Legal Cases:
Roe v. Wade |
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1. Opinion of U.S. District Court, N.D. Texas, June 17, 1970
2. Briefs to the U.S. Supreme Court
2.1. Brief for Appellant
2.2. Brief for Appellee
2.3. Supplemental Brief for Appellants
4. Opinion of the Supreme Court, January 22, 1973
ISSUE
Abortion
HOW TO USE MILESTONES IN THE LAW
This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Roe v. Wade decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.
As you read this section, you may wish to consider the following issues:
- How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's descriptions?
- How did the courts and the two parties differ in describing the meaning of particular prior cases to the present case?
- How did the holdings (conclusions of law) of the district court differ from those of the Supreme Court?
- On what points in the Supreme Court's majority opinion do the concurring and dissenting justices agree and disagree?
- How would you decide this case?
THIS CASE IN HISTORY
Roe versus Wade may be the most well known and the most controversial decision of the modern Supreme Court. With this decision, the Court recognized a woman's right to obtain an abortion under certain circumstances. Virtually from the moment it was handed down, Roe v. Wade has divided lawyers, politicians, and the public into those who support the decision and those who would like it overturned, either by the Supreme Court itself or by act of the legislature. A judge's or politician's position on the subject of abortion has played a major role in countless appointments and elections. After the decision and for the rest of his life, the opinion brought its author, Justice Harry Blackmun, an unending stream of mail both praising and vilifying him for the decision.
Roe v. Wade
Jane Roe, Plaintiff,
v.
Henry Wade, Defendant,
v.
James Hubert Hallford, M.D.,
Intervenor.
John Doe and Mary Doe, Plaintiffs,
v.
Henry Wade, Defendant.
Civ. A. Nos. 3-3690-B, 3-3691-C.
United States District Court,
N. D. Texas,
Dallas Division.
June 17, 1970.
Action for judgment declaring Texas abortion laws unconstitutional and to enjoin their enforcement. The three-judge District Court held that laws prohibiting abortions except for purpose of saving life of a mother violated right secured by the Ninth Amendment to choose whether to have children and were unconstitutionally overwhelmed and vague, but Court would abstain from issuing injunction against enforcement of the laws.
Order accordingly.
Linda N. Coffee, Dallas, Tex., Sarah Weddington, Austin, Tex., for plaintiffs.
Fred Bruner, Daugherty, Bruner, Lastelick & Anderson, Ray L. Merrill, Jr., Dallas, Tex., for intervenor.
John B. Tolle, Asst. Dist. Atty., Dallas, Tex., Jay Floyd, Asst. Atty. Gen., Austin, Tex., for defendant.
Before Goldberg, Circuit Judge, and Hughes and Taylor, District Judges.
PER CURIAM:
Two similar cases are presently before the Court on motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.The defendant in both cases is Henry Wade, District Attorney of Dallas County, Texas. In once action plaintiffs are John and Mary Doe, and in the other Jane Roe and James Hubert Hallford, M.D., intervenor.
[1] From their respective positions of married couple, single woman, and practicing physician, plaintiffs attack Articles 1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code, hereinafter referred to as the Texas Abortion Laws. Plaintiffs allege that the Texas Abortion Laws deprive married couples and single women of the right to choose whether to have children, a right secured by the Ninth Amendment.
Defendant challenges the standing of each of the plaintiffs to bring this action. However, it appears to the Court that Plaintiff Roe and plaintiff-intervenor Hallford occupy positions vis-a-vis the Texas Abortion Laws sufficient to differentiate them from the general public. Compare Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 1678, 14 L.Ed.2d 510 (1965), with Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Plaintiff Roe filed her portion of the suit as a pregnant woman wishing to exercise the asserted constitutional right to choose whether to bear the child she was carrying. Intervenor Hallford alleged in his portion of the suit that, in the course of daily exercise of his duty as a physician and in order to give his patients access to what he asserts to be their constitutional right to choose whether to have children, he must act so as to render criminal liability for himself under the Texas Abortion Laws a likelihood. Dr. Hallford further alleges that Article 1196 of the Texas Abortion Laws is so vague as to deprive him of warning of what produces criminal liability in that portion of his medical practice and consultations involving abortions.
[2] On the basis of plaintiffs' substantive contentions, it appears that there then exists a "nexus between the status asserted by the litigant[s] and the claim[s] [they present]." Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
[3] Further, we are satisfied that there presently exists a degree of contentiousness between Roe and Hallford and the defendant to establish a "case of actual controversy" as required by Title 28, United States Code, Section 2201.Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).
Each plaintiff seeks a relief, first, a judgment declaring Texas Abortion Laws unconstitutional on their face and second, an injunction against their enforcement. The nature of the relief requested suggests the order in which the issues presented should be passed upon. Accordingly, we see the issues presented as follows: I. Are plaintiffs entitled to a declaratory judgment that the Texas Abortion Laws are unconstitutional on their face?
II. Are plaintiffs entitles to an injunction against the enforcement of these laws?
I.
Defendants have suggested that this Court should abstain from rendering a decision on plaintiffs' request for a declaratory judgment. However, we are guided to an opposite conclusion by the authority of Zwickler v. Koota, 389 U.S. 241, 248-249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967): "The judge-made doctrine of abstention * * * sanctions * * * escape only in narrowly limited 'special circumstances' * * * is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question."
The Court in Zwickler v. Koota subsequently quoted from United States v. Livingston, 179 F.Supp. 9, 12-13 (E.D.S.C.1959): "Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. * * * The decision [Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152], however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit."
[4] Inasmuch as there is no possibility that state question adjudication in the courts of Texas would eliminate the necessity for this Court to pass upon plaintiffs' Ninth Amendment claim or Dr. Hallford's attack on Article 1196 for vagueness, abstention as to their request for declaratory judgment is unwarranted. Compare City of Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 84,78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958), with Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct.788, 25 L.Ed.2d 68 (1970).
[5] On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.
The essence of the interest sought to be protected here is the right of choice over events which, by their character and consequences, bear in a fundamental manner on their privacy of individuals. The manner by which such interests are secured by the Ninth Amendment is illustrated by the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 492, 85, S.Ct. 1678 14 L.Ed.2d 510 (1965):
"[T]he Ninth Amendment shows a belief of the Constitution's authors that fundamentalrights exist that ate not expressly enumerated in the first eight amendments and intent that the list of rights included there not be deemed exhaustive." * * *"The Ninth Amendment simply shows the intent of the Constitution 's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments." (Emphasis added.)Relative sanctuaries for such "fundamental" interests have been established for the family, the marital couple and individual.
Freedom to choose in the matter of abortions has been accorded the status of a "fundamental" right in every case coming to the attention of this Court where the question has been raised. Babitz v.McCann, 312 F.Supp. 725 (E.D. Wis.1970); People v. Belous, 80 Cal. Reptr. 354, 458 P.2d 194 (Cal.1969); State v. Munson, (South Dakota Circuit Court, Pennington County, Aoril 6, 1970). Accord, United States v. Vuitch, 305 F.Supp. 1032 (D.D.C.1969). The California Supreme Court in Belous stated:
"The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex." 80 Cal.Rptr. at 359, 458 P.2d at 199.
The District Court in Vuitch wrote:"There has been * * * an increasing indication in the decisions of the Supreme Court of the United States that as a secular matter a woman's liberty and right of privacy extends to family, marriage and sex matters and may well include the right to remove an unwanted child at least in early stages of pregnancy." 305 F.Supp.at 1035.
Writing about Griswold v.Connecticut, dupra, and the decisions leading up to it, former Associate Justice Tom C. Clark observed: "The result of these decisions is the evolution of the concept that there is a certain zone of individual privacy which is protected by the Constitution. Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person's marriage, home, children and day-to-day living habits. This is one of the most fundamental concepts that the Founding Fathers had in mind when they drafted the Constitution."
[6] Since the Texas Abortion Laws infringe upon plaintiffs' fundamental right to choose whether to have children, the burden is on the defendant to demonstrate to the satisfaction of the Court that such infringement is necessary to support a compelling state interest. The defendant has failed to meet this burden.
To be sure, the defendant has presented the Court several compelling justifications for state presence in the area of abortions. These include the legitimate interests of the state in seeing to it that abortions are performed by competent persons and in adequate surroundings. Concern over abortion of the "quickened" fetus may well rank as another such interest. The difficulty with the Texas Abortion Law is that, even if they promote these interest, they far outstrip these justifications in their impact by prohibiting all all abortions except those performed "for the purpose of saving the life of the mother."
[7-9] It is axiomatic that the fact that a statutory scheme serves permissible or even compelling state interests will not save it from the consequences of unconstitutional overbreadth. E. g., Thornhill v. Alabama, 310 U.S, 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Buchanan v. Batchelor, 308 F.Supp. 729 (n.D.Tex. 1970). While the Ninth Amendment right to choose to have an abortion is not unqualified or unfettered, a statute designed to regulate the circumstances of abortions must restrict its scope to compelling state interests. There is unconstitutional overbreadth in the Texas Abortion Laws because the Texas Legislature did not limit the scope of the statutes to such interests. On the contrary, the Texas statutes, in their monolithic interdiction, sweep far beyond any areas of compelling state interest.
[10] Not only are the Texas Abortion Laws unconstitutionally overbroad, they are also unconstitutionally vague. The Supreme Court has declared that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). See also Giaccio v. Pennsylvania, 382, U.S. 399, 402-403, 86 S.Ct. 518, 15 L.Ed.2d. 447 (1966). Under this standard the Texas statutes fail the vagueness test.
