Jurisdictional Statement — Hodgson v. Minnesota

Supreme Court brief1971

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INDEX

PAGE

Citation to Opinions Below 2

Jurisdiction 3

Statutes Involved 4

Questions Presented 6

Statement of the Case 7

The Questions Are Substantial 10

Introduction 10

I. Minn. Stat. Ann. $§617.18, -.19, Which Forbid

a Physician to Perform a Therapeutic Abor-

tion, “Unless the Same Is Necessary to Pre-

serve [the Patient’s] Life,” Deprive Physicians

and Their Patients of Rights Secured by the

First, Fourth, Ninth, and Fourteenth Amend-

ments, and Are Void on Their Face by Reason

of Overbreadth, Because Neither Narrowly

Drawn Nor Supported by Any Compelling or

Legitimate State Interests 15

IT. Minn. Stat. Ann. §§617.18, -.19, Are Uncon-

stitutionally Vague and Indefinite on Their

Face, Because the Statutory Language Pro-

vides Wholly Inadequate Warning to the Phy-

sician, Patient, Judge, or Jury of Which Phys-

ical, Mental, or Social Conditions May Be

Taken Into Account When Assessing Necessity 19

PAGE

Til. The Supreme Court of Minnesota Should Have

Granted a Writ of Prohibition, Because the

Facts Showed a Realistic Danger of Immedi-

ate and Irreparable Injury to Important Fed-

eral Rights, and Defense of State Court Prose-

cution Could Not Adequately Vindicate These

Rights

IV. The Decision of the Supreme Court of Min-

nesota, Denying a Writ of Prohibition, Was a

“Final Judgment” for the Purposes of Appeal

to This Court

ConcLUSION

Apprenpix A: State Proceedings—

Notice of Appeal to the Supreme Court of the

United States From the District Court, Second

Judicial District, County of Ramsey, State of

Minnesota, Filed Sept: 14, 1970

Order of the Supreme Court of Minnesota, Deny-

ing Application for Writ of Prohibition, Entered

July 20, 1970

Order of the District Court, Second Judicial Dis-

trict, County of Ramsey, Denying Motion to

Dismiss Indictment Against Appellant Jane E.

Hodgson, M.D., Entered June 29, 1970 ................ 3a

Indictment by Grand Jury, Filed May 21, 1970 .... 2la

Aprenpix B: Federal Proceedings—

Notice of Appeal to the Supreme Court of the

United States From the United States District

Court for the District of Minnesota, Filed July

23, 1970 22a

Order of the United States District Court, Deny-

ing a Stay, Entered September 1, 1970 ................ 28a

Judgment of the United States District Court,

Denying Petition for Rehearing, Entered July

1, 1970 25a

Order and Opinion of the United States District

Court, Denying Petition for Rehearing, Entered

July 1, 1970 27a

Judgment of the United States District Court,

Denying Declaratory Judgment and Injunction,

and Dismissing Complaint, Entered May 19, 1970 31a

Order and Opinion of the United States District

Court, Denying Declaratory Judgment and In-

junction, and Dismissing Complaint, Entered

May 19, 1970 33a

Apprenpix C: Text of Related Minnesota Statutes ...... 40a

PAGE

Taste or AUTHORITIES

Constitutional Provisions:

United States Constitution—

Amendment I 6, 10, 15

Amendment IV 6, 10, 15

Amendment VIII . 15

Amendment IX 6, 10, 12, 15, 16, 17

Amendment XIV 6, 10, 11, 15, 19

Statutes:

11 Minn. Stat. Ann. §§147.01, -.02, at 71-74 (Supp. 1970),

amending id., at 186-87 (1946) 5, 27

40A Minn. Stat. Ann. §§617.18, -.19, at 284-87 (1964) .... 4, 5,

passim

40A Minn. Stat. Ann. $617.20, at 287 (1964) ................ 40a

40A Minn. Stat. Ann. §§617.25, to -.26, at 27-28 (Supp.

1970) 40a

[1970], N. Y. Laws ch. 127, at 170, amending N. Y.

Penal Law $125.05(3) (McKinney 1967) 13

28 U.S.C. $1257 (1964 ed.) 4, 27, 30

Cases:

Ashton v. Kentucky, 384 U.S. 195 (1966) 22

Baird v. Eisenstadt, —— F.2d ——, No. 7578 (1st Cir.

July 6, 1970) 11

Barrows v. Jackson, 346 U.S. 249 (1953) 17

California v. Belous, 71 Cal. 2d ——, 458 P.2d 194,

80 Cal. Rptr. ee denied, 397 U.S. 915

(1970) | passim —

PAGE

Doe v. Bolton, —— F. Supp. —, Civ. No. 13676 (N.D.

Ga. July 31, 1970) (per curiam) -17

Doe v. Randall, 314 F. Supp. 32 (D. Minn. 1970) ...... 27a,

| 33a, passim

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ................ 22

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

Local No. 438 v. Curry, 371 U.S. 542 (1963) ................ 30

Loving v. Virginia, 388 U.S. 1 (1967) 16

Madruga v. Superior Court, 346 U.S. 556 (1954) ..4, 29, 30

McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis. 1970)

(per curiam), appeal docketed, 38 U.S.L.W. 3524

(U.S. June 20, 1970) (No. 297, Oct. 1970 Term) ..16, 17,

23, 24

Mercantile Bank v. Langdeau, 371 U.S. 555 (1963) .... 30

Meyer v. Nebraska, 262 U.S. 390 CROP ad, dcccscnrpeasiicicd si 4

Mills v. Alabama, 384 U.S. 214 (1966) 4,29

Mindel v. U. 8S. Civil Service Comm'n, 312 F. Supp.

485 (N.D. Calif. 1970) 12

NAACP v. Button, 371 U.S. 415 (1963) 22

Planned Parenthvod Ass‘n of Phoenix v. Nelson, Civ.

No. 70-384 PHX (D. Ariz. Aug. 24, 1970) (per

curiam) 17

Poe v. Ullman, 367 U.S. 497 (1961) 4

Roe v. Wade, —— F. Supp. ——, Civ. No. 3-3690-B

(N.D. Tex. June 17, 1970) (per curiam) ............ 12, 17, 23

Rosen v. Louisiana State Bd. of Medical Examiners,

—— F. Supp. ——, Civ. No. 70-1304 (E.D. La. Aug.

7, 1970) 23, 24

Rosenblatt v. American Cyanamid Co., 86 S. Ct. 1

(1965) 30

PAGE

Shively v. Board of Medical Examiners, No. 590333

(Calif. Super. Ct., San Fran. County Sept. 24, 1968),

on remand from 65 Cal. 2d 475, 421 P.2d 65, 55 Cal.

i IT LIE RIEL 16

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

REET . ART SINR e Nr pels E ER 16

State v. Hodgson, No. 23789 (Minn. Dist. Ct., Ramsey

County June 29, 1970), prohibition denied, No. 42652

(Minn. Sup. Ct. July 20, 1970) .0.......c.ccccccccccscesosee.- passim

Sturgis v. Attorney General, 260 N.E.2d 687 (Mass.

i he I SPINE TS UES, OO NR Ge SST OG ante 12

United States ex rel. Williams v. Follette, 313 F. Supp.

ec Nb ER ie) Re TT TOP 17,18

United States v. Evans, 333 U.S. 483 (1948) 000000000... 22

United States v. Vuitch, 305 F. Supp. 1032 (D.D.C.

1969), ques. of juris. postponed to merits, 397 U.S.

1061, further juris. questions propounded, 399 U.S.

te. RARER Renate SAW TES EE Lee 18, 22, 23

Books:

Calderone, M. (ed.), Abortion in the United States

| KR aire RNe iy et mapa ..12, 24

Callahan, D., Abortion: Law, Choice, and Morality

(1970) ‘~ 8

Eastman, N. & L. Hellman, Williams Obstetrics (13th

ed. 1966) ; ws 2a

Ehrlich, P. & A. Ehrlich, Population Resources Envi-

ronment (1970) 12

Gebhard, P., et al., Pregnancy, Birth and Abortion

(1958) 12

_ PAGE

Taussig, F., Abortion: Spontaneous and Induced

CFFOR secarsnosin sid sinensis Malia ccs of wok =) 12

Articles and Commentary :

Amsterdam, The Void for Vagueness Doctrine, 109

ait nga Te ES 18, 19, 23

Fisher, Criminal Abortion, in Abortion in America 3

Jeaptieetnane-tesie bao, ee OEMS Me 12

lemma, 21 J. Mt. Sinai Hosp. 111 (1954) 0. 24

Hall, Abortion in American Hospitals, 57 Am. J. Pub.

sapigeErtaask cqnd Re OO EE 9, 24

Hardin, History and Future of Birth Control, 10 Per-

spectives in Biology & Med. 1 i Berar ® 12

Lucas, Laws of the U. S., I Abortion in a Changing

World 127 (R. Hall ed. cgi EN 13

Tietze, Maternal Mortality Associated With Legal

Abortion, in Proceedings of the Fifth International

Conference on Planned Parenthood 24 (Oct. 1955) .... 23

Tietze, Therapeutic Abortions in the United States,

101 Am. J. Obst. & Gynec. 784 (1968) 11

PAGE

Other Authorities:

Constitution of the World Health Organization, in

Basic Documents of the World Health Organiza-

tion 1 (Geneva 1969 ed.) 21

J.A.M.A., 213:1242 (Aug. 24, 1970) 13

Model Penal Code §230.3(2) (Proposed Official Draft,

1962) 13, 14

Uniform Abortion Act (2d Tent. Draft, 1970) ................ 14

U. S. Bureau of the Census: Statistical Abstract of

the United States: 1969, Table 59, at 50 (90th ed.

1969) 11

IN THE

Supreme Court of the United States

OctosEr Trrm, 1970

BO sicties

Jane E. Hopason, M.D.,

Appellant,

Vv.

Tue Strate or Minnesota,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

carmen 2. came

JURISDICTIONAL STATEMENT

Appellant brings this appeal as a matter of right from

the final judgment of the Supreme Court of Minnesota deny-

ing a writ of prohibition to the Ramsey County District

Court.

The appeal is from a judgment of the Supreme Court

of Minnesota, entered July 20, 1970, denying Appel-

lant-Hodgson’s application for a writ of prohibition to

the District Court, Second Judicial District, County of

Ramsey. On June 29, 1970, the state District Court had

denied Appellant-Hodgson’s motion to dismiss an indict-

ment against her for having performed a therapeutic

abortion in a licensed hospital at the request of a patient

and her husband, where the patient had been exposed to

German measles (rubella) in the early stages of pregnancy.

This is the first known felony prosecution in the United

States of a qualified, licensed physician for performing a

therapeutic abortion in a hospital, after extensive medical

consultation, and for reasons widely recognized by the

medical profession as valid.

Appellant submits this Jurisdictional Statement to show

that this is an appeal as a matter of right over which this

Court has ,urisdiction, and that the appeal presents im-

portant and substantial federal questions which ought to

be resolved by this Court.

Citation to Opinions Below

The July 20, 1970, order of the Supreme Court of

Minnesota, denying Appellant-Hodgson’s application for

writ of prvhibition, has not been reported, but is set out in

Appendix A, infra, at 2a. The order and memorandum

opinion of the state District Court, Second Judicial District,

County of Ramsey, State of Minnesota, denying on June

29, 1970, Appellant-Hodgson’s motion to dismiss an indict-

ment against her for violating the anti-abortion statutes,

also not reported, appears in Appendix A, infra, at 3a.

The indictment handed down by the Grand Jury of the

County of Ramsey on May 21, 1970, is reproduced in

Appendix A, infra, at 21a.

Related federal proceedings are reported as Doe v.

Randall, 314 F. Supp. 32 (D. Minn.), rehearing denied, 314

F. Supp. 36 (D. Minn. 1970).

Jurisdiction

(i) On May 21, 1970, thirty-five days after a federal

complaint had been filed, in an action brought to enjoin

possible prosecution,’ the Grand Jury of the County of

Ramsey indicted Appellant Jane E. Hodgson, M.D., for

having performed a therapeutic abortion in violation of the

Minnesota anti-abortion statute? (App. A, at 21a). Appel-

lant-Hodgson moved to dismiss the indictment on the same

federal constitutional grounds argued to the United States

District Court in the pending affirmative suit. On June 29,

1970, the District Court, Second Judicial District, County

of Ramsey, denied the motion, holding the statutes con-

stitutionally valid (App. A, at 3a). Further, the State

District Court refused to certify the questions for review

by the Supreme Court of Minnesota (App. A, at 18a).

August 5, 1970, was set for arraignment, and November

9, 1970, for the criminal trial.

(ii) On July 17, 1970, Appellant-Hodgson petitioned the

Supreme Court of Minnesota for a writ of prohibition. The

writ was denied in an order entered July 20, 1970 (App.

A, at 2a). Appellant-Hodgson filed on September 14, 1970,

with the State District Court, Second Judicial District,

County of Ramsey, which possessed the record of state

court proceedings, a Notice of Appeal to this Court (App.

A, at 1a).

7 An appeal has been docketed this day in the federal action,

Hodgson v. Randall.

* The statutes, set out verbatim, infra, at 4-5, are 40A Minn.

Stat. ANN. §§617.18, -.19, at 284-87 (1964). Appellant’s argu-

ments for unconstitutionality are summarized, infra, at 10-24, to

establish the substantiality of the federal questions.

(iii) Jurisdiction of this Court to review by appeal the

order® of the Supreme Court of Minnesota is conferred by

28 U.S.C. §1257(2) (1954 ed.).

(iv) Cases which sustain the jurisdiction of this Court

over the appeal are: Mills v. Alabama, 384 U.S. 214,

217-18 (1966); Griswold v. Connecticut, 381 U.S. 479,

480 (1965); Poe v. Ullman, 367 U.S. 497, 500-501 (1961) ;

Madruga v. Superior Court, 346 U.S. 556, 557 & n. 1 (1954) ;

Meyer v. Nebraska, 262 U.S. 390 (1923).

