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

92
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 standing to abortion

providers in Doe notwithstanding the fact that none were prosecuted

or threatened with prosecution under Georgia’s abortion law. Doe,

410 U.S. at 188. While earlier abortion regulations imposed

criminal liability for their violation, the inclusion of civil

liability did not prevent aggrieved plaintiffs from challenging

such regulations even though named defendants had no power to

enforce such actions. E.g., Casey, 505 U.S. at 888; Colautti v.

Franklin, 439 U.S. 379, 383-84 (1979); Planned Parenthood of Cent.

Mo. v. Danforth, 428 U.S.52, 83-84 (1976).

In Casey, the Supreme Court retained Roe’s essential holding

and established the undue burden test for reviewing the

constitutionality of state interference with a woman’s right to

choose an abortion. 505 U.S. at 875 (joint opinion).

Significantly, the plaintiffs in Casey consisted of abortion

providers and clinics suing, on behalf of their patients, the

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Pennsylvania governor and attorney general, just as in this case.

The plaintiffs brought suit before the effective dates of the

challenged laws, just as in this case. The Court declared, inter

alia, Pennsylvania’s spousal consent statute, which made a

physician performing an abortion on a married woman without her

spouse’s consent liable to the spouse for civil damages,

unconstitutional. Id. at 887-98. The Court reasoned that such

provision would impose a substantial obstacle to the woman’s

ability to obtain an abortion and would deter most women from

obtaining an abortion as if the state had completely outlawed

abortions. Id. at 893-94. Such reasoning forms the basis of

Appellees’ claims in this case.

In recent years, several circuits, including this court, have

reviewed challenges to state abortion statutes under the Roe and

Casey models and reached the merits of such challenges even when

they included civil liability provisions not enforced by the state

officers. See, e.g., Causeway Med. Suite v. Foster, 221 F.3d 811

(5th Cir. 2000) (Jolly, J.), aff’g, Causeway Med. Suite v. Foster,

43 F. Supp. 2d 604 (E.D. La. 1999) (enjoining Louisiana governor

and attorney general from enforcing the State’s partial-birth

abortion statute, 22C LA. REV. STAT. ANN. § 40:1299.35.3, recodified

in § 40:1299.35.16 (West Supp. 2000), which, inter alia, provided

a civil cause of action for damages against an abortion provider

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who violates the statute); Women’s Med. Prof’l Corp. v. Voinovich,

130 F.3d 187 (6th Cir. 1997) (declaring unconstitutional Ohio

abortion statute’s provision of strict civil liability for

compensatory, punitive, and exemplary damages as well as costs and

attorney’s fees against the physician for certain late-term

abortions); Miller, 63 F.3d at 1456 n.5. & 1467 (striking down

provision of South Dakota abortion statute creating a civil cause

of action for punitive and treble actual damages to a minor and

parent, and declaring that “[t]he potential civil liability for

even good-faith, reasonable mistakes is more than enough to chill

the willingness of physicians to perform abortions in South

Dakota.”). But see Summit Med. Assocs., P.C. v. Pryor, 180 F.3d

1326 (11th Cir. 1999) (holding that the Alabama governor, attorney

general, and district attorneys were not proper defendants for the

plaintiffs’ challenge to the civil liability provision of Alabama’s

abortion statute); Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir.

1999) (en banc) (relying on Summit Medical and dismissing the

plaintiffs’ challenge to Illinois and Wisconsin partial-birth-

abortion statutes providing, inter alia, a civil cause of action

because defendants--attorneys general and prosecutors--did not

enforce such provisions), vacated on other grounds, 147 S. Ct. 1001

(2000).

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 The important lesson from the above decisions is that they

involved actions brought pursuant to Young to enjoin state

governors, attorneys general, and prosecutors from enforcing

allegedly unconstitutional statutes before they became effective.

While the challenged statutes contained both criminal and civil

liability provisions, courts nonetheless reached the merits of the

plaintiffs’ challenge to determine whether the statutes, including

the civil liability provisions, imposed an undue burden on a

woman’s right to choose an abortion. Only the Seventh and Eleventh

Circuits dismissed the plaintiffs’ challenge to the civil liability

provisions for lack of jurisdiction.

Under the relevant authority discussed above, we are not

powerless to act in reviewing the judgment of the district court.

