Sojourner T v. Edwards ( 1992 )


Menu:
  •                 IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE FIFTH CIRCUIT
    
                            ______________________
    
                                  No. 91-3677
                            ______________________
    
    
    
    SOJOURNER T, on Behalf of Herself and All
    Others Similarly Situated, ET AL.,
    
                                                     Plaintiffs-Appellees,
    
                                    versus
    
    EDWIN W. EDWARDS, As Governor of the State
    of Louisiana, ET AL.,
    
                                                    Defendants-Appellants.
    
    *****************************************************************
    
    DR. IFEANYI CHARLES OKPALOBI,
    
                                                      Plaintiff-Appellee,
    
                                    versus
    
    RICHARD P. IEYOUB, Attorney General of
    the State of Louisiana, ET AL.,
    
                                                Defendants-Appellants.
    __________________________________________________________________
    
             Appeal from the United States District Court for the
                         Eastern District of Louisiana
    
    __________________________________________________________________
    
                             (September 22, 1992)
    
    Before JOLLY, and EMILIO M. GARZA, Circuit Judges, and SHAW,
    District Judge.*
    
    E. GRADY JOLLY, Circuit Judge:
    
    
    
         *
          Chief Judge of the United States District Court of the
    Western District of Louisiana, sitting by designation.
         This suit challenges the Louisiana Abortion Statute, which
    
    criminalizes     performing   abortions   except    under   very    limited
    
    circumstances.    In the district court, the plaintiffs argued that
    
    the Statute is preempted by federal law, that the Statute is
    
    unconstitutional under Roe v. Wade, 
    410 U.S. 113
     (1973), that the
    
    Statute is unconstitutional under Griswold v. Connecticut, 
    381 U.S. 479
     (1965), and that the Statute is void for vagueness.            The state
    
    of Louisiana defended the Statute arguing that Roe v. Wade has been
    
    overruled sub silentio by Webster v. Reproductive Health Services,
    
    
    109 S. Ct. 3040
     (1989), and its progeny.      The district court struck
    
    down the Statute, holding that because Roe v. Wade is still good
    
    law, the Statute is unconstitutional.
    
         The same arguments are presented to us that were made in the
    
    district court.    After this case was argued before us, the Supreme
    
    Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey,
    
    
    60 U.S.L.W. 4795
    , Nos. 91-744 & 91-902 (June 29, 1992), reaffirmed
    
    the essential holding of Roe v. Wade.              Because the Louisiana
    
    statute is clearly unconstitutional under Casey,            we affirm the
    
    district court's order.
    
                                        I
    
         Sojourner T., et al., brought this suit in federal district
    
    court challenging the Louisiana Abortion Statute. They argued that
    
    the statute is preempted by the Food, Drug and Cosmetic Act1 and by
    
    
         1
          21 U.S.C. § 360K (1988).
    
    
    
    
                                       -2-
                                        2
    FDA regulations approving the use of certain contraceptives.                   They
    
    also argued that the statute violates the Commerce Clause and that
    
    it   is   unconstitutional     under     Roe      v.   Wade   and   Griswold    v.
    
    Connecticut.    They requested declaratory and injunctive relief.
    
          Dr. Okpalobi, also seeking declaratory and injunctive relief,
    
    challenged   the   Louisiana    statute      on    vagueness    grounds.       The
    
    district court consolidated these two cases.
    
         Motions for judgment on the pleadings and supporting memoranda
    
    were filed by all parties.      Pursuant to Fed. R. Civ. P. 12(c), the
    
    district court granted the plaintiffs' motion for judgment on the
    
    pleadings on the grounds that under Roe v. Wade, the Louisiana
    
    Abortion Statute is unconstitutional.             The state appeals.
    
                                       II
    
          The Louisiana Abortion Statute was passed on June 18, 1991.2
    
    It amends and reenacts LSA-R.S. 14:87.                 The Statute makes it a
    
    crime to "administer[] or prescrib[e] any drug, potion, medicine,
    
    or any other substance to a female" or to "us[e] any instrumental
    
    or external force whatsoever on a female" "with the specific intent
    
    of terminating a pregnancy." The Statute provides exceptions when:
    
    (1) the physician terminates the pregnancy in order to preserve the
    
    life or health of the unborn baby or to remove a dead unborn child;
    
    (2) the physician terminates the pregnancy to save the life of the
    
    mother; (3) pregnancy is the result of rape; and (4) pregnancy is
    
    
          2
           1991 La. Acts 26.
    
