Opposition Brief — Myers v. Lewis

Supreme Court brief1988

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(a) 88-683

IN THE

Supreme Court of the Unit

OCTOBER TERM 1988

GENE MYERS, Guardian Ad Litem,

Petitioner,

—_vV—

SHAWN KATHLEEN LEwIs,

Respondent.

CARLTON JAMES LEwIs,

Petitioner,

_V.—

SHAWN KATHLEEN LEwIs,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN COURT OF APPEALS

RESPONDENT’S BRIEF IN OPPOSITION

DAWN JOHNSEN JANET BENSHOOF

National Abortion Rights Counsel of Record

Action League LYNN PALTROW

1101 14th Street, NW ! RACHAEL PINE

Washington, D.C. 20005 American Civil Liberties Union

(202) 371-0779 Reproductive Freedom Project

132 West 43 Street

New York, New York 10036

(212) 944-9800

LINDA L. PYLYPIW

SHELLEY R. SPIVACK

720 Church Street

Flint, Michigan 48502-1172

(313) 234-0980

Counsel for Respondent

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether this Court should refuse to decide, on the facts

of this case, if Roe v. Wade and its progeny held that only cer-

tain medically necessary abortions are constitutionally pro-

tected in the first trimester, given that the facts concerning the

medical necessity of Ms. Lewis’ abortion are in dispute, and no

Michigan statute attempts so to restrict womens’ freedom to

choose abortion.

2. Whether this Court should overrule Roe v. Wade and its

fifteen years of decisions reaffirming Roe, in this case.

TABLE OF CONTENTS

PAGE

COUNTERSTATEMENT OF QUESTIONS

PRESENTED ....2sacsce eeu tbe eeueeeneewensyes i

TABLE OF AUTHORITERS. sciccavstesatateteuuses iv

COUNTERSTATEMENT OF JURISDICTION ....... 1

COUNTERSTATEMENT OF THE CASE ........... 3

REASONS WHY THE PETITIONS SHOULD BE

DENIED .....cscsancnssue eee ee aeene ne eeae ee 10

I. THIS COURT’S PRIOR’ DECISIONS

UPHOLDING WOMEN’S REPRODUCTIVE

FREEDOM ARE DISPOSITIVE AND WERE

PROPERLY APPLIED BY THE MICHIGAN

COURT OF APPEALS « bécccedenescusecasss ae

A. A Woman’s Constitutional Right To Decide

Whether To Terminate Her Pregnancy Is

Not Contingent Upon A Showing That The

Abortion Is Medically Necessary.......... 11

II. PETITIONERS’ ‘“‘QUESTIONS PRESENT-

ED’’ ARE NOT PROPERLY RAISED BY

THE FACTS OF THIS CASE BECAUSE NO

DETERMINATION WAS MADE BY MS.

LEWIS’ ATTENDING PHYSICIAN THAT

AN ABORTION WAS NOT MEDICALLY

NECESSARY ....s<0000sde0 supe ee eeneaven 15

ill

PAGE

II. AS THIS COURT’S DECISIONS MAKE

CLEAR, THE DECISION OF THE MICHI-

GAN COURT OF APPEALS DOES NOT

CONFLICT WITH ANY COMPELLING

INTEREST ASSERTED BY THE STATE OF

MICHIGAN OR ANY FEDERAL RIGHT

ASSERTED BY PETITIONERS............. 16

A. A Man Does Not Have A Constitutional

Right To Interfere With A Woman’s Deci-

sion To Have An Abortion .............. 16

1. The Fourteenth Amendment Affords

Individuals Protection Only From State

Action, And Does Not Apply to Wholly

Private Acts Such As A Woman Choos-

Re A EE dcccweceeadeccesece 18

Re Re BP ND cw ccc cacsacan 20

b. Rights Derived From Marriage..... 21

c. The Right To Raise One’s Children 23

B. The State of Michigan Has Not Asserted A

Compelling Interest In Fetal Life In Order

To Deprive Women Of Their Right To

Pr rere rere eee es 23

IV. THE MICHIGAN COURT OF APPEALS

DECISION IS CONSISTENT WITH THE

DECISIONS OF EVERY APPELLATE

COURT TO CONSIDER THE ISSUE........ 26

V. NO REASON EXISTS FOR THIS COURT TO

TAKE THE EXTRAORDINARY STEP OF

RECONSIDERING ITS WELL-ESTAB-

LISHED AND UNBROKEN PRECEDENT

RECOGNIZING A WOMAN’S RIGHT TO

END AN UNWANTED PREGNANCY ...... 27

SEE cc dsada de 6enasSéshdwacednedscasess 30

TABLE OF AUTHORITIES

Cases PAGE

Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972),

vacated and remanded on other grounds, 410 U.S. 951

CERF aR énda Kasra nals done haakas Cera eae hae ewe 1

Akron Center for Reproductive Health v. City of Akron,

No. C78-155A (N.D. Ohio May 16, 1978) (order deny-

ing motion to intervene in relevant part) (subsequent

istOry GH MRETES CORNICE) 2. nc ccc cs csccccsccsccs 3

Allen v. Wright, 468 U.S. 737 (1984). ........... 00 0e 2

Association of Data Processing Serv. Orgs. v. Camp,

ie eT) Perr errr ererer rr errors 2

Bame ¥.. COR Gee Wis SE RTD oo hob ec kndasaciases 29

Bellotti v. Baird, 428 U.S. 132 (1976) ................ 29

Bellotti v. Baird, 443 U.S. 622 (1979).............. 17, 29-30

Brady v. Doe, 598 S.W.2d 338 (Tex. Civ. App. 1980),

Cort. Ganied, S49 U.S. TOS) CIGRE) can ices csccscceas 2

Byrn v. New York City Health & Hosps. Corp.,

31 N.Y.2d 194, 286 N.E.2d 887 (1972), appeal dis-

ge RE a rere rer re er 2

Caban v. Mohammed, 441 U.S. 380 (1979) ........... 19

Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) .. 21-22

City of Akron v. Akron Center for Reproductive Health,

WEA Wis SONNE 3 66 ca deuen tidavaxens 12, 14, 23, 29-30

Civic Awareness of Am., Ltd. v. Richardson, 387 F.

Supp. 1086 (E.D. Wis. 1975), aff’d, 532 F.2d 756 (7th

Cir.), cert. denied, 429 U.S. 829 (1976)............. 2

PAGE

Civil Rights Cases, 169 U.5.\2 CIBES). vic ccccaacscnss 19

Colautti v. Franklin, 439 U.S. 379 (1979)............. 29

Coleman v. Coleman, 57 Md. App. 755,

Pee ey Pith ts, Serer rere reer erry ey TT 27

Conn v. Conn, 526 N.E.2d 958 (Ind. 1988), applications

for stay denied, No. A-88-55 (U.S. July 22, 1988) (let-

ter from the Clerk of the Court), petition for cert.

filed, 57 U.S.L.W. 3186 (U.S. Sept. 23, 1988) (No. 88-

| SSE a CAG APY Pby Par ge Sytem ned a Ure 27

Connecticut v. Menillo, 423 U.S. 9 (1975) ............ 13, 29

Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970) (three-

judge court), modified, 410 U.S. 179 (1973) ....... passim

Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128 (1974) ....20, 27

Jane Doe v. John Smith, No. 84A01-8804-CV-00112,

slin op. (lad. Ct. App. OCect. 24, TREE). viscccsccacss 27

John Doe v. Jane Smith, 527 N.E.2d 177 (Ind. 1988),

applications for stay denied, 108 S. Ct. 2136 (1988)

(Stevens, J., in chambers), No. A-88-55 (U.S. July 22,

1988) (White, J.) (letter from Clerk of the Court)....19, 27

Eisenstadt v. Baird, 405 U.S. 438 (1972).............. 21

Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 22

Griswold v. Connecticut, 381 U.S. 479 (1965) ..19, 21, 22, 28

H.L. v. Matheson, 450 U.S. 398 (1981)............... ' 30

Harman v. Daniels, 525 F. Supp. 798 (W.D. Va. 1981). 2

Harris v. McRae, 448 U.S. 297 (1980)................ 26, 30

Jones v. Smith, 278 So. 2d 339 (Fla. App. 1973), cert.

denied, 415 U.S. 956 GBM «c0cescacsacaeriasensues 21, 27

PAGE

Katz v. United States, 389 U.S. 347 (1967)............ 28

Klein v. Nassau County Medical Center, 347 F. Supp.

496 (E.D.N.Y. 1972) (three-judge court), aff’d in part

sub nom. Ryan v. Klein, 412 U.S. 924 (1973), vacated

& remanded in part sub nom. Commissioner of Social

Servs. v. Klein, 412 U.S. 925 (1973). ........200005. i, 3

Loving v. Virginia, 388 U.S. 1 (1967) ..........20555. 28

Maher v. Roe, 432 U.S. 464 (1977) ........ cece eenes 26, 29

Margaret S. v. Edwards, No. 78-2765 (E.D. La. Oct. 2,

1978) (order denying motion to intervene) (subsequent

ESCOEY GE GUGUEIS GUIUGED oc ccccccscessnsusedensas 3

McGarvey v. Magee-Womens Hosp., 340 F.Supp. 751

(W.D. Pa. 1972), aff’d; 474 F.2d 1339 (3rd Cir. 1973) 1-2

Meyer v. Nebraska, 262 U.S. 390 (1923). ............. 28

Mississippi Univ. for Women v. Hogan, 458 U.S. 718

(EGER os 0 0000s000600esesescdedbennnnavaanenesass 22

O’Neil v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971) 25

Pierce v. Society of Sisters, 268 U.S. 510 (1925)....... 28

Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S.

TS CIS FE cc ccncnsesecnaséhseadsseduasissentsee passim

Poole v. Endsley, 371 F. Supp. 1379 (N.D. Fla. 1974),

aff’d in part and remanded on other grounds, 516 F.2d

ft Le i) PPP errrerrrrrrrrerr rrr yrrrer

Prince v. Massachusetts, 321 U.S. 158 (1944) ......... 19

Przybyla v. Przybyla, 87 Wis. 2d. 441, 275 N.W.2d 112

4, Soe) OM | Perrrrrerrrrrrrrerrrrrre 27

Vii

PAGE

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) .......... 19

Rivera v. Minnich, 107 S. Ct. 3001 (1987) ............ 19

Roe v. Casey, No. 78-2214 (E.D. Pa. Dec. 11, 1978)

(order denying motion to intervene) (subsequent his-

— g ff ee errr 3

BOS VU, Tas SEO Wide BED CEPTS) cococcccuccvacescs passim

Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57

PP RaNAs ds abvddalwestebhn ee bheeceasatexeccdic 2

Ruiz Romero v. Gonzalez Caraballo, 681 F. Supp. 123

SI SN Co keene oes h6000600406000000060004 2

Santosky v. Kramer, 455 U.S. 745 (1982)............. 19

Skinner v. Oklahoma, 316 U.S. 535 (1942)............ 19, 28

Stanley v. Illinois, 405 U.S. 645 (1972) ...........44.. 19

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986).......... 12, 17, 22, 29

Toth v. Goree, 65 Mich. App. 296, 237 N.W.2d 297

GUPCEN 500240 cade saneks Ue ekek eh be ataeddss ieees’ 24, 25

Tyler v. Tyler, 348 Mich. 169, 82 N.W.2d 448 (1957) .. 24

Union Pac. Ry. v. Botsford, 141 U.S. 250 (1891)...... 28

Valley Forge Christian College v. Americans United for

Separation of Church & State, 454 U.S. 464 (1982) .. 2

Whalen v. Roe, 429 U.S. 589 (1977) .............005. 14

Woe v. Bear, No. H-79-1866 (S.D. Tex. May 5, 1980)

(order denying motion to intervene) (subsequent his-

Oe a es IG 6 6.0 ha dah 00dencexanensse. 2-3

Zbaraz v. Quern, No. 77-C-4522 (N.D. Ill. May 15, 1978)

(order denying motion to intervene) (subsequent his-

CGE Gi GS GI ct dct Cacccdercecistacersdvs 3

Viii

PAGE

Constitution, Statutes, and Rules

Mich. Comp. Laws Ann. § 600.2045 (West 1981)...... l

Mich. Comp. Laws Ann. § 722.22(2)(a) (West Supp.

Rr ee Pre rs orem set re eT yee eee ee 24

Mich. Comp. Laws Ann. § 722.23 (West Supp. 1988) .. 24

No Re Ry PPP yr rer ery Try Ty Ter Tre TT TE ree rere 10

Other Authorities

Binkin, Gold & Cates, Illegal Abortion Deaths in the

United States: Why Are They Still Occurring?, 14

Family Planning Perspectives 163 (May/June 1982).. 18

Brief for Appellee, Roe v. Wade, 410 U.S. 113 (1973).. 29

Cates, Smith, Rochat & Grimes, Mortality From Abor-

tion and Childbirth, Are the Statistics Biased, 248 J.

Rs ee SE kbc bac kek oh bhd0ck ee sueend saad 13

Drama of Life Before Birth, Life Magazine, Apr. 30,

NPIS APE ER eo gree ey ee 29

Letter from Attorney General Frank Kelly to Social Ser-

vices Director C. Patrick Babcock (Mar. 28, 1988)... 26

K. Luker, Abortion & the Politics of Motherhood (1984) 29

Plutzer & Ryan, Notifying Husbands About An Abor-

tion: An Empirical Look at Constitutional and Policy

Dilemmas, 71 Sociology and Social Research 183 (Apr.

