Jurisdictional Statement — McCann v. Babbitz

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~ SUPREME COURT, U. Ss.

: \ er

IN THE

~ SUPREME curr OF THE UNITED STS

— Term, @ 970 ¢

gabe No.

291,

-"E, MICHAEL McCANN, Appellant,;. 9° ss

4 11 ea ae : See 4

_ SIDNEY G. BABBITZ, Appellee.

‘ON APPEAL FROM THE UNITED STATES DISTRICT.

cougt FOR THE EASTERN DISTRICT OF

WISC “veel

JU RISDICTION AL STATEMENT.

y : | ROBERT W. WARREN.

i. ieee ees aa : - Attorney General of. Wisconsin

eo Pee + WILLIAM F. EICH

beat , Assistant Attorney General .

"BE. MICHAEL MCCANN |

= o.: ; : p | . | District ‘Attorney |

} 4 | "Milwaukee County ! P

) "MICHAEL ASH se

‘ ee % Assistant District Attorney—

Attorneys for Appellant

Pitan ee Hat on ee we |

as i and ie : a

- Table of. Contents, :

| i Sea eee UE Sie ethos. S 7c eae

OPINION BEEOW...... Senbephglessoumninuumatict

“JURISDICTION... Hee canis a ee :

QUESTIQNS PRESENTED... Een eee AAO FEO I Ree

STATEMENT OF THE CASE ooo.iy:..5.Seessdeeleeecoc..., 58.

THE QUESTIONS ARE SUBSTANTIAL si nt AR a 9-28 °

APPENDIX A... esse es Bose 5) oe Wc RENE 101-117

APPENDIX B...... SRA ES Sev Rae OORT, 118-120 + *

| | CASES CITED | es oat tere

Aidit v. United, States (1969),° i ais oar

(894 U.S. 165 tsa RI ORTE EY Ne 19°

Allen Vv. State Board of iinsebees (1968)

393 U.S. 44 z

i Application of President ais iicabes of \. : s fey Soto ee Pian ¢

.Georgetown College, Inc. (D.C: Cir., 1964),

‘ 331 F. 2d 1000, cert. den. (1964), : 3

ee ES, Marten Wert laksec data eens eae

ot Y 4 f ¢ (p

_Balbbitz v. McCann {E. D. Wis., 1969), y i

BOB Baap. WD ois tcc: peoerenseebransscSeenasensvip BB.

~ Babbitz v. McCann (E. D. Wis., sida flsata f-*

Ls | 5 a srseinmereininsnnline

‘Barrows v. Jackson (1953), :. ee ra a eus

346 U.S. 249......... rocencedbovastoaadocopsetopcorvesbepliapeocb ponncciflascagesci 17°

Flast v. ocean erin Sohne VA neg

BO2-US, 88 sin csesnoehonccs SUIS SM AME AREER IEN 9.

° ~ -*

ad ‘ . Ge

* | ~ : ue a (2 ge

f <3 li*-

9 *

Gleitman Vv rt iid (1967), ar

| Jenkins v. Mc Kei itheh (1969), ; oy ae a Sit ti

395 U.S- I reseerapstesnnsisneesnnsnsineeseneee NDP iobenndannineesesbeseee oneseelD

Spee aie Union ‘Bidsoc}. Djstrict (1969) oS par 3 ; ‘ “age s

395:U.S. PU cars tsienpitditcegebvslngasstinablejoctsotescecridestyanasntesiocodbNscqesbabvoceet 7

Kwaterski Vv. State Sie Mutu’ Automobile

| Insurance Co. (1967), 34-Wis.2d14, = 6°. Pa

; * "148 N.W. 2d see es ERODE PRS D8 ponnelaeaaj onl sac

Loving \ v. Virginia (1967),

de ad

ks 366 U. S. 420... coves aie Sccccsvsenboovene igo cceces eeveseosces ccvenrecccose Boesece 0 17-18

Paoinks v. ‘Belous (1969), 3

80 Cal. Rptr. 354, 458, P..2d 194.0... ecpeeseesees Bae Nee OO 12,13

/Puhls v. Milwaukee Automobile Insurance PAS a ot

Company (1959), 8 Wis. ad 343, ference, ie ies Na

‘99 N.W. BGS iS nserscosschedestarnees eee tteneg esis eee tan ee 25/

Raleigh Fitkin-Paul Morgan Memorial Hospital

wv. Anderson (1964), 42 N.J. 421, 201 A. 24.537,

P >

avert

cert. den. (1964) 377'U.S. 985........ ae Se a

_ Schmerber v. lifornia ( 1066), Renae : 3

cpa A | fe TE Sis AMROREER "EW GS ROMER, 15°

-, Tileston v. Ullman (1943), @ 3 oe,

BRYON. MM ase coteatocrpedatccopecssaecenes SECA FE TLDS Ma 18,19,20 *

United States v. Raines (1960), te GS rae

i dees, 362 U.S. 17 eeevece Sijresvessbecnsees sitesenteseeaeenesneseseees ospetocddsode foocccovccssvedeces 17 eid Pet

- y . . . 5 ° * ’ . .

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. , \ ° fae” , . ° .

od .

\ é e

“Anno, 16 L. Ed. 2d 1332, TO SE ic ad it

4 fe

" Coniff, “Phe World of the Unborn,” New York Times

~ Magazine (January BDO) aserssscxessecevevenlroqveechibsivoushictonstzs Sathbeie

: ¥

ov .\ Fy “ eS . 111 - ; pe “s ° - e

| Bs eke a Ne ep “ee ‘a PAGE

‘United States v. Vuitch (D. Cc. 1969), mae. . ; a rn

a 305 F. Supp. 1032..... yieceiniaceitatal be ae : Seat megevnssnocesererness SIZ AS

“ Zepeda v. Zepeda (1983): ° Bape re Pisa ee ie

41 Il. App. 2d.240, 190 N:E. 2d POD ois. asorschinineiasintece A

UNITED STATES CONSTITUTIONAL

: "PROVISION. -.°

? > Ninth Amendment sedbiabie RESON Bes $sbetssanntonde 347, 10,11, 12, 14

eyes "Fourteenth Ariiendment indies eC PSOE viniaaobien ae 3

St Ary ers Bane “STATUTES ee

. Wisconsin Statute Ss tc Se | ;

: Pig, | Seems tay Pr ner oR AO] ER eseeee] ,3,5,19

7 beige Nn DEES OT SERIO Oe -: 1,3,5,7,20

< i Fei Ai pinindasecesshceicdnaksiniongss rleretadas pialenentinaaabnadsbiiaaies me

ae | _ UNITED | STATES s STATUTES

z oe, : 28 U.S. C. Section 1253.....:... semi ane we

“ 28 U.S. C. ‘Sectioi 198 nhs iprsntsovnsebecensersnsest saahenchactbeeis Sie

: 28 U.S. C. Section 2101 (b)..... SCOALA OED NTN miele

BU.8.C. Section 2201.2) -ejeuninnibies ea a 25

28 U/S. C Section 2281. eT CEO Or TIE Ae RA 2,5

28 ra S.C. Section DIBA wassinetseeeesersetnstntvereettvernetassrnesset Db

os 28°. S:C. Section 2284,(8) un. ERT cle ys

42 Ww. S. c. Section 1983, 1985 Sriiihndcaiceadhnc i peer.

Le” TEXTS AND OTHER. AUTHORITIES

ye bot ee = ORS Ne ON oe iad He eo

: > . ¥s { , - é ys: » \ # ra ; ;

a | ~ ; 3 \ “? “1! ‘ AGT" . ioe ‘*

is * 5 “» .

“Gordon, “The Inbord Plaintift ela eee: SAN oie

fich. i ais 579 Ba back pub ee oaars Va ee 223 3.24

field, The en Decision le 24°

a M ria; ‘Life, efore Birth (1964):.. e eat Pee al Cae ae ; sch cae

ty Ay osser, ‘The | aw of Torts (rd ed. eat ints Ae mike Eo cgD3,26,

quay, J ustifiable Abortion-Medical and’ Legal isin ' :

raeec a pect 49 Geo: L. ‘J. (1961) 396 Ue Cee:

oe : * +° la

a“ .

, E, MICHAEL McCANN, “Appellant,

.~ Ss

A IN HE

October —, 1969 -

SUPREME COURT OF er STATES

Ne. :

~~ G sono Appeiite 2 a ef LM ge

So “ON APPEAL FROM THE UNITED | STATES pisfiicr

, sash see FOR THE EASTERN DISTRICT OF .-

ee WISCONSIN base a)

snmincrons STATEMENT — e

Appellant ‘aicnels bias the silinens: of a 3 judge. ‘panel

_- of the United States District. Court fdr the Eastern District of —

Wisconsin’ entered on March 5, 1970 and amended on March 11,

- 1970. This judgment devlared unconstitutional secs. 940.04 (1)

and (5) of the Wisconsin Statutes, which define the crime of

abortion, but denied appellee’ s request foy¢in injunction to stop

ne appellant from prosecuting him under, those provisions, ‘Appel-. -

i lant submits this Statement to show. that the Supreme Court -

of the United States, -has jurisdiction of this appeal cand that -

substgntial federal questions are presented. .

“-*

en ae

OPINION BELOW

_ “The opinion of the 3-judge panel-of thé United States Dis-

_ trict Court for the Eastern District of Wisconsin is reported as

Babbitz v. McCann (E.D. Wis., 1970) 310 F. Supp. 293. A copy,

of this opinion is attached to thig Statenient as Exhibit A. An

‘opinion of the Hon. John W. Reynolds, District Judge, grant-

.- ing appellee's request for the convening of a 3-judge court pur-

suant to 24 U.S.C. § 2281 is reported as Babbitz v. McCann .

o-.. 1969), 306 F. Supp. 400.

JURISDICTION

This suit was ‘icoualet ander 24 USC. §. 1343. Appellee

sought a declaratory judgfMent that a statute of the State of 7

- Wisconsin was unconstitutional, pursuant to 28 U.S.C. § 2201,

and also soyght to enjoin the enforcement of the. same state

statute, pursuant to 42 U.S.C. § 1983. A 3-judge district court

was convened pursuant to 28 U.S.C. § §,2281 and 2284.

