180 F.3d 1326 (11th Cir. 1999), 98-6129, Summit Medical Associates, P.C. v. Pryor

Docket Nº:98-6129
Citation:180 F.3d 1326
Party Name:SUMMIT MEDICAL ASSOCIATES, P.C., William Knorr, M.D., et al., on behalf of themselves and their patients seeking abortions, Plaintiffs-Appellees, v. Bill PRYOR, in his official capacity as Attorney General and his agents and successors, and Ellen Brooks, in her official capacity as Montgomery District Attorney, etc., Defendants-Appellants.
Case Date:July 15, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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180 F.3d 1326 (11th Cir. 1999)

SUMMIT MEDICAL ASSOCIATES, P.C., William Knorr, M.D., et al., on behalf of themselves and their patients seeking abortions, Plaintiffs-Appellees,

v.

Bill PRYOR, in his official capacity as Attorney General and his agents and successors, and Ellen Brooks, in her official capacity as Montgomery District Attorney, etc., Defendants-Appellants.

No. 98-6129

United States Court of Appeals, Eleventh Circuit.

July 15, 1999

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Albert L. Jordan, Kimberly R. West, Charles B. Campbell, Wallace, Jordan, Ratliff & Brandt LLC, Birmingham, AL, Algert S. Agricola, Jr., Wallace, Jordan,

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Ratliff & Brandt, Montgomery, AL, for Pryor and Brooks.

Thomas J. Methvin, Jere L. Beasley, P. Leigh O'Dell, Beasley, Wilson, Allen, Crow & Methvin, P.C., Montgomery, AL, for Gov. James, State of Alabama.

Simon Heller, Julie F. Kay, Center for Reproductive Law & Policy, New York City, David Gespass, Kathleen M. Johnson, Gespass & Johnson, Birmingham, AL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before EDMONDSON, COX and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

The central issue raised in this interlocutory appeal is whether Alabama's Eleventh Amendment sovereign immunity bars this suit in federal court against the Governor, the Attorney General, and the District Attorney challenging the Alabama Partial-Birth Abortion Ban Act of 1997 ("partial-birth abortion statute") and the Abortion of Viable Unborn Child Act ("post-viability abortion statute"). We hold that Appellees' challenge to the statutes' criminal liability provisions falls squarely within the exception to the Eleventh Amendment embodied in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and, therefore, that the district court did not err in denying Appellants' motion to dismiss this § 1983 action on these grounds. However, with respect to Appellees' challenge to the private civil enforcement provision embodied in the partial-birth abortion statute, we conclude that, because Appellants have no enforcement authority over those specific provisions, the Ex parte Young exception does not apply, and Alabama's sovereign immunity bars this specific claim. Accordingly, we affirm in part, reverse in part, and remand this case with instructions to the district court to dismiss Appellees' challenge to the private civil enforcement provision of the partial-birth abortion statute.

I.

Appellees are three corporations that own abortion clinics, Summit Medical Association, P.C., Beacon Women's Center, and New Woman, All Women Health Care, and one physician, William H. Knorr, M.D. They initiated this action on July 24, 1997, in the United States District Court for the Middle District of Alabama against Fob James, Jr., then Governor of Alabama, Bill Pryor, Attorney General of Alabama, and Ellen Brooks, Montgomery District Attorney, alleging that the Alabama Partial-Birth Abortion Ban Act of 1997, Ala.Code §§ 26-23-1 to -6 (Supp.1998), and the Abortion of Viable Unborn Child Act, Ala.Code §§ 26-22-1 to -5 (Supp.1998), violate the Fourteenth Amendment to the United States Constitution, as enforced by 42 U.S.C. § 1983 (1994). They sought injunctive and declaratory relief. 1

In 1997, the Alabama state legislature enacted these statutes to impose criminal and civil penalties on the performance of certain types of abortion procedures. The partial-birth abortion statute prohibits any physician from "knowingly" performing a "partial-birth abortion," 2 Ala.Code § 26-23-3, defined as "[a]n abortion in which the person performing the abortion partially vaginally delivers a living fetus before

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killing the fetus and completing the delivery," id. § 26-23-2(3). The performance of such an abortion constitutes a Class C felony, punishable by a fine of not more than $5000 and imprisonment for up to ten years, and triggers the possibility of license revocation under Alabama law. See id. § 26-23-3; see also Ala.Code §§ 13A-5-2, -6(a)(3), -11(a)(3) (1994); Ala.Code § 34-24-360(4) (1997). Under the statute's private civil enforcement provision, the performing physician also may be liable in a civil suit to the "father" of the fetus, if he is married to the woman who underwent the abortion, or to the "maternal grandparents" of the fetus, if the woman is a minor at the time of the procedure. Ala.Code § 26-23-5. However, where the abortion "is necessary to save the life of the mother" the statute bars criminal and civil liability. Id. § 26-23-4.

