Petition — Schwanecke v. Harris County Hospital District

In the CLs

Supreme Court of the Linited States

OCTOBER TERM, 1982

REBECCA P. SCHWANECKE, M.D., F.A.A.P., as Next

Friend for Certain Minor Unborn Children and Certain

Minor Recently Born Children, for and in behalf of such

Minor Children, as a Class,

NANCY BRECHEISEN, BONNIE B. DUESING and

MARGIT M. WINSTROM, M.D., Residents and Taxpayers

of Harris County, Texas,

Petitioners,

v.

HARRIS COUNTY HOSPITAL DISTRICT, a governmental

body or political subdivision of the State of Texas,

HARRIS COUNTY, a political subdivision of the State of

Texas,

HARRIS COUNTY COMMISSIONERS COURT, a govern-

mental body of Harris County, Texas,

COMMISSIONERS THOMAS BASS, R.Y. ECKELS,

JAMES FONTENO and E.A. LYONS, in their official

capacities, and

HARRIS COUNTY JUDGE JON LINDSAY and HARRIS

COUNTY TREASURER HENRY E. KRIEGEL, in their

official capacities,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE TENTH SUPREME

JUDICIAL DISTRICT OF TEXAS

PETITION FOR A WRIT OF CERTIORARI

Richard W. Schmude

P.O. Box 674

Tomball, Texas 77375

(713) 656-4674

Attorney of Record for Petitioners

(i)

QUESTIONS PRESENTED

1. Whether Roe v. Wade, 410 U.S. 113 (1973), and other

abortion decisions of this Court operate to deny or to preclude

Petitioners’ causes of action for declaratory and injunctive

relief against the Respondents, who are certain local Texas

governmental units and officials, for the violation of their

constitutional rights resulting from the complained of actual

abortion activities by the Respondent Harris County Hospital

District as furthered by the taxation and other activities of the

remaining Respondents;

2. Whether such decisions operate to deny or to preclude

Petitioners’ cause of action against the Respondents for vio-

lating certain Texas criminal anti-abortion law revived as a

legal effect of Roe v. Wade, such law having been carried

forward from the laws of the Republic of Texas into the laws of

the State of Texas by the 1845 Annexation Accord between the

Republic and the United States;

3. Whether this Court should reconsider and overrule Roe v.

Wade and Doe v. Bolton, 410 U.S. 179 (1973), in light of:

@ the existence of important factual matters presented by

this case which were not before the Court in Roe and Doe;

@ the existence of important consequences which were un-

intended by this Court in Roe and Doe;

@ the existence of important factual errors or omissions in

Roe;

@ the existence of procedural and substantive constitutional

errors in Roe and Doe; and

@ the absence of personal jurisdiction over (a) Children who

survive abortion only to die as a direct or indirect result

thereof and (b) Unborn Children threatened and en-

dangered with death by abortion; and

4. Whether Children born alive after abortions and Unborn

Children threatened and endangered by abortion have legal

statuses under, and may claim the protections of, the 5th, 9th

and 14th Amendments to the U.S. Constitution.

(ii)

TABLE OF CONTENTS

So icle iy Uwlnnts wiry win 6 A. ol eee Dean eee (i)

eds sos ib oC ads + hb sees db an cieews (ii)

NE ess 5 oN 6nd ceed Lx ¥ee Kee xeKhe oie (v)

ee ecb duckweed ips sondee svaheuieaeaes 1

EN hie a eit b 9 so 04a bo e 944 06 uses oo eee 1

U.S. Constitutional and Texas Annexation Accord

sn paeewabe adele kewiee 1

Lb ici Nev a ve bx sets OA wo A Onde wwe 1

IE Se a Gv bbs avebveaseeseuanen 3

2. Respondents’ Pleas in Abatement

ER Eres Ly bss bu an vse de edavesateieneoke 3

ee 4

als ebb skh bas caldiebee anes «dbx 5

5. Closure of the District’s Abortion Clinic ............. 5

6. The Continuation of Abortion Activities ............. 5

es as veeus eletheetoess 6

ARGUMENT

I. PETITIONERS PLEADED NUMEROUS CAUSES

OF ACTION UNDER EXISTING LAW AGAINST

LOCAL GOVERNMENTAL ENTITIES AND

OFFICIALS FOR THEIR COMPLAINED OF

ABORTION ACTIVITIES, WITH ROE V. WADE

AND OTHER DECISIONS OF THIS COURT

BEING DISTINGUISHABLE THEREFROM ......... 7

A. Petitioners’ Causes of Action Were Not Denied

or Precluded by the Abortion Decisions of

ee ei el nese inonde 7

B. Petitioners Pleaded Numerous Causes of Action

cites cspnerehcbebeeeees 8

1. Rights Under the 14th Amendment ........... 9

i Tee 9

ID oo. gsci oie.ee-grdaib-ech-oie-deaaebig 10

2. Rights Under the 9th Amendment ............ 11

3. Rights Under Federal Statutory Law .......... 13

II.

(iii)

4. Rights Under Texas Law Authorized Under

the Division of Powers Concept and

Guaranteed by the 10th Amendment .........

5. Rights Under Texas Law Which Derives from

the Law of the Republic of Texas .............

6. Rights Under Revived Texas Anti-abortion

Law of U.S. Constitutional Status ............

THIS COURT SHOULD RECONSIDER AND

OVERRULE ROE V. WADE AND DOE V.

RRA cae ea eS a ee ee eee

A. Important Factual Matters Were Not Before the

CIE a UIE IOE hve os kon cewh vests vows ars

1. Commencement of Human Life .............

2. Essential Characteristics of Unborn

PUNE. nae s casei Oude uhtin's casi thes

3. Deleterious Effects of Induced Abortion on

PC ND. a dnc cubano dawbnaeariecds

B. Roe and Doe Have Produced Various Unintended

RAE KC rehg ee 4.s0 cae bans kv he eany

Bi Pe I ois cance vaevadascrs hs

2. Effect of Abortion and the Abortion “Ethic” on

Children Who “Survive” Abortion ...........

Ns ry Or rer ee

C. Important Factual Errors Were Made by

GSE 2500s he neds Hawtndnsahetentcshesscers

1, Erroneous Consideration of Texas as a Party ...

2. Erroneous Purpose Ascribed To State Anti-

abortion Statutes in Late 19th and Early 20th

IID 6 6-¥504-66 0 bad hdece Ceeneaeeeees es

3. Unfair Portrayal of the Common Law, As Ex-

pounded by Coke, Concerning Abortion .....

4. The Erroneous Implication that Only a Minority

of U.S. Jurisdictions Treated the Abortion of a

“Quick” Unborn Child asa Crime ............

20

(iv)

5. Erroneous Claim as to When the States

Generally Began To Replace the Common

i et err et eee eee 24

6. Erroneous Use of Maternal Mortality Rates ....25°

D. Important Constitutional Errors Were Made

Procedurally and Substantively ................ 26

pe TTPO PEER EET OTR ETT 26

b- DU FUMIE FUTIGICTUOIY 5 sce eed cena es 26

3. Invidious Discriminations ................... 26

4. Failure To Apply Pre-existing Supreme Court

r

8.

Decisions Concerning Human Personhood

Under the 14th Amendment ................ 27

Failure To Apply the Constitutional Implied

Rights Concept To 14th Amendment Person-

Crees eee ree ree 27

Failure To Apply Properly the Constitutional

Implied Rights Concept To “Liberty’” Under

SE OEE PP OO Tara 27

Naked Deprivation of Rights ................ 28

Manufacture of the Right of Abortion ........ 28

E. The Court Lacked Personal Jurisdiction Over the

Infant Victims of Abortion ...............0.00. 28

SOS o2 0c gus cadelss+ eee ce uteeas + camkbeses 29

(v)

TABLE OF AUTHORITIES

I. U.S. Cases:

Adams v. Weinberger, 521 F. 2d 656 (C.A. 2, 1975) ....... 13-14

Ts 8

Bowlan v. Lunsford, 54 P. 2d 666 (S.C. Okla., 1936) ........ 22

Bradley v. Henry, 239 S.W. 2d 404 (Tex. Civ. App.—Fort

da hbk mas adnccs eweek nae veden ec 3

Brady v. Doe, 598 S.W. 2d 338 [Tex. Civ. App.—Houston

(14th Dist.), 1980] err. ref. n.r.e., cert. denied, 449 U.S.

Nk ee 6

Brantley v. Boone, 34 S.W. 2d 409 (Tex. Civ. App.—

OND kg Sine KinG wad cu cencvncesesees 10, 14

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932)

(Brandeis, J., Dissenting Opinion) .................... 17

Chrisafogeorgis v. Brandenburg, 304 N.E. 2d 88 (S.C.

a aed ke Ghd pak wanda cas tces sae escent 21

Commercial Standard Ins. Co. v. Marin, 488 S.W. 2d

861 (Tex. Civ. App.—San Antonio, 1972),

ge ae I ee eer 1

Commonwealth v. Bangs, 9 Mass. 380 (S.J.C. Mass.,

rea iGiidaa wins che eG on sWeuhy Cavaco sve'e' 13

Commonwealth v. Demain, 6 Pa. L.J. 28 (S.C. Pa., 1846) ..... 13

Commonwealth v. Kelsea, 157 A. 42 (Supr. Ct. Pa., 1931) ....13

Commonwealth v. Parker, 50 Mass. 263 (S.J.C. Mass.,

a a as wa 13, 24

Connecticut v. Menillo, 423 U.S. 9 (1975) .. 0.0... ee ee eee 7

Cox v. Cooper, 510 S.W. 2d 530 (Ct. App. Ky., 1974) ....... 21

Crisfield v. Storr, 36 Md. 129 (Ct. App. Md., 1872) ...... 12, 20

Danos v. St. Pierre, 402 So. 2d 633 (on rehearing)

aie ach tne wtb se ckke’ 21

Dietrich v. Inhabitants of Northampton, 138 Mass. 14

Ec Dis Scnckenevamiecevaneceovceus 22

(vi)

Dixon v. State, 2 Tex. 482 (S.C. Tex., Dec. Term, 1847) ..... 16

a) Re ek | 2, 4,6

7,17, 19, 26, 28

Dougherty v. People, 1 Colo. 514 (S.C. Colo., Feb. Term,

es er re eG war bee's Za

Edwards v. State, 112 N.W. 611(S.C. Neb., 1907) .......... 22

Eich v. Town of Gulf Shores, 300 So. 2d 354 (S.C.

i ae dy hake he pia 66K oo aid © voles 20

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ............004. 17

Evans v. Olson, 550 P. 2d 924 (S.C. Ok., 1976) ............. 21

ee <0) 21

Fondren v. State, 169S.W. 411 (Tex. Crim. App., 1914) ..... 13

Gay v. Baker, 58 N.C. 344 (S.C.N.C., 1860) ...........005. 20

Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S.

te is alae ows ea kerma seb 00 oe 10, 18, 27

Goines v. Rockefeller, 338 F. Supp. 1189 (S.D. W.

rhage SEA a Re ae a a 15

Gray v. State, 178 S.W. 337 (Tex. Crim. App., 1915) ....... 24

Grinder v. The State, 2 Tex. 339 (S.C. Tex., Dec.

ee te ib ebaeenekecs 16

Griswold v. Connecticut, 381 U.S. 479 (1965) .............. 27

Guilliams v. Koonsman, 279 S.W. 2d 579 (S.C.

ee ss ec ecn ue awtuak 10

Gulf, Colo. and Santa Fe R. Co. v. Ellis, 165 U.S.

ied hae cea dnua vance ene vasbevencans 17

Hall v. Hancock, 32 Mass. (15 Pick.) 255 (S.J. Ct. Mass.,

I ee el ns ed Wows veese> 12

Hans v. Louisiana, 134 U.S. 1(1889) ........... 0. cee eee 21

Harrison v. State, 527 S.W. 2d 745 (Crim. App. Tenn.,

1975), cert. denied, see 527 S.W. 2d 745 ...........22005. 15

H.L. v. Matheson, 450 U.S. 398 (1981) ..............00005. 19

In the Matter of Diane Catoe v. Lavine, 378 N.Y.S. 2d 623

(N.Y. App. Div., 2nd Dept., 1976), motion for

leave to appeal denied, 386 N.Y.S. 2d 1027 .............+. 14

(vii)

Jefferson v. Griffin Spaulding Co. Hosp. Auth., 274S.E.

a POO ia Sie Law ease be se ad's bebe bed 13

Johnson v. Zerbst, 304 U.S. 458 (1938) ............. 2c eee 26

Labine v. Vincent, 401 U.S. 532 (1971) ........... 2. cece eee 28

Levy v. Louisiana, 391 U.S. 68 (1968) .............. 10, 18, 27

Libbee v. Permanente Clinic, 518 P. 2d 636 (S.C.

ATID rhs eet eae 5 kn Luly Reet saw Oeran 21

RO Oy PEF Neng GOP POP III ED eb vice tt ecdestaeens 11

ge TS oe LOR > 4 a a ere 8

Marbury v. Madison, 5 U.S. 137 (1803) ........... 0c eee ane 28

McArthur v. Scott, 113 U.S. 340 (1885) ............ 18, 26, 28

Medlock v. Brown, 136S.E. 551(S.C. Ga., 1927) ........... 13

Mills v. Commonwealth, 13 Pa. St. 630 (S.C., Pa., 1850) ..13, 24

Mitchell v. Commonwealth, 78 Ky. 204 (Ct. App.

ee NED Fi sic mes wamet soe seesvepeediens 24

Mitchell v. Mitchell, 244 S.W. 2d 803 (S.C. Tex., 1951) ...... 3

Moen v. Hanson, 537 P. 2d 266 (S.C. Wash.,

I, Se ON te aie ceo Soe 21

Mone v. Greyhound Lines, Inc. 331 N.E. 2d 916 (S.J.

see ines eo eee 21

Bees ©. ee, BGs U.S. SIS IGT) nonce ce ee cicccnnccscas 14

Munk v. Frink, 116 N.W. 525 (S.C. Neb., 1908) ............ 24

Munn v. Illinois, 94 U.S. 113 (O.T., 1886) .............0.. 28

Nash v. Meyer, 31 P. 2d 273 (S.C. Idaho, 1934) ............ 22

Nelson v. Galveston, H. & S.A. Ry. Co., 14S.W. 1021

(Com. App. Tex., 1890), opinion adopted, 14

RE MENG Savi vee ins cntnccsesvensbiager 14

Pennoyer v. Neff, 95 U.S. 714 (1878) ............00000- 26, 28

People v. Jackson, 3 Hill 92 (S.C.N.Y., May Term, 1842) ..... 13

People ex rel Farrington v. Mensching, 79 N.E. 884

tPA MED: Se bea pues ba tan bern Wins bon one's 15

Pherson v. Kistner, 222 N.W. 2d 334 (S.C. Minn., 1974) ..... 21

(viii)

Planned Parenthood of Central Miss. riv. Danforth,

7 ik os GE Aeeeeens eer samen rn 7

Beer ee, Baa US. SI ak a vk ats bk Sav Socccsees 8

Presley v. Newport Hospital, 365 A. 2d 748 (S.C.R.L.,

Bs ote c¥ Che ra sles Adda vas nedwak ea creunieoen 21

Rainey v. Horn, 72 So. 2d 434 (S.C. Miss., 1974) ........... 21

Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson,

201 A. 2d 537 (S.C.N.J., 1964), cert. denied,

SO Re EE «cad nisin s Supe heWad sant penceeaban cael 13

Page ws. Pie; SOUSA Crewe her vavensnenwine 2, 3, 4, 6,

7,8, 10, 15, 17, 18, 19, 21, 26, 27, 28

Roe v. Wade—Separate Opinions:

Burger, C.J. (Concurring), 410 U.S. 207 ............4.. 19

Rehnquist, J. (Dissenting), 410 U.S. 171 ............... 25

Schwanecke v. Harris Co. Hosp. Dist., No.

