                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        ______________________

                              No. 91-3677
                        ______________________



SOJOURNER T, on Behalf of Herself and All
Others Similarly Situated, ET AL.,

                                                 Plaintiffs-Appellees,

                                versus

EDWIN W. EDWARDS, As Governor of the State
of Louisiana, ET AL.,

                                                Defendants-Appellants.

*****************************************************************

DR. IFEANYI CHARLES OKPALOBI,

                                                  Plaintiff-Appellee,

                                versus

RICHARD P. IEYOUB, Attorney General of
the State of Louisiana, ET AL.,

                                            Defendants-Appellants.
__________________________________________________________________

         Appeal from the United States District Court for the
                     Eastern District of Louisiana

__________________________________________________________________

                         (September 22, 1992)

Before JOLLY, and EMILIO M. GARZA, Circuit Judges, and SHAW,
District Judge.*

E. GRADY JOLLY, Circuit Judge:



     *
      Chief Judge of the United States District Court of the
Western District of Louisiana, sitting by designation.
     This suit challenges the Louisiana Abortion Statute, which

criminalizes     performing   abortions   except    under   very    limited

circumstances.    In the district court, the plaintiffs argued that

the Statute is preempted by federal law, that the Statute is

unconstitutional under Roe v. Wade, 410 U.S. 113 (1973), that the

Statute is unconstitutional under Griswold v. Connecticut, 381 U.S.

479 (1965), and that the Statute is void for vagueness.            The state

of Louisiana defended the Statute arguing that Roe v. Wade has been

overruled sub silentio by Webster v. Reproductive Health Services,

109 S.Ct. 3040 (1989), and its progeny.      The district court struck

down the Statute, holding that because Roe v. Wade is still good

law, the Statute is unconstitutional.

     The same arguments are presented to us that were made in the

district court.    After this case was argued before us, the Supreme

Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey,

60 U.S.L.W. 4795, Nos. 91-744 & 91-902 (June 29, 1992), reaffirmed

the essential holding of Roe v. Wade.              Because the Louisiana

statute is clearly unconstitutional under Casey,            we affirm the

district court's order.

                                    I

     Sojourner T., et al., brought this suit in federal district

court challenging the Louisiana Abortion Statute. They argued that

the statute is preempted by the Food, Drug and Cosmetic Act1 and by


     1
      21 U.S.C. § 360K (1988).




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                                    2
FDA regulations approving the use of certain contraceptives.                   They

also argued that the statute violates the Commerce Clause and that

it   is   unconstitutional     under     Roe      v.   Wade   and   Griswold    v.

Connecticut.    They requested declaratory and injunctive relief.

      Dr. Okpalobi, also seeking declaratory and injunctive relief,

challenged   the   Louisiana    statute      on    vagueness    grounds.       The

district court consolidated these two cases.

     Motions for judgment on the pleadings and supporting memoranda

were filed by all parties.      Pursuant to Fed. R. Civ. P. 12(c), the

district court granted the plaintiffs' motion for judgment on the

pleadings on the grounds that under Roe v. Wade, the Louisiana

Abortion Statute is unconstitutional.             The state appeals.

                                   II

      The Louisiana Abortion Statute was passed on June 18, 1991.2

It amends and reenacts LSA-R.S. 14:87.                 The Statute makes it a

crime to "administer[] or prescrib[e] any drug, potion, medicine,

or any other substance to a female" or to "us[e] any instrumental

or external force whatsoever on a female" "with the specific intent

of terminating a pregnancy." The Statute provides exceptions when:

(1) the physician terminates the pregnancy in order to preserve the

life or health of the unborn baby or to remove a dead unborn child;

(2) the physician terminates the pregnancy to save the life of the

mother; (3) pregnancy is the result of rape; and (4) pregnancy is


      2
       1991 La. Acts 26.




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                                        3
the result of incest.        Before an abortion can be performed under

the rape and incest exceptions, certain reporting requirements must

be met.    For example, the victims must report the rape or incest to

law enforcement officials.       Also, abortions performed on rape and

incest victims must be performed within the first thirteen weeks of

pregnancy.

     No criminal liability attaches to a woman seeking or procuring

an abortion.

                                    III

     In urging us to uphold the Statute, the state concedes that

Roe v. Wade has not been expressly overruled.             Instead, the state

argues that Roe has been overruled sub silentio by Webster and its

progeny.

     On the other hand, Sojourner, et al., argue that we should

avoid deciding this case on constitutional grounds.               Instead, we

should affirm the district court on the grounds that the Statute is

preempted by FDA regulations and by the Food, Drug and Cosmetic

Act. They also present alternative arguments: we should affirm the

district court    on   the    grounds     that   the   Statute   violates   the

Commerce     Clause,   on     the   grounds       that    the    Statute    is

unconstitutional under Griswold, or on the grounds that the Statute

is unconstitutional under Roe.       Their argument that the Statute is

preempted by federal law, that the Statute violates the Commerce

Clause, and that the statute is unconstitutional under Griswold is

contingent on their particular reading of the Statute.             They argue




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                                      4
that   the   Statute   criminalizes           the   use    of   contraceptives        in

Louisiana that act after conception.                      They argue that if we

entertain doubts about this construction of the Statute, we should,

before reaching the other issues in this case, certify to the

Louisiana    Supreme   Court      the    question     of    whether     the    Statute

criminalizes the use of certain contraceptives.

