Lift Louisiana and Laura Fine, on behalf of herself and her clients v. State of Louisiana

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 CA 1453

LIFT LOUISIANA AND LAURA FINE,
ON BEHALF OF HERSELF AND HER CLIENTS

VERSUS

STATE OF LOUISIANA

JUN 0 3 2022`
Judgment Rendered:

On Appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
Trial Court No. 710153

The Honorable Timothy E. Kelley, Judge Presiding

Jeff Landry, Attorney General Attorneys for Defendant -Appellee,
Joseph Scott St. John State of Louisiana
Josiah M. Kollmeyer
New Orleans, Louisiana
and

Angelique Duhon Freel
Carey Tom Jones
David Jeddie Smith
Baton Rouge, Louisiana

Ellie T. Schilling Attorneys for Plaintiffs -Appellants,
Benjamin O. Flaxenburg Lift Louisiana and Laura Fine,
New Orleans, Louisiana on Behalf of Herself and Her Clients
and

Kylee Sunderlin, Pro Hac Vice
Oakland, California

BEFORE: McDONALD, LANIER, AND WOLFE, JJ.

WOLFE, I

This action seeks declaratory and injunctive relief concerning a jurisdictional

amendment to the Louisiana statute that regulates the circumstances under which a

minor can obtain an abortion in Louisiana. Lift Louisiana (" Lift") and Laura Fine

Fine"), on behalf of herself and her clients, appeal from a judgment granting the

State of Louisiana' s peremptory exception raising the objection of no right of action

for lack of standing, and dismissing plaintiffs' petition with prejudice. For the

reasons that follow, we affirm.

BACKGROUND

Since 1978 in Louisiana, unemancipated minors under the age of eighteen

must obtain the consent of at least one parent or legal guardian before a physician

has the legal authority to perform an abortion. See La. R.S. 40: 1061. 14( A)( 1)( a)

formerly cited as La. R.S. 40: 1299. 35. 5( A)). However, a physician may perform

the abortion without the consent of a parent or legal guardian if the minor exercises

her right pursuant to a judicial bypass procedure outlined in La. R.S. 40: 1061. 14( B).

Section 1061. 14( B)( 1) was amended by 2021 La. Act 482, § 1, which became

effective on August 1, 2021. The 2021 amendment changed the jurisdiction for

judicial bypass applications from a choice between " the court having juvenile

jurisdiction in the parish where the abortion is to be performed or the parish in which

the minor is domiciled" to only " the court having juvenile jurisdiction in the parish

in which the minor is domiciled." See 2021 La. Act 482, § 1. 1

On July 29, 2021, a few days before Act 482 became effective, the non-profit

organization Lift, and attorney Fine, on behalf of herself and her clients, filed suit

Under Act 482, jurisdiction is also extended to a court having juvenile jurisdiction in a contiguous
parish if the minor' s parent or guardian is a presiding judge of the juvenile court in the parish in
which the minor is domiciled, or the parish in which the minor is domiciled has a population of
less than 10, 000 persons. Act 482 also amends and reenacts La. R. S. 40: 1061. 21 to provide for

the reporting of information in connection with all abortions performed in Louisiana, including the
collection of information concerning all minors who undergo abortions in Louisiana.

2

against the State. In their petition, Lift and Fine sought injunctive and declaratory

relief, challenging the constitutionality of Act 482' s jurisdictional change in that it

effectively restricts minors' rights to have meaningful access to courts. Lift' s stated

mission is to educate, advocate, and litigate for policy changes to improve the health

and wellbeing of Louisiana women, their families, and their communities. As part

of that mission, Lift facilitates a program that pairs lawyers with minors who are

seeking pro Bono representation to assist them with the judicial bypass process when

seeking an abortion. Fine is an attorney who has represented minors on a pro Bono

basis when they sought a lawyer' s assistance with the judicial bypass process in lieu

of parental consent for an abortion. Fine works with Lift to coordinate the Louisiana

Judicial Bypass Project by representing minors and supervising representation of

minors by volunteer attorneys. Lift and Fine allege that their objectives in assisting

minors in need of representation in judicial bypass cases will be adversely affected

by the jurisdictional change in Act 482, in that serving the needs of minors will be

far more time consuming, costly, and difficult.

