Okpalobi v. Foster

REVISED - March 16, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30228

_____________________

IFEANYI CHARLES ANTHONY OKPALOBI,

doing business as Gentilly Medical

Clinic for Women,

Plaintiff-Appellee,

and

CAUSEWAY MEDICAL SUITE; BOSSIER CITY

MEDICAL SUITE; HOPE MEDICAL GROUP FOR

WOMEN; DELTA WOMEN’S CLINIC; WOMEN’S

HEALTH CLINIC; JAMES DEGUERCE;

A. JAMES WHITMORE, III,

Intervenors-Appellees,

versus

MIKE FOSTER, Governor of the State of

Louisiana; STATE OF LOUISIANA,

Substituted in place of Kenneth Duncan,

Treasurer of the State of Louisiana,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

USDC No. 97-CV-2214-T

_________________________________________________________________

March 12, 2001

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,

WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,

PARKER, and DENNIS, Circuit Judges.*

*

Fourteen judges participated in this en banc proceeding.

Seven judges join Judge Jolly’s opinion in full, both with regard

to standing and the Eleventh Amendment analysis (Jolly, Davis,

E. GRADY JOLLY, Circuit Judge:

Sitting as an en banc court, we consider whether the district

court properly enjoined the “operation and effect” of the Louisiana

state tort statute at issue, which provides a private cause of

action against medical doctors performing abortions. Although, in

this facial attack on the constitutionality of the statute,

consideration of the merits may have strong appeal to some, we are

powerless to act except to say that we cannot act: these plaintiffs

have no case or controversy with these defendants, the Governor and

Attorney General of Louisiana, and consequently we lack Article III

jurisdiction to decide this case. Seven members of this en banc

court conclude that the panel was in serious error, as indeed is

the dissent, in finding that this case presents an Ex parte Young

exception to the Eleventh Amendment immunity from suit in federal

court, which these defendants, the Governor and Attorney General of

Louisiana, enjoy. Accordingly, we reverse, vacate, and remand for

entry of a judgment of dismissal.

I

Jones, Smith, Barksdale, Emilio Garza, and DeMoss). Three judges

join Judge Jolly’s opinion with regard to standing only (King,

Higginbotham, and, in part, Benavides). Four judges join Judge

Parker’s dissent (Parker, Wiener, Stewart, and Dennis). Judge King

joins Judge Higginbotham’s opinion. However, to fully understand

the scope of the partial concurrences to Judge Jolly’s opinion, the

reader is referred to the opinions of Judges Higginbotham and

Benavides.

2

Dr. Ifeanyi Charles Anthony Okpalobi (“Okpalobi”), joined

through intervention by five health care clinics and other

physicians, individuals, and businesses who perform abortions in

the State of Louisiana,1 challenge the constitutionality of La.

R.S. Ann., tit. 9, § 2800.12 (West Supp. 1999), or, more commonly,

“Act 825.”2 The defendants are Mike Foster, Governor of Louisiana,

1

Because we find no significant distinction between the

positions of Dr. Okpalobi and the intervening clinics and

physicians on appeal, we use “plaintiffs” in this opinion to

include all intervenors as well as Dr. Okpalobi.

2

Act 825 states:

Section 2800.12 Liability for termination of a pregnancy

A. Any person who performs an abortion is liable to the

mother of the unborn child for any damage occasioned or

precipitated by the abortion, which action survives for

a period of three years from the date of the discovery of

the damage with a preemptive period of ten years from the

date of the abortion.

B. For purposes of this Section:

(1) “Abortion” means the deliberate termination of an

intrauterine human pregnancy after fertilization of a

female ovum, by any person, including the pregnant woman

herself, with an intention other than to produce a live

birth or to remove a dead unborn child.

(2) “Damage” includes all special and general damages

which are recoverable in an intentional tort,

negligence, survival, or wrongful death action for

injuries suffered or damages occasioned by the unborn

child or mother.

(3) “Unborn child” means the unborn offspring of human

beings from the moment of conception through pregnancy

and until termination of the pregnancy.

C.(1) The signing of a consent form by the mother prior

to the abortion does not negate this cause of action, but

rather reduces the recovery of damages to the extent that

the content of the consent form informed the mother of

3

and Richard Ieyoub, Attorney General of Louisiana.3 No patients of

the plaintiffs appear as parties in this suit.

Act 825 provides to women who undergo an abortion a private

tort remedy against the doctors who perform the abortion. It

exposes those doctors to unlimited tort liability for any damage

caused by the abortion procedure to both mother and “unborn child.”

Damages may be reduced, but not eliminated altogether (and perhaps

not at all with respect to any damages asserted on behalf of the

fetus), if the pregnant woman signs a consent form prior to the

abortion procedure.

The plaintiffs argue that Act 825 constitutes an “undue

burden” on a woman’s right to obtain an abortion and is thus

unconstitutional under Planned Parenthood v. Casey, 505 U.S. 833,

112 S.Ct. 2791 (1992). The plaintiffs further claim that the Act

the risk of the type of injuries or loss for which she is

seeking to recover.

(2) The laws governing medical malpractice or limitations

of liability thereof provided in Title 40 of the

Louisiana Revised Statutes of 1950 are not applicable to

this Section.

3

Although the record shows that the Attorney General of

Louisiana was named as a party and was served with citation, and

although he is named as a party in all of defendants’ pleadings, in

the injunction orders, and on the notice of appeal, he does not

appear as a party on the docket sheet in this court. He

nevertheless has invoked the appellate jurisdiction of this court

and is a party to this appeal.

4

will force physicians in Louisiana to cease providing abortion

services to women because of the potential exposure to civil damage

claims authorized by the Act.4 Finally, the plaintiffs assert

that, if they are forced to discontinue providing their services,

the State may have achieved in practical terms what it could not

constitutionally do otherwise--eliminate abortions in Louisiana.

II

The district court granted a temporary restraining order

enjoining implementation of the Act on August 14, 1997. Act 825,

according to the district court, “has the purpose and effect of

infringing and chilling the exercise of constitutionally protected

rights.” The court therefore granted the plaintiffs’ request for

a preliminary injunction on January 7, 1998. See Okpalobi v.

Foster, 981 F.Supp. 977, 986 (E.D. La. 1998). The following month,

finding that the Act places an unconstitutional undue burden on a

woman’s right to abortion, the court converted the temporary

injunction into a permanent injunction.5 The State timely

appealed.

4

Plaintiffs provide over eighty percent of the abortion

services rendered in Louisiana.

5

In the district court neither party, nor the district court,

raised the question of an Article III case or controversy or the

Eleventh Amendment.

5

On appeal, a panel of this court upheld the injunction.

Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999). The panel

specifically addressed the Eleventh Amendment issue--whether, under

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), the state

official defendants had sufficient “connection” to the act in

question to overcome the Eleventh Amendment bar of suits against

states in federal court.6 The panel determined that “the Governor

and the Attorney General have powers and duties under state law

sufficient to meet the minimum requirements under the Eleventh

Amendment.” Okpalobi, 190 F.3d at 346. The panel further concluded

that the plaintiffs had standing to assert their rights and the

rights of their patients. Id. at 350-353. The panel then

concluded that a case and controversy existed between these

plaintiffs and defendants and affirmed the district court’s holding

that Act 825 is unconstitutional in its entirety.

In addressing the issues before this en banc court, we first

take note that the panel opinion’s jurisdictional holding rested

primarily on the Ex parte Young exception to the Eleventh

6

The Eleventh Amendment states: “The Judicial power of the

United States shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or subjects of any

Foreign State.” U.S. CONST. amend. XI. The Supreme Court has

interpreted the amendment to also constitute a bar on a suit

brought against a State by its own citizens in federal court. See

Hans v. Louisiana, 134 U.S. 7, 10 S.Ct. 504 (1890).

6

Amendment. It is, of course, one of the purposes of taking a case

en banc to clarify the law when a “panel decision conflicts with a

decision of the United States Supreme Court” or the case “involves

one or more questions of exceptional importance.” Fed. R. App. P.

35(b)(1). Because the panel opinion erroneously applied

established Eleventh Amendment jurisprudence, and because it was

the focus of its jurisdictional holdings, we first address those

panel errors before turning to the more basic question of whether

this case presents an Article III case or controversy.

III

The crux of the Eleventh Amendment issue in this case is

whether the named defendants, Louisiana’s Governor and Attorney

General, have the requisite “connection” to the statutory scheme to

remove the Eleventh Amendment barrier to suits brought in federal

court against the State. We first say a very brief word about the

historical and constitutional forces that underlie the Eleventh

Amendment.

The Eleventh Amendment was adopted in 1798 in direct response

to the Supreme Court’s decision in Chisholm v. Georgia, 2 U.S. (2

Dall.) 419 (1793), holding that the State of Georgia could properly

be called to defend itself in federal court against a citizen’s

suit. The alacrity with which Congress and the states approved the

Eleventh Amendment to nullify Chisholm evinces the absolutely

7

certain and fundamental respect the early fathers demanded the

federal courts pay to the sovereignty of the several states.7

Although the attention given to the Eleventh Amendment has waxed

and waned in the two hundred years since its adoption, the

importance of it as a structural definition of our constitutional

system has never been doubted. Thus, the Supreme Court recently

reemphasized that this structural principle remains intact in Alden

v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2246 (1999). There, the

Court stated that “as the Constitution’s structure, and its

history, and the authoritative interpretations by this Court make

clear, the States’ immunity from suit is a fundamental aspect of

the sovereignty which the States enjoyed before the ratifications

of the Constitution, and which they retain today.”8 Indeed, it is

“a settled doctrinal understanding, consistent with the leading

advocates of the Constitution’s ratification, that sovereign

immunity derives not from the Eleventh Amendment but from the

structure of the original Constitution itself.” Id. at 728.

7

The Supreme Court decided Chisholm on February 14, 1794.

Three weeks later, Congress had approved the Eleventh Amendment,

and within one year the requisite number of states had ratified the

amendment.

8

“The States thus retain ‘a residuary and inviolable

sovereignty.’ They are not relegated to the role of mere provinces

or political corporations, but retain the dignity . . . of

sovereignty.” Id. at 715 (quoting The Federalist No. 39, p. 245

(C. Rossiter ed. 1961) (J. Madison)).

8

It is against this background of the overriding importance of

the Eleventh Amendment in limiting the power of the federal courts

over the sovereignty of the several states, that we now consider

whether the facts of this appeal can fit into the exception carved

from the Eleventh Amendment in Ex parte Young, so as to allow the

federal courts to enjoin Act 825.

IV

A

The Eleventh Amendment bars suits by private citizens against

a state in federal court, irrespective of the nature of the relief

requested. See Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565

(1978). A plaintiff may not avoid this bar simply by naming an

individual state officer as a party in lieu of the State. Yet, few

rules are without exceptions, and the exception to this rule allows

suits against state officials for the purpose of enjoining the

enforcement of an unconstitutional state statute. This exception

rests on the fiction of Ex parte Young–-that because a sovereign

state cannot commit an unconstitutional act, a state official

enforcing an unconstitutional act is not acting for the sovereign

state and therefore is not protected by the Eleventh Amendment.

9

Indeed, the Eleventh Amendment inquiry today turns on a proper

interpretation and application of the Supreme Court’s holding in

Young.

Young, in relevant part, reads:

If, because they were law officers of the state, a case

could be made for . . . testing the constitutionality of

the statute, by an injunction suit brought against them,

then the constitutionality of every act passed by the

legislature could be tested by a suit against the

governor and the attorney general . . . . That would be

a very convenient way for obtaining a speedy judicial

determination of . . . constitutional law . . ., but it

is a mode which cannot be applied to the states . . .

consistently with the fundamental principle that they

cannot, without their assent, be brought into any court

at the suit of private persons . . . In making an officer

of the state a party defendant in a suit to enjoin the

enforcement of an act alleged to be

unconstitutional, . . . such officer must have some

connection with the enforcement of the act, or else it is

merely making . . . the state a party.

209 U.S. at 157 (emphasis added).

The principle of Young grew out of two predecessor cases, and

can best be understood by reference to Smyth v. Ames, 169 U.S. 466,

18 S.Ct. 418 (1898), and Fitts v. McGhee, 172 U.S. 516, 19 S.Ct.

269 (1899). We begin with a discussion of these two decisions

before addressing Young and its progeny.

B

In Smyth, the plaintiffs challenged the constitutionality of

a Nebraska act regulating railroad rates for the transportation of

freight and establishing penalties for violations of the act. The

10

statute authorized the assessment of substantial fines by state

authorities in addition to private liability. See Smyth, 169 U.S.

at 476. The plaintiffs named officers of the State as defendants.

The defendants contested the federal court’s jurisdiction on the

grounds “that these suits are, in effect, suits against the state,

of which the circuit court of the United States cannot take

jurisdiction consistently with the eleventh amendment.” 169 U.S.

at 518. After holding that “a suit against individuals for the

purpose of preventing them as officers of a state from enforcing an

unconstitutional enactment to the injury of the rights of the

plaintiff is not a suit against the state within the meaning of

[the eleventh] amendment,” the court assumed jurisdiction of the

case and struck down the law. Id. at 519.9

Although Smyth did not raise the question of how close a

connection is required between the defendant state officers and the

enforcement of the act, the Supreme Court elaborated on the

principle when the question was presented the following year in

9

The panel opinion suggests that Smyth stands for the

proposition that no special connection is required between a

defendant state official and the challenged statute. See Okpalobi,

190 F.3d at 344. However, the excerpt from Smyth quoted above

clearly indicates that the defendant officers had a duty to enforce

the statute in question and seems to undermine the panel’s

conclusion that Smyth did not involve a ‘special relationship’

between the defendants and the challenged statute. Id.

11

Fitts.10 There, the court was faced with a constitutional challenge

to an Alabama act that prescribed certain maximum rates of toll to

be charged on a Tennessee river bridge. The act provided that, if

the maximum rate was exceeded, the aggrieved party could recover

twenty dollars per infraction from the offender. 172 U.S. at 516.

The plaintiffs, arguing that the rates of toll were “arbitrary” and

“unreasonable” and constituted a deprivation of property, sued the

governor and attorney general of Alabama as defendants and

requested injunctive relief. The defendants moved “that the bill

be dismissed upon the ground that the suit was one against the

state, and prohibited by the constitution of the United States.”

Id. at 518.

In concluding that the suit against the governor and attorney

general was effectively a suit against the state and thus barred by

the Eleventh Amendment, the Supreme Court reasoned that neither the

governor nor the attorney general “appear[s] to have been charged

by law with any special duty in connection with the act.” Id. at

529. The court distinguished other cases in which it had exercised

jurisdiction (including Smyth) by noting that “the defendants in

each of those cases were officers of the state, specially charged

10

The sufficiency of the enforcement power vested in the

defendant state officials was never addressed in Smyth. It is

clear, however, that the defendants in Smyth possessed enforcement

powers not found in the defendants in the case before us. See

Smyth, 169 U.S. at 476.