RR A eer PT ry ey Te eee eee ee 18

Tietze & Henshaw, Jnduced Abortion: A World Review,

(1986) (The Alan Guttmacher Institute)............. 13

]

Respondent Shawn Lewis submits this brief in opposition to

the Petition for a Writ of Certiorari filed by Gene Myers,

guardian ad litem for the fetus, on September 30, 1988, as well

as the Petition for a Writ of Certiorari filed by Carlton Lewis,

Ms. Lewis’ ex-husband, on October 21, 1988. Both Petitions

seek review of the judgment entered by the Michigan Court of

Appeals in this action.

COUNTERSTATEMENT OF JURISDICTION

The guardian ad litem does not have standing to bring this

claim seeking to deprive Ms. Lewis of her constitutional right to

choose to have an abortion; therefore his Petition must be

denied. A guardian ad litem may have standing to raise some

claims on behalf of a fetus, such as claims necessary to protect

the property interests of a child that will be born.' This Court

has made absolutely clear, however, that a fetus has no ‘‘right

to life’’ and thus no basis for invoking the power of the state to

interfere with a woman’s decision to have an abortion. The

Court has held unequivocally that ‘‘the word ‘person,’ as used

in the Fourteenth Amendment, does not include the unborn.’’

Roe v. Wade, 410 U.S. 113, 158 (1973). This holding is consis-

tent with case law even before Roe establishing that fetuses are

not persons under the Constitution. See Abele v. Markle, 351 F.

Supp. 224, 228 (D. Conn. 1972), vacated and remanded on

other grounds, 410 U.S. 951 (1973); Klein v. Nassau County

Medical Center, 347 F. Supp. 496 (E.D.N.Y. 1972) (three-judge

court), aff’d in part sub nom.'Ryan v. Klein, 412 U.S. 924

(1973) (appeal by intervenors asserting interests of fetuses),

vacated & remanded in part sub nom. Commissioner of Social

Servs. v. Klein, 412 U.S. 925 (1973) (appeal by state); McGar-

vey v. Magee-Womens Hosp., 340 F. Supp. 751 (W.D. Pa.

1 Although the Michigan law upon which the trial court relied permits

the appointment of a guardian to protect the property interests of a ‘‘person

not in being,’ Mich. Comp. Laws Ann. § 600.2045 (1) (West 1981), there is

no provision in Michigan state law that would permit the appointment of a

guardian ad iitem for a fetus in the circumstances of this case. Myers App.

13a.

1972), aff’d, 474 F.2d 1339 (3rd Cir. 1973); Byrn v. New York

City Health & Hosps. Corp., 31 N.Y.2d 194, 286 N.E.2d 887

(1972), appeal dismissed, 410 U.S. 949 (1973); see also Roe, 410

U.S. at 157 (‘‘{[T]he appellee conceded on reargument that no

case could be cited that holds that a fetus is a person within the

meaning of the Fourteenth Amendment.’’). The lower federal

courts have, of course, followed this Court’s holding in ‘Roe.’

Because a fetus is not a person under the Constitution, a

guardian ad litem for the fetus obviously does not have stand-

ing to bring a claim.’ ‘‘The law is clear that an unborn child is

not a person under the Fourteenth Amendment of the United

States Constitution and therefore the unborn child and persons

acting in behalf of an unborn child may not assert the depriva-

tion of any rights or privileges secured by the Amendment.’’

Poole v. Endsley, 371 F. Supp. 1379, 1382-83 (N.D. Fla. 1974),

aff’d in part & remanded on other grounds, 516 F.2d 898 (Sth

Cir. 1975) (citing Roe v. Wade); see also Brady v. Doe, 598

S.W.2d 338 (Tex. Civ. App. 1980), cert. denied, 449 U.S. 1081

(1981); Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57

(1977).

Guardians ad litem for fetuses also have been denied standing

to intervene and challenge a woman’s right to choose abortion,

even though the requirements of standing for purposes of inter-

vention are more easily met than those for purposes of bringing

a claim. See Woe v. Bear, No. H-79-1866 (S.D. Tex. May 5,

2 See, e.g., Ruiz Romero v. Gonzalez Caraballo, 681 F. Supp. 123

(D.P.R. 1988); Harman v. Daniels, 525 F. Supp. 798 (W.D. Va. 1981), Civic

Awareness of Am., Ltd. v. Richardson, 387 F. Supp. 1086 (E.D. Wis. 1975),

aff'd, 532 F.2d 756 (7th Cir.), cert. denied, 429 U.S. 829 (1976); Poole v.

Endsley, 371 F. Supp. 1379 (N.D. Fla. 1974), aff’d in part & remanded on

other grounds, 516 F.2d 898 (Sth Cir. 1975).

3 In order to have standing and satisfy ihe ‘‘case or controversy’’

requirement of Article III, a litigant must show that the interest sought to be

protected by the complainant is arguably ‘‘within ‘the zone of interests to be

protected or regulated by the statute or constitutional guarantee in

question.’ ’’ Valley Forge Christian College v. Americans United for Separa-

tion of Church & State, 454 U.S. 464, 475 (1982) (quoting Association of

Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)); see also

Allen v. Wright, 468 U.S. 737, 751 (1984).

i eeereeimmaetale

1980) (order denying motion to intervene) (subsequent history

on merits omitted); Roe v. Casey, No. 78-2214 (E.D. Pa.

Dec. 11, 1978) (order denying motion to intervene) (subsequent

history on merits omitted); Margaret S. v. Edwards, No. 78-

2765 (E.D. La. Oct. 2, 1978) (order denying motion to inter-

vene) (subsequent history on merits omitted); Akron Center for

Reproductive Health v. City of Akron, No. C78-155A (N.D.

Ohio May 16, 1978) (order denying motion to intervene in rele-

vant part) (subsequent history on merits omitted); Zbaraz v.

Quern, No. 77-C-4522 (N.D. Ill. May 15, 1978) (order denying

motion to intervene) (subsequent history on merits omitted);

Ryan v. Klein, 412 U.S. 924 (1973);* Doe v. Bolton, 319 F.

Supp. 1048, 1057 (N.D. Ga. 1970) (three-judge court), modi-

fied, 410 U.S. 179 (1973).

Because the guardian ad litem can only claim the interests of

the fetus he purports to represent, and the fetus is not a person

under the Fourteenth Amendment, the guardian ad litem lacks

the requisite standing under Article III to bring this claim.

COUNTERSTATEMENT OF THE CASE

Respondent Shawn Lewis, a battered wife, divorced peti-

tioner Carlton Lewis on October 24, 1988. Ms. Lewis filed her

complaint for divorce on January 20, 1988 in the Genesee

County Circuit Court before the Honorable Valdemar Wash-

ington. Ms. Lewis sought a divorce because Mr. Lewis physi-

cally abused her, refused to contribute, financially or

otherwise, to the support of their household, and repeatedly

”

4 In Ryan, intervenors purporting to represent embryos and fetuses,

appealed the ruling of a three-judge court holding unconstitutional New

York’s refusal to fund legal abortions. In a separate appeal by the state, the

Court vacated the district court order and remanded the case for reconsidera-

tion in light of Roe v. Wade. Commissioner of Social Servs. v. Klein, 412

U.S. 925 (1973). On the intervenor’s appeal however, the Court summarily

affirmed the district court, indicating its refusal to recognize claims of pur-

ported guardians ad litem in abortion cases.

abandoned Ms. Lewis and their infant son Christopher. See

App. 3a-4a.°

Ms. Lewis’ first pregnancy, with Christopher, her one child,

was extremely difficult. She was continually ill, suffering from

high blood pressure, high blood sugar and kidney infection (for

which she was hospitalized for a week), and was confined to her

bed for much of the last three months of the pregnancy. App.

2a. Mr. Lewis was furious that the pregnancy made her sick. As

Ms. Lewis told the county court:

Carl [Lewis] left three times during the pregnancy for

about two weeks each time. Just before Christmas 1986 he

left. He said that he couldn’t handle it that I couldn’t go

anywhere or do anything and that I was constantly ill. He

went and lived with his brother; and, at that time, he

stated that he did not want the child that I was carrying. I

went to his brother’s house and begged him to come back.

He left again the end of January or beginning of Febru-

ary 1987. We were fighting because he wanted to go to his

cousin’s home, someone I didn’t approve of because he is

a heavy drinker and Carl was influenced by this cousin. I

wanted him to stay with me; but, he told me to get out of

the car and dropped me off by the overpass at Court Street

and Dort Highway. I walked home in the snow, 7 months

pregnant, in cowboy boots and a light jacket. I got about

three blocks from home after I had walked almost two

miles when he sent a friend, Joe Stevens, to pick me up.

When I got home, Carl had taken all of his things and

moved to his brother’s.

App. 2a-3a.

After Ms. Lewis gave birth to Christopher, Mr. Lewis

became physically abusive. A police complaint described one

assault:

5 Citations to Mr. Myers’ Petition For A Writ of Certiorari will be in

the form ‘‘Myers Pet. __’’ and those to Mr. Lewis’ Petition will be in the

form ‘‘Lewis Pet. __."’ Citations to the appendix to Respondent's Brief In

Opposition will be in the form ‘‘App. __,”” those to Mr. Myers’ appendix

will be in the form ‘‘Myers App. __”’ and those to Mr. Lewis’ appendix will

be in the form ‘‘Lewis App. __.”’

eater

[Ms. Lewis] states that her husband who moved out a week

ago came over and started a fight with [Ms. Lewis]. [Mr.

Lewis] hit [Ms. Lewis] on boths [sic] arms and left side.

{Mr. Lewis] then push [sic] [Ms. Lewis] threw [sic] the

screen door. [Mr. Lewis] then left.

App. 8a. As a result of this physical abuse, the court issued a

preliminary injunction on April 18, 1988 ordering Mr. Lewis to

**desist and refrain from beating, assaulting, or in any way har-

assing or physically abusing [Ms. Lewis].’’ Preliminary Injunc-

tion Under MCR 3.310, MCR 3.203(c) And Public Acts

316-318 of 1978, No. 88-159036-DM, at 2 (Apr. 18, 1988). Mr.

Lewis continued to leave home for extended periods of time.

[W]hen Christopher was born in April, when he was 5

weeks old—about May 24th, which is around the time he

beat me up (a copy of the police report is attached), he left

again. At that time, I was undergoing heart testing because

my father had just had open heart surgery for a diseased

valve which was hereditary. In addition, I had an infection

in my tubes from the pregnancy.

When Car] left that time, he went to his mother’s for at

least two weeks. Each time he was gone, he was gone

about two weeks—long enough to get a full paycheck and

spend it on himself. Then he would come back.

After he came back home, he didn’t have a lot of

patience with the baby. . . . He. . . would want to go

out after he got home from work. I couldn’t go out

because I would have to get up at 6 o’clock in the morning

and take care of the baby. We fought a lot about that.

I never left Carl alone with Christopher very

often. . . . One time when I let [sic] him with Chris-

topher, he let Christopher fall off the couch and badly

scratched his head.

Things were better until he left again November 1, 1987.

He took our son trick-or-treating the night before and I

thought everything was okay. He left and went to his

mother’s house. The next day he called my parents and

iil

told them that he no longer could handle it, that he didn’t

want the responsibility of Christopher and me, and to find

someone else to take care of us. On November 2nd, I went

down and filed for ADC.

At that time, the heat bill was at least 2 months behind,

the water was to be turned off, and the phone had been

turned [off] because the bills hadn’t been paid in a couple

of months. He spent the money on his dune buggy. I

applied for emergency help for the water, emergency food

stamps, and | had to borrow money from my parents for

diapers, etc.

App. 3a-4a.

During the nine months since Ms. Lewis filed for divorce,

. Mr. Lewis has continually harassed her, often forcing Ms.

Lewis to call the police. See App. 6a. Mr. Lewis has broken into

her house on numerous occasions, destroyed her property,

made threatening phone calls, and acted irresponsibly in caring

for Christopher:

Carl had a nervous breakdown near the end of Febru-

ary. He had broken into my house (police report

attached). Dr. John Stoker treated him with anti-

depressants. He was hospitalized but I don’t know for how

long or where he was hospitalized. . . . I was concerned

about allowing Carl to have Christopher for visitation

because of the medication he was on and the alleged drug

overdose of prescription pills and cutting his wrists.

During that time there were more break-ins (police

reports attached). On March 6, Carl had broken into the

home. .. . It was his visitation weekend. He dropped

Christopher off at a neighbor’s house because he didn’t

want Christopher any more (copy of statement from

neighbor is attached). I pulled in the driveway and Carl

was sitting out in the street. He said, ‘‘Your precious little

son is at one of the neighbors’ houses.’’

I went inside the house and called the police. Before they

arrived, I wanted [sic] to three different houses to look for

Christopher before I found him. I returned to the house

and there was broken glass everywhere and the front

screen was all bent and ripped. Once I got inside the house,

I sat down with Christopher and waited for the police.

While I was waiting, Carl returned and he was standing

over me when Policeman Chris Blinkilde arrived. The offi-

cer asked me what was happening and he separated Car]

and me. . . . At that point, Carl took a handful of pills

out of his pocket and put them into his mouth in front of

the officer. The officer handcuffed him, put him in the

police car and took him downtown.

Since then, the break-ins have continued and on July

Ist, he refused to pay any additional child support. He

didn’t pay any support again until September, just before

we went to court for the abortion issue.