       Dr. Okpalobi argues that the Statute is unconstitutionally

vague.     His vagueness argument emphasizes the elusiveness of the

definitions of the rape and incest exceptions. He also argues that

this court should certify to the Louisiana Supreme Court the

question     of   whether   the    Act    violates        the   right     to   privacy

guaranteed by Article 1, Section 5 of the Louisiana Constitution.

                                         IV

       Below, the plaintiffs challenged the facial validity of the

Statute.      Thus, we must determine whether the plaintiffs are

correct that the Statute cannot be construed and applied without

infringing    upon   constitutionally           protected       rights.        Rust   v.

Sullivan, 111 S.Ct. 1759, 1767 (1991).                The district court found

that Roe v. Wade is still good law and that the Louisiana Abortion

Statute    clearly   transgresses        those      constitutional        rights,     as

enunciated in Roe v. Wade, of women who seek an abortion.

       The Supreme Court recently reaffirmed the essential holding of

Roe v. Wade in Casey.       Casey, 60 U.S.L.W. at 4798.               In Casey, the

Court held that a woman has a right to chose to have an abortion

before viability and that legislation restricting abortions before




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                                          5
viability must not place an undue burden on that right.               Id.   "An

undue burden exists, and therefore a provision of law is invalid,

if its purpose or effect is to place a substantial obstacle in the

path of a woman seeking an abortion before the fetus attains

viability."      Id. at 4807.   The Court held that before viability, a

State's interests are not strong enough to support a prohibition of

abortion.     Id. at 4798.      Thus, the Louisiana statute is clearly

unconstitutional under Casey.

                                      V

      Sojourner, et al., urge us to avoid deciding this case on

constitutional grounds and to affirm the district court on the

grounds that the Statute is preempted by FDA regulations and the

Food, Drug and Cosmetic Act, arguing that we must, when possible,

decide a case on statutory rather than constitutional grounds.               We

can, of course, affirm the district court's judgment on any grounds

supported by the record.        Mangaroo v. Nelson, 864 F.2d 1202, 1204

n.2 (5th Cir. 1989).         Furthermore, we acknowledge that it is

usually true that if a case can be decided either on statutory or

constitutional law, we should address the statutory issue first.

Harris v. McRae, 448 U.S. 297, 306-307 (1980).             We do not think,

however, that the facts and the procedural posture of this case

warrant the application of this jurisprudential principle.                  The

plaintiffs brought a facial challenge to the constitutionality of

the   Statute.      The   district   court   entered   a   judgment    on   the

pleadings on the grounds that the Statute was unconstitutional




                                     -6-
                                      6
under Roe v. Wade.     It did not address the preemption issue.           There

was no trial or hearing to develop the record with respect to the

several     crucial   factual    and   legal    issues   that    underlie   the

preemption arguments, including whether certain contraceptives act

after contraception, and if so, whether the Statute criminalizes

the use of these contraceptives. Additionally, we are not applying

a new interpretation of the Constitution to decide this case; we

are only applying the clear holding of Casey.            Therefore, the facts

and posture of this case do not obligate us to reach the statutory

issue first.3

      Similarly, Dr. Okpalobi urges us to avoid deciding the case on

federal constitutional grounds by certifying the question to the

Louisiana Supreme Court whether, because it invades the right of

privacy, the Statute is unconstitutional under the Article 1,

Section 5 of the Louisiana Constitution.               Because Dr. Okpalobi

raises this issue for the first time on appeal, we do not address

it.       Honeycutt v. Long, 861 F.2d 1346, 1352 (5th Cir. 1988).

Planned Parenthood of Louisiana, as amicus curiae, argues that we

should abstain from deciding this case because there is a pending

state      court   challenge    to   the     Statute   under    the   Louisiana




      3
      Since we decide this case on the grounds that the Statute
is unconstitutional under Casey, Sojourner's motion to certify
the question of whether the Louisiana Abortion Statute
criminalizes the use of certain contraceptives is denied.




                                       -7-
                                        7
Constitution.4    This argument was also raised for the first time on

appeal, and we therefore do not address it.                 United States v.

Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 840 n.13 (5th Cir.

1975), cert. denied, 425 U.S. 944 (1976).

                                  VI

     In conclusion, we hold that the Louisiana statute, on its

face,    is plainly unconstitutional under Casey because the statute

imposes an    undue   burden   on   women    seeking   an   abortion   before

viability.5   The order of the district court is therefore

                                                            A F F I R M E D.