12

with the execution of a state enactment alleged to be

unconstitutional.” Id. (emphasis added). Thus, in Fitts, the

Supreme Court articulated the requirement that there be a “close”

connection or a “special relation” between the statute and the

defendant state officer’s duty before the Eleventh Amendment bar

could be overcome:

There is a wide difference between a suit against

individuals, holding official positions under a state, to

prevent them, under the sanction of an unconstitutional

statute, from committing by some positive act a wrong or

trespass, and a suit against officers of a state merely

to test the constitutionality of a state statute, in the

enforcement of which those officers will act only by

formal judicial proceedings in the courts of the state.

In the present case, as we have said, neither of the

state officers named held any special relation to the

particular statute alleged to be unconstitutional. They

were not expressly directed to see to its enforcement.

Id. at 529-30 (emphasis added). The court rationalized this

relationship requirement by reference to the core constitutional

principle embodied in the Eleventh Amendment:

If, because they were law officers of the state, a case

could be made for the purpose of testing the

constitutionality of the statute . . . then the

constitutionality of every act passed by the legislature

could be tested by a suit against the governor and the

attorney general, based upon the theory that the former,

as the executive of the state, was, in a general sense,

charged with the execution of all its laws, and the

latter, as attorney general, might represent the state in

litigation involving the enforcement of its statutes.

This would be a very convenient way for obtaining a

speedy judicial determination of questions of

constitutional law . . . but it is a mode which cannot be

applied to the states of the Union consistently with the

fundamental principle that they cannot, without their

13

assent, be brought into any court at the suit of private

persons.

Id. at 530. Thus, Fitts illuminated the important precept that

allowing state officers to be sued in lieu of the State absent some

“special connection” would permit the narrow exception to swallow

the fundamental, constitutionally-based rule. It was upon this

foundation that the Young doctrine was constructed.

C

In Young, the plaintiffs challenged a Minnesota statute that

created a railroad commission, which executed an order fixing the

rates various railroad companies could charge for the carriage of

merchandise. 209 U.S. at 127. The legislature delineated specific

penalties for violations of such railroad regulations, including

fines and possible imprisonment.11 The attorney general, Edward T.

Young, was named as a defendant in the suit, which challenged the

constitutionality of the series of state acts regulating the

railroad companies.12 Specifically, the plaintiffs requested

11

“It was provided in the act that ‘any railroad company, or

any officer, agent, or representative thereof, who shall violate

any provision of this act, shall be guilty of a felony, and, upon

conviction thereof, shall be punished by a fine not exceeding five

thousand dollars, or by imprisonment . . .’” Id. at 128.

12

“For this reason the complainants allege that the above-

mentioned orders and acts . . . denied to the . . . railway company

14

“[a]ppropriate relief by injunction against the action of the

defendant Young.” Id. at 131. Young asserted that the federal

court had no jurisdiction over him as attorney general because the

suit was, in effect, against the state of Minnesota and barred by

the Eleventh Amendment. Nevertheless, the federal court issued a

temporary injunction against Young, enjoining him “from taking or

instituting any action or proceeding to enforce the penalties and

remedies specified in the act.” Id. at 132. Young ignored the

court order and immediately filed a mandamus action in state court

to compel the railroad’s compliance with the state law. Young was

held in contempt by the federal court and taken into custody. He

then petitioned for habeas corpus to the United States Supreme

Court, asserting that the federal court injunction violated the

Eleventh Amendment. The Supreme Court was thus required to

determine whether Young, as a state officer, could be sued in

federal court despite the Eleventh Amendment bar.

The court determined that the Eleventh Amendment did not bar

a federal court injunction against the enforcement of the state

statute. It held that Young, as attorney general, could properly

and its stockholders . . . the equal protection of the laws, and

deprived it and them of their property without due process of

law . . .” Id. at 131.

15

be enjoined in federal court from enforcing unconstitutional state

penalties against the railroad. In so holding, the court stated:

The various authorities we have referred to furnish ample

justification for the assertion that individuals who, as

officers of the state, are clothed with some duty in

regard to the enforcement of the laws of the state, and

who threaten and are about to commence proceedings,

either of a civil or criminal nature, to enforce against

parties affected [by] an unconstitutional act, violating

the Federal Constitution, may be enjoined by a Federal

court of equity from such action.

Id. at 155-56 (emphasis added). Finding that Young possessed such

enforcement authority over the acts in question, and recognizing

his clear threat to exercise said authority under alleged

unconstitutional state law,13 the court concluded that the Eleventh

Amendment was no barrier to the suit.14 In authorizing the suit

13

The Court also observed:

The question remains whether the attorney general had, by

the law of the state, so far as concerns these rate acts,

any duty with regard to the enforcement of the same. By

his official conduct it seems that he regarded it as a

duty connected with his office to compel the company to

obey the commodity act, for he commenced proceedings to

enforce such obedience immediately after the injunction

issued, at the risk of being found guilty of contempt by

so doing.

Id. at 160.

14

In full, the Court said:

In making an officer of the state a party defendant in a

suit to enjoin the enforcement of an act alleged to be

unconstitutional, it is plain that such officer must have

some connection with the enforcement of the act, or else

it is merely making him a party as a representative of

the state, and thereby attempting to make the state a

16

against Young, the court distinguished the earlier finding of no

jurisdiction in Fitts by noting that, in that case, the penalties

for disobeying the act were to be collected by the individuals who

were overcharged and “[n]o officer of the state had any official

connection with the recovery of such penalties.” Id. at 156.

Thus, Young solidified the doctrine that state officers could

be sued in federal court despite the Eleventh Amendment, while

simultaneously emphasizing the requirements that the officers have

“some connection with the enforcement of the act” in question or be

“specially charged with the duty to enforce the statute” and be

threatening to exercise that duty. Id. at 157, 158.15

D

Young was decided almost 100 years ago. From its earliest

years until the present, it has spawned numerous cases upholding,

explaining, and recognizing its fundamental principle: that the

party. . . . The fact that the state officer, by virtue

of his office, has some connection with the enforcement

of the act, is the important and material fact. . .”

Id. at 157 (emphasis added).

15

We note the dissent’s reliance on Justice Harlan’s Young

dissent in its attempt to show that “it is flatly wrong to assert

that Young and Fitts are consistent.” Although dissents may be

scholarly and persuasive to some, they are not binding law to any.

The dissent’s reliance upon Justice Harlan’s words suggests that

they, like Justice Harlan, are simply disenchanted with the

fundamental principle articulated in Young.

17

defendant state official must have some enforcement connection with

the challenged statute. Two years after Young, the Supreme Court

in Western Union Telegraph Co. v. Andrews, 216 U.S. 165, 30 S.Ct.

286 (1910), again upheld a suit against a state official that

enjoined enforcement of a state act. The act in question, which

regulated fees to be paid by foreign corporations, declared that

the defendant state officials “would, unless restrained by the

order of the court, institute numerous actions, as they had

threatened to do, for the recovery of the penalties aforesaid.”

Id. at 166. Concluding that the recent Young decision was

“precisely applicable to the case at bar,” the court found

sufficient connection between the defendant state officials and the

challenged statute, stating:

The statute specifically charges the prosecuting

attorneys with the duty of bringing actions to recover

the penalties. It is averred in the bill, and admitted

by the demurrer, that they threatened and were about to

commence proceedings for that purpose.

Id. Western Union, therefore, reinforced the interpretation that

Young requires both a close connection between the official and the

act and the threatening or commencement of enforcement proceedings

by the official.16

16

See also Dombrowski v. Pfister, 380 U.S. 479, 483 (1965) (“In

Ex parte Young . . . , the fountainhead of federal injunctions

against state prosecutions, the Court characterized the power and

its proper exercise in broad terms: it would be justified where

state officers ‘. . . threaten and are about to commence

proceedings, either of a civil or criminal nature, to enforce

18

More recently, other circuit courts have applied the Young

guidelines when adjudicating the Eleventh Amendment question raised

in this appeal. In Children’s Healthcare v. Deters, 92 F.3d 1412

(6th Cir. 1996), the plaintiffs brought a civil rights action

against the Ohio Attorney General and state prosecutors. The suit

challenged statutes that provided exemptions from the duty to

provide adequate care for children for persons who treat children

by spiritual means. The court rejected federal court jurisdiction

over the matter, reaffirming that “Young does not apply when a

defendant state official has neither enforced nor threatened to

enforce the allegedly unconstitutional state statute.” Id. at

1415. The requirement that there be some actual or threatened

enforcement action before Young applies has been repeatedly applied

by the federal courts. See also 1st Westco Corp. v. School Dist.

of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)(citing Rode v.

Dellarciprete, 845 F.2d 1195, 1209 n.9 (3d Cir. 1988)); Long v. van

de Kamp, 961 F.2d 151, 152 (9th Cir. 1992); Kelley v. Metropolitan

County Bd. of Educ., 836 F.2d 986, 990-91 (6th Cir. 1987).

Other federal courts have invoked Young’s rationale when

ascertaining the applicability of this narrow Eleventh Amendment

exception. In Gras v. Stevens, 415 F.Supp. 1148 (S.D.N.Y. 1976),

Judge Friendly rejected the notion that a governor’s general duty

against parties affected [by] an unconstitutional act, violating

the Federal Constitution . . .’”).

19

to “take care that the laws are faithfully executed” is sufficient

connection under Young and Fitts to dissolve the Eleventh Amendment

bar. Id. at 1151-52. The court noted that “[i]n our view this

would extend Ex parte Young beyond anything which the Supreme Court

intended or has subsequently held.” Id. at 1152.

As late as 2001, the Fourth, Ninth, Eleventh and Seventh

Circuits rearticulated the criteria of Young. In Lytle v.

Griffith, 2001 WL 133189, at *6 (4th Cir. Feb. 16, 2001), the

Fourth Circuit, in remanding the case to determine whether the

defendant Governor had the requisite connection to the challenged

law, noted that “[t]he Young exception is limited, however, by its

requirement that named state officials bear a special relation to

the challenged statute.” In Snoeck v. Brussa, 153 F.3d 984 (9th

Cir. 1998), the Ninth Circuit found that the Eleventh Amendment

barred a claim against the Nevada Commission on Judicial

Discipline, emphasizing that compliance with the requirements of

Young “must be determined under state law depending on whether and

under what circumstances a particular defendant has a connection

with the challenged state law.” Id. at 986. The court concluded

that, “[u]nder Nevada law, the Commission has no enforcement power,

and therefore, it has no connection to the enforcement of the

challenged law as required under Ex Parte Young.” Id. at 987.

20

Moreover, in Summit Medical Association, P.C. v. Pryor, 180

F.3d 1326 (11th Cir. 1999), the Eleventh Circuit took note of the

private civil enforcement provision of the statute in question and

stated that “the doctrine of Ex parte Young cannot operate as an

exception to Alabama’s sovereign immunity where no defendant has

any connection to the enforcement of the challenged law.” Id. at

1341. Finally, the Seventh Circuit in Hope Clinic v. Ryan, 195

F.3d 857 (7th Cir. 1999), vacated on other grounds by 120 S.Ct.

2738 (2000), also observed that the statute in question was to be

enforced in private litigation: “[T]he states’ Attorneys General

and local prosecutors have nothing to do with civil suits. Relief

against the public officials therefore would be pointless even if

the civil-liability provisions were problematic.” Id. at 875.

E

The Supreme Court’s decision in Young, appraised in the light

of its predecessors Smyth and Fitts and its progeny, is thus

properly understood to create a precise exception to the general

bar against suing states in federal fora. This exception only

applies when the named defendant state officials have some

connection with the enforcement of the act and “threaten and are

about to commence proceedings” to enforce the unconstitutional act.

Young, 209 U.S. at 155-56.

21

We now consider the application of the Young principle to the

facts in the case before us.

V

The present inquiry is how to read and apply the requirement

that the defendants have some connection with the enforcement of

the Act. Specifically, the question raised before this en banc

court is whether the Young fiction requires that the defendant

state official have some enforcement powers with respect to the

particular statute at issue, or whether the official need have no

such enforcement powers and only need be charged with the general

authority and responsibility to see that all of the laws of the

state be faithfully executed.

A

As we have pointed out, the Young principle teaches that it is

not merely the general duty to see that the laws of the state are

implemented that substantiates the required “connection,” but the

particular duty to enforce the statute in question and a

demonstrated willingness to exercise that duty. For a duty found

in the general laws to constitute a sufficient connection, it must

“include[] the right and the power to enforce the statutes of the

state, including, of course, the act in question . . .” Id. at 161

(emphasis added). Thus, any probe into the existence of a Young

22

exception should gauge (1) the ability of the official to enforce

the statute at issue under his statutory or constitutional powers,

and (2) the demonstrated willingness of the official to enforce the

statute.17

Although the panel opinion addressed the connection of the

defendants to the law in question, it nevertheless pursued a

different, and we believe, seriously erroneous course. The panel

applied a two-part formula to assess whether sufficient

“connection” exists to warrant waiver of the Eleventh Amendment

protection: (1) an analysis of “what powers the defendants wield to

enforce the law in question,” and (2) consideration of “the nature

of the law and its place on the continuum between public regulation

17

Our review of the Supreme Court’s abortion cases shows that,

as the dissent notes, the Court has apparently relaxed certain

standing requirements in the abortion context and authorized pre-

enforcement challenges to criminal abortion statutes. However,

none of these cases suggest, as the dissent intimates, that the

requirements of Ex parte Young have in any way been relaxed or

vitiated in the abortion context. Indeed, none of the Supreme

Court abortion cases expressly address the requirements of Ex Parte

Young in the abortion context. This is not surprising in that in

all of the abortion cases, unlike the case before us, the

defendants had clear capabilities of enforcing the challenged

statutes.

23

and private action.” Okpalobi, 190 F.3d at 346.18 We address, in

turn, the flaws in each part of the panel’s analysis.

1

After noting at the outset that “Act 825, on its face, does

not direct the State or its officers to do anything,” the panel

nevertheless concluded “that the Governor and the Attorney General

have powers and duties under state law sufficient to meet the

minimum requirements under the Eleventh Amendment.” Id. at 347.19

The basis for this conclusion was the assertion that a mere duty to

uphold the laws of the state is sufficient under Young to authorize

an Eleventh Amendment waiver. The panel stated that its conclusion

is discernible from a proper reading of Young and Smyth, noting

that, while the Fitts Court required a “close” connection or a

“special charge” between the statute and the state officer’s duty,

18

The panel “glean[ed]” this test from Gras v. Stevens,

Federal Nat’l Mortgage Ass’n v. Lefkowitz, 383 F.Supp. 1294

(S.D.N.Y. 1974), and Allied Artists Pictures Corp. v. Rhodes, 473

F.Supp. 560 (S.D. Ohio 1979), aff’d 679 F.2d 656 (6th Cir. 1982).

19

The panel relied on the governor’s constitutional duty to

“faithfully support the constitution and laws of the state,” LA.

CONST. art. IV, § 5(A), and the attorney general’s power and right

“to institute, prosecute, or intervene in any civil action or

proceeding[.]” Id., art. IV, § 8. See Okpalobi, 190 F.3d at 346.