On March 5, 1970, the judgment of the district court was

entered, On March 11, 1970, the form f the judgment was

amended and an amended judgment ex On April 3, 1970,

a notice of appeal to the Supreme Cotrt of thé United States

was filed.in the district court! " ° a

The-jurisdiction of the Supreme Court to review this de-

‘cision by direct appeal is conferred by 28 USC. § 2101 (b)

. and by 28 US.C.§ 1253, which permits appeals by “any party”

from orders like the one entered in this case. The following de-

cisions sustain the jurisdiction of the Supreme Court to review

—s — — ?

(in the same duté. a precautionary notice of appeal to the Upited —

Stites ¢ ‘wart of Appeals for te Seventh Circuit was also filed in the dimtrit

curt f

ae 4 ‘ 3 ~

the judgment ‘on direct appeal in this case: Allen vu. State’

Board of Elections (1969), 393 U.S. 544 (At 560, fn. 25, by

implication), Kramer v. Union School District ( 1969), 395

U.S. 621 (At 625, by implication).

UNITED STATES CONSTITUTIONAL

* PROVISION INVOLVED ~

“The enumeration. in the Constitutiog, ‘of certain

rights, shall not be construed to deny or disparage.others

retained by the people.” U.S. Const., Amend. IX.

WISCONSIN. STATUTE INVOLVED

940,04 ‘Abortion. “(1). Any person, other than the

mother, who intentionally destroys the life of an unborn

child may be fined not more,than $5,000 or imprisoned not

_more than 3 years orboth, 4

eee

=. .

“eee ® 6) .

(5) This section does not apply to a therapeutic

abortion which:

“| “(a) Is performed by a physician; and

“(b) Is necessary, or is advised by 2 other physicians

as necessary, to save the life of the mother; and

“(c)’ Unless an emergency preVents, is performed

in a licensed maternity hospital. 3

' , (6) In this section ‘unborn child’ means a human

being from the time of conception until it is born dlive.”

aii Wisconsin Statutes, 1967,Chapter 940, pp. 4228, 4229.

‘ ae ; . ‘

‘@ mother?

| 4

QUESTIONS PRESENTED °

1. Does the Ninth Amendment: to the United States

_Constitution (or any other constitutional provision) guarantee

expectant mothérs a right to an abortion at any time before the

unborn child has “quickened”?

Three-judge court said, “Yes.”

. 2. If so, does a’man being prosecuted under a criminal

abortion statute that specifically exempts expectant mothers

have standing to assert the constitutional rights of expectant

mothers so as to obtain a federal declaratory judgment ‘that the

‘statute under which he is being prosecuted i is unconstitutional?

a aA court implicitly said, “Yes.”

WA 3. If so, was it, constitutionally unreasonable for the

tate to limit a woman's right to an abortion by making abor-

tions unlawful except when ‘necessary to preserve the life of

Three-judge court said, “Yes.”

)

STATEMENT OF. THE : CASE

Pie Be E. Michael Po: Hikes ‘is the district attorney of

Milwaukee.County, Wisconsin. Being responsible for enforcing

the criminal laws of that state, he had begun criminal proceed-

ings against appellee i in the County court df Milwaukee County.

In this state court, appellee stood charged with the crime of

abortion, a violation of sec. 940.04 (1) and (5) of fhe Wisconsin

Statutes. The warrant issued against.appellee, which is quoted

in the opinion of the district court attached as Exhibit A, in-

dicates that the complaining witness was the mother of the

“unborn child” whose life defendant allegedly destroyed:

After proceedings had begun.in~state court bat before ~

preliminary examination, appellee commenced ,an action for

“equitable relief” in the United States District Court for the

Eastern District of Wisconsin, naming as defendants (1) ap-

pellant, (2) F. Ryan Duffy, Jr., Judge of the County Court,

Milwaukee County, Wisconsin,’ the magistrate before whom

appellee’s preliminary examination was then pending, and (3)

the City of Milwaukee's Police Department. Alleging a number °

of different constitutional deficiencies in the Wisconsin Statute

, under which he was being prosecuted, appellee asked the court

to enter a temporary restraining order pursuant to 28 USL.

§ 2284 (3); to prevent the defendants “from holding any other

proteedings i in connection with said criminal action” in state

court. Appellee also asked for thé convening of a _3-judge dis-

trict court, pursuant to 28 U.S.C. § § 2281 and 2284, for a “pre-

liminary and permanent injunction restraining the defendants . °

*** from prosecuting” appellee under Wisconsin’s abortion

statute, and for a declaratory judgment that the Wisconsin

Statute involved was unconstitutional. See, 28 U.S.C. § 2201.

6 ae Si:

On December 2, 1969, United States District Court Judge ©

John W. Reynolds entered an opinion and order denying appel-

lee’s request for a temporary restraining order, but granting

his requ t ‘for the convening of a 3-judge court. Babbitz v.

. McCann (E.D. Wis:, 1969), 306 F. Supp. 400. On the same ‘day

the court requested the Chief Judge of the Seventh Circuit to

-namea S-judge gee Id. p. 402. .

Appellant’s answer admitted substantially all the material _ |

factual allegations of appellee’s complaint, but denied most of

his legal claims. Appellant submitted a typewritten, dotble- .

spaced brief of 32 pages to the court on the legal i issues arising age

from appellee's claim. Appellee submitted two briefs in similar

form, one of 41 pages and amother of 25 pages. In addition, six

amicus curiae briefs (were fi _ One of these briefs, ‘which sup- me

ported -appellant’s position, ‘was submitted by the Attorney

General of the State of Wisconsin.

On January, 23, 1970, the 3-judge district court siisaiiieiaiil

in the Federal Building in Milwaukee, Wiscohsin, for a hearing.

- Testimony was taken and oral argument was heard. At the

conclusion of the hearing, the court announced that it would ~

take the matter under advisement. ae ° Cem a

—_—— r >

= _On-March-5,-1970, “the court filed ver curiam opinion’

together with a judgment.: The court's’ opinion concluded:

“The* plaintiff [appellee] ts entitled to a declaratory ,

judgment declaring §§940.04 (1) and (5) violative of the:

- United.States Constitution. The’ plaintiff is not entitled to

an injunction enjoining the defendants [appellant and

others} from prosecuting the _plaintiff-under-§ 5 940.04

(19 and (5).

“ff. 1S SO ORDERED.”

‘ *

The court's épinion notes’ that. “on stipulation of the parties, the

Milwaukee Police Departme nt's motion to: be dismissed as an improper party |

has been granted.” Id. p. 401.

On March 11 } 1970, the form of the judgment was amended to

reflect the fact that the court had denied “the injunctive, re-

lief sought by the plaintiff [appellee].” A

Several features of the court's opinion are worthy of note.

First, the court rejected appellee’s claim that .the chal-

‘lenged statute was unconstitutionally vague. It ruled “that.

§ 940.04(5) sets forth with reasonable elarity and sufficient

tion.”

Second, the court rejected appellee’s contention thatthe

statute denied him the equal protection of the laws eyarenteed

by the Fourteenth Amendment.

Third, citing the Ninth Asséodinent to the United States .

Constitution and “recent. Supreme Court pronouncements re-

garding the ninth amendment,” the court held “that the state

particularity the kind of conduct which will constitute a viola-

* .

of Wisconsin may not, in the manner set forth in § § 940.04(1) _

and (5) Wis. Stats., deprive a“woman of her private decision to

bear her unquickened child. i

Fourth, the court did not ‘cudiiiae its opinion in any sub-

stantial sense either on the testimony it had heard, on the

scientific treatises to which it had been referred, or on philo-

sophical or theological arguments. The court expressly declined _

to-resolve the question “as to when an embryo becomes a child,”

holding that the mother’s rights were superior whether the em-

bryo was “mere protoplasm” ora “human being.” The court also

noted: **

“While problems of over-population, ecology and pol-

lution have been brought to our attention, we deem them

secondary as decisional factors in a judicial resolution of

the issues at hand. So, too, we find it necessary to set aside

~ arguments involving theological and ecclesiastical con-

sideratioris.”’

piece eal :

8 ~y

Fifth, the court expresSly refrained. from ruling on “the

“question of a woman’s aborting a fetus which has already quick-

. Can’ impose no restrictions whatsoever on a mother’s “private .

ened.” The-court also said that “it is permissible for the state -

to require that abortions be conducted by qualified physicians.” ;

. Sixth, the court’s opinion appears to indicate that the state

right,” before her unborn child has quickened, to have it des-

troyéd, as lojig as its destruction is accomplished with medical

supervision and under sanitary conditions. Relevant language

follows: ‘ ,

“#*# The mother’s interests are superior. to ‘that of

an unquickened embryo, whether the embryo is. mere pro-

_toplasm, as as the plaintiff contends, or a heman acres as

“the Wisconsin statute declares.

“There area nuniber of situations in whieh there are.

especially forceful réasons: to’ support a woman’s desire

to reject an embryo. These include a rubella or thalidomide

stant statute does not distinguish these épecial cases,

but in our. opinion, the state does not have a’ compelling

interest even in the normal situation to require a woman

to remain pregnant during the early months following hér

conception.

senoandd j police power of oe state does not ***entitle

it to deny to a woman the basic right reserved to her under

the ninth amendment to decide whether she should carry or

< reject an embryo a has not quickened, .

~ nt " tide 7 tA SS BE AMEND CGRS NES Be OAD IE

‘THE QUESTIONS. ARE SUBSTANTIAL *

- 1. This appeal poses questions, similar to those rhised by

the decision in U. S. uv. Vuiteh (D.C, 1969), 305 F Supp. 1032 - ‘

_ which this court has already agreed to review. U. SU. Vuitch }

. (April 27, 1970), 38 LW 3419, 3421 (No. 1155). ‘Both appeals

challenge rulings by United States District Courts that statutes.

- making it a crime to perform certain kinds’ of abortions are

unconstitutional. Both lower court decisions sprang from cases

-- in which alleged abortionists had hurled a -variety of consti-

_ tutional attacks. on _ statutes making abortion’ a ¢trime.

