Flying Under the Radar: Louisiana's New "Stealth Abortion Law"

by Terry O'Neill, Membership Vice President

Suppose a state passed a law making the performance of any and all abortions a crime punishable by imprisonment and substantial fines. That law would quickly be challenged in federal court and ruled unconstitutional under Roe v. Wade and Planned Parenthood v. Casey.

But suppose that, instead of a criminal ban on abortion, a state passed a law making the performance of any abortion a civil wrong punishable by unlimited monetary damages. Wouldn't that be unconstitutional? Wouldn't it be quickly challenged in federal court and struck down? It might surprise you to learn that, although such a law would not be constitutional, the U.S. Court of Appeals for the Fifth Circuit (covering Louisiana, Mississippi and Texas) recently ruled that it cannot be challenged in federal court. Relying on states' rights ideology and an obscure precedent from the 1800s, the court threw out a challenge to what activists are calling Louisiana's "Stealth Abortion Law" in Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2000).

The Stealth Abortion Law makes the performance of abortion a civil wrong punishable by unlimited money damages. Damages are payable to the woman who has the abortion, provided she files suit within ten years afterward. Her informed consent to the procedure is no defense, although it might reduce the amount of her total damages. This law is not about malpractice, so it doesn't matter that the abortion was performed with the highest level of medical skill. It also doesn't matter whether the abortion was performed in the first, second or third trimester, or whether the pregnancy resulted from rape or incest. It doesn't even matter that the abortion may have been necessary to protect the woman's health or life. Under the Stealth Abortion Law, every abortion is a civil wrong, triggering potentially unlimited liability for the abortion provider.

The Center for Reproductive Law and Policy, representing Louisiana abortion providers, sued in federal court and won a permanent injunction against this obviously unconstitutional law. On appeal, a three-judge panel of the Fifth Circuit Court upheld the lower court by a vote of 2 to 1. However, the entire Fifth Circuit subsequently reheard the case and reversed the panel's decision, reinstating the law.

The full Fifth Circuit court ruled that a law imposing civil damages – as opposed to criminal penalties – for the performance of an abortion cannot be challenged in federal court. The court's reason: under principles of states' rights, no one can sue a "sovereign state" for enacting an unconstitutional law. So, when challenging a state law as unconstitutional, a plaintiff ordinarily must sue specific state officials to prevent them from enforcing the unconstitutional law. This procedure works well when the challenged law is a criminal statute; the plaintiff sues the governor and/or attorney general, has the law declared unconstitutional, and the officials are prevented from enforcing it. According to the Fifth Circuit, however, state officials do not enforce civil damages laws – hence, there was no official who could be sued and prevented from enforcing Louisiana's stealth abortion law. In essence, the court said that without someone to sue, there is no challenge to the law.

In its zeal to promote this version of states' rights, the Fifth Circuit relied on an obscure 19th century case, Fitts v. McGhee, and ignored more recent precedent that clearly would have permitted the plaintiffs to challenge the stealth abortion law. The law is so draconian, imposing potentially unlimited damages for the performance of an abortion no matter what the circumstances, that it could force all providers to simply stop performing abortions before the law is ever invoked against them.

If that happened, women in Louisiana would lose their right to choose abortion because of a state law that had never been and would never be challenged. Under those circumstances, modern cases suggest that the plaintiffs should have been able to test the law's constitutionality at least one time in federal court. But the Fifth Circuit, stacked with appointees by Presidents Ronald Reagan and George H.W. Bush, ignored the modern precedent and dismissed the challenge.

The abortion providers who filed this challenge have taken their case to state court, where the statute has been temporarily suspended pending the outcome of the state hearing. If the law is ultimately allowed to stand, Louisiana's abortion providers have said they would shut their doors because they cannot operate under the constant threat of multi-million dollar damage awards. In theory, of course, abortion providers could continue performing abortions and, when sued in state court, defend themselves on the ground that statute is unconstitutional. The provider could reasonably expect to prevail; but in a state like Louisiana, with its sorry history of hostility to women's reproductive rights, victory would not be certain and defending against such suits would be extremely costly—especially if filing them becomes a regular tactic of our opponents.

The implications of this case are deeply troubling, not only for women's rights but also for an array of other fundamental rights that we have come to take for granted. If this law can't be challenged in federal court, consider other stealth laws—also clearly unconstitutional—that also couldn't be reviewed:

• A "stealth miscegenation law" providing unlimited civil damages against any priest, rabbi or minister performing an interracial marriage, that could be awarded to family members or even the spouses if they later regret the marriage.

• A "stealth restrictive covenant law" allowing any white person to sue any other white person, for unlimited civil damages, for selling a home in the white plaintiff's neighborhood to a person of color.

• A "stealth pride march law" providing unlimited civil damages against the organizers of a lesbian and gay pride parade, in favor of anyone offended by its theme.