In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1726

The Hope Clinic, et al.,

Plaintiffs-Appellees,

v.

James E. Ryan, Attorney General of Illinois,
and Richard K. Devine, State’s Attorney of
Cook County, Illinois,

Defendants-Appellants.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 8702--Charles P. Kocoras, Judge.


Nos. 99-2528 & 99-2533

Dennis D. Christensen, et al.,

Plaintiffs-Appellants,

v.

James E. Doyle, Attorney General of Wisconsin,
and Diane M. Nicks, District Attorney for Dane
County, Wisconsin,

Defendants-Appellees.



Appeals from the United States District Court
for the Western District of Wisconsin.
No. 98-C-0305-S--John C. Shabaz, Chief Judge.



On Remand from the Supreme Court of the United States


Decided April 26, 2001


  Before Flaum, Chief Judge, and Posner, Coffey,
Easterbrook, Manion, Kanne, Rovner, Diane P. Wood, Evans, and
Williams, Circuit Judges./*

  Per Curiam. After issuing its decision in
Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct.
2597 (2000), the Supreme Court remanded these
cases to us for reconsideration. See 120 S. Ct.
2738, 2739 (2000). In response both Illinois and
Wisconsin have conceded that their partial-birth-
abortion statutes are unconstitutional under the
approach the Court adopted in Stenberg. We agree
with this assessment of Stenberg’s significance.
Accord, Rhode Island Medical Society v.
Whitehouse, 239 F.3d 104 (1st Cir. 2001); Planned
Parenthood of Central New Jersey v. Farmer, 220
F.3d 127 (3d Cir. 2000); Richmond Medical Center
for Women v. Gilmore, 224 F.3d 337 (4th Cir.
2000); Eubanks v. Stengel, 224 F.3d 576 (6th Cir.
2000).

  The Supreme Court held "that [the Nebraska
statute violates the Federal Constitution] for at
least two independent reasons. First, the law
lacks any exception "’for the preservation of the
. . . health of the mother.’" [Planned Parenthood
of Southeastern Pennsylvania v. Casey, 505 U.S.
833 (1992)] at 879 (joint opinion of O’Connor,
Kennedy, and Souter, JJ.). Second, it ’imposes an
undue burden on a woman’s ability’ to choose a
D&E abortion, thereby unduly burdening the right
to choose abortion itself. Id., at 874." 120 S.
Ct. at 2609. Both of these grounds are equally
applicable to the Illinois and Wisconsin
statutes, the substantive portions of which do
not differ in any material way from the Nebraska
statute at issue in Stenberg. For the reasons
given in Stenberg, therefore, plaintiffs are
entitled to injunctions forbidding the defendants
from enforcing those Illinois and Wisconsin
statutes that criminalize the performance of
partial-birth abortions.

  The defendants in Hope Clinic have attempted to
avert this decision by moving to dismiss their
appeal under Fed. R. App. P. 42(b). But dismissal
is available under this rule only on the parties’
joint motion or, if the motion is solely the
appellant’s, on terms agreed by the parties. The
motion to dismiss No. 98-1726 was neither joined
by the plaintiffs nor accompanied by an agreement
about the allocation of costs--and because this
litigation has proceeded under 42 U.S.C.
sec.1983, so that a prevailing party’s costs
presumptively include attorneys’ fees, see 42
U.S.C. sec.1988(b), costs may be a substantial
bone of contention. Given the lack of agreement
among the parties, it is best to resolve the
appeal on the merits and let the district court
apply sec.1988 on plaintiffs’ request for costs
and fees.