The Texas Abortion Laws fail to provide Dr. Hallford and physicians of his class with proper notice of what acts in their daily practice and consultation will subject them to criminal liability. Article 1196 provides: "Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saying the life of the mother."
It is apparent that there are grave and manifold uncertainties in the application of Article 1196. How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? It is sufficient if having the child will shorten the life of the woman by number of years. These questions simply cannot be answered?
The grave uncertainties in the application of Article 1196 and the consequent uncertainty concerning criminal liability under the related abortion statutes are more than sufficient to render the Texas Abortion Laes unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.
II.
We come finally to a consideration of the appropriateness of plaintiffs' request for injunctive relief. Plaintiffs have suggested in oral argument that, should the Court declare the Texas Abortion Laws unconstitutional, that the decision would of itself warrant the issuance of an injunction against state enforcement of the statutes. However, the Court is of the opinion that is must abstain from granting the injunction.
Clearly, the question whether to abstain concerning an injunction against the enforcement of state criminal laws is divorced from concerns of abstention in rendering a declaratory judgment. Quoting from Zwickler v. Koota, "[A] request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against enforcement of that statue. We hold that a federal district court has the duty to decide the appropriateness and merits of the declaratory request irrespective of its conclusion as to the propriety of its issuance of the injunction." 389 U.S. at 254, 88 S.Ct. at 399
[11] The strong reluctance of federal courts to interfere with the process of state criminal procedure was reflected in Dombrowski v. Pfister, 380 U.S. 479, 484-485, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22(1965): [T]he Court has recognized that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings."
This federal policy of non-interference with state criminal prosecutions must be followed except in cases where "statutes are justifiably attacked on their face as abridging free expressions," or where statues are justifiably attacked "as applied for the purpose of discouraging protected activities." Dombrowski v. Pfister, 380 U.S. at 489-490, 85 S.Ct. at 1122.
[12] Neither of the above prerequisites can be found here. While plaintiffs' first substantive argument rests on notions of privacy which are to a degree common to the First and Ninth Amendments, we do not believe that plaintiffs can seriously argue that the Texas Abortion Laws are vulnerable "on their face as abridging free expression." Further, deliberate application of the statues "for the purpose of discouraging protected activities" has not been alleged. We therefore conclude that we must abstrain from issuing an injunction against enforcement of the Texas Abortion Laws.
CONCLUSION
In the absence of any contested issues of fact, we hold that the motions for summary judgment of the plaintiff Roe and plaintiff-intervenor Hallford should be granted as to their request for declaratory judgment. In granting declaratory relief, we find the Texas Abortion Laws unconstitutional for vagueness and overbreadth, though for the reasons herein stated we decline to issue an injunction. We need not here delineate the factors which could qualify the right of a mother to have an abortion. It is sufficient to state that legislation concerning abortion must address itself to more than a bare negation of that right.
JUDGMENT
This action came on for hearing on motions for summary judgment before a three-judge court composed of Irving L. Goldberg, Circuit Judge, Sarah T. Hughes and W. M. Taylor, Jr., District Judges. The defendant in both cases is Henry Wade, District Attorney of Dallas County, Texas. In one action plaintiffs are John and Mary Doe, husband and wife, and in the other Jane Roe and James Hubert Hallford, M.D., intervenor.
The case having been heard on the merits, the Court, upon consideration of affidavits, briefs and arguments of counsel, finds as follows:
Findings of Fact
(1) Plaintiff Jane Roe, plaintiff-intervenor James Hubert Hallford, M.D., and the members of their respective classes have standing to bring this lawsuit.
(2) Plaintiffs John and Mary doe failed to allege facts sufficient to create a present controversy and therefore do not have standing.
(3) Articles 1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code, hereinafter referred to as the Texas Abortion Laws, are so written as to deprive single women and married persons of the opportunity to choose whether to have children.
(4) The Texas Abortion Laws are so vaguely worded as to produce grave and manifold uncertainties concerning the circumstances which would produce criminal liability.
Conclusions of Law
(1) This case is a proper one for a three-judge court.
(2) Abstention, concerning plaintiffs' request for a declaratory judgment, is unwarranted.
(3) The fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.
(4) The Texas Abortion Laws infringe upon this right.
(5) The defendant has not demonstrated that the infringement of plaintiffs' Ninth Amendment rights by the Texas Abortion Laws is necessary to support a compelling state interest.
(6) The Texas Abortion Laws are consequently void on their face because they are unconstitutionally overbroad.
(7) The Texas Abortion Laws are void on their face because they are vague in violation of the Due Process Clause of the Fourteenth Amendment .
(8) Abstention, concerning plaintiffs' request for an injunction against the enforcement of the Texas Abortion Laws, is warranted.
It is therefore ordered, adjudged and decreed that: (1) the complaint of John and Mary Doe be dismissed; (2) the Texas Abortion Laws are declared void on their face for unconstitutional overbreadth and for vagueness; (3) plaintiffs' application for injunction be dismissed.
In the Supreme Court of the United States
October Term, 1970
No. .....
Jane Roe, John Doe, and Mary Doe,
Appellants,
James Hubert Hallford, M.D.,
Appellant-Intervenor,
V.
Henry Wade, Appellee.
On Appeal from the United States District Court for the Northern District of Texas
Brief for Appellant
Roy Lucas
The James Madison Constitutional Law Institute
Four Patchin Place
New York, N.Y. 10011
Norman Dorsen
School of Law, New York University
Washington Square South
New York, N.Y. 10003
Linda N. Coffee
2130 First National Bank Building
Dallas, Texas 75202
Sarah Weddington
3710 Lawton
Austin, Texas 78731
Roy L. Merrill, Jr.
Daugherty, Bruner, Lastelick & Anderson
1130 Mercantile Bank Building
Dallas, Texas 75201
Attorneys for Appellants
Table of Contents
Citation to Opinions Below [xxx]
Jurisdiction [xxx]
Statutes Involved [xxx]
Questions Presented [xxx]
Statement of the Case [xxx]
The Questions Are Substantial [xxx]
Introduction [xxx]
- I. The three-judge court should have enjoined future enforcement of the Texas anti-abortion laws, which the court had declared unconstitutional, because an injunction was necessary in aid of the court's jurisdiction, proper to effectuate the declaratory judgment, and needed to prevent irreparable injury to important federal rights of the class of pregnant women who are or will be seeking abortions, and the class of physicians who are forced to reject such women as patients out of a reasonable fear of prosecution [xxx]
- II. A married couple, and others similarly situated, have standing to challenge the Texas anti-abortion laws, because said laws have a present and destructive effect on their marital relations, they are unable to utilize fully effective contraceptive methods, pregnancy would seriously harm the woman's health, and such a couple could not obtain judicial relief in sufficient time after pregnancy to prevent irreparable injury [xxx]
Conclusion [xxx]
Brief for Appellant
Appellants bring this direct appeal from a judgment entered June 17, 1970, by a statutory three-judge United States District Court for the Northern District of Texas. The judgment appealed from granted these Appellants (Plaintiffs below) a declaration that the Texas anti-abortion statues were unconstitutional on their face, by reason of overbreath affecting fundamental individual rights, and that provisions in the statue suffered from unconstitutional uncertainty. However, the judgment denied a permanent injunction which had been sought as necessary in aid of the District Court's jurisdiction to enjoin future enforcement of the statute declared invalid. Appellants submit this Statement to show that this is a direct appeal over which this Court has jurisdiction, and that the appeal presents important and substantial federal questions which merit plenary review.
Citation to Opinions Below
The June 17, 1970, opinion of the statutory three-judge United States District Court for the Northern District Texas is not yet reported. The text of the decision is set out in the Appendix, infra, at 7a.
Jurisdiction
(i) On March 3, 1970, Appellant Jane Roe filed her original complaint, basing jurisdiction on 28 U.S. C. § 1343(3) (1964 ed.), and complementary remedial statutes, 28 U.S.C. § 1983 (1964 ed.). On the same day Appellants John and Mary Doe filed a complaint predicting federal jurisdiction on the same statutes. On March 23, 1970, the District Court granted leave for Appellant James H. Hallford, M.D., to intervene as a party-plaintiff, on the basis of a complaint alleging a class action and the same jurisdictional grounds set out above. Subsequently, on April 22, 1970, Appellant Jane Roe amended her complaint to sue "om behalf of herself and all others similarly situated" (App. at 8a n. 1). Appellants John and Mary Doe also amended their complaints to asserts a class action (Id.). All Appellants, from their respective position as married couples, pregnant single women, and practicing physicians asked that the Texas antiabortion statutes be declared unconstitutional on their face, and for an injunction against future enforcement of the statutes. A statutory three-judge United States District Court was requested and convened pursuant to 28 U.S.C. §§ 2281, 2284 (1964 ed.).
(ii) The final judgment of the statutory three-judge District Court, granting Appellants' request for a declaratory judgment, but denying any injunctive relief, was entered on June 17, 1970 (App. at 4a). On Monday, August 17, 1970, all Appellants filed with the United States District Court for the Northern District of Texas notices of appeal to this Court (App. at 1a), pursuant to 28 U.S.C. § 2101(b) (1964 ed.), and SUP. CT. RULES 11, 34 (July 1, 1970 ed.), 398 U.S. 1015, 1021, 1045 (1970 ed.). A protective appeal to the United States Court of Appeals for the Fifth Circuit was noticed on July 23, 1970, by Appellant Hallford (App. at 23a), and on July 24, 1970, by Appellant Jane Roe (App. at 21a).
