Okpalobi v. Foster

KING, Before JOLLY, Judge, Chief HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, EMILIO M. BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.* * judges Fourteen participated judges this en banc join Judge (Par- Four Parker’s dissent proceeding. judges join Judge Seven Jolly’s ker, Wiener, Stewart, Dennis). Judge full, opinion in regard both with standing King joins Judge Higginbotham’s opinion. and the Eleventh analysis (Jolly, However, fully scope understand the Davis, Jones, Smith, Barksdale, Garza, Emilio partial Judge Jolly’s opinion, concurrences DeMoss). judges join Three Judge Jolly’s the reader opinions referred to the opinion regard standing only (King, Judges Higginbotham and Benavides. and, Higginbotham, Benavides). part, JOLLY, E. Judge: GRADY Circuit I Sitting court, an en as banc we consider Ifeanyi Dr. Charles Anthony Okpalobi whether properly en- district (“Okpalobi”), joined through intervention joined “operation and effect” of the by five health care climes physi- and other issue, Louisiana state tort statute at cians, individuals, and per- businesses who provides a private cause of action against form abortions in the Louisiana,1 State of medical doctors performing abortions. Al- challenge the constitutionality of La. R.S. though, in this facial attack on the consti- Ann., (West § tit. 2800.12 Supp.1999), statute, tutionality of the consideration of or, more commonly, “Act 825.”2 The de- the merits may strong appeal Foster, fendants are Mike Governor of some, we are powerless to act except to Louisiana, and Ieyoub, Richard Attorney say that we cannot act: these General of Louisiana.3 patients No have no controversy case or with these plaintiffs appear parties in this suit. defendants, the Governor and Attorney Act Louisiana, provides General of to women who consequently undergo we lack a private Article III abortion remedy tort decide this case. perform Seven doctors who members of this en banc abortion. It exposes court conclude those panel doctors to was in seri- unlimited tort error, dissent, liability ous any as indeed is the for damage by caused finding that presents this ease an abortion parte procedure Ex to both mother and Young exception to the Eleventh “unborn Amend- child.” Damages may be re- duced, ment immunity court, from suit in (and federal but not eliminated altogether defendants, which these perhaps the Governor and not at all with respect any Attorney Louisiana, General of Ac- enjoy. damages fetus), asserted on behalf of the if cordingly, reverse, vacate, we and remand pregnant signs woman a consent form entry for of a judgment of prior dismissal. procedure. the abortion 1. significant Because we no damages find distinction or occasioned the unborn child positions between the Okpalobi of Dr. and the or mother. intervening physicians appeal, clinics and (3)"Unborn on child” means the unborn off- "plaintiffs” opinion we use in this to include spring of beings human moment all Okpalobi. intervenors well as Dr. conception through of pregnancy and until termination of the pregnancy. 2. Act 825 states: C.(l) signing The of a form the consent prior mother to the abortion does not ne- Liability Section for 2800.12 termination action, gate this cause of but rather reduces of a pregnancy recovery damages of to the extent that Any person performs A. who an abortion of content the consent form informed is liable to the mother of the unborn child type mother of risk of injuries of any damage precipitated occasioned or loss seeking or (2) for which she is to recover. abortion, by the which aсtion survives for a governing laws malprac- The medical period years of three from the of the date preemptive tice liability or provid- limitations of thereof discovery damage of the with a ed in Title 40 of the Louisiana Revised period years of ten from the date of the Statutes of applicable 1950 are not to this abortion. Section. purposes B. For of this Section: (1) "Abortion” means the termi- deliberate 3.Although the record Attorney shows that the nation of an pregnancy intrauterine human General of ovum, party Louisiana was named as after fertilization of a female citation, and was person, self, although served with and he including pregnant woman her- party is named as a all with an of defendants' pro- intention other than to orders, pleadings, injunction duce a in the live or to and on the birth remove a un- dead appeal, born notice appear child. he does not as a (2) "Damage” party special on the gen- includes all docket sheet in this court. He damages eral which are appellate juris- in an nevertheless has invoked recoverable tort, survival, negligence, intentional party diction this court and is to this wrongful injuries appeal. death action for suffered ques- act in “connection” consti- sufficient Act 825 argue plaintiffs The Eleventh tion to overcome a woman’s on burden” “undue tutes an court.6 in federal states of suits bar thus abortion to obtain

right Planned, Governor that “the panel determined The Parent- under unconstitutional powers Attorney General and the 833, 112 S.Ct. Casey, 505 hood v. meet law sufficient under duties plain- The L.Ed.2d under requirements minimum Act will force claim further tiffs Okpalobi, Amendment.” Eleventh providing cease in Louisiana physicians concluded further panel The at 346. F.3d to women services abortion assert standing plaintiffs had damage claims to civil exposure potential pa- their rights of and the rights their Finally, plain- Act.4 by the authorized then The panel at 350-353. Id. tients. to dis- that, are they if forced assert tiffs controversy ex- that a case services, concluded the State their providing continue and defen- between these isted terms what practical achieved may have court’s the district and affirmed dants otherwise— constitutionally do it could unconstitutional Act holding that Louisiana. abortions eliminate entirety. its II this en issues before addressing the note that court, take we first banc temporary granted district court rest- holding jurisdictional opinion’s panel enjoining implementation restraining order Young excep- parte on the Ex primarily ed Act August on of the Act is, It Amendment. Eleventh tion to the court, “has the to the district according taking a course, purposes of one chill infringing and and effect purpose when clarify the^ law banc to case en constitutionally protect the exercise ing with a decision decision conflicts “panel granted therefore rights.” ed or the Supreme Court” States the United preliminary request plaintiffs’ the questions of more one or case “involves Okpa 7, January 1998. See injunction on Fed.RApp.P. importance.” exceptional Foster, 986 F.Supp. lobi v. 981 35(b)(1). erro- panel opinion Because the month, find (E.D.La.1998). following Eleventh established neously applied unconstitutional places the Act ing that it and because jurisprudence, Amendment to abor right woman’s on a undue burden holdings, jurisdictional of its the focus was temporary tion, court converted panel errors bеfore those we first address injunction.5 permanent into injunction question basic to the more turning timely appealed. The State III an Article presents this case whether upheld this panel of appeal, a On controversy. or case Foster, 190 Okpalobi v. injunction. Cir.1999). specifi- The panel F.3d 337 Ill Eleventh cally addressed Eleventh Amendment crux of the Young, whether, parte Ex under issue— the named whether in this case is issue L.Ed. 714 52 28 S.Ct. 209 U.S. At- defendants, Governor Louisiana’s had defendants (1908), state official any law or suit in to extend eighty of the construed percent provide over 4. Plaintiffs against one prosecuted equity, commenced or in Louisiana. services rendered abortion another by Citizens United States State, subjects of For- or Citizens or nor party, neither district court XI. The amend. eign U.S. court, State.” Const, an Article question of raised district interpreted amend- Supreme Court has controversy the Eleventh or III case brought a bar on a suit also constitute ment to . Amendment. in federal own against State its citizens Louisiana, U.S. v. court. See Hans “The states: Judi- 6. The Eleventh Amendment (1890). 504, 33 L.Ed. 842 shall power United States cial

4H General, torney requisite have the against “con- It is background this of the over- statutory nection” to the scheme to remove riding importance of the Eleventh Amend- the Eleventh Amendment barrier to suits ment in limiting of the federal brought in against federal court the State. courts over the sovereignty of the several say very We first brief word about the states, that we now consider whether the historical constitutional that un- forces facts of appeal can fit into the excep- derlie Eleventh Amendment. tion carved from the Eleventh Amendment parte in Ex Young, so as to allow the The Eleventh Amendment was federal enjoin courts to Act 825. adopted in response direct Supreme Court’s decision Chisholm (2 Dali.)

Georgia, IV L.Ed. 440 (1793), holding the State Georgia A could be called to properly defend itself in federal court against a citizen’s suit. The The Eleventh Amendment bars with which alacrity Congress and the suits private citizens a state in states approved the Eleventh Amendment court, federal irrespective of the nature of nullify Chisholm evinces the absolutely the relief requested. Finney, See Hutto v. certain and fundamental respect early 678, 700, U.S. fathers demanded the federal pay courts L.Ed.2d 522 A plaintiff may not sovereignty of the several Al states.7 avoid simply by this bar naming an individ though given the attention Eleventh ual party state officer as a in lieu of the Amendment has waxed and waned Yet, State. few rules are without excep years two hundred since its adoption, the tions, exception and the to this rule allows importance of it as a structural definition suits against state officials for the purpose system our constitutional has never enjoining the enforcement of an uncon Thus, been doubted. stitutional state statute. This exception reemphasized recently that this structural rests on the parte fiction of Ex Young— principle Maine, remains intact in Alden sovereign because a state cannot com 706, 713, act, mit an unconstitutional a state official (1999). There, L.Ed.2d 636 the Court enforcing an unconstitutional act is not stated that “as the Constitution’s struc acting for sovereign state and there ture, history, and its and the authoritative fore is not protected by the Eleventh interpretations by clear, this Court make Indeed, Amendment. the Eleventh the immunity States’ from suit a funda inquiry today turns on a prop aspect mental sovereignty of the which the interpretation er application and of the enjoyed States before the ratifications Supreme holding in Young. Court’s Constitution, the they and which retain Young, part, relevant reads: today.”8 Indeed, it is “a settled doctrinal understanding, If, consistent with leading the they were law officers of the ratification, state, advocates Constitution’s a case could made for ... be that sovereign immunity derives not from testing the constitutionality of the stat- the Eleventh ute, Amendment but from injunction the an suit brought original structure the against them, Constitution it then the constitutionality 728, 119 self.” at Id. every S.Ct. 2240. passed by act legislature the Supreme 7. The Court decided residuary Chisholm on 8. “The thus 'a States retain and 14, later, February sovereignty.’ They relegat- inviolable 1794. Three weeks are Con- not provinces ed corporations, gress Amendment, political of mere approved role the had Eleventh dignity but retain the ... of year requisite and within one the number of 715, sovereignty.” Id. at 119 S.Ct. 2240 states had ratified the amendment. 39, (C. (quoting p. The Federalist No. 245 (J. 1961) Madison)). Rossiter ed. state, the effect, of which against the suits against a suit tested could be cannot of the United States circuit court attorney general.... and governor consistently with the elev- take way for very a convenient be That would 518, 18 at 169 U.S. amendment.” enth determina- judicial speedy a obtaining suit that “a holding After 418. S.Ct. ..., but it law constitutional of ... tion pre- purpose of for the individuals against applied to the which cannot be ais mode a state as officers of venting them the funda- consistently with ... states to enactment an unconstitutional enforcing cannot, they with- principle mental plaintiff is rights of the injury into assent, brought be out their within the against the state a suit ... persons private the suit of court at amendment,” meaning eleventh] of [the party state an officer of the making In the case jurisdiction of assumed enjoin the enforce- in suit defendant at the law. Id. and struck down be unconstitu- alleged of an act ment 418.9 S.Ct. have some officer must tional, ... such with the enforcement connection ques- not raise the Smyth did Although making ... act, merely it is or else required a connection of how close tion party. and officers defendant state between act, (emphasis enforcement of at 209 U.S. principle when on the added). Court elaborated year following presented the question was Young grew out of two principle The There, faced with the court in Fitts.10 was cases, under- and can best be predecessor Alabama challenge a constitutional Ames, Smyth by reference stood rates certain maximum prescribed act (1898), 42 L.Ed. S.Ct. U.S. river on a charged Tennessee of toll 516,19 McGhee, 172 S.Ct. and Fitts U.S. that, if maxi- provided The act bridge. begin'with a We 43 L.Ed. 535 exceeded, aggrieved mum rate was decisions before these two discussion of in- twenty per party could recover dollars its progeny. and addressing at the offender. fraction from arguing plaintiffs, 269. The B “arbitrary” of toll were that the rates challenged the Smyth, plaintiffs depriva- and constituted “unreasonable” regulat- act constitutionality a Nebraska governor property, sued tion of transportation of rates for the ing railroad as defendants attorney of Alabama general for viola- establishing penalties freight and de- injunctive relief. requested authorized act. The statute tions of the dismissed “that the bill be fendants moved fines of substantial the assessment was one the suit upon ground lia- private addition state authorities state, by the prohibited Smyth, bility. See Id. at States.” of the United constitution officers of named 518, 19 S.Ct. 269. The defendants as defendants. the State against the concluding that the suit the federal court’s contested effec- attorney general was are, governor suits grounds “that these on the challenged the stat- Smyth tween the defendants opinion that panel suggests 9. The ute. Id. special proposition no con- the stands for defendant required a between nection is Okpa- challenged sufficiency See of the official the statute. enforcement lobi, However, excerpt was the defendant state officials F.3d at 344. vested in the clear, clearly Smyth. It is howev- quoted indicates Smyth above never addressed er, Smyth possessed duty en- had a defendants in officers that the that the defendant defen- powers in the not question and seems enforcement found statute in force the Smyth, 169 us. See Smyth case before dants in the panel's the conclusion undermine S.Ct. 418. relationship” U.S. at be- "special did a not involve a tively suit the state against purpose and thus testing of the constitutionality Amendment, barred the Eleventh the ... statute then the constitution- Supreme Court reasoned that neither the ality every act passed by legisla- the governor attorney general nor “ap- ture could be tested a against suit pear[s] charged by to have been law with governor and the attorney general, any special duty in connection with the upon based theory former, act.” Id. at 19 S.Ct. 269. The court state, as the was, executive of the in a distinguished other cases in which it had sense, general charged with the execu- jurisdiction (including exercised Smyth) by laws, tion of all latter, its and the as noting that “the defendants in each attorney general, might represent state, those cases were officers of the spe- state in litigation involving enforce- cially charged execution of a state ment of its statutes. This would be a alleged enactment to be unconstitutional.” very convenient way for obtaining a added). Thus, Fitts, (emphasis Id. speedy judicial ques- determination of Supreme Court require- articulated the tions of constitutional law ... but it is a ment that there be “close” connection mode which cannot be applied to the a “special relation” between the statute states of the Union consistently with the and the duty defendant state officer’s be- principle cannot, fundamental they fore the Eleventh Amendment bar could assent, their without brought into be overcome: court at the private suit of persons. There is a wide difference between a Id. at Thus, 19 S.Ct. 269. illumi- Fitts against individuals, suit holding official nated important precept that allowing

positions state, prevent them, under state officers to be sued in lieu the State under the sanction of an unconstitutional absent “special some connection” would statute, from committing by posi- some permit exception the narrow to swallow tive wrong act a or trespass, suit fundamental, constitutionally-based merely officers a state to test rule. It upon was foundation statute, the constitutionality of a state in Young doctrine was constructed. of which enforcement those officers C only will act judicial formal proceed- ings in the courts the state. In the In Young, challenged a case, present said, we neither of statute that Minnesota created railroad the state any special officers named held commission, which executed an order fix- relation to particular alleged statute ing the rates various railroad companies to be They unconstitutional. were could charge for the carriage of merchan- expressly to see to its directed enforce- dise. U.S. at S.Ct. 441. The ment. legislature delineated specific penalties 529-30, Id. at S.Ct. 269 (emphasis add- for violations of regulations, such railroad ed). The court rationalized this relation- including possible fines and imprison- ship requirement by reference to the core ment.11 attorney general, Edward T. constitutional principle embodied the Young, was named as a defendant Eleventh Amendment: suit, challenged the constitutionali- If, they were law ty officers series of state regulating acts state, a case could be made for the companies.12 railroad Specifically, provided dollars, "It was 'any in the act by imprisonment that rail- or Id. at 11. officer, company, any agent, road 28 S.Ct. repre- or 441. or thereof, sentative any provi- who shall violate "For complainants allege this reason the 12. act, guilty sion of this felony, shall be of a that the above-mentioned orders and acts ... and, thereof, upon pun- conviction shall be railway company denied to the ... and its by ished exceeding a fine not five thousand equal protection ... stockholders the of the who, as officers that individuals relief sertion “[appropriate requested duty state, de- action of the some the are clothed with against the injunction of 441. 28 S.Ct. Id. at laws Young.” of the fendant enforcement regard to in the had court that the federal Young asserted and are state, who threaten of the and attorney gen- as him over jurisdiction no either proceedings, to commence about effect, was, in the suit eral nature, to enforce civil or criminal aof and barred Minnesota the state against an unconsti- [by] affected parties against Neverthe- Amendment. Eleventh by the act, Federal Con- violating the tutional temporary a less, court issued the federal by a Federal stitution, enjoined may be him enjoining Young, injunction against action. such equity from court instituting action taking or “from and penalties the enforce proceeding add- 155-56, (emphasis S.Ct. Id. at at act.” Id. in the specified remedies ed). such Young possessed Finding that court the Young ignored 441. 28 S.Ct. the acts authority over enforcement a mandamus immediately filed order and threat clear recognizing his and question, rail- compel the court to in state action alleged authority under said to exercise law. the state with compliance road’s law,13 court con- the state unconstitutional by the feder- contempt held Young was was Amendment that the Eleventh cluded then custody. He taken court into al and authorizing the In the suit.14 no barrier Unit- corpus the for habeas petitioned distinguished court Young, the against suit Court, asserting Supreme ed States no finding of the earlier the violated injunction court the federal case, that, pen- in that the noting Fitts The Amendment. Eleventh to be the act were disobeying for to determine alties required was thus Court officer, could were over- a state who Young, as the individuals whether collected despite Elev- court federal had be sued in of the state officer charged “[n]o bar. enth Amendment recovery of with any official connection 441. Id. at penalties.” that the Eleventh such The determined court court a federal did bar Thus, the doctrine Young solidified against the enforcement injunction in federаl be sued officers could state attor- Young, It held as state statute. Amendment, while the Eleventh despite enjoined could ney general, properly require- simultaneously emphasizing enforcing unconstitu- court from federal connec- have the officers “some ments that the railroad. penalties tional state act” in tion with enforcement stated: holding, In the court so with “specially charged question or be we referred authorities The various threat- and be the statute” duty as- to enforce justification ample to furnish 441. at laws, prop- Id. deprived it them their ..."Id., at process of law erty due without full, the said: 14. In S.Ct. party the state a making officer of also observed:

13. The Court enjoin enforce- suit defendant alleged to be of an act unconstitution- attorney ment question whether remains al, state, must have plain such officer had, it is so far general by the law acts, with any duty with connection some as these rate concerns enforcement of act, party merely making him it By or else regard of the same. to the enforcement state, thereby representative of the regard- aas that he conduct seems his it official party.... attempting to state make his duty with office ed it connected officer, by virtue of fact that the obey the compel company to commodi- office, has some connection act, proceedings to his ty for he commenced act, important and immediately after such enforce obedience enforcement material issued, fact ... being at the risk of injunction added). (emphasis contempt by doing. Id. guilty so found 157, ening duty. to exercise that Id. at meneement of enforcement proceedings by 158, 28 S.Ct. 441.15 the official.16 recently,