Statutes Involved

40A Minn. Star. Ann. §617.18, at 284 (1964) :

“Every person who, with intent thereby to produce

the miscarriage of a woman, unless the same is neces-

sary to preserve her life, or that of the child with

which she is pregnant, shall

(1) prescribe, supply, or administer to a woman,

whether pregnant or not,-or advise or cause her to take,

any medicine, drug, or substance; or

(2) use, or cause to be used, any instrument or other

means—

Shall be guilty of abortion and punished by imprison-

ment in the state prison for not more than four years

or in a county jail for not more than one year.”

* As shall more fully appear infra, at 25-31, the order denying

a writ of prohibition was “final” for jurisdictional purposes, be-

cause the mere as of a pe eer trial under — eens

will do irreparable injury of extraordi magnitude to Appe

Hodgson and all other members of the medical profession in Minne-

sota by drastically inhibiting a wide realm of constitutionally

protected conduct.

40A Mirn. Stat. Ann. $617.19, at 286 (1964) :

“A pregnant woman who takes any medicine, drug,

or substance, or uses or submits to the use of any

instrument or other means, with intent thereby to

produce her own miscarriage, unless the same is

necessary to preserve her life, or that of the child

whereof she is pregnant, shall be punished by imprison-

ment in the state prison for not less than one year nor

more than four years.”

11 Mwy. Star. Aww. §147.02(3), at 73-74 (Supp. 1970) :

“The [Minnesota state board of medical examiners ]

may refuse to grant a license to, or may suspend,

revoke, condition, limit, qualify or restrict the license

-.. of any person guilty of immoral, dishonorable, or

unprofessional conduct . . .. A suspension, revocation,

condition, limitation, qualification or restrietion of a

license shall be in effect pending determination of the

appeal unless the court, upon petition and for good

cause shown, shall otherwise order.

“The words ‘immoral, dishonorable, or unprofessional

conduct,’ . . . shall mean: (1) Procuring, aiding, or

abetting a criminal abortion . . . (9) Conviction of a

felony ....

“A license to practice medicine is also suspended when a

licensee is convicted of the crime of abortion and

remains suspended until, upon petition by the licensee,

the suspension is terminated by the board after a

hearing.”

Other relevant Minnesota statutes, not directly in question

here, which relate to distribution of information on abor-

tion, manufacture of abortifacients, and licensure revoca-

tion for hospitals which permit abortion, are set out in

Appendix C, infra, at 40a.

Questions Presented

I. Whether Minn. Stat. Ann. §§617.18, -.19, Which

Forbid a Physician to Perform a Therapeutic Abor-

tion, “Unless the Same is Necessary to Preserve [the

Patient’s] Life,” Deprive Physicians and their Patients

of Rights Secured by the First, Fourth, Ninth, and

Fourteenth Amendments, and Are Void on their Face

by Reason of Overbreadth, Because Neither Narrowly

Drawn Nor Supported by Any Compelling or Legiti-

mate State Interests.

II. Whether Minn. Stat. Ann. §§617.18, -.19, Are

Unconstitutionally Vague and Indefinite on their Face,

Where the Statutory Language Provides Wholly In-

adequate Warning to the Physician, Patient, Judge, or

Jury, of Which Physical, Mental, or Social Conditions

May be Taken Into Account When Assessing Necessity.

III. Whether the Supreme Court of Minnesota

Should ‘Have Granted a Writ of Prohibition, Where

the Facts Showed a Realistic Danger of Immediate

and Irreparable Injury to Important Federal Rights,

and Defense of State Court Prosecution Could Not

Adequately Vindicate these Rights.

IV. Whether the Decision of the Supreme Court of

Minnesota, Denying a Writ of Prohibition, Was a

“Final Judgment” For the Purpose of Appeal to this

Court.

Statement of the Case

Appellant was one of four Minnesota physicians who

brought the federal action, Hodgson v. Randall, docketed

on appeal to this Court as No. 728, October 1970 Term. Ad-

ditional federal plaintiffs were a woman who was preg-

nant at the time the action was filed, and her husband.

The physicians all alleged that Minnesota’s anti-abor-

tion laws severely restricted their treatment of the

innumerable patients, encountered on a regular and

recurring basis, who requested therapeutic abortions.

They constantly have patients who request hospital

therapeutic abortions. Because of the awesome felony

sanctions, and equally severe sanctions such as loss of

medical license and hospital privileges, these physicians

must reject such patients’ requests, or risk ruin. To test

the validity of Minnesota’s anti-abortion laws and practices,

they decided to take the alternative of an action for

declaratory and injunctive relief against the aforesaid

statutes. :

"On April 14, 1970, two days before the federal complaint

was filed, Jane Doe, a patient, was advised by Appellant

Jane E. Hodgson, M.D., that she was pregnant. Further-

more Jane Doe had been exposed to German measles (ru-

bella). Jane Doe herself, and her three infant children,

ages five, three, and two, had all contracted German

measles during the month of March, 1970.

German measles, like thalidomide, creates severe risks

of innumerable defects in the embryo.

“At present . . . the following defects are most

common in cases of congenital rubella: low birth

weight, cataracts, microphthalmia, retinopathy, deaf-

ness, congenital heart disease, bone lesions and psycho-

motor retardations. Less common, or rare, are jaun-

dice, glaucoma, cloudy corneas, myocardial damage,

hepatitis, and various forms of anemia.” *

A pregnant woman, her husband, and her entire family

could reasonably conclude that the State is asking too much

when it requires her to continue a pregnancy after a rubella

infection in early pregnancy has been positively identified.

Accordingly, the physician plaintiffs were joined by Jane

Doe, then ten weeks pregnant, and her husband in a fed-

eral action filed April 16, 1970, to declare the Minnesota

statute unconstitutional on its face, and forever to enjoin

its enforcement.

Despite the urgency of expeditious action, the federal

District Court did nothing for almost five weeks. Based

upon medical consultations, and accepted medical practice,

Appellant Jane E. Hodgson, M.D., performed a therapeutic

abortion on Jane Doe April 29, 1970, in an unnamed

Minnesota hospital. Further delay would have entailed

great risk to the life and health of Jane Doe.*

On May 19, 1970, the federal District Court issued the

opinion set out in Appendix B, infra, at 33a, and recently

*D. Catuanan, AporTion: Law, CHOICE, AND Morauity 96

(1970). Callahan, at 92-98 & nn. 2-44, fully elaborates the conse-

quences of rubella infection, with citation to all pertinent medical

authorities. These will be discussed more fully in the brief on the

merits.

5 Appellant has not and does not take the position that a thera-

ic abortion was “n to preserve [Jane Doe’s] life”

within the intendment of 40A . Star. Ann. §617.18, at 284

(1964). The point here is that surgical dangers increase with

duration of pregnancy, a factor not taken into account by the

District Court.

reported in 314 F. Supp. at 32. The federal court denied

both declaratory and injunctive relief, noting that no in-

dictment had been returned. .

Two days later a grand jury indicted Appellant Jane E.

Hodgson, M.D. (App. A, at 21a). Appellant petitioned the

federal District Court for rehearing, requesting again the

declaratory and injunctive relief sought from the outset.

On July 1, 1970, the three-judge court, again denied relief

(App. B, at 27a, 314 F. Supp. at 36). A per curiam opin-

ion invoked the anti-injunction statute, 28 U.S.C. §2283

(1964 ed.), and refused again to intervene.

After indictment,* Appellant Hodgson moved in the

state district court for dismissal of the indictment, on the

same federal constitutional grounds which were central to

the federal action. On June 29, 1970, the District Court,

Second Judicial District, County of Ramsey, denied the

motion, expressly rejecting all federal constitutional claims

(App. A, at 3a). Appellant Hodgson applied to the Su-

preme Court of Minnesota for a writ of prohibition, again

urging that the anti-abortion statutes were unconstitu-

tional on their face. On July 20, 1970, the highest court

of the State, without opinion, refused the writ (App. A,

at 2a). The present appeal and an appeal also docketed

this day from the federal court judgment, followed.

* An examination of the legal history of abortion will show that

this is the first indictment ever returned in the United States

against a _— for having performed a therapeutic abortion in

a hospital, for recognized medical reasons. One authority points

out, moreover, the widespread performance of abortions for rubella:

“During the 1964 [rubella] epidemic 329 such abortions were done

in New York City alone. Although most American hospitals now

permit abortions for rubella, some do not.” Hall, “Abortion in

American Hospitals, 57 Am. J. Pus. Hearn 1933, 1935 (1967).

The Questions Are Substantial

This appeal presents important and unresolved federal

questions which have not been but should be finally deter-

mined by this Court. Not only does the decision appealed

from appear to be out of line with precedent from the

Court, but the result below is in conflict with numerous

decisions by federal and state appellate courts in other

jurisdictions.’ In addition, the appeal presents novel is-

sues of profound national significance, affeeting the lives

of many thousands of American citizens each year. Fur-

ther, the same issues are presented in a host of pending

lower federal and state court actions.*~The parties and

courts affected need and await guidance from this Court.

Introduction

In the remainder of this Jurisdictional Statement, Ap-

pellant will show that the questions presented are sub-

stantial, and merit plenary review by the full Court. Be-

cause of the novelty and complexity of the issues, and the

limited function of a Jurisdictional Statement, this show-

ing will not undertake to develop all arguments in depth.

On the merits, Appellant contends that decisions of

this Court, construing the First, Fourth, Ninth, and Four-

teenth Amendments,’ support a claim that Minnesota’s anti-

* See cases cited in notes 20-26 and accompanying text, infra.

* See cases listed in note 27, infra.

*In particular, Appellant relies upon the reasoning of Griswold

v. Connecticut, 381 U.S. 479 (1965), where this Court invalidated

a state law prohibiting use of contraceptive devices, because the law

swept too broadly and invaded “a relationship lying within the

zone of privacy created by several fundamental constitutional guar-

antees.” 381 U.S. at 485.

ee _

Be TES ta

abortion statutes sweep too broadly and thereby invade

_ rights protected by the Constitution. These rights are as-

serted by Appellant, as a physician, and on behalf of her

patients. Moreover, the statutes in question are so vague

and indefinite as to violate the Fourteenth Amendment due

process guarantee of reasonably specific legislation. That

guarantee is particularly significant where, as here, im-

portant persongl rights are at stake, and an impermis-

sibly vague statute operates to inhibit a wide range of

constitutionally protected conduct.”

Ultimately, the question presented is whether a State

may enact a felony statute to punish a physician, a woman,

and her husband, with four years in state prison, where

the couple requests, and the physician performs, a thera-

peutic surgical procedure to abort a pregnancy which the

couple did not want, but were unable to prevent. Under

Griswold v. Connecticut, 381 U.S. 479 (1965), it is clear

that a husband and wife" are constitutionally privileged

*° The most reliable estimates hold that fewer than 10,000 hospital

therapeutic abortions are performed yearly, in states where there

has been no abortion law reform. See Tietze, Therapeutic Abortions

in the United States, 101 Am. J. Onst. & Gynec. 784, 787 (1968).

These constitute a minute proportion of all unwanted pregnancies

which face American couples each year. The remainder have two

alternatives: continuation of unwanted pregnancy, or extra-hospi-

tal, probably illegal, induced abortion.

" Griswold was silent on the more significant problem of access

by unmarried persons to contraceptives. A result of non-access,

and failure, is the birth of over 100,000 illegitimate children yearly

to girls age nineteen or younger. See U.S. BUREAU OF THE CENSUS:

Statistical Abstract of the United States: 1969, Table 59, at 50

(90th ed. 1969).

Outside of the state judiciary in Massachusetts, authorities have

uniformly held the Griswold rationale applicable to litigants who

had not entered into the marriage contract. Compare Baird v.

Eisenstadt, —— F.2d ——, No. 7578 (1st Cir. July 6, 1970) (in-

validating Massachusetts statute which outlawed distribution of

to control the size and spacing of their family by contra-

ception. The failure of contraception, however, is common-

place. Authoritative estimates are that between 750,000

and 1,000,000 births each year are unwanted.” These are

in addition to the 200,000 to 1,000,000 unwanted pregnancies

which are estimated to end in abortions induced outside of

the clinical setting.* Taken together, some 950,000 to

contraceptives to the unmarried), Mindel v. United States Civil

Service Comm’n, 312 F. Supp. 485 (N.D. Calif. 1970) (reinstating

postal clerk who had been dismissed for cohabitation without

benefit of marriage), and Roe v. Wade, —— F. Supp. ——, Civ.

No. 3-3690-B (N.D. Tex. June 17, 1970) (per curiam) (Texas

anti-abortion statutes “deprive single women and married couples

of their right, secured by the Ninth Amendment, to choose whether

to have children.”), with Sturgis v. Attorney General, 260 N.E.

2d 687, 690 (Mass. 1970) (directly contrary to federal decision in

Baird).

12 If a married couple is to have private control over numbers

and spacing of children, induced abortion is absolutely necessary

as a backstop to contraceptive failure. For compilation of contra-

ceptive failure rates according to method used, see P. Enruicn &

A. Enruicu, Poputation Resources ENVIRONMENT 218-19 & Table

9-1 (1970); N. Eastman & L. Hetuman, WILLIAMS OBSTETRICS

1068-75 (13th ed. 1966); Hardin, History and Future of Birth

Control, 10 PeRspEecTIvEs In Brotocy & Mep. 1, 7-13 (1966) ; Tietze,

Clinical Effectiveness of Contraceptive Methods, 78 Am. J. Osst. &

Gynec. 650 (1959).

