*1 litеrally used the service on limited basis.”3 statements are either false or false context, to has failed demonstrate a All of relate to A2K’s these statements prima facie advertising case false under entering “overpayment re- intention Accordingly, the Lanham Act. we affirm covery” early market in late district summary court’s judg- changed Although A2K later its 2002. A2K, Smith, ment to Binder. market, its entering mind about state- never having ments mid-2002 about having this service
provided future provide to do not
plans service render previous four statemеnts false. ’Allsup brought proving
has forward no evidence falsity about these statements A2K’s
capacity willingness to enter the mar- such, ket. As the district court did not err HEALTH REPRODUCTIVE SER determining the statements were not VICES OF PLANNED PARENT literally false. HOOD THE REGION, OF ST. LOUIS if literally Even the statements are not INC., al., Appellees, et Plaintiffs — false, if they we must still determine are
false
context. “Statements
are lit-
erally
ambiguous
true or
but which never-
NIXON, Attorney
Jeremiah W.
General
to
tendency
theless have a
mislead or de-
Missouri,
capacity,
in his official
ceive the consumer
actionable
under
Appellant.
Defendant —
Lanham
Corp.,
Act.”
Indus.
United
No. 04-2674.
Viewing
A2K’s capacity provide services on a point
date be determined later. At no A2K represent already
did it had entered currently
the market or providing was Furthermore, Allsup’s
services issue. expert could
own testified A2K have en- if it
tered market secured contract evidence,
from a LTD carrier. This cou-
pled production prelimi- with A2K’s of its
nary forms, preauthorized withdrawal veracity of
demonstrates the A2K’s state- Allsup prove
ments. Because cannot software, Although argued parties, perience with PC ACH rather than experience “overpayment having recovery” “the reference used service on a in the appears basis” to describe A2K's ex- limited market. *2 Reproductive
Statute
Health Servs. v.
Webster,
F.Supp.
413-16,
(W.D.Mo.1987).1
Missouri enact
a new
replacing
ed
the former
*3
substantially
statute with
revised “in
provisions.
formed consent”
As relevant
§
appeal,
to this
provides:
new 188.039
2. Except
in the case of medical
emergenсy, no
shall
person
perform or
induce an
abortion unless
least twen-
ty-four
prior
hours
thereto a treating
physician has conferred with
patient
and discussed
her the
with
indicators
contrairidicators,
and risk factors
including any physical, psychological, or
situational
proposed
factors for the
pro-
Mahon,
R.
argued,
Victorine
Assistant
cedure and the use of
...
medications
Attorney General,
City,
Missouri
Jefferson
light of
history
her medical
and medical
MO,
appellant.
for
condition....
Lee,
York,
argued,
Donna
NY
New
3.
patient
The
be
shall
evaluated
NY,
York,
(Roger
Arthur A.
Evans New
a treating physician during the confer-
Benson,
Lansford,
Kathryn
II and Jamie
contraindicators,
ence for indicators and
MO,
Kransoff,
City,
T.
Kansas
and Helene
including any physical,
risk factors
psy-
DC,
brief),
Washington,
appel-
for
chological, or situational factors which
lee.
predispose
patient
would
to or in-
experiencing
crease the risk of
one or
LOKEN,
Judge,
Before
Chief
FAGG
еmotional,
physical,
more adverse
or
BYE,
Circuit Judges.
other health reactions to the proposed
procedure
drug
drugs
in either the
LOKEN,
Judge.
Chief
long
compared
short or
term as
Former section
the Missouri
188.039 of
possess
women who do not
such risk
Statutes,
1986, provid-
Revised
enacted
factors.
physician may
ed that no
an abor-
perform
í¡<
‡
%
#
signed
tion unless the woman
has
patient
stating
an “informed consent”
5.
department
form
The director of the
attending physician
her
advised hеr wheth-
health and senior- services shall dissemi-
is pregnant,
physicians may
er she
the risks associated
nate a model form that
used,
procedure
with the abortion
to be
use as the
required by
written statement
section,
alternatives to
The
lack or
abortion.
dis-
but
unavailabili-
enjoined
ty
trict court
enforcement of this
of such a
form shall not
model
affect
State did
district
court's
hood advises that
is still in
so,
ruling
§
invalidation of
so that
was
effect.
If
it would not withstand further
Supreme
not considered whеn the
Court re-
review under the
Court's later deci
aspects
other
versed
of the district court's
Casey,
sion in Planned Parenthood
505 U.S.
Reproductive
decision
Webster v.
Health
833, 881-87,
joining
employees,
their
167, 178-79,
1025,
360
79 S.Ct.
3
U.S.
successors,
agents, and
and all others act-
(1959).
