Opposition Brief — J. M. v. V. C.

Nos. 91-2034 and 91-2040

IN THE JUL 23 Bae

Supreme Court of the United States

OFFICE OF THE CLERK

OCTOBER TERM, 199]

>

1.M., Individually,

=_>

1.M., Guardian Ad Litem,

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE NEW JERSEY SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

DEBORAH A. ELLIS FRANCES FARBER-WA

NOW Legal Defense and (Counsel of Re

Education Fund UDITH TAUB

99 Hudson Street Stryker, Tams & D1]

New York, New York 10013 Iwo Penn Plaza East

212) 925-6635 Newark, New Jerse’

(201) 491-9500

On Behalf of jhe A‘

ANDREW DWYER

LYNN M. PALTROW

Center for Reproductis

and Policy

120 Wall Street, 10th Floor

New York, New York 10005

(212) 514-5534

Attorneys for Respondent

COUNTERSTATEMENT OF THE QUESTIONS

PRESENTED

1. Was there a final order regarding petitioner’s claims

as an individual?

2. Are petitioner’s constitutional rights under the

Fourteenth Amendment implicated in the absence of State

governmental action?

3. Does petitioner have standing to challenge

respondent’s decision whether or not to terminate her

pregnancy?

4. May a State court compel a woman to obtain a

putative boyfriend’s consent before obtaining an abortion?

5. May a State court absolutely prohibit a woman from

terminating her pregnancy prior to fetal viability?

6. May a State court prohibit a woman from traveling

out-of-state for purposes of obtaining an abortion?

7. Is a fetus a "person" within the meaning of the

Fourteenth Amendment of the United States Constitution?

en er es ae ee ee

FABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS

|

COUNTERSTATEMENT OF JURISDICTION .

A. There Is No Final Judgment

Regarding Petitioner’s Claims

As An Individual .........

B. Petitioner Has No Standing

To Raise Claims On Behalf

Se

C. Petitioner’s Constitutional Rights

Under The Fourteenth Amentdment

Are Not Implicated Because There

Is No State Action .............

COUNTERSTATEMENT OF THE CASE . .

REASONS THE PETITIONS SHOULD

8 | | »

I. THIS COURT’S PRIOR DECISIONS ARE

DISPOSITIVE AND WERE PROPERLY

APPLIED BY THE NEW JERSEY

ig |G 68)”

A. Every Woman Has A Constitutional

Right To Decide Whether Or Not

To Terminate Her Pregnancy .......... 13

nen a

lil

PAGE

B. A Man Does Not Have A Constitutional

Right To Interfere With A Woman’s

Decision To Have An Abortion ........ 18

C. A Fetus Is Not A "Person" Within The

Meaning of the Fourteenth Amendment .. 2i

Il. THE NEW JERSEY SUPREME COURT'S

DECISION CONFORMS WITH THE

DECISIONS OF EVERY APPELLATE

COURT TO CONSIDER THE ISSUE ....... 27

A. No State Appellate Court Has Ever Held

That A Man May Prevent A Woman

From Obtaining An Abortion .......... 27

B. Every Federal Court To Address

The Issue Has Held That Husband

Notice Or Consent Requirements For

Women Seeking Aborticn Are

Unconstitutional .......

CONCLUSION

IV

TABLE OF AUTHORITIES

Cases: PAGE

Akron Center for Reproductive Health v. City of Akron,

No. C78-155A (N.D. Ohio May 16, 1978) .... 7

Anderson v. Anderson, No. 8821320 (Minn. Dist. Ct.

SS eer ree re ee at

Benton v. Maryland, 395 U.S. 784 (1969) ....... 3

Bigelow v. Virginia, 421 U.S. 809 (1975) ....... 17

Brady v. Doe, 598 S.W.2d 338 (Tex. Civ. App. 1980),

cert. denied, 449 U.S. 1081 (1981). ........ 6

Brittingham v. Commissioner, 451 F.2d 315

CS: SER kee Sees ees 6

Califano v. Aznavorian, 439 U.S. 170 (1978). .... 17

Charles v. Carey, 627 F.2d 772 (7th Cir. 1980). .. . 28

City of Akron vy. Akron Center for Reproductive Health,

bec. . $62 1.2. 416 Ge ks oe se ee 14, 22

Civic Awarenes of America, Ltd. v. Richardson, 387 F.

Supp. 1086 (E.D. Wis. 1975), aff'd, 532 F.2d 756

(7th Cir.), cert. denied, 429 U.S. 829 (1976). . . 24

Civil Rights Cases, 109 U.S. 3 (1883) ......... 8

ae —

PAGE

Cohen v. Beneficial Loan Corp., 337 U.S. 541

CESE ea ee tee eee ee ee 5

Colautti v. Franklin, 439 U.S. 379 (1979)... 0.02.0. 22

Coleman v. Coleman, 57 Md. App. 755, 471 A.2d 1115,

cert. denied, 298 Md. 353, 469 A.2d 1274

(IFORD. kb oe hd eee

~

ommissioner of Social Servs. v. Klein, 412 U.S. 925

CERISE eile eee eae eee 7

Conn v. Conn, 525 N.E.2d 612 (Ind. Ct. App.), affd &

opinion adopted, 526 N.E.2d 958 (Ind.), cert. denied,

488 U.S. 955 (1988) ae

Covington & C. Bridge Co. v. Hager, 203 U.S. 109

CUUEe kkk ee oe ov Seeee ee eee 6

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

ti J) Serer arr eee Mae

Craig v. Boren, 429 U.S. 190 (1976) ........ 8

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868) .. 17

Doe v. Bolton, 319 F. Supp. 1648 (N.D.Ga. 1970) (three

judge court), modified on other grounds, 410 U.S. 179

(1973) 7

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

Doe v. Deschamps, 461 F. Supp. 682 (D. Mont.

