Sojourner T v. Edwards

suddеnly which occurs an act re- a continued the result of is not de- for which the process is one flective arguably less accounta- may be

fendant

ble. F.2d at 325.

Carey, 895 spon appears neither

Williams’ example, one thoughtless. For nor

taneous several notes was dated his demand find robbery. do not We

days before court’s determina error in the district

clear qualify as does not that this behavior

aberrant.

III.

Accordingly, the sentence

AFFIRMED. T, Herself Behalf of

SOJOURNER Situated, Similarly All Others al., Plaintiffs-Appellees,

et EDWARDS, As Governor

Edwin W. Louisiana, al., State

Defendants-Appellants. OKPALOBI, Ifeanyi Charles

Plaintiff-Appellee, IEYOUB, Attorney General P.

Richard Louisiana, et the State of

Defendants-Appellants.

No. 91-3677. Appeals, States Court

Fifth Circuit.

Sept. Wharton, Pa., Philadelphia,

Linda J. and Hart, Pa., Reading, Barbara J. for ami- Organizations Advocаcy Sup- and cus—23 — port Group. La., Colker, Orleans, New for ami- Ruth Choice, for et al. cus—Black Women JOLLY, GARZA, Before and EMILIO M. SHAW, Judges, and District Circuit Judge.* JOLLY, Gen., Judge: E. Guste, Jr., GRADY Atty. Patricia

William J. Gen., Orleans, Bowers, Atty. New N. Asst. challenges the Louisiana Abor- suit This Coleson, Jr., La., Bopp, Richard E. James Statute, performing which criminalizes Haute, ‍‌‌​‌​‌​‌​‌​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​​​‌‌‌‌​​‌‌‌‌‍Ind., Gen., Sp. Attys. Terre Asst. except very abortions limited circum- Braun, Winn, Sp. Joy G. Robert E. court, plaintiffs stances. Gens., Fishman, Atty. Asst. Sessions & argued preempted by that the Orleans, La., Fusilier, A. Jenifer New Julie law, federal that the Statute is unconstitu- Jones, Schaye Attys. M. Patricia Asst. Wade, 113, tional under Roe v. 410 U.S. Gen., La., Rouge, Rayer, Thomas A. Baton 705, (1973), S.Ct. 35 L.Ed.2d 147 Denechaud, Orleans, New Denechaud & Statute is unconstitutional Griswold La., for Roemer & Guste. Connecticut, 381 85 S.Ct. v. (1965), 14 L.Ed.2d 510 and that the Statute Bakеr, Jr., La., Rouge, Baton for John S. vagueness. void for The state of Louisi- Connick, Harry D.A. arguing that ana defended the Statute La., Uddo, Orleans, Clarke Basile J. New v. has been overruled sub silentio Wade McCoy, E. and Paul Forsythe, D. Leanne Services, Reproductive Health Webster Ill., amici, Linton, Chicago, Benjamin for 106 L.Ed.2d Legislature. Louisiana State Members of (1989), progeny. and its The district Orleans, La., Rittenberg, E. New William Statute, holding court struck down the Kolbert, Benshoff, Kathryn Janet L. good Roe v. is still Wade Heller, City, Sojour- for Simon New York Statute is unconstitutional. T, ner et al. arguments presented to us The same are Wasserman, Bach, Bach & Me- Sidney M. in the district court. After that werе made tairie, La., Ifeanyi Okpalo- Charles for us, argued case was the Su bi, et al. Court, preme in Planned Parenthood of Pennsylvania Southeastern Evans, Klassel, Tynia Roger K. Dara U.S. -, 120 L.Ed.2d 674 Richard, City, York Robert E. Arcen- New (1992), the essential reaffirmed Barham, Archer, eaux, A. Mack E. and Lee Louisiana stat Because the Roe v. Wade. Orleans, La., Markle, New Barham & ute Parenthood, et al. amicus curiae—Planned affirm the district court’s order. Connell, Simon, ‍‌‌​‌​‌​‌​‌​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​​​‌‌‌‌​​‌‌‌‌‍Robyn B. K. Colleen Rivkin, Radler, Zimbrakos, Dorothy B. Kremer, Ill., Chicago, Bayh, Hart & assoc, T., brought this suit Sojourner Reproductive Health amicus— challenging the Loui- federal district court Prof. * Judge designation. District Cоurt of Chief of the United States Louisiana, sitting by the Western District of liability attaches to a woman No criminal They argued Statute. siana Abortion Food, Drug procuring an abortion. by the the statute by FDA Act1 and and Cosmetic contracep- of certain the use

