Case: 12-30456   Document: 00512362797    Page: 1   Date Filed: 09/04/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                            September 4, 2013
                                No. 12-30456
                                                               Lyle W. Cayce
                                                                    Clerk
K. P., Medical Doctor; D. B., Medical Doctor; HOPE MEDICAL GROUP FOR
WOMEN,

                                         Plaintiffs - Appellees

v.

LORRAINE LEBLANC, in her official capacity as Executive Director of the
Louisiana Patient’s Compensation Fund Oversight Board; CLARK COSSE, in
his official capacity as a member of the Louisiana Patient’s Compensation Fund
Oversight Board; MELANIE FIRMAN, in her official capacity as a member of
the Louisiana Patient’s Compensation Fund Oversight Board; VINCENT
CULOTTA, in his official capacity as a member of the Louisiana Patient’s
Compensation Fund Oversight Board; WILLIAM SCHUMACHER, in his official
capacity as a member of the Louisiana Patient’s Compensation Fund Oversight
Board; JOSEPH DONCHESS, in his official capacity as a member of the
Louisiana Patient’s Compensation Fund Oversight Board; DIONNE VIATOR,
in her official capacity as a member of the Louisiana Patient’s Compensation
Fund Oversight Board; DANIEL LENNIE, in his official capacity as a member
of the Louisiana Patient’s Compensation Fund Oversight Board; MANUEL
DEPASCUAL, in his official capacity as a member of the Louisiana Patient’s
Compensation Fund Oversight Board,

                                         Defendants - Appellants


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


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
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                                         No. 12-30456

                                                I.
       In the early 1970s, a dearth of affordable medical-malpractice insurance
threatened Louisiana’s healthcare system. Some physicians closed their
Louisiana offices, and others practiced without insurance. Louisiana responded
with its Medical Malpractice Act of 1975, creating the Louisiana Patient’s
Compensation Fund.
       The Fund served two objectives: fostering a stable market for affordable
insurance and ensuring that victims of malpractice could recover for their
injuries, albeit with recovery capped at $500,000, plus interest and costs.1 In
1984, Louisiana increased compensation available to the severely injured,
authorizing payment of their medical expenses as those expenses were incurred.2
       The Malpractice Act provides three principal benefits to participating
healthcare providers. First, a provider is liable only for the first $100,000 of a
patient’s injuries.3 Second, providers may self-insure through the Fund; they
need not obtain private malpractice insurance to participate. Third, providers
are entitled to the opinion of a panel of medical experts, which must prepare a
report assessing whether the provider violated the applicable standard of care.4
That report is admissible in civil proceedings.5




       1
           LA. REV. STAT. § 40:1299.42(B)(1).
       2
           

§ 40:1299.43(A)(3); id.§ 40:1299.43(D).
       3
       

interest . . . and costs specifically provided for by this
Paragraph”); see also id.§ 40:1299.41(D).
       4
        

arbitration); see also 

see 

suit when panel fails to meet certain timing
requirements); 

party may petition a court for an order
extending the twelve month period in [§ 40:1299.47(B)(1)(b)].”).
       5
        Id.§ 40:1299.47(H). But see 

of expedited review panel
is inadmissible).

                                                2
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                                          No. 12-30456

      All healthcare providers are eligible to participate in the Fund.6 To
participate, a provider must satisfy two requirements. First, pay an annual
surcharge, geared to the risks associated with their area of practice and the
claims history in that area.7 Second, demonstrate financial responsibility to the
Patients’ Compensation Fund Oversight Board8 by either depositing $125,000
of cash or its equivalent with the Board or by acquiring $100,000 of qualifying
malpractice insurance.9
      The Board has several responsibilities.10 It is “responsible, and [has] full
authority under law, for the management, administration, operation and defense
of the [F]und.”11 Only the Board may make a claim against the Fund.12 The
Board also confirms whether a healthcare provider is qualified to participate in
the Fund, and thus entitled to a medical-panel review before he may be sued.13
      In 1997, Louisiana passed Act 825—the legislation at issue here.14 The Act
provides that “[a]ny person who performs an abortion is liable to the mother of
the unborn child for any damage occasioned or precipitated by the abortion.”15
It defines “damage” to include “injuries suffered or damages occasioned by the


      6
         For purposes of the Fund, Louisiana defines “health care provider[s]” as entities
“licensed or certified by this state to provide health care” and related services. 

also 

§ 40:1299.44(A)(2).
      8
          

           See, e.g., 

§ 40:1299.44(D)(2)(b).
      11
           

           See 

§ 40:1299.44(A)(5)(b); 