(iii) Jurisdiction of this Court to review by direct appeal the three-judge District's Court's final judgment denying a permanent injunction is conferred by 28 U.S.C. § 1253 (1964 ed.).
(iv) Cases which sustain the jurisdiction of this Court are: Evans v. Cornman, 398 U.S. 419, 420 (1970); Goldberg v. Kelly, 397 U.S. 254, 261 (1970); Carter v. Fury Comm'n of Greene County, 396 U.S. 320, 328, (1970); Moore v. Ogilivie, 394 U.S. 814, 815-16 (1969); Williams v. Rhodes, 393 U.S. 23, 26-28 (1968); Dinis v. Volpe, 389 U.S. 570 (1968) (per curiam); Hale v. Bimco Trading Co., 306 U.S. 375, 376-78 (1939).
Statutes Involved
2A TEXAS PENAL CODE art. 1196, at 436 (1961): Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
2A TEXAS PENAL CODE art. 1191, at 429 (1961): If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years if it be done without her consent, the punishment shall be doubled. By 'abortion is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
2A TEXAS PENAL CODE art. 1192, at 433 (1961): Whoever furnishes the means for procuring an abortion knowing the purpose intended is an accomplice.
2A TEXAS PENAL CODE art. 1193, at 434 (1961): If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
2A TEXAS PENAL CODE art. 1194, at 435 (1961): If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Questions Presented
I. Whether the Three-Judge Court Should Have Enjoined Future Enforcement of the Texas Anti-Abortion Laws, Which the Court Had Declared Unconstitutional, Where an Injunction was Necessary in Aid of the Court's Jurisdiction, Proper to Effectuate the Declaratory Judgment, and Needed to Prevent Irreparable Injury to Important Federal Rights of the Class of Pregnant Women Who Are or Will be Seeking Abortions, and the Class of Physicians Who are Forced to Reject such Women as Patients Because of a Reasonable Fear of Prosecution.
II. Whether a Married Couple, and Others Similarly Situated, Have Standing to Challenge the Texas Anti-Abortion Laws, Where Said Laws Have a Present and Destructive Effect on their Marital Relations, They are Unable to Utilize Fully Effective Contraceptive Methods, Pregnancy Would Seriously Harm the Woman's Health, and Such a Couple Not Obtain Judicial Relief in Sufficient Time After Pregnancy to Prevent Irreparable Injury.
Statement of the Case
Appellants brought three actions on behalf of three variously situated classes of Plaintiffs.
John and Mary Doe, a childless married couple, sued on behalf of themselves and all others similarly situated. Mary Doe has a neural-chemical disorder which renders pregnancy a threat to her physical and mental health, although not to her survival. Her physician has so advised her, and has also advised against using oral contraceptives. The alternate means of contraception used by John and Mary Doe is subject to a significant risk of failure. In such event, Mary Doe would like to, but legally could not, obtain a therapeutic abortion in a suitable medical facility in Texas. The probability of contraceptive failure in the class represented by Mary Doe is unquestionably high, when the size of the class is considered. Also, the limitations of judicial relief for a pregnant woman seeking an abortion are well known. For Mary Doe and others in her positions, a pre-pregnancy ruling on the validity of the Texas anti-abortion laws was the only ruling that could grant her the relief she would be seeking. Any other decision would simply be too late to prevent irreparable injury. Accordingly, John and Mary Doe brought an action for declaratory and injunctive relief against the present effect of the Texas statutes on their marital relations, and the inevitable future effect the statutes would have, in the certain event that a member of the class would become pregnant and not qualify for a legal abortion in Texas.
Jane Roe, an unmarried pregnant woman, also brought an action of the same nature, on her own behalf and for all others similarly situated. Jane Roe had been unable to obtain a legal abortion in a medical facility in Texas, because her survival was not threatened by continued pregnancy, and no hospital would perform the abortion, in light of the Texas anti-abortion statutes. Jane Roe was financially unable to journey to another jurisdiction with less restrictive laws on abortion, and according had no recourse other than continuing an unwanted pregnancy, or risking her life and health at the hands of a non-medical criminal abortionist.
James H. Hallford, M.D., intervened as a Plaintiff, representing himself and other licensed Texas physicians similarly situated. Dr. Hallford's interest was twofold. As a physician, he is requested by patients, on a regular and recurring basis, to arrange for medically induced abortions in hospitals or other appropriate clinical facilities. This he cannot do, for several reasons. The Texas anti-abortion statues are unclear in their potential application to the situations in which patients request abortions. Consequently, both physician and hospital must exercise special caution to avoid prosecution. Also, the potential sweep of the statutes is so drastic that the only clear case of legal abortion is one in which the patients is near to certain death. These cases are rare; hence the typical patient's case will be legally uncertain, or of certain illegality. To avoid the realistic possibility of severe penal and administrative sanctions, the physician must turn away typical patient. Since the conscientious physicians knows full well that such a patient may seek out an incompetent non-medical abortionist, thereby endangering her life or health, he will continually be forced by the statute to breach his professional duty of care to the patient. To rectify this invasion of the physician-patient relationship, Dr. Hallford brought this action to enjoin future enforcement of the Texas anti-abortion statutes, against himself, or against any other physician similarly situated.
Dr. Hallford's second interest in bringing the action was to seek relief against two indictments outstanding against him on abortion charges Under Texas law, a physicians charged with abortion is presumed guilty, if the State is able to establish the fact of the abortion. The physician, in such a case, must admit complicity in the act, waive his privilege against self-incrimination, and defend on the basis that the abortion was "procured or attempted by medical advice for the purpose of saving the life of the [woman]." 2A TEXAS PENAL CODE art. 1196, at 436 (1961). Decisions such as Veevers v. State, 354 S.W.2d 161 (Tex. Ct. Crim. App. 1962), hold that the Article 1196 exception is an affirmative defense, which the physician must raise and prove. In numerous respects, this settled state-law practical deprives a physician of essential constitutional rights. Moreover, state practice invades the privacy of physician and patient by exposing intimate and confidential associations to the public glare of a criminal trial. In addition, the possibility of conviction carries with it the revocation of the physician's license before appeal. These elements of state practice render defense to criminal abortion charges a wholly inadequate means of vindicating the physician's constitutional rights. Accordingly, Dr. Halliford brought the present actions filed by Jane Roe, John Doe, and Mary Doe. The cases were consolidated, and argued together.
Essentially, the federal questions raised by each individual Plaintiff were raised by all. The complaints charged that the Texas anti-abortion statutes deprived physicians and patients of rights protected by the First, Fourth Fifth, Eighth, Ninth and Fourteenth Amendments, as construed by this Court in decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965). Defendants interposed objections to the standing of each Plaintiff, the propriety of adjudications versus abstention, the ripeness of the dispute for present decision, and the propriety of injunctive relief
A statutory three-judge court, convened in response to Plaintiffs' request for injunctive relief from the Texas anti-abortion statutes, granted a declaratory judgment that the statutes were unconstitutionally vague and overbroad.
After dealing with the jurisdictional questions of standing, ripeness, and abstention, raised by the Defendants, the three-judge court stated: [T]he Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children
Reliance was placed on decisions by this Court establishing "[r]elative sanctuaries for such 'fundamental' interests [as] the family, the marital couple, and the individual." Further precedent was found in similar decisions by other federal and state courts, as well as a major treatment of Griswold in the abortion setting by Retired Justice Tom C. Clark, see Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 LOYOLA UNIV. (L.A.) L. REV. 1 (1969).
Not only were the statues overbroad, and not justified by a narrowly drawn compelling State interest, but the language of the statutes was unconstitutionally vague. Although a physician might lawfully perform an abortion "for the purpose of saving the life of the [pregnant woman]," the circumstances giving rise to such necessity were far from clear. The district court detailed a few of the more apparent ambiguities: How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death that would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years? These questions simply cannot be answered.
App. at 71a.
After finding the Texas anti-abortion statues unconstitutional on two grounds, the district court considered the propriety of injunctive relief. Acting on the assumption that Dombroski v. Pfister, 380 U.S. 479 (1965)
controlled, the court refused to enjoin any present or future enforcement of the statutes. Appellants have brought this appeal to review the denial of injunctive relief.
The Questions Are Substantial
The present appeal presents important and unresolved federal questions which have not been but should be determined by this Court. A district court's refusal to enjoin present and future enforcement of a statute declared facially unconstitutional raises important issues for the vindication by federal courts of rights guaranteed by the Constitution. Decisions by this Court have not in recent years clarified the propriety of federal injunctive relief against state criminal statutes outside the pristine speech area of the First Amendment. A decision by this Court is needed, particularly where, as here, the injunction was sought by some Appellants who were total strangers to any pending prosecutions, and by one Appellant for whom defense of state court prosecution would be a wholly inadequate means of vindicating his federally protected rights.
In addition, the substantive issues in the case, which will surely be raised for further review by Appellee, are novel issues of profound national import, affecting the lives of many thousands of American citizens each year. Further, the same issues are presented in four appeals already docketed, a variety of conflicting decisions in the lower courts, and a host of pending actions in federal and state lower courts.