1152
argues
L.Ed.2d
But Nixon
them
ing
participating
concert
inappropriate
that
was
any way
...
enforcing
from
the Act.”
this case
Planned
because
Parenthood now
Attorney
appeals, arguing
General Nixon
pursue
has no incentive to
state court liti
pre-
erred
granting
that the сourt
meaning of
gation to establish the
the am
liminary injunction
that he is
immune
biguous scienter provisions.
under the Eleventh Amendment
from suit
force,
parte Young,
Though
as
in Ex
209
has some
argument
construed
441,
(1908),
123,
52
procedural history
L.Ed. 714
overlooks relevant
—it
may
right
after
v.
action in
reserve
Named
Railroad Comm'n
Pullman
federal court
Co.,
litigate
61
312 U.S.
we conclude irreparable the threat of injury because nary injunction within was the district they being “are forced to choose between court’s discretion if Planned Parenthood performing abortions without certain- Any satisfied factors. Dataphase foot- ty they compliance are in with the dragging by Planned Parenthood in the Act, thereby fines, risking imprisonment, state courts be remedied exercise censure, professional ceasing modify the federal court’s discretion to performance of On appeal, abortions.” At- injunction. or vacate the See torney argues General Nixon that this al- Comm’n, Catrone v. Racing Mass. State leged injury speculative is remote and be- Cir.1976). (1st 535 F.2d
cause no professional health care can be *5 II. penalized “knowingly” unless he or she civil, to comply, fails and because no crimi- factors, Turning Dataphase to the nal, or administrative enforcement of the injunctiye relief, to warrant preliminary a new statute has or been occurred threat- plaintiff irreparа must threat show the of responds ened. Planned Parenthood “that injury. Adam-Mellang ble Apartment a alleged depriva- when case involves an Search, Inc., 96 299 F.3d Cir. rights, of tion constitutional no further 1996). In Casey, Planned Parenthood v. showing injury of irreparable is neces- 877-87, V(hen sary.” a challenged state statute is Supreme Pennsylvania Court a in upheld unconstitutionally its face as vague, on formed consent requirement, concluding imper- no First Amendment interests are that a may constitutionally require State iled, that too assertion is far broad. physicians, abortions, performing before provide to not misleading truthful and in “A impermissibly statute can be State,
formation by long mandated so vague provide .... if people it fails to of requirement as the not place does an “un ordinary intelligence opportu a reasonable due right burden” on constitutional of nity prohib conduct it understand what patients women to make ultimate de its,” if but the concern is lessened cision. Although the informed consent requirement. statute contains a scienter provisions §of are more exten 188.039 Colorado, Hill Casey, sive than those at issue Planned 2480, 147 L.Ed.2d As showing Parenthood made no concrete of Court’s discussion Hill rights pa undue burden on of women clear, makes facial on statutes that Rather, attacks tients. Planned Parenthood ar (i) rights not threaten Amendment do First gued in the district that Therefore, not favored. a concrete unconstitutionally vague 188.039 is be showing injury is needed tо irreparable cause it physicians commands to discuss injunctive relief justify preliminary bar patients their matters that have no recognized ring or enforcement of the stat accepted meaning, medical “indicators,” “contraindicators,” such as ute. In Planned Parenthood v. Citizens (ii) factors,” Action, “situational that the Comm. 866-67 for (8th Cir.1977), showing of a likelihood of suc- for faced substantial example, plaintiff claim, taking into ac- the chal- on his federal financial harm unless cess immediate en- preliminarily uncertainty created the issue lenged ordinance was count hand, Here, the al- joined. abstention, on the other supported prompting injury is more While leged speculative. where oth- preliminary federal relief physi- to the is force contention there it. strongly favored equities er determining pre- difficulty cians will Here, argues that Planned Parenthood § 188.039 before the cisely what mandates vague unconstitutionally be- 188.039 clarified and the requirement scienter expected be physicians cause cannot health services and senior department what is mandated fathom conduct the form sub- prescribed disseminates recognized accepted that have no terms (5), the core mandate to obtain section extreme, meaning. to the medical Carried consent” is clear and con- “informed both argument prem- on an unsound rests stitutional, action has enforcement a informed consent stat- ise—that State’s Thus, although the dis- threatened. been physicians not require ute licensed did not its discretion in trict court abuse beyond goes information that provide concluding that Parenthood made Planned judgment exper- of their realm medical inju- showing irreparable of threatened proof an undue on tise. Absent burden ry, showing was minimal indeed. abortion, patients’ rights regula- such relief, injunctive To warrant if tory mandate will be constitutional also must show the likelihood plaintiff rational passes basis review. On the other success on the merits. The district court hand, argues the statute concluded that Planned Parenthood has licensing or criminal vague because no *6 a substantial likelihood of success shown unless the penalty imposed be viola- because, on state court the merits absent however, “knowing.” question, tion is The statute, physicians of the interpretation professional is what must .medical they be certain evaluated and “cannot when he is accused