More other circuit courts have applied Young guidelines adjudi when D cating the Eleventh question Amendment Young was decided years almost 100 raised in this appeal. In Children’s ago. years From its earliest until Deters, (6th Healthcare v. 92 F.3d 1412 present, spawned it has numerous cases Cir.1996), the plaintiffs brought a civil upholding, explaining, recognizing its rights action against the Ohio Attorney principle: fundamental that the defendant General and state prosecutors. The suit state official must have some enforcement challenged statutes provided that exemp connection challenged with the statute. tions from the duty provide adequate years after Young, Two the care for children persons who treat Court Western Telegraph Union Co. v. by children spiritual means. The court Andrews, 286, 216 U.S. 54 rejected federal court over the (1910), again L.Ed. 430 upheld a suit matter, reaffirming that “Young does not against a enjoined state official that en apply when a defendant state official has forcement of a ques state The act in act. neither enforced nor threatened to enforce tion, regulated paid by fees to be allegedly unconstitutional state stat foreign corporations, that declared the de ute.” Id. at 1415. requirement that “would, fendant state officials unless re there be some actual threatened en court, strained the order of the institute forcement action Young before applies has actions, they numerous had threatened been repeatedly applied the federal do, for the recovery of the penalties courts. See also 1st Westco Corp. v. Id. at aforesaid.” 30 S.Ct. 286. Con School Dist. Philadelphia, 6 F.3d cluding that the Young recent decision was (3d Cir.1993) (citing Rode v. Dellarci “precisely applicable bar,” the case at (3d prete, 845 F.2d 1209 n. 9 Cir. found sufficient connection be 1988)); Long v. Van de Kamp, 961 F.2d tween the defendant state officials and the Cir.1992); Kelley v. Metro statute, challenged stating: politan Educ., County Bd. 836 F.2d specifically statute charges (6th Cir.1987). 990-91 prosecuting attorneys with the duty of Other federal courts have invoked bringing actions to recover the penalties.- Young’s, rationale ascertaining when bill, It is averred admitted applicability of this narrow Eleventh demurrer, they that threatened and exception. In Gras v. Ste- about to

were commence proceedings for vens, F.Supp. (S.D.N.Y.1976), purpose. Judge Friendly rejected the notion that a Union, Id. therefore, Western governor’s reinforced general duty to “take care that interpretation Young requires the laws faithfully are executed” is suffi- both close connection between official cient Young connection under and Fitts to and the act and the threatening or com- dissolve the Eleventh Amendment bar. 15. We note the reliance Pfister, dissent's on Justice 16. See also Dombrowski 479, 483, (1965) Young attempt Harlan's dissent 14 L.Ed.2d 22 in its to show ("In ..., parte Ex Young the fountainhead flatly wrong that “it is to assert injunctions federal against prosecutions, Although and Fitts are consistent.” dissents the Court characterized its may some, scholarly persuasive they proper exercise in broad terms: it would be binding any. are not law to The dissent’s justified where state officers '... threaten and upon suggests reliance Justice Harlan’s words are about proceedings, to commence either of Harlan, they, simply like Justice are di- nature, a civil or criminal to enforce principle senchanted with the fundamental act, parties [by] affected an unconstitutional ’ Young. articulated in ”). violating the Federal ... Constitution nothing do have cutors “[i]n that court noted The 1151-52.

Id. at therefore public officials against the Relief parte Ex extend would view our civil-liability even if the pointless be the would Su- anything beyond Young at 875. Id. problematic.” were subsequently provisions has or intended preme Court Id. at 1152. held.” E Fourth, Ninth, Elev 2001, the As as late in Supreme Court’s decision rearticulated Circuits Seventh enth and prede of its light in Young, the appraised Griffith, Lytle v. Young. criteria of

the progeny, and its and Fitts Smyth cessors (4th Cir.2001), the 404, 412 240 F.3d a to create understood properly thus is the case to Circuit, remanding in Fourth bar general to the exception precise the defendant Gover whether determine This fora. in federal suing states against to the connection requisite the nor had named when the only applies exception Young law, that “[t]he noted challenged connec have some state officials defendant limited, however, by re its exception and act the with the tion enforcement officials bear that named quirement pro are and about “threaten commence challenged statute.” to the special relation the to enforce unconstitutional ceedings” (9th Brussa, F.3d 984 In Snoeck 155-56, 28 S.Ct. Young, 209 U.S. act. the that Cir.1998), Circuit found the Ninth a claim barred Eleventh application consider the We now on Judi Commission Nevada in the case facts to the Young principle compli that emphasizing Discipline, cial us. before requirements with the ance law de under state “must determined V cir and under what whether on

pending has a defendant particular cumstances and how to read inquiry is present challenged state law.” with the connection that the defendants requirement apply that, concluded The court at 986. Id. with have connection some enforce- law, has the Commission Nevada “[u]nder question Specifically, Act. ment therefore, it power, no enforcement whether court is this en banc raised before enforcement has no connection that the defen- Young fiction requires Ex under required as challenged law some enforcement official have dant state at 987. Young.” Id. Parte stat- particular respect -powers need issue, the official ute at whether Moreover, Associ- in Medical Summit only powers no enforcement have such ates, 180 F.3d Pryor, P.C. v. authori- general charged with need be note Cir.1999), Circuit took the Eleventh that all of the to see responsibility ty provision civil enforcement of the private faithfully executed. state be laws and stated question of the statute Young cannot paHe of Ex “the doctrine A sov- Alabama’s operate exception out, pointed we As has immunity where no defendant ereign it Young principle teaches enforcement any connection duty to see merely general Finally, the at 1341. law.” challenged Id. implemented state are laws of the Ryan, Hope Clinic Circuit Seventh “connection,” (7th Cir.1999), required on substantiates vacated F.3d the stat duty to enforce particular but the grounds other will and a demonstrated (2000), question ute in also ob- 147 L.Ed.2d duty duty. For ingness exercise was to question served that statute to constitute general laws found private litigation: “[T]he be enforced “include!] connection, it must sufficient prose- Attorneys local states’ General and the right to enforce the Eleventh Amendment.” Id. at 347.19 The state, course, including, statutes of the basis for this conclusion was the assertion Id. question the in ...” act that a mere duty uphold the laws of the added). Thus, (emphasis any 441 probe sufficient Young under to autho Young exception into the existence of a rize an Eleventh Amendment waiver. The (1) gauge ability should the of the official panel stated that its conclusion is discerni the statute at enforce issue under his ble from proper reading of Young and (2) statutory or powers, constitutional and Smyth, noting that, while the Fitts Court the willingness demonstrated of the official required a “close” connection or a “special to enforce the statute.17 charge” between the statute and the state Although the panel opinion addressed Young officer’s duty, the adopted the connection of the defendants the the more requirements relaxed connection question, law it pursued in nevertheless a outlined in Smyth.20 different, believe, and we seriously errone essence, In panel the suggests panel ous course. The applied a two-part Fitts, there is some conflict between on the formula to assess whether sufficient “con hand, one Smyth Young, and and noting exists nection” to warrant waiver of the that “[t]o the extent that there is tension (1) Eleventh protection: between Fitts’s focus on the state officials’ analysis powers of “what the defendants express power enforcement and the later wield to enforce law in question,” the and Young, articulation in (2) we are by controlled consideration of “the nature of the law Smyth the doctrine and unequivocal the and its place on the continuum between holding Young that a public state officer’s regulation private and con- action.” Ok palobi, nection with address, 190 the enforcement of F.3d at 346.18 We in the chal- turn, lenged act the in out part panel’s general ‘[arise] flaws each can of the the ” analysis. law ... long so Id. at 344 as it exists.’ Young, (citing 209 U.S. at 441). not, however, We do find this ten- sion in the Smyth-Fitts-Young triad. noting

After at the outset that “Act in face, resolution each of on its these three does not cases direct the or its was State dictated, anything,” application officers to do of a panel differ- never rule, legal concluded “that ent particular theless but Governor and stat- Attorney General powers have utes and the and connection to those statutes duties under state law sufficient to meet of the defendant state officials. The chal- requirements minimum under in Young and Smyth lenged statutes review Lefkowitz, (S.D.N.Y.1974), Our F.Supp. Court's abor- that, notes, tion cases shows as the Rhodes, dissent Corp. and Allied Artists Pictures v. apparently Court has standing relaxed certain (S.D.Ohio 1979), F.Supp. 560 679 F.2d aff'd requirements in the abortion au- context and 1982). Cir. pre-enforcement thorized challenges to crimi- However, nal abortion statutes. none of panel governor's 19. The relied on the consti- intimates, suggest, these cases that the as the dissent duty "faithfully support tutional the consti- requirements parte Young of Ex state,” tution and laws La. Const art. any way in been relaxed or vitiated in the IV, 5(A), § attorney general’s Indeed, abortion context. none of the Su- institute, right prosecute, "to or intervene preme expressly Court abortion cases address Id., in proceeding^]” civil or action art. requirements Young of Ex Parte in the IV, Okpalobi, § 8. See 190 F.3d at 346. surprising abortion context. This is not cases, that in all of the abortion unlike the us, panel case 20. The noted capa- before had clear Court’s defendants state- enforcing challenged bilities ment that Smyth statutes. doctrine of "[t]he v. Ames was neither nor overruled doubted in the Fitts panel "glean[ed]” 18. The test Gras case.” 209 atU.S. 28 S.Ct. 441. Stevens, Nat'l Mortgage Federal Ass’n Fitts, noted distinction enforcement had (wherein the defendants acts) clearly the facts in Fitts were railway stand wherein over powers Smyth in Fitts facts distinguished the statute from the contrast sharp Co., no & Trust granted Farmers’ Loan (wherein were Reagan v. the defendants re- whatsoever powers 38 L.Ed. 1014 enforcement statute).21 Fitts involved spect (1894): single rates for of toll establishment only wrong [Smyth Reagan] the self-en- was question The act bridge. was the trespass involved injury or bridge operators if the forcing; of suits commencement threatened toll, enti- the statute an excessive charged rates, and the as to the statute enforce twenty dol- to sue for aggrieved the tled in was commencement threat of such Young Thus, in charac- the court lars.22 to au- regarded as sufficient each case in Fitts statute as one which the terized to injunction issuing the of thorize any official the had officer of [n]o to The threat com- the same. prevent recovery of such with the connection such circum- those suits under mence who state officer As no penalties.... necessarily therefore held stances was any close official party a was ‍​‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌​​​​​​‌‌‍made bore threatened other equivalent be tolls, fixing the act connection with the of a property wrong injury defen- party officer a making of such the been held which had theretofore plaintiff simple effort to test was dant the suit to authorize sufficient way, in that constitutionality of such act the officer. it principle upon no and there is Young, 441.23 at superintendent A state be done. could the obvious еnforce Considering made might as well have been of schools Young defendant potential that the ment party. statute, pan had under Minnesota differentiating In Id. at 28 S.Ct. 441. connec of the “some interpretation el’s authority of the officials duty” “general only an necessitating language tion” as Fitts, found was insuffi- which the court in undefined, inchoate, duty to see general the Eleventh to dissolve cient the state are en all of the of laws Young bar, “[t]he noted that Court interpreta any reasonable forced exceeded in the Fitts case occupied posi- officers Young does Indeed, Young. tion of duty regard at all with having no tion in “special charge” language reject 441. at act ...” 209 U.S. Fitts;24 instead, Young merely allows the approval with court then referenced sentence, immediately following in the recognized 23. The specifically The Fitts 21. distinguishing paragraph, in the facts reads: difference same critical finding defendants Smyth and in duty being specially charged with the charged "specially with the case were sufficiently appar- to enforce the statute Fitts, challenged statute. execution” of the general duty ent such exists under when It would seem U.S. at 19 S.Ct. 269. law, though authority even such of some Fitts, Smyth and distinction between that this particular authority be found in the is not to Court, ques- calls into noted might reason of the act. some It exist Smyth understanding of as panel's tion the general the officer to enforce it duties of interpretation Young as im- support for its a law of the state. legal than Fitts. posing a lesser standard charged” "specially Young of the This use in holding language from Fitts reinforces challenged Smyth autho- The statute did clearly suggests that the court overcharges, Fitts only private suits for rized not connection” be with- not intend the system “some enumerated substantial but also authority the statute. out to enforce escalating paid to the state. fines Thus, S.Ct. 418. See 169 U.S. Young especially the Court’s 24. We note liability addi- to the state in statute involved charge” language "special adoption of the liability. system A private tion to contractual charged being specially from Fitts: "The power in the implies an of fines enforcement sufficiently duty the statute enforce state. “special charge” to be drawn implicitly laws of the state satisfies requirements state, from the laws of the rather than Young.

requiring that it be explicitly stated in the sum, Young does not minimize Thus, challenged statute. the correct in the need to find an actual enforcement terpretation concludes that no connection—some enforcement power or special charge such need be found directly enjoined act that can be the de —between challenged in the statute req to meet the fendant official and challenged statute. uisite long “some connection” so as there is Instead, it provides that this connection sufficient indicia of the defendant’s en can be found implicitly elsewhere powers forcement found elsewhere in the state, laws of the apart from the chal laws of the state.25 This interpretation statute, lenged so long as those duties support finds following language have the same effect “special as a charge” Young: in the statute. not, however, It has been held that it necessary duty was that such should be

declared in the same act which is to be cases, true, enforced. some it is the We turn now to the prong second duty of enforcement im- has been so panel’s place test —the of Act 825 on a posed ... may but that possibly make public-to-private “continuum.” panel The clear; duty more if it otherwise ex- concluded that Act 825 implicates “public” equally istís] it is efficacious. action because purpose “the and effect of 209 U.S. at 28 441. the Act prevent is to women from obtain ing legal Thus, abortion.” Okpalobi 190 panel erred not F.3d at recognizing 347. This continuum “special that Fitts’s element was charge” requirement derived from an Allied Artists part Young’s Corp. essential Pictures holding. See Rhodes, Gras, (character- (S.D.Ohio F.Supp. 1979), also F.Supp. at 1151 (6th Cir.1982) izing the statute in 679 F.2d 665 n. “implicitly as aff'd charging] attorney (holding that general] by statutory regulation [the pri stat- duty ute with the collecting contracting vate allegedly respect with to movies tax.”). unconstitutional failing This led to amounted to regulation state pro movie panel’s distributors). conclusion that the general ducers and Notwithstanding charge of governor and attorney gen- equivocal nature of Allied Artists’ implement eral to and enforce all of the “continuum” holding,26the majority seized apparent duty when such exists proper party under the him a defendant in a civil general authority rights Young, attacking of some law ...” constitutionality action 209 U.S. at of a concerning private 441. state statute ... civil actions. F.Supp. at 1152. essentially This conclusion is the one by Judge Friendly reached in Gras: 26. Allied Artists states: argument although would continue that problem Thus the now before the Court Fitts v. McGhee held that the bar of the properly placing becomes that of this case Eleventh Amendment could not be avoided on the continuum. Defendants would ar- by suing state officers in the absence of gue purports regulate that since the Act "any special part relation” on their "to the rights private parties, contractual between particular alleged statute to be unconstitu- namely picture motion distributors and ex- tional,” this was altered the statement in hibitors, potential there is no realistic parte Ex Young [regarding “some connec- governor the defendant would act to en- In our view tion”]. this would extend Ex statutory rights force the which could be parte Young beyond anything which the Su- by private vindicated action. Plaintiffs on preme subsequently Court intended or has alleged the other hand would claim held.... [W]e know of no case in which impact upon substantial and immediate general governor duty of a to enforce them of the Act is tantamount to direct state regulation state laws has been held sufficient to make reasonably require which could Furthermore, at F.2d 990-91. Kelley, 836 an act it to compared this result upon sup- sole panel’s services: Artists —the availability of abortion Allied even affecting abortion [with interference not prong place such “We its “continuum” port for —does near continuum Allied on the rights] as argument panel’s support voting respecting laws end closest required under of “connection” degree Workers Socialist [see rights of citizens Artists states: Young. Allied F.Supp. 984 Rockefeller, 314 Party v. as insofar disagree with Although I Gras (S.D.N.Y.1970), aff'd, Young enforcement to find it declines (1970)], rather than 27 L.Ed.2d duty to general governor’s in the domestic aspects of alongside procedural laws, I state Gras, execution of F.Supp. see [see relations law at 347. 190 F.3d Further- Okpalobi, result. the Oras agree 1148].” Judge more, accurate I believe to be use of panel’s weakness The first the cases Friendly’s evaluation connection find a sufficiеnt analysis to this to be governor and Act 825 is permitted officials between Allied Art- on exclusive reliance the en- its almost concerned joined as defendant panel’s support total ists. sum criminal, civil or programs, forcement cases, Allied Art- lies in two district between dealing with the relations Mortgage. Al- National and Federal ists limi- valid individual. This state and the binding on only not Artists is lied parties preclude tation serves rejected circuit, to have been it seems but constitutionality leg- of state testing the See authority in its circuit. own binding governor by simply naming islation 1414-15, Healthcare, 92 F.3d Children’s un- defendant, which if practice Metropolitan Kelley 1416; also see the effectively eviscerate would checked Educ., 986, 990-91 836 F.2d Bd. County Of Thus, satisfy to Eleventh Amendment. Healthcare, Cir.1987). In Children’s it, fiction, not as I Young the understand Allied Art- highlighted the Sixth Circuit who there be a state only must officer jurispru- Supreme Court tension with ists’ imth the has a connection enforcement holding rejecting the dence, apparently statute, there must challenged but the are suffi- duty” provisions of “general real, likelihood ephemeral, also be a Eleventh purposes cient for that the connection potential also or realistic at See F.3d waiver. See action between adequately decided in an general be his governor’s attention under the question parties? is private The concerned faithful execution duty to see to the difficult; the Act is some- real thrust of reasonably the be believe it can laws.... I However, in rul- face. on its what obscure Act amounts to state maintained dismiss, the Court ing motion to on producers and distribu- this regulation of movie favorably complaint the most Presumably, must view in doing Ohio. tors then, business Thus, great the exercise plaintiffs. in regulatory the exercise of state’s this plaintiffs al- have ... I hold caution designed implement and serve to is the leged to invoke facts sufficient The Court is public of Ohio. the interest Amend- to avoid the Eleventh fiction and sanction is no aware there criminal Act, bar. ment and also that attached to the course, presumably F.Supp. at 569. Of dispute with an ex- possibly await a could public designed sue, every to serve is raising question statute there hibitor and However, im- way another. More or constitutionality. interest some of the Act's statute on the placement of portantly, this bar. question in case at begs not to seems “public” of the continuum gover- side question does the pertinent is: all, at weighed decision Ohio, of a been have much chief executive of as the nor state, plaintiff’s given deference to the obvious enforcement of an interest 12(b)(6) hand, Allied motion. Or, argument a Rule on the the Act? other however, is, pan- the sum total Artists end of the simply near the Gras Act an adoption a "continuum” support for its el’s public interest is not where the continuum crucial, on the Act 825 prong placement of gover- and its is such that the dispute absent, "public” of the continuum. side matter can and the nor’s interest employed against plaintiffs’ will be in- cal factors by virtually examined prior all terests. Eleventh Amendment jurisprudence. For example, we note that the panel’s added). reading F.Supp. at (emphasis failed to note that the necessary Thus, fiction of panel’s reliance on Allied Artists Young requires that the defendant state it in places position the awkward of relying act, official be acting, threatening to on a or support case of the second part of least have ability to act. Young, 209 analysis rejects its when that case U.S. at 28 S.Ct. 441 (noting that panel’s conclusion as to the part. first applies fiction “where an official claims Second, panel’s ig approach acting be under the authority of the vs. “predomi nores “state/individual” state.”). It is this unconstitutional con- nately private/private” set forth distinction duct, or at ability least the engage in Gras: finding “[These cases no Elev conduct, the unconstitutional that makes enth Amendment immunity] have been him no longer representative of the sov- with the pro concerned enforcement ereign. Without at ability least criminal, grams, civil or dealing with the commit the unconstitutional act the offi- relations between the state and the indi defendant, cial the fiction cannot be sus- Indeed, ...” 415 F.Supp. vidual at 1152. See, Fitts, tained. e.g., U.S. at the propriety of this distinction was echoed 269; Healthcare, Children’s 92 F.3d in Allied Artists. F.Supp. See 473 at 568. Indeed, at 1415-16. if there act, is no thin retort is panel’s simply that Act potential act, of the state enjoin, official to “designed implement 825 is and serve injunction utterly would be meaning- public interest of Okpabbi, the state.” Here, act, less. there is no no threat (citation omitted). 190 F.3d at 347 This act, and ability no to act. tautological reasoning, however, easily can every applied statute: statute What VI general application designed? is not so Even opposite those statutes on the end of A the continuum (e.g., domestic relations law Gras) are presumably enacted to serve We take moment a now to address the public’s the private interest ordering dissent’s of the view Eleventh Amendment of individuals. We therefore doubt wheth question in this case. The dissent sub- er analysis any this serves real use stantially departs panel from the majority determining improperly whether a case opinion, abandoning many of the views ex- tests constitutionality of a state stat pressed raising therein and theories appar- ute. If private statute, Act a tort is ently by the plaintiff-appellees.27 dismissed on public interest side of the contin panel noted, opinion, as we have ex- uum, anything almost can be said to affect Artists, centerpiece hibited as its Allied a the public interest. For this and other twenty year old Ohio district court case. reasons, reject we panel’s use of this jettisons The dissent now Allied Artists to rationale resolve the Eleventh Amend support panel’s for novel position and ment question. turns to Title 40 of the Louisiana Revised Statutes, statutory a attempts scheme that