    
    
    
                                           -3-
                                            3
    the result of incest.        Before an abortion can be performed under
    
    the rape and incest exceptions, certain reporting requirements must
    
    be met.    For example, the victims must report the rape or incest to
    
    law enforcement officials.       Also, abortions performed on rape and
    
    incest victims must be performed within the first thirteen weeks of
    
    pregnancy.
    
         No criminal liability attaches to a woman seeking or procuring
    
    an abortion.
    
                                        III
    
         In urging us to uphold the Statute, the state concedes that
    
    Roe v. Wade has not been expressly overruled.             Instead, the state
    
    argues that Roe has been overruled sub silentio by Webster and its
    
    progeny.
    
         On the other hand, Sojourner, et al., argue that we should
    
    avoid deciding this case on constitutional grounds.               Instead, we
    
    should affirm the district court on the grounds that the Statute is
    
    preempted by FDA regulations and by the Food, Drug and Cosmetic
    
    Act. They also present alternative arguments: we should affirm the
    
    district court    on   the    grounds     that   the   Statute   violates   the
    
    Commerce     Clause,   on     the   grounds       that    the    Statute    is
    
    unconstitutional under Griswold, or on the grounds that the Statute
    
    is unconstitutional under Roe.       Their argument that the Statute is
    
    preempted by federal law, that the Statute violates the Commerce
    
    Clause, and that the statute is unconstitutional under Griswold is
    
    contingent on their particular reading of the Statute.             They argue
    
    
    
    
                                         -4-
                                          4
    that   the   Statute   criminalizes           the   use    of   contraceptives        in
    
    Louisiana that act after conception.                      They argue that if we
    
    entertain doubts about this construction of the Statute, we should,
    
    before reaching the other issues in this case, certify to the
    
    Louisiana    Supreme   Court      the    question     of    whether     the    Statute
    
    criminalizes the use of certain contraceptives.
    
           Dr. Okpalobi argues that the Statute is unconstitutionally
    
    vague.     His vagueness argument emphasizes the elusiveness of the
    
    definitions of the rape and incest exceptions. He also argues that
    
    this court should certify to the Louisiana Supreme Court the
    
    question     of   whether   the    Act    violates        the   right     to   privacy
    
    guaranteed by Article 1, Section 5 of the Louisiana Constitution.
    
                                             IV
    
           Below, the plaintiffs challenged the facial validity of the
    
    Statute.      Thus, we must determine whether the plaintiffs are
    
    correct that the Statute cannot be construed and applied without
    
    infringing    upon   constitutionally           protected       rights.        Rust   v.
    
    Sullivan, 
    111 S. Ct. 1759
    , 1767 (1991).                The district court found
    
    that Roe v. Wade is still good law and that the Louisiana Abortion
    
    Statute    clearly   transgresses        those      constitutional        rights,     as
    
    enunciated in Roe v. Wade, of women who seek an abortion.
    
           The Supreme Court recently reaffirmed the essential holding of
    
    Roe v. Wade in Casey.       Casey, 60 U.S.L.W. at 4798.               In Casey, the
    
    Court held that a woman has a right to chose to have an abortion
    
    before viability and that legislation restricting abortions before
    
    
    
    
                                             -5-
                                              5
    viability must not place an undue burden on that right.               Id.   "An
    
    undue burden exists, and therefore a provision of law is invalid,
    
    if its purpose or effect is to place a substantial obstacle in the
    
    path of a woman seeking an abortion before the fetus attains
    
    viability."      Id. at 4807.   The Court held that before viability, a
    
    State's interests are not strong enough to support a prohibition of
    
    abortion.     Id. at 4798.      Thus, the Louisiana statute is clearly
    
    unconstitutional under Casey.
    
                                          V
    
          Sojourner, et al., urge us to avoid deciding this case on
    
    constitutional grounds and to affirm the district court on the
    
    grounds that the Statute is preempted by FDA regulations and the
    
    Food, Drug and Cosmetic Act, arguing that we must, when possible,
    
    decide a case on statutory rather than constitutional grounds.               We
    
    can, of course, affirm the district court's judgment on any grounds
    
    supported by the record.        Mangaroo v. Nelson, 
    864 F.2d 1202
    , 1204
    
    n.2 (5th Cir. 1989).         Furthermore, we acknowledge that it is
    
    usually true that if a case can be decided either on statutory or
    
    constitutional law, we should address the statutory issue first.
    
