Motion to Dismiss — Gary-Northwest Indiana Women's Services, Inc. v. Orr

bee

No. 80-1275

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

THE GARY-NORTHWEST INDIANA WOMEN’S

SERVICES INC.; WILLIAM R. LEWIS, M. D.,;

JANE DOE; MARY ROE; BRIGITTE COE;

and all others similarly situated,

Appellants,

V.

OTIS BOWEN, Governor; HENRY KOWALCZYK,

Lake County Prosecutor; INDIANA STATE

BOARD OF HEALTH; WILLIAM T. PAYNTER, M.D.,

State Health Commissioner; THEODORE SENDAK,

Attorney General; Their Agents, Assigns, Successors,

Representatives, Those acting in concert

with them, and all others similarly situated,

Appellees.

On Appeal from the United States

District Court for the Northern District

of Indiana

MOTION TO AFFIRM

LINLEY E. PEARSON

Attorney General,

State of Indiana

MICHAEL SCHAEFER

Deputy Attorney General,

State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6210

Counsel for Appellees.

Central Publishing Company, Inc., Indianapolis, IN 46206

TABLE OF CONTENTS

Table of Authorities

Motion to Affirm ..

Reasons for Affirmance ................ccecececees

Conclusion.........

TABLE OF AUTHORITIES

CASES: Page

Baird v. Mass. Dept. of Public Health, 599 F.2d

/// 4

Colautti v. Franklin, 439 U.S. 379 (1979999 4

Connecticut v. Menillo, 423 U.S. 9 (1975ù⸗ 4

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ...... 4

Maher v. Roe, 432 U.S. 464 (1977). .........eeeeeeee 3

Roe v. Wade, 410 U.S. 113 (1973mmDW:“y3: n 2,3

Roemer v. Bd. Of Public Works of Maryland, 426 U.S.

// ͤ WA 5

United States v. Oregon State Medical Society, 343 U.S.

Dr, TT. 5 5

OrHER:

Rule 52a), Federal Rules of Civil Procedure ....... 5

ii

No. 80-1275

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

THE GARY-NORTHWEST INDIANA WOMEN’S

SERVICES INC.; WILLIAM R. LEWIS, M.D.;

JANE DOE; MARY ROE; BRIGITTE COE;

and all others similarly situated,

Appellants,

V.

OTIS BOWEN, Governor: HENRY KOWALCZYK,

Lake County Prosecutor; INDIANA STATE

BOARD OF HEALTH; WILLIAM T. PAYNTER, M. D.,

State Health Commissioner; THEODORE SENDAK,

Attorney General; Their Agents, Assigns, Successors,

Representatives, Those acting in concert

with them, and all others similarly situated,

Appellees.

On Appeal from the United States

District Court for the Northern District

of Indiana

MOTION TO AFFIRM

Appellees, pursuant to Rule 16 of the Rules of the

Supreme Court of the United States, move that the final

judgment and decree of the United States District Court

for the Northern District of Indiana be affirmed on the

ground that the questions are so unsubstantial as not to

warrant further argument.

Reasons Why the District Court

Should be Affirmed

Introduction

This appeal presents a constitutional question

conclusively decided in the landmark case of Roe v. Wade,

410 U.S. 113 (1973). The Plaintiffs have, from time to time,

challenged an Indiana statutory requirement for second

trimester hospital abortion and the District Court has, each

time, found that Indiana’s second trimester hospitalization

requirement is constitutional.

‘The Questions Are Not Substantial

1. The District Court correctly followed this Court’s

decision in Roe v. Wade which explicitly permits states

to require hospitalization for second trimester abortions.

The District Court relied on the following express

language of this Court in Roe v. Wade:

With respect to the State’s important and legitimate

interest in the health of the mother, the “compelling”

point, in light of present medical knowledge, is at

approximately the end of the first trimester. This is so

because of the now-established medical fact, referred

to above at 149, that until the end of the first trimester

mortality in abortion may be less than mortality in

normal childbirth. It follows that, from and after this

point, a State may regulate the abortion procedure to

the extent that the regulation reasonably relates to the

preservation and protection of maternal health.

Examples of permissible state regulations in this area

are requirements as to the qualifications of the person

who is to perform the abortion; as to the licensure of

that person; as to the facility in which the procedure is to

be performed, that is, whether it must be a hospital or

may be a clinic or some other place of less-than-hospital

status; as to the licensing of the facility; and the like.

id., 410 U.S. 113, at 163. (Emphasis added by

District Court).

The emphasized language means what its plain meaning

indicates: the term “whether” means a state may decide if a

hospital is the appropriate facility for a second trimester

abortion.

The Plaintiffs’ theory disregards this clear directive

from the Supreme Court despite warnings from the Court

that it will not retreat from its holding in Roe. For example,

in Maher v. Roe, 432 U.S. 464, (1977), this Court cautioned,

Our conclusion signals no retreat from Roe or the

cases applying it. Jbid., 432 U.S. at 475.

