This is a another chapter in the long standing effort by the Louisiana legislature to limit the availability of abortions in Louisiana. Previous efforts having run afoul of United States Supreme Court limitations on the direct burden states may put on access to abortions, the legislature passed a tort liability act to broaden potential tort recoveries against abortion providers and thus indirectly limit access to abortions. This is an en banc decision overruling a decision by a panel of the court. The court is divided in this case and the opinion has both concurrences and a dissent. The core issue is not the constitutionality of the underlying law, but whether plaintiffs took the correct route to challenge it.
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. 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 lower court found this law unconstitutional and enjoined its enforcement, which was upheld by a panel of this court. This law differs from the usual criminal laws enforced directly by the state in that it is enforced through private civil actions. The lower court and the panel treated this like the federal laws preempting state action. These have been applied to private tort recoveries, with the courts ruling that enforcement need not be by the state as long as the state is involved through its courts. The en banc court did not reach the constitutionality of the Act, although there is reason to believe that they would have found it unconstitutional had the review been procedurally correct. The court instead focused on whether the plaintiffs had standing to challenge the statute by suing the governor and state attorney general. The lower court found that their claim fell into the Ex parte Young exception to the 11th amendment bar on citizen suits against the states. In the absence of such an exception, plaintiffs may not circumvent the 11th amendment by suing state officials rather than the state itself. Ex parte Young creates a limited exception when the state officials being sued have a specific role in the enforcement of the law that plaintiffs seek to enjoin. To the en banc court, the key to Ex parte Young is that the officers being sued must the officers have "some connection with the enforcement of the act" in question or be "specially charged with the duty to enforce the statute" and be threatening to exercise that duty. The panel minimized this requirement, finding that the governor's and attorney general's general duty to uphold the laws was sufficient nexus for Ex parte Young. The en banc court focused on the ability of the governor and attorney general to act, finding that "...if there is no act, or potential act, of the state official to enjoin, an injunction would be utterly meaningless. Here, there is no act, no threat to act, and no ability to act."
The en banc court next turned to the classic Article III case and controversy problem: have plaintiffs stated a controversy and will the court's requested action redress their injury? The court found that there was no case because the defendants' actions are irrelevant to the claimed potential injury to the plaintiffs, and thus there is no possible remedy because enjoining the governor and attorney general will not affect the enforcement of the law - the law is enforced by private plaintiff's lawyers and judgments are enforced by collection actions by judges. Neither the governor nor the attorney general has any role in these proceedings. Thus the court denied that plaintiffs had standing to bring this proceeding, even if it was not barred by the 11th amendment. The opinion leaves the plaintiffs no recourse on their facial challenge to the law. The concurrence found that once the case failed on the Article III test, the court should not have addressed Ex parte Young at all, because it could not succeed in the absence of an Article III case or controversy. This leaves plaintiffs in a difficult position on their challenge to the law. Assuming there are no protections available under the Louisiana Constitution, they will have to wait until they are sued to assert any other challenges, such failure of equal protection. These would have to be based on discriminatory treatment as compared to other medical malpractice cases, which are covered by extensive tort reform legislation and are much more limited than the new abortion related tort. It is difficult to predict how such a challenge would fair since the Act is not so very different from conventional consumer protection tort laws.
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