Petition — Connecticut v. Menillo

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IN THE

Supreme Court of the Gnited States

October Term, 1974

THE STATE OF CONNECTICUT,

Petitioner,

Vv.

PATRICK MENILLO,

Respondent.

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PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

——— eee eee ee Se eee

FRANCIS M. MCDONALD

State’s Attorney

Judicial District of Waterbury,

Waterbury, Connecticut 06702

Box 1245

Attorney for the Petitioner.

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IN THE

Supreme Court of the Anited States

October Term, 1974

THE STATE OF CONNECTICUT,

Petitioner,

Vv.

PATRICK MENILLO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

The petitioner, The State of Connecticut, respectfully prays

that a Writ of Certiorari issue to review the judgment and

opinion of the Supreme Court of the State of Connecticut entered

in this proceeding on March 25, 1975.

1. Citation

A decision of the Connecticut Supreme Court, State v. Patrick

Menillo, Vol. XXXVI, No. 39, Conn. L.J. p. 26 (March 25,

1975), a copy of which is annexed hereto. Said decision is re-

ported as State v. Menillo, —Conn.—, —A.2d—(1975).

2

ll. Jurisdictional Grounds

On March 25, 1975, the Connecticut Supreme Court entered

judgment reversing the conviction of Patrick Menillo for the

crime of attempting to procure an abortion. The Jurisdiction of

this Court is invoked under authority of 28 U.S.C. Section 1257

(3).

lll. Questions Sought to be Reviewed

1. Does the defendant, Patrick Menillo, a male person, not

licensed to practice medicine or surgery, have the standing to

raise the unconstitutionality of the abortion statute as announced

in Roe v. Wade, 410 US. 179, Abele v. Markle, 369 F. Supp. 807

and State v. Sulman, ———Conn. ?

2. Are the decisions of Roe v. Wade, 410 US. 113 and

Doe v. Bolton, 410 U.S. 179 restricted to the circumstance where

an abortion is performed upon an appropriately safeguarded

medical judgment?

IV. Constitutional and Statutory Provisions

The State of Connecticut relies upon the following provisions

of the Connecticut General Statutes:

“Sec. 53-29 Attempt to procure miscarriage.

Any person who gives or administers to any woman, or ad-

vises or causes her to take or use anything, or uses any means,

with intent to procure upon her a miscarriage or abortion, unless

the same is necessary to preserve her life or that of her unborn

child, shall be fined not more than one thousand dollars, or

imprisoned in the State Prison not more than five years or both.”

¢

3

V. Statement of the Case

The defendant was tried in the Superior Court of Waterbury

on an Information charging two (2) counts of procuring an

abortion and one (1) count of manslaughter arising from the

second abortion. The jury returned a verdict of guilty on the

first count and could not agree on the second abortion and the

manslaughter count. The defendant was sentenced to a term of

not less than two years nor more than five years on the first

count.

During his trial, the State offered evidence that the defendant,

who had never had any medical training and was not a physician

licensed to practice medicine and surgery in Connecticut, had

performed an abortion upon a woman in a motel in Waterbury

on the evening of June 2, 1969, for the sum of $400. When the

Operation was performed the woman was in normal good health,

had no discomfort, and was not under the care of a doctor.

Vi. Argument of Law

THE DEFENDANT, A MALE AND NOT A

PHYSICIAN, HAS NO STANDING TO RAISE

THE UNCONSTITUTIONALITY OF SECTION

53-29 AS MANDATED BY THE UNITED

STATES SUPREME COURT.

This Court, in Roe v. Wade, 410 U.S. 113, has held that the

Texas abortion statute similar to Connecticut's was unconstitu-

tional. This opinion and a companion case, Doe v. Bolton, 410

U.S. 179, held that because medical progress now makes abortion

Operations safe, the woman’s right to undergo an abortion by a

physician, if the physician’s judgment is to perform such an

operation, is paramount over the State’s right to regulate abortions

4

in the first trimester of pregnancy. Judge Blackman’s plurality

opinion was careful to point out that the abortion contemplated

was one “according to (a physician’s) professional judgment”,

Roe v. Wade, 410 U.S. 113, 165, and that the decisions did not

operate to bar the State from prohibiting “any abortion by a

person who is not a physician.” Roe v. Wade, supra, 410 US.

