How much protection do injunctions against enforcement of allegedly unconstitutional statutes provide?

• Author: Amar, Vikram David

INTRODUCTION

The federal "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. (1) The Act also authorizes civil damage actions against doctors who engage in the prohibited conduct. (2)

Unsurprisingly, in the weeks following the Act's passage, a number of federal district courts issued temporary restraining orders ("TROs") and preliminary injunctions that prohibited, at least for the time being, the Justice Department from enforcing the new law. (3) 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 by courts on the merits, will end up being invalidated as unconstitutional. (4)

As other contributors to this Issue are explaining in much more detail, the Supreme Court's decision in Planned Parenthood of Pennsylvania v. Casey (5) establishes that the government cannot place an "undue burden" on a woman's right to terminate a nonviable fetus. (6) 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 (should it weigh in). (7)

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 an 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? Can civil damage remedies be pursued? These are the questions I want to consider in this short essay.

1. IS IT POSSIBLE THAT THE FEDERAL ACT COULD BE UPHELD ON THE MERITS?

   Most constitutional analysts think the Act is doomed. Indeed, some consider it "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. (8) In particular, detractors urge, 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. (9)

   I take no position here on whether those who foresee the Act's ultimate invalidation by federal courts (including the Supreme Court) are right or 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, and has in fact done in recent years, many unexpected things in big cases. (10)

   I also know there is one issue that the United States will raise--deference to Congressional "fact-finding"--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 medically necessary and indeed is never safer for the mother than are other procedures. In Congress's words, "substantial evidence ... demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman [and] poses significant health risks to the woman upon whom the procedure is performed and is outside the standard of medical care." (11) Such findings, defenders will urge, must be accepted by the courts.

   In the 1960s, the Court did often seem to defer to Congress's findings. For example, in the context of racial discrimination in voting, the Court upheld Congressional power to regulate state governments based directly upon findings that Congress made about the existence of racist state policies. (12) But since the mid1990s, the Court seems to be much less deferential, or at least much less consistently 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. (13)

   Perhaps one could distinguish the "existence of 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.

   For instance, just last term, in upholding the Family and Medical Leave Act as a valid exercise of Congress's powers to remedy illicit discrimination under the Fourteenth Amendment, the Court in Nevada Department of Human Resources v. Hibbs (14) 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 Board of Trustees of the University of Alabama v. Garrett, (15) which involved similar findings about discrimination in the context of the Americans With Disabilities Act. (16) 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.

   As to whether deference ought to be given, my own, somewhat tentative sense, is that while the Court generally should be more deferential to Congress than it has in the past decade and a half, (17) the Court ought not to be very deferential to Congress when Congress is operating in a context where the Court has already indicated that a heightened standard of review is appropriate. In other words, the Court's level of deference--even on factual matters--ought to correspond more generally to the "level of scrutiny" the Court applies in a given setting. Where "intermediate" or "strict" scrutiny has been adopted by the Court because of skepticism of legislative power in a given area, that skepticism ought to apply to legislative factual determinations as well as legal and policy judgments. To my mind, where the Court has gone wrong in recent times is its effective extension of "heightened scrutiny" to areas like Section 5 of the Fourteenth Amendment, where a lesser standard of review (akin to the "minimum rationality review" applied in McCulloch v. Maryland (18)) is more defensible. (19) But once the Court legitimately identifies a classification or activity, the regulation of which ought to trigger suspicions, those suspicions should apply to fact-finding as well.

   In the context of abortion regulation, as I noted above, the Court has settled on a form of "undue burden" analysis that is effectively a kind of mid-level scrutiny. (20) This standard seems similar, though not identical, to the mid-level "intermediate scrutiny" often applied in the equal protection gender classification setting. In that realm, the Court has been somewhat independent in its analysis of the underlying facts said to justify a sex-based law. (21) In particular, the Court has focused on the process the legislature used to determine its facts, and the objective plausibility of the legislature's factual bottom lines. I would hope the same independent judicial judgment would apply to the Partial-Birth Abortion Act setting.

   But let us suppose, in light of the volatility of the Court's treatment of such matters, that Justice O'Connor (22) finds that the Act 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. That is, let us suppose that the Court upholds the Act.

   The key question for my present purposes 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 criminally prosecuted by a zealous Bush Administration Justice Department for acts violative of a statute that ultimately gets upheld? Can they be held civilly responsible?

   Remarkably, there may be no straightforward answer to this question. To appreciate how that can be some, a brief bit of background is necessary.

2. TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS, AND "PERMANENT" RELIEF--A REMEDIES PRIMER

   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 herein lies the apparent 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...