1976)

IQ

v1

PAGE

Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128

CEOED «ik 06 04 oe oe ae ee ee 7, af

Doe v. Roe, No. 88-1629 (N.Y.Sup. Ct. Sept. 14, 1988),

appeal dismissed as moot, 552 N.Y.S.2d 75 (App. Div.

ib ace 2 aetna kee ee ee ae 27-28

Doe v. Smith, 527 N.E.2d 177 (Ind. 1988), cert. denied,

ee ee ee Re ok con os ain tele ew ee ea 27

Edmonson y. Leesville Concrete Co., 111 S. Ct. 2077

che ft er err es rr eae ee ea 16

Eisenstadt v. Baird, 405 U.S. 438 (1972) ....... 20

Equitable Life Ins. Soc’y v. Brown, 187 U.S. 308

SUE Sine ‘4g bbb 6-06 erd 4 ee ee eae a 9

Eubanks v. Brown, 604 F. Supp. 141 (W.D. Ky.

| PE eee era rao 28-29

Ex Parte Virginia, 100 U.S. 339 (1880) ........ 16

Flynt v. Ohio, 451 U.S. 619 (1981) ........... 5

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

Grovey v. Townsend, 295 U.S. 45 4 i) ere 3

Haggard v. Tennessee, 421 F.2d 1384

ae) SUPE ce alk. 54 e0e ee 6

Vil

PAGE

Harman y. Daniels, 525 F. Supp. 798 (W.D.

eS eee a ana sera a ea ee 24

Hayes v. Hayes, No. 85-CI-04460 (Tex. Dist. Ct. Mar. 27,

Pe eS ke Ge ek Ree ee Oe ee

Hertz v. Record Publishing Co., 219 F.2d 397 (3d Cir.),

cert. denied, 349 U.S. 912 (1955) ......... 6

Hodgson v. Minnesota, 497 U.S. 417 (1990) ..... 13

Hurt v. Cotton States Fertilizer Co., 159 F.2d 52 (Sth

Cir.), cert. denied, 331 U.S. 828 (1947) ..... 6

In re D.K., 204 N.J. Super. 205, 497 A.Zd 1298 (Ch. Div.

TEST it ee a) LR er a ed ee Pe ok re 7

International Union, U.A.W. v. Johnson Controls, Inc. .

e2e oS), 2h. 2) eee 22

Jones v. Smith, 278 So.2d. 339 (Fla. 1973), cert. denied,

at Ge ee es by oan od Seon dy Ge 28

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . 6

Margaret S. v. Edwards, No. 78-2765 (E.D. La. Oct. 2,

RR ee 0a ae a ea, ee ee eee eee Pee, 7

Market Street R. Co. v. Railroad Comm’n, 324 U.S. 548

os Ere er ey ar ee ae eg 3

Meyers v. Lewis, No. 111440 (Mich. App. Sept. 15, 1988),

appeal denied, No. 841469 (Mich. Sept. 22, 1988),

cert. denied, 488 U.S. 967 (1988) ......... 27

Vill

PAGE

North Dakota Pharmacy Board v. Snyder’s Stores, 414

i GeO ow oe ee eee eee see

Ohio v. Akron Center for Reproductive Health, 497 U.S.

ee CUE 6 a ae ee ee ee 13-14

Pagel v. Roe, No. 83-765 (Wis. Ct. App. Apr.

Big CN pe hed oe wee es oe ee 28

Palmore v. Sidoti, 466 U.S. 429 (1984) ........ 16

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 8

Planned Parenthood v. Board of Medical Review, 598 F.

Supp. 625 (D.R.1. 1904) 2. ww cc wee eee 29

Planned Parenthood v. Casey, 60 U.S.L.W. 4795 (U.S.

oe Ae) i ee oe . . passim

Planned Parenthood v. Danforth, 428 U.S. 52

ol RRR age er ee ee coer ee eae 14, 18-20

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476

RMR Soc ca a es A ae te ec 22

Poole v. Endsley, 371 F. Supp. 1379 (N.D. Fla. 1974),

aff'd in part & remanded on other grounds, 516 F.2d

ee Ce Ga, Bre ee ee ee ee 6, 24

Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112

Oe! So eer ae eee 28

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ..... 8

Roe v. Wade, 410 U.S. 113 (1973) .... 14, 22, 25-26

PAGE

Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57

& Th Re, yg) rr en Se

Ruiz Romero v. Gonzales Carabello, 681 F. Supp. 123

SS, ree

Ryan v. Klein, 412 U.S. 924 (1973) .. 7

Santosky v. Kramer, 455 U.S. 745 (1982) . 8

Scheinberg v. Smith, 482 F. Supp. 529 (S.D. Fla. 1979),

aff'd in part, vacated in part, and remanded, 659 F.2d

476 (Sth Cir. Unit B Oct. 1981), on remand, 550 F

Supp. 1112 (S.D. Fla. 1982) . ee . 29

Shapiro v. Thompson, 394 U.S. 618 (1969) Q

Shelley v. Kraemer, 334 U.S. 1 (1948) . .. 16

Skinner v. Oklahoma, 316 U.S. 535 (1942) 8

Snapp v. Puerto Rico, 459 U.S. 592 (1982) 24

Stanley v. Illinois, 405 U.S. 645 (1972) S

State of New Jersey v. Loce, No. 251-91 (N.J. Law Div

som. G, i9z). . 2. ss ra ae oe . 10-11

Steinhoff v. Steinhoff, No. 10549/88 (N.Y. Sup. Ct. June

a URS a he a 6 ae A ee ae a oe

a

Thornbureh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) ere | ae

PAGE

Total Care. “nc. v. Sullivan, 754 F. Supp. 1097 (W.D.N.C.

|) ee ee ere ee ere be oe or ase ee oy 6

Tumey v. Ohio, 273 U.S. 510 (1927) .......... 3

Webster v. Reproductive Health Services, 492 U.S. 490

(.... Peewee n Torre ee a eee oe ee 13, 26

Williams v. Fears, 179 U.S. 270 (1900) ........ 17

Woe v. Bear, No. H-79-1866 (S.D. Tex.

May 5, I9BD) 0... wc ccc cece eee cee nes 7

Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976) . . 29

Yozie v. Munson, No. 82/19 56 S (Conn. Super. Ct. Sept.

SE ook G4 oe we OR hese

Zbaraz v. Quern, No. 77-C-4522 (N.D. Il.