    Harris v. McRae, 
    448 U.S. 297
    , 306-307 (1980).             We do not think,
    
    however, that the facts and the procedural posture of this case
    
    warrant the application of this jurisprudential principle.                  The
    
    plaintiffs brought a facial challenge to the constitutionality of
    
    the   Statute.      The   district   court   entered   a   judgment    on   the
    
    pleadings on the grounds that the Statute was unconstitutional
    
    
    
    
                                         -6-
                                          6
    under Roe v. Wade.     It did not address the preemption issue.           There
    
    was no trial or hearing to develop the record with respect to the
    
    several     crucial   factual    and   legal    issues   that    underlie   the
    
    preemption arguments, including whether certain contraceptives act
    
    after contraception, and if so, whether the Statute criminalizes
    
    the use of these contraceptives. Additionally, we are not applying
    
    a new interpretation of the Constitution to decide this case; we
    
    are only applying the clear holding of Casey.            Therefore, the facts
    
    and posture of this case do not obligate us to reach the statutory
    
    issue first.3
    
          Similarly, Dr. Okpalobi urges us to avoid deciding the case on
    
    federal constitutional grounds by certifying the question to the
    
    Louisiana Supreme Court whether, because it invades the right of
    
    privacy, the Statute is unconstitutional under the Article 1,
    
    Section 5 of the Louisiana Constitution.               Because Dr. Okpalobi
    
    raises this issue for the first time on appeal, we do not address
    
    it.       Honeycutt v. Long, 
    861 F.2d 1346
    , 1352 (5th Cir. 1988).
    
    Planned Parenthood of Louisiana, as amicus curiae, argues that we
    
    should abstain from deciding this case because there is a pending
    
    state      court   challenge    to   the     Statute   under    the   Louisiana
    
    
    
    
          3
          Since we decide this case on the grounds that the Statute
    is unconstitutional under Casey, Sojourner's motion to certify
    the question of whether the Louisiana Abortion Statute
    criminalizes the use of certain contraceptives is denied.
    
    
    
    
                                           -7-
                                            7
    Constitution.4    This argument was also raised for the first time on
    
    appeal, and we therefore do not address it.                 United States v.
    
    Allegheny-Ludlum Industries, Inc., 
    517 F.2d 826
    , 840 n.13 (5th Cir.
    
    1975), cert. denied, 
    425 U.S. 944
     (1976).
    
                                      VI
    
         In conclusion, we hold that the Louisiana statute, on its
    
    face,    is plainly unconstitutional under Casey because the statute
    
    imposes an    undue   burden   on   women    seeking   an   abortion   before
    
    viability.5   The order of the district court is therefore
    
                                                                A F F I R M E D.
    
    
    
    EMILIO M. GARZA, Circuit Judge, concurring specially:
    
    
    
         I agree with Judge Jolly that "the Supreme Court, in Planned
    
    Parenthood of Southeastern Pennsylvania v. Casey, . . . reaffirmed
    
    the essential holding of Roe v. Wade"6 and that "the Louisiana
    
    [Abortion] Statute is clearly unconstitutional under Casey."7            See
    
    
         4
          Apparently, the state court action was stayed pending the
    outcome of this suit.
         5
          Because we decide the case on the grounds that the Statute
    is unconstitutional under Casey, we do not reach the appellees'
    arguments that the Statute violates the Commerce Clause, that the
    Statute is unconstitutional under Griswold, or that the Statute
    is unconstitutionally vague.
    
         6
             
    410 U.S. 113
    , 
    93 S. Ct. 705
    , 
    35 L. Ed. 2d 147
     (1973).
         7
             Slip op. at 2.
    
    
    
    
                                           -8-
                                            8
    Planned Parenthood v. Casey, ___ U.S. ___, 
    112 S. Ct. 2791
    , 2804,
    
    
    120 L. Ed. 2d 674
     (1992) ("After considering the fundamental
    
    constitutional      question     resolved     by   Roe,     principles     of
    
    institutional integrity, and the rule of stare decisis, we are led
    
    to conclude this: the essential holding of Roe v. Wade [that a
    
    woman has the right to terminate her pregnancy before viability]
    
    should be retained and once again reaffirmed.").             Accordingly, I
    
    concur in Judge Jolly's opinion.
    