113, 165.

Following the opinions in Roe and Doe, the United States

District Court for the District of Connecticut, upon remand by

this Court, 410 U.S. 683, held that in the light of those cases,

Section 53-29 of the Connecticut General Statutes was uncon-

stitutional, Abele v. Markle, 369 F. Supp. 807.

The Connecticut Supreme Court similarly held in the case of

a physician convicted of a violation of Section 53-29, whose

appeal was pending when Roe, Doe and Abele were decided.

State v. Sulman

—Conn.

(35 CLJ. #25, P. 18)

This defendant, an abortionist without medical training and

certification, successfully sought to take advantage of these cases

and to have his conviction also overturned in the Connecticut

Supreme Court.

Since its decision in the Roe and Doe cases this Court has had

occasions, when presented with petitions for certiorari, to pass

upon the application of the Roe and Doe cases to the cases of

non-physician abortionists. In Cheaney v. Indiana, 410 US. 991,

36 L Ed. 2d 189, the Court was asked to grant certiorari to a

non-physician convicted of a violation of the Indiana abortion

statute, very much alike to the Connecticut Statute.

5

Like the Connecticut statute, the Indiana statute made no ex-

ception for licensed physicians and merely prohibited abortions

by any person.

Ind. Code 1971, 35-1-58-1

(Ind. Annotated Statutes, Sec. 10-105 (1956 Repl.) )

Both the Indiana and Connecticut statutes were noted by this

Court to be alike to the Texas statute in the Roe case.

Roe v. Wade

410 US. 113

at page 118, note 2

Cheaney’s conviction had been affirmed by the Indiana Supreme

Court in Cheaney v. State, 285 NE 2d 265 prior to the decision

of the Roe and Doe cases. The petition for certiorari, however,

was considered after the decisions in the Roe and Doe.

In denying certiorari, this Court's majority stated:

“Petition for writ of certiorari to the Supreme

Court of Indiana denied for want of standing of

Petitioner. Doremus v. Board of Education of

Borough of Hawthorne, et al, 342 US. 429, 72

S.Ct. 394, 96 L Ed. 475.”

In the Doremus case, this Court found that a taxpayer lacked

standing or “possession of the requisite financial interest that is,

or is threatened to be inured by the unconstitutional conduct.”

342 US. at page 435.

The Doremus case was decided in the light of the general

principles of standing that one “who challenges a statute must

show that he is within the class of persons with respect to whom

6

the act is unconstitutional and that the alleged unconstitutional

feature ir’ -es him. Heald v. District of Columbia (1922), 259

US. 114, 123.”

Annotation 97 L Ed. 481, page 482

In May v. State, 492 S.W. 2d 888, the Arkansas Supreme Court

declined to apply the Roe and Doe cases to reverse the conviction

of a non-physician abortionist on those grounds while ordering

a new trial on other grounds. The Arkansas court held that the

statute prohibits a layman, who lacks the standing to assert those

constitutional claims that pregnant women and licensed physicians

may assert, from performing abortions and nothing in the Roe

or Doe cases hold this to be unconstitutional.

State v. May, supra, at page 889

May applied for certiorari to this Court well after the decision

in the Roe and Doe cases, urging application of the Roe and Doe

cases and this Court refused to grant the writ in May v. Arkansas,

US. , 38 L Ed. 2d 315.

The defendant, it is clear, has no standing to assert the claims

of unconstitutionality, recognized in the Roe and Doe cases.