Introduction
In the remainder of this Jurisdictional Statement, Appellants will show that the questions presented are substantial, and merit plenary review by the full Court. Because of the novelty and complexity of the issues, and the limited function of a Jurisdictional Statement, this showing will not undertake to develop all arguments in depth.
I. The three-judge court should have enjoined future enforcement of the Texas anti-abortion laws, which the court had declared unconstitutional, because an injunction was necessary in aid of the court's jurisdiction, proper to effectuate the declaratory judgment, and needed to prevent irreparable injury to important federal rights of the class of pregnant women who are or will be seeking abortions, and the class of physicians who are forced to reject such women as patients out of a reasonable fear of prosecution
The subject matter of the merits involves important and substantial federal constitutional questions. On the merits, Appellants argued successfully that decisions by this Court, construing the First, Fourth, Ninth, and Fourteenth Amendments supported a claim that the Texas anti-abortion statutes swept too broadly and thereby invaded rights protected by the Constitution (Pay out 5a, 6a, 12a-16a). Moreover, the statues in question were held to be so vague and indefinite as to violate the Fourteenth Amendment due process guarantee of reasonably specific legislation (App. at 5a, 6a, 16a-18a). That guarantee is particularly significant where, as here, important personal rights are at stake, and an impermissibly vague statute operates to inhibit a wide range of constitutionally protected conduct.
Ultimately, the substantive question presented is whether a State may enact a felony statute to punish a physician, a woman, and her husband, with five years in state prison, where the couple requests, and the physician performs, a therapeutic surgical procedure to abort a pregnancy which the couple did not want, but were unable to prevent. Under Griswold v. Connecticut, 381 U.S. 479 (1965), it is clear that a husband and wife are constitutionally privileged to control the size and spacing of their family by contraception. The failure of contraception, however, is commonplace. Authoritative estimated are that between 750,000 and 1,000,000 births each year are unwanted. These are in addition to the 200,000 to 1,000,000 unwanted pregnancies which are estimated to end in abortion induced outside of the clinical setting. Taken together, some 950,000 to 2,000,000 unwanted births plus non-clinical abortions occur yearly. Accordingly, one must conclude that restrictive anti-abortion statutes, such as the Texas law in question here, drastically affect the conduct of literally millions of American citizens.
The national significance of the issues in this case can be also be inferred from increased activity within the medical profession, and in the legislatures. On June 25, 1970, the House of Delegates of the American Medical Association voted to permit licensed physicians to perform abortions in hospitals, with sole additional qualification that two other physicians can be consulted. Physicians were cautioned, however, not to violate existing state statues, forty-seven of which are far more restrictive. Three states in 1970—New York, Alaska, and Hawaii—removed, for the most part, any criminal penalties which might previously have been imposed upon physicians for performing abortions in appropriate medical facilities. From 1967 to 1970, twelve states had adopted therapeutic abortion statutes similar to that of the Model Penal Code's 1962 Proposed Official Draft. More recently, on August 4, the Commissioner on Uniform State Laws issued a Second Tentative Draft of a Uniform Abortion Act. The Act sanctioned abortions by licensed physicians "within 24 weeks after the commencement of the pregnancy; or of after 24 weeks . . ." under the circumstances set out in the Model Penal Code proposal.
These developments bear witness to the importance of the issues presented here.
While policy-making and legislative bodies have debated the issue of abortion, courts, confined to the constitutional framework, have been asked to resolve the questions of individual and legislative power which are presented here. Although the questions framed in this case have not been decided by this Court, numerous federal and state decisions attest to the substantiality of the federal questions. Moreover, the sometimes sharp divisions in the courts below illustrate further the need for a decision at this level. In showing that the Court has jurisdiction, and that the questions are substantial, Appellants will outline the divisions among lower courts.
In September, 1969 the Supreme Court of California became the first appellant court to recognize the constitutional stature of a "fundamental right of the woman to choose whether to bear children. . . ." The Belous court found this right implicit in this Court's "repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex."
More recently, three different decisions by statutory three-judge federal courts have invalidated restrictions on access to medical abortion in Wisconsin and Georgia, as well as in the present case from Texas. The first, McCann v. Babbitz, recognized in that jurisdiction a woman's
"basic right reserved to her under the ninth amendment to decide whether she should carry or reject an embryo which has not yet quickened." 310 F. Supp. at 302
McCann grew out of the prosecution of a physician, but the three-judge court had no difficulty holding that a physician has standing to assert the rights of pregnant patients.
The second recent federal decision is the present case, Roe v. Wade, declaring the Texas anti-abortion statutes unconstitutional on the similar ground that
"they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children."
A third federal decision, Doe v. Bolton, followed Belous, McCann, and Roe, holding:
"[T]he concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy.
". . .[T]he reasons for an abortion may not be proscribed. . ."
Numerous lower courts have followed this lead, in both federal and state disputes. In addition, three-judge courts have been requested and/or convened in a number of states to consider questions quite similar to those raised here. The convening of a statutory court, of course, requires that the questions presented be "substantial."
Scholarly commentary also recognizes that these issues are tremendous national importance, and "substantial" in the sense of warranting determination by this Court. Retired Justice Clark addressed himself to the applicability of Griswold in the abortion context more than a year ago. According to Justice Clark's analysis,
"Griswold's act was to prevent formation of the fetus. This, the Court found, was constitutionally protected. If an individual may prevent conception, why can he not nullify that conception when prevention fails?"
To examine Justice Clark's hypothetical question in full constitutional context, and to decide the propriety of injunctive relief in this case, the Court should not probable jurisdiction, and set the matter down for full briefing and argument.
B. Having determined the merits in appellants' favor, the three-judge court should have enjoined future enforcement of the invalid. Not only do the substantive issues in this case involve important federal questions, but the remedy following judgment also presents a novel point of which this Court has not clearly ruled.
Although no state proceedings were pending or imminently threatened against Appellants Jane Roe, John Doe, and Mary Doe, or members of their respective classes, the District Court declined to grant any injunctive relief whatever. This denial of necessary relief is contrary to decisions by this Court, and has the probable effect of inviting federal-state friction, rather than lessening such untoward interaction. Moreover, the denial of injunctive relief to Dr. Hallford was equally improper, as he had requested an injunction against the commencement of any future prosecutions. As to charges then pending against Dr. Hallford, an injunction would have been proper in addition, for reasons which shall appear more fully hereinafter
Relying entirely on Dombrowski v. Pfister, 380 U.S. 479 (1965), the three-judge court recognized a "federal policy of non-interference with state criminal prosecutions [which] must be followed except in cases where 'statutes are justifiably attacked on their face as abridging free expression,' or where statutes are justifiably attacked 'as applied for the purpose of discouraging protected activities.'" 380 U.S. at 489-90. The quote from Dombrowski, however, was not pertinent, for Appellants' principal thrust was not against pending prosecutions, but against any future enforcement and effects of the challenged statutes. The pregnant Plaintiff, Jane Roe, for example, could never be prosecuted under Texas law regardless of the number of abortions she underwent, but the statute, unless enjoined, would have the effect of keeping her from obtaining an abortion.
For the most part, Appellants were strangers to any existing or contemplated prosecutions. Their chief controversy was over the drastic impact of the statutes on their lives, not any possibility of imminent enforcement. In Dombrowski, the appellants were actively threatened with prosecution, and an injunction would necessarily have abated that threat by operating directly on law officers who stood ready to go forward with existing indictments. Accordingly, "special circumstances" were necessary to justify the conclusion ultimately reached.
If, however, Dombrowski had been purely a challenge to quantifiable and recurring effects of a state criminal statute, without the pendency of criminal charges, the case would have been different. This is shown by the ease with which this Court has reversed lower courts that refused declaratory and injunctive relief against loyalty oath statutes backed by criminal sanctions. See Keyishian v. Board of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S.360, 365-66 (1964). Injunctive relief against the statute in Dombrowski would have presented no special problem, if the statute had been a loyalty oath backed by the very same criminal penalties, and no indictments had been waiting in the wings.
Dombrowski falls in the middle ground between (1) injunctive actions which are filed and completed prior to the commencement of any state criminal proceedings, and (2) actions which are filed after"proceedings in a State court," are underway. The Dombrowski case itself was filed but not completed before State proceedings began. Hence, while Dombrowski acknowledged that "[28 U.S.C. § 2283 (1964 ed.)], and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted," this Court nonetheless required "special circumstances" to justify interference with a criminal proceeding begun shortly after the federal complaint was filed.
The present case lies chronologically in the earliest of the categories, (1), because, as to the bulk of relief sought against future enforcement of the anti-abortion statute, state proceedings have never been contemplated. Appellants were thus in the same position as petitioners contesting a loyalty oath that was backed by criminal sanctions. Their entitlement to an injunction against future enforcement should have followed as a matter of course. Put another way, Appellants were"strangers to [any pending] state court proceedings." Hale v. Bimco Trading Co., 306 U.S. 375, 378 (1939) (Frankfurter, F.). The fact of pending prosecutions against other physicians, or against Dr. Hallford based upon alleged past conduct, had no bearing on Appellant's request for prospective injunctive relief.