This appeal, however, raises broader questions of far more

pervasive import than does the appeal in Vuitch. In Vuitch, the

lower court ruled only that the District of Columbia abortion “

statute was unconstitutionally vague. Accordingly, iegislative —

correction of .this constitutional deficiency, if any there be;

could presumably be accomplished merely by substituting a

Jess ambiguous statute for the one found wanting. . ¢

The opinion of the 3-judge court in this case, on ‘the ans :

’ hand, appears to indicdte that the United States Constitution

bars Wisconsin and therefore all Other states from i imposing any

réstrictions.ori abortions or. any ctiminal sanctions on abortion-

ists, at least“as long as the fetus has not “quickened,” andeas:

_ long as its’ destruction is accomplished ‘under medically ap-

‘proved conditions. In other words, if this ruling stands, Wis-,

consin is without power to correct constitutional deficiencies

‘in its statute because it is without power to enact any such

statute in the first place, however delicately such a law might

“balance competing interests and however finely drawn and care-

- fully drafted it might be. Indeed, if this ruling stands, even the |

“«

—

“liberalized” abortion statutes recently ‘enacted by several

states are unconstitutional.

‘2. The decision of the 3-judge district court from which

appellant appeals was squarely based upon a “right of privacy”

or “private right” ‘which the court said was guaranteed by the :

. Ninth Amendment to’ the United States Constitution. With

respect’ to this aspect of the court’ s sem “ey asiced three things a are

noteworthy. oy ade | : con Saaaonm

First, at least two present. United States Supreme Court

Justices, Hon: Hugo R. Black and Hon. Potter Stewart, have

persuasively ntaintained that neither any claimed “right of

: privacy” nor any concept of so-called “private rights,” pro-

. vides any basis whatsoever for a court to strike down a state

statute as nconstitutional. - See, Griswold v. C@nrnecticut

11965), "381 U.S. 479, 507- 27 (Black, J., dissenting opinion)

27-34 (Stewart, J., dissenting opintio A third, Hon. J@fn M.,

, also apparently does not recognize the existence of any.

such ri nts 4 in 1 those express terms, although he does say that’ be

violate “basic ‘values. ‘implicit in the concept of ordered lib:

erty. fiz Griswold, supra, p: 500 (Harlan, J., dissenting opinion).

Second: although this ‘court has: rightly paid due respect />_

to the value and to the importante of privacy,, marriage, and

~ family, it has never: recognized a definable constitutionally pro-

tected right of personal privacy, as such, nor has it recognized . ;

any generalized concept of a “private right,” (whatever that .

‘may mean). Griswold, supra, which is by all odds the leading *

‘ case on ie. Subject ane oa scsi one arguably to ‘the contrary ,

Loving ¢ Vit, ginia (1967), 388 U.S. 1, ars: other recent Supreme

Court case ‘relie id upon by the court to: establish ‘its point, was expfess

“grounded ypon the Fourteenth Amendment's guarantee of the equal proteé-

tion of the laws. Loving! pointing to “invidious racial discriminations,” Jd

~- p. 12, struc k down.a’ state statute forbidding (nte -rracial martiages.

\ + ‘ j

? .

, remain on, the Supreme Court, ~atussd té join the opinion ‘of the’

court and did not recognize the existence, ds such, of any kind

_ of constitutionally protected “right of privacy” whatsoever. .

The rerhaining six Justices said only that laws operating Sans

b. directly on an intimate relation of husband and wife, that-is,”

laws that regulate the intimacies of the marriage relationship, |

offend a right of marital privacy. Justice White said that con-

stitutional protection extended to a right “to be frée of re

lati f the intimacies of the marriage relationship?

(emphasis added) (concurring opinion), pp. eaiee Justices

Goldberg. and Brennan and Chief Justice Warrén repeatedly

refer toa constitutionally protected “right of marital privacy,”

Id: (emphasis added) PP. 486, 487, 495, 497 (thrice), a “right

of privacy in marriage. ” Id. (emphasis added), pp. 491,495, an |

“area of privacy-that of the marital relation and the. marital

_~ home,” Id. (emphasis aches), p. 495, the “privacy of all married

| coypies) ’ Id. (emphasis added), p. 498, ‘apd the “right of pri- /

: -vacy in in the’ marital relation.” Id. (emphasis added), p. 499. In |

hardly less explicit fashion, the opinion of the court (joined by.

oJ ustices Douglas, Clark, Goldberg, Brerinan, and Chief-Justice-

Warren), relied upon a right of privacy in the marital relation- a

ship. Id, pp./480-86, especially pp. 482, 485-86. (Since Griswold,

the Supreme Court has not seen fit to extend, as such, ‘this

“right of. marital privacy.’ ’ Thus, no member of the Supreme

Court has yet acknowledged the existence of constitutional

protected, broad; generalized rights: of..persona] privacy oO,

rights of individual. privacy or “private rights.” It was pre

cisely on the existence of such claimed rights that the opinion of

the fourt below was predicated.

/ Third, in their con¢urring opinion in Griswold, three

Iueticel (one of. whom, Hon. William J. Brennan, remains on

the Court) contended: that the Ninth Amendment i in and of it-_.

self provided a sufficient basis for a court-to strike down avlaw —

~~ .

12.

- as unconstitutional. However, the opinion of the court in that.

‘case was not grounded primarily on the Ninth Amendment. As

of teday, neither this _court nor: any passing majority of its

~” members has ever said that the” Ninth Amendment, standing -

_alone, affords -a vehicle for federal court intervention in the .

“affairs of states. It was solely on the Ninth Amendment that

the decision ‘of the S-judge court below was based, |

3. “If there is some " constitutionally pybtecteiy’ “right “>

privacy,’ it is hard to see how or why it extends to'a mother’s

desire to destroy her unborn child before-its quickening. Never-

i theless, the 3-judge district court in thiy ‘case did ‘hold, in a

- ‘statement ‘central to its decision,. that a mother’s rights. of *

_ privacy (also described i in the opinjon as “private rights” and 4]

as “inherently personal right {s}!” ) include “the basic right re- :

served to her under the Ninth Amendment to decide ‘whether

» She sh Nid carry or. reject an embryo which has: not: yet quick- .

A \ : ~

‘is safe to say that this ig a stariling’ proposition. It

i would: probably have been at least as startling to. the framers of

the United States Constitution, as it in fact was to Wisconsin’ S-

‘lawmakers who had no idéa they were defying the Constitution.

by paying no heéd to vociferous efforts to water down or abolish |

Wiséonsin’s criminal abortion statute. It rests, moregver, upon |

a thin or illusory foundation i in legal ‘precedent. Indeed, it ap-

pears to be supported directlyonly- -by dicta in. two recent cases,

EN | Anited States * v. Vuitch (D.C., 1969), 305 F.Supp. 1032 and

Seabee

People’ v. Belous A209), 80 Cal. Rptr. 354, 458 P.2d 194 i -3

decision). LIES io { : oi ,

In Vuitch, the court remarked that a woman’s “right of

_ Privacy *** may ‘well-include the right to remove.an unwanted ©

“child at least in £arly stages of pregnancy.” Id. p- 1082. : No.

Beh ie oN Ce x e. ; ‘ ie

' The ha, opinion appwars to indic ate thi it this claime d* ‘right” is

substantially absolute.

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neg ees | .

authority is cited for the piecise proposition’ involved. As i in-

dicated previously, Tis court has ai eee agreed to” review the

Vuitch decisions : ) —s

In Belous, the majority ste as. follows:

= “The fundamental right of the woman to choose /

_whetfier to. bear. ¢hildren follows from the Supreme Court’

and this Court’s ‘repeated , acknowledgement of a ‘ri

of privacy’ or ‘liberty’ in: ‘matters related to marri

family and:sex. That such a right is not enumera

either the ‘United States ‘or- California Constitutiéns is -

no impediment to the existence of the right. * 80 Cal. Rptr.

at 359-60 (citations omitted).

_ Again, legal authority i is lacking. .

Apparently, the proposition that a constitutional “right of

‘privacy’ (assuming, arguendo, that one exists) e tails a right:

to destroy one’s unquickened fetus must rest oh, reasoning, |

rather than authority. But of reasoning on the question in

point, there is precious little. Neither Vuitch nor Belous do more

than assume and assert the proposition at iésue. ‘Nor is the

opinion of the court in this case any more illuminating.

x None of’ the three opinions, of course, cites any provisions

',in the text of the Constitution.as establishing a right to destroy

one’s yunquickened children. None of the,three opinions adverts

_ to any kind of historical source that’ might serve to, suggest

that the Constitution’s framers. had eeeunaes to guarantee such

a right. ; f

Less understandably, none of these opinions does anything

to pour content into_the notion of “private rights" or “rights”

. of privacy. None defines “private rights” or “rights cf privacy.”

‘None so much as suggests a basis, other host sheer assertion,

_for determining what “‘rights” are somponents of the ‘ ‘right of

privacy” and, which ones are not, -or for determining .which ,

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rights are and which are not “privat right” ae panacea

Ninth Aniendment.

None of the opinions, pitting tho ona Tetons the cots

on appeal in this case, does any more than associate “private

rights” and “rights of privacy” in some vague sense with mar- .

riage, home, sex, and the family. Marriage, home, sex, and the

family are all concepts that in their usual application have

reference to relationships between two.or morepgople, typically,

husband and wife and perhaps their children. Such concepts

were all the 3-judge district court in this case could invoke to

support its finding of a so-calied “private right” of one member

of the family unit to destroy another potential member of the

family unit, without the consent of other members or for that

matter without even having to consult with, for example, the

father of the unborn child she herself, unilaterally, elects to des-

troy. The co court's reasoning, appellant submits, will not hold

water.

It may be that “mtivate saan’ and “rights of panacea

are notions 6o nebulous and elusive t they simply are, not

susceptible to rational application. But if that*be the case, :

__ they serve as nothing more than verbal camouflage for the fact

that judges are imposing their own notions of social policy on

a populace whose elected representatives have persistently

taken opposite positions on the same questions of social policy.

The Supreme Court, appellant submits, should be astute to pre-

vent such a result, so contrary to the best tradition of our con-

stitutionally established representative democracy.

