                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2674
                                   ___________

Reproductive Health Services of           *
Planned Parenthood of the St. Louis       *
Region, Inc., et al.,                     *
                                          *
      Plaintiffs - Appellees,             * Appeal from the United States
                                          * District Court for the
      v.                                  * Western District of Missouri.
                                          *
Jeremiah W. Nixon, Attorney General *
of Missouri, in his official capacity,    *
                                          *
      Defendant - Appellant,              *
                                     ___________

                             Submitted: April 14, 2005
                                Filed: November 16, 2005
                                 ___________

Before LOKEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Former section 188.039 of the Missouri Revised Statutes, enacted in 1986,
provided that no physician may perform an abortion unless the woman patient has
signed an “informed consent” form stating that her attending physician advised her
whether she is pregnant, the risks associated with the abortion procedure to be used,
and the alternatives to abortion. The district court enjoined enforcement of this
statute in Reproductive Health Servs. v. Webster, 662 F. Supp. 407, 413-16, 430
(W.D. Mo. 1987).1 In 2003, Missouri enacted a new § 188.039, replacing the former
statute with substantially revised “informed consent” provisions. As relevant to this
appeal, the new § 188.039 provides:

             2. Except in the case of medical emergency, no person shall perform or
      induce an abortion unless at least twenty-four hours prior thereto a treating
      physician has conferred with the patient and discussed with her the indicators
      and contraindicators, and risk factors including any physical, psychological,
      or situational factors for the proposed procedure and the use of medications . . .
      in light of her medical history and medical condition. . . .

             3. The patient shall be evaluated by a treating physician during the
      conference for indicators and contraindicators, risk factors including any
      physical, psychological, or situational factors which would predispose the
      patient to or increase the risk of experiencing one or more adverse physical,
      emotional, or other health reactions to the proposed procedure or drug or drugs
      in either the short or long term as compared with women who do not possess
      such risk factors.

                                  *   *    *    *   *

             5. The director of the department of health and senior services shall
      disseminate a model form that physicians may use as the written statement
      required by this section, but any lack or unavailability of such a model form
      shall not affect the duties of the physician [under] this section.

A physician who “willfully and knowingly” performs or assists “any action made
unlawful by” § 188.039 is subject to license revocation “by the appropriate state


      1
        The State did not appeal the district court’s invalidation of § 188.039, so that
ruling was not considered when the Supreme Court reversed other aspects of the
district court’s decision in Webster v. Reproductive Health Servs., 492 U.S. 490, 504
n.3 (1989). Planned Parenthood advises that the injunction is still in effect. If so, it
would not withstand further review under the Supreme Court’s later decision in
Planned Parenthood v. Casey, 505 U.S. 833, 881-87 (1992).

                                          -2-
licensing board.” Mo. Rev. Stat § 188.065. A person who “knowingly” fails to
perform an act required by § 188.039 is guilty of a class A misdemeanor. Mo. Rev.
Stat. § 188.075.

       The plaintiffs (collectively, “Planned Parenthood”) filed this official capacity
action against Attorney General Jeremiah W. Nixon and two local prosecutors,
claiming that the new statute is unconstitutionally vague on its face. After the district
court granted a temporary restraining order prohibiting enforcement, Planned
Parenthood moved for a preliminary injunction, and both parties moved for summary
judgment. The court abstained under the Pullman doctrine,2 concluding that state
court interpretation of the scienter provisions in §§ 188.065 and 188.075 could
materially affect the federal constitutional questions. That ruling was not appealed.
After this court vacated the over-extended temporary restraining order, the district
court issued a preliminary injunction enjoining “defendants, their employees, agents,
and successors, and all others acting in concert or participating with them . . . from
in any way enforcing the Act.” Attorney General Nixon appeals, arguing that the
court erred in granting the preliminary injunction and that he is immune from suit
under the Eleventh Amendment as construed in Ex parte Young, 209 U.S. 123 (1908),
and its progeny. We modify the preliminary injunction.

                                           I.

       In deciding whether to grant a preliminary injunction, the district court applied
the traditional four-part test reviewed in Dataphase Sys., Inc. v. C L Sys., Inc., 640


      2
       Named after Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). See
generally Harman v. Forssenius, 380 U.S. 528, 534 (1965). When a federal court
abstains under Pullman, the party that commenced the action in federal court may
reserve its right to return to federal court to litigate the federal issues by making an
“England reservation.” See England v. La. State Bd. of Med. Examiners, 375 U.S.
411, 421-22 (1964).