           LA. REV. STAT. § 9:2800.12.
      15
           

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unborn child.”16 And it makes explicit that a consent form “does not negate this
cause of action, but rather reduces the recovery of damages to the extent that the
. . . form informed the mother of the risk of the type of injuries or loss for which
she is seeking to recover.”17 Finally, the Act declares that “[t]he laws governing
medical malpractice or limitations of liability thereof provided in [the
Malpractice Act] are not applicable to this Section.”18            Act 825 was scheduled to
take effect on August 15, 1997.19 Several healthcare providers sought to enjoin
its operation.20 On August 14, a district court granted a temporary restraining
order, later permanently enjoining the Act from taking effect.21
       Louisiana appealed. A panel of this Court affirmed, holding that the Act
was unduly burdensome of “a woman’s right to have a pre-viability abortion” and
unconstitutionally vague.22 On rehearing en banc, this Court reversed, vacated,
and remanded.23 Seven of fourteen judges concluded that the suit, against the
Governor and Attorney General of Louisiana, was barred by the Eleventh
Amendment.24 A majority of the Court concluded that there was no case or
controversy; enjoining the Governor or Attorney General would not redress the
harm caused by those actions.25

       16
            

         Okpalobi v. Foster, 

, 341 (5th Cir. 1999), rev’d en banc, 

(5th
Cir. 2001).
       20
            

       22
            

            Okpalobi v. Foster, 

, 409 (5th Cir. 2001) (en banc).
       24
            

       25
            See 

also 

J., concurring).

                                                 4
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       The plaintiffs in this case are three healthcare providers. Hope Medical
Group for Women is a medical clinic licensed by the Louisiana Department of
Health and Hospitals to perform abortions. D.B. is the medical director of Hope
Medical and has performed abortions there since 1981. K.P. performed abortions
at Hope Medical from 2005 to 2007.26 We refer to them collectively as “the
Providers.”
       In July 2006, K.P. performed a first-trimester surgical abortion on
Brittany Prudhome at Hope Medical. In June 2007, Prudhome’s attorney
requested the formation of a medical review panel “regarding a medical
negligence claim” against K.P., D.B., and Hope Medical. The Board replied on
July 5, 2007 that D.B. was a provider “qualified for acts of medical malpractice,”
that Hope Medical was not qualified, and that K.P. was “not qualified as it
pertains to this complaint.”
       On July 23, 2007, Prudhome sued K.P. and Hope Medical in state court.
In her complaint, she averred that she requested a medical review panel, but
was informed that the defendants were “not qualified.”27 Two days later, on July
25, 2007, the Board advised Prudhome’s attorney that the Board’s “letter dated
July 5, 2007 . . . was incorrect” and that it now believed “that the allegations
contained in the complaint are not within the scope of medical malpractice as
defined in the Medical Malpractice Act.” Although the revised letter implies that
D.B. was not entitled to a pre-suit review panel, the record does not establish
whether Prudhome amended her complaint to name D.B. as a defendant.
       K.P. asked the Board to reconsider its decision. The Board replied by letter
that the Fund did not cover Prudhome’s suit because, under subsection (C)(2) of
Act 825, the Malpractice Act “is not applicable to allegations involving an



       26
            K.P. stopped working at Hope Medical in 2007.
       27
          A patient generally may not bring a malpractice claim against a qualified provider
until she has presented her complaint to a panel. See LA. REV. STAT. § 40:1299.47(B)(1)(a)(i).

                                              5
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abortion,” and K.P. was not entitled to a review panel because she paid the
surcharge applicable to gynecology, rather than the higher surcharge applicable
to obstetrics, and did not indicate that she was performing a certain surgical
procedure.
      K.P. brought a § 1983 action in federal court, suing Lorraine LeBlanc in
her official capacity as Executive Director of the Board.28 She later added D.B.
and Hope Medical as plaintiffs and joined other members of the Board as
defendants. (We refer to the defendants collectively as “the Board Parties.”) In
the amended complaint, K.P. and D.B. both alleged that at the time of
Prudhome’s procedure they had provided proof of financial responsibility to the
Fund, paid the annual surcharges asked of them, and been certified by the Board
as enrolled in the Fund.
      Seeking declaratory and injunctive relief, the Providers challenged the
constitutionality of Act 825 facially, as applied to physicians enrolled in the
Fund “who face or will face medical malpractice claims related to abortion,” and
as applied to K.P. and D.B. with respect to Prudhome’s claim. They advanced
three theories of unconstitutionality. First, that Act 825 is vague because it
imposes strict liability on abortion providers, failing to provide notice of what
conduct will give rise to liability and what conduct falls outside the Malpractice
Act.29 Second, that the statute lacks a rational basis because it “subjects abortion
providers, but no other physicians, to strict civil liability for their performance
of legal medical procedures and it excludes abortion providers, but no other
physicians, from the protections of the [Malpractice Act].” And third, that the
financial costs attending the statute will “reduc[e] or eliminat[e] the availability
of professional abortion services in Louisiana, thereby imposing an undue
burden on plaintiffs’ patients.”