approving Ill statute that the argued They also tives. Statute, that it is and the uphold Clause the urging the Commerce to violates us and Roe v. Wade that Roe v. Wade has state concedes requested They Instead, v. Connecticut. Griswold the overruled. expressly been injunctive relief. declaratory and been overruled argues that Roe has state progeny. its by and silentio Webster sub declaratоry Okpalobi, also Dr. relief, challenged the Louisi- injunctive and hand, Sojourner, et ar- the other The grounds. vagueness on ana statute deciding this gue that we should avoid cases. these two court consolidated district Instead, we grounds. on constitutional pleadings on the judgment Motions on the the court affirm district should by filed were memoranda supporting preempted by is grounds the Statute that 12(c), to Fed.R.Civ.P. Pursuant parties. all Food, Drug the by FDA plaintiffs’ the granted court present alter- They also Act. and Cosmetic on pleadings judgment motion the should affirm arguments: we native Wade, the grounds that under the Stat- grounds the on district court Statute unconstitu- Abortion Louisiana Clause, the on the Commerce ute violates ap- The state 930. F.Supp. tional. the is unconstitution- Statute that peals. Griswold, grounds that or the on al under Roe. is unconstitutional

the Statute II the Statute argument that Their law, that the Statute by federal was Statute Abortion The Louisiana Clause, the and that the Commerce violates It amends on June passed under Griswold is unconstitutional statute 14:87. The LSA-R.S. reenacts reading of particular their contingent on pre- or a crime “administer[ ] makes it to argue that the Statute They the Statute. medicine, any or drug, potion, any scribe] contraceptives of the use criminalizes to a female” оr “us[e] to other substance They conception. after Louisiana that whatso- external force or any instrumental about doubts intent entertain specific that if we argue the “with a female” ever on should, Statute, we the pregnancy.” The of terminating a this construction of (1) physician the issues exceptions rеaching when: the other provides pre- in order pregnancy Supreme the case, certify terminates to the Louisiana baby the unborn life or health serve the the Statute of whether question the Court child; (2) the unborn a dead to remove contracep- certain use of the criminalizes to save pregnаncy the terminates physician tives. mother; (3) is the pregnancy the the life of the Statute argues Okpalobi the pregnancy rape; result vagueness His unconstitutionally vague. can be an abortion incest. Before result of elusiveness emphasizes the argument excep- rape incest performed exсep- incest rape and definitions must requirements tions, reporting certain this court argues also He tions. must example, victims For be met. Supreme the Louisiana certify should enforce- to law rape or incest report vio- the Act of whether Court performed Also, abortions ment officials. guaranteed рrivacy right to lates per- must victims rape and incest Louisiana Consti- 5 of the Article Section weeks thirteen the first within formed tution. pregnancy. La. Acts 2. 1991 (1988). 360K

