Weeks v. Connick, 73-469
| Decision Date | 23 January 1990 |
| Docket Number | No. 73-469,74-2425 and 74-3197.,73-469 |
| Citation | 733 F. Supp. 1036 |
| Parties | Linda Faye WEEKS, Wife of Gary Albert Raimer and Gary Albert Raimer, on behalf of themselves and others similarly situated, Plaintiffs, v. Hon. Harry CONNICK, District Attorney of the Parish of Orleans; Hon. William J. Guste, Jr., Attorney General of the State of Louisiana and Dr. William H. Stewart, Director of Health and Human Resources Administration, Defendants. Calvin JACKSON, M.D. and Delta Women's Clinic, Plaintiffs, v. William J. GUSTE, Jr., Attorney General of Louisiana; Charles B. Odom, M.D., Louisiana State Board of Medical Examiners; Harry J. Connick, District Attorney; William J. Steward, M.D., Health and Human Resources Administration, individually and in their official capacities, Defendants. MOTHER DOE, Individually and on behalf of her minor daughter, Jane Doe, and on behalf of all others similarly situated, Plaintiffs, v. William H. STEWART, M.D., individually and in his official capacity as Commissioner of the State of Louisiana Health and Human Resources Administration; and Garland L. Bonin, individually and in his official capacity as Director of Family Services of the State of Louisiana Health and Human Resources Administration, Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
William E. Rittenberg, ACLU of Louisiana, New Orleans, La. (Lawrence Blake Jones, Scheuermann & Jones, New Orleans, La., of counsel), Rachael N. Pine, Trial Atty., Janet Benshoof, Lynn M. Paltrow and Kathryn Kolbert, American Civil Liberties Union (Jean M. McCarroll and Deborah Goldberg, Berle, Kass & Case, New York City, of counsel), for plaintiffs.
Jack Peebles, Chief Crim. Div., Office of the District Atty., New Orleans, La., John S. Baker, Jr., Trial Atty., Baton Rouge, La., Jenifer Schaye and Meredith H. Lieux, Asst. Attys. Gen., for defendants.
William J. Guste, Jr., Baton Rouge, La., pro se.
Before W. EUGENE DAVIS, Circuit Judge, and SEAR and FELDMAN, District Judges.
The District Attorney of Orleans Parish and the Louisiana Attorney General (collectively, the state) moved under Fed.R.Civ.P. 60(b)(5) to dissolve the 1976 injunction against enforcement of Louisiana's criminal abortion statutes. For the reasons set out below we deny the motion.
The four actions in which this court entered its 1976 injunction were filed after the United States Supreme Court decided Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Plaintiffs in these cases challenged the constitutionality of three Louisiana criminal abortion laws: La. Rev.Stat.Ann. §§ 14:87, :87.4, and :88. Section 14:87 is a blanket prohibition against the performance of all abortions. Section 14:87.4 prohibits the advertisement of abortion services. Section 14:88 prohibits the distribution and advertisement of abortifacients. The cases were consolidated and a three-judge district court held that the statutes at issue were unconstitutional and enjoined their enforcement. See Weeks v. Connick and consolidated cases (E.D.La. Jan. 26, 1976).
The state seeks an order dissolving the 1976 injunction under Fed.R.Civ.P. 60(b)(5) on grounds that the Supreme Court's decision in Webster v. Reproductive Health Services, ___ U.S. ___, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), significantly changed the decisional law upon which this court based its injunction. However, we need not reach this issue with regard to two of the three statutes because the issue has been rendered moot by the Louisiana legislature's implied repeal of § 14:87 and certain portions of § 14.88.1 With regard to § 14:87.4, prohibiting the advertisement of abortion services, we conclude that the decisional law has not changed so that it is inequitable to maintain the injunction.
Plaintiffs2 respond to the motion, first, by asserting that the Louisiana legislature explicitly and impliedly repealed §§ 14:87 and 14:88. If a statute is repealed then suits regarding its constitutionality are moot. Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414-15, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972).
The explicit repeal argument is without merit because the legislature never referred to the particular criminal abortion statutes in its later legislation regulating abortions. A repeal "is express when it is literally declared by the subsequent law." La.Civ.Code Ann. art 8 (West Supp.1989). The usual way the legislature expressly repeals a statute is for it to specifically identify in the new legislation the statute it is repealing. See, e.g., 1980 La. Acts 418, Section 2.
