to   examine,   and,   if   thereby
    
    warranted, to decide this case based on the limitations Article III
    
    imposes on federal courts.
    
          Under Article III of the Constitution, the federal courts have
    
    jurisdiction over a claim between a plaintiff and a defendant only
    
    if it presents a “case or controversy.”               This is a “bedrock
    
    
    State of Louisiana and the plaintiff-appellees “vigorously pressed”
    the Eleventh Amendment issue before this en banc court.
         Second, the Calderon court relied on Idaho v. Coeur d’Alene
    Tribe of Idaho, 
    521 U.S. 261
    , 
    117 S. Ct. 2028
     (1997), in deciding to
    address Article III jurisdiction before the Eleventh Amendment.
    Although Coeur d’Alene holds that “a State can waive its Eleventh
    Amendment protection”, that case does not suggest that the Eleventh
    Amendment is anything less than an actual restriction on the
    Article III jurisdiction of the federal courts. See Id. at 270
    (noting that “Eleventh Amendment immunity represents a real
    limitation on a federal court’s federal-question jurisdiction.”).
         Finally, it must be recognized that, on several other
    occasions, the Supreme Court has not addressed the standing issue
    prior to addressing the Eleventh Amendment, despite the fact that
    standing was an issue in these cases. See, e.g., Seminole Tribe of
    Florida v. Florida, 
    517 U.S. 44
    , 73, 
    116 S. Ct. 1114
     (1996); Edelman
    v. Jordan, 
    415 U.S. 651
    , 658-59, 
    94 S. Ct. 1347
     (1974). Indeed, the
    Supreme Court has stated in unequivocal words that “the Eleventh
    Amendment [stands] for the constitutional principle that state
    sovereign immunity limit[s] the federal courts’ jurisdiction under
    Article III.”    Seminole Tribe, 517 U.S. at 64; See also Coeur
    d’Alene, 521 U.S. at 270.
    
    
    
    
                                          44
    requirement.”   Raines v. Byrd, 
    521 U.S. 811
    , 818, 
    117 S. Ct. 2312
    
    (1997).   In this way, the power granted to federal courts under
    
    Article III “is not an unconditioned authority to determine the
    
    constitutionality of legislative or executive acts.”    Valley Forge
    
    Christian College v. Americans United For Separation of Church and
    
    State, Inc., 
    454 U.S. 464
    , 471, 
    102 S. Ct. 752
     (1982).
    
         In order to establish a case or controversy sufficient to give
    
    a federal court jurisdiction over their claims, plaintiffs must
    
    satisfy three criteria.   See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560, 
    112 S. Ct. 2130
     (1992).   First, they must show that
    
    they have suffered, or are about to suffer, an “injury in fact.”
    
    Second, “there must be a causal connection between the injury and
    
    the conduct complained of.”   Third, “it must be likely, as opposed
    
    to merely speculative, that the injury will be redressed by a
    
    favorable decision.”   Id. (citation omitted).   If any one of these
    
    three elements--injury, causation, and redressability–is absent,
    
    plaintiffs have no standing in federal court under Article III of
    
    the constitution to assert their claim.
    
         In the district court, the defendants did not raise the
    
    question of whether the plaintiffs had an Article III case or
    
    controversy with them, the Governor and the Attorney General, and
    
    the district court did not consider this jurisdictional question.
    
    
    
    
                                     45
    The defendants argued only that the plaintiff doctors and clinics
    
    lacked standing to pursue their patients’ rights.                In rejecting
    
    that   contention,     the   district   court     held   that    “[g]iven   the
    
    relationship between the intervenors and their patients, and given
    
    the obstacles which prevent pregnant women from challenging this
    
    statute, including a desire for privacy and the imminent mootness
    
    of their claims, intervenors may assert third party standing and
    
    raise the right of their patients.”               Okpalobi v. Foster, 
    981 F. Supp. 977
    ,   980   (E.D.   La.     1998).      The   panel    upheld    that
    
    determination, finding that “the Plaintiffs have alleged an injury
    
    in fact, including components of causation and redressability,
    
    sufficient to make their claim a case or controversy subject to the
    
    federal courts’ Article III jurisdiction.”            Okpalobi, 190 F.3d at
    
    350.   The panel further determined that plaintiffs could properly
    
    assert third-party standing on behalf of their female patients
    
    because   the    plaintiffs    “have    the     requisite   commonality      and
    
    congruence with their patients’ interests to establish standing to
    
    assert their right to make abortion decisions free of undue burden
    
    by the State of Louisiana.”       Id. at 353.
    
           In addressing the question of federal jurisdiction under
    
    Article III, the panel, disregarding that the defendants (the
    
    Governor and the Attorney General) had caused no injury to the
    
    
    
    
                                           46
    plaintiffs and could never themselves cause any injury under the
    
    private civil scheme, nevertheless concluded that, because “[i]t is
    
    well established that a claim of direct economic harm visited on
    
    abortion providers by a statute is adequate to satisfy the injury-
    
    in-fact requirement,” the plaintiffs could assert standing for
    
    themselves. Id. at 350. Furthermore, the panel essentially passed
    
    over the causation and redressability requirements, stating only:
    
         We are convinced that Article III does not require a
         plaintiff to plead or prove that a defendant state
         official has enforced or threatened to enforce a statute
         in order to meet the case or controversy requirement when
         that statute is immediately and coercively self-
         enforcing.
    
    
    Id. at 349.
    
         The central weakness of the panel’s argument, and the fatal
    
    flaw of the dissent’s argument that follows this opinion, is that,
    
    notwithstanding that the defendants are powerless to enforce Act
    
    825 against the plaintiffs (or to prevent any threatened injury
    
    from its enforcement), the plaintiffs yet must show (1) how these
    
    impotent defendants play a causal role in the plaintiffs’ injury
    
    and (2) how these defendants can redress their alleged actual or
    
    threatened injury.   The panel’s reference to the self-enforcing
    
    nature of Act 825 is inapposite to the analysis of whether the
    
    plaintiffs have any controversy with these defendants.   That is to
    
    
    
    
                                    47
    say, the panel confuses the statute’s immediate coercive effect on
    
    the plaintiffs with any coercive effect that might be applied by
    
    the defendants--that is, the Governor and the Attorney General.
    
    This confusion allows the panel to state further: “The Plaintiffs’
    
    assertion that they will be forced to discontinue offering legal
    
    abortions to patients because of the untenable risks of unlimited
    
    civil   liability   under      an   unconstitutional      Act,    sets      forth   a
    
    justiciable case or controversy between the plaintiffs and the
    
    Governor and Attorney General of Louisiana.”                     Id.        Once the
    
    coercive impact     of   the    statute      (coercive   in    that    it    exposes
    
    plaintiffs to unlimited tort liability by individual plaintiffs) is
    
    understood   to   be   distinct       from   the    coercive   power     of     state
    
    officials (for example, if the State could institute criminal or
    
    civil proceedings under the Act), the panel’s finding of causation
    
    here is without a basis.              The panel’s own citation to Lujan
    
    recognizes that Article III requires “a causal connection between
    
    the injury and the conduct complained of . . .” 504 U.S. at 560-61
    
    (emphasis    added)--that       is,    here,    a    connection       between     the
    
    unwarranted monetary judgment (the injury) and the prosecution of
    
    a lawsuit under Act 825 by a private civil litigant (the conduct).
    
    The plaintiffs have never suggested that any act of the defendants
    
    has caused, will cause, or could possibly cause any injury to them.
    
    
    
    
                                            48
    The requirements of Lujan are entirely consistent with the long-
    
    standing rule that a plaintiff may not sue a state official who is
    
    without any power to enforce the complained-of statute.        See
    
    Muskrat v. United States, 
    219 U.S. 346
    , 
    31 S. Ct. 250
     (1911)
    
    (holding that the United States as defendant had no interest
    
    adverse to the claimants); Gritts v. Fisher, 
    224 U.S. 640
    , 
    32 S. Ct. 580
     (1912) (finding that the defendant state official was charged
    
    with specific duties to enforce the challenged statute and was
    
    therefore sufficiently adverse to the plaintiffs to create an
    
    Article III controversy).
    
         The plaintiffs also fail to satisfy the “redressability”
    
    requirement of the case or controversy analysis. For all practical
    
    purposes, the injunction granted by the district court is utterly
    
    meaningless.34   The governor and attorney general have no power to
    
    redress the asserted injuries.    In fact, under Act 825, no state
    
    official has any duty or ability to do anything.    The defendants
    
    have no authority to prevent a private plaintiff from invoking the
    
    
    
    
          34
            The district court enjoined the statute.   An injunction
    enjoins a defendant, not a statute. The dissent does not suggest
    to us the wording of the proposed injunction against these
    defendants that it would enter to bar either private plaintiffs
    from suing under the statute or courts from hearing such suits.
    
    
    
    
                                     49
    statute in a civil suit.35 Nor do the defendants have any authority
    
    under the laws of Louisiana to order what cases the judiciary of
    
    Louisiana may hear or not hear.    Because these defendants have no
    
    powers to redress the injuries alleged, the plaintiffs have no case
    
    or controversy with these defendants that will permit them to
    
    maintain this action in federal court.    See Muskrat, 219 U.S. at
    
    346.36
    
         In addressing Article III jurisdiction, the dissent focuses on
    
    the injury component of the case or controversy requirement,
    
    
         35
          The dissent cites Causeway Medical Suite v. Ieyoub, 
    109 F.3d 1096
     (5th Cir. 1997), for the proposition that these plaintiffs
    have a case or controversy against the Governor and Attorney
    General in this case. In Causeway, however, two additional named
    defendants (the Secretary of the Department of Health and Hospitals
    and the Secretary of the Department of Social Services) appear to
    have possessed some enforcement connection with the challenged
    statute.   See id. at 1100-01.     The opinion, however, does not
    analyze in any detail the case or controversy issue, and the
    precise role that each defendant played in enforcing the statute in
    question is not clear. See id. at 1102. To the extent, however,
    that Causeway might stand for the proposition that the defendants
    need have no causal connection to the plaintiff’s injury and powers
    to redress the injury in order to create an Article III case or
    controversy, that case is overruled.
              36
           The cases cited by the dissent that purport to authorize
    standing under these facts are hardly persuasive in deciding the
    jurisdiction of the federal courts in the case before us. In each
    of those cases, a case or controversy existed between the
    plaintiffs and defendants because of the presence of criminal
    liability provisions, fully enforceable by the state officials who
    were sued.   There is no such basis here that would provide an
    Article III home.
    
    
    
    
                                      50
    arguing that this component has been “visibly relaxed” in abortion
    
    cases.   We do not challenge that the plaintiffs are suffering a
    
    threatened injury.       We only say that the injury alleged by the
    
    plaintiffs   is   not,    and   cannot   possibly   be,   caused   by   the
    
    defendants--that is, these defendants will not file and prosecute
    
    a cause of action under Act 825 against these plaintiffs; and that
    
    their injury cannot be redressed by these defendants--that is,
    
    these defendants cannot prevent purely private litigants from
    
    filing and prosecuting a cause of action under Act 825 and cannot
    
    prevent the courts of Louisiana from processing and hearing these
    
    private tort cases.37    In this way, the dissent makes much the same
    
    argument--and thus incorporates the same fatal flaw--as did the
    
    panel opinion.    It continues to confuse the coercive impact of the
    
    statute itself and the ability--or the absence of ability--of the
    
    Governor and Attorney General to cause or redress the impact of the
    
    statute on the plaintiffs.
    
         Indeed, the dissent is silent on how the defendants cause the
    
    plaintiffs’ alleged injury. The only response the dissent seems to
    
    make concerning redressability is that the Governor can provide
    
    
        37
          The cases cited by the dissent to support this relaxation of
    the injury requirement do not in any way minimize the necessity of
    causation and redressability to establish an Article III case or
    controversy.
    
    
    
    
                                        51
    some relief to physicians sued under Act 825 by “order[ing] his
    
    agents and subordinates to disregard Act 825 in reviewing civil
    
    claims against women’s health care providers and making their legal
    
    and factual recommendations as to liability and damages.”                This
    
    argument   is   unavailing.    First,    this   response   overlooks      the
    
    elemental fact that a state official cannot be enjoined to act in
    
    any way that is beyond his authority to act in the first place.            If
    
    the defendant Governor or Attorney General has no authority under
    
    state law to issue a specific directive, then the plaintiff might
    
    as well sue any state officer who, in turn, could direct any other
    
    state officer to carry out the injunction orders; or, under the
    
    dissent’s reasoning, why not simply order the defendant Governor to
    
    decree that no court may entertain any suit brought under Act 825?
    
    The dissent, of course, cites no authority for its assertion that
    
    the Governor is clothed with power to order the state agencies that
    
    administer Title 40 to act in a specified manner with respect to a
    
    class of cases.       This is not to say that the administrators of
    
    Title 40 themselves could not be enjoined to do a particular act
    
    that was within their authority--but these plaintiffs must sue
    
    those   individuals    authorized   to   exercise   the    orders   of    the
    
    injunction.
    
    
    
    
                                        52
         Second, the redress sought by the plaintiffs’ complaint is to
    
    eliminate the initiation of any and all lawsuits under Act 825--
    
    there is nothing in their complaint indicating in any way that
    
    plaintiffs seek the limited liability benefits of Title 40 for
    
    lawsuits brought under Act 825. Like the entirety of the dissent’s
    
    “Title 40" argument, this suggestion makes its first appearance in
    
    the dissent that follows this opinion, notwithstanding that this
    
    case has been pending for nearly four years. The plaintiffs’ claim
    
    is not that Act 825 is constitutional so long as claims brought
    
    thereunder are subject to the provisions of Title 40.    Indeed, the
    
    plaintiffs never mention Title 40, except to say that it is not
    
    applicable to any claims brought under Act 825.   Their argument is
    
    that any cause of action alleged under Act 825 is barred as
    
    unconstitutional. Thus, there is no redress for the claimed injury
    
    resulting from the application of this unconstitutional statute--
    
    that is, the filing and prosecution of a private civil action under
    
    Act 825--that can be provided by these defendants, even under this
    
    latest theory of redressability.
    
         Third, we should point out, at the risk of being repetitive,
    
    that the matter of causation remains unsatisfied.       At best, the
    
    Governor only appoints some of the administrators of Title 40, and
    
    the Attorney General appoints legal counsel for the Self-Insurance
    
    
    
    
                                    53
    Fund.        See   La.   Rev.   Stat.   Ann.   §§    39:5(A);   40:1299.44(D);
    
    39:1533(B); 39:1535(B)(6). This appointive power of the defendants
    
    inflicts no injury on the plaintiffs.               That is to say, it is not
    
    the Governor or the Attorney General who inflicts the claimed
    
    injury--it is the private plaintiff, bringing a private lawsuit
    
    under Act 825, who causes the injury of which the plaintiffs
    
    complain.
    
         Thus, even if we take it as true that abortion cases are
    
    different from other cases concerning the requirements for injury
    
    for Article III purposes, it is in this way--causal connection and
    
    redressability–that the dissent’s authorities nevertheless remain
    
    lacking.38     In those cases, where the plaintiffs’ injury may not
    
    
    
            38
           The dissent cites Mobil Oil Corp. v. Attorney General, 
    940 F.2d 73
     (4th Cir. 1991), as support for its claim that causation
    and redressability can exist even where a challenged statute
    provides only a private tort cause of action. The court in Mobil
    Oil did indeed find a controversy between the plaintiff and the
    Attorney General of Virginia in that case.           However, that
    controversy was founded upon the Attorney General’s explicit
    statutory authority, as granted via the challenged act itself, to
    “investigate and bring an action in the name of the Commonwealth to
    enjoin any violation of [the statute].” Va.Code § 59.1-68.2. This
    authority--granting the defendants some sort of enforcement power
    against the plaintiffs so as to create a case or controversy under
    Article III--simply does not exist in the case before us.       The
    dissent’s interpretation of Mobil Oil as saying that this express
    statutory authority, non-existent in the case before us, was
    “irrelevant” to a finding of controversy between the plaintiff and
    Attorney General is plainly wrong.
    