B review, oversee, regulate, to partially sum, In panel generated malpractice fund medical claims. See 22C new two-pronged spun test hardly § out of La.Rev.Stat. Ann. 40:1299. It quickly (a more than a wisp clear, of authority single however, becomes that Title 40 anis district court’s ruling), ignoring while criti- ally even less than reliable was Allied Art- plaintiff-appellees 27. appear None of the malpractice will- that the medical scheme does not Indeed, ing rely to theory. on the dissent's apply to cause of action under Act 825. appellees expressly observe their briefs no case have this have been sued who these defendants that position for the ists with Title connection regard to with powers enforcement have enforcement 825). (Act at issue the statute much less Act 825. in the fatal' —flaw The most obvious—and argu- dissent’s of the essence is the This to Title Act 825 to connect effоrt dissent’s Title 40 it: understand we as best ment premised is argument 40 is claims;28 malpractice medical to all applies assumption: false plainly dependent upon Over- Fund Compensation the Patients agencies operating assumption (“PCFOB”) review all must sight Board authority, jurisdiction, have Title 40 under they if to determine claims malpractice or consider ever to review or discretion other caps and damage for the qualify Act under Act 825. brought any claims 40; this over- by Title provided benefits action; Act cause of specific creates PCFOB authority means sight brought under that claims provides malpractice medical all would review 40; conse- Title subject to are not statute abortion to or related on claims based bodies any governmental quently, discre- claims; would have PCFOB au- have no acting under Title agents Title deny authority benefits tionary is, enforce- thority or —that de- procedures defendant doctors 40 to brought under claims powers ment —over covered to be by the Board termined short, foundation In Act 825. ap- and, the Governor 825; Act “[ujnder wit, that argument, dissent’s PCFOB, and be- points members of system, all malpractice Title 40’s medical Attorney General appointees cause "private claims malpractice ultimately payments certain approve must be re- providers must care public health from the Self- payable determined panel,” a medical review viewed the aforementioned Fund —all Insurance Title 40 being that actual fact false—the Title 40—each acts authorized malpractice claims to all medical applies powers has enforcement defendants to Act brought pursuant except those makes Act 825. dissent respect no connection between There therefore express notwithstanding argument this how- concluding, Act 825. Title 40 and gov- laws “[t]he of Act 825 provision that, notwithstanding ever, emphasize we limitations malpractice or medical erning theory attempts newest the dissent’s Title 40 of provided in liability thereof 40, we not should relate 825 Title Act of 1950 are Statutes Revised the Louisiana determi- crucial be diverted See to this Section.” applicable parte Ex under native consideration added).29 2800.12(C)(2) Fur- (emphasis § defendants progeny: These and its thermore, argu- makes the dissent purely to enforce Act ability no connected though no official ment even statute, invoked can be private tort a defen- named as 40 has with Title been litigants. only by private case. dant in this pat- this need be said about Very little B need not argument. ently untenable We various on the to comment We turn now that, under fact even draw attention We by the dissent. addressed defendants authorities argument) the dissent’s protections.” malpractice “[ujnder umbrella of medical 40’s Title that 28. dissent asserts The exempt doctors malpractice abortion system, all does malpractice Act 825 medical Rather, public health care all against private and 40. provisions Title claims from the of by re- reviewed a medical providers must be ex- pursuant Act are brought 825 claims file suit in panel claimant can view before the upon initial It is this empt Title 40. from added). (emphasis court.” entirety of dis- flawed foundation argument sent’s constructed. incorrectly that Act observes dissent 29. The doctors "remov[es] 825 abortion

423 would that first note the dissent fails to bundled as package one with the struck any cite case which a federal сourt provisions. criminal In by no case cited enjoined enforcement of a statute even the dissent did the court address the civil is, remotely like Act 825—that one with provisions separately under an Ex parte civil, private penalties. but no criminal In Young analysis, as we are upon called every case support cited the dissent to Indeed, today. do in assessing the value injunction its claim that an proper was of those cases to the issues before us to- case, simply there were no Eleventh day, we must conclude that it is determina- problems Amendment or Article III that tive that these cases fail to even mention juris- would bar the court from asserting parte Ex Young. complaint diction over the for this reason: sum, nothing argued or cited federal plainly existed over the by the dissent suggests any there is injunctive claims for relief to strike the enforcement connection criminal provisions between these de of the statutes at issue in those cases.30 fendants —the When there were also Governor and the Attorney civil provisions contained in these statutes General —and Act 825 satisfies either were, they analysis, swept without up and of the requirements of parte Young.31 Ex See, Foster, e.g., Lowentritt, Causeway 1198, Med. Suite v. See Earnest v. 690 F.2d 1203 (5th Cir.2000), 221 aff’g, Causeway (5th F.3d 811 1982). Cir. law Neither case or the Con Foster, 604, Med. Suite F.Supp.2d v. 43 609 stitution allows analysis. for this creative (E.D.La.1999); Planned Parenthood South opinion cryptic makes the novel and 833, Pennsylvania Casey, eastern v. 505 U.S. Supreme contention that "the Court’s modern 909, (1992); 112 S.Ct. 120 L.Ed.2d 674 standing doctrine has subsumed the connec Franklin, 379, 381, Colautti v. 439 U.S. 99 inquiry Young tion [of ].” revelation (1979); 58 L.Ed.2d 596 Planned inquiry Young connection longer is no Danforth, Parenthood Central Missouri v. 52, 83-84, applicable law would surprise come as a 428 U.S. 49 L.Ed.2d (1976); Foust, 788 numerous federal Karlin v. courts that continue to F.3d (7th Cir.1999); apply inquiry Women's Medical this connection binding as the Prof'l Voinovich, (6th Corp. See, v. 130 F.3d e.g.,Lytle Griffith, law of the land. v. 1997); Parenthood, Cir. Planned (4th Cir.2001); Sioux Falls F.3d 404 Tribes Confederated Miller, Clinic v. 63 F.3d Cir. & Bands the Yakama Indian Nation v. 1995). Locke, (9th Cir.1999); 176 F.3d 467 Snoeck v. Brussa, (9th Cir.1998); Luckey F.3d 984 briefly respond Judge 31. We also Bena- Harris, (11th Cir.1988); 860 F.2d 1012 Fin concurring dissenting opinion. vides’ We Sullivan, (3d 1980); berg v. 634 F.2d 50 Cir. opinion suggest understand that that we Noel, (1st Shell Oil Co. v. 608 F.2d 208 Cir. "pragmatically” apply Young should Ex Parte 1979). standing That the doctrine of has action, declaratory judgment in a gard without re- inquiry "subsumed” the connection under rejected to the fact that no case has ever Young likely surprise Supreme would only fiction as the means of avoid- itself, Court questioned which has never Amendment; ing the Eleventh that we should and, indeed, continuing viability Young has assume that the Eleventh Amendment makes recently vitality reaffirmed the of the doctrine. exception Declaratory Judgment for the Idaho, Idaho v. Coeur d'Alene Tribe Act for case that seeks to enforce a feder- 261, 262, 138 L.Ed.2d state, right position al denied when this We note that the court; by any has never been held we frequently emphasized has unwillingness its should controversy find no Article III in this recognize overruling precedent of its injunction, and, case as to the then turn and Felton, implication. Agostini See facts, controversy find a on the same set of 203, 237, 1997, 117 S.Ct. 138 L.Ed.2d 391 including parties, alleging the same the same (1997) (“We acknowledge, do not and we do seeking claim and the same resolution avia hold, not that other courts should conclude declaratory judgment; and that we should have, by our implication, more recent «cases Declaratory Judgment assume that the Act precedent. action, overruled an earlier provides independent We reaffirm an cause of not- precedent that a withstanding if of this Court direct has that the law makes clear that— case, application although yet appears a Declaratory Judgment the in to rest pro- Act on remedy rejected injunction— vides a reasons sions, different from an in some other line of deci provide it does not Appeals an additional cause of the Court of should follow the respect controls, action underlying with directly claim. leaving case which to this Eleventh Amendment court, with both fronted this en banc to therefore It is clear de- chose to question, III Article and an the defen- alternatively, that hold, and we jurisdic- III on Article based the case Amend- cide enjoy Eleventh this case in dants Ashmus, v. See Calderon tion. this suit.32 immunity from ment 140 L.Ed.2d S.Ct. VII must (“[We] that (1998) have decided we action for this whether address first Elev- the have addressed we Now that ‘Article the sort of judgment is declaratory have been issues Amendment enth federal controversy’ to which or III’ ‘case case, the we turn in this presented limited.”).33 not Calderon does courts are III. under Article jurisdiction of question must, even always that a court Court, hold when con- Supreme the Recently, misreading of dissent’s panel’s and the overruling on the its own prerogative of Court the exception. omitted). Young the decisions.”) (citation jettison effectively asks us opinion This Calderon, rejected Circuit the had Ninth In inquiry outlined connection the traditional Amend- Eleventh state officers' the defendant may qua state that the state Young and hold judg- declaratory and affirmed ment defense plaintiff, in when the sued in federal court portion the Antiterrorism regarding a ment action, to assert declaratory judgment seeks The Penalty Act of 1996. Death Effective rights against the state constitutional federal Court, granted certiorari had trumps Amendment Fourteenth the rejection of the defendants’ court’s on the the To borrow Amendment. the Eleventh defense, passed op- the Amendment Eleventh dissenting opinion’s words: concurring and Eleventh question of to address portunity the power of intermedi- beyond the this "That [is] the case immunity, and decided Amendment ate court.” standing. on Article III based Judge grasp drives what are at a loss 32. We come to Supreme Court would the Whether concurring opinion, in which Higginbotham’s faced the were it same conclusion the the crucial to resolve that our effort he states us, appeal on the issue where case before question this case Amendment Eleventh than a injunction rather propriety of an the Despite undertaken.” have been not "should Judgment Declaratory judgment under the concurring opinion in no opposition, the its Act, We note surely open question. parte of Ex treatment way at where our hints court for authority by the Calderon cited the law and astray Young runs established support the addressing standing not does first central deny has issue been does always address proposition that must courts en banc panel and these opinion to both considering the Eleventh standing before proceedings. Amendment. Patsy Board on first relied Indeed, ignore The Court opinion seems to Florida, Regents importance, to mention prominence, not Patsy, the 73 L.Ed.2d purpose of this case issue in the Eleventh to address decided not Court panel opinion based The en banc court. State part because the issue for en Amendment holding сourt voted Young. This its on ad- expressly requested that had Amendment Eleventh banc consider the Id. at claim. See dress the substance of 515, panel had parties and the issues that case our is relevant to 2557. It vigorously asserted its State The has raised. note, however, that one reasons immunity both its Amendment Eleventh past the Eleventh to look banc Court decided rehearing and in en its petition for the merits and to address Amendment plaintiff-appellees addressed briefs. is- that the exhaustion was exhaustion claim as well. en banc Young before this issue vigorously was “decided below Therefore, full sue case reached once this too, Here, Id. pressed this Court.” court, claiming forcefully its the State was plaintiff-appel- and the Louisiana the State of and the immunity, Eleventh Amendment Eleventh pressed” "vigorously arguing lees vigorously were plaintiffTappellees court. en banc issue before the en exception. purpose of Second, on Idaho court relied the Calderon "panel clarify the law when court is to banc Idaho, 521 U.S. Coeur Tribe d’Alene of the Unit- a decision conflicts with decision (1997), in 138 L.Ed.2d case “in- Supreme Court” or the ed States III deciding to address Article exceptional questions of volves one or more Although 35(b)(1). Eleventh Amendment. before the R.App. Un- P. importance”. Fed. waive "a State case, can holds that Coeur d’Alene it would be of this der circumstances protection”, that difficult, its Eleventh silent to remain irresponsible, if not should, absent, always ty-is plaintiffs decide the Article III issues have no standing in addressing before Eleventh Amendment federal court under Article III of the con- Nevertheless, given issues. that the Su- stitution to assert their claim.

preme path Court has followed this in a court, In the district the defendants did case, today’s case that has similarities to it not question raise the plain- whether the examine, and, inappropriate is not for us to tiffs had an Article III case or controversy warranted, thereby if to decide this case them, the Governor and the Attorney impos- based on the limitations Article III General, and the district court did not es on federal courts. jurisdictional consider this question. The argued only defendants plaintiff III

