Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999)

The effective dates of these statutes were August 1, 1997 and August 12, 1997, respectively. Therefore, at the time of the filing of this action, neither statute had taken effect.

In full, the partial-birth abortion statute provides: > § 26-23-1. Title. > This chapter may be cited as the "Alabama Partial-Birth Abortion Ban Act of 1997.” > § 26-23-2. Definitions. > As used in this chapter, the following terms shall have the following meanings: > (1) FATHER. The biological father of the human fetus. > (2) MOTHER. The female who is pregnant with a live human fetus which may be subject to a partial-birth abortion under this chapter. > (3) PARTIAL-BIRTH ABORTION. An abortion in which the person performing the abortion partially vaginally delivers a *1330living fetus before killing the fetus and completing the delivery. > (4) PHYSICIAN. A doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state or any other individual legally authorized by the slate to perform abortions. This definition shall also include any individual who is not a physician or is not otherwise legally authorized by the state to perform abortions, but who nevertheless performs a partial-birth abortion. > § 26-23-3. Physician; prohibited action. > Any physician who knowingly performs a partial-birth abortion within this state and thereby kills a human fetus shall be guilty of a Class C felony and upon conviction thereof shall be punished as prescribed b}' law. § 26-23-4. Exception; life of the mother. > Section 26-23-3 shall not apply to a partial-birth abortion that is necessary to save the life of a mother. > § 26-23-5. Relief; father and maternal grandparents. > The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion. The relief shall be limited to monetary compensation for all injuries, psychological and physical, occasioned by a violation under this chapter and monetary punitive compensation as allowed by law. > § 26-23-6. Woman; prosecution. > A woman upon whom a partial-birth abortion is performed may not be prosecuted under this chapter for a conspiracy to violate this chapter or for any other offense which is unlawful under this chapter. Ala.Code. §§ 26-23-1 to -6.

The Attorney General stated that these instructions were given pursuant to Ala.Code § 36-15-14 (1991), which provides in relevant part: “The attorney general ... may at any time he sees proper, either before or after indictment, superintend and direct the prosecution of any criminal case in any of the courts of this state.’’

In its entirety, the post-viability abortion statute provides: > § 26-22-1. Legislative findings and intent. > (a) The public policy of the State of Alabama is to protect life, bom and unborn. This is particularly true concerning unborn life that is capable of living outside the womb. The Legislature of the State of Alabama finds there are abortions being done in Alabama after the time of viability and in violation of its public policy. > (b) The Legislature specifically finds the following: > (1) Medical evidence shows there is a survival rate of babies born between ages 23 weeks to 29 weeks gestational age of 64 percent to 94 percent. > *1331(2) In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), the United States Supreme Court determined that viability may occur as early as 23 to 24 weeks gestational age. Also, the United Slates Supreme Court determined that requiring fetal viability testing at 20 weeks gestational age is constitutional, because there is up to a four week margin of error in determining gestational age. > (3) In the latest year of Alabama statistical reporting, 1994, there were reported to be 182 abortions performed at 20 or more weeks gestational age. There were also 70 abortions performed where no gestational age was stated. > (c) Subject to life and health exceptions to the mother, it is the intent of the Legislature to ban abortions of any unborn child that is capable of living outside the womb. To permit otherwise is a wanton disregard of human life. > § 26-22-2. Definitions. The following words shall have the following meanings: > (1) ABORTION. The use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child. > (2) FERTILIZATION. The fusion of a human spermatozoon with a human ovum. > (3) GESTATIONAL AGE. The age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman. > (4) HOSPITAL. An institution licensed pursuant to the provisions of the law of this state. > (5) LIVE BIRTH. When used with regard to a human being, means that the human being was completely expelled or extracted from his or her mother and after such separation, breathed or showed evidence of any of the following: beating of the heart, pulsation of the umbilical cord, definite movement of voluntary muscles, or any brain-wave activity. > (6) MEDICAL EMERGENCY. The condition, which, on the basis of the physician's good-faith clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. > (7) PREGNANT. The female reproductive condition of having a developing fetus in the body and commences with fertilization. > (8) UNBORN CHILD AND FETUS. An individual organism of the species homo sapiens from fertilization until live birth. > (9) VIABLE AND VIABILITY. The stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support. > § 26-22-3. Prohibition — Exceptions—Regulations — Penalties. > (a) Prohibition. Except as. provided in subsection (b), no person shall intentionally, knowingly, or recklessly perform or induce an abortion when the unborn child is viable. > (b) Exceptions. > (1) It shall not be a violation of subsection (a) if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in the substantial and irreversible impairment of a major bodily function. > (2) It shall not be a violation of subsection (a) if the abortion is performed by a physician and that physician reasonably believes, after making a determination of the viability of the unborn child in compliance with Section 26-22-4 relating to the determination of viability, that the unborn child is not viable. > (c) Abortion regulated. Except in the case of a medical emergency which, in the reasonable medical judgment of the physician performing the abortion, prevents compliance with a particular requirement of this subsection, no abortion which is authorized under subsection (b)(1) shall be performed unless each of the following conditions are met: > (1) The physician performing the abortion certifies in writing that, based upon his or her medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or serious risk of substantial and irreversible impairment of a major bodily function. > (2) The physician's judgment with respect to the necessity for the abortion has been concurred in by one other licensed physician who certifies in writing that, based upon his or her separate personal medical examination of the pregnant worn-*1332an and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. > (3) The abortion is performed in a hospital. > (4) The physician terminates the pregnancy in a manner which provides the best opportunity for the unborn child to survive, unless the physician determines, in his or her good faith medical judgment, that termination of the pregnancy in that manner poses a significantly greater risk either of the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman than would other available methods. > (5) The physician performing the abortion arranges for the attendance, in the same room in which the abortion is to be completed, of a second physician who shall take control of the child immediately after complete extraction from the mother and shall provide immediate medical care for the child, taking all reasonable steps necessary to preserve the child’s life and health. > (d) Penalty. Any person who violates subsection (a) commits a Class A felony. Any person who violates subsection (c) commits a Class C felony. > § 26-22-4. Viability testing. > Except in the case of a medical emergency, prior to performing an abortion upon a woman subsequent to her first 19 weeks of pregnancy, the physician shall determine whether, in his or her good faith medical judgment, the child is viable. When the physician has determined that a child is viable, he or she shall report the basis for his or her determination that the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. When the physician has determined that a child is not viable after the first 19 weeks of pregnancy, he or she shall report the basis for such determination. > § 26-22-5. Construction. > Nothing in this chapter shall be construed to recognize a right to abortion or to make legal an abortion that is otherwise unlawful. Ala.Code §§ 26-22-1 to -5. The statute also contained the following severability provision: > If any provision, word, phrase, or clause of this act, or the application thereof, to any person, entity, or circumstance shall be held invalid, such invalidity shall not affect the remaining provisions, words, phrases, clauses, or application of this act, which can be given effect without the invalid provision, word, phrase, clause, or application, and to this end, the provisions, words, phrases, and clauses of this act are declared to be severable. Act of May 14, 1997, § 6, 1997 Ala. Acts 97-442.