% The most recent scholarly examination of unwanted birth

magnitudes will appear in a forthcoming issue of SciENcE. A

summary of these findings by Dr. Charles F. Westoff of Princeton

University’s Office of Population Research, analyzing the 1965 Na-

tional ob ged Study, appeared in the N.Y. Times, Oct. 29, 1969,

at 25, col. 3.

%* Secret induced abortions are inherently incapable of quantifi-

cation. Nonetheless, one can be certain that the number is very

high. For estimates, see Fisher, Criminal Abortion, in ABORTION

my America 3-6 (H. Rosen ed. 1967) ; M. CALDERONE (ed.), ABoR-

TION IN THE UniTep States 180 (1958); P. GesHarp e# al., Prec-

NaNCY, BirTH AND ABORTION 136-37 (1958) ; F. Taussia, ABORTION :

SPONTANEOUS AND INDUCED 25 (1936); Regine, A Study of Preg-

nancy Wastage, 13 Musank Mem. Fuxp Quart. No. 4, at 347-65

(1935).

" bitin STR eso De. Rink aed

2,000,000 unwanted births plus non-clinical abortions occur

yearly. Accordingly, one must conclude that restrictive

anti-abortion statutes, such as the Minnesota law in ques-

tion here, drastically affect the conduct of literally millions

of American citizens.

The national significance of the issues in this case can

also be inferred from increased activity within the medical

profession, and in the legislatures. On June 25, 1970, the

House of Delegates of the American Medical Association

voted to permit licensed physicians to perform abortions

in hospitals, with the sole additional qualification that two

other physicians be consulted.*® Physicians were cautioned,

however, not to violate existing state statutes, forty-seven

of which are far more restrictive.** Three states in 1970—

New York, Alaska, and Hawaii—removed, for the most

part, any criminal penalties which might previously have

been imposed upon physicians for performing abortions in

appropriate medical facilities.” From 1967 to 1970, twelve

states had adopted therapeutic abortion statutes similar

to that of the Move, Pena Copr’s 1962 Proposed Official

Draft."* More recently, on August 4, the Commissioners on

7° See N.Y. Times, June 26, 1970, at 1, col. 1. The statement has

not yet been published in an official A.M.A. document. A recent

issue of the J.A.M.A. noted that only 26 physicians had resigned

rr aa body because of new policy. 213 J.A.M.A. 1242 (Aug. 24,

1970).

* For analysis of abortion laws in the United States prior to

the most recent changes, see Lucas, Laws of the United States, in I

ABORTION IN A CHANGING Wor.p 127 (R. Hall ed. 1970) ; George,

Current Abortion Laws: Proposals and Movements for Reform,

17 W. Res. L. Rev. 371 (1966).

17 See, e.g., [1970], N.Y. Laws ch. 127, at 170, amending N.Y.

Pena Law §125.05(3) (McKinney 1967).

18 See Move. Pena Cope §230.3(2) (Proposed Official Draft,

1962). The states are Ar , California, Colorado, Delaware,

Georgia, Kansas, New Mexico, North Carolina, Oregon, South

Carolina, and Virginia.

Uniform State Lawe iasied a Second Tentative Draft of a

Unironm Anowtion Aer, The Act sanctioned abortions by

licensed physicians “within 24 weeks after the commence.

mont of the pregnancy; or if after 24 weeks . 0." under

the cireumetances wet ont in the Mooes Para Coon pro

posal,

These developments bear witness to the importance of

the ixsues presented here,

While poliew making and legislative bodies have debated

the issue of abortion, courts, confined to the constitutional

framework, have been asked to resolve the questions of

individual privaey and legislative power which are pre

sented here, Although the questions framed in this ense

have not been decided” by this Court, numerous federal

*° On at least six occasions this Court has declined to review state

court decisions which involved restrictive anti-abortion laws. The

present case, however, presents an ideal situation, free from factors

which might detract | a the merits, Here, Appellant is being

prosecuted for performing a hospital abortion ander circumstances

long approved by the medical profession, #.¢., documented exposure

of the patient to German measles. Moreover, this Appellant invoked

federal jurisdiction long before a prosecution was commenced.

Hence, it is the state courts which are interfering with federal

jurisdiction, not the more difficult contrary situation.

The six denials of review mentioned above are: Mucie v. Mis-

sowrs, 398 U.S. 938 (June 1, 1970), denying cert. to 448 S.W.2d

S79 (Mo. 1970) (manslaughter abortion conviction where patient

died) ; California v. Belous, 397 U.S. 915 (Feb. 24, 1970), denying

cert. to 71 Cal. 2d , 458 P.2d 194, 80 Cal. Rptr. 354 (1969)

(statute repealed after prosecution commenced) ; Molinaro v. New

Jersey, 396 U.S. 365 (Jan. 19, 1970) (per curiam), dismissing

appeal from 54 N.J. 246, 254 A.2d 792 (1969) (defendant jumped

bail after appeal filed); Knight v. Louisiana Bd. of Medical Ex-

aminers, 395 U.S. 933 (June 2, 1969), denying cert. to 252 La. 889,

214 So.2d 716 (1968) (per curiam) (federai questions not properly

raised and preserved); Morin v. Garra, 395 U.S. 935 (June 2,

1969), denying cert. to 53 N.J. 82 (1968) (per curiam) (same) ;

Moretti v. New Jersey, 393 U.S. 952 (Nov. 18, 1968), denying cert.

to 52 N.J. 182, 244 A.2d 499 (1968) (conspiracy conviction ; abor-

tion to have been performed by barber).

a E

and state decisions attest to the stbstantiality of the fed.

eral questions, Moreover, the sometimes sharp divisions

in the courts below illustrate further the need for a decision

at this level, In showing that the Court has juriadiction,

and that the questions are substantial, Appellant will out

line the divisions among lower courts.

Minn. Stat. Ann, §§617.18, -.19, Which Forbid a Phy-

sician to Perform a Therapeutic Abortion, “Unless the

Same In Necessary to Preserve [the Patient’s] Life,”

Deprive Physicians and Their Patients of Rights Secured

by the First, Fourth, Ninth, and Fourteenth Amendments,

and Are Void on Their Face by Reason of Overbreadth,

Because Neither Narrowly Drawn Nor Supported by Any

Compelling or Legitimate State Interests.

Point | presents the substantial federal question whether

the rights asserted by Appellant are of constitational di-

mension. These rights may be variously characterized.

In September, 1969, the Supreme Court of California be-

came the first appellate court to recognize the constitn-

tional stature of a “fundamental right of the woman to

choose whether to bear children ....”” The Belous court

° California v. Belous, 71 Cal. 2d ,——, 458 P.2d 194, 199.

80 Cal. Rptr. 354, 359 (1969), cert. denied, 397 US. 915 (1970).

Belous, a state court appeal of a conspiracy conviction of a physi-

cian, involved a statute worded almost identically to that in the

present case.

One year earlier, a California trial eourt had ruled that the

Eighth and Fourteenth Amendments prohibited license revoeation

proceedings against physicians who had performed hospital ap-

proved abortions on patients exposed in early pregnaney to German

found this right implicit im this Court’s “repeated acknowl-

edgment ofa ‘right-of: privacy’ or ‘liberty’ in matters re-

lated to marriage, family, and sex.” ™

More recently, three different decisions by statutory

three-judge federal courts have invalidated restrictions on

access to medical abortion in Wisconsin, Texas, and

Georgia. The first, McCann v. Babbitz,* recognized in‘that

jurisdiction a woman’s

“basic right reserved to her under the ninth amendment

to decide whether she should carry or reject an embryo

which has not yet quickened.” 310 F. Supp. at 302.

McCann grew out of the prosecution of a physician, but

ue three-judge court had no difficulty holding that a

measles. The opinion of the trial court, however, simply enumerated

those Amendments among various conclusions of law, without sup-

porting the conclusions with any attempt at reasoned analysis.

Nonetheless, the result, and the factual similarities between that

and the present case, are of interest. See Shively v. Board of Medi-

cal Examiners, No. 590333 (Calif. Super. Ct., San Fran. County

Sept. 24, 1968) (not reported), on remand from 65 Cal. 2d 475, 421

P.2d 65, 55 Cal. Rptr. 217 (1968) (granting physicians’ motions for

discovery, without reference to merits).

217] Cal. 2d at ——, 458 P.2d at 199, 80 Cal. Rptr. at 359, citing,

e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Loving v.

Virginia, 388 U.S. 1, 12 (1967) ; Skinner v. Oklahoma ex rel. Wil-

liamson, 316 U.S. 535, 536 (1942).

22310 F. Supp. 293 (E.D. Wis. 1970) (per curiam), appeal

docketed, 38 U.S.L.W. 3524 (U.S. June 20, 1970) (No. 297, Oct.

1970 Term). The prosecution in McCann took an appeal from the

granting of a declaratory judgment to the physician. However, the

physician did not appeal from denial of his request for injunctive

relief, as 28 U.S.C. §1253 (1964 ed.), would seem to require. See

Mitchell v. Donovan, 398 U.S. 427 (1970) (per curiam), vacating

300 F. Supp. 1145 (D. Minn. 1969), with directions to enter a

fresh judgment of dismissal, to enable the appellants to appeal to

the Eighth Circuit.

physician has standing to assert the rights of pregnant

patients.”

The second recent federal decision, Roe v. Wade,” de-

clared the Texas anti-abortion statutes unconstitutional on

the similar ground that

“they deprive single women and married couples of their

right, secured by the Ninth Amendment, to choose

whether to have children.”

A third federal decision, Doe v. Bolton,” followed Belous,

McCann, and Roe, holding:

“(T]he concept of personal liberty embodies a right to

privacy which apparently is also broad enough to in-

clude the decision to abort a pregnancy.

“... [T]he reasons for an abortion may not be pro-

scribed... .”

Numerous lower courts have followed this lead, in both

federal and state disputes.”* In addition, three-judge courts

481 (1965), and Barrows v. Jackson, 346 U.S. 249, 357 (1953). On

this standing point, lower court decisions involving abortion laws

12, 1970).

*—__. F’. Supp. ——, Civ. No. 3-3690-B (N.D. Tex. June 17,

1970) (per curiam).

7 —. F. Supp. ——, Civ. No. 13676 (N.D. Ga. July 31, 1970)

(per curiam).

*° See, e.g., State v. Munson (S.D. 7th Jud. Cir., Pennington

County Apr. 6, 1970) (Clarence P. Cooper, J.) (recognizing the

woman’s “‘private decision whether to bear her unquickened

have been convened in a number of states to consider issues

quite similar to those raised here.” The convening of a

statutory court, of course, requires that the questions pre-

sented be “substantial.” *

Scholarly commentary also recognizes that these issues

are of tremendous national importance, and “substantial”

in the sense of warranting determination by this Court.

Retired Justice Clark addressed himself to the applica-

bility of Griswold in the abortion context more than a year

ago.” According to Justice Clark’s analysis,

child’ ”) ; State v. Ketchum (Mich. Dist. Ct. Mar. 30, 1970) (Reid,

J.) (“the statute as written infringes on the right of privacy in

the physician-patient relationship, and may violate the patient’s

right to safe and adequate medical advice and treatment.”) ; Com-

monwealth v. Page, Centre County Leg. J. at 285 (Pa. Ct. Comm.

Pl., Centre County July 23, 1970) (Campbell, P.J.) (“the abortion

statute interferes with the individual’s private right to have or not

to have children.”) ; People v. Gwynne, No. 176601 (Calif. Mun. Ct.,

Orange County Aug. 13, 1970) (Schwab, J.) ; People v. Gwynne,

No. 173309 (Calif. Mun. Ct., Orange County June 16, 1970)

(Thomson, J.) ; People v. Barksdale, No. 33237C (Calif. Mun. Ct.,

Alameda County Mar. 24, 1970) (Foley, J.) ; People v. Robb, Nos.

149005 & 159061 (Calif. Mun. Ct., Orange County Jan. 9, 1970)

(Mast, J.) ; cf. United States v. Vuitch, 305 F. Supp. 1032 (D.D.C.

1969), ques. of juris. postponed to merits, 397 U.S. 1061, further

juris. questions propounded, 399 U.S. 923 (1970) ; United States

ex rel. Williams v. Follette, 313 F. Supp. 269, 272-73 (S.D.N.Y.

1970) (questions substantial, but habeas petitioner-physician re-

mitted to state courts).

2? See, e.g., Gwynne v. Hicks, Civ. No. 70-1088-CC (C.D. Calif.,

filed May 18, 1970); Arnold v. Sendak, IP 70-C-217 (S.D. Ind.,

filed Mar. 29, 1970) ; Corkey v. Edwards, Civ. No. 2665 (W.D.N.C.,

filed May 12, 1970) ; YWCA of Princeton v. Kugler, Civ. No. 264-70

(D.N.J., filed Mar. 5, 1970) ; Hall v. Lefkowitz, 305 F. Supp. 1030

(S.D.N.Y. 1969), dismissed as moot Op. No. 36936 (S.D.N.Y. July

1, 1970) (per curiam) (siatute repealed) ; Benson v. Johnson, Civ.

No. 70-226 (D. Ore., filed Aug. 4, 1970).

** Idlewild Bon Voyage Corp. v. Epstein, 370 U.S. 713, 715 (1962)

(per curiam).

22Tom C. Clark, Religion, Morality, and Abortion: A Constitu-

tional Appraisal, 2 Loyoua Univ. (L.A.) L. Rev. 1-11 (1969).

“Griswold’s act*® was to prevent formation of the fetus.

This, the Court found, was constitutionally protected.