    
    
    
                                            54
    have been imminent, the defendants had the ability to cause and to
    
    redress the plaintiffs’ injuries.39          Here, that is plainly not the
    
    case.     Consequently, there is no case or controversy between these
    
    plaintiffs and defendants.
    
         We therefore hold that the district court lacked Article III
    
    jurisdiction to hear this claim.
    
                                          VIII
    
         In     sum,   we   hold   that   the    plaintiffs   have   no   case   or
    
    controversy with these defendants and the district court’s judgment
    
    
         39
          The dissent cites Corporate Health Insurance, Inc. v. Texas
    Department of Insurance, 
    215 F.3d 526
     (5th Cir. 2000), for the
    proposition that the medical malpractice scheme alone gives the
    Governor and Attorney General sufficient powers of causation and
    redressability with regard to Act 825, notwithstanding the fact
    that Act 825 provides only a private cause of action. The citation
    of Corporate Health for this proposition seems to us seriously
    mistaken. The dissent ignores the following language that makes it
    clear that a case or controversy in that case was founded upon the
    authority of the Attorney General to specifically enforce the
    statute at issue:
    
         Aetna replies that it has standing because the liability
         provisions expose it not only to private suits but also
         to the regulatory reach of the Attorney General.      We
         agree. This is not a case in which private suits are the
         only means of enforcing a challenged statutory standard.
         The Attorney General can pursue Aetna through an action
         under the Texas Deceptive Trade Practices Act and the
         Insurance Code. This regulatory oversight [the right of
         the Attorney General to sue directly] is sufficient to
         create the requisite imminent injury for standing.
    
    Id. at 532 (emphasis added).
    
    
    
    
                                           55
    must be dismissed for lack of federal court jurisdiction under
    
    Article III of the Constitution.     Furthermore, we have made clear
    
    in this en banc opinion that the defendants in this case enjoy
    
    Eleventh Amendment immunity from this suit and that the Ex parte
    
    Young exception to the Eleventh Amendment cannot be applied under
    
    these facts.   We alternatively hold, therefore, that this suit is
    
    barred by the Eleventh Amendment.40
    
         The judgment of the district court is
    
                                                REVERSED, VACATED, and
                          REMANDED for entry of judgment of dismissal.
    
    
    
        40
          It is important to keep in mind that anyone exposed to actual
    liability under this statute has immediate redress--that is to say,
    a defendant sued by a private plaintiff under Act 825 can
    immediately and forthwith challenge the constitutionality of the
    statute. The opinions that follow, although surely recognizing
    this fact, seem to fall prey to the fallacy that, failing the
    success of this particular challenge to Act 825, an allegedly
    unconstitutional statute will remain on the books in Louisiana in
    perpetuity.    That is plainly not the case.      Once any private
    plaintiff seeks to enforce her rights under the statute, Act 825,
    if indeed unconstitutional, will be stricken forever from the
    statute books of Louisiana. See La. Code Civ. Proc. Ann. art. 1871
    (West 1999); Perschall v. State of Louisiana, 
    697 So. 2d 240
    , 254
    (La. 1997) (holding that the declaratory judgment action by
    plaintiff, a registered voter in the state, against the State as
    the party defendant was justiciable because the plaintiff’s
    interests and “the State’s duty to uphold the act” were
    sufficiently adverse). We note that the Eleventh Amendment is no
    bar to the United States Supreme Court’s consideration of a case
    against state officers brought to it by way of state courts. See
    South Cent. Bell Tel. Co. v. Alabama, 
    526 U.S. 160
    , 166, 
    119 S. Ct. 1180
     (1999).
    
    
    
    
                                    56
    PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
    
         I concur in the judgment reversing and remanding for entry of
    
    an order of dismissal for lack of standing.            I do not concur in the
    
    treatment of Ex parte Young.           The majority opinion41 reexamines the
    
    underpinnings of Ex parte Young42 to support its conclusion that
    
    injunctive relief is not available here and hence the claim is
    
    barred by the Eleventh Amendment. Despite the majority's careful
    
    work,     I    am   persuaded   that   this   effort   should   not   have   been
    
    undertaken.
    
         This appeal can and should be resolved by a direct and simple
    
    proposition: there is no case or controversy. Enjoining the named
    
    defendants from enforcing the statute will not redress the claimed
    
    wrongs. There is then no case or controversy under Article III of
    
    the Constitution.43
    
    
    
            41
            I refer to the “majority” opinion because it has a clear
    majority in support of its treatment of standing. The opinion’s
    treatment of Ex parte Young and the Eleventh Amendment is not
    supported by a majority of the court.
         42
                 
    209 U.S. 123
     (1908).
        43
           See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 568, 570-
    71 (1992) (“The most obvious problem in the present case is
    redressability. . . . The short of the matter is that redress of
    the only injury in fact respondents complain of requires action .
    . . by the individual funding agencies; and any relief . . .
    against the Secretary was not likely to produce that action.”).
    
    
    
    
                                             57
                                        I
    
         The question of standing – case or controversy – is logically
    
    anterior to the question of whether there is a defense to the
    
    claim; it goes to the court’s jurisdiction and cannot be waived by
    
    the parties or conferred by agreement. The Eleventh Amendment is
    
    also jurisdictional, but it is jurisdiction in an anomalous form.
    
    It is a defense that may be invoked by the state – but need not be.
    
         Logic is not alone in pushing the case-or-controversy inquiry
    
    to the forefront.44 Questions of standing and redressability are
    
    familiar. The burden of a plaintiff to plead and prove standing at
    
    each stage of the proceeding is settled.45 Stepping over this
    
    threshold inquiry to address at the outset of the suit the defense
    
    of Eleventh Amendment immunity risks confusion.46
    
         44
           The Supreme Court recently reaffirmed that a federal court
    should usually address subject matter jurisdiction before personal
    jurisdiction in removal cases, unless personal jurisdiction is
    easily resolved and determining subject-matter jurisdiction is
    difficult. See Ruhrgas AG v. Marathon Oil Co., 
    526 U.S. 574
    , 587-88
    (1999). The majority’s approach is in tension with the principles
    of restraint underlying Ruhrgas. It repairs to the fundamentals of
    Ex parte Young instead of relying on a straightforward application
    of subject matter jurisdiction. As I explain, the Supreme Court in
    Calderon v. Ashmus, 
    523 U.S. 740
     (1998), has addressed the sequence
    for standing and Eleventh Amendment issues. See infra.
         45
              Lujan, 504 U.S. at 561.
        46
           I recognize that some courts have addressed the application
    of Ex Parte Young without first considering standing. These cases,
    
    
    
    
                                        58
         In Calderon v. Ashmus,47 the Supreme Court recognized this
    
    risk, insisting that standing be found before considering a state’s
    
    immunity under the Eleventh Amendment. It explained that before
    
    addressing an Eleventh Amendment claim, “we must first address
    
    whether this action for a declaratory judgment is the sort of
    
    ‘Article III’ ‘case or controversy’ to which federal courts are
    
    limited.”48 Whether the court was expressing a rule of sequence
    
    across cases or explaining the practical compulsion in the case
    
    before it is not wholly certain. At the least, similar concerns
    
    inform my hesitation here.49
    
         The question of standing in this case is easily framed. We
    
    should ask whether enjoining defendants from enforcing the statute
    
    complained of will bar its application to these plaintiffs. The
    
    
    however, tend to involve an unusual procedural posture in which the
    court finds it inappropriate to review standing. See, e.g., Summit
    Medical Assoc. v. Pryor, 
    180 F.3d 1326
    , 1334-36 (11th Cir. 1999)
    (finding review of standing during interlocutory appeal of denial
    of Eleventh Amendment immunity to be unavailable under collateral
    order doctrine or pendent appellate jurisdiction doctrine).
         47
              
    523 U.S. 740
     (1998).
         48
              Id. at 745 (emphasis added).
        49
           In Calderon, the Supreme Court overruled the Ninth Circuit,
    which had treated the Eleventh Amendment issue as a threshold
    inquiry. The Ninth Circuit addressed the Article III standing
    question only after it had decided the Eleventh Amendment issue.
    See Ashmus v. Calderon, 
    123 F.3d 1199
    , 1204-07 (9th Cir. 1997).
    
    
    
    
                                      59
    answer is no. I am persuaded that the sued defendants have no such
    
    responsibility for enforcing the statute. Whether that is so ought
    
    to be the beginning and the end of this appeal. The majority
    
    acknowledges this reality but only after a long visit with the
    
    doctrine of Ex parte Young.
    
         There is another powerful argument that Eleventh Amendment
    
    immunity ought not be treated in this case. The majority reasons
    
    that the injunction exception to the Eleventh Amendment offered by
    
    Ex parte Young is not available because the injunction is against
    
    officials with no enforcement power; that with the wrong officials
    
    sued the action is against the State. But “official-capacity
    
    actions for prospective relief are not treated as actions against
    
    the State.”50 The Governor and Attorney General were sued in their
    
    official capacities for injunctive relief. That they are the wrong
    
    officials does not alter the relief sought. Rather, the flaw
    
    (ignoring for the moment the absence of standing) is that if the
    
    suit is against the wrong officials, no claim for injunctive relief
    
    has been stated.
    
    
    
    
          50
            Will v. Michigan Dept. of State Police, 
    491 U.S. 58
    , 71
    n.10, quoting Kentucky v. Graham, 473 U.S. at 167 n.14; see also Ex
    parte Young, 
    209 U.S. 123
    , 159-160 (1908).
    
    
    
    
                                    60
                                          II
    
          The majority and the dissent trade arguments over “the nexus
    
    between defendants and the statute at issue.” If this is the same
    
    inquiry as standing, as it appears to be, we should be applying the
    
    doctrine of standing. Specifically, unless nexus as deployed by the
    
    majority has something to say to cases that meet the standing
    
    inquiry, it has no independent utility. Treating the requisites of
    
    standing as requirements internal to Ex parte Young is confusing,
    
    in part, because it does not necessarily simultaneously answer the
    
    standing question. After all, a plaintiff may have requested
    
    injunctive relief from defendants with responsibility for enforcing
    
    a law they challenge, but is unable to plead and prove individuated
    
    injury.
    
                                          III
    
          Standing developed long after Ex parte Young, responding to
    
    the   stress    expanding    public    law    litigation       brought   to   the
    
    respective     roles   of   Article    III    courts,    the     Congress,    the
    
    Executive, and the states. It is more than adequate to its task of
    
    vindicating    these   principles     of    federalism   and     separation   of
    
    powers.
    
    
    
    
                                          61
         Judge        Benavides’   opinion    would   find   standing    under   the
    
    Declaratory Judgment Act.51 This approach has three problems, in
    
    ascending order of difficulty. First, whether the district court in
    
    this case granted declaratory relief is uncertain. The court
    
    granted a preliminary injunction, questioning the constitutionality
    
    of the challenged statute in the course of finding that there was
    
    a substantial likelihood of success on the merits. The parties then
    
    agreed to convert the preliminary injunction into a permanent
    
    injunction. At best, any “declaratory relief” is only that, a
    
    conclusion implicit in the grant of injunctive relief. Perhaps this
    
    would        be   a   sufficient   declaration,    but    there     are   larger
    
    difficulties.
    
         Second, although the Declaratory Judgment Act “brings to the
    
    present a litigable controversy, which otherwise might only be
    
    tried in the future,”52 it does not jettison traditional standing
    
    requirements.53 The requirements of causation and redressability are
    
    
    
         51
                 See 28 U.S.C. § 2201(a).
        52
           Societe de Conditionnement en Aluminum v. Hunter Eng'g Co.,
    
    655 F.2d 938
    , 943 (9th Cir. 1981).
            53
           See Lawson v.         Callahan, 
    111 F.3d 403
    , 405 (5th Cir. 1997)
    (Wisdom, J.) (noting        that the “actual controversy” required under
    28 U.S.C. § 2201(a)          “is identical to the meaning of ‘case or
    controversy’ for the        purposes of Article III”).
    
    
    
    
                                             62
    not met here. Lack of standing disposes of this case regardless of
    
    the relief sought – injunctive or declaratory. The defendants could
    
    not threaten enforcement of the targeted state law; they lack the
    
    authority to do so. If plaintiffs attempted to sue defendants in
    
    their official capacity, acting on an assumption that although
    
    lacking enforcement power they are obligated to defend the statute
    
    in the abstract, the requisite concreteness of engagement is
    
    absent. This is so even if, contrary to my view, declaratory relief
    
    is seen as here meeting the redressability requirement of Article
    
    III.
    
           Third, this case could not proceed even if case or controversy
    
    difficulties were somehow met – if the Governor and Attorney
    
    General   were   seen    as   proper   defendants    to   a   claim   seeking
    
    declaratory relief, even though coercive relief against them could
    
    not be granted. This is because Congress did not and could not have
    
    created    a   generic   exception     to   the   Eleventh    Amendment   for
    
    declaratory relief.
    
                                           IV
    
           Some have viewed Ex parte Young as the culprit, the cause of
    
    these changes in the public law model of cases. More to the point,
    
    some apparently see the doctrine articulated therein as a threat to
    
    the sovereign role of states that must be tamed. I do not share
    
    
    
    
                                           63
    these views and fear that imposing this additional duty upon Ex
    
    parte Young by bringing it forward, to the front of the case or
    
    controversy inquiry, pushes the doctrine toward an amorphous, case-
    
    by-case inquiry into its availability – a destination affirmatively
    
    rejected by seven members of the United States Supreme Court.54 I
    
    do not suggest that the majority does so here. Rather, my concern
    
    is where the path it has selected can lead.
    
                                    V
    
         Implicit in my resistance to the majority’s approach is my
    
    view that Ex parte Young poses no threat to the Eleventh Amendment
    
    or to the fundamental tenets of federalism. To the contrary, it is
    
    a powerful implementation of federalism necessary to the Supremacy
    
    
    
    
         54
            See Idaho v. Coeur d’ Alene Tribe, 
    521 U.S. 261
    , 288, 291
    (1997) (O’Connor, J., concurring) (“[T]he principal opinion reasons
    that federal courts determining whether to exercise jurisdiction
    over any suit against a state officer must engage in a case-
    specific analysis of a number of concerns . . . . This approach
    unnecessarily recharacterizes and narrows much of our Young
    jurisprudence.”); id. at 297 (Souter, J., dissenting) (“The
    principal opinion would redefine the [Young] doctrine, from a rule
    recognizing federal jurisdiction to enjoin state officers from
    violating federal law to a principle of equitable discretion as
    much at odds with Young’s result as with the foundational doctrine
    on which Young rests.”). The attempt in the principal opinion to
    frame Young in terms of case-by-case analysis, id. at 270-80
    (Kennedy, J.), was joined only by the Chief Justice.
    