Be: er ee ee ae 7

Zucht v. King, 260 U.S. 174 (1922) ........... 9

Statutory Provisions and Rules:

y ERS ode DF 7 er a ae ee 1,3, 4,5, 6

28 U.S.C. § 1651 .. Bal et vate a are ee 6

eee eee ree eee ee eee ee 13

Re ey Aes |) ee re ee ee ee 2

ati”

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PAGE

Pa i le OME fs & & 0 0-5 8 A OR Ke 2

ses Sat ls OD sk < e -w0a ee ee 3

Pes a eu hd os Oa ee eee 3

Miscellaneous:

Susan Goldberg, Of Gametes and Guardians: The

Impropriety of Appointing Guardians Ad Litem for

Fetuses and Embryos, 66 Wash. L. Rev. 503

(1991) 7

Respondent V.C. submits this brief in opposition to the

petitions for a writ of certiorari filed by petitioner J.M., on

behalf of himself individually and as guardian ad litem for

the interests of a fetus. Both petitions seek review of the

judgment of the New Jersey Supreme Court below. '

COUNTERSTATEMENT OF JURISDICTION

For three reasons, this Court does not possess

jurisdiction to review the judgment of the New Jersey

Supreme Court. First, there is no jurisdiction to review

petitioner’s claims as an individual, because those claims

are still pending in the Appellate Division of the New

Jersey Superior Court, in an appeal as of might that

petitioner took from the trial court’s decision to dismiss that

portion of the complaint. Consequently, there is no "final

judgment" by “the highest court of a State in which a

decision could be had," and therefore no jurisdiction under

28 U.S.C. § 1257. Second, petitioner lacks standing to

assert the interests of the fetus, because a fetus is not a

"person" with independent legal mghts under the law.

Finally, petitioner’s assertion that this case implicates his

constitutional rights is frivolous, because the mghts he

asserts protect a person only against governmental action,

and there is no governmental interference with petitioner’s

rights in this case. Consequently, no jurisdiction lies to

hear the utterly meritless federal questions raised by the

petitions.

‘Specifically, both petitions seek review of the orders of the New

Jersey Supreme Court dated March 24, 1992. Given that petitioner

seeks review of judgments entered on the same day, by the same court,

in the same action, involving the same parties, respondent is at a loss to

understand why petitioner filed two separate, but nearly verbatim

petitions. In the interests of judicial economy, this bnef is filed in

opposition to both petitions.

A. There Is No Final Judgment Regarding

Petitioner’s Claims As An Individual.

Petitioner initiated this case in the State trial court with

a complaint seeking an injunction prohibiting respondent

from obtaining an abortion. Peutioner brought the

complaint on behalf of himself and as guardian ad litem for

the fetus. The trial court dismissed the complaint insofar as

it was brought on behalf of petitioner individually, but

declined to dismiss the complaint brought on behalf of the

fetus, and on that basis temporarily enjoined respondent

from having an abortion. Both parties sought emergent

leave to appeal from the State appellate courts. The New

Jersey Supreme Court ultimately granted respondent leave

to appeal, summarily reversed and vacated the temporary

restraints and summarily dismissed the complaint brought

on behalf of fetus. The appellate courts, however, denied

petitioner leave to appeal the dismissal of the complaint

brought on behalf of himself individually, so that portion of

the trial court’s decision was never heard by the appellate

courts.

Following the New Jersey Supreme Court’s order

denying him leave to appeal, petitioner returned to the trial

court and moved for reconsideration of the order dismissing

the complaint brought on behalf of petitioner individually.

When the motion for reconsideration was denied, petitioner

filed a notice of appeal of the trial court’s dismissal of his

individual claim. This appeal was as of right and timely

filed, and it is still pending in the Appellate Division of the

New Jersey Superior Court.’

*Petitioner’s appeal to the Appellate Division is as of nght pursuant

to N.J. Ct. R. 2:2-3(a)(1). Although the notice of appeal was filed

more than 45 days after the order dismissing the complaint brought by

petitioner individually, see N.J. Ct. R. 2:4-1 (a), the time for filing was

2

3

Under 28 U.S.C. § 1257, Supreme Court review of

State court decisions is available only with respect to

"{flinal judgments or decrees rendered by the highest court

of a State in which a decision could be had." This "final

judgment rule" is the first requirement for jurisdiction

under Section 1257. Generally, to be reviewable the State

court judgment “must be subject to no further review or

correction in any other state tribunal; it must also be final

as an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein. It must

be the final word of a final court." Market Street R. Co. v.

Railroad Comm’n, 324 U.S. 548, 551 (1945).

The finality rule “serves several ends: (1) it avoids

piecemeal review by federal courts of state court decisions;

(2) it avoids giving advisory opinions in cases where there

may be no real ’case’ or ‘controversy’ in the sense of Art.

III; (3) it limits féderal review of state court determinations

of federal constitutional issues to leave at a minimum

federal intrusion in state affairs." North Dakota Pharmacy

Board v. Snyder’s Stores, 414 U.S. 156, i59 (1973).

Although a State trial court order may qualify for

review under Section 1257, this is true only if the order

cannot be reviewed by any State appellate court. See

Grovey v. Townsend, 295 U.S. 45, 47 (1935). But where

there is an appeal as of right in a higher court, or even if

discretionary review is available, such review must be

sought. See Benton v. Maryland, 395 U.S. 784, 786

(1969); Tumey v. Ohio, 273 U.S. 510, 515 (1927).

In this case, petitioner has properly taken an appeal as

of right from the trial court’s decision to dismiss his

properly tolled by petitioner's motion for reconsideration. See N.J. oS

R 2:4-3 (e); N.J. Ct. R. 4:49-2.

4

individual complaint, and that appeal is still pending in the

New Jersey Superior Court, Appellate Division. The

appeal raises all the same federal constitutional issues

petitioner seeks to raise before this Court. This pending

appeal in the New Jersey State court system bars review of

petitioner’s claim in this Court.

Citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), however, petitioner argues that the pending State

court appeal does not preclude jurisdiction under Section

1257. See Cert. Pet. 3.° Cox represents a line of cases

where this Court has found finality under Section 1257,

despite the pendency of State court preceedings, in limited

circumstances where the federal issues have been finally

decided by the State’s highest court, the remaining State

court preceedings involve only collateral, non-federal

issues, and important policy considerations favor immediate

review of the federal issues in this Court. See, e.g., North

Dakota Pharmacy Board v. Snyder’s Stores, 414 U.S. at

159-64.*

*Because the petitions at issue are virtually identical, reference

throughout is made to the petition in No. 91-2034 as "Cert. Pet.__ ,”

and the appendix thereto as “Apx. Vol._, at_." The appendix to this

brief in opposition is cited as "App._a."

“Cox, 420 U.S. at 479-85, identified four circumstances where

finality can exist despite pending proceedings in the State courts: (1)

where for all practical purposes the federal issue is conclusively

determined, so that, for example, only ministerial acts remain; (2)

where the federal issue is finally decided by the State’s highest court,

and will survive and require review regardless of the outcome of further

State court proceedings; (3) where the federal issue is finally decided,

but with further proceedings in the State courts, regardless of their

outcome, later review of the federal issue cannot be had; and (4) where

the federal issue has been finally decided, reversal on the federal issue

could be dispositive, and refusal immediately to review the State court

decision could seriously erode federal policy.