Under Article of the Constitu doctors tion, and clinics lacked standing pur- jurisdiction the federal courts have patients’ rights. sue their In rejecting plaintiff over a claim between a and a contention, if district court held that only presents defendant it a “case or “[g]iven the relationship between controversy.” the inter- require This is a “bedrock patients, venors and their 811, 818, given ment.” Byrd, Raines 521 U.S. (1997). 2312, prevent pregnant obstacles which 117 S.Ct. 138 L.Ed.2d women statute, way, challenging this power granted including to federal desire privacy courts under Article III and the imminent “is an uncon moot- claims, ness of authority may ditioned to determine the their intervenors consti as- tutionality of legislative party standing or executive acts.” sert third and raise the Valley Forge College right patients.” Christian v. Ameri of their Okpalobi v. Fos- ter, (E.D.La.1998). 977, cans Separation United For Church 981 F.Supp. State, Inc., 464, 471, panel determination, 454 U.S. upheld find- 752, 70 L.Ed.2d 700 ing that “the Plaintiffs have alleged an fact, injury including components of cau- In order to establish a ease or sation redressability, sufficient controversy give sufficient to a federal make their claim a controversy case or jurisdiction claims, over plain their subject to the federal courts’ Article III tiffs satisfy must three criteria. Lu See jurisdiction.” Okрalobi, 190 F.3d at 350. 555, jan Wildlife, 504 U.S. Defenders of panel further plain- determined that 112 S.Ct. 119 L.Ed.2d 351 properly third-party tiffs could assert (1992). First, they they must show that standing on patients behalf of their female suffered, suffer, or are about requisite because the “have the Second, “injury in fact.” “there must be commonality congruence pa- with their causal, connection between the injury and tients’ interests to standing establish Third, complained the conduct of.” “it right assert their to make abortion deci- likely, opposed merely must be spec sions free of undue burden the State of ulative, injury will be redressed Louisiana.” Id. at 353. (citation by a favorable decision.” Id. omitted). If one of these three ele In addressing question of federal causation, injury, III, jurisdiction and redressabili- under panel, Article ments — See, suggest e.g., case does not the Eleventh cases. Seminole Tribe Florida v. Florida, 44, 73, anything Amendment is less than an actual 116 S.Ct. Jordan, (1996); jurisdiction restriction on the Article III L.Ed.2d 252 Edelman v. 651, 658-59, federal courts. See Id. at 117 S.Ct. 2028 39 L.Ed.2d (1974). Indeed, (noting immunity Supreme that “Eleventh Amendment Court has represents unequivocal a real limitation on federal stated in words that “the Elev- federal-question jurisdiction.”). court’s enth Amendment [stands] for constitution- that, Finally, recognized principle sovereign it immunity must be on sev- al that state occasions, eral other Court has the federal courts’ under limit[s] Tribe, standing prior not addressed the issue to ad- Article III.” Seminole 517 U.S. at Amendment, 1114; d’Alene, dressing despite the Eleventh See Coeur also standing the fact that was an issue in these U.S. at 117 S.Ct. 2028. (the unlimited risks of of the untenable because Gov- the defendants that disregarding Act, General) an unconstitutional liability civil under had Attorney ernor controversy justiciable case or a sets forth and could plaintiffs to injury caused no and the Governor plaintiffs under between any injury themselves cause never Id. Attorney of Louisiana.” General scheme, con- nevertheless private civil impact of the statute coercive Once the well estab- that, is “[i]t cluded (coercive exposes plaintiffs in that it harm of direct economic a claim lished that plain- liability by individual unlimited tort by a statute providers on abortion visited tiffs) from the to be distinct is understood injury-in-fact satisfy the adequate to is (for exam- of state officials power coercive assert plaintiffs could requirement,” criminal or institute if the State could Id. at 350. ple, Fur- themselves. standing for Act), pan- under the proceedings civil essentially thermore, passed panel a here is without finding el’s of causation redressability re- causation and over the Lujan own-citation to panel’s The basis. stating only: quirements, requires III “a that Article recognizes Article III does that are convinced We injury and between the causal connection plead prove or plaintiff require not ” the conduct complained of ... 504 U.S. has en- official a defendant added)— 560-61, (emphasis 112 S.Ct. 2130 enforce a statute threatened to forced or is, here, a connection between controversy or to meet the case order (the inju- monetary judgment unwarranted is imme- when that statute requirement of a lawsuit under ry) prosecution and the coercively self-enforcing. diately (the private litigant civil Act 825 Id. at 349. conduct). sug- plaintiffs The have never pan The central weakness act the defendants has gested any fatal flaw of the and the argument, el’s cause, caused, possibly cause or could will opin follows this argument that dissent’s injury requirements to them. The any that, thе de ion, notwithstanding that is with the Lujan entirely are consistent Act 825 powerless to enforce fendants are may plaintiff rule that long-standing (or any plaintiffs prevent against the who is without a state official sue enforcement), injury its threatened from complained-of stat- to enforce (1) these how plaintiffs yet must show States, Muskrat v. United ute. See a causal role play impotent defendants (1911) 55 L.Ed. 246 U.S. S.Ct. (2) how these injury and plaintiffs’ States as defen- (holding that the United alleged their actual can defendants redress claim- no interest adverse dant had injury. panel’s refer threatened Fisher, ants); Gritts of Act 825 self-enforcing nature ence to the (1912) (finding that L.Ed. 928 analysis of whether inapposite to the is charged official was the defendant state these any controversy with plaintiffs have the chal- specific duties to enforce say, panel That con defendants. therefore suffi- lenged statute and was the statute’s immediate coercive ef fuses plaintiffs to create ciently adverse to the witfj any coercive plaintiffs fect on the controversy). III an Article by the might applied effect that defen satisfy is, plaintiffs also fail to and the At dants —that Governor requirement of the “redressability” allows the torney confusion General. This controversy analysis. prac For all case or “The Plaintiffs’ as to state further: panel injunction granted by purposes, tical they be forced to discon will sertion meaningless.34 utterly the district court patients offering legal tinue abortions bar either that it enter to enjoined An defendants would the statute. 34. The district court defendant, suing enjoins not a statute. under the statute injunction private suggest word- to us the The dissent does not hearing such suits. or courts from proposed injunction these ing of the governor attorney general way, and have The this the dissent makes much the same power injuries. no to redress the asserted argument incorporates thus —and fact, In under Act no state official has same fatal panel flaw—as did the opinion. any duty ability anything. to do It continues to confuse the impact coercive authority prevent defendants have no of the statute ability itself and the the—or private plaintiff invoking from the statute absence of ability the Governor and —of in a civil suit.35 Nor do defendants Attorney General to cause or redress the any authority have under the of laws Loui- impact of the statute on plaintiffs. judiciary siana to order what cases the of Indeed, the dissent is silent on how the may Louisiana hear or not hear. Because plaintiffs’ defendants cause the in- alleged powers these defendants have no to re- jury. only response the dissent seems injuries alleged, plaintiffs dress concerning to make redressability is that controversy no case or with these provide the Governor can some relief to defendants that permit will them to main- physicians sued by under Act 825 “or- tain this action in federal court. See dering] agents his and subordinates to Muskrat, 219 U.S. at 31 S.Ct. 250.36 disregard reviewing Act 825 in civil claims addressing In jurisdiction, Article III against providers women’s health care and injury compo- dissent focuses on the making legal their and factual recommen- controversy nent of the case or require- liability dations as to damages.” and This ment, arguing component that this has First, argument is unavailing. this re- “visibly been relaxed” in abortion cases. sponse overlooks the elemental fact that a We do not challenge ‍​‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌​​​​​​‌‌‍plaintiffs that the are enjoined state official cannot be to act in suffering a injury. only threatened We any way that beyond authority his to act say injury alleged by plaintiffs place. the first If the defendant Gover- not, be, possibly by and cannot caused nor or Attorney General has no authority is, the defendants —that these defendants under specific state law to issue a di- will prosecute not file and a cause of action rective, plaintiff then might as well sue > plaintiffs; under Act 825 these and who, turn, any state officer could direct injury that their by cannot be redressed any other carry state officer to out the is, these defendants'—'that these defen- orders; or, injunction under the dissent’s prevent purely private dants cannot liti- reasoning, why simply order the defen- gants filing prosecuting and a cause dant decree that may of action Governor to no court prevent under Act 825 and cannot the courts processing any brought of Louisiana from entertain suit under Act 825? hearing dissent, course, private these tort cases.37 In The authority of cites no Causeway 35.The dissent cites injury Medical Suite v. redress the in order to create an Article (5th Cir.1997), Ieyoub, 109 F.3d controversy, for the III case or that case is overruled. proposition plaintiffs that these have a case or controversy against the by purport Governor and Attor- 36. The cases cited the dissent that ney ever, Causeway, standing General in this case. In how- to authorize under these facts are (the hardly persuasive deciding two additional named defendants Secretary Department Health and federal courts in the case before us. cases, Hospitals Secretary controversy each Depart- and the of those a case or Services) appear pos- ment of Social existed between the to have defendants presence liability sessed some enforcement because of the of criminal connection with the provisions, challenged fully statute. See id. at 1100-01. The enforceable the state offi- however, opinion, analyze cials were does not who sued. There is no such basis issue, provide controversy detail the case or here that would an Article III home. and the precise played role that each defendant enforcing question extent, however, support statute in is not clear. 37. The cases cited dissent injury See id. at requirement 1102. To the relaxation do Causeway might proposition any way necessity stand for the not in minimize the redressability the defendants need have no causal connec- causation and to establish an plaintiff’s injury powers controversy. tion to the Article III case or unconstitutional statute— plication of this the Governor is assertion that for its is, of a filing prosecution to order the state with clothed act in Title 40 to Act 825—that that administer civil action under agencies private defendants, class respect to a manner even specified provided can be these say the ad- not to theory redressability. cases. This is this latest under themselves could of Title 40 ministrators out, Third, at the risk of point we should that particular a act enjoined to do not be the matter of causa- being repetitive, that authority these their was within —but best, At unsatisfied. tion remains individuals autho- must sue those plaintiffs only appoints some of the admin- Governor injunc- orders of the rized to exercise the Attorney of Title and the Gen- istrators tion. for the Self- appoints legal counsеl eral Second, plain- sought the redress Ann. Fund. See La.Rev.Stat. Insurance to eliminate the initiation complaint tiffs’ 39:1533(B); 39:5(A); 40:1299.44(D); §§ Act 825— any and all lawsuits under 39:1535(B)(6). power of appointive This indicat- nothing complaint their there injury no on the the defendants inflicts way seek the ing any plaintiffs that not the say, That is to it is plaintiffs. liability of Title 40 for limited benefits Attorney who or General Governor Like the brought under Act 825. lawsuits injury private is the inflicts the claimed —it argu- the dissent’s “Title 40” entirety of bringing private lawsuit under plaintiff, ment, ap- suggestion this makes its first injury of which Act who causes the this in the dissent that follows pearance plaintiffs complain. notwithstanding that this case has opinion, Thus, if we take it as true that even nearly years. for four pending been from other cases are different abortion claim is not that Act 825 is con- plaintiffs’ for in- concerning requirements cases there- long brought so as claims stitutional Article III it is in this jury purposes, for Title subject provisions under are and way connection redressabili- Indeed, plaintiffs never mention —causal neverthe- ty the dissent’s authorities 40, except say appli- that it is not Title —that cases, In those lacking.38 less remain any brought under Act 825. cable to claims injury may not have plaintiffs’ where the action argument Their is that cause of imminent, the defendants had the been Act 825 is as uncon- alleged under barred plain- Thus, ability to cause and to redress the no redress for stitutional. there is Here, injuries.39 plainly that is injury ap- tiffs’ resulting the claimed plaintiff Attorney and General is Corp. v. Attor- between the 38. The dissent cites Mobil Oil General, (4th Cir.1991), wrong. ney plainly 940 F.2d 73 as support its claim that causation and re- for challenged dressability where a can exist even Corporate 39. The dissent cites Health Insur- only private provides tort cause of statute Insurance, ance, Department Inc. v. Texas did indeed action. The court Mobil Oil Cir.2000), proposi- for the 215 F.3d 526 controversy plaintiff between the find malpractice tion that the medical scheme Attorney Virginia in General of that case. Attorney gives Gener- alone the Governor and However, controversy upon was founded powers al of causation and redress- sufficient explicit statutory Attorney General's au- ability regard notwithstand- to Act thority, self, granted challenged act it- via only ing provides the fact that Act 825 "investigate bring an action in the private action. The citation of Cor- cause of enjoin any name of the Commonwealth to porate proposition to us Health for this seems § Va.Code 59.1- [the statute].” violation of seriously ignores mistaken. The dissent authority granting 68.2. This the defendants — following language makes it clear that a power against the some sort of enforcement controversy or in that case was founded case controversy plaintiffs so as to create a case or authority Attorney upon General to simply under Article does not exist III— specifically the statute at issue: enforce interpretation case us. The dissent’s before replies standing statutory Aetna that it has saying express Mobil Oil as us, only provisions expose liability it not authority, the case non-existent in before regulatory private finding controversy suits but also to "irrelevant” to a was REVERSED, VACATED, RE- no case Consequently, there is the case. entry judgment MANDED for of dis- controversy plaintiffs these or between missal. and defendants. hold that the district We therefore HIGGINBOTHAM, E. PATRICK III to hear this

lacked Article Judge, concurring: Circuit claim. judgment reversing I concur in the

remanding entry of an order оf dis- I standing. missal for lack of do not con- VIII parte Young. cur in the treatment of Ex sum, we hold majority opinion1 reexamines the un- controversy with these have no case parte Young2 of Ex derpinnings support judg and the district court’s defendants injunctive that relief is not its conclusion dismissed for lack of federal ment must be claim available here and hence the is jurisdiction under Article III of the by barred the Eleventh Amendment. De- Furthermore, have made we Constitution. work, spite majority’s the careful I am the de opinion in this en banc that clear that should not have persuaded this effort enjoy in this case Eleventh fendants been undertaken. immunity from this suit and appeal This can and should be resolved Young exception to the parte the Ex by simple proposition: a direct and there applied Amendment cannot be Eleventh controversy. Enjoining is no case or the hold, alternatively under these facts. We enforcing named from the stat- defendants therefore, by the this suit is barred wrongs. ute will not redress the claimed Eleventh Amendment.40 controversy There is then no case or under Article III the judgment of the district court is of Constitution.3 The agree. by plaintiff, registered voter in Attorney General. We menl action reach of the state, private against party are defen- This is not a case in which suits the State as enforcing challenged only justiciable means dant was because the of statutory Attorney duty uphold standard. The General and "the State's interests through pursue adverse). Aetna an action under can sufficiently act” were We note Deceptive Trade Practices Act the Texas Eleventh Amendment is no bar to the regulatory and the Insurance Code. This United Stales Court's consideration oversight right Attorney General [the against brought by a case officers to it directly] to sue is sufficient to create the way Bell of state courts. See South Cent. Tel. standing. requisite injury' imminent for 166, Alabama, 160, v. 526 U.S. 119 S.Ct. Co. added). (emphasis Id. at 532 (1999). 143 L.Ed.2d 258 keep anyone important 40. It is in mind that "majority” opinion it I refer to the liability exposed to actual under this statute majority support of its treat- has clear say, is a de has immediate redress—that standing. opinion’s The treatment of ment of private plaintiff by a under Act fendant sued parte and the Eleventh Amendment Ex challenge immediately and 825 can forthwith majority supported by of the court. is not opin constitutionality The statute. follow, although surely recognizing ions that 52 L.Ed. 714 2. 209 U.S. that, fact, prey fallacy seem to fall to the challenge failing particular the success of this allegedly stat to Act unconstitutional Wildlife, Lujan 3. See ute will remain on the books Louisiana Defenders of 555, 568, 570-71, perpetuity. plainly not the case. That is (1992) ("The prob- obvious L.Ed.2d 351 most any private plaintiff seeks to enforce her Once present redressability.... statute, lem in the case rights unconstitutional, indeed under the Act if is that redress of The short of the matter will be stricken forever from complain only injury respondents in fact books of Louisiana. See La.Code the statute funding (West 1999); requires action ... the individual Civ. Proc. Ann. art. 1871 Persc Louisiana, agencies; the Sec- relief ... 697 So.2d hall State of action.”). (La. 1997) retary likely produce that (holding declaratory judg- was not courts are limited.”8 Whether federal

I sequence a rule of expressing court was con- standing or question of —case explaining practical across cases or ques- anterior to troversy logically —is in the case before it is not compulsion is a defense to the there tion of whether least, con- wholly certain. At the similar claim; court’s goes it my inform hesitation here.9 cerns parties waived and cannot be standing this case question The Eleventh by agreement. conferred ask whether easily framed. We should it is jurisdictional, but Amendment is also enforcing enjoining defendants form. It is a jurisdiction in an anomalous applica- of will bar its complained statute may be invoked defense that The answer is no. plaintiffs. tion to these not be. state —but need the sued defendants persuaded I am the case- pushing alone Logic is not responsibility enforcing have no such the forefront.4 or-controversy inquiry to ought to Whether that is so statute. redressability standing and Questions of beginning ap- and the end of this plaintiff of a are familiar. The burden majority acknowledges this re- peal. The standing stage at each plead prove ality only long after a visit with the but Stepping over proceeding is settled.5 parte Young. doctrine Ex to address at the inquiry this threshold powerful argument There is another the defense of Eleventh outset of the suit immunity ought that Eleventh Amendment immunity risks confusion.6 Amendment majority in not be treated this case. The Ashmus,7 Supreme In Calderon v. injunction exception reasons risk, insisting that recognized this Court offered Ex the Eleventh Amendment considering a standing be found before parte Young is not available because the under the Eleventh immunity state’s no en- injunction against is officials with explained It that before ad- Amendment. wrong that with the offi- power; forcement claim, Amendment dressing an Eleventh against sued the action is the State. cials first whether this action “we must address “official-capacity prospec- But actions for is the of declaratory judgment for a sort tive relief are not treated as actions against the The Governor and controversy’ III’ ‘case or to which State.”10 ‘Article See, standing. e.g., Supreme recently review Summit Medical 4. The Court reaffirmed 1326, (11th usually subject Pryor, a federal court should address Assoc. v. 180 F.3d 1334-36 Cir.1999) personal jurisdic- during (finding standing matter before review of cases, personal juris- interlocutory tion removal unless appeal in of denial of Eleventh determining easily immunity diction is resolved to be unavailable un subject-matter jurisdiction pendent ap is difficult. See der doctrine or collateral order Co., doctrine). Ruhrgas 526 U.S. pellate jurisdiction AG v. Marathon Oil 1563, 574, 587-88, 119 S.Ct. 143 L.Ed.2d 760 (1999). majority’s approach The is in tension 740, 1694, 7. 523 U.S. 118 S.Ct. 140 L.Ed.2d principles underlying with the of restraint Ruhrgas. repairs the fundamentals of Ex It relying straight- parte Young instead of on a 745, added). (emphasis 8. Id. at 118 S.Ct. 1694 jurisdic- application subject matter forward of explain, Supreme tion. As I Calderon, Court overruled 9. Ashmus, Calderon v. Circuit, which had treated the Elev the Ninth (1998), 140 L.Ed.2d 970 has addressed inquiry. as a threshold enth Amendment issue sequence standing for and Eleventh the Article The Ninth Circuit addressed III See Amendment issues. infra. standing question only after it had decided the Eleventh Amendment issue. See Ashmus Lujan, 5. 504 U.S. at S.Ct. 2130. Calderon, 123 F.3d 1204-07 Cir. 1997). recognize have addressed I that some courts application Youngwithout of Ex Parte first Police, however, cases, Michigan Dept. State considering standing. These 10. Will v. L.Ed.2d procedural posture 71 n. tend to involve an unusual Graham, (1989), quoting Kentucky inappropriate in which the court finds it First, ascending difficulty. offi- order of were sued their Attorney General injunctive relief. That the district court in this capacities for whether case cial declaratory does not alter they wrong granted are the officials relief is uncertain. Rather, (ignor- the flaw sought. relief granted preliminary injunc- The court a of stand- ing tion, for the moment absence questioning constitutionality wrong if ing) is that the suit challenged statute the course of officials, injunctive claim relief has no finding that there was substantial likeli- been stated. parties hood of success on the merits. The agreed preliminary

then to convert injunction permanent injunction. into a At II best, that, any “declaratory only relief’ is majority argu- and the dissent trade implicit grant injunc- conclusion in the ments over “the nexus between defendants Perhaps tive relief. this would be a suffi- at issue.” If this is the statute declaration, larger cient there are diffi- but standing, appears as as it inquiry same culties. be, applying the doctrine of we should be nexus as de- standing. Specifically, unless Second, although Declaratory Judg- majority something has ployed Act “brings present litigable ment standing say inqui- to cases that meet the only controversy, might which otherwise ry, independent utility. Treating it has no future,”12 jetti- tried in the it does not requisites standing requirements standing requirements.13 son traditional confusing, internal to Ex parte requirements of causation and re- necessarily it simul- part, because does Lack dressability are not met here. taneously standing question. answer the standing disposes regardless of this case all, plaintiff may requested After sought injunctive relief declarato- — injunctive relief from defendants with re- ry. The not threaten defendants could they a law chal- sponsibility enforcing law; targeted enforcement of the lenge, plead prove but is unable to If they authority plain- lack the to do so. injury. individuated attempted tiffs to sue defendants their acting assumption on an capacity,

official III although lacking enforcement they obligated to defend the statute in are Standing developed long parte after Ex abstract, requisite concreteness of Young, responding expanding to the stress if, absent. This is so even engagement is public litigation brought respec- law to the view, contrary my declaratory relief is courts, Article III the Con- tive roles of redressability meeting as here seen Executive, and It is gress, the the states. Article III. requirement of of vindicat- adequate more than to its task ing principles sep- of federalism and these Third, proceed case not even could powers. aration of controversy if case or difficulties were met—-if the Governor and Attor- somehow