    
    
    
                                    64
    Clause, a stellar companion to Marbury55 and Martin v. Hunter’s
    
    Lessee.56
    
         We should wait for the case in which plaintiffs have standing,
    
    where there is a case or controversy, before examining whether the
    
    principles of Ex parte Young have been unduly expanded. Since such
    
    relief can never be granted absent a case or controversy, the
    
    destination of the majority’s trek today is inevitably a narrowing
    
    of the doctrine of Ex parte Young, rendering it either less than it
    
    has always been or an exact replication of standing doctrine. I
    
    decline passage on that voyage. I decline because I am persuaded
    
    that familiar principles of standing are better suited to answer
    
    these questions with less risk to the vital role of Ex parte Young.
    
                                      VI
    
         The desire to drive a stake through the heart of the panel
    
    majority’s views of Ex parte Young is understandable. The panel’s
    
    flawed analysis offered a tempting target, enough that the en banc
    
    majority’s lengthy effort to erase its memory here is not without
    
    some justification. But it pursues a ghost. The panel opinion no
    
    longer exists. It was vacated by the order granting en banc review.
    
    
         55
              Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
         56
              14 U.S. (1 Wheat.) 304 (1816).
    
    
    
    
                                      65
    The order granting en banc left no remains to be buried and doing
    
    so implies the need to do so, itself not the best course, to my
    
    eyes.
    
    
    
    
                                   66
    BENAVIDES, Circuit Judge, concurring in part and dissenting in
    
    part:
    
          The majority, in focusing on the injunctive relief sought by
    
    the plaintiffs, has paid too little attention to the plaintiffs’
    
    request for a declaration that Louisiana’s strict liability scheme
    
    for   regulating   the    provision   of   abortions     unconstitutionally
    
    burdens a woman’s right to an abortion.       In my view, the plaintiffs
    
    present a “controversy” that the Declaratory Judgment Act and
    
    Article III require this Court to resolve.            Moreover, the Supreme
    
    Court’s sovereign immunity jurisprudence does not foreclose our
    
    ability to vindicate constitutional rights when the existence of a
    
    state’s self-executing statutory liability scheme places those
    
    rights in jeopardy.      Indeed, I am confident this case falls “on the
    
    Ex parte Young side” of the Supreme Court’s sovereign immunity
    
    jurisprudence - that is, as in Young, I believe the duty of this
    
    Court to protect constitutional rights and thereby ensure the
    
    supremacy   of   the   Constitution    over   state    laws   outweighs   the
    
    sovereign right of states to immunity from suit in federal court.
    
    For that reason, I respectfully dissent.          I write separately to
    
    explain my belief that the connection requirement on which both the
    
    majority and dissent concentrate should be understood and analyzed
    
    
    
    
                                          67
    in terms of standing, and has little relevance to the interplay
    
    between Ex parte Young and the Eleventh Amendment.
    
    
    
                                         I.
    
         I agree with the majority to the extent that it holds the
    
    plaintiffs have no standing to seek injunctive relief. Article III
    
    standing requires a litigant to have suffered an injury-in-fact,
    
    fairly traceable to the defendant’s allegedly unlawful conduct, and
    
    likely to be redressed by the requested relief. Lujan v. Defenders
    
    of Wildlife, 
    504 U.S. 555
    , 560-61, 
    112 S. Ct. 2130
     (1992).                  When
    
    analyzing the plaintiffs’ claim for injunctive relief under the
    
    unusual facts of this case, I am constrained by Supreme Court
    
    precedent to find the causation and redressability requirements
    
    lacking.    However, unlike the majority of the Court, I do not
    
    believe the inquiry ends here.       In addition to seeking injunctive
    
    relief,    the   plaintiffs   in   this   case   brought   suit    under    the
    
    Declaratory Judgment Act, 28 U.S.C. § 2201, which provides a
    
    mechanism for pre-enforcement review of a statute.57              See Steffel
    
         57
           The Act provides:
         (a) In a case of actual controversy within its jurisdiction .
         . . any court of the United States, upon the filing of an
         appropriate pleading, may declare the rights and other legal
         relations of any interested party seeking such declaration,
         whether or not further relief is or could be sought.
    
    
    
    
                                         68
    v.   Thompson,   
    415 U.S. 452
    ,   478,   
    94 S. Ct. 1209
    ,   1225   (1974)
    
    (Rehnquist, J., concurring) (“[M]y reading of the legislative
    
    history of the Declaratory Judgment Act of 1934 suggests that its
    
    primary purpose was to enable persons to obtain a definition of
    
    their rights     before   an   actual   injury     had    occurred   .   .   .).58
    
    
         The legislative history of the Act explains that declaratory
    judgments “ha[ve] been especially useful in avoiding the necessity
    . . . of having to act at one’s peril . . . or abandon one’s rights
    because of a fear of incurring damages.”      S.Rep. No. 1005, 73d
    Cong., 2d Sess., 2-3, 6 (1934); see also Hearing on H.R. 5623
    before a Subcommittee of the Senate Committee on the Judiciary, 70th
    Cong., 1st Sess., 75-76 (1928). (“Assuming that the plaintiff has
    a vital interest in the enforcement of the challenged statute or
    ordinance, there is no reason why a declaratory judgment should not
    be issued, instead of compelling a violation of the statute as a
    condition precedent to challenging its constitutionality.”)
          58
           Judge Higginbotham insists that the district court in this
    case granted only injunctive relief, not a declaration of Act 825's
    unconstitutionality.     As a consequence, he maintains that
    independent consideration of plaintiffs’ standing to seek
    declaratory relief is inappropriate. In granting a preliminary
    injunction, the district court declared that Act 825 “has the
    purpose and effect of infringing and chilling the exercise of
    constitutionally protected rights of abortion providers and woman
    [sic] seeking abortions.” Okpalobi v. Foster, 
    981 F. Supp. 977
    , 986
    (E.D. La. 1998). This declaration provided the sole basis for the
    district court’s conclusion that the plaintiffs had demonstrated a
    substantial likelihood of success on the merits of their request
    for a permanent injunction against the statute’s enforcement. See
    id. When the district court later made its preliminary injunction
    permanent pursuant to an agreement between the parties, it
    referenced the declaration contained in its previous order.       I
    conclude, like the panel majority, that “[b]ecause of the express
    reference to the earlier order declaring the Act unconstitutional
    and because the only basis for the injunction articulated is the
    district court’s decision that the Act violated the Constitution,
    
    
    
    
                                          -69-
                                           69
    Although injunctive relief is not proper, the Supreme Court has
    
    repeatedly recognized “that different considerations enter into a
    
    federal court’s decision as to declaratory relief, on the one hand,
    
    and injunctive relief, on the other.”     Roe v. Wade, 
    410 U.S. 113
    ,
    
    166, 
    93 S. Ct. 705
    , 733 (1973) (citing Zwickler v. Koota, 
    389 U.S. 241
    , 252-255, 
    88 S. Ct. 391
    , 397-399 (1967)).    Based on my reading
    
    of Supreme Court precedent, I find the plaintiffs have standing to
    
    bring an action for declaratory relief.
    
         It is familiar doctrine that the Declaratory Judgment Act does
    
    not itself grant federal jurisdiction. Instead, jurisdiction under
    
    the Act depends on the existence of an “actual controversy” in a
    
    constitutional sense.   Aetna Life Ins. Co., 300 U.S. at 239-40, 57
    
    S.Ct. at 463-64 (1937); Nat’l Rifle Ass’n of Am. v. Magaw, 
    132 F.3d 272
    , 279 (6th Cir. 1997).   In determining whether plaintiffs have
    
    standing to bring their claim pursuant to the Declaratory Judgment
    
    Act the basic inquiry is whether there exists, under the facts
    
    alleged, “a substantial controversy, between parties having adverse
    
    
    the order before us on appeal of necessity grants the plaintiffs’
    request for both declaratory and injunctive relief.” See Okpalobi
    v. Foster, 
    190 F.3d 337
    , 341 (5th Cir. 1999). The Supreme Court
    reached the same conclusion on similar facts.       See Green v.
    Mansour, 
    106 S. Ct. 423
    , 426, n.1 (1985) (finding declaration of
    regulation’s unconstitutionality “embodied in” district court’s
    judgment granting injunctive relief).
    
    
    
    
                                   -70-
                                    70
    legal interests, of sufficient immediacy and reality to warrant the
    
    issuance of a declaratory judgment.”             Maryland Cas. Co. v. Pac.
    
    Coal & Oil Co., 31
    2 U.S. 2
    70, 273, 
    61 S. Ct. 510
    , 512 (1941).59
    
    Because I     find   that    the   plaintiffs    have    presented    an    actual
    
    controversy    and    have    legal     interests   adverse      to   the   named
    
    defendants, the Attorney General and Governor of Louisiana, I
    
    believe we have jurisdiction under Article III to consider their
    
    request for declaratory relief.
    
         In   Steffel    v.     Thompson,    the   Supreme   Court    analyzed    the
    
    appropriateness of declaratory relief, specifically the existence
    
    of an actual controversy, independently from the propriety of
    
    issuing an injunction. 
    415 U.S. 452
    , 469-70, 
    94 S. Ct. 1209
     (1974).
    
    
         59
            While there is no bright line test for finding an “actual
    controversy” the Supreme Court provided guidance on the inquiry in
    Aetna   Life   Ins.   Co.,   the   seminal   case   affirming   the
    constitutionality of the Declaratory Judgment Act:
         A justiciable controversy is thus distinguished from a
         difference or dispute of a hypothetical or abstract character,
         from one that is academic or moot. The controversy must be
         definite and concrete, touching the legal relations of parties
         having adverse legal interests.       It must be a real and
         substantial controversy admitting of specific relief through
         a decree of a conclusive character, as distinguished from an
         opinion advising what the law would be upon a hypothetical
         state of facts. Where there is such a concrete case admitting
         of an immediate and definitive determination of the proceeding
         upon the facts alleged, the judicial function may be
         appropriately exercised . . .
         300 U.S. at 240-41, 57 S.Ct. at 464 (citations omitted).
    
    
    
    
                                            -71-
                                             71
    The plaintiff in Steffel sought to distribute handbills protesting
    
    United States’ involvement in the Vietnam War on the sidewalk near
    
    a local shopping center.     Several times the plaintiff was asked to
    
    leave and was eventually threatened with arrest for criminal
    
    trespass.   Id. at 454-56.   The plaintiff sought declaratory relief
    
    that the state trespassing statute, as applied, interfered with the
    
    exercise of his constitutional rights.    Id. at 454-55. The Supreme
    
    Court held that the plaintiff demonstrated an actual controversy
    
    because the plaintiff suffered threats of injury that were not
    
    “imaginary or speculative” and had not been rendered moot.    Id. at
    
    458-60 (contrasting Younger v. Harris, 
    401 U.S. 37
    , 41, 
    91 S. Ct. 746
    , 749 (1971) and Golden v. Zwickler, 
    394 U.S. 103
    , 
    89 S. Ct. 956
    
    (1969)).    Since the plaintiff faced a genuine threat of injury
    
    absent a declaration by the Court, an “actual controversy” existed
    
    and declaratory relief was appropriate.
    
         Recently, the Supreme Court reaffirmed that “Steffel . . .
    
    falls within the traditional scope of declaratory judgment actions
    
    because it completely resolved a concrete controversy susceptible
    
    to conclusive judicial determination.”      Calderon v. Ashmus, 
    523 U.S. 740
    , 749, 
    118 S. Ct. 1694
     (1998).    In Calderon, inmates sought
    
    a declaration of whether the state of California could raise the
    
    
    
    
                                     -72-
                                      72
    expedited review provisions of the Antiterrorism and Effective
    
    Death   Penalty   Act   as   a    defense.      Id.    at    742.      The    Court
    
    distinguished     Steffel    on   several    grounds    and    found    that    the
    
    petitioners   presented      no   actual    controversy,      and   thus     lacked
    
    standing under the Declaratory Judgment Act.                Id. at 749.      First,
    
    a declaration of California’s status as a qualifying state would
    
    only resolve a discrete issue and not the underlying controversy -
    
    the plaintiffs’ habeas claims.        Id. at 469-70.          More importantly,
    
    in contrast to Steffel, the statute in Calderon had “no coercive
    
    impact on the legal rights or obligations of either party.”                     Id.
    
    In other words, the class of inmates would not have incurred any
    
    detriment by filing their habeas petitions prior to a ruling on
    
    whether California was a qualifying state. The failure to show any
    
    such injury removed the inmates’ action from the traditional bounds
    
    of declaratory relief.
    
         The present case is similar to Steffel in that the plaintiffs
    
    have demonstrated an injury-in-fact that will be redressed by the
    
    requested declaration.        Initially, the dispute presented by the
    
    plaintiffs is neither hypothetical nor speculative, rather the
    
    dispute is founded upon the definite and concrete consequences that
    
    
    
    
                                         -73-
                                          73
    will flow from the existence of Act 825.60            The majority does not
    
    seem to dispute, nor could it, that the plaintiffs will suffer an
    
    injury-in-fact arising from enforcement of the Act.              But beyond
    
    enforcement, Act 825, by its mere existence, coerces the plaintiffs
    
    to abandon the exercise of their legal rights lest they risk
    
    incurring substantial civil liability.         With respect to the Act’s
    
    coercive effect, this case presents what this Court has recognized
    
    as   the   classic    situation   for   declaratory    relief:   “where   the
    
    plaintiff is put to the Hobson’s choice of giving up an intended
    
    course of conduct which he believes he is entitled to undertake or
    
    facing possible severe civil or criminal consequences if he does
    
    undertake it.”       Texas Employers’ Ins. Assoc. v. Jackson, 
    862 F.2d 491
    , 507 n.22 (5th Cir. 1988) (en banc); see also Nat’l. Rifle, 132
    
    F.3d at 279 (6th Cir. 1997) (“[P]re-enforcement review is usually
    
    granted under the Declaratory Judgment Act when a statute ‘imposes
    
    costly, self-executing compliance burdens or if it chills protected
    
    [constitutional] activity.’”) (quoting Minnesota Citizens Concerned
    
    
         60
           This Circuit has stated: “A controversy, to be justiciable,
    must be such that it can presently be litigated and decided and not
    hypothetical, conjectural, conditional, or based upon the
    possibility of a factual situation that may never develop.” Rowan
    Companies, Inc. v. Griffin, 
    876 F.2d 26
    , 28 (5th Cir. 1989) (quoting
    Brown & Root, Inc. v. Big Rock Corp., 
    383 F.2d 662
    , 665 (5th Cir.
    1967)).
    
    
    
    
                                        -74-
                                         74
    for Life v. Fed. Election Comm’n, 
    113 F.3d 129
    , 132 (8th Cir.
    
    1997)).    Further,       this       injury    to    the    plaintiffs     is   directly
    
    traceable to the promulgation of Act 825 and will be redressed by
    
    a declaration of the statute’s constitutionality. Unlike Calderon,
    
    a   declaration     in    the    present       case        completely     resolves      the
    
    underlying controversy – the constitutionality of the statute’s
    
    chilling effect.     Absent a declaration on the constitutionality of
    
    Louisiana’s strict liability regime, the plaintiffs will be forced
    
    to confront the Hobson’s choice that the Declaratory Judgement Act
    
    was intended to prevent.61
    
          Given the plaintiffs’ demonstration of an appreciable injury,
    
    the inquiry turns to whether the Governor or Attorney General has
    
    a legal interest adverse to that of the plaintiffs.                           I find the
    
    Attorney   General       has     a     sufficient          legal   interest      in     the
    
    constitutionality        of    the    state’s       statute.       This    interest     is
    
    recognized in both federal and Louisiana statutes, which require
    
    notification   of    the      Attorney        General      in   any   case,     civil   or
    
          61
           Moreover, absent pre-enforcement action by this Court, the
    nature of the statutory regime may inhibit any review of its
    constitutionality.    Doctors fearing heightened liability will
    likely forgo performing abortions, thus there will be no strict
    liability suits brought in which the constitutionality of the
    regime could be tested. This lack of review exacerbates the true
    injury - the “chilling” of a woman’s constitutional right to choose
    an abortion.
    