-intateataanscealhiiaiaaiasaaiiaia naan

5

But although Cox represents the “practical rather than a

technical construction" this Court has applied to the finality

requirement, see Cohen v. Beneficial Loan Corp., 337 U.S.

541, 546 (1949), this approach is not meant to "swallow the

rule" of finality embodied in Section 1257, Flynt v. Ohio,

451 U.S. 619, 622 (1981), and in situations falling outside

the categories mentioned in Cox, it still remains true that

the existence of pending State court proceedings will

preclude review in this Court. In Flynt, for example, this

Court concluded that it lacked jurisdiction under Section

1257 to review a State supreme court decision rejecting a

claim of discriminatory prosecution asserted by the

publisher of an allegedly obscene magazine. Although the

publisher claimed that the prosecution violated his federal

rights, and that a favorable ruling on constitutional grounds

would terminate- the litigation, this Court found that the

State court judgment was not "a final judgment within any

of the four exceptions identified in Cox," and that Supreme

Court review could “await final judgment without any

adverse effect upon important federal interests." Jd. at 621,

622.

None of the Cox exceptions to the finality rule apply in

this case simply because the New Jersey Supreme Court’s

decision never reviewed the trial court’s dismissal of

petitioner’s complaint brought on behalf of himself at all,

but instead merely denied leave to appeal. The issues

raised in petitioner’s pending appeal in the New Jersey

Appellate Division are not collateral state-law issues, but

are the very same federal issues petitioner seeks to bring

before this Court. Consequently, petitioner’s federal issues

have not yet been conclusively adjudicated in the State

courts, and there is no final judgment on his federal claims

brought as an individual. Therefore, this Court lacks

6

jurisdiction under Section 1257.°

B. Petitioner Has No Standing To Raise Claims On

Behalf Of The Fetus.

The law is clear that a fetus is not a person under the

Fourteenth Amendment of the United States Constitution.

See infra at 21-26. The conclusion necessarily follows that

“an unborn child and persons acting in behalf of an unborn

child may rot assert the deprivation of any rights or

privileges secured by the Amendment." Poole v. Endsley,

371 F. Supp. 1379, 1382-83 (N.D. Fla. 1974), aff'd in part

& remanded on other grounds, 516 F.2d 898 (Sth Cir.

1975). See also Brady v. Doe, 598 S.W.2d 338 (Tex. Civ.

App. 1980), cert. denied, 449 U.S. 1081 (1981);

Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57,

58 (Ch. Div. 1977) (dismissing claim to enjoin woman’s

abortion brought by self-described guardian ad litem on

*Petitioner’s reliance on 28 U.S.C. § 1651 as an alternative basis

for jurisdiction is misplaced. See Cert. Pet. 4. Section 1651 authorizes

the Supreme Court to issue “all writs necessary or appropriate in aid of

their respective jurisdictions." However, as early as Marbury vy.

Madison, 5 U.S. (1 Cranch) 137 (1803) it was established that the All

Writs Act does not, as petitioner suggests, confer, restrict, or expand

jurisdiction. Federal courts may issue writs by the authority of Section

1651 only in aid of jurisdiction already conferred. See Total Care, Inc.

v. Sullivan, 754 F. Supp. 1097, 1103 (W.D.N.C. 1991) (basis for

authonty to issue an injunction but not a basis of jurisdiction);

Brittingham v. Commissioner, 451 F.2d 315, 317 (Sth Cir. 1971) (by

itself creates no jurisdiction in the district courts, but is in aid of

jurisdiction previously acquired on some other independent ground);

Haggard v. rennessee, 421 F.2d 1384, 1386 (6th Cir. 1970) (power to

issue writs “only as ancillary to and in aid of jurisdiction otherwise

vested"); see also Hertz v. Record Publishing Co., 219 F.2d 397, 398

(3rd Cir.), cert. denied, 349 U.S. 912 (1955); Hurt v. Cotton States

Fertilizer Co., 159 F.2d 52, 60 (Sth Cir.), cert. denied, 331 U.S. 828

(1947); Covington & C. Bridge Co. v. Hager, 203 U.S. 109 (1906).

7

behalf of fetus); Jn re D.K., 204 N.J. Super. 205, 497 A.2d

1298, 1302-03 (Ch. Div. 1985) (reversing appointment of

guardian for the fetus as "unconstitutional and void").

Courts have refused to recognize claims of purported

guardians ad litem in abortion cases. Guardians ad litem

for fetuses have been denied standing to intervene and

challenge a woman’s right to choose abortion, even though

the requirements of standing for purposes of intervention

are more easily met than those for purposes of bringing a

claim. See, e.g., Woe v. Bear, No. H-79-1866 (S.D. Tex.

- May 5, 1980); Margaret S. v. Edwards, No. 78-2765 (E.D.

La. Oct. 2, 1978); Akron Center for Reproductive Health v.

City of Akron, No. C78-155A (N.D. Ohio May 16, 1978);

Zbaraz v. Quern, No. 77-C-4522 (N.D. Ill. May 15, 1978)

(subsequent history on merits omitted); Ryan v. Klein, 412

U.S. 924 (1973);° Doe v. Bolton, 319 F. Supp. 1048, 1057

(N.D. Ga. 1970) (three-judge court), modified on other

grounds, 410 U.S. 179 (1973). See also Susan Goldberg,

Of Gametes and Guardians: The Impropriety of Appointing

Guardians Ad Litem for Fetuses and Embryos, 66 Wash. L.

Rev. 503 (1991).

Because a guardian ad litem can only claim the

interests of the fetus he purports to represent, and the fetus

is not a “person” under the Fourteenth Amendment,

‘In Ryan, intervenors purporting to represent embryos and fetuses

appealed the ruling of a three-judge court holding unconstitutional New

York’s refusal to fund legal abortions. In a separate appeal by the

State, this Court vacated the district court order and remanded the case

for reconsideration in light of Roe v. Wade. Commissioner of Social

Servs. v. Klein, 412 U.S. 925 (1973). On the intervenors’ appeal,

however, this Court summarily affirmed the district court, thus

indicating its refusal to recognize claims of purported guardians ad litem

in abortion cases.

petitioner has no standing to raise the constitutional rights

of the fetus, and that claim is not properly before this

Court.

C. Petitioner’s Constitutional Rights Under The

Fourteenth Amendment Are Not Implicated

Because There Is No State Action.

