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.
- 2 -

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
 

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 -

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
 

2The 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 -

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
 

3The 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 -

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
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 -

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
 

4The 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 -

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
legitimate ends.

60 U.S.L.W. at 4807. 

 

5In 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.

- 8 -

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.