If an individual may prevent conception, why can he

not nullify that conception when prevention fails?” *

To examine Justice Clark’s hypothetical question in the full

constitutional context, the Court should note probable juris-

diction in this case, and set the matter down for full briefing

and argument.

II,

Minn. Stat. Ann. §§617.18, -.19, Are Unconstitution-

ally Vague and Indefinite on Their Face, Because the

Statutory Language Provides Wholly Inadequate Warn-

ing to the Physician, Patient, Judge, or Jury of Which

Physical, Mental, or Social Conditions May Be Taken

Into Account When Assessing Necessity.

Point IT presents the substantial federal question whether

the Minnesota anti-abortion statutes are so vague and in-

definite as to deprive the Appellant of liberty without due

process of law.

Again, an examination of the statutes, decisions previ-

ously cited, and the medical literature will show that the

vagueness claim merits full review by this Court.

Not all abortions are criminal in Minnesota. An excep-

tion is made when an abortion is “necessary to preserve

[the patient’s] life....” Munn. Stat. Ann. $§617.18, -.19,

at 284, 286 (1964). The statute, however, is unclear in its

* Although it is a minor point, Griswold was the Executive Di-

rector of Planned Parenthood in the Griswold case. It was the

physician, the late Dr. Buxton of the Yale Medical School who had

examined the patients and prescribed contraceptive devices.

1 Clark, supra note 29, at 9.

application to common instances in which a patient requests

a physician to perform an abortion. Moreover, the vague-

ness is not such that could be remedied by state court

construction in one or two cases, because pregnant patients

often present complex reasons for abortion." These reasons

relate to the duration and quality of the patient’s life which

she asks to be preserved. They include consideration of

the physical and mental condition of the patient, as well

as related socio-economic reasons for abortion. It is a rare

case when a patient would face sudden death unless she

obtained an abortion immediately. However, she and her

husband may be unable to support further children, without

subjecting themselves to strains which in a matter of time

would ruin not only their physical and mental health, but

their marriage as well.

Ultimately, the preservation of a patient’s life is a matter

of degree. Dangers to her life lie along a wide spectrum,

from dangers on the one hand to the future quality of her

life, and on the other to her immediate survival. In be-

tween are the mine run of situations where pregnancy,

childbirth, and child-bearing may wreck a woman and

destroy her femily, or may do no more than require her

to bear a fo «th child, when she and her husband had

attempted unsuccessfully to limit family size to three off-

spring.”

**In the ninety-seven years since its initial enactment in 1873,

the Minnesota anti-abortion law has been left substantially un-

changed. Moreover, the numerous decisions by the Supreme Court

of Minnesota construing the statute have found little fault with

its language. One decision holds that the danger of the pregnant

woman’s death need not be “immediate.” State v. Hatch, 138 Minn.

137, 138, 164 N.W. 1017 (1917). However, the same case refused

to sanction an abortion where the patient was middle-aged, small

boned, anemic, and had a minor heart condition.

*3 This is not to minimize the seriousness of a State invasion of

the family unit which compels a married couple to bear and raise

The medical profession has no experience in applying the

provisions of felony statutes to the day-to-day practice of

their science. It is not an offense to perform an appen-

dectomy far in advance of rupture, and when only neces-

sary to prevent a risk that might never materialize. Gen-

eral malpractice principles, which take all circumstances

into account, govern the physician’s everyday practice, not

the criminal law. Nor is malpractice per se a cause for

license revocation, much less criminal prosecution, unless

80 serious, wanton, and reckless as to constitute criminal

negligence. Indeed, the physician’s professional role is

directed toward preserving a patient’s health, as that term

is used in its broadest sense:

“Health is a state of complete physical, mental and

social well-being and not merely thé absence of disease

or infirmity.

“The enjoyment of the highest attainable standard of

health is one of the fundamental rights of every human

being without distinction of race, religion, political

belief, economic or social condition.” *

It would require little argument to show that preservation

of “health” is too subtle a matter for the criminal law, with

four children, when the individuals would have preferred three. As

Justice Goldberg implied, concurring in Griswold, “totalitarian

limitation of family size,” particularly by way of increase, “is at

a variance with our constitutional concepts.” 381 U.S. at

**For example, Minnesota defines manslaughter in the second

degree to include acts of “eulpable negligence” which create an

unreasonable risk “of causing death or great bodily harm to an-

other. ...” 40 Minn. Stat. Ann. §609.205, at 288 (1964).

" Constitution of the World Health Organization, in. Basto

OF THE WoRLD HeauTH ORGANIZATION 1 (Geneva 1969

ed.).

its characteristic bluntness.** So too, is a blunt criminal

law standard which punishes all surgical procedures of a

particular variety which are not designed to preserve a

patient’s “life.”

This Court has repeatedly stated that “[v]ague laws in

any area suffer a constitutional infirmity,” * even though

of common law or earlier vintage.** Furthermore, statutes

which impinge upon sensitive human rights are to be more

closely scrutinized. “Precision of regulation must be the

touchstone in an area so closely touching our most precious

freedoms.” ® Griswold, it should be recalled, dealt with “a

right of privacy older than the Bill of Rights....” That

right is invoked once more in the present case.

Among the numerous lower court decisions which in-

validated state abortion laws akin to the Minnesota statute,

several have done so on the alternative ground that the

term, “necessary to preserve” the woman’s life, was un-

constitutionally vague. The conclusions of those courts

have been that neither pliysician, patient, judge, nor jury

1900) United States v. Vuitch, 305 F. Supp. 1032, 1034 (D.D.C.

“The jury’s acceptance or nonacceptance of an individual doc-

tor’s interpretation of the ambivalent and uncertain word

‘health’ should not determine whether he stands convicted of

a felony, facing ten years’ imprisonment.” .

8? Ashton v. Kentucky, 384 U.S. 195, 200 (1966) (common law

offense of “criminal libel” held void for uncertainty). See generally

Amsterdam, The Void for Vagueness Doctrine, 109 U. Pa. L. Rev.

67 (1960); Freund, The Use of Indefinite Terms in Statutes, 30

Yaure L.J. 437 (1921).

38 See United States v. Evans, 333 U.S. 483 (1948) (statute passed

in 1917) ; Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (1860 stat-

ute).

3° NAACP v. Button, 371 U.S. 415, 488 (1963).

* Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

ought to be forced to pass judgment based unon so little

guidance.

California v. Belous,“ United States v. Vuitch,” and Roe

v. Wade* all agree upon the analysis set out above. The

few contrary decisions conclude that similar statutes are

not too vague," but offer no guidance to the physician who

knows that such is not the case. Among the commentators,

Justice Clark was fast to note the dilemma of a physician:

“The increased number of abortions subjects physi-

cians to increased dangers of liability for incorrectly

interpreting a statute, It appears that doctors face

an uncertain fate when performing an abortion. This

uncertainty will continue unless the legislatures or

courts provide relief from liability.” *

Moreover, medical literature repeatedly reflects the di-

lemma of vague abortion laws, and the result that every

hospital, abortion committee, and physician has a different

understanding of the law.**

“71 Cal. 24 ——, ——, 458 P24 194, 197-99, 80 Cal. Rptr. 354.

357-59 (1969), cert. denied, 397 U.S. 915 ( 1970).

“* 305 F. Supp. 1032, 1034 (D.D.C. 1969).

°—— F, Supp. ——, Civ. No. 3-3690-B (N.D. Tex. June 17,

1970).

** See McCann v. Babbitz, 310 F. Supp. 293, 297-98 (E.D. Wis.

1970) (per curiam); Rosen v. Louisiana State Bd. of Medical

Examiners, —~— F. Supp. ——, Civ. No. 70-1304 (E.D. La. Aug.

7, 1970) (2-1 decision).

** Clark, supra note 29, at 7.

“° See, e.g., Tietze, Maternal Mortality Associated With Legal

Abortion, in Proceepines or THE FirtH INTERNATIONAL CONFER-

ENCE ON PLANNED PaRENTHOOD 24 (Oct. 1955) (Tokyo) :

“The application of these laws, however, varies greatly between

localities and between hospitals.”

(footnote continued on next page)

Accordingly, the questions raised by Point II are sub-

stantial, and require full briefing and argument before this

Court.

Hall, Abortion in American Hospitals, 57 Am. J. Pus. Heautu

1933, 1935 (1967) :

“Abortion practices vary not only from hospital to hospital but

also from service to service within the same hospital. They

also vary widely from doctor to doctor on the same service of

the same hospital.”

M. — (ed.), ABORTION IN THE Unirep States 34-35, 52

(1958) :

“[N]ecessity as a sine qua non of performing an abortion . . .

leaves the doctor’s } apy perilous and uncertain. * * * The

current laws provide no accurate criteria by which the doctor

can govern his actions.”

Guttmacher, Therapeutic Abortion: The Doctor’s Dilemma, 21 J.

Mr. Srvar Hosp. 111 (1954) :

“The doctor’s dilemma lies in the phrase ‘preserving the life of

the woman.’”

For a vivid illustration of the variations among hospitals in assess-

ing the legality of therapeutic abortion on a given set of facts,

see the questionnaire study and analysis of results in Packer &

vapors Therapeutic pve ig A Problem in Law and Medicine,

11 Sran. L. Rev. 417, 423 (1959). The study is discussed and

relied on in California v. Belous, 71 Cal. 2d ——, ——, 458 P.2d

194, 205 n. 14, 80 Cal. Rptr. 354, 365 n. 14 (1969).

It is not by chance that the ‘decisions in note 44, supra, which

rejected vagueness claims, neither discussed nor answered the con-

trary array of medical and legal authorities. The same authorities

were brought to the attention of the courts in both McCann and

Rosen, but ignored.

Ill.

The Supreme Court of Minnesota Should Have Granted

a Writ of Prohibition, Because the Facts Showed a Realis-

tic Danger of Immediate and Irreparable Injury to Im-

portant Federal Rights, and Defense of State Court

Prosecution Could Not Adequately Vindicate These

Rights.

The present case involves “a right of privacy older than

the Bill of Rights—older than our political parties... .” 47

It involves State disruption of “the traditional relation of

the family—a relation as old and as fundamental as our

entire civilization. ...”** Because of the sacred character

of these rights, pre-trial adjudication of the merits is par-

ticularly appropriate. Otherwise, exercise of the rights will

be delayed to the irreparable injury not only of Appellant

and her patients, but also of all those similarly situated.

As shown above, the state District Court decided the

federal constitutional questions adversely to Dr. Hodgson,

and an application for writ of prohibition was made to the

Supreme Court of Minnesota. The writ was denied (App.

A, at 2a). In a normal instance, this error could be cor-

rected by appeal after the criminal trial. The present case,

however, is exceptional in several respects.

First, an immediate decision by the Supreme Court of

Minnesota was essential at the earliest possible moment to

avoid the deterrent effect which inevitably followed the

state trial court’s unprecedented decision. For the first

*" Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

*® Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg,

J., concurring).

time in medical history, a prosecution had been brought

against a physician for performing a medically indicated

therapeutic abortion in a hospital, after thorough and ap-

propriate consultation with numerous professional col-

leagues. Other physicians could react to the trial court’s

decision in only one way, by sharply limiting the avail-

ability of therapeutic abortions until the case was finally

resolved. If Dr. Hodgson is correct, however, both physi-

cian and patient have federally protected rights to pri-

vacy in the abortion decision. Moreover, these rights are

on a particularly high plane in the constitutional constel-

lation. Delay, therefore, in the vindication of these rights

amounts to their denial, because of the limited time in early

pregnancy when a woman can safely obtain a therapeutic

abortion.

Second, delay in state appellate action on this case nec-

essarily entailed irreparable injury to Dr. Hodgson. Her

only defense has been the federal constitutional rights

guaranteed for her and her patients. There is no contest

to the fact that the abortion was done, and that it was

not necessary to preserve the life of Jane Doe. Dr. Hodg-

son readily admits a violation of state law, but asserts

that the state law itself violates the higher, federal law.

This contention, however, has already been rejected by the

trial court, and will invariably be rejected if an actual trial

takes place.*

The effect, therefore, of denying a writ of prohibition

was to remit Dr. Hodgson to the trial court for an inevi-

*° Not only did the state trial court refuse even to acknowledge

the existence of the numerous federal and state decisions to the

contrary, see nn. 21-26 and accompanying text, supra, but that

court showed inexcusable disregard for the important federal rights

in this case by declining to certify the questions to the Supreme

Court of Minnesota as “doubtful” (App. A, at 4a, 19a).

table verdict of guilty, followed by sentencing and auto-

matic revocation of her license to practice medicine. License

revocation is mandatory after an abortion conviction. 11

Minn. Star. Ann. §147.02(3), at 73-74 (Supp. 1970).

Minnesota has singled out the crime of abortion for spe-

cial treatment. Upon conviction, the State Board of Medi-

cal Examiners need not act; revocation flows automatically.

Accordingly, it is clear that there is no defense to the

charges at trial, and that the trial.itself will do great

damage to Dr. Hodgson. Moreover, greater damage will

be done by the delay which will occur before a further

opportunity is presented at the state appellate level to

vindicate the important federal rights at issue. Under

these circumstances, refusal of the writ of prohibition was

equivalent in most respects to an adverse decision on the

merits.

IV.

The Decision of the Supreme Court of Minnesota,

Denying a Writ of Prohibition, Was a “Final Judgment”

for the Purposes of Appeal to This Court. |

It remains to be shown that the judgment denying a writ

of prohibition was a “[f]inal judgment ... rendered by the

highest court of a State in which a decision could be had

..-.” 28 U.S.C. §1257 (1964 ed.).

In all respects which are pertinent, the judgment is final.