Act 825 is similar to the statutes that were challenged pursuant to

Young in the above decisions, but is also different because it only

imposes civil liability. However, that difference should not

conceal the fact that the State, by enacting Act 825, is attempting

to regulate abortion providers by exposing them to unlimited strict

liability for the mere act of performing an abortion. Such

exposure is designed to eradicate all abortions by effectively

shutting down Appellants’ operations, something the State cannot do

directly or indirectly. When this staggering effect is considered

with the State’s patently illegitimate purpose of unduly burdening

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the right to abortion while evading judicial review by enacting Act

825, the court’s decision to dismiss this action excessively

narrows the scope of Young’s principles and undermines the

supremacy of federal rights.

III.

A.

The plurality’s most egregious error lies in its flawed and

unnecessary revisionist interpretation of Smyth v. Ames, 169 U.S.

466 (1898), Fitts v. McGhee, 172 U.S. 516 (1899), and Young.72 The

plurality’s interpretation is simply unsupported by Young’s express

language and holding. In Young, the Supreme Court stated that the

72
The plurality states that the parties "vigorously pressed"
the jurisdictional arguments before this court by referring to
Patsy v. Board of Regents, 457 U.S. 496, 515 n.19 (1982). In
Patsy, the Supreme Court declined to rule on the Eleventh Amendment
issue because it was only mentioned in passing by the state before
four courts, which had not addressed it. The Supreme Court chose
to rule upon the merits of the exhaustion of remedies issue, which
was initially presented in a Rule 12(b)(6) motion to dismiss,
because it was raised and decided by the district court and this
court (both panel and en banc) and "vigorously pressed" before the
Court. It light of Patsy's procedural history, and in light of the
fact that in this action we raised, and the parties briefed, the
Eleventh Amendment issue on the court's own initiative after the
panel decision, it is improper to suggest that the parties pursued
this issue with the same vigor as the parties in Patsy. See
Coolbaugh v. Louisiana, 136 F.3d 430, 442 n.5 (5th Cir. 1998)
(Smith, J., dissenting) (“Raising [the Eleventh Amendment issue]
sua sponte is problematic . . . in light of Patsy.”).

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suit against the Nebraska attorney general in Smyth was not against

the state because “[t]here was no special provision in the statute

as to rates, making it the duty of the attorney general to enforce

it, but, under his general powers, he had authority to ask for a

mandamus to enforce such or any other law.” Young, 209 U.S. at 154

(emphasis added). After citing decisions supporting this 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 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). Then, the Court, as the plurality

correctly notes, distinguished Fitts from Smyth by noting that in

Fitts

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 (emphasis added). The Court restated Fitts’ holding as:

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

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 it is merely making him a party as a representative of
the state, and thereby attempting to make the state a
party.

Id. at 157.

Most importantly, the plurality errs by not recognizing that

Young limited Fitts’ “close official connection” requirement by

stating that

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. 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, and whether it arises out of
the general law, or is specially created by the act
itself, is not material so long as it exists.

Id. (emphasis added). In contrasting Smyth and Fitts, the Court in

Young stated that Smyth involved “state officers specially charged

with the execution of a state enactment,” and that such “special

charge” was “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 reason of the

general duties of the officer to enforce it as a law of the state.”

Id. at 158 (emphasis added). The Court concluded that the officers

in Fitts “had no duty at all with regard to the act.” Id.

(emphasis added). The significance of all this is that in Young,

the Court departed from Fitts’ close connection or special relation

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requirement by inferring “some connection” to the challenged act

from the attorney general’s general duty to enforce Minnesota’s

laws and by virtue of his office. Id. at 160-62. In light of

Young’s interpretation of Fitts, it is flatly wrong to assert Young

and Fitts are consistent. See City of Altus v. Carr, 255 F. Supp.

828 (N.D. Tex.) (three-judge court), aff’d, 385 U.S. 35 (1966)

(mem.); cf. CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY

130-42 (1972) (noting the inconsistency between Fitts and Young).

Moreover, Justice Harlan, who wrote Smyth and Fitts, dissented

in Young by stating that Fitts “is not overruled, but is, I fear,

frittered away or put out of sight by [the Young majority’s]

unwarranted distinctions.” Id. at 193 (Harlan, J., dissenting).