EMILIO M. GARZA, Circuit Judge, concurring specially:



     I agree with Judge Jolly that "the Supreme Court, in Planned

Parenthood of Southeastern Pennsylvania v. Casey, . . . reaffirmed

the essential holding of Roe v. Wade"6 and that "the Louisiana

[Abortion] Statute is clearly unconstitutional under Casey."7            See


     4
      Apparently, the state court action was stayed pending the
outcome of this suit.
     5
      Because we decide the case on the grounds that the Statute
is unconstitutional under Casey, we do not reach the appellees'
arguments that the Statute violates the Commerce Clause, that the
Statute is unconstitutional under Griswold, or that the Statute
is unconstitutionally vague.

     6
         410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
     7
         Slip op. at 2.




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                                        8
Planned Parenthood v. Casey, ___ U.S. ___, 112 S. Ct. 2791, 2804,

120 L. Ed. 2d 674 (1992) ("After considering the fundamental

constitutional      question     resolved     by   Roe,     principles     of

institutional integrity, and the rule of stare decisis, we are led

to conclude this: the essential holding of Roe v. Wade [that a

woman has the right to terminate her pregnancy before viability]

should be retained and once again reaffirmed.").             Accordingly, I

concur in Judge Jolly's opinion.

     Casey, nonetheless, causes me concern.          "The issue is whether

[abortion] is a liberty protected by the Constitution of the United

States."    Id. at 2874 (Scalia, J., dissenting).             Two essential

facts seem apparent: " [T]he Constitution says absolutely nothing

about [abortion], and . . . the longstanding traditions of American

Society have permitted [abortion] to be legally proscribed."8             Id.

(footnote omitted) (citation omitted).         Casey "decorate[s] a value

judgment9 and conceal[s] a political choice."             Id. at 2875.     If


     8
        Compare Roe, 410 U.S. at 138-42, 93 S. Ct. at 719-21 (historical
review of abortion laws in America) with Michael H. v. Gerald D., 491 U.S.
110, 121-28, 109 S. Ct. 2333, 2341-44, 105 L. Ed. 2d 91 (1989) (overview of
presumption of legitimacy) and Bowers v. Hardwick, 478 U.S. 193, 191-95, 106
S. Ct. 2841, 2844-46, 92 L. Ed. 2d 140 (1986) (brief history and list of
sodomy laws in America).
     9
        The joint opinion states: "Our obligation is to define the liberty of
all, not to mandate our own moral code. The underlying constitutional issue
is whether the State can resolve these philosophic questions in such a
definitive way that a woman lacks all choice in the matter, except perhaps in
those rare circumstances in which the pregnancy is itself a danger to her own
life or health, or is the result of rape or incest." Casey, 112 S. Ct. at
2806. I do not agree with the joint opinion's articulation of the issue.
First, States legislate morality every day in the form of criminal statutes.
For example, "[a] person commits an offense if he . . . intentionally or
knowingly causes the death of an individual," see Tex. Pen. Code Ann. § 19.02
(West 1992), is the legal formulation of the commandment: "Thou shall not
kill." See Bowers v. Hardwick, 478 U.S. at 196, 106 S. Ct. at 2846 ("The law,
however, is constantly based on notions of morality, and if all laws
representing essentially moral choices are to be invalidated under the Due
Process Clause, the courts [would] be very busy indeed.").
      Second, the underlying constitutional issue is not "whether the State
can resolve these philosophic questions in such a definitive way that a woman
this    assessment   is       correct,   the    Court's   reaffirmance))whether

viewed as a good or bad result))has accelerated the Court "towards

systematically eliminating checks upon its own power; and [at least

with Roe and Casey] it [has] succumb[ed] [to this temptation]".

Id. at 2874.

       Because the decision to permit or proscribe abortion is a

political    choice,      I   would   allow     the   people   of   the   State   of

Louisiana to decide this issue for themselves.10                    Nonetheless, I

acknowledge that Casey controls, and therefore, I concur.




lacks all choice in the matter," but whether States have the constitutional
power to make this ontological choice. For example, States choose for
ontological reasons, to protect the lives of their citizens. In this
instance, "liberty" gives way to protection of human life. See Casey, 112 S.
Ct. at 2859 (Rehnquist, C.J., dissenting) ("To look `at the act which is
assertedly the subject of a liberty interest in isolation from its effect upon
other people [is] like inquiring whether there is a liberty interest in firing
a gun where the case at hand happens to involve its discharge into another
person's body.'" (quoting Michael H. v. Gerald D., 491 U.S. at 124 n.4, 109
S. Ct. at 2342 n.4 (1989))). The ultimate question))if one accepts the joint
opinion's view that viability is critical))is whether States have the
constitutional authority to decide for themselves whether viability makes an
ontological difference.
       10
         See Michael H., 491 U.S. at 122, 109 S. Ct. at 2341 ("Whenever the
Judiciary [realizing that the present construction of the Due Process Clause
represents a major judicial gloss on its terms, as well as on the anticipation
of the Framers, strikes down legislation adopted by a State], it unavoidably
pre-empts for itself another part of the governance of the country without
express constitutional authority." (quoting Moore v. East Cleveland, 431 U.S.
494, 544, 97 S. Ct. 1932, 1958, 52 L. Ed. 2d 531 (1977))).

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