24

the Young Court adopted the more relaxed connection requirements

outlined in Smyth.20

In essence, the panel suggests that there is some conflict

between Fitts, on the one hand, and Smyth and Young, noting that

“[t]o the extent that there is tension between Fitts’s focus on the

state officials’ express enforcement power and the later

articulation in Young, we are controlled by the Smyth doctrine and

the unequivocal holding of Young that a state officer’s connection

with the enforcement of the challenged act can ‘[arise] out of the

general law . . . so long as it exists.’” Id. at 344 (citing Young,

209 U.S. at 157). We do not, however, find this tension in the

Smyth-Fitts-Young triad. The resolution in each of these three

cases was dictated, not by the application of a different legal

rule, but by the particular statutes and the connection to those

statutes of the defendant state officials. The challenged statutes

in Young and Smyth (wherein the defendants had enforcement powers

over the railway acts) stand in sharp contrast to the statute in

Fitts (wherein the defendants were granted no enforcement powers

20

The panel noted the Young Court’s statement that “[t]he

doctrine of Smyth v. Ames was neither overruled nor doubted in the

Fitts case.” 209 U.S. at 156.

25

whatsoever with respect to the statute).21 Fitts involved the

establishment of toll rates for a single bridge. The act in

question was self-enforcing; if the operators of the bridge charged

an excessive toll, the statute entitled the aggrieved to sue for

twenty dollars.22 Thus, the court in Young characterized the Fitts

statute as one in which

[n]o officer of the state had any official connection

with the recovery of such penalties. . . . As no state

officer who was made a party bore any close official

connection with the act fixing the tolls, the making of

such officer a party defendant was a simple effort to

test the constitutionality of such act in that way, and

there is no principle upon which it could be done. A

state superintendent of schools might as well have been

made a party.

Id. at 156. In differentiating the “general duty” authority of the

officials in Fitts, which the court found was insufficient to

21

The Fitts Court specifically recognized this critical

difference in distinguishing the facts of Smyth and finding that

the defendants in that case were “specially charged with the

execution” of the challenged statute. Fitts, 172 U.S. at 529. It

would seem that this distinction between Smyth and Fitts, noted by

the Supreme Court, calls into question the panel’s understanding of

Smyth as support for its interpretation of Young as imposing a

lesser legal standard than Fitts.

22

The statute challenged in Smyth authorized not only private

suits for overcharges, but also enumerated a system of substantial

and escalating fines to be paid to the state. See 169 U.S. at 517.

Thus, the statute involved liability to the state in addition to

private contractual liability. A system of fines implies an

enforcement power in the state.

26

dissolve the Eleventh Amendment bar, the Young Court noted that

“[t]he officers in the Fitts case occupied the position of having

no duty at all with regard to the act . . .” 209 U.S. at 158. The

court then referenced with approval a distinction noted by the

court in Fitts, wherein the facts in Fitts were clearly

distinguished from the facts in Smyth and Reagan v. Farmer’s Loan

& T. Co., 154 U.S. 362, 14 S.Ct. 1047 (1894):

In [Smyth and Reagan] the only wrong or injury or

trespass involved was the threatened commencement of

suits to enforce the statute as to rates, and the threat

of such commencement was in each case regarded as

sufficient to authorize the issuing of an injunction to

prevent the same. The threat to commence those suits

under such circumstances was therefore necessarily held

to be equivalent to any other threatened wrong or injury

to the property of a plaintiff which had theretofore been

held sufficient to authorize the suit against the

officer.

Young, 209 U.S. at 158.23

23

The immediately following sentence, in the same paragraph,

reads:

The being specially charged with the duty to enforce the

statute is sufficiently apparent when such duty exists

under the general authority of some law, even though such

authority is not to be found in the particular act. It

might exist by some reason of the general duties of the

officer to enforce it as a law of the state.

This use in Young of the “specially charged” language from Fitts

reinforces the holding in Fitts and clearly suggests that the court

did not intend the “some connection” to be without authority to

enforce the statute.

27

Considering the obvious enforcement potential that the

defendant Young had under the Minnesota statute, the panel’s

interpretation of the “some connection” language as necessitating

only an undefined, inchoate, general duty to see that all of the

laws of the state are enforced exceeded any reasonable

interpretation of Young. Indeed, Young does not reject the

“special charge” language in Fitts;24 instead, Young merely allows

the “special charge” to be drawn implicitly from the laws of the

state, rather than requiring that it be stated explicitly in the

challenged statute. Thus, the correct interpretation of Young

concludes that no such special charge need be found directly in the

challenged statute to meet the requisite “some connection” so long

as there is sufficient indicia of the defendant’s enforcement

24

We note especially the Young Court’s adoption of the “special

charge” language from Fitts: “The being specially charged with the

duty to enforce the statute is sufficiently apparent when such duty

exists under the general authority of some law. . .” Young, 209

U.S. at 158.

28

powers found elsewhere in the laws of the state.25 This

interpretation finds support in the following language in Young:

It has not, however, been held that it was necessary that

such duty should be declared in the same act which is to

be enforced. In some cases, it is true, the duty of

enforcement has been so imposed . . . but that may

possibly make the duty more clear; if it otherwise

exist[s] it is equally efficacious.

209 U.S. at 157.

Thus, the panel erred by not recognizing that Fitts’s “special

charge” requirement is an essential part of Young’s holding. See

also Gras, 415 F.Supp. at 1151 (characterizing the statute in Young

as “implicitly charg[ing] [the attorney general] by statute with

the duty of collecting an allegedly unconstitutional tax.”). This

25

This conclusion is essentially the one reached by Judge

Friendly in Gras:

The argument would continue that although Fitts v. McGhee

held that the bar of the Eleventh Amendment could not be

avoided by suing state officers in the absence of “any

special relation” on their part “to the particular

statute alleged to be unconstitutional,” this was altered

by the statement in Ex parte Young [regarding “some

connection”]. In our view this would extend Ex parte

Young beyond anything which the Supreme Court intended or

has subsequently held. . . . [W]e know of no case in

which the general duty of a governor to enforce state

laws has been held sufficient to make him a proper party

defendant in a civil rights action attacking the

constitutionality of a state statute concerning . . .

private civil actions.

415 F.Supp. at 1152.

29

failing led to the panel’s conclusion that the general charge of

the governor and attorney general to implement and enforce all of

the laws of the state satisfies the requirements of Young.

In sum, Young does not minimize the need to find an actual

enforcement connection–-some enforcement power or act that can be

enjoined--between the defendant official and the challenged

statute. Instead, it provides that this connection can be found

implicitly elsewhere in the laws of the state, apart from the

challenged statute, so long as those duties have the same effect as

a “special charge” in the statute.

2

We turn now to the second prong of the panel’s test--the place

of Act 825 on a public-to-private “continuum.” The panel concluded

that Act 825 implicates “public” action because “the purpose and

effect of the Act is to prevent women from obtaining legal

abortion.” Okpalobi, 190 F.3d at 347. This continuum element was

derived from Allied Artists Pictures Corp. v. Rhodes, 473 F.Supp.

560 (S.D. Ohio 1979), aff’d 679 F.2d 656, 665 n.5 (6th Cir. 1982)

(holding that statutory regulation of private contracting with

respect to movies amounted to state regulation of movie producers

and distributors). Notwithstanding the equivocal nature of Allied

30

Artists’ “continuum” holding,26 the majority seized upon this result

26

Allied Artists states:

Thus the problem now before the Court becomes that of

properly placing this case on the continuum. Defendants

would argue that since the Act purports to regulate

contractual rights between private parties, namely motion

picture distributors and exhibitors, there is no

realistic potential that the defendant governor would act

to enforce the statutory rights which could be vindicated

by private action. Plaintiffs on the other hand would

claim that the alleged substantial and immediate impact

upon them of the Act is tantamount to direct state

regulation which could reasonably require the governor’s

attention under his general duty to see to the faithful

execution of the laws. . . . I believe it can be

reasonably maintained that the Act amounts to state

regulation of movie producers and distributors doing

business in Ohio. Presumably, then, this exercise of the

state’s regulatory power is designed to implement and

serve the public interest of Ohio. The Court is aware

that there is no criminal sanction attached to the Act,

and also that plaintiffs could possibly await a dispute

with an exhibitor and sue, raising there the question of

the Act’s constitutionality. However, that begs the

question in the case at bar. The pertinent question is:

does the governor of Ohio, as the chief executive of the

state, have an interest in the enforcement of the Act?

Or, on the other hand, is this simply an Act near the

Gras end of the continuum where the public interest is

not crucial, the dispute is such that the governor’s

interest is absent, and the matter can be adequately

decided in an action between concerned private parties?

The question is difficult; the real thrust of the Act is

somewhat obscure on its face. However, in ruling on this

motion to dismiss, the Court must view the complaint most

favorably for plaintiffs. Thus, in the exercise of great

caution . . . I hold that plaintiffs have alleged facts

sufficient to invoke the Young fiction and to avoid the

Eleventh Amendment bar.

31

and compared it to an act affecting availability of abortion

services: “We place such interference [with abortion rights] on the

Allied continuum near the end closest to laws respecting the voting

rights of citizens [see Socialist Workers Party v. Rockefeller, 314

F.Supp. 984 (S.D.N.Y. 1970), aff’d, 400 U.S. 806 (1970)], rather

than alongside procedural aspects of domestic relations law [see

Gras, 415 F.Supp. 1148].” Okpalobi, 190 F.3d at 347.

The first weakness in the panel’s use of this analysis to find

a sufficient connection between the state officials and Act 825 is

its almost exclusive reliance on Allied Artists. The sum total of

the panel’s support lies in two district court cases, Allied

Artists and Federal National Mortgage. Allied Artists is not only

not binding on this circuit, but it seems to have been rejected as

binding authority in its own circuit. See Children’s Healthcare,

92 F.3d at 1414-15, 1416; see also Kelley v. Metropolitan County

Bd. Of Educ., 836 F.2d 986, 990-91 (6th Cir. 1987). In Children’s

Healthcare, the Sixth Circuit highlighted Allied Artists’ tension

473 F.Supp. at 569. Of course, presumably every statute is

designed to serve the public interest in some way or another. More

importantly, the placement of this statute on the “public” side of

the continuum seems not to have been much of a weighed decision at

all, given the obvious deference to the plaintiff’s argument in a

Rule 12(b)(6) motion. Allied Artists is, however, the sum total of

the panel’s support for its adoption of a “continuum” prong and its

placement of Act 825 on the “public” side of the continuum.

32

with Supreme Court jurisprudence, apparently rejecting the holding

that “general duty” provisions are sufficient for purposes of

Eleventh Amendment waiver. See 92 F.3d at 1416. See also Kelley,

836 F.2d at 990-91. Furthermore, even Allied Artists--the panel’s

sole support for its “continuum” prong--does not support the

panel’s argument as to the degree of “connection” required under

Young. Allied Artists states:

Although I disagree with Gras insofar as it declines to

find Young enforcement power in the governor’s general

duty to see to the execution of state laws, I agree with

the Gras result. Furthermore, I believe to be accurate

Judge Friendly’s evaluation that the cases which have

permitted a governor to be joined as a defendant

concerned the enforcement of programs, civil or criminal,

dealing with the relations between the state and the

individual. This valid limitation serves to preclude

parties from testing the constitutionality of state

legislation by simply naming the governor as defendant,

a practice which if unchecked would effectively

eviscerate the Eleventh Amendment. Thus, to satisfy the

Young fiction, as I understand it, not only must there be

a state officer who has a connection with the enforcement

of the challenged statute, but there must also be a real,

not ephemeral, likelihood or realistic potential that the

connection will be employed against plaintiffs’

interests.

473 F.Supp. at 568 (emphasis added). Thus, the panel’s reliance on

Allied Artists places it in the awkward position of relying on a

case in support of the second part of its analysis when that case

rejects the panel’s conclusion as to the first part.

33

Second, the panel’s approach ignores the ‘state/individual’

vs. ‘predominately private/private’ distinction set forth in Gras:

“[These cases finding no Eleventh Amendment immunity] have been

concerned with the enforcement of programs, civil or criminal,

dealing with the relations between the state and the individual .

. .” 415 F.Supp. at 1152. Indeed, the propriety of this

distinction was echoed in Allied Artists. See 473 F.Supp. at 568.

The panel’s thin retort is simply that Act 825 is “designed to

implement and serve the public interest of the state.” Okpalobi,

190 F.3d at 347 (citation omitted). This tautological reasoning,

however, can easily be applied to every statute: What statute of

general application is not so designed? Even those statutes on the

opposite end of the continuum (e.g., domestic relations law in

Gras) are presumably enacted to serve the public’s interest in the

private ordering of individuals. We therefore doubt whether this

analysis serves any real use in determining whether a case

improperly tests the constitutionality of a state statute. If Act

825, a private tort statute, is on the public interest side of the

continuum, almost anything can be said to affect the public

interest. For this and other reasons, we reject the panel’s use of

this rationale to resolve the Eleventh Amendment question.

B

34

In sum, the panel generated a new two-pronged test spun out of

hardly more than a wisp of authority (a single district court’s

ruling), while ignoring critical factors examined by virtually all

prior Eleventh Amendment jurisprudence. For example, we note that

the panel’s reading failed to note that the necessary fiction of

Young requires that the defendant state official be acting,

threatening to act, or at least have the ability to act. Young,

209 U.S. at 159 (noting that the fiction applies “where an official

claims to be acting under the authority of the state.”). It is

this unconstitutional conduct, or at least the ability to engage in

the unconstitutional conduct, that makes him no longer a

representative of the sovereign. Without at least the ability to

commit the unconstitutional act by the official defendant, the

fiction cannot be sustained. See, e.g., Fitts, 172 U.S. at 530;

Children’s Healthcare, 92 F.3d at 1415-16. Indeed, if there is no

act, or potential act, of the state official to enjoin, an

injunction would be utterly meaningless. Here, there is no act, no

threat to act, and no ability to act.

VI

A

We take a moment now to address the dissent’s view of the

Eleventh Amendment question in this case. The dissent

35

substantially departs from the panel majority opinion, abandoning

many of the views expressed therein and raising theories apparently

dismissed by the plaintiff-appellees.27 The panel opinion, as we

have noted, exhibited as its centerpiece Allied Artists, a twenty

year old Ohio district court case. The dissent now jettisons

Allied Artists as support for the panel’s novel position and turns

to Title 40 of the Louisiana Revised Statutes, a statutory scheme

that attempts to review, regulate, oversee, and partially fund

medical malpractice claims. See 22C La. Rev. Stat. Ann. § 40:1299.

It quickly becomes clear, however, that Title 40 is an even less

reliable ally than was Allied Artists for the position that these

defendants have enforcement powers with regard to Act 825.

This is the essence of the dissent’s argument as best we

understand it: Title 40 applies to all medical malpractice

claims;28 the Patients Compensation Fund Oversight Board (“PCFOB”)

must review all malpractice claims to determine if they qualify for

27

None of the plaintiff-appellees appear willing to rely on the

dissent’s theory. Indeed, the appellees expressly observe in their

briefs that the medical malpractice scheme does not apply to any

cause of action under Act 825.

28

The dissent asserts that “[u]nder Title 40's medical

malpractice system, all malpractice claims against private and

public health care providers must be reviewed by a medical review

panel before the claimant can file suit in court.” (emphasis

added).

