Sojourner T v. Edwards , 974 F.2d 27 ( 1992 )

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.
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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).
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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.
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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
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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
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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
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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.
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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.
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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))).
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