F I L E D

United States Court of Appeals

Tenth Circuit

FEB 17 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTAH WOMEN'S CLINIC, INC.;

EDWARD R. WATSON, M.D.;

MADHURI SHAW, M.D.; LAUREL

SHEPHERD, M.D.; ALIZZA

PORTER; WENDY EDWARDS;

WASATCH WOMEN'S CENTER;

WILLIAM R. ADAMS, M.D.;

DENISE DEFA; SARAH ROE, on

behalf of herself and all other

similarly situated women from Utah

and surrounding states,

Plaintiffs - Appellants,

v.

No. 97-4018

MICHAEL LEAVITT, in his

individual and official capacity as

Governor of the State of Utah; JAN

GRAHAM, in her individual and

official capacity as Attorney General

of the State of Utah,

Defendants - Appellees,
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-------------------------

UNITED STATES OF AMERICA,

PLANNED PARENTHOOD OF THE

ROCKY MOUNTAINS, WOMEN'S

LAW PROJECT, AMERICAN CIVIL

LIBERTIES UNION, NATIONAL

ABORTION AND REPRODUCTIVE

RIGHTS ACTION LEAGUE,

NATIONAL ORGANIZATION FOR

WOMEN, INC., NATIONAL

WOMEN'S LAW CENTER, NOW

LEGAL DEFENSE AND

EDUCATION FUND, PLANNED

PARENTHOOD FEDERATION OF

AMERICA and WOMEN'S LEGAL

DEFENSE FUND,

Amici Curiae. 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 93-CV-407-B)

Shirley M. Hufstedler, Morrison & Foerster, Los Angeles, California (Eve C.

Gartner, Janet Benshoof, Kathryn Kolbert, Simon Heller, and Bonnie Scott Jones,

The Center for Reproductive Law & Policy, New York, New York, and Martin W.

Custen, Marquardt, Hasenyager & Custen, Ogden, Utah, with her on the briefs),

for Plaintiffs-Appellants.

Mark Ward, Office of the Attorney General, Litigation Division, Salt Lake City,

Utah, (Jan Graham, Utah Attorney General, and Brent A. Burnett, Assistant

Attorney General, Litigation Division, Salt Lake City, Utah, on the brief), for

Defendants-Appellees.

Isabelle Katz Pinzler, Acting Assistant Attorney General (David K. Flynn,

Attorney; Lisa W. Edwards, Attorney), Department of Justice, Washington, DC,
1 The Women’s Clinic challenged the version of Title 76 of the Utah Code that was

in effect in 1995. The state legislature amended §§ 76-7-305 and 76-7-305.5 in 1996 and

1997; those revisions are not at issue in this appeal.

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filed an amicus curiae brief for the United States of America.

Donald W. Hoagland and Thomas S. Nichols, Davis, Graham & Stubbs, LLP,

filed an amicus curiae brief for Planned Parenthood of the Rocky Mountains, Inc.

Susan Frietsche and Linda J. Wharton, Women’s Law Project, Philadelphia,

Pennsylvania, filed an amicus curiae brief for Women's Law Project, American

Civil Liberties Union, National Abortion and Reproductive Rights Action League,

National Organization for Women, Inc., National Women's Law Center, Now

Legal Defense and Education Fund, Planned Parenthood Federation of America

and Women's Legal Defense Fund.

Before TACHA, KELLY, and LUCERO, Circuit Judges.

PER CURIAM.

In 1993, following the Supreme Court’s decision in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Utah state

legislature amended its abortion statute to include an informed-consent provision

that closely parallels the Pennsylvania informed-consent law upheld in Casey. 

The Utah law requires a woman to give her “voluntary and informed written

consent” before she can have an abortion and mandates that certain information

be orally communicated to the woman at least twenty-four hours before the

abortion is to be performed. UTAH CODE ANN. § 76-7-305(1) (1995).1 Utah
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Women’s Clinic, together with other groups and individuals, brought suit in the

United States District Court for the District of Utah, challenging the

constitutionality of Utah’s informed-consent provision.

The district court entered judgment for the defendants and dismissed the

plaintiffs’ claims with prejudice. See Utah Women’s Clinic v. Leavitt, 844 F.

Supp. 1482, 1495 (D. Utah 1994), rev’d in part, appeal dismissed in part, 75 F.3d

564 (10th Cir. 1995). In addition, the district court determined sua sponte that the

plaintiffs’ legal claims were frivolous and imposed sanctions on the plaintiffs for

bringing the suit. See id. (“Because of the absence of merit in support of

plaintiffs’ case and the legal frivolousness of plaintiffs’ assertions in this facial

challenge, plaintiffs are ordered to pay defendants’ costs and attorney’s fees.”);

see also 42 U.S.C. § 1988 (giving court discretionary power to award attorney’s

fees in civil rights cases). The plaintiffs filed a motion asking the court to rescind

the sanctions. The district court denied the motion and imposed additional

sanctions on the plaintiffs “because of the additional frivolous arguments” raised

in their motion to rescind. Utah Women’s Clinic v. Leavitt, No. 93-C-407B, slip

op. at 60 (D. Utah June 20, 1994). The court ordered the plaintiffs to pay the

attorney’s fees incurred by the defendants in responding to the motion and in

bringing the state’s motion to set the fee award. See id.

The plaintiffs first appealed the imposition of these sanctions in 1994. At
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that time, we remanded the case for reconsideration in light of our decision in

Jane L. v. Bangerter, 61 F.3d 1505, 1513-17 (10th Cir. 1995) (holding that district

court erred in determining that plaintiffs’ legal theories were frivolous and

reversing award of attorney’s fees). See Utah Women’s Clinic v. Leavitt, 75 F.3d

564, 569 (10th Cir. 1995). On remand, the district court affirmed its earlier

orders of sanctions. See Utah Women’s Clinic v. Leavitt, No. 93-C-407B, slip

op. at 6-7 (D. Utah Jan. 15, 1997). The plaintiffs now appear before us for the

second time to appeal the sanctions imposed by the district court. We exercise

jurisdiction under 28 U.S.C. § 1291.

A prevailing defendant in a civil rights action may recover attorney’s fees

under 42 U.S.C. § 1988 if the suit “was vexatious, frivolous, or brought to harass

or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983). 

A district court’s award of attorney’s fees will be upset on appeal only if it

represents an abuse of discretion. See Jane L., 61 F.3d at 1509. Any legal

analysis underlying the imposition of sanctions, however, is reviewed de novo. 

See Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986).

In light of the Supreme Court’s decision in Planned Parenthood of

Southeastern Pennsylvania v. Casey and our decision in Jane L., we reverse the

district court’s order of February 1, 1994, its judgment of February 3, 1994, its

order of June 20, 1994, its judgment of June 20, 1994, and its order of January 15,
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1997, and vacate all awards of attorney’s fees and costs. See Jane L., 61 F.3d at

1513-1517 (discussing standards for determining whether legal theories are

frivolous for purpose of awarding attorney’s fees); Casey, 505 U.S. at 881-87

(1992) (upholding Pennsylvania’s informed-consent statute, while leaving open

the possibility that a constitutional challenge to an informed-consent provision in

another jurisdiction could be successful on a different factual record). Each of

the parties is ordered to bear its own attorneys’ fees and costs.