The federal questions assertedly raised by the petition

concern petitioner’s rights under the Fourteenth Amendment

of the United States Constitution. See Cert. Pet. 2, 4. But

the assertion that respondent’s private abortion decision

somehow implicates petitioner’s constitutional rights is

utterly frivolous. The federal constitutional rights cited by

petitioner -- the ght to procreate, the right to

companionship with one’s child and to discharge one’s

duties to one’s child, and the right to equal protection of the

laws -- protect a person only against governmental action.

"Individual invasion of individual nghts is not the subject-

matter of the [Fourteenth] Amendment." Civil Rights

Cases, 109 U.S. 3, 9-12 (1883); see also Rendell-Baker v.

Kohn, 457 U.S. 830, 837 (1982). Every case petitioner

cites aS support for his constitutional claims involves

government action affirmatively discriminating against or

interfering with the autonomy of private individuals.’

"See Santosky v. Kramer, 455 U.S. 745 (1982) (state may not sever

parental nghts absent clear and convincing evidence of unfitness); Craig

v. Boren, 429 U.S. 190 (1976) (state may not discriminate on the basis

of gender in the sale of alcoholic beverages); Stanley v. Illinois, 405

U.S. 645 (1972) (state may not sever parental rights based on umarried

status); Shapiro v. Thompson, 394 U.S. 618 (1969) (state and federal

governments may not deny welfare benefits to individuals who had

resided in the administering jurisdictions for less than one year);

Griswold v. Connecticut, 381 U.S. 479 (1965) (state may not prohibit

sale of contraceptives to married individuals); Skinner v. Oklahoma, 316

U.S. 535 (1942) (state may not sterilize persons convicted of crimes);

9

This, however, is not such a case.

For example, the Constitution certainly protects

petitioner’s right to be free from government intrusion into

his decision to have a child. But it is up to petitioner, not

lower court judges, to find a woman who will have a child

with him. Rather than seeking protection against state

interference with his constitutional rights, petitioner actually

seeks to enlist the aid of the courts to seize control of

V.C.’s body and compel her to bear his child. But the

rights petitioner describes "involve[] a shield for the private

citizen against governmental action, not a sword of

government assistance to enable [the potential father] to

overturn the private decisions of his fellow citizens." Doe

v. Doe, 365 Mass. 556, 314 N.E.2d 128, 132 (1974).

Petitioner improperly seeks to twist constitutional shields

designed to protect individuals from government intrusion,

into swords of government coercion to subordinate women.

Thus, because on their face the federal claims

petitioner raises are wholly without merit, his mere

allegation of a federal question does not establish

jurisdiction in this Court. Where, as here, “such question

is wholly formal, is so absolutely devoid of merit as to be

frivolous, or has been so explicitly foreclosed by a decision

or decisions of this court as to leave no real room for

controversy," no jurisdiction lies. Equitable Life Ins. Soc’y

v. Brown, 187 U.S. 308, 311 (1902); see also. Zucht v.

King, 260 U.S. 174, 176 (1922).

COUNTERSTATEMENT OF THE CASE

Petitioner, J.M., filed a complaint alleging a

Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state may not prohibit

parents from sending their children to private schools).

10

relationship with respondent, V.C., which began in 1991.

It is undisputed that the parties are not married. According

to the complaint, in January 1992, V.C. became pregnant

and decided to seek an abortion.

After retaining an attorney, on March 9th, petitioner

filed a complaint in the Superior Court of New Jersey,

Chancery Division. That same day, proceeding ex parte and

without prior notice to V.C., petitioner applied for and was

granted a temporary restraining order ("TRO") that, inter

alia, enjoined V.C. from terminating her pregnancy and

from leaving the State of New Jersey for the purpose of

terminating her pregnancy. Petitioner’s requested relief,

and the TRO that was entered, provided no exception

should the continuation of V.C.’s pregnancy pose a threat

to her life or health.

V.C. moved on notice to dissolve the restraints and

dismiss petitioner’s complaint for failing to state a claim

upon which relief could be granted. On March 19th, after

hearing argument from counsel, the trial court (1) dismissed

petitioner’s complaint to the extent it was brought by J.M.

individually for_lack of standing; (2) but declined to dismiss

the complaint brought on behalf of the fetus; (3) appointed

J.M. guardian ad litem to represent the interests of the

fetus; and (4) therefore continued the restraints imposed on

if

* Contrary to petitioner's suggestion, see Cert. Pet. 11-12, no trial

or evidentiary hearing of any kind was ever held in the courts helow,

no “testimony” was ever presented, and the trial court never made any

factual findings. The “testimony” to which petitioner repeatedly refers,

and which is reproduced in the appendix to the petition, consists of

affidavits petitioner offered in the court below together with transcripts

of testimony in another case involving a completely different set of

litigants. The Law Division judge in that case found that the "proofs

were so limited and so one-sided that a judge cannot sensibly make a

P $e ee

————$

1]

On March 20, 1992, V.C. moved on an emergent basis

in the Appellate Division for leave to appeal from the trial

court’s order imposing the temporary restraints and

declining to dismiss the complaint brought on behalf of the

fetus. On March 23rd, petitioner moved for leave to cross-

appeal from the dismissal of the complaint brought on

behalf of himself individually.

On March 23, 1992, after hearing argument from

counsel, the Appellate Division: (1) denied J.M.’s motion

to cross-appeal the dismissal of his individual action; but

also (2) denied V.C.’s motion for leave to appeal the trial

court’s order denying her motion to dismiss the complaint

in its entirety; and (3) granted V.C.’s motion for leave to

appeal the trial court's order continuing the temporary

restraints and summarily reversed and vacated the

imposition of those restraints; but (4) stayed the dissolution

of the restraints until 4:00 p.m. the next day.

Both sides sought leave to appeal to the Supreme Court

of New Jersey on an emergent basis. V.C. moved to lift

the stay, remove the restraints, and dismiss the complaint in

its entirety. Petitioner sought to maintain the restraints,

reverse the dismissal of his individual complaint, and have

the entire matter remanded to the trial court for an

evidentiary hearing on his contention that life begins at

conception.

