motion to dismiss — Carey v. Wynn

| eg - Oompasa Pane 1978" Se e ; ae

a7

BERNARD CAREY, ‘skate’s pinseieyi of Cook County, liltheia, William wacker

J, SCOTT, Attorney ‘General of the State of illinois, and JOYCE C. ae cs:

LASHOF, M.0., Director of Public ealth of the State of ft Whole, and go.3

EUGENE F, DIAMOND, Le intervenor, oe oem

a4 hase SR CTY cats

RALPH M. WYNN; M.D, JERZY JOZEF (GEORGE) BIEZENSKI,. MD,

MARVIN ROSNER, M.D. JOHN 8. LONG, ALLEN G; CHARLES, M.0., Ree

YOLANDA ADLER, -M.D., MARY ZOE, and LULLINOIS ABORTION SA

SERVICE COUNCIL, oF | ip wk 24

~ Appellees,

Oh: Appeal from the United States District Court for the

Northern District.of Utinols, Eastern Division

= -

- J in aR

‘ : . 2 ae

MOTION TO DISMISS

. N TO : . :

‘ od i

° ps _

2 2 : f

yk . “

MERLE UG: ROYCE,

eae ithe Matheced Plas Richa $

Chicago, Illmoia 60608

(319) BIPSOE

oe : eee es eget 5e te MEER Gk, BU ee

Oe Bae Teas See “- 10 South LaSalle Street

yates Lois: 4. LIPTON. 3 pee Nene ee eg oe Noe i ae ated ete RDO

: ; : ¥ of ACLU, Ine: Z ; ae is se Eig oti ; eae a ig + oa Gabe a 1 Sag

5 South Wabash, =“ si PSY ose Ty ie ip mate ee tate eee...

JEFFREY W. FINKE Ee, eo aa peek |

os One First Nationa! Plaza SESE SGA yore the Sec RR ey, aes

Ege Chicago, Tlinois $6603 7 ge tre a

p2ay (312) PIN SEI Es ge hee oy Be kg sapret

TABLE OF CONTENTS

PAGE

I. THE STATE STATUTE INVOLVED AND THE

NATURE OF THE CASE:

A. The Statute .. eicaudnaiadsissiincbceuenmnieaapeinies 2

B. The Proceedings In The Distriet SE Sassi 3

Il. ARGUMENT:

The Appeal Is Not Within The Jurisdiction

Of This Court ...... icpaaieencheipasdiltamieainamsiien 6

CONCLUSION .... sllcke iiasstbpaietancoshidasasalbonegtion 7

TABLE OF AUTHORITIES

Cases

Gerstein v. Coe, 417 U.S. 279 (1974) -...u.-.-..n.-esssesseseseeseeees 6, 7

Planned Parenthood of Central Missouri v. ese

428 U.S. 52 (1976) .. ssicnkotienasahelaesien aan

Roe v. Wade, 410 U.S. ‘113 (1973) LE

Statutes

23 USC. $ 1253 6

a 4

Se a 3

aii ii cconcedtaeiaciorciedensclecdccane eoeagaammanacane 3

RRR Pests sre ces ceredeats eos ar 4

Se IE saith sas tticsiinincoetenticoahieridedcesiitenieieicteaiaaieamaral 4

ee ee heehee Coc ckccaconsncnchcindeseeserenensaaeaets 3

Ill. Rev. Stat., Ch. 38 §§ 81-21 et seq. (1976) ............ 2, 3, 4,5

Ill. Rev. Stat., Ch. 38 $4 1005-8-1 et seg. (1977)... 2

Court Rules

Revised Rules of the United States Supreme Court,

Rule 16(1) (a) 1

In Tue

Supreme Court of the United States

Ocrosen Term, 1978

BERNARD CAREY, State's Attorney of Cook County, Iilinole, WILLIAM

J. SCOTT, Attorney General of the State of Illinois, and JOYCE C.,

LASHOF, M.D., Director of Public Health of the State of Iilinols, and

EUGENE F, DIAMOND, M.D., intervenor,

Appellants,

va.