Since the Circuit Court hearing on the abortion issue, he

has continuously harassed me, threatened me. I’ve had to

leave my home because he wouldn’t leave us alone. He

would call at 1 o’clock in the morning, 5 o’clock in the

morning. After I went to stay with my parents in Water-

ford, he still called iong-distance to harass us.

If he didn’t call, he was there in the morning and at night.

He would stand outside banging and screaming and yelling

and pounding on the windows. The police were usually

called. One weekend he did it and three police cars came.

App. 4a-6a.

Although the parties had not reconciled they engaged in sex-

ual intercourse on one occasion, July 7, 1988, before the

divorce was final. Ms. Lewis used a spermicide as a means of

birth control.

On August 8, 1988, Mr. Lewis learned that Ms. Lewis was

pregnant. That same day, he petitioned the court to force her to

continue the pregnancy, and then give him full custody of any

lteeeaeaeiialll

child.° Judge Washington immediately issued a one-year injunc-

tion against any abortion, without notice to Ms. Lewis or her

attorney. The court did not set a hearing at which Ms. Lewis

could object to the injunction.

On August 17, Ms. Lewis requested that the injunction be

dissolved. Judge Washington met in his chambers on August 19

with Mr. Steven Moss, counsel for Mr. Lewis. Ms. Linda Pyly-

piw, counsel for Ms. Lewis, was contacted only by telephone.

Both petitioners seriously misrepresent the untranscribed tele-

phone conference; they falsely assert that Ms. Pylypiw con-

ceded that the medical judgment of Ms. Lewis’ attending

physician was that an abortion was not medically necessary to

preserve Ms. Lewis’ health. ’n fact, the trial court made no

finding that Ms. Pylypiw made this concession, petitioners do

not cite any evidence to support their assertion that she made

this concession, and the record contains no such support. Ms.

Pylypiw has enclosed in the appendix a declaration to point out

these misrepresentations. See App. 20a.

Petitioners also rely on a statement by Dr. John Stoker which

states ‘‘It is a social decision not a medical decision for a t.o.p.

with this patient.’ See Lewis App. 20a. The record contains no

evidence that Dr. Stoker was even Ms. Lewis’ attending physi-

cian at that time. In fact, Dr. Stoker was not Ms. Lewis’ attend-

ing physician—he had never even examined her in connection

with this pregnancy. He was her physician in her first pregnancy

with Christopher. Ms. Lewis has filed a complaint against Dr.

Stoker with the Genesee County Osteopathic Medical Associa-

tion, App. 16a, for misrepresenting his relationship with her,

for violating the physician-patient privilege and for apparently

signing conflicting letters—one that said an abortion was neces-

sary to preserve Ms. Lewis’ health, App. 19a, and one that says

it was not, Myers App. 20a. Ms. Lewis has asked that the Medi-

cal Association order Dr. Stoker to correct what apparently was

a fraud on the court.

6 Mr. Lewis later petitioned the court to order Ms. Lewis to undergo

an ultrasound. Petition For Order For Ultrasound Or Other More Accurate

Determination of Length Of Pregnancy, No. 88-159036-DM (filed Sept. 2,

1988).

Despite Ms. Lewis’ request for an immediate hearing, the

court did not hold a hearing until September 6, one month after

it enjoined Ms. Lewis from ending her pregnancy. The hearing

was held in open court with the press and the public in attend-

ance. At the hearing, Judge Washington acknowledged that the

injunction cited improper statutory authority; he refused, how-

ever, to dissolve the injunction, and, in fact, issued a new pre-

liminary injunction nunc pro tunc to August 9. The court did

not rest its order on the ‘‘rights’’ asserted by Mr. Lewis, stating

**] don’t think that is the issue here.’ Myers App. 16a. Rather,

the court applied the rights of minor children to a fetus. The

court concluded that Roe v. Wade did not prohibit the enjoin-

ing of Ms. Lewis’ abortion because ‘‘the United States Supreme

Court was addressing the issue of the State regulation in the

form of Statute and not addressing the issue as it related to a

Common Law decision.’’ Myers App. 15a. After issuing its

opinion, the court appointed a guardian ad litem for the fetus

for purposes of appeal; this was done sua sponte and without

affording counsel an opportunity to object.

Ms. Lewis immediately appealed on September 7. The Michi-

gan Court of Appeals granted emergency leave to appeal and on

September 15 ordered that the injunction be dissolved as viola-

tive of Ms. Lewis’ constitutional rights. The court, however,

granted Mr. Lewis’ request to stay its order until September 19.

On September 15 the Michigan Supreme Court extended the

stay until further order. On September 22 the Michigan

Supreme Court denied the Application for Leave to Appeal

filed jointly by Mr. Lewis and the guardian ad litem, but

extended its stay until September 26 to allow an application for

a stay to the United States Supreme Court.

Both Mr. Lewis and the guardian ad litem applied to Justice

Antonin Scalia for a stay. Justice Scalia referred the matter to

the full Court, which denied the application on September 26

without comment. Nos. A-240, A-244, mem. (U.S. Sept. 6,

1988) Thus, Ms. Lewis was barred by court order from exercis-

ing her right to have an abortion for a total of seven weeks, dur-

ing which time she endured the severe mental strain of not

knowing when, if ever, she would be ‘‘permitted’’ to end her

unwanted pregnancy.

The day that the Michigan Court of Appeals upheld Ms.

Lewis’ constitutional rights, Mr. Lewis threatened to kidnap

Christopher if she had terminated her pregnancy:

On September 15, 1988, I was gone all day so I left the

answering machine on. When my mother and I got home

about 5 o’clock, there was a message from Carl; and, he

said that if I had done what he thought I had done, he

would take Christopher and I would never see him again

and, ‘‘That’s a promise.’’

App. 6a. Two days after the stay was dissolved, a warrant was

issued for the arrest of Mr. Lewis on the charges of unlawful

entry. On that date, Mr. Lewis kicked down the steel door to

Ms. Lewis’ house, which she had dead-bolted, and entered her

home accusing Ms. Lewis of ‘‘killing his baby.’’ See App. 14a.

A friend managed to keep Mr. Lewis from approaching Ms.

Lewis, who managed to call the police. Mr. Lewis’ attorney,

Steven Moss, was quoted as saying of the incident ‘‘I don’t

know what I would do if that was me. I might beat the hell out

of her.’’ Jd.

As part of the Judgment of Divorce, issued October 24, 1988,

the court issued a permanent injunction, to remain in effect

until April 9, 2005, ordering Mr. Lewis to desist and refrain

from ‘‘assaulting, beating, molesting or wounding’’ Ms. Lewis

or entering onto her premises. Mr. Lewis was granted the right

to only supervised visitation with his son Christopher.

REASONS WHY THE PETITIONS SHOULD BE DENIED

The Petitions should be denied because they fail to establish

any of the factors that weigh in favor of review on a writ of cer-

tiorari: This Court’s prior decisions are dispositive, the Michi-

gan Court of Appeals properly applied those decisions, and no

conflict exists among state or federal appellate courts as to the

proper disposition of petitioners’ claims. See Sup. Ct. R. 17. In

attempting to argue to the contrary, petitioners misrepresent

the facts of this case and grossly distort this Court’s decisions

upholding reproductive freedom and the right to privacy. As

every appellate court has recognized, Roe v. Wade and its prog-

eny clearly protect the right of every adult woman, including

respondent, to choose to terminate her pregnancy prior to via-

bility.

I. THIS COURT’S PRIOR DECISIONS UPHOLDING

WOMEN’S REPRODUCTIVE FREEDOM ARE DISPOS-

ITIVE AND WERE PROPERLY APPLIED BY THE

MICHIGAN COURT OF APPEALS.

A. A Woman’s Constitational Right To Decide Whether To

Terminate Her Pregnancy Is Not Contingent Upon A

Showing That The Abortion Is Medically Necessary

The Michigan Court of Appeals properly dissolved the trial

court’s injunction,-finding that ‘‘the injunction interferes with

plaintiff’s constitutional rights as set forth by the United States

Supreme court in Roe v. Wade and Planned Parenthood of

Central Missouri v. Danforth.’’ App. 3a (citations omitted).

Petitioners seek review of the Michigan Court of Appeals’

decision on the entirely frivolous ground that ‘‘the [privacy]

right extends only to abortions which are medically necessary

for the well-being of the mother in the sound medical judgment

of the attending physician.’’’ Myers Pet. at 10; see also Lewis

Pet. at 10. This distortion of the liberty-based privacy right is

directly contradicted by this Court’s decisions.

In Roe v. Wade, 410 U.S. 113 (1973), the United States

Supreme Court held that a woman has a constitutional right to

decide whether to have an abortion: The ‘‘right of privacy. . .

founded in the Fourteenth Amendment’s concept of personal

7 Petitioners are not clear about how they would define medical neces-

sity. This Court has construed the concept of necessity very broadly in Doe v.

Bolton, 410 U.S. 179, 192 (1973), as including ‘‘all factors—physical, emo-

tional, psychological, familial, and the woman’s age—relevant to the well-

being of the patient.’’ The note from Dr. Stoker relied on by petitioners,

however, did not purport to consider all of these factors. In any event, peti-

tioners’ interpretation would allow the opinion of a single physician to defeat

a woman’s right to choose abortion and apparently would impose on a

woman “‘an initial evidentiary burden’’ to establish that an abortion was

medically necessary. Myers Pet. 18. This interpretation in clearly incorrect.

liberty and restrictions upon state action. . . is broad enough

to encompass a woman’s decision whether or not to terminate

her pregnancy.’’ Jd. at 153 (emphasis added). Since Roe the

Court has consistently and unequivocally reaffirmed the right

in numerous decisions. See, e.g., Thornburgh v. American Col-

lege of Obstetricians & Gynecologists, 476 U.S. 747 (1986); City

of Akron v. Akron Center for Reproductive Health, 462 U.S.

416 (1983); Planned Parenthood of Cent. Mo. v. Danforth, 428

U.S. 52 (1976). Thus, as the Michigan Court of Appeals found,

this Court’s decisions in Roe and its progeny are dispositive.

Even a cursory reading of Roe makes absolutely clear the

absurdity of petitioners’ claim that a woman has no right to

choose to have an abortion unless she demonstrates that an

abortion is necessary to preserve some narrow definition of her

health. In Roe this Court catalogued some of the severe physi-

cal, emotional and life-altering harms that the state would

inflict on a woman by forcing her to bear an unwanted child:

—— ..

Specific and direct harm medically diagnosable even in

early pregnancy may be involved. Maternity, or additional

offspring, may force upon the woman a distressful life and

future. Psychological harm may be imminent. Mental and

physical health may be taxed by child care. There is also

the distress, for all concerned, associated with the

unwanted child, and there is the problem of bringing a

child into a family already unable, psychologically and

otherwise, to care for it. In other cases, as in this one, the

additional difficulties and continuing stigma of unwed

motherhood may be involved.

410 U.S. at 153. Justice Douglas in his concurrence elaborated

on the ways in which an involuntary pregnancy and childbirth

would require a woman ‘“‘to endure the discomforts of preg-

nancy; to incur the pain, higher mortality rate, and aftereffects

of childbirth; to abandon educational plans; to sustain loss of

income; to forego the satisfactions of careers; to tax further

mental and physical health in providing child care.’’ /d. at 214-

15. Depriving a woman of her right to control her body would

rob her of her ability to shape her own life and pursue her cho-

sen goals and dreams. In addition to these considerations which

2 we

may go beyond ones considered purely ‘‘medical,’’ the Court in

Roe implicitly recognized that there would always be a suffi-

cient medical indication for abortion in the first trimester: that

it is always safer than continued childbirth and pregnancy.*

Petitioners misleadingly string together quotations taken out

of context from this Court’s decisions that refer to a woman’s

‘attending physician’’ and the physician’s ‘‘medical judg-

ment.’’ Petitioners argue that because the Court has acknowl-

edged that ‘‘medical judgment’’ is involved in the abortion

decision, only some undefined but narrow class of medically

necessary abortions is protected. This reasoning is absurd. Cer-

tainly, an abortion is a medical procedure requiring ‘‘medical

judgment,’’ as does any medical treatment. Thus, the Court’s

references are not surprising. This in no way means, however,

that a woman’s right to choose to have an abortion is contin-

gent on a physician’s determination that continuing a preg-

nancy would endanger the woman’s health. Rather, the Court’s

references to the physicians’ involvement is aimed at ensuring

that a woman’s decision to terminate her pregnancy is effectu-

ated by ‘‘medically competent personnel.’’ Connecticut v.

Menillo, 423 U.S. 9, 11 (1975).

If petitioners were correct, a single physician who is person-

ally opposed to all abortions would have the power to deny a

woman her right to choose to have an abortion by stating it was

not medically necessary. This indefensible interpretation is in

direct conflict with this Court’s statement that the role of a phy-

sician in a woman’s abortion decision, as in any medical deci-

sion, is to use his or her medical training to assist the woman in

making an informed choice:

8 Abortion, particularly early abortion, is safer than continued preg-

nancy and child birth. In terms of mortality, ‘‘abortion through the 15th

week of pregnancy is at least tenfold safer than childbearing.’’ Cates, Smith,

Rochat & Grimes, Mortality From Abortion and Childbirth, Are the Statis-

tics Biased, 248 J. A.M.A. 192, 196 (1982). ‘‘Moreover, the risk of death

from legal induced abortion is no higher at any point in gestation than is the

risk of death from childbearing.’’ Tietze & Henshaw, Induced Abortion: A

World Review 110 (1986) (The Alan Guttmacher Institute). Finally, ‘‘[e]xam-

ination of the data on which mortality rates for legally induced abortion and

childbearing are calculated indicates the comparisons overestimate the abor-

tion risks."’ Cates, supra, at 196.