1. 21 U.S.C. IV knowledge that usually it is true that if a case can be decided either on statutory or Below, plaintiffs challenged we should address the Thus, validity facial Statute. statutory issue first. McRae, Harris v. plaintiffs must determine whether the are 297, 306-307, 100 2682- correct the Statute cannot be con (1980). 65 L.Ed.2d 784 We do not applied infringing upon strued and without think, however, that the pro facts and the constitutionally rights. protected ‍‌‌​‌​‌​‌​‌​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​​​‌‌‌‌​​‌‌‌‌‍Rust v. posture cedural of this case warrant Sullivan, -, application jurisprudential of this principle. 1759, 1767, 114 L.Ed.2d 233 plaintiffs brought a challenge facial district court found that Roe v. Wade is constitutionality of the Statute. The good still law and that the Louisiana Abor- judgment district court entered a on the clearly transgresses tion Statute those con- pleadings grounds that the Statute rights, stitutional as enunciated in Roe v. was unconstitutional undеr Roe v. Wade. Wade, of women who seek an abortion. It did not preemption address the issue. Supreme recently Court reaffirmed There hearing was no trial or develop holding the essential in Roe v. Wade the record respect with to the several cru Casey. at -, Casey, U.S. legal cial factual and issuеs that underlie at Casey, 2803. In the Court held that a preemption arguments, including right woman has a to choose to have an contraceptives whether certain act after viability legisla abortion before and that conception, so, and if whether the Statute restricting tion viability abortions before criminalizеs the use of these contracep place must not undue an burden on that Additionally, tives. applying we are not exists, right. Id. “An undue burden interpretation new of the Constitution to invalid, provision therefore a of law is if its case; decide this only applying we are purpose place or effect is to a substantial Therefore, clear of Casey. path seeking obstacle of a woman an posture facts and of this case do not ob viability.” abortion before the fetus attains ligate statutory us to reach the issue first.3 at -, Id. 112 at 2821. The Court Similarly, Okpalobi urges us viability, held that before a State’s inter deciding to avoid the casе on federal consti strong enough support ests are not grounds tutional by certifying question prohibition -, of abortion. Id. at 112 Supreme whether, to the Louisiana Court Thus, S.Ct. at 2804. the Louisiana statute because it right privacy, invades the unconstitutional under Casey. Statute is unconstitutional under the Arti cle Section 5 of the Louisiana Cоnstitu V Okpalobi tion. Because Dr. raises this is Sojourner, urge us to avoid appeal, sue for the first on time we do not deciding grounds this case on constitutional Honeycutt Long, address it. 861 F.2d (5th Cir.1988). to affirm the district court on the 1352 Planned Parent grounds Louisiana, by curiae, hood of argues as amicus Food, FDA Drug and the deciding and that we should abstain from Act, must, arguing Cosmetic that we when case pending because there is a state court possible, decide a on statutory challenge rather to the under the Louisi grounds. can, than constitutional We argument ana Constitution.4 This was also course, judgment affirm the district court’s appeal, raised for the first on time and we any grounds supported by the record. therefore do not address it. United States Nelson, 864 Mangaroo Industries, Inc., F.2d 1204 v. Allegheny-Ludlum 517 (5th Cir.1989). Furthermore, 2 (5th Cir.1975), n. ac- we F.2d 840 n. 13 cert. contraceptives 3. Since we decide this case on the nalizes the use of certain is de- nied. the Statute is unconstitutional under So- journer's certify motion tо Apparently, stayed court action state was whether the Louisiana Abortion Statute crimi- pending the outcome of this suit. Roe, principles of institu- resolved denied, 944, 96 S.Ct. the rule of stare deci- integrity, and tional L.Ed.2d sis, this: the essen- are led to conclude v. Wade a woman holding of [that tial VI pregnancy her terminate right hаs the conclusion, the Louisiana we hold In viability] should retained before unconstitu- face, plainly statute, on its reaffirmed.”). Accordingly, I again once im- Casey statute tional opinion. Jolly’s Judge concur on women burden an undue poses nonetheless, concern. causes me The order viability.5 an abortion abortion; Casey essence, about therefore court whether “The issue is power. is about AFFIRMED. by the Con liberty protected is a [abortion] — Id., States.” stitution GARZA, Judge, M. EMILIO J„ (Scalia, specially: concurring ap seem facts dissenting). essential Two Su “the Jolly absolutely says Judge agree Constitution parent: “[T]he in Planned Parenthood long Court, [abortion], and ... preme nothing about ... Casey, v. Pennsylvania society American of Southeastern standing traditions v. holding of pro legally to be permitted essential have [abortion] the reaffirmed 3 ”1 omitted) (citation Id. (footnote Louisiana “the Wade [Abor that scribed.” judgm Casey “decorate[s] a omitted). un value is Statutе tion] v. political choice.” Parenthood Planned a Casey.”2 See ent4 conceal[s] der — — If Id., 2875. at -, 2791, U.S. U.S. -,-, 112 S.Ct. Casey, correct, reaf- the Court’s is (“After this assessment (1992) consid 2804, 120 674 L.Ed.2d good or a as viewed firmance —whether ques- constitutional ering the fundamental if he ... an offense person pie, commits “[a] the case deсide we 5. Because of knowingly death causes the intentionally or Statute is unconstitutional the that individual," Tex.Pen.Code Ann. see arguments an that appellees’ reach the do not the 1992), legal of (West formulation Clause, the that Commerce the violates the See Bow- Griswold, not kill.” shall "Thou commandment: is unconstitutionаl the 196, Hardwick, at 106 S.Ct. at U.S. vague. 478 unconstitutionally v. ers Statute is or however, constantly based (“The 2846 705, representing 113, morality, 147 all laws L.Ed.2d and if 35 of 93 S.Ct. notions 1. invalidated are to be essentially choices moral Clause, the courts Process the Due indeed.”). Maj. op. very busy 28. 2. at [would] Second, issue underlying constitutional 138-42, at Roe, S.Ct. 93 U.S. at Compare 410 3. philo resolve these State can not "whether in laws (historical of abortion review 719-21 America) way a a definitive such sophic questions in D., U.S. 491 H. v. Gerald Michael matter,” but in choice lacks all woman 2341-44, 121-28, 105 109 S.Ct. power to the constitutional States have whether of (overview presumption of 91 L.Ed.2d example, For ontological choice. this make Hardwick, U.S. 478 legitimacy) and Bowers reasons, protect ontological to choose States 2844-46, 191-95, L.Ed.2d 92 106 S.Ct. instance, "lib In this citizens. lives of their sodomy laws history (1986) (brief and list 140 See life. way protection of human erty” to gives America). in (Rehn at -, — S.Ct. at 2859 112 Casey, U.S. C.J., ("To dissenting) 'at look quist, obligation is to “Our joint opinion states: The 4. liberty inter subject assertedly which all, own our liberty not mandate define people upon other its effect in isolation from est is underlying constitutional code. moral liberty is a there inquiring whether like [is] philo these can resolve the State is whether sue at hand gun firing a where in interest way such a definitive sоphic questions discharge another into its involve happens to matter, except in the all lacks choice woman ” Gerald H. v. body.’ (quoting Michael person’s which circumstances rare perhaps in those 4)). n. at 2342 D., n. atU.S. danger life to her own itself a pregnancy is joint accepts the one ultimate raрe incest." health, or —if result or is the or viability critical—is opinion's view at -, I do at 2806. authority States have whether opinion's articulation joint agree with the viability whether themselves decide every morality First, legislate States issue. the day ontological difference. an makes exam- For statutes. criminal form of in the bаd result —has accelerated the Court “to- systematically eliminating