Lift and Fine requested that the trial court issue a temporary restraining order,

which was denied, and for the trial court to set a hearing on the preliminary

injunction. In response, the State filed exceptions raising the objections of a lack of

subject matter jurisdiction, no right of action due to a lack of standing, and no cause

of action for injunctive relief because the constitutionality of a statute cannot be

determined in a summary proceeding. The trial court set a hearing on August 5,

2021, regarding the preliminary injunction and the exceptions. The trial court

specifically limited the hearing to those issues pertaining solely to Lift and Fine' s

interest in obtaining injunctive relief without addressing the constitutionality of Act

482. The parties introduced affidavits and a voluminous amount of documentary

evidence pertaining to abortions for the trial court' s consideration. On August 20,

2021, the trial court rendered judgment against Lift and Fine, concluding that they

3

lacked standing to bring the action, granting the State' s exception of no right of

action, and dismissing Lift and Fine' s petition.

Lift and Fine appeal, arguing that the trial court erred in failing to grant their

request for a preliminary injunction and in granting the State' s exception of no right

of action based on a lack of standing. Lift asserts that it has direct organizational

standing to sue on its own behalf, and Fine asserts that she has standing to sue

because she represents minors in the judicial bypass process. Lift and Fine also

maintain that the trial court should have given them an opportunity to amend their

petition rather than dismissing their entire suit, including their request for a

declaratory judgment.

PRELIMINARY INJUNCTION

A preliminary injunction serves the purpose of preventing irreparable harm

by preserving the status quo between the parties pending a determination on the

merits of the controversy. Barber v. Louisiana Workforce Com' n, 2015- 1598

La. App. 1st Cir. 6/ 2/ 16)( unpublished), 2016 WL 3150176, * 3. Lift and Fine sought

a preliminary injunction against the State on the basis that the jurisdictional changes

in Act 482 are unconstitutional and they wanted to enjoin the enforcement of the

changes. But by the time the trial court held the hearing on the preliminary

injunction, Act 482 was already effective. Thus, at that point, what Lift and Fine

were actually seeking was a change in the jurisdictional provision in the statute, not

to maintain the status quo. Lift and Fine were arguing that the jurisdictional

provision in La. R.S. 40: 1061. 14( B)( 1) was unconstitutional, which in effect was a

request for a ruling on the merits of their petition for declaratory relief. However, it

is well settled that a court may not declare a statute unconstitutional in the context

of a summary proceeding such as a preliminary injunction. See Barber v.

Louisiana Workforce Commission, 2015- 1700 ( La. 10/ 9/ 15), 176 So. 3d 398 ( per

curiam). See also Kruger v. The Garden District Assoc., 99- 3344 ( La. 3/ 24/ 00),

V.

756 So. 2d 309, 310 ( per curiam). Therefore, the trial court did not err when it did

not grant the preliminary injunction. See Barber, 2016 WL 3150176 at * 3.

NO RIGHT OF ACTION

The trial court granted the State' s exception of no right of action, finding that

Lift and Fine lacked standing to challenge the constitutionality of the statute. Among

the threshold requirements that must be satisfied before reaching a constitutional

issue is the requirement that the party seeking a declaration of unconstitutionality

have standing to raise the challenge. In re Melancon, 2005- 1702 ( La. 7/ 10/ 06), 935

So. 2d 661, 667. A litigant not asserting a substantial existing legal right is without

standing in court. Id. The Louisiana Supreme Court has explained that a party has

standing to argue that a statute violates the constitution only where the statute

seriously affects the party' s own rights. To have standing, a party must complain of

a constitutional defect in the application of the statute to him or herself, not of a

defect in its application to third parties in hypothetical situations. Id.

When facts alleged in the petition provide a remedy to someone, but the

plaintiff who seeks the relief for himself is not the person in whose favor the law

extends the remedy, the plaintiff lacks standing. In re Melancon, 935 So. 2d at 668.

An exception raising the objection of no right of action is appropriate to assert a lack

of standing in a declaratory judgment action. Id. Appellate courts review a trial

court' s ruling granting an exception of no right of action de novo, because the issue

of whether a party has standing or a right of action is a question of law. Barber,

2016 WL 3150176 at * 5. However, when evidence is introduced to support or

controvert an exception of no right of action, factual findings are reviewed under the

manifest error standard of review. Pearce v. Lagarde, 2020- 1224 (La. App. 1 st Cir.