    
    
    
                                             -75-
                                              75
    criminal, where the constitutionality of a state statute is at
    
    issue.   LA. CODE CIV. PROC. ANN. art. 1880; 28 U.S.C. § 2403.        In such
    
    cases, the Attorney General is entitled to present argument on the
    
    question of constitutionality.       Id.    Finding the Attorney General
    
    has a    sufficient   legal   interest     is    also   consistent   with    the
    
    underpinnings of the standing requirement.              In this regard, the
    
    Supreme Court has inquired whether the parties “[h]ave . . . such
    
    a personal stake in the outcome of the controversy as to assure
    
    that concrete adverseness which sharpens the presentation of issues
    
    upon which    the   court   so   largely   depends      for   illumination    of
    
    difficult constitutional questions?”            Baker v. Carr, 
    369 U.S. 186
    ,
    
    204, 
    82 S. Ct. 691
    , 703, 
    7 L. Ed. 2d 663
     (1962).           I have no doubt that
    
    the Attorney General’s interest in the constitutionality of the
    
    state’s laws guaranteed a strong advocate and served to identify
    
    and develop for this Court, and the district court, the relevant
    
    arguments.
    
         The concreteness of the engagement and the sufficiency of the
    
    remedy in this case are confirmed by Supreme Court jurisprudence
    
    that “has visibly relaxed . . . traditional standing principles in
    
    deciding abortion cases.”        See Margaret S. v. Edwards, 
    794 F.2d 994
    , 997 (5th Cir. 1986) (Higginbotham, J.).            In Doe v. Bolton, the
    
    
    
    
                                        -76-
                                         76
    Supreme   Court       found   that    physicians       presented    a    justiciable
    
    controversy because the statute at issue was designed to operate
    
    directly against them, despite the fact that none of them had been
    
    prosecuted or even threatened with prosecution. 
    410 U.S. 179
    , 188,
    
    
    93 S. Ct. 739
    , 745 (1973).           Likewise, the physicians and clinics in
    
    this case are the direct targets of Louisiana’s statute.                       These
    
    plaintiffs’ injury is as concrete as that alleged by the plaintiffs
    
    in Doe.    With respect to redressability, I agree that it makes
    
    little sense to enjoin the Attorney General or Governor from doing
    
    that which they have no power to do within a self-executing
    
    liability statute - enforce the statute.                  Yet, as noted above,
    
    enforcement of the statute is not the sole cause of injury to the
    
    plaintiffs.         The mere existence of the statute causes concrete
    
    injury.    The requested declaration sufficiently redresses that
    
    injury    by       granting   the    plaintiffs    a    substantial       basis   for
    
    confidence in the constitutionality of their conduct. See Roe, 410
    
    U.S. at 167, 93 S.Ct. at 783 (refusing to address the propriety of
    
    injunctive relief on the basis that declaratory relief sufficiently
    
    redressed the plaintiffs’ injury).                Because the plaintiffs have
    
    demonstrated an appreciable injury that this Court can redress
    
    through        a      conclusive       declaration        of       the     statute’s
    
    constitutionality, they have presented an actual controversy and
    
    
    
    
                                            -77-
                                             77
    Article III obliges us to act.
    
    
    
                                     II.
    
         Having determined that the plaintiffs present a justiciable
    
    controversy, I turn to Judge Jolly’s conclusion that the Eleventh
    
    Amendment   renders   this   Court     “powerless   to   act”   on   the
    
    constitutionality of a private enforcement scheme.62       Judge Jolly
    
    reaches this conclusion by misconstruing Ex parte Young as a narrow
    
    exception to the Eleventh Amendment’s general directive that states
    
    are immune from suit in federal court.     In this regard, his opinion
    
    neglects our constitutional responsibility, expressed in Young, to
    
    redress ongoing violations of federal law and thus insure the
    
    supremacy of the Constitution.63     Of course, “the need to promote
    
    
          62
              As Judge Jolly’s Eleventh Amendment conclusion has not
    received the votes of a majority of the sitting en banc court, it
    is not controlling authority for future Eleventh Amendment
    questions in this Circuit. See Marks v. United States, 
    430 U.S. 188
    , 193, 97 S.Ct 990, 
    51 L. Ed. 2d 260
     (1977) (“When a fragmented
    Court decides a case . . . the holding of the Court may be viewed
    as that position taken by those Members who concurred in the
    judgments on the narrowest grounds.”), cited in Doe v. Beaumont
    Ind. School Dist., 
    2001 WL 69499
    , *30, n. 3 (5th Cir. 2001); see
    also U.S. v. Ferguson, 
    211 F.3d 878
    , 885 (5th Cir. 2000) (noting
    that the opinion of an equally-divided en banc court does not
    disturb the prior precedent of this Circuit).
         63
           Ex parte Young, 
    209 U.S. 123
    , 160 (1908) (“If the question
    of unconstitutionality, with reference, at least, to the Federal
    
    
    
    
                                     -78-
                                      78
    the   supremacy      of   federal   law     must       be    accommodated      to   the
    
    constitutional immunity of the States.”                     Pennhurst, 465 U.S. at
    
    105-06.     Accordingly, “[a]pplication of the Young exception must
    
    reflect a proper understanding of its role in our federal system
    
    and respect for state courts.” Idaho v. Coeur d’ Alene Tribe of
    
    Idaho, 
    117 S. Ct. 2028
    , 2034 (1997) (majority opinion). The Supreme
    
    Court’s limits on Young thus consider the basic requirement that
    
    federal courts uphold the supremacy of the Constitution in light of
    
    the practical effect of requested relief on state sovereignty.
    
    After   considering       these   limits,     I   am    convinced       that   when   a
    
    plaintiff has standing to challenge the existence of a state’s
    
    self-executing, private liability scheme that currently infringes
    
    constitutional rights, federal courts have jurisdiction to redress
    
    constitutional violations.
    
          The   plaintiffs’      lawsuit      requires          that   we   respect     the
    
    fundamental role of Ex parte Young in our federal structure.                          In
    
    reconciling    the    competing     constitutional           commandments      in   the
    
    
    
    
    Constitution, be first raised in a Federal court, that court . . .
    has the right to decide it . . . .”). See also United States v.
    Osborne, 
    22 U.S. 738
    , 846-51 (1828).
    
    
    
    
                                           -79-
                                            79
    Eleventh and Fourteenth Amendments,64 the Young court concluded that
    
    federal   courts,   in   order   to    preserve   an   individual’s   rights
    
    guaranteed in the Constitution, must have jurisdiction to prevent
    
    the enforcement of unconstitutional state legislation.          Young, 209
    
    U.S. at 159-60.     The Court reasoned that the Eleventh Amendment
    
    could not confer immunity on a state officer to the extent that the
    
    state officer acted in an unconstitutional manner.65           Since 1908,
    
    
         64
           Where the Eleventh Amendment prohibits the commencement of
    a suit against a state in federal court, the Fourteenth provides
    that no state shall deprive any person of life, liberty, or
    property without due process of law. See Young, 209 U.S. at 149.
    Though Young avoided any pronouncement that the Fourteenth
    Amendment altered the scope of the Eleventh, the Supreme Court has
    since recognized that the Eleventh Amendment has less force when
    rights protected by the Fourteenth Amendment are at stake. See
    Seminole Tribe of Fla. v. Florida, 
    517 U.S. 44
    , 58 (1996) (“[T]he
    Fourteenth Amendment, by expanding federal power at the expense of
    state autonomy, . . . fundamentally altered the balance of state
    and federal power struck by the Constitution.”); Fitzpatrick v.
    Bitzer, 
    427 U.S. 445
    , 456 (1976) (“[W]e think that the Eleventh
    Amendment, and the principle of state sovereignty which it
    embodies, are necessarily limited by the enforcement provisions of
    section 5 of the 14th Amendment.”).      That this case involves
    constitutional rights protected by the 14th Amendment, as opposed
    to non-constitutional federal rights, is thus significant.
         65
            Young, 209 U.S. at 159 (“The act to be enforced is alleged
    to be unconstitutional; and if it be so, the use of the name of the
    state to enforce an unconstitutional act to the injury of
    complainants is a proceeding without the authority of, and one
    which does not affect, the state in its sovereign or governmental
    capacity. It is simply an illegal act upon the part of a state
    official in attempting, by the use of the name of the state, to
    enforce    a  legislative   enactment   which   is   void   because
    
    
    
    
                                          -80-
                                           80
    the Court has reiterated time and again that the values embodied in
    
    Ex   parte   Young   are   fundamental   to   the   concept   of   federalism
    
    embedded in our Constitution.66          In deciding whether the Young
    
    doctrine extends to cases such as that presented by the plaintiffs,
    
    our duty is to “ensure that the doctrine of sovereign immunity
    
    remains meaningful, while also giving recognition to the need to
    
    prevent violations of federal law.”           Coeur d’ Alene, 117 S.Ct. at
    
    2034 (majority opinion).
    
    
    
    
    unconstitutional . . . The state has no power to impart to [its
    officials] any immunity from responsibility to the supreme
    authority of the United States.”)
          66
            See Coeur d’ Alene, 117 S.Ct. at 2034 (majority opinion)
    (“We do not . . . question the continuing validity of the Ex parte
    Young doctrine.”); Seminole Tribe, 
    116 S. Ct. 1114
    , 1131, n.14
    (1996) (recognizing Ex parte Young as one of three significant
    exceptions to the Eleventh Amendment bar on suits in federal
    court); Green, 106 S.Ct. at 426 (“Remedies designed to end a
    continuing violation of federal law are necessary to vindicate the
    federal interest in assuring the supremacy of that law.”);
    Pennhurst State School & Hospital v. Halderman, 
    465 U.S. 89
    , 105-06
    (1984) (“[T]he Young doctrine has been accepted as necessary to
    permit the federal courts to vindicate federal rights and hold
    state officials responsible to ‘the supreme authority of the United
    States.’”) (citations omitted); Quern v. Jordan, 
    99 S. Ct. 1139
    ,
    1143 (1979); Scheur v. Rhodes, 
    94 S. Ct. 1683
    , 1687 (1974); Georgia
    R. & Banking Co. v. Redwine, 
    72 S. Ct. 321
    , 324 (1952). See also
    Judge Higginbotham’s concurring opinion (Young “is a powerful
    implementation of federalism necessary to the Supremacy Clause, a
    stellar companion to Marbury and Martin v. Hunter’s Lessee.”).
    
    
    
    
                                       -81-
                                        81
         The plaintiffs’ suit implicates the precise concerns regarding
    
    the supremacy of constitutional rights that precipitated the Young
    
    line of cases.   To be sure, the case presented by the plaintiffs
    
    does not fall into the traditional Young paradigm - no Louisiana
    
    state officer will enforce Act 825’s civil penalty against doctors
    
    that perform abortions, likewise no doctor will be prosecuted by
    
    the state for performing an abortion.      Nevertheless, the Act's
    
    unique authorization of private strict liability lawsuits against
    
    providers of abortions burdens the right to an abortion to the same
    
    extent as legislation granting an Attorney General the power to
    
    prosecute or fine individuals for performing abortions.   That the
    
    private sector, not the state, enforces penalties for performing
    
    abortions does not alter the fundamental effect of Louisiana’s
    
    scheme - doctors will refrain from performing abortions because of
    
    the financial consequences involved and women in Louisiana will
    
    face a significant burden in exercising their constitutional right
    
    to receive an abortion.   See Jackson, 862 F.2d at 507 (recognizing
    
    that both civil and criminal penalties could chill constitutional
    
    conduct).   Likewise, the structural anomaly of Act 825 should not
    
    render Louisiana any more immune from challenge in federal court.
    
    This case presents a context in which Ex parte Young must operate
    
    
    
    
                                    -82-
                                     82
    to afford meaningful protection for rights guaranteed by the
    
    Constitution.
    
         Though Judge Jolly neglects to consider fully the aspects of
    
    Ex parte Young supporting federal jurisdiction to hear cases
    
    involving private schemes, very real concerns about protecting the
    
    sovereign   immunity   of   the   states   animate    his   opinion.      That
    
    opinion, however, ignores both practical reality and recent Supreme
    
    Court jurisprudence regarding the role of officials sued in Ex
    
    parte   Young   actions.     Judge   Jolly    seems    to   understand     the
    
    connection requirement that serves as the foundation for his
    
    Eleventh Amendment analysis as a mechanism for ensuring that the
    
    state officer, rather than the state itself, is the object of the
    
    litigation.     In this sense, the opinion’s connection requirement
    
    assumes that the fiction of Ex parte Young has some real meaning in
    
    the Eleventh Amendment context - that it is the individual officer,
    
    not the state itself that is the real party in interest.               This is
    
    simply not the case.    For many years, the Supreme Court has shaped
    
    the scope of the Ex parte Young exception as if the state officer
    
    were the state.      See, e.g., Coeur d’ Alene, 117 S.Ct. at 2034
    
    (majority opinion) (“Th[e] commonsense observation of the State’s
    
    real interest when its officers are named as individuals has not
    
    
    
    
                                       -83-
                                        83
    escaped notice or comment from this Court, either before or after
    
    Young.”) (citations omitted). Were the state not the real party in
    
    interest in suits brought under Ex parte Young, the Supreme Court
    
    could never find the necessary state action to support a violation
    
    of the 14th Amendment.     See Home Telephone. & Telegraph. Co. v.
    
    City of Los Angeles, 
    227 U.S. 278
    , 283-84 (1913) (recognizing a
    
    distinction between official action under the Fourteenth Amendment
    
    and official action for purposes of the Eleventh Amendment).
    
    Similarly, the provision of the Federal Rules of Civil Procedure
    
    providing for the automatic substitution of the name of one state
    
    official for the name of his predecessor would make no sense in
    
    litigation under Ex parte Young.       See FED R. CIV. P. 25(d) (1999).
    
    Indeed, Judge Jolly’s own characterization of Ex parte Young as an
    
    exception to the Eleventh Amendment evinces an understanding that
    
    Young allows the state to be sued, albeit through its officers,
    
    when constitutional questions are raised and prospective relief is
    
    sought.
    
         In developing the connection requirement as a component of the
    
    Eleventh Amendment’s protection of state sovereignty, Judge Jolly’s
    
    opinion attempts to spin the Young fiction into reality.       Yet, the
    
    opinion’s   connection   requirement   turns   reality   on   its   head,
    
    
    
    
                                    -84-
                                     84
    granting a state broader immunity from suit in federal court when
    
    its officers are not directly involved in the enforcement of an
    
    unconstitutional act than when the officers are directly involved.
    