Justice Harlan disagreed with the Young majority’s statement that

In re Ayers, 123 U.S. 443 (1887), was not controlling. Young, 209

U.S. at 189-90. Ayers involved a Virginia statute ordering state

officials to sue to recover taxes from taxpayers who had used

interest coupons on state bonds to pay their taxes. The Court in

Ayers held that the taxpayers could not bring suit against the

officials to enjoin them from enforcing the statute because such

suit would be against the state. Justice Harlan’s dissent in Young

argued that the barred suits in Ayers were identical to the ones in

Young because they both involved suits against officers with no

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special duty to see to the enforcement of the statutes in question,

and therefore such suits were effectively against the state. Id.

at 203. Furthermore, Justice Harlan asserted that Fitts, which

applied the principles of Ayers, was “[m]ore directly on point” in

Young. Id. at 190. In addition, he noted that Smyth, which was

“much relied” on by the majority, was distinguishable from Young’s

facts because in Smyth Nebraska waived immunity from suit by

virtue of a cause of action expressly granted to the railroads by

the statute in question. Id. at 193-94. Justice Harlan feared

that Fitts was “frittered away” because the majority’s reliance on

Smyth to support jurisdiction was erroneous in light of Fitts’

reaffirmation and application of Ayers. Cf. RICHARD H. FALLON ET AL.,

HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1065-66 (4th ed.

1996) (stating that Young undermined Ayers). Significantly, he

stated: “The statutes in question did not impose upon the attorney

general of Minnesota any special duty to see to their enforcement.

In bringing the mandamus suit he acted under the general authority

inhering in him as the chief law officer of his state.” Id. at 197

(emphasis added).

The plurality erroneously interprets Smyth, Fitts, and Young

as a consistent doctrine–a “triad”–emphasizing “strict”

requirements that the officers sued have “some connection with the

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enforcement of the act” in question or be “specially charged with

the duty to enforce the statute.” However, there is no “triad,”

and the Young fiction is not recognized by any court as the “Smyth-

and-Young-as-minimized-by-Fitts” exception to the Eleventh

Amendment bar. There is no authority supporting Smyth, Young, and

Fitts as a consistent line of decisions, and that contention is

belied by Justice Harlan’s inability to distinguish the statute in

Fitts from the statute in Young. Young, 209 U.S. at 193 (Harlan,

J.) (“I am unable to distinguish [Fitts], in principle, from the

one now before us.”). Further, the statutes in Young and Smyth

were not in “sharp contrast” with the statute in Fitts because,

according to Justice Harlan, there was no difference between the

statutes in Young and Fitts, whereas the statute in Smyth expressly

granted a cause of action to the railroads against the state. Id.

at 193-94. More importantly, Young limits Fitts by finding the

necessary “connection” between the officer and the act by “virtue

of his office” whether it arises out of the general law or is

specially created.

The plurality incredibly asserts that Young “has spawned

numerous cases upholding, explaining, and recognizing its

fundamental principle” to suggest that its interpretation is so

widely accepted as to be beyond doubt. While I agree that Young

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has spawned numerous cases, not all of them have upheld or

consistently applied its fundamental principle. The plurality’s

suggestion that Young has been uniformly applied is an

embellishment that defies even Young’s illogic. Indeed, the

plurality only cites decisions to support its assertion but

conspicuously omits contrary authority as if none exists. See,

e.g., City of Altus, 255 F. Supp. at 835. Moreover, the decisions

the plurality cites are hardly a representative sample of

consistent applications of Young, and most are inapposite to this

action because they do not address actions pursuant to Young

challenging abortion regulations.

In addition, the plurality’s statement that the “requirement

that there be some actual or threatened enforcement action before

Young applies has been repeatedly applied by the federal courts” is

inaccurate. Numerous Supreme Court cases have relaxed the

“threatened enforcement” requirement of Young in the abortion

context. E.g., Casey, 505 U.S. at 845 (reviewing pre-enforcement

challenge to Pennsylvania’s abortion law); Doe, 410 U.S. at 745

(permitting pre-enforcement challenge to Georgia abortion law even

before the defendants threatened prosecution); Roe, 410 U.S. at

712-13 (permitting pre-enforcement challenge to Texas abortion law

despite the fact that the plaintiff was not pregnant). Other

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decisions directly contradict the plurality’s statement. See,

e.g., Papasan v. Allain, 487 U.S. 265, 282 n.14 (1986) (holding

that the Mississippi Governor and Secretary of State were proper

defendants because of their “general supervision” over local

officials administration of land set-asides for educational

purposes); Voinovich, 130 F.3d at 210 (“Here, the prosecutors could

charge plaintiff.”) (emphasis added); Los Angeles Bar Ass’n v. Eu,

979 F.2d 697 (9th Cir. 1992) (holding that Young applied even

though there was no enforcement by the defendant officials of the

challenged statute governing judicial appointments by the

defendants because “[The statute at issue] is simply not the type

of statute that gives rise to enforcement proceedings.”); Luckey v.