The net result of Plaintiffs’ theory would be to totally

abandon the Roe v. Wade trimester anaylsis as the test to

mediate the individual’s constitutional right of privacy and

the state’s interest in protecting and promoting maternal

health. The District Court’s unanimous opinion (App. A, at

10a) perceptively noted that Plaintiffs’ position, as

supported by but two, single judge District Courts,

substitutes a new test for the long-standing trimester

anaylsis of this Court, namely, whether the particular

abortion is more dangerous than childbirth. However, to

retreat from the Roe trimester analysis will inevitably lead

to a total surrender of the state’s interest into the judgment

of the individual physician. To accept Plaintiffs’ attempted

inroads on Roe v. Wade, not only will upset long-standing

reliance on Roe’s clear directive, but it will add impetus toa

creeping anti-nomianism whose logical conclusion and

objective is no regulation at all, anywhere—anytime,

whether it be generally applicable surgical standards,

3

contra, Baird v. Mass Dept. of Public Health, 599 F. 2d 1098,

(Ist Cir. 1979), or even the medical qualification of the

practioner, contra, Connecticut v. Menillo, 423 U.S. 9

(1975). At such end point, a subjective test replaces the

objective test and the state would be unable to assert its

rightful interest in maternal health without offending the

due process—notice considerations found to be present by

this Court in Colautti v. Franklin, 489 U.S. 379 (1979).

2. The Plaintiffs failed to demonstrate a likelihood of

success on the merits to justify a preliminary injunction.

The requirements which petitions for preliminary

injunctions must meet are irreparable injury and

likelihood of success on the merits. Doran v. Salem Inn,

Inc., 422 U.S. 922 (1975).

In addition to the theoretical defect in Plaintiffs’ legal

theory, the District Court further found that Plaintiffs’

theory, even if accurate, lacked sufficient evidence to

support it. The District Court ruled:

There was presented no evidence sufficient to convince

this Court that birth is more dangerous than early

8 trimester D & E abortions. (Jbid., App. A, at

17a).

This finding was supported, in part, by a comparison of the

United States’ D & E mortality rate of 7.6/100,000 for the

thirteenth to fifteenth week or 13.2/100,000 for the

sixteenth to twentieth with the lower Indiana maternal

death rate of 7.0/100,000 in 1977 or 10.8/100,000 in 1978.

These statistics show that childbirth is less dangerous than

a second trimester D & E abortion. (Jbid., App. A at 17a).

The District Court further found that one Plaintiff, Dr.

Lewis, deserved very little credibility. (Jbid., App. A at

17a). The District Court further found that hospitals are

available, specifically including Gary Methodist hospitals.

(District Court Opinion, App. A. at 7a; see also Defendants’

Exhibit A, App. M at 88a). In light of the above evidence

and findings, appellant severely understates the failure of

proof in the District Court when he faults that Court for

relying on “facially imprecise evidence.” (Appellant’s

Jurisdictional Statement, at 26). It is not the place of the

Supreme Court of the United States, or any appellate court,

to reappraise evidence or determine the credibility of

witnesses. Roemer v. Bd. of Public Works of Maryland, 426

U.S. 736, 758 (1976); United States v. Oregon State Medical

Society, 343 U.S. 326, 332 (1952); see, Rule 52({a), Fed. R

Civ. Pro.

3. The question whether the District Court correctly treated

Plaintiffs’ supplemental petition as a —— of

final judgment preserves no reversible error.

This is an action that was commenced on n 13.

1974, attacking Indiana’s Abortion Statute. (App. E at

3la). In addition to striking down and permanently

enjoining the statute’s provisions for parental consent, the

District Court also ruled on Plaintiffs’ attack on this same

second trimester hospitalization requirement:

Whether a hospital requirement for the second

trimester per se comports with a “reasonable

regulation” standard is not certain and need not be

decided at this point. But at the very least in instances

where a preliminary injunction is sought and the

plaintiff bears the burden of showing a likelihood of

ultimately prevailing, the foregoing language of the

Court is sufficient grounds for denying the requested

preliminary relief. id., App. E at 35a.

The defendants appealed the permanent injunction; the

Supreme Court affirmed. 429 U.S. 1067. The Plaintiffs did

not cross-appeal the second trimester holding. The District

Court granted permanent relief on September 14, 1976. As

this injunction was elevated from the status of preliminary

injunction to a permanent injunction, its silence on the

hospitalization requirement, found earlier to be

constitutional, does not deprive it of its “finality.” The

Plaintiffs non-action over the following four years was

ended only by the institution of criminal proceedings. (See,

2

*

District Court Memorandum, App. A at 3a). (Plaintiffs’

assertion that other factors motivated the filing of their

“supplemental petition” is entirely self-serving; see,

Appellants’ Jurisdictional Statement, at 6-7.) By whatever

color appellants called their pleading designed to enjoin the

criminal prosecution of Dr. Lewis, the District Court

reached the issue on their likelihood of prevailing on the

merits. The District Court had previously and unanimously

found the challenged statute constitutional; it simply did so

again on September 12, 1980.

CONCLUSION

Appellees respectfully pray that the Supreme Court

affirm the September 12, 1980 order of the unanimous

United States District Court for the Northern District of

Indiana.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

By: /s/ Michael Schaefer

Michael Schaefer

Deputy Attorney General

Counsel for Appellees

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6210

February, 1981.