—————

The Court also has recognized, because abortion is a medi-

cal procedure, that the full vindication of the womgn’s

fundamental right necessarily requires that her physician

be given ‘‘the room he needs to make his best medical

judgment.’’ Doe v. Bolton, Roe, 410 U.S. 179 (1973). See

Whalen v. Roe, 429 U.S. 589 (1977). The physician’s exer-

cise of this medical judgment encompasses both assisting

the woman in the decisionmaking process and implement-

ing her decision should she choose abortion.

City of Akron v. Akron Center for Reproductive Health, 462

U.S. 416, 427 (1983) (emphasis added).’

Finding that ‘‘the rights of the pregnant woman’’ to make the

abortion decision are fundamental, the Court held that a state

may interfere with that decision only to the extent necessary to

further ‘‘compelling’’ interests asserted by the state. Roe, 410

U.S. at 162-63. Contrary to petitioners’ complete distortion of

Roe, the Court further held that the state may require a show-

ing of medical necessity only if the state has a compelling inter-

est supporting that restriction; this occurs at viability when the

state’s interest in the potentiality of the fetus becomes compel-

ling. Jd. at 163-64 (after viability, state may ‘‘go so far as to

proscribe abortion. . . except when it is necessary to preserve

the life or health of the mother’’).

Petitioners have not even attempted to argue (nor could they)

that there existed a compelling state interest sufficient to justify

depriving Ms. Lewis of her constitutional right to choose to

have an abortion. Thus, petitioners’ requests for a writ of cer-

tiorari must be rejected.

9 Similarly, as this Court stated:

Nothing in [Doe v. Bolton, 410 U.S. 179 (1973)] suggests that a doc-

tor’s right to administer medical care has any greater strength than his

patient’s right to receive such care. The constitutional right vindicated

in Doe was the right of a pregnant woman to decide whether or not to

bear a child without unwarranted state interference. The statutory

restrictions on the abortion procedures were invalid because they

encumbered the woman’s exercise of that constitutionally protected

right by placing obstacies in the path of the doctor upon whom she was

entitled to rely for advice in connection with her decision.

Whalen v. Roe, 429 U.S. 589, 604 n. 33 (1977) (emphasis added).

Il. PETITIONERS’ “QUESTIONS PRESENTED” ARE

NOT PROPERLY RAISED BY THE FACTS OF THIS

CASE BECAUSE NO DETERMINATION WAS MADE

BY MS. LEWIS’ ATTENDING PHYSICIAN THAT AN

ABORTION WAS NOT MEDICALLY NECESSARY

Petitioners contend that this case presents the question

whether the right to privacy protects the decision to have an

abortion where the woman’s attending physician has deter-

mined that the abortion is not necessary for the woman’s well-

being. That question is not presented by this case. Petitioners

rely on what they describe as a ‘‘concession’’ by counsel for Ms.

Lewis and a one-sentence note apparently written by Dr. John

Stoker which states ‘‘It is a social decision not a medical deci-

sion for at.o.p. with this patient.’” Myers App. 20a. Petitioner

Myers admitted that ‘‘[t]his concession by counsel for [Ms.

Lewis] is the hinge on which this case turns.”” Myers App. 18a.

However, Ms. Linda Pylypiw, trial counsel for Ms. Lewis,

never conceded that an abortion was not medically necessary,

and Dr. Stoker was not Ms. Lewis’ attending physician in con-

nection with this pregnancy. App. 21a. The record contains no

support for petitioners’ assertions to the contrary, the trial

court made no such findings, and any such findings would be

clearly erroneous.

Dr. Stoker was Ms. Lewis’ physician in her first pregnancy.

Dr. Stoker never physically examined her in connection with

this second pregnancy. Despite his lack of information upon

which to make a medical determination, Dr. Stoker apparently

wrote two conflicting statements about medical indications for

Ms. Lewis’ abortion. In addition to the note to Mr. Lewis, Dr.

Stoker wrote a second contradictory note stating that an abor-

tion was medically necessary to preserve Ms. Lewis’ health.

‘*Shawn Lewis had a difficult time with her first pregnancy on

the date of 04/09/87 and she cannot handle the stress at this

time.’’ App. 19a.

It has not yet been determined why Dr. Stoker wrote these

conflicting notes without a proper medical evaluation or exami-

nation and why he released confidential information without

Ms. Lewis’ consent. The Genesee County Osteopathic Medical

eae

Association is currently considering a complaint filed by Ms.

Lewis against Dr. Stoker for his unprofessional, unethical and

possibly illegal behavior in this matter. Ms. Lewis is requesting

that Dr. Stoker be ordered to retract his statements and correct

his misrepresentations to the state courts and to this Court.

Iii. AS THIS COURT’S DECISIONS MAKE CLEAR, THE

DECISION OF THE MICHIGAN COURT OF

APPEALS DOES NOT CONFLICT WITH ANY COM-

PELLING INTEREST ASSERTED BY THE STATE OF

MICHIGAN OR ANY FEDERAL RIGHT ASSERTED

BY PETITIONERS.

Petitioners’ failure to assert a compelling state interest is fatal

because a compelling interest is essential to justify any state

interference with Ms. Lewis’ abortion decision. Petitioners

make only the legally insufficient claim that the state and Mr.

Lewis have legitimate interests that weigh against Ms. Lewis’

having an abortion. Even this extremely limited claim proves

false: No Michigan statute purports to protect the interests peti-

tioners assert; the state of Michigan has taken no part in this

case; and petitioners possess no federal rights that are impli-

cated by Ms. Lewis’ decision to have an abortion. Even if peti-

tioners had asserted legitimate interests, those interests could

not defeat Ms. Lewis’ constitutional rights. Moreover, if peti-

tioners had applied the correct legal standard, they could not

have established the existence of a compelling state interest to

justify forcing Ms. Lewis to continue her pregnancy and to give

birth against her will.

A. A Man Does Not Have A Constitutional Right To

Interfere With A Woman’s Decision To Have An

Abortion.

In 1976 this Court decided the precise issue presented here;

the Court unequivocally declared that a woman’s right to end

an unwanted pregnancy may not be infringed on the basis of

her husband’s objections. See Danforth, 428 U.S. at 69-71. The

Court struck down a Missouri law that prohibited a married

woman from having an abortion without her husband’s con-

sent. Id.

Mr. Lewis argues that Danforth is not dispositive because it

involved a state statute giving all men the right to veto their

wives’ abortion decisions, whereas Mr. Lewis ‘‘seeks a judicial

consideration of competing rights and interests, based on the

facts of each case.’’ Lewis Pet. 8. This suggested distinction is

insignificant. As the Court recognized in Danforth, ‘‘The obvi-

ous fact is that when the wife and the husband disagree on this

decision, the view of only one of the two marriage partners can

prevail.’’ Jd. at 71. Mr. Lewis quite definitely seeks the creation

of a right that would allow a man to use the courts to veto a

woman’s decision to have an abortion. Whether imposed by

court order on a case-by-case basis or by state statute, the depri-

vation of a woman’s constitutional right is equally complete

and the harm resulting from a court-ordered pregnancy and

childbirth equally devastating.

Moreover, this Court has already done the balancing of inter-

ests sought by Mr. Lewis. The Court in Danforth expressly con-

sidered ‘‘the deep and proper concern and interest that a

devoted and protective husband has in his wife’s pregnancy and

in the growth and development of the fetus she is carrying.’ Jd.

at 69. Nevertheless, the Court concluded that a woman’s right

to make the abortion decision outweighs her husband’s interests

in each and every case: ‘‘Inasmuch as it is the woman who phys-

ically bears the child and who is the more directly and immedi- .-

ately affected by the pregnancy, as between the two, the balance

weighs in her favor.’’ Id. at 71 (emphasis added).

Roe and its progeny make clear that a case-by-case judicial

inquiry into a woman’s abortion decision would itself be uncon-

stitutional. Cf. Thornburgh, 476 U.S. at 766 (quoting Bellotti

v. Baird, 443 U.S. 622, 655 (1979) (Stevens, J., concurring))

(‘‘It is inherent in the right to make the abortion decision that

the right may be exercised without public scrutiny and in defi-

ance of the contrary opinion of the sovereign or other third par-

ties.”’); Doe v. Bolton, 410 U.S. at 195-98 (abortion decision

may not be subject to ad hoc determinations of hospital com-

mittee). An individual woman’s personal circumstances are

legally irrelevant. Recognizing the unparalleled importance of a

woman’s right to control her reproductive capabilities, the

Court has declared that every adult woman has the right to

decide to have an abortion and to effectuate that decision with-

out government interference, regardless of her very personal

reasons and without having to reveal those reasons.'°

1. The Fourteenth Amendment Affords Individuals

Protection Only From State Action And Does Not

Apply to Wholly Private Acts Such As A Woman’s

Choosing An Abortion.

Even absent Danforth and the Court’s other dispositive abor-

tion cases Mr. Lewis could not prevail. His assertion that Ms.

Lewis’ abortion decision implicates his constitutional rights is

frivolous. The federal constitutional rights cited by Mr.

10 Faced with having to explain to a court their reasons for choosing

abortion and having to expose intimate details of their lives to judicial and

public scrutiny, some women would instead resort to unsafe, illegal abor-

tions, despite the great risks to their health and lives. Although a private

abortion is a legal and constitutionally protected choice, some women never-

theless have illegal abortions. A study of the seventeen deaths following ille-

gal abortions reported in the United States between 1975 and 1979 revealed

that ‘‘[a] desire for secrecy was the primary reason four women sought illegal

abortions and was a secondary factor for five others.’’ Binkin, Gold & Cates,

Illegal Abortion Deaths in the United States: Why Are They Still Occurring?,

14 Family Planning Perspectives 163, 165 (May/June 1982). Given that nine

of seventeen women lost their lives due to a desire to keep their abortions

secret during a time when their privacy was protected, that number inevitably

would be far greater if Mr. Lewis’ ‘‘case-by-case’’ review were lawful.

Moreover, the purely voluntary role that men play in women’s abortion

decisions would likely be hurt under Mr. Lewis’ approach. The vast majority

of women who have abortions inform the man involved. Plutzer & Ryan,

Notifying Husbands About An Abortion: An Empirical Look at Constitu-

tional and Policy Dilemmas, 71 Sociology and Social Research 183 (Apr.

1987). A study of 2,337 women seeking abortions at a clinic in St. Louis,

Missouri revealed that 89.5% of the women had told the man involved about

the pregnancy, and 92.8% of the married women had told their husbands.

Id. at 185. If a man had the right to seek a court order prohibiting a woman

from obtaining an abortion, a woman considering abortion would be dis-

couraged from telling the man involved. The result could be that far fewer

men would have any opportunity at all to be involved in women’s abortion

decisions.

Lewis—the right to procreate, rights derived from a marital

relationship, and the right to raise one’s children—protect a

person only from governmental action and not the wholly pri-

vate acts of individuals.'' Every case cited by Mr. Lewis as sup-

port for his constitutional claims involves government action

affirmatively interfering with the autonomy of private individ-

uals.'* This is not such a case.

For example, the Constitution certainly protects Mr. Lewis’

right to be free from government intrusion in his decision to

have a child. But it is up to Mr. Lewis, not lower court judges,

to find a woman who will have a child with him. No individual,

male or female, has a constitutional right to have a court com-

pel another to procreate with him or her. To the contrary, the

Constitution guarantees that the government will not interfere

with the reproductive choices made by any individual.

Justice Stevens noted this fundamental flaw in Mr. Lewis’

claim when he denied an application for an injunction in a

legally and factually similar case, John Doe v. Jane Smith, 108

S. Ct. 2136 (1988). Justice Stevens wrote ‘‘I have serious doubts

concerning the availability of a federal remedy for this claim in

view ©: the fact that Jane Smith’s decision to obtain an abor-

tion can be carried out without any action on the part of the

11 “The first section of the 14th Amendment... . is prohibitory in its

character, and prohibitory upon the States. . . . It is state action of a partic-

ular character that is prohibited. Individual invasion of individual rights is

not the subject-matter of the Amendment.’’ Civil Rights Cases, 109 U.S. 3,

9-12 (1883); see also Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982).

12 See Rivera v. Minnich, 1078S. Ct. 3001 (1987) (state may use prepon-

derance of evidence standard in paternity proceeding); Santosky v. Kramer,

455 U.S. 745 (1982) (state may not sever parental rights absent clear and con-

vincing evidence of grounds for termination); Caban v. Mohammed, 441

U.S. 380 (1979) (state may not practice sex discrimination in adoption pro-

ceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (state may not sever paren-

tal rights based on father’s unmarried status); Griswold v. Connecticut, 381

U.S. 479 (1965) (state may not prohibit sale of contraceptives to married

individuals); Prince v. Massachusetts, 321 U.S. 158 (1944) (state may restrict

public sale of merchandise by minors, including sale of religious publica-

tions); Skinner v. Oklahoma, 316 U.S. 535 (1942) (state may not sterilize per-

sons convicted of crimes).