                                          -3-
F.2d 109, 113 (8th Cir. 1981) (en banc) -- the threat of irreparable harm to the
movant; the balance between this harm and the injury an injunction would inflict on
other parties; the movant’s probability of success on the merits; and the public
interest. We review the grant of a preliminary injunction for abuse of discretion.
Bear v. Kautzky, 305 F.3d 802, 803 (8th Cir. 2002).

       Beginning with a contention not grounded in the Dataphase factors, Attorney
General Nixon argues that the district court abused its discretion because Planned
Parenthood asked the court to abstain. Nixon acknowledges, as he must, that the
Supreme Court has recognized that an abstaining federal court may grant a
preliminary injunction while state courts construe the challenged statute. See Babbitt
v. United Farm Workers Nat’l Union, 442 U.S. 289, 312 n.18 (1979); Harrison v.
NAACP, 360 U.S. 167, 178-79 (1959). But Nixon argues that the injunction was
inappropriate in this case because Planned Parenthood now has no incentive to pursue
state court litigation to establish the meaning of the ambiguous scienter provisions.

       Though this argument has some force, it overlooks relevant procedural history
-- it was Nixon who first urged Pullman abstention in his motion to dismiss; Planned
Parenthood only suggested abstention when Nixon relied on the scienter provisions
in his subsequent motion for summary judgment. In these circumstances, we
conclude that the grant of a preliminary injunction was within the district court’s
discretion if Planned Parenthood satisfied the Dataphase factors. Any foot-dragging
by Planned Parenthood in the state courts may be remedied by exercise of the federal
court’s discretion to modify or vacate the preliminary injunction. See Catrone v.
Mass. State Racing Comm’n, 535 F.2d 669, 672 (1st Cir. 1976).

                                         II.

       Turning to the Dataphase factors, to warrant preliminary injunctive relief, a
plaintiff must show the threat of irreparable injury. Adam-Mellang v. Apartment

                                         -4-
Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996). In Planned Parenthood v. Casey, 505
U.S. at 877-87, the Supreme Court upheld a Pennsylvania informed consent
requirement, concluding that a State may constitutionally require physicians, before
performing abortions, to provide truthful and not misleading information mandated
by the State, so long as the requirement does not place an “undue burden” on the
constitutional right of women patients to make the ultimate decision. Although the
informed consent provisions of § 188.039 are more extensive than those at issue in
Casey, Planned Parenthood made no concrete showing of undue burden on the rights
of women patients. Rather, Planned Parenthood argued in the district court (i) that
§ 188.039 is unconstitutionally vague because it commands physicians to discuss
with their patients matters that have no recognized or accepted medical meaning, such
as “indicators,” “contraindicators,” and “situational factors,” and (ii) that the
continuing risk of prosecution or license revocation for failing to comply with this
uncertain mandate provides the requisite threat of irreparable injury.

       The district court agreed, concluding that Planned Parenthood physicians face
the threat of irreparable injury because they “are being forced to choose between
performing abortions without any certainty that they are in compliance with the Act,
thereby risking imprisonment, fines, and professional censure, or ceasing the
performance of abortions.” On appeal, Attorney General Nixon argues that this
alleged injury is remote and speculative because no health care professional can be
penalized unless he or she “knowingly” fails to comply, and because no civil,
criminal, or administrative enforcement of the new statute has occurred or been
threatened. Planned Parenthood responds “that when a case involves an alleged
deprivation of constitutional rights, no further showing of irreparable injury is
necessary.” When a state statute is challenged on its face as unconstitutionally vague,
and no First Amendment interests are imperiled, that assertion is far too broad.