RALPH M. WYNN, M.0.,, JERZY JOZEF (GEORGE) BIEZENSKI, M.D.,

MARVIN ROSNER, M.D., JOHN 8, LONG, ALLEN G, CHARLES, M.D.,

YOLANDA ADLER, M.0., MARY ZOE, and ILLINOIS ABORTION

SERVICE COUNCIL,

Appellees,

On Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

MOTION TO DISMISS

Appellees, Ralph M. Wynn, M.D,, Jerzy Jozef

Biezenski, M.D., Marvin Rosner, M.D., Allan G, Charles,

M.D., Yolanda Adler, M.D., and Mary Zoe, pursuant to

Rule 16(1Xa) of the Revised Rules of this Court, move to

dismiss on the ground that the appeal is not within the

jurisdiction of this Court, because not taken in conformi-

ty to statute,

anfiun

THE STATE STATUTE INVOLVED AND

THE NATURE OF THE CASE

A. The Statute

This appeal raises the question of the constitutional

validity of certain provisions of the Illinois Abortion Act

of 1975 (hereinafter referred to as the “Act”), Ill. Rev.

Stat., Ch. 38 §§ 81-21 et seg. (1976).'

The Act promulgated a comprehensive penal scheme

whereby abortions were regulated at all stages of

pregnancy by numerous procedural and substantive

restrictions. Section 2(6) of the Act established the

offense of “criminal abortion.” This offense was

punishable under Section 11(a) of the Act as a Class 2

felony by incarceration between one and twenty years.’

Section 3 required an elaborate written certification of

the woman’s consent to the abortion, which, under Sec-

tion 3(2Xa) required the physician to “inform” his

patient of the “competency of the fetus. . . such as, but

not limited to, what the fetus looks like, fetus ability to

move, swallow and its physical characteristics.” The

physician was also required under Section 3(2Xb) to in-

form his patient of the “general dangers of abortion, in-

cluding, but not limited to, the possibility of subsequent

sterility, premature birth, live-born fetus and other

' The Act is set forth in the Appendix to Appellant's

Jurisdictional Statement at AA 1-7,

* The Illinois Abortion Act of 1975 was passed as a new

provision to the Illinois Criminal Code, The Criminal Code

provides a sentence of one to twenty years upon conviction of a

lass 2 felony, Ill, Rev. Stat,, Ch, 38 § 1005-8-1(b\3) (1977).

Eight provisions of the Act carried the sanction of a convic-

tion as a Class 2 felony, while three provided the penalty of a

Class B misdemeanor, puniehable oy incarceration up to six

months, Ill, Rev, Stat., Ch, 388 § 1005-8-3(aX2) (1977),

—*

—3—

dangers.” Sections 3(3) and (4) alsc prohibited a physi-

cian from performing an abortion for a married woman

without her spouse’s written consent or for an un-

married minor without the written consent of one of her

parents.

Section 5(2) of the Act prohibited the performance of a

therapeutic abortion after the viability of the fetus, un-

less the woman’s physician consulted with two

“unrelated” physicians. Section 7 provided for the

automatic termination of a woman’s and her consenting

spouse’s parental rights where a live birth occurs after

an “attempted.” non-therapeutic abortion. A companion

provision, Section 8, required a physician to “inform”

only a post-viability abortion patient of this automatic

termination of parental rights. Further, Section 9 of the

Act prohibited the second trimester abortion technique

_ of saline amniocentesis. Finally, Section 10 established

elaborate reporting requirements including the record-

ing of each abortion performed after 20 weeks of gesta-

tion as a fetal death under the Vital Records Act.

B. The Proceedings In The District Court

Appellant Bernard Carey, in his capacity as State’s

Attorney of Cook County and as the representative of the

defendant class of Illinois State’s Attorneys appeals from

a declaratory judgment of a three-judge district court,

declaring unconstitutional the provisions enumerated

above. The proceedings in the district court were

brought under 42 U.S.C. § 1983 as a class action by four

obstetricians and gynecologists who render abortions as

part of their practices, and two pregnant women.

Appellees sought a declaratory judgment holding the

Act unconstitutional, pursuant to 28 U.S.C. §§ 2201 and

2202, and an injunction restraining the enforcement of

— =

the Act, pursuant to 28 U.S.C. § 2281 and 2284. The

jurisdiction of the court was invoked pursuant to 28

U.S.C. § 1343.

Appellees’ complaint named the Illinois state officials

charged with implementing and enforcing the Act.

These officials were the Illinois Attorney General, the

Director of the Illinois Department of Public Health and

Appellant Carey, who was sued in his official capacity

as the State’s Attorney of Cook County, and as the

representative of the class of all Illinois State’s At-

torneys.

After the issuance of a temporary restraining order, a

three judge district court issued a preliminary injunc-

tion. Plaintiff classes of pregnant women and physicians

affected by the Act were subsequently certified by the

district court. In addition, the class of defendant State’s

Attorneys in Illinois was certified.