wards checks

upon power; its own least with Roe [at Casey ] succumb[ed] [to [has] —Id., temptation]”. at

S.Ct. at permit pro-

Because the decision choice, political I

scribe abortion is a would people of the State of

allow Louisiana

to decide this issue for themselves.5 None-

theless, controls, acknowledge that ‍‌‌​‌​‌​‌​‌​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​​​‌‌‌‌​​‌‌‌‌‍Casey therefore, I concur. America,

UNITED STATES

Plaintiff-Appellee,

Mary JENKINS, Jane Defendant-

Appellant.

No. 92-2002. Appeals,

United States Court

Fifth Circuit.

Oct. H., Framers, legislation adopted by 5. See Michael 491 U.S. at strikes down a ("Whenеver State], Judiciary [realizing unavoidably pre-empts for itself anoth- present part governance country of the construction Due Process er of the of the without represents major judicial gloss express authority.” (quoting Clause terms, a on its 494, 544, Cleveland, anticipation as well as on the Moore v. East GRAAFEILAND, Judge:

VAN appeals from an order Mary Jane Jenkins dismiss, dissolve her motion denying restraining order issued modify pretrial a 1963(d). af-We 18 U.S.C. pursuant § firm. 9, 1991, jury sitting grand April indicted Jen- District of Texas

the Southern co-defendants, individual five kins and things, them, among with other charging conduct an conspiring to conducting and pattern of racketeer- through a enterprise of 18 U.S.C. activity, in violation ing § enterprise alleged consist- (“RICO”). The defendants, also but the six only of ed not corporations, each unindicted sixteen by Jenkins. allegedly was controlled which companies, foreign Except for two throughout were scattered corporations allegedly them were All of the Sоuth. indirectly with directly or connected peep and/or bookstores operation adult listed indictment arcades. video show acts, nine racketeering predicate ten ob- transportation of dealt with which commerce, 18 in interstate material scene 2, and one which dealt U.S.C. §§ material, of оbscene promotion U.S.C. and 18 Code § Tex.Penal asserted 1961(1)(A). indictment 18 U.S.C. forfeiture penalty of six- 1963(a), sought forfeiture § belonging accounts bank corporations, teen money corporations, to several raids, automo- and Jenkins’ prior seized Tenn., Graves, Jr., Memphis, M. Frierson residence. bile Goldstein, Fahle, Goldstеin, John H. Gerald ob- government April Tex., Antonio, Hilley, San & Goldstein pursu- restraining order parte an ex tained defendant-appellant. in sub- 1963(d), which to 18 U.S.C. ant Atty., Offenhauser, the defendants prohibited Asst. stance C. Paula selling, as- Houston, corporations from Woods, Atty., unindicted G. Ronald encumbering re- transferring, signing, E. Kockritz, Atty., Kevin Trial Tex., Janis of the сourt jurisdiction moving from the Todack, K. Mor- Susan Nicole Ann Byrnes, them. by or owed owned any assets Justice, ‍‌‌​‌​‌​‌​‌​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​​​‌‌‌‌​​‌‌‌‌‍Washington, Dept, of gan, U.S. payments weekly required that order D.C., plaintiff-appellee. of four sale (the of 1989 proceeds Jenkins over bookstores) turned adult Service, held to be Marshals States It also upon conviction. forfeitable until proper- to maintain defendants *, directed KING VAN GRAAFEILAND Before using ... from “to abstain ties and Judges. GARZA, Circuit M. and EMILIO * Circuit, sit- Judge of the Second (White, Senior 1932, 1958, 52 L.Ed.2d 531 S.Ct. J., dissenting))). designation. ting

Case Details

Case Name: Sojourner T v. Edwards

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 22, 1992

Citation: 974 F.2d 27

Docket Number: 91-3677

Court Abbreviation: 5th Cir.