      28
           See 42 U.S.C. § 1983.
      29
           See infra § VI and n.81.

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        In March 2008, the Board agreed to convene a medical review panel for
Prudhome’s claims against K.P. and D.B. In a letter to Prudhome’s attorney, the
Board’s Medical Malpractice Compliance Director indicated that “this agency
has revised our records to reflect [that] . . . [K.P. and D.B.] are being reported as
qualified for acts of medical malpractice under the provisions of” the Medical
Malpractice Act for Prudhome’s claims. The Fund and Board expressly
“reserve[d] the right to deny [Fund] coverage for those allegations determined
to be outside of the scope of malpractice as defined in the Medical Malpractice
Act.”
        The letter also advised that Hope Medical was not covered by the Fund,
a conclusion Hope does not contest. Three months later, Hope Medical engaged
an insurance agent to acquire coverage for itself and one of its new physicians.
That agent asked the Board whether Hope Medical could self-insure through the
Fund. LeBlanc responded that the statute “specifically excludes elective
abortions from coverage under the med mal act.” Susan Gremillion,
Administrative Manager of the Fund, likewise informed the agent that “[i]t is my
understanding that the Malpractice Act does not cover abortions.” Hope Medical
later obtained private insurance, but its policy does not cover strict liability.
        The Board Parties moved to dismiss the Providers’ complaint, urging a
want of jurisdiction under the Eleventh Amendment.30 The district court
dismissed the complaint, reasoning that “[t]he statute in this case does not
charge these defendants with the obligation of enforcing anything. . . . [It] is
more of a direction to a private litigant of the cause of action that is provided.”
The Providers appealed.
        A panel of this Court reversed and remanded in K.P. v. LeBlanc (K.P. I),31
reminding that, to invoke the Ex Parte Young exception to Eleventh Amendment


        30
             They moved under FED. R. CIV. P. 12(b)(1) and 12(b)(6).
        31
             See K.P. v. LeBlanc, 

(5th Cir. 2010) [hereinafter K.P. I].

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immunity, a plaintiff “must demonstrate that the [sued] state officer has ‘some
connection’ with the enforcement of the disputed act.”32 It found that connection
existed, explaining that:
      By excluding abortion-related procedures from the coverage of the
      Med–Mal Act, [Act 825] implicitly requires the Board to
      differentiate between claims allowable and not allowable under the
      statute. By saying that only malpractice claims can be paid from the
      Fund, the Med–Mal Act also requires the Board to determine
      whether a claim presented to it has been statutorily excluded by
      [Act 825] from coverage. . . .
            In summary, the Board’s role starts with deciding whether to have
      a medical review panel consider abortion claims and ends with deciding
      whether to pay them. By virtue of these responsibilities, Board members
      are delegated some enforcement authority.33
In other words, the Board enforces the Act “by applying its prohibitions.”34
      Before the panel decision, the Board agreed to convene a panel to review
Prudhome’s claims. Rejecting suggestions of mootness, the panel pointed to
several continuing points of engagement: (1) the Board reserved its right to deny
Fund coverage if it determined that Prudhome’s complaint was not for
malpractice; (2) the Board might decide a report was useless; and (3) the Board
might need to decide “whether an amount greater than the $100,000 that the
medical provider has to pay should be paid by the Fund.”35 The panel concluded
that the commencement of a review panel was, at best, “a voluntary cessation
of one effect of the earlier announced refusal to allow use of the Fund for
abortion claims.”36

      32
         

We expressed no opinion on whether a plaintiff must also
demonstrate a “special relationship” that goes beyond “some connection,” because we
concluded that both standards were satisfied. 

also 

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      Finally, the panel considered sua sponte the Providers’ standing to bring
their suit. It identified the requisite injury resulting from the initial failure to
convene a medical review panel, and being exposed “to unlimited liability for the
performance of abortion procedures,” which “likely affects malpractice insurance
rates.”37 The panel held that the Board “can unilaterally preclude the [Providers]
from claiming the benefits of limited liability and independent medical review,”
and can “refuse to recognize the right to call on the Fund to pay a settlement or
court judgment.”38 Finally, the Board could redress these injuries by convening
a medical review panel and not refusing to pay a claim.39
      On its return to the district court, the case was reassigned to another
district judge. In October 2011, LeBlanc gave a sworn statement in which she
stated that “[t]he medical review panel as to the claims of Brittany Prudhome
was completed on September 20, 2010”—two months before the K.P. I panel
decision. The district court granted the Providers’ motion for summary judgment
and denied the Board Parties’ motion, resolving threshold questions of
jurisdiction and justiciability as resolved on appeal—without mention of the fact
that the medical review panel had been completed. The district court also held
that the Act was void for vagueness, unduly burdensome, and in want of a
rational basis. The court concluded that the Act, if upheld, would “significantly
reduce[] the number of abortion providers in Louisiana.” On March 28, 2012, the
court entered final judgment and permanently enjoined the Board Parties from
relying on the Act. This appeal followed.