State of Indiana or any other state governmental subdivision.”’

Id. at 2137.

The constitutional rights asserted by Mr. Lewis act only as ‘‘a

shield for the private citizen against government action, not a

sword of government assistance to enable him to overturn the

private decisions of his fellow citizens.’’ Doe v. Doe, 365 Mass.

556, 314 N.E.2d 128, 132 (1974). The court in Doe rejected a

request by a man to enjoin his wife’s abortion, concluding

“*[w]e find no basis for the husband’s assertion that the Consti-

tution enables him to summon the Commonwealth to help him

in a dispute with his wife.’’ Jd. Mr. Lewis improperly seeks to

twist constitutional shields designed to protect individuals from

government intrusion, into swords of government coercion in

the form of judicial action to subordinate women to the wills of

their husbands.

a. Right To Procreate

The implications of Mr. Lewis’ distortion of the right to pro-

create are staggering: In effect he claims that the right to pro-

create entitles a man to invoke the power of the government to

compel a woman to bear his child. If he is correct, courts could

order unwilling individuals to engage in uncontracepted sex

with spouses or lovers desirous of having children. Or, an indi-

vidual whose sexual partner did not wish to have a child could

be compelled to use contraception during sex. The Supreme

Judicial Court of Massachusetts outlined the insidious implica-

tions of judicial intervention in refusing to issue an injunction

similar to the one requested by Mr. Lewis:

[W]e would not order either a husband or a wife to do

what is necessary to conceive a child or to prevent contra-

ception, any more than we would order either party to do

what is necessary to make the other happy. We think the

same considerations prevent us from forbidding the wife

to do what is necessary to bring about or prevent birth

. . . Some things must be left to private agreement.

Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128, 132 (1974).

Given the constitutional right not to procreate, a man who

did not want a child would even have the right to seek a court

order forcing a woman to submit to an unwanted abortion:

If we were to conclude that a putative father has the stand-

ing to prevent the natural mother from terminating the

pregnancy would the putative father have the correspond-

ing standing to compel the termination of the pregnancy

. . ? Could a potential putative father (or for that mat-

ter a husband) seek an injunction to restrain the woman

from using contraceptives or compel the woman to bear

children? Such circumstances would seem ludicrous. . .

and it would be beyond the province of logic and reason to

suggest that she could be compelled to procreate.

Jones v. Smith, 278 So.2d 339, 344 (Fla. App. 1973) (emphasis

in original) (court refused to enjoin woman from having abor-

tion opposed by man claiming responsibility for pregnancy,

despite man’s expressed desire to marry woman and assume

responsibility for child), cert. denied, 415 U.S. 958 (1974). If

Mr. Lewis’ flawed analysis were accepted the federal courts

would be faced with the impossible task of resolving countless

disputes involving abortion, sterilization, and the use of birth

control, between spouses and lovers unable to agree about

whether to have a child.

b. Rights Derived From Marriage

Mr. Lewis asserts that ‘‘his status as a husband in the family

unit’? confers upon him a ‘‘marital right of privacy.’’ Lewis

Pet. 13. Mr. Lewis seems to be arguing that the privacy right

inheres in the marital couple, rather than in the husband and

wife as individuals. This view was rejected in Danforth and also

runs counter to the basic principle that the privacy right pro-

tects individuals only from government action. Moreover, in

Eisenstadt v. Baird, the Court expressly rejected the notion that

the marital couple is a separate independent entity, and instead

recognized marriage as ‘‘an association of two individuals each

with separate intellectual and emotional makeup.’’ 405 U.S.

438, 453 (1972) (unmarried individuals have constitutional right

to use contraceptives); see also Carey v. Population Servs. Int’,

431 U.S. 678, 687 (1977) (‘‘Griswold may no longer be read as

holding only that a State may not prohibit a married couple’s

use Of contraceptives. Read in light of its progeny, the teaching

of Griswold is that the Constitution protects individual deci-

sions in matters of childbearing from unjustified intrusion by

the State.’’).

Mr. Lewis’ assertion of rights ‘‘inherent in his status as a hus-

band,’’ Pet. 13, amount to a claim that a man has the right to

use the power Of the state to subjugate his wife’s will to his own.

This outdated view of the marital relationship is inconsistent

with this Court’s condemnation of our country’s ‘‘long and

unfortunate history of sex discrimination.’’ Frontiero v.

Richardson, 411 U.S. 677, 684 (1973); see also Mississippi

Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982). Since

1973, the Supreme Court has recognized that unimpeded access

to safe legal abortion services is essential to women’s capacity

to live as free, equal and autonomous citizens. See Roe, 410

U.S. 113. Most recently, the Court reiterated this principle in

Thornburgh:

Our cases long have recognized that the Constitution

embodies a promise that a certain private sphere of indi-

vidual liberty will be kept largely beyond reach of govern-

ment . . . That promise extends to women as well as to

men. Few decisions are more personal and intimate, more

properly private, or more basic to individual dignity and

autonomy, than a woman’s decision . . . whether to end

her pregnancy. A woman’s right to make that choice freely

is fundamental. Any other result, in our view, would pro-

tect inadequately a central part of the sphere of liberty that

our law guarantees equally to all.

476 U.S. at 772 (citations omitted; emphasis added). Stripping

women of control of their reproductive capacity, and giving

that control to their husbands, would condemn women to a

continued existence as unequal and subordinate members of

our society.

c. The Right To Raise One’s Children

Mr. Lewis’ reliance on the constitutional right of fathers to

‘the care, custody, control, and companionship of his chil-

dren,’’ Pet. 12, is entirely irrelevant to Ms. Lewis’ decision to

have an abortion. Certainly, fathers as well as mothers have

constitutional rights (again, assertable only against government

action) vis-a-vis their children. Yet those rights are not in any

way implicated here because this case involves neither a child

nor a father. Rather, the issue here is whether a man can force a

woman to bear a child and become a mother against her wishes

in order to satisfy his desire to have a child.

Mr. Lewis’ alleged ‘‘paternal rights’’ are based on a theory

that human life begins at conception, so that a fetus is a

‘child’? and a man who has fertilized a woman’s ovum is a

‘*father.’’ Yet the Court in Roe rejected precisely this effort to

enshrine a particular theory of life as state law. See Roe v.

Wade, 410 U.S. at 159-62; see also Akron, 462 U.S. at 444 (‘‘a

State may not adopt one theory of when life begins to justify its

regulation of abortions’’). The state of Michigan has not

adopted as law Mr. Lewis’ theory of when life begins, but even

if it had, such a law would plainly be unconstitutional and thus

unavailable to Mr. Lewis to support his claims.

B. The State of Michigan Has Not Asserted A Compelling

Interest In Fetal Life In Order To Deprive Women Of

Their Right To Choose Abortion.

The trial court treated this case as a controversy about the

rights of a child whose parents are involved in a divorce pro-

ceeding, and found its legal authority for issuing the injunction

prohibiting Ms. Lewis from terminating her pregnancy in the

Child Custody Act of 1970 and the state divorce statute provi-

sions for the care, custody, and support of minor children. '°

Declaring that ‘‘there is a wide open view as to what constitutes

13 The court also relied on Michigan Rules of Court, Rule 3.204(a)(4)

requiring that a complaint for divorce contain information ‘‘that the female

party is pregnant, if she is.” Myers App. 10a. The trial court erroneously

a child,’’ the court made a radical departure from judicial prec-

edent, and defined the term to include all fetuses.'* Myers App.

16a. The court, blatantly disregarding this Court’s precedent,

then granted the fetus an absolute right to be born, holding, in

effect, that by participating in a divorce proceeding, a woman

waives her constitutional right to terminate her pregnancy.

The only precedent the court cited for this proposition, Ty/er

v. Tyler, 348 Mich. 169, 82 N.W.2d 448 (1957), held that a

court could re-open a divorce decree to provide for the mainte-

nance and support of a child conceived during marriage, but

not yet born at the time of the divorce. Jd. at 172. The court was

protecting a property interest that was contingent upon the

birth of a child, an interest that is entirely consistent with

upholding a woman’s right to choose abortion.'’ When the

court issued the injunction prohibiting Ms. Lewis from termi-

nating her pregnancy, it was not exercising its jurisdiction over

a minor child, nor was it protecting the property rights of a

future child; it was seeking to force a pregnant woman to bear a

child against her will.

Mr. Myers, in his petition for certiorari, completely aban-

dons the trial court’s analysis and supplies an alternative,

though equally flawed, legal theory. He argues that the trial

court’s injunction is supported by two state interests: (1) the

assumed that this requirement anticipates the court’s intervention in the

woman’s pregnancy. Myers App. 16a-17a. In fact, such information is rele-

vant to a divorce proceeding only because it is the duty of the court to ensure

that a child born subsequent to the dissolution is provided for in terms of

support, maintenance, and custody.

14. Nowhere in the definition section of the Child Custody Act of 1970,

Mich. Comp. Laws Ann. § 722.22(2)(a) (West Supp. 1988) is a fetus included

in the definition of a minor child. In fact, the very nature of the factors that

a court must consider under the Child Custody Act, when applied to a fetus,

demonstrate that a fetus was not within the contemplation of the drafters of

the legislation. Jd. § 722.23. Moreover, a court is precluded from defining all

fetuses, and particularly those in the first trimester of development, as chil-

dren.

1S The property right was contingent upon live birth, for if the child

were not born alive, no rignt to support would accrue. See Toth v. Goree, 65

Mich. App. 296, 237 N.W.2d 297, 305 (1975) (Maher, J., dissenting).

state of Michigan’s interest in protecting fetal life; and (2)

Michigan’s public policy of encouraging childbirth over abor-

tion.

Mr. Myers’ arguments must fail because, as this Court has

held, whatever interest the state of Michigan has recognized in

fetal life, this interest does not justify interfering with a wom-

an’s right to life and liberty, including her fundamental right to

terminate a pregnancy prior to viability. In Roe v. Wade this

Court stated quite clearly that ‘‘we do not agree that, by adopt-

ing one theory of life, [a state] may override the rights of the

pregnant woman that are at stake.’’ 410 U.S. at 162.

In addition, the state of Michigan has not asserted any inter-

est in the fetus that is implicated by this case. No Michigan stat-

ute seeks to prohibit first trimester abortions and the state has

taken no part in this case. Yet Mr. Myers argues that Michigan

has asserted an interest in protecting fetal life at the expense of

the rights of a woman who chooses to have an abortion. Mr.

Myers relies on a case that held the estate of an eight-month-old

viable fetus was eligible to recover under the state’s wrongful

death statute. O’Neil v. Morse, 385 Mich. 130, 188 N.W.2d 785

(1971). This reliance on O’Neil is both misleading and duplici-

tous. Permitting recovery for the wrongful death of a fetus does

not conflict with the rights of the pregnant woman; rather, it

protects the woman’s interests by compensating her for the loss

of her expected child. '° Moreover, Ms. Lewis was in her first tri-

mester of pregnancy and the Michigan Supreme Court has une-

quivocally held that a nonviable fetus is not a ‘‘person’’ within

the wrongful death act. Toth v. Goree, 65 Mich. App. 296, 237

N.W.2d 297, 302 (1975). Mr. Myers cites this case in his petition

but does not disclose its holding. Myers Pet. at 23, n.12.

Mr. Myers also inaccurately claims that Michigau has

adopted a public policy of preferring childbirth over abortion

16 This Court addressed the subject of fetal status under wrongful

death statutes in Roe: ‘‘In a recent development, generally opposed by the

commentators, some States permit the parents of a stillborn child to main-

tain an action for wrongful death because of prenatal injuries. Such an

action, however, would appear to be one to vindicate the parents’ interest

and is thus consistent with the view that the fetus, at most, represents only

the potentiality of life.’’ 410 U.S. at 162 (footnote omitted).

through the recent passage of a statutory amendment proscrib-

ing the use of public funds to finance abortions.'’ Even if this

were true, it would in no way imply that the state had expressed

an interest in ensuring that fetuses are born at the expense of a

woman’s constitutional right to choose abortion. In fact, this

Court expressly held that declining to fund abortion is entirely

distinct from prohibiting abortion. See Harris v. McRae, 448

U.S. 297, 316 (1980); Maher v. Roe, 432 U.S. 464 (1977).

The state has a compelling interest in preserving and protect-

ing the lives and health of pregnant women and protecting the

constitutional rights of its citizens. See Roe, 410 U.S. at 162.

There is no reason to assume that a state would seek to promote

fetal interests where the very rights to life and liberty, including

the right to terminate an unwanted pregnancy, were threatened.

IV. THE MICHIGAN COURT OF APPEALS DECISION IS

CONSISTENT WITH THE DECISIONS OF EVERY

APPELLATE COURT TO CONSIDER THE ISSUE

Mr. Lewis alludes to the fact that since 1973 there have been

‘“‘well over two hundred and fifty abortion cases in lower fed-

eral courts.’’ Lewis Pet. 17. Yet neither petitioner cites a single

case by any court, federal or state, appellate or trial, to support

their frivolous argument that this Court’s decisions hold that

only certain, undefined abortions are constitutionally pro-

tected. To respondent’s knowledge, no court has ever adopted

this distorted interpretation of Roe and its progeny. To the con-

trary, courts have uniformly recognized the right of every adult

woman to decide to have an abortion.