Accordingly, the three-judge court should have undertaken an inquiry as to the propriety of injunctive relief without reference to Dombrowski v. Pfister, and without any greater concern for hypothetical federal-state friction than exists in the ordinary case where state judicial machinery has not entered the controversy. Indeed, denial of injunctive relief was an open invitation for Texas authorities to maintain existing enforcement policies. Should this have occurred against Dr. Hallford, or any other physician member of the class he represented, a federal injunction would have been sought from the district court as "necessary in aid of its jurisdiction, or to protect or effectuate its" declaratory judgment invalidating the statute. A confrontation between federal and state judiciary might then have ensued. To avoid such a possibility, the three-judge court should have enjoined future enforcement of the statute on June 17, 1970, when it ruled the statute invalid. In other words, an injunction ab initio would have prevented federal-state conflict, and enhanced the very policy the three-judge court thought it was following be denying the injunction.
A further reason for having granted the injunction was to avoid irreparable injury to individuals in the class of Jane Roe, and to physicians deterred by the ongoing possibility that the State might continue to enforce the statute until the controversy was determined by this court. Without a coercive order on record, Texas law enforcement authorities are free to ignore the declaratory judgment rendered below, because the judgment is subject to possible reversal here. It requires no argument to show that a declaratory judgment by this Court ends the controversy, but such judgments at the district court level carry much less practical import.
Appellant Dr. Hallford sought not only an injunction against future enforcement of the Texas anti-abortion statutes, but also an injunction to bar the commencement of State proceedings against him based upon two outstanding indictments. This request for injunctive relief presents several substantial questions which merit review by this Court.
Assuming that the district court improperly denied an injunction directed generally against future enforcement of the anti-abortion laws, one question is whether that injunction, if entered, should cover the commencement of prosecution under the aforesaid indictments. Whether a bare indictment, returned from the secrecy of a grand jury, alone constitutes a "proceeding in a State court" is an open question. If there is no "proceeding," as this Court found in Dombrowski, the degree of irreparable injury needed to justify an injunction must apparently be considered nonetheless. Here, unlike Dombrowski, law enforcement authorities have not to date gone forward with prosecutions; hence the degree of friction between state federal judicial systems is considerably lessened.
Also here, as in Griswold v. Connecticut, and unlike Dombrowski, the permissible range of leeway for State regulation of marital and personal privacy is small. While government may regulate many facets of speech coupled with conduct, there is much doubt whether government can so intrude into the domain of privacy. Thus, to allow any prosecution at all of Dr. Hallford is to permit the State in invade the privacy of physician and patient in an area where the district court concluded that the State had little business at all.
If one assumes that 28 U.S.C. § 2283 (1964 ed.), is prima facie a bar to an injunction on Dr. Hallord's behalf, the further question remains whether, notwithstanding § 2283, an injunction would be "necessary in aid of [the three-judge court's] jurisdiction," or "to protect or effectuate" the outstanding declaratory judgment. On this theory, since the court had jurisdiction to the grant an injunction on behalf of all parties, it would be incongruous to exclude Dr. Hallford. Indeed, the alleged patients who were aborted, according to the two indictments, might be able to enjoin the compulsion of process against them in order to protect their privacy.
In light of the above, the questions presented in this case, both on the merits, and with respect to relief, are substantial, novel, and hitherto unresolved by this Court. Accordingly, the Court should not probable jurisdiction, and set the case down for plenary review.
II. A married couple, and others similarly situated, have standing to challenge the Texas anti-abortion laws, because said laws have a present and destructive effect on their marital relations, they are unable to utilize fully effective contraceptive methods, pregnancy would seriously harm the woman's health, and such a couple could not obtain judicial relief in sufficient time after pregnancy to prevent irreparable injury.
A further aspect of the judgment below is presented on this appeal. In one part of the lower court's opinion is the holding that"Dr. Hallford has standing to raise the rights of his patients, single women and married couples, as well as rights of his own" (App. at 9a n.3). Yet, the judgment states that "[p]laintiffs John and Mary Doe failed to allege facts sufficient to create a present controversy and therefore do not have standing" (App. at 5a). Accordingly, both declaratory and injunctive relief were denied as to John and Mary Doe.
John and Mary Doe alleged a present impact of the Texas anti-abortion laws on their marital relations which, when considered in light of their assertion of the interests of a class, created a present controversy over a future right to relief in the event Mary Doe or another class member became pregnant.
This statement has already pointed out, supra at 6-7, that the judicial machinery is not equipped to grant relief to a party such as Mary Doe after she becomes pregnant. The only meaningful relief must be forthcoming prior to the twelfth week of pregnancy. While twelve weeks is a lengthy period of time, pregnancy is rarely detected before the fourth week, and often not until considerably later, depending upon the degree of medical sophistication of the patient.
Based upon an assumed size of the class represented by Mary Doe, and the known failure rate of the contraceptive she used, it would not be speculative to assume that one or more members of the class would be or become pregnant during the litigation. To assume to the contrary, as the district court did, was not only medically unsound, but served to elevate "ripeness" requirements to an unnecessarily high point, namely a point which deprived the entire class of relief sought simply because no class member stepped forward as pregnant. Indeed, Jane Roe, the pregnant plaintiff, won a judgment which proved meaningless to her, because it was too late.
Ample precedent, moreover, could have been found to conclude that a present controversy existed between the Does and Appellees. Not only should the lower court have considered "'the hardship of denying judicial relief,'" but the dilemma faced by the class of Mary Does when they become pregnant is "'capable of repetition, yet evading review' . . ." Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The situation, admittedly difficult if one ignores its uniqueness, is nonetheless one in which the "mere possibility of [recurrence] . . . serves to keep the case alive." United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). To the extent that the lower court, almost without discussion, rejected the standing of John and Mary Doe for want of an Article III case or controversy, the court erred. To the Does the case was and is a very real one. The was never an absence of adversity. The relief requested had significant meaning for the Does throughout, and the denial of the relief could provide harmful precedent for similar situations. Accordingly, this Court should reverse the determination below, after noting jurisdiction to consider the claim by John and Mary Doe that they too were entitled to declaratory and injunctive relief.
Conclusion
For the reasons set out in this Jurisdictional Statement, the Court should note probable jurisdiction, and set the case down for plenary consideration with briefs on the merits and oral argument.
Respectfully submitted,
- Roy Lucas
- The James Madison Constitutional Law Institute
- Four Patchin Place
- New York, N.Y. 10011
- Norman Dorsen
- School of Law
- New York University
- Washington Square
- New York, N.Y. 10003
- Linda N. Coffee
- 2130 First National Bank Building
- Dallas, Texas 75202
- Sarah Weddington
- 3710 Lawton
- Austin, Texas 78731
- Roy L. Merrill, Jr.
- Daugherty, Bruner, Lastelick and Anderson
- 1130 Mercantile Bank Building
- Dallas, Texas 75201
- Attorneys for Appellants
Roe v. Wade
In the Supreme Court of the United States
No. 78-18, 1971 Term
Jane Roe, John Doe, Mary Doe, and James Hubert Hallford, M.D.
Appellants,
vs.
Henry Wade, District Attorney of Dallas County, Texas
Appellee.
On Direct Appeal from the United States District Court for the Northern District of Texas
Brief for Appellee
Statement of the Case
Appellant Jane Roe instituted an action, suing on behalf of herself and all others similarly situated, contending she was an unmarried pregnant female who desired to terminate her pregnancy by "abortion"and that she was unable to secure a legal abortion in the State of Texas because of the prohibitions of the Texas Penal Code, Articles 1191, 1192, 1193, 1194, and 1196.
Appellants John and Mary Doe instituted their action, suing on behalf of themselves and all others similarly situated, contending they were a childless married couple and that Appellant Mary Doe's physician had advised her to avoid pregnancy because of a neural-chemical disorder.
Appellant James Hubert Hallford, M.D., filed his Application for Leave for Intervene in Appellant Roe's action
In substance, Appellants contended in their Complaints filed in the lower court that (1) the Texas Abortion Laws are unconstitutionally vague and uncertain on their face, (2) they deprive a woman of the "fundamental right to choose whether and when to bear children", (3) they infringe upon a woman's right to personal privacy and privacy in the physician-patient relationship, (4) they deprive women and their physicians of rights protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States.
Appellants sought declaratory relief that the Texas Abortion Laws were unconstitutional in violation of the Constitution of the United States and injunctive relief against the future enforcement of such Statutes.
Appellee Henry Wade filed his Answer to Appellant Roe's Complaint
In the course of proceeding in the lower court, Appellants filed their Motions for Summary Judgment.
The cases were consolidated and processed to a hearing before the Honorable Irving L. Goldberg, Circuit Judge, and the Honorable Sarah T. Hughes and W.M. Taylor, Jr., District Judges.
Appellants filed Notice of Appeal to this Court pursuant to the provisions of 28 U.S.C. 1253.
The lower court found that Appellants Roe and Hallford and the member of their respective classes
Statues in Issues
The Texas Abortion Laws and the statutes in issue are contained in the Texas Penal Code and consist of the following:
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use toward her any violence or means whatsoever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary for not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By "abortion" is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth shall be caused.
Art. 1192. Furnishing the Means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Art. 1193. Attempt at Abortion
If the means used shall fail to produce and abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means was calculated to produce that result, and shall be fined not less that one hundred nor more than one thousand dollars.
Art. 1194 Murder in Producing Abortion
If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Art. 1196. By Medical Advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.37
Questions Presented
In Appellee's opinion the questions presented may be precisely stated as follows:
- I. Whether appellants Jane Roe, and John and Mary Doe, present a justiciable controversy in their challenge to the Texas abortion laws?
- II. Whether the court should enjoin the enforcement of the Texas abortion laws as to appellant Hallford in the light of pending state criminal charges?