Judge opinion Benavides’ would find ney proper seen as defen- Declaratory General were standing Judgment under the relief, seeking declaratory a claim problems, Act.11 has three dants to approach This Callahan, 111 F.3d 167 n. 13.See Lawson U.S. L.Ed.2d 114 (1985); J.) parte Young, (5th 1997) (Wisdom, see also Ex (noting that the Cir. 123, 159-60, 28 S.Ct. 52 L.Ed. 209 U.S. 714 controversy” required under 28 "actual 2201(a) meaning § “is identical to the U.S.C. controversy' purposes for the of 'case or 2201(a). § 11. See 28 U.S.C. IIF’). Article de Conditionnement En Aluminium Societe Co., Eng’g v. Hunter 655 F.2d Cir.1981). parte Young of Ex principles them whether the relief though even coercive unduly expanded. Since such have been This is because granted. not be could granted absent a case relief can never be not have creat- not and could Congress did destination of the ma- controversy, exception to the Eleventh generic ed today inevitably narrow- jority’s trek is declaratory relief. Amendment for parte Young, of Ex ing of the doctrine always it rendering it either less than has IV replication standing been or an exact Young as -parte Ex have viewed Some voy- passage doctrine. I decline on that changes in cause of these culprit, persuaded I age. I decline because am to the of cases. More public law model principles standing familiar are bet- see the doctrine point, apparently some questions with ter suited to answer these to the sov- therein as a threat articulated parte vital role of Ex less risk to the that must be tamed. role of states ereign Young. views and fear that I do not share these duty upon Ex imposing this additional VI forward, it to the parte Young by bringing through drive a The desire to stake controversy inquiry, front of the case or majority’s views of Ex panel heart of amorphous, doctrine toward pushes the pan- is understandable. The parte availability case-by-case inquiry into its —a analysis tempting el’s flawed offered a tar- rejected by seven affirmatively destination get, enough majority’s the en banc members of the United States lengthy memory effort to erase its here majori- I suggest do not Court.14 justification. pur- without some But it not Rather, my ty here. concern does so panel opinion longer no ghost. sues a can lead. path where the it has selected grant- exists. It was vacated the order granting review. The order ing en banc V en banc left no remains to be buried and majori Implicit my resistance so, do itself doing implies so the need to ty’s my parte view that Ex approach is course, my eyes. best Young poses no threat to the Eleventh tenets BENAVIDES, Amendment or to the fundamental Judge, Circuit contrary, it is a of federalism. To the concurring part dissenting part: powerful implementation of federalism majority, focusing injunc- on the Clause, a stel necessary Supremacy to the sought by plaintiffs, paid relief has tive and Martin v. companion Marburg15 lar to plaintiffs’ request too little attention to the Hunter’s Lessee.16 for a declaration that Louisiana’s strict liability regulating provi- for the case in which scheme for

We should wait unconstitutionally there is a bur- plaintiffs standing, where sion of abortions right In controversy, examining before dens a woman’s to abortion. case Tribe, principle equitable v. 521 U.S. to a discretion as much 14.See Idaho Coeur d’Alene 261, 288, 291, 2028, 138 L.Ed.2d 117 S.Ct Young's result as with the foun- odds J., ("[T]he (1997) (O'Connor, concurring) rests.”). 438 Young on which dational doctrine principal opinion reasons that federal courts attempt principal opinion in the to frame determining jurisdiction whether to exercise case-by-case analysis, Young in terms of id. at any over officer must suit a state 270-80, J.), (Kennedy, was S.Ct. engage case-specific analysis a number in a joined only by the Chief Justice. approach unnecessarily of concerns.... This recharacterizes and narrows much of our Madison, (1 Cranch) Marbury 5 U.S. 15. v. Young jurisprudence.”); id. at 60(1803). 2 L.Ed. (Souter, J., ("The principal dissenting) 2028 opinion doctrine, [Young redefine the ] would (1 Wheat.) (1816). 4 L.Ed. 16. recognizing jurisdiction from a rule federal enjoin violating state officers from federal law view, ing injunctive a “contro- to seek relief. Article III present my plaintiffs Declaratory Judgment Act versy” that the standing requires litigant to have suf this Court to re- require Article III injury-in-fact, fairly fered an traceable Moreover, Supreme Court’s solve. conduct, allegedly the defendant’s unlawful immunity jurisprudence does sovereign likely request to be redressed ability vindicate constitu- our foreclose Lujan Wildlife, relief. ed Defenders of existence of a state’s rights tional when the 555, 560-61, statutory liability scheme self-executing analyzing L.Ed.2d 351 When Indeed, I rights jeopardy. those places plaintiffs’ injunctive claim for relief under falls “on the Ex am confident this case case, of this I am con the unusual facts side” of the Court’s parte by Supreme precedent strained jurisprudence sovereign immunity —that redressability find the causation and re is, Young, duty I believe the However, quirements lacking. unlike the rights and protect constitutional Court to Court, I not believe the majority of the do of the Con- thereby supremacy ensure the In inquiry seeking ends here. addition to outweighs the sov- stitution over state laws relief, injunctive plaintiffs in this case immunity from right of states to ereign Declaratory Judg brought suit under reason, I For that suit in federal court. Act, pro § ment 28 U.S.C. I separately dissent. write respectfully pre-enforcement a mechanism for vides that the connection re- explain my belief review of statute.1 See Steffel majority which both the quirement on 452, 478, Thompson, 415 U.S. be understood dissent concentrate should (Rehn (1974) 1209, 1225, 39 L.Ed.2d 505 and has analyzed standing, terms of J., quist, concurring) (“[M]y reading interplay between little relevance history Declaratory legislative Young and the Eleventh Amend- parte Ex its Judgment suggests Act of 1934 ment. persons was to enable primary purpose I. rights obtain a definition of their before ”).2 Al injury an actual had occurred ... majority to the extent agree I with the though injunctive proper, relief is not that it holds the have no stand- Judge Higginbotham provides: insists district 1. The Act only injunctive granted re- court in this case lief, (a) controversy within In a case oi actual Act 825’s unconstitu- not declaration of any of the United its States, ... tionality. consequence, As a he maintains filing appropriate upon of an plaintiffs’ independent consideration of pleading, may rights and other inappro- declare standing declaratory relief is to seek priate. granting preliminary injunction, legal party seek- relations of interested Act 825 "has declaration, the district court declared that ing or not further such whether infringing and chill- purpose and effect of sought. or could be relief is constitutionally protected ing the exercise explains legislative history of the Act rights providers and woman [sic] of abortion espe- declaratory judgments been ”ha[ve] Foster, seeking Okpalobi v. abortions.” avoiding necessity cially ... of useful (E.D.La.1998). F.Supp. decla- This 986 having peril ... abandon to act at one’s or provided district ration the sole basis for the incurring rights one’s because of a fear of plaintiffs had dem- court's conclusion that 1005, Cong., damages.’’ S.Rep. 73d 2d No. a substantial likelihood of success onstrated Sess., 2-3, (1934); Hearing also on H.R. 6 see request permanent for a the merits of their on injunction against of the Senate 5623 before a Subcommittee enforcement. the statute's Judiciary, Cong., on the 70th 1st Committee When the district court later made its See id. Sess., (1928). (’’Assuming 75-76 preliminary injunction permanent pursuant to plaintiff in the has a vital interest enforcement parties, agreement it refer- an between ordinance, challenged or there statute previ- contained in its enced declaration declaratory why judgment reason a conclude, is no panel majori- order. I like ous ty, issued, compelling of should not be instead express reference ”[b]ecause prece- declaring of the statute as a condition the Act unconstitu- violation the earlier order only for the in- constitutionality.”) tional and because the basis challenging dent to its 434 legаl have interests adverse to the named repeatedly recognized has

Supreme Court defendants, Attorney and considerations enter into General “that different Louisiana, of I we have declaratory as to Governor believe federal court’s decision relief, hand, jurisdiction under III to injunctive re Article consider on the one Wade, lief, declaratory for relief. request v. 410 U.S. their on the other.” Roe 113, 706, 733, 166, 35 L.Ed.2d 147 93 S.Ct. In Thompson, Supreme v. Steffel (1973) Koota, v. 389 U.S. (citing Zwickler analyzed de appropriateness Court of 391, 397-99, 241, 252-55, S.Ct. 19 88 relief, claratory specifically the existence (1967)). my 444 Based on read L.Ed.2d controversy, independently of an actual I find ing Supreme precedent, of injunction. propriety issuing from the an standing bring have plaintiffs 452, 469-70, 1209, 415 U.S. 94 S.Ct. 39 declaratory relief. action for plaintiff L.Ed.2d 505 Steffel sought protesting It familiar doctrine that the Declara to distribute handbills grant in the tory Judgment Act does not itself United States’ involvement Vietnam Instead, a local jurisdiction. shopping federal War on sidewalk near depends plaintiff under the Act on the existence of center. Several times the was controversy” eventually an “actual in a constitutional asked leave and was threat Haworth, trespass. Ins. v. with arrest criminal sense. Aetna Co. ened for Id. Life 227, 239-40, 461, 463-64, 454-56, plaintiff 94 300 U.S. 57 S.Ct. S.Ct. 1209. The (1937); sought declaratory 617 Nat’l Ass’n relief that the state L.Ed. Rifle 272, statute, applied, Magaw, trespassing Am. v. 132 F.3d as interfered Cir.1997). determining plain whether with the exercise of his constitutional 454-55, standing bring rights. tiffs have their claim Id. at 1209. The S.Ct. Declaratory Judgment pursuant Supreme plaintiff Court held that the dem inquiry controversy Act the basic is whether there onstrated an actual exists, alleged, plaintiff injury under the facts “a substan suffered threats of controversy, parties tial were having “imaginary speculative” between interests, legal adverse of sufficient imme had not been rendered moot. Id. at 458- 60, diacy reality (contrasting Younger warrant the issuance 94 S.Ct. 1209 v. Harris, 37, 41, 746, 749, declaratory judgment.” Maryland 401 U.S. 91 S.Ct. (1971) Co., Cos. Co. v. Pac. Coal & Oil 312 U.S. 27 L.Ed.2d 669 and Golden v. 510, Zwickler, 103, 85 L.Ed. 826 (1941).3 (1969)). I plaintiff Because find that the L.Ed.2d 113 Since presented controversy genuine injury an actual and faced a threat of absent a junction justiciable controversy articulated is the district court’s deci- A is thus distin- Constitution, guished dispute sion that the Act violated the from a difference or of a character, appeal necessity grants order hypothetical before us on or abstract plaintiffs' declaratory request both one that is academic or moot. The contro- Foster, injunctive Okpalobi concrete, relief.” See versy must be definite and touch- (5th Cir.1999). F.3d ing legal parties having relations of Court reached the same conclusion on similar legal adverse It must interests. be a real Mansour, facts. See Green controversy admitting and substantial 423, 426, (1985) n. 88 L.Ed.2d 371 specific through relief a decree of a conclu- (finding regulation’s declaration of unconsti- character, distinguished sive from an tutionality "embodied in” district court's opinion advising what the law would be relief). judgment granting injunctive upon hypothetical state of facts. Where admitting there is such a concrete case an immediate and bright finding definitive determination While there is no line test for proceeding upon alleged, controversy” Supreme the facts an "actual Court provided guidance judicial may appropriately inquiry function be on the in Aetna Co., affirming exercised ... Ins. the seminal case Life 240-41, (cita- constitutionality Declaratory Judgment U.S. at S.Ct. at 57 464 omitted). Act: tions Court, upon is founded the definite and dispute con- an “actual by declaration consequences concrete that will flow from declaratory relief troversy” existed majority Act 825.4 The the existence of appropriate. was it, dispute, does not seem to nor could reaffirmed Recently, injury-in- an plaintiffs will suffer traditional ... falls within the that “Steffel of the Act. arising fact from enforcement declaratory judgment actions be- scope of 825, enforcement, beyond by But Act its resolved a concrete completely cause it existence, plaintiffs mere coerces the judi- to conclusive controversy susceptible legal rights abandon the exercise of their Ashmus, cial determination.” Calderon they incurring substantial civil lest risk 1694, 740, 749, 118 S.Ct. liability. respect to the Act’s coer With Calderon, inmates L.Ed.2d 970 effect, what this presents cive this case the state of whether sought declaration as the classic situa recognized Court has re- expedited could raise the of California declaratory for relief: “where the tion of the Antiterrorism provisions view choice of plaintiff put to the Hobson’s Penalty Act as a defense. Effective Death of conduct giving up an intended course 1694. The Court Id. at he is entitled to under which he believes grounds several distinguished on Steffel facing possible take or severe civil or presented petitioners and found that the if under consequences criminal he does and thus lacked controversy, no actual Employers’ Ins. Assoc. v. take it.” Texas Declaratory Judgment standing under the (5th Jackson, n. 22 862 F.2d Cir. First, Act. Id. at 118 S.Ct. 1694. 1988) (en banc); Rifle, see also Nat’l. quali- as a declaration of California’s status (6th Cir.1997) (“[P]re-enforce at 279 F.3d only a discrete fying state would resolve usually granted under the ment review is controversy— underlying and not the issue a statute Declaratory Judgment Act when claims. Id. at 469- plaintiffs’ habeas costly, self-executing compliance ‘imposes importantly, 1694. More protected if [constitu burdens or it chills Steffel, the statute Calderon contrast ”) activity.’ (quoting Minnesota Cit tional] impact legal rights on the had “no coercive v. Fed. Election izens Concerned Life Id. In obligations party.” of either (8th Comm’n, 113 F.3d Cir. words, would the class of inmates other 1997)). Further, injury plain this by filing any incurred detriment not have directly promul traceable to the tiffs is prior ruling to a on petitions their habeas by Act 825 and will be redressed gation of state. qualifying was a whether California of the statute’s constitution a declaration injury re- The failure to show such Calderon, ality. a declaration Unlike tradi- inmates’ action from the moved the resolves the present completely case declaratory tional bounds of relief. controversy constitution underlying —the chilling effect. Ab present ality case is similar of the statute’s Steffel constitutionality have demonstrated on the plaintiffs sent a declaration liability regime, that will be redressed Louisiana’s strict injury-in-fact forced to confront Initially, plaintiffs the dis will be declaration. requested Declaratory neither choice Hobson’s pute presented prevent.5 Act was intended Judgement rather speculative, nor hypothetical Moreover, pre-enforcement action controversy, to 5. absent has stated: “A This Circuit Court, regime pres statutory justiciable, be such that it can be must the nature hypo litigated ently constitutionality. and decided and not may any review of its inhibit conditional, thetical, conjectural, or based likely fearing heightenеd liability will Doctors possibility upon of a factual situation abortions, there will be forgo performing thus Companies, Inc. may develop.” Rowan never liability brought in which the suits no strict 1989) Griffin, Cir. 876 F.2d regime be tested. constitutionality could Root, Big (quoting Inc. v. Rock Brown & inju- the true review exacerbates This lack of (5th Cir.1967)). Corp., 383 F.2d 436 justiciable controversy demonstration ‍​‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌​​​​​​‌‌‍of sented a plaintiffs’

Given the inquiry turns injury, designed oper- the to the statute at issue was appreciable Attorney them, whether or General directly despite the Governor fact ate the adverse to that of the legal has a interest prosecuted that none of them had been Attorney I General has plaintiffs. find the even threatened with 410 prosecution. in the legal a sufficient interest constitu- 179, 188, 739, 745, U.S. 35 L.Ed.2d tionality the statute. This inter- state’s (1973). Likewise, physicians 201 the recognized est is in both federal Loui- in are the targets clinics this case direct statutes, require siana notification of inju- plaintiffs’ Louisiana’s statute. These case, in civil or Attorney the General ry alleged by concrete as that criminal, constitutionality of where the a plaintiffs respect Doe. With to redressa- state statute is at issue. La.Code Civ. I that it makes bility, agree little sense 1880; § Proc. Ann. art. 28 2403. In U.S.C. enjoin Attorney General or Governor Attorney such General is enti- cases* doing they that which have no question present argument tled to on the self-executing liability a to do within stat- constitutionality. Finding Id. the Attor- Yet, ute—enforce the statute. as noted ney legal has a General sufficient interest above, enforcement of the statute is not underpinnings is also consistent with the injury plaintiffs. cause of sole regard, standing requirement. The mere existence of statute causes Supreme inquired has whether Court injury. The requested concrete declara- parties ... such a personal “[h]ave sufficiently injury by tion redresses that controversy stake in the outcome of the as granting a substantial basis to assure that concrete adverseness which constitutionality for confidence sharpens presentation upon of issues Roe, their conduct. 410 See U.S. 93 largely depends which the court so (refusing pro- S.Ct. at 733 to address the ques- illumination of difficult constitutional injunctive priety of relief on the basis that Carr, 186, 204, tions?” Baker v. 369 U.S. declaratory sufficiently relief redressed 691, 703, 7 I S.Ct. L.Ed.2d 663 plaintiffs’ injury). plain- Because the Attorney have no doubt that the General’s tiffs in- appreciable have demonstrated an constitutionality interest of the jury that this through Court can redress a guaranteed strong state’s laws a advocate conclusive declaration of the statute’s con- identify develop and served to for this stitutionality, they presented an actu- Court, court, and the district the relevant controversy obliges al and Article III us to arguments. act. engagement The concreteness of the sufficiency remedy this case II. by Supreme are jurispru- confirmed Having determined that the plaintiffs ... visibly dence that “has relaxed tradi- present justiciable controversy, I turn standing principles deciding tional abor- Edwards, Judge Margaret Jolly’s tion conclusion that the Eleventh cases.” See S. v. (5th Cir.1986) 794 F.2d Amendment “powerless renders this Court J.). Bolton, (Higginbotham, constitutionality In Doe v. to act” on the of private physicians pre- Judge Jolly Court found that reaeh- enforcement scheme.6 (1977) ("When ry "chilling” of a woman’s constitutional L.Ed.2d —the right fragmented choose an abortion. Court decides case ... holding may Court by be viewed as that Judge Jolly’s position 6. As Eleventh Amendment сon taken those who con- Members judgments clusion has not received the votes of a ma curred in the on the narrowest court, jority sitting grounds.”), en banc it is not cited in Doe v. Beaumont Ind. Dist., controlling authority for future Eleventh School 240 F.3d n. 3 Cir.2001); questions Ferguson, in this Circuit. See see also States, 188, 193, (5th Cir.2000) (noting Marks v. United F.3d