    That position is simply untenable.         Although language in Young may
    
    support     the   connection   requirement    defined   in   Judge   Jolly’s
    
    opinion, the Supreme Court’s modern standing doctrine has subsumed
    
    the   connection      inquiry.       The     standing    requirements     of
    
    injury–in–fact,      causation,    and     redressability    parallel    the
    
    majority’s requirement that state officers have “some connection
    
    with the enforcement of the act” alleged to be unconstitutional or
    
    be “specially charged with the duty to enforce the statute” and be
    
    threatening to exercise that duty.67 Perhaps for this reason, Judge
    
    Jolly’s opinion does not cite a single modern Supreme Court case
    
    that relies on its connection requirement to support dismissal of
    
    an Ex parte Young action on Eleventh Amendment grounds.                   By
    
    analyzing the connection requirement in terms of standing, the
    
    Supreme Court has retained the limit, but avoided the conundrum of
    
    increasing the scope of Eleventh Amendment protection as the role
    
    
    
           67
              The majority’s explanation of “the connection” simply
    reiterates the causation and redressability components of standing,
    while the majority’s requirement that the officer be threatening to
    exercise the duty is encompassed by the current injury-in-fact
    analysis under standing.
    
    
    
    
                                        -85-
                                         85
    of the state in an allegedly unconstitutional statute decreases.
    
    This Court must analyze the proper scope of Young in light of
    
    reality rather than fiction.        Reality requires examination of the
    
    limits that the Supreme Court has consistently placed on Young and
    
    determining whether those limits apply in the present context.68
    
         Unlike     Judge    Jolly’s   connection    requirement,   the   Supreme
    
    Court’s limits on Ex parte Young have focused on the extent to
    
    which federal litigation will interfere with a state’s sovereign
    
    rights. The Supreme Court’s principal limit has been on the nature
    
    of the relief sought: Ex parte Young cannot be used to expose
    
    states to retroactive monetary damages.             Edelman v. Jordan, 
    94 S. Ct. 1347
    , 1362 (1974); see also Hutto v. Finney, 
    437 U.S. 678
    
    (1978) (allowing Ex parte Young plaintiffs to receive monetary
    
    relief   that   is   clearly   ancillary    to   non-monetary   prospective
    
    relief).      This   limit   reflects   both     historical   and   practical
    
    considerations.         The “shock of surprise” following the Supreme
    
    
        68
           While it might be sensible to do away with the Young fiction
    and recognize that the Fourteenth Amendment and our federal
    structure require that states be sued in limited circumstances,
    that would be beyond the power of this intermediate court. That is
    not, however, what this opinion purports to do. In this sense,
    Judge Jolly’s caricature of my opinion as a gross departure from
    existing case law and the Constitution fails to confront the
    Supreme Court’s modern jurisprudence on the interplay between Ex
    parte Young and the Eleventh Amendment in any meaningful way.
    
    
    
    
                                         -86-
                                          86
    Court’s decision in Chisholm that led to the passage of the
    
    Eleventh Amendment was triggered by the fear that individuals would
    
    be able to use the federal courts to collect large debts from the
    
    states.   See Principality of Monaco v. Mississippi, 
    54 S. Ct. 745
    ,
    
    749 (1934).      Thus, the prohibition on seeking monetary relief
    
    against a state in federal court addresses the historical concerns
    
    that existed at the time the Constitution, and subsequently the
    
    Eleventh Amendment, were ratified.            From a practical standpoint,
    
    this limit    safeguards     one   of   the   most   important     elements   of
    
    sovereignty - the ability to independently manage and distribute
    
    public revenues.       At the same time, the Court’s allowance of
    
    prospective injunctive or declaratory relief provides a mechanism
    
    for safeguarding the ultimate supremacy of our federal constitution
    
    and the federal system which it created.              See Coeur d’ Alene at
    
    2040; id. at 2046 (O’Connor, J., concurring) (“When a plaintiff
    
    seeks prospective relief to end an ongoing violation of federal
    
    rights, ordinarily the Eleventh Amendment poses no bar.”); Green,
    
    106 S.Ct. at 426 (“[T]he availability of prospective relief of the
    
    sort   awarded   in   Ex   parte   Young    gives    life   to   the   Supremacy
    
    Clause.”); Milliken v. Bradley, 
    97 S. Ct. 2749
    , 2761-62 (1977).
    
    
    
    
                                         -87-
                                          87
         The Supreme Court has applied its limits on the scope of Young
    
    pragmatically, guided by the substantive effect of the remedy
    
    sought rather than the form alone. In this regard, even injunctive
    
    or declaratory relief that substantially interferes with a state’s
    
    sovereignty     may    be   barred    by   the    Eleventh    Amendment   when
    
    constitutional concerns are not at issue. Thus, in Coeur d’ Alene,
    
    a majority of the Supreme Court held that the plaintiff Indian
    
    tribe could not receive injunctive or declaratory relief that would
    
    in effect function like a quiet title action against the state of
    
    Idaho.    See         Coeur d’ Alene, 
    117 S. Ct. 2044
     (O’Connor, J.,
    
    concurring). Though the majority of the Court clearly rejected the
    
    case-by-case balancing approach proposed by Justice Kennedy, the
    
    Court also recognized that the Young - Eleventh Amendment inquiry
    
    had to transcend form and inquire into substance.               Judge Jolly’s
    
    approach is flawed in that it limits Ex parte Young haphazardly
    
    without any consideration of the constitutional rights at stake or
    
    how the relief sought interferes with states’ rights.
    
         In   the     present     case,    the       plaintiffs   challenge    the
    
    constitutionality of state legislation and thus invoke Young’s
    
    concern regarding the power of the federal courts to vindicate
    
    constitutional rights. Moreover, the form of relief that they seek
    
    
    
    
                                          -88-
                                           88
    - a declaration of unconstitutionality - is the least intrusive
    
    available.69   In Steffel v. Thompson, the Supreme Court recognized
    
    the unique nature of and “different considerations” involved with
    
    granting declaratory relief.       Steffel, 415 U.S. at 469-70.      The
    
    Court has disregarded the distinction between declaratory and
    
    injunctive relief only when “principles of federalism militated
    
    altogether     against   federal     intervention   in   a   class   of
    
    adjudications.”    Id. at 472.     For example, in Samuels v. Mackell,
    
    
    401 U.S. 66
    , 
    91 S. Ct. 764
     (1971), the Court concluded the issuance
    
    of a declaration of a statute’s constitutionality during a pending
    
    state proceeding would offend a principle notion of federalism -
    
    “that state courts have the solemn responsibility, equally with the
    
    federal courts ‘to guard, enforce, and protect every right granted
    
    or secured by the constitution of the United States.’” Steffel, 415
    
    U.S. at 460-461 (quoting Robb v. Connelley, 
    111 U.S. 624
    , , 637, 
    4 S. Ct. 544
     (1884)). However, “[w]hen no state proceeding is pending
    
    and thus considerations of equity, comity, and federalism have
    
    
            69
              If the federal court declares the contested statute
    unconstitutional, the state legislature may amend or repeal the
    statute or the state courts may be persuaded by the decision of the
    federal court.   In any event, “[a]ll these possible avenues of
    relief would be reached voluntarily by the States and would be
    completely consistent with the concepts of federalism . . .” Id.
    at 484 (Rehnquist, J., concurring).
    
    
    
    
                                       -89-
                                        89
    little vitality, the propriety of granting federal declaratory
    
    relief may properly be considered independently of a request for
    
    injunctive relief.”     Id. at 462.         Far from precluding our Court
    
    from    considering   the   merits    of     a   plaintiff’s   request   for
    
    declaratory relief, principles of federalism compel our Court to
    
    address alleged constitutional violations when, as in this case, a
    
    plaintiff successfully establishes the existence of a continuing
    
    controversy.70
    
                                         III.
    
           The avenue to the federal courts opened by Ex parte Young
    
    should be available when the plaintiff (1) can establish an actual
    
    controversy involving alleged constitutional violations; and (2)
    
    seeks declaratory relief that does not in substance interfere with
    
    
            70
              Judge Higginbotham contends that I propose a “generic
    exception to the Eleventh Amendment for declaratory relief.” This
    is simply not the case. As previously noted, the declaratory form
    of relief sought by the plaintiffs is relevant to the Eleventh
    Amendment inquiry only in so far as the Supreme Court has
    consistently considered the intrusiveness of the relief sought when
    defining the scope of Ex parte Young. That a declaration on these
    facts constitutes the least intrusive form of relief available does
    not mean that other forms of relief would necessarily violate the
    Eleventh Amendment. Yet, I need not consider whether the Eleventh
    Amendment would impede our ability to issue forms of relief that
    the plaintiffs do not have standing to seek.        That said, my
    approach to determining the Eleventh Amendment limits on Ex parte
    Young would apply with equal force in cases involving injunctions
    or other forms of relief.
    
    
    
    
                                         -90-
                                          90
    sovereign rights in ways specifically prohibited by the Supreme
    
    Court, such as effectively awarding monetary damages against a
    
    state or preempting ongoing state proceedings.                This approach
    
    neither   casts   aside   the    Young    fiction,    nor    crafts   a    new
    
    “declaratory   judgment      exception”   to   the   Eleventh      Amendment.
    
    Rather, my approach reflects a principled and necessary application
    
    of the Ex parte Young doctrine.     Though I agree with the majority’s
    
    conclusion that the injunction against the named defendants was
    
    improper, I find that the plaintiffs have presented an actual
    
    controversy that is ripe for declaratory relief.             Moreover, in my
    
    view, the Eleventh Amendment does not impede the plaintiffs’
    
    ability to pursue that relief in a federal forum.            Accordingly, I
    
    concur with the majority’s opinion that the plaintiffs’ injunction
    
    should be dismissed, but dissent to the extent that the majority
    
    opinion   undermines   the    district    court’s    power    to   issue   the
    
    underlying declaration on Act 825's constitutionality.
    
    
    
    
                                       -91-
                                        91
    ROBERT M. PARKER, Circuit Judge, dissenting:
    
         I respectfully dissent.   Judge Jolly’s attempt to excessively
    
    narrow Ex parte Young’s scope garners only a plurality of this
    
    court, and therefore, to use his language, it “is not binding
    
    authority to any.”    I write to note his flawed treatment of Young
    
    and to present the traditional jurisprudential view of its scope,
    
    and to respond to the opinion to the extent it represents the
    
    court’s decision to dismiss this action against Appellants for lack
    
    of a “Case or Controversy.”
    
                                     I.
    
         I start by observing that the court’s decision does not
    
    entirely dispose of this action because the State remains as a
    
    named defendant.     Appellees initially sued the Governor and the
    
    Treasurer in the district court.   The Governor and Treasurer moved
    
    to dismiss per FED. R. CIV. P. 12(b)(6), alleging that the Treasurer
    
    should be dismissed for failure to state a claim.   The parties then
    
    stipulated to substitute the State for the Treasurer as a named
    
    defendant, and Appellants withdrew the motion to dismiss as moot.
    
    Appellants, including the State, then filed an answer against
    
    Appellees’ claims.    The State proceeded to litigate this action on
    
    the merits, never questioning the existence of jurisdiction until
    
    the panel dissent, sua sponte, raised the Eleventh Amendment and
    
    
    
    
                                     92
    standing arguments.   Therefore, the district court’s injunction is
    
    unaffected with respect to the State.
    
                                    II.
    
                                     A.
    
         Act 825 is yet another attempt by the State to violate federal
    
    constitutional rights as construed by federal courts.     As Judge
    
    Higginbotham observed:
    
         This appeal is the latest episode in a long effort by
         Louisiana to exercise its police power over a practice to
         which the courts have given considerable protection.
         Indeed, the state seeks to “regulate abortion to the
         extent permitted by the decisions of the United States
         Supreme Court.” La. Rev. Stat. Ann. § 40:1299.35.0 (West
         Supp 1986). Although one would not think that there is
         anything inherently suspect about a state’s undertaking
         to regulate in the abortion area, Louisiana has
         repeatedly encountered constitutional objections to
         portions of its regulatory schemes.
    
    Margaret S. v. Edwards, 
    794 F.2d 994
    , 996 (5th Cir. 1986) (footnote
    
    omitted); see 22C LA. REV. STAT. ANN. 40:1299.35.0 (West 1992)
    
    (expressing “legislative intent” to defy Supreme Court authority on
    
    abortion).   After a long history71 of restricting a woman’s right
    
    
        71
           Five years after Roe v. Wade, the State enacted an abortion
    regulation statute, but a district court struck down several
    provisions as unconstitutional. Margaret S. v. Edwards, 488 F.
    Supp. 181 (E.D. La. 1980).     The State promptly passed another
    statute that required, inter alia, costly and unnecessary
    ultrasound testing prior to abortion, hospitalization for post-
    first-trimester abortions, untenable presumptions of fetus
    viability, second opinions regarding necessity of an abortion to
    preserve a mother’s health, and parental consent without adequate
    judicial bypass provisions.    A district court declared most of
    
    
    
    
                                    -93-
                                     93
    to choose abortion, the State, by enacting Act 825,                      has now
    
    changed tactics and is attempting to ban abortion altogether by
    
    creating a private cause of action imposing unlimited liability on
    
    anyone performing an abortion.         As the majority admits, Act 825
    
    exposes anyone to “unlimited tort liability for any damage caused
    
    by the abortion procedure to both mother and ‘unborn child.’” Supra
    
    at __. Liability is imposed for any “injury” to an “unborn child,”
    
    which means that liability can be imposed for the mere act of
    
    performing an abortion itself. Moreover, the person performing the
    
    abortion cannot avoid liability by obtaining informed consent from
    
    the patient.     Informed consent “does not negate [the] cause of
    
    action,   but    rather    reduces   the    recovery       of     damages.”     §
    
    9:2800.12C(1).     This is in stark contrast to the existing civil
    
    liability provision of the State’s informed-consent law, which
    
    provides a complete defense to malpractice claims if the physician
    
    complies with the law’s extensive requirements.                 22C LA. REV. STAT.
    
    ANN. § 40:1299.35.6H (West 2000).           Further, Act 825 provides no
    
    defense to malpractice suits for abortions performed in case of
    
    medical   necessity   or    to   protect    the   health    of     the   patient.
    
    Finally, Act 825's mischief is not limited to abortion providers.
    
    
    
    
    these provisions unconstitutional, Margaret S. v. Treen, 597 F.
    Supp. 636 (E.D. La. 1984), and we affirmed that declaration. See
    Margaret S., 794 F.2d at 999.
    
    
    
    
                                         -94-
                                          94
    It covers a broad range of women’s health care providers, including
    
    physicians treating serious medical conditions such as infection or
    
    trauma, the treatment for which may include medically necessary
    
    abortion. It also includes manufacturers of contraceptives and the
    
    physicians and pharmacists who prescribe them.               Thus, Act 825
    
    imposes strict liability to anyone performing an abortion.
    
          Such provisions confirm that Act 825 constitutes an undue
    
    burden on a woman’s right to choose an abortion because it has the
    
    purpose and effect of placing a substantial obstacle hindering the
    
    exercise of that right. See Planned Parenthood of Southeastern Pa.
    
    v. Casey, 
    505 U.S. 833
    , 877 (1992) (joint opinion).                By exposing
    
    any person performing an abortion to strict liability regardless of
    
    the person’s compliance with existing law, Act 825 is not designed
    
    to   help   a   woman’s   choice,   but    to   eliminate   that    choice    by
    
    effectively shutting down abortion providers. See id.; Hope Clinic
    
    v. Ryan, 
    195 F.3d 857
    , 876, 881 (Posner, C.J., dissenting).                  The
    
    fact that compliance with informed consent regulations does not
    
    negate liability proves that Act 825 is not designed to help a
    
    woman’s choice.     Moreover, because it is undisputed that Act 825
    
    will force Appellees, who provide substantially all of the abortion
    
    services within Louisiana, to cease operations, Act 825 places a
    
    substantial obstacle on the right to choose an abortion.                Casey,
    
    
    
    
                                        -95-
                                         95
    505 U.S. at 877; Planned Parenthood v. Miller, 
    63 F.3d 1452
    , 1465
    
    (8th Cir. 1995).
    