Harris, 860 F.2d 1012, 1015 (11th Cir. 1988) (“Personal action by

defendants individually is not a necessary condition of injunctive

relief against state officers in their official capacity.”). In

light of these decisions, to state that federal courts have

repeatedly required the institution of some actual or threatened

enforcement action before hearing officer suits mischaracterizes

existing law.

B.

The plurality compounds its error in reinterpreting Young by

formulating a “some connection” test that is so amorphous that even

the plurality cannot precisely articulate what it measures. The

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test is initially stated as “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.” Supra at __ (emphasis

added). Then, this “test” is redrafted as gauging “(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.” Id. at ____ (emphasis

added). However, the “test” undergoes a further revision when the

plurality modifies the “demonstrated willingness” prong to include

“the ability to act.” Id. at ___.

The plurality thus transforms its reinterpretation of Young to

create an erroneous test that undermines Young’s principle of

permitting pre-enforcement officer suits to “vindicate federal

rights and hold state officials responsible to ‘the supreme

authority of the United States.’” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 105 (1984) (quoting Young, 209 U.S. at

160)). Without explanation, Young’s requirement that there be

“some connection with the enforcement of the act” has been modified

to something beyond “general authority and responsibility,” and

then distilled to “statutory or constitutional powers.” However,

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this reformulation cannot be reconciled with Young’s express

language that the connection or duty of an officer may arise, “by

virtue of his office,” out of the “general law, or is specially

created by the act itself.” Young, 209 U.S. at 157 (emphasis

added); Papasan, 478 U.S. at 283 n.14; Luckey, 860 F.2d at 1016.

IV.

Nonetheless, even under this “test” Appellants have “some

connection to the enforcement” of Act 825. A distinct nexus exists

because Act 825 strips Appellees and other abortion providers of

statutory limitations on medical malpractice liability they

currently enjoy. § 9:2800.12(C)(2). The Governor and Attorney

General supervise and control the implementation of the statutory

limitations of liability, codified in Title 40 of the State’s

Revised Statutes. By exempting all claims brought pursuant to Act

825 from Title 40 coverage, Act 825 requires the Governor and

Attorney General, and the entities and administrators they

supervise and control, to enforce this exemption by disallowing any

abortion provider’s claim to liability coverage whenever they are

sued under Act 825.

Under Louisiana’s medical malpractice regime, total liability

is capped at $500,000. 22C LA. REV. STAT. ANN. § 40:1299.42.B.

However, any private doctor is liable only up to $100,000–any

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additional liability up to $500,000 is to be paid from a Patient’s

Compensation Fund (“PCF”). § 40:1299.42.B; see also Kelty v.

Brumfield, 633 So.2d 1210 (La. 1994) (per curiam). The PCF is

administered by the Patient’s Compensation Fund Oversight Board

(“PCFOB”), a board in the office of the Governor with members

appointed by the Governor. § 40:1299.44.D. The PCFOB may contest

the quantum of damages, but not its liability. See Kelty, 633

So.2d at 1216.

The Office of Risk Management (“ORM”) is an office within the

Governor’s Division of Administration and headed by the

commissioner of administration, and is thus subject to the

Governor’s direct control and supervision. §§ 39:3-5; 39:1528.

The ORM appoints legal counsel for the PCF and establishes minimum

qualification standards for such counsel. § 40:1299.41.J. Any

liability incurred by the state is paid from the Self-Insurance

Fund. § 39:1533. It is the duty of the Attorney General to

appoint legal counsel to the Self-Insurance Fund, and the Attorney

General must approve all settlements made by the Self-Insurance

Fund over $25,000. §§ 39:1533.B; 39:1535.B(6).73

73
In addition, the constitutionality of a statute may not be
attacked in a declaratory judgment action unless the Attorney
General is served with a copy of the proceeding, and the Attorney
General is entitled to be heard and, at his discretion, to
represent or supervise the representation of the interests of the
state in the proceeding. See Vallo v. Gayle Oil Co., Inc., 646

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 Under Title 40's medical malpractice regime, all malpractice

claims against state and private health care providers must be

reviewed by a medical review panel before the claimant can file

suit in court. §§ 40:1299.39.1; 40:1299.47. The state medical

review panels are administered by the commissioner of

administration, who is appointed and supervised by the Governor and

serves at the Governor’s pleasure. §§ 40:1299.1.A(1); 39:1. The

private medical review panels are administered by the PCFOB. §§

40:1299.44D; 40:1299:47. The medical review panels are required to

render expert opinions on each claim that are admissible in

evidence in any subsequent court action, and members of the panel

may be called as expert witnesses in the case. §§ 40:1299.39.1G,

H; 40:1299.47.G, H; see also Everett v. Goldman, 359 So.2d 1256

(La. 1978).