On August 1, 1997, the effective date of the partial-birth abortion statute, the Alabama Attorney General sent letters to four Alabama district attorneys instructing them on his interpretation of the new statute. 3 The letters stated that for the purpose of prosecutions brought under the act, "a physician partially delivers a living fetus before killing the fetus [as proscribed by the act] when the physician deliberately and intentionally delivers into the vagina a viable fetus, or a substantial portion of the viable fetus, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus."

The post-viability abortion statute, on the other hand, prohibits any person from "intentionally, knowingly, or recklessly" performing or inducing any type of abortion "when the unborn child is viable." 4

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Ala.Code § 26-22-3(a). "Viable and viability" are defined in the statute as follows:

The stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.

Id. § 26-22-2(9) (emphasis added). After the nineteenth week of pregnancy, the statute requires all physicians performing abortions to make a good-faith medical judgment as to whether the fetus is viable. See id. §§ 26-22-2(9), -4.

Under the post-viability abortion statute, a person who intentionally, knowingly, or recklessly performs or induces a post-viability abortion has committed a Class A felony, punishable by imprisonment from ten to ninety-nine years and fines up to $20,000. See id. § 26-22-3(a), (d); see also Ala.Code §§ 13A-5-2, -6(a)(1),--11(a)(1). A physician may perform a post-viability abortion if he or she "reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman." Ala.Code § 26-22-3(b)(1). Under these circumstances, a physician must satisfy five additional procedural requirements, including written certification of the physician's judgment, written concurrence of another licensed physician, and performance of all reasonable steps necessary to preserve the life and health of the unborn child. See id. § 26-22-3(c)(1) to (5). Failure to comply with these requirements constitutes a Class C felony, punishable by imprisonment from one year and

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one day to ten years and fines up to $5000. See id. § 26-22-3(d). These requirements are waived, however, where the physician, in his or her reasonable medical judgment, determines that the nature of the medical emergency prevents compliance. See id. § 26-22-3(c).

Appellees allege that these statutes are unconstitutionally vague and can be construed to prohibit abortions performed in the first trimester of pregnancy, thus imposing an undue burden on the right of patients to seek abortions free from government interference. 5 Moreover, Appellees contend that the post-viability abortion statute imposes a further undue burden because it does not provide adequate safeguards for protecting a patient's health. Appellees also challenge the partial-birth abortion statute's private civil enforcement provision on the ground that it unduly burdens patients' rights to obtain abortions without government interference.

On September 4, 1997, Attorney General Pryor and District Attorney Brooks ("Appellants") filed a motion to dismiss alleging lack of standing, Eleventh Amendment immunity, and failure to state a claim on the merits. Governor James also moved to dismiss for lack of subject matter jurisdiction. On November 24, 1997, the district court held a hearing on these motions.

Thereafter, on January 26, 1998, the district court issued an order and a lengthy memorandum opinion denying the Governor's motion and granting in part, and denying in part, Appellants' motion. 6 See Summit Med. Assocs. v. James, 984 F.Supp. 1404 (M.D.Ala.1998) [hereinafter Summit I ]. Specifically, in granting Appellants' motion, the district court dismissed all claims for injunctive relief and those claims challenging the viability testing provisions of the post-viability abortion statute. The order left standing, however, Appellees' claims for declaratory relief against the other portions of both statutes. The district court also specifically rejected Appellants' Eleventh Amendment and standing defenses, reasoning that since the Appellants may be engaged in an ongoing violation of federal law, the Ex parte Young exception to Eleventh Amendment immunity applied. 7 Moreover, the district court found that Appellees had alleged a sufficiently credible threat of prosecution to establish standing to bring suit in federal court.

Appellants gave timely notice of appeal on February 13, 1998. They also filed a motion to stay proceedings in the district court pending a ruling on appeal. On March 19, 1998, the district...

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