But plaintiffs' argument that the criminal abortion statutes were impliedly repealed by the later legislation is more substantial. Louisiana courts recognize a presumption against repeal by implication. See, e.g., State v. Jones, 220 La. 381, 56 So.2d 724, 726 (1952); Macon v. Costa, 437 So.2d 806, 809-10 & n. 3 (La.1983). The effect of this presumption is to require a court to make every effort to reconcile apparently conflicting statutes. Id.; Wenk v. Anisman, 211 La. 641, 30 So.2d 567 (1947). Louisiana courts, however, recognize repeal by implication when they find an irreconcilable conflict between two statutes.
In Macon v. Costa, 437 So.2d 806, 812 (La.1983), the court stated that where there was "an irreconcilable conflict" between two statutes one must prevail. In that case an earlier statute which set the term of office of board members was held "impliedly repealed" by a later statute which set a different term of office. Id. at 813.
In Wenk v. Anisman, 211 La. 641, 30 So.2d 567 (1947), the court applied the presumption against implied repeal in reconciling two statutes. The later-enacted statute was a general statute which provided procedures for the sale of a minor's property to a co-owner while an earlier, more specific, statute prohibited a tutor from purchasing the property of a minor he represented. The defendant in the case was both the minor's tutor and a co-owner of property with the minor. The court concluded that in enacting the subsequent statute the legislature did not intend to include tutors within the general statute and, therefore, the statutes did not conflict and the legislature did not impliedly repeal the earlier statute. Id. 30 So.2d at 571.
Furthermore, Louisiana has specifically provided for implied repeals. A Louisiana statute of general application provides: "Unless specifically provided therein, all laws or parts of laws in conflict with a provision of law subsequently enacted by the legislature are repealed by the law subsequently enacted." La.Rev.Stat.Ann. § 24:176(A).
After we enjoined the enforcement of Louisiana's criminal abortion statutes the legislature enacted a series of statutes containing detailed regulations governing abortions. See 1978 La. Acts 435; 1980 La. Acts 418; and 1981 La. Acts 774. Each act contained provisions stating that, "All laws or parts of laws in conflict herewith are hereby repealed." Id.
A review of the later regulatory statutes is necessary to determine whether they conflict with the earlier criminal abortion statutes at issue here. The 1978 act required abortions to be performed by a physician, required informed consent for an abortion and established reporting requirements for abortions. Both the 1980 and 1981 acts: 1) restricted post-viability abortions; 2) required parental or court consent before a minor could receive an abortion; and 3) required physicians to keep records of and report abortions. The 1981 act required physicians to obtain informed consent. Each of the above acts also contained many other provisions regulating abortion which were later declared unconstitutional. See Margaret S. v. Edwards, 488 F.Supp. 181 (E.D.La.1980), aff'd, 794 F.2d 994 (5th Cir.1986) (1978 act); Margaret S. v. Treen, 597 F.Supp. 636 (E.D.La. 1984), aff'd, 794 F.2d 994 (5th Cir.1986) (1980 and 1981 acts).
Plaintiffs contend that the later acts regulating abortion are clearly inconsistent with a criminal prohibition of abortion. The state argues that regulation of an activity is not inconsistent with the prohibition of it. However, it is clearly inconsistent to provide in one statute that abortions are permissible if set guidelines are followed and in another to provide that abortions are criminally prohibited. For example, the 1978 act provided, in part:
1978 La. Acts 435 (emphasis added). The 1981 act provided, in part:
1981 La. Acts 774. The above excerpts clearly indicate that the statutes permit abortions if they are performed by a physician who follows specified procedures. A blanket criminal prohibition of abortions and the use of abortifacients is inconsistent with these regulations.
The state argues, however, that, notwithstanding the conflict, we are bound by legislative statements independent of the regulatory acts that show an intent not to repeal the earlier legislation. Several years after passing the abortion regulations, the Louisiana legislature enacted an "expression of intent"3 and a non-binding resolution4 indicating a desire to enforce the criminal statutes.
Even if the legislative intent to criminally prohibit abortion was clear at the time the abortion regulations were passed, the question remains whether this subjective desire not to repeal the criminal statute has any effect when a later statute conflicts with that earlier legislation. Allowing such a practice would undermine the policy...
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