      37
           

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                                         No. 12-30456

                                                II.
       The Board Parties argue that the Providers lack standing and their claims,
if not moot, are barred by the Eleventh Amendment and without merit. We
review de novo questions of justiciability and Eleventh Amendment immunity.40
We also review de novo a grant of summary judgment, “using the same
standards as the district court.”41 Those standards require that facts be
construed in the non-movants’ favor, and that summary judgment be granted
“when the pleadings and evidence demonstrate that no genuine issue of material
fact exists and the movant is entitled to judgment as a matter of law.”42
       When considering a district court’s award of a permanent injunction, we
review for abuse of discretion.43 A district court abuses its discretion when it
relies on clearly erroneous factual findings, relies on erroneous conclusions of
law, or misapplies the law to the facts.44
       We turn first to standing.


                                               III.
       Article III courts have jurisdiction only over cases and controversies,45 a
requirement that a plaintiff fails to meet absent “standing—the ‘personal




       40
         Sossamon v. Lone Star State of Tex., 

, 324 (5th Cir. 2009) (“We review
de novo matters of justiciability, such as mootness, that affect our jurisdiction to hear a case.”),
aff’d sub nom. Sossamon v. Texas, 

(2011); see also K.P. 

(addressing Eleventh Amendment immunity).
       41
            

.
       42
            

omitted).
       43
            Roark & Hardee LP v. City of Austin, 

, 555 (5th Cir. 2008).
       44
            

LLC v. Nike, Inc., 

, 726 (2013).

                                                10
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                                         No. 12-30456

interest that must exist at the commencement of the litigation.’”46 That interest
must be “an injury that is concrete, particularized, and actual or imminent;
fairly traceable to the defendant’s challenged behavior; and likely to be redressed
by a favorable ruling.”47 It must exist with respect to each claim the plaintiff
“seeks to press and for each form of relief that is sought.”48
       The Providers challenge the constitutionality of Act 825. Subsection (A) of
that Act provides a cause of action arising from the performance of an abortion,
the scope of which is set out in subsections (B) and (C)(1). Subsection (C)(2), by
contrast, indicates that the section falls outside the protections of the
Malpractice Act. The Providers’ claim that the Act is unconstitutional is then,
at bottom, two separate claims—a claim that subsection (A)’s cause of action and
subsection (C)(2)’s exclusion from the Fund are unconstitutional. Each claim
must be justiciable.49
       K.P. I held that these Providers have standing “to seek relief from these
[d]efendants.”50 The Providers contend that the earlier panel’s finding of
standing is now law of the case, foreclosing consideration by this panel. “The rule
of the law of the case is a rule of practice, based upon sound policy that when an
issue is once litigated and decided, that should be the end of the matter.”51 With
certain exceptions, the rule provides that “‘an issue of law or fact decided on

       46
         Davis v. FEC, 

, 732 (2008) (quoting Friends of Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 

, 189 (2000)).
       47
            

quotation marks omitted).
       49
          See 

fact that Davis has standing to challenge § 319(b) does not
necessarily mean that he also has standing to challenge the scheme of contribution limitations
that applies when § 319(a) comes into play.”); Planned Parenthood of Cent. Mo. v. Danforth,

, 62 n.2 (1976); see also Lewis v. Casey, 

, 358 n.6 (1996) (“[S]tanding
is not dispensed in gross.”).
       50
            K.P. 

.
       51
            United States v. U. S. Smelting Ref. & Mining Co., 

, 198 (1950).