10-81-150-CV (Tex. App. 10th—Waco, 1981),

cert, dented, B55 S. Fe CAE. onc ca nese cccecccsunes 6

Schick v. United States, 195 U.S. 65 (1904) ............0005. 12

Scott v. Graham, 292 S.W. 2d 324 (S.C. Tex., 1956) ......... 4

Sox v. United States, 187 F. Supp. 465 (E.D.S.C., 1960) ..... 14

Smith v. State, 33 Me. 48 (S.C. Me., 1851) ................ 24

State v. Alcorn, 64 P. 1014 (S.C. Idaho, 1901) .............. 24

State v. Arden, 1$.C. 196(S.C.S.C., IF9B) ow cc cccntcesse 12

State v. Ausplund, 167 P. 1019 (S.C. Ore., 1917) ........... 22

State v. Cooper, 22 N.J.L. 52(S.C.N.J., 1849) .............. 24

State v. Cox, 84 P. 2d 357 (S.C. Wash., 1938) .............. 22

State v. Gedicke, 43 N.J.L. 86(S.C.N.J., Feb. Term, 1881) ... 22

State v. Howard, 32 Vt. 380 (S.C. Vt., 1959) ............... 22

State v. Miller, 133 P. 878 (S.C. Kan., 1913) ............... 22

State v. Murphy, 27 N.J.L. 112(S.C.N.J., 1858) ........... 22

State v. Reed, 45 Ark. 333 (S.C. Ark., 1883) ........... 13,24

(ix)

State v. Slagle, 82 N.C. 566 and 83 N.C. 544

coset Gat-oncies badsiovorcsmencecs 13,24

State v. Stafford, 123 N.W. 167 (S.C. Iowa, 1909) .......... 24

State v. Steadman, 51S.E. 2d 91(S.C.S.C., 1948) «......... 24

State v. Tippie, 105 N.E. 75 (S.C. Ohio, 1913) ............. 22

State v. Watson, 1 P. 770 (S.C. Kan., 1883) ..........0.005. 22

Sterling v. Constantin, 287 U.S. 378 (1932) ........0. 20 ees 21

Stills v. Gratton, 127 Cal. Reptr. 652 (Cal. App.,

EIEN EEE OS ee ees eee eee eee 20

RE eer 17

Terrell v. Middleton, 187 S. W. 367 (Tex. Civ. App.

Sn, GPUOE, GEFs BOS. oi sere iscccevcecseoss 5

Texas Employers’ Ins. Ass'n. v. Shea, 410 F. 2d 56

aoa id wbias vw ine ssi bin sales casts vee 14

The Ladies Center of Clearwater Inc. v. Reno, 341 So.

Oe) Se ene 20

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891) ...... 11, 18

United States v. Wong Kim Ark, 169 U.S. 649 (1898) ........ 11

Utah Copper Co. v. Indus. Com. of Utah, 193 P. 24

in iuns pAkRSula cS ¥eeadeces'socecee 13

Vaillancourt v. Med. Center Hosp. of Vt., 425 A. 2d 92

eae Vetesastevpereecwescseceess 21

Wagner v. Finch, 413 F. 2d 267 (C.A. 5, 1969) ..........255. 13

Weber v. Aetna Casualty & Surety Co., 406 U.S.

DT RSits MeL sce beccdgatecsencesecessesecens 18

Williams v. Zbarez, 438 U.S. 358 (1980) .... 6.6... ees 8

Windsor v. McVeigh, 93 U.S. 274 (1876)... 6.6... e cece 26

Yandell v. Delgado, 471S. W. 2d 569 (S.C. Tex., 1971) ...... 10

Il. English Cases:

Beale v. Beale, 24 E. Repts. 373 (Ch., 1713) ............ 12, 23

Burdet v. Hopegood, 24 E. Repts. 484 (Ch., 1718) ..... , 12,3

(x)

Lutterel’s Case (c. 1660), referred to in Hale v.

FEE, GE Es Ss SOME His h cabddocccevicusedss 12

Margaret Tinkler’s Case (c. 1781), I East, A Treatise of the

Pleas of the Crown (Phil., 1806), pp. 230, 354-356 ........ 11

Millar v. Turner, 27 E. Repts. 907 (Ch., 1747-1748) ..... 12, 23

Reeve v. Long, 83 E. Repts. 754 (H. of Lords, 1695) ........ 12

Select Pleas of the Crown AD 1200-1225

(Selden Society, 1887): :

Se cis da tcchc vara vedeadendtipes 11

Es TS IEG (A sO eR eo 11

ETS ae RD pee a Hen Bo Be 11

Sim's Case, 75 E. Repts. 1075 (Q.B., 1601) ...........00 00s 12

Star Chamber Cases (Soule and Bugbee) (Boston, 1881),

reprinted from the edition of 1630 or 1641,

ND, SURE in Ghbeen aes Sombie s Ghd wA ae oe Chh dens pip snc es 11

Wallis v. Hodson, 27 E. Repts. 642 (Ch., 1740) ..........45. 12

III. U.S. Declaration of Independence, U.S. Constitution,

U.S. Statutes and Texas Annexation Accord:

U.S. Declaration of Independence ..........:.... 8,17

U.S. Constitution:

has cca heGaeee s0k)6 ead bees keantuie 1, 28

Mas ents sc ctindbectasterceesaaie 1, 15, 28

ci unease saswses te 1, 26, 27, 28

I, igs vcs nakessseebetenes 1, 11, 13, 28

OEE 1, 14, 28

oi icns duccevededeceysosnaenien 21

IIE 503 ch 5 oe dueedadednseoeen 1,8,9

10, 18, 26, 27

U.S. Statutes:

Federal Tort Claims Act, 28 U.S.C. 1346(b)

ET Mile ie itch die pbabtiarink-t teivh- ab bhneds4-44-44404 14

Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. 901 etseq. ......... 14

(xi)

Social Security Act:

Subchapter II, 42 U.S.C. 401 et seq. «0.2... 6c cee 13

Subchapter IV, Part A, 42 U.S.C. 601 et seq. ....... 14

oR ee ee ees re 1

Texas Annexation Accord (1845):

5 U.S. Stats. at Large 597, 598 (1845) ........... 1,15

9U.S. Stats. at Large 108 (1845) ............06. 1,15

Tex. Const. of 1845:

PEED cca we-cieeie sa c0is hb.o% 0 temo e nes 1,35

Seer rey rr 1, 15, 16

IE ioe <i 0s ck WR on dihpantcy beseee 1, 15

a RE cia oy oa cil'cd'scssskecbdeeebes 1

Ne aM dus ne hdc eek hc kueed Dake 1

IV. Federal Regulation and Rule:

es TEEN ou kc ance snceises¥acwieweds 14

EE ee Mc as i, vinbia vce s Hoan bbde eeu 26, 28

V. Texas Statutes, Texas Rules of Civil Procedure and Republic of

Texas Materials (Const. and Statutes of the Republic of Texas):

Texas Statutes:

Article 4494n, Ver. Texas Civ. Stats. (V.T.C.S.):

eee. eae One eg hee ati ae Se ol a ori 4,9

ee Real on Gat 6 ch peau ase in teab seas 4

Art. 4675 et seq., Ver. Tex. Civ. Stats. (V.T.C.S.) ...... 14

Texas Family Code:

a ee ok ee 10, 14

EEE ATER area a WON so eet ee 9,14

I hoc a aS | ieee 10, 14

ST eo no 5, 65a sacmeere gleeuheibillasibenens 14

Texas Penal Code, § 1.07(17) .................045. 9,14

Texas Probate Code:

ee i a oi 14, 15

EERSTE eG ere ee ere ee amy omnes 15

(xii)

Texas Rules of Civil Procedure (T.R.C.P.):

as ee en aduyteaan wae ans 1

MRR. cho os Oo od ew Meead one aed 1

Ct Whi daine seh wainmaeans hace anes ses 1

Republic of Texas Materials:

Const. of the Rep. of Texas (1836):

Ei cad cd ce ntneendsn de ctieenutnns 16

Act Punishing Crimes and Misdemeanors,

approved December 21, 1836, 1

Gam., The Laws of Texas 1247, 1255 ....... 6.005. 16

Act supplemental to “An Act concerning Crimes

and Punishments,” etc., approved on

February 9, 1854, 3 Gam., The Laws

SN ert Grou duidiealin VAs c.apensnensaates 16

Act to Regulate the Descent and Distribution

of Intestates’ Estates, approved January 28, 1840,

2 Gam., The Laws of Texas at 308 ..........5005 15

VI. English Statutes:

12 Ch. II, c. 24, §§ VIII and IX (1660) ...............065 12

Lord Ellenborough’s Act [43 Geo. III, c. 58,

§ XIII (1803)] or Preamble thereto................ 11, 23

ID ow einen ccvcedacowcaaes 15

I N,N oh we cc che Seeecceemoages 12

VII. Treatises and Books:

Blackstone, Commentaries on the Laws of England

Vol. 1 (1765), pp. 123, 129 and/or 129-130 ...-.. 11, 12, 24

NEED aii h acienabeitanetesenveaved 24

Boke of Justyces of Peas (1506?, 1515, 1521 and 1544) ...... 11

Ill Chitty, A Practical Treatise on the Criminal Law

(London, 1816), pp. 798-801... 0.2... 6... 11, 23

Clark, Handbook of Criminal Law (3rd ed., 1915),

Ma ateth tas 6esb ees oad vanes eerconebant 23

ED OPES occ cs cece ccccesscccsccccess 23

16C.].5., “Constitutional Law,” § 101

(xiii)

I East, A Treatise of the Pleas of the Crown (Phil., 1806),

TE IEEE Wah arash SL esa bse ncne eek beet hee ey caw 24

Flanagan, The First Nine Months of Life (N.Y., 1962),

SAIN Spader cen veviesuucepcunewaetsanssnxe. 25

II Hale, The History of the Pleas of the Crown (1st Am. ed.,

with notes, etc. by Stokes and Ingersoll) (Phil.,

I TR deeds nc tRb wk avandavckweevesueeean he 23

I Hawkins, A Treatise of the Pleas of the Crown

(c. 1716) (Curwood, London, 1824, ch. 13,

PO rs hewer tes sii eeda tng Gavngavadsesaneds 22-23

Se EP CII ah 0 sures oss Ohad bee euades shee 22

Means, Jr., ‘The Phoenix of Abortional Freedom,”

Og NS Se SI Rie A rere 22, 23

Nathanson, Aborting America (N.Y., 1979) ............. 23

New Perspectives on Human Abortion (ed. by Hilgers,

Horan and Mall) (Frederick, Md., 1981), ch. 15,

OD. DE eee cade svdesaeeaeanbvcarcssncsess 26

I Swift, A System of the Laws of the State of Connecticut

I SIE nda tia w sd aetndecee eri tsswaricxs 12

Il Wharton's Criminal Law (14th ed., by Charles

E. Torcia) (1979), § 250, p. 415 ..........0-ceccees 12-13

I Wood, An Institute of the Laws of England (3rd ed.,

co Re eer 24

VIII. Miscellaneous:

ce ae OF ER ae ee mre 21

I Select Justiciary Cases 1624-1650 (The Stair

Society, Edinburgh, 1953), p. 81 .................... 21

Tr. Oral Arg. in Roe v. Wade, Oct. 11, 1972, pp. 67-68 ....16

OPINION BELOW

The opinion of the Court of Appeals (Pet. App. “A’”’) is not

reported.

JURISDICTION

The Judgment of the Court of Appeals (Pet. App. ““B’’) was

dated and entered on September 9, 1982. A timely Motion for

Rehearing, as amended, was overruled by that Court on Oc-

tober 7, 1982 (Pet. App. “C’’). On March 30, 1983, the

Supreme Court of Texas refused Petitioners’ timely Applica-

tion for a Writ of Error with the notation, ‘No Reversible

Error’ (Pet. App. “D”).' A timely Motion for Rehearing was

overruled by that Court on May 4, 1983 (Pet. App. “’D’”’). The

jurisdiction of this Court is invoked under 28 U.S.C. 1257(3).

U.S. CONSTITUTIONAL AND TEXAS ANNEXATION

ACCORD PROVISIONS INVOLVED

These data, which are lengthy, are set forth in Appendix

“E” hereto. The U.S. Constitutional provisions are cited as

Articles III and VI, and the 5th, 9th, 10th and 14th Amend-

ments. The Texas Annexation Accord provisions are cited as 5

U.S. Stats. at Large 797-798 (1845), 9 U.S. Stats. at Large 108

(1845), Tex. Const. of 1845, Arts. 7, § 20, and 13, §§ 3 and 13,

Tex. Joint Res. (1845) and Tex. Ord. (1845).

STATEMENT OF THE CASE

In October 1979, the Petitioners? sued the Respondents in a

' The “No Reversible Error’ (or ‘‘n.r.e.’”) notation means that the

Supreme Court is ‘‘not satisfied” that the Court of Appeals has stated the

law correctly on all points, but that the Application for a Writ of Error does

not present error requiring reversal of the Judgment (Rule 483, Tex. R. Civ.

Proc.). Where this occurs, as here, the Judgment of its Court of Appeals does

not become the Judgment of the Texas Supreme Court. E.g., Commercial

Standard Ins. Co. v. Marin, 488 S.W. 2d 861, 864 (Tex. Civ. App.—San

Antonio, 1972), err. ref. n.r.e.

? While the District Court refused to certify the Children Class under Rule

42, Tex. R. Civ. Proc., it did not deny Class recognition under the permissive

joinder provisions of Rule 40, Tex. R. Civ. Proc., as averred in Plaintiffs’

Second Amended Original Petition (Tr. 6). The averred Taxpayer Class,

however, is not before this Court since the District Court refused to certify

same under said Rule 42 (Tr. 132-133) and the Court of Appeals dismissed

Texas District Court in Houston, Harris County, Texas, for

declaratory and injunctive relief (primarily) to prohibit the

performance of abortions affecting Petitioners at the facilities

of Respondent Harris County Hospital District (‘‘District’’), to

prohibit the use of property tax funds for such purposes, and

to require the Harris County Commissioners Court (’“Com-

missioners Court’’) to exercise its supervisory authority over

the District to halt the complained of abortion conduct (Tr.