It finally decides that Appellant Dr. Jane Hodgson must

stand trial on criminal charges for having admittedly per-

formed a therapeutic abortion. Dr. Hodgson does not con-

test that the abortion was performed, nor that it violated

state law by being unnecessary to preserve Jane Doe’s life,

within the meaning of the statute. Already, the trial court

has decided that the Minnesota anti-abortion statute may

constitutionally be applied to Dr. Hodgson. No defenses

remain. The trial can be no more than a series of minis-

terial acts, followed by a directed verdict of guilty as

charged. A sentence of not more than four years must

follow, and with it automatic revocation of Dr. Hodgson’s

license to practice medicine.

A further appeal to the Supreme Court of Minnesota is

possible. Such an appeal, however, could not begin to undo

the irreparable injury to Dr. Hodgson and to the vital pub-

lic interests which will have been damaged in the interim.

The mere fact of a trial and conviction in this case will do

such grave and irreparable damage to the federal rights

involved, that a final judgment permitting such a trial is

appealable to this Court.

Avoidance of extraordinary irreparable injury is one

justification for treating the state judgment denying pro-

hibition as final. In the usual criminal case, denial of pro-

hibition affects no one but the accused, and leaves open the

possibility of acquittal at the trial. Here, conviction is a

foregone conclusion. Responsibility under state law is not

denied. Only the validity of that state law is in question.

In fact, at the time the application for prohibition was

made, the trial court had already sustained the constitu-

tional validity of the statute. Only the formality of con-

viction and sentencing remains before a possible appeal to

the Supreme Court of Minnesota. Nonetheless, that court

refused to consider the possibility that a decision by it

could protect the rights of those to be affected in the interim.

csmemtanmemmmene \ Urnaa N RLL ee IS ge oe f

The serious and irreparable injury in the interim delay

should not be overlooked. Efforts by married couples and

single women to obtain hospital therapeutic abortions are

by no means rare. Indeed, during the first two months

of New York’s recent change to privacy in this regard, over

18,000 abortions were recorded in New York City alone.”

Where abortion is not available in hospitals, these same

individuals will resort to back-street practitioners, mid-

wives, dangerous drugs, and self-abortion. If Appellant

is correct in asserting that couples have a constitutional

right to freedom from compelled continuation of pregnancy,

then vindication of that right should not be unduly delayed.

Justice delayed, under these circumstances, is truly justice

denied.

Considerations of judicial economy, echoed in the more

recent decisions by this Court on finality, justify immediate

review. The “roundabout process” of a futile trial “would

also result in a completely unnecessary waste of time and

energy in judicial systems already troubled by delays due

to congested dockets.” Mills v. Alabama, 384 U.S. 214, 217-

18 (1966). Appellant asserts a right not to be tried at all

under a statute unconstitutional on its face. If Appellant

is correct, a trial will be carried out in violation of the Con-

stitution. In particular, the privacy of Jane and John Doe

will be irretrievably invaded by the exposure of exceed-

ingly personal matters of family choice and planning to the

glare of publicity.

Madruga v. Superior Court, 346 U.S. 556 (1954), and

other cases support this conclusion. In Madruga, a state

trial court issued a preliminary determination that it had

jurisdiction over an admiralty claim. Defendants sought —

°° See N.Y. Times, Sept. 17, 1970, at 43, col. 3.

prohibition in the Supreme Court of California, claiming

that jurisdiction was exclusive in the federal forum. The

writ was denied, and an appeal to this Court under 28 U.S.C.

$1257 was held to lie, although no trial had taken place.

While Madruga challenged the basis of state court jurisdic-

tion in light of federal statutes, Appellant in the present

case claims more, that the federal Constitution deprives

the Minnesota trial courts of jurisdiction to proceed any

further. If Appellant is correct, a trial would be an exer-

cise of force, unsanctioned by the rule of law. As far as the

highest court of Minnesota is concerned, however, the trial

may proceed.

Also in line with Madruga are Mercantile Bank v. Lang-

deau, 871 U.S. 555 (1968), and Local No. 438 v. Curry, 371

U.S. 542 (1968), followed by Mr. Justice Goldberg as Cir-

cuit Justice in Rosenblatt v. American Cyanamid Co., 86

S. Ct. 1 (1965). The analysis by Justice Goldberg is par-

ticularly in point:

“Here, as in Curry, there has been: (1) a final assertion

of jurisdiction, with no further review of that issue

possible in the state courts; (2) a threat of serious

erosion of national policy [due process]; and (3) a

state judgment on an issue anterior to and separable

from the merits, and not enmeshed in the factual con-

troversies of the case. Langdeau held final a prelimi-

nary determination of venue which would have led to

a totally unnecessary trial, where the federal right as-

serted was precisely one not to stand trial at all... 7

86 S. Ct. at 3.

On each point the present case is the sarre. Here there

have been: (1) a final assertion of jurisdiction to proceed

with the trial, and no possibility of further review of that

issue in the state courts; (2) a threat of serious erosion of

national policy [federal constitutional rights of privacy];

and (3) a state judgment sustaining the facial validity of

the statute, an issue unrelated to the individualized cir-

cumstances of the case. Moreover, Dr. Hodgson asverts

the same right not to be tried as did Langdeau. To vindi.

cate that right, this Court should accept as “final” the

judgments in the State courts, and review this case on its

merits.

CONCLUSION

For the reasons set out in this Jurisdictional Statement,

the Court should note probable jurisdiction, and set the

case down for plenary consideration with briefs on the

merits and oral argument.

Respectfully submitted,

Roy Lucas

The James Madison Constitutional

Law Institute

Four Patchin Place

New York, N. Y. 10011

Stewart R. Perry

700 Northwestern Federal Building

Minneapolis, Minnesota 55403

Norman Dorsen

School of Law

New York University

Washington Square

New York, N. Y. 10003

Attorneys for Appellant

APPENDIX A: STATE PROCEEDINGS

Notice of Appeal to the Supreme Court of the United

States From the District Court, Second Judicial Dis-

trict, “.ounty of Ramsey, State of Minnesota, Filed Sep-

tember 14, 1970

DISTRICT COURT

STATE OF MINNESOTA

County or Ramsey—Seconp Jupicuan District

File No. 23789

State oF Minnesota,

Appellee,

vs.

Dr. Jane Exizasetn Hopeson,

Appellant.

1. Notice is herewith given that the above-named Ap-

pellant appeals the final judgment of the Minnesota Su-

preme Court entered July 20, 1970, denying an application

for a writ of prohibition.

2. This appeal is taken to the Supreme Court of the

United States pursuant to 28 U.S.C. §1257(2).

3. Appellant respectfully requests the Clerk of Ramsey

County District Court to prepare a certified copy of the

entire record herein, in the manner specified by Rule 12,

Rules of the Supreme Court of the United States, as re-

vised July 1, 1970, and to transmit said record to the Su-

preme Court of the United States for timely docketing of

this appeal.

Dated: September 14, 1970.

Order of the Supreme Court of Minnesota, Denying

Application for Writ of Prohibition,

Entered July 20, 1970

SUPREME COURT

STATE OF MINNESOTA

42652

Srate or MINNESOTA,

Respondent,

vs.

Dr. Jane E. Hopason,

Petitioner.

elie

ORDER

Ir 1s onverep that petitioner’s application for a writ of

prohibition dated July 17, 1970, as stated therein be, and

the same hereby is, denied.

Dated: July 20, 1970.

By tHe Court

Oscar R. Kwvutson

Chief Justice

Order of the District Court, Second Judicial District,

County of Ramsey, Denying Motion to Dismiss Indict-

ment Against Appellant Jane E. Hodgson, M.D.,

Entered June 29, 1970

DISTRICT COURT

STATE OF MINNESOTA

County or Ramsgey—Seconp JupiciaL District

File No. 23789

<< —

Strate or Minnesota,

Vs.

Dr. JANE ExizaBetH Hopason.

The defendant is accused by the grand jury of the

County of Ramsey in an indictment returned on May 21,

1970, of the crime of abortion, in that she, the defendant,

intentionally produced a miscarriage of one, Jane Doe,

which said miscarriage was not necessary to preserve the

life of the said Jane Doe nor the child with which she

was pregnant. The defendant’s first appearance in court

was on May 26, 1970, at which time she appeared with

her Counsel, Stewart R. Perry, and indicated to the Court

that her appearance was a special appearance for the

purpose of moving the Court for an order dismissing

the indictment for the reason and upon the ground that

the statute under which the indictment was returned was

unconstitutional. The date of June 12, 1970, was then set

as the time for hearing, and the requests to file briefs

by both the State and the defendant were granted by the

Court.

On June 12, 1970, the defendant, together with her

Counsel, appeared before the Court to argue the above de-

scribed motion. The County Attorney was represented by

Mr. Paul Lindholm, Assistant Ramsey County Attorney.

In the interim, briefs had been submitted by Mr. Perry

and by Mr. Stephen C. DeCoster, Assistant Ramsey County

Attorney.

Upon all of the files, records, and proceedings had and

filed in said matter, briefs and arguments of Counsel,

and after due consideration of the same,

It IS ORDERED:

1. That the motion brought by defendant to dismiss

the indictment returned against her in the above entitled

matter be and the same hereby is denied.

2. That the request of the defendant to certify the

above entitled matter to the Supreme Court of the State

of Minnesota as important and doubtful be and the same

hereby is denied.

3. That the defendant will appear before the Court on

August 5, 1970, prepared to proceed with her arraignment.

(Signature Mlegible)

Judge of the District Court

Dated June 29, 1970.

MEMORANDUM

The statute in question, MSA 617.18, was first enacted

into law by the Minnesota legislature in the year 1873.

As far as can be ascertained, this is the first constitu-

tivnal challenge of the statute, and the issues presented

in this motion have not been decided in this jurisdiction.

The Court has taken judicial notice of the materials cited

in the briefs, but they are of such common uuderstanding

that they need not be elaborated on here in great detail.

The undisputed facts appear to be that Jane Doe, a mar-

ried woman, of the age of 23 years, was a patient of the

defendant, and on April 14, 1970, was diagnosed as being

pregnant. From the medical history obtained, it was sus-

pected that Jane Doe had contracted rubella during the

first four weeks of her pregnancy, and that Jane Doe had

come to the defendant because she suspected that she had

rubella during that period of time. She was apprehensive

about her condition, particularly her unborn child, be-

cause of her knowledge of the dangerous propensities of

the disease. The history of rubella given by Jane Doe

was confirmed by clinical observations and laboratory

tests on two of her children who at that time had the

disease, the examination and tests being performed by a

pediatrician located in Minneapolis, Minnesota. Upon the

tests having been made, together with examinations in

connection therewith, the defendant was of the opinion

that Jane Doe had rubella during the first four weeks of

her pregnancy. Jane Doe and her husband were aware

of the danger to the fetus because of the contraction of

the disease and requested the defendant io perform an

abortion. The defendant believed in her medical judg-

ment that a therapeutic abortion was medically indicated,

and she secured consultations from other members of her

profession in the community and in other parts of the

United States, resulting in the performance of the abor-

tion in a hospital located in Ramsey County, Minnesota,

on April 29, 1970. At that time Jane Doe was about 12

weeks pregnant, and the fetus was not viable or “quick.”

Before proceeding with the operation, the defendant

brought a motion in the United States District Court,

District of Minnesota, seeking, essentially, the same relief

here presented. A three-judge court denied the motion of

the defendant and indicated that she seek her relief in the

courts of the State of Minnesota. Because of the lack of

time, the defendant proceeded with the operation, rather

than first seek her relief in the district courts of the State.

The issues presented cover three, general, broad areas.

First, whether or not the State has the right to interfere

with the private rights of an individual; two, if the State

does have such right, it must have an overriding and com-

pelling interest to justify any such interference with the

private life of an individual; and, three, if there is an over-

riding State interest present today that justifies the

existence of MSA 617.18, it is incumbent upon the State to

establish such interest.

The Court will touch upon the constitutional issues

raised by defendant as they pertain to these three general

areas.

Defendant contends that the statute infringes upon the

personal liberties of the individygl concerned, in that tt

interferes with a woman’s right of privacy in determining

whether she will or will not, or should or should not, allow

to grow within her body embryo which she does not wish

to grow, and that in order for the State to interfere, there

must be shown a reasonable basis, an overriding justifica-

tion, a social purpose of such interference. Defendant

further contends that at the time of its enactment, in the

year 1873, there was an urgent and well-founded health

basis for its passage. Any surgical intrusion into the body

| I eeeie a eaae

was, at that time, highly dangerous. Infection was almost

insured, and mortality was high. Defendant argues that to-

day an abortion performed under proper circumstances is

_ a reasonably safe procedure, even safer than normal child-

birth. No doubt these considerations were in the mind of

our legislators almost a century ago when the law was first

enacted. However, the statute has been periodically recon-

sidered over the years, most recently at the last legislative

session. Whatever the dangers of surgery the legislators

might have had in mind during the early years of the history

of this law, those considerations have seemed [sic] to have

disappeared during recent years, and the law is still on the

books. The reason for its existence is not because of

dangers of surgery or performing an abortion, medically

speaking. Some considerations for the continued existence

of the law are hereinafter discussed.