      “A statute can be impermissibly vague . . . . if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it

                                         -5-
prohibits,” but the concern is lessened if the statute contains a scienter requirement.
Hill v. Colorado, 530 U.S. 703, 732 (2000). As the Supreme Court’s discussion in
Hill makes clear, facial attacks on statutes that do not threaten First Amendment
rights are not favored. Therefore, a concrete showing of irreparable injury is needed
to justify preliminary injunctive relief barring enforcement of the challenged statute.
In Planned Parenthood v. Citizens for Comm. Action, 558 F.2d 861, 866-67 (8th Cir.
1977), for example, plaintiff faced immediate financial harm unless the challenged
ordinance was preliminarily enjoined. Here, on the other hand, the alleged injury is
more speculative. While there is force to the contention that physicians will have
difficulty determining precisely what § 188.039 mandates before the scienter
requirement is clarified and the department of health and senior services disseminates
the form prescribed in subsection (5), the core mandate to obtain “informed consent”
is both clear and constitutional, and no enforcement action has been threatened.
Thus, although the district court did not abuse its discretion in concluding that
Planned Parenthood made a showing of threatened irreparable injury, that showing
was minimal indeed.

       To warrant preliminary injunctive relief, a plaintiff must also show the
likelihood of success on the merits. The district court concluded that Planned
Parenthood has shown a substantial likelihood of success on the merits because,
absent state court interpretation of the statute, physicians “cannot be certain they have
evaluated and counseled their patients as required by” the statute’s vague, undefined
terms. This issue is analytically perplexing -- how is the abstaining federal court to
measure plaintiffs’ likelihood of success when it has delayed addressing the merits
until the state courts construe the challenged statute? The federal court must avoid
usurping the state courts’ prerogative under Pullman by granting or denying a
preliminary injunction based upon a construction urged by one of the parties. But the
district court’s resolution of this dilemma -- that a preliminary injunction is always
warranted until the state courts resolve the perceived ambiguity -- is too intrusive on
the State’s interest in enforcing its laws. Rather, we believe the proper balance was

                                          -6-
struck by the First Circuit in Catrone, 535 F.2d at 672, where the court held that
plaintiff’s showing of a substantial likelihood of success on his federal claim, taking
into account the uncertainty created by the issue prompting abstention, supported the
grant of federal preliminary relief where the other equities strongly favored it.

       Here, Planned Parenthood argues that § 188.039 is unconstitutionally vague
because physicians cannot be expected to fathom what conduct is mandated by terms
that have no recognized or accepted medical meaning. Carried to the extreme, this
argument rests on an unsound premise -- that a State’s informed consent statute may
not require licensed physicians to provide information that goes beyond the realm of
their medical judgment or expertise. Absent proof of an undue burden on patients’
rights to abortion, such a regulatory mandate will be constitutional if its passes
rational basis review. On the other hand, Nixon argues that the statute is not vague
because no licensing or criminal penalty may be imposed unless the violation is
“knowing.” The question, however, is what the medical professional must “know”
when he or she is accused of violating the statute by failing to communicate
information that goes beyond the bounds of his or her good faith medical judgment.

       Though “speculation about hypothetical situations . . . will not support a facial
attack on a statute when it is surely valid in the vast majority of its intended
applications,” Hill, 530 U.S. at 733, we conclude that Planned Parenthood has raised
at least a substantial question whether the conduct made punishable by § 188.039 can
be divined by physicians in the vast majority of the patient conferences that are its
intended application. Cf. Women’s Med. Ctr. of N.W. Houston v. Bell, 248 F.3d 411,
422 (5th Cir. 2001). “[W]here the movant has raised a substantial question and the
equities are otherwise strongly in his favor, the showing of success on the merits can
be less.” Dataphase, 640 F.2d at 113. However, here the equities are not strongly in
either party’s favor. Planned Parenthood’s showing of irreparable injury is
speculative and minimal, and the remaining Dataphase factors -- the balance of harms
and the public interest -- are quite evenly balanced between the interest in not

                                          -7-
burdening physicians with vague mandates and the State’s interest in enforcing an
informed consent mandate that meets Casey’s constitutional limitations.