Under this regulatory scheme, the Governor and the Attorney

General have the requisite connection to the enforcement of Act 825

to satisfy Young. The Governor appoints and supervises the board

that reviews medical malpractice claims and the Attorney General

supervises and oversees the appointment of counsel and the payments

of settlements from the State’s funds, as well as representing the

So.2d 859 (La. 1994) (citing LA. CIV. CODE art. 1880; LA. REV. STAT.
ANN. § 49:257(B)); Bruneau v. Edwards, 517 So.2d 818, 824 (La. App.
1 Cir. 1987).

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state’s interests against constitutional challenges. The Governor

and the Attorney General, through their appointment and oversight

responsibilities, must determine which malpractice claims are

exempt from the medical malpractice regulatory scheme under Act

825. See Papasan, 478 U.S. at 283 n.14; cf. Eu, 979 F.2d at 704

(determining that Young’s “connection” requirement was satisfied by

the governor’s duty to appoint and fill positions and the secretary

of state’s duty to certify elections, and stating that the statute

in question “is not the type that gives rise to enforcement”

(emphasis added)).

For example, has a physician who provides a woman with an

intrauterine device (“IUD”) performed an abortion?74 Medical review

panels will be required to review all medical malpractice actions

arising out of the use of IUDs and determine whether the

74
Medical authorities neither fully understand how IUDs work
nor universally accept that IUDs are abortifacients, although there
is strong evidence that an IUD prevents a conceptus (a fertilized
female ovum, in the words of Act 825) from implanting in the
uterine wall, thus terminating an intrauterine pregnancy. Compare
JOHN WHITRIDGE, WILLIAMS OBSTETRICS 931 (18th ed. 1989) (“The mechanisms
of action of the chemically inert device have not been defined
precisely. Interference with successful implantation of the
fertilized ovum in the endometrium seems to be the most prominent
action.”) with How IUDs Prevent Pregnancy, POPULATION REPORTS,
POPULATION INFORMATION PROGRAM OF THE JOHNS HOPKINS SCHOOL OF HYGIENE AND PUBLIC
HEALTH v. XXIII no. 5 (1995) (reporting that studies suggest IUDs
prevent sperm from fertilizing ova and do not support the common
belief that they usually work by preventing implantation.); see
also LEON SPEROFF, CLINICAL GYNECOLOGIC ENDOCRINOLOGY AND INFERTILITY 782 (5th
ed. 1994).

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prescribing physician performed an “abortion” as defined by Act

825. The panels will likewise be called on to exercise discretion

in applying the State’s malpractice regime in cases arising out of

treatment of chorioamnionitis. When a woman develops this

intrauterine infection early in a pregnancy, she and the fetus may

die if left untreated; however, the only available treatment will

terminate the pregnancy. See WHITRIDGE at 751. Will the physician

who treats the woman, saving her life but terminating the

pregnancy, be held by the review panel to have performed an

abortion and thus be disqualified for Title 40 protection? Such

decisions employ, by statutory requirement, Appellants’ regulatory

powers. In yet another example, abortion procedures may be coupled

with the administration of anaesthesia or tubal ligation, which

remain eligible for the medical malpractice regime. Medical review

panels will be called on to “enforce” Act 825 by determining which

claims to exclude from the medical malpractice regime. Cf. Eu, 979

F.2d at 704.75 Pharmacologically induced abortions, caused by such

75
Bethesda Lutheran Homes and Servs., Inc. v. Leean, 122 F.3d
443 (7th Cir. 1997) (Posner, J.) (holding that out-of-state
residents excluded by state law from a program to subsidize in-
state hospitals could, under Young, sue state officials responsible
for administering the program to enjoin them from exclusion);
Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1571 n.9 (10th Cir.
1995) (allowing, pursuant to Young, a suit by out-of-state
residents against state officials to enjoin them from excluding the
residents from a favorable method of obtaining hunting licenses).

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agents as RU-486 or the “morning after pill” present still other

enforcement questions because pharmacists, as well as physicians,

are listed as “health care providers” for purposes of Title 40.

