The Partial Birth Abortion Ban Act
If It is Enjoined but then Ultimately Upheld, Can Doctors Who Violated It While the Injunction Was in Effect Be Punished?

By VIKRAM DAVID AMAR

Friday, Nov. 14, 2003

Recently, Congress passed and the President signed the "Partial Birth Abortion Ban Act of 2003." The Act authorizes fines and/or jail terms of up to two years for any doctor who performs a so-called "partial birth abortion" -- a procedure Congress tried to define in the Act itself.

Unsurprisingly, a number of federal district courts last week issued temporary restraining orders (TROs) that prohibit, at least for the time being, the Justice Department from enforcing the Act. The restraining orders were issued by the district courts in large part because of the very significant possibility that the Act, when carefully and fully considered on the merits, will end up being invalidated as unconstitutional.

The Supreme Court's decision in Planned Parenthood v. Casey establishes that the government cannot place an "undue burden" on a women's right to terminate a non-viable fetus. The Act arguably fails this test. And for this reason, many commentators believe the Act will be struck down by the federal courts of appeal and/or the Supreme Court -- if and when it weighs in.

But what if the federal courts do the unexpected, and uphold the federal partial-birth abortion law? What happens to those doctors who have performed partial-birth abortions in the interim between two points in time -- the point when the injunction against the Act's enforcement was issued, and the point when the Act is upheld by the last reviewing court?

Assuming no statute of limitations bar, could the Ashcroft Justice Department prosecute these doctors? That is the question I want to address in the balance of today's column, and in my next column.

Is it Possible that the Federal Act Could Be Upheld?

Most constitutional analysts think the Act is doomed. For example, Edward Lazarus, in a recent column for this site, called the Act "patently unconstitutional" because it suffers from the same two flaws that led the Supreme Court to invalidate the State of Nebraska's partial-birth abortion law three years ago, in Stenberg v. Carhart. In particular, Eddie argued, the Act does not provide a narrow and non-vague definition of the prohibited procedure itself, and the Act does not have an exception that would permit the procedure to be used when its use would be in the best interests of the mother's health.

I have no reason to believe that Eddie and others who foresee the Act's ultimate invalidation by federal courts (including the Supreme Court) are wrong; indeed, I have not done enough thinking on the subject to have any quarrel with their reasoning. But I do know that the current Supreme Court can sometimes do unexpected things in big cases, as it has in recent years.

The Uncertainty Surrounding Judicial Deference to Congressional "Factfinding"

I also know there is one issue that the United States will raise - deference to Congressional "factfinding" - as to which the Court has been all over the map in recent decades. Defenders of the federal Act argue that it is different from Nebraska's law in that Congress has made new findings to the effect that the partial-birth abortion procedure is never safer for the mother than are other procedures. Such findings, defenders continue to urge, must be accepted by the courts.

In the 1960s, the Court did often seem to defer to Congress' findings. For example, in the context of racial discrimination in voting, the Court used as a basis for upholding Congressional power to regulate state government findings that Congress made about the existence of racist state policies. But since the mid-1990s, the Court seems to be much less deferential. For example, it has held that the question of whether an activity "substantially affects interstate commerce" is ultimately one for the Court, and that Congressional findings on the matter carry relatively little weight.

Perhaps one could distinguish the "discrimination" question from the "substantially affects interstate commerce" question on the ground that the former is factual whereas the latter involves application of a legal standard to facts. But even within the realm of "factual" questions concerning the presence or absence of discrimination, the Court has been erratic.

Just last term, in upholding the Family Medical Leave Act as a valid exercise of Congress' enforcement powers under the Fourteenth Amendment, the Court in Nevada Department of Human Resources v. Hibbs seemed to defer to Congressional findings that were not much stronger than those that were rejected in cases over the previous five years, such as Bd. of Trustees of the Univ. of Alabama v. Garrett, involving the Americans With Disabilities Act. In short, the Court has been anything but clear about which questions of fact, or which mixed questions of fact and law, are those as to which Congress is entitled to significant respect. And I have no sense of where the "medical need for partial birth abortions" would fall within the Court's deference matrix.

Temporary Restraining Orders, Preliminary Injunctions and "Permanent" Relief - A Remedies Primer

So let us just suppose, in light of this volatility, that Justice O'Connor (the swing vote in the 5-4 Carhart case) somehow finds that the federal law is not as vague as was the Nebraska statute, and that Congress' "findings" -- that the partial birth abortion procedure is never "safe or safer than" other possible procedures from the standpoint of the mother's health -- are entitled to deference, so that the factual predicate on which the Court based its Carhart decision no longer exists. Let us suppose, that is, that the Court upholds the statute.

One key question then becomes: what happens to those doctors who have performed partial-birth abortions in violation of the Act during the time a temporary restraining order (or other injunction by a lower court) was in effect? In other words, may these doctors be prosecuted by a zealous Bush Administration Justice Department for acts violative of a statute that ultimately gets upheld?

Remarkably, there may be no straightforward answer to this question. To see why, some background is necessary.