THE DEC'SIONS OF ROE v. WADE, US. 113

AND DOE v. BOLTON, 410 US. 179 ARE

CONFINED TO THE SITUATION WHERE

THE ABORTION IS BASED UPON APPRO-

PRIATELY SAFEGUARDED MEDICAL JUDG-

MENT.

The entire rationale of the Roe and Doe cases points to the

fact that the state abortion statutes were unconstitutional where

they prohibited abortion operations by competent and licensed

physicians and upon their professional judgment.

7

Justice Douglas, who concurred in the Roe and Doe plurality

opinions, also concurred in the denial of certiorari in the Cheaney

case, supra, on these grounds:

“Mr. Justice Douglas would deny certiorari on the

grounds that petitioner, who was convicted of per-

forming an abortion, is not a doctor and that the

decisions of this Court in Roe v. Wade, 410 US.

113, 93 S. Ce. 705, 35 L. Ed. 2d 147, and Doe v.

Bolton, 410, U.S. 179, 93 S.Ct. 739, 35 L Ed. 2d

201, were confined to the condition, inter alia, that

the abortion, if performed, be based on an appro-

priately safeguarded medical judgment.”

The reading of the opinions in Roe and Doe and Justice

Douglas’ concurrence on the Cheaney petition, sustains the

petitioner’s position that the effect of the Roe and Doe cases is

only upon medically directed abortions. Any other reading would

do violence to the intent of those who sought the overturning of

the abortion laws to make such medically safe operations available

to women and to the intent of the justices who decided the Roe

and Doe cases.

Although this Court has granted certiorari and vacated criminal

abortion convictions of physicians in a number of cases after the

Roe and Doe cases, it has indicated no such favorable treatment

should be accorded non-physician abortionists.

The petitioner argued in the Connecticut Supreme Court that

this respondent had no standing to apply the Roe and Doe cases

to his case and that those cases did not control the r ent’s

case. The Connecticut Supreme Court implicitly found that the

respondent did have standing to apply the Roe case and citing

the Roe case, reversed the respondent's conviction.

It is respectfully suggested that the Connecticut Supreme Court

misapplied the Roe case in reversing the respondent's conviction.

8

Some states, as Connecticut, have applied the Roe and Doe

cases to non-physician’s convictions (Minnesota, State v. Hultgren,

295 Minn. 299, 204 N.W. 2d 197, Pennsylvania, Commonwealth

v. Jackson, 454 Pa. 429, 312 A2d 13), while other states have

upheld laymen’s convictions under a similar statute (Michigan,

People v. Bricker, 389 Mich. 527, 208 N.W. 2nd. 172; New

Jersey, State v. Norfleet, (1975), —N.J.—, —A2d—, 17 Cr.

L. Rep. 12156).

Thus, it appears that a substantial judicial controversy arising

out of this Court’s decision would be settled if this Court granted

certiorari.

CONCLUSION

For these reasons, A Writ of Certiorari stiould issue to

review the judgment and opinion of the Supreme Court of

the State of Connecticut.

Petitioner, State of Connecticut

By S/ Francis M. McDonald

Francis M. McDonald

State’s Attorney

Judicial District of Waterbury

300 Grand Street

Waterbury, Connecticut 06702

Attorney for Petitioner.

APPENDIX

la

Appendix (Opinion and Judgment of Supreme

Court of Connecticut.)

SUPREME COURT

February Term, 1975

STATE OF CONNECTICUT V. PATRICK MENILLO

Information charging the defendant with two counts of the

crime of attempting to procure an abortion and one count of the

crime of manslaughter, brought to the Superior Court for the

judicial district of Waterbury and tried to the jury before Naruk, J.;

verdict and judgment of guilty on the first count of attempting to

procure an abortion, from which the defendant appealed to this

court. Error; judgment directed.

Thomas L. Nadeau, with whom, on the brief, was Theodore I.

Koskoff, for the appellant (defendant).

