motion to dismiss — DIAMOND v. WYNN (Nos. 78-239, 78-229)

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TABLE OF CONTENTS

PAGE

I. THE STATE STATUTE INVOLVED AND THE

NATURE OF THE CASE:

A. The Statute 2

B. The Proceedings In The District Court ............ 3

Il. ARGUMENT:

A. The Appeal Is Not Within The Jurisdiction

Of This Court - 7

B. Appellant Lacks Standing To Raise The Fed-

eral Questions Sought To Be Reviewed ............ 8

CONCLUSION ... 11

TABLE OF AUTHORITIES

Cases

Gerstein v. Coe, 417 U.S. 279 (1974) 7,8

McPherson v. First & Citizens National Bank, 240 N.C.

1, 81 S.E. 2d 386 (1954) 9

Mortimore v. Bashore, 317 Til. 535, 148 N.E. 317 (1925) 10

Mosley v. Title Ins. and Trust Co., 154 P. 2d 417 (Cal.

Dist. Ct. App. 1945) aff’d, 27 Cal. 2d 457, 315 P. 2d

15 (1946) 9

O’Shea v. Littleton, 414 U.S. 488 (1974) 8

Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52 (1972) ...

Rizzo v. Goode, 423 U.S. 362 (1976) 8

Roe v. Wade, 410 U.S. 113 (1973) 7, 10

Sosna v. lowa, 419 U.S. 393 (1975) 8

Warth v. Seldin, 422 U.S. 490 (1975) 8

i

Statutes

I 7

28 U.S.C. § 1343 ... 3

28 U.S.C. § 2201 3

28 U.S.C. § 2202 3

28 U.S.C. § 2281 3

28 U.S.C. § 2284 3

42 U.S.C. § 1983 3

Til. Rev. Stat., Ch. 38 §§ 18-21 et seg. (1976) ........ 2, 3, 4, 5, 9

Til. Rev. Stat., Ch. 38 §$§ 1005-8-1 et seq. (1977) ................ 2

Court Rules

Federal Rules of Civil Procedure 17(c) 9

Revised. Rules of the United States Supreme Court,

Rule 16(1) (a) 1

Other Authorities

American Law of Property (Casner ed. 1952) ................ 9

Unborn Parties in Property Litigation, 48 Harvard

Law Review 1001 (1935) 10

In THE

Supreme Court of the United States

Ocroser Term, 1978

BERNARD CAREY, State’s Attorney of Cook County, IIlinois,

Appellant,

and

EUGENE F. DIAMOND, M.D.,

Appellant,

vs.

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

and MARVIN ROSNER, M.D.; ALLAN G. CHARLES, M.D., YOLANDA

ADLER, M.D.; and MARY ZOE, individually and on behalf of all others

similarly situated,

Appellees,

and

JOHN 8. LONG, M.D., on behalf of himself and all others similarly sit-

uated; ILLINOIS ABORTION SERVICES COUNCIL, an Iilinols not-

for-profit corporation, on behalf of themselves and all others similarly

situated,

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) and (d) of the Revised Rules of this Court,

move to dismiss on the grounds that the appeal is not

within the jurisdiction of this Court, because not taken

in conformity to statute, and that Appellant, Eugene F.

Diamond, M.D., lacks standing to raise the federal

questions sought to be reviewed.

=—_

1.

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 elaborated 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

1 The Act is set forth in the A ‘eon to Appellant’s

Jurisdictional Statement at App. 61-67.

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

provision to the Illinois Criminal Code. The Criminal Code

rovides a sentence of one to twenty ow upon conviction of a

Class 2 felony. Ill. Rev. Stat., Ch. 38 § 1 8-1(b\X3) (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, punishable by incarceration up to six

months. Ill. Rev. Stat., Ch. 38 § 1 3(aX2) (1977).

9

dangers.” Sections 3(3) and (4) also 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, Eugene F. Diamond, M.D., appeals as an

intervening defendant from a declaratory judgment of a

three-judge 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 judg-

ment 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 in-

voked under 28 U.S.C. § 1343.

sonsiliiien

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

the State’s Attorney of Cook County, who was sued in his

official capacity and as the representative of the class of

all Illinois State’s Attorneys.

After the issuance of a temporary restraining order, a

three-judge district court was convened. Thereupon,

Appellee Diamond petitioned to intervene as a defen-

dant, claiming an interest in the proceeding both as a

parent and spouse, as well as a representative of unborn

viable or non-viable fetuses or children born alive as a

result of a legal abortion. Although Appellant Diamond

failed to show that his spouse or daughter was either

pregnant or contemplating an abortion, or that the State

of Illinois inadequately represented his purported in-

terests, the district court found permissive intervention

was appropriate. In a draft order, the district court

granted Appellant Diamond leave to intervene “as a

parent and for the class of parents affected by the

statute,” and “as husband and spouse and for the class of

husband and spouses affected by the statute,” as well as

appointing him guardian ad litem for viable and non-

viable unborn children and for children born alive as a

result of legal abortions.

Subsequently, the three-judge court preliminarily en-

joined enforcement of the statute. Plaintiff classes of

pregnant women and physicians affected by the Act

were certified by the district court. In addition, a 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, both

~5~

Appellant Diamond, and the State’s Attorney conceded

the unconstitutionality of the parental consent [Section

3(4)] and spousal consent [Section 3(3)] provisions of the

Act. (See Appellant Diamond’s Jurisdictional Statement

App. at 28,

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

vagueness, failing to adequately define the criminal con-

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

52-57) It found the provisions requiring physicians to in-

form their patients of the competency of the fetus [Sec-

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

3(2Xb)] unconstitutionally vague and to impose an im-

permissible burden on the decision of a woman, in con-

sultation with her physician, to have an abortion. (App.

at 25-28) It found the automatic termination of parental

rights under Section 7 to violate fundamental due

process. (App. at 39-43) It found the warning of the ter-

mination 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 43) Finally, it found recording of fetal deaths

_ under the Vital Records Act as required by Section 10

to be unconstitutional because the procedure did not

protect the confidentiality of the women. (App. at 48-52)

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 60)

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

App. at

—s—

Both Appellant Diamond and the defendant State’s

Attorney have filed appeals from this judgment to the

United States Court of Appeals for the Seventh Circuit.

