The Partial Birth Abortion Ban Act, Part Two
If it is Enjoined, But Ultimately Upheld, Can Doctors Who Violated It in the Interim Be Punished?

By VIKRAM DAVID AMAR

Friday, Nov. 28, 2003

This is Part Two in a two-part series on the Partial Birth Abortion Ban Act of 2003 and injunctive relief. -- Ed.

At the end of my last column, I posed the following question: Suppose a statute like the recently-enacted federal Partial Birth Abortion Ban Act of 2003 is enjoined by a lower court, but then upheld as constitutional when the challenges to the statute move up the ladder. Under those circumstances, may the federal government prosecute people for violations of the statute committed during the interim period, when an injunction preventing its enforcement was in effect?

This question is of real importance -- affecting, for instance, those doctors who may now be contemplating performing abortions that fit within the definition of the type of abortion prohibit by the PBABA. Yet, remarkably, the U.S. Supreme Court has not resolved this question. Indeed, it has been 20 years since members of the Court really engaged the question at all. And of the three Justices who took up the issue in some detail two decades ago, only Justice John Paul Stevens remains on the Court today.

In this column, I will discuss the most relevant Supreme Court precedent, and explore some of the major issues raised by the clash among the Justices. (Fully analyzing and resolving the question directly is unrealistic in a column of this length.)

The Supreme Court's Most Relevant Discussion

The question arose in the 1982 Edgar v. MITE case, which involved an Illinois statute that tried to regulate corporate takeover offers. MITE Corp. challenged the constitutionality of the Illinois statute on the ground that the statute unduly burdened interstate commerce, and was preempted by federal law.

On February 2, 1979, MITE obtained a preliminary injunction from a federal district court restraining the Illinois Secretary of State from invoking the provisions of the Illinois statute to block MITE's intended takeover of another company.

On February 5, in violation of the provisions of the Illinois law, MITE published its takeover offer in the Wall Street Journal.

On February 9, the district court entered a judgment declaring the Illinois statute unconstitutional; the court then permanently enjoined the Secretary from enforcing the Illinois statute against MITE. (For a general discussion of preliminary versus permanent injunctions, see Part One of this two-part series.)

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's ruling, and thus the injunction against enforcement remained intact. However, the Illinois Secretary of State sought review of the constitutionality of the statute in the U.S. Supreme Court, and the Court granted review. Some members of the Court addressed the immunity provided by preliminary injunctions only within a larger debate about whether the case was moot. If moot, the case would have to be dismissed.

Justice Stevens wrote separately, stressing that, in his view, the case was not moot because Illinois might still prosecute MITE for conduct undertaken while the preliminary injunction was in effect. (Justice Stevens' view was surprising, given his "liberal" reputation on today's Court.)

The late Justice Thurgood Marshall, joined by the late Justice William Brennan, strongly disagreed. They argued that the case was in fact moot because there was no longer a takeover offer on the table and a federal court injunction - even a preliminary injunction -- ought to be understood as conferring complete immunity for acts undertaken while the injunction was in effect.

Justice Marshall's approach would give federal judges the power to grant complete immunity from punitive sanctions to persons who desire to test the constitutionality of a state statute. But Justice Stevens rejected this approach, contending that (regardless of the wisdom of this rule) "federal judges have no power to grant such blanket dispensation from the requirements of valid legislative enactments."

The Problem with Justice Stevens's Position: How Far Does Its Logic Go?

Several aspects of Justice Stevens's position are not entirely clear. As I will explain, pushing Stevens's reasoning to its logical endpoint seems quite scary. Yet Justice Stevens does not clearly identify where the stopping point in his argument would be, and why.

First, Justice Stevens says at various points federal courts lack the power to block prosecution of a state statute found to be valid. Is his view inspired only by federalism worries, or (as some of his broader language suggests) in Justice Stevens's view, do federal courts also lack the power to block prosecutions under a federal statute?

Second, Justice Stevens does not limit his argument to preliminary injunctions -- which means that it might also apply to permanent injunctions and declarations of unconstitutionality issued by the district court. Stevens bluntly opines that a federal declaration of unconstitutionality "reflects [no more than] the opinion of the federal court that the statute cannot be enforced." As a result, Justice Stevens would at some level leave plaintiffs in a Catch-22: Give up an activity that you believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court is reversed.

This Catch-22 would continue until the Supreme Court decisively affirmed the issuance of the injunction (or denied review) -- and indeed, might even continue through the entire statute of limitations period! After all, what if the Court overruled its own precedent and later held the statute constitutional? Under Justice Stevens's logic, perhaps backward-looking prosecutions could be brought even then.

The Problem with Justice Marshall's Position: Where Do Courts Get The Power?