Defendant places great emphasis on the fact that the

State of Minnesota has never considered an embryo or

fetus as a “human being.” Defendant further contends that

the statute in question denies the rights of the Father or

the Mother of the aborted foetus to privacy in contraven-

tion of the Ninth and Fourteenth Amendments to the United

States Constitution. There is authority to the effect that

the unborn child, even before it becomes viable, is an entity

which the legislature is empowered to protect. In early

recorded history, the child in the Mother’s womb was con-

sidered a part of its Mother. Reference is made to Roman

law, see Justinian, Digest 25.4.1.1. But since that early date

we have seen the development of scientific methods to such

an extent that the ancient law has been reconsidered, and

no longer is the fetus considered to be a plant, static in

habit, and growing only in size. Through the marvels of

closed-circuit x ray and television, scientific observations of

this little human being during his first weeks of existence

have been made possible. Studies of mental growth have

been made possible, during the first few weeks of the child’s

existence. Some studies have indicated that even in the

limb bud stage, when the embryo is only four weeks old,

there is evidence of behavior pattern: the heart beats. In

two or more weeks, slow back and forth movements of the

arms and legs appear. Before the 12th week of uterine life,

the fingers flex in reflex graphs. From the studies of certain

_ child psychologists, it has been disclosed that the process

of mental development which characterizes a 10-year old

child or the one-year old child also characterizes the embryo

who might be only one month old. Hence, it would appear

that the time has been reached when society must discard

the theory advanced by the old Roman law, that a parent

has an absolute dominion over his offspring, or a return to

the ancient notion that a fetus is “part” of his Mother. The

Minnesota legislature has made no such distinction, nor has

it attempted to set out by law at what stage during preg-

nancy a child may be considered “quick” or “viable” nor

has it at anytime determined at what stage during preg-

nancy the life of a child can or could be taken for any

reason or means. Rather, the legislature has decreed that

a miscarriage shall not be caused at anytime during

pregnancy unless the same is effected as necessary to

preserve the life of the Mother or the life of the child. The

State has an interest in the continued existence of every

life.

Defendant contends that unless the fetus in question is

“quick” or viable, the unborn child has no legal rights in the

State of Minnesota. The rights of the unborn child are

specifically recognized by Minnesota law in its various

fields, such as: intestate succession; testate successions;

trusts and uses; workmen’s compensation; paternity and

support; land registration; and future interests in real

property. Various quotations make reference to “unborn

child” and “posthumous child,” “lives in being,” “twenty-

one years and nine months,” but the law is entirely lacking

with respect to definitions of “quick child” or “viable child.”

The Court recognizes there are rules and regulations

promulgated by the State Department of Health pursuant

to MSA 144.151 (4) to the effect that destroying a fetus is

not considered a fetal death if aborted for any reason less

than 20 weeks after conception. See Registration Manual

for Birth and Fetal Death, State Board of Health (1965),

Section 5, page 14. However, such regulations and publica-

tions are not considered decisive case law, nor are they

controlling in the instant matter. Turning our attention to

the field of tort law, the first time that the Minnesota State

Supreme Court was called upon to pass upon the issue of

the right of the heirs of an unborn child to recover in a

wrongful death action was in 1949. See Berkenes vs.

Corniea (1949) 229 Minn. 365, 38 N.W. (2) 838. It is noted

that the Court, in part of its opinion, quoted Blackstone as

follows:

“The right of personal security consists in a person’s

legal and uninterrupted enjoyment of his life, his

limbs, his body, his health and his reputation. Life is

the immediate gift of God—a right inherent by nature

in every individual; and it begins, in contemplation of

law, as soon as an infant is able to stir in the Mother’s

womb.”

The Court further quotes the case of Bonbrest vs. Kotz

(D.C.) 65 Fed. Supp. 138:

10a

“From the viewpoint of the civil law and the law of

property, a child en bentra [sic] sa mere is not only

regarded as a human being, but as much [sic] from the

moment of conception—which it is in fact.”

While it is true that the child in the Berkenes case had

reached a viable state, it is noted that the Court made no

distinction between a viable or nonviable child, that is, it

does not appear that had the child not been viable, recovery

would have been denied. There is substantial authority in

other jurisdictions which allow recovery for prenatal

injuries to nonviable, unborn children. There appears to

be no holding or decision to the effect that would allow a

shifting of standards in certain cases. There appears to be

no reason to allow a distinction to be made, based upon age

of the child within the womb. The dean of tort law, Pro-

fessor Prosser, states at Section 56:

“Certainly the infant may be no less injured, and all

logic is in favor of ignoring the stage at which it

occurs.”

If the State legislature has seen fit to give the right of

recovery to an unborn child or his heirs at various stages

during pregnancy in the civil field, why should the child be

abandoned at certain stages of pregnancy in the criminal

field? If the unborn child at age 12 weeks within the womb

has vested rights or the right in certain instances to

recover, as hereinabove set forth and described, why should

any person be deemed competent to judge that the child’s

twelve-week life may be taken because of the wishes of its

Mother or Father, or because it is unwanted, or because of

the possibility of its being deformed or handicapped because

lla

of exposure to certain diseases during the early stages of

lifet Defendant would ask this Court to so legislate,

contrary to what has taken place in the halls of our legis-

lature for generations past. For the reasons hereinafter

enumerated, this Court does not so choose to do.

Defendant alleges that the statute in question, MSA

617.18, today is based on the concept of “morality and

decency” arising from religious laws in violation of the

First Amendment to the United States Constitution. Defen-

dant then points out that these individuals who rely on the

position of morality and decency overlook the end results

where abortion is not allowed. That is to say, they overlook

those children who are being born with gross defects, who

must live with them day by day, while those who would

preach morality and decency are prompted by it only on

occasions where their attention is drawn to what someone

else is doing. Defendant further points out that these

people overlook the institutions in Minnesota filled with

mentally retarded people whose life is tragic, and that they

overlook the daily pain that the parents and siblings of

such children live, day by day. They further overlook the

unwanted children in institutions and overlook the children

who are periodically in hospitals with the “battered child

syndrome.” Defendant contends that it is immoral and

indecent not to prevent this, and that it is immoral and

indecent to force these institutions to exist.

Where the statute involved deals with conduct which the

State has valid grounds to prohibit, that is, the taking of

the life of an unborn child, the fact that its policies coincide

with the views of certain religious groups is without con-

stitutional significance. It is almost inevitable that any

position taken by the State through its legislature on the

12a

subject of abortion must correspond with the religious or

moral views of some group or groups within the community.

In passing such a law, the legislature did not intend that it

establish a religion in contravention of the First and Four-

teenth Amendments to the United States Constitution. This

subject has been the concern of philosophers and theo-

logians since recorded history has begun. The relationship

between religion, morality, and law, perhaps, is difficult to

clearly define. However, history teaches that they do over-

lap in the subjects of their concern. An historical study of

the works of our legislative bodies will clearly indicate that

many men in their respective roles as legislators were

committed to the proposition that the ultimate source of

law is from the ultimate Lawgiver Himself. Many have

clearly indicated that a just law binds one’s conscience, and

if a law does not bind one in conscience, it should not be

law. There are numerous references in the Old Testament

as to the source of our law, among which are tle Book of

Proverbs, Chapter 8, and Exodus, Chapter 24. Five thou-

sand years ago Hammurabi recognized a supernatural

source of authority, and the same reference is also made

to Solon, the great leader of freedom-loving Greeks. It

seems that down through the centuries, men have further

recognized the authority for law and-eould keep those

convictions alive in various forms in the halls of their

legislatures. Seven hundred years ago Henry Bracton

wrote: :

“The king is under God and the law. When the king or

dictator or the State is held above God and the law,

liberty is never secure, and the rights of man are mere

franchises subject to the whims of other men.”

13a

In more modern times these same thoughts might have

inspired our great leaders, such as Thomas J efferson, when

he wrote:

“We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator

with certain inalienable rights, that among these are

life, liberty, and the pursuit of happiness.”

Society would reach a strange position in its history if

the legislatures of the several states were forbidden from

making illegal that which is also immoral according to

one’s religion, or, indeed, all religions, on the grounds of

the establishment clause of the First Amendment. Under

such restrictions society might then return to a state of

chaos, even barbarianism. The Court recognizes the sincere

views of the defendant in this field, and the remarks

hereinabove set forth are not in criticism or ridicule of

those views or beliefs. The Court is also cognizant of the

views of the minority in our various communities who have

views which coincide with those of the defendant in this

area. However, to give effect to those views of the defen-

dant or the minority, the Court again is called upon to

legislate, and for the reasons hereinafter set forth, the

Court will not undertake such a responsibility. The Court

is also not unmindful of the anxiety of the Mother in this

case. Having been exposed to German measles, she was

apprehensive of the possibility of bearing or giving birth

to a deformed or handicapped child. Instead of agreeing

to take the child’s life because of this possible exposure,

might she not have at least better yielded to the argument

of a segment of our society who would state:

14a

“Tet the child run its normal period of gestation, and

upon birth if it is found that the child will be a burden

to its parents or society, then provisions may be taken

for its destruction.”

The very thought of such argument, perhaps, appears

abhorrent to responsible members of our community, but

wherein lies the difference? At what stage in the course

of human existence, or development, can it be decreed that

life should be taken because of the potential inability to

perform as normal persons are expected? Society is in-

creasingly concerned with those who have been blessed

with healthy bodies, and prefer io serve themselves, and

blame society, rather than serve society and honor them-

selves. Society has never forgotten, nor should it ever

forget, that men and women with withered limbs and bodies

became outstanding citizens, leaders in their communities,

but above all, masters of themselves, while other healthy,

vigorous, intelligent individuals, warped within the philoso-

phy of excuse, for one reason or another, have become

instruments of their own damnation.

Defendant asserts that the statute in question interferes

with the right of privacy of women in violation of the Ninth

Amendment to the United States Constitution. The Court

agrees that legislation of this type might and can inter-

fere with the right of privacy of certain individuals. This

is true with many of the laws of today. A simple illustra-

tion concerns the matters of traffic regulations involving

the v-e of a motor vehicle upon the highway. Many such

rules and regulations or statutes interfere with the manner

in which a perscn might desire to operate a motor vehicle,

but in the protection of life and property, legislative safe-

guards have been provided, many of which interfere daily

15a

with the rights of individuals. The same problem exists

with many other types of legislation. For instance, there

are still on the books laws against adultery and fornication,

and how intoxicants and narcotics shall be used. These

laws are considered by a substantial minority to be archaic

in design, and no longer serve a useful purpose in a modern

and developing society. However, it is clearly noted that

our legislature over the years has not yielded to such argu-

ments and philosophies. This Court does not agree that

the statute in question relative to abortion is in violation

of the Ninth Amendment of the Constitution of the United

States.

Defendant asserts that the statute in question interferes

with the right of a medical doctor to practice medicine in

the highest standards thereof in violation of the Fourteenth

Amendment to the United States Constitution. The Court

agrees that the right to pursue one’s profession is a con-

stitutionally protected right within the concept of “liberty”

and “property.” However, it is also noted that medical

opinion is divided as to the situations under which a thera-

peutic abortion is medically indicated. If the State cannot

constitutionally regulate the exercise of that judgment,

legislators and courts alike would be superfluous, sup-

planted by a wise elite of doctors. In a democratic society,

trust cannot be placed with a body of experts to determine

issues of life and death, however qualified, well-motivated, .

and devoted the experts may be.

Defendant further contends that the statute delegates

to the physician the duty and risk of deciding whether the

abortion is necessary to preserve the life of the. Mother

or child and thus violates the Fifth and Fourteenth Amend-

ments to the United States Constitution. Defendant points

out the difficulty here is that the doctor must decide

16a

whether or not the abortion is necessary to preserve the

life of the patient, and she apparently has difficulty inter-

preting the word “preserve.” Defendant aileges that it is

incumbent upon her to make the right decision as to

whether or not an abortion is necessary to preserve the

life and is thus placed in a conflict of interests; that is,

caught between the decision to do the abortion and the fear

that if something should go wrong, the matter would be

brought to the attention of the police. Thereafter, the doc-

tor must then justify her opinion at a trial. Hence, she

jeopardizes her practice and runs the risk of prosecution

whenever the decision is made to perform an abortion,

where there is any question that medical opinion could

differ as to whether or not the operation was necessary

to preserve the life of the Mother or the child. This Court,

upon examination of the statute, is not persuaded that the

words are indefinite or vague. In the Court’s opinion, the

word “necessary” and the expression “to preserve the life

of the Mother” are both reasonably comprehensible in

their meaning. The United States Supreme Court has ruled

that a criminal statute must be definite enough to acquaint

those who are subject to it with the conduct which will

render them liable to its penalties. See Laneetta vs. New

Jersey, 306 U.S. 451, 59 S. Ct. 618, 83/L. PB. [sic] 888

(1939). And also see Connolly [sic] vs. General Construc-

tion Company, 68 [sic] U.S. 385, 46 S. Ct. 126, 17 L. PB.

[sic] 322 (1926). This Court is of the opinion that the stat-

ute sets forth with reasonable clarity and sufficient particu-

larity the kind of conduct which will constitute a violation.

It is interesting to note that the defendant challenges the

words “necessary to preserve her life” as being vague. The

Court is not unminéful that the dedicated medical profes-

17a

sion assumes this responsibility without hesitation almost

daily in its various practices. It is deeply interesting to

note that the statute in question has been law for a period

of almost 100 years, and until the present time no one has

challenged the provisions of the statute as being indefinite

or vague. The Court cannot agree with the defendant that

the statute involves a delegation of legislative responsi-

bility. The legislature has simply set a certain standard,

and that is, that no abortion shall be carried out unless

necessary to preserve the life of the Mother, and then

requires that the individual condition his or or her conduct

on a respect for the standard as set. It would appear that

the requirements laid out are no more burdensome than

those which are established by any criminal law. Such a

requirement placed upon the individual is, in no sense, a

delegation of legislative responsibility.