See § 40:1299.41(A)(1). A physician, by prescribing RU-486,

clearly performs an abortion under Act 825, since the drug

accomplishes “the deliberate termination of an intrauterine human

pregnancy after fertilization of a female ovum.” Medical review

panels will therefore have to regulate the circumstances under

which Act 825 denies limits on malpractice liability for claims

relating to prescriptions for and use of for such drugs. Consider

also the emergency room surgeon presented with a pregnant woman

who, having sustained blunt trauma in an automobile crash or a

domestic violence incident, has a ruptured uterus. Since the

mandated treatment for such condition includes the deliberate

termination of the pregnancy, will the Governor’s medical review

panel deny the physician performing the procedure the protections

of Title 40 and subject the doctor to unlimited liability for the

death of the fetus? While far from exhaustive, these examples

leave no doubt that the Governor and the Attorney General, through

their supervision and control, have a routine, concrete role in

enforcing Act 825.

We recently allowed health maintenance organizations (“HMOs”)

to bring a pre-emptive action against the Texas attorney general

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and commissioner of insurance challenging a Texas act that, inter

alia, creates a private cause of action for patients against their

HMOs. Corporate Health Ins., Inc., 215 F.3d 526, 532 & n.6 (5th

Cir. 2000) (Higginbotham, J.). In Corporate Health we held that

the plaintiffs had standing and the defendants were properly named

because of the defendants’ powers of appointment, supervision, and

regulatory oversight over the Texas health insurance industry. We

especially noted that the commissioner of insurance was a proper

defendant given his “oversight authority” as was the attorney

general because of his “regulatory reach” and general discretionary

power to bring actions under the Texas Deceptive Trade Practices

Act. Id. Such authority and power constituted sufficient

connection to the enforcement of the challenged law, including the

civil cause of action, to allow the suit to proceed pursuant to

Young.

In light of Corporate Health, it is clear that “some

connection” exists in this action by virtue of the Governor’s and

Attorney General’s participation in the State’s extensive medical

malpractice regime. No principled distinction can be made between

Corporate Health and this action to conclude that case or

controversy exists in the former but not the latter. In this

action, Appellants’ connection to the enforcement of Act 825 is

equivalent to, if not greater than, the connection between the

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defendants and the challenged law in Corporate Health. The

plurality’s statement that we are powerless to hear Appellees’

challenge in this case is contrary to Supreme Court law and

conflicts with our reasoning and holding in Corporate Health.

V.

It is also apparent that Appellees have established a case or

controversy against Appellants. Appellees’ standing is clearly

supported by the relevant decisions noted above. E.g., Casey, 505

U.S. at 845; Danforth, 428 U.S. at 83-84; Colautti, 439 U.S. at 384

n.3; Voinovich, 130 F.3d at 192 n.3; see also Corporate Health, 215

F.3d at 532; Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1102

(5th Cir. 1997). Notably, we have upheld Appellees’ standing to

challenge a civil liability provision contained in the State’s

partial-birth abortion statute against these same Appellants.

Causeway Med. Suite, 221 F.3d at 811, aff’g, Causeway Med. Suite,

43 F. Supp. 2d at 609-10.

The majority opinion, while conceding that Appellees have

uundoubtedly established an “injury-in-fact,” simply concludes that

Appellants had not caused any injury to Appellees. Such conclusion

ignores and is in conflict with the authority upholding standing

for abortion providers and clinics asserting their own rights for

potential injury to economic opportunity or liberty as well as the

liberty interests of their patients. E.g., Singleton v. Wulff, 428

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U.S. 106, 118 (1976); Causeway Med. Suite, 221 F.3d at 811;

Causeway Med. Suite, 109 F.3d at 1102; Greco v. Orange Mem. Hosp.

Corp., 513 F.2d 873, 875 (5th Cir. 1975) (noting abortion

provider’s individual economic and liberty interest in practicing

medicine free from arbitrary restraints). More importantly, the

majority fails to effectively analyze why the plaintiffs in Casey,

Causeway Medical Suite, Voinovich, Miller, and Corporate Health

were able to successfully allege that a civil liability provision

created an injury-in-fact traceable to the defendants when the

named defendants had no ability to “enforce” the provision.

The majority summarily dismisses the existence of causation

and redressability notwithstanding our past declaration that “the

Supreme Court has visibly relaxed its traditional standing

principles in deciding abortion cases.” Margaret S., 794 F.2d at

997 (Higginbotham, J.) (citing Roe, 410 U.S. at 123-29, and Doe,

410 U.S. at 187-89). As discussed above, the threatened injury is

exposure to unlimited damages for strict liability for performing

abortions, which Appellants directly regulate. Moreover, we have

held that “a plaintiff must establish that the injury is fairly

traceable to the proposed government action or inaction.” Sierra

Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998) (Benavides, J.)