- III. Did the district court err in refusing to enjoin future enforcement of the Texas abortion laws after declaring such laws unconstitutional?
- IV. Whether this court can consider plenary review of an entire case when a lower court grants declaratory relief holding a state statue unconstitutional, but refuses to enjoin future enforcement of such statute, and the appeal to this court is from that portion of the judgment denying injunctive relief?
- V. Whether articles 1191, 1192, 1193, 1194 and 1196 of Texas penal code are void on their face because of unconstitutional overbreadth and vagueness?
- VI. Whether the constitution of the United States guarantees a woman the right to abort an unborn fetus?
- VII. Whether the state of Texas has a legitimate interest in preventing abortion except under the limited exception of "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother"?
Summary of Argument
Appellant Jane Roe has not presented a justiciable controversy admitting of specific relief for this Court in her challenge to the Texas Abortion Laws. She has not shown that she has sustained or is immediately in danger of sustaining some direct injury as a result of enforcement of the Texas Abortion Laws. Any cause of action that she may have had is not established by the record and has been mooted by the termination of her pregnancy.
Appellants John and Mary Doe's cause of action is based on speculation and conjecture and they also have shown they have sustained or are immediately in danger of sustaining some direct injury as a result of enforcement of the Texas Abortion Laws essential to standing and a justiciable controversy.
Appellant Hallford is under indictment in two cases for violation of the statutes he attacks in the controversy before the Court. The Court should abstain from exercising jurisdiction under the principles enunciated inYounger v. Harris, etc. Appellant Hallford is not entitled to assert a cause of action on behalf of his patients in the physician-patient relationship.
For a federal court to grant injunctive relief against the enforcement of a state statute, there must be a clear and persuasive showing of unconstitutionally and irreparable harm. The lower court can divorce injunctive and declaratory relief under its equity power and declare a statute unconstitutional, yet refuse to enjoin the enforcement of such statute.
Once a federal court has assumed jurisdiction of a cause, it may properly assume jurisdiction of the entire controversy and render a decision on all questions presented and involved in the case. If this Court determines that is has jurisdiction to consider the denial of injunctive relief to Appellants by the lower court, it may consider the constitutionality of the Texas Abortion Laws determined to be unconstitutional by the Court below.
The Texas Abortion Laws are not violative of the Constitution of the United States as being unconstitutionally vague and overbroad. United States v. Vuitch is decisive of the issues in the case as to vagueness and overbreadth.
Though the right of "marital privacy" and "personal privacy" are recognized, they have never been regarded as absolute. The "right to privacy" is a relative right that, in the matter of abortion, is not attached to an express right guaranteed under the Constitution of the United States. The right to life of the unborn child is superior to the right of privacy of the mother.
The state has a legitimate, if not compelling, interest in prohibiting abortion except under limited circumstances. In the light of recent findings and research in medicine, the fetus is a human being and the state has an interest in the arbitrary and unjustified destruction of this being.
Argument
I. Appellants Jane Roe, John and Mary Doe, have not presented a justiciable controversy in their challenge to the Texas abortion laws
A. Justiciability and standing. Article III of the Constitution of the United States limits the judicial power of Federal Courts to "cases" and "controversies". This has been construed by the courts to prohibit the giving of advisory opinions.Flast v. Cohen, 392 U.S. 83 (1968); Bell v. Maryland, 378 U.S. 226 (1964); United States v, Fearful 365 U.S. 146 (1961). There must be a real and substantial controversy admitting of specific relief as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Aetna Life Insurance Company v, Hayworth, 300 U.S. 227 (1937); accord, Public Service Commission of Utah v. Wycoff Company, 344 U.S. 237 (1952); Baker v. Carr, 369 U.S. 186 (1962); Golden v. Zwickler, 394 U.S. 103 (1969). Correctively, a party challenging a statute as invalid must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the statue's enforcement before a three-judge court or any Federal court can entertain the action, Frothingham v. Mellon
"It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." (Emphasis added). 302 U.S. at 634.
In Flask v. Cohen, supra, this Court gave careful consideration to the nexus between standing and justiciability and stated that "Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability". 392 U.S. at 98-99. Most probably, the best known decision of this Court on standing is Frothingham v. Mellon, supra, in which Mrs. Frothingham claimed that she was a taxpayer of the United States and sued to restrain payments from Treasury to the several states which chose to participate in a program created by the Maternity Act of 1921. She claimed that Federal government lacked power to appropriations would cause an unconstitutional increase in her future taxes. After considerations of the interest of an individual taxpayer, remoteness, and other issues, this Court finally stated that its power to declare statutes unconstitutional exists only where the statute is involved in a justiciable case, and that to present such a case the plaintiff "must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that suffers in some indefinite way in common with the people generally". 262 U.S. at 488. See, Cramp v. Board of Public Instruction, 368 U.S. 278 (1961); Baker v. Carr, supra; National Association for the Advancement of Colored People v. Button, 271 U.S. 415 (1963).
A Review and analysis of the decisions on standing indicated they are not easy to reconcile on the facts. It is frequently stated that to have standing a party must be able to demonstrate injury to a legally protected right or interest. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1937); Alabama Power Company v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113(1940).
B. Standing of Appellants John and Mary Doe. Applying the standards of justiciability and standing stated above, an examination of the cause of action asserted by Appellants John and Mary Doe discloses they do not have standing. In their Complaint they contend they are a childless married couple and Mary Doe was not pregnant at the time.
Initially, it may be states that neither Appellants Doe nor Roe can be prosecuted under the Texas Abortion Laws for securing an abortion or for attempted abortion. Gray v. State, 178 S.W. 337 (Tex.Crim. 1915); Shaw v, State, 165 S.W. 930 (Tex.Crim. 1914). Appellants John and Mary Doe's cause of action is based upon speculation that these Appellants will not at that time be prepared for parenthood and, further, that Appellant Mary Doe's health condition at that time will be impaired by pregnancy. These speculative fears cannot support a caused of action. See, Younger v. Harris, 401 U.S. 37 (1971); Golden v. Zwickler, supra. For a court to decide the merits of Appellants John and Mary Doe's cause of action would result in giving an advisory opinion upon a hypothetical state of facts contrary to Federal Constitutional limitations and this Court's holding in Flask v. Cohen, supra, and cases cited, supra, at p. 9.
C. Standing of Appellant Jane Roe. Appellant Jane Roe occupies a more unique position in regard to standing. She filed her Amended Complaint in the District Court on April 22. 1970,
The argument that Appellant Jane Roe has not presented a justiciable controversy to give her standing is not intended to be fictitious or spurious. If her statements in her affidavit did not moot her cause of action, resort may be had to Golden v. Zwickler; supra, wherein this Court stated:
"The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed '[w]hen this action was initiated.' The proper inquiry was whether a 'controversy' requisite to relief under the Declaratory Judgement Act existed at the time of the hearing on remand." 394 U.S. at 108.49
Golden v. Zwickler indicated that this Court should consider an issue as to standing at the time it reviews the case and not when the suit was filed. This is supported to some extent by Bryan v. Austin. 354 U.S. 933 (1957), wherein Plaintiffs sought to have a South Carolina statute declared unconstitutional and, pending appeal, the statute in question was repealed. In a per curiam opinion this Court stated that the repeal of the statute in issue after the decision of the District Court rendered the cause moot. Atherton Mills v. Johnston, 259 U.S. 13 (1922), involved a suit for injunctive relief to prevent the discharge of a minor employee because of the Child Labor Act of 1919, which was challenged as being invalid. While the case was on appeal, the minor employee involved became of age. This Court held that the case became moot by the lapse of time and the case could not be considered by the Court.
Mootness deprives a federal court of its judicial power since no case or controversy exists. Mechling Barge Lines, Inc., v. United States, 368 U.S. 3224 (1961); Local No. 8-6 v. Missouri, 361 U.S. 363 (1960); Flast v. Cohen, supra; Parker v. Ellis, 362 U.S. 574 (1960).
D. Class action aspects. It is questionable whether the requirements of Rule 23, Fed. Rules Civ. Proc., have been complied with in connection with Appellants Roe and John and Mary Doe's attempt to bring their suits as class actions. These Appellants have alleged the prerequisites required in Rule 23 (a),
The 1966 amendments to Rule 242 require the judgment in a (b) (1) or (b) (2) class action to include and describe those whom the court finds to be members of the class. In a Rule 23 (b) (3) class action the 1966 amendments require the judgment include and specify or describe those to whom notice was directed, as required by Rule 23 (c) (2), and who have not requested exclusion, and who are found by the court to be members of the class.
