Okpalobi v. Foster

Decision Date12 March 2001
Docket NumberNo. 98-30228,98-30228
Citation244 F.3d 405
Parties(5th Cir. 2001) 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; STATE OF LOUISIANA, Substituted in place of Kenneth Duncan, Treasurer of the State of Louisiana, Defendants-Appellants
CourtU.S. Court of Appeals — Fifth Circuit

[Copyrighted Material Omitted]


E. GRADY JOLLY, Circuit Judge:

Sitting as an en banc court, we consider whether the district court properly enjoined the "operation and effect" of the Louisiana state tort statute at issue, which provides a private cause of action against medical doctors performing abortions. Although, in this facial attack on the constitutionality of the statute, consideration of the merits may have strong appeal to some, we are powerless to act except to say that we cannot act: these plaintiffs have no case or controversy with these defendants, the Governor and Attorney General of Louisiana, and consequently we lack Article III jurisdiction to decide this case. Seven members of this en banc court conclude that the panel was in serious error, as indeed is the dissent, in finding that this case presents an Ex parte Young exception to the Eleventh Amendment immunity from suit in federal court, which these defendants, the Governor and Attorney General of Louisiana, enjoy. Accordingly, we reverse, vacate, and remand for entry of a judgment of dismissal.


Dr. Ifeanyi Charles Anthony Okpalobi ("Okpalobi"), joined through intervention by five health care clinics and other physicians, individuals, and businesses who perform abortions in the State of Louisiana,1 challenge the constitutionality of La. R.S. Ann., tit. 9, 2800.12 (West Supp. 1999), or, more commonly, "Act 825."2 The defendants are Mike Foster, Governor of Louisiana, and Richard Ieyoub, Attorney General of Louisiana.3 No patients of the plaintiffs appear as parties in this suit.

Act 825 provides to women who undergo an abortion a private tort remedy against the doctors who perform the abortion. It exposes those doctors to unlimited tort liability for any damage caused by the abortion procedure to both mother and "unborn child." Damages may be reduced, but not eliminated altogether (and perhaps not at all with respect to any damages asserted on behalf of the fetus), if the pregnant woman signs a consent form prior to the abortion procedure.

The plaintiffs argue that Act 825 constitutes an "undue burden" on a woman's right to obtain an abortion and is thus unconstitutional under Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992). The plaintiffs further claim that the Act will force physicians in Louisiana to cease providing abortion services to women because of the potential exposure to civil damage claims authorized by the Act.4 Finally, the plaintiffs assert that, if they are forced to discontinue providing their services, the State may have achieved in practical terms what it could not constitutionally do otherwise--eliminate abortions in Louisiana.


The district court granted a temporary restraining order enjoining implementation of the Act on August 14, 1997. Act 825, according to the district court, "has the purpose and effect of infringing and chilling the exercise of constitutionally protected rights." The court therefore granted the plaintiffs' request for a preliminary injunction on January 7, 1998. See Okpalobi v. Foster, 981 F.Supp. 977, 986 (E.D. La. 1998). The following month, finding that the Act places an unconstitutional undue burden on a woman's right to abortion, the court converted the temporary injunction into a permanent injunction.5 The State timely appealed.

On appeal, a panel of this court upheld the injunction. Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999). The panel specifically addressed the Eleventh Amendment issue--whether, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), the state official defendants had sufficient "connection" to the act in question to overcome the Eleventh Amendment bar of suits against states in federal court.6 The panel determined that "the Governor and the Attorney General have powers and duties under state law sufficient to meet the minimum requirements under the Eleventh Amendment." Okpalobi, 190 F.3d at 346. The panel further concluded that the plaintiffs had standing to assert their rights and the rights of their patients. Id. at 350-353. The panel then concluded that a case and controversy existed between these plaintiffs and defendants and affirmed the district court's holding that Act 825 is unconstitutional in its entirety.

In addressing the issues before this en banc court, we first take note that the panel opinion's jurisdictional holding rested primarily on the Ex parte Young exception to the Eleventh Amendment. It is, of course, one of the purposes of taking a case en banc to clarify the law when a "panel decision conflicts with a decision of the United States Supreme Court" or the case "involves one or more questions of exceptional importance." Fed. R. App. P. 35(b)(1). Because the panel opinion erroneously applied established Eleventh Amendment jurisprudence, and because it was the focus of its jurisdictional holdings, we first address those panel errors before turning to the more basic question of whether this case presents an Article III case or controversy.


The crux of the Eleventh Amendment issue in this case is whether the named defendants, Louisiana's Governor and Attorney General, have the requisite "connection" to the statutory scheme to remove the Eleventh Amendment barrier to suits brought in federal court against the State. We first say a very brief word about the historical and constitutional forces that underlie the Eleventh Amendment.

The Eleventh Amendment was adopted in 1798 in direct response to the Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), holding that the State of Georgia could properly be called to defend itself in federal court against a citizen's suit. The alacrity with which Congress and the states approved the Eleventh Amendment to nullify Chisholm evinces the absolutely certain and fundamental respect the early fathers demanded the federal courts pay to the sovereignty of the several states.7 Although the attention given to the Eleventh Amendment has waxed and waned in the two hundred years since its adoption, the importance of it as a structural definition of our constitutional system has never been doubted. Thus, the Supreme Court recently reemphasized that this structural principle remains intact in Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2246 (1999). There, the Court stated that "as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratifications of the Constitution, and which they retain today."8 Indeed, it is "a settled doctrinal understanding, consistent with the leading advocates of the Constitution's ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Id. at 728.

It is against this background of the overriding importance of the Eleventh Amendment in limiting the power of the federal courts over the sovereignty of the several states, that we now consider whether the facts of this appeal can fit into the exception carved from the Eleventh Amendment in Ex parte Young, so as to allow the federal courts to enjoin Act 825.


The Eleventh Amendment bars suits by private citizens against a state in federal court, irrespective of the nature of the relief requested. See Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565 (1978). A plaintiff may not avoid this bar simply by naming an individual state officer as a party in lieu of the State. Yet, few rules are without exceptions, and the exception to this rule allows suits against state officials for the purpose of enjoining the enforcement of an unconstitutional state statute. This exception rests on the fiction of Ex parte Young--that because a sovereign state cannot commit an unconstitutional act, a state official enforcing an unconstitutional act is not acting for the sovereign state and therefore is not protected by the Eleventh Amendment. Indeed, the Eleventh Amendment inquiry today turns on a proper interpretation and application of the Supreme Court's holding in Young.

Young, in relevant part, reads:

If, because they were law officers of the state, a case could be made for . . . testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general . . . . That would be a very convenient way for obtaining a speedy judicial determination of . . . constitutional law . . ., but it is a mode which cannot be applied to the states . . . consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons . . . In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, . . . such officer must have some connection with the enforcement of the act, or...

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