2-36, 201-236). Respondents filed certain Pleas in Abatement

and Bar (Tr. 38-41, 42-46). In May 1980, the District Court

granted the Pleas and dismissed the case as to Respondents

Harris County and Harris County Treasurer Henry E. Kriegel,

but overruled such Pleas as to the remaining seven Re-

spondents (Tr. 102). Subsequently, the remaining Respon-

dents, through their Attorneys, stipulated to the material facts

of the case (Tr. 134-136 and Exhibit “A” thereto), and each side

moved for summary judgment. On July 6, 1981, the District

Court, after a hearing, dismissed the suit on grounds of moot-

ness. See Tr. 375-376.

On appeal, the Court of Appeals reversed and remanded in

part and dismissed in part. While holding that the case was

not moot, the Court ruled that Petitioners had not pleaded a

cause of action “under existing law,” and that the cause be

remanded [so that the Petitioners could be given an oppor-

tunity to plead a cause of action if they could (Pet. App. “A,”

p. 8)]. While the Court recognized that this Court, in Roe v.

Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179

(1973), ““creat/ed] rights where none had previously been re-

cognized,”’ it said that the decisions of this Court in Roe, etc.

were the “law of the land” and bound that Court and the

Petitioners (Id. at 2, 8).* Subsequently, the Supreme Court of

Texas refused Petitioners’ Application for a Writ of Error (from

certain portions of such Judgment) with the notation, “No

Reversible Error” (Pet. App. “’D”’).

Appellants’ appeal therefrom. [The appeal was also dismissed as to the

District Court’s refusal to certify the Children Class, above, and to appoint a

guardian ad litem for Members of such Class (Tr. 132-133).]

* For the dismissal aspect of the Court’s holding, see footnote 2, supra.

The pertinent facts are these:

1. The Petition. In their Third Amended Original Petition

(filed in April 1981), which was the operative Petition at the

time the District Court rendered its Judgment (‘Petition’),

Petitioners averred that abortions which affecte adversely the

Children Class (consisting of certain Unborn Children and

Recently Born Children who “survived” the abortions)* were

being performed unlawfully and unconstitutionally at District

facilities and with the use of property tax funds; that all of the

Respondents assisted directly or indirectly in such abortion

activities; that the Recently Born Children so affected (““Abor-

tion ‘Survivors’’’) were U.S. and Texas Citizens; that the af-

fected Unborn Children possessed legal or juristic personali-

ties under the U.S. Constitution; that the complained of abor-

tion conduct violated the rights of such Children to life, liberty

and property under the 9th and 14th Amendments to the U.S.

Constitution, under Article VI (supremacy clause) of the U.S.

Constitution, under Texas law as authorized by the Division of

Powers Concept of the U.S. Constitution and as guaranteed

by the 10th Amendment thereof, and under the prior Texas

anti-abortion law of U.S. Constitutional stature under Article

VI (supremacy clause) revived as a legal effect of Roe, assum-

ing Roe to be a lawful decision for this purpose; that property

tax funds paid by the Taxpayer Petitioners (three individual

property taxpayers and an averred Taxpayer Class) were being

used unlawfully and unconstitutionally to further such abor-

tion conduct; and that the Judgments and Decisions in Roe and

Doe were void as violative of the U.S. Constitution and

Fundamental Principles of Personal Jurisdiction.

2. Respondents’ Pleas in Abatement and Bar. In their Pleas in

Abatement and Bar, Respondents averred, in part, that

“under Texas law, and the U.S. Constitution, an unborn, non

viable fetus ha[d] no legal status which may be represented by

* Under Texas law, Unborn Children and Born Children may comprise a

class of Plaintiff-litigants. Mitchell v. Mitchell, 244 S.W. 2d 803, 804 (S.C.

Tex., 1951). Further, Unborn Children may comprise a class of defendant-

litigants and be the only defendants in the case. Bradley v. Henry, 239S.W. 2d

404 (Tex. Civ. App.—-Fort Worth, 1951), no writ.

Plaintiffs,” and that the ‘‘purported cause of action’”’ stated in

Plaintiffs’ Original Petition “was placed to rest’ by the deci-

sions of this Court in Roe and Doe (Tr. 38, 42-43). These Pleas

were granted as to Respondents Harris County and Kriegel,

but overruled as to the remaining seven Respondents (Tr.

102).

3. Certain Stipulated Facts. After Roe v. Wade was decided, the

District, through its Board of Hospital Managers, adopted and

later amended certain policies which permit abortions to be

performed at its facilities and within the guidelines of Roe.

Pursuant thereto, abortions and/or abortion procedures

“have been, are being and may be performed” at such facilities

(Tr. 134). For some years prior to June 1981, the District oper-

ated an abortion clinic, called the Voluntary Termination of

Pregnancy Clinic (“VTP Clinic’), at its Jefferson Davis Hos-

pital, and the “great majority” of such abortions were per-

formed at the VTP Clinic (ibid.). The District furnished limited

services, equipment, supplies, etc. for abortion purposes (Tr.

135).

The Commissioners Court levies property taxes for the Dis-

trict, using the Harris County tax rolls (Tr. 135).* These taxes

are collected by the Tax Assessor-Collector of Harris County

and are deposited to the District’s depository after statutorily

authorized fees are taken (Tr. 136). The Commissioners Court

approved the District’s Operating Budgets for 1978, 1979 and

1980,’ and such Budgets included funds for the VTP Clinic (Tr.

135).°

* The District is funded primarily by property tax revenues, See Tr. 311,

313, 314, 316.

* An amendment to the statute eliminated the fees deduction.

” The authority of the Commissioners Court to levy such taxes and

approve such budgets is contained in Article 449%4n, §§ 2 and 8, V.T.C.S.

* Petitioners Brecheisen, Duesing and Winstrom paid (and pay) property

taxes to or for the benefit of the District (Tr. 195-200). Under Texas law,

Taxpayers have standing to challenge, as here, the lawfulness of expendi-

tures of tax funds to which they paid in part. E.g., Scott v. Graham, 292 S.W.

2d 324, 329 (S.C. Tex., 1956). Even a single taxpayer has standing to prevent

the illegal diversion of tax monies ‘‘no matter how small” the amount of

4. Medical Evidence. Human life begins at conception, which

is that point in time when the male sperm cell impregnates the

female egg cell (Tr. 82). At that time, the ‘new being” receives

half of the chromosomes from each parent and has an “‘abso-

lutely unique hereditary plan’’ (ibid.). This new life is con-

trolled by an individual genetic code.

The unborn child is alive, human and has a distinct being

(Tr. 83, 86). The eaity development of the unborn child is

presented (Tr. 83-84, 86).

Sometimes children are born alive after abortions caused by

the administration of saline or prostaglandin. In abortions by

hysterotomy (caesarean section), the child will be removed

alive if alive when the operation begins (Tr. 88). ‘Children are

born or brought forth alive after abortions in Harris County,

Texas, and are in need of immediate medical attention***” (Tr.

88).°

5. Closure of the District's Abortion Clinic. On May 14 and June

4, 1981, the Commissioners Court disapproved the District’s

proposed Operating Budget for Fiscal Year 1981-1982 because

it included funds for abortions (Tr. 253, 296, 301). This Budget

earmarked $127,000 for the VTP Clinic, but did not identify

funds for abortions other than at the VTP Clinic (Tr. 326, 336,

346 and 356). On June 8, the District, through its Board of

Hospital Managers, inter alia, eliminated “under protest” the

budgeted funding for the VTP Clinic. On the following day

the Commissioners Court approved the revised Budget, and

the District closed its VTP Clinic (Tr. 296, 307).

6. The Continuation of Abortion Activities. Abortions affecting

adversely the Petitioners continued at District facilities after

the closure of the VTP Clinic (Affidavit of ‘J. Roe’ dated

August 25, 1981).'° Two of these abortions resulted in live

affected taxes he has paid. Terrell v. Middleton, 187 S.W. 367, 369 (Tex. Civ.

App.—San Antonio, 1916), err. ref.

* The record discloses various adverse physical, medical and psychologi-

cal consequences of abortion (Tr. 88-89). Abortion does ‘‘natural violence to

the normal functioning of the female reproductive system” and is “contrary

to human nature and human science and biology” (Tr. 89).

*° In an original proceeding in the Court of Appeals, Appellants attempted

unsuccessfully to secure a temporary injunction to prohibit abortions affect-

births, a Boy in July 1981 and a Girl in September 1981. The

Boy—aborted because of diagnosed trisomy 21 (Downs Syn-

drome)—died in an unheated incubator, after ‘‘flesh and tis-

sue, about the size of quarters, were sliced and removed

from his right and left thigh areas (apparently for use as tissue

samples for study)” and ‘three needle-size puncture wounds

were made to or near his heart” (Ibid.). Mucus was not drained

from his nose or throat. The Girl died 8 days after her birth.

7. Federal Questions. The federal constitutional issues pre-

sented by this case were introduced by the Petition. In addi-

tion, Respondents relied upon Roe and Doe in their Pleas in

Abatement and Bar (Tr. 38, 42). The District Court granted,

etc. said Pleas as to two Respondents, but overruled same as

to the remaining seven Respondents (Tr. 102-103). It did not

rule on the motion and cross motion for summary judgment.

Instead, it dismissed the cause as moot.

On appeal, Petitioners challenged, in part, the granting of

said Pleas and the refusal to certify the Children Class under

Rule 42, T.R.C.P. Petitioners argued, in part, that Brady v. Doe,

598 S.W. 2d 338 [Tex. Civ. App.— Houston (14th Dist.), 1980],

err. ref. n.r.e., cert. denied, 449 U.S. 1081, reh. denied, 450 U.S.

960, which relied upon Roe v. Wade, was not controlling on

such Class certification question, was distinguishable, was

nonauthoritative and was void; that Brady was void because

its predicate, Roe v. Wade, was void; and that, in Roe and Doe,

this Court violated or permitted to be violated numerous

provisions of the U.S. Constitution.

The Court of Appeals dismissed, for lack of jurisdiction, the

appeal on the refusal to certify point, and overruled, without

opinion, the appeal points in the granting of said Pleas (Pet.

App. “A,” p. 9). Relying on Roe, etc., the Court ruled that

ing the Children Class pending appeal to that Court, and this Court denied

certiorari from the order of the Court of Appeals and later denied rehearing.

Schwanecke v. Harris Co. Hosp. Dist., No. 10-81-150-CV (Tex. App. 10th—

Waco, 1981), cert. denied, 455 U.S. 1019 (1982). Two previous similar attempts

—before an appeals court in Houston (before which the appeal in this case

was pending at such time)—also were unsuccessful. In addition, the Court

of Appeals in this case overruled a separate motion for a temporary injunc-

tion to prohibit such abortions pending the appeal.

Petitioners had not pleaded a cause of action ‘‘under existing

law” (Id. at 7-8).

In their Application for a Writ of Error, as supplemented,

Petitioners raised all matters sought herein to be reviewed

except, of course, they did not request the Supreme Court of

Texas (or any other Texas Court) to overrule Roe and Doe.

Petitioners preserved the federal questions in their Motion for

Rehearing which was overruled.

ARGUMENT

I.

Petitioners Pleaded Numerous Causes of Action Under

Existing Law Against Local Government Entities and

Officials For Their Complained of Abortion Conduct, with

Roe v. Wade and Other Decisions of This Court Being

Distinguishable Therefrom

Relying on decisions of this Court in Roe, Planned Parenthood

of Central Missouri v. Danforth, 418 U.S. 52 (1976) and possibly

Doe v. Bolton, the Court of Appeals held that Petitioners had

not pleaded a cause of action ‘under existing law” (Pet. App.

“A,” pp. 7-8). This was clear error.

A. Petitioners’ Causes of Action Were Not Denied or Precluded by

the Abortion Decisions of this Court. Roe, Doe and Danforth do not

operate to deny or preclude the causes of action which Peti-

tioners pleaded because the complained of conduct, unlike

that presented in such cases, is direct, public abortion conduct

by a unit of local Texas government, as aided by other units

and officials of local Texas government. It is not that of a private

patient/physician nature or of state regulatory modification

thereof, as presented by Roe, Doe and Danforth. This Court has

made it quite clear that Roe is not to be applied to situations

which, as here, were not before, or decided by, the Court in

Roe. Connecticut v. Menillo, 423 U.S. 9, 10-11 (1975).

Moreover, this Court has never recognized the propriety of

direct abortion conduct by a state, such as that presented by

this case, where the District ran an abortion clinic, where tax

funds were earmarked for and used in the operations of such

clinic, where abortions were continued at District facilities after

such clinic was closed, including the live human experimenta-

tion upon, and murder of, a Boy who survived an abortion at

such facilities, and where abortions were (and continue to be)

authorized by current District policy throughout the entire

length of pregnancy. Such conduct raises substantial consti-

tutional/legal issues not present in a private patient/physician

setting. The state has duties, interests and concerns that are

not shared by the pregnant female and her physician. For

example, abortion activity by a state:

@ wars against its basic duty to protect human life, including

the lives of Children who “survive” abortions (e.g., U.S.

Declaration of Independence, July 4, 1776; U.S. Const., 14th

Amend., § 1);

® contradicts its ‘important and legitimate interest in protect-

ing the potentiality of human life,”” whether before or after

the “compelling” point of viability (Roe v. Wade, supra, 410

U.S. at 162-163);

@ contravenes its ‘strong and legitimate interest’ in encour-

aging childbirth or normal childbirth [Beal v. Doe, 432 U.S.

438, 445-446 (1977)];

® contravenes its ‘important and legitimate interest in pre-

serving and protecting the health of the pregnant woman”

(Roe, 410 U.S. at 162), including physical, emotional and

psychological effects of abortion; and

® contradicts substantial state law and policy, statutory and

judicial, which provides to, or recognizes in, Unborn Chil-

dren and Abortion “Survivor” Children rights under prop-

erty, tort and other state law.

While a state may restrict or prohibit most abortions in

public facilities [Poelker v. Doe, 432 U.S. 519, 521 (1977)] and

may restrict or prohibit funding for most abortions [Williams v.

Zhbarez, 438 U.S. 358, 368-369 (1980); Maher v. Roe, 432 U.S. 464,

474-475, 479-480 (1977)], it does not follow that the state may

engage in abortion conduct and fund the same with public

monies. Not only was such an issue not presented by such

cases, but all of the states there involved were attempting to

preserve human life and to restrict abortion conduct.

B. Petitioners Pleaded Numerous Causes of Action Under Existing

Law. The Petition averred, in essence, that the District was

performing and/or aiding or assisting directly in the perform-

ance of abortions or abortion procedures on the Natural

Mothers of Members of the Children Class, in violativn of the

constitutional rights of the Members of such Class (discussed

below); that tax monies paid by the Taxpayer Class (including

the three Taxpayer Petitioners) were being used by the District

for such abortion purposes; that the remaining Respondents

were aiding or assisting such abortion activities through taxa-

tion, tax disbursement and other activities; that the use or

expenditure of tax funds by the District for such abortion

activities was unlawful and unconstitutional; and that all such

abortion and tax expenditure conduct was violative of the

rights of all Petitioners (Tr. 202-220, 229-231)."’ In short, the

Respondents were charged with violating the constitutional

rights of Members of the Children Class and, through ex-

penditure or use of tax monies, the rights of the Taxpayer

Petitioners. The constitutional right violations of Members of

the Children Class may be summarized as follows:

1. Rights Under the 14th Amendment.

a. Abortion “Survivors.” The Abortion ‘Survivor’ Children

in this case are U.S. and Texas Citizens and “‘persons” under

Section 1 of the 14th Amendment to the U.S. Constitution.