         In addition, it is clear that the State has enacted Act 825 in
    
    an attempt to circumvent federal court decisions upholding the
    
    right to choose an abortion. The State’s abortion code is codified
    
    in Title 40 of its Revised Statutes governing “Public Health and
    
    Safety,” and contains numerous regulations the violation of which
    
    gives rise to criminal and civil penalties.          The State has buried
    
    Act 825 in its “Civil Code Ancillaries” section of its Revised
    
    Statutes, providing only civil remedies to private parties.              By
    
    privatizing the enforcement of unlimited monetary damages, which is
    
    undoubtedly a state-sanctioned penalty, the State is attempting to
    
    avoid   defending      a    patently     unconstitutional      law   while
    
    simultaneously effecting a coercive impact so drastic that abortion
    
    providers have no choice but to cease operations.         This purpose is
    
    illegitimate   not   only     because    Act   825    unduly   burdens    a
    
    constitutionally protected right, but also because it seeks to
    
    evade judicial review.      However, Act 825 is not entirely novel in
    
    form; federal courts have consistently declared similar statutes to
    
    be unconstitutional.
    
                                       B.
    
         Since Roe v. Wade, 
    410 U.S. 113
     (1973), and Doe v. Bolton, 
    410 U.S. 179
     (1973), individual women, abortion providers, and clinics
    
    
    
    
                                      -96-
                                       96
    have invoked the federal judicial power to challenge abortion
    
    regulations by bringing actions pursuant to Ex parte Young, 
    209 U.S. 123
     (1908), for declaratory and injunctive relief against
    
    state officials. Notwithstanding the fact that the Roe plaintiff’s
    
    pregnancy had terminated and that no prosecution was threatened
    
    against her, the Supreme Court permitted her to challenge Texas’s
    
    criminal abortion law by suing a district attorney.              Roe, 410 U.S.
    
    at 124-25.    Similarly, the Court extended standing to abortion
    
    providers in Doe notwithstanding the fact that none were prosecuted
    
    or threatened with prosecution under Georgia’s abortion law.                Doe,
    
    410 U.S. at 188.       While earlier abortion regulations imposed
    
    criminal liability for their violation, the inclusion of civil
    
    liability did not prevent aggrieved plaintiffs from challenging
    
    such regulations even though named defendants had no power to
    
    enforce such actions.     E.g., Casey, 505 U.S. at 888; Colautti v.
    
    Franklin, 
    439 U.S. 379
    , 383-84 (1979); Planned Parenthood of Cent.
    
    Mo. v. Danforth, 428 U.S.52,       83-84 (1976).
    
          In Casey, the Supreme Court retained Roe’s essential holding
    
    and   established   the   undue     burden     test       for   reviewing   the
    
    constitutionality of state interference with a woman’s right to
    
    choose   an   abortion.      505     U.S.     at    875     (joint     opinion).
    
    Significantly,   the   plaintiffs    in     Casey   consisted     of    abortion
    
    providers and clinics suing, on behalf of their patients, the
    
    
    
    
                                        -97-
                                         97
    Pennsylvania governor and attorney general, just as in this case.
    
    The plaintiffs brought suit before the effective dates of the
    
    challenged laws, just as in this case.         The Court declared, inter
    
    alia,   Pennsylvania’s    spousal    consent    statute,    which    made   a
    
    physician performing an abortion on a married woman without her
    
    spouse’s    consent   liable   to    the   spouse   for    civil    damages,
    
    unconstitutional.     Id. at 887-98.       The Court reasoned that such
    
    provision would impose a substantial obstacle to the woman’s
    
    ability to obtain an abortion and would deter most women from
    
    obtaining an abortion as if the state had completely outlawed
    
    abortions.    Id. at 893-94.        Such reasoning forms the basis of
    
    Appellees’ claims in this case.
    
         In recent years, several circuits, including this court, have
    
    reviewed challenges to state abortion statutes under the Roe and
    
    Casey models and reached the merits of such challenges even when
    
    they included civil liability provisions not enforced by the state
    
    officers.    See, e.g.,   Causeway Med. Suite v. Foster, 
    221 F.3d 811
    
    (5th Cir. 2000) (Jolly, J.), aff’g, Causeway Med. Suite v. Foster,
    
    
    43 F. Supp. 2d 604
     (E.D. La. 1999) (enjoining Louisiana governor
    
    and attorney general from enforcing the State’s partial-birth
    
    abortion statute, 22C LA. REV. STAT. ANN. § 40:1299.35.3, recodified
    
    in § 40:1299.35.16 (West Supp. 2000), which, inter alia, provided
    
    a civil cause of action for damages against an abortion provider
    
    
    
    
                                        -98-
                                         98
    who violates the statute); Women’s Med. Prof’l Corp. v. Voinovich,
    
    
    130 F.3d 187
     (6th Cir. 1997) (declaring unconstitutional Ohio
    
    abortion   statute’s     provision    of    strict    civil     liability     for
    
    compensatory, punitive, and exemplary damages as well as costs and
    
    attorney’s   fees   against   the     physician      for    certain    late-term
    
    abortions); Miller, 63 F.3d at 1456 n.5. & 1467 (striking down
    
    provision of South Dakota abortion statute creating a civil cause
    
    of action for punitive and treble actual damages to a minor and
    
    parent, and declaring that “[t]he potential civil liability for
    
    even good-faith, reasonable mistakes is more than enough to chill
    
    the   willingness   of   physicians    to   perform        abortions   in   South
    
    Dakota.”).   But see Summit Med. Assocs., P.C. v. Pryor, 
    180 F.3d 1326
     (11th Cir. 1999) (holding that the Alabama governor, attorney
    
    general, and district attorneys were not proper defendants for the
    
    plaintiffs’ challenge to the civil liability provision of Alabama’s
    
    abortion statute); Hope Clinic v. Ryan, 
    195 F.3d 857
     (7th Cir.
    
    1999) (en banc) (relying on Summit Medical and dismissing the
    
    plaintiffs’ challenge to Illinois and Wisconsin partial-birth-
    
    abortion statutes providing, inter alia, a civil cause of action
    
    because defendants--attorneys general and prosecutors--did not
    
    enforce such provisions), vacated on other grounds, 
    147 S. Ct. 1001
    
    (2000).
    
    
    
    
                                         -99-
                                          99
         The important lesson from the above decisions is that they
    
    involved   actions   brought   pursuant   to   Young   to   enjoin   state
    
    governors,   attorneys   general,   and   prosecutors   from   enforcing
    
    allegedly unconstitutional statutes before they became effective.
    
    While the challenged statutes contained both criminal and civil
    
    liability provisions, courts nonetheless reached the merits of the
    
    plaintiffs’ challenge to determine whether the statutes, including
    
    the civil liability provisions, imposed an undue burden on a
    
    woman’s right to choose an abortion.      Only the Seventh and Eleventh
    
    Circuits dismissed the plaintiffs’ challenge to the civil liability
    
    provisions for lack of jurisdiction.
    
         Under the relevant authority discussed above, we are not
    
    powerless to act in reviewing the judgment of the district court.
    
    Act 825 is similar to the statutes that were challenged pursuant to
    
    Young in the above decisions, but is also different because it only
    
    imposes civil liability.       However, that difference should not
    
    conceal the fact that the State, by enacting Act 825, is attempting
    
    to regulate abortion providers by exposing them to unlimited strict
    
    liability for the mere act of performing an abortion.                Such
    
    exposure is designed to eradicate all abortions by effectively
    
    shutting down Appellants’ operations, something the State cannot do
    
    directly or indirectly.   When this staggering effect is considered
    
    with the State’s patently illegitimate purpose of unduly burdening
    
    
    
    
                                     -100-
                                      100
    the right to abortion while evading judicial review by enacting Act
    
    825, the court’s decision to dismiss this action excessively
    
    narrows   the   scope   of    Young’s   principles   and   undermines   the
    
    supremacy of federal rights.
    
    
    
    
                                        III.
    
                                         A.
    
         The plurality’s most egregious error lies in its flawed and
    
    unnecessary revisionist interpretation of Smyth v. Ames, 
    169 U.S. 466
     (1898), Fitts v. McGhee, 
    172 U.S. 516
     (1899), and Young.72          The
    
    plurality’s interpretation is simply unsupported by Young’s express
    
    language and holding.        In Young, the Supreme Court stated that the
    
    
        72
            The plurality states that the parties "vigorously pressed"
    the jurisdictional arguments before this court by referring to
    Patsy v. Board of Regents, 
    457 U.S. 496
    , 515 n.19 (1982).        In
    Patsy, the Supreme Court declined to rule on the Eleventh Amendment
    issue because it was only mentioned in passing by the state before
    four courts, which had not addressed it. The Supreme Court chose
    to rule upon the merits of the exhaustion of remedies issue, which
    was initially presented in a Rule 12(b)(6) motion to dismiss,
    because it was raised and decided by the district court and this
    court (both panel and en banc) and "vigorously pressed" before the
    Court. It light of Patsy's procedural history, and in light of the
    fact that in this action we raised, and the parties briefed, the
    Eleventh Amendment issue on the court's own initiative after the
    panel decision, it is improper to suggest that the parties pursued
    this issue with the same vigor as the parties in Patsy.         See
    Coolbaugh v. Louisiana, 
    136 F.3d 430
    , 442 n.5 (5th Cir. 1998)
    (Smith, J., dissenting) (“Raising [the Eleventh Amendment issue]
    sua sponte is problematic . . . in light of Patsy.”).
    
    
    
    
                                        -101-
                                         101
    suit against the Nebraska attorney general in Smyth was not against
    
    the state because “[t]here was no special provision in the statute
    
    as to rates, making it the duty of the attorney general to enforce
    
    it, but, under his general powers, he had authority to ask for a
    
    mandamus to enforce such or any other law.”   Young, 209 U.S. at 154
    
    (emphasis added).   After citing decisions supporting this holding,
    
    the Court stated:
    
         The various authorities we have referred to furnish ample
         justification for the assertion that individuals who, as
         officers of the state, are clothed with some duty in
         regard to the enforcement of the laws of the state, and
         who threaten and are about to commence proceedings,
         either of a civil or criminal nature, to enforce against
         parties affected an unconstitutional act, violating the
         Federal Constitution, may be enjoined by a Federal court
         of equity from such action.
    
    Id. at 155-56 (emphasis added).   Then, the Court, as the plurality
    
    correctly notes, distinguished Fitts from Smyth by noting that in
    
    Fitts
    
         As no state officer who was made a party bore any close
         official connection with the act fixing the tolls, the
         making of such officer a party defendant was a simple
         effort to test the constitutionality of such act in that
         way, and there is no principle upon which it could be
         done. A state superintendent of schools might as well
         have been made a party.
    
    Id. at 156 (emphasis added). The Court restated Fitts’ holding as:
    
         In making an officer of the state a party defendant in a
         suit to enjoin the enforcement of an act alleged to be
         unconstitutional, it is plain that such officer must have
         some connection with the enforcement of the act, or else
    
    
    
    
                                   -102-
                                    102
         it is merely making him a party as a representative of
         the state, and thereby attempting to make the state a
         party.
    
    Id. at 157.
    
         Most importantly, the plurality errs by not recognizing that
    
    Young limited Fitts’ “close official connection” requirement by
    
    stating that
    
         It has not, however, been held that it was necessary that
         such duty should be declared in the same act which is to
         be enforced.   In some cases, it is true, the duty of
         enforcement has been so imposed . . . , but that may
         possibly make the duty more clear. The fact that the
         state officer, by virtue of his office, has some
         connection with the enforcement of the act, is the
         important and material fact, and whether it arises out of
         the general law, or is specially created by the act
         itself, is not material so long as it exists.
    
    Id. (emphasis added). In contrasting Smyth and Fitts, the Court in
    
    Young stated that Smyth involved “state officers specially charged
    
    with the execution of a state enactment,” and that such “special
    
    charge” was “sufficiently apparent when such duty exists under the
    
    general authority of some law, even though such authority is not to
    
    be found in the particular act.   It might exist by reason of the
    
    general duties of the officer to enforce it as a law of the state.”
    
    Id. at 158 (emphasis added). The Court concluded that the officers
    
    in Fitts “had no duty at all with regard to the act.”            Id.
    
    (emphasis added).   The significance of all this is that in Young,
    
    the Court departed from Fitts’ close connection or special relation
    
    
    
    
                                   -103-
                                    103
    requirement by inferring “some connection” to the challenged act
    
    from the attorney general’s general duty to enforce Minnesota’s
    
    laws and by virtue of his office.        Id. at 160-62.         In light of
    
    Young’s interpretation of Fitts, it is flatly wrong to assert Young
    
    and Fitts are consistent.    See City of Altus v. Carr, 
    255 F. Supp. 828
     (N.D. Tex.) (three-judge court), aff’d, 
    385 U.S. 35
     (1966)
    
    (mem.); cf. CLYDE E. JACOBS, THE ELEVENTH AMENDMENT   AND   SOVEREIGN IMMUNITY
    
    130-42 (1972) (noting the inconsistency between Fitts and Young).
    
         Moreover, Justice Harlan, who wrote Smyth and Fitts, dissented
    
    in Young by stating that Fitts “is not overruled, but is, I fear,
    
    frittered away or put out of sight by [the Young majority’s]
    
    unwarranted distinctions.”     Id. at 193 (Harlan, J., dissenting).
    
    Justice Harlan disagreed with the Young majority’s statement that
    
    In re Ayers, 
    123 U.S. 443
     (1887), was not controlling.            Young, 209
    
    U.S. at 189-90.   Ayers involved a Virginia statute ordering state
    
    officials to sue to recover taxes from taxpayers who had used
    
    interest coupons on state bonds to pay their taxes.            The Court in
    
    Ayers held that the taxpayers could not bring suit against the
    
    officials to enjoin them from enforcing the statute because such
    
    suit would be against the state. Justice Harlan’s dissent in Young
    
    argued that the barred suits in Ayers were identical to the ones in
    
    Young because they both involved suits against officers with no
    
    
    
    
                                     -104-
                                      104
    special duty to see to the enforcement of the statutes in question,
    
    and therefore such suits were effectively against the state.                   Id.
    
    at 203.    Furthermore, Justice Harlan asserted that Fitts, which
    
    applied the principles of Ayers, was “[m]ore directly on point” in
    
    Young.    Id. at 190.    In addition, he noted that Smyth, which was
    
    “much relied” on by the majority, was distinguishable from Young’s
    
    facts     because in Smyth Nebraska waived immunity from suit by
    
    virtue of a cause of action expressly granted to the railroads by
    
    the statute in question.        Id. at 193-94.          Justice Harlan feared
    
    that Fitts was “frittered away” because the majority’s reliance on
    
    Smyth to support jurisdiction was erroneous in light of Fitts’
    
    reaffirmation and application of Ayers.             Cf. RICHARD H. FALLON   ET AL.,
    
    HART & WECHSLER’S THE FEDERAL COURTS   AND   THE FEDERAL SYSTEM 1065-66 (4th ed.
    
    1996) (stating that Young undermined Ayers).                Significantly, he
    
    stated: “The statutes in question did not impose upon the attorney
    
    general of Minnesota any special duty to see to their enforcement.
    