437 misconstruing Ex standing challenge to the existence of has this conclusion es to the Young as a narrow exception self-executing, private liability parte a state’s directive general Amendment’s currently infringes Eleventh that constitu- scheme in federal immune from suit are that states jurisdic- rights, tional federal courts opinion neglects regard, In this his court. violations. tion to redress constitutional expressed responsibility, constitutional our requires lawsuit that we plaintiffs’ of Yoimg, ongoing violations in to redress parte role of Ex fundamental respect supremacy law and thus insure federal Young In federal structure. recon- our course, “the need Of of the Constitution.7 com- competing constitutional ciling law of federal promote supremacy to in the Eleventh and Four- mandments to the constitution- accommodated must be Amendments,8 Young teenth Pennhurst, immunity of the States.” al courts, in to that federal order concluded 105-06,104 Accord- at S.Ct. 900. 465 U.S. rights guaranteed an individual’s preserve Young exception of the ingly, “[ajpplication Constitution, must have understanding of its proper reflect a must of unconstitu- prevent the enforcement system respect for in our federal role Young, 209 at legislation. tional state U.S. v. Coeur d’Alene Idaho courts.” 159-60, 28 S.Ct. 441. The Court reasoned Idaho, 261, 117 S.Ct. Tribe 521 U.S. of could not the Eleventh Amendment (1997) 2028, 2084, (majori- 438 138 L.Ed.2d to the immunity confer on state officer limits Court’s ty opinion). in an the state officer acted extent require- Young consider the basic on thus 1908, manner.9 unconstitutional Since the su- uphold courts ment federal again time and Court has reiterated light of the of the Constitution premacy Young parte Ex the values embodied-in relief on state requested effect of practical concept of federal- lim- are fundamental considering After these sovereignty. in our Constitution.10 its, plaintiff ism embedded I am convinced that when 445, Bitzer, tution.”); Fitzpatrick U.S. 427 equally-divided en banc court opinion of an (1976) prior precedent L.Ed.2d 614 of 96 S.Ct. does not disturb Amendment, ("[W]e Circuit). think that the Eleventh sovereignty it principle of state and the embodies, 123, 160, Young, 28 S.Ct. parte necessarily 7. Ex the en- are limited (1908) (“If question of 52 L.Ed. 714 provisions the 14th of section 5 of forcement least, reference, unconstitutionality, Amendment.”). involves con- That this case Constitution, raised in a be first the Federal rights protected by the 14th stitutional Amendment, court, right that court ... has Federal opposed to non-constitutional it....”). Osborn v. Bank decide See also significant. rights, of is thus federal 738, 846-51, U.S., (9 Wheat) 6 L.Ed. 22 U.S. (“The Young, U.S. at 9. alleged to be unconstitu- act to be enforced is prohibits Where the Eleventh Amendment tional; so, name of the use of the if it be of a suit a state the commencement act to the state to enforce an unconstitutional court, provides that no federal the Fourteenth proceeding complainants is a injury of life, liberty, any person deprive of state shall of, does authority and one which without the process law. See property without due or affect, sovereign govern- the state in its 149, 28 S.Ct. 441. Young, 209 U.S. at illegal act capacity. simply It is mental any pronouncement Though Young avoided attempting, upon part a state official Amendment alterеd that the Fourteenth state, to enforce by the use of the name of Eleventh, scope Supreme Court has is void because legislative enactment which Amend- recognized that the Eleventh since power has no ... The state unconstitutional rights protected by has less force when ment immunity impart [its officials] are at stake. See the Fourteenth Amendment authority supreme responsibility to the Florida, Tribe Fla. Seminole States.”) United (1996) 134 L.Ed.2d Amendment, (“CT]he expanding Fourteenth (ma- d'Alene, at 2034 10. See Coeur expense state autono- power at the federal ("We question the ... jority opinion) do not fundamentally the balance of my, ... altered parte Young doc- continuing validity the Ex by the Consti- struck state and federal Young presents doctrine ex- al court. This case a context in deciding whether the presented by operate to cases such as that parte tends which Ex must plaintiffs, duty our is to “ensure that meaningful protection rights afford immunity sovereign re- doctrine guaranteed by the Constitution. giving recog- mains also meaningful,.while Though Judge Jolly neglects to consider prevent violations of nition to the' need to fully aspects parte Young sup of Ex d’Alene, 117 federal law.” Coeur S.Ct. porting federal to hear cases (majority opinion). 2034 schemes, involving private very real con plaintiffs’ implicates precise suit im protecting sovereign cerns about supremacy concerns of con- regarding munity opinion. of the states animate his rights precipitated stitutional however, opinion, ignores prac That both sure, Young line of cases. To be the case reality Supreme tical and recent Court presented by does not fall jurisprudence regarding the role of offi Young paradigm into the traditional —no in parte Young cials sued Ex actions. Louisiana officer will enforce Act Judge Jolly seems to understand the con penalty against per- 825’s civil doctors that nection requirement that serves as the abortions, no form likewise doctor will be foundation for his Eleventh Amendment prosecuted by performing the state for an analysis for ensuring as mechanism Nevertheless, unique abortion. the Act’s officer, the state rather than the state private liability authorization of strict law- itself, object litigation. is the suits providers abortions bur- sense, opinion’s connection re right dens to an abortion to the same quirement assumes that the fiction Ex legislation granting Attorney extent as parte Young has some meaning real prosecute General the or fine Eleventh Amendment context —that it is performing individuals for abortions. That officer, the individual not the state itself state, sector, private not the enforces party that is the real in interest. This is penalties for performing abortions does simply many years, not the case. For not alter the fundamental effect of Louisi- Supreme shaped scope Court has ana’s scheme—doctors will refrain from parte Young the Ex exception as if the performing abortions because finan- See, state officer were the e.g., state. Co cial consequences involved and women in d’Alene, (majority eur 117 S.Ct. at 2034 significant Louisiana will face a burden (“Th[e] opinion) commonsense observation exercising their right constitutional to re- Jackson, of the State’s real when ceive an interest its officers abortion. See 862 F.2d are named (recognizing escaped at 507 civil as individuals has not both Court, notice or penalties criminal could chill comment from this either constitutional conduct). (citations Likewise, Young.”) the structural before or after anoma- omit ted). ly of Act 825 should not render party Louisiana Were the state not the real any more challenge immune from in feder- brought parte interest suits under Ex trine.”); Florida, rights responsible Seminole Tribe v. 517 U.S. and hold state officials 1114, 1131, supreme authority 116 S.Ct. n. 134 L.Ed.2d 'the the United (1996) ") omitted); Quern (citations (recognizing parte Young Ex as States. v. Jor dan, 1139, 1143, significant exceptions one of three to the Elev 440 U.S. 99 S.Ct. (1979); Rhodes, enth Amendment bar on suits in federal L.Ed.2d 358 Scheuer v. Green, court); ("Remedies 1683, 1687, 106 S.Ct. at 426 94 S.Ct. L.Ed.2d (1974); designed continuing Georgia to end a Banking violation of fed R.R. & Co. v. Red wine, 321, 324, necessary eral law are to vindicate the federal 342 U.S. assuring supremacy interest law.”); Judge of that L.Ed. See also Hospital Higginbotham's concurring opinion (Young Pennhurst State School &

Halderman, 89, 105-06, powerful implementation 465 U.S. "is a of federalism (1984) ("CT]he Clause, necessary Supremacy 79 L.Ed.2d 67 doc a stellar accepted necessary per companion trine has Marbury been and Martin v. Hunter’s Lessee.”). mit the federal courts to vindicate federal fact, causation, redressability parallel could never Young, Supreme Court majority’s necessary support requirement state action to that state offi- find the the 14th Amendment. See cers have “some connection with the en- violation of Telephone. Telegraph. City alleged & Co. v. forcement of the act” to be uncon- Home 278, 283-84, Angeles, “specially charged Los 33 stitutional or be (1913) (recognizing duty 57 L.Ed. 510 to enforce the statute” and be threatening duty.11 between official action under to exercise that Per- distinction reason, haps Amendment and official for this Judge Jolly’s opinion the Fourteenth single the Eleventh does not cite a purposes action modern Amendment). Similarly, provision of case that relies on its connection pro- requirement Rules of Procedure to support the Federal Civil dismissal of an Ex viding parte Young for the automatic substitution of the action on Eleventh Amend- grounds. By analyzing name of one state official for the name of ment the connec- predecessor requirement standing, his would make no sense in tion in terms of the limit, litigation parte Young. Supreme under Ex See Fed. Court has retained the but 25(d) (1999). Indeed, Judge increasing R. Civ. P. avoided the conundrum of the Jolly’s parte scope protection own characterization of Ex of Eleventh Amendment Young exception allegedly as an to the Eleventh as the role of the state in an un- understanding Amendment evinces an that constitutional statute This decreases. sued, Young analyze proper scope allows the state to be albeit Court must the of officers, through Young light reality when in of its constitutional rather than fic- questions prospective Reality requires are raised and relief tion. examination of the Supreme limits that the sought. is Court has consis- tently on placed Young determining developing require- the connection in apply present whether those limits component ment as Eleventh context.12 protection Amendment’s of state sover- Jolly’s opinion Judge Jolly’s eignty, Judge attempts require Unlike connection Yet, ment, reality. Supreme into limits spin Young fiction Court’s on Ex requirement parte Young have focused on the extent to opinion’s connection turns head, litigation will reality granting on its state broad- which federal interfere with immunity sovereign rights. from suit in federal сourt a state’s The er directly principal when its officers are not involved Court’s limit has been on sought: parte in of an unconstitutional nature of the relief Ex the enforcement expose used to directly Young act than when the officers are cannot be states monetary damages. Edelman position simply involved. That untena- retroactive Jordan, 1347, Although language Young may U.S. S.Ct. ble. (1974); Hut requirement the connection de- 39 L.Ed.2d 662 see also support Jolly’s opinion, Finney, to v. Judge fined in the Su- S.Ct. (1978) (allowing parte Ex preme standing Court’s modern doctrine 57 L.Ed.2d monetary inquiry. Young plaintiffs the connection to receive relief has subsumed injury-in- clearly ancillary non-monetary standing requirements explanation require in limited circum- majority's 11. The of “the connec- that states be sued simply stances, and re- tion” reiterates causation beyond that would be dressability components standing, while not, however, this intermediate court. That is requirement majority's that the officer be opinion purports to do. In this what this threatening passed by duty to exercise the is encom- Judge Jolly’s my opinion caricature of sense. injury-in-fact analysis current gross departure existing case law standing. under the Su- and the Constitution fails to confront jurisprudence preme Court’s modern on might away 12. While it be sensible to do interplay parte Young and the between Ex Young recognize fiction and that the Four- meaningful way. any Amendment and our federal structure Eleventh teenth Amendment relief). d’Alene, majority limit prospective This reflects both Coeur Su- practical preme plaintiff considerations. Court held that the Indian historical injunctive surprise” following the Su- tribe could not receive or declar- “shock atory decision in relief that would in effect function preme Court’s Chisholm quiet against the Eleventh like a title action the state of passage led to the Amend- d’Alene, by the fear that indi- Idaho. at triggered ment was See Coeur (O’Connor, J., concurring). Though be able to use the federal viduals would majority rejected large clearly to collect debts from the of the Court courts case-by-case Principality balancing approach pro- states. See Monaco Mississippi, posed Kennedy, Justice the Court also Thus, pro- recognized Young 78 L.Ed. 1282 —Eleventh seeking monetary hibition on relief had inquiry to transcend form inquire Judge Jolly’s a state federal court addresses the his- into substance. approach torical concerns that existed at the time is flawed it limits Ex Constitution, subsequently parte haphazardly without con- Amendment, rights Eleventh were ratified. sideration of the constitutional practical standpoint, From a limit sought stake or how the relief interferes safeguards important rights. one of the most ele- with states’ sovereignty ability ments of to inde- —the case, present plaintiffs In the chal- and pendently manage public distribute lenge constitutionality legisla- of state time, At revenues. the same the Court’s Young’s tion and thus invoke concern re- prospective injunctive allowance of or de- garding the power of the federal courts to claratory provides relief a mechanism for Moreover, rights. vindicate constitutional safeguarding supremacy the ultimate they the form of relief that seek—a decla- our federal constitution and the federal unconstitutionality ration of the least —is system it created. See Coeur d’Al- In Thomp- intrusive available.13 Steffel 2040; (O’Connor, J., ene at id. at 2046 son, Supreme recognized Cоurt (“When concurring) plaintiff a pro- seeks unique nature of and “different consider- spective ongoing relief to end an violation ations” involved with granting declaratory rights, ordinarily of federal the Eleventh 469-70, Steffel, relief. 415 U.S. at bar.”); Green, poses no disregarded S.Ct. 1209. The Court has (“[T]he availability S.Ct. at 426 of prospec- declaratory the distinction between tive relief of sort awarded in parte Ex injunctive only relief “principles when Young life gives Supremacy to the altogether federalism militated Clause.”); Bradley, Milliken v. 433 U.S. adjudica- federal intervention in a class of 267, 2749, 2761-62, 97 S.Ct. 53 L.Ed.2d 745 472, tions.” Id. 94 S.Ct. 1209. For Mackell, example, Samuels v. (1971), applied Court has lim- its 91 S.Ct. 27 L.Ed.2d 688 scope Young pragmatically, its on the the Court concluded the issuance of a dec- guided by the substantive effect of the laration of a constitutionality statute’s remedy sought rather than the form alone. during pending proceeding would injunctive In this regard, principle even or declara- offend a notion of federalism— tory substantially relief interferes “that state courts have the respon- solemn sovereignty may with a state’s sibility, equally be barred with the federal courts ‘to by enforce, guard, the Eleventh Amendment when consti- protect every right Thus, tutional concerns are not at issue. granted or secured the constitution of possible 13. If the federal court declares the contested avenues of relief would be reached unconstitutional, legislature voluntarily by statute the state the States and would be com- may repeal pletely concepts amend or the statute or the state consistent with the of federal- persuaded may courts (Rehnquist, the decision of ism ...” Id. at 94 S.Ct. 1209 event, J., concurring). the federal court. 11these "[a] ” view, Moreover, my the Elev- relief. Steffel, 415 U.S. at States.’ United impede does not Robb v. enth Amendment 460-61, (quoting 94 S.Ct. ability pursue that relief plaintiffs’ Connolly, 111 U.S. (1884)). However, Accordingly, I concur with federal forum. “[w]hen L.Ed. 542 majority’s opinion plaintiffs’ thus pending proceeding no state dismissed, but dissent injunction should be comity, and fed- equity, considerations majority opinion extent propriety vitality, little eralism have the district court’s declaratory may relief undermines federal granting Act underlying declaration on independently of a issue considered properly be constitutionality. Id. at 825’s injunctive relief.” request for precluding from our 1209. Far PARKER, of a considering the merits Judge, M. Circuit Court ROBERT relief, declaratory request dissenting: our compel federalism principles of Jolly’s at- respectfully Judge I dissent. violations constitutional alleged to address parte excessively narrow Ex tempt case, when, plaintiff success- as in this only plurality Young’s scope garners of a con- fully establishes the existence court, therefore, his lan- use controversy.14 tinuing binding authority any.” guage, it “is not treatment of I write to note his flawed III. juris- present and to the traditional opened federal courts The avenue to the scope, and to re- view of its prudential be available parte Young Ex should repre- extent it spond opinion to the (1) an actu- plaintiff can establish when dismiss this sents the court’s decision to involving alleged constitu- controversy al for lack of a against Appellants action (2) violations; declaratory tional seeks Controversy.” or “Case in substance interfere relief that does not ways specifically sovereign rights with I. Court, such as by Supreme the prohibited court’s by observing I monetary damages start effectively awarding entirely dispose of this deсision does not ongoing preempting a state or a remains as action because the State approach This neither proceedings. state initially sued fiction, Appellees defendant. nor crafts a named Young casts aside the Treasurer “declaratory judgment exception” to Governor new and Treasur- Rather, The Governor my district court. Amendment. the Eleventh per to dismiss and neces- er moved approach principled reflects Fed.R.Civ.P. 12(b)(6), Treasurer should alleging that the parte of the Ex sary application a claim. for failure majori- be dismissed Though agree I with the doctrine. to substitute stipulated parties then injunction against that the ty’s conclusion as a named for the Treasurer I find the State improper, named defendants was defendant, Appellants withdrew an actual presented have that the Appellants, as moot. declaratory motion to dismiss ripe for controversy that mean that other pro- available does not I relief Judge Higginbotham contends that necessarily violate forms of relief would pose "generic exception to the Eleventh Yet, con- I need not' Eleventh Amendment. declaratory relief.” This is Amendment for noted, whether the Eleventh previously sider simply not the case. As ability impede to issue forms by plain- our declaratory sought would form of relief standing plaintiffs do not have relief relevant to the Eleventh Amendment tiffs is said, my approach to determin- That to seek. inquiry only in far as the so limits on Ex ing Eleventh Amendment consistently the intrusiveness has considered apply equal force scope parte Young would sought defining when of the relief involving injunctions or other forms on these cases parte Young. That a declaration Ex form of relief. the least intrusive facts constitutes State, including imposing liability then filed answer cause of action unlimited against Appellees’ pro- claims. The State anyone performing on an abortion. As the merits, litigate admits, this action on the ceeded majority exposes anyone Act 825 jurisdic- the existence of questioning never liability any damage to “unlimited tort for dissent, panel sponte, tion until the sua procedure caused the abortion to both ” the Eleventh Amendment raised mother Supra and ‘unborn child.’ at 409. Therefore, standing arguments. the dis- Liability imposed any “injury” to an injunction trict court’s is unaffected with child,” liability “unborn which means that respect to the State. can imposed per- for the mere act of Moreover, forming an abortion itself.