The defendant State’s Attorney, as well as appellant

Diamond, has also filed an appeal to this Court, and his

Jurisdictional Statement was submitted on August 9,

1978, under the caption and docket number of Carey, et

al. v. Wynn, et al., No. 78-229. Appellees have filed no

cross appeals in this Court or the Court of Appeals.

an

II.

ARGUMENT

A. poe Dae Is Not Within The Jurisdiction Of This

urt.

Appellant Diamond attempts to invoke the jurisdiction

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

Roe v. Wade, 410 U.S. 1183 (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 parental] 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

re is dismissed for want of jurisdiction. Title 28

»5.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. 113, 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.

—8—

Indeed, Appellant Diamond recognizes the applicabili-

ty of Gerstein, but urges this Court to ignore its limited

jurisdiction on the theory that the State’s compliance

with the declaratory judgment pending appeal con-

stitutes a de facto injunction. Appellees need not dwell

on the folly of this suggestion; the disruption of the

orderly administration of justice and the relationship

between the federal and state governments which would

ensue from the recognition of such direct appeals

whenever a state does defy a federal district court order

is obvious. This is particularly true in this case, since

Appellant Diamond does not even have a cognizable in-

terest under Article III of the United States Constitu-

tion.

B. Appellant Lacks Standing To Raise The Federal

Questions Sought To Be Reviewed.

Litigants seeking judicial review are required by Arti-

cle III of the Constitution to present a case or controver-

sy by distinguishing their own, personal interest from

that of the general public. An intervening party, such as

Appellant Diamond, is no exception. He must have a

“personal stake in the outcome,” Rizzo v. Goode, 423 U.S.

362, 372-73 (1976). He “must allege a distinct and

palpable injury,” Warth v. Seldin, 422 U.S. 490, 501

(1975), or that he “has sustained or is immediately in

danger of sustaining some direct injury. . . . The injury

or threat must be both ‘real and immediate,’ not ‘conjec-

tural and hypothetical.’” O'Shea v. Littleton, 414 U.S.

488, 494 (1974). See, also, Sosna v. Iowa, 419 U.S. 393,

403 (1975).

Appellant Diamond purportedly prosecutes this

appeal “as guardian for unborn children, both viable

~

and non-viable, and for infants who survive the abortion

procedure.” (Jurisdictional Statement at 2) His assertion

of this representative interest tramples on the case and

controversy requirement of Article III, and is totally

different from the purported basis of his intervention in

the district court.

The only direct interest which conceivably supported

Appellant Diamond’s intervention in the proceedings

below was his potential interest as a spouse or parent.

His petition did not allege the existence of any unborn

fetus or any infants surviving an abortion which were in

his care. His “interest” in viable or non-viable fetuses

could, therefore, only be considered to be derivative

from and incidental to his interests as a spouse or

parent.

Nevertheless, Appellant Diamond has conceded the

unconstitutionality of the spousal and parental consent

provisions of the Act (Jurisdictional Statement at 14), and

his own “direct interest” in the validity of the Act is now

moot. Whatever the validity of his initial appointment as

a guardian ad litem,‘ his prosecution of this appeal

4 It is highly Largest whether the Federal Rules —_

a court to anpoint a guardian ad litem for an unborn fetus.

Fed. R. Civ 17(c) only permits a federal court to appoint a

representative for “an infant or incompetent person.” The

Rule clearly intends that the person be alive since the Ad-

visory Committee notes point out the drafter assumed that the

minor or incompetent person may already have a general

guardian, conservator or other fiduciary.

This yg ge of the Rule comports with state judicial

decisions which emphasize that absent explicit statutory

authorization, a court es not appoint | a guar ian ad litem im to

represent the interests of the un See, e.g., Mosely v.

Ins. and Trust Co., 154 P.2d 417, 420 (Cal Dist. Ct. ist. Ct. Ap p, 1848

he 27 Cal. 2d 457, 315 P.2d 15 ‘ _ McPherson

itizens National Bank, 240 N.C 81 S.E. 2d 386 Firat &

American Law of Property § 4.87 (Casner ed. 1952). A

positive legislative expression is required because only a

(Footnote continued on following page)

—10—

on behalf of unborn fetuses simply constitutes an

attempt to relitigate this Court’s holding in Roe v. Wade,

410 U.S. 118, 156-57 (1973), that a fetus is not a person

under the Fourteenth Amendment.

While the State of Illinois may have an interest in

potential human life, there is nothing in Appellant

Diamond’s Jurisdictional Statement which suggests that

the officials charged with the enforcement of the Act

have not or will not adequately represent that State in-

terest. Appellant Diamond has failed to show any per-

sonal interest distinct from that of the general public in-

terest in the enforcement of Illinois law. Accordingly,

his appeal should be dismissed for lack of standing.

4 continued

statute can overturn the common law rule that an unborn

fetus is not a person. Mortimore v. Bashore, 317 Ill. 535, 148

N.E. 317 (1925); Note, Unborn Parties in Property Litigation

48 Har. L. Rev. 1001 (1935). Illinois adheres to this rule, and

the only exception has been strictly limited to the unborn’s

economic interest.

=~

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, BIEZENSKI, 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