Editor's note: On June 26, 2006, the U.S. Supreme Court declined to review "Choose Life" license-plate cases from Louisiana and Tennessee.
NEW ORLEANS — A federal appeals court's 8-8 deadlock has cleared the way for Louisiana to begin selling anti-abortion license plates, but a lawyer for opponents said yesterday that they would take the issue to the U.S. Supreme Court.
The 5th U.S. Circuit Court of Appeals split on whether to reconsider an earlier ruling that said the state can sell the plates. Nine votes were needed to schedule a rehearing.
The decision in Henderson v. Stalder, dated Dec. 21, puts the 5th Circuit at odds with the Virginia-based 4th Circuit, which ruled in 2004 that South Carolina violated the First Amendment with its "Choose Life" plates because it failed to give abortion rights supporters a similar forum to express their beliefs.
The U.S Supreme Court declined to consider an appeal of the South Carolina case. Bill Rittenberg, an attorney for abortion rights supporters, said he was optimistic now that the Supreme Court would hear an appeal of the 5th Circuit ruling.
"We're definitely going to try to get the Supreme Court to deal with it," Rittenberg said.
Louisiana's Attorney General's Office, which defended the law in court, was pleased with the ruling and did not expect that the high court would overturn it, spokeswoman Jennifer Cluck said. She added that sale of the plates had been on hold during the appeals and would likely resume within the next few weeks.
The Guttmacher Institute, a New York-based nonprofit that researches reproductive-health issues, said 14 states had laws allowing production of "Choose Life" plates as of Dec. 1: Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Mississippi, Montana, Ohio, Oklahoma, South Carolina, South Dakota and Tennessee. Plates in South Carolina and Tennessee are tied up by court injunctions.
Louisiana's Legislature approved plates bearing the slogan "Choose Life" in 1999. Motorists pay an added $25 fee for the plates, with the added revenue dedicated to agencies that help women with unplanned pregnancies and those considering adoption.
Court fights began soon after the law passed. U.S. District Judge Stanwood Duval eventually ruled the state's system for issuing specialty plates — including those with less controversial messages — violates the right to free speech because the Legislature chooses who gets the tags and the money.
But a three-judge 5th Circuit panel overturned the ruling. Sidestepping any constitutional issues, the panel said money paid for the plates constitutes a tax, and the federal Tax Injunction Act relegates such matters to state courts. Judge Edith Jones wrote the opinion on behalf of herself and judges Grady Jolly and Edward Prado.
Those three were joined by five other 5th Circuit judges in denying a rehearing. Eight others dissented, with judges Eugene Davis and Patrick Higginbotham writing opinions. Both disputed the idea the license plate fee was a tax and both said the three-judge panel used the federal tax law to dodge constitutional arguments.
"Nothing in the text of the statute or its history can be read as a license to avoid constitutional issues by such an elastic reading of 'tax,'" Higginbotham wrote.
Joining the dissent were judges Carolyn King, Jacques Wiener, Rhesa Barksdale, Fortunato Benevides, Carl Stewart and James Dennis.
Five judges upholding the three-judge panel were Priscilla Owen, Edith Clement, Harold DeMoss, Emilio Garza and Jerry Smith.