(emphasis added); Luckey, 860 F.2d at 1016. Appellees’ injury,

risk of unlimited strict liability, is fairly traceable to

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Appellants’ role in Louisiana’s medical malpractice regime because

Appellants will enforce Act 825 by excluding Appellees from Title

40 coverage for claims pursuant to Act 825–i.e., Appellants will

enforce Act 825 by not acting under Title 40. This enforcement by

“inaction” means that the PCFOB will not defend against the quantum

of damages, the Governor (through his commissioner of

administration) will not oversee the determination of liability,

the Governor will not pay for the proceedings if a ruling is in

favor of the abortion doctor, and the Attorney General will not

have to appoint counsel or authorize any settlement in excess of

$25,000.

Despite this rather simple chain of causation, the majority

begs the question by concluding that because Act 825 is a private

tort statute, Appellants have no coercive power sufficient to make

the necessary causal connection.76 However, Appellants wield

76
To this end, the majority’s citation of Muskrat v. United
States, 219 U.S. 346 (1911), and Gritts v. Fisher, 223 U.S. 640
(1912), is inapposite. Muskrat concerned Congress’s statutory
creation of jurisdiction in federal court allowing individuals to
sue the United States for judicial review of the constitutionality
of certain statutes. The Supreme Court held that such statutory
creation of jurisdiction did not create a case or controversy
because the United States had no interest or stake in the
litigation adverse to the plaintiffs. In this action, Act 825 does
not confer jurisdiction in federal court to sue a particular
defendant, and it is clear that Appellees have a distinct case or
controversy against Appellants because Appellants’ interests are
directly adverse to Appellees’ interests.
Moreover, contrary to the majority’s explanatory parenthetical
that states that the defendant in Gritts was sufficiently adverse

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coercive power because their duty to execute and uphold the

constitutionality of Act 825 constitutes the power to effectuate

the Act’s coercive impact. See Mobil Oil Corp. v. Attorney

General, 940 F.2d 73, 76-77 (4th Cir. 1991) (noting that a case or

controversy exists in a constitutional challenge to a private

enforcement statute because the state official has sufficient

adverse interests by having the power to intervene to defend the

statute);77 cf. Papasan, 478 U.S. at 283 n.14. Moreover, Appellees

to the plaintiffs to create an Article III controversy, Gritts does
not even mention Article III case or controversy requirements or
standing. These decisions simply do not support the majority’s
reasoning.
77
The majority’s interpretation of Mobil Oil belies the
Fourth Circuit’s express holding. Contrary to the majority’s
conclusion that “controversy was founded upon the Attorney
General’s explicit statutory authority,” the Fourth Circuit held
that such statutory authority is “irrelevant” because “[w]hether
Mobil has a dispute with its franchisees does not bear on whether
it has a dispute with the Attorney General.” Mobil Oil, 940 F.2d
at 76 (footnote omitted); see also id. n.2 (“‘A controversy exists
not because the state official is himself a source of injury but
because the official represents the state whose statute is being
challenged as the source of the injury.’” (quoting Wilson v.
Stocker, 819 F.2d 947 (10th Cir. 1987)). The court added that even
in private enforcement suits, the Attorney General “could
intervene” to defend the constitutionality of the statute under 28
U.S.C. § 2403(b), and cited for support a private medical
malpractice suit in which the Attorney General had so intervened.
Id. at 76-77 (citing Boyd v. Bulala, 877 F.2d 1191 (4th Cir.
1989)). Thus, Mobil Oil is properly read as equating an official’s
independent power of enforcing a statute with the power to
intervene in an action to defend that statute to create “an odor of
a ‘case or controversy.” Id. at 77; see also id. at 75 (“[T]he
Declaratory Judgment Act was designed[] . . . [to] encourage a
person aggrieved by laws he considers unconstitutional to seek a