Francis M. McDonald, state’s attorney, with whom was Joseph

A. Hill, assistant state’s attorney, for the appellee (state).

PER CURIAM. The defendant was tried on an information

charging two counts of attempting to procure an abortion and

one count of manslaughter arising from one of the attempted

abortions charged. The jury returned a verdict of guilty on the

first count of attempting to procure an abortion and could not

agree on the second count or the manslaughter count. The court

declared a mistrial as to those two counts. The defendant has

appealed from the judgment rendered on the first count.

On June 2, 1969, the defendant, a non-physician and without

any medical training, performed an abortion in a motel room for

a fee upon a female in normal good health. From the time of his

2a

arrest to the present, the defendant has claimed that General

Statutes § 53-29 under which he was charged and convicted is

unconstitutional.

On January 22, 1973, the United States Supreme Court decided

the cases of Roe v. Wade, 410 US. 113, 93 S. Ct. 705, 35 L. Ed.

2d 147 and Doe \. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed.

2d 201, holding the abortion statutes of Texas and the abortion

statutes, in part, of Georgia unconstitutional. Thereafter, General

Statutes $$ 53-29, 53-30 and 53-31 were declared unconstitu-

tional by the United States District Court for the district of Con-

necticut upon remand of a previously appealed case. Abele v.

Markle, 369 F. Sup. 807 (D. Conn.). On December 18, 1973,

this court followed the mandate of the federal courts in State v.

Sulman, Conn. (35 Conn. L.J., No. 25, p. 18).

The state claims that the unconstitutionality of the state abor-

tion statutes in the Roe and Doe cases is predicated on the ration-

ale that the statutes prohibited abortion operations by competent

and licensed physicians upon their professional judgment. The

state refers to Cheaney v. Indiana, 410 U.S. 991, 93 S. Ct. 1516,

36 L. Ed. 2d 189 where, in denying the petition for a writ of

certiorari, Justice Douglas concurred in the denial of certiorari on

the grounds that the petitioner was not a physician and that the

decisions in Roe and Doe were confined to the condition that the

abortion, if performed, be based on an appropriately safeguarded

medical judgment.

In Roe v. Wade, supra, 155, the Supreme Court stated that

where fundamental rights are concerned, regulations limiting these

rights may be justified only by a compelling state interest “ and

that legislative enactments must be narrowly drawn to express

only the ligitimate state interests at stake.” See also Kramer v.

Union Free School District, 395 U.S. 621, 633, 89 S. Ct. 1886,

23 L. Ed. 2d 583; Griswold v. Connecticut, 381 US. 479,

485, 85 S. Ct. 1678, 14 L. Ed. 2d 510.

3a

The broad language of General Statutes § 53-29! is similar

to that of the Texas statute which the Supreme Court, because of

the fundamental rights involved, declared unconstitutional as a

whole and struck down in toto even though it was conceded that

statutes tailored to limit the regulations to compelling state in-

terests would be valid and not in violation of constitutional res-

traints. As Justice Rehnquist points out in his dissent in Roe, the

statute was struck down as a whole rather than being held un-

constitutional as applied to the fact situation before the court as

was the previous practice in cases which he cites. Roe v. Wade,

supra, 177-78. Consequently, even though the defendant, as a

layman, would certainly be held to answer to an appropriately

drawn statute for the attempted abortion performed, General

Statutes § 53-29 in its present form cannot meet the test of con-

stitutionality even as applied to the fact situation in this case.

In State v. Sulman, supra, the court ruled that in view of the

decisions of the federal courts including that of the United States

Supreme Court, General Statutes § 53-29 had to be held uncon-

stitutional in toto. This means that General Statutes § 53-29 as

now drawn is null and void, and an offense purportedly created

by that statute is not a crime.

There is error and the case is remanded with direction to set

aside the judgment and render judgment for the defendant.

1General Statutes § 53-29 proscribes an attempt to procure a mis-

carriage or abortion by “[a]ny person.” The statute makes no exception

for medical practitioners.