If there is any meaning at all to the central proposition of

the decision of appeal in this case, that is, that a pregnant

woman has a Ninth Amendment right “to decide whether she

should carry or pejéct-an embryo which has not yet quickened,”

it must mean one of two things. Either it means (1) that she has

a “private right” of personal freedom which, permits her to de-

cide whether to sustain and support, or whether to eliminate, 2

those of her dependents. whom she, alone, may decide. are

“defective” hard to care for, or aevey £ simply unwanted;

or it means (2) that she has some kind ‘of right to bodily in-

tegrity which permits her and her alone to decide under all cir-

cumstances whéther to yield or retain substances contained

within her own body. ;

_ Ifthe 3-judge court below intended to propound the former

‘proposition, (1), then it enshrined in our laws a terrifying

principle that would equally justify infanticide, euthanasia, and

for that matter, plain, simple, old-fashioned murder, as long as

the victims were dependent upon their slayer and unable to shift _

for themselves. Moreover, the same principle would appear to

render unconstitutional: most laws relating to famil liga-

tions, including those forbidding abandonment, noid pare

child neglect, ete. ‘

it shar ashi Nala taniiiadl. Nidhi ‘eink, Yeo teins Seles

sition, (2), then it at least propounded a rhetorically attractive

idea. The problem with this idea is that it has been impliedly

rejected by courts, including the Supreme Court, with a remark-

able degree of consistency. If there were a “right of bodily integ-

rity” which entailed a right to decide. whether to yield or retairr

bodily substances, then for example, a 1966 decision of the -

Supreme Court, Schmerber v. California (1966),384 U.S. 757,

would have to be overruled. In Schmerber, the Supreme Court

sanctioned as against Numerous constitutional attacks the

forcible extraction of, blood from a drunken driving suspect.

Other courts have sanctioned police supervised forcible rectal

examinations, extraction of urine, and administration of em-_

etics on suspects. See, Annotation, 16 L.Ed. 2d 1332, 1338-43. «

At least two courts have ordered unwilling women members of

Jehovah's Witnesses to undergo blood transfusions despite

their religious and constitutional objections. Application of

President and Directors of Georgetown College, Inc. (DC.

Cir., 1964), 331 F. 2d 1000, cert. den. (1964), 377 US. 978;

Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson.

(1964), 42 N.J. 421, 201 A. 2d 537, cert. den. (1964), 377 U.S. ©

985. In the New Jersey case, the woman was pregnant, and the

~ hospital had asked the court for permission to administer

transfusions if “such transfusions should be necessary to save

_her life and the life of the unborn child.” Releigh Fitkin-Paul,

supra, 201 A. 2d 537, 537. The court permitted “such trans-

fusions as may be necessary to preserve the lives of te mother

and the child.” Id. p. 54. The court noted:

“We are satisfied that the unborn child is entitled to

the law's protection and that an appropriate order should

be made to insure blodd transfusions to the mother in the

event that they are necessary in the opinion of the phy-

sician in charge at the time.

“We have no difficulty in so deciding with respect

to an infant child. The more difficult question is whether

an adult may be compelled to submit to such medical

procedures ***.” Id. §. 538. ~

Appellant submits that there is no basis in either reason

or authority for the central proposition of the lower court's:

ruling in this case. Not only should the judgment itself be

corrected. but the curious and disturbing gloss put on the Con-

stitutg@n’ of the United States by the district court's opinion

in this case should be promptly and cleanly erased

4. Still another troubling facet‘of the district court's

. decision inthis case was that it was exclusively onwhat

were asserted to be the “private rights” of pregnant women or

“mothers,” No womah, pregnant or otherwise, was evér a paryy

to this lawsuit. In particular, appellee, Sidney G. Babbitz, was

nefther pregnant, nor a woman. He is male and, allegedly, an

Pe my il SE ON An Elta a,

17°

abortionist. In the court below, he acted, successfully, as the

champion of rights obviously not his own, that is, the “rights”

‘of expectant mothers to destroy their unborn children before

quickening.

/. Appellant submits that appellee lacked standing to assert

_ the claimed rights of pregnant women a and that the eaten,

court should have so ruled.

The Supreme Court has said, “Ordinarily, one may not

' claim. standing in this Court to vindicate the constitutional

rights of some third. part}. g Barrows v. Jackson (1953), 346

US. 249, 255.

_ This rule is not absolute. See, Barrows, supra, pp. 254-60.

Nevertheless, in the ‘absence of “weighty countervailing pol-

icies,” the rule of federal courts is “that a litigant may only

assért his own constitutional rights or. immunities.” United

States v. Raines (1960); 2 U.S. 17, 22. (Brennan, J.). No-

“weighty countervailing policies” were apparent in the case

that prompted the decision of the court below nor were any even

adverted to in the court’s opinion.

McGowan v. Maryland (1961), 366 U.S. 420, nicely illus- .

trates the application of this rule. Appellants in that case were

employees of a department store who had been convicted and

fined for selling goods on Sunday in violation of Maryland’ s

Sunday closing laws.’As to one of their contentions, the Su- °

ane Court reasoned and ruled as follows:

“First, nicolas contend here that the statutes

*** violate the Constitutional) guarantee of freedom of

religi®n in that the statutes effect is to prohibit the free

’ exercise of religion in contravention of the First Amend-

ment, made applicable to States hy the Fourteenth Amend-.

ment. But appellants allege only economic injury to them-

selves; they do not aNege any infringement of their own

religious freedoms due to Sunday closing. In fact, the

record is silent as to what appéllants’ religious beliefs are.

Since the-general rule is that ‘a litigant may only assert

-* his own constitutional rights and immunities,’ we hold |

‘ that appellants have no standing to raise this contention.

*** Those persons whose religious rights are allegedly im-

paired by the statutes are not without effective ways to

-assert these rights. Appellants present.no weighty counter-

_ vailing policies here to cause an exception to our general

principles.” McGowan, angre. pp. 429-30 (peten, C.J.)

(citations omitted). ;

Appellant submits that it is impossible to distinguish

McGowan, supra, from the present case. Even more closely ih

point, however, is Tileston v. Ullman-(1943), 318 US. 44.

In Tileston, a physician (like appellee here) had sought a

declatatory. judgment (like appellee here) that state statutes

prohibiting the use of contraceptives and the giving of assist-

ance or counsel in their use were unconstitutional. The claim

put in isste by the physician (like the one put ‘in issue by the

district court’s opinion in this case) was not.that the phy-

sician’s rights, but that his patients’ rights, specifically their

rights to life, were violated by the statutory provisions at issue.

In a unanimous per curiam decision, this court held as

follows: | .

“We are of the opinion that the proceedings in the

state courts present no constitutional question which ap-

pellant has standing to assert. The sole constitutional

_attack upon the statutes under the Fourteenth Amend- .

ment is confined to their deprivation of life--obviously

‘not appellant’s but his patients’. There is no. allegation,

or proof that appellant’s life is in danger. His patients are

* not parties to this. proceeding and there is no basis on

which we can say that he has standing to secure an ad-

judication of his patients’ constitutional right to life,

which they do not assert in their own behalf.” Tileston,

supra, p. 46. .

19 a eee

Tileston ae good law.” It hss been cited with approval

in Flast v. Cohen (1968), 392 U.S. 83, 95, Alderman-v: United

States (1969), 394 U.S. 165, 174, and Jenkins v. McKeithen ~

(1969), 395 U.S. 411, 421. Its central principle, that rights may

not be vicariously aeserted, was expressly reaffirmed in 1969. _

See, Alderman, supra, p. 174. It is on all fours with the case on oo

appeal and, as far as 5 appellant can say, dictates reversal ofthe .

——— ere AO ee eins +.

decision below. -

Two ironic facets of this case render doubly plain and égre-

gious the district court’s error in letting. appellee, an alleged

abortionist, assert successfully the — “rights” of poten-

tial mothers.

First, appellee stands charged with a ‘violation: of sec.

940.04 (1) of the Wisconsin Statutes which provides in relevant

part: “Any person, other than the mother, who interitionally

destroys the life of an unborn child may be [punished] (empha-

sis added).”’ It was precisely this subsection of the Wisconsin

Statutes (coupled with another) that the 3-judge district court

held to be unconstitutional. As is obvious, the parties whose

been extensively discussed above, does not say otherwise. In Griswold,-the

court did not overrule, but distinguished -Tileston by pointing out (1) that

the Griswold appellants had already been convicted and punished for a crime, __

whereas the Tileston-appeNagtg had been Victims only of an adverse declara-

tory judgment, .and (2) that the Griswold appellants had béen convicted as

aiders and abettors of the very same crime (“use” of contraceptives) which,

they claimed, violated their patients’ rights of marital privacy, whereas the

Tileston appellants cpuld claim no such close “nexus.” ,

* In this case, appellant has not yet been convicted or punished for a

crime, byt has only tbtained a favorable declaratory judgment. Moreover,

not only is appellantein this case not being prosecuted as aider and abettor

. of some crime which can only be directly committed by those (potential

* mothers) whose rights he asserts, but the crime*with which he stands charg-

ed, and the precise statutory subsection ‘found to be unconstitutional by the

district court expressly exempts potential mothers from prosecution. ‘Sec.

940.04 (1)Wis. Stats. reads: “Any person, other than the mother. who .

interitionally destroys the life of an unborn Child may be [punished}.” (Em-

phasis added) y, J

Thus, this case falls outside the ae of Griswold and squarely

‘within the rule established in Tiléston.

rights were vicariously asserted (potential mothers)’ are ex-

pressly exempted from prosecution under. the very statutory

provisions held unconstitutional by the court below.

Second, the mother of the unborn child whom appellant._

was charged with destroying and. the only potential mother

whose, clairntied ‘ ‘rights” were visibly at stake in this lawsuit

not only was not a party’to the action, but was and remains the

chief complaining witness against appellee in the state court.

It would be ironic indeed if the decision below were let

stand to cast doubt upon the abortion laws of most states. If

the Supreme Court does not think that summary reversal in —

light of Tileston is warranted, then surely this case at least de-

serves plenary consideration..