36

the damage caps and other benefits provided by Title 40; this

oversight authority means that the PCFOB would review all medical

malpractice claims based on or related to abortion claims; the

PCFOB would have discretionary authority to deny benefits of Title

40 to defendant doctors for procedures determined by the Board to

be covered by Act 825; and, because the Governor appoints members

of the PCFOB, and because appointees of the Attorney General must

approve certain payments ultimately determined to be payable from

the Self-Insurance Fund--all the aforementioned acts authorized by

Title 40--each of the defendants has enforcement powers with

respect to Act 825. The dissent makes this argument

notwithstanding the express provision of Act 825 that “[t]he laws

governing medical malpractice or limitations of liability thereof

provided in Title 40 of the Louisiana Revised Statutes of 1950 are

not applicable to this Section.” See § 2800.12(C)(2) (emphasis

added).29 Furthermore, the dissent makes this argument even though

29

The dissent incorrectly observes that Act 825 “remov[es]

abortion doctors from the umbrella of medical malpractice

protections.” Act 825 does not exempt abortion doctors from the

provisions of Title 40. Rather, all claims brought pursuant to Act

825 are exempt from Title 40. It is upon this initial flawed

foundation that the entirety of the dissent’s argument is

constructed.

37

no official connected with Title 40 has been named as a defendant

in this case.

Very little need be said about this patently untenable

argument. We need not draw attention to the fact that, even under

the dissent’s argument, the defendants who have been sued in this

case have no enforcement connection with Title 40, much less the

statute at issue (Act 825). The most obvious--and fatal--flaw in

the dissent’s effort to connect Act 825 to Title 40 is that the

argument is premised and dependent upon a plainly false assumption:

the assumption that the agencies operating under Title 40 have

jurisdiction, authority, or discretion ever to review or consider

any claims brought under Act 825. Act 825 creates a specific cause

of action; Act 825 provides that claims brought under the statute

are not subject to Title 40; consequently, any governmental bodies

or agents acting under Title 40 have no authority or jurisdiction--

that is, enforcement powers--over claims brought under Act 825. In

short, the foundation of the dissent’s argument, to wit, that

“[u]nder Title 40's medical malpractice system, all malpractice

claims against private and public health care providers must be

reviewed by a medical review panel,” is false--the actual fact

being that Title 40 applies to all medical malpractice claims

except those brought pursuant to Act 825. There is therefore no

38

connection between Title 40 and Act 825. In concluding, however,

we emphasize that, notwithstanding the dissent’s newest theory that

attempts to relate Act 825 to Title 40, we should not be diverted

from the crucial and determinative consideration under Ex parte

Young and its progeny: These defendants have no ability to enforce

Act 825, a purely private tort statute, which can be invoked only

by private litigants.

B

We turn now to comment on the various authorities addressed by

the dissent. We would first note that the dissent fails to cite

any case in which a federal court enjoined enforcement of a statute

even remotely like Act 825--that is, one with private civil, but no

criminal penalties. In every case cited by the dissent to support

its claim that an injunction was proper in this case, there were

simply no Eleventh Amendment or Article III problems that would bar

the court from asserting jurisdiction over the complaint for this

reason: federal jurisdiction plainly existed over the claims for

injunctive relief to strike the criminal provisions of the statutes

at issue in those cases.30 When there were also civil provisions

30

See, e.g., Causeway Med. Suite v. Foster, 221 F.3d 811 (5th

Cir. 2000), aff’g, Causeway Med. Suite v. Foster, 43 F.Supp. 2d

604, 609 (E.D. La. 1999); Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 909, 112 S.Ct. 2791 (1992);

39

contained in these statutes they were, without analysis, swept up

and bundled as one package with the struck criminal provisions. In

no case cited by the dissent did the court address the civil

provisions separately under an Ex parte Young analysis, as we are

called upon to do today. Indeed, in assessing the value of those

cases to the issues before us today, we must conclude that it is

determinative that these cases fail to even mention Ex parte Young.

In sum, nothing argued or cited by the dissent suggests that

there is any enforcement connection between these defendants--the

Governor and the Attorney General--and Act 825 that satisfies

either of the requirements of Ex parte Young.31 It is clear

Colautti v. Franklin, 439 U.S. 379, 381, 99 S.Ct. 675 (1979);

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52,

83-84, 96 S.Ct. 2831 (1976); Karlin v. Foust, 188 F.3d 446, 456

(7th Cir. 1999); Women’s Medical Prof’l Corp. v. Voinovich, 130

F.3d 187, 191 (6th Cir. 1997); Planned Parenthood, Sioux Falls

Clinic v. Miller, 63 F.3d 1452, 1454 (8th Cir. 1995).

31

We also briefly respond to Judge Benavides’ concurring and

dissenting opinion. We understand that opinion to suggest that we

should “pragmatically” apply Ex Parte Young in a declaratory

judgment action, without regard to the fact that no case has ever

rejected the Young fiction as the only means of avoiding the

Eleventh Amendment; that we should assume that the Eleventh

Amendment makes an exception for the Declaratory Judgment Act for

any case that seeks to enforce a federal right denied by the state,

when this position has never been held by any court; that we

should find no Article III controversy in this case as to the

injunction, and then turn and find a controversy on the same set of

facts, including the same parties, alleging the same claim and

seeking the same resolution via a declaratory judgment; and that we

40

should assume that the Declaratory Judgment Act provides an

independent cause of action, notwithstanding that the law makes

clear that--although the Declaratory Judgment Act provides a remedy

different from an injunction--it does not provide an additional

cause of action with respect to the underlying claim. See Earnest

v. Lowentritt, 690 F.2d 1198, 1203 (5th Cir. 1982). Neither case

law or the Constitution allows for this creative analysis.

The opinion makes the novel and cryptic contention that “the

Supreme Court’s modern standing doctrine has subsumed the

connection inquiry [of Young].” The revelation that the connection

inquiry of Young is no longer applicable law would come as a

surprise to the numerous federal courts that continue to apply this

connection inquiry as the binding law of the land. See, e.g.,

Lytle v. Griffith, 2001 WL 133189 (4th Cir. Feb. 16, 2001);

Confederated Tribes & Bands of the Yakama Indian Nation v. Locke,

176 F.3d 467 (9th Cir. 1999); Snoeck v. Brussa, 153 F.3d 984 (9th

Cir. 1998); Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988);

Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980); Shell Oil Co. v.

Noel, 608 F.2d 208 (1st Cir. 1979). That the doctrine of standing

has “subsumed” the connection inquiry under Young would likely

surprise the Supreme Court itself, which has never questioned the

continuing viability of Young and, indeed, has recently reaffirmed

the vitality of the doctrine. Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 262, 117 S.Ct. 2028 (1997). We note that the

Supreme Court has frequently emphasized its unwillingness to

recognize the overruling of its precedent by implication. See

Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997 (1997) (“We

do not acknowledge, and we do not hold, that other courts should

conclude our more recent cases have, by implication, overruled an

earlier precedent. We reaffirm that if a precedent of this Court

has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.") (citation

omitted).

This opinion effectively asks us to jettison the traditional

connection inquiry outlined in Young and hold that the state qua

state may be sued in federal court when the plaintiff, in a

declaratory judgment action, seeks to assert federal constitutional

rights against the state because the Fourteenth Amendment trumps

the Eleventh Amendment. To borrow the concurring and dissenting

41

therefore to this en banc court, and we hold, alternatively, that

the defendants in this case enjoy Eleventh Amendment immunity from

this suit.32

VII

opinion’s words: “That [is] beyond the power of this intermediate

court.”

32

We are at a loss to grasp what drives Judge Higginbotham’s

concurring opinion, in which he states that our effort to resolve

the crucial Eleventh Amendment question in this case “should not

have been undertaken.” Despite its opposition, the concurring

opinion in no way hints at where our treatment of Ex parte Young

runs astray of the established law and does not deny that the issue

has been central to both the panel opinion and these en banc

proceedings.

Indeed, the opinion seems to ignore the prominence, not to

mention the importance, of that issue in this case and the purpose

of the en banc court. The panel opinion based its holding on

Young. This court voted for en banc to consider the Eleventh

Amendment issues that the parties and the panel had raised. The

State has vigorously asserted its Eleventh Amendment immunity in

both its petition for rehearing and in its en banc briefs. The

plaintiff-appellees addressed the Young issue before this en banc

court as well. Therefore, once this case reached the full court,

the State was forcefully claiming its Eleventh Amendment immunity,

and the plaintiff-appellees were vigorously arguing the Young

exception. The purpose of the en banc court is to clarify the law

when a “panel decision conflicts with a decision of the United

States Supreme Court” or the case “involves one or more questions

of exceptional importance”. Fed. R. App. P. 35(b)(1). Under the

circumstances of this case, it would be difficult, if not

irresponsible, to remain silent on the panel’s and the dissent’s

misreading of the Young exception.

42

Now that we have addressed the Eleventh Amendment issues that

have been presented in this case, we turn to the question of

jurisdiction under Article III. Recently, the Supreme Court, when

confronted with both an Eleventh Amendment and an Article III

question, chose to decide the case based on Article III

jurisdiction. See Calderon v. Ashmus, 523 U.S. 740, 745, 118 S.Ct.

1694 (1998) (“[We] have decided that we must first address whether

this action for a declaratory judgment is the sort of ‘Article III’

‘case or controversy’ to which federal courts are limited.”).33

33

In Calderon, the Ninth Circuit had rejected the defendant

state officers’ Eleventh Amendment defense and affirmed a

declaratory judgment regarding a portion of the Antiterrorism and

Effective Death Penalty Act of 1996. The Supreme Court, which had

granted certiorari on the court’s rejection of the defendants’

Eleventh Amendment defense, passed the opportunity to address the

question of Eleventh Amendment immunity, and decided the case based

on Article III standing.

Whether the Supreme Court would come to the same conclusion

were it faced with the case before us, where the issue on appeal is

the propriety of an injunction rather than a judgment under the

Declaratory Judgment Act, is surely open to question. We note that

the authority cited by the Calderon court for first addressing

standing does not support the proposition that courts must always

address standing before considering the Eleventh Amendment.

The Court first relied on Patsy v. Board of Regents of

Florida, 457 U.S. 496, 102 S.Ct. 2557 (1982). In Patsy, the Court

decided not to address the Eleventh Amendment issue in part because

the State had expressly requested that the Court address the

substance of the claim. See Id. at 515. It is relevant to our case

to note, however, that one of the reasons the Court decided to look

past the Eleventh Amendment and to address the merits of the

exhaustion claim was that the exhaustion issue was “decided below

and vigorously pressed in this Court.” Id. Here, too, have the

43

Calderon does not hold that a court always must, or even always

should, decide the Article III issues before addressing Eleventh

Amendment issues. Nevertheless, given that the Supreme Court has

followed this path in a case that has similarities to today’s case,

it is not inappropriate for us to examine, and, if thereby

warranted, to decide this case based on the limitations Article III

imposes on federal courts.

Under Article III of the Constitution, the federal courts have

jurisdiction over a claim between a plaintiff and a defendant only

if it presents a “case or controversy.” This is a “bedrock

State of Louisiana and the plaintiff-appellees “vigorously pressed”

the Eleventh Amendment issue before this en banc court.

Second, the Calderon court relied on Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028 (1997), in deciding to

address Article III jurisdiction before the Eleventh Amendment.

Although Coeur d’Alene holds that “a State can waive its Eleventh

Amendment protection”, that case does not suggest that the Eleventh

Amendment is anything less than an actual restriction on the

Article III jurisdiction of the federal courts. See Id. at 270

(noting that “Eleventh Amendment immunity represents a real

limitation on a federal court’s federal-question jurisdiction.”).

Finally, it must be recognized that, on several other

occasions, the Supreme Court has not addressed the standing issue

prior to addressing the Eleventh Amendment, despite the fact that

standing was an issue in these cases. See, e.g., Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114 (1996); Edelman

v. Jordan, 415 U.S. 651, 658-59, 94 S.Ct. 1347 (1974). Indeed, the

Supreme Court has stated in unequivocal words that “the Eleventh

Amendment [stands] for the constitutional principle that state

sovereign immunity limit[s] the federal courts’ jurisdiction under

Article III.” Seminole Tribe, 517 U.S. at 64; See also Coeur

d’Alene, 521 U.S. at 270.

44

requirement.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312

(1997). In this way, the power granted to federal courts under

Article III “is not an unconditioned authority to determine the

constitutionality of legislative or executive acts.” Valley Forge

Christian College v. Americans United For Separation of Church and

State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752 (1982).

In order to establish a case or controversy sufficient to give

a federal court jurisdiction over their claims, plaintiffs must

satisfy three criteria. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S.Ct. 2130 (1992). First, they must show that

they have suffered, or are about to suffer, an “injury in fact.”

Second, “there must be a causal connection between the injury and

the conduct complained of.” Third, “it must be likely, as opposed

to merely speculative, that the injury will be redressed by a

favorable decision.” Id. (citation omitted). If any one of these

three elements--injury, causation, and redressability–is absent,

plaintiffs have no standing in federal court under Article III of

the constitution to assert their claim.

In the district court, the defendants did not raise the

question of whether the plaintiffs had an Article III case or

controversy with them, the Governor and the Attorney General, and

the district court did not consider this jurisdictional question.

45

The defendants argued only that the plaintiff doctors and clinics

lacked standing to pursue their patients’ rights. In rejecting

that contention, the district court held that “[g]iven the

relationship between the intervenors and their patients, and given

the obstacles which prevent pregnant women from challenging this

statute, including a desire for privacy and the imminent mootness

of their claims, intervenors may assert third party standing and

raise the right of their patients.” Okpalobi v. Foster, 981

F.Supp. 977, 980 (E.D. La. 1998). The panel upheld that

determination, finding that “the Plaintiffs have alleged an injury

in fact, including components of causation and redressability,

sufficient to make their claim a case or controversy subject to the

federal courts’ Article III jurisdiction.” Okpalobi, 190 F.3d at

350. The panel further determined that plaintiffs could properly

assert third-party standing on behalf of their female patients

because the plaintiffs “have the requisite commonality and

congruence with their patients’ interests to establish standing to

assert their right to make abortion decisions free of undue burden

by the State of Louisiana.” Id. at 353.

In addressing the question of federal jurisdiction under

Article III, the panel, disregarding that the defendants (the

Governor and the Attorney General) had caused no injury to the

46

plaintiffs and could never themselves cause any injury under the

private civil scheme, nevertheless concluded that, because “[i]t is

well established that a claim of direct economic harm visited on

abortion providers by a statute is adequate to satisfy the injury-

in-fact requirement,” the plaintiffs could assert standing for

themselves. Id. at 350. Furthermore, the panel essentially passed

over the causation and redressability requirements, stating only:

We are convinced that Article III does not require a

plaintiff to plead or prove that a defendant state

official has enforced or threatened to enforce a statute

in order to meet the case or controversy requirement when

that statute is immediately and coercively self-

enforcing.

Id. at 349.