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appeal may not be reexamined either by the district court on remand or by the
appellate court on a subsequent appeal.’”52 We first consider what the earlier
panel decided.53
       The earlier panel was not asked to consider, and did not decide, whether
the Providers had standing to challenge the cause of action provision. It
reviewed an appeal arising out of a district court decision that dismissed the
Providers’ entire suit on grounds of immunity. The panel’s sua sponte
consideration of standing likewise focused on whether the Providers could
proceed at all against these Board Parties: it reversed the district court’s
dismissal because “[the Providers] have standing to seek relief from these
[d]efendants.”54 This against the backdrop of Okpalobi, in which our en banc
Court held that the challengers of Act 825 had sued the wrong defendants.55
       The focus of the panel’s analysis was the exclusion provision in subsection
(C)(2). The panel carefully described the suit as challenging “the
constitutionality of a state statute denying abortion providers the benefits of
participation in the Fund.”56 And it characterized their request for injunctive
relief as an attempt to prevent the Board “from using [Act 825] to prevent
processing and paying of abortion-related claims”—again focusing on the denial
of benefits effectuated by subsection (C)(2).57 We abide the panel’s conclusion
that the Providers have standing “to seek relief from these [d]efendants” and
embrace the interpretations of Louisiana law on which it relied. But neither the


       52
         Gene & Gene, L.L.C. v. BioPay, L.L.C., 

, 702 (5th Cir. 2010) (emphasis
added) (quoting Fuhrman v. Dretke, 

, 896 (5th Cir. 2006)).
       53
            Cf. Ariz. Christian Sch. Tuition Org. v. Winn, 

, 1448 (2011).
       54
            K.P. 

(emphasis added).
       55
            See 

(Higginbotham, J., concurring).
       56
            K.P. 

.
       57
            

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rule of orderliness nor the law of the case relieves us from the obligation to
examine standing to challenge subsection (A), and we turn to that issue now.
       We may reach the merits of the Providers’ challenge to subsection (A)—the
cause-of-action provision—only if any of the Providers has standing in this suit
against the Board Parties.58 None does. The Board Parties are not charged under
state law with enforcing this “strict liability” provision; only a private plaintiff
may bring suit.59 And enjoining the Board Parties from “enforcing” the cause of
action would not address their role in administering the Fund. It follows that
declaratory and injunctive relief directed to the Board Parties will not redress
the Providers’ injury.60 Accordingly, the Providers lack standing to challenge
subsection (A).61 We turn to their standing to challenge subsection (C)(2).
       The amended complaint, filed in January 2008, included D.B. as a
plaintiff. At that time, the Board refused to convene a review panel to evaluate
Prudhome’s claims against D.B. The Board did so even though no one disputed
that D.B. was, in general, a qualified healthcare provider enrolled in the Fund
when Prudhome contacted the Board. The Board expressly recognized as much
in its response to Prudhome’s inquiry. But the Board later reversed its opinion,
explaining to K.P. that, pursuant to Act 825, the Malpractice Act “is not
applicable to allegations involving an abortion.” In short, the Board refused to
provide D.B. with a review panel because of its interpretation of Act 825. The
denial of this benefit was an injury-in-fact, caused by the Board and redressable


       58
         Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

, 192 (5th Cir. 2012).
       59
         Cf. 

(lead opinion) (“[I]t is the private plaintiff, bringing a
private lawsuit under Act 825, who causes the injury of which the plaintiffs complain.”
(emphasis omitted)); Hope Clinic v. Ryan, 

, 605 (7th Cir. 2001) (en banc) (per
curiam).
       60
            See 

(Higginbotham, J., concurring).
       61
         The Providers may, of course, defensively challenge the constitutionality of subsection
(A) in the Prudhome suit.

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                                          No. 12-30456

by enjoining the Board from “enforcing” the Act.62 There is then standing to
challenge subsection (C)(2) and we turn to mootness.63


                                               IV.
       There must be a case or controversy through all stages of a case;64 “[t]he
requisite personal interest that must exist at” its inception “(standing) must
continue throughout its existence (mootness).”65 Mootness, however, is more than
“the doctrine of standing set in a time frame.”66 “[A] defendant cannot
automatically moot a case simply by ending its [challenged] conduct once sued.”67
Instead, “‘a defendant claiming that its voluntary compliance moots a case bears
the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.’”68
       The Board Parties argue that the Providers’ claims “involving the medical
review panel process” are moot. Specifically, they contend that a medical review
panel has already completed its review, and that the Board has no say over
whether conduct constitutes “malpractice.” The suggested import of these
contentions appears to be that the Board’s involvement in the Prudhome lawsuit
is complete. The Board acknowledges that “PCF coverage of the claims in the


       62
            Cf. Larson v. Valente, 

, 243 n.15 (1982).
       63
         We agree with the vacated Okpalobi panel decision with respect to the Providers’
standing to assert the rights of their patients. See 

.
       64
            

.
       65
          Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

, 189
(2000) (internal quotation marks omitted); see also 

. As with the
initial determination of standing, only one plaintiff with a non-moot claim is necessary. See
Cutter v. Wilkinson, 

, 712 n.1 (2005).
       66
            Friends of the 

(internal quotation marks omitted).
       67
            

(internal quotation marks omitted).
       68
            

Friends of the 

).

