# Jurisdictional Statement — McCann v. Babbitz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1459%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1970 - **Citation:** 400 U.S. 1 ## Text +. LIBRARY . ~ SUPREME COURT, U. Ss. : \ er IN THE ~ SUPREME curr OF THE UNITED STS — Term, @ 970 ¢ fm s 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 . e "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 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 ° * ’ . . ° \ . ¥ . . 4 : ° . . . “ ’ . as / a ‘ . ‘ . ‘ ; ‘ . J - [ , , ° . « \ Pi ° / é ‘ > - go. ° . F . , \ ° 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 . ¥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 2 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: b. oe : * +° la : *. va a“ . 2 , 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 ; . ‘ y ‘@ 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 8 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.” ) a a 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. * a 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 g -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 aa —_—— 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.”’ . SF piece eal : 8 ~y a . 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 _ 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. é | a o®, 57 ® SS ! | | : | > | iT eke *. «i | | 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 , ~~ > © » @ - ot qe 2 ~ ' ° % : + Sette wr eget GM, Bai cnd . “3 PS ah. REET MA Oe, Supe wt : oN : : a , . , , . s * . ‘ . . , . . °* , ‘ - . . . * ° * J . : . , . . - “° . : *-, e . ? *- ’ . iad 26 ‘ ‘ ‘ . - > , . ’ e = ‘ . ° ' , = * e ‘ e° . ‘ ‘ Ps . - . , F ‘ . * . nd : o ‘ . Ld , ‘ . * id . P ° * , e . ** ms e ’ ‘ ‘ all * — . : a | eS 7a a Ie otes vy , ~ - é , o- . i " . o *- z nll if es . je s . . . .- . > . . J . - , . al . A o . oie + . = é A ” . ** * J e - * * . , * , : . + . Ss ch a 6 . aut . ° , s , - ; ° ¢ . e = * - ’ = ee | / 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 forbidding the use of contraceptives rather than regulating © 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,” thereby making it an offense to perform an abortion at any © _ 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 ~ Appendix Wee, © : * | 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.- ma 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 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1459%3A1. Public record. Not legal advice.