When a statute is passed that prohibits someone's activity, and that person believes the statute is unconstitutional, he appears to face a dilemma. He can comply with the statute, but then he gives up what he believes is a constitutional right to do something. On the other hand, he can flout the statute, and invoke as a defense in his prosecution the statute's unconstitutionality. If he prevails on his constitutional defense, the prosecution will be terminated; unconstitutionality of the underlying statute is always a complete defense to any prosecution. But - and here's the dilemma - what if he loses on his constitutional defense? Then he goes to jail. In other words, thus far, the only way he can enjoy the activity he thinks he has a right to engage in is to risk going to jail if he turns out not to be a good predictor of constitutional law.

That's where injunctive relief comes in. A person can go to court and say: "I am ready, willing, and anxious to engage in conduct that this statute purports to prohibit. I'd like an order from the court stating that this statute is unconstitutional, and an injunction against the prosecutor barring him from enforcing the statute against me."

Assuming a person can demonstrate that his case is "ripe" (that is, he really is ready to engage in the prohibited activity, and there really is a threat he will be prosecuted for it), he can seek such relief. The first kind of injunction he is likely to obtain is a "preliminary injunction" (or its close cousin, the temporary restraining order). These remedies are injunctions - orders - that a court issues before it has had time to hold a full-blown trial or similar proceeding to decide which side is ultimately right about the statute's constitutionality. Such "preliminary" relief - i.e., relief pending further proceedings - may be given if a plaintiff can show that there is some good chance he will ultimately prevail at trial on the merits, and that he will suffer some serious injury (that money awarded later cannot undo) in the meantime unless an injunction is issued. In doctrinal terms, these two factors are called the relative "likelihood of success on the merits" of both sides, and the "balance of hardships" between the parties. Courts considering preliminary relief must assess them both.

That is exactly what happened last week in the partial-birth abortion Act setting; various district courts granted preliminary relief - pending a full-blown resolution on the merits - against the Justice Department on the ground that the federal Act may very well be unconstitutional under Carhart, and that women will suffer in the meanwhile if the law is enforced. For example the district court judge in Nebraska who temporarily enjoined the federal Act said last week: "The law challenged here appears to suffer from a vice" similar to the one found in the Nebraska statute in Carhart, and the "health of women may be harmed if I" do not issue an injunction.

All injunctive relief, including a preliminary injunction, binds only the defendants before the court, and applies only to protect the specific plaintiffs who have brought the suit. Thus, the Nebraska district court injunction entered last week is of no help to other doctors who are not parties to that very suit. That is why the plaintiffs in the various lawsuits filed last week around the country were organizations and associations of thousands of doctors. These thousands of doctors had to be included as parties to the cases, else they would not be protected by the injunctions that issued.

(By contrast, once a law is struck down on the merits as unconstitutional on its face by the Supreme Court, such a ruling will prohibit enforcement against anyone - not just the parties in the Supreme Court case - because the Supreme Court's facial invalidation of the statute would bind all judges in the land. Prosecutors who tried to enforce the statute would not be violating an injunction, but they would be wasting everyone's time, unless there was a reason to believe the Supreme Court had changed its mind.)

What if the Injunctive Relief Awarded Earlier is Then Dissolved as the Case Moves up the Ladder?

Of course, a preliminary injunction exists only until the district court can reach a final decision on the merits - as to whether a statute is constitutional or not. Once that final decision is made - after some kind of trial or trial-like proceeding - then the district court either upholds the statute and removes the preliminary injunction, or the court invalidates the statute and issues a "permanent" injunction. A permanent injunction is not an injunction that lasts forever; "permanent" in this context means simply "after a final resolution on the merits" as opposed to "preliminary" relief, or relief "pending further proceedings."

If a preliminary injunction prohibiting the enforcement of a statute is followed up by a permanent injunction entered after the court holds the statute invalid on the merits, and that injunction is in turn affirmed by a U.S. Court of Appeals and the U.S. Supreme Court (as may happen in the case of the federal partial-birth abortion Act), things are relatively simple.

But what happens if a preliminary injunction is not followed by an invalidation of the statute. That is, what if the district court after hearing all the evidence decides the law is constitutional after all? Or what if a district court's permanent injunction is reversed by the Court of Appeals? Or what if the U.S. Supreme Court upholds the statute when the case gets up there? What then?

If any of these things were to happen in the federal partial-birth abortion Act setting, matters might get complicated. It is clear that after such reversals of course, doctors could no longer rely on the relief granted them earlier in the case. That is, doctors clearly could be punished for any partial-birth abortion they performed after a higher decision upholding the Act came down. But what about conduct that was performed while the injunction was in effect? Are doctors immunized for acts disobedient to the statute undertaken while the injunction preventing enforcement was in effect?

Believe it or not, the Supreme Court apparently has not clearly resolved this question. In Part II of this series, I will unpack this question much more, using a debate between Justice John Paul Stevens and the late Justice Thurgood Marshall.


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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