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                                         No. 12-30456

Prudhome lawsuit” remains unresolved, but that issue, it contends, “is not ripe
because it is tentative and tenuous.”
       As we have explained, the Board’s refusal to provide D.B. with a review
panel was an injury sufficient to confer standing at the outset of this case.
Because it is not clear that the Board’s refusal to convene a review panel could
not reasonably be expected to recur with respect to D.B., this case is not moot.
       This case is not moot for an additional reason. Our K.P. I opinion
interpreted Louisiana state law as authorizing the Board to “unilaterally
preclude the Plaintiffs from claiming the benefits of limited liability and
independent medical review,” and to “refuse to recognize the right to call on the
Fund to pay a settlement or court judgment.”69 The Board vigorously disputes
that it has this authority. We cannot reach the merits of this claim; our rule of
orderliness compels us to abide the interpretation of state law pronounced in
K.P. I.70 Accordingly, this case is not moot because the specter of unlimited
liability in the Prudhome suit remains.71 We therefore turn to the question of
Eleventh Amendment immunity.


       69
            K.P. 

.
       70
         See, e.g., United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cnty.,
State of Miss., 

, 379 (5th Cir. 1984) (explaining that our rule of orderliness
supplements normal law of the case principles). It is true, of course, that our K.P. I opinion
addressed this case in a different procedural posture than the present appeal: a motion to
dismiss rather than a motion for summary judgment. But our interpretation of state law had
nothing to do with the case’s posture and cannot be escaped by noting that factual allegations
are treated differently when reviewing a motion to dismiss or a motion for summary judgment.
See Lujan v. Defenders of Wildlife, 

, 561 (1992) (distinguishing standards of
review).
       71
           Even putting aside whether D.B. was ultimately named in the Prudhome suit, there
is no question that K.P. was named. She had standing to challenge the Board’s reliance on Act
825, notwithstanding some dispute about whether she was entitled to the Malpractice Act’s
protections. Cf. 

n.15. The Board contends that we may not rely on this
injury to recognize standing (and avoid a conclusion of mootness) because any threat of
liability fails to give rise to a ripe controversy. We disagree. K.P. filed suit after the Board had
“enforced” Act 825 against her, cf. Roark & Hardee 

, and there is no
question that the prospect of unlimited liability has present effects on a litigant.

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                                           No. 12-30456


                                                V.
       First, a few rote principles: The Eleventh Amendment proscribes federal
court review of “any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State.”72 The proscription also applies
to suits by a citizen against her own state.73 A suit is not “against” a state,
however, when it seeks prospective, injunctive relief from a state actor, in her
official capacity, based on an alleged ongoing violation of the federal
constitution.74 That principle, the Ex Parte Young rule, “is based on the legal
fiction that a sovereign state cannot [authorize an agent to] act
unconstitutionally.”75
       K.P. I notwithstanding, the Board Parties contend that the Providers
cannot demonstrate the “ongoing” violation of federal law that Ex Parte Young
requires. The gist of their argument appears to be that with the panel’s medical
review now complete, any violation of federal law is no longer ongoing. Neither
of the cases on which defendants rely supports that argument.76 Their theory, if
accepted, would work an end-run around the voluntary-cessation exception to




       72
            U.S. CONST. AMEND. XI.
       73
            See Hans v. Louisiana, 

, 10–12 (1890).
       74
            See K.P. 

.
       75
            

Young, 

, 159 (1908)).
       76
          In Green v. Mansour, there was not even a “claimed continuing violation of federal
law.” 

, 73 (1985). The Green plaintiffs conceded that their request for the type of
injunctive relief at issue here was moot. 

in Morales v. Trans World Airlines,
Inc., 

(1992), the Supreme Court acknowledged that “Young establishes that
injunctive relief was available,” 

objected to the scope of the injunction ordered,
evidently based on ordinary principles of equitable remedies, see 

Trans World Airlines involved an injunction based on laws that a State had not thought
applicable and might not think applicable. See 

case, by contrast, involves
a single statute on which the Board has already relied.

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                                         No. 12-30456

mootness where a state actor is involved.77 And in any event, as K.P. I previously
found, the threat of unlimited liability is ongoing because the Board has
expressly relied on Act 825 before.
       The Board Parties also invoke the Pennhurst limitation on Ex Parte
Young.78 “Pennhurst stands for the proposition that the Eleventh Amendment
bars suits . . . where state law imposes an affirmative duty upon the official, and
it is that duty that provides the basis for the injunctive relief sought.”79 The
Providers here seek to enjoin the Board Parties from relying on Act 825 based
on allegations that Act 825 violates the federal constitution. Unlike Pennhurst,
the Providers did not ask that the Board Parties be required to take particular
actions based on state law—they asked that the Board Parties be prevented from
taking particular actions based on federal law.80 Accordingly, the Eleventh
Amendment does not bar the Providers’ challenge to subsection (C)(2).
       We therefore turn, finally, to the merits of that challenge.