The State contends that there are valid policy reasons

underlying the statute in question; therefore, the doctrine

of separation of legislative and judicial functions and the

long-settled judicial rule of reticence in substituting the

Court’s own notions of legislative wisdom for that of a

democratically elected legislature dictate that the chal.

lenged statute be sustained. The question of the validity

of anti-abortion legislation is not the only issue of im-

portance here. The issue of separation of legislative and

judicial functions is as well involved. Even though a court

may go so far as to opine that a particular statute in ques-

tion be unwise, silly, or even asinine, if it has been demon-

strated that the statute in question is reasonably tailored

to the protection of societal interests with respect to which

the legislature is entitled to act, then such act should not

be torn down by a court who differs in opinion, philo-

sophically or socially. This does not mean that there are

18a

not policy grounds for a change in abortion laws which

were ably stated in defendant’s brief and exhibits. What

it does mean is that these arguments are more properly

addressed to the legislature of this State, and ultimately

to its people. This Court is asked to balance the rights of

an unborn child against the rights of the Mother, contrary

to what the legislature has so consistently stated. Whose

rights shall transcend? Who shall balance the relevant

interests? This Court is of the opinion tuat the problem

of balancing is more properly the function of the legislature

and of the people of the respective states. In the case of

Commonwealth vs. Brunell [sic], not yet reported, the

Court stated:

“The subject of abortion has become one of the most

controversial social and legal issues of our contempo-

rary society. Reasonable arguuents have been ad-

vanced both in favor of and against abortion. But

when a question is fairly debatable, the courts cannot

substitute their judgment on it for that of the legis-

lature.” Citing Druzik vs. Board of Health of Aber-

hill, 324 Mass. 129. “It is only when a legislative de-

termination cannot be supported upon any rational

basis of fact that a court can strike it down. If the law

on abortion is not as responsive to felt needs as the

people believe contemporary life demands, the remedy

rests with a democratically elected legislature and not

with the court.”

Defendant requests the Court that the statute in question

be found constitutional but to then certify the matter to

the Supreme Court of the State of Minnesota pursuant to

MSA 632.10 for a determination of the constitutionality of

19a

the statute prior to trial. This would obviate the necessity

of raising the defense that she might have, relative to a

verdict of innocence or guilt, and would at the same time

give statewide effect to the ruling on constitutionality. If

the Court in the local instance should find the statute un-

constitutional, that ends the matter, and there would be

no statewide effect of that local decision. Defendant also

points out to the Court that a conviction, including a plea

of guilty, would be most serious and would place her pro-

fessional standing in jeopardy. She feels that if the matter

should go to trial at the local level without a Supreme

Court determination as to constitutionality, then her whole

plan becomes moot inasmuch as she will be put to the task

of defending herself against the charge brought by the

grand jury, and if she is successful at the trial on the

merits, again, the matter would not have any statewide

impact.

In the light of the foregoing observations and conclusions

drawn by the Court, it is obvious that the matter cannot

be certified to the Supreme Court of the State of Minnesota,

as important and doubtful. The Court believes that the

issue or matter is important, but in this Court’s opinion

the constitutionality of the act in question is not in doubt.

Under the circumstances, the Court has no alternative but

to order that this matter proceed pursuant to the ordinary

rules and processes of our criminal procedures.

The Court is not unmindful of the standing of the defen-

dant in her community, her reputation as a citizen and as

a dedicated physician and surgeon, and the Court is not

unmindful of the serious position that she is in pursuant

to the charge brought against her. However, it is she who

chose to violate the law, and she certainly must have been

cognizant of the consequences that might follow. In the

20a

opinion of some of her professional colleagues as well as

many in this community she will be considered as a very

courageous and dedicated person in choosing the course of

conduct that she did. Conversely, there will be ether mem-

bers of her profession and members of our community

who do not and will not agree with her. Unfortunately,

this Court cannot be a part of any plan or procedure other

than those duly provided by law. No exception can be

made in any ease, even though a court might be in sym-

pathy with the actions taken by the defendant.

The regular and ordinary criminal procedure processes

established by law and within this Court’s responsibility,

require that the defendant be ordered to appear for her

arraignment, which has been set for August 5th, next.

Defendant will then have to decide whether to bring the

matter on for trial relative to the issue of her innocence

or guilt of the crime as charged or to enter a plea of guilty,

and rest her future standing in the hope that the Supreme

Court of the State will take a contrary view to that ex-

pressed herein.

Hackey, J.

21a

Indictment by Grand Jury, Filed May 21, 1970

STATE OF MINNESOTA

COUNTY OF RAMSEY

In tHe Distrricr Court

Seconn Jupician District

<i —

Tue Strate or Minnesora

Vs.

Dr. Jane EnizapetH Hopasor

—<f>—

Dr. Jane ExvizapetnH Hovesow is accused by the Grand

Jury of the County of Ramsey, by this Indictment, of the

crime of Abortion committed as follows:

The said Dr. Janz ExizapetH Hoposon on or about the

29th day of April A.D. 1970, at the City of Saint Paul in .

said County, then and there being, did wrongfully and

unlawfully use the means of a vacuum suction curettage

upon a woman, to-w.c: Jane Dor, with the intent then and

there had and entertained by her, the said Dr. Jawe 12za-

BETH Hopgson, to produce the miscarriage of the said Jane

Doe, and the said miscarriage was not necessary to pre-

serve the life of the said Jane Doe or the child with which

she was then and there pregnant, contrary to the form of

the Statute in such cases made and provided, the same

being M.S.A. 617.18 (2)—Abortion,

and against the peace and dignity of the State of Minnesota.

Dated at the City of Saint Paul, in the County of Ramsey

and State of Minnesota, this 2ist day of May 1970.

Hy Applebaum

Foreman of Grand Jury

22a

APPENDIX B: FEDERAL PROCEEDINGS

Notice of Appeal to the Supreme Court of the United

States From the United States District Court for the

District of Minnesota, Filed July 23, 1970

UNITED STATES DISTRICT COURT

District oF MINNESOTA

Txuirp Division

3-70 Civ. 97

—

Joun Dos and Jane Dor, Jane E. Hopeson, M.D., Mmprep

Hanson, M.D., Frep A. Lyon, M.D., and E. J. Dreren-

BacH, M.D.,

Plaintiffs,

Vs.

Wru1am Ranpati, Ramsey County Attorney, and Dovuctas

Heap, Attorney General of Minnesota, and Harotp Dre

Vanver, Governor of Minnesota,

Defendants.

NoTICE IS HEREBY GIVEN that the plaintiffs above-named

hereby appeal to the United States Supreme Court, pur-

suant to 28 U.S.C.A. § 1253 from the Order Denying Peti-

tion for Rehearing, entered July 1, 1970, said Order relat-

ing to the Order of Dismissal entered May 19, 1970, and

from the whole thereof and from the judgments entered

pursuant thereto.

23a

Order of the United States District Court, Denying

a Stay, Entered September 1, 1970

UNITED STATES DISTRICT COURT

District or MINNESOTA

Tump Drvision

3-70-Civ-97

—<j—

Joun Dor and Jane Doz, Janz E. Hopeson, M.D., Mitprep

Hanson, M.D., Frep A. Lyon, M.D., and E. J. Dieren-

BACH, M.D.,

Plaintiffs,

VS.

Wiuiam Ranpati, Ramsey County Attorney, and Dovazas

Heap, Attorney General of Minnesota, and Harotp Le

Vanver, Governor of Minnesota,

Defendants.

—<@—

Stewart R. Perry, Minneapolis, Minnesota, attorney for

plaintiffs. ,

Wuu1am Ranpatt, St. Paul, Minnesota, appeared pro se.

Joun Kenerick, Assistant Attorney General, St. Paul, Min-

nesota, attorney for Douglas Head and Harold LeVan-

der.

LawkENCE J. Hayes, Louis Brenner, and Donatp D. Woz-

nak, St. Paul, Minnesota, attorneys for petitioning in-

tervenors.

24a

Vocex, Senior Circuit Judge, Devitt, Chief District Judge,

and NEvitLg, District Judge.

Plaintiffs’ “Petition to Stay State Court Proceedings

Pending Appeal to United States Supreme Court” filed July

28, 1970, is, on the basis of the files and records herein,

DENIED.

Dated: September 1, 1970.

By the Court:

Epwarp J. Devitt

25a

Judgment of the United States District Court, Denying

Petition for Rehearing, Entered July 1, 1970

UNITED STATES DISTRICT COURT

District OF MINNESOTA

Tarp Division

No. 3-70-97 Civil

Joun Dor and Jane Dor, Jane EF. Hopeson, M.D., Mriprep

Hanson, M.D., Frep A. Lyon, M.D., and E. J. Dieren-

BACH, M.D.,

Plaintiffs,

vs.

Witu1am Ranpaut, Ramsey County Attorney, and Dovetas

Heap, Attorney General of Minnesota, and Harotp Lr

Vanver, Governor of Minnesota,

Defendants.

eli

You ARE HEREBY NOTIFIED that in the above entitled cause

on the 1st day of July, 1970, we filed and entered Order

Denying Petition for Rehearing.

Frank A. Massey, Clerk

By Metopre D. Hicxerson

Deputy Clerk

To:

Stewart R. Perry

700 NW Federal Building

Minneapolis, Minnesota 55403

Attorney for Plaintiff

26a

Douglas M. Head, Attorney General

Richard Kyle, Solicitor Gen.

John R. Kenefick, Spec. Asst.

160 State Office Bldg.

St. Paul, Minnesota 55101

Attorney for Defendant: Head & LeVander

William Randall, Ramsey County

Attorney, City Hall

St. Paul, Minnesota

Attorney jor Defendant: William Randall

Note: If an appeal is contemplated, the Rules of the United

States Court of Appeals and “Suggestions to Attorneys

Concerning Appellate Rules & Practice” can be procured

from the Clerk, United States Court of Appeals, U. S. Court

House and Customs House, St. Louis, Missouri.

27a

Order and Opinion of the United States District Court,

Denying Petition for Rehearing, Entered July 1, 1970

UNITED STATES DISTRICT COURT

District or Minnesota

Turrp Division

3-70-Civ-97

—~<f—

JoHN Dok and Jane Dor, Jane FE. Hopeson, M.D., Mitprep

Hanson, M.D., Frev A. Lyon, M.D., and E. J. Dieren-

BACH, M.D.,

Plaintiffs,

vs.

Wiu1am Ranpati, Ramsey County Attorney, and Dovatas

Heap, Attorney General of Minnesota, and Harotp LE

Vanber, Governor of Minnesota,

Defendants.

—~———

VocEL, Senior Circuit Judge, Devitt, Chief District Judge,

and Nevitie, District Judge.

Per Curiam.

We dismissed this case on May 19, 1970.

Plaintiffs petition for rehearing.

It is made to appear, by affidavit of plaintiffs’ counsel,

that a state court indictment has now been returned against

plaintiff Jane E. Hodgson charging a violation of the Anti-

Abortion Law. It is urged that these changed circumstances

merit the granting of a rehearing.

We believe it inappropriate to grant a petition for re-

hearing upon events which have transpired since dismissal

of the action. It well may be that the return of the indict-

28a

ment will support a new and different cause of action, but

it does not furnish the basis for a rehearing of the action

previously dismissed.

But regardless of this, we do not believe we should grant

the rehearing. It appears that, as the result of the return

of the indictment, the constitutionality of the Minnesota

Anti-Abortion Law now has been put in issue before the

Rams. y County State District Court. Arguments have been

made and the issue awaits decision. An appeal to the

Minnesota Supreme Court is contemplated.

The law specially -idigenagtg our issuing an injunction in

these cireumstances, 28 U.S.C. §2283; and this prohibition

cannot be avoided by the meh of a declaratory judgment

because the same principles of comity and federalism per-.

tain. Brooks v. Briley, 274 F. Supp. 538, 553 (M.D. Tenn.

1967) (a decision cf a three-judge court), aff’d per curiam,

391 U.S. 361, 88 S.Ct. 1671 (1968). See also McLucas v.

Palmer, 38 U.S.L.W. 2665 (2d Cir. May 2, 1970).

The United States Supreme Court has counselled us

that—

“Proceedings in the state courts should normally be al-

lowed to continue unimpaired by intervention of the

lower federal courts, with relief from error, if any,

through the state appellate courts and ultimately to

this court.”

Atlantic Coast Line RR Co. v. Brotherhood of

Locomotive Engineers, 477, October Term, 1969

(U.S., June 8, 1970).

This very recent decision re-emphasizes the settled fed-

eral practice of maintaining a hands-off policy as to pend- .

ing state court proceedings.

—_— errr

29a

The petition for rehearing is

DENIED.

Dated: July 1, 1970.

Cuartes J. Voce,

Senior Circuit Judge

Epwarp J. Devirr

Chief District Judge

Pump Nevitie

District Judge

VoceL, Senior Circuit Judge (concurring separately) :

I agree with the court’s present opinion. I am, however,

compelled to add a word to make clear my prior dissent

when this case was dismissed. Once an indictment is re-

turned, I feel the statutory mandate of 28 U.S.C.A. § 2283

and the principles of comity require a federal court to ab-

stain. A court of competent jurisdiction then has control

of the controversy. In such cases, I believe our jurisdiction

is limited only to bad faith prosecutions directly affecting

the exercise of First Amendment freedoms. Cameron vy.

Johnson, 1968, 390 U.S. 611; Dombrowski v. Pfister, 1965,

380 U.S. 479. The recent pronouncement of the Supreme

Court lends credence to this view. See Atlantic Coastline

v. Engineers, No, 477 —— U.S. ——, June 8, 1970. More-

over, as a practical matter, once a state court has taken

jurisdiction of a constitutional issue fully litigated before

it, I have grave doubts that a Three-Judge Court may ever

take the case without forcing plaintiff to waive his consti-

30a

tutional claims in the state courts. See England v. Medical

Examiners, 1964, 375 U.S. 411.