The central weakness of the panel’s argument, and the fatal

flaw of the dissent’s argument that follows this opinion, is that,

notwithstanding that the defendants are powerless to enforce Act

825 against the plaintiffs (or to prevent any threatened injury

from its enforcement), the plaintiffs yet must show (1) how these

impotent defendants play a causal role in the plaintiffs’ injury

and (2) how these defendants can redress their alleged actual or

threatened injury. The panel’s reference to the self-enforcing

nature of Act 825 is inapposite to the analysis of whether the

plaintiffs have any controversy with these defendants. That is to

47

say, the panel confuses the statute’s immediate coercive effect on

the plaintiffs with any coercive effect that might be applied by

the defendants--that is, the Governor and the Attorney General.

This confusion allows the panel to state further: “The Plaintiffs’

assertion that they will be forced to discontinue offering legal

abortions to patients because of the untenable risks of unlimited

civil liability under an unconstitutional Act, sets forth a

justiciable case or controversy between the plaintiffs and the

Governor and Attorney General of Louisiana.” Id. Once the

coercive impact of the statute (coercive in that it exposes

plaintiffs to unlimited tort liability by individual plaintiffs) is

understood to be distinct from the coercive power of state

officials (for example, if the State could institute criminal or

civil proceedings under the Act), the panel’s finding of causation

here is without a basis. The panel’s own citation to Lujan

recognizes that Article III requires “a causal connection between

the injury and the conduct complained of . . .” 504 U.S. at 560-61

(emphasis added)--that is, here, a connection between the

unwarranted monetary judgment (the injury) and the prosecution of

a lawsuit under Act 825 by a private civil litigant (the conduct).

The plaintiffs have never suggested that any act of the defendants

has caused, will cause, or could possibly cause any injury to them.

48

The requirements of Lujan are entirely consistent with the long-

standing rule that a plaintiff may not sue a state official who is

without any power to enforce the complained-of statute. See

Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250 (1911)

(holding that the United States as defendant had no interest

adverse to the claimants); Gritts v. Fisher, 224 U.S. 640, 32 S.Ct.

580 (1912) (finding that the defendant state official was charged

with specific duties to enforce the challenged statute and was

therefore sufficiently adverse to the plaintiffs to create an

Article III controversy).

The plaintiffs also fail to satisfy the “redressability”

requirement of the case or controversy analysis. For all practical

purposes, the injunction granted by the district court is utterly

meaningless.34 The governor and attorney general have no power to

redress the asserted injuries. In fact, under Act 825, no state

official has any duty or ability to do anything. The defendants

have no authority to prevent a private plaintiff from invoking the

34

The district court enjoined the statute. An injunction

enjoins a defendant, not a statute. The dissent does not suggest

to us the wording of the proposed injunction against these

defendants that it would enter to bar either private plaintiffs

from suing under the statute or courts from hearing such suits.

49

statute in a civil suit.35 Nor do the defendants have any authority

under the laws of Louisiana to order what cases the judiciary of

Louisiana may hear or not hear. Because these defendants have no

powers to redress the injuries alleged, the plaintiffs have no case

or controversy with these defendants that will permit them to

maintain this action in federal court. See Muskrat, 219 U.S. at

346.36

In addressing Article III jurisdiction, the dissent focuses on

the injury component of the case or controversy requirement,

35

The dissent cites Causeway Medical Suite v. Ieyoub, 109 F.3d

1096 (5th Cir. 1997), for the proposition that these plaintiffs

have a case or controversy against the Governor and Attorney

General in this case. In Causeway, however, two additional named

defendants (the Secretary of the Department of Health and Hospitals

and the Secretary of the Department of Social Services) appear to

have possessed some enforcement connection with the challenged

statute. See id. at 1100-01. The opinion, however, does not

analyze in any detail the case or controversy issue, and the

precise role that each defendant played in enforcing the statute in

question is not clear. See id. at 1102. To the extent, however,

that Causeway might stand for the proposition that the defendants

need have no causal connection to the plaintiff’s injury and powers

to redress the injury in order to create an Article III case or

controversy, that case is overruled.

36

The cases cited by the dissent that purport to authorize

standing under these facts are hardly persuasive in deciding the

jurisdiction of the federal courts in the case before us. In each

of those cases, a case or controversy existed between the

plaintiffs and defendants because of the presence of criminal

liability provisions, fully enforceable by the state officials who

were sued. There is no such basis here that would provide an

Article III home.

50

arguing that this component has been “visibly relaxed” in abortion

cases. We do not challenge that the plaintiffs are suffering a

threatened injury. We only say that the injury alleged by the

plaintiffs is not, and cannot possibly be, caused by the

defendants--that is, these defendants will not file and prosecute

a cause of action under Act 825 against these plaintiffs; and that

their injury cannot be redressed by these defendants--that is,

these defendants cannot prevent purely private litigants from

filing and prosecuting a cause of action under Act 825 and cannot

prevent the courts of Louisiana from processing and hearing these

private tort cases.37 In this way, the dissent makes much the same

argument--and thus incorporates the same fatal flaw--as did the

panel opinion. It continues to confuse the coercive impact of the

statute itself and the ability--or the absence of ability--of the

Governor and Attorney General to cause or redress the impact of the

statute on the plaintiffs.

Indeed, the dissent is silent on how the defendants cause the

plaintiffs’ alleged injury. The only response the dissent seems to

make concerning redressability is that the Governor can provide

37

The cases cited by the dissent to support this relaxation of

the injury requirement do not in any way minimize the necessity of

causation and redressability to establish an Article III case or

controversy.

51

some relief to physicians sued under Act 825 by “order[ing] his

agents and subordinates to disregard Act 825 in reviewing civil

claims against women’s health care providers and making their legal

and factual recommendations as to liability and damages.” This

argument is unavailing. First, this response overlooks the

elemental fact that a state official cannot be enjoined to act in

any way that is beyond his authority to act in the first place. If

the defendant Governor or Attorney General has no authority under

state law to issue a specific directive, then the plaintiff might

as well sue any state officer who, in turn, could direct any other

state officer to carry out the injunction orders; or, under the

dissent’s reasoning, why not simply order the defendant Governor to

decree that no court may entertain any suit brought under Act 825?

The dissent, of course, cites no authority for its assertion that

the Governor is clothed with power to order the state agencies that

administer Title 40 to act in a specified manner with respect to a

class of cases. This is not to say that the administrators of

Title 40 themselves could not be enjoined to do a particular act

that was within their authority--but these plaintiffs must sue

those individuals authorized to exercise the orders of the

injunction.

52

Second, the redress sought by the plaintiffs’ complaint is to

eliminate the initiation of any and all lawsuits under Act 825--

there is nothing in their complaint indicating in any way that

plaintiffs seek the limited liability benefits of Title 40 for

lawsuits brought under Act 825. Like the entirety of the dissent’s

“Title 40" argument, this suggestion makes its first appearance in

the dissent that follows this opinion, notwithstanding that this

case has been pending for nearly four years. The plaintiffs’ claim

is not that Act 825 is constitutional so long as claims brought

thereunder are subject to the provisions of Title 40. Indeed, the

plaintiffs never mention Title 40, except to say that it is not

applicable to any claims brought under Act 825. Their argument is

that any cause of action alleged under Act 825 is barred as

unconstitutional. Thus, there is no redress for the claimed injury

resulting from the application of this unconstitutional statute--

that is, the filing and prosecution of a private civil action under

Act 825--that can be provided by these defendants, even under this

latest theory of redressability.

Third, we should point out, at the risk of being repetitive,

that the matter of causation remains unsatisfied. At best, the

Governor only appoints some of the administrators of Title 40, and

the Attorney General appoints legal counsel for the Self-Insurance

53

Fund. See La. Rev. Stat. Ann. §§ 39:5(A); 40:1299.44(D);

39:1533(B); 39:1535(B)(6). This appointive power of the defendants

inflicts no injury on the plaintiffs. That is to say, it is not

the Governor or the Attorney General who inflicts the claimed

injury--it is the private plaintiff, bringing a private lawsuit

under Act 825, who causes the injury of which the plaintiffs

complain.

Thus, even if we take it as true that abortion cases are

different from other cases concerning the requirements for injury

for Article III purposes, it is in this way--causal connection and

redressability–that the dissent’s authorities nevertheless remain

lacking.38 In those cases, where the plaintiffs’ injury may not

38

The dissent cites Mobil Oil Corp. v. Attorney General, 940

F.2d 73 (4th Cir. 1991), as support for its claim that causation

and redressability can exist even where a challenged statute

provides only a private tort cause of action. The court in Mobil

Oil did indeed find a controversy between the plaintiff and the

Attorney General of Virginia in that case. However, that

controversy was founded upon the Attorney General’s explicit

statutory authority, as granted via the challenged act itself, to

“investigate and bring an action in the name of the Commonwealth to

enjoin any violation of [the statute].” Va.Code § 59.1-68.2. This

authority--granting the defendants some sort of enforcement power

against the plaintiffs so as to create a case or controversy under

Article III--simply does not exist in the case before us. The

dissent’s interpretation of Mobil Oil as saying that this express

statutory authority, non-existent in the case before us, was

“irrelevant” to a finding of controversy between the plaintiff and

Attorney General is plainly wrong.

54

have been imminent, the defendants had the ability to cause and to

redress the plaintiffs’ injuries.39 Here, that is plainly not the

case. Consequently, there is no case or controversy between these

plaintiffs and defendants.

We therefore hold that the district court lacked Article III

jurisdiction to hear this claim.

VIII

In sum, we hold that the plaintiffs have no case or

controversy with these defendants and the district court’s judgment

39

The dissent cites Corporate Health Insurance, Inc. v. Texas

Department of Insurance, 215 F.3d 526 (5th Cir. 2000), for the

proposition that the medical malpractice scheme alone gives the

Governor and Attorney General sufficient powers of causation and

redressability with regard to Act 825, notwithstanding the fact

that Act 825 provides only a private cause of action. The citation

of Corporate Health for this proposition seems to us seriously

mistaken. The dissent ignores the following language that makes it

clear that a case or controversy in that case was founded upon the

authority of the Attorney General to specifically enforce the

statute at issue:

Aetna replies that it has standing because the liability

provisions expose it not only to private suits but also

to the regulatory reach of the Attorney General. We

agree. This is not a case in which private suits are the

only means of enforcing a challenged statutory standard.

The Attorney General can pursue Aetna through an action

under the Texas Deceptive Trade Practices Act and the

Insurance Code. This regulatory oversight [the right of

the Attorney General to sue directly] is sufficient to

create the requisite imminent injury for standing.

Id. at 532 (emphasis added).

55

must be dismissed for lack of federal court jurisdiction under

Article III of the Constitution. Furthermore, we have made clear

in this en banc opinion that the defendants in this case enjoy

Eleventh Amendment immunity from this suit and that the Ex parte

Young exception to the Eleventh Amendment cannot be applied under

these facts. We alternatively hold, therefore, that this suit is

barred by the Eleventh Amendment.40

The judgment of the district court is

REVERSED, VACATED, and

REMANDED for entry of judgment of dismissal.

40

It is important to keep in mind that anyone exposed to actual

liability under this statute has immediate redress--that is to say,

a defendant sued by a private plaintiff under Act 825 can

immediately and forthwith challenge the constitutionality of the

statute. The opinions that follow, although surely recognizing

this fact, seem to fall prey to the fallacy that, failing the

success of this particular challenge to Act 825, an allegedly

unconstitutional statute will remain on the books in Louisiana in

perpetuity. That is plainly not the case. Once any private

plaintiff seeks to enforce her rights under the statute, Act 825,

if indeed unconstitutional, will be stricken forever from the

statute books of Louisiana. See La. Code Civ. Proc. Ann. art. 1871

(West 1999); Perschall v. State of Louisiana, 697 So.2d 240, 254

(La. 1997) (holding that the declaratory judgment action by

plaintiff, a registered voter in the state, against the State as

the party defendant was justiciable because the plaintiff’s

interests and “the State’s duty to uphold the act” were

sufficiently adverse). We note that the Eleventh Amendment is no

bar to the United States Supreme Court’s consideration of a case

against state officers brought to it by way of state courts. See

South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 166, 119 S.Ct.

1180 (1999).

56

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

I concur in the judgment reversing and remanding for entry of

an order of dismissal for lack of standing. I do not concur in the

treatment of Ex parte Young. The majority opinion41 reexamines the

underpinnings of Ex parte Young42 to support its conclusion that

injunctive relief is not available here and hence the claim is

barred by the Eleventh Amendment. Despite the majority's careful

work, I am persuaded that this effort should not have been

undertaken.

This appeal can and should be resolved by a direct and simple

proposition: there is no case or controversy. Enjoining the named

defendants from enforcing the statute will not redress the claimed

wrongs. There is then no case or controversy under Article III of

the Constitution.43

41

I refer to the “majority” opinion because it has a clear

majority in support of its treatment of standing. The opinion’s

treatment of Ex parte Young and the Eleventh Amendment is not

supported by a majority of the court.

42

209 U.S. 123 (1908).

43

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 568, 570-

71 (1992) (“The most obvious problem in the present case is

redressability. . . . The short of the matter is that redress of

the only injury in fact respondents complain of requires action .

. . by the individual funding agencies; and any relief . . .

against the Secretary was not likely to produce that action.”).

57

I

The question of standing – case or controversy – is logically

anterior to the question of whether there is a defense to the

claim; it goes to the court’s jurisdiction and cannot be waived by

the parties or conferred by agreement. The Eleventh Amendment is

also jurisdictional, but it is jurisdiction in an anomalous form.

It is a defense that may be invoked by the state – but need not be.

Logic is not alone in pushing the case-or-controversy inquiry

to the forefront.44 Questions of standing and redressability are

familiar. The burden of a plaintiff to plead and prove standing at

each stage of the proceeding is settled.45 Stepping over this

threshold inquiry to address at the outset of the suit the defense

of Eleventh Amendment immunity risks confusion.46

44

The Supreme Court recently reaffirmed that a federal court

should usually address subject matter jurisdiction before personal

jurisdiction in removal cases, unless personal jurisdiction is

easily resolved and determining subject-matter jurisdiction is

difficult. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88

(1999). The majority’s approach is in tension with the principles

of restraint underlying Ruhrgas. It repairs to the fundamentals of

Ex parte Young instead of relying on a straightforward application

of subject matter jurisdiction. As I explain, the Supreme Court in

Calderon v. Ashmus, 523 U.S. 740 (1998), has addressed the sequence

for standing and Eleventh Amendment issues. See infra.

45

Lujan, 504 U.S. at 561.

46

I recognize that some courts have addressed the application

of Ex Parte Young without first considering standing. These cases,

58

In Calderon v. Ashmus,47 the Supreme Court recognized this

risk, insisting that standing be found before considering a state’s

immunity under the Eleventh Amendment. It explained that before

addressing an Eleventh Amendment claim, “we must first address

whether this action for a declaratory judgment is the sort of

‘Article III’ ‘case or controversy’ to which federal courts are

limited.”48 Whether the court was expressing a rule of sequence

across cases or explaining the practical compulsion in the case

before it is not wholly certain. At the least, similar concerns

inform my hesitation here.49

The question of standing in this case is easily framed. We

should ask whether enjoining defendants from enforcing the statute

complained of will bar its application to these plaintiffs. The

however, tend to involve an unusual procedural posture in which the

court finds it inappropriate to review standing. See, e.g., Summit

Medical Assoc. v. Pryor, 180 F.3d 1326, 1334-36 (11th Cir. 1999)

(finding review of standing during interlocutory appeal of denial

of Eleventh Amendment immunity to be unavailable under collateral

order doctrine or pendent appellate jurisdiction doctrine).

