981 F.Supp. 977 (E.D.La. 1998), C. A. 97-2214, Okpalobi v. Foster

Docket Nº:C. A. 97-2214
Citation:981 F.Supp. 977
Party Name:Okpalobi v. Foster
Case Date:January 07, 1998
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana

Page 977

981 F.Supp. 977 (E.D.La. 1998)

Iffanyi Charles Anthony OKPALOBI, d/b/a Gentilly Medical Clinic for Women, Plaintiffs;

Causeway Medical Suite; Bossier City Medical Suite; Hope Medical Group for Women; Delta Women's Clinic; Women's Health Clinic; James Deguerce, M.D.; and A. James Whitmore, III, M.D. on behalf of themselves and the patients they serve, Intervenors,


Michael J. FOSTER, Jr., Governor, of the State of Louisiana, and Richard P. Ieyoub, Attorney General of State of Louisiana, in their official capacities and their agents and successors, Defendants.

Civil Action No. 97-2214.

United States District Court, E.D. Louisiana.

Jan. 7, 1998

Page 978

Sidney M. Bach, Gerald D. Wasserman, Bach & Wasserman, Metairie, LA, for Plaintiff.

David Glen Sanders, Roy A. Mongrue, Jr., Robert Baron Barbor, Louisiana Dept. of Justice, Civil Division, Baton Rouge, LA, for Defendant.

Priscilla J. Smith, Kathryn Kolbert, Center for Reproductive Law & Policy, New York City, William E. Rittenberg, Rittenberg & Samuel, LLC, New Orleans, LA, for Intervenors.

PORTEOUS, District Judge.

This cause came for hearing on a previous day upon the Motion of Intervenors for a Preliminary Injunction, to enjoin the operation and effect of Act 825, to be codified at Louisiana Revised Statute 9:2800.11 (1997).

The Court, having heard the arguments of counsel and having studied the legal memoranda submitted by the parties is now fully advised in the premises and ready to rule.


Abortion is an issue which consumes and divides this country. As my colleague Judge Rice summarized, "Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of rational discussion or compromise, as is the ongoing controversy, of which this case is the latest chapter." See Women's Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995).

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This Court has heard the arguments of counsel and reviewed the evidence submitted. My duty as a judicial officer, is to put aside my personal opinions and beliefs and decide this matter under what I believe to be the present state of the law. As the Supreme Court stated in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), "Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

This case presents a challenge to the constitutionality of Act 825, which was to have been effective on August 15th, 1997. However, on Thursday, August 14th, 1997, this Court issued a temporary restraining order prohibiting the operation and effect of Act 825. See Record, Doc.# 10. Now, this Court is faced with deciding whether the intervenors meet the requirements for issuance of a preliminary injunction. Act 825 reads as follows:

"(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 peremptive period of ten years from the date of the abortion.

(B) For purposes of this Section:

(1) "Abortion" means the deliberate termination of an interuterine 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 damage 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 the 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 from which she is seeking to recover.

(2) The law 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."

The statute at issue makes an abortion provider liable, in tort, to the mother for any damage occasioned or precipitated by the abortion. This damage includes all damages suffered by the mother or the unborn child. The effect of a mother's signing a consent form only reduces the recovery of damages. Thus, intervenors argue that even if an abortion provider complies with Louisiana's Woman's Right to Know Informed Consent Law, a doctor is still liable to the mother for any damages she may attribute to the abortion that was not contained in the consent form. This cause of action survives for ten years following the performance of an abortion on a woman.

I. Jurisdiction and Standing

This case presents a constitutional challenge to Act 825, La.R.S. 9:2800.11, under the United States Constitution. Thus, pursuant to 28 U.S.C. § 1331, this court has federal question jurisdiction.

Defendants argue that intervenors lack standing to pursue a claim for injunctive relief because the statute does not, on its face, regulate abortion. Instead, defendants submit, the statute provides a woman with an additional remedy in the event of harm from a non-disclosed risk associated with an abortion procedure. Thus, defendants assert there is no undue burden on a woman's right to obtain an abortion under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

Page 980

The intervenors maintain they have standing to raise both their own rights and the rights of their patients. The intervenors represent six health care clinics and two physicians which provide abortion services in Louisiana. Intervenors submit their clients provide over 80% of all abortions in Louisiana. See Transcript of Oral Argument, p. 9 ln. 14-15. There are no patients of either the physicians or the clinics before this court as a party thereof.

Intervenors claim that La.R.S 9:2800.11 will force physicians in Louisiana to cease performing abortions because of the potential exposure presented in the form of civil damage remedies related to the performance of a consensual, legal abortion. It is intervenors' position that abortion providers will undoubtedly be prevented from practicing their chosen profession in violation of the Fourteenth Amendment. Moreover intervenors argue this result places an undue burden on women seeking abortions. Thus, intervenors maintain Act 825 violates the Fourteenth Amendment rights of proposed intervenors and their pregnant patients.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), an action for declaratory and injunctive relief from a state statute restricting the right to abortion was brought by similar plaintiffs: five abortion clinics and one physician. See also, Causeway Medical Suite, et al. v. Ieyoub, et al, 109 F.3d 1096 (5th Cir. 1997), rehearing en banc denied, 123 F.3d 849 (5th Cir. 1997); Women's Medical Professional Corp. et al v. Voinovich et al, 911 F.Supp. 1051 (S.D.Ohio 1995), affirmed, 130 F.3d 187 (6th Cir. 1997).

Given 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 rights of their patients. Id.; Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion).

II. Law Governing Abortion Regulations

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, a pregnant woman has a constitutional right to choose to terminate her pregnancy before viability. Subsequently, the United Supreme Court affirmed its recognition of a woman's right to choose, stating that a State may not prohibit a woman from making the ultimate decision to terminate her pregnancy prior to viability. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Specifically, the Casey Court declared, "The woman's right to terminate pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce." Casey, 505 U.S. at 871, 112 S.Ct. at 2817.

However, a plurality of the Casey Court abandoned the trimester framework of Roe stating that a State has a profound interest in potential life throughout pregnancy. Id. at 870-877, 112 S.Ct. at 2817-2820. The Court then articulated the "undue burden" standard for evaluating a state regulation on abortion. Id. at 875-879, 112 S.Ct. 2791 at 2820-2821. The Court said that a finding of an undue burden "is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877, 112 S.Ct. at 2820.

This Court acknowledges that the "undue burden" standard applies only to pre-viability...

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