Prior to indictn.ent, however, I believe the federal court

is allotted more leeway to intervene. So long as the plain-

tiff alleges violations of federal rights coupled with irrepa-

rable harm, I see no reason to stay our hand when the state

law is clear and unambiguous. See Harmon v. Forssenius,

1965, 380 U.S. 528; Davis v. Mann, 1964, 377 U.S. 678, 690;

U. 8. Steel Workers v. Bagwell, 4 Cir., 1967, 383 F.2d 492,

495.

With these reservations and explanations, I fully concur

in the present result.

3la

Judgment of the United States District Court, Denying

Declaratory Judgment and Injunction, and Dismissing

Complaint, Entered May 19, 1970

UNITED STATES DISTRICT COURT

District oF MINNESOTA

TxHirp Division

No. 3-70-97 Civil

—»—

JANE Dog, e¢ al.,

Plaintiffs,

vs.

Wru1am RanDA.., etc., et al.,

Defendants.

You ARE HEREBY NOTIFIED that in the above entitled cause

on the 19 day of May, 1970, we filed the Court’s Oider of

Dismissal, and entered judgment pursuant thereto.

Frank A. Massey, Clerk

By Lawrence R. Tapper

Deputy Clerk

To:

Stewart R. Perry

700 Northwestern Federal Bldg.

Minneapolis, Minn. 55403

Attorney for pitfs.

32a

Douglas M. Head, Attorney General

(Richard Kyle; John R. Kenefick)

160 State Office Bldg.

St. Paul, Minn. 55101

Attorney for defts. LeVander and Head

William Randall

Ramsey County Attorney

Ramsey County Courthouse

St. Paul, Minn. 55102

Aitorney for deft. Randall

Note: If an appeal is contemplated, the Rules of the United

States Court of Appeals and “Suggestions to Attorneys

Concerning Appellate Rules & Practice” can be procured

from the Clerk, United States Court of Appeals, U. S. Court

House and Customs House, St. Louis, Missouri.

33a

Order and Opinion of the United States District Court,

Denying Declaratory Judgment and Injunction, and

Dismissing Complaint, Entered May 19, 1970

UNITED STATES DISTRICT COURT

District or MINNESOTA

Tuirp Division

3-70-Civ-97

—>_

JoHn Dor and Jane Dor, Jane E. Hopeson, M.D., et als.,

Plaintiffs,

vs.

Wituiam Ranvatt, Ramsey County Attorney, and Doveuas

Heap, Attorney General of Minnesota, and Harotp Lr

Vanv:R, Governor of Minnesota,

Defendants.

—<j—

VocEL, Senior Circuit Judge, Devitt, Chief District Judge,

and Nevitiez, District Judge.

Devitt, Chief Judge. In this action for a declaration of

unconstitutionality of the Minnesota Anti-Abortion Stat-

utes, M.S.A. 617.18 and 617.19, and for an injunction against

their enforcement, the defendants move for dismissal.

Plaintiff Jane E. Hodgson, a medical doctor, performed

an abortion upon plaintiff Jane Doe (a fictitious name),

then about 12 weeks pregnant, in St. Paul, Minnesota on

~~ April 29, 1970." It is alleged that Jane Doe was exposed to

1 This appears from an amended and supplemental complaint of

plaintiffs. The Court allows its filing. The original complaint,

challenging the unconstitutionality of the Anti-Abortion Statutes,

was filed on April 16, 1970, before the abortion was performed.

34a

rubella (German mensles) during pregnaney, and that such

exposure erented a substantial probability of foetal de-

formity to the expeeted child.

Minnesota law makes it a erime to oceasion an abortion

or to submit to an abortion except it be necessary to pre-

serve the life of the mother or ehild. M.S.A. 617.18, 617.19.

Piaintif? John Doe (a fietitions name) is the husband of

Jane Doe. The other three plaintiffs are medical doctors.

Defendant William Randall is he State prosecuting offi-

eer of Ramsey County, within whieh the City of St. Paul

is lated. It is his duty to proseeute violations of the state

eriminal laws. The Governor and Attorney General of

Minnesota are also named defendants.

Pour medieal doctors practicing their profession in

Minnesota, Fred KE. Mecklenburg, Paul H. Andreini, Alex

Barno and John MeWKelvey, seek to intervene in support of

the econstitutionality of the Anti-Abortion statutes.

Several motions pend. We first consider defendants’ mo-

tion to dismiss,

Two major objections are urged by the State of Minne-

sota and its officers to our entertaining this action. First,

it is urged that it is improper for the Federal Court to act

in this state criminal matter, and that we should therefore

apply the doctrine of abstention. Secondly, it is urged that

there is an absence of the required “case or controversy”

under the United States Constitution and of a “justiciable

controversy.” under the Declaratory Judgments Law.

Federal policy is opposed to Federal intervention in

State affairs. The Congress has expressly prohibited the

issuance of an injunction, “to stay proceedings in any court

of the State.” 28 U.S.C.A. 2283. This has been the statu-

tory law of the United States since 1793. (Act of March 2,

1793, Chapter 22, Sec. 5; also found in 1 Stat. 344.)

ie 35a

While this Pre Statute does not prohibit an

injunction against a state officer who is about to institute

criminal proceedings to enforce an unconstitutional statute

where a “chilling effect upon the exercise of First Amend-

ment rights may derive from the fact of prosecution unaf-

fected by the prospect of its success or failure,” Dombrou-

ski v. Pfister, [sic] 85 S.Ct. 1116 at 1121, 1965, it is clear

that no such “chilling effect” under the First Amendment

is present in this type of action. That was the holding of

the United States District Court for the Eastern District

of Wisconsin in the case of BAbbitz v. McCann, [sic] unre-

ported, filed on March 5, 1970. That court refused to issue

an injunction. :

There has been a consistent and traditional reluctance by

the Federal Courts to interfere in State criminal proceed-

ings as is amply reflected in a long line of Supreme Court

decisions. Douglas v. City of Jeannette, 1943, 63 S.Ct. 877;

Pugach v. Dollinger, 1961, 81 S.Ct. 650; Cleary v. Bolger,

1963, 83 S.Ct. 385. See also numerous cases cited in 1 Bar-

ron and Holtzoff (Wright Ed.), Section 46 at n. 96.

In the most recent expression on the subject, the United

States Supreme Court, in Dombrouski, [sic] supra, said:

“The Court has recognized that Federal interference

with a State’s good faith administration of its criminal

laws is peculiarly inconsistent with our Federal frame-

work. It is generally to be assumed that State Courts

and prosecutors will observe constitutional limitations

as expounded by this Court, and that the mere possi-

bility of erroneous initial application of constitutional

standards will usually not amount to the irreparable

injury necessary to justify a disruption of orderly

State proceedings.”

Se ee ee en

Res

36a

The same principle was expressed earlier by the High

Court in a decision written by Mr. Justice Whittaker,

Wilson v. Schnetler, [sic] 365 U.S. 381 (1961), also involv-

ing a requested injunction against a suggested State prose-

eution under the State eriminal laws.

The Court there said:

“We live in the jurisdiction of two sovereigns. Hach

has its own system of courts to interpret and enforce

its laws, although in common territory. These courts

could not perform their respective functions without

embarrassing conflicts unless rules were adopted to

avoid them. Such rules have been adopted ... Federal

courts should not exercise their discretionary power ‘to

interfere with or embarrass threaiened proceedings in

state courts save in those exceptional eases which are

for the interposition of a court of equity to prevent

irreparable injury which is clear and imminent.’ ”

Douglas v. City of Jeannette, 319 U.S. at 163.

The exception here noted, to “prevent irreparable in-

jury” is not present in a case such as this, according to

the Dombrouski [sic] Court, as quoted supra.

The second suggested objection to the maintenance of

this action under the Federal Declaratory Judgments Law

is the absence of a “ease or controversy” as that term is

used in the United States Constitution, Article III, See-

tion 2, or of a “justiciable controversy” as both of those

terms have been defined by numerous decisions of the

United States Supreme Court. See Particularly Public

Service Commission of Utah v. Wycoff Company, 344 U.S.

237 (1952), and United Public Workers of America v.

Mitchell, 330 U.S. 75 (1947).

37a

We fully subscribe to this suggested infirmity in plain-

tiffs’ asserting their claims here, In addition, the Declara-

tory Judgments Act specifically requires un “actual con-

troversy,” 22 U.S.C.A. 2201. Also, the discretionary au-

thority of the Court to entertain an action is implicit in

the use of the word “may.” See Mitchell v. Donovan. 300

F. Supp. 1145 at p. 1147, 1148, argued and awaiting de-

cision in the United States Supreme Court, for a fuller

exposition of our views.

It will be recalled that in all the recent cases from other

jurisdictions involving the constitutionality of Abortion

Statutes, to wit, in California, People vy. Belous, 458 P.2d

194; in Wisconsin, Babbite v. McCann (E.D. Wis.) filed

March 5, 1970; in the District of Columbia, United States

v. Vuitch, 305 F. Supp. 1032 (1969); in Massachusetts,

Commonwealth v. Brunelle, Sup. Court #83879; and in

South Dakota, State v. Munson, unreported, 4/10/70;

there was an actual “cease or controversy,” and a “Jus-

ticiable controversy,” clearly presented by the return of

an indictment. Such is not the ease here. No indictment

has been returned.

It is also noteworthy that all of these cases were de-

cided by the State Courts except Babbitz v. McCann, and

there the Federal Court refused to enjoin a state criminal

prosecution.

It appears that the plaintiffs’ counsel is seeking relief

for his client in the wrong court. Involved is a state

statute, a state Governor, a state Atiorney General, a

state prosecutor, and a state policy of law enforcement

upon which the federal courts may aot with impunity im-

pinge.

There are highly competent state judges fully qualified

and available to pass on this state-oriented issue, and each

en a

Vea t E teks Wid tla hie HSA AS. Prat POG Cow Lo ot we

Ce ee a See Se Ee tae)

38a

of those judges is as fully committed as we to upholding

the United States Constitution.

There is an adequate state statute, the Declaratory

Judgments Act, M.S.A. 555.01, et seq. under which the

plaintiffs may obtain the requested relief and the decision

thereon will “have the force and effect of a final judg-

ment.”

Thus adequate relief is available to plaintiffs either

through the State Declaratory Judgments Act or through

the State Courts in a criminal prosecution if one is in-

stituted. We have every confidence that plaintiffs’ con-

stitutional claims will be fully and fairly considered and

decided by the state courts.

We are satisfied that the Federal court should not as-

sert jurisdiction either to make a declaration as to the

constitutionality of the Minnesota Statutes or to enjoin

possible state criminal prosecution under them.

The complaint is

DISMISSED.

Epwarp J. Devitt

Chief District Judge

Dated: May 19, 1970.

District Judge

Senior Circuit Judge Vogel dissents.

NevitieE, District Judge.

I concur in the result because I believe there is no

“ease or controversy” within Article III § 2 of the United

States Constitution, nor is there an “actual controversy”

under 28 U.S.C. § 2201, the declaratory judgment statute.

39a

Insofar as the majority opinion is bottomed on the doc-

trine of “abstention”, however, I hesitate to agree. Had

the abortion not been performed, the question would not

have become moot and thus a justiciable controversy would

exist. I would under those circumstances hold that under

the philosophy and teachings of Dombrowski v. Pfister,

380 U.S. 479 (1965); Zwickler v. Koota, 389 U.S. 241

(1967), and other cases, the doctrine of abstention should

not serve as a bar, and the court had ought [sic] to take ju-

risdiction of the cause. In the present posture of the case,

however, we are in reality asked to do nothing but render

an advisory opinion. The exigency has disappeared and

the irreparable harm contemplated, if such it be, has gone.

Once a state criminal prosecution is commenced, it may

or may not be that 28 U.S.C. § 2283 will prohibit federal

interference with prosecutions brought under siate crim-

inal laws. Prior to any such prosecution, however, I

subscribe to the view that the entire medical profession

and innumerable pregnant women live under the sword

of Damocles. The ex€rcise of their best medical judg-

ment, the giving of advice and the pregnants’ freedom

of choice is “chilled” by the cloud of a statute which

renders their actions illegal and puts them in jeopardy

of criminal prosecution with the resultant publicity, pos-

sible public disgrace, loss of hospital privileges, threatened

license revocation, ete. The constitutionality of the stat-

utes was properly brought into the federal forum for a

determination, but now I agree must be dismissed but

only for lack of a justiciable controversy.

40a

APPENDIX C

Text of Related Minnesota Statutes

40A Minn. Strat. Ann. § 617.20, at 287 (1964) :

“Whoever shall manufacture, give, or sell an instru-

ment, drug, or medicine, or any other substance, with

intent that the same may be unlawfully used in produc-

ing the miscarriage of a woman, shall be guilty of a

felony.”

;

40A Mrxn. Star. Ann. § 617.25, at 27 (Supp. 1970):

; “Every person who shall sell, lend, or give away, or

4 in any manner exhibit, or offer to sell, lend, or give

away, or have in his possession with intent to sell,

lend, give away, or advertise or offer for sale, loan,

or distribution, any instrument or article, or any drug

or medicine for causing unlawful abortion; or shall

3 write or print, or cause to be written or printed, a

eard, circular, pamphlet, advertisement, or notice of

any kind, or shall give oral information, stating when,

where, how, or whom, or by what means such article

or medicine can be obtained or who manufactures it,

shall be guilty of a gross misdemeanor and punished

by imprisonment in the county jail for not more than

one year or by a fine of not more than $500 or both.”

11 Mun. Svat. Anw. § 144.55, at 31 (Supp. 1970) :

“ The state board of health may refuse to grant,

refuse to renew, or may suspend or revoke a license on

any of the following grounds: ...

Ae See, ee ee

tate

| (2) Permitting, aiding, or abetting the commission

er of any illegal act in [the hospital or other institution

holding a license granted by the state board of health ].”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.