5. Netther the 3-judge district court-in-this-case, nor ap:

" pellee himself, ever suggested that either “rights of privacy”: ‘or

“private rights,” whatever they may be, were absolute. Both

acknowledged that at very least such rights could be out-

weighed by some state interest or constellation of interests that

could be considered “compelling” or “subordinating.” On this

undefstanding, both ‘parties submitted a vast quantity of in-

formation and argument to the court suggesting-that Wisconsin

did or-did not have some legitimate interest in limiting abor-

tions to “therapeutic” ones as defined by sec. 940. 04 (5) of ae

Wisconsin Statutes. = —— C

Generally speaking, the 3-judge court below appears to —

have ignored most of this information. It observed, for example,

“While problems of over-population, ecology and pol-

lution have been brought to our attention, we deem the

secondary as décisional factors in a judicial resoluti

the issues-at hand. So, too, we find it necessary toyset aside

arguments involving theological and ecclesiastical consi-

-derations.” ;

SOON bbe

What the court chose to “set aside,” without elaborating .

upon its reasons for doing so, was by far the most important

justification suggested by appellant for the, existence of Wis-

consin’s criminal abortion statute, namely, the state’s interest

in protecting, indeed, its obligation to protect, the unborn —

child.© The humanistic motives. behind Wisconsin’s policy. in

this respect are in part reflectey by the words of subsection (6)

of its criminal abortion statute, sec. 940.04, Wis.- Stats.: “In

this section ‘unborn child’ means a human being from the time ,

of conception until it is born alive.” (emphasis added)

To appellant’ s chief contention, which was supported by "a

great volume of legal, medical; and: biologica! evidence, the e

court’s total response was three, short, conclusory sentences: . —

_ Appellant] _urgefs}] thatthe state’s_interest-in_pro-———

- tecting the embryo is a sufficient basis to sustain the sta-

tute. Upon a balancing of’the relevant interests, we hold

_ that a woman’s right to refuse to cafry an embryo during

, » the months of pregnancy may not be invaded by the state

without a more compelling public necessity than is reflec-

ted in/the statute in question. As measured against the

‘claimd¢d ‘rights’ of an embryo of four months or less, we

hold that the mother’s right transcends. that of such an.

embryo.” ,

To this, the ‘court added a deeply disturbing and | Secor

dant note:- : = 3 a

“We are invited to resolve the philosophical question, °

raised in some of the amicus curiae briefs, as to when an

embryo becomes a child. For the purposes of this decision,

we think it is sufficient to conclude that the mother’s in-

terests are superior to that of an unquickened embryo,

whether the embryo is mere protoplasm, as [appellee] con-

tends, or a human being, as the Wisconsin Statute de-

clares.” (emphasis added)

Obviously, there are other arguably defensible justifications. In this ©

. Statement only the primary one will be elaborated upon. 7

. : a

Y ‘ ave Se P -—-

However charitably) or generously it may be construed, -

this language leads inestapably to two Congiustons: -

‘ First, the court below was not prepared to, “give any weight

; whatopavel to any of the legal or biological data supporting the NX

staté’s claimed interest m protecting the unborn. Even had the

. fetus been shown.to be in all respects “a. fruman: being” the court.

* was prepared” to Say that this “human being” could be exter-.

_ minated by its mother at her pleasure for reasons of conven-

‘ience or fancy and that Wisconsin was constitutionally: power- °

‘®. less to forbid or redress this particular kind of human destruc- 3

tion. . hosel A

Second, the court was prepared to say (and, in effect, did

say) that someone (the mother) had absolute power of life and

_ death, subject to no legal restrictions whatsoever, over a hu-

awe. being (so long ‘as the destruction of this” human being, of

course, was hygienically accomplished).

It may be that the court's language was careless or im-

precise. It may be that its language represented: an effort to

avoid, or to disguise its resolution of,-a troublesome question.

‘ _ Orit may be that its language was deliberately clfosen and care- f

fully drafted. Im any event,.a conclusion so hastily drawn anda:

precedent so far-reaching and dangerous. should be given ple- ,

ary consideration by this court. Bes Ps

Whether the court's “balancing of interests” “was “correct,” es

oe of course, i another question, one which, in large part, is be- “

yond the scope of this Statement. Nevertheless, some prelimi-

bs ele nary obseryations are in order. Perhaps an appropriate start-

ing point is an, ‘offhand observation in‘the opinion of the dis-

- griet court in this case, namely, “the state does not have a com-

pelling interest even in the normal situation to require a woman °

to remdin pr egnant during the early months following her con- = *

e ception.’ * (emphasis added) Ce

5: Me 7

cine and law, that i is, that the infant en ventre sa mere hie no

separate being. Implicit also is blindness to theprofound and.

+ @ ape act of. the state’ s‘moral and constitutional obliga-

which, i in context, the court below could ad wap envi-

describe as “requir{ing] a woman to remain pregnant.”

_, $o fundamental and obvious is the state’s “interest. in

prétecting life that discussion is superfluous. Less obvious,

: haps, but equally fundamental i is the fact that the embryo

from the moment ofits conception, is a magnificently endowed

entity, possessing the mystery of life, a life different from that i

of its mother.’ The older theory, which dppears to have /been ;

_tacitly. resurrected \by the court’ below, i.e., that the infant en

ventre sa mere is no*more than a part.of its mother, has long ©

since been rejected. by both science and law. As oné recent com-

. mentator remarked, “‘To Religion and Medicine, life begins at

_“eonception Biv Gordon, “The Unborn Plaintiff,” 63 Mich. L.

x Rev. 579, 581. ; the standard treatise on torts says, “(Mledi- .

cal authority has recognized long sif¢e that the child is in exis- x

. tence from the moment of conception, and for many purposes its

existence is recognized by the law.” Prosser, The Law of Torts

(3rd .ed.), p. 355. Both Gordon, supra, passim and Prosser,

supra, pp. 354-57, indicate that the law’s unmistakable, rapid

trend has been toward extending the 2 amine accorded to the -

unborn child.

The trend of the law has followed i increasing medical knowl-

° | _ edge. It is known, for example, that the conceptus possesses. at

| | the moment of its formation the so-called genetic code, the

- transmitter of all the potentialities which’ make men human,

something not present in either spermatozoon or’ ovum. Gott-

San : leib, Developmental Genetics (1966), p. 17. MG he \ ;

‘ e, an . ; . 24

An article i in ose Neu’ York Times ‘Miipaetise of January § 8,

NG described the process of conceptivn as follows:

) “72 :

“At last, ‘one-and- only-one sperm penetrates the eN\\

. Written: ein es ai pen bie 4

_shell- ;

egg. At that moment, conception takes place, and, scien-,

tists generally* agree, a new, life. begins--silent, secret, un-

known.” Coniff, “The World of the. nborn,” New York

Times ener wennety: 8, 1967), p. 41.”

“The basic fact is simple: ‘Life be ins, not at birth,

but at conception. ;

in the sense that he ‘is composed of living tissue, but also

in the sense that from the moment of conception, things _ i

~~ happen to to him, *** he reacts. In spite of his newness and his

‘appearance, he is a living, striving human being from the

very beginning.” Montagu, Life Before Birth (1964), p. 2.

It is true, of course, that an unborn child is weak, parasitic, ;

anddependent upon its mother for survival. But so too is a new- ‘

born child. Their helplessness is precisely what entitles them to-

the ‘special protection of the law, not — justifies their sum-

mary extinction. Moreover,

“The child may be parasitic and dein but it is

-a functioning unit, an independent life. A child-is not, in

the words of Mr. Justice Holmes, ‘a Part of its ‘mother.’

However visceral may be its temporary residence, however .

‘dependent it-may be before birth--and for some years.after _

. birth--it'is a living being, with its separate growth and de-

———.——-velopment, with its separate T nervous system and blood Cite,

culation, with its own skeleton and. musculature, its brain: °

at ofthe!

¢:

and heart and vital organs.’ ’ Granfield, The Abortion De-

_ cision (1969), p..25.

: ¢.

"Finally®: in ‘the backgroun | of this entire inquiry, lurks

this oo J

“How can the: ae atdtingnints. the. day 46 day_devel-- +

5 opment of life? If there is human life, proved by subsequent

7 birth, then that human life has the same rights at concep-

tion as it has.at any time thereafter. There cannot be abso-

and ovum to all, to embryo, to fetus, to child.” Zepeda uv.

Zepeda (1963), 41 ell. App. 2d 240, 249-50, 190 N.E. 2d :

849, 858 0 :

Appellant iutimite that the\ abovi is neither metaphysi-

cal gobbledygook nor a verbal smokescr yen designed to camou-

flage the illegality of,an archaic statute.

fabric of modern law and déeply imbedded\i \in legal tradition are

the notions dismissed in so cavalier a fashion by the court be-

_ low, that is, that the unborn/child i is entitled to the state’s pro-

tection, and, a fortiori, t Va state “interest” exists in ‘protec-

ting it agaiist. arbitrary and intentional extinction. ‘Virtually

every state impose severe’ criminal penalties on performers of

’ abortions in all but a limited number. of ' ‘circumstances. See

~ Quay, “Justifiable. Abortion-- Medical and Legal Foundations,”

, 49 Geo. L. J. (1961) 396, Appendix I, pp. 447-520. Present day .

laws are well rooted in Anglo-American legal traditions and

find parallels in other legal systems. See generally, Quay, ee

- gupra: The unborn child possesses property rights. It can in-

~herit by will. and bk by intestacy. It can be beneficiary of a trust.

Through a guardian ad litem, it can assert its rights i in ‘courts of

-law. It can*recover for i injuries suffered before its birth. E.g., . .

Puhls v. Milwaukee Automobile Insurance ‘Company (4959), 8

Wis. 2d 343, 356, 99 N. W. 2d 163. Indeed, at least “nine juris- |

dictions *** have allowed recovery even though the injury occur-

_red during the, early weeks of pregnancy, when the child was —

neither viable nor quick.” (emphasis added). Prosser, supra, p.

356. In Wisconsin, under certain circumstances, an action lies.

_\ lutes in the minute to minute progress of life from sperm.

flected in the entire -

o--e —_— ; -

; 26 °

for its wrongful death. Kwaterski v. State Farm Mutual Auto-

mobile Insurance Co..(1987), 34 Wis. 2d 14, 148N. W. 2d 107.

As suggested earlier in this brief, its right to life is under some

circumstances entitled to be preferred even to its mother's

right to the free exercise of her religion. See, Raleigh Fitkin-

Paul Memorial Hospital v. Anderson (1964), 42 N. J, 421, 201

A. 2d 537. It has, in ghort; always been the subject of the law's

coigern. See generally, Gordon, supra; —— and Pros-

ser, supra.

.. None of the unborn child's merely derivative righte, like

its property rights or its right not to be injured by another's

negligence, are at issue in this lawsuit. At issue instead is a

right that is in every sense fundamental and basic, the right to

life. At insue is the preciousness of human life and whether and

to wh@t extent the state can afford it protection while it exists

in ite least developed and most helpless form.

It is not unreasonable, appellant submits, and therefore,

a fortiori, not unconstitutional, for a state to say, as has Wis.

consin, that human life; however embtyonic, may not be snuffed

out unless another human life will otherwise be lost. Although

_ the matter is rendered somewhat uncertain by hard-to-find

statutpry exceptions and by judicial interpretations, it would

appear that most other states say exactly the same thing. See, .