         Casey, nonetheless, causes me concern.          "The issue is whether
    
    [abortion] is a liberty protected by the Constitution of the United
    
    States."    Id. at 2874 (Scalia, J., dissenting).             Two essential
    
    facts seem apparent: " [T]he Constitution says absolutely nothing
    
    about [abortion], and . . . the longstanding traditions of American
    
    Society have permitted [abortion] to be legally proscribed."8             Id.
    
    (footnote omitted) (citation omitted).         Casey "decorate[s] a value
    
    judgment9 and conceal[s] a political choice."             Id. at 2875.     If
    
    
         8
            Compare Roe, 410 U.S. at 138-42, 93 S. Ct. at 719-21 (historical
    review of abortion laws in America) with Michael H. v. Gerald D., 
    491 U.S. 110
    , 121-28, 
    109 S. Ct. 2333
    , 2341-44, 
    105 L. Ed. 2d 91
     (1989) (overview of
    presumption of legitimacy) and Bowers v. Hardwick, 
    478 U.S. 193
    , 191-95, 
    106 S. Ct. 2841
    , 2844-46, 
    92 L. Ed. 2d 140
     (1986) (brief history and list of
    sodomy laws in America).
         9
            The joint opinion states: "Our obligation is to define the liberty of
    all, not to mandate our own moral code. The underlying constitutional issue
    is whether the State can resolve these philosophic questions in such a
    definitive way that a woman lacks all choice in the matter, except perhaps in
    those rare circumstances in which the pregnancy is itself a danger to her own
    life or health, or is the result of rape or incest." Casey, 112 S. Ct. at
    2806. I do not agree with the joint opinion's articulation of the issue.
    First, States legislate morality every day in the form of criminal statutes.
    For example, "[a] person commits an offense if he . . . intentionally or
    knowingly causes the death of an individual," see Tex. Pen. Code Ann. § 19.02
    (West 1992), is the legal formulation of the commandment: "Thou shall not
    kill." See Bowers v. Hardwick, 478 U.S. at 196, 106 S. Ct. at 2846 ("The law,
    however, is constantly based on notions of morality, and if all laws
    representing essentially moral choices are to be invalidated under the Due
    Process Clause, the courts [would] be very busy indeed.").
          Second, the underlying constitutional issue is not "whether the State
    can resolve these philosophic questions in such a definitive way that a woman
    this    assessment   is       correct,   the    Court's   reaffirmance))whether
    
    viewed as a good or bad result))has accelerated the Court "towards
    
    systematically eliminating checks upon its own power; and [at least
    
    with Roe and Casey] it [has] succumb[ed] [to this temptation]".
    
    Id. at 2874.
    
           Because the decision to permit or proscribe abortion is a
    
    political    choice,      I   would   allow     the   people   of   the   State   of
    
    Louisiana to decide this issue for themselves.10                    Nonetheless, I
    
    acknowledge that Casey controls, and therefore, I concur.
    
    
    
    
    lacks all choice in the matter," but whether States have the constitutional
    power to make this ontological choice. For example, States choose for
    ontological reasons, to protect the lives of their citizens. In this
    instance, "liberty" gives way to protection of human life. See Casey, 112 S.
    Ct. at 2859 (Rehnquist, C.J., dissenting) ("To look `at the act which is
    assertedly the subject of a liberty interest in isolation from its effect upon
    other people [is] like inquiring whether there is a liberty interest in firing
    a gun where the case at hand happens to involve its discharge into another
    person's body.'" (quoting Michael H. v. Gerald D., 491 U.S. at 124 n.4, 109
    S. Ct. at 2342 n.4 (1989))). The ultimate question))if one accepts the joint
    opinion's view that viability is critical))is whether States have the
    constitutional authority to decide for themselves whether viability makes an
    ontological difference.
           10
             See Michael H., 491 U.S. at 122, 109 S. Ct. at 2341 ("Whenever the
    Judiciary [realizing that the present construction of the Due Process Clause
    represents a major judicial gloss on its terms, as well as on the anticipation
    of the Framers, strikes down legislation adopted by a State], it unavoidably
    pre-empts for itself another part of the governance of the country without
    express constitutional authority." (quoting Moore v. East Cleveland, 
    431 U.S. 494
    , 544, 
    97 S. Ct. 1932
    , 1958, 
    52 L. Ed. 2d 531
     (1977))).
    
                                             -10-
                                              10