       Because we review the grant of a preliminary injunction for abuse of discretion,
we should uphold the injunction “[i]f the underlying constitutional question is close.”
Ashcroft v. Amer. Civil Liberties Union, 124 S. Ct. 2783, 2790-91 (2004). That is
the situation here, and therefore we conclude that the district court did not abuse its
discretion in issuing a preliminary injunction. But the injunction that it issued -- an
unlimited order enjoining defendants “from in any way enforcing” § 188.039 -- went
beyond what was needed to protect Planned Parenthood’s physicians from the limited
threat of irreparable injury shown. More specifically, the district court abused its
discretion (i) in granting an injunction that encompassed subsection 5 of § 188.039,
thereby preventing the State’s development of the mandated form, and (ii) in failing
to clarify that the State is not enjoined from enforcing the “informed consent”
requirement upheld in Casey. In addition, because the Dataphase balancing will
inevitably change when the state courts have construed the scienter provisions (in a
case which, we are advised, has now been argued before the Supreme Court of
Missouri), the district court erred in not providing that the preliminary injunction will
expire by its own terms ten days after the final state court judgment.

                                          III.

      Finally, Attorney General Nixon argues that the district court erred in refusing
to dismiss him as a separate defendant based on the state’s Eleventh Amendment
immunity. In Ex parte Young, 209 U.S. at 157, the Supreme Court held that the
Eleventh Amendment does not bar a suit against a state official to enjoin enforcement
of an allegedly unconstitutional statute, provided that “such officer [has] some
connection with the enforcement of the act.” Nixon argues that he is not sufficiently
connected with enforcement of § 188.039 because he has no power to initiate



                                          -8-
misdemeanor prosecutions, a task left to local prosecutors, and no power to take
adverse licensing actions, a task left to professional licensing boards.

        Under Missouri law, the Attorney General is authorized to aid prosecutors
when so directed by the Governor, and to sign indictments “when so directed by the
trial court.” Mo. Rev. Stat. § 27.030. At this stage of the proceedings, we agree with
the district court that this statutory authority creates a sufficient connection with the
enforcement of § 188.039 to make the Attorney General a potentially proper party for
injunctive relief, in which case he would be within the scope of the Ex parte Young
exception to Eleventh Amendment immunity. However, as neither the Governor nor
any state trial court has directed the Attorney General to take action to enforce
§ 188.039, Planned Parenthood has shown no threat of irreparable injury by the
Attorney General. Thus, extending the grant of preliminary injunctive relief to this
defendant in his official capacity looks very much like the impermissible grant of
federal court relief against the State of Missouri. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100-03 (1984).

      For these reasons, the district court order dated June 22, 2004, is vacated and
the case is remanded for the entry of a modified preliminary injunction not
inconsistent with this opinion.

BYE, Circuit Judge, dissenting.

       Although I would like to reach the merits of the district court's preliminary
injunction order, as have the other members of this hearing panel, it is clear the merits
cannot be reached. There is no case or controversy between Reproductive Health
Services and the Attorney General of Missouri, the only party who appealed the
district court's order. The two local prosecutors sued by Reproductive Health, the only
proper parties in this action, did not appeal. We therefore lack Article III jurisdiction



                                          -9-
to decide this appeal and are powerless to address the merits. As a consequence, I
respectfully dissent.

       Attorney General Nixon contends he is immune from suit under the Eleventh
Amendment. His position is Reproductive Health cannot sue him for injunctive relief
under Ex parte Young, 209 U.S. 123 (1908), because he has not threatened to enforce
the disputed statute and does not have the ability to initiate enforcement of it. In my
view – and apparently the majority's, see ante at 9 (indicating an injunction against
Nixon "looks very much like" an impermissible injunction against the State of
Missouri) – Nixon is correct. Under the Ex parte Young exception, the state official
named as a party "must have some connection with the enforcement of the act, or else
it is merely making [the official] a party as a representative of the state, and thereby
attempting to make the state a party." 209 U.S. at 157. Moreover, the exception only
applies against officials "who threaten and are about to commence proceedings, either
of a civil or criminal nature, to enforce against parties affected an unconstitutional
act, violating the Federal Constitution." Id. at 156.

       In Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1417 (6th Cir.
1996), a children's rights organization and a parent sued the Ohio Attorney General
and certain local prosecutors. The plaintiffs challenged Ohio statutes which allowed
a parent or guardian to treat a child's illness by spiritual means in accordance with
religious beliefs without violating a duty owed to the child. Id. at 1413-14. The Ohio
Attorney General moved to dismiss on the grounds the claim against her did not fall
within the Ex parte Young exception. The district court denied the motion.