They are recognized expressly under Texas statutory law, and

have the same rights, powers and privileges as are provided

by Texas law to Children born alive after the normal gestation

period. Tex. Family Code, § 12.05. They are entitled to support

and substantial other rights and protections, and are indiv-

iduals under the Penal Code. Tex. Penal Code, § 1.07(17).

It is axiomatic that the Respondents may not destroy, or

participate in the destruction of, Abortion “Survivors,” or

"" Respondents Harris County and Kriegel are proper and necessary

parties to the lawsuit, and the Court of Appeals erred in sustaining the

District Court's dismissal of the suit as to them. Harris County tax rolls are

used for the assessment of the property taxes here at issue, and Harris

County personnei are used in the collection of such taxes (Tr. 135-136; Art.

4494n, § 2, V.T.C.S.). As Treasurer of Harris County, Respondent Kriegel is

responsible to see that the District’s share of the property tax collections is

deposited to the District’s depository. These Respondents are essential links

in getting property tax funds to the District for unlawful usage by it, and

they are needed for the granting of complete relief.

10

withold from them protections and rights provided by Texas

law. U.S. Const., 14th Amendment (due process and equal

protection clauses). Yet this exists when they die as a result of

having been aborted or denied proper care. For the murder of

an Abortion ‘Survivor’ Boy at District facilities, see the

Statement of the Case, supra.

b. Unborn Children. In like manner, they may not destroy, or

participate in the destruction of, Unborn Children by abor-

tion. Unborn Children are ‘‘persons”’ under said Amendment

because (1) they meet this Court's test of 14th Amendment

personhood as expounded in Levy v. Louisiana, 391 U.S. 68

(1968) (live, human and having a being), (2) they meet this

Court's “biological” test of 14th Amendment personhood as

expressed generally in Glona v. Am. Guarantee & Liab. Ins. Co.,

391 U.S. 73 (1968), and (3) they have legal personalities and

numerous rights under substantial federal and state law.

Moreover, Unborn Children have clear personhood under

the 14th Amendment at least as applied to the states because not

only do the states have “important and legitimate” interests in

protecting their lives, whether at the “compelling” point of

“viability” or earlier (Roe, 410 U.S. at 162, 163), but they

provide or recognize substantial rights in them.’? As here

applied, Texas may not repudiate such interest, nor may it

wage war on its own law. The reach of the due process and

equal protection provisions of the 14th Amendment is broad,

and covers at the very least the legal entities which the State

itself recognizes and affirms. “Due process” and “equal pro-

tection’’ standards thereunder are not met by the govern-

mental destruction of Unborn Children here at issue.

* For example, under Texas law a duty of care is owed to an Unborn Child

under the prenatal tort injury doctrine [Yandell v. Delgado, 471 S.W. 2d 569

(S.C. Tex., 1971)]; a post first trimester Unborn Child may be represented in

proceedings which affect the parent/child relationship (Tex. Family Code, §§

11.10(a), 15.021); an Unborn Child may be represented in judicial proceed-

ings for the wrongful death of his father and take an award betore birth

[Brantley v. Boone, 34 S.W. 2d 409, 411 (Tex. Civ. App.—Eastland, 1931), no

writ/; a temporary guardian may be appointed for an Unborn Child [Tex.

Probate Code, § 131 (Sup. Tr.1-4)]; and a posthumous child may take under a

will [Guilliams v. Koonsman, 279 S.W. 2d 579, 581 (S.C. Tex., 1955)).

11

2. Rights Under the 9th Amendment. The unenumerated

rights which are reserved to the ‘‘people’’ and guaranteed by

the 9th Amendment to the U.S. Constitution include tho" as..

right to live. Abortion “Survivors” clearly are part of tne

“people” whose life rights are guaranteed by said Amend-

ment. Unborn Children have the same posture thereunder.

When the 9th Amendment was adopted, Unborn Children

had (and still have) well recognized statuses and rights pos-

tures. ‘Property does not have rights. People have rights.”

Lynch v. H.F.C., 405 U.S. 538, 552 (1972). (Emphasis added.) It

is proper to construe the Constitution in light of the common

law. United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898).

When the 9th Amendment was adopted in 1791, the life of a

natural “‘person’’ was considered as beginning “as soon as an

Infant was able to stir in the mother’s womb” [I Blackstone,

Commentaries on the Laws of England (c. 1765), pp. 123, 129], and

this life received protection not only by the execution reprieve

rule, which this Court recognized expressly almost a century

ago [Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 253 (1891)],

but by the common law offenses relating to abortion."* These

offenses were:

@ murder or manslaughter if the female died as a result of the

abortion /[e.g., Margaret Tinkler’s Case (c. 1781), I East, A

Treatise of the Pleas of the Crown (Phil., 1806), pp. 230, 354-

356];

* The earliest reported abortion case in post-conquest England was in the

year 1200. Other early cases appeared in the years 1202, 1203, 1206 and 1221.

E.g., Select Pleas of the Crown AD 1200-1225 (Selden Society, 1887), Case Nos.

82 (1200), 26 (1202) and 73 (1203), pp. 39, 11 and 32, respectively. The four

editions of Boke of Justyces of Peas (1506?, 1515, 1521 and 1544) contain an

indictment which charged, inter-alia, the felonious slaying of an unborn

child. An interesting conviction for abortion occurred in the Court of Star

Chamber during the reign of Elizabeth I. Star Chamber Cases (Soule and

Bugbee) (Boston, 1881), reprinted from the edition of 1630 or 1641, pp. 19-2.

Abortion remained an offense up to the enactment of Lord Ellenborough’s

Act in 1803, where abortion was first made a statutory offense in England.

See III Chitty, A Practical Treatise on the Criminal Law (London, 1816), pp.

798-801. Abortion was also an offense in Scotland. See I Select Judiciary Cases

1624-1650 (The Stair Society, Edinburgh, 1953), p. 81.

12

@ murder or manslaughter if the child was born alive and died

as a result of the abortion [see, e.g., Sim's Case, 75 E. Repts.

1075 (Q.B., 1601)); and

@ heinous misdemeanor, etc. if a live Unborn Child, i.e., one

who “was able to stir in the mother’s womb,” was killed by

abortion (I Blackstone, op. cit., p. 129)."*

On the civil side, the legal status and rights posture of an

Unborn Child was recognized by a substantial body of English

law, statutory and case. E.g., 12 Ch. Il, c. 24, §§ VIII and IX

(1660) (representation by a testamentary guardian, with au-

thority to sue, etc.): Reeve v. Long, 83 E. Repts. 754 (H. of

Lords, 1695) (vesting of a remainder interest in realty), as

codified in 10 & 11 Wm. III, ch. 16 (1699); Lutterel’s Case, (c.

1660), referred to in Hale v. Hale, 24 E. Repts. 25, 26 (Ch., 1692)

(representation and award of an injunction to stay waste of

property interests). The Unborn Child was considered a “’Per-

son in rerum Natura” [Wallis v. Hodson, 27 E. Repts. 642,

643-644 (Ch., 1740)], was “‘in esse, according to the rule of the

civil law” [Millar v. Turner, 27 E. Repts. 907, 908 (Ch., 1747-

1748)], had “an existence in the eye of the law” [Burdet v.

Hopegood, 24 E. Repts. 484 (Ch., 1718)], was “‘living***in ventre

sa mere” [Beale v. Beale, 24 E. Repts. 373 (Ch., 1713)], etc.

The Unborn Child received similar legal recognition, pro-

tection and treatment in the United States, and from an early

date. I Swift, A System of Laws of the State of Connecticut (1795),

pp. 176-178 (protection against abortion);"* State v. Arden, 1

S.C. 196, 197 (S.C.S.C., 1795) (execution reprieve); Hall v.

Hancock, 33 Mass. (15 Pick.) 255, 257-259 (S.J.C. Mass., 1834)

(legal status and interest in residue of personal property under

a will). The legal status and rights posture of an Unborn Child

in this country continued and was expanded, particularly in

the area of tort and compensatory law. E.g., Crisfield v. Storr,

36 Md. 129, 146 (Ct. App. Md., 1872) (vesting of a remainder

‘** “Blackstone’s Commentaries are accepted as the most satisfactory ex-

position of the common law of England.” Scitick v. United States, 195 U.S. 65,

69 (1904).

‘* “[I]n the early years of our country’s existence the English common law

of abortion was in force in virtually every state***.” Il Wharton's Criminal Law

13

interest in realty); Medlock v. Brown, 136 S.E. 551, 553 (S.C.

Ga., 1927) (vesting of a beneficial interest in a trust); Utah

Copper Co. v. Indus. Com. of Utah, 193 P. 24, 33-34 (S.C. Utah,

1920) (representation and entitlement to part of a workmen’s

compensation award); Raleigh Fitkin-Paul Morgan Mem. Hosp.

v. Anderson, 201 A. 537, 538 (S.C.N.J., 1964), cert. denied, 337

U.S. 985 (representation and right to have mother undergo

life-saving blood transfusions); Jefferson v. Griffin Spaulding Co.

Hosp. Auth., 274 S.E. 2d 457, 459, 460 (S.C. Ga., 1981) (repre-

sentation and right to have mother undergo a needed cae-

sarean operation).

Moreover, since Abortion “Survivors” and Unborn Chil-

dren are beneficiaries of numerous rights and interests pro-

vided by the “people” under state law, the destruction of such

rights by the state itself constitutes an abridgement of the 9th

Amendment rights of the other people of that state to provide

or recognize such rights in such Children. Accordingly, the

State of Texas may not destroy the very rights which it pro-

vides to, or recognizes in, Unborn Children. See, e.g., foot-

note 12, supra.

3. Rights Under Federal Statutory Law. The complained of

conduct destroys substantial rights which the Children Class

Petitioners have under certain federal statutory law which, of

course, is part of the supreme law of the land. Abortion

“Survivors” and Unborn Children have rights under such

statutory law. Unborn Children have rights, for example,

under (1) the Social Security Act, Subchapter II, 42 U.S.C. 401

et seq. (insurance benefits); Wagner v. Finch, 413 F. 2d 267,

268-269 (C.A. 5, 1969); Adams v. Weinberger, 521 F. 2d 656,

(14th ed., by Charles E. Torcia) (1979), § 250, p. 415. Abortion was prose-

cuted as a common law crime. Mills v. Commonweaith, 13 Pa. St. 630, 632

(S.C. Pa., 1850); State v. Slagle, 82 N.C. 566 and 83 N.C. 544 (S.C.N.C., 1880);

Commonwealth v. Demain, 6 Pa. L.J. 28, 31 (S.C. Pa., 1846); see Commonwealth

v. Bangs, 9 Mass. 386 (S.J.C. Mass., O.T., 1812); Commonwealth v. Parker, 50

Mass. 263 (S.J.C. Mass., March Term, 1845); Fondren v. State, 169S.W. 411,

414 (Tex. Crim. App., 1914). Moreover, the common law offense of abortion

was recognized in some states after enactment of their respective anti-

abortion statutes. People v. Jackson, 3 Hill 92, 94 (S.C.N.Y., May Term, 1842);

State v. Reed, 45 Ark. 333, 334 (S.C. Ark., 1883); Commonwealth v Kelsea, 157

A. 42 (Supr. Ct. Pa., 1931).

14

660-661 (C.A. 2, 1975); (2) the Social Security Act, Subchapter

IV, 42 U.S.C. 601 et seq. (ADC benefits); 45 C.F.R. 233.909

(c)(2)(ii); In the Matter of Diane Catoe v. Lavine, 378 N.Y.S. 2d

623, 626 (N.Y. App. Div., 2nd Dept., 1976), motion for leave to

appeal denied, 386 N.Y.S. 2d 1027; (3) the Longshoremen’s and

Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq.

(compensation benefits); Tex. Employers’ Ins. Ass'n. v. Shea, 410

F. 2d 56, 61, 62 (C.A. 5, 1969); and (4) the Federal Tort Claims

Act, 28 U.S.C. 1346(b), 2674 (damages for negligence, includ-

ing prenatal torts); Sox v. United States, 187 F. Supp. 465, 469,

470 (E.D.S.C., 1960).

4. Rights Under Texas Law Authorized Under the Division of

Powers Concept and Guaranteed by the 10th Amendment. The

complained of conduct violates rights of Abortion ‘Survivor’

and Unborn Children under substantial Texas law authorized

under the Division of Powers Concept of the U.S. Constitu-

tion and guaranteed to the State under the 10th Amendment

thereof. “Family relations are a traditional area of state con-

cern.”” Moore v. Sims, 442 U.S. 415, 435 (1979). Within this

sphere of authority, Texas has enacted substantial law which

recognizes, for example, the legal status and rights posture of

an Abortion “Survivor” (Tex. Family Code, § 12.05); authorizes

the Department of Human Services to intervene on behalf of

an Abortion ‘Survivor’ (Id., § 17.011); extends the criminal

law to an individual who is born alive [Tex. Penal Code, §

1.07(17)); authorizes a suit to terminate the parent/child rela-

tionship after the first trimester of pregnancy (Tex. Family

Code, § 15.021); requires that the unborn child be represented

in such a suit with exceptions not here pertinent [Tex. Family

Code, § 11.10(a), 15.021]; provides for the inheritance rights of

children, including those (posthumous children) who were

unborn at the time of the death of the person through whom

the inherited property passes [Tex. Probate Code, § 41(a)]; and

authorizes an unborn child to take an award under the Texas

Wrongful Death Act [Art. 4675 et seq., V.T.C.S.; Brantley v.

Boone, supra, 34 S.W. 2d at 411; see Nelson v. Galveston, Houston

& S.A. Ry. Co., 14 S.W. 1021, 1023 (Tex. Com. App., 1890),

opinion adopted, 14 S.W. 1024 (S.C. Tex.)]. The Respondents

may not destroy these rights by abortion.

15

5. Rights Under Texas Law Which Derives from the Law of the

Republic of Texas. The complained of conduct violates certain

existing Texas law which is of U.S. Constitutional status be-

cause it derives from law of the Republic of Texas which was

brought forward into Texas State law by the 1845 Annexation

Accord between the Republic of Texas and the United States.

See 5 U.S. Stats. at Large 597, 598 (1845), 9 U.S. Stats. at Large

108 (1845) and Tex. Const. of 1845, Art. 7, § 20, and Art. 13, §§3

and 13 in Appendix “E,”’ infra. For example, the right of a

posthumous child to inherit real or personal property under

Section 41(a) of the Texas Probate Code derives from Section 9 of

the Act to Regulate the Descent and Distribution of Intestates’

Estates, approved January 28, 1840, 2 Gam., The Laws of Texas

at 308; and the right of a pretermitted or unprovided for

posthumous child to take an intestate share of his or her

father’s estate per Section 67(a) of the Texas Probate Code de-

rives from Section 3 of said Act.