Moreover, every appellate court to consider the issue has held

that a man does not have the right to a court order enjoining a

woman from exercising her abortion right. This has been true in

cases both where the man seeking the court order was the

17 Michigan has provided, and is currently providing, public funds for

abortion. In 1987 the state legislature approved a bill banning Medicaid-paid

elective abortions. However, the law was almost immediately suspended by

the filing of petitions demanding a voter referendum. Letter from Attorney

General Frank Kelly to Social Services Director C. Patrick Babcock (Mar.

28, 1988). Voters will decide whether the new law will go into effect during

the general election in November, 1988.

woman’s husband, Conn v. Conn, 526 N.E.2d 958 (Ind. 1988),

applications for stay denied, No. A-88-55 (U.S. July 22, 1988)

(letter from the Clerk of the Court), petition for cert. filed, 57

U.S.L.W. 3186 (U.S. Sept. 23, 1988) (No. 88-347); Coleman v.

Coleman, 57 Md. App. 755, 471 A.2d 1115 (1984); Doe v. Doe,

365 Mass. 556, 314 N.E.2d 128 (1974), as well as where the man

was not the woman’s husband but claimed to be responsible for

the woman’s pregnancy, John Doe v. Jane Smith, 527 N.E.2d

177 (Ind. 1988), applications for stay denied, 108 S. Ct. 2136

(1988) (Stevens, J., in chambers), No. A-88-55 (U.S. July 22,

1988) (White, J.) (letter from Clerk of the Court); Jane Doe v.

John Smith, No. 84A01-8804-CV-00112, slip op. (Ind. Ct.

App. Oct. 24, 1988); Jones v. Smith, 278 So.2d 339 (Fla. App.

1973), cert. denied, 415 U.S. 958 (1974). See also Przybyla v.

Przybyla, 87 Wis.2d 441, 275 N.W.2d 112 (Wis. Ct. App. 1978)

(woman’s exercise of right to terminate her pregnancy without

consent of husband cannot support recovery by husband for

intentional infliction of emotional! distress). Courts consistently

denied such requests even prior to Danforth:

‘“‘TRoe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton,

410 U.S. 179 (1973)] make crystalline. . . that a woman

in the first trimester of pregnancy, in consultation with her

physician, may elect to terminate the pregnancy, and nei-

ther the state nor the woman’s spouse nor the father of the

child has any right to intervene so as to prevent her deci-

sion from becoming fact.’’

Coleman, 471 A.2d at 1119; see also Doe, 314 N.E.2d 128;

Jones, 278 So. 2d 339.

Vv. NO REASON EXISTS FOR THIS COURT TO TAKE

THE EXTRAORDINARY STEP OF RECONSIDERING

ITS WELL-ESTABLISHED AND UNBROKEN PRECE-

DENT RECOGNIZING A WOMAN'S RIGHT TO END

AN UNWANTED PREGNANCY.

Petitioners’ arguments are so wholly without merit that peti-

tioners are left to argue that this Court should reconsider its

decision in Roe v. Wade, 410 U.S. 113. This request, which

would be extraordinary in any case, is ludicrous here because

petitioners would not prevail even if a woman’s right to choose

abortion were not constitutionally protected. As explained

above, the state of Michigan has not asserted any interest in

stopping Ms. Lewis from obtaining an abortion, nor have peti-

tioners established any state action interfering with any rights

of Mr. Lewis.

There is no valid reason to ignore the principle of stare decisis

by reconsidering Roe. Petitioners’ arguments require overrul-

ing, not merely ‘‘reconsidering,’’ Roe as well as fifteen years of

Supreme Court precedent reaffirming a woman’s constitutional

right to choose abortion. Overruling Roe and its progeny would

also cast serious doubt on a long series of landmark Supreme

Court rulings recognizing the right to privacy that spans back at

least to 1923. As the Court made clear, Roe was a natural out-

growth of a gradual process of evolution involving the recogni-

tion of our basic liberties including the liberty to decide for

ourselves when and whether to marry, see Loving v. Virginia,

388 U.S. 1 (1967), how to raise and educate our children, see

Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of

Sisters, 268 U.S. 510 (1925), and how much of our most per-

sonal lives to disclose to the world, see Katz v. United States,

389 U.S. 347 (1967), as well as the right to decide whether to

conceive or bear children, see Skinner v. Oklahoma, 316 U.S.

535 (1942); Griswold v. Connecticut, 381 U.S. 479 (1965).'8

In support of their request, petitioners offer a variety of

arguments, all founded on the premise that we know more now

about abortion than we did in 1973 and that the purported

“‘advances’’ in legal scholarship, scientific knowledge, and

understanding of the social implications of abortion since then

justify rejecting Roe.

The petitioners’ premise is false. Henry Wade, District Attor-

ney of Dallas County in 1973, argued extensively in his brief in

Roe that ‘“‘modern science—embryology, fetology, genetics,

18 The Court noted in Roe, 410 U.S. at 152, that it had recognized the

right to privacy as far back as 1891. See Union Pac. Ry. v. Botsford, 141

U.S. 250, 251 (1891). The Court wrote in Botsford that ‘‘[{njo right is held

more sacred, or is more carefully guarded by the common law, than the right

of every individual to the possession and control of his own person.”’

perinatology, all of biology—establishes the humanity of the

unborn child.”’ Brief for Appellee at 31, Roe, 410 U.S. 113. The

brief cited literally dozens of scientific articles and included

photographs of fetuses at forty days, six weeks, nine weeks, ten

weeks, twelve weeks, sixteen weeks, seventeen weeks, and eight-

een weeks. Jd. at 35-51.’ In addition, Wade cited extensive

caselaw in support of his claim that the fetus should be treated

as a ‘‘person’’ under the law. This Court carefully considered

and deliberately rejected these arguments. Roe, 410 U.S. at 156-

162.

Moreover, petitioners could not argue, indeed do not argue,

that we know more now than in 1986, when the Court upheld

the right to choose abortion in Thornburgh, 476 U.S. 747, or in

1983 when it decided Akron, 462 U.S. 416. The same arguments

were made and rejected by the Court in these cases. In Akron,

the Court enumerated the ‘‘especially compelling reasons for

adhering to stare decisis in applying the principles of Roe v.

Wade:”’

That case was considered with special care. It was first

argued during the 1971 Term, and reargued—with exten-

sive briefing—the following Term. The decision was

joined by The Chief Justice and six other Justices. Since

Roe was decided in January 1973, the Court repeatedly

and consistently has accepted and applied the basic princi-

ple that a woman has a fundamental right to make the

highly personal choice whether or not to terminate her

pregnancy. See Connecticut v. Menillo, 423 U.S. 9 (1975);

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52 (1976); Bellotti v. Baird, 428 U.S. 132 (1976); Beal

v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464

(1977); Colautti v. Franklin, 439 U.S. 379 (1979); Bellotti

19 See also Drama of Life Before Birth, Life Magazine, Apr. 30, 1965

(showing color photographs, eight years before Roe, of fetuses in utero); K.

Luker, Abortion & the Politics of Motherhood 23-27 (1984) (discussing wide-

spread knowledge of fetal development in the Nineteenth Century and stating

that early ‘‘{pJopular (and legal) acceptance of abortion was not based on

ignorance of ‘the facts,’ as physicians asserted, but on a different moral eval-

uation of the facts.’’) (emphasis in original).

v. Baird, 443 U.S. 622 (1979); Harris v. McRae, 448 U.S.

297 (1980); H.L. v. Matheson, 450 U.S. 398 (1981).

462 U.S. at 420 n.1. The petitioners in this case offer no new

information and no original rationale for reversing this Court’s

long-established precedents.

CONCLUSION

For the foregoing reasons, the petitions for a writ of certio-

rari should be denied.

November 2, 1988

DAWN JOHNSEN

National Abortion Rights

Action League

1101 14th Street, NW

Washington, D.C. 20005

(202) 371-0779

Respectfully submitted,

JANET BENSHOOF

Counsel of Record

LYNN PALTROW

RACHAEL PINE

American Civil Liberties Union

Reproductive Freedom Project

132 West 43 Street

New York, New York 10036

(212) 944-9800

LINDA L. PYLYPIW

SHELLEY R. SPIVACK

720 Church Street

Flint, Michigan 48502-1172

(313) 234-0980

Counsel for Respondent

APPENDIX

TABLE OF CONTENTS

PAGE

Affidavit of Shawn Lewis, 9-16-88................... la

Attachment: Police Reports Regarding Carlton Lewis 8a

Affidavit of Shawn Lewis, 9-28-88................... 13a

Complaint Filed with Genesee County Osteopathic Medi-

ee I UPR pc ccc ccc ccc ccccccccese l6a

Attachments: Affidavit of Shawn Lewis, October 14,

ee ae kates ceessccs 17a

ee GI EO BOE SLOT 55. cc ce ccc cee 19a

Declaration of Linda Pylypiw, 10-28-88

(original on file with counsel for Respondent)....... 20a

Criminal Record of Carlton Lewis, 9-28-88 ........... 22a

Lewis Says Spouse Threatened Her Life, The Detroit

i ck uss s eer secccces 24a

2 Left Bitter By Abortion, The Detroit News, Oct. 5,

ST a 26a

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

CASE No. 88-158036-DM

JUDGE VALDEMAR WASHINGTON

—

SHAWN KATHLEEN LEWIS,

Plaintiff

—

CARLTON JAMES LEWIS,

Defendant

ARTHUR C. SWIRTZ P21214

Attorney for Plaintiff-Appellant

702 Church Street

Flint, Michigan 48502

313-235-2929

ACLU FUND OF MICHIGAN by:

SHELLY R. SPIVACK P32615

LINDA L. PYLYPIW P29578

Of Counsel on the Issue of

Injunction

Attorneys for Plaintiff

720 Church Street

Flint, Michigan 48502-1172

STEVEN W. Moss P40411

Attorney for Defendant-A ppellee

404 N. Linden Road

Flint, Michigan 48504

313-230-0080

GENE MYERS P18139

Guardian ad Litem

1023 Church Street

Flint, Michigan 48502

313-234-3693

JAMES BopP Jr.

RICHARD E. COLESON

Attorneys for Guardian ad Litem

191 Harding Ave., P.O. Box 410

Terre Haute, Indiana 47808

812-238-2421

AFFIDAVIT

STATE OF MICHIGAN)

COUNTY OF GENESEE) ss.

Now ComMEs Piaintiff-Appellant, SHAWN KATHLEEN

LEWIS, and after being duly sworn deposes and says:

I believe I first met my husband in February of 1985. I met

him through some friends of ours. A group of about 17 of us all

went camping together in northern Michigan in May 1985. We

didn’t start dating until October 1985.

In December of 1985, he moved into my home; and, we got

engaged in February 1986. We were married in July 1986 and

we had been married two weeks when I found out that I was

three weeks pregnant. From that day on, I was continually ill. I

had high blood pressure, high blood sugar, kidney infection

(for which they hospitalized me for a week). I was restricted to

my bed for three months before I had Christopher, who was

born on April 9, 1987. I was unable to take care of my husband

or my house; and, my mother had to come in to clean and cook

for us.

Carl left three times during the pregnancy for about two

weeks each time. Just before Christmas 1986 he left. He said

that he couldn’t handle it that I couldn’t go anywhere or do

anything and that I was constantly ill. He went and lived with

his brother; and, at that time, he stated that he did not want the

child that I was carrying. I went to his brother’s house and

begged him to come back.

He left again the end of January or beginning of February

1987. We were fighting because he wanted to go to his cousin’s

home, someone I didn’t approve of because he is a heavy

drinker and Car] was influenced by this cousin. I wanted him to

stay with me; but, he told me to get out of the car and dropped

me off by the overpass at Court Street and Dort Highway. I

walked home in the snow, 7 months pregnant, in cowboy boots

and a light jacket. 1 got about three blocks from home after I

had walked almost two miles when he sent a friend, Joe

Stevens, to pick me up. When I got home, Carl had taken all of

his things and moved to his brother’s.

I don’t remember the specifics of when he left the third time

during my pregnance [sic]; however, when Christopher was

born in April, when he was 5 weeks old—about May 24th,

which is around the time he beat me up (a copy of the police

report is attached), he left again. At that time, I was undergoing

heart testing because my father had just had open heart surgery

for a diseased valve which was hereditary. In addition, I had an

infection in my tubes from the pregnancy.

When he left that time, both Carl and his mother threatened

to take Christopher away from me. I was in the phone booth at

the hospital talking to Carl on the phone when his mother got

on the phone and said they were going to get a lawyer to take

the baby away from me. I was at the hospital visiting my father.

At that time we had been fighting a lot because I didn’t want

to let his mother take care of Christopher. Each time I let her

take him, she wouldn’t feed him every three hours as directed

and he returned with diaper rash because of her not changing

his messy diapers. Each time I let her take care of Christopher,

he was a mess by the time I got back. Carl and I fought because

I wanted my mother to watch Christopher but didn’t want his

mother to.

When Carl left that time, he went to his mother’s for at least

two weeks. Each time he was gone, he was gone about two

weeks—long enough to get a full paycheck and spend it on him-

self. Then he would come back.

After he came back home, he didn’t have a lot of patience

with the baby. He never bathed the baby. Once in a while, he’d

change a diaper. More or less, Christopher got in the way

because we couldn’t do things like we had been able to do

before Christopher was born. He worked second shift and

would want to go out after he got home from work. I couldn’t

go out because I would have to be up at 6 o’clock in the morn-

ing and take care of the baby. We fought a lot about that.