Appellees then moved for summary judgment. During

the pendency of this motion this Court rendered its deci-

sion in Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1976). In view of Danforth,

Appellant Carey conceded the unconstitutionality of the

parental consent [Section 3(4)] and spousal consent [Sec-

tion 3(3)] provisions of the Act. (See Appellant

Diamond’s Jurisdictional Statement App. at 25a)

Granting Appellees’ motion for summary judgment,

the three-judge district court issued a declaratory judg-

ment finding nine other provisions of the Act un-

constitutional. It found the definition of criminal abor-

tion and accompanying criminal penalties void for

3 The district court’s opinion is attached to Appellant's

App. at

Penenen eee

—§—

vagueness, failing to adequately define the criminal con-

duct which was punishable as a Class 2 felony. (App. at

48a-52a) It found the provisions requiring physicians to

inform their patients of the competency of the fetus

[Section 3(2Xa)] and the general dangers of abortion

[Section 3(2Xb)] unconstitutionally vague and to impose

an impermissible burden on the decision of a woman, in

consultation with her physician, to have an abortion.

(App. at 23a-25a) It found the automatic termination of

parental rights under Section 7 to violate fundamental

due process. (App. at 36a-40a) It found the warning of

the termination of parental rights required by Section 8

to be irrational since the warning was to be given only

after viability to women who were not subject to Section

7. (App. at 39a-40a) Finally, it found recording of fetal

deaths under the Vital Records Act as required by Sec-

tion 10 to be unconstitutional because the procedure did

not protect the confidentiality of women. (App. at 44a-

48a)

The three-judge court denied Appellees’ request for in-

junctive relief, assuming that Illinois’ prosecutorial

authorities would recognize and abide by its judgment,

and granted only Appellees’ prayer for declaratory

relief. (App. at 55a)

Appellant Carey then filed appeals to the United

States Court of Appeals for the Seventh Circuit, as well

as this Court. Appellees have filed no cross appeals.

—6—

II.

ARGUMENT

THE APPEAL IS NOT WITHIN THE

JURISDICTION OF THIS COURT.

Appellant Carey attempts to invoke the jurisdiction of

this Court under 28 U.S.C. § 1253, citing the cases of

Roe v. Wade, 410 U.S. 113 (1973) and Planned

Parenthood of Central Missouri v. Danforth, 428 U.S.

52 (1976). However, 28 U.S.C. § 1253 does not authorize

a direct appeal from a grant or denial of declaratory

relief alone. This Court’s decisions in Roe and Planned

Parenthood are inapplicable, since both cases involved

appeals from the grant or denial of an injunction against

a statute of state-wide applicability.

Rather, the controlling authority is this Court’s per

curiam decision in Gerstein v. Coe, 417 U.S. 279 (1974):

A three-judge District Court entered a

declaratory judgment holding unconstitutional a

Florida statute, ... which forbids an abortion

without ... [spousal or grey consent ....

Because it was anticipated that the State would

respect the declaratory judgment, the court declin-

ed to issue an injunction against the enforcement of

the statute. The State of Florida appeals from the

declaratory judgment invalidating the statute. The

appeal is dismissed for want of jurisdiction. Title 28

U.S.C. § 1253, under which this appeal is sought to

be taken, does not authorize an appeal from the

grant or denial of declaratory relief alone. Gunn v.

University Committee, 399 U.S. 383 (1970); Mitchell

v. Donovan, 398 U.S. 427 (1970); Rockefeller v.

Catholic Medical Center of Brooklyn & Queens, Inc.,

Division of St. Mary’s Hospital, 397 U.S. 820

(1970); see also Roe v. Wade, 410 U.S. 1138, 123

—

(1973). The declaratory judgment is appealable to

the Court of Appeals, and we are informed that an

appeal to that court has already been taken.

Appellant Carey has presented no circumstances which

warrant a departure from the holding in Gerstevn.

CONCLUSION

For the foregoing reasons, Appellees respectfully sub-

mit that the Court should dismiss this appeal.

Respectfully submitted,

MERLE L. ROYCE, I!

One First National Plaza

Chicago, Illinois 60603

(312) 329-5624

R. PETER CAREY

10 South LaSalle Street

Chicago, Illinois 60603

(312) 236-7080

ATTORNEYS FOR APPELLEES,

WYNN, PIEZENSKI, ROSNER,

CHARLES, ADLER AND ZOE

Of Counsel:

LOIS J. LIPTON

Roger Baldwin Foundation

of ACLU, Inc.

5 South Wabash, Suite 1516

Chicago, Illinois 60603

JEFFREY W. FINKE

One First National Plaza

Chicago, Illinois 60603

(312) 329-5214