                                               VI.
       The parties dispute whether subsection (A) imposes strict liability on
abortion providers. For the sake of argument, we assume that it does.81 But


       77
        Cf. Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 

, 1308–12 (11th Cir. 2011).
       78
            Pennhurst State Sch. & Hosp. v. Halderman, 

(1984).
       79
          Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 

, 966 n.5
(5th Cir. 1993) (emphasis removed); see also 

          Cf. 

(“The Court of Appeals upheld the judgment of the
District Court solely on the basis of Pennsylvania’s MH/MR Act. We hold that these federal
courts lacked jurisdiction to enjoin petitioner state institutions and state officials on the basis
of this state law.”).
       81
           We acknowledge the argument that the statute is little more than a state effort to
serve its interest in the potentiality of life by putting bite in the common law duty of informed
consent. The statute, while making no reference to a standard of care, removes liability for
damages flowing from disclosed risks. Nor, the argument continues, does its language preclude

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                                         No. 12-30456

because we consider only the constitutionality of subsection (C)(2), the Providers
are still not entitled to the relief they seek. We consider in turn each of their
arguments: that subsection (C)(2) denies them equal protection of the laws; that
it places an undue burden on women’s right to choose; and that it is
unconstitutionally vague.


                                                A.
       The Providers contend that Act 825 lacks a rational basis and therefore
violates the Equal Protection Clause of the Fourteenth Amendment.82 Our focus
is on subsection (C)(2). To prevail, the Providers must demonstrate that the
subsection is not “rationally related to [a] legitimate governmental goal;”83 that
the subsection is not rationally related to the promotion of informed consent and
that hostility to abortion procedures is not a legitimate goal. They have not done
so, as subsection (C)(2) is rationally related to the promotion of informed
consent—an unquestionably legitimate end.84
       In 1995, Louisiana amended its Woman’s Right to Know Act to ban
abortions “performed or induced without the voluntary and informed consent”




a judicial reading, as a matter of avoiding constitutional shoals, as being written against the
developed doctrine of informed consent to implicitly accept state law principles of causation
and duty. We need not and do not reach the argument.
       82
            The Providers do not contend that heightened scrutiny is appropriate.
       83
          Stefanoff v. Hays Cnty., Tex., 

, 526 (5th Cir. 1998) (per curiam). Plaintiffs
bear the burden of showing irrationality; the Board need not demonstrate that Act 825 is
rational. See Malagon de Fuentes v. Gonzales, 

, 504 (5th Cir. 2006).
       84
           See, e.g., Planned Parenthood of Cent. Mo. v. Danforth, 

, 66–67 (1976);
Margaret S. v. Edwards, 

, 998 (5th Cir. 1986) (“[T]here is no question about the
state’s strong interest in ensuring that physicians obtain the patient’s informed consent before
performing abortions.”); cf. Gonzales v. Carhart, 

, 157 (2007) (noting government
interest in protecting integrity of medical profession). We need not consider whether hostility
to abortion procedures is a legitimate goal.

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                                        No. 12-30456

of the patient.85 The Act declared abortions not knowing and voluntary, outside
of medical emergencies, unless the woman received several pieces of
information.86 Violations could be punished by both civil and criminal penalties,87
though “[a]ny physician who complie[d] with the provisions of th[e] Section
[could] not be held civilly liable to his patient for failure to obtain informed
consent to the abortion under th[e] Section.”88 The Right to Know Act was in
effect, unamended, when the legislature passed Act 825.
       Against the backdrop of the Right to Know Act, the Providers contend that
Act 825 does not further the goal of informed consent. The Right to Know Act,
they claim, “establishes specific requirements” for informed consent, to which
Act 825 adds nothing particular. But this lack of particularity is not irrational.
The Right to Know Act, at the time Act 825 was passed, threatened both
criminal and civil penalties under certain circumstances. A legislature could
rationally hesitate to augment the list of information that, if omitted, could
trigger these consequences. At the same time, a legislature could seek to incent
physicians to uncover the risks of abortion and disclose those risks—even low-
probability risks—to their patients. Subsection (C)(1) furthers that incentive
regardless of whether subsection (A) imposes strict liability: “The signing of a
consent form by the mother prior to the abortion . . . reduces the recovery of
damages to the extent that the . . . consent form informed the mother of the risk