    In bringing the mandamus suit he acted under the general authority
    
    inhering in him as the chief law officer of his state.”              Id. at 197
    
    (emphasis added).
    
          The plurality erroneously interprets Smyth, Fitts, and Young
    
    as    a    consistent     doctrine–a           “triad”–emphasizing     “strict”
    
    requirements that the officers sued have “some connection with the
    
    
    
    
                                           -105-
                                            105
    enforcement of the act” in question or be “specially charged with
    
    the duty to enforce the statute.”          However, there is no “triad,”
    
    and the Young fiction is not recognized by any court as the “Smyth-
    
    and-Young-as-minimized-by-Fitts”        exception       to     the   Eleventh
    
    Amendment bar.       There is no authority supporting Smyth, Young, and
    
    Fitts as a consistent line of decisions, and that contention               is
    
    belied by Justice Harlan’s inability to distinguish the statute in
    
    Fitts from the statute in Young.       Young, 209 U.S. at 193 (Harlan,
    
    J.) (“I am unable to distinguish [Fitts], in principle, from the
    
    one now before us.”).        Further, the statutes in Young and Smyth
    
    were not in “sharp contrast” with the statute in Fitts because,
    
    according to Justice Harlan, there was no difference between the
    
    statutes in Young and Fitts, whereas the statute in Smyth expressly
    
    granted a cause of action to the railroads against the state.              Id.
    
    at 193-94.     More importantly, Young limits Fitts by finding the
    
    necessary “connection” between the officer and the act by “virtue
    
    of his office” whether it arises out of the general law or is
    
    specially created.
    
         The plurality incredibly asserts that Young “has spawned
    
    numerous     cases    upholding,   explaining,    and        recognizing   its
    
    fundamental principle” to suggest that its interpretation is so
    
    widely accepted as to be beyond doubt.         While I agree that Young
    
    
    
    
                                       -106-
                                        106
    has   spawned    numerous      cases,      not     all      of   them     have   upheld    or
    
    consistently applied its fundamental principle.                           The plurality’s
    
    suggestion      that     Young       has    been          uniformly     applied     is     an
    
    embellishment that defies even Young’s illogic.                              Indeed, the
    
    plurality    only      cites   decisions         to       support   its    assertion      but
    
    conspicuously omits contrary authority as if none exists.                                 See,
    
    e.g., City of Altus, 255 F. Supp. at 835.                     Moreover, the decisions
    
    the   plurality      cites     are    hardly          a    representative        sample    of
    
    consistent applications of Young, and most are inapposite to this
    
    action because they do not address actions pursuant to Young
    
    challenging abortion regulations.
    
          In addition, the plurality’s statement that the “requirement
    
    that there be some actual or threatened enforcement action before
    
    Young applies has been repeatedly applied by the federal courts” is
    
    inaccurate.         Numerous     Supreme      Court         cases     have   relaxed      the
    
    “threatened enforcement” requirement of Young in the abortion
    
    context.    E.g., Casey, 505 U.S. at 845 (reviewing pre-enforcement
    
    challenge to Pennsylvania’s abortion law); Doe, 410 U.S. at 745
    
    (permitting pre-enforcement challenge to Georgia abortion law even
    
    before the defendants threatened prosecution); Roe, 410 U.S. at
    
    712-13 (permitting pre-enforcement challenge to Texas abortion law
    
    despite the fact that the plaintiff was not pregnant).                                Other
    
    
    
    
                                               -107-
                                                107
    decisions directly contradict the plurality’s statement.                       See,
    
    e.g., Papasan v. Allain, 
    487 U.S. 265
    , 282 n.14 (1986) (holding
    
    that the Mississippi Governor and Secretary of State were proper
    
    defendants    because    of   their     “general    supervision”     over     local
    
    officials    administration       of    land   set-asides      for   educational
    
    purposes); Voinovich, 130 F.3d at 210 (“Here, the prosecutors could
    
    charge plaintiff.”) (emphasis added); Los Angeles Bar Ass’n v. Eu,
    
    
    979 F.2d 697
     (9th Cir. 1992) (holding that Young applied even
    
    though there was no enforcement by the defendant officials of the
    
    challenged     statute    governing       judicial        appointments   by     the
    
    defendants because “[The statute at issue] is simply not the type
    
    of statute that gives rise to enforcement proceedings.”); Luckey v.
    
    Harris, 
    860 F.2d 1012
    , 1015 (11th Cir. 1988) (“Personal action by
    
    defendants individually is not a necessary condition of injunctive
    
    relief against state officers in their official capacity.”).                     In
    
    light of     these   decisions,    to    state     that    federal   courts    have
    
    repeatedly required the institution of some actual or threatened
    
    enforcement action before hearing officer suits mischaracterizes
    
    existing law.
    
                                            B.
    
         The plurality compounds its error in reinterpreting Young by
    
    formulating a “some connection” test that is so amorphous that even
    
    the plurality cannot precisely articulate what it measures.                    The
    
    
    
    
                                           -108-
                                            108
    test is initially stated as “whether the Young fiction requires
    
    that the defendant state official have some enforcement powers with
    
    respect to the particular statute at issue, or whether the official
    
    need have no such enforcement powers and only need be charged with
    
    the general authority and responsibility to see that all of the
    
    laws of the state be faithfully executed.”          Supra at __ (emphasis
    
    added). Then, this “test” is redrafted as gauging “(1) the ability
    
    of the official to enforce the statute at issue under his statutory
    
    or constitutional powers, and (2) the demonstrated willingness of
    
    the official to enforce the statute.”             Id. at ____ (emphasis
    
    added).    However, the “test” undergoes a further revision when the
    
    plurality modifies the “demonstrated willingness” prong to include
    
    “the ability to act.”      Id. at ___.
    
         The plurality thus transforms its reinterpretation of Young to
    
    create an erroneous test that undermines Young’s principle of
    
    permitting pre-enforcement officer suits to “vindicate federal
    
    rights    and   hold   state   officials    responsible   to   ‘the   supreme
    
    authority of the United States.’” Pennhurst State Sch. & Hosp. v.
    
    Halderman, 
    465 U.S. 89
    , 105 (1984) (quoting Young, 209 U.S. at
    
    160)).    Without explanation, Young’s requirement that there be
    
    “some connection with the enforcement of the act” has been modified
    
    to something beyond “general authority and responsibility,” and
    
    then distilled to “statutory or constitutional powers.”               However,
    
    
    
    
                                        -109-
                                         109
    this   reformulation    cannot       be   reconciled     with   Young’s   express
    
    language that the connection or duty of an officer may arise, “by
    
    virtue of his office,” out of the “general law, or is specially
    
    created by the act itself.”               Young, 209 U.S. at 157 (emphasis
    
    added); Papasan, 478 U.S. at 283 n.14; Luckey, 860 F.2d at 1016.
    
    
    
                                              IV.
    
             Nonetheless, even under this “test” Appellants have “some
    
    connection to the enforcement” of Act 825. A distinct nexus exists
    
    because Act 825 strips Appellees and other abortion providers of
    
    statutory    limitations      on     medical    malpractice     liability   they
    
    currently enjoy.       § 9:2800.12(C)(2).         The Governor and Attorney
    
    General supervise and control the implementation of the statutory
    
    limitations of liability, codified in Title 40 of the State’s
    
    Revised Statutes.      By exempting all claims brought pursuant to Act
    
    825 from Title 40 coverage, Act 825 requires the Governor and
    
    Attorney    General,    and    the     entities    and    administrators    they
    
    supervise and control, to enforce this exemption by disallowing any
    
    abortion provider’s claim to liability coverage whenever they are
    
    sued under Act 825.
    
           Under Louisiana’s medical malpractice regime, total liability
    
    is capped at $500,000.          22C LA. REV. STAT. ANN. § 40:1299.42.B.
    
    However, any private doctor is liable only up to $100,000–any
    
    
    
    
                                           -110-
                                            110
    additional liability up to $500,000 is to be paid from a Patient’s
    
    Compensation Fund (“PCF”).        § 40:1299.42.B; see also Kelty v.
    
    Brumfield, 
    633 So. 2d 1210
     (La. 1994) (per curiam).            The PCF is
    
    administered by the Patient’s Compensation Fund Oversight Board
    
    (“PCFOB”), a board in the office of the Governor with members
    
    appointed by the Governor.      § 40:1299.44.D.   The PCFOB may contest
    
    the quantum of damages, but not its liability.            See Kelty, 633
    
    So.2d at 1216.
    
         The Office of Risk Management (“ORM”) is an office within the
    
    Governor’s     Division    of   Administration    and    headed    by   the
    
    commissioner    of   administration,   and   is   thus   subject   to   the
    
    Governor’s direct control and supervision.          §§ 39:3-5; 39:1528.
    
    The ORM appoints legal counsel for the PCF and establishes minimum
    
    qualification standards for such counsel.         § 40:1299.41.J.       Any
    
    liability incurred by the state is paid from the Self-Insurance
    
    Fund.    § 39:1533.       It is the duty of the Attorney General to
    
    appoint legal counsel to the Self-Insurance Fund, and the Attorney
    
    General must approve all settlements made by the Self-Insurance
    
    Fund over $25,000.     §§ 39:1533.B; 39:1535.B(6).73
    
    
        73
            In addition, the constitutionality of a statute may not be
    attacked in a declaratory judgment action unless the Attorney
    General is served with a copy of the proceeding, and the Attorney
    General is entitled to be heard and, at his discretion, to
    represent or supervise the representation of the interests of the
    state in the proceeding. See Vallo v. Gayle Oil Co., Inc., 646
    
    
    
    
                                      -111-
                                       111
         Under Title 40's medical malpractice regime, all malpractice
    
    claims against state and private health care providers must be
    
    reviewed by a medical review panel before the claimant can file
    
    suit in court.     §§ 40:1299.39.1; 40:1299.47.         The state medical
    
    review   panels     are   administered      by    the    commissioner      of
    
    administration, who is appointed and supervised by the Governor and
    
    serves at the Governor’s pleasure.         §§ 40:1299.1.A(1); 39:1.        The
    
    private medical review panels are administered by the PCFOB.                §§
    
    40:1299.44D; 40:1299:47. The medical review panels are required to
    
    render expert     opinions   on   each   claim   that   are   admissible    in
    
    evidence in any subsequent court action, and members of the panel
    
    may be called as expert witnesses in the case.           §§ 40:1299.39.1G,
    
    H; 40:1299.47.G, H; see also Everett v. Goldman, 
    359 So. 2d 1256
    
    (La. 1978).
    
         Under this regulatory scheme, the Governor and the Attorney
    
    General have the requisite connection to the enforcement of Act 825
    
    to satisfy Young.    The Governor appoints and supervises the board
    
    that reviews medical malpractice claims and the Attorney General
    
    supervises and oversees the appointment of counsel and the payments
    
    of settlements from the State’s funds, as well as representing the
    
    
    
    
    So.2d 859 (La. 1994) (citing LA. CIV. CODE art. 1880; LA. REV. STAT.
    ANN. § 49:257(B)); Bruneau v. Edwards, 
    517 So. 2d 818
    , 824 (La. App.
    1 Cir. 1987).
    
    
    
    
                                       -112-
                                        112
    state’s interests against constitutional challenges.                    The Governor
    
    and the Attorney General, through their appointment and oversight
    
    responsibilities,        must   determine         which   malpractice    claims   are
    
    exempt from the medical malpractice regulatory scheme under Act
    
    825.        See Papasan, 478 U.S. at 283 n.14; cf. Eu, 979 F.2d at 704
    
    (determining that Young’s “connection” requirement was satisfied by
    
    the governor’s duty to appoint and fill positions and the secretary
    
    of state’s duty to certify elections, and stating that the statute
    
    in question “is not the type that gives rise to enforcement”
    
    (emphasis added)).
    
            For example, has a physician who provides a woman with an
    
    intrauterine device (“IUD”) performed an abortion?74 Medical review
    
    panels will be required to review all medical malpractice actions
    
    arising       out   of   the   use   of    IUDs     and   determine     whether   the
    
    
           74
              Medical authorities neither fully understand how IUDs work
    nor universally accept that IUDs are abortifacients, although there
    is strong evidence that an IUD prevents a conceptus (a fertilized
    female ovum, in the words of Act 825) from implanting in the
    uterine wall, thus terminating an intrauterine pregnancy. Compare
    JOHN WHITRIDGE, WILLIAMS OBSTETRICS 931 (18th ed. 1989) (“The mechanisms
    of action of the chemically inert device have not been defined
    precisely.      Interference with successful implantation of the
    fertilized ovum in the endometrium seems to be the most prominent
    action.”) with How IUDs Prevent Pregnancy, POPULATION REPORTS,
    POPULATION INFORMATION PROGRAM OF THE JOHNS HOPKINS SCHOOL OF HYGIENE AND PUBLIC
    HEALTH v. XXIII no. 5 (1995) (reporting that studies suggest IUDs
    prevent sperm from fertilizing ova and do not support the common
    belief that they usually work by preventing implantation.); see
    also LEON SPEROFF, CLINICAL GYNECOLOGIC ENDOCRINOLOGY AND INFERTILITY 782 (5th
    ed. 1994).
    
    
    
    
                                              -113-
                                               113
    prescribing physician performed an “abortion” as defined by Act
    
    825.        The panels will likewise be called on to exercise discretion
    
    in applying the State’s malpractice regime in cases arising out of
    
    treatment        of   chorioamnionitis.       When   a   woman   develops    this
    
    intrauterine infection early in a pregnancy, she and the fetus may
    
    die if left untreated; however, the only available treatment will
    
    terminate the pregnancy.          See WHITRIDGE at 751.    Will the physician
    
    who    treats      the   woman,   saving   her   life    but   terminating   the
    
    pregnancy, be held by the review panel to have performed an
    
    abortion and thus be disqualified for Title 40 protection?                   Such
    
    decisions employ, by statutory requirement, Appellants’ regulatory
    
    powers. In yet another example, abortion procedures may be coupled
    
    with the administration of anaesthesia or tubal ligation, which
    
    remain eligible for the medical malpractice regime. Medical review
    
    panels will be called on to “enforce” Act 825 by determining which
    
    claims to exclude from the medical malpractice regime. Cf. Eu, 979
    
    F.2d at 704.75        Pharmacologically induced abortions, caused by such
    
    
    
           75
           Bethesda Lutheran Homes and Servs., Inc. v. Leean, 
    122 F.3d 443
     (7th Cir. 1997) (Posner, J.) (holding that out-of-state
    residents excluded by state law from a program to subsidize in-
    state hospitals could, under Young, sue state officials responsible
    for administering the program to enjoin them from exclusion);
    Clajon Prod. Corp. v. Petera, 
    70 F.3d 1566
    , 1571 n.9 (10th Cir.
    1995) (allowing, pursuant to Young, a suit by out-of-state
    residents against state officials to enjoin them from excluding the
    residents from a favorable method of obtaining hunting licenses).
    
    
    
    
                                          -114-
                                           114
    agents as RU-486 or the “morning after pill” present still other
    
    enforcement questions because pharmacists, as well as physicians,
    
    are listed as “health care providers” for purposes of Title 40.
    