47

523 U.S. 740 (1998).

48

Id. at 745 (emphasis added).

49

In Calderon, the Supreme Court overruled the Ninth Circuit,

which had treated the Eleventh Amendment issue as a threshold

inquiry. The Ninth Circuit addressed the Article III standing

question only after it had decided the Eleventh Amendment issue.

See Ashmus v. Calderon, 123 F.3d 1199, 1204-07 (9th Cir. 1997).

59

answer is no. I am persuaded that the sued defendants have no such

responsibility for enforcing the statute. Whether that is so ought

to be the beginning and the end of this appeal. The majority

acknowledges this reality but only after a long visit with the

doctrine of Ex parte Young.

There is another powerful argument that Eleventh Amendment

immunity ought not be treated in this case. The majority reasons

that the injunction exception to the Eleventh Amendment offered by

Ex parte Young is not available because the injunction is against

officials with no enforcement power; that with the wrong officials

sued the action is against the State. But “official-capacity

actions for prospective relief are not treated as actions against

the State.”50 The Governor and Attorney General were sued in their

official capacities for injunctive relief. That they are the wrong

officials does not alter the relief sought. Rather, the flaw

(ignoring for the moment the absence of standing) is that if the

suit is against the wrong officials, no claim for injunctive relief

has been stated.

50

Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

n.10, quoting Kentucky v. Graham, 473 U.S. at 167 n.14; see also Ex

parte Young, 209 U.S. 123, 159-160 (1908).

60

II

The majority and the dissent trade arguments over “the nexus

between defendants and the statute at issue.” If this is the same

inquiry as standing, as it appears to be, we should be applying the

doctrine of standing. Specifically, unless nexus as deployed by the

majority has something to say to cases that meet the standing

inquiry, it has no independent utility. Treating the requisites of

standing as requirements internal to Ex parte Young is confusing,

in part, because it does not necessarily simultaneously answer the

standing question. After all, a plaintiff may have requested

injunctive relief from defendants with responsibility for enforcing

a law they challenge, but is unable to plead and prove individuated

injury.

III

Standing developed long after Ex parte Young, responding to

the stress expanding public law litigation brought to the

respective roles of Article III courts, the Congress, the

Executive, and the states. It is more than adequate to its task of

vindicating these principles of federalism and separation of

powers.

61

Judge Benavides’ opinion would find standing under the

Declaratory Judgment Act.51 This approach has three problems, in

ascending order of difficulty. First, whether the district court in

this case granted declaratory relief is uncertain. The court

granted a preliminary injunction, questioning the constitutionality

of the challenged statute in the course of finding that there was

a substantial likelihood of success on the merits. The parties then

agreed to convert the preliminary injunction into a permanent

injunction. At best, any “declaratory relief” is only that, a

conclusion implicit in the grant of injunctive relief. Perhaps this

would be a sufficient declaration, but there are larger

difficulties.

Second, although the Declaratory Judgment Act “brings to the

present a litigable controversy, which otherwise might only be

tried in the future,”52 it does not jettison traditional standing

requirements.53 The requirements of causation and redressability are

51

See 28 U.S.C. § 2201(a).

52

Societe de Conditionnement en Aluminum v. Hunter Eng'g Co.,

655 F.2d 938, 943 (9th Cir. 1981).

53

See Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997)

(Wisdom, J.) (noting that the “actual controversy” required under

28 U.S.C. § 2201(a) “is identical to the meaning of ‘case or

controversy’ for the purposes of Article III”).

62

not met here. Lack of standing disposes of this case regardless of

the relief sought – injunctive or declaratory. The defendants could

not threaten enforcement of the targeted state law; they lack the

authority to do so. If plaintiffs attempted to sue defendants in

their official capacity, acting on an assumption that although

lacking enforcement power they are obligated to defend the statute

in the abstract, the requisite concreteness of engagement is

absent. This is so even if, contrary to my view, declaratory relief

is seen as here meeting the redressability requirement of Article

III.

Third, this case could not proceed even if case or controversy

difficulties were somehow met – if the Governor and Attorney

General were seen as proper defendants to a claim seeking

declaratory relief, even though coercive relief against them could

not be granted. This is because Congress did not and could not have

created a generic exception to the Eleventh Amendment for

declaratory relief.

IV

Some have viewed Ex parte Young as the culprit, the cause of

these changes in the public law model of cases. More to the point,

some apparently see the doctrine articulated therein as a threat to

the sovereign role of states that must be tamed. I do not share

63

these views and fear that imposing this additional duty upon Ex

parte Young by bringing it forward, to the front of the case or

controversy inquiry, pushes the doctrine toward an amorphous, case-

by-case inquiry into its availability – a destination affirmatively

rejected by seven members of the United States Supreme Court.54 I

do not suggest that the majority does so here. Rather, my concern

is where the path it has selected can lead.

V

Implicit in my resistance to the majority’s approach is my

view that Ex parte Young poses no threat to the Eleventh Amendment

or to the fundamental tenets of federalism. To the contrary, it is

a powerful implementation of federalism necessary to the Supremacy

54

See Idaho v. Coeur d’ Alene Tribe, 521 U.S. 261, 288, 291

(1997) (O’Connor, J., concurring) (“[T]he principal opinion reasons

that federal courts determining whether to exercise jurisdiction

over any suit against a state officer must engage in a case-

specific analysis of a number of concerns . . . . This approach

unnecessarily recharacterizes and narrows much of our Young

jurisprudence.”); id. at 297 (Souter, J., dissenting) (“The

principal opinion would redefine the [Young] doctrine, from a rule

recognizing federal jurisdiction to enjoin state officers from

violating federal law to a principle of equitable discretion as

much at odds with Young’s result as with the foundational doctrine

on which Young rests.”). The attempt in the principal opinion to

frame Young in terms of case-by-case analysis, id. at 270-80

(Kennedy, J.), was joined only by the Chief Justice.

64

Clause, a stellar companion to Marbury55 and Martin v. Hunter’s

Lessee.56

We should wait for the case in which plaintiffs have standing,

where there is a case or controversy, before examining whether the

principles of Ex parte Young have been unduly expanded. Since such

relief can never be granted absent a case or controversy, the

destination of the majority’s trek today is inevitably a narrowing

of the doctrine of Ex parte Young, rendering it either less than it

has always been or an exact replication of standing doctrine. I

decline passage on that voyage. I decline because I am persuaded

that familiar principles of standing are better suited to answer

these questions with less risk to the vital role of Ex parte Young.

VI

The desire to drive a stake through the heart of the panel

majority’s views of Ex parte Young is understandable. The panel’s

flawed analysis offered a tempting target, enough that the en banc

majority’s lengthy effort to erase its memory here is not without

some justification. But it pursues a ghost. The panel opinion no

longer exists. It was vacated by the order granting en banc review.

55

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

56

14 U.S. (1 Wheat.) 304 (1816).

65

The order granting en banc left no remains to be buried and doing

so implies the need to do so, itself not the best course, to my

eyes.

66

BENAVIDES, Circuit Judge, concurring in part and dissenting in

part:

The majority, in focusing on the injunctive relief sought by

the plaintiffs, has paid too little attention to the plaintiffs’

request for a declaration that Louisiana’s strict liability scheme

for regulating the provision of abortions unconstitutionally

burdens a woman’s right to an abortion. In my view, the plaintiffs

present a “controversy” that the Declaratory Judgment Act and

Article III require this Court to resolve. Moreover, the Supreme

Court’s sovereign immunity jurisprudence does not foreclose our

ability to vindicate constitutional rights when the existence of a

state’s self-executing statutory liability scheme places those

rights in jeopardy. Indeed, I am confident this case falls “on the

Ex parte Young side” of the Supreme Court’s sovereign immunity

jurisprudence - that is, as in Young, I believe the duty of this

Court to protect constitutional rights and thereby ensure the

supremacy of the Constitution over state laws outweighs the

sovereign right of states to immunity from suit in federal court.

For that reason, I respectfully dissent. I write separately to

explain my belief that the connection requirement on which both the

majority and dissent concentrate should be understood and analyzed

67

in terms of standing, and has little relevance to the interplay

between Ex parte Young and the Eleventh Amendment.

I.

I agree with the majority to the extent that it holds the

plaintiffs have no standing to seek injunctive relief. Article III

standing requires a litigant to have suffered an injury-in-fact,

fairly traceable to the defendant’s allegedly unlawful conduct, and

likely to be redressed by the requested relief. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992). When

analyzing the plaintiffs’ claim for injunctive relief under the

unusual facts of this case, I am constrained by Supreme Court

precedent to find the causation and redressability requirements

lacking. However, unlike the majority of the Court, I do not

believe the inquiry ends here. In addition to seeking injunctive

relief, the plaintiffs in this case brought suit under the

Declaratory Judgment Act, 28 U.S.C. § 2201, which provides a

mechanism for pre-enforcement review of a statute.57 See Steffel

57

The Act provides:

(a) In a case of actual controversy within its jurisdiction .

. . any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such declaration,

whether or not further relief is or could be sought.

68

v. Thompson, 415 U.S. 452, 478, 94 S.Ct. 1209, 1225 (1974)

(Rehnquist, J., concurring) (“[M]y reading of the legislative

history of the Declaratory Judgment Act of 1934 suggests that its

primary purpose was to enable persons to obtain a definition of

their rights before an actual injury had occurred . . .).58

The legislative history of the Act explains that declaratory

judgments “ha[ve] been especially useful in avoiding the necessity

. . . of having to act at one’s peril . . . or abandon one’s rights

because of a fear of incurring damages.” S.Rep. No. 1005, 73d

Cong., 2d Sess., 2-3, 6 (1934); see also Hearing on H.R. 5623

before a Subcommittee of the Senate Committee on the Judiciary, 70th

Cong., 1st Sess., 75-76 (1928). (“Assuming that the plaintiff has

a vital interest in the enforcement of the challenged statute or

ordinance, there is no reason why a declaratory judgment should not

be issued, instead of compelling a violation of the statute as a

condition precedent to challenging its constitutionality.”)

58

Judge Higginbotham insists that the district court in this

case granted only injunctive relief, not a declaration of Act 825's

unconstitutionality. As a consequence, he maintains that

independent consideration of plaintiffs’ standing to seek

declaratory relief is inappropriate. In granting a preliminary

injunction, the district court declared that Act 825 “has the

purpose and effect of infringing and chilling the exercise of

constitutionally protected rights of abortion providers and woman

[sic] seeking abortions.” Okpalobi v. Foster, 981 F.Supp. 977, 986

(E.D. La. 1998). This declaration provided the sole basis for the

district court’s conclusion that the plaintiffs had demonstrated a

substantial likelihood of success on the merits of their request

for a permanent injunction against the statute’s enforcement. See

id. When the district court later made its preliminary injunction

permanent pursuant to an agreement between the parties, it

referenced the declaration contained in its previous order. I

conclude, like the panel majority, that “[b]ecause of the express

reference to the earlier order declaring the Act unconstitutional

and because the only basis for the injunction articulated is the

district court’s decision that the Act violated the Constitution,

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Although injunctive relief is not proper, the Supreme Court has

repeatedly recognized “that different considerations enter into a

federal court’s decision as to declaratory relief, on the one hand,

and injunctive relief, on the other.” Roe v. Wade, 410 U.S. 113,

166, 93 S.Ct. 705, 733 (1973) (citing Zwickler v. Koota, 389 U.S.

241, 252-255, 88 S.Ct. 391, 397-399 (1967)). Based on my reading

of Supreme Court precedent, I find the plaintiffs have standing to

bring an action for declaratory relief.

It is familiar doctrine that the Declaratory Judgment Act does

not itself grant federal jurisdiction. Instead, jurisdiction under

the Act depends on the existence of an “actual controversy” in a

constitutional sense. Aetna Life Ins. Co., 300 U.S. at 239-40, 57

S.Ct. at 463-64 (1937); Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d

272, 279 (6th Cir. 1997). In determining whether plaintiffs have

standing to bring their claim pursuant to the Declaratory Judgment

Act the basic inquiry is whether there exists, under the facts

alleged, “a substantial controversy, between parties having adverse

the order before us on appeal of necessity grants the plaintiffs’

request for both declaratory and injunctive relief.” See Okpalobi

v. Foster, 190 F.3d 337, 341 (5th Cir. 1999). The Supreme Court

reached the same conclusion on similar facts. See Green v.

Mansour, 106 S.Ct. 423, 426, n.1 (1985) (finding declaration of

regulation’s unconstitutionality “embodied in” district court’s

judgment granting injunctive relief).

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legal interests, of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.” Maryland Cas. Co. v. Pac.

Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512 (1941).59

Because I find that the plaintiffs have presented an actual

controversy and have legal interests adverse to the named

defendants, the Attorney General and Governor of Louisiana, I

believe we have jurisdiction under Article III to consider their

request for declaratory relief.

In Steffel v. Thompson, the Supreme Court analyzed the

appropriateness of declaratory relief, specifically the existence

of an actual controversy, independently from the propriety of

issuing an injunction. 415 U.S. 452, 469-70, 94 S.Ct. 1209 (1974).

59

While there is no bright line test for finding an “actual

controversy” the Supreme Court provided guidance on the inquiry in

Aetna Life Ins. Co., the seminal case affirming the

constitutionality of the Declaratory Judgment Act:

A justiciable controversy is thus distinguished from a

difference or dispute of a hypothetical or abstract character,

from one that is academic or moot. The controversy must be

definite and concrete, touching the legal relations of parties

having adverse legal interests. It must be a real and

substantial controversy admitting of specific relief through

a decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical

state of facts. Where there is such a concrete case admitting

of an immediate and definitive determination of the proceeding

upon the facts alleged, the judicial function may be

appropriately exercised . . .

300 U.S. at 240-41, 57 S.Ct. at 464 (citations omitted).

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The plaintiff in Steffel sought to distribute handbills protesting

United States’ involvement in the Vietnam War on the sidewalk near

a local shopping center. Several times the plaintiff was asked to

leave and was eventually threatened with arrest for criminal

trespass. Id. at 454-56. The plaintiff sought declaratory relief

that the state trespassing statute, as applied, interfered with the

exercise of his constitutional rights. Id. at 454-55. The Supreme

Court held that the plaintiff demonstrated an actual controversy

because the plaintiff suffered threats of injury that were not

“imaginary or speculative” and had not been rendered moot. Id. at

458-60 (contrasting Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct.

746, 749 (1971) and Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956

(1969)). Since the plaintiff faced a genuine threat of injury

absent a declaration by the Court, an “actual controversy” existed

and declaratory relief was appropriate.