In Hall v. Beals, 396 U.S. 45 (1969), this Court had before it on direct appeal a case involving new residents of the State of Colorado, who had moved into the State four (4) or five (5) months prior to the November, 1968 presidential election. They were refused permission to vote because of a Colorado statute imposing a six (6) months residency requirement. They commenced a suit as a class action challenging the constitutionality of the statute. A three-judge court upheld the constitutionality of the statute. Thereafter, the election was held, and the State statute was amended to reduce the residency requirement for a presidential election to two (2) months. This Court, in a per curiam opinion, held that, aside from the fact that the election had been held, the case was rendered moot by the amendment to the statute that reduced the residency requirement to two (2) months, and under which the Appellants could vote, since the case had lost its character as a present, live controversy, notwithstanding that the Appellants had denominated their suit as a class action and had expressed opposition to residency requirements in general. In Golden v. Zwickler, supra, a distributor of anonymous handbills criticizing a congressman's voting record sought a declaratory judgment concerning the constitutionality of a New York statute which penalized the distributor of anonymous literature in connection with an election campaign. While the case was pending, the congressman left the House of Representatives and accepted a term as a justice on the Supreme Court of New York. The United States District Court held that the distributor was nevertheless entitled to a declaratory judgment because a genuine controversy had existed as the commencement of the action. This Court held there was no "controversy" of "sufficient immediacy and reality" to warrant a declaratory judgment and, in addition, stated as follows:
"It is not enough to say, as did the District Court, that nevertheless Zwickler has a 'further and far broader right to a general adjudication of unconstitutionality. . . [in] [h]is own interest as well as that of others who would with like anonymity practice free speech in a political environment. . . .' The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance." (Emphasis added). 394 U.S. at 118.
See, Burrows v. Jackson, 346 U.S. 249 (1953).
The Federal Constitution limitation in Article III cannot be extended or limited by asserting a "class action" under Rule 23. Rule 82, Fed. Rules Civ. Proc., in referring to the preceding rules, including Rule 23, provides in part that "These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein. . . "
II. This court should refuse declaratory and injunctive relief to Appellant James Hubert Hallford, M.D.
In Indictment No. 2023 A, Appellant James Hubert Hallford stands charged by the State of Texas with performing an abortion on Frances C. King,
Historically there has been great reluctance by the federal courts to interfere in the operations of a state court. Stefanelli v. Minard, 342 U.S. 117 (1951). General principles should be enough to show that an independent federal action is not an appropriate means to raise what should be a state court defense, but this does not stand alone. A statute almost as old as the Republic, the Anti-Injunction Act of 1793, has, with some variations in language over the years, provided that a court of the United States "may not grant an injunction to stay proceedings in a State court . . ." 28 U.S.C. 2283. This statute is no happenstance. It is a "limitation of the power of federal courts dating almost from the beginning of our history and expressing an important Congressional policy—to prevent friction between state and federal courts" Oklahoma Packing Co. v. Oklahoma & Elec. Co., 309 U.S. 4 (1940).
Appellant Hallford's Complaint allegations do not justify the conclusion that any criminal charges have been brought against him in bad faith or under any conditions that would place his case within Dombrowski's "special circumstances". Dombrowski v. Pfister, 380 U.S. 479 (1965). There is no relationship worthy of note in the allegations contained in Paragraph 14 of this Complaint
In Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281 (1970), the railroad obtained a state injunction against a union's picketing and the union sought and obtained in the Federal District Court an injunction against the enforcement of the state court injunction. The Court of Appeals for the Fifth Circuit affirmed the Federal District Court's judgment and, on certiorari, this Court reversed and remanded stating as follows:
"First, a federal court does not have inherent power to ignore the limitations of Section 2283 and to enjoin state court proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy, or whether it is ousted from jurisdiction for the same reason that the state court is." (Omitting authority). 398 U.S. at 294.-295.
The above principle of federal abstention is further enunciated in Spinally Motor Sales Co., Inc., v. Dodge, 295 U.S. 89 (1935); Cameron v. Johnson, 390 U.S. 611 (1968); Shaw v. Garrison, 293 F.Supp. 937 (E.D.La. 1968); City of Greenwood v. Peacock, 384 U.S. 8080 (1966).
Most recently, this Court has announced certain guidelines on the subject of federal court interference with pending state criminal proceedings in what is sometimes referred to as the "February 23rd Decisions". Younger v. Harris, supra, Samuels v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Perez v, Ledesma, 401 U.S. 82 (1971); Bryne v. Karalexis, 401 U.S. 216 (1971). These cases very strongly indicate the availability of federal injunctive relief against pending state criminal prosecutions has been severely curtailed even in the area of First Amendment rights of expression. Thus, federal interference, even to the extent of granting preliminary restraining orders and convening three-judge courts is by far the exception rather than the rule.
The above cases further indicate that, independent of any obstacles posed by the federal anti-injunction statute, the primary prerequisite to federal court intervention in the present context, is a showing or irreparable injury. Even irreparable injury is insufficient unless it is "both great and immediate". In Younger v. Harris, supra, this Court stated as follows:
"Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable' in the special legal sense of that term. Instead, the threat to the Plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." 401 U.S. at 46.
Accord, Byrne v. Karalexis, supra.
Samuels v. Mackell, supra, considered declaratory relief prayed for in relation to the federal court's reluctance to interfere with pending state criminal proceedings and this Court stated:
"We therefore hold that, in cases where the state criminal prosecution was begun prior to the federal suit, same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should be denied as well. . . . Ordinarily, however, the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction." (Emphasis added). 401 U.S. at 73.
Nor can Appellant rely upon his patients' rights, which a statute supposedly threatens. See Glisten v. Ullman, 318 U.S. 44 (1943); accord, Golden v. Zwicker, supra; Burrows v. Jackson, supra.
Applying the guidelines set forth in Younger v. Harris, supra, and the other "February 23rd Decisions", this Court can properly conclude Appellant Hallford has not suffered, nor under the present state of the record, will suffer both great and immediate irreparable injury of the nature required to authorize federal injunctive or declaratory relief. His case is precisely the type to which this Court was addressing itself in the recent pronouncements condemning, except in very limited circumstances, federal court equitable injunctive and declaratory interference with pending state criminal prosecutions.
III. The United States District Court did not err in refusing to enjoin future enforcement of the Texas abortion laws after declaring such laws unconstitutional
This Court has been unwaivering in holding that a three-judge court cannot consider an action for injunctive relief under 28 U.S.C. 2281 on its merits without a preliminary showing of irreparable harm and no adequate legal remedy. In Spielman Motor Sales Co. Inc., v. Dodge, supra, a suit requesting a three-judge court to rejoin a New York district attorney from instituting criminal prosecutions against certain defendants under an alleged unconstitutional state statute, this court affirmed the lower court's dismissal of the action and stated:
"The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional. . . To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." 295 U.S. at 95.
In Mayo v. Lakeland Highlands Canning Co., Inc., 309 U.S. 310 (1940), a suit was brought before a three-judge court seeking to enjoin the Florida Agriculture Commission from enforcing an alleged unconstitutional state statute. This Court reversed the lower court's disposition on the merits and made the following observation:
"The legislation requiring the convening of a court of three judges in cases such as this was intended to insure that the enforcement of a challenged statute should not be suspended by injunction except upon a clear and persuasive showing of unconstitutionality and irreparable injury." 309 U.S. at 318-319.
Accord, Beal v. Missouri Pacific Railroad Corporation, 312 U.S. 45 (1961); Douglas v. City of Jeannette, 319 U.S. 157 (1943); Bryne v. Karalexis, supra; Dyson v, Stein, supra; Samuels v. Mackell, supra; Younger v. Harris, supra.
The lower court cited Dombrowski v. Pfister, supra, and Zwickler v. Koota, 389 U.S. 241 (1967), as authority for the court to divorce injunctive and declaratory relief,
IV. This court can consider plenary review of the entire case when a lower court grants declaratory relief holding a state statute unconstitutional, but refuses to enjoin future enforcement of such statute, and the appeal to this court is from that portion of the judgment denying injunctive relief.
Should this Court determine that it has jurisdiction to consider the propriety of injunctive relief in this case, it can properly assume jurisdiction of this entire controversy and render a decision on all questions involved in this case, including the constitutionally of the Texas Abortion Laws. Appellee joins Appellants in requesting this Court reach the issue of the Constitutionality of the Texas Abortion Laws. Appellee is in a somewhat awkward procedural position in that it lost on the merits in the lower court as to declaratory relief and neither the grant nor the refusal of a declaratory judgment, without more, will support a direct appeal to this Court under 28 U.S.C. 1253. Mitchell v. Donovan, 398 U.S. 427 (1970); Gunn v. University Committee, 399 U.S. 383 (1971). Appellee has the avenue of appeal to the Fifth Circuit.
Though not directly in point, Public Service Commission of Utah v. Wycoff Co., supra, lends support to the premise that a federal court has the right, power, and authority to decide and determine the entire controversy and all the issues and questions involved in a case of which it has properly acquired jurisdiction. Accord, Just v. Chambers, 312 U.S. 383 (1941), Florida Lime and Avocado Growers v. Jacobson, 362 U.S. 73 (1960); cf, Hartford Accident & Indemnity Company v. Southern Pacific Company, 273 U.S. 207 (1927); British Transport Commission v. United States, 354 U.S. 129 (1957). In Sterling v. Constantin, 287 U.S. 378 (1932); this Court stated that:
"As the validity of provisions of the state constitution and statutes, if they could be deemed to authorize the action of the Governor, was challenged, the application for injunction was properly heard by three judges. Straton v. St. Louis S. W. R. Co., 282 U.S. 10, 75 L. Ed. 135, 51 S.Ct. 8. The jurisdiction of the District Court so constituted, and of this Court upon appeal, extends to every question involved, whether of state or federal law, and enables the *court to rest its judgment on the decisions of such of the questions as in its opinion effectively dispose of the case." (Omitting authority). 287 U.S. at 393-394.
