Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question
In the column below, I analyze a ruling last week by a Mississippi federal district judge granting a preliminary injunction in a case involving a controversial Mississippi law regulating abortion clinics. The case raises important questions about abortion access, and also about the power of federal district court judges.
Some Background on the Mississippi Law and the District Court’s Action
The law in question, Mississippi House Bill 1390, requires that all physicians in the state who work with abortion clinics meet certain requirements. In particular, all Mississippi abortion physicians need be board-certified in obstetrics and gynecology and, in addition, must enjoy admitting and staff privileges at a local hospital.
Currently, the Jackson Women’s Health Organization (“the Clinic”) is the only abortion clinic located in Mississippi, and the two doctors there who offer the majority of the Clinic’s abortions are not authorized to admit patients, nor do they have staff privileges, at any local hospital; in order to comply with the Act, they have since applied for such prerogatives.
The Mississippi law is controversial both politically and legally, largely because if the Clinic’s abortion specialists are not able to obtain local hospital admission and staff privileges, then most women in Mississippi who seek abortions would have to leave the state, often at a significant cost of time and money, to obtain abortion services. If this turns out to be so, then arguably the Mississippi law would impose an “undue”—and thus an unconstitutional—burden on women patients, according to the Supreme Court’s 1992 watershed Planned Parenthood v. Casey ruling.
But an ultimate determination of the Mississippi law’s constitutionality is far down the road. For now, the Clinic filed suit to obtain protection from the federal district court to allow the physicians at the Clinic to continue to provide abortions even as they seek to satisfy the law’s requirements. As the District Court judge observed, “Plaintiffs’  primary contention is that they face the uncertainty of criminal or civil prosecution for operating the Clinic out of compliance with state law.”
The defendant state officials have said that they have no present plans to prosecute the plaintiffs for non-compliance, and have promised not to do so until all the administrative proceedings—during which the physicians are seeking to comply with the law—have run their course. But the defendants have declined to promise that they will not, sometime down the road, choose to prosecute the plaintiffs for operating the Clinic during the period in which Plaintiffs seek, but do not yet enjoy, admitting and staff privileges.
Without resolving the underlying merits of the lawsuit (i.e., the constitutional questions it raises, such as whether Mississippi’s law violates the undue burden standard, either on the law’s face or as applied to the Clinic), the federal district court judge understandably wanted to protect the Clinic physicians from suffering consequences from the actions that they are undertaking now, while they seek to obtain the privileges that would allow them to comply with the law, and while the law’s constitutionality has not been resolved one way or another.
Accordingly, the federal district court issued an order that that required the Plaintiffs “to continue to seek admitting privileges—as they said they would—[but that also] enjoin[ed] Defendants from exposing Plaintiffs to criminal or civil penalties for continued operation.” Held the district court: “The Act will be allowed to take effect, but Plaintiffs will not be subject to the risk of criminal or civil penalties at this time or in the future for operating without the relevant privileges during the administrative process.” (Emphasis added.)
Can the District Court Really Protect the Plaintiffs From Subsequent Prosecution?
The district court’s course of action seems like a reasonable way to proceed until more is known about whether the two physicians at issue will obtain the required privileges, and/or whether the law will be deemed unconstitutional after more inquiry. But what if a higher court—the U.S. Court of Appeals for the Eleventh Circuit, or the U.S. Supreme Court—finds that the law is plainly constitutional, such that the district court made a mistake in blocking its enforcement in any way?
If this were to happen, then the higher federal court would lift the district court’s injunction, going forward. But what about the plaintiffs’ actions that were taken during the time when the injunction was in effect? Are the plaintiffs still protected from prosecution by the district court’s order?
Put another way, if a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge provided it based on a flawed legal premise? After all, if you can’t trust a district court judge’s word about when you are safe, whose word can you trust?
It turns out that the Supreme Court precedent on this question is far from clear, and that at least one liberal lion of the Court has suggested that reliance by a party on immunity that is wrongfully accorded to it by a district court may be foolhardy.
Of course, in light of such reliance, the prosecution may choose never to prosecute, but some intimations from members of the high Court suggest that it would be the prosecution’s (and perhaps ultimately the jury’s) call. These intimations thus suggest that constitutional notions of due process and fairness don’t foreclose prosecution.
A Key High Court Discussion of This Issue in Edgar v. MITE Corp.
Precisely this kind of question arose, albeit not in the abortion setting, thirty years ago 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 thus preempted by federal law.
On February 2, 1979, MITE obtained a temporary injunction from a federal district court ordering the Illinois Secretary of State to refrain from invoking the provisions of the Illinois statute to block MITE’s intended takeover of another company. Accordingly, on February 5, in violation of the provisions of the Illinois statute and in seeming reliance on this injunction, MITE published its takeover offer in The Wall Street Journal.
On February 9, 1979, the district court entered a judgment declaring the Illinois statute unconstitutional; as a result, the court enjoined for the indefinite future the Secretary of State from enforcing the Illinois statute against MITE.
The U.S. Court of Appeals for the Seventh Circuit then affirmed the district court’s ruling, such that the injunction against enforcement going forward 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 issue of the immunity provided (or not provided) by lower-court injunctions only within a larger debate about whether the case was moot. If moot, the case would, of course, have to be dismissed, as there would be no live legal issue.
Justice Stevens wrote separately, stressing that, in his view, the case was not moot because Illinois might still prosecute MITE for conduct that had been undertaken while the preliminary injunction was in effect. (Justice Stevens’s view in this case was surprising, given his “liberal” reputation on the Court during his last two decades there.)
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 that a federal court injunction—even if it is 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 [what turn out to be] 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. First, Justice Stevens says at various points that federal courts lack the power to block the prosecution of a state statute found to be valid. Was his view inspired only by federalism worries (as some of his broader language suggests), or 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 after full-blown trials and other adjudications. 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 the very Catch-22 that they sought to avoid by seeking judicial help in the first place: Give up an activity that they believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court’s ruling on its constitutionality 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 to Immunize Conduct Proscribed by a Valid Criminal Statute?
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 as being good law?
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 (though not to state 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 itself.
A Possible Constitutional Source for Federal Courts’ Power to Immunize
One possible constitutional source for federal courts’ power to immunize 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, upon which you relied, 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.
To cite one example from another setting, in a case decided a few years ago, Bowles v. Russell, a district court judge mistakenly told a habeas corpus petitioner that he had 17 days to file a notice of appeal, when the statute provided for a 14-day window. The petitioner filed the appeal on day 16, inside the time period that had been told to him by the district court but outside the 14-day time period provided for in the statute, and the Supreme Court ruled the appeal invalid, effectively holding that even though the petitioner might have relied on the district court’s mistake, he was not protected in that reliance, and his appeal was lost.
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. If a statute gives fair warning that certain conduct is criminal, then 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 United States v. Lanier, 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.
Is the Power to Immunize Part of a Federal Court’s Inherent Article III Power?
Some others may argue, however, that there is another source, besides the Due Process Clauses, for federal courts’ power to immunize: It is simply Article III of the Constitution, which endows federal courts with the power, in the first place, to resolve “cases that arise under the Constitution.”
Along with this power, this argument would run, comes adequate 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—before they can safely 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.
The issue that the Supreme Court has so far left unresolved—of whether a Supreme or lower federal court injunction can be relied upon to confer immunity from prosecution—ought to be definitively answered, one way or the other, so that litigants know where they stand.
It may well be that, as a practical matter, 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 abortion in Mississippi (the conflict with which this column began.) Accordingly, Congress and/or the federal judiciary should clarify things so that people can know how much—or how little—injunctive relief is really worth.