I never left Carl alone with Christopher very often because he

would run out of patience and yell. One time when I let [sic]

him with Christopher, he let Christopher fall off the couch and

badly scratched his head.

Things were better until he left again November 1, 1987. He

took our son trick-or-treating the night before and I thought

everything was okay. He left and went to his mother’s house.

The next day he called my parents and told them that he no

longer could handle it, that he didn’t want the responsibility of

Christopher and me, and to find someone else to take care of

us. On November 2nd, I went down and filed for ADC.

At that time, the heat bill was at least 2 months behind, the

water was to be turned off, and the phone had been turned [sic]

because the bills hadn’t been paid in a couple of months. He

spent the money on his dune buggy. I applied for emergency

help for the water, emergency food stamps, and I had to bor-

row money from my parents for diapers, etc.

In January, the day I filed for divorce and custody of Chris-

topher, the reason I called Mr. Swirtz was because Carl had

called and threatened to take Christopher and move down

south so I would never see Christopher again.

Carl had a nervous breakdown near the end of February. He

had broken into my house (police report attached). Dr. John

Stoker treated him with anti-depressants. He was hospitalized

but I don’t know for how long or where he was hospitalized. I

talked with Mr. Swirtz about it. He, in turn, talked to Carl's

attorney who denied it. I was concerned about allowing Carl to

have Christopher for visitation because of the medication he

was on and the alleged drug overdose of prescription pills and

cutting his wrists.

After that, we met with Mr. Swirtz and Mr. Moss. At that

time, we decided to go to a marriage counselor. We went

approximately five times and then Carl wouldn’t go anymore. I

talked to Mr. Earley over the phone after that; and, he told me

that those things often happen when | spouse is told that things

that happened and his reasons for leaving are not legitimate rea-

sons, and that Carl probably didn’t want to acknowledge the

problems he was confronted with so he stopped going.

During that time there were more break-ins (police reports

attached). On March 6, Carl had broken into the home. I had

left the phone book open to where I was. It was his visitation

weekend. He dropped Christopher off at a neighbor’s house

because he didn’t want Christopher any more (copy of state-

ment from neighbor is attached). I pulled in the driveway and

Carl was sitting out in the street. He said, ‘‘Your precious little

son is at one of the neighbors’ houses.”’

I went inside the house and called the police. Before they

arrived, I wanted [sic] to three different houses to look for

Christopher before I found him. I returned to the house and

there was broken glass everywhere and the front screen was all

bent and ripped. Once I got inside the house, I sat down with

Christopher and waited for the police.

While I was waiting, Carl returned and he was standing over

me when Policeman Chris Blinkilde arrived. The officer asked

me what was happening and he separated Carl and me. I told

him I wanted Carl out of the house, that he had broken into the

home through the front window. At that point, Carl took a

handful of pills out of his pocket and put them into his mouth

in front of the officer. The officer handcuffed him, put him in

the police car and took him downtown.

Just before Father’s Day, I told Carl that he could have visi-

tation on Father’s Day; and, on Father’s Day morning, Carl

called to say that the didn’t want Christopher that day. So, I

took the baby to my parents’ house where we spent the day.

Since then, the break-ins have continued and on July Ist, he

refused to pay any additional child support. He didn’t pay any

support again until September, just before we went to court for

the abortion issue.

Since the Circuit Court hearing on the abortion issue, he has

continuously harassed me, threatened me. I’ve had to leave my

home because he wouldn't leave us alone. He would call at |

o’clock in the morning, 5 o’clock in the morning. After I went

to stay with my parents in Waterford, he still called long-

distance to harass us.

I did inform the Friend of the Court of my leaving town and

the reasons. I was concerned with visitation at that time; and, |

did talk to Nancy Stockham regarding allowing him visitation.

She told me not to worry about letting Carl have visitation. She

said that situation was unstable and that I shouldn’t worry

about the visitation. An investigation was pending. Following

that, both Mr. Swirtz and Nancy Stockham went on vacation.

Since then, it has been complete harassment and threats. He

has called at least two or three times a day. If he didn’t call, he

was there in the morning and at night. He would stand outside

banging and screaming and yelling and pounding on the win-

dows. The police were usually called. One weekend he did it and

three police cars came. They wouldn’t do anything because he

was just sitting in front of the house. I called Mr. Swirtz (on a

Saturday) and he talked to the police officers but they still let

him go.

On September 15, 1988, I was gone all day so I left the

answering machine on. When my mother and I got home about

5 o’clock, there as a message from Carl; and, he said that if I

had done what he thought I had done, he would take Chris-

topher and I would never see him again and, ‘‘That’s a prom-

ise.’”

At the present time, Carl is staying with his sister, Lynn Les-

ter; his 9-year-old niece, Kandi Lester; and Ken Robertson, his

sister’s boyfriend. Sometime ago, I was at this house when

Kandi came into the room and said to her mother, ‘‘Mom, |

don’t want to smoke a joint with you.’’ Then Kandi went out-

side and brought in some little green ‘‘pods’’ and asked me if I

wanted some ‘‘pot’’. I corrected her and told her they were

pods and she said, ‘‘No, pot!”’

I have received a letter from Carl’s mother, Geraldine Lewis,

dated May 23, 1987, in which she acknowledged that Lynn

smoked pot and, in Geraldine’s opinion, that was no worse

than drinking.

I am afraid that Carlton will kidnap Christopher to prevent

me from having him and I am afraid to let Christopher go with

Carlton for visitation at the home at which Carlton is staying.

I am willing to allow Carlton to have supervised visitation of

Christopher; and, we have mutual friends, Bob and Eva

Andrews, who live at Myrtle Grove Trailer Park and whose tel-

ephone number is 767-2571.

Further, Deponent sayeth not.

SHAWN KATHLEEN LEWIS

Shawn Kathleen Lewis

STATE OF MICHIGAN)

COUNTY OF GENESEE) ss.

Subscribed and sworn to before me this 16th day of Septem-

ber, A.D., 1988

ANN KAREN WICK

Ann Karen Wick, Notary Public

Genesee County, Michigan

My commission expires: 1-15-92

Prepared by:

ARTHUR C. SWIRTZ P21214

Attorney at Law

702 Church Street

Flint, Michigan 48502

313-235-2929

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STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

CASE NO. 88-158036-DM

JUDGE VALDEMAR WASHINGTON

SHAWN KATHLEEN LEwISs,

Plaintiff

—Y .—

CARLTON JAMES LEWIS,

Defendant

ARTHUR C. SWIRTZ P21214

Attorney for Plaintiff-Appellant

702 Church Street

Flint, Michigan 48502

313-235-2929

ACLU FUND OF MICHIGAN by:

SHELLY R. SPIVACK P32615

LINDA L. PYLYPIW P29578

Of Counsel on the Issue of

Injunction

Attorneys for Plaintiff

Flint, Michigan 48502-1172

313-234-0980

STEVEN W. Moss P40411

Attorney for Defendant-A ppellee

[sic]

404 N. Linden Road

Flint, Michigan 48504

313-230-0080

l4a

GENE MYERS P18139

Guardian ad Litem

1023 Church Street

Flint, Michigan 48502

313-234-3693

JAMES Bopp Jr.

RICHARD E. COLESON

Attorneys for Guardian ad Litem

191 Harding Ave., P.O. Box 410

Terre Haute, Indiana 47808

812-238 2421

AFFIDAVIT

STATE OF MICHIGAN)

COUNTY OF GENESEE) ss.

Now Comes Plaintiff-Appellant, SHAWN KATHLEEN

LEwIS, and after being duly sworn deposes and says:

At approximately 12:30 p.m. today, Carl Lewis pulled up in

the driveway. I did not hear him pull up. I heard a knock on the

door and saw Carl Lewis’ truck and immediately dead-bolted

the door. I looked out the window. Carl said he wanted to come

in and talk to me, and I would not reply. He proceeded to kick

the steel door in, and enter my home. He started towards me,

and my friend, Julie Murphy, immediately came between us.

She grabbed his arm to pull him away, and I went to the other

side of the room. He then began accusing me of killing his

baby. He asked me if I did kill his baby, and I would not reply.

Julie then spoke and said he did not know if that was true. Julie

told him to leave, while I called the police. He left before the

police arrived.

Further, Deponent sayeth not.

SHAWN KATHLEEN LEWIS

Shawn Kathleen Lewis

15a

STATE OF MICHIGAN)

COUNTY OF GENESEE) SS.

Subscribed and sworn to before me this 28th day of Septem-

ber, A.D., 1988

MICHELLE R. RAMBURG

Michelle R. Ramburg, Notary Public

Genesee County, Michigan

My commission expires: 12-08-91

Prepared by:

ARTHUR C. SWIRTZ P21214

Attorney at Law

702 Church Street

Flint, Michigan 48502

313-235-2929

l6a

Linda L. Pylypiw

Attorney at Law 720 Church Street

Flint, MI 48502-1172

(313) 234-0980

October 19, 1988

Carol Bowman

Genesee County Osteopathic Medical Association

3921 Beecher Road

Flint, MI 48532

RE: John Stoker, D.O.

Dear Ms. Bowman:

Enclosed please find a copy of the Affidavit that has been

filed with the U.S. Supreme Court on my client’s behalf. As

you can see, it is Ms. Lewis’ position that Dr. Stoker released

information regarding her without her permission. This infor-

mation was released with the prior knowledge that the parties

were in a hotly contested divorce case regarding Ms. Lewis’

wish to terminate her pregnancy. As is evident by the attached

statement, Dr. Stoker had already given a written statement to

Ms. Lewis indicating that the termination of her pregnancy was

warranted for her health. The statement given to Mr. Lewis was

directly contradictory to his previous statement and is in error.

Both statements were written without a physical examination of

Ms. Lewis having been had.

Ms. Lewis’ wishes to have this matter investigated regarding

Dr. Stoker’s breach of the physician-patient privilege. Also, in

light of the serious damage that the misdiagnosis has done to

Ms. Lewis, she would request that Dr. Stoker be ordered to

retract his diagnosis as not being accurate. If you need any fur-

ther information from my client or me, please feel free to con-

tact me.

Yours truly,

LINDA L. PYLYPIW

Linda L. Pylypiw

Attorney at Law

17a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

Case No. 88-555

aos

GENE MYERS, Guardian ad Litem,

Petitioner

—

SHAWN KATHLEEN LEWIS,

Respondent

AFFIDAVIT OF RESPONDENT

Now CoMES the Respondent, herein, SHAWN KATHLEEN

LEWIS, being first duly sworn, and says:

1. That your affiant is the respondent herein and the Plain-

tiff in the original cause of action, an action for divorce filed in

Circuit Court for the County of Genesee, State of Michigan,

Case #

2. That your affiant has been advised that attached to the

Petitioner’s Petition for Writ of Certiorari to the Michigan

Court of Appeals filed with this Court is a statement from Dr.

John Stoker, D.O. Your affiant has been further informed and

believes that the statement was given to her estranged husband,

Carlton Lewis, for use in the instant case.

3. That Dr. John Stoker was her treating physician for her

first pregnancy.

4. That from the date of conception of the fetus at issue

here, she has not been treated by Dr. John Stoker regarding her

pregnancy. Dr. Stoker has not physically examined her in con-

junction with the pregnancy at issue here. Dr. Stoker has only

18a

spoken to your affiant on one occasion regarding this preg-

nancy.

5. That no release of medical records was signed authorizing

release of information to Carlton Lewis, James Bopp, Jr., or

anyone acting on their behalf, nor was a release of medical rec-

ords given orally.

6. That your affiant does not wish to waive the Physician-

Patient privilege to allow this information to be divulged.

7. That your affiant has filed a complaint with the governing

body that licenses Osteopathic doctors against Dr. John Stoker,

D.O., because of this breech of confidentiality.

Your affiant sayeth further not.

Dated: October 14, 1988

SHAWN KATHLEEN LEWIS

Shawn Kathleen Lewis

STATE OF MICHIGAN )

) ss

County of Genesee _ )

On this 14th day of October, 1988, before me personally

appeared the above named SHAWN KATHLEEN LEwis to me

known to be the person named in and who executed the within

affidavit and who stated under oath that the contents thereof

are true to the best of her information, knowledge and belief.

JUANITA L. KUZAVA

Juanita L. Kuzava

Notary Public, Genesee County, Michigan

My commission expires: October 10, 1989

Prepared by:

LINDA L. PYLypriw (P29578)

19a

VALLEY MEDICAL CENTER

John L. Stoker, D.O., P.C.

G-5142 Miller Road

Flint, Michigan

(313) 733-3660

AUGUST 18,1988

TO WHOM IT MAY CONCERN:

SHAWN LEWIS HAD A DIFFICULT TIME WITH HER

FIRST PREGNANCY ON THE DATE OF 04/09/87

AND SHE CANNOT HANDLE THE STRESS AT THIS

Oh, XWin Lit

JOHN L STOKER DO.

20a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

Case No. 88-555

GENE MYERS, Guardian ad Litem,

Petitioner

—

SHAWN KATHLEEN LEWIS,

Respondent

Case No. 88-____

CARLTON JAMES LEWIS,

Petitioner

— Ss

SHAWN KATHLEEN LEwIS,

Respondent

DECLARATION

1. I have read both the Petition for a Writ of Certiorari filed

with the U.S. Supreme Court on behalf of Gene Myers on Sep-

tember 30, 1988 and the Petition for a Writ of Certiorari filed

on behalf of Carlton Lewis on October 21, 1988. I submit this

declaration to correct serious factual misstatements that appear

in both petitions concerning a meeting that occurred in Judge

Washington’s chambers on August 19, 1988 in connection with

this case.