6. Rights Under Revived Texas Anti-abortion Law of U.S. Consti-

tutional Status. The legal effect of Roe v. Wade, which held

unconstitutional certain Texas anti-abortion statutory law first

enacted in 1854 (410 U.S. at 119, 164), operated to revive,

under the doctrine of revival,"* the prior Texas anti-abortion

law. This prior law—consisting either of an 1828 English anti-

abortion statutory provision which made it a felony to procure

an abortion of a woman whether she was quick with child or

not, but with more severe penalties where she was quick with

child [9 Geo. IV, c. 31, § XIII (1828)] or the common law

proscriptions against abortion, above—is of Article VI status

under the U.S. Constitution because it was carried forward

into Texas law by the 1845 Annexation Accord between the

Republic of Texas and the United States. See Section II of

Appendix “E,”, infra.

This Court never had a chance to consider this subject

because, during the second oral argument in the case, Coun-

* E.g., People ex rel Farrington v. Mensching, 79 N.E. 884, 889-890 (Ct. App.

N.Y., 1907); Harrison v. State, 527 S.W. 2d 745, 748 (Crim. App. Tenn., 1975),

cert. denied, see 527 S.W. 2d 745; Goines v. Rockefeller, 338 F. Supp. 1189, 1195

(S.D. W. Va., 1972); 16C.J.S., “Constitutional Law,” § 101, pp. 469, 473.

16

sel for Henry Wade advised erroneously that Texas had not

legislated on the subject of abortion before 1854 and indicated

erroneously that, prior to 1854, it was legal to abort in the State

(Tr. Oral Arg., Roev. Wade, Oct. 11, 1972, pp. 67-68). However,

the Republic of Texas adopted the English Common Law as

the “rule of decision” for application “in all criminal cases’”’

(Const. Rep. of Tex., 1836, Art. IV, § 13) and, by statute in

1836, provided that “all offenses known to the common law of

England,” as then understood and practiced, which were not

provided for in that statute (and abortion was not provided for

therein), were to be ‘punished in the same manner as known

to the said common law” (Act Punishing Crimes and Misde-

meanors, Sec. 54, approved December 21, 1836, 1 Gam., The

Laws of Texas 1247, 1255). Thus, the English criminal law of

abortion was adopted as | w in the Republic in 1836.

These criminal law provisions formed part of the laws of the

Republic which were carried forward into the laws of the State

of Texas by the 1845 Accord. After Statehood, the Supreme

Court of Texas declared that ‘’[t/he common law in criminal

cases, not provided for by legislative enactment, was intro-

duced by the constitution of the republic, and is still the law.”

Grinder v. The State, 2 Tex. 339, 340 (S.C. Tex., Dec. Term,

1847). (Emphasis added.)

This law, which existed in Texas immediately prior to the

1854 statutory provisions (contained in the Act supplemental

to ‘An Act concerning Crimes and Punishments,” etc., ap-

proved on February 9, 1854, 3 Gam., The Laws of Texas 1502),

did not contravene the U.S. Constitution, the Joint Resolu-

tions of the U.S. Congress concerning the annexation of Texas

or the Texas Constitution of 1845. See Dixon v. State, 2 Tex. 482

(Dec. Term, 1847), where the constitutionality of a different

section of said 1836 Act (§ 47) was upheld by the Supreme

Court of Texas. The Annexation Accord is fully executed by

the parties and cannot be changed. Only the Texas Legislature

has the authority to change the laws of the Republic which

were carried forward into the laws of the State of Texas. Tex.

Const. of 1845, Art. 13, § 3. This revived Texas anti-abortion

law operates to protect the Children Petitioners from abortion,

17

and the complained of conduct is in direct violation of such

law and the rights of the Children thereunder."

Il

This Court Should Reconsider and Overrule Roe v. Wade

and Doe v. Bolton

For the reasons and authorities set forth below, this Court

should reconsider and overrule Roe v. Wade, 410 U.S. 113, and

Doe v. Bolton, 410 U.S. 179. See Erie R. Co. v. Tompkins, 304 U.S.

64 (1938), overruling Swift v. Tyson, 16 Pet. 1 (1842); Burnet v.

Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Dissent-

ing Opinion of Justice Brandeis).

A. Important Factual Matters Were Not Before the Court in Roe

and Doe. This Case presents important factual matters which

were not before the Court in Roe and Doe:

1. Commencement of Human Life. In Roe, this Court said that it

“need not resolve the difficult question of when life begins’

(410 U.S, at 159). Small wonder, since the record before the

Court was silent on this subject.

In the instant case, however, there is uncontradicted scien-

tific evidence that human life begins at conception (Tr. 82).

Had this type of evidence been before the Roe Court, an

altogether different question would have been presented, name-

ly, whether the State of Texas was invested with sufficient

constitutional authority to protect the actual human lives of

Unborn Children in the State from death by abortion."*

'’ By separate application for a TRO, etc., as amended, a cause of action

was alleged for destroying Members of the Children Class by abortion

after the Commissioners Court had disapproved the District's proposed

1981-1982 Operating Budget because it included funds for abortions. In

Counts VI-IX of the Petition, Petitioners pleaded that Roe and Doe were void

as violative of the U.S. Constitution and Fundamental Principles of Personal

Jurisdiction. These latter areas are discussed in the constitutional errors

portion of the Argument, below,

* The U.S. Declaration of Independence, July 4, 1776, makes it clear that

the unalienable right to life begins at creation, not birth. “It is always safe to

read the letter of the Constitution in the spirit of the Declaration of Inde-

pendence.” Gulf, Colo, and Santa Fe R. Co, v. Ellis, 165 U.S. 150, 160 (1887).

(Emphasis added. )

18

2. Essential Characteristics of Unborn Human Life. The record in

Roe was devoid of essential scientific evidence on the character-

istics of unborn human life. Hence, there was no evidentiary

base for application of this Court’s 14th Amendment “per-

sonhood” standards of Levy v. Louisiana, supra, 391 U.S. 68

(1968), and Glona v. Am. Guarantee & Liab. Ins. Co., supra, 391

U.S. 73.

Such data are supplied by the instant case. The record herein

is uncontradicted that the Unborn Child is human, is alive and

has a distinct biologic being or entityship (Tr. 83, 86). As such,

the Unborn Child meets squarely both the live, human being

test of 14th Amendment personhood formulated in Levy and

the biological basis of such personhood expressed in Glona.

See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972).

This undercuts completely the Court’s 14th Amendment “non-

personhood” holding for the Unborn in Roe. While that

Amendment requires birth for citizenship status, no such re-

quirement is present for personhood status. Personhood there-

under is a much broader concept and, as applied to natural

persons, it means live human individuals, cognizable in law.

The Unborn meet this test because they are living human

beings with well recognized legal statuses under substantial

Anglo-American jurisprudence. For decisions of this Court in

this connection, see Union Pac. Ry. Co. v. Botsford, supra, 114

U.S. at 253 (“life of an unborn child” recognized in relation to

an application of the writ de ventre inispiciendo at common law),

and McArthur v. Scott, 113 U.S. 340, 391-392, 404 (1885) (un-

conceived children entitled to be represented in judicial pro-

ceedings affecting their possible rights). The biologic basis of

such personhood has been furthered by recent scientific

advances in the diagnosis and treatment of medical problems

affecting the Unborn Child—as a patient of the physician.

3. Deleterious Effects of Induced Abortion on Affected Females.

Evidence of deleterious effects of induced abortion on the

females involved was not before the Court in Roe. This

evidence—e.g., of emotional and psychological problems,

higher incidences of sterility, and of spontaneous

19

abortion—is showing up. See Tr. 88-89. In H.L. v. Matheson,

450 U.S. 398 (1981), this Court declared that ‘[t/he medical,

emotional, and psychological consequences of an abortion are

serious and can be lasting***.” 450 U.S. at 411. These data,

examined only from the standpoint of the female, undercut

substantially Roe’s restrictions of state authority in promoting

or preserving maternal health.

B. Roe and Doe Have Produced Various Unintended Conse-

quences. Roe and Doe have produced consequences or results

which this Court did not intend:

1, Abortion on Demand. In Roe, this Court made it clear that a

pregnant woman does not have an absolute right to terminate

her pregnancy ‘at whatever time, in whatever way, and for

whatever reason she alone chooses” (410 U.S. at 153). The

Constitution does not require “abortion on demand” (410

U.S. at 208, Burger, C.J., Concurring Opinion). In Doe, the

Court said that ‘Roe v. Wade, supra, sets forth our conclusion

that a pregnant woman does not have an absolute onstitu-

tional right to an abortion on her demand” (410 U.S. at 189).

The opposite, as the Court may well take note, has occurred

and continues. Well over one million unborn children are

killed by abortion in this Nation each year. Abortion ‘Sur-

vivor’’ Children, who are U.S. Citizens, also die from abortion

or its “ethic.’’ In Texas, killing by abortion is ‘‘wide open” from

conception to the commencement of childbirth. Even where a

state proscribes abortion after viability, with life and health

exceptions per Roe, the ‘“‘health” meaning per Doe is so broad

as to make such proscription more form than substance.

2. Effect of Abortion and the Abortion “‘Ethic’’ on Children Who

“Survive” Abortion. Abortions and applications of the abortion

“ethic” bring about deaths of U.S. Citizen Children who con-

tinue to live after they have been aborted. These Children die

primarily as a result of prematurity, abortional injury or lack of

care. Sometimes they are killed outright. In this connection,

the appellate record shows that an Abortion “Survivor” was

murdered at the District's Jefferson Davis Hospital on July 3,

1981, and another “Survivor” died on September 15, 1981,

eight days after her birth at said Hospital. See the Statement of

20

the Case, supra. An Abortion ‘Survivor’ lived for about 3 days

at a non-District Hospital in Houston after his mother, alleg-

edly during childbirth, was prescribed and took an aborti-

facient drug (Tr. 128-131). Moreover, since ‘‘unsuccessful’’

abortions (i.e., those resulting in live births) could translate

into legal claims against the abortionists, etc., “success” is

encouraged legally—to the naked detriment of Infant U.S.

Citizens. Stills v. Gratton, 127 Cal. Reptr. 652, 657, 658-659

(Cal. App., Ist, 1976); see The Ladies Center of Clearwater Inc. v.

Reno, 341 So, 2d 543 (Fla. App. 2d, 1977).

3. Internal Legal Chaos. Roe and Doe have introduced legal

chaos in Texas and other domestic U.S. Jurisdictions relative

to Unborn Children. They have legal recognitions and rights,

yet they may be killed by abortion. Under Texas law, for

example, an unborn child has legal rights of representation,

protection against prenatal torts, and rights under property

law. In a majority of U.S. Jurisdictions, a stillborn child who

had reached the viability stage (or earlier, as in Georgia and

Rhode Island) is a “person,” etc. under their respective

wrongful death or kindred statutes. Since Roe was decided,

thirteen States have ruled or re-ruled to like effect.'* Certain

property interests may vest in an Unborn Child [Gay v. Baker,

58 N.C. 344, 345, 346 (S.C.N.C., 1860) (trust); Crisfield v. Storr,

supra, 36 Md. at 145-146 (remainder in real property)]. A “duty

of care’’ is owed to the unborn child under the prenatal tort

injury doctrine, as recognized in all 51 domestic U.S. Jurisdic-

tions. How can the “law” recognize a legal status and provide

for or recognize legal rights in an Unborn Child when Roe and

Doe authorize the child to be destroyed by abortion on de-

mand? Should the existence and protectability of legally cog-

nizable rights be made to depend upon the character of the one

who seeks to destroy the same?

C. Important Factual Errors, Etc. Were Made by the Court. The

Court made a number of factual errors in Roe, most of which

influenced improperly the Court’s main holdings:

1. Erroneous Consideration of Texas as a Party. In several

places, the Court indicated that Texas was before the Court or

Eich v. Town of Gulf Shores, 300 So. 2d 354, 358 (S.C. Ala., 1974)

21

was a party to the proceedings (410 U.S. at 116, n. 54 at 157,

159 and 162). This made it appear that a more comprehensive

proceeding was conducted.

Not only was Texas not a party (e.g., Record, Roe v. Wade, p.

109) but it could not have been a party because there would have

been no constitutional jurisdiction in the U.S. District Court to

entertain such a case. It is well established that federal judicial

authority, as circumscribed by the 11th Amendment to the

U.S. Constitution, does not extend to a suit brought against a

state ina U.S. District Court by a Citizen(s) of that state unless,

of course, the state consents to such a suit. Hans v. Louisiana,

134 U.S. 1, 9, 10-15 (1889) (leading case). The Plaintiffs in Roe

were Citizens of Texas; they sued Henry Wade, District At-

torney for Dallas County, Texas, in a U.S. District Court; and

the State of Texas had not consented to such a suit.

On the other hand, it is settled that an action brought in a

U.S. District Court against a State Officer, challenging the

constitutionality of a State statute or seeking to enjoin its

enforcement on constitutional grounds, as in Roe, is not a suit

against the State, and is not prohibited under the doctrine of

sovereign immunity. Ex parte Young, 209 U.S. 123, 159-160

(1908); Sterling v. Constantin, 287 U.S. 378, 393 (1932). It is

treated as against the Officer alone, and Roe was such a case.

2. Erroneous Purpose Ascribed To State Anti-abortion Statutes in

Late 19th and Early 20th Centuries. As for the ‘original purpose”’

of State anti-abortion statutes, the Court said that “The few

state courts called upon to interpret their laws in the late 19th

(“person” or ‘“‘minor child’’); Chrisafogeorgis v. Brandenburg, 304 N.E. 2d 88,

92 (S.C. Ill., 1973) (“‘person’’); Cox v. Cooper, 510 S.W. 2d 530 (Ct. App. Ky.,

1974) (“‘person’’); Danos v. St. Pierre, 402 So. 2d 633, 637-639 (on rehearing)

(S.C. La., 1981) (““person’’); Mone v. Greyhound Lines, Inc., 331 N.E. 2d 916,

920 (S.J. Ct. Mass., 1975) (“person’’) (overruling prior decision); Pherson v.

Kistner, 222 N.W. 2d 334, 336 (S.C. Minn., 1974) (“decedent’’); Rainey v.

Horn, 72 So. 2d 434, 439-440 (S.C. Miss., 1974) (‘‘person’’); Evans v. Olson,

550 P. 2d 924, 928 (S.C. Ok., 1976) (“‘person’’) (overruling prior decision);

Libbee v. Permanente Clinic, 518 P. 2d 636, 639 (S.C. Ore., 1974) (“‘person”’);

Presley v. Newport Hospital, 365 A. 2d 748, 754 (S.C.R.I., 1976) (‘person’);

Vaillancourt v. Med. Center Hosp. of Vt., 425 A. 2d 92, 94 (S.C. Vt., 1980)

(‘person’); and Moen v. Hanson, 537 P. 2d 266, 267 (S.C. Wash., en banc,

1975) (“minor child’). In 1982, Idaho joined these States as well.

22

and early 20th centuries did focus on the State’s interest in

protecting the woman’s health rather than in preserving the

embryo and fetus” (410 U.S. at 151). It cited Statev. Murphy, 27

N.J.L. 112, 114 (S.C.N.J., 1858), as an example authority for

such statement. This statement and its context made it appear

that the statutes were outdated purpose-wise, maternal health

being protected by medical advances in the interim, and en-

hanced unfairly the Court's liberty to abort holding.