Quay, supra, Appendix-l, pp. 447-520, “[I}n ail but a minimal~

number of states, by express statutory provision, preservation

of the life of the mother is made the only excuse for abortion,”

Gleitman v. Coagrove (1967), 49 N. J. 22, 227 A. 2d 689, 703

(concurring opinion); Quay, supra, Appendix |, pp. 447-520.

Thus, the opinion of the three judges below as to the rea:

sonableness of Wisconsin's abortion statute runs counter to

legislative opinions held nearly everywhere in the United States

that, surely, are of great weight. Wisconsin's “interest” in the

protection of human life is, to. utilize the phrase of the trial

*» court, “compelling.” Its obligation to protect h in its

—prenatal form has long been recognized. Its “interest” in

respect should not casually be swept under the table. The exis-

_ tence and extent of its “obligation” should not be left in ques-

tion without a full and fair hearing in the Supreme Court of the. .

* United States.’ be

The Supreme Court should look long and hard at any deci-

sion that purports to find in the United States Constitution an

entirely unfettered “right” of anyone, be it government.or an

individual, to destroy a “human being,” be he actual or poten-

tial, “defective,” “desirable,” powerless or strong. Appellant

28. .- et ;

submits that thé questions presented by this appeal are sub.

stantial and that they are of public importance.

Wi Respectfully submitted, .

a ‘| ROBERT W. WARREN .

Attorney ‘General of Wisconsin ‘

~ WILLIAM F. EICH

Assistant Attorney General

’ - EE. MICHAEL McCANN

District Attorney

. Milwaukee County

MICHAEL ASH eae oe

Assistant District Attorney.

Attorneys for Appellant

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° Appendix

APPENDIX “A”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

SIDNEY G. BABBITZ, MD..

'¥. Plaintiff,

E.: MICHAEL McCANN, District |

Attorney of Milwaukee County,

F. RYAN DUFFY, JR., Judge of the

..County Court, Milwaukee County,

‘Defendants.

No. —

Before KERNER, Circuit Judge, and REYNOLDS and GOR-

DON, District Judges .

PER CURIAM |

”

The plaintiff is a physician who challenges .the consti-

’ tutionality of the Wisconsin abortion statute. He seeks an in-

junction restraining the defendants from enforcing a part of

Wis. Stat. $940.04 and a judgment sateen it unconstitu-

tional.

A enpueney restraining order was denied by the order of a

single-judge district court, and the instant three-judge district

court was convened to consider the other issues presented. We

hold that portions of the statute are constitutionally invalid,

but we decline to enjoin the pending staté prosecution of the

plaintiff.

The plaintiff i is being prosecuted by the district attorney

of Milwaukee county for allegedly having performed an

. Appendix

, | 102 ae Trae eee

abortion in violation of §940.04, Wis. Stats. The statute pro-

vides in part as follows:

‘Al) Any person, other ines the mother, who intention-

lly destroys the life of an unborn child may be fined not .

more than $5,000 or imprisoned not more than 3 years or -

both.

“(2) any person, dther than the mother, who does eitNer of

+ the following may be imprisoned not more than 15 years:

“(a) Intentionally destroys the life of an unborn quick

child; or | “.

* * *

“(5) This section does not apply toa therapeutic abortion

which: » 9

“(als performed by a physician; and. _. -

“(b)Is necessary, or is advised by 2 other physicians

as necessary, to save the life of the mother; and

“(c) Unless an emergency prevents; is performed in a

licensed maternity hospital.

“(6) In this section ‘unborn child’ means a edie lashes

from the time of conception until it is born alive.”

The state warrant issued against pee Babbitz reads as fol-

lows: ;

“That the above named Defendant on the 6th day of Sep-

tember, 1969, in the County of Milwaukee, Wisconsin, did

feloniously destroy the life of an unborn child of one, [wo-

man}, said offense occurring at.number 231 West Wiscon-

sin Avenue, Milwaukee, Wisconsin, sal abortion not being

advised by two other physicians as necessary to, save the

life of [woman], the mother of said child, said information

being obtained by sworn testimony of [woman ]before the

Honorable Christ T. Seraphim, County Judge, acting as

magistrate.” = - :

CII CSRS e

eee Appendix

Ah | ‘ne |

- The complaint asserts that there is jurisdiction in this

court pursuant to 28 U.S.C. §1343, 42 U.S.C. §1983. and 28

US LC. §§2201 ang 2202; we agree wre such position. .

The complaint charges that the Wisconsin statute _is-un-

constitutional for violating the first and fourteenth end-

ments of the United States Constitution and for abridging the

mother’s right of privacy. Dr. Babbitz has not been charged

with having destroyed an unborn child which was “quick”, and

therefore subsections (2) and (2)(a) of the’statute’ quoted. above |

_ are not applicable in the instant case. There is no allegation

that the state officials. are — in bad faith in prosecuting

Dr. Babbitz. _ :

I. ABSTENTION

“The plaintiff | has alleged a deprivation of tights secured by

-the Constitution, and serious federal questions are raised here

concerning the constitutionality of certain portions of the Wis-

consin abortion statute. Since the complaint seeks injunctive

’ relief and since the statute in question has state-wide operation,

_ the designation of a three-judge court was appropriate under —

28 U. SC. §2281.

The request for an injunction raises a threshhold problem

_ of abstention. Congress, in 28 U.S.C. §2283, has penton a strong

aiid of abstention, as follows:

“Stay of State court proceedings. A court of the United

States may not grant an injunction to stay proceedings

in a State court except as expressly authorized by Act of

Congress, or where necessary in aid of its jurisdiction, or

to protect-or effectuate its judgments.”

Except for those rather recent cases which have noted ex -

_ ceptions to the scope of §2283, the federal courts have generally

given the statute literal application. In addition, the policy of

abstention has found expression in a long history of judge-made

' a

at i a dap Appendix

red - 104 ae

rules of federal judicial forebearance. Mr. Justice Frankfurter’s .

expressions in Railroad Commission of Texas v. Pullman Co.,

' 312 U.S.-496, 500-1 (1941), typify these court-fashioned rules of

abstention:

“Few public interests have a higher claim upon the dis-

cretion of a federal chancellor than the avoidance of need-

less friction with state policies, whether the policy relates

to the enforcement of the criminal law, Fenner v. Boykin,

271 U.S. 240; Spielman Motor Co. v. Dodge, 295 U.S. 89;

or the.administration of a specialized scheme for liqui-

dating embarrassed business.enterprises, Pennsylvania v.

‘, Williams, 294 U.S. 176; or the final authority of a state .

_ Court to interpret-doubtful regulatory laws of ‘the state,

Gilchrist v. Interborough Co., 279 U:S. 159; ef. Hawks v.

Hamill, 288-U.S. 52, 61. These cases reflect a doctrine of

abstention appropriate to our federal system whereby the —

federal courts, ‘exercising a wise discretion,’ restrain their

authority because of “scrupulous regard for the rightful in-

dependence of the state governments’ and for the smooth

working; of the federal] judiciary:”

The abstention policy has also played a role in the develop-

ment of the law of removal of pending state cases to the federal :

courts. In City of Greenwood v. Peacock, 384 U.S. 808, 828

. (1966), the Supreme Court observed: on Sh

the vindication of:the defendant’s hoderél rights i is left

to the state courts except inéhe rare situations where it

can be clearly predicted by rea of the operation of a

pervasive and explicit state or federal law that those rights

will inevitably be,denied by the very act ‘of bringing the

defendant to trial in the state court.”

The approach to abstention which this policy requires has

been followed by many federal courts without any general ex-

ception being recognized for cases arising under 42 U.S.C. |

§1983. Boyle v. Landry, — F.2d — (7th Cir. February 5, 1970);

Goss v. Illinois, 312 F.2d 257, 249 (7th Cir. 1963); Smith v.

Appendix ;

105

; Village of banana: 241: F.2d:856 (7th Cir. 1957); Baines v. . City

of Danville, 337 F.2d 579 (4th Cir. 1964); Vick v. Schiro, 296 .

~ F. Supp. 173 (E.D. La. 1969). Cf. Cooper v. Hutchinson, 184

F.2d 119 (3rd Cir. 1950). ;

One of the reasons sinderiyitig this practice of refusing to

enjoin pending state prosecutions is particularly apposite -to-

‘the case at bar. In Stefanelli v. Minard, 342 U.S. 117 (1951),.

a federal court was petitioned to enjoin the use of illegally

seized evidence in a state crimin4l trial. Denying relief, the

Supreme Court said, at page 123:

“The consequences of exercising the equitable power here -

: invoked are not the concern of a merely doctrinaire alert-

ness to protect the proper sphere of the States in enforcing

their criminal law. If we were to sanction this intervention,

we would expose every State criminal prosecution to in-—

supportable disruption. Every question: of procedural due

process of law -- with its far-flung and undefined range --:

would invite a flanking movement against the system of

‘ State courts by resort to the federal forum, with review if

need be to this psn to determine the issue. Asserted un-

constitutionality in the.impaneling and selection of the

grand and petit juries, in the failure to appoint counsel,

in the admission of a confession, in the creation of an un-

fair trial atmosphere, in the misconduct of the trial court -

all would provide ready opportunities, which conscientious

counsel might be bound to employ, to subvert the orderly,

effective prosecution | of local crime’in local courts.”

Notwithstanding the impressive authority which care

_ bar our enjoining the prosecution of Dr. Babbitz, he presses us

‘ to issue such an injunction. Perhaps he draws comfort from the,

fact that’the United States. Supreme Court has om two separate

occasions expressly reserved ruling on the question whether

‘the Civil Rights’ Act suspends the anti-injunction provisions’

of §2283. Cameron v. Johnson, 390 USS. 611, 614, n. 3 (1968);

Dombrowski v. Pfister, 380 U.S. 479, 484, n»2 (1965),

Py midi, Were -

oe Appendix

106

Also, the plaintiff may seniuay find support ae his posi-

tion from expressions ‘by several of the justices of the United

, States Supreme Court, For example, in. Gorun v. ‘Fall; 393 US.

398, 399 (1969), four members of thé? Court referred to “our

recent decisions saying over and over again that a federal claim

. in a-federal court should be decided«by the federal court and not

relegated to a state tribunal.”