II. person performing the abortion cannot liability by obtaining avoid informed con- A. patient. sent Informed consent yet attempt by Act 825 is another action, negate “does not cause of [the] but State to federal constitutional violate recovery rather reduces the of damages.” rights as construed federal courts. As 9:2800.120(1). § This is in stark contrast Higginbotham Judge observed: existing liability civil provision of appeal episode This is the latest law, the State’s informed-consent long effort Louisiana to exercise its provides complete malpractice defense to police power practice over a to which the if physician complies claims with the given protec- courts considerable requirements. law’s extensive 22C La. Indeed, tion. “regu- the state seeks to (West § 40:1299.35.6H Rev.Stat. Ann. permitted by late abortion to the extent 2000). Further, provides Act 825 no de- the decisions of the States United Su- malprаctice fense to suits for abortions preme Court.” La.Rev.Stat. Ann. performed in necessity case of medical (West 1986). § 40:1299.35.0 Al- Supp protect patient. the health of the Final- though one would not think that there is ly, Act 825’s mischief is not limited to anything inherently suspect about a providers. abortion It covers a broad regulate state’s undertaking to range providers, of women’s health care area, repeatedly abortion Louisiana has including physicians treating serious medi- objections encountered constitutional trauma, cal conditions such as infection or portions regulatory of its schemes. for may treatment include medi- Edwards, 994, Margaret v.S. 794 F.2d 996 cally necessary It abortion. also includes (5th Cir.1986) (footnote omitted); see 22C contraceptives manufacturers of and the (West 40:1299.35.0 La. Rev. Ann. Stat. physicians pharmacists and prescribe who 1992) (expressing “legislative intent” to Thus, them. imposes Act 825 strict liabili- defy Supreme authority Court on abor- ty anyone performing an abortion. tion). long history1 restricting After a confirm abortion, provisions Such right that Act 825 woman’s to choose State, 825, by enacting Act constitutes an undue has now burden on woman’s changed attempting right tactics and is ban choose an abortion because it has altogether by creating private abortion purpose and placing effect of a sub- Wade, years bility, 1. Five after opinions regarding Roe v. the State necessity second statute, regulation enacted an abortion but preserve of an abortion to a mother’s provi- a district court struck down several health, parental consent without ade- Margaret sions as unconstitutional. S. v. quate judicial bypass provisions. A district Edwards, (E.D.La.1980). F.Supp. 488 181 provisions court declared most of these constitutional, un- promptly passed The State that another statute Treen, Margaret S. v. 597 alia, required, costly inter and unneces- (E.D.La.1984), F.Supp. 636 and we affirmed abortion, sary testing prior ultrasound S., Margaret that declaration. See 794 F.2d hospitalization tions, post-first-trimester for abor- at 999. presumptions untenable of fetus via-

443 statutes to be un- tently declared similar exercise of hindering the obstacle stantial constitutional. Planned Parenthood See right. 833, Casey, 505 U.S. Pa. v. Southeastern B. (1992) 2791,120 877, L.Ed.2d 674 112 S.Ct. By exposing person opinion). (joint Wade, 113, 410 93 Roe v. U.S. Since liability to strict an abortion

performing 705, (1973), 147 35 L.Ed.2d Doe S.Ct. compliance with person’s regardless of Bolton, 179, 739, 410 U.S. 93 S.Ct. 35 v. law, designed to Act 825 is not existing (1973), women, individual L.Ed.2d 201 n choice, eliminate but to a woman’s help and clinics have in providers, abortion shutting down effectively that choice judicial power to chal voked the federal id.; Hope Clinic providers. See abortion by bringing ac lenge regulations abortion 876, (Posner, 857, 195 F.3d Ryan, v. Young, 209 pursuant parte tions to Ex C.J., compliance The fact that dissenting). (1908), 441, L.Ed. 714 U.S. regulations does informed consent injunctive relief declaratory is not liability proves that Act 825 negate Notwithstanding against state officials. More woman’s choice. designed help plaintiffs pregnancy Roe the fact that the over, Act 825 undisputed that because it is prosecution and that no had terminated provide who substan Appellees, force will her, was threatened within services tially all of the abortion challenge Texas’s permitted her to Act 825 Louisiana, operations, to cease by suing law a district criminal abortion right obstacle on the a substantial places Roe, 124-25, attorney. at U.S. Casey, 505 at abortion. U.S. to choose an extended Similarly, the Court S.Ct. 705. 2791; Parenthood Planned S.Ct. not providers Doe standing to abortion Miller, Cir. 63 F.3d pros withstanding the fact that none were 1995). un prosecution threatened with ecuted or Doe, 410 abortion law. U.S. Georgia’s der addition, has it is clear that State While earlier abor at 93 S.Ct. 739. to circum- attempt in an enacted Act 825 liability criminal regulations imposed tion upholding decisions vent federal court violation, civil the inclusion of for their The State’s to choose an abortion. right plain prevent aggrieved did not liability in Title 40 of its code is codified abortion regulations challenging such tiffs “Public Health governing Revised Statutes had no named defendants though even regu- Safety,” and contains numerous E.g., actions. Ca to enforce such rise to gives violation of which lations the 2791; 888, 112 Co sey, 505 S.Ct. U.S. has penalties. and civil State criminal 383-84, Franklin, lautti in its Code Ancillar- Act 825 “Civil buried (1979); Planned L.Ed.2d 596 Statutes, provid- of its Revised ies” section Danforth, 428 Cent. Mo. v. Parenthood of parties. only private civil remedies to ing 52, 83-84, 49 L.Ed.2d of unlimit- the enforcement By privatizing (1976). 788 undoubted- damages, which is monetary ed Supreme Court retained Casey, is In the State ly penalty, a state-sanctioned holding and established Roe’s essential defending patently to avoid attempting reviewing the undue burden test for simultaneously law while unconstitutional constitutionality of state interference impact so drastic effecting a coercive an abortion. right to choose to a woman’s have no choice but providers abortion (joint opin- 112 2791 S.Ct. illegiti- 505 U.S. purpose This operations. cease ion). Casey plaintiffs unduly Significantly, Act 825 only mate not because and clinics providers of abortion right, consisted constitutionally protected burdens a patients, of their suing, on behalf judicial evade it seeks to but also because attorney gen- and Pennsylvania governor However, entirely Act 825 is not review. eral, The just in this case. as form; have consis- federal courts novel Assocs., Pryor, the effective dates of Summit Med. brought suit before P.C. (11th Cir.1999) laws, just as in this case. challenged (holding F.3d 1326 alia, declared, Pennsylva- inter governor, attorney general, Alabama and statute, which made a spousal nia’s consent attorneys proper district were not defen- an abortion on a physician performing plaintiffs’ for the to challenge dants spouse’s her con- married woman without provision civil liability of Alabama’s abor- spouse damages, for civil sent liable to the statute); Hope Ryan, tion Clinic v. 887-98, Id. at unconstitutional. (7th Cir.1999) (en banc) (relying F.3d 857 pro- reasoned that such 2791. The Court dismissing on Medical Summit and impose a substantial obstacle vision would plaintiffs’ challenge to Illinois and Wiscon- ability to an abor- obtain woman’s partial-birth-abortion provid- sin statutes tion deter most women from and would alia, ing, inter a civil cause of action be- if obtaining an abortion as the state had attorneys general cause defendants — completely outlawed abortions. Id. at prosecutors provi- not enforce such —did 893-94, reasoning Such sions), vacated on grounds, other Appellees’ forms the claims this basis 147 L.Ed.2d 1001 case. circuits, years, recent several includ important lesson from the above court, ing challenges reviewed they decisions is that involved actions state abortion statutes under the Roe and brought pursuant enjoin Casey models and reached merits of governors, attorneys general, prose- challenges they such even when included cutors from enforcing allegedly civil unconsti- liability provisions not enforced See, they tutional statutes e.g., Causeway state officers. Med. before became ef- Foster, Cir.2000) Suite F.3d 811 fective. the challenged While statutes J.), (Jolly, aff'g, Causeway Med. Suite v. liability contained both criminal and civil Foster, (E.D.La.1999) F.Supp.2d provisions, courts nonetheless reached the (enjoining governor Louisiana and attor plaintiffs’ challenge merits of the to deter- ney general enforcing the State’s statutes, mine whether the including the statute, partial-birth abortion 22C La.Rev. liability provisions, imposed civil an undue 40:1299.35.3, § Stat. Ann. on a right recodified burden woman’s an choose (West which, § Supp.2000), 40:1299.35.16 Only abortion. the Seventh and Eleventh alia, provided inter a civil cause of action plaintiffs’ Circuits dismissed the challenge for damages against provider abortion to the civil liability provisions for lack of statute); who violates the Women’s Med. jurisdiction. Voinovich, Corp. v. 130 F.3d 187 Prof'l Under the authority relevant discussed (6th Cir.1997) (declaring unconstitutional above, powerless we are not act re- provision Ohio abortion statute’s strict viewing the judgment of the district court. liability compensatory, punitive, civil for Act 825 is similar to the statutes were exemplary damages well as costs challenged pursuant Young in the above attorney’s physician fees decisions, but Miller, is also different it abortions); certain late-term only However, imposes liability. civil F.3d at 1456 n. 5. & 1467 (striking down difference should not fact provision conceal the of South Dakota abortion statute State, by enacting Act creating attempt- a civil cause of punitive action for ing regulate providers to damages by and treble actual to a minor and abortion ex- parent, posing and them to declaring potential liability unlimited strict for “[t]he liability civil the mere act of good-faith, performing even reason an abortion. able enough exposure designed mistakes is more than to chill Such to eradicate all willingness physicians perform by effectively of to abortions shutting Ap- down Dakota.”). in abortions South But see pellants’ operations, something the State either proceedings, to commence When about indirectly. directly or cannot do nature, to enforce with or criminal considered of a civil effect is staggering this of affected an unconstitu- illegitimate purpose against parties patently the State’s act, to abortion right violating the Federal Consti- unduly burdening tional by enacting judicial tution, enjoined by review a Federal evading may be while dismiss this 825, decision to Act the court’s action. equity of from such scope of excessively narrows action 155-56, (emphasis add- Id. at 28 S.Ct. the su- and undermines principles Young’s ed). Then, Court, plurality rights. premacy of federal notes, distinguished Fitts from correctly in Fitts Smyth by noting that III. who was made officer As no state A. connection any close party bore official tolls, making fixing the act error lies egregious most plurality’s was a party of officer a defendant such unnecessary revisionist flawed and its constitutionality to test the simple effort Ames, v. 169 U.S. Smyth of interpretation way, there is no act in that and of such (1898), 418, 466, 42 L.Ed. 819 18 S.Ct. which it could be done. principle upon 516, McGhee, 19 S.Ct. 172 U.S. ‍​‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌​​​​​​‌‌‍Fitts might A of schools superintendent (1899), Young.2 The 269, and 43 L.Ed. 535 party. made a as well have been simply unsup- interpretation is plurality’s and language by Young’s, express ported added). (emphasis at 28 S.Ct. Id. ’ Supreme Court Young, In holding. holding Fitts as: The Court restated against the Nebraska that the suit statеd a party of the state making In an officer Smyth was not attorney general enjoin the enforce- defendant a suit “[tjhere special was no the state because alleged an act to be unconstitu- ment of rates, mak- as to in the statute provision tional, that such officer must plain it is attorney general duty it the of the ing with the have some connection enforce- but, it, general powers, his under enforce act, merely or else it is ment mandamus to authority to ask for a" he had representative him a as a making party Young, any other law.” such or enforce state, thereby attempting and (emphasis 28 S.Ct. 209 U.S. party. make the state a added). supporting citing After decisions Id. at the Court stated: holding, by errs plurality importantly, Most have referred authorities we The various ’ limited Fitts recognizing justification for the as- ample to furnish requirement connection” “close official who, as officers that individuals sertion stating duty state, clothed with some are not, however, that it been held It of the laws has regard to the enforcement duty necessary such should state, and are was who threaten banc) "vigorously pressed” before "vigor en parties plurality states that the 2. The Patsy’s procedural his arguments light ously pressed” jurisdictional It the Court. referring Patsy v. Board this court in this action light before of the fact that tory, and in briefed, n. Regents, raised, parties the Elev we Patsy, the 73 L.Ed.2d 172 court’s own on the Amendment issue enth on the Elev declined to rule decision, is im panel it after the initiative only it was because enth Amendment issue pursued this parties proper suggest that the before four passing the state mentioned in vigor parties in as the with the same issue courts, it. The Su had not addressed Louisiana, F.3d Coolbaugh Patsy. See upon rule the merits preme Court chose to I., 1998) (Smith, dis Cir. 442 n. 5 issue, which was of remedies the exhaustion (“Raising senting) Eleventh [the 12(b)(6) motion initially presented in a Rule light problematic ... sponte sua issue] dismiss, and decided it was raised Patsy.''). (both panel and this court by the district court lan, J., in dissenting). declared the same act which is to be Justice Harlan disa cases, true, greed Young majority’s In some it is with the enforced. statement 443, 164, Ayers, that In re duty of enforcement been so im- 8 S.Ct. has (1887), 31 L.Ed. 216 was not ..., controlling. posed may possibly but that make 189-90, Young, 209 U.S. at S.Ct. duty more clear. The fact that the Ayers Virginia ordering involved a statute officer, by office, virtue his has of state officials to sue to recover taxes from some connection with the enforcement of taxpayers who coupons had used interest act, important and material pay on state bonds to their taxes. The fact, and whether it arises out of the Ayers taxpayers Court held that law, general specially by or is created bring against could not suit the officials to itself, the act is not long material so as it enjoin enforcing them from the statute exists. against because such suit would be added). (emphasis Id. In contrasting Young state. Justice Harlan’s dissent in Fitts, Smyth in Young and the Court stat argued Ayers that the barred suits were ed Smyth spe involved “state officers identical in Young the ones cially charged with the execution a state of they both involved suits officers enactment,” and that such “special charge” special duty with no to see to the enforce “sufficiently was apparent duty when such ment of in question, the statutes general exists under the authority some therefore such effectively suits were law, though authority even such is not to against the state. Id. at 28 S.Ct. 441. particular be found act. It might Furthermore, Justice Harlan asserted that by exist general reason of the duties of the Fitts, applied principles Ay officer to enforce it aas law of the state.” ers, directly was point” “[m]ore on added). Id. at (emphasis 28 S.Ct. 441 Young. Id. at 441. In addi The Court concluded that the officers in tion, Smyth, he noted that which was duty Fitts “had regard no at all with by majority, “much relied” on was added). (emphasis the act.” Id. sig distinguishable Young’s facts be nificance of all this in Young, is that in Smyth cause Nebraska waived immuni ’ departed from Fitts close connec ty from suit virtue of a cause of action special tion or requirement by relation in expressly granted to the railroads ferring “some connection” to the chal 193-94, in question. statute Id. at lenged act from attorney general’s 441. Justice Harlan feared that Fitts was general duty to enforce Minnesota’s laws away” “frittered majority’s because the re 160-62, virtue of his office. Id. at Smyth liance on support ’ light 28 S.Ct. 441. In of Young’s interpre was erroneous in light of Fitts reaffirma Fitts, tation flatly it is wrong to assert application Ayers. tion and Richard Cf. Young and Fitts are City consistent. See al., H. Fallon et Hart & Wechsler’s Carr, Altus v. 255 F.Supp. System Federal Courts and The Federal (N.D.Tex.) court), (three-judge aff'd, 385 (4th ed.1996) 1065-66 (stating Young (1966) 17 L.Ed.2d 34 Ayers). Significantly, undermined he Clyde (mem.); E. Jacobs, The Elev question stated: “The cf. statutes did not Sovereign Immunity enth impose upon attorney general (1972) 130-42 (noting inconsistency be Minnesota special duty to see to their Young). tween Fitts and enforcement. In bringing the mandamus suit he general acted under the authority Moreover, Harlan, Justice who wrote inhering in him as the law Fitts, Smyth and dissented in Young by chief officer of (em his state.” Id. at 28 S.Ct. 441 stating overruled, is, that Fitts “is not but added). phasis fear, I away frittered put sight by out of Young majority’s] [the unwarranted dis- The plurality erroneously interprets (Har- Fitts, tinctions.” Id. at Smyth, 28 S.Ct. 441 a consistent

447 ' Young to chal- pursuant actions strict address emphasizing doctrine —a “triad” — regulations. lenging have abortion the officers sued that requirements with the enforcement “some connection addition, statement plurality’s In “specially or be in question act” that there be some “requirement that the stat- duty to enforce with the charged enforcement action or threatened actual “triad,” However, and is no there ute.” repeatedly has been Young applies before by any recognized fiction is not Young inaccu courts” is by the federal applied “Smyth-and-Young-as-mmi- as the cases Numerous rate. ” the Eleventh exception to mized-by-Fitts “threatened enforcement” relaxed the authority There is no Amendment bar. in con Young the abortion requirement and Fitts as Smyth, Young, supporting at 112 Casey, 505 U.S. E.g., text. decisions, that con- line of and consistent (reviewing pre-enforcement 2791 S.Ct. inabil- Harlan’s is Justice tention belied law); abortion challenge Pennsylvania’s to from in Fitts the statute ity distinguish to Doe, 186-88, 745 93 at 410 at U.S. S.Ct. at Young, 209 U.S. Young. in the statute challenge (permitting pre-enforcement J.) (“I (Harlan, am unable 193, 28 S.Ct. 441 the de even before Georgia abortion law [Fitts], principle, in distinguish Roe, prosecution); threatened fendants us.”). Further, one now before 123-27, at 712-13 93 S.Ct. U.S. at 410 Smyth were not Young statutes challenge to (permitting pre-enforcement in Fitts with the statute “sharp contrast” fact that despite law abortion Texas Harlan, there because, according Justice de pregnant). Other plaintiff was statutes difference between the was no plurality’s contradict directly cisions Fitts, the statute whereas Young and Attain, See, e.g., Papasan statement. of action granted cause Smyth expressly 92 n. 282 478 at the state. Id. against to the railroads (1986) the Mis (holding that 209 L.Ed.2d importantly, 193-94, 441. More Secretary of State sissippi Governor neces- finding limits Fitts Young of their because proper were defendants officer between the sary “connection” officials over local supervision” “general it office” whether of his the act “virtue for edu land set-asides administration specially general law or arises out of the Voinovich, F.3d at purposes); cational created. (“Here, charge prosecutors could that incredibly plurality asserts added); Angeles Los (emphasis plaintiff.”) up- cases spawned numerous Young “has (9th Eu, Cir. 979 F.2d 697 Ass’n v. Bar its recognizing explaining, holding, 1992) Young even (holding applied that that its suggest principle” fundamental by the no enforcement though there was widely accepted as is so interpretation challenged stat officials of defendant agree While I beyond doubt. by the judicial appointments governing ute cases, not numerous Young spawned has issue] at “[The statute defendants because consistently upheld or all of them have gives type of statute simply not the principle. fundamental applied its Luck proceedings.”); rise to enforcement has been plurality’s suggestion Harris, F.2d ey v. is an embellishment uniformly applied Cir.1988) (“Personal by defendants action Indeed, the illogic. Young’s even defies necessary condition individually is not a its support only decisions to plurality cites state officers relief injunctive contrary conspicuously omits but assertion of these light their official See, capacity.”). e.g., City if none exists. authority as decisions, courts have that federal Moreover, Altus, F.Supp. of some the institution repeatedly required hardly are plurality cites the decisions the action enforcement actual threatened ap- sample consistent representative suits mischaracter- hearing officer inappo- are before Young, and most plications of existing izes law. they do not to this site action 2932; B. at 283 n. Luckey, F.2d at 1016. plurality compounds The its error by reinterpreting Young formulating a