On March 24, 1992, determining that petitioner had

"failed to demonstrate a reasonable likelihood of prevailing

on the merits of his complaint," and ‘oncluding "that under

current law, plaintiffs proffer ot proofs would not

realistically assist or inform the court i. its determination of

definite finding of fact based upon them.” State of New Jersey » i

No. 251-91, slip op. at 8 (N.J. Law Div. Sept. 6, 1991)

ae

12

the legal issues properly before it," see Apx. Vol. II, at

106, the New Jersey Supreme Court unanimously: (1)

granted V.C.’s motion for leave to appeal the denial of her

motion to dismiss the complaint brought by petitioner as

guardian ad litem for the fetus, and dismissed the

complaint; (2) granted V.C.’s motion to lift the stay of the

Appellate Division’s order dissolving the temporary

restraints entered by the tral court, thereby dissolving the

restraints; (3) denied petitioner’s motion for leave to appeal

the dissolution of the temporary restraints by the Appellate

Division, dismissed aS moot petitioner’s motion for

Summary reversal, and denied petitioner's motion for a

further stay; and (4) denied petitioner’s motion for leave to

appeal the dismissal of the his individual complaint and

dismissed as moot his motion for summary reversal on that

issue

On March 31, 1992, petitioner moved in the New

Jersey Supreme Court for reconsideration of the dismissal

of his claim as guardian ad litem for the fetus, and moved

in the Chancery Division for reconsideration of the

dismissal of his claim as an individual. Petitioner’s motion

for reconsideration in the New Jersey Supreme Court was

denied on April 6th, and his motion for reconsideration in

oT

Apparently in an effort to characterize the New Jersey Supreme

Court’s decision as final, petitioner claims that the New Jersey Supreme

Court “declared that J.M.’s individual case was *moot.’" Cert. Pet. 4

This is not true. Rather, the New Jersey Supreme Court merely stated

that because petitioner was denied leave to appeal, his motion for

Summary reversai was “dismissed as moot.” See Apx. Vol. I, at 108-

09

On March 25th, petitioner applied to Associate Justice David H

Souter for a stay of the New Jersey Supreme Court’s decision. Justice

Souter denied the stay. That same day petitioner reapplied to Associate

Justice Clarence Thomas, who also denied the stay.

——O

13

the trial court was denied on May 12th.

On May 18, 1992, petitioner filed a notice of appeal as

of right from the trial court order entered on March 19th

dismissing his individual complaint. This appeal is still

pending before the Superior Court of New Jersey, Appellate

Division.

REASONS THE PETITIONS SHOULD BE DENIED

The petitions should be denied because they fail to

establish any of the factors that weigh in favor of review on

a writ of certiorari: This Court’s prior decisions are

dispositive, the New Jersey Supreme Court properly applied

those decisions, and no conflict exists among state or

federal appellate courts as to the proper disposition of this

case. See Sup. Ct. R. 10.1. As every appellate court has

recognized, and as this Court has just recently reaffirmed,

Roe v. Wade and its progeny clearly protect the right of

every woman, including respondent, to choose to terminate

her pregnancy prior to viability.

I. THIS COURT’S PRIOR’ DECISIONS ARE

DISPOSITIVE AND WERE PROPERLY APPLIED

BY THE NEW JERSEY SUPREME COURT.

A. Every Woman Has A Constitutional Right To

Decide Whether Or Not To Terminate Her

Pregnancy.

Petitioner argues that the New Jersey Supreme Court's

decision to dissolve the restraints imposed on V.C.’s

decision to terminate her pregnancy somehow conflicted

with this Court’s decisions in Webster v. Reproductive

Health Services, 492 U.S. 490 (1989), Hodgson Vv.

Minnesota, 497 U.S. 417 (1990) and Ohio v. Akron Center

eae ena UNNNE NUTT net mc nc emAnSSIRSEDSSONERGE. Ses SMR

14

for Reproductive Health, 497 U.S. 502 (1990). See Cert.

Pet. 57-58. Petitioner makes no serious effort to identify

any actual conflict between these cases and the decision of

the court below. But insofar as petitioner’s argument is

comprehensible at all, it appears that he believes that these

decisions establish that a woman no longer has a

constitutional might to decide whether to terminate her

pregnancy, and that in any case respondent’s rights are

Ooutwergied” by the asserted "rights" of petitioner and the

fetus. See Cert. Pet. 60-61, 63-65. Both claims are

demonstrably false.

In 1973, this Court recognized that the Constitution

guarantees every woman the right to determine whether or

not to terminate her pregnancy prior to viability. Roe v.

Wade, 410 U.S. 113, 153 (1973). Since that first clear

recognition of a woman’s right to choose, Roe’s holding has

been consistently reaffirmed. See, e.g., Planned Parenthood

v. Danforth, 428 U.S. 52 (1976); City of Akron v. Akron

Center for Reproductive Health, Inc., 462 U.S. 416 (1983).

More than a decade after Roe, this Court reiterated that:

Few decisions are more personal and _ intimate,

more properly private, or more basic to individual

dignity and autonomy, than a woman’s decision . .

. whether to end her pregnancy.

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747, 772 (1986).

Only a month ago, this Court concluded that “the

essential holding of Roe v. Wade should be retained and

once again reaffirmed." Planned Parenthood v. Casey, 60

15

U.S.L.W. 4795, 4798 (U.S. June 29, 1992).'° In Casey,

any questions regarding a woman’s right to choose abortion

were unambiguously answered:

An entire generation has come of age free to

assume Roe’s concept of liberty in defining the

capacity of women to act in society, and to make

reproductive decisions; no erosion of principle

going to liberty or personal autonomy has left

Roe’s central holding a doctrinal remnant... .

Casey, 60 U.S.L.W. at 4803.

Specifically, this Court’s decision in Casey

unequivocally confirmed a woman’s constitutional right to

choose abortion prior to viability unfettered by State

interference:

The woman’s right to terminate her pregnancy

before viability is the most central principle of Roe

v. Wade. It is a rule of law and a component of

liberty we cannot renounce.

Casey, 60 U.S.L.W. at 4805.

For a State to prevent a woman from obtaining an

abortion prior to fetal viability would violate her

constitutionally guaranteed right to reproductive autonomy.

Although this Court recognized that "the State has

legitimate interests from the outset of the pregnancy in

” Contrary to petitioner's repeated insistence here and in the

courts below, see Cert. Pet. 58-60; Apx. Vol. II, at 67-71, in Webster

"a majority of the Court either decided to reaffirm or declined to

address the constitutional validity of the central holding of Roe." Casey,

60 U.S.L.W. at 4802.

ral

16

protecting the health of the woman and the life of the

fetus," Casey, 60 U.S.L.W. at 4798, before viability "the

State’s interests are not strong enough to support a

prohibition of abortion or the imposition of a substantial

obstacle to the woman’s effective right to elect the

procedure." Jd. at 4798.'' Therefore, "[rJegardless of

whether exceptions are made for particular circumstances, a

State may not prohibit any woman from making the

intimate decision to terminate her pregnancy before

viability." Jd. at 4807.