Finally, it may seem simmons anomalous that a court

may find a state statute unconstitutional and yet deny an in-

' junction against its enforcement by the state. In effect, such a.

‘ruling might protect all persons from prosecution except the

very man who has persuaded us of the statute’s unconstitu-

tionality. } é

Notwithstanding these sxniaiioie: we do not believe that

the circumstances of this case justify an exception to the oft-

repeated and strong policy of federal abstention, especially in

*aCriminal case. The forebearance required “under §2283'is not

lifted in the case at bar by the teachings of Dombrowski v.

Pfister, 380 U.S. 479 (1965). ‘We have already noted that the

" case at bar does. not involve a bad faith enforcement of the

abortion statute. In addition, we doubt that the prosecution of

_ Dr. Babbitz has resulted in a chilling of his first amendment

rights: A first amendment right i is more than a personal right; it

is also a, public right. When such a right is impinged, the gen-

eral public is hurt, and the effective functioning -of our free

society ‘is encumbered. This may explain why §2283 ‘iis not

plaintiff's claim tat his prosecution under the state abortion

statute dampened his first amendment rights.

< Although. the. subject of abortion is fraught with highly

émotional pressures, we do not find here any “special circum-

stances’ as discussed in Cameron vu. Johnson, 390 US. 611,818 ;

2S see

604, 608-9 (1967): : So ow

Supreme sour that. it was Congressional policy to

: "Appendix

| ae

168), which would entitle Dr. Babbitz. to injunctive action.

. Weakley, 226, F.2d 399 (9th Cir. 1956); 80 Harv. L. Rev.

Vac

We believe we must: apply the. standard established in

Douglas v. City of Jeanette, 319 U.S. 157, 163 (1943): there the .

leave to the state courts the trial of stat€Xcriminal cases, ‘and sp

that such proceedings should be enjoined only in exceptional - .

_ circumstances. We do not regard t this as an-exceptional case,

and Dr. Babbitz is not entitled to injunctive relief. In the event

that the state persists in ‘the prosecution of Dr. Babbitz, we ___

have no réason to doubt that the state courts of Wisconsin will

fully vindicate his federal constitutional rights. See Zwicker v.

Boll; 270 F: Supp. 131 (W.D. Wis. 1967), aff'd 391. ‘U.S. 353

(1968); Soglin Vv. ‘Kauffman, 286 *. fae 5a 851 (W.D. Wis.

ra 1968). en f

‘court is obliged to weigh separately the issue of declaratory re-"

Notwithstanding our. denial of injunctive relief, a federal

. Machesky v. Bizzell, 414 F2d 283 (5th Cir. 1969); Romero

je ¥

lief. in Zwickler v. Koota, 389 U.S. 241, 254 (1967), the Supreme

Court held that the federal district court must decide the

- “merits of the declaratory request irrespective of its conclusion:

" understand that the denial of injunctive relief precludes us

as to the propriety of the issuance of the injunction”. Although’

it was ‘the application for an injunction which triggered the ap-

pointment of this three-judge ‘court under §2281, we do ‘not

__- from resolving the declaratory judgment application.

. VAGUENESS

The plaintiff urges that §940. 04(5), Wis. Stats., is vague -

_and nebulous upon its face. That sub- section, quoted above, ex-

: “cepts a therapeutic abortion when it is performed under speci-

fied terms. We have examined the challenged phraseology and

’ . °

®,

Appendix

_ 108

’ 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.

- The United States Supreme Court has ruled that a criminal — -

statute must be definite enough to acquaint'those who are sub- .

ject to it with the conduct which will render thent liable to its

penalties. Lanzetia v. New Jersey, 306 US. 451, 453 (1939),

Connally v. General Construction Co., 268 US. 385, 991 (1926).

_ See also Unconstitutional Uncertainty~An ‘Appraisal; 40 .

Cornell Law Quarterly, 195, 196 (1955)... —-

We believe that §940.045) sets forth with reasonable

. clarity and sufficient particularity the kind of conduet which

: will constitute a violation. Jordan v. De George, 341 US. 223

(1951), United States v. Raken, 314 US. 513 (1942). In United

States wv: Wurzbach, 280 US. 396, 399 (1930), Mr. Justice

Holmes stated: .

“Whenever the law draws a line there will be cases very

near each other on opposite sides. Thaprecise course of

line may be uncertain, but no one can come near it «

knowing that he does so, if he thinks, and if he does so it is

familiar to the criminal law to make him take the risk.

In People v. Belous, 80 Cal. Rptr. 354, 458 P2d 194

(1969), the California court found that the words “necessary

to preserve her life” in that state's abortion statute were un-

constitutionally vague While the Wisconsin statute uses slight-

ly different language (“necessary to save”), we doubt that the

“distinction between the words usedin the two statutes is signifi-

cant, However, we de not share the view of the majority in

Pr ar a cca raha laced 5

its meaning.

Slightly different language was before the court in United

States wv. Vuiteh, a8 LW. 2275 (1D. D.C. November 1, 1969).-

Appendix

108

which invalidated an abortion law. That statute contained

the following expression: “necessary for the preservation of

the mother's life or health”. The court concluded that the word

“health” was vague both in interpretation and in practice. That

precine problem is not presented under the terms of the Wis

consin statute. ,

Our reading of the Wisconsin statute persuades us that it

meets the test set forth hy the United States Supreme Court in

Connally, cited above, at page 391:

“And a statute which either forbids or requires the doing

. of an act in terms,so vague that men of common intelli-

' gence must necessarily guess at ita meaning and differ as

to its application, wWietates the feet ensyaiinicet Cag poagtes

of law.”

‘The pleintity aleo chasSedthet there te confubieh ia eub-

section (6), which provides that the words “unborn child” mean

“a human being fromthe time of conception until it is born

_ alive”. The plaintiff may have Medical or even practical justi-

fication for his disagreement with the correctness of this statu-

tory definition of an unborn child, but he fails in his effort to

convince us that the Wisconsin pe

inite in ite choice of language.

Ill. EQUAL PROTECTION OF THE LAWS

The plaintiff contends that the statute denies to him eqyal

protection of the laws as guaranteed by the fourteenth amend.

ment. It is urged that medical facilities are not constant

throughout the state and that a doctor in a rural area in Wis

» congin might be justified in a “necessary” abortion,

whereas a doctor treating the same Patient in"Milwaukee would

be unwarranted in performing theJabortion because of

availability ip Milwaukee of medical faci

Appendix '

110

We find more -cogency in AT Oa. a wealthy

woman, but not 4 poor one, is able, upon demand, to secure a

safe and legal abortion in Japan or some other locale in which

abortion is permitted. We take judicial notice of the fact that

there are a number of places throughout the world where legal

abortions are available. We have also considered the argument

that an affluent woman, unlike the poor one, may enjoy a long-

_ standing, personal relationship with a well-paid physician, who

might more likely be willing or able to persuade his fellow doc-

tors to authorize a therapeutic abortion. We are reluctant to

equate these types of inequality with a denial of a protected

right under the fourteenth amendment. We know of no analo-

gous situation which goes as far as the plaintiff would have us:

go in applying the fourteenth amendment to the’case at bar.

| There is presently pending in the United States Supreme

Court a chal fo the practice of imposing a jail term upon a

defendant who is unable to pay an assessed fine. Williams v.

Illinois, *1089, probable jurisdiction: noted January 19, 1969,

38 L.W. 3267, being an from People v. Williams, 41 Ul.

2d 511, 244 NE (1969). We cannot anticipate that the °

decision in the Williams case will buttress the plaintiff's con-

tention that there is a denial of equal protection of the laws

implicit within the Wisconsin abortion statute.

IV. INVASION OF PRIVATE RIGHTS

The ninth amendment to the United States Constitution

“The enyffieration in the Constitation, of certain rights,

shall not be construed to deny or disparage others retained

by the people.” ;

An examination of recent Supreme Court pronouncements

regarding the ninth amendmeht compels our conclusion that

‘Ge state of Wisconsin may not. in the manner set forth in

we oe Oe ce f

Appendix

~ Ul

§§940.04(b) and (5), Wis. Stats., deprive a woman of her

private decision whether to bear her unquickened child.

- In terms of the Wisconsin statute, we do not purport to

decide the question of a woman’s aborting a fetus which has

. already*quickened. We received into evidence the view of a,

fi ee that a fetus normally becomes quick at about four

and a half months after conception. Dorland’s Illustrated Medi-

cal Dictionary (24th ed. 1965) defines “quick” as “Pregnant and

. able to feel the fetal movements.” “Quickening” is defined as

“The first recognizable movements of the fetus in utero, ap-

pearing usually from the sixteenth to the eighteenth week of

pregnancy.” The plaintiff is being prosecuted under §§940.04 .

(1) and (5); he is not being prosecuted under those portions of

§940.04 which relate to the abortion of a quickened child;

‘therefore, the validity of such provisions are beyond the scope

of this opinion. |

” While problems of over-population, ecology and pollution

have been brought to our attention, we deem them secondary

as decisional factors in a judicial resolution of the issues at

hand. So, too, we find it necessary to set aside arguments in-

volving theological and ecclesiastical considerations.

Obviously, there is no topic more closely interwoven with

the intimacy of the home and marriage than that which relates

to the conception and bearing of. progeny. Recent court cases

have considered the sanctity of the right to privacy in home,

sex and marriage; however, the concept of private rights, with

which the state may not interfere in the absence of a compelling

state interest, is one of long standing.

_ As long ago as 1891, in Union Pacific Railway Co. v. Bots-

ford, 141 US. 250, 251 (1891), the court said:

“No right is held more sacred, or is more carefully ares

by the common law, than the right of every individual to

Appendix

° 112

the possession and control of his own person, free from all

restraint ox interference of others, unless. by clear and un-

questionablé authority of law. As well said by Judge

Cooley, “The right to one’s person may be said to be a right

“of complete immunity: to be let alone.’ ”

In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), th® United

States Supreme Court held that the private right “to marry,

establish a home and ‘bring up children” was protected under

the fourteenth amendment as an essential liberty. In Prince v.

Massachusetts, 321 U.S. 158, 166 (1944), the court spoke of

the “private realm of family life which the state cannot.enter”.

