                        UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 91-1953
                            _____________________

                        HELEN B. BARNES, M.D., ET AL.,

                                                        Plaintiffs-Appellees,

                                       versus

             MIKE MOORE, Attorney General of the State of
        Mississippi and his employees, agents and successors,

                                                       Defendants-Appellants.

_________________________________________________________________

         Appeal from the United States District Court for the
                   Southern District of Mississippi

_________________________________________________________________
                    (August 17, 1992)

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

     On August 5, following oral argument earlier that day in this

appeal     from    the     district     court's    preliminarily          enjoining

enforcement of the Mississippi Informed Consent to Abortion Act, we

vacated the injunction, stating that we would file an opinion, to

include further disposition of this appeal.                  Pursuant to Planned

Parenthood of Southeastern Pennsylvania v. Casey, 60 U.S.L.W. 4795

(U.S.    June     29,    1992),   we    hold    that   the     Act   is   facially

constitutional. Accordingly, this case is REMANDED to the district

court for entry of an order of dismissal.

                                         I.
       In   March    1991,    the    Mississippi     Legislature       enacted      the

Informed Consent to Abortion Act, Miss. Code Ann. §§ 41-41-31, et

seq., effective that July.              That May, the plaintiffs (abortion

clinics and physicians who perform abortions or provide abortion

referral     services)       filed     suit,     asserting   that      the    Act    is

unconstitutional on its face, and seeking, inter alia, immediate

injunctive relief.       Although the Act was to become effective on

July   1,    the    Mississippi      Attorney     General    agreed     to    suspend

enforcement until September 1.                 After two days of evidentiary

hearings on plaintiffs' motion for a preliminary injunction, the

district court, on August 30, two days before the Act was to become

effective, granted the injunction, "suspending the effective date

and enforcement" of the Act.             It so ruled because of controlling

Supreme Court precedent.

       While this appeal from that injunction was pending, the

Supreme     Court   rendered     its    decision     in   Casey   on    the    facial

challenge to the Pennsylvania Abortion Control Act, upholding the

informed consent, 24-hour waiting period, parental consent, and

reporting and recordkeeping provisions, but striking down the

spousal notification provision.                The judgment was announced in a

joint opinion by Justices O'Connor, Kennedy, and Souter.                            The

parties to this appeal then filed supplemental briefs on the effect

of Casey.

                                         II.

       The Mississippi Act's informed consent and 24-hour waiting

period provisions are substantially identical to similar provisions


                                        - 2 -
of    the   Pennsylvania     Act   at    issue     in    Casey;   but,   unlike     the

Pennsylvania      Act,     Mississippi's          does     not    contain     spousal

notification     (struck     down       in     Casey),    parental    consent,      and

reporting and recordkeeping provisions. Accordingly, as plaintiffs

essentially conceded at oral argument, they cannot now meet the

well-established      four-part         test     for    obtaining    a   preliminary

injunction, including showing a substantial likelihood of success

on the merits.1      Therefore, we vacated the preliminary injunction.

In any event, plaintiffs have raised a host of challenges to the

Mississippi Act, in an attempt to distinguish it from the Act

upheld in Casey, resulting in our either remanding for further

proceedings or holding against the facial challenge and remanding

for entry of an order of dismissal.

       Because the plaintiffs are challenging the facial validity of

the    Mississippi    Act,    they       must     "establish      that   no   set    of

circumstances exists under which the Act would be valid."                      United

States v. Salerno, 481 U.S. 739, 745 (1987); Casey, 60 U.S.L.W. at




       1


             The four prerequisites [for the extraordinary
             relief of preliminary injunction] are as follows:
             (1) a substantial likelihood that plaintiff will
             prevail on the merits, (2) a substantial threat
             that plaintiff will suffer irreparable injury if
             the injunction is not granted, (3) that the
             threatened injury to plaintiff outweighs the
             threatened harm the injunction may do to defendant,
             and (4) that granting the preliminary injunction
             will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

                                         - 3 -
4834 (Rehnquist, C.J., dissenting in part).2            In light of Casey's

holding substantially identical provisions of the Pennsylvania Act

facially constitutional, the plaintiffs cannot satisfy this "heavy

burden".     Salerno, 481 U.S. at 745.

                                        A.

        Section 41-41-33 of the Mississippi Act requires the physician

to inform the patient of medical risks of abortion "including, when

medically accurate, the risks of infection, hemorrhage, danger to

subsequent pregnancies and infertility"; the probable gestational

age of the fetus; and the "medical risks associated with carrying

her child to term". That section further requires that the patient

be informed, by a physician or physician's agent, "[t]hat medical

assistance benefits may be available for prenatal care, childbirth

and neonatal care"; "[t]hat the father is liable to assist in the

support of her child"; that there are available private and public

services for pregnancy prevention counseling; and that she has a

right to review printed materials provided by the State which

describe the stages of fetal development and list agencies that

offer alternatives to abortion.          Those printed materials are to be

"objective, nonjudgmental, and designed to convey only accurate

information",     §   41-41-35;   and    the   Act   expressly   permits   the



    2
     The Casey joint opinion may have applied a somewhat different
standard in striking down the spousal notification provision of the
Pennsylvania Act, not in issue here. 60 U.S.L.W. at 4812; see also
id. at 4834 & n.2 (Rehnquist, C.J., dissenting in part).
Nevertheless, we do not interpret Casey as having overruled, sub
silentio, longstanding Supreme Court precedent governing challenges
to the facial constitutionality of statutes.

                                   - 4 -
physician or agent to comment, or refrain from comment, on them.