Recently, the Supreme Court reaffirmed that “Steffel . . .

falls within the traditional scope of declaratory judgment actions

because it completely resolved a concrete controversy susceptible

to conclusive judicial determination.” Calderon v. Ashmus, 523

U.S. 740, 749, 118 S.Ct. 1694 (1998). In Calderon, inmates sought

a declaration of whether the state of California could raise the

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expedited review provisions of the Antiterrorism and Effective

Death Penalty Act as a defense. Id. at 742. The Court

distinguished Steffel on several grounds and found that the

petitioners presented no actual controversy, and thus lacked

standing under the Declaratory Judgment Act. Id. at 749. First,

a declaration of California’s status as a qualifying state would

only resolve a discrete issue and not the underlying controversy -

the plaintiffs’ habeas claims. Id. at 469-70. More importantly,

in contrast to Steffel, the statute in Calderon had “no coercive

impact on the legal rights or obligations of either party.” Id.

In other words, the class of inmates would not have incurred any

detriment by filing their habeas petitions prior to a ruling on

whether California was a qualifying state. The failure to show any

such injury removed the inmates’ action from the traditional bounds

of declaratory relief.

The present case is similar to Steffel in that the plaintiffs

have demonstrated an injury-in-fact that will be redressed by the

requested declaration. Initially, the dispute presented by the

plaintiffs is neither hypothetical nor speculative, rather the

dispute is founded upon the definite and concrete consequences that

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will flow from the existence of Act 825.60 The majority does not

seem to dispute, nor could it, that the plaintiffs will suffer an

injury-in-fact arising from enforcement of the Act. But beyond

enforcement, Act 825, by its mere existence, coerces the plaintiffs

to abandon the exercise of their legal rights lest they risk

incurring substantial civil liability. With respect to the Act’s

coercive effect, this case presents what this Court has recognized

as the classic situation for declaratory relief: “where the

plaintiff is put to the Hobson’s choice of giving up an intended

course of conduct which he believes he is entitled to undertake or

facing possible severe civil or criminal consequences if he does

undertake it.” Texas Employers’ Ins. Assoc. v. Jackson, 862 F.2d

491, 507 n.22 (5th Cir. 1988) (en banc); see also Nat’l. Rifle, 132

F.3d at 279 (6th Cir. 1997) (“[P]re-enforcement review is usually

granted under the Declaratory Judgment Act when a statute ‘imposes

costly, self-executing compliance burdens or if it chills protected

[constitutional] activity.’”) (quoting Minnesota Citizens Concerned

60

This Circuit has stated: “A controversy, to be justiciable,

must be such that it can presently be litigated and decided and not

hypothetical, conjectural, conditional, or based upon the

possibility of a factual situation that may never develop.” Rowan

Companies, Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (quoting

Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir.

1967)).

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for Life v. Fed. Election Comm’n, 113 F.3d 129, 132 (8th Cir.

1997)). Further, this injury to the plaintiffs is directly

traceable to the promulgation of Act 825 and will be redressed by

a declaration of the statute’s constitutionality. Unlike Calderon,

a declaration in the present case completely resolves the

underlying controversy – the constitutionality of the statute’s

chilling effect. Absent a declaration on the constitutionality of

Louisiana’s strict liability regime, the plaintiffs will be forced

to confront the Hobson’s choice that the Declaratory Judgement Act

was intended to prevent.61

Given the plaintiffs’ demonstration of an appreciable injury,

the inquiry turns to whether the Governor or Attorney General has

a legal interest adverse to that of the plaintiffs. I find the

Attorney General has a sufficient legal interest in the

constitutionality of the state’s statute. This interest is

recognized in both federal and Louisiana statutes, which require

notification of the Attorney General in any case, civil or

61

Moreover, absent pre-enforcement action by this Court, the

nature of the statutory regime may inhibit any review of its

constitutionality. Doctors fearing heightened liability will

likely forgo performing abortions, thus there will be no strict

liability suits brought in which the constitutionality of the

regime could be tested. This lack of review exacerbates the true

injury - the “chilling” of a woman’s constitutional right to choose

an abortion.

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criminal, where the constitutionality of a state statute is at

issue. LA. CODE CIV. PROC. ANN. art. 1880; 28 U.S.C. § 2403. In such

cases, the Attorney General is entitled to present argument on the

question of constitutionality. Id. Finding the Attorney General

has a sufficient legal interest is also consistent with the

underpinnings of the standing requirement. In this regard, the

Supreme Court has inquired whether the parties “[h]ave . . . such

a personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination of

difficult constitutional questions?” Baker v. Carr, 369 U.S. 186,

204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). I have no doubt that

the Attorney General’s interest in the constitutionality of the

state’s laws guaranteed a strong advocate and served to identify

and develop for this Court, and the district court, the relevant

arguments.

The concreteness of the engagement and the sufficiency of the

remedy in this case are confirmed by Supreme Court jurisprudence

that “has visibly relaxed . . . traditional standing principles in

deciding abortion cases.” See Margaret S. v. Edwards, 794 F.2d

994, 997 (5th Cir. 1986) (Higginbotham, J.). In Doe v. Bolton, the

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Supreme Court found that physicians presented a justiciable

controversy because the statute at issue was designed to operate

directly against them, despite the fact that none of them had been

prosecuted or even threatened with prosecution. 410 U.S. 179, 188,

93 S.Ct. 739, 745 (1973). Likewise, the physicians and clinics in

this case are the direct targets of Louisiana’s statute. These

plaintiffs’ injury is as concrete as that alleged by the plaintiffs

in Doe. With respect to redressability, I agree that it makes

little sense to enjoin the Attorney General or Governor from doing

that which they have no power to do within a self-executing

liability statute - enforce the statute. Yet, as noted above,

enforcement of the statute is not the sole cause of injury to the

plaintiffs. The mere existence of the statute causes concrete

injury. The requested declaration sufficiently redresses that

injury by granting the plaintiffs a substantial basis for

confidence in the constitutionality of their conduct. See Roe, 410

U.S. at 167, 93 S.Ct. at 783 (refusing to address the propriety of

injunctive relief on the basis that declaratory relief sufficiently

redressed the plaintiffs’ injury). Because the plaintiffs have

demonstrated an appreciable injury that this Court can redress

through a conclusive declaration of the statute’s

constitutionality, they have presented an actual controversy and

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Article III obliges us to act.

II.

Having determined that the plaintiffs present a justiciable

controversy, I turn to Judge Jolly’s conclusion that the Eleventh

Amendment renders this Court “powerless to act” on the

constitutionality of a private enforcement scheme.62 Judge Jolly

reaches this conclusion by misconstruing Ex parte Young as a narrow

exception to the Eleventh Amendment’s general directive that states

are immune from suit in federal court. In this regard, his opinion

neglects our constitutional responsibility, expressed in Young, to

redress ongoing violations of federal law and thus insure the

supremacy of the Constitution.63 Of course, “the need to promote

62

As Judge Jolly’s Eleventh Amendment conclusion has not

received the votes of a majority of the sitting en banc court, it

is not controlling authority for future Eleventh Amendment

questions in this Circuit. See Marks v. United States, 430 U.S.

188, 193, 97 S.Ct 990, 51 L.Ed.2d 260 (1977) (“When a fragmented

Court decides a case . . . the holding of the Court may be viewed

as that position taken by those Members who concurred in the

judgments on the narrowest grounds.”), cited in Doe v. Beaumont

Ind. School Dist., 2001 WL 69499, *30, n. 3 (5th Cir. 2001); see

also U.S. v. Ferguson, 211 F.3d 878, 885 (5th Cir. 2000) (noting

that the opinion of an equally-divided en banc court does not

disturb the prior precedent of this Circuit).

63

Ex parte Young, 209 U.S. 123, 160 (1908) (“If the question

of unconstitutionality, with reference, at least, to the Federal

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the supremacy of federal law must be accommodated to the

constitutional immunity of the States.” Pennhurst, 465 U.S. at

105-06. Accordingly, “[a]pplication of the Young exception must

reflect a proper understanding of its role in our federal system

and respect for state courts.” Idaho v. Coeur d’ Alene Tribe of

Idaho, 117 S.Ct. 2028, 2034 (1997) (majority opinion). The Supreme

Court’s limits on Young thus consider the basic requirement that

federal courts uphold the supremacy of the Constitution in light of

the practical effect of requested relief on state sovereignty.

After considering these limits, I am convinced that when a

plaintiff has standing to challenge the existence of a state’s

self-executing, private liability scheme that currently infringes

constitutional rights, federal courts have jurisdiction to redress

constitutional violations.

The plaintiffs’ lawsuit requires that we respect the

fundamental role of Ex parte Young in our federal structure. In

reconciling the competing constitutional commandments in the

Constitution, be first raised in a Federal court, that court . . .

has the right to decide it . . . .”). See also United States v.

Osborne, 22 U.S. 738, 846-51 (1828).

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Eleventh and Fourteenth Amendments,64 the Young court concluded that

federal courts, in order to preserve an individual’s rights

guaranteed in the Constitution, must have jurisdiction to prevent

the enforcement of unconstitutional state legislation. Young, 209

U.S. at 159-60. The Court reasoned that the Eleventh Amendment

could not confer immunity on a state officer to the extent that the

state officer acted in an unconstitutional manner.65 Since 1908,

64

Where the Eleventh Amendment prohibits the commencement of

a suit against a state in federal court, the Fourteenth provides

that no state shall deprive any person of life, liberty, or

property without due process of law. See Young, 209 U.S. at 149.

Though Young avoided any pronouncement that the Fourteenth

Amendment altered the scope of the Eleventh, the Supreme Court has

since recognized that the Eleventh Amendment has less force when

rights protected by the Fourteenth Amendment are at stake. See

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) (“[T]he

Fourteenth Amendment, by expanding federal power at the expense of

state autonomy, . . . fundamentally altered the balance of state

and federal power struck by the Constitution.”); Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976) (“[W]e think that the Eleventh

Amendment, and the principle of state sovereignty which it

embodies, are necessarily limited by the enforcement provisions of

section 5 of the 14th Amendment.”). That this case involves

constitutional rights protected by the 14th Amendment, as opposed

to non-constitutional federal rights, is thus significant.

65

Young, 209 U.S. at 159 (“The act to be enforced is alleged

to be unconstitutional; and if it be so, the use of the name of the

state to enforce an unconstitutional act to the injury of

complainants is a proceeding without the authority of, and one

which does not affect, the state in its sovereign or governmental

capacity. It is simply an illegal act upon the part of a state

official in attempting, by the use of the name of the state, to

enforce a legislative enactment which is void because

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the Court has reiterated time and again that the values embodied in

Ex parte Young are fundamental to the concept of federalism

embedded in our Constitution.66 In deciding whether the Young

doctrine extends to cases such as that presented by the plaintiffs,

our duty is to “ensure that the doctrine of sovereign immunity

remains meaningful, while also giving recognition to the need to

prevent violations of federal law.” Coeur d’ Alene, 117 S.Ct. at

2034 (majority opinion).

unconstitutional . . . The state has no power to impart to [its

officials] any immunity from responsibility to the supreme

authority of the United States.”)

66

See Coeur d’ Alene, 117 S.Ct. at 2034 (majority opinion)

(“We do not . . . question the continuing validity of the Ex parte

Young doctrine.”); Seminole Tribe, 116 S.Ct. 1114, 1131, n.14

(1996) (recognizing Ex parte Young as one of three significant

exceptions to the Eleventh Amendment bar on suits in federal

court); Green, 106 S.Ct. at 426 (“Remedies designed to end a

continuing violation of federal law are necessary to vindicate the

federal interest in assuring the supremacy of that law.”);

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 105-06

(1984) (“[T]he Young doctrine has been accepted as necessary to

permit the federal courts to vindicate federal rights and hold

state officials responsible to ‘the supreme authority of the United

States.’”) (citations omitted); Quern v. Jordan, 99 S.Ct. 1139,

1143 (1979); Scheur v. Rhodes, 94 S.Ct. 1683, 1687 (1974); Georgia

R. & Banking Co. v. Redwine, 72 S.Ct. 321, 324 (1952). See also

Judge Higginbotham’s concurring opinion (Young “is a powerful

implementation of federalism necessary to the Supremacy Clause, a

stellar companion to Marbury and Martin v. Hunter’s Lessee.”).

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The plaintiffs’ suit implicates the precise concerns regarding

the supremacy of constitutional rights that precipitated the Young

line of cases. To be sure, the case presented by the plaintiffs

does not fall into the traditional Young paradigm - no Louisiana

state officer will enforce Act 825’s civil penalty against doctors

that perform abortions, likewise no doctor will be prosecuted by

the state for performing an abortion. Nevertheless, the Act's

unique authorization of private strict liability lawsuits against

providers of abortions burdens the right to an abortion to the same

extent as legislation granting an Attorney General the power to

prosecute or fine individuals for performing abortions. That the

private sector, not the state, enforces penalties for performing

abortions does not alter the fundamental effect of Louisiana’s

scheme - doctors will refrain from performing abortions because of

the financial consequences involved and women in Louisiana will

face a significant burden in exercising their constitutional right

to receive an abortion. See Jackson, 862 F.2d at 507 (recognizing

that both civil and criminal penalties could chill constitutional

conduct). Likewise, the structural anomaly of Act 825 should not

render Louisiana any more immune from challenge in federal court.

This case presents a context in which Ex parte Young must operate

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to afford meaningful protection for rights guaranteed by the

Constitution.

Though Judge Jolly neglects to consider fully the aspects of

Ex parte Young supporting federal jurisdiction to hear cases

involving private schemes, very real concerns about protecting the

sovereign immunity of the states animate his opinion. That

opinion, however, ignores both practical reality and recent Supreme

Court jurisprudence regarding the role of officials sued in Ex

parte Young actions. Judge Jolly seems to understand the

connection requirement that serves as the foundation for his

Eleventh Amendment analysis as a mechanism for ensuring that the

state officer, rather than the state itself, is the object of the

litigation. In this sense, the opinion’s connection requirement

assumes that the fiction of Ex parte Young has some real meaning in

the Eleventh Amendment context - that it is the individual officer,

not the state itself that is the real party in interest. This is

simply not the case. For many years, the Supreme Court has shaped

the scope of the Ex parte Young exception as if the state officer

were the state. See, e.g., Coeur d’ Alene, 117 S.Ct. at 2034

(majority opinion) (“Th[e] commonsense observation of the State’s

real interest when its officers are named as individuals has not

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escaped notice or comment from this Court, either before or after

Young.”) (citations omitted). Were the state not the real party in

interest in suits brought under Ex parte Young, the Supreme Court

could never find the necessary state action to support a violation

of the 14th Amendment. See Home Telephone. & Telegraph. Co. v.

City of Los Angeles, 227 U.S. 278, 283-84 (1913) (recognizing a

distinction between official action under the Fourteenth Amendment

and official action for purposes of the Eleventh Amendment).

Similarly, the provision of the Federal Rules of Civil Procedure

providing for the automatic substitution of the name of one state

official for the name of his predecessor would make no sense in

litigation under Ex parte Young. See FED R. CIV. P. 25(d) (1999).

Indeed, Judge Jolly’s own characterization of Ex parte Young as an

exception to the Eleventh Amendment evinces an understanding that

Young allows the state to be sued, albeit through its officers,

when constitutional questions are raised and prospective relief is

sought.