In Loving v. Virginia, 388 U.S. 1 (1967), there was a chal-

lenge to the constitutionality of a state statute which pur-

ported to restrict marriages solely on the basis of race. While

the Supreme Court observed, at page 7, that “marriage is a

social relation suBject to the State’s police power,” the court

held, at page 12:

“The Fourteenth Amendment requires that the freedom of

choice to marry not be restricted by invidious racial dis-

criminations. Under our ConStitution, the freedom to mar-

ry, or not marry, a person of another race resides with the

individual and cannot be infringed by the State.”

- + See also Skinner v. Oklahoma, 316 U.S. 535 (1942); Far-

rington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Society of

Sisters, 268 U.S. 510 (1925). See, generally, Warren and Bran-

deis, “The Right to Privacy,” 4 Harv. Rev. 193 (1890).

Recent decisions have asserted a judicial application of the

ninth amendment to the matter of privacy in marital relations

andcontraveption. In Griswold v. Connecticut, 381 U.S. 479

(1965), the. court struck down the Connecticut statute which

forbade the use of contraceptives. In s6 doing, the Court noted

that the Bill of Rights. contains both specific and penurhbral

guarantees which protect an individual from governmental

Appendix

113

invasion of the sanctity of his home and the privacies of his (

life-In the words of the Court, at page 485, many decisions by ~

the Supreme Court “bear witness that the right of privacy

which presses for recognition here is a legitimate one.” Three

of the Justices in a concurring opinion stated, at page 491:

“To hold that a right so basic and fundamental and so

deep-rooted in our seciety as the right of privacy in mar-

riage may be infringed because that right is not guaranteed

in so many words by the first eight amendments to the

, Constitution is to ignore the Ninth Amendment and ‘to

give it no effect whatsoever.” °

In People v. Belous, 80 Cal. Rptr. 354, 458 P.2d 194 (1969).

the California supreme court invalidated a state statute which

made it illegal to perform an abortion on a woman unless it was

-mepeagary to preserve her life. The ‘court said, at page 199:

“The fandamental 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.”

The Belous court pointed out; at page 200, that although

this protected area of privacy is not explicitly stated in the

Constitution, it is a fundamental liberty that is implicit in the

penumbrae of the Bill of Rights, and is onpported, by analogy,

in many past decisions. aa

In United States v. Vuitch, 38 L.W. 2275, (D. D.C. Novem- -

ber 10, 1969), the court further observed:

“There han been, moreover, 4n increasing indication in

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.”

‘Appendix

> ii

Although no final decision has as yet been rendered, a

three-judge court has been convened in New York in a case in-

volving the. same issues under consideration here. Hall v.

- Lefkowitz, Wd F. Supp. 1030 (S.D.N.Y., 1969). -

In 2 Loyola University, ‘Law Review 1, 8 (April, 1969),

former Supreme Court Justice Tom C. Clark concluded from a

‘study of Griswold and its predecessor cases:

“The result of these decisions is the sicaliiiaies of the con-

cept 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 in-

dividual 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.”

It is clear that in order to justify eae of such

fundamental private rights, the state must show a compelling

need. In Bates v. —_ Rock, 361 U.S. 516, 524 (1960), the

Court stated: Shee

“Where there is a significant encroachment upgn personal

liberty, the State may prevail only upon showmg a sub- .

‘

ordinating interest which is compelling.” oy -

The Supreme Court, in Griswold, said, at page 485:

“The present case, then, concerns a’ relationship lying

within the zone of privacy created by several fundamental

3 constitutional guarantees. And it concerns a law which, in

their manufacture or sale, seéks to~achieve its goals by

' mearis haying a maximum destructive impact upon that

jrelationship. Such a law cannot stand in light of the famil-

- iar principle, so often applied by this Court, that a ‘govern-

‘mental purpose to control or prevent activities constitu-

tionally subject to state regulation may not be achieved by |

06 OS Se LM OT es at IG

Appendix ; .

115

| means which sweep unnecessarily broadly and thereby in-

vade the area of protected freedoms.’ “NAACP v. Alabama,

377 U.S. 288, 307.” ‘

A comparable viewpoint was set forth by the California

Supréme Court i in Belous, at page 200, where that court said:

"The critical issue is not whether such rights exist, but.

whether the state has a compelling interest in the regula-

tion of a subject ynee is within the police powers of the -

state... .” .

Similarly, in the case at bar, we must decide wtisthis the

state of Wisconsin has a sufficiently compelling interest to

justify the broad restriction on a woman’s inherently: personal

right that is contained in §§940 04(1) and (5), Wis. Stats.

The defendants urge that the state’s interest in protect-

ing the embryo is a sufficient basis to sustain the statute.

Upon a balancing of the relevant interests, we hold that a .

woman’s right to.refuse to carry an embryo during the early

months of pregnancy may not be invaded by the state without a

more compelling public necessity than is reflected in the statute

in question. When measured-against the claimed “rights” of an

embryo.of four months or less, we hold that the mother’s right

transcends that of such an embryo. ~

‘We also. find no compelling state interest in a need to pro-

tect the mother’s life. At common law, abortion was not a crime

unless the mother was quick with child. People v. Belous, supra,

at 198. This position was reflected in the original Wisconsin

abortion statute, Wis. R. S. 1849, c. 133, §§ 10 and 11, enacted

_ in 1849, which made abortion a punishable offense only if per-

formed upon an unborn quick child. However, in 1858 the abor-

tion statute was.revised by: elimination: of the word ‘ “quick,”

_ time during pregnancy. This change reflected an interest in

protecting the life of the mother, for in 1858 any surgical

Appendix |

116

procedure done inside the body was extremely dangerous. To-—

day, many types of surgery, including abortion in the first -

trimester, are safe and routinely employed medical techniques.

People v. Belous, supra, at 200. Thus,. the result of this court’s

decision that a mother has the right to determine whether to

carry or reject an embryo that has not quickened is a return to

the common law definition of abortion; this is not a position

. without well-established precedent in the common law.

We are persuaded that a medical, abortion during early

pregnancy. is not inherently dangerous to the mother. Nor do

i we find a compelling state interest in connection with the dis-

couragement of non-marital sexual intercourse. The statute

involved does not purport to distinguish between married and .

unmarried women. al |

_ We are. invited to resolve..the philosophical question, |

raised in some of the amicus curiae briefs7 as to when an em-

bryo .becomes a child. For the purposes of this decision, we

think it is sufficient to conclude that the mother’s interests are

superior to that of an unquickened erabryo, whether the embryo .

is mere protoplasm, as the plaintiff contends, or a human being,

as the Wisconsin statute declarés. .

There are a number of situations in which there are es-

pecially forceful reasons to support a ‘woman’s desire to reject

an embryo. These include a rubella or thalidomide pregnancy

and one stemming from either repe or incest. The instant

statute does not distinguish these special cases, but in our

opinion, the state does not have a compelling interest even in

the normal ptuation to require a womar#@to remain pregnant

during the early months following her conception.

‘ Under its police power, the state can regulate certain as-

pects of abortion. Thus, it is permissible for the state to re-

quire that abortions be conducted by qualified physicians.

- ° Appendix . ~

| | 117 °

The ‘isda power of the state does not, however, entitle it to |

deny to a woman the basic right reserved to her under the ninth

"” amendment to decide whether she should carry or reject an em-

bryo which has not yet quickened. The challenged sections of -

. the present Wisconsin statute suffer from an infirmity of fatal

overbreadth. cathe

”, CON CLUSION

The plaintiff is entitled to a icheiiiees judgment de-

claring §§940.04(1) and (5) violative of- the Uni States

Constitution. The plaintiff is not entitled to-an injunction en-

joining the defendants or their successors in office, from prose-

cuting the plaintiff under §§940. 04(1) and (5).

‘IT IS sO ORDERED >

rf ~

| 118 ara :

r APPENDIX “B” .

Judgment on Dectatens by the Caurt

CIV 32 (7- 63)

NS ms UNITED STATES ‘DISTRICT COURT’

ef a ae | for the =." f

bs : a

Biss easel Of Wis®onsin_

7. Le sie, - eH, e

_ SIDNEY G. BABBITZ, M. D)) eee

us. AC . . ve

E. MICHAEL McCANN, Distriet Attorriey of

Milwaukee County, F. RYAN ‘DUFFY, . oa

- Judge of the County Court,” aoe

Milwaukee County | | ; NaS Pee

Civil Action File No. 69-C- 548 : 7

‘ li

JUDGMENT —

This action came on for xxx (hearing) ford the Court,

Honorable Otto Kerner, John W. Reynolds, Myron L. Gordon,

United States District Judge, presiding, and the i issues having

been duly xxxx —_— anda decision having been duly ren-

dered, ° oe

{ae j is Ordered ‘and Adjudged that Sitions 940. 04(1) a

(5) of Wisconsin Statutes ae violative of the United tee

Constitution. . iy - ) me

; S. Bist, = East of Wis.

L. : FILED a

A hs Mar 5 - 1970 |

| fe | at yclock____M ” eee |

VY RUTH W. LA FAVE, Clerk

Po Dated at Milwaukee, Wise nsin, this 5th day ‘of March, 1970.

— \La Fave *

pos lerk of Court

gee “yo

. Civil Action

- JUDGMENT

‘

Big POOR i Sia A EDD LA TIER ASN REDE Te CLUE EE GI

<5 an es Ae Appendix

age ee aS eee |

. Jd ilenmans on Decision by the Court

CIV 32 (7-63) |

‘UNITED STATES. DISTRICT COURT .

‘forthe “~~. oe

einer Eastern District of Wisconsin

. SIDNEY G, BABBITZ, M. D.-

E. MICHAEL McCANN; District Attorney of

. Milwaukee. County, F.. RYAN DUFFY, OR.,

Judge of the County Court,

Milwaukee County

No. 69-C-548 2 ee

AMENDED -

This action came on for x x (hearing) before the Court,

Honorable Otto Kerner, John W- Reynolds, My@@n L. Gordon,

‘United States. District J udge, presiding, and the issues having |

been duly xxxx (heard) and a decision having been duly ren-

dered,

It is ‘Ordered and ‘Aijudéed that Séctions 940. 04(1) and.

(5) of. Wisconsin Statutes are violative of the United. States ;

Constitution, and it is further ordered that the injunctive re-

lief sought by the plaintiff be and hereby is ‘denied:

U: S. Dist. Court East of Wis.

| 7 FILED

Pep ha tS” Mar 111970 *

het at__“_o’clock____M '

RUTH W.-LA FAVE, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.