§ 41-41-33(b)(iv).

       The Mississippi Act requires a 24-hour waiting period between

the disclosure of information and performance of an abortion,

except for a "medical emergency".                § 41-41-33.     And, a physician

convicted of "purposefully, knowingly or recklessly" performing an

abortion in violation of the Act is guilty of a misdemeanor,

punishable by fine or imprisonment for up to six months.                   § 41-41-

39.

                                           B.

                                           1.

       As stated, plaintiffs' post-Casey facial challenge primarily

keys       on   specific    differences         between   the    Mississippi     and

Pennsylvania Acts.         For example, the Pennsylvania Act contains an

exception       to   the   penalty   for    violating     the   informed   consent

requirements if the physician "can demonstrate, by a preponderance

of the evidence, that he or she reasonably believed that furnishing

the information would have resulted in a severely adverse effect on

the physical or mental health of the patient".                  18 Pa. Cons. Stat.

Ann. § 3205 (Supp. 1992).             This exception is not found in the

Mississippi Act.           As another example, the Acts differ in some

respects in defining "abortion" and "medical emergency".3                      We do

       3
        The Mississippi Act defines "abortion" as

                the use or prescription of any instrument,
                medicine, drug or any other substance or device to
                terminate the pregnancy of a woman known to be
                pregnant with an intention other than to increase
                the probability of a live birth, to preserve the

                                       - 5 -
not find merit in any of the facial challenges, including to the

definition of a "medical emergency".

     In defining that term, the Mississippi Act uses the phrase

"grave peril of immediate and irreversible loss of major bodily

function",   §   41-41-31(b);   Pennsylvania,    "serious   risk   of


          life or health of the child after live birth or to
          remove a dead fetus.

Miss. Code Ann. § 41-41-31(a) (Supp. 1991).     The Pennsylvania Act
defines it as follows:

          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 except that, for the purposes of this
          chapter, abortion shall not mean the use of an
          intrauterine device or birth control pill to
          inhibit or prevent ovulation, fertilization or the
          implantation of a fertilized ovum within the
          uterus.

18 Pa. Cons. Stat. Ann. § 3203 (1983).

     The Mississippi Act defines "medical emergency" as

          that condition which, on the basis of the
          physician's best clinical judgment, so complicates
          a pregnancy as to necessitate an immediate abortion
          to avert the death of the mother or for which a
          twenty-four-hour delay will create grave peril of
          immediate and irreversible loss of major bodily
          function.

Miss. Code Ann. § 41-41-31(b) (Supp. 1991).     The Pennsylvania Act
defines it as follows:

          That condition which, on the basis of the
          physician's good faith clinical judgment, so
          complicates the medical condition of a pregnant
          woman 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 major bodily function.

18 Pa. Cons. Stat. Ann. § 3203 (Supp. 1992).

                                - 6 -
substantial and irreversible impairment of major bodily function",

§ 3203.    Nevertheless, the Mississippi Act allows physicians to

rely on their "best clinical judgment", § 41-41-31(b); and they are

subject    to    criminal   penalties      only    if    they   "purposefully,

knowingly,      or   recklessly"   violate   the    Act,    §   41-41-39.   We

conclude, as the Third Circuit did in Casey, that the Mississippi

Legislature's intent in drafting that provision was to assure that

compliance with the Act would not pose a significant threat to the

life or health of women seeking abortions.              See Casey, 60 U.S.L.W.

at 4808.

                                      2.

     Plaintiffs contend, however, that this case should be remanded

for further evidentiary proceedings, so that they can attempt to

prove that, on its face, the Mississippi Act poses an "undue

burden" on women seeking abortions in Mississippi, even though the

Supreme Court has held that substantially identical requirements do

not constitute an undue burden on women seeking abortions in

Pennsylvania.4       They correctly note that the authors of the Casey

    4
     The Casey joint opinion defined an "undue burden" as follows:

           A finding of an undue burden is a shorthand for the
           conclusion that a state regulation has the purpose
           or effect of placing a substantial obstacle in the
           path of a woman seeking an abortion of a nonviable
           fetus.   A statute with this purpose is invalid
           because the means chosen by the State to further
           the interest in potential life must be calculated
           to inform the woman's free choice, not hinder it.
           And a statute which, while furthering the interest
           in potential life or some other valid state
           interest, has the effect of placing a substantial
           obstacle in the path of a woman's choice cannot be
           considered a permissible means of serving its

                                    - 7 -
joint opinion made repeated references to the evidence in the

record    and   the    findings      of    fact    by   the     district   court    in

Pennsylvania.      See, e.g., 60 U.S.L.W. at 4809-10.                    However, in

clarifying what they meant by an "undue burden", the authors of the

joint opinion stated that they were "set[ting] forth a standard of

general application".             Id. at 4807.      Applying that standard, we

conclude    that      the    differences         between    the   Mississippi      and

Pennsylvania     Acts       are    not    sufficient       to   render   the    former

unconstitutional on its face.5               Further evidentiary proceedings

would not affect that conclusion.

                                          III.

     We earlier VACATED the preliminary injunction.                            For the

foregoing reasons, we REMAND this case to the district court for

entry of an order of dismissal.




            legitimate ends.

60 U.S.L.W. at 4807.
      5
       In their post-Casey supplemental brief, plaintiffs reduce
their argument to the aphorism "Mississippi ain't Pennsylvania",
stating, "The record in this case proves what all know empirically:
Mississippi ain't Pennsylvania." This speaks volumes about the
invalidity of their challenge to the Mississippi Act on its face;
in fact, no more really need be said.

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