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have asserted that Appellants’ failure to limit potential liability

for claims based on abortion-related injuries by “acting” under Act

825 will cause the injury-in-fact. See Compl. for Decl. Relief ¶

V at 3, reprinted in R. at 196. The majority’s flawed reasoning

creates a double standard by which Appellants, who perform an

unpopular but constitutionally protected procedure, are effectively

barred from bringing any pre-enforcement challenge in federal

court, whereas similarly situated HMOs are free to demand a federal

forum.78

Lastly, the majority erroneously concludes that Appellees fail

to satisfy the “redressability” requirement of standing because the

declaratory judgment against the arm of the state entrusted with
the state’s enforcement power.” (emphasis added))
78
The majority’s suggestion that Louisiana courts are
available to hear Appellees’ claims is untenable. To the extent
the majority suggests that the Eleventh Amendment reflects a forum-
selection theory, the Supreme Court in Alden v. Maine, 119 S. Ct.
2240, 2263 (1999), rejected such theory by holding that the
Eleventh Amendment embodies a broad state sovereign immunity that
applies in both federal and state courts. Id. (“Young is based in
part on the premise that sovereign immunity bars relief against
States and their officers in both state and federal courts, and
that certain suits for declaratory or injunctive relief against
state officers must therefore be permitted if the Constitution is
to remain the supreme law of the land.”).
Moreover, according to a majority of current Supreme Court
Justices it is improper to consider the availability of state
courts in determining whether relief pursuant to Young is
permissible. Idaho v. Coeur D’Alene Tribe of Idaho, 117 S. Ct.
2028, 2045 (1997) (O’Connor, J., joined by Scalia, Thomas, JJ.,
concurring); id. at 2048 (Souter, J., joined by Stevens, Ginsburg,
Breyer, JJ., dissenting).

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injunction granted by the district court is “utterly meaningless.”

Ironically, this is the same argument Appellants offered and we

rejected in Causeway Medical Suite, 109 F.3d at 1102. There, these

Appellants asserted that Appellees lacked standing to challenge

judicial bypass procedures because they did not have “the power to

enforce private-action court procedures.” Id. Appellants argued

that the injunction in this case is ‘hypothetical and

meaningless.’” Id. We rejected this argument under Casey. Id.

More importantly, the majority reaches its conclusion without any

authority, ignoring our “duty to decide the appropriateness and the

merits of the declaratory request irrespective of [our] conclusion

as to the propriety of the issuance of the injunction” in actions

brought under the Declaratory Judgment Act, 28 U.S.C. § 2201

(1994). Steffel v. Thompson, 415 U.S. 452, 468 (1974) (emphasis

added); cf. id. at 478 (Rehnquist, J.) (“[The primary purpose of

the Declaratory Judgment Act is] to enable persons to obtain a

definition of their rights before an actual injury occurred.”).

The Supreme Court has held that “it is not necessary to decide

whether [a plaintiff’s] cause of action against the [defendant]

based directly on the Constitution is in fact a cause of action on

which [the plaintiff] could actually recover. . . . Instead the

test is whether the cause of action alleged is so patently without

merit as to justify the court’s dismissal for want of

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jurisdiction.” Duke Power v. Carolina Env’l Study Group, 438 U.S.

59 (1978) (internal quotation marks omitted); see also Larson v.

Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies

the redressability requirement when he shows that a favorable

decision will relieve a discrete injury to himself. He need not

show that a favorable decision will relieve his every injury.”).

The majority’s fixation with the “meaning” of the injunction is not

based on a rule of law, but rather on an arbitrary principle

ignoring Louisiana law and designed to restrict access to federal

courts.

A suit for declaratory and injunctive relief is the classic

procedural mechanism for challenges to the constitutionality of

state abortion statutes. E.g., Casey, 505 U.S. at 845; Roe, 410

U.S. at 120; Doe, 410 U.S. at 185. Without regard to the meaning

of an injunction, we have upheld the issuance of such injunction to

enjoin these Appellants from enforcing a civil liability statute

for damages for violation of Louisiana’s ban on partial-birth

abortions. Causeway Med. Suite, 221 F.3d at 811, aff’g, Causeway

Med. Suite, 43 F. Supp. 2d at 619. Moreover, Appellees’ injury can

be specifically redressed by an injunction against the Governor to

order 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. See

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§ 39:4.C (“The division of administration shall exercise such other

duties and functions germane to its primary functions as may be

prescribed by law or as directed by the governor by executive

order.”). It can further be redressed by an injunction against the

Attorney General requiring him to appoint counsel to defend civil

suits on an equal basis with non-abortion providers in medical

malpractice cases. See § 39:1533.B.

VI.

Based on the foregoing, I conclude that the Eleventh Amendment

does not bar consideration of this case in federal court and that

Appellees have asserted a “Case or Controversy” against Appellants.

124