  One aspect of our original decision is not
affected by Stenberg. We held, see 195 F.3d 857,
875-76, that plaintiffs are not entitled to
challenge the state laws to the extent that these
laws authorize private suits for damages. All of
the defendants are public officials who do not
enforce the provisions authorizing private suits.
We concluded, therefore, that "[t]here is no
controversy between the parties to this case that
can be resolved by a declaration concerning the
civil-liability rules." Id. at 875. To put this
point in other language, plaintiffs lack standing
to contest the statutes authorizing private
rights of action, not only because the defendants
cannot cause the plaintiffs injury by enforcing
the private-action statutes, but also because any
potential dispute plaintiffs may have with future
private plaintiffs could not be redressed by an
injunction running only against public
prosecutors. Both causation and redressability
are essential to an Article III controversy.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). An injunction prohibiting these
defendants from enforcing the private-suit rules
would be pointless; an injunction prohibiting the
world from filing private suits would be a
flagrant violation of both Article III and the
due process clause (for putative private
plaintiffs are entitled to be notified and heard
before courts adjudicate their entitlements).
This follows directly from Muskrat v. United
States, 219 U.S. 346 (1911), which held that
Article III does not permit the federal judiciary
to determine the constitutionality of a statute
providing for private litigation, when the
federal government (or its agents) are the only
adverse parties to the suit.

  At the time of our original opinion this issue
was the subject of a conflict among the circuits.
Summit Medical Associates, P.C. v. Pryor, 180
F.3d 1326 (11th Cir. 1999), had held that courts
could not enjoin public officials from enforcing
a statute creating damages remedies for
abortions, when only private litigants could seek
those damages. Okpalobi v. Foster, 190 F.3d 337
(5th Cir. 1999), had reached a contrary
conclusion. We sided with Summit Medical
Associates. The Supreme Court did not mention or
resolve this conflict in Stenberg, which did not
involve private actions for damages. Certiorari
was denied in Summit Medical Associates, see 529
U.S. 1012 (2000), which implies that the Court
does not perceive any conflict between that
decision and Stenberg (and correspondingly
implies that the remand does not reopen that
question in our cases). What is more, since
Stenberg the rift has been closed: the fifth
circuit reheard Okpalobi and held that Article
III does not permit relief against public
officials who do not enforce the statute whose
validity is contested. Okpalobi v. Foster, 2001
U.S. App. Lexis 3782 (5th Cir. Mar. 12, 2001) (en
banc). For this circuit to change sides now would
be to create a new, post-Stenberg conflict, and
without any warrant in the terms of the orders
remanding these cases to us for reconsideration.

  Although neither Illinois nor Wisconsin
mentioned this Article III problem in the
statements filed under Circuit Rule 54--indeed,
although the states’ public officials agreed to
the entry of orders enjoining all challenged
provisions of both statues--litigants may not
waive the application of constitutional limits on
federal courts’ adjudicatory competence. Because
the public officials named as defendants could
not cause the plaintiffs any injury by enforcing
the statutes’ private-action provisions--for
these are official-capacity suits, so the
possibility that the defendants may bring suits
as private citizens is not before us--the
plaintiffs lack standing with respect to these
provisions. That is of little moment after
Stenberg, which knocks out the substantive rules
that either public or private plaintiffs would
seek to enforce. What is more, after Stenberg any
private suit based on these state laws would lack
a legal foundation, because Stenberg invalidated
the definitional clauses on which both states’
private-action laws depend. But application of
the case-or-controversy requirement does not
depend on a court’s assessment of the merits.
Insofar as they seek protection from suits that
may be filed by parents and other relatives of
their patients, therefore, plaintiffs must rely
on the value of Stenberg and this decision as
precedent, rather than on an injunction against
state officers.

  In Hope Clinic the judgment is affirmed to the
extent it enjoins enforcement of 720 ILCS 513/10,
the criminal prohibition of partial-birth
abortions. To the extent the judgment concerns
720 ILCS 513/15, which authorizes private suits,
it is vacated, and the case is remanded with
instructions to dismiss that portion of
plaintiffs’ complaint for want of a case or
controversy between the plaintiffs and the
defendants.

  In Christensen the judgment of the district
court is vacated, and the case is remanded with
instructions to enjoin the defendants from
enforcing Wis. Stat. sec.940.16, Wisconsin’s
criminal prohibition of partial-birth abortions.
The district court must dismiss the plaintiffs’
complaint for want of standing to the extent it
seeks relief against Wis. Stat. sec.895.038, the
civil-liability companion to Wis. Stat.
sec.940.16.

/* Circuit Judge Ripple did not participate in the
consideration or decision of these cases.