All Appellees perform abortions through the thirteenth week from the woman’s last menstrual period (''LMP”). They allege that these abortions may fall within the proscription of the partial-birth abortion statute, and that they intend to continue to perform such abortions despite the existence of the statute. Ap-pellees Summit Medical and Dr. Knorr perform abortions through twenty-four and a half weeks LMP. Similarly, they allege that these abortions may fall within the proscription of the post-viability abortion statute, and that they intend to continue performing such abortions despite the existence of the statute. As a consequence of these intentions, all Appellees allege that they fear prosecution under either or both statutes.

As part of its ruling, the district court also certified questions to the Supreme Court of Alabama, as allowed under Rule 18 of the Alabama Rules of Appellate Procedure. On February 13, 1998, however, the Alabama Supreme Court declined to answer the certified questions.

The district court’s reasoning is expressed both in its January 26 opinion, see Summit I, 984 F.Supp. 1404, and in its decision to stay proceedings pending resolution of this appeal, see Summit Med. Assocs. v. James, 998 F.Supp. 1339 (M.D.Ala.1998).

At least one circuit judge has elected to consider standing as part of an otherwise proper interlocutory appeal of Eleventh Amendment immunity. In Deters, Judge Batchelder, writing separately, concluded sua sponte that the issue of standing necessarily comes before an appellate court when another issue is properly appealed. See 92 F.3d at 1419 (Batchelder, J., concurring). In reaching this determination, the Judge emphasized that "[c]onstitutional standing is always a threshold inquiry” on appeal because federal courts have “an independent obligation to examine [their] own jurisdiction.” Id. Judge Batchelder elected to reach the merits of standing on appeal, therefore, not as an independently appealable collateral order, but as a part of a federal court's obligation to satisfy itself that a matter is justiciable. However, in light of our case precedent, see Moniz v. City of Ft. Lauderdale, 145 F.3d 1278 (11th Cir.1998), we do not have occasion to consider the merits of this argument.

Qualified immunity, like sovereign immunity, is an immunity from litigation and not just from liability. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, we believe that our reasoning in Moniz applies with equal force to an interlocutory appeal of Eleventh Amendment immunity.

See Letter from Attorney General (August 1, 1997).

We also find Appellants' remaining arguments unpersuasive. First, Appellants contend that, in Morales v. Trans World. Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Supreme Court held that the Ex parte Young doctrine requires some imminence of prosecution. See id. at 381-83, 112 S.Ct. 2031. However, in Morales, the Court cited to Ex parte Young only in the context of determining whether there was sufficiently imminent and irreparable injury to support an award of injunctive relief. See id. at 381, 112 S.Ct. 2031. The Court never discussed the Eleventh Amendment or the Ex parte Young exception because it was not at issue in the case. Accordingly, Morales does not control this case. Second, Appellants argue that "Young does not apply when a defendant state official has neither enforced not threatened to enforce the allegedly unconstitutional state statute.” Children's Healthcare Is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir.1996). In Deters, however, the defendant in question had no authority to enforce the statutes under Ohio law. See id. at 1417. Moreover, the plaintiffs did not even seek to enjoin the statutes' enforcement. Rather, the plaintiffs asked the court to permit broader enforcement of the statutes by striking out certain provisions. See id. at 1416. Given the absence of any connection between the state officer defendant and any enforcement of the statutes, as well as the odd nature of the relief sought, the court could not justify applying Ex parte Young. See id. at 1414. Therefore, we similarly conclude that Deters does not apply to this matter.

Appellants did not raise this argument below. Rather, they merely argued, and the district court rejected, that there was no state action with respect to the private civil enforcement provision. Although we generally decline to address arguments raised for the first time on appeal, it is within our discretion to do so. See Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 989 (11th Cir.1982). Because this issue "involves a pure question of law” and our "refusal to consider it would result in a miscarriage of justice,” we will reach the merits of whether Appellees may challenge the private civil enforcement provision of the partial-birth abortion statute under the doctrine of Ex parte Young. Id. (citing Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir.1976)).