       On appeal the Sixth Circuit reversed, stating "[t]he Attorney General did not
threaten to commence and was not about to commence proceedings. . . . Moreover,
Ohio law delegates the enforcement of the challenged statutes to local prosecutors,
not the Attorney General. General Montgomery has no connection to the
enforcement of the statutes." Id. at 1416-17 (internal citations omitted). The court

                                         -10-
addressed Ex parte Young's requirement the state official have "some connection with
the enforcement of the act," indicating such requirement "does not diminish the
requirement that the official threaten and be about to commence proceedings." Id. at
1416. "General authority to enforce the law of the state is not sufficient to make
government officials the proper parties to litigation challenging the law." Id. (quoting
1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)).

       Similarly, in Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001), providers of
abortion services sued Louisiana's Governor and Attorney General to challenge a
statute making abortion providers liable to patients in tort for any damage caused by
an abortion. The district court enjoined the state from enforcing the law and the
defendants appealed. On appeal, the court addressed whether the suit was barred by
the Eleventh Amendment. The panel concluded the defendants fit within the Ex parte
Young exception and upheld the injunction, but the Fifth Circuit granted rehearing
en banc.

        En banc, the Fifth Circuit noted Ex parte Young required the sued official to
have '"some connection with the enforcement of the act' or to be 'specifically charged
with the duty to enforce the statute' and be threatening to exercise that duty." Id. at
414-15 (quoting Ex parte Young, 209 U.S. at 157, 158). "[T]he Young principle
teaches that it is not merely the general duty to see that the laws of the state are
implemented that substantiates the required 'connection,' but the particular duty to
enforce the statute in question and a demonstrated willingness to exercise that duty."
Id. at 416. After finding no particular duty set forth in the laws of the state
specifically charging the Governor or Attorney General with enforcement of the
challenged statute, or any action on the part of those defendants to enforce the statute,
the en banc court concluded the defendants enjoyed Eleventh Amendment immunity.
Id. at 424.




                                          -11-
      In this case, Attorney General Nixon is immune from suit under the Eleventh
Amendment. Missouri law delegates to local prosecutors the responsibility of
enforcing the statute. While the governor could ask Nixon to "aid a prosecuting
attorney or circuit attorney" in the discharge of his or her duties, Mo. Rev. Stat. §
27.030, or a trial court could direct Nixon to sign indictments in lieu of a local
prosecutor, id., or a local prosecutor could request Nixon's assistance, State v. Naylor,
40 S.W.2d 1079, 1085 (Mo. 1931), none of those events occurred here. Missouri law
does not allow Nixon to initiate state action against the abortion providers. Nixon did
not threaten and was not about to commence proceedings against the abortion
providers, nor did he have the ability to do so.

       Given the posture of this appeal, Nixon's immunity from suit necessarily raises
concerns about our jurisdiction. While Reproductive Health sued two local
prosecutors along with Nixon, only Nixon filed an appeal with our court. "Article III
of the United States Constitution limits the jurisdiction of the federal courts to actual,
ongoing cases and controversies." Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005)
(quoting Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000)). This court is
required to address its Article III jurisdiction before addressing the merits. Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). If Reproductive Health does
not have an actual case or controversy with Nixon, it follows we do not have
jurisdiction to address the merits of this appeal.

       To establish a case or controversy between itself and Attorney General Nixon,
Reproductive Health must show 1) it has suffered, or is about to suffer, an injury in
fact, 2) a causal connection between the injury and the defendant's conduct, and 3)
the real likelihood, as opposed to mere speculation, the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Attorney General Nixon's inability to enforce section 188.039 of the Missouri
Revised Statutes is fatal. See Okpalobi, 244 F.3d at 426 ("The requirements of Lujan
are entirely consistent with the long-standing rule that a plaintiff may not sue a state

                                          -12-
official who is without any power to enforce the complained-of statute."). Because
Nixon is the only party who appealed the district court's order and there is no actual
case or controversy between him and Reproductive Health, we lack jurisdiction to
address the merits of this appeal. Cf. id. at 429 (concluding the district court lacked
Article III jurisdiction where the only parties sued lacked the ability to enforce the
challenged statute).

      For the reasons stated, I would first address the jurisdictional infirmities of this
appeal. Because our jurisdiction is lacking, I would dismiss the appeal without
addressing the merits. Therefore, I respectfully dissent.
                       ______________________________




                                          -13-