By seeking a court order absolutely prohibiting V.C.

from having an abortion, petitioner would completely

obliterate the constitutionally protected mght to privacy

recognized in Roe and reaffirmed in Casey."

Even after viability, a State that chooses to regulate abortion

must always provide exceptions to protect the woman’s life and health.

Casey, 60 U.S.L.W. at 4798, 4807-08. Thus, this Court continues to

reject the argument advanced by petitioner that a State may only allow

abortion where necessary to save the woman’s life. Cert. Pet. 64 n.46.

7 Of course, the injunction petitioner sought below constituted

State action, even though the operative State actor was a court and not

the legislature or executive. “A State acts by its legislature, its

executive, or its judicial authorities. It can act in no other way.” Ex

Parte Virginia, 100 U.S. 339, 347 (1880), quoted in, Shelley v.

Kraemer, 334 U.S. 1, 14 (1948). There has been no erosion of

principle on this issue. “The actions of state courts and judicial officers

in their official capacity have long been held to be state action governed

by the Fourteenth Amendment." Palmore v. Sidoti, 466 U.S. 429, 432

n.1 (1984). For example, recently this Court broadened the category of

potential parties whose actions may fall within the umbrella of State

action, by holding that a private litigant’s use of preemptory challenges

in a civil case to exclude jurors on account of their race, constitutes a

constitutional deprivation involving State action. Edmonson v. Leesville

Concrete Co., 111 S. Ct. 2077 (1991). Following this Court, lower

courts have consistently held that an injunction prohibiting a woman

17

Consequently, the New Jersey Supreme Court properly

applied this Court’s precedent in lifting the restraints

imposed on V.C.”

from having an abortion constitutes State action. See, €.2.,

Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57, 59 (Ch. Div.

1977).

ws Because petitioner’s requested relief in the courts below even

prohibited V.C. from leaving the State to obtain an abortion, the

injunction also violated respondent’s constitutional ght to travel. This

Court first recognized a mght to interstate travel in 1868 when it

invalidated Nevada’s attempt to tax persons leaving the State. See

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). Since Crandall, the

right to interstate travel has been “virtually unqualified." Califano v.

Aznavorian, 439 U.S. 170, 176 (1978). As stated in Williams v. Fears,

179 U.S. 270, 274 (1900):

Undoubtedly, the mght to locomotion, the mght to remove

from one place to another according to inclination, is an

attribute of personal liberty, and the mght, ordinarily, of free

transit from or through the territory of any state is a mght

secured by the Fourteenth Amendment and by other

provisions of the Constitution.

In 1973, this Court held that State imposed obstructions on a

woman’s right to travel to obtain an abortion were invalid. Holding

that the right to travel “must . . . protect persons who enter Georgia

seeking the medical services that are available there," this Court

invalidated Georgia’s residency requirement for abortion § as

discriminatory against those women traveling from out-of-state to obtain

those services. Doe v. Bolton, 410 U.S. 179, 200 (1973). Two years

later, this Court stated that Virginia could not "prevent its residents

from traveling to New York to obtain those [abortion] services, or, as

the State conceded . . . prosecute them for going there." Bigelow v.

Virginia, 421 U.S. 809, 824 (1975).

Therefore, in dissolving the temporary restraining order preventing

V.C. from obtaining an abortion in New Jersey, or from traveling

outside of New Jersey to obtain an abortion, the New Jersey Supreme

Court also properly applied this Court’s decisions protecting the nght to

18

B. A Man Does Not Have A Constitutional Right

To Interfere With A Woman’s Decision To Have

An Abortion.

Alternatively, petitioner contends that the New Jersey

Supreme Court’s decision somehow conflicts with the

decisions of this Court that allegedly recognize the right of

a man, both individually and as representative of the

interests of the fetus, to prevent a woman from obtaining an

abortion. See Cert. Pet. 62-63. As already explained,

none of these asserted "rights" can possibly be implicated in

this case, because there is no governmental action that

interferes with petitioner’s interests. See supra at 8-9."

But eve.: aside from the absence of State action necessary to

trigger constitutional protection of petitioner’s rights, the

simple fact is that petitioner does not and cannot cite any

case that actually holds that a man, in any capacity, has any

right to interfere with a woman’s decision to have an

abortion. In fact, the applicable precedent is directly to the

contrary.

As this Court recently held in Casey, a State cannot

interfere with a woman’s choice to have an abortion prior

to fetal viability. For precisely this reason, the State cannot

delegate such power to veto an abortion prior to fetal

viability to any other third party. Justice Blackmun,

writing for this Court in Planned Parenthood v. Danforth,

travel.

ws For this reason, the asserted “important questions of federal

constitutional law" which petitioner claims are left unsettled by this

Court’s pnor decisions, see Cert. Pet. 14-15, are frivolous indeed.

Petitioner argues that this Court has only resolved whether a State may

prohibit abortion, as opposed to how a conflict between private

individuals should be resolved. But in the absence of State action, such

a private dispute raises no federal constitutional issues at all.

19

428 U.S. 52 (1976), struck down a requirement of husband

consent for abortion, explaining:

Clearly, since the State cannot regulate or

proscribe abortion during the first stage, when the

physician and the patient make that decision, the

State cannot delegate authority to any particular

person, even the spouse, to prevent abortion during

that same period.

Danforth, 428 U.S. at 69.

Although petitioner complains that Danforth failed to

address the interests of the man in the abortion decision,

this is clearly wrong. The Court said:

Id.

We are not unaware of the deep and proper concern

that a devoted and protective husband has in his wife’s

pregnancy and in the growth and development of the

fetus she is carrying.

Nevertheless, the Court held:

It seems manifest that, ideally, the decision to

terminate a pregnancy should be one concurred in by

both the wife and the husband. No marriage may be

viewed as harmonious or successful if the marriage

partners are fundamentally divided on so important and

vital an issue. .

We recognize, of course, that when a woman, with

the approval of her physician but without the approval

of her husband, decides to terminate her pregnancy, it

could be said that she is acting unilaterally. The

obvious fact is that when the wife and the husband

disagree on this decision, the view of only one of the

ee CLL LLL

20

two marriage partners can prevail. Inasmuch as it is

the woman who is the more directly and immediately

affected by the pregnancy, as between the two, the

balance weighs in her favor.