In developing the connection requirement as a component of the

Eleventh Amendment’s protection of state sovereignty, Judge Jolly’s

opinion attempts to spin the Young fiction into reality. Yet, the

opinion’s connection requirement turns reality on its head,

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granting a state broader immunity from suit in federal court when

its officers are not directly involved in the enforcement of an

unconstitutional act than when the officers are directly involved.

That position is simply untenable. Although language in Young may

support the connection requirement defined in Judge Jolly’s

opinion, the Supreme Court’s modern standing doctrine has subsumed

the connection inquiry. The standing requirements of

injury–in–fact, causation, and redressability parallel the

majority’s requirement that state officers have “some connection

with the enforcement of the act” alleged to be unconstitutional or

be “specially charged with the duty to enforce the statute” and be

threatening to exercise that duty.67 Perhaps for this reason, Judge

Jolly’s opinion does not cite a single modern Supreme Court case

that relies on its connection requirement to support dismissal of

an Ex parte Young action on Eleventh Amendment grounds. By

analyzing the connection requirement in terms of standing, the

Supreme Court has retained the limit, but avoided the conundrum of

increasing the scope of Eleventh Amendment protection as the role

67

The majority’s explanation of “the connection” simply

reiterates the causation and redressability components of standing,

while the majority’s requirement that the officer be threatening to

exercise the duty is encompassed by the current injury-in-fact

analysis under standing.

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of the state in an allegedly unconstitutional statute decreases.

This Court must analyze the proper scope of Young in light of

reality rather than fiction. Reality requires examination of the

limits that the Supreme Court has consistently placed on Young and

determining whether those limits apply in the present context.68

Unlike Judge Jolly’s connection requirement, the Supreme

Court’s limits on Ex parte Young have focused on the extent to

which federal litigation will interfere with a state’s sovereign

rights. The Supreme Court’s principal limit has been on the nature

of the relief sought: Ex parte Young cannot be used to expose

states to retroactive monetary damages. Edelman v. Jordan, 94

S.Ct. 1347, 1362 (1974); see also Hutto v. Finney, 437 U.S. 678

(1978) (allowing Ex parte Young plaintiffs to receive monetary

relief that is clearly ancillary to non-monetary prospective

relief). This limit reflects both historical and practical

considerations. The “shock of surprise” following the Supreme

68

While it might be sensible to do away with the Young fiction

and recognize that the Fourteenth Amendment and our federal

structure require that states be sued in limited circumstances,

that would be beyond the power of this intermediate court. That is

not, however, what this opinion purports to do. In this sense,

Judge Jolly’s caricature of my opinion as a gross departure from

existing case law and the Constitution fails to confront the

Supreme Court’s modern jurisprudence on the interplay between Ex

parte Young and the Eleventh Amendment in any meaningful way.

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Court’s decision in Chisholm that led to the passage of the

Eleventh Amendment was triggered by the fear that individuals would

be able to use the federal courts to collect large debts from the

states. See Principality of Monaco v. Mississippi, 54 S.Ct. 745,

749 (1934). Thus, the prohibition on seeking monetary relief

against a state in federal court addresses the historical concerns

that existed at the time the Constitution, and subsequently the

Eleventh Amendment, were ratified. From a practical standpoint,

this limit safeguards one of the most important elements of

sovereignty - the ability to independently manage and distribute

public revenues. At the same time, the Court’s allowance of

prospective injunctive or declaratory relief provides a mechanism

for safeguarding the ultimate supremacy of our federal constitution

and the federal system which it created. See Coeur d’ Alene at

2040; id. at 2046 (O’Connor, J., concurring) (“When a plaintiff

seeks prospective relief to end an ongoing violation of federal

rights, ordinarily the Eleventh Amendment poses no bar.”); Green,

106 S.Ct. at 426 (“[T]he availability of prospective relief of the

sort awarded in Ex parte Young gives life to the Supremacy

Clause.”); Milliken v. Bradley, 97 S.Ct. 2749, 2761-62 (1977).

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The Supreme Court has applied its limits on the scope of Young

pragmatically, guided by the substantive effect of the remedy

sought rather than the form alone. In this regard, even injunctive

or declaratory relief that substantially interferes with a state’s

sovereignty may be barred by the Eleventh Amendment when

constitutional concerns are not at issue. Thus, in Coeur d’ Alene,

a majority of the Supreme Court held that the plaintiff Indian

tribe could not receive injunctive or declaratory relief that would

in effect function like a quiet title action against the state of

Idaho. See Coeur d’ Alene, 117 S.Ct. 2044 (O’Connor, J.,

concurring). Though the majority of the Court clearly rejected the

case-by-case balancing approach proposed by Justice Kennedy, the

Court also recognized that the Young - Eleventh Amendment inquiry

had to transcend form and inquire into substance. Judge Jolly’s

approach is flawed in that it limits Ex parte Young haphazardly

without any consideration of the constitutional rights at stake or

how the relief sought interferes with states’ rights.

In the present case, the plaintiffs challenge the

constitutionality of state legislation and thus invoke Young’s

concern regarding the power of the federal courts to vindicate

constitutional rights. Moreover, the form of relief that they seek

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- a declaration of unconstitutionality - is the least intrusive

available.69 In Steffel v. Thompson, the Supreme Court recognized

the unique nature of and “different considerations” involved with

granting declaratory relief. Steffel, 415 U.S. at 469-70. The

Court has disregarded the distinction between declaratory and

injunctive relief only when “principles of federalism militated

altogether against federal intervention in a class of

adjudications.” Id. at 472. For example, in Samuels v. Mackell,

401 U.S. 66, 91 S.Ct. 764 (1971), the Court concluded the issuance

of a declaration of a statute’s constitutionality during a pending

state proceeding would offend a principle notion of federalism -

“that state courts have the solemn responsibility, equally with the

federal courts ‘to guard, enforce, and protect every right granted

or secured by the constitution of the United States.’” Steffel, 415

U.S. at 460-461 (quoting Robb v. Connelley, 111 U.S. 624, , 637, 4

S.Ct. 544 (1884)). However, “[w]hen no state proceeding is pending

and thus considerations of equity, comity, and federalism have

69

If the federal court declares the contested statute

unconstitutional, the state legislature may amend or repeal the

statute or the state courts may be persuaded by the decision of the

federal court. In any event, “[a]ll these possible avenues of

relief would be reached voluntarily by the States and would be

completely consistent with the concepts of federalism . . .” Id.

at 484 (Rehnquist, J., concurring).

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little vitality, the propriety of granting federal declaratory

relief may properly be considered independently of a request for

injunctive relief.” Id. at 462. Far from precluding our Court

from considering the merits of a plaintiff’s request for

declaratory relief, principles of federalism compel our Court to

address alleged constitutional violations when, as in this case, a

plaintiff successfully establishes the existence of a continuing

controversy.70

III.

The avenue to the federal courts opened by Ex parte Young

should be available when the plaintiff (1) can establish an actual

controversy involving alleged constitutional violations; and (2)

seeks declaratory relief that does not in substance interfere with

70

Judge Higginbotham contends that I propose a “generic

exception to the Eleventh Amendment for declaratory relief.” This

is simply not the case. As previously noted, the declaratory form

of relief sought by the plaintiffs is relevant to the Eleventh

Amendment inquiry only in so far as the Supreme Court has

consistently considered the intrusiveness of the relief sought when

defining the scope of Ex parte Young. That a declaration on these

facts constitutes the least intrusive form of relief available does

not mean that other forms of relief would necessarily violate the

Eleventh Amendment. Yet, I need not consider whether the Eleventh

Amendment would impede our ability to issue forms of relief that

the plaintiffs do not have standing to seek. That said, my

approach to determining the Eleventh Amendment limits on Ex parte

Young would apply with equal force in cases involving injunctions

or other forms of relief.

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sovereign rights in ways specifically prohibited by the Supreme

Court, such as effectively awarding monetary damages against a

state or preempting ongoing state proceedings. This approach

neither casts aside the Young fiction, nor crafts a new

“declaratory judgment exception” to the Eleventh Amendment.

Rather, my approach reflects a principled and necessary application

of the Ex parte Young doctrine. Though I agree with the majority’s

conclusion that the injunction against the named defendants was

improper, I find that the plaintiffs have presented an actual

controversy that is ripe for declaratory relief. Moreover, in my

view, the Eleventh Amendment does not impede the plaintiffs’

ability to pursue that relief in a federal forum. Accordingly, I

concur with the majority’s opinion that the plaintiffs’ injunction

should be dismissed, but dissent to the extent that the majority

opinion undermines the district court’s power to issue the

underlying declaration on Act 825's constitutionality.

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ROBERT M. PARKER, Circuit Judge, dissenting:

I respectfully dissent. Judge Jolly’s attempt to excessively

narrow Ex parte Young’s scope garners only a plurality of this

court, and therefore, to use his language, it “is not binding

authority to any.” I write to note his flawed treatment of Young

and to present the traditional jurisprudential view of its scope,

and to respond to the opinion to the extent it represents the

court’s decision to dismiss this action against Appellants for lack

of a “Case or Controversy.”

I.

I start by observing that the court’s decision does not

entirely dispose of this action because the State remains as a

named defendant. Appellees initially sued the Governor and the

Treasurer in the district court. The Governor and Treasurer moved

to dismiss per FED. R. CIV. P. 12(b)(6), alleging that the Treasurer

should be dismissed for failure to state a claim. The parties then

stipulated to substitute the State for the Treasurer as a named

defendant, and Appellants withdrew the motion to dismiss as moot.

Appellants, including the State, then filed an answer against

Appellees’ claims. The State proceeded to litigate this action on

the merits, never questioning the existence of jurisdiction until

the panel dissent, sua sponte, raised the Eleventh Amendment and

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standing arguments. Therefore, the district court’s injunction is

unaffected with respect to the State.

II.

A.

Act 825 is yet another attempt by the State to violate federal

constitutional rights as construed by federal courts. As Judge

Higginbotham observed:

This appeal is the latest episode in a long effort by

Louisiana to exercise its police power over a practice to

which the courts have given considerable protection.

Indeed, the state seeks to “regulate abortion to the

extent permitted by the decisions of the United States

Supreme Court.” La. Rev. Stat. Ann. § 40:1299.35.0 (West

Supp 1986). Although one would not think that there is

anything inherently suspect about a state’s undertaking

to regulate in the abortion area, Louisiana has

repeatedly encountered constitutional objections to

portions of its regulatory schemes.

Margaret S. v. Edwards, 794 F.2d 994, 996 (5th Cir. 1986) (footnote

omitted); see 22C LA. REV. STAT. ANN. 40:1299.35.0 (West 1992)

(expressing “legislative intent” to defy Supreme Court authority on

abortion). After a long history71 of restricting a woman’s right

71

Five years after Roe v. Wade, the State enacted an abortion

regulation statute, but a district court struck down several

provisions as unconstitutional. Margaret S. v. Edwards, 488 F.

Supp. 181 (E.D. La. 1980). The State promptly passed another

statute that required, inter alia, costly and unnecessary

ultrasound testing prior to abortion, hospitalization for post-

first-trimester abortions, untenable presumptions of fetus

viability, second opinions regarding necessity of an abortion to

preserve a mother’s health, and parental consent without adequate

judicial bypass provisions. A district court declared most of

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to choose abortion, the State, by enacting Act 825, has now

changed tactics and is attempting to ban abortion altogether by

creating a private cause of action imposing unlimited liability on

anyone performing an abortion. As the majority admits, Act 825

exposes anyone to “unlimited tort liability for any damage caused

by the abortion procedure to both mother and ‘unborn child.’” Supra

at __. Liability is imposed for any “injury” to an “unborn child,”

which means that liability can be imposed for the mere act of

performing an abortion itself. Moreover, the person performing the

abortion cannot avoid liability by obtaining informed consent from

the patient. Informed consent “does not negate [the] cause of

action, but rather reduces the recovery of damages.” §

9:2800.12C(1). This is in stark contrast to the existing civil

liability provision of the State’s informed-consent law, which

provides a complete defense to malpractice claims if the physician

complies with the law’s extensive requirements. 22C LA. REV. STAT.

ANN. § 40:1299.35.6H (West 2000). Further, Act 825 provides no

defense to malpractice suits for abortions performed in case of

medical necessity or to protect the health of the patient.

Finally, Act 825's mischief is not limited to abortion providers.

these provisions unconstitutional, Margaret S. v. Treen, 597 F.

Supp. 636 (E.D. La. 1984), and we affirmed that declaration. See

Margaret S., 794 F.2d at 999.

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It covers a broad range of women’s health care providers, including

physicians treating serious medical conditions such as infection or

trauma, the treatment for which may include medically necessary

abortion. It also includes manufacturers of contraceptives and the

physicians and pharmacists who prescribe them. Thus, Act 825

imposes strict liability to anyone performing an abortion.

Such provisions confirm that Act 825 constitutes an undue

burden on a woman’s right to choose an abortion because it has the

purpose and effect of placing a substantial obstacle hindering the

exercise of that right. See Planned Parenthood of Southeastern Pa.

v. Casey, 505 U.S. 833, 877 (1992) (joint opinion). By exposing

any person performing an abortion to strict liability regardless of

the person’s compliance with existing law, Act 825 is not designed

to help a woman’s choice, but to eliminate that choice by

effectively shutting down abortion providers. See id.; Hope Clinic

v. Ryan, 195 F.3d 857, 876, 881 (Posner, C.J., dissenting). The

fact that compliance with informed consent regulations does not

negate liability proves that Act 825 is not designed to help a

woman’s choice. Moreover, because it is undisputed that Act 825

will force Appellees, who provide substantially all of the abortion

services within Louisiana, to cease operations, Act 825 places a

substantial obstacle on the right to choose an abortion. Casey,

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505 U.S. at 877; Planned Parenthood v. Miller, 63 F.3d 1452, 1465

(8th Cir. 1995).

In addition, it is clear that the State has enacted Act 825 in

an attempt to circumvent federal court decisions upholding the

right to choose an abortion. The State’s abortion code is codified

in Title 40 of its Revised Statutes governing “Public Health and

Safety,” and contains numerous regulations the violation of which

gives rise to criminal and civil penalties. The State has buried

Act 825 in its “Civil Code Ancillaries” section of its Revised

Statutes, providing only civil remedies to private parties. By

privatizing the enforcement of unlimited monetary damages, which is

undoubtedly a state-sanctioned penalty, the State is attempting to

avoid defending a patently unconstitutional law while

simultaneously effecting a coercive impact so drastic that abortion

providers have no choice but to cease operations. This purpose is

illegitimate not only because Act 825 unduly burdens a

constitutionally protected right, but also because it seeks to

evade judicial review. However, Act 825 is not entirely novel in

form; federal courts have consistently declared similar statutes to

be unconstitutional.

B.

Since Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410

U.S. 179 (1973), individual women, abortion providers, and clinics

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have invoked the federal judicial power to challenge abortion

regulations by bringing actions pursuant to Ex parte Young, 209

U.S. 123 (1908), for declaratory and injunctive relief against

state officials. Notwithstanding the fact that the Roe plaintiff’s

pregnancy had terminated and that no prosecution was threatened

against her, the Supreme Court permitted her to challenge Texas’s

criminal abortion law by suing a district attorney. Roe, 410 U.S.

at 124-25. Similarly, the Court extended stand

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