of violat- “know” or she by” patients required their as counseled ing by failing the statute to communicate vague, undefined terms. This the statute’s goes beyond information that bounds analytically is perplexing is issue —how good or her medical judgment. of his faith plain- abstaining federal court to measure “speculation hypothetical Though about it has de- tiffs’ likelihood success when ... a support situations will not facial addressing the layed merits until the state a surely attack on statute it is valid when cоnstrue the statute? courts majority applica in the vast of its intended usurping federal court must avoid tions,” Hill, 733, 120 at prerogative state courts’ under Pullman 2480, we conclude that Planned Parent by a in- granting denying ques has raised at least a substantial hood junction upon urged based a construction punishable tion whether the conduct made parties. by one of But the district by §by physicians 188.039 can be divined court’s resolution of dilemma—that a this majority patient in the vast confer preliminary injunction always warranted that are application. ences its intended courts perceived until the state resolve the Cf. Med. N.W. Women’s Ctr. Houston ambiguity too intrusive State’s —is (5th Cir.2001). Bell, 411, Rather, 248 F.3d enforcing in laws. interest we “[Wjhere the proper struck movant has raised substan by believe balance was Catrone, are question equities First Circuit 535 F.2d tial and the otherwise 672, favor, plaintiffs strongly showing where the court that his of sue- held can less.” Data cess on merits be III. However, F.2d at 113.
phase, 640 here Finally, Attorney General Nixon not equities strongly party’s either argues that the district court erred in re showing favor. Planned Parenthood’s fusing to dismiss him as a separate defen irreparable injury speculative and mini dant based on the state’s Eleventh Amend mal, remaining Dataphase fac immunity. ment parte Ex Young, 209 public tors —the balance of harms and the U.S. at the Supreme quite evenly interest —are balanced be Court held that the Eleventh Amendment burdening physi tween the interest does not bar a suit a state official vague cians with mandates the State’s enjoin allegedly enforcement un enforcing interest an informed consent statute, constitutional provided that “such mandate that meets Casey’s constitutional officer [has] some connection with the en limitations. forcement of the act.” argues pre- Because we review the of a he sufficiently is not connected with en liminary injunction discretion, for abuse of § forcement of 188.039 because he has no injunction we uphold should “[i]f power to initiate misdemeanor prosecu underlying question constitutional tions, a task left to local prosecutors, and close.” v. Amer. Civil Liberties Ashcroft power actions, to take licensing adverse Union, 2790- professional task left to licensing boards. That is the law, Under Missouri the Attorney Gen- here, situation and therefore we conclude eral is authorized to prosecutors aid when the district court did not abuse its Governor, so directed sign and to in issuing preliminary injunc- discretion indictments “when so directed the trial tion. But the that it issued—an court.” Mo.Rev.Stat. 27.030. At enjoining unlimited order defendants stage of the proceedings, agree we “from in way enforcing” § 188.039— the district court statutory au- beyond went protect what was needed to thority creates a sufficient connection with Planned physicians Parenthood’s from the the enforcement of 188.039 to make the irreparable injury limited threat of shown. *7 Attorney potentially General a proper par- sрecifically, More the district court abused injunctive relief, ty for in which case he (i) granting injunction its discretion an would be scope within the of the parte Ex encompassed subsection Young exception to Eleventh Amendment 188.039, thereby preventing the State’s immunity. However, as neither the Gov- development form, of the mandated (ii) ernor nor state trial court has directed failing to clarify that the State is not Attorney the General to take action enjoined from enforcing thе “informed enforce Planned Parenthood requirement consent” upheld Casey. In has shown no addition, irreparable injury threat of Dataphase balancing because the Thus, Attorney the General. inevitably extending will change when the state the of preliminary injunctive relief to provi- courts have construed the scienter (in which, advised, capacity sions this defendant his official looks case we are has very much argued impermissible grant now been like the before the Missouri), against Court of the district federal court relief the court erred State of in not providing that the in- Missouri. See Pennhurst & State Sch. junction Halderman, expire by 89, 100-03, will Hosp. its own terms ten days after the final state court judgment. nature, reasons, against parties to enforce affected the district court or- these
For act, violating Fed- an unconstitutional the der vacated dated June Id. at eral Constitution.” entry for the of a modi- case remanded 441. injunction not inconsistent fied preliminary opinion.
with this
Legal
In Children’s Healthcare
Deters,
Duty,
risdiction to decide
reversed,
On
the Sixth Circuit
powerless to address
merits. As
stating
Attorney General did not
“[t]he
respectfully
consequence, I
dissent.
threaten to commence and was not about
Moreover,
proceedings....
to commence
Attorney General Nixon contends he is
delegates
Ohio
enforcement
law
under
immune from suit
the Eleventh
local
prosecu
statutes to
position
His
is Reproductive
Amendment.
tors,
Attorney
General.
