How Much Protection Do Injunctions Against Enforcement of Allegedly Unconstitutional Statutes Provide?

Abstract

The federal “Partial Birth Abortion Ban Act of 2003” authorizes fines and/or jail terms of up to two years for any doctor who performs a so-called “partial birth abortion” — a procedure Congress tried to define in the Act itself. The Act also authorizes civil damage actions against doctors who engage in the prohibited conduct. In the weeks following the Act’s passage, a number of federal district courts issued temporary restraining orders and preliminary injunctions prohibiting the enforcement of the new law. The Act fails the rule established by Planned Parenthood of Pennsylvania v. Casey, that the government cannot place an “undue burden” on a woman’s right to terminate a nonviable fetus. Given Casey, many commentators believe the Act will be struck down by the federal courts of appeal and/or the Supreme Court.

In this essay, I explore whether a federal court injunction can be relied upon to confer immunity from prosecution by using as an example doctors who may have performed partial birth abortions between the time the injunction was issued and the time the Act is upheld by a reviewing court. I also address whether these doctors would be liable for civil damages.