The fact of the matter is that, in the late 19th and early 20th

centuries, the Courts made it quite clear that the purposes or

objects of their anti-abortion statutes were to protect or safe-

guard either the Unborn Child or the Mother and the Unborn

Child.”° The Court’s reliance on Murphy is poor because the

Supreme Court of New Jersey pointed out subsequently that

the statute which the Murphy Court construed “was further

extended March 26th, 1872***to protect the life of the child***.”

State v. Gedicke, 43 N.J.L. 86, 90 (S.C.N.J., Feb. Term, 1881).

(Emphasis added.) Moreover, Murphy appears to stand alone,

not as an example of authority for the Court’s statement.

3. Unfair Portrayal of the Common Law, As Expounded by Coke,

Concerning Abortion. The Court provided an unfair picture of the

Common Law as to abortion by referencing Cyril Means, Jr.

[The Phoenix of Abortional Freedom,” etc., 17 N.Y.L.F. 335

(1971)] and Lawrence Lader [Abortion (1966), pp. 78-79], each

of whom was active in the movement for the repeal of the

7° State v. Howard, 32 Vt. 380, 399 (S.C. Vt., 1859) (Mother and Child);

Dougherty v. People, 1 Colo. 514, 523 (S.C. Colo., 1872) (Mother and Child);

State v. Gedicke, 43 N.J.L. 86, 89-90 (S.C.N.]., Feb. Term, 1881) (Mother and

Child); State v. Watson, 1 P. 770, 771, 772 (S.C. Kan., 1883) (Child); Dietrich v.

Inhabitants of Northampton, 138 Mass. 14, 17 (S.J. Ct. Mass., 1884) (Child)

(dictum in tort case); Edwards v. State, 112 N.W. 611, 613 (S.C. Neb., 1907)

(Mother and Child); State v. Miller, 133 P. 878, 879 (S.C. Kan., 1913) (Mother

and Child); State v. Tippie, 105 N.E. 75, 77 (S.C. Ohio, 1913) (Mother and

Child); State v. Ausplund, 167 P. 1019, 1022-1023 (S.C. Ore., 1917) (Mother

and Child); Nash v. Meyer, 31 P. 2d 273, 276(S.C. Idaho, 1934) (Child); Bowlan

v. Lunsford, 54 P. 2d 666, 668 (S.C. Okla., 1936) (Child); and State v. Cox, 84 P.

2d 357, 361 (S.C. Wash., 1938) (Mother and Child).

23

abortion laws.’ Means was especially critical of Coke’s state-

ments concerning abortion.”

The Court should have examined Coke’s abortion state-

ments (3 Inst. 50-51) in light of (1) the common law precedents,

beginning with the abortion cases during the reign of King

John, (2) the nature of a common law crime, i.e., “acts injuri-

ous to the public morals” or “acts which are mala in se” [Clark,

Handbook of Criminal Law (3rd ed.) (1915), pp. 24, 25], and (3)

how Coke was treated in this regard by English Courts and

Legal Scholars. See supra, pp. 11-12 and footnote 13.

In this latter regard, the Court of Chancery, in describing

the rights of Unborn Children, said that the destruction of an

Unborn Child was “murder” [Millar v. Turner, 27 E. Repts.

907, 908 (Ch., 1747-1748) (preceded by a reference to 3 Coke,

Inst. 50)], and referred to the live birth murder rule described

by Coke [Beale v. Beale, supra, 24 E. Repts. 373 and Burdet v.

Hopegood, supra, 24 E. Repts. 484, citing the Beale case]. While

Sir Matthew Hale, who was Chief Justice of the King’s Bench

from 1671-1676, disagreed with the live birth murder rule, he

agreed that it was a “great misprison” if a woman quick with

child took or another gave her “a potion to cause abortion,” or

if one struck her “whereby child within her is killed***.”’ II

Hale, The History of the Pleas of the Crown (1st Am. ed., with

notes, etc. by Stokes and Ingersoll) (Phil., 1847), p. 563. The

writings of William Hawkins, Thomas Wood, William Black-

stone and Edward East were consistent with Coke’s live birth

murder and abortion statements.** Even the Preamble to Lord

Ellenborough’s Act referred to abortion and other acts as

“heinous Offences,” and an indictment was returned for the

offense of abortion shortly before enactment in 1803 of that

Act. III Chitty, op. cit., pp. 798-801.

7" See Nathanson, Aborting America (N.Y., 1979), pp. 55, 154 and 174

(Means), and pp. 29-36, 47-71, 82, 85, 116, 148-157, 163, 168, 172 and 307

(Lader).

# The chief problem with the Means article is lack of depth. He apparently

was unaware of substantial English authorities on the subject of abortion.

See, e.g., footnote 13, supra.

22 | Hawkins, A Treatise of the Pleas of the Crown (c. 1716) (Curwood,

24

4. The Erroneous Implication that Only a Minority of U.S. Juris-

dictions Treated the Abortion of a “Quick’’ Unborn Child as a Crime.

The Court said that “/t/his is of some importance [the alleged

contradiction of Coke and the claim that abortion after quick-

ening was never established as a common law crime] because

while most American courts ruled, in holding or dictum, that

abortion of an unquickened fetus was not criminal under their

received common law, others followed Coke in stating that

abortion of a quick fetus was a ‘misprison,’ a term they trans-

lated to mean ‘misdemeanor’” (410 U.S. at 135). This made it

appear that only a minority of U.S. Jurisdictions treated the

abortion of a “‘quick’’ Unborn Child as a crime, and buttressed

unfairly the Court’s conclusion as to the ‘far freer’ prevailing

abortion practices in the major part of the 19th century (410

11S. at 158). .

The fact of the matter is that where the woman was “quick

with child,” all courts which considered the question (to Peti-

tioners’ knowledge) said that abortion was a crime, etc. at

common law.** Where the woman was not ‘quick with child,”’

most courts which considered the question said that abortion

was not an offense at that stage of pregnancy. However, a

respectable minority of U.S. courts concluded that it was an

offense to abort at any stage of pregnancy.”*

5. Erroneous Claim as to When the States Generally Began To

Replace the Common Law with Legislation. The Court said that “It

was not until after the war between the States that legislation

London, 1824), ch. 13, pp. 94-95; | Wood, An Institute of the Laws of England

(3rd ed., Holborn, Eng.) (1724), ch. 1, p. 11; 1 Blackstone, Commentaries on the

Laws of England (1765), pp. 129-130; IV Blackstone, Commentaries on the Laws

of England (c. 1769), p. 198; | East, A Treatise of the Pleas of the Crown (Phil.,

1806), ch. V, p. 227.

** E.g., State v. Steadman, 51S.E. 2d 91, 93 (S.C.S.C., 1948); Commonwealth

v. Parker, supra, 50 Mass. at 266; Smith v. State, 33 Me. 48, 55, 57 (S.C. Me.,

1851); State v. Alcorn, 64 P. 1014, 1016 (S.C. Idaho, 1901); State v. Cooper, 22

N.J.L. 52, 58 (S.C.N.J., 1849); Mitchell v. Commonwealth, 78 Ky. 204, 210 (Ct.

App. Ky., Sept. Term, 1879); State v. Stafford, 123 N.W. 167, 168 (S.C. lowa,

1909); see Gray v. State, 178 S.W. 337, 338 (Tex. Crim. App., 1915).

*® Mills v. The Commonwealth, supra, 13 Pa. St. at 632-633; State v. Slagle,

supra, 82 N.C. at 567-568, 83 N.C. at 545; State v. Reed, supra, 45 Ark. at

334-336; Munk v. Frink, 116 N.W. 525, 527 (S.C. Neb., 1908).

25

began generally to replace the common law” (410 U.S. at 139).

This made it appear that State anti-abortion legislation was a

latter-19th century development, and it enhanced unfairly the

Court’s “far freer” abortion practice view, above.

The fact of the matter is that, when the war between the

State ended (April-May, 1865), there were only 36 States of the

United States and, of that number, 27 States had anti-abortion

statutes then in effect. See Dissenting Opinion of Justice

Rehnquist in Roe v. Wade, 410 U.S. at fn. 1, pp. 175-176.

6. Erroneous Use of Maternal Mortality Rates. The Court said,

“Mortality rates for women undergoing early abortion, when

the procedure is legal, appears to be as low or lower than the

rates for normal childbirth’’ (410 U.S. at 149; see p. 163). (Em-

phasis added.) The Court used this (1) to show that the con-

cerns of the States in enacting their anti-abortion statutes of

protecting women from a hazardous procedure were no

longer valid, and (2) to support the Court’s conclusion as to

when the State’s interest in protecting maternal health be-

comes “compelling.”

The most significant—and apparent—problem is that the

Court misused what it had noticed: The proper mortality com-

parison was not female deaths from “early abortions’ versus

female deaths from childbirth because the subjects of com-

parison are markedly different. Childbirth lasts 3 trimesters;

“early abortions” occur in or around the first trimester. The

proper procedure would be to compare the number of mat-

ernal deaths from abortion resulting from a specified number of

early abortions with the number of maternal deaths from early

pregnancy resulting from the same number of pregnancies. The

Court’s use of the mortality rates, in short, was palpably

erroneous and unfair.**

** The Court apparently was unaware of the facts (1) that the concept of

human fertilization was not understood until after the discovery of the

mammalian ovum (of a dog) in 1827 [Flanagan, The First Nine Months of Lif

(N.Y., 1962), Preface, p. 9], thereby making substantially less significant the

failure of the later Common Law to cover abortions before the woman was

“quick with child”; and (2) that the first anti-abortion enactment in this

country was that of the New York City Common Council of July 27, 1716,

which, inter-alia, prohibited midwives, under penalty of fines or jail terms in

26

D. Important Constitutional Errors Were Made Procedurally and

Substantively. The Court made a number of constitutional er-

rors in Roe and Doe.:?’

1. No Representation. Neither Abortion “Survivor” Children

nor Unborn Children threatened and endangered by abortion

were represented before the U.S. District Courts or this Court

in Roe and Doe (except that Unborn Children were represented

for a 10-day period before the District Court in Doe), as they

were entitled. The Judgments of all such Courts, therefore,

were unconstitutional and void as to them. See U.S. Const.,

5th Amendment (due process); McArthur v. Scott, supra, 113

U.S. at 391-392, 404 (Unborn Children); Pennoyer v. Neff, 95

U.S. 714, 733-734 (1878) (Citizens); Rule 19, F.R. Civ. Proc.

2. No Personal Jurisdiction. Neither the U.S. District Courts

nor this Court had personal jurisdiction over such Unborn or

Abortion “Survivor” Children (except for said 10-day period

for the Unborn in the District Court in Doe). Yet each such

category of Children was affected vitally by those proceed-

ings, and had a right to be before the Courts through next

friends or guardians. The Judgments of all such Courts,

therefore, were unconstitutional and void as to them. Ibid.

3. Invidious Discriminations. The discriminations against

Abortion Survivors and Unborn Children as compared to the

non-aborted born and corporations are invidious. For exam-

ple, corporations, which are artificial beings and not men-

tioned in the U.S. Constitution, are “persons” under the due

process and equal protection clauses of the 14th Amendment

thereof, while actual unborn human beings, recognized in law

default of payment, from giving counsel or administering any ‘Herb Medi-

cine or Potion, or any other thing to any Woman being with Child whereby

She Should Destroy or Miscarry of that she goeth withall before her time”’

[New Perspectives on Human Abortion (ed. by Hilgers, Horan and Mall) (Fred-

erick, Md., 1981), ch. 15, p. 199, citing “Minutes of the Common Council of

New York” 3 (1712-1729): 121, at fn. 2, p. 203 (Emphasis added.)), thereby

showing a serious early concern for the problem of abortion and without

reference to any “quick with child” distinction.

7 Accordingly, the Judgments and Decisions in these cases are void. See,

e.g., Windsor v. McVeigh, 93 U.S. 274, 277-284 (1876); Johnson v. Zerbst, 304

U.S. 458, 467-468 (1938).

27

and possessive of substantial legally cognizable rights, are

denied personhood. A prematurely born child of 7-month

gestational age has 14th Amendment personhood while an

older and more developed Unborn Child of 8-months gesta-

tional age does not. Neither the 5th nor the 14th Amendments

to the U.S. Constitution can justify such crazy-quilt

discriminations.

4. Failure To Apply Pre-existing Supreme Court Decisions Con-

cerning Human Personhood Under the 14th Amendment. The

Court failed to apply the “live,” “human” and “having a

being”’ test of 14th Amendment personhood (Levy v. Louisiana,

supra, 391 U.S. 68) and the “biological” test of such person-

hood (Glona v. American Guarantee & Liab. Ins. Co., supra, 391

U.S. 73) to the affected Unborn Children. If such constitu-

tional interpretive decisions can be overlooked or disre-

garded, how can it be maintained that a constitutional inter-

pretive decision has “law of the land” ranking? Why were

these decisions not applied in Roe?

5. Failure To Apply the Constitutional Implied Rights Concept to

14th Amendment Personhood for the Unborn. Since a born person

has 14th Amendment recognition, and since such a person

does not originate a birth, it follows that 14th Amendment

recognition extends to such person prenatally. The person

after birth is the self-same person before birth, only at a

different developmental stage. The human genetic code is

present at conception (Tr. 82). The implied rights cases of

constitutional stature [e.g., Griswold v. Connecticut, 381 U.S.

479 (1965)] were misapplied on the issue of personhood.

6. Failure To Apply Properly the Constitutional Implied Rights

Concept to “Liberty” Under the 14th Amendment. While “‘liberty”’

is a broad concept, “life” is the most basic of rights for, with-

out it, all other rights and interests are meaningless. Where was

the correlation between “liberty” and the right to destroy

unborn life? Or the basis for the “fundamental” ranking of

such right? Not only was abortion a crime at common law and

in Texas and Georgia, but the legal and social heritage of this

Nation viewed abortion not as a right but as a naked wrong.

Moreover, the Constitution protects the life rights of persons

28

against certain governmental deprivations, and nowhere does

it give any human being the right to destroy the life of another.

If the implied rights decisions of this Court were applied

properly, the life right of the Unborn would have prevailed

clearly over any liberty to destroy the same.

7. Naked Deprivation of Rights. The due process clause of the

5th Amendment stood as a bar to this Court’s holdings in Roe

and Doe which endangered the rights of Abortion “Survivors”

and authorized the destruction of a large body of legally cog-

nizable rights of the Unborn. See Marbury v. Madison, 5 U.S.

137, 163 (1803); Munn v. Illinois, 94 U.S. 113, 130 (O.T., 1886).

