190 F.3d 337 (5th Cir. 1999), 98-30228, Okpalobi v Foster

Docket Nº:98-30228
Citation:190 F.3d 337
Party Name: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, v. MIKE FOSTER, Governor of the State of Louisiana
Case Date:September 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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190 F.3d 337 (5th Cir. 1999)

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,

v.

MIKE FOSTER, Governor of the State of Louisiana; RICHARD P. IEYOUB, Attorney

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General of Louisiana;1 STATE OF LOUISIANA, Substituted in place of Kenneth Duncan, Treasurer of the State of Louisiana, Defendants-Appellants.

No. 98-30228

United States Court of Appeals, Fifth Circuit

September 17, 1999

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Appeal from the United States District Court for the Eastern District of Louisiana

Before JOLLY, WIENER and PARKER, Circuit Judges.

WIENER and PARKER, Circuit Judges:

Mike Foster, Governor of Louisiana, Richard P. Ieyoub, Attorney General of Louisiana, and the State of Louisiana (collectively "the State") appeal the district court's order permanently enjoining "the operation and effect" of Louisiana Revised Statutes Annotated, Title 9, Section 2800.122 (West Supp. 1999)("Act 825" or "the Act"), which makes an abortion provider liable, in tort, to the woman obtaining an abortion for any damage occasioned by the abortion. The district court held the Act unconstitutional and enjoined its enforcement, finding that the Act is unconstitutionally vague and that it imposes an undue burden on a woman's right to seek a pre-viability abortion. We affirm.

I. PROCEDURAL HISTORY AND STANDARD OF REVIEW

The original complaint of Ifeanyi Charles Anthony Okpalobi ("Dr. Okpalobi") was filed in district court on July 15, 1997. Five health care clinics and two more physicians ("Intervenors") intervened on behalf of Dr. Okpalobi and filed a motion for a temporary restraining order ("TRO") and preliminary injunction to restrain the operation of Act 825.3 The State opposed the motion. After a hearing, the district court granted a TRO in an order dated August 14, 1997, one day before the Act was scheduled to take effect.

The district court held a hearing on the Plaintiffs' motion for preliminary injunction on December 10, 1997. On January 7, 1998, the district court issued an order declaring 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," concluding that the Plaintiffs had demonstrated a substantial likelihood of success on the merits of their Fourteenth amendment claim and granting the preliminary injunction. See Okpalobi v. Foster, 981 F.Supp. 977, 986 (E.D. La. 1998). On February 11, 1998, pursuant to an agreement of the parties, the district court converted the preliminary injunction to a permanent injunction. The agreed permanent injunction contains no express declaratory judgment language, but permanently enjoins the Act "in its entirety for the reasons stated in the granting of the preliminary injunction." Because 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 violates the Constitution, the order before us on appeal of necessity grants the Plaintiffs' request for both declaratory and injunctive relief.

The State timely filed an appeal. We must now determine whether the district court abused its discretion when it declared that Act unconstitutional and permanently enjoined its enforcement. See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1102 (5th Cir.), cert. denied, 118 S.Ct. 357

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(1997). "The district court abuses its discretion if it (1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction, (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunction relief." Id.(internal quotations omitted)(citing North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916-17 (5th Cir. 1996)). The district court's conclusions of law, including the declaration that Act 825 is unconstitutional, are reviewed de novo. See North Alamo Water, 90 F.3d at 915.

The procedural posture in which this case is presented limits our review of the district court's factual findings. The only factual findings before us on review were made in the context of the district court's grant of the Plaintiffs' motion for a preliminary injunction. A preliminary injunction requires the movant, by a clear showing, to carry the burden of persuasion. See Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 1867 (1997). The court found that the Plaintiffs had met their burden of proof, establishing, along with all other requirements for granting a preliminary injunction, a "substantial likelihood of success on the merits." See Okpalobi, 981 F.Supp. at 981. This is not the same as holding that the Plaintiffs had established disputed facts as a matter of law. The district court's grant of preliminary injunction, although interlocutory, was immediately appealable. See 28 U.S.C. § 1292(a)(1). The State, however, did not appeal it. Rather, the case went forward to final disposition of the Plaintiffs' complaint seeking permanent injunction. Moreover, the parties agreed to the entry of a permanent injunction without further evidence or argument. By its agreement to make the temporary injunction permanent, the State waived any argument about the factual sufficiency of the record to support a permanent injunction. If the record contains evidence that supports the district court's finding of "substantial likelihood of success on the merits," we cannot hold the findings of fact to be clearly erroneous.

II. FACTS

The Plaintiffs comprise three physicians and five health care clinics that provide abortion services in Louisiana. See Okpalobi, 981 F.Supp. at 980. The Plaintiffs submit that they provide over 80% of all abortions in Louisiana. See id. No patient of either the physicians or the clinics appears as a party to this suit. See id.

The evidence in the record consists of two affidavits submitted to the district court to support the Plaintiffs' motion for preliminary injunction.4 The first affidavit was executed by the administrator of Hope Medical Group for Women, a Shreveport Louisiana abortion provider. Hope's administrator asserts that Act 825 "will leave Hope no option but to cease providing abortions to our patients who need pregnancy terminations" because the Act leaves the clinic and its physicians "susceptible to significant liability."

The second affidavit was submitted by a physician who provides abortions in Baton Rouge and New Orleans, Louisiana. He also asserts that if Act 825 takes effect, he would have no choice but to discontinue his abortion practice. "The constant and real threat of large money judgments against me, when I have done no wrong, is not a risk I could reasonably bear."

III. DISCUSSION

A. The Act

This case requires us to determine the constitutionality of Act 825, which would

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have taken effect on August 15, 1997. The Act states:

2900.12 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 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 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.

LA. REV. STAT. ANN. § 9:2800.12 (West Supp. 1999).

B. Jurisdiction

None of the parties raised or briefed on appeal any issues concerning our jurisdiction. Nevertheless, we must examine the basis for our jurisdiction sua sponte. See MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).

1. Eleventh Amendment

The Eleventh Amendment prohibits the federal courts from entertaining "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 bar imposed by the Eleventh Amendment has been extended, by judicial construction, to suits brought against states by their own citizens. See Hans v. Louisiana, 134 U.S. 1 (1890); see also Edelman v. Jordan, 415 U.S. 651, 662 (1974). The Eleventh Amendment bars suits brought directly against a state, absent the state's consent, irrespective of the nature of the relief sought. See Hutto v. Finney, 437 U.S. 678, 700 (1978); see also Alabama v. Pugh, 438 U.S. 781 (1978).

The Eleventh Amendment does not,...

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