       85
           See ABORTION—INFORMED CONSENT (WOMAN’S RIGHT TO
KNOW)—TWENTY-FOUR HOUR WAITING PERIOD; MEDICAL EMERGENCIES;
PENALTIES, 1995 La. Sess. Law Serv. Act 648 (H.B. 2246) (West) (addressing LA. Rev. STAT.
§ 40:1299.35.6B (1995)).
       86
            See 

REV. STAT. §§ 40:1299.35.6(F) (1995) (criminal), 40:1299.35.6(G) (1995) (civil);
see also 

(criminal).
       88
         

(“Any and all other rights and remedies are preserved
to the patient.”); see also 

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                                        No. 12-30456

of the type of injuries or loss for which she is seeking to recover.”89 If subsection
(C)(2) did not limit Fund coverage, physicians could trust that their liability was
capped at $100,000, limiting their incentive to learn of and disclose low-
probability, high-severity risks related to the performance of abortions.
       Subsection (C)(2) is broad given the history of the Malpractice Act and the
sweep of the Right to Know Act. But it is still distinct from the Amendment at
issue in Romer v. Evans.90 That provision “identifie[d] persons by a single trait
and then denie[d] them protection across the board”—a singular exclusion of a
class of persons’ basic rights as citizens.91 The Act at issue here denies protection
only for injuries arising from a particular type of procedure. A person who
performs those procedures is not disqualified from otherwise participating in the
Fund, just as a woman who exercises her right to undergo such a procedure is
not disqualified from recovering from the Fund for unrelated malpractice. Thus,
while we must still consider whether subsection (C)(2) imposes an undue burden
on a woman’s right to choose, it is not tainted by irrational animus.


                                               B.
       The Supreme Court has held that every woman has the right “to choose
to have an abortion before viability and to obtain it without undue interference
from the State.”92 A state law unduly burdens that right when it “has the
purpose or effect of placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus.”93 “A statute with this purpose is invalid


       89
            

(1996).
       91
            

            Planned Parenthood of Se. Pa. v. Casey, 

, 846 (1992).
       93
         

opinion); see also Marks v. United States, 

, 193
(1977) (holding that narrowest position in support of the judgment is the Court’s holding).

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                                       No. 12-30456

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.”94 “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
legitimate ends.”95
      We inquire whether subsection (C)(2) “place[s] a substantial obstacle” in
women’s paths. In answering this question, we deploy the distinction between
not providing benefits and restricting choice.96
      By subsection (C)(2), a healthcare provider sued under subsection (A) is
not entitled to the benefits of the Malpractice Act. This exemption may make it
difficult—perhaps prohibitively difficult—for those providers to obtain the
relevant insurance. But while this difficulty may result from subsection (A)’s
cause of action, subsection (C)(2)’s limitation on the Malpractice Act is merely
a “means of unequal subsidization of abortion and other medical services.”97 And
while “government may not place obstacles in the path of a woman’s exercise of
her freedom of choice, it need not remove those” obstacles, like Louisiana’s
dearth of affordable insurance, that are “not of [the government’s] own
creation.”98 Of course, in some sense, Louisiana’s healthcare market is a function
of the laws operative in that state. But that is also true, in some sense, of the
“[i]ndigency” described in Harris v. McRae as an obstacle for which the
government is not responsible.99 Though some have criticized the Maher-McRae

      94
           

.
      95
           

v. McRae, 

(1980); Maher v. Roe, 

(1977).
      97
           

.
      98
           

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                                       No. 12-30456

line of cases as formalistic,100 the cases are the long-standing law of the Supreme
Court and we must apply them.101
       We turn finally to the vagueness question.


                                              C.
       The Providers argue that subsection (A)’s cause of action is
unconstitutionally vague, but, as we explained above, they lack standing to
pursue that claim against these defendants. The Providers do not contend that
subsection (C)(2) is unconstitutionally vague.


                                            ***
       We REVERSE the judgment of the district court striking down subsection
(C)(2) of Act 825. We VACATE its judgment regarding subsection (A) and
dismiss that claim for want of jurisdiction.




       100
         See, e.g., Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413,
1440 (1989).
       101
           We note that excluding subsection (A)’s cause of action from Fund coverage does not
“seek to leverage funding to regulate speech outside the contours of the [Fund] itself.” Agency
for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 

, 2328 (2013); cf. Rust v.
Sullivan, 

, 193 (1991) (“The Government can, without violating the Constitution,
selectively fund a program to encourage certain activities it believes to be in the public
interest, without at the same time funding an alternative program which seeks to deal with
the problem in another way.”).

                                              22