8. Manufacture of the Right of Abortion, Etc. In Roe and Doe, the

Court violated Article III of the U.S. Constitution by creating a

constitutional liberty and by restricting the states of their re-

served constitutional authorities to legislate in this area. This

also violated the unenumerated rights of the people, as guar-

anteed by the 9th Amendment, and the Division of Powers

Concept, as guaranteed by the 10th Amendment. See supra,

pp. 11-13, 14; see also, e.g., Labine v. Vincent, 401 U.S. 532, 538-

539 (1971). Procedural “due process,” as applied to the Infant

Victims of Abortion, was also denied, in violation of the 5th

Amendment. The Abortion “Survivors,” for example, were

not even considered by the Court. Finally, the Court violated

the supremacy clause of Article VI by authorizing the destruc-

tion of rights cognizable under federal statutory law and, in

the case of Infant Texas Victims, by authorizing the destruc-

tion of constitutional status rights derived from the law of the

Republic of Texas, and by permitting Rule 19, Fed. R. Civ.

Proc., to be violated as to such Victims.

E. The Court Lacked Personal Jurisdiction Over the Infant Victims

of Abortion. As shown above, the District Courts in Roe and Doe

lacked personal jurisdiction over the Infant Victims of abortion

(except fora 10-day period in Doe). This deficiency infected the

review proceedings in this Court. Accordingly, all such Judg-

ments are void. They cannot operate to deprive the Infant

Petitioners—who were not even in gestation when those

“Judgments” were rendered—of their rights under United

States and Texas law. See McArthur v. Scott, supra, 113 U.S. at

391-392, 404; and Pennoyer v. Neff, supra, 95 U.S. at 733-734.

App. 1

Appendix “A”

OPINION OF THE COURT OF APPEALS

(September 9, 1982)

REVERSED AND REMANDED IN PART;

DISMISSED IN PART

SEPTEMBER 9, 1982

NO. 10-81-072-CV

Trial Court

# 79-44733

IN THE

COURT OF APPEALS

FOR THE

TENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT WACO

i ee

REBECCA P. SCHWANECKE, M.D., F.A.A.P., ET AL,

Appellants

v.

HARRIS COUNTY HOSPITAL DISTRICT, ET AL,

Appellees

OSES E EEE

From 234th Judicial District Court

Harris County, Texas

SPSS ESE EE EEE

App. 2

In the case of Roe v. Wade, 410 U.S. 113, 93S. Ct. 705, 35 L.

Ed 2d 147 (1973), the United States Supreme Court struck

down as being unconstitutional the Texas criminal abortion

statutes which were articles 1191-1194 and 1196 of the then

existing Penal Code of our State. Those statutes made it a

crime to “procure an abortion,” as therein defined, or to

attempt one, except with respect to ‘an abortion procured or

attempted by medical advice for the purpose of saving the life

of the mother.” The Court held that the Texas statutes as they

existed violated the right of privacy of the mother founded in

the Fourteenth Amendment's concept of personal liberty and

restrictions upon state action. In a companion case decided

the same day, Doe v. Bolton, 410 U.S. 179, 93S. Ct. 739, 35 L.

Ed 2d 201 (1973) the Supreme Court also struck down abortion

statutes of the State of Georgia. These decisions were far

reaching and profoundly affected our society in the area of

abortions by creating rights where none had previously been

recognized. They also provided for but placed limits on State

action in this area and stirred a long-existing controversy

which still rages today. The Supreme Court recognized the

extent of this controversy in this prefatory statement in Roe:

“We forthwith acknowledge our awareness of the

sensitive and emotional nature of the abortion contro-

versy, of the vigorous opposing views, even among

physicians, and of the deep and seemingly absolute con-

victions that the subject inspires. One’s philosophy,

one’s experiences, one’s exposure to the raw edges of

human existence, one’s religious training, one’s attitudes

towards life and family and their values, and the moral

standards one establishes and seeks to observe, are ail

likely to influence and color one’s thinking and conclu-

sions about abortions.”

App. 3

Although concluding in Roe that the right of personal priv-

acy includes the abortion decision, the Supreme Court also

concluded ‘that this right is not unqualified and must be

considered against important state interest in regulation.” 93

S. Ct. 727. The Court then laid down these rules and restric-

tions upon state action in the area of abortion:

(a) For the stage prior to approximately the end of the

first trimester, the abortion decision and its effectuation

must be left to the medical judgment of the pregnant

woman’s attending physician.

(b) For the stage subsequent to approximately the end

of the first trimester, the State, in promoting its interest in

the health of the mother, may, if it chooses, regulate the

abortion procedure in ways that are reasonably related to

maternal health.

(c) For the stage subsequent to viability, the State in

promoting its interest in the potentiality of human life

may, if it chooses, regulate, and even proscribe, abortion

except where it is necessary, in appropriate medical

judgment, for the preservation for the life or health of the

mother. 93 S. Ct. 732.

Since the decisions in Roe v. Wade and Doe v. Bolton, the

Texas Legislature has not seen fit to enact further statutes

regulating abortion; and, thus, we do not have any state-wide

regulatory laws on this subject.

Appellee Harris County Hospital District is a public hospital

created under and existing under the provisions of article

4494n, Vernon’s Tex. Civ. St. In accordance with Sec. two of

the statute, the operations of appellee Hospital District are

funded by taxes levied and collected by the Commissioner's

Court of Harris County for that purpose. The Hospital District

has a Board of Managers provided for under Sec. five of the

App. 4

statute, possessing the power and authority to ‘‘promulgate

rules and regulations for the operation of the hospital or

hospital system.”

Soon after the 1973 United States Supreme Court decisions

in Roe and Doe, the Board of Mangers of Hospital District

authorized the performance of abortions within the District.

On March 29, 1973, the Board of Managers adopted the fol-

lowing policy for abortions:

‘Abortion prior to the twelfth week of pregnancy may

be handled as any other medical problem. The decision to

perform abortion will be left to the judgment of the

physician and patient up to the twelfth week of

pregnancy.

“Following the twelfth week of pregnancy, consulta-

tion for abortion will be required by a member of the

attending staff of the service related to the indication for

abortion. Abortion after the twelfth week of pregnancy

will be performed solely for medical, surgical or psychi-

atric indications.

“No physician will be required to perform abortions if

it is contrary to his own moral standards.

“Further, abortions will be performed on District eligi-

ble patients only.”

On June 24, 1976, the Board of Managers adopted the fol-

lowing change in its abortion policy:

‘The number of weeks permissible to do an abortion in

the voluntary termination of pregnancy clinic [will] be

twenty (20) weeks instead of the present twelve (12)

weeks, and the decision to perform the abortion will be

made between the physician and the patient.”

On September 29, 1977, the Board of Managers expanded its

abortion policy by adopting the following proposal:

App. 5

“As the District’s only interest is medical and health

care, the matter of abortion and the right to die is a matter

strictly between the doctor and his patient and should be

treated as any other medical procedure the District

performs.”

All of the parties in this case entered into the following

stipulation concerning the District’s abortion policies: “Said

policies were and continued to be directed to permitting the

performance of abortions and abortion procedures within the

facilities owned and operated by the District within the guide

lines established by the above Court decisions [Roe v. Wade

and Doe v. Bolton]. Pursuant to said policies, abortions and/or

abortions procedures have been, are being and may be per-

formed presently at facilities owned and operated by the Dis-

trict. The great majority of these abortions and abortion pro-

cedures have been and are performed usually at Jefferson

Davis Hospital ina small area known as the Voluntary Termin-

ation of Pregnancy Clinic.”

Harris County has not enacted any rules or regulations

concerning abortions.

Appellants filed this suit by their original petition on Octo-

ber 11, 1979. Amendments to appellants’ petition included

their third amended original petition filed in April 1981, which

was their trial pleading at the time of final judgment. The

ultimate purpose of this suit was the issuance of a permanent

injunction prohibiting the Hospital District from performing

or assisting directly in the performance of any and all abor-

tions. The defendants were Harris County, the Harris County

Commissioner’s Court, the individual Commissioners, the

Harris County Judge, the Harris County Treasurer, and the

Hospital District. The plaintiffs were Rebecca P. Schwanecke,

Nancy Brecheisen, Bonnie B. Duesing, and Margit M. Win-

App. 6

strom. Schwanecke sued “as Next Friend of Certain Minor

Unborn Children and Certain Minor Recently Born Children,

for and in behalf of such Minor Children, as a class.” She

sought certification of the children as a class for class suit

purposes, and, upon such certification, her appointment as

guardian ad litem to represent the class in this suit. Bre-

cheisen, Duesing, and Winstrom each sued as “a Resident and

Taxpayer of Harris County, Texas, as to themselves and all

other Residents and Taxpayers of Harris County, Texas, simi-

larly situated as a class.’ They sought to prevent the use of tax

money for the performance of abortions in the Hospital Dis-

trict, and they pleaded for class suit certification of similarly

situated taxpayers. In their individual capacities where ap-

plicable, and for their classes if certified, all appellants sought

a declaration of their rights and eventually the permanent

injunction previously mentioned.

Upon motion and after hearing, on June 6, 1980, the trial

court dismissed defendants Harris County, Texas, and the

Harris County Treasurer, from the law suit.

On August 8, 1980, appellants’ motions for class action

certification and appellant Schwanecke’s motion for appoint-

ment as guardian ad litem for the children’s class, were denied

by the trial court by signed order.

In June 1981, after several hearings by the Commissioners’

Court concerning the Hospital District’s 1981-82 budget, the

Board of Managers removed from its proposed budget fund-

ing for the VTP Clinic in Jefferson Davis Hospital, and it closed

this Clinic.

On June 23, 1981, appellees filed a motion to dismiss this

law suit on the ground that the closure of the VTP Clinic

rendered appellants’ cause of action moot. The motion was

granted and on July 7, 1981, judgment was rendered “‘that this

App. 7

cause be in all things dismissed as moot.” Appellants filed

their appeal bond on July 10, 1981, and this appeal resulted.

We agree with appellants that the closing of the VTP Clinic

did not meet and defeat their allegations that tax-funded abor-

tion procedures were being performed in the Hospital District.

As we noticed above, appellees admitted by written stipula-

tion that abortion procedures are being performed presently at

facilities owned and operated by the District, and that the

great majority of these abortion procedures were usually per-

formed at the VTP Clinic. We therefore also agree with appel-

lants that the closing of the Clinic did not support the judg-

ment of dismissal of their suit as moot.

It is the duty of an appellate court to sustain the judgment of

a trial court if it is correct on any theory of law applicable to the

case, and this is true whether the trial court gives the correct

legal reason for the judgment, or any reason at all. Gulf Land

Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W. 2d 73, 84

(1939). The failure of a plaintiff's petition to state a cause of

action will support a judgment of dismissal. “But only after a

party has been given an opportunity to amend after special

exceptions have been sustained may the case be dismissed for

failure to state a cause of action.’’ Texas Department of Correc-

tions v. Herring, 513 S.W. 2d 6, 10 (Tex. 1974).

It is our view that appellants have not pleaded a cause of

action under existing law. Appellants theorize that they are

asserting a cause of action, on behalf of unborn children and

children born affected by abortion procedures on their moth-

ers, which was not reached by the United States Supreme

Court in the Roe and Doe cases. They also assert that the

decisions in Roe and Doe are void as violative of the United

States Constitution. Then, they contend that if these decisions

are valid, they revive anti-abortion laws of the Republic of

Texas ‘‘which were carried forward into the law of the State of

Texas by the 1845 Annexation Accord.” In Roe, the U.S.

App. 8

Supreme Court notice. that the State of Texas urged, apart

from the Fourteenth Amendment, that life begins at concep-

tion and is present throughout pregnancy, and that, there-

fore, the State has a compelling interest in protecting that life

from and after conception. The court said, ‘We need not

resolve the difficult question of when life begins. When those

trained in the respective disciplines of medicine, philosophy,

and theology are unable to arrive at any consensus, the judi-

ciary, at this point in the development of man’s knowledge, is

not in a position to speculate as to the answer...{[WJe do not

agree that, by adopting one theory of life, Texas may override

the rights of the pregnant woman that are at stake. 93 S. Ct.

730, 731. See also Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52, 96S. Ct. 2831, 49 L. Ed 2d 788 (1976). Of

course, these decisions of the United States Supreme Court

are the law of the land, and appellants and we are bound by

them. Appellants have not alleged that any abortion proce-

dures in the Hospital District are conducted in violation of the

rules of these cases, nor that they violate the abortion policy of

the District. Thus appellants cannot validly argue, as they

attempt to do, that taxes paid by them are being used for an

illegal purpose.

Although appellants have not pleaded a cause of action, we

may not sustain the judgment of dismissal on that ground

because appellants have not been afforded an opportunity to

amend their petition and state a cause of action if they can.

Texas Department of Correcticns v. Herring, supra.

Appellants also attempt on this appeal to attack the trial

court’s order denying their motions for class certifications and

the appointment of appellant Schwanecke as guardian ad

litem for the children’s class, if certified. This interlocutory

order was appealable at the time on August 8, 1980. Vernon's

App. 9

Tex. Civ. St., art. 2250, § 3. Appellants did not perfect their

appeal from this order by timely filing an appeal bond and the

appellate record within the time prescribed in Rule 385(b)

Vernon’s Tex. Rules Civ. Proc.; and we therefore dismiss this

appeal for want of jurisdiction. Buck v. Johnson, 495 S.W. 2d

291, 296 (Tex. Civ. App.—Waco 1973, no writ).

Since we must reverse the judgment of dismissal, ap-

pellants’ complaint about the assessment of costs if the trial

court is immaterial. Appellants’ remaining points of error are

overruled.

The judgment of dismissal is reversed, and this cause is

remanded to the trial court. Appellants’ appeal of the order

denying their motions for class action certifications, and deny-

ing the appointment of appellant Schwanecke as guardian ad

litem for the children’s class, is dismissed for want of

jurisdiction.

The costs of this appeal are assessed 50% to appellants and

50% to appellees.

ORDER NOT PUBLISHED VIC HALL

Rule 452, T.R.C.P. Associate Justice

App. 10

Appendix “’B”’

JUDGMENT OF THE COURT OF APPEALS

(September 9, 1982)

BE IT REMEMBERED:

THAT at the term of the Honorable Court of Appeals for the

Tenth Supreme Judicial District of the State of Texas, begun

and holden at Waco on the 1st day of January, 1982, present

Chief Justice FRANK G. McDONALD and Associate Justices

VIC HALL and GEORGE CHASE

In the cause

No. 10-81-072-CV

Rebecca P. Schwanecke, M.D., F.A.A.P., et al, Appellants

From Harris County

v. Trial Court No. 79-44733

Opinion by Vic Hall

Harris County Hospital District, et al., Appellees

the following Judgment was entered on September 9, 1982:

“This cause came on to be heard on the transcript of the

record, and the same being considered, because it is the opin-

ion of this Court that there was error in the judgment of

dismissal; it is therefore ordered, adjudged and decreed that

the judgment of dismissal entered on the 7th day of July, 1981

be, and hereby is, reversed and this cause is remanded to the

234th Judicial District Court of Harris County, Texas in ac-

cordance with the opinion of this Court. It is further the

opinion of this Court that the appeal of the order denying

Appellants’ motions for class action certifications and for ap-

pointment of guardian ad litem for the children’s class should

be dismissed; it is therefore ordered, adjudged and decreed

App. 11

‘

that the appeal of the order denying Appellants’ motions for

class action certifications and for appointment of guardian ad

litem for the children’s class entered on the 8th day of August,

1980 be, and hereby is, dismissed for want of jurisdiction. It is

further ordered that Appellants Rebecca P. Schwanecke,

M.D., F.A.A.P., et al, pay fifty per cent (50%) of the costs of

appeal and that Appellees Harris County Hospital District, et

al, pay fifty per cent (50%) of the costs of appeal, and this

decision be certified below for observance.”