2. To my knowledge, no transcript was made of the August

19th meeting.

2la

3. I was not physically present at the meeting. Steven Moss

was present in Judge Washington’s chambers and I was con-

tacted by telephone.

4. Both petitions state that during that conversation I con-

ceded that Shawn Lewis’ attending physician had made the

medical judgement that an abortion was not medically neces-

sary for Ms. Lewis’ well-being. I made no such concession. |

stated only that I had no medical documentation that an abor-

tion was medically necessary.

5. I also never conceded that Dr. John Stoker was Ms.

Lewis’ attending physician in connection with this pregnancy,

because he was not. Dr. Stoker never physically examined or

treated Ms. Lewis in connection with this pregnancy. In addi-

tion, Ms. Lewis never consented to the release by Dr. Stoker of

information about her medical condition. I have filed, on

behalf of Ms. Lewis, a complaint with the Genesee County

Osteopathic Medical Association requesting that Dr. Stoker be

ordered to retract this diagnosis as inaccurate. Moreover, to the

extent Dr. Stoker had information about Ms. Lewis’ medical

condition the release of such information was a breach of the

physician-patient privilege.

I declare under penalty of perjury that the foregoing is true

and correct.

Executed on October 28, 1988

LINDA L. PYLYPIW

Linda L. Pylypiw

22a

C#31565

68th DISTRICT COURT RECORD

(For misdemeanors)

Date 9-28-88 Time 2:01 PM. Officer Villarreal

Name Carlton J. Lewis Address 3073 W. Dayton #28

Offense Unlawful Entry

By Kicking in front door at 3235 Churchill

At 3235 Churchill

HISTORY

Sir:

On 9-28-88 (Wed) while assign to dist B-12, I received radio

call to phone Sgt. Simms at the desk. I then called Sgt. Simms,

and she informed me to stop by 3235 churchill because Mrs

Lewis was having trouble with her ex-husband. At approx. 2:01

pm I stopped by 3235 Churchill when I was met by a f/w later

1.D. as Shawn Lewis f/w/25 of 3235 Churchill. Mrs. Lewis then

stated that at approx. 12:30 pm today her Husband Carlton J.

Lewis came over to her house, at which Shawn locked the door

Carlton then knocked several times but was not admitted to the

house. At this time Carlton kicked the door opening same,

Carlton then entered Shawn house and

CONT.

23a

BUREAU OF IDENTIFICATION

CRIMINAL RECORD

stated to Shawn ‘SHAVE YOU KILLED My BABY YET,

BECAUSE IF YOU Do I’AM GOING TO KILL YOu.”’ At this time

Shawn’s room mate Julie Murphy f/w/24 grabed and threw

Carlton out the door. Carlton then got into his truck and left

from this location in unknown direction.

I then talked to Julie Murphy f/w/24 and she stated the same

story as Shawn had stated.

Sgt. Simms arrived on the scene at approx. 1:50 pm, and gave

the ok for I.B. to come out and take some pictures of the dam-

age to the front door.

Mrs Lewis also stated that Walter Kosiba m/w/ad also wit-

ness the unlawful entry, because he was next door working on

the house outside. Mr. Korsiba left a card with Mrs Lewis from

East Village Construction phone #238-1499, but I have not been

able to talk to him

On September 29, 1988 Sgt McManaman talked with Witness

Walter Kosiba who stated that on 9-28-88 at approx 12:15A he

was working in the area of 3235 Churchill when he observed a

Chevrolet pick-up pull up at 3235 Churchill. The driver got out

of the truck and ran up to the door. He banged on the door yell-

ing, ‘‘You killed my baby’’. The subject opened the storm door

and kicked the inner door with his right foot, gaining entry.

Kosiba heard loud screaming and yelling coming from inside

the house. The subject exited the house, got back into the truck,

and drove away. :

Sgt McManaman talked with complainant Shawn Lewis who

related that in Nov, 1987 her husband Carlton Lewis, moved

out of the home ai 3235 Churchill. Due to the fact that he con-

tinued to return and break-in, eviction papers were served on

her husband in April 1988 by Court Officer William McAuley.

Carlton Lewis, upon receiving the papers, returned to the house

and removed furniture. He has all of his personal items and

clothing out of the house as they were taken out in November

when he moved.

24a

THE DETROIT NEWS

Saturday, October 1, 1988

Lewis says spouse threatened her life

Husband in Flint abortion

case faces criminal charge

By Jim Mitzelfeld

News Staff Writer

A Flint man who lost a U.S.

Supreme Court bid to stop his

estranged wife from having an

abortion has been accused of

threatening to kill her and

faces criminal and _ civil

charges as a result.

Shawn Lewis’ attorney filed

a petition Friday to have her

estranged husband, Carlton

Lewis, found in contempt of

court for violating an April 21

court order barring him from

threatening or assaulting her.

AN ARREST WARRANT

was signed Thursday charging

him with unlawful entry—a

misdemeanor—for a Wednes-

day incident during which he

allegedly kicked in the door of

his wife’s house.

According to a Flint police

report, Carlton Lewis barged

into the house, demanded to

know if she had had the abor-

tion and said, ‘‘. . . if you

did, I’m going to kill you.’’

Shawn Lewis was not

injured during the confronta-

tion, police said.

Monday, the U.S. Supreme

Court refused to overturn a

Michigan Appeals Court rul-

ing upholding Shawn Lewis’

right to an abortion despite

her husband’s objections. Her

attorneys have refused to say

whether she has had an abor-

tion.

Genesee County Circuit

Judge Valdemar Washington,

who is presiding over the

couple’s stormy divorce,

scheduled a court hearing for

Monday to consider Shawn

Lewis’ charge that Carlton

Lewis violated an injunction

barring him from threatening

her.

NO ARRAIGNMENT date

has been set on the criminal

charge, however, and police

have no plans to look for

Lewis because the charge

against him is only a misde-

meanor, Flint Police Capt.

Michael Hanna said.

Arthur Swirtz, Shawn

Lewis’ divorce attorney, has

also asked for a new court

order barring Carlton Lewis

from Shawn Lewis’ Flint

home.

—iamaaenenara seem

25a

Steven Moss, Carlton

Lewis’ attorney, said he

couldn’t comment on _ the

alleged threat because he

hasn’t been able to locate his

client.

“‘The biggest thing I’ve

asked him is don’t go over

there, don’t bother them,”’

Moss said.

“If he did it, I can under-

stand. He’s hurting. I under-

stand his grief but that doesn’t

mean that’s the right thing to

do.

‘**T don’t know what I would

do if that was me. I might beat

the hell out of her.”’

ACCORDING TO court

records, Wednesday wasn’t

the first time Carlton Lewis

had threatened his wife with

violence. A judge issued a

restraining order in April

warning him he would be

thrown in jail if he tried to

hurt his wife.

In court papers filed Friday

by her attorney, Shawn Lewis

claims Carlton Lewis called

her Sept. 15 and ‘‘. . . said

that if I had done what he

thought I had done, he would

take Christopher (the couple’s

son) and I would never see

him again.’’

26a

THE DETROIT NEWS

Wednesday, October 5, 1988

2 left bitter by abortion

Court case, media glare take toll on Flint couple

By Jim Mitzelfeld

News Staff Writer

Shawn Lewis said Tuesday she can understand why her

estranged husband went to court to try and stop her from hav-

ing an abortion, but she still believes getting an abortion was

the right thing.

Carlton Lewis said he still has trouble understanding how the

judicial system failed him, but said his wife now will have to

face a higher authority—God.

“1 do understand his side completely. I feel sorry for him,”’

~Shawn Lewis said in her first public comments since winning

her seven-week court battle to overturn an Aug. 9 injunction

barring her from having an abortion.

In an interview on the front steps of her modest, single-story

wood-frame home in Flint, Shawn Lewis said she was relieved

to finally tell her side of the story that drew national attention

and dashed any hopes of saving their stormy marriage.

SHE SAID she has been taking life ‘‘one day at a time’ and

trying to get things back together in the wake of the U.S.

Supreme Court ruling last week that cleared the way for her to

terminate her il-week-old pregnancy.

The 24-year-old unemployed mother said she doesn’t believe

she should have to explain why she wanted an abortion but

admitted that the emotional and physical strain of her first

pregnancy—which resulted in the birth of the Lewises’ son,

Christopher—convinced her she never wanted to have more

children.

The heavy-set Lewis, whose red hair outlines a freckled, che-

rubic face, described how her veins collapsed and she was hos-

pitalized for a week with a kidney infection during her first

pregnancy. She suffered high blood pressure and a blood-sugar

imbalance and was bedridden for the final two months.

Please see Lewis/12A

27a

Lewis

Abortion battle leaves hus-

band, wife both bitter

From page 1A

*‘I was sick all the way

through it,’’ she said.

THE ILLNESS she faced

during her first pregnancy

‘‘was a big part’’ of her deci-

sion to have an abortion, she

said.

She said she was moved to

end her silence because there’s

been ‘‘so much garbage that’s

been printed’’ about the case.

She said she was traumatized

by the media coverage, which

included television camera

crews chasing her out of

court.

**It was hard enough. That

just made it harder,”’ she said.

Carlton Lewis, broke and

bitter about the refusal of the

nation’s highest court to halt

the abortion, said he never

will forgive his wife for her

decision.

**I COULD tell she felt bad

for me. But as far as her con-

cern that she kilied a baby, she

didn’t have any concern for

that,”’ he said, recalling his

feelings when she admitted to

him Sunday that she had gone

ahead with the abortion.

**She was kind of callous,

like it was never really there.

Like it was a growth and a

cancer and she just got rid of

He said his wife may have

won in the courts but eventu-

ally will have to answer to a

higher authority.

‘‘I believe that there’s a

heaven and a hell. I guess

Shawn better do a lot of pray-

ing or she’s going to hell,’’ he

said.

SHAWN LEWIS said she’s

not surprised by her hus-

band’s angry words, but she

said she tried to break the

news to him as gently as she

could. She denied his assertion

that she only had the abortion

to get back at him.

‘“‘No. Nothing was done to

hurt him,’’ she said. ‘‘Car]

says a lot of things when he’s

angry. He asked about the

abortion and I told him. I

think he had a right to know

more than anyone else.’’

Carlton Lewis, a 25-year-

old school custodian, said the

lengthy court fight left him

with $10,000 in legal bills and

shattered his faith in the

American judicial system and

the country.

He said his wife had an

unfair advantage in the cus-

tody battle over the fetus

28a

because she received the free

legal assistance of the Ameri-

can Civil Liberties Union.

He was forced to pay his

own attorney fees without any

support from abortion oppo-

nents, who he labeled ‘‘hypo-

crites’’ for failing to lend any

financial support.

THE ONLY help he’s got-

ten so far, he said, were $70 in

contributions from two indi-

viduals who read about his

plight.

**The worst thing I’m wor-

ried about right now is I’m

just flat broke. I don’t know

how I’m going to pay my bills.

I don’t even have food for

myself.’’

Carlton Lewis said he

brings home $180 a week from

his job sweeping floors at the

Genesee Intermediate School

District’s Center for the

Severely and Physically Hand-

icapped. Out of that, he has to

pay $50 a week in child sup-

port, and he said he’s behind

in rent on his mobile home.

The thin, bearded husband

talked about the case while sit-

ting on a bench Tuesday in the

Flint Police Department

awaiting arraignment on a

misdemeanor charge stem-

ming from an incident last

Wednesday when he allegedly

kicked in his wife’s door and

threatened to kill her.

FLINT DISTRICT Judge

Michael McAra accepted his

not-guilty plea and released

Carlton Lewis on his own

recognizance. He faces an

Oct. 24 preliminary hearing

on one count of unlawful

entry. The maximum punish-

ment is 90 days in jail and a

$500 fine.

Christopher Lewis denied

threatening his wife, but

Shawn Lewis said the couple’s

brief marriage was dotted with

violence.

Records on file with Flint

Police Department show that

Shawn Lewis called the police

on six different occasions

between May 24, 1987 and

Carleton Lewis arrest Tues-

day. The complaints included

her allegations that he broke

into her house several times,

hit her once and threatened to

kill her on another occasion.

Carlton Lewis denied ever

striking his wife, but added:

“If it would have been any

other man there, she would

have had her butt kicked sev-

eral times.”’

Carlton Lewis said the mar-

riage fell apart because his

wife refused to clean house,

cook him dinner or do any-

29a

thing. She said she accepts

half the blame for their trou-

bles, but thinks he also must

accept responsibility.

He finally moved out last

November, and she filed for

divorce Jan. 20. She became

pregnant July 7 when a sper-

micide she used failed during a

brief attempt at reconcilia-

tion.

When he discovered she was

pregnant, he went to court to

bar her from having an abor-

tion. The Michigan Court of

Appeals lifted the injunction

and the case was appealed

until the U.S. Supreme Court

refused to consider it on an

emergency basis.

TUESDAY, Shawn Lewis

said she is no longer afraid her

husband will hurt her, but

only hopes they can some day

be friends again.

‘*T hope so. We have a son.

So we have to try,”’ she said.

Carlton Lewis said he is just

hoping that those in the public

who believe he was right in

fighting to see his child born

will help him pay his bills.

‘It would be nice. I would

appreciate the help,’”’ he said.

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.