10/ 7/ 21), 330 So. 3d 1160, 1167, writ denied, 2022- 00010 ( La. 2/ 22/ 22), 333 So. 3d

M

5

Except as otherwise provided by law, an action can be brought only by a

person having a real and actual interest that he asserts. La. Code Civ. P. art. 681. In

this case, Lift and Fine both allege that their ability to represent minors in the judicial

bypass process will be adversely affected by the application of the changed

jurisdictional requirements in La. R. S. 40: 1061. 14( B)( 1) to a juvenile jurisdiction in

the parish in which the minor is domiciled. Our de novo review of the extensive

evidence presented at the hearing on the preliminary injunction, wherein the trial

court also took up the State' s exception of no right of action, does not establish that

Lift and Fine have standing to challenge the constitutionality of the amended statute.

Neither Lift nor Fine are minor pregnant women whose rights are actually affected

by the jurisdictional change. Lift and Fine are latching onto the rights of third parties

who are not parties in this lawsuit; i.e., minors currently seeking judicial bypass in

lieu of parental consent for obtaining an abortion.

The record is void of any evidence of an attorney- client relationship between

Fine and any minor directly affected by the jurisdictional change in the statute.

Likewise, while Lift attempted to show that it had organizational standing to

challenge the jurisdictional changes in the statute, Lift did not make any allegation

about specific adverse consequences —present or probable — that would likely occur

when the jurisdictional change became effective. Lift' s arguments are speculative

and pure conjecture regarding curtailed activities or diverted resources in order to

respond to the challenged statute, and simply do not support a finding of

organizational standing to assert their own rights. See NAACP v. City of Kyle,

Tex., 626 F. 3d 233, 238 ( 5th Cir. 2010) ("[ t]he mere fact that an organization

redirects some of its resources to litigation and legal counseling in response to

actions or inactions of another party is insufficient to impart standing upon the

organization."),
citing La. ACORN Fair Housing v. LeBlanc, 211 F. 3d 298, 305

5th Cir. 2000), cert. denied, 532 U.S. 904, 121 S. Ct. 1225, 149 L.Ed.2d 136 ( 2001).

2

Additionally, Lift is not a provider of abortion services that could arguably be

affected by the jurisdictional change that eliminates the parish where abortions will

be performed as a choice for a minor using the judicial bypass procedure. See

Causeway Medical Suite v. Ieyoub, 905 F. Supp. 360, 363 ( E.D.La. 1995) (" it is

clear from the recent decisions of the Supreme Court that providers of abortion

services do have standing to assert the claims relative to the right of their [ minor]

patients to choose to have an abortion.").' Thus, we agree with the trial court that

Lift and Fine lack standing to proceed with their petition for declaratory and

injunctive relief.

OPPORTUNITY TO AMEND PETITION

Lift and Fine maintain that the trial court abused its discretion in not affording

them an opportunity to amend their petition before dismissing their suit with

prejudice. Pursuant to La. Code Civ. P. art. 934, when the grounds of the objection

pleaded by the peremptory exception may be removed by amendment of the petition,

the judgment sustaining the exception shall order such amendment. However, the

right to amend a petition is not absolute. Palowsky v. Cork, 2019- 0148 ( La. App.

1st Cir. 5/ 20/ 20), 304 So. 3d 867, 875. Amendment is not permitted when it would

constitute a vain and useless act. Id. A trial court is not required to allow a plaintiff

the opportunity to speculate on unwarranted facts merely for the purpose of defeating

the exception. The decision to allow amendment of a pleading to cure the grounds

for a peremptory exception is within the discretion of the trial court. Id. Our review

of Lift and Fine' s petition reveals no reason to order an amendment of the petition

in this case. Lift and Fine cannot remove their lack of standing, because they are

attempting to pursue the rights of minor girls seeking a judicial bypass in order to

2 Federal jurisprudence is of assistance to us in determining what constitutes an actual interest
assertable before our courts. See Louisiana Hotel -Motel Ass' n Inc. v. Parish of East Baton
Rouge, 385 So. 2d 1193, 1196 ( La. 1980).

7

obtain an abortion. Lift and Fine cannot cure this defect by amending the petition.

Therefore, we find no abuse of discretion in the trial court' s dismissal of the petition

with prejudice.

CONCLUSION

We affirm the August 20, 2021 judgment of the trial court. We assess all costs

associated with this appeal against plaintiffs -appellants, Lift Louisiana and Laura

Fine.

AFFIRMED.