On the other hand, Justice Marshall never really answers Justice Stevens's complaint: Where do federal courts get the power in the first place to immunize illegal conduct under a statute that is eventually validated?

Congress could probably give the federal courts this power directly, on the ground that it is "necessary and proper" to facilitate access to the courts. Or, Congress could make reliance on an injunction a complete defense to federal crimes.

But Congress hasn't availed itself of either option. (Many states, in contrast, have followed the Model Penal Code to create a defense to state crimes when the defendant has relied on a judicial ruling.)

So where do federal courts get the power to confer this immunity, if not from Congress? If the power comes from anywhere, it must come directly from the Constitution.

A Possible Constitutional Source for Federal Courts' Power to Immunize

One possible constitutional source for the power is the Due Process Clauses of the Fifth and Fourteenth Amendments. Due process means, among other things, that you can't be prosecuted unless you've been provided adequate notice that your actions are criminal. And a contrary judicial ruling that you relied upon could undermine any claim that you did get proper notice.

The Supreme Court has seemed sensitive to this concern when it has reversed its own earlier position on a particular act's criminality. In cases such as James v. United States, it has held that Due Process means that the feds cannot punish someone for doing an act that the Court had earlier held, in other cases, to be non-criminal.

One could imagine applying this logic to say that when a defendant has obtained a permanent injunction against enforcement of a statute, he cannot be punished for violating that statute. Indeed, reliance on a permanent injunction that you yourself obtained may be thought to be more reasonable than reliance on an early case involving other parties. (Reliance on a preliminary injunction is much trickier, since the injunction itself does not make any final determination of constitutionality - finding at most only a "likelihood" of success on the merits.)

But James and similar precedents could also be limited, on several grounds, to exclude their application to lower federal court injunctions. First, it's important to note that the Supreme Court, while allowing reliance on its own rulings, has been loath to allow reliance on lower federal court rulings as to the scope of a federal criminal law especially when lower courts are themselves divided. (I should note that some commentators, such as Trevor Morrison, have criticized the Court's failure to extend the James principle to protect reliance on some lower court rulings.)

Second, it may be worth mentioning that the James line of cases dealt with judicial determinations of the meaning of federal criminal statutes, not their constitutionality. That might make a difference when it comes to notice. Someone who acts believing that his behavior is not criminal under a given statute in the first place is arguably more innocent that someone who knowingly violates a statute because he or she feels it is unconstitutional. Put another way, some people may argue (although I don't know that I'd be among them) that uncertainty (or lack of notice) about a law's validity may be different than uncertainty (or lack of notice) about a law's coverage.

If a statute gives fair warning conduct is criminal, that may in the Court's eyes be enough to render such conduct prosecutable -- even if the statute is enjoined for a while by lower courts. In Lanier v. United States, for example, the Court used language suggesting that it might take this view, finding a due process problem only when someone is prosecuted for "conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." (Emphasis added.) The Court, in other words, may decide that statutory warning is always fair warning.

The Power to Immunize as a Part of A Federal Court's Inherent Article III Power?

Some may argue, however, that there is another source, besides the Due Process Clauses, for federal courts' power to immunize: It is simply Article III, which endows federal courts with power in the first place to resolve "cases that arise under the Constitution."

Along with this power, this argument suggests, comes some power to ensure access to the federal courts. Very few people can wait months and years to vindicate what they believe to be their constitutional rights. Yet waiting for a final Supreme Court ruling (or denial of review) in a particular case will typically take months or years.

If plaintiffs must wait that long to rely on a ruling -- and perform the acts they have wanted to perform all along -- then they may not bother to bring their cases in the first place. Instead, they may simply forgo their desires, and perhaps their rights, and forget about challenging the statute at all. And changes of circumstances may also sap their resolve, by technically mooting their cases.

This Issue Should Be Resolved Before Prosecutions Happen

The issue the Supreme Court has so far left unresolved -- of whether a federal court injunction can be relied upon to confer immunity from prosecution -- ought to be resolved, one way or the other, so that litigants know where they stand.

Granted, it may well be that the federal and state prosecutors are unlikely to "reach back" and prosecute persons who acted at a time an injunction was in effect. But, on the other hand, some prosecutors might well be tempted to do so, especially when it comes to politically charged matters like so-called partial birth abortion.

As the impeachment of Bill Clinton, the contested Presidential election of 2000, and the California gubernatorial recall illustrate, we have a tendency not to look at unresolved areas of law until a political crisis forces us to. But that has proven to be a great mistake.

For these reasons, Congress and the federal judiciary should clarify things so that people can know how much - or how little - injunctive relief is really worth.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, a former clerk to Justice Harry Blackmun, and a co-author of a constitutional law casebook and several volumes of the Wright & Miller Federal Practice and Procedure Treatise. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

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