    See § 40:1299.41(A)(1).        A physician, by prescribing RU-486,
    
    clearly   performs   an   abortion   under   Act   825,   since   the   drug
    
    accomplishes “the deliberate termination of an intrauterine human
    
    pregnancy after fertilization of a female ovum.”           Medical review
    
    panels will therefore have to regulate the circumstances under
    
    which Act 825 denies limits on malpractice liability for claims
    
    relating to prescriptions for and use of for such drugs.           Consider
    
    also the emergency room surgeon presented with a pregnant woman
    
    who, having sustained blunt trauma in an automobile crash or a
    
    domestic violence incident, has a ruptured uterus.                Since the
    
    mandated treatment for such condition includes the deliberate
    
    termination of the pregnancy, will the Governor’s medical review
    
    panel deny the physician performing the procedure the protections
    
    of Title 40 and subject the doctor to unlimited liability for the
    
    death of the fetus?       While far from exhaustive, these examples
    
    leave no doubt that the Governor and the Attorney General, through
    
    their supervision and control, have a routine, concrete role in
    
    enforcing Act 825.
    
         We recently allowed health maintenance organizations (“HMOs”)
    
    to bring a pre-emptive action against the Texas attorney general
    
    
    
    
                                     -115-
                                      115
    and commissioner of insurance challenging a Texas act that, inter
    
    alia, creates a private cause of action for patients against their
    
    HMOs.       Corporate Health Ins., Inc., 
    215 F.3d 526
    , 532 & n.6 (5th
    
    Cir. 2000) (Higginbotham, J.).           In Corporate Health we held that
    
    the plaintiffs had standing and the defendants were properly named
    
    because of the defendants’ powers of appointment, supervision, and
    
    regulatory oversight over the Texas health insurance industry.                  We
    
    especially noted that the commissioner of insurance was a proper
    
    defendant given his “oversight authority” as was the attorney
    
    general because of his “regulatory reach” and general discretionary
    
    power to bring actions under the Texas Deceptive Trade Practices
    
    Act.        Id.   Such    authority    and     power    constituted   sufficient
    
    connection to the enforcement of the challenged law, including the
    
    civil cause of action, to allow the suit to proceed pursuant to
    
    Young.
    
           In    light   of   Corporate    Health,     it    is   clear   that   “some
    
    connection” exists in this action by virtue of the Governor’s and
    
    Attorney General’s participation in the State’s extensive medical
    
    malpractice regime.        No principled distinction can be made between
    
    Corporate      Health     and   this   action    to    conclude   that   case   or
    
    controversy exists in the former but not the latter.                     In this
    
    action, Appellants’ connection to the enforcement of Act 825 is
    
    equivalent to, if not greater than, the connection between the
    
    
    
    
                                           -116-
                                            116
    defendants   and    the   challenged     law    in   Corporate   Health.   The
    
    plurality’s statement that we are powerless to hear Appellees’
    
    challenge in this case is contrary to Supreme Court law and
    
    conflicts with our reasoning and holding in Corporate Health.
    
                                            V.
    
         It is also apparent that Appellees have established a case or
    
    controversy against Appellants.              Appellees’ standing is clearly
    
    supported by the relevant decisions noted above.             E.g., Casey, 505
    
    U.S. at 845; Danforth, 428 U.S. at 83-84; Colautti, 439 U.S. at 384
    
    n.3; Voinovich, 130 F.3d at 192 n.3; see also Corporate Health, 215
    
    F.3d at 532; Causeway Med. Suite v. Ieyoub, 
    109 F.3d 1096
    , 1102
    
    (5th Cir. 1997).      Notably, we have upheld Appellees’ standing to
    
    challenge a civil liability provision contained in the State’s
    
    partial-birth      abortion   statute    against     these   same   Appellants.
    
    Causeway Med. Suite, 221 F.3d at 811, aff’g, Causeway Med. Suite,
    
    43 F. Supp. 2d at 609-10.
    
         The majority opinion, while conceding that Appellees have
    
    uundoubtedly established an “injury-in-fact,” simply concludes that
    
    Appellants had not caused any injury to Appellees. Such conclusion
    
    ignores and is in conflict with the authority upholding standing
    
    for abortion providers and clinics asserting their own rights for
    
    potential injury to economic opportunity or liberty as well as the
    
    liberty interests of their patients. E.g., Singleton v. Wulff, 428
    
    
    
    
                                       -117-
                                        
    117 U.S. 106
    , 118 (1976); Causeway Med. Suite, 221 F.3d at 811;
    
    Causeway Med. Suite, 109 F.3d at 1102; Greco v. Orange Mem. Hosp.
    
    Corp.,    
    513 F.2d 873
    ,   875   (5th     Cir.   1975)    (noting   abortion
    
    provider’s individual economic and liberty interest in practicing
    
    medicine free from arbitrary restraints).                More importantly, the
    
    majority fails to effectively analyze why the plaintiffs in Casey,
    
    Causeway Medical Suite, Voinovich, Miller, and Corporate Health
    
    were able to successfully allege that a civil liability provision
    
    created an injury-in-fact traceable to the defendants when the
    
    named defendants had no ability to “enforce” the provision.
    
           The majority summarily dismisses the existence of causation
    
    and redressability notwithstanding our past declaration that “the
    
    Supreme     Court   has   visibly    relaxed     its     traditional   standing
    
    principles in deciding abortion cases.”             Margaret S., 794 F.2d at
    
    997 (Higginbotham, J.) (citing Roe, 410 U.S. at 123-29, and Doe,
    
    410 U.S. at 187-89).      As discussed above, the threatened injury is
    
    exposure to unlimited damages for strict liability for performing
    
    abortions, which Appellants directly regulate.               Moreover, we have
    
    held that “a plaintiff must establish that the injury is fairly
    
    traceable to the proposed government action or inaction.”                Sierra
    
    Club v. Glickman, 
    156 F.3d 606
    , 613 (5th Cir. 1998) (Benavides, J.)
    
    (emphasis added); Luckey, 860 F.2d at 1016.                 Appellees’ injury,
    
    risk   of   unlimited     strict    liability,      is   fairly   traceable   to
    
    
    
    
                                         -118-
                                          118
    Appellants’ role in Louisiana’s medical malpractice regime because
    
    Appellants will enforce Act 825 by excluding Appellees from Title
    
    40 coverage for claims pursuant to Act 825–i.e., Appellants will
    
    enforce Act 825 by not acting under Title 40.      This enforcement by
    
    “inaction” means that the PCFOB will not defend against the quantum
    
    of   damages,   the   Governor    (through   his     commissioner   of
    
    administration) will not oversee the determination of liability,
    
    the Governor will not pay for the proceedings if a ruling is in
    
    favor of the abortion doctor, and the Attorney General will not
    
    have to appoint counsel or authorize any settlement in excess of
    
    $25,000.
    
         Despite this rather simple chain of causation, the majority
    
    begs the question by concluding that because Act 825 is a private
    
    tort statute, Appellants have no coercive power sufficient to make
    
    the necessary   causal   connection.76   However,    Appellants   wield
    
         76
             To this end, the majority’s citation of Muskrat v. United
    States, 
    219 U.S. 346
     (1911), and Gritts v. Fisher, 
    223 U.S. 640
    (1912), is inapposite.     Muskrat concerned Congress’s statutory
    creation of jurisdiction in federal court allowing individuals to
    sue the United States for judicial review of the constitutionality
    of certain statutes. The Supreme Court held that such statutory
    creation of jurisdiction did not create a case or controversy
    because the United States had no interest or stake in the
    litigation adverse to the plaintiffs. In this action, Act 825 does
    not confer jurisdiction in federal court to sue a particular
    defendant, and it is clear that Appellees have a distinct case or
    controversy against Appellants because Appellants’ interests are
    directly adverse to Appellees’ interests.
         Moreover, contrary to the majority’s explanatory parenthetical
    that states that the defendant in Gritts was sufficiently adverse
    
    
    
    
                                     -119-
                                      119
    coercive power   because   their    duty   to   execute   and   uphold   the
    
    constitutionality of Act 825 constitutes the power to effectuate
    
    the Act’s coercive impact.          See Mobil Oil Corp. v. Attorney
    
    General, 
    940 F.2d 73
    , 76-77 (4th Cir. 1991) (noting that a case or
    
    controversy exists in a constitutional challenge to a private
    
    enforcement statute because the state official has sufficient
    
    adverse interests by having the power to intervene to defend the
    
    statute);77 cf. Papasan, 478 U.S. at 283 n.14.       Moreover, Appellees
    
    
    to the plaintiffs to create an Article III controversy, Gritts does
    not even mention Article III case or controversy requirements or
    standing. These decisions simply do not support the majority’s
    reasoning.
          77
              The majority’s interpretation of Mobil Oil belies the
    Fourth Circuit’s express holding.      Contrary to the majority’s
    conclusion that “controversy was founded upon the Attorney
    General’s explicit statutory authority,” the Fourth Circuit held
    that such statutory authority is “irrelevant” because “[w]hether
    Mobil has a dispute with its franchisees does not bear on whether
    it has a dispute with the Attorney General.” Mobil Oil, 940 F.2d
    at 76 (footnote omitted); see also id. n.2 (“‘A controversy exists
    not because the state official is himself a source of injury but
    because the official represents the state whose statute is being
    challenged as the source of the injury.’” (quoting Wilson v.
    Stocker, 
    819 F.2d 947
     (10th Cir. 1987)). The court added that even
    in private enforcement suits, the Attorney General “could
    intervene” to defend the constitutionality of the statute under 28
    U.S.C. § 2403(b), and cited for support a private medical
    malpractice suit in which the Attorney General had so intervened.
    Id. at 76-77 (citing Boyd v. Bulala, 
    877 F.2d 1191
     (4th Cir.
    1989)). Thus, Mobil Oil is properly read as equating an official’s
    independent power of enforcing a statute with the power to
    intervene in an action to defend that statute to create “an odor of
    a ‘case or controversy.” Id. at 77; see also id. at 75 (“[T]he
    Declaratory Judgment Act was designed[] . . . [to] encourage a
    person aggrieved by laws he considers unconstitutional to seek a
    
    
    
    
                                       -120-
                                        120
    have asserted that Appellants’ failure to limit potential liability
    
    for claims based on abortion-related injuries by “acting” under Act
    
    825 will cause the injury-in-fact.    See Compl. for Decl. Relief ¶
    
    V at 3, reprinted in R. at 196.   The majority’s flawed reasoning
    
    creates a double standard by which Appellants, who perform an
    
    unpopular but constitutionally protected procedure, are effectively
    
    barred from bringing any pre-enforcement challenge in federal
    
    court, whereas similarly situated HMOs are free to demand a federal
    
    forum.78
    
         Lastly, the majority erroneously concludes that Appellees fail
    
    to satisfy the “redressability” requirement of standing because the
    
    
    declaratory judgment against the arm of the state entrusted with
    the state’s enforcement power.” (emphasis added))
           78
                The majority’s suggestion that Louisiana courts are
    available to hear Appellees’ claims is untenable. To the extent
    the majority suggests that the Eleventh Amendment reflects a forum-
    selection theory, the Supreme Court in Alden v. Maine, 
    119 S. Ct. 2240
    , 2263 (1999), rejected such theory by holding that the
    Eleventh Amendment embodies a broad state sovereign immunity that
    applies in both federal and state courts. Id. (“Young is based in
    part on the premise that sovereign immunity bars relief against
    States and their officers in both state and federal courts, and
    that certain suits for declaratory or injunctive relief against
    state officers must therefore be permitted if the Constitution is
    to remain the supreme law of the land.”).
         Moreover, according to a majority of current Supreme Court
    Justices it is improper to consider the availability of state
    courts in determining whether relief pursuant to Young is
    permissible. Idaho v. Coeur D’Alene Tribe of Idaho, 
    117 S. Ct. 2028
    , 2045 (1997) (O’Connor, J., joined by Scalia, Thomas, JJ.,
    concurring); id. at 2048 (Souter, J., joined by Stevens, Ginsburg,
    Breyer, JJ., dissenting).
    
    
    
    
                                  -121-
                                   121
    injunction granted by the district court is “utterly meaningless.”
    
    Ironically, this is the same argument Appellants offered and we
    
    rejected in Causeway Medical Suite, 109 F.3d at 1102. There, these
    
    Appellants asserted that Appellees lacked standing to challenge
    
    judicial bypass procedures because they did not have “the power to
    
    enforce private-action court procedures.”              Id.    Appellants argued
    
    that    the    injunction     in    this     case     is     ‘hypothetical    and
    
    meaningless.’” Id.      We rejected this argument under Casey.                Id.
    
    More importantly, the majority reaches its conclusion without any
    
    authority, ignoring our “duty to decide the appropriateness and the
    
    merits of the declaratory request irrespective of [our] conclusion
    
    as to the propriety of the issuance of the injunction” in actions
    
    brought under the Declaratory Judgment Act, 28 U.S.C. § 2201
    
    (1994).    Steffel v. Thompson, 
    415 U.S. 452
    , 468 (1974) (emphasis
    
    added); cf. id. at 478 (Rehnquist, J.) (“[The primary purpose of
    
    the Declaratory Judgment Act is] to enable persons to obtain a
    
    definition of their rights before an actual injury occurred.”).
    
    The Supreme Court has held that “it is not necessary to decide
    
    whether [a plaintiff’s] cause of action against the [defendant]
    
    based directly on the Constitution is in fact a cause of action on
    
    which [the plaintiff] could actually recover. . . .                 Instead the
    
    test is whether the cause of action alleged is so patently without
    
    merit     as   to   justify   the    court’s        dismissal    for   want    of
    
    
    
    
                                         -122-
                                          122
    jurisdiction.”   Duke Power v. Carolina Env’l Study Group, 
    438 U.S. 59
     (1978) (internal quotation marks omitted); see also Larson v.
    
    Valente, 
    456 U.S. 228
    , 243 n.15 (1982) (“[A] plaintiff satisfies
    
    the redressability requirement when he shows that a favorable
    
    decision will relieve a discrete injury to himself.     He need not
    
    show that a favorable decision will relieve his every injury.”).
    
    The majority’s fixation with the “meaning” of the injunction is not
    
    based on a rule of law, but rather on an arbitrary principle
    
    ignoring Louisiana law and designed to restrict access to federal
    
    courts.
    
         A suit for declaratory and injunctive relief is the classic
    
    procedural mechanism for challenges to the constitutionality of
    
    state abortion statutes.   E.g., Casey, 505 U.S. at 845; Roe, 410
    
    U.S. at 120; Doe, 410 U.S. at 185.     Without regard to the meaning
    
    of an injunction, we have upheld the issuance of such injunction to
    
    enjoin these Appellants from enforcing a civil liability statute
    
    for damages for violation of Louisiana’s ban on partial-birth
    
    abortions.   Causeway Med. Suite, 221 F.3d at 811, aff’g, Causeway
    
    Med. Suite, 43 F. Supp. 2d at 619.   Moreover, Appellees’ injury can
    
    be specifically redressed by an injunction against the Governor to
    
    order his agents and subordinates to disregard Act 825 in reviewing
    
    civil claims against women’s health care providers and making their
    
    legal and factual recommendations as to liability and damages. See
    
    
    
    
                                   -123-
                                    123
    § 39:4.C (“The division of administration shall exercise such other
    
    duties and functions germane to its primary functions as may be
    
    prescribed by law or as directed by the governor by executive
    
    order.”). It can further be redressed by an injunction against the
    
    Attorney General requiring him to appoint counsel to defend civil
    
    suits on an equal basis with non-abortion providers in medical
    
    malpractice cases.   See § 39:1533.B.
    
                                    VI.
    
         Based on the foregoing, I conclude that the Eleventh Amendment
    
    does not bar consideration of this case in federal court and that
    
    Appellees have asserted a “Case or Controversy” against Appellants.
    
    
    
    
                                    124