V. Articles 1191, 1192, 1193, 1194 and 1196 of the Texas Penal Code are not unconstitutional on their face because of overbreath and vagueness
The possible vagueness of state abortion statutes which allow for such a procedure only when the life, or in some cases, health, of the expectant mother is threatened has recently come under judicial scrutiny in a number of instances. One author, in commenting on the decision of the California Supreme Court in People v. Belous, 71 Cal. Rptr. 354, 458 P.2d 194 (1969), cert.denied, 397 U.S. 915 (1970), stated as follows:
"In attempting to define the phrase 'necessary to preserve . . . life . . .' the California Supreme Court first examined the isolated words of the statute, and concluded that no clear meaning of 'necessary' and 'preserve' could be ascertained. It is not surprising that a seriatim examination of the words convinced the court that the phrase was vague. Necessity is a relative concept and must refer to a particular object to be meaningful. Nor can the word 'preserve' be understood out of context. In the abstract, such words are not just vague, they are meaningless. Taken in context, however, these words do have meaning. The object of the necessity in this statute is 'to preserve life.' The term is defined by its object—life." 118 U. Penn. L. Rev. 643, 644 (1970).
There is some inherent vagueness in many homicide laws, such as laws which define justifiable homicide as self-defense, or those which differentiate between first- and second-degree murder. The courts, like society, however, have learned to live with a certain element of inevitable vagueness in all laws and have learned to apply it reasonably. See, Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General Construction Company, 269 U.S. 385 (1926). In order for a statute to be unconstitutionally vague, it must be so vague and lacking in standards so as to compel men of ordinary intelligence to guess as its meaning. Adderley v. Florida, 385 U.S. 39 (1967); Cameron v. Johnson, supra.
A number of three-judge panels have been convened recently to consider the constitutionality of abortion laws which allowed for the performance of such operations only when the life of the mother was threatened by continuance of the pregnancy. While one such court, in dealing with such a law in Wisconsin, did hold the statute to be unconstitutional on other grounds, it said that whatever vagueness existed in the law was not sufficient, of itself. for a declaration of unconstitutionality. Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970). The court observed:
"We have examined the challenged phraseology and are persuaded that it is not indefinite or vague. In our opinion, the word 'necessary' and the expression 'to save the life of the mother' are both reasonably comprehensible in their meaning." 310 F.Supp. at 297.
Accord, Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D. La. 1970).
In United States v. Petrillo, 332 U.S. 1 (1947), this Court said:
"[That] there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense, Robinson v, United States, 324 U.S. 282, 285, 286, 89 L.Ed. 944, 946, 947, 65 S. Ct. 666. It would strain the requirement for certainty in criminal law standards too near the breaking point to say that it was impossible judicially to determine whether a person knew when he was willfully attempting to compel another to hire unneeded employees." (Omitting authority). 332 U.S. at 7-8.
See Jordan v. DeGeorge, 341 U.S. 223 (1951); United States v. Ragen, 314 U.S. 513 (1942); United States v. Wurzback, 280 U.S. 396 (1930).
This court below did not have the advantage of this Court's decision in United States v. Vuitch, 402 U.S. 62 (1971), at the time it handed down its decision in this case. In Vuitch this Court reversed the decision of a district court judge who had found that the District of Columbia abortion law was unconstitutionally vague. The exception clause in Vuitch stated in part "unless the same were done as necessary for the preservation of the mother's life or health".
VI. The Constitution of the United States does not guarantee a woman the right to abort an unborn fetus
A. The interest of marital privacy. One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswold v.Connecticut, 381 U.S. 479 (1965), was found to be violated by Connecticut's statute forbidding the use of contraceptives. This law interfered with the most private aspect of the martial relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom.
Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The new media publicize the events that occur when a family is victimized by criminals though they seek seclusion. Time v, Hill, 385 U.S. 374 (1967). The family may not practice polygamy,
"The right to life is inalienable in our society. . . .
We are not faced here with the necessity of balancing the mother's life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of a single human life to support a remedy in tort." 227 A.2d at 693.
B. Physician-patient relationship. Proponents of abortion-on-demand assert that anti-abortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.
In Jones v. Jones, 208 Misc. 721, 144 N.Y.S.2d 820 spout. 1955), the court stated (concerning an unborn child) as follows:
". . .became a patient of the mother's obstetrician, as well as the mother herself. In so holding, I can think of the infant as a third-party beneficiary of the mother-doctor contract or perhaps a principal for whom the mother acted as agent." 144 N.Y.S.2d at 826.
As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966); Seattle-First National Bank v. Rankin, Wash. 2d 288, 367 P.2d 835 (1962). It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. See Wasmuth v. Allen, 14 N.Y.2d 391, 200 N.E.2d 756, 252 N.Y.S.2d 65 (1964), appeal dismissed, 379 U.S. 11 (1964); Barksy v. Board of Regents, 347 U.S. 442 (1954). Appellant's contentions of intrusion upon physicians-patient relationship are not self-sustaining and must be associated with an d connected to a violation of some basic right.
C. The interests of the woman. Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a "stop and frisk" though it constitutes an intrusion upon his person,
When the "right of privacy" is attached to an "express right" such as the "right of freedom of religion" a very strong constitutional basis exists for upholding the "right"—except when in conflict with the most basic and fundamental of all rights—the "right to life". In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537 (1964), cert. denied, 377 U.S. 985 (1964), the New Jersey Supreme Court was asked to decide just such an issue—a conflict between the mother's privacy and the life of the unborn child. The issue was whether the rights of a child in utero were violated by the pregnant woman's refusal on religious grounds to submit to a blood transfusion necessary preserve the lives of both the mother and the unborn child. The Court's finding favored the right to life of the unborn child over the pregnant woman's freedom of religion and stated:
"The blood transfusions (including transfusions made necessary by the delivery) may be administered if necessary to save her life or the life of the child, as the physician in charge at the time may determine." 201 A.2d at 538.
D. The human-ness of the fetus. The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as "a blob of protoplasm" and feel it has not right to life until it has reached a certain stage of development.
The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy.
"Another medical fallacy that modern obstetrics discards is the idea that the pregnant woman can be treated as a patient alone. No problem in fetal health or disease can any longer be considered in isolation. At the very least two people are involved, the mother and her child." Liley, H.M.I.: Modern Motherhood, Random House, Rev. Ed. 1969.
Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health, (see appellants brief pp. 94-98) thus completely ignoring the developing human being in the mother's womb.
The court has also abandoned that concept in Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696 (1953), wherein the court stated:
"We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.
"The mother's biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe the conditions under which life will not continue." 125 N.Y.S.2d at 697.
It is our task in the next subsections to show how clearly and conclusively modern science—embryology, fetology, genetics, perinatology, all of biology—establishes the humanity of the unborn child. We submit that the data not only shows the constitutionality of the Texas legislature's effort to save the unborn from indiscriminate extermination, but in fact suggests a duty to do so. We submit also that no physician who understands this will argue that the law is vague, uncertain or overbroad for he will understand that the law calls upon him to exercise his art for the benefit of his two patients: mother and child.
From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each parent, is really unlike either.
About seven to nine days after conception, when there are already several hundred cells of the new individual formed, contact with the uterus is made and implantation begins. Blood cells begin at 17 days and a hear as early as 18 days. This embryonic heart which begins as a simple tube starts irregular pulsations at 24 days, which, in about one week, smooth into a rhythmic contraction and expansion.
Commencing at 18 days the developmental emphasis is on the nervous system even though other vital organs, such as the heart, are commencing development at the same time. Such early development is necessary since of the nervous system integrates the action of all other systems. By the end of the 20th day the foundation of the child's brain, spinal cord and entire nervous system will have been established. By the 6th week after conception this system will have developed so well that it is controlling movement of the baby's muscles, even though the woman may not be aware that she is pregnant. By the 33rd day the cerebral cortex, that part of the central nervous system that governs motor activity as well as intellect may be seen.
The baby's eyes begin to form at 19 days. By the end of the first month the foundation of the brain, spinal cord, nerves and sense organs is completely formed. By the 28 days the embryo has the building blocks for 40 pairs of muscles situated from the base of its skull to the lower end of its spinal column. By the end of the first month the child has completed the period of relatively greatest size increase and the greatest physical change of a lifetime. He or she is ten thousand times larger than the fertilized egg and will increase its weight six billion times by birth, having in only the first month gone from the one cell state to millions of cells
Shettles and Rugh describes this first month of development as follows:
"This, then, is the greatest planning period, when out of apparently nothing comes evidence of a well integrated individual, who will form along certain well tried patterns, but who will, in the end, be distinguishable from every other human being virtue of ultra microscopic chromosomal difference." Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra at p. 35.
By the beginning of the second month the unborn child, small as it is, looks distinctly human. Yet, by this time the child's mother is not even aware that she is pregnant.
As Shettles and Rugh state:
"And as for the question, 'when does the embryo become human?' The answer is that is always had human potential, and no other, from the instant the sperm and the egg came together because of its chromosomes." (Emphasis in original). Id at p. 40.
At the end of the first month the child is about 1/4 of an inch in length. At 30 days the primary brain is present and the eyes, ears, and nasal organs have started to form. Although the heart is still incomplete, it is beating regularly and pumping blood cells through a closed vascular system.
Earliest reflexes begin as early as the 42nd day. The male penis begins to form. The child is almost 1/2 inch long and cartilage has begun to develop.
Even at 5 1/2 weeks the fetal heartbeat is essentially similar to that of an adult in general configuration. The energy output is about 20% that of the adult, but the fetal heart is functionally complete and normal by 7 weeks. Shettles and Rugh describe the child at this point of its development as a 1-inch miniature