I, ROBERT G. WATTS, Clerk of the Court of Appeals for the

Tenth Supreme Judicial District of Texas, at the City of Waco,

hereby certify that the foregoing is a true copy of the Judgment

entered herein by this Court in the above entitled and num-

bered cause as appears of record in Minute Book 6, Page 85.

IN WITNESS WHEREOF, I

hereunto set my hand and

affix the seal of said Court at

Waco this 12th day of May

A.D. 1983.

/s/ Robert G. Watts

ROBERT G. WATTS, Clerk

App. 12

Appendix “C”

ORDERS OF COURT OF APPEALS OVERRULING

APPELLANTS’ MOTION FOR REHEARING, FIRST

AMENDED MOTION FOR REHEARING AND SECOND

AMENDED MOTION FOR REHEARING

(October 7, 1982)

BE IT REMEMBERED:

THAT at the term of the Honorable Court of Appeals for the

Tenth Supreme Judicial District of the State of Texas, begun

and holden at Waco on the 1st day of January, 1982, present

Chief Justice FRANK G. McDONALD and Associate Justices

VIC HALL and GEORGE CHASE

In the cause

No. 10-81-072-CV

Rebecca P. Schwanecke, M.D., F.A.A.P., et al, Appellants

From Harris County

Vv. Trial Court No. 79-44733

Harris County Hospital District, et al, Appellees

the following Order was entered on October 7, 1982:

“It is ordered that Appellants’ Motion for Rehearing be, and

hereby is, OVERRULED.”

I, ROBERT G. WATTS, Clerk of the Court of Appeals for the

Tenth Supreme Judicial District of Texas, at the City of Waco,

hereby certify that the foregoing is a true copy of the Order

entered herein by this Court in the above entitled and num-

bered cause as appears of record in Minute Book 6, Page 93.

IN WITNESS WHEREOF, I

hereunto set my hand and

affix the seal of said Court at

Waco this 12th day of May

A.D. 1983.

/s/ Robert G. Watts

ROBERT G. WATTS, Clerk

App. 13

BE IT REMEMBERED:

THAT at the term of the Honorable Court of Appeals for the

Tenth Supreme Judicial District of the State of Texas, begun

and holden at Waco on the Ist day of January, 1982, present

Chief Justice FRANK G. McDONALD and Associate Justices

VIC HALL and GEORGE CHASE

In the cause

No. 10-81-072-CV

Rebecca P. Schwanecke, M.D., F.A.A.P., et al, Appellants

From Harris County

v. Trial Court No. 79-44733

Harris County Hospital District, et al, Appellees

the following Order was entered on October 7, 1982:

“It is ordered that Appellants’ First Amended Motion for

Rehearing be, and hereby is, OVERRULED.”

I, ROBERT G. WATTS, Clerk of the Court of Appeals for the

Tenth Supreme Judicial District of Texas, at the City of Waco,

hereby certify that the foregoing is a true copy of the Order

entered herein by this Court in the above entitled and num-

bered cause as appears of record in Minute Book 6, Page 93.

IN WITNESS WHEREOF, I

hereunto set my hand and

affix the seal of said Court at

Waco this 12th day of May

A.D. 1983.

/s/ Robert G. Watts

ROBERT G. WATTS, Clerk

App. 14

BE IT REMEMBERED:

THAT at the term of the Honorable Court of Appeals for the

Tenth Supreme Judicial District of the State of Texas, begun

and holden at Waco on the Ist day of January, 1982, present

Chief Justice FRANK G. McDONALD and Associate Justices

VIC HALL and GEORGE CHASE

In the cause

No. 10-81-072-CV

Rebecca P. Schwanecke, M.D., F.A.A.P., et al, Appellants

From Harris County

v. Trial Court No. 79-44733

Harris County Hospital District, et al, Appellees

the following Order was entered on October 7, 1982:

“It is ordered that Appellants’ Second Amended Motion for

Rehearing be, and hereby is, OVERRULED.”

I, ROBERT G. WATTS, Clerk of the Court of Appeals for the

Tenth Supreme Judicial District of Texas, at the City of Waco,

hereby certify that the foregoing is a true copy of the Order

entered herein by this Court in the above entitled and num-

bered cause as appears of record in Minute Book 6, Page 93.

IN WITNESS WHEREOF, I

hereunto set my hand and

affix the seal of said Court at

Waco this 12th day of May

A.D. 1983.

/s/ Robert G. Watts

ROBERT G. WATTS, Clerk

App. 15

Appendix “D”

ORDERS OF SUPREME COURT OF TEXAS REFUSING

APPLICATION FOR WRIT CF ERROR [NO REVERSIBLE

ERROR] AND

OVERRULING MOTION FOR REHEARING

(March 30, 1983 and May 4, 1983)

IN THE SUPREME COURT OF TEXAS

No. C-1711 March 30, 1983

Rebecca P. Schwanecke, M.D.,

F.A.A.P. et al. )

) From __ Harris County,

vs. )

) Tenth District.

Harris County Hospital )

District et al.

Application of petitioners for writ of error to the Court of

Appeals for the Tenth Supreme Judicial District having been

duly considered, and the Court having determined that the

application presents no error requiring reversal of the judg-

ment of the Court of Civil Appeals, it is ordered that said

application be, and hereby is, refused.

It is further ordered that applicants, Rebecca P. Schwan-

ecke, M.D., F.A.A.P., et al., pay all costs incurred on this

application.

App. 16

No. C-1711 May 4, 1983

Rebecca P. Schwanecke, M.D.,

F.A.A.P. et al. )

) From Harris County,

vs. )

) Tenth District.

Harris County Hospital )

District et al.

Petitioners’ motion for rehearing of application for writ of

error having been duly considered, it is ordered that said

motion be, and hereby is, overruled.

I, GARSON R. JACKSON, Clerk of the Supreme Court of

Texas, do hereby certify that the above and foregoing is a true

and correct copy of the orders of the Supreme Court of Texas

in the case numbered and styled as above, as the same appears

of record in the minutes of said Court under the dates shown.

WITNESS my hand and seal of the Supreme Court of Texas,

at the City of Austin, this, the 9th day of May, 1983.

GARSON R. JACKSON, Clerk

By /s/ Mary M. Wakefield, Deputy.

Mary M. Wakefield

App. 17

Appendix ‘’E”

U.S. CONSTITUTIONAL AND TEXAS ANNEXATION

ACCORD PROVISIONS INVOLVED

I. U.S. CONSTITUTION:

Article III:

Section 2. The judicial Power shall extend to all cases, in

Law and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be made,

under their Authority;***.

In all Cases affecting Ambassadors, other public Ministers

and Consuls, and those in which a State shall be a Party, the

supreme Court shall have original Jurisdiction. In all the other

Cases before mentioned, the supreme Court shall have appel-

late Jurisdiction, both as to Law and Fact, with such Excep-

tions, and under such Regulations as the Congress shall

make.

Article VI, Second Paragraph:

This Constitution, and the laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in the Consti-

tution or Laws of any State to the Contrary notwithstanding.

5th Amendment:

**(NJor shall any person***be deprived of life, liberty, or

property, without due process of law;***.

9th Amendment:

The enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the

people.

App. 18

10th Amendment:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.

14th Amendment:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.***

[Njor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Il. TEXAS ANNEXATION ACCORD (1845):

The 1845 Annexation Accord between the Republic of Texas

and the United States embraced the following pertinent legal

materials or excerpts thereof:

A. Joint Resolution of the U.S. Congress, approved March

1, 1845 (5 U.S. Stat. 797-798):

Resolved, by the Senate and House of Representatives of the United

States of America in Congress assembled, That Congress doth

consent that the territory properly included within, and

rightly belonging to the Republic of Texas, may be erected into

a new State, to be called the State of Texas, with a republican

form of government, to be adopted by the people of said

Republic, by deputies in convention assembled, with the con-

sent of the existing government, in order that the same may be

admitted as one of the States of this Union.

2. And be it further resolved, That the foregoing consent of

Congress is given upon the following conditions, and with the

following guarantees, to wit: First. Said State to be formed,

subject to the adjustment by this government of all questions

of boundary that may arise with other governments; and the

Constitution thereof, with the proper evidence of its adoption

App. 19

by the people of said Republic of Texas, shall be transmitted to

the President of the United States, to be laid before Congress

for its final action, on or before the first day of January, one

thousand eight hundred and forty-six. Second. Said State,

when admitted into the Union, after ceding to the United

States all public edifices, fortifications, barracks, ports and

harbors, navy and navy-yards, docks, magazines, arms,

armaments, and all other property and means pertaining to

the public defense belonging to the said Republic of Texas,

shall retain all the public funds, debts, taxes, and dues of every

kind, which may belong to or be due and owing said Republic:

and shall also retain all the vacant and unappropriated lands

lying within its limits, to be applied to the payment of the

debts and liabilities of said Republic of Texas, and the residue

of said lands, after discharging said debts and liabilities, to be

disposed of as said State may direct; but in no event are said

debts and liabilities to become a charge upon the government

of the United States. Third. New States, of convenient size,

not exceeding four in number, in addition to said State of

Texas, and having sufficient population, may hereafter, by the

consent of said State, be formed out of the territory thereof,

which shall be entitled to admission under the provisions of

the Federal Constitution. And such States as may be formed

out of that portion of said territory lying south of thirty-six

degrees thirty minutes north latitude, commonly known as

the Missouri Compromise Line, shall be admitted into the

Union, with or without slavery, as the people of each State

asking admission may desire. And in such State or States as

shall be formed out of said territory north of said Missouri

Compromise Line, slavery, or involuntary servitude, (except

for crime), shall be prohibited.

App. 20

B. Joint Resolution of the Ninth Congress of the Republic

of Texas, approved June 23, 1845 (2 Gam., The Laws of Texas

(1225-1227):

Whereas, the Government of the United States hath pro-

posed the following terms, guarantees, and conditions, on

which the people and territory of the Republic of Texas may be

erected into a new State, to be called the State of Texas, and

admitted as one of the States of the American Union, to wit:

[Terms of Resolution of U.S. Congress, above]

And whereas, by said terms, the consent of the existing

government of Texas is required—Therefore,

Be it resolved by the Senate and House of Representatives

of the Republic of Texas in Congress assembled, That the

government of Texas doth consent, that the People and terri-

tory of the Republic of Texas, may be erected into a new State,

to be called the State of Texas, with a republican form of

Government, to be adopted by the People of said Republic, by

Deputies in Convention assembled, in order that the same

may be admitted as one of the States of the American Union;

and said consent is given on the terms, guarantees, and condi-

tions set forth in the Preamble to this Joint Resolution.

Sec. 2. Be it further resolved, That the proclamation of the

President of the Republic of Texas, bearing date May fifth,

eighteen hundred and forty-five, and the election of Deputies

to sit in Convention, at Austin, on the fourth day of July next,

for the adoption of a Constitution for the State of Texas, had in

accordance therewith, hereby receives the consent of the

existing Government of Texas.

Sec. 3. Be it further resolved, That the President of Texas is

hereby requested immediately to furnish the Government of

the United States, through their accredited Minister near this

App. 21

Government, with a copy of this Joint Resolution; also to

furnish the Convention to assemble at Austin, on the fourth of

July next, a copy of the same—And the same shall take effect

from and after its passage.

C. An Ordinance approved on July 4, 1845, by the People of

the Republic of Texas in Convention at Austin, Texas (2

Gam., The Laws of Texas 1228-1230):

Whereas the Congress of the United States of America has

passed resolutions providing for the annexation of Texas to

that Union, which resolutions were approved by the President

of the United States on the first day of March one thousand

eight hundred and forty-five; and whereas the President of

the United States has submitted to Texas the first and second

sections of the said resolution, as the basis upon which Texas

may be admitted as one of the States of the said Union; and

whereas the existing government of the Republic of Texas has

assented to the proposals thus made, the terms and condi-

tions of which are as follows,

[Terms of the Resolution of the U.S. Congress, above]

Now, in order to manifest the assent of the people of this

Republic as required in the above recited portions of the said

resolutions; We the deputies of the people of Texas in conven-

tion assembled in their name and by their authority, do ordain

and declare, that we assent to, and accept the proposals,

conditions and guarantees contained in the first and second

sections of the resolution of the Congress of the United States

aforesaid.

D. Texas Constitution of 1845 (3 Ver. Tex. Constitution):

ARTICLE VII:

SEC. 20. The rights of property and of action, which have

been acquired under the Constitution and laws of the Republic

App. 22

of Texas, shall not be divested; nor shall any rights or actions

which have been divested, barred, or declared null and void,

by the Constitution and laws of the Republic of Texas, be

re-invested, revis/v/ed, or re-instated, by this Constitution;

but the same shall remain precisely in the situation which they

were before the adoption of this Constitution.

ARTICLE XIII:

SEC. 3. All laws and parts of laws now in force in the

Republic of Texas, which are not repugnant to the Constitu-

tion of the United States, the joint resolutions for annexing

Texas to the United States, or to the provisions of this Consti-

tution, shall continue and remain in force, as the laws of this

State, until they expire by their own limitation, or shall be

altered or repealed by the Legislature thereof.

SEC. 13. The ordinance passed by the Convention on the

fourth day of July, assenting to the overtures for the annexa-

tion of Texas to the United States, shall be attached to this

Constitution, and form a part of the same.

E. Joint Resolution for the Admission of the State of Texas

into the Union, approved on December 29, 1845 (9 U.S. Stat.

108):

Whereas the Congress of the United States, by a joint

resolution approved March the first, eighteen hundred and

forty-five, did consent that the territory properly included

within, and rightfully belonging to, the Republic of Texas,

might be erected into a new State, to be called The State of

Texas, with a republican form of government, to be adopted

the people of said republic, by deputies in convention assem-

bled, with the consent of the existing government, in order

that the same might be admitted as one of the States of the

Union; which consent of Congress was given upon certain

conditions specified in the first and second sections of said

App. 23

joint resolution; and whereas the people of the said Republic

of Texas, by deputies in convertion assembled, with the con-

sent of the existing government, did adopt a constitution, and

erect a new State with a republican form of government, and,

in the name of the people of Texas, and by their authority, did

ordain and declare that they assented to and accepted the

proposals, conditions, and guaranties contained in said first

and second sections of said resolution; and whereas the said

constitution, with the proper evidence of its adoption by the

people of the Republic of Texas, has been transmitted to the

President of the United States and laid before Congress, in

conformity to the provisions of said joint resolution:

Therefore—

Resolved by the Senate and House of Representatives of the United

States of America in Congress asembled, That the State of Texas

shall be one, and is hereby declared to be one, of the United

States of America, and admitted into the Union on an equal

footing with the original States in all respects whatever.

Sec. 2. And be it further resolved, That until the representa-

tives in Congress shall be apportioned according to an actual

enumeration of the inhabitants of the United States, the State

of Texas shall be entitled to choose two representatives.

Approved, December 29, 1845.