# Jurisdictional Statement — Hodgson v. Minnesota > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0948%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1971 - **Citation:** 402 U.S. 968 ## Text 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. 31 la 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 iv 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. 2 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). 3 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. 4 (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. 7 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. 9 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). 10 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 11 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 12 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 13 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. \4 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 1h 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 16 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. 17 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 18 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). 19 “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. 20 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 or 21 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.). 22 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). 23 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) 24 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. 25 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). 26 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). 27 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- 28 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 bt 29 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. 30 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 31 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 la 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. So 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. 2a Order of the Supreme Court of Minnesota, Denying Application for Writ of Prohibition, Entered July 20, 1970 In SUPREME COURT STATE OF MINNESOTA 42652 — 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. a 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 — 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. —