General
him for injunctive
cannot sue
relief
Health
Montgomery has no connection to the en
Young, 209
parte
under Ex
Id.
forcement of the statutes.”
at 1416-
(1908),
1147 335, 1079, 1085 making providers (1931), abortion liable to Mo. ute 40 S.W.2d none any damage by in tort for caused of patients those events occurred here. Missouri enjoined an abortion. The district court law does not allow Nixon to initiate state from enforcing the state the law action the providers. abortion the court appealed. appeal, On Nixon did not threaten defendants and was not аbout whether the suit was to proceedings against addressed barred commence the Amendment. The con- panel providers, the Eleventh abortion nor did he the have ability the defendants fit within the to cluded Ex do so. Young exception and the in- parte upheld Given posture appeal, this Nixon’s
junction, but the Fifth re- granted Circuit immunity suit necessarily from raises con- en banc. hearing jurisdiction. cerns about our While Re- banc, productive En the Fifth noted Ex Circuit Health sued two local prosecu- Nixon, Young required the to tors parte along sued official with Nixon filed an “ enforce- have ‘some connection with the with court. III our “Article of the ‘specifically the act’ or to be United juris- ment of States Constitution limits the duty actual, with the to the stat- diction charged enforce of the federal courts to on- threatening going ute’ and be to exercise v. cases controversies.” Ali (8th Cir.2005) duty.” (quoting parte Cangemi, Id. at 414-15 Ex 419 723 441). 157, 158, 209 U.S. at v. Young, (quoting Pelofsky, Haden 212 F.3d (8th Cir.2000)). Young principle it is teachеs that This court required “[T]he merely general duty jurisdiction to see Article III address its be- implemented addressing laws of the state are fore merits. Steel Co. ‘connection,’ Env’t, required substantiates the but Citizens Better for duty 94-95, particular to enforce the statute (1998). willingness and a question Reproductive demonstrated If Health does not that duty.” to exercise Id. at 416. After have an case or controversy actual with particular Nixon, finding duty jurisdic- set forth we do not follows charging the state speсifically laws of tion to the merits of appeal. address or Attorney Governor General en- controversy To case or establish be- statute, forcement Nixon, Attorney tween itself and General part action on those defendants 1) Reproductive Health must show it has statute, con- enforce the en banc court suffered, suffer, about injury or is enjoyed cluded defendants Eleventh 2) fact, a causal connection between the immunity. Amendment Id. at 424. 3) conduct, injury and the defendant’s case, likelihood, Attorney opposed General the real as to mere from speculation, injury immune suit under the Eleventh will be redressed the. delegates Lujan Amendment. Missouri law favorable decision. Defenders responsibility Wildlife, local en- prosecutors forcing governor Attorney statute. While the 119 L.Ed.2d inability Nixon to at- prosecuting could ask “aid a General Nixon’s to enforce section circuit torney attorney” discharge in the 188.039of Missouri’Revised Statutes (“The duties, her Okрalobi, his or Mo.Rev.Stat. fatal. See F.3d at 426 *9 to sign requirements Lujan entirely or a trial could direct Nixon consis- in lieu of a prosecutor, long-standing indictments local tent with the rule that id., prosecutor request plaintiff local could not sue a state official who assistance, Naylor, any power Nixon’s State v. 328 without enforce the com- statute.”). Nixon is the Because plained-of the district appealed
only party who actual case and there is no
court’s order Reproduc- him and
controversy between Health, jurisdiction to address we lack
tive id. at 429 appeal. of this
the merits Cf. Arti- court lacked
(concluding the district only parties where the jurisdiction III
cle chal- ability to enforce the
sued lacked statute).
lenged stated, I would first reasons
For the of this jurisdictional infirmities
address jurisdiction is lack- Because our
appeal. without
ing, I would dismiss Therefore, I re-
addressing the merits.
spectfully dissent. America,
UNITED STATES
Plaintiff-Appellee, TOBACCO, Defendant-
Harold
Appellant.
No. 05-2524. Appeals, Court of
United States
Eighth Circuit. 10, 2005. Oct.
Submitted: 16, 2005.
Filed: Nov.