“some connection” test is so amor- IV. cannot phous plurality pre- even the Nonetheless, even Ap- under this “test” cisely articulate what it measures. The pellants have “some connection to the en- initially stated as “whether the test is forcement” of Act 825. A distinct nexus requires that the Young fiction defendant exists Act strips Appellees pow- state official have some enforcement providers and other abortion statutory of respect particular to the ers statute on malpractice liability limitations medical issue, at the official or whether need have 9:2800.12(0(2). they currently enjoy. § powers only no such and need enforcement Attorney The Governor and General su- charged general authority be with the and pervise control implementation and of that all of responsibility to see the laws of statutory liability, limitations of codi- faithfully executed.” at Supra state be fied in Title 40 of the State’s Revised added). Then, (emphasis this “test” is By Statutes. exempting brought all claims “(1) gauging ability redrafted as pursuant Act 825 from Title 40 cover- official at un- to enforce the statute issue age, Act requires the Governor and statutory powers, der his or constitutional General, Attorney and the entities and ad- (2) willingness the demonstrated control, they supervise ministrators the official to enforce the statute.” Id. at exemption enforce by disallowing any added). However, (emphasis provider’s liability abortion claim to cover- undergoes “test” a further revision when age they whenever are sued under Act the plurality modifies the “demonstrated 825. willingness” prong ability to include “the Under Louisiana’s malpractice medical to act.” Id. at 421. regime, liability total capped $500,000. at plurality The thus transforms' its rein § 22C La.Rev.Stat. 40:1299.42.B. ANN. terpretation to create an errone However, any private only doctor is liable Young’s ous test that princi undermines up $100,000-any liability up additional ple permitting pre-enforcement officer $500,000 is to paid from a Patient’s rights suits to “vindicate federal and hold (“PCF”). Compensation Fund responsible state officials supreme ‘the 40:1299.42.B; § Kelty see ” also v. Brum authority of the United States.’ Penn (La.1994) field, 633 So.2d 1210 (per cu- Halderman, Hosp. hurst State & Sch. riam). The by PCF is administered 89, 105, 79 L.Ed.2d Compensation Patient’s Oversight Fund (1984) (quoting Young, 209 at U.S. (“PCFOB”), Board a board in the office of 441). explanation, Without the Governor with appointed by members Young’s requirement that there be “some § the Governor. 40:1299.44.D.The PCFOB connection with the enforcement of the may quantum contest the damages, but act” has something been modified to be liability. not its Kelty, See 633 So.2d at yond “general authority responsibili ty,” “statutory and then distilled to However, constitutional powers.” this re Management Office Risk (“ORM”) formulation cannot be reconciled with is an office within the Governor’s Young’s express language that the con Division of Administration and headed duty arise, nection or may “by administration, of an officer the commissioner of and is office,” virtue of his out of “general subject thus direct Governor’s con- law, or is specially 39:3-5; created supervision. §§ the act trol and 39:1528. Young, itself.” appoints The ORM legal counsel for the added); 441 (emphasis Papasan, 478 U.S. PCF and establishes minimum qualifica- malpractice claims and reviews medical counsel. such standards tion and oversees liability Attorney supervises incurred Any § General 40:1299.41.J. paid pay- Self-Insurance and the appointment the state counsel duty of the § It is the 39:1583. Fund. of settlements from the State’s ments legal counsel appoint Attorney General funds, representing the state’s as well as Fund, and the Attor- to the Self-Insurance challenges. against constitutional interests all settlements ney approve must General General, Attorney and the Governor Fund over by the Self-Insurance made oversight through appointment their 39:1535.B(6).3 39:1533.B; $25,000. §§ responsibilities, must determine re- malpractice from the malpractice exempt Title 40’s medical claims are Under state malpractice against claims gime, all un- regulatory scheme malpractice medical must be providers care private and health at 283 Papasan, Act 825. See der panel before by a medical review reviewed 2932; Eu, at 979 F.2d n. cf. in court. can file suit the claimant (determining Young’s, that “connec- 40:1299.39.1; §§ 40:1299.47. The gov- was satisfied the requirement tion” panels review are administered medical duty positions and fill appoint ernor’s administration, who is the commissioner duty certify secretary of state’s and by the Governor supervised and appointed elections, the statute stating and pleasure. at and serves Governor’s gives rise to question type “is not the 40:1299.1.A(1); ” med- private §§ 39:1. The added)). (emphasis enforcement by the panels ical are administered review pro physician has a who 40:1299.44D; example, For §§ 40:1299:47. PCFOB. device a woman with an intrauterine required to ren- vides panels review are medical (“IUD”) that are Medi on each claim an abortion?4 expert opinions performed der subsequent to re panels required evidence will be admissible cal review action, panel members of the aris malpractice actions view all medical witnesses expert may be called and determine ing out of the use of IUDs 40:1299.47.G, 40:1299.39.1G, H; §§ case. per physician prescribing whether Goldman, H; Everett v. 359 So.2d see also by Act as defined formed an “abortion” (La.1978). on will likewise be called panels 825. The applying to exercise discretion scheme, the Gov- regulatory Under arising in cases malpractice regime State’s Attorney have the and the General ernor of chorioamnionitis. out of treatment to the enforcement requisite connection develops this intrauterine a woman When satisfy Young. The Governor Act 825 to early pregnancy, in a she and infection board that supervises appoints wall, preg- addition, terminating an intrauterine constitutionality thus of a statute In Whitridge, declaratory judg Compare may nancy. attacked in a not be Williams Ob- John Attorney 1989) ("The (18th General ment action unless mecha- ed. stetrics copy and the proceeding, with a served chemically inert device action of the nisms of and, heard Attorney is entitled to be General precisely. defined Interference have not been discretion, supervise represent his implantation of the fertilized with successful state in representation of the interests of the to be the endometrium seems ovum in the Co., Gayle proceeding. Vallo v. Oil See action.”) Pre- prominent with How IUDs most 1994) Inc., (La. (citing La. Civ. So.2d 859 Pregnancy, Population Population Reports, vent 1880; art. Ann. Code La.Rev.Stat. Program Hopkins Johns Information Edwards, 49:257(B)); 517 So.2d § Bruneau v. Hygiene Health v. XXIII and Public School of 1987). (La.App. 1 Cir. (1995) suggest (reporting that studies no. 5 fertilizing ova and prevent sperm from IUDs fully understand neither 4. Medical authorities they support the common belief do not accept universally work nor how IUDs implantation.); by preventing usually work abortifacients, although there is IUDs are Gynecologic see also Leon Speroff, Clinical prevents strong IUD a con- evidence that an Endocrinology ovum, Infertility (a in the words ceptos fertilized female 1994). 825) implanting uterine ed. in the of Act untreated; however, ject if may liability fetus die left doctor to unlimited for the treatment will terminate only available death of the fetus? While far from ex WhitRidge at 751. pregnancy. See haustive, examples these leave no doubt woman, physician Will the who treats Attorney that the Governor and the Gen saving terminating preg her life but eral, control, through supervision their nancy, panel held be the review have routine, enforcing concrete role in performed an and thus dis abortion be Act 825. qualified protection? for Title 40 Such recently We allowed health maintenance by statutory employ, require decisions (“HMOs”) organizations bring pre ment, Appellants’ regulatory powers. emptive against attorney action the Texas yet example, procedures another abortion general and commissioner of insurance may coupled with the administration of alia, that, challenging a Texas act inter ligation, anaesthesia or tubal which remain private pa creates cause of action for eligible malpractice for the medical re Corporate tients their HMOs. gime. panels Medical review will be called Ins., Ins., Dept. Health Inc. v. Texas by on to “enforce” Act determining Cir.2000) 215 F.3d 532 & n. 6 which claims to exclude from the medical J.). Eu, malpractice (Higginbotham, Corporate In regime. 979 F.2d at Health Cf. 704.5 Pharmacologically standing induced abor we held that had tions, by agents caused such as RU-486 or properly and defendants were named “morning present after pill” still other powers ap because of the defendants’ questions pharma enforcement pointment, supervision, regulatory and cists, physicians, as well as are listed as oversight over the Texas health insurance care providers” purposes “health for industry. especially We noted 40:1299.41(A)(1). § Title 40. See A physi proper commissioner of insurance was a cian, RU-486, by prescribing clearly per given “oversight defendant his authority” an forms abortion under Act since the attorney general as was the because of his drug accomplishes “the deliberate termi “regulatory general reach” and discretion nation of an intrauterine human pregnancy ary power bring actions under the Tex after fertilization of a female ovum.” Deceptive Trade Practices Act. Id. Such Medical panels review will therefore have authority and constituted sufficient regulate the circumstances under which connection to the enforcement of the chal Act denies malpractice limits on liabili law, lenged including the civil cause of ty relating for claims to prescriptions for action, to allow proceed pursu the suit to drugs. and use of for such Consider also Young. ant to emergency surgeon presented room Health, light In of Corporate it is clear pregnant who, with a having woman sus that “some connection” exists this action tained blunt trauma in an automobile Attorney virtue of the Governor’s incident, crash or a domestic violence has General’s participation in the ex- State’s ruptured uterus. Since mandated malpractice tensive medical regime. treatment No for such condition includes the principled deliberate distinction can be made between pregnancy, termination of the Corporate will the panel Governor’s medical review Health this action to con- deny physician performing proce clude that controversy case or exists dure the protections of Title 40 and action, sub former but not the latter. Servs., Petera, Clajon Beihesda Lutheran Homes and Corp. Inc. v. Prod. 70 F.3d Leean, (7th Cir.1997) (Posner, 122 F.3d 443 (10th Cir.1995) (allowing, pursuant 1571 n. 9 J.) (holding that out-of-state residents exclud- Young, a suit out-of-state residents program ed state law from a to subsidize against enjoin state officials to them from could, hospitals in-state Young, under sue excluding the residents favorable responsible administering state officials for licenses). obtaining hunting method exclusion); program enjoin them from Suite, Voino- Casey, Causeway Medical the enforcement connection Appellants’ Miller, vich, to, Health were greater Corporate if equivalent is of Act 825 a civil liabil- successfully allege able to than, the defen- between the connection injury-in-fact Corporate ity provision law in created challenged dants and we traceable to the defendants when plurality’s statement Health. ability challenge had no to “en- Appellees’ to hear named defendants powerless are Supreme Court contrary provision. force” the in this case reasoning and conflicts with our law and majority summarily dismisses the holding Corporate Health. redressability existence of causation and notwithstanding past our declaration that V. visibly relaxed “the Court has Appellees apparent It is also in decid- standing principles its traditional controversy a case established S., Margaret ing abortion cases.” clearly standing is Appellants. Appellees’ J.) (citing (Higginbotham, F.2d at 997 decisions noted by the relevant supported Roe, 123-29, at 93 S.Ct. 410 U.S. 845, 112 at E.g., Casey, 505 U.S. above. 739). Doe, 187-89, 93 410 U.S. at S.Ct. 88-84, 2791; at Danforth, 428 U.S. above, injury the threatened As discussed 2831; n. at 384 Colautti damages for exposure to unlimited Voinovich, 675; 130 F.3d at 192 abortions, liability performing strict Health, 3; 215 F.3d Corporate n. see also directly regulate. More- Appellants 532; Ieyoub, Causeway Med. Suite v. over, plaintiff held that “a must we have Cir.1997). (5th 1096, Nota 1102 109 F.3d injury fairly is traceable establish that the standing to Appellees’ bly, upheld we have government action or in- proposed con liability provision challenge a civil Glickman, v. 156 action.” Sierra Club abortion partial-birth tained the State’s (5th Cir.1998) (Benavides, 606, 613 F.3d Appellants. these same against statute J.) added); F.2d at Luckey, 860 (emphasis 811, Suite, 221 F.3d at Med. Causeway of unlimited Appellees’ injury, risk 1016. Suite, F.Supp.2d Med. 43 ajfg, Causeway fairly Appel- traceable to liability, strict is at 609-10. malprac- medical lants’ role in Louisiana’s conceding while majority opinion, will en- regime Appellants because tice undoubtedly estab Appellees by excluding Appellees Act force 825 simply concludes “injury-in-fact,” an lished coverage pursuant for claims Title 40 any injury caused had not Appellants 825-i.e., Act will enforce Appellants Act ignores conclusion Appellees. Such Title This acting under 40. by 825 not authority upholding is in conflict with means that the by “inaction” enforcement and clinics standing providers for abortion quan- will not defend PCFOB for rights potential asserting their own (through the Governor damages, tum of liberty opportunity or injury to economic administration) will his commissioner their liberty interests of as well as the liability, the determination not oversee Wulff, v. 428 E.g., Singleton patients. proceed- for the pay will the Governor 2868, 106, 118, 49 L.Ed.2d 96 U.S. S.Ct. abortion in favor of the ings ruling if a Suite, (1976); 221 Causeway Med. 826 doctor, will not Attorney General and the Suite, 811; 109 Causeway Med. F.3d at any or authorize appoint have to counsel 1102; Orange Mem. at Greco F.3d $25,000. in excess settlement (5th 873, F.2d 875 Cir. Hosp. Corp., 513 chain of 1975) simple rather Despite this provider’s individual (noting abortion causation, begs question majority liberty practicing interest economic and restraints). is a Act 825 concluding that because arbitrary free from medicine statute, have no Appellants private tort majority fails to importantly, More to make power sufficient in coercive analyze why effectively 452 However, over, Appellees Appel- connection.6 have asserted that

necessary causal power potential liability lants’ failure to limit Appellants wield coercive because uphold injuries the con claims based on abortion-related duty their to execute by “acting” 825 constitutes under Act 825 will cause the stitutionality of Act injury-in-fact. im power Compl. to effectuate the Act’s coercive See for Decl. Re- lief R. at Corp. Attorney reprinted Mobil HV at pact. See Oil (4th General, majority’s reasoning F.2d 76-77 Cir. The flawed creates a 1991) controversy Appellants, a case or double (noting that standard perform a who challenge unpopular exists in a constitutional but constitu- tionally protected procedure, statute becаuse the effec- private enforcement are tively inter bringing pre-en- state official has sufficient adverse barred from court, by having power challenge to intervene to forcement in federal ests statute);7 Papasan, similarly 478 whereas situated are defend HMOs cf. U.S. at 283 n. 106 S.Ct. 2932. More- free demand a federal forum.8 suits, end, majority's private Attorney 6. To this citation of Musk- enforcement States, U.S. S.Ct. rat v. United General "could intervene” to defend the con Fisher, (1911), 55 L.Ed. 246 and Gritts v. stitutionality of the statute under 28 U.S.C. L.Ed. 2403(b), support private § and cited for (1912), inapposite. Muskrat concerned malpractice medical suit in which the Attor Congress's statutory jurisdiction creation of ney General had so intervened. Id. at 76-77 allowing federal court individuals to sue the Bulala, (citing Boyd v. 877 F.2d 1191 judicial United States for review of the consti- 1989)). Thus, properly Cir. Mobil isOil read tutionality of certain statutes. The equating independent power an official’s statutory Court held that such creation of enforcing a statute with the to inter jurisdiction did not create a case or contro- vene in an action to defend that statute to versy because the United States had no inter- controversy’.” create "an odor of a 'case litigation est or stake in the adverse 77; ("[T]he Id. at see also id. Declarato action, plaintiffs. In this Act 825 does not ry Judgment designedf Act ] was ... en [to] confer in federal court to sue a courage person aggrieved laws he con defendant, particular Ap- and it is clear that declaratory siders unconstitutional to seek a pellees controversy have a distinct case or judgment against the arm the state entrusted against Appellants Appellants’ inter- power.” (emphasis the state’s enforcement directly Appellees’ ests are adverse to inter- added)) ests. Moreover, contrary majority’s to the ex- majority's suggestion 8.The that Louisiana planatory parenthetical that states that the Appellees' courts are available to hear claims sufficiently defendant in was Gritts adverse to is majority sug- untenable. To the extent the the create to an Article III contro- gests that the Eleventh Amendment reflects versy, even Gritts does not mention Article III theory, Supreme forum-selection the Court in controversy requirements standing. case or or Maine, 706, 2240, Alden v. 527 U.S. 119 S.Ct. simply support These decisions do not the 2263, (1999), rejected 144 L.Ed.2d 636 such majority’s reasoning. theory by holding that the Eleventh Amend- majority's interpretation 7. The of Mobil Oil sovereign ment embodies a broad state immu- express holding. belies the Fourth Circuit's nity applies in both federal and state Contrary majority’s the to conclusion that {“Young part courts. Id. is based in on the "controversy upon Attorney was founded the premise sovereign immunity bars relief explicit statutory authority,” General’s the against States and their officers in both state statutory Fourth held that Circuit such au courts, and federal and that certain suits for "[wjhether thority is "irrelevant” because declaratory injunctive against relief state dispute Mobil has a with its franchisees does permitted officers must therefore be if the dispute not bear on whether it ahas with the supreme Constitution is to remain the law of Oil, Attorney General.” Mobil 940 F.2d at 76 land.’’). the (footnote omitted); (" see also id. n. 2 ’Acon Moreover, according troversy majority to a exists not because the state of cur- official is injury Supreme improper himself a rent Court source of but Justices it is because represents avаilability official consider the of state whose statute is courts in being challenged determining pursuant inju as the source of the whether relief ” Stocker, ry.’ (quoting permissible. Wilson v. 819 F.2d 943 is Idaho v. Coeur d'Alene Tribe of 1987))). Idaho, 261, 2028, 2045, Cir. The court added tfhat even 521 U.S. S.Ct. every decision will relieve his erroneously con a favorable majority Lastly, majority’s fixation with the injury.”). The satisfy the fail to Appellees cludes injunction is not on “meaning” of the based standing “redressability” requirement of law, arbitrary a rule of but rather on an by dis injunction granted ignoring Louisiana law and de- principle Ironi meaningless.” “utterly is trict court to restrict access to federal courts. signed Appellants argument the same cally, this is Causeway Med rejected we offered and declaratory injunctive re A suit for There, Suite, these at 1102. 109 F.3d ical for procedural lief is classic mechanism lacked Appellees Appellants asserted constitutionality to the of state challenges pro challenge judicial bypass standing to E.g., Casey, 505 at abortion statutes. they not have “the 2791; Roe, did cedures because at 410 U.S. pro private-action 705; Doe, to enforce at 93 S.Ct. 93 S.Ct. 410 U.S. Appellants argued meaning of an regard cedures.” Id. Without “hypothetical injunction, upheld is we have the issuance of injunction this case ” argu injunction enjoin Appellants rejected this such these meaningless. Id. We liability enforcing a civil statute importantly, Id. More Casey. under ment of Louisiana’s ban on damages for violation without reaches its conclusion majority Causeway Med. partial-birth abortions. “duty to decide authority, ignoring our Suite, 811, aff'g, Causeway 221 F.3d at and the merits of appropriateness Suite, 619. More F.Supp.2d Med. at declaratory request irrespective [our] over, injury specifically can be Appellees’ issu propriety conclusion as to injunction against by redressed an brought injunction” in actions ance agents order his and subor Governor to Act, Declaratory Judgment under reviewing Act 825 in disregard dinates to Thomp § U.S.C. Steffel against women’s health care civil claims son, legal and fac providers making their (1974) added); (emphasis L.Ed.2d 505 cf liability and tual recommendations as to J.) (Rehnquist, id. (“The § division of damages. See 39:4.C (“[The Declaratory purpose of the primary shall exercise such other administration persons enable Judgment is] Act pri germane functions to its duties and rights their before an obtain a definition of may mary prescribed functions as occurred.”). injury actual governor by as directed law or necessary “it has held that order.”). can further be re It executive ac cause of plaintiff’s] [a decide whether the Attor injunction against dressed directly based [defendant] tion requiring appoint him to ney General in fact a cause of on Constitution equal civil suits on an counsel to defend could actual plaintiff] action on which [the in medi providers basis with non-abortion recover_ wheth Instead the test is ly § 39:1533.B. cal cases. See malpractice patently is so alleged cause of action er the justify the court’s dis without merit as to VI. Duke jurisdiction.” missal for want foregoing, I conclude Based on the Study Group, Env’l Power v. Carolina does not bar the Eleventh 57 L.Ed.2d in federal court of this case consideration omitted); (1978) (internal quotation marks a “Case Appellees have asserted Valente, Larson v. see also Controversy” against Appellants. 1673, 72 L.Ed.2d 33 n. (1982) (“[A] the redressa- plaintiff ‍​‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌​​​​​​‌‌‍satisfies he shows that a

bility requirement when will relieve a discrete

favorable decision He need not show

injury to himself. Stevens, J., J., (Souter, Ginsburg, (1997) (O'Connor, joined joined L.Ed.2d 438 JJ., JJ., Scalia, Thomas, dissenting). Breyer, concurring); id.

Case Details

Case Name: Okpalobi v. Foster

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 16, 2001

Citation: 244 F.3d 405

Docket Number: 98-30228

Court Abbreviation: 5th Cir.