Id. at 71. As this Court recognized in Eisenstadt v. Baird,

405 U.S. 438 (1972):

[T]he marital couple is not an independent entity with

the mind and heart of its own, but an association of

two individuals each with a separate intellectual

makeup. If the mght of privacy means anything, it is

the night of the individual, married or single, to be free

from unwarranted governmental intrusion into matters

so fundamentally affecting a person as the decision

whether or not to bear or beget a child.

Id. at 453 (emphasis in original).

In the courts below, petitioner argued that Danforth

was no longer good law, see Apx. Vol. II, at 84, but this

Court’s decision in Casey refutes that position. In striking

down Pennsylvania’s requirement of husband notification

for abortion, this Court relied upon and reaffirmed the

holding in Danforth. See Casey, 60 U.S.L.W. at 4812.

Distinguishing the very cases petitioner relies on here, see

Cert. Pet. 62 n.45, this Court recognized that although

"with respect to a living child” it "Would be reasonable to

conclude as a general matter" that the father’s and mother’s

interests are equal, "[bJefore birth, . . . the issue takes on a

very different cast. It is an inescapable biological fact that

State regulation with respect to the child a woman is

carrying will have a far greater impact on the mother’s

liberty than on the father’s." Casey, 60 U.S.L.W. at 4812.

For this reason, this Court held, the Constitution protects

women from unjustified State interference with their

21

abortion decisions, “even when that interference is enacted

into law for the benefit of their spouses." Jd. at 4813.

The husband’s interest in the life of the child

his wife is carrying does not permit the State to

empower him with this troubling degree of

authority over his wife. The contrary view leads

to consequences reminiscent of the common law.

A husband has no enforceable right to require a

wife to advise him before she exercises her

personal choices. . . . A State may not give to a

man the kind of dominion over his wife that

parents exercise over their children.

Id.

But if a State cannot compel a woman to notify her

husband of her abortion decision, a fortiori a non-spouse

cannot be given a veto over that choice. The injunciion

sought by petitioner therefore was an even more extreme

invasion of the right of privacy than the statute struck down

in Casey, and in lifting the injunction the New Jersey

Supreme Court correctly followed binding precedent.

C. A Fetus Is Not A "Person" Within The Meaning

Of The Fourteenth Amendment.

Petitioner’s final argument for granting a writ of

certiorari is somewhat incoherent. On the one hand,

petitioner argues that the New Jersey Supreme Court’s

decision conflicts with this Court’s prior decisions which

allegedly hold that a fetus is a "person" protected by the

Fourteenth Amendment of the United States Constitution.

See Cert. Pet. 60-61. On the other hand, apparently

acknowledging that the holding in Roe v. Wade is directly

to the contrary, see Cert. Pet. at 22-23, petitioner urges

that Roe should be overruled. Cert. Pet. 29-32, 56-57.

Both arguments are without merit.

Roe v. Wade presented the first opportunity to decide

whether a fetus is a “person” under the Fourteenth

Amendment. After examining both the language of the

Fourteenth Amendment and the relevant case law, this

Court held that as a matter of law, a fetus is not recognized

as a “person” and has no independent rights under the law.

See Roe, 410 U.S. at 157-58. "“[T]he unborn have never

been recognized in the law as persons in the whole sense,"

this Court held, and "the word ‘person,’ as used in the

Fourteenth Amendment, does not include the unborn." /d.

at 158, 162. Since Roe, this Court has repeatedly refused

to recognize independent fetal mghts. See Colautti v.

Franklin, 439 U.S. 379 (1979); City of Akron vy. Akron

Center for Reproductive Health, Inc., 462 U.S. 416 (1983);

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476

(1983). Cf. International Union, U.A.W. v. Johnson

Controls, Inc., 111 S. Ct. 1196 (1991) (employer’s "fetal

protection" policy excluding women with child-bearing

capacity from lead-exposed jobs violates Title VII). As

Justice Stevens stated in Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747 (1986), "[n]Jo

member of this Court has ever suggested that a fetus is a

‘person’ within the meaning of the Fourteenth

Amendment." /d. at 779 n.8 (Stevens, J., concurring).

Most recently, in Casey Justice Stevens reiterated:

Thus, aS a matter of federal constitutional law, a

developing organism that is not yet a "person" does not

have what is sometimes described as a "right to life."

This has been and, by the Court’s holding today,

remains a fundamental premise of our constitutional

law governing reproductive autonomy.

23

Casey, U.S.L.W. at 4817 (Stevens, J., concurring in part

and dissenting in part).

Indeed, even Justice Scalia’s opinion in Casey lends no

support to petitioner’s contention that a fetus is guaranteed

constitutional rights. Justice Scalia argued that the "States

may, if they wish, permit abortion-on-demand, but the

Constitution does not require them to do so." /d. at 4836

(Scalia, J., concurring in part and dissenting in part)

(emphasis in original). But if a fetus were recognized as a

"person" with rights guaranteed under the Fourteenth

Amendment, presumably States would be prohibited from

allowing legalized abortion.

Thus, petitioner’s contention that the New Jersey

Supreme Court contradicted this Court’s prior decisions is

wholly fallacious. Perhaps recognizing as much, petitioner

argues in the alternative that Roe should be overruled, but

he submits no persuasive reason for doing so. Brushing

aside concerns for stare decisis,’ petitioner at first

apparently admits that whether a fetus is a "person" under

the Fourteenth Amendment is a legal question. See Cert.

Pet. 24; see also id. at 26 ("when human !tife begins is truly

a legal question"). But having conceded this point,

petitioner can point to no development in the law that

'SPetitioner argues that stare decisis is “not a bar” to overruling Roe

simply because this Court has overruled prior decisions before. Cert.

Pet. 30. But in Casey, using a somewhat less simplistic analysis, this

Court cogently observed:

A decision to overrule Roe’s essential hoiding under the existing

circumstances would address error, if error there was, at the cost

of both profound and unnecessary damage to the Court’s

legitimacy, and to the Nation’s commitment to the rule of law.

Casey, 60 U.S.L.W. at 4805.

—

24

undermines Roe’s holding that a fetus is not a “person”

under the Fourteenth Amendment. Indeed, lower court’s

have consistently followed this holding,'® and petitioner

cites no contrary authority.’

Recognizing the untenable nature of his position,

petitioner shifts ground and argues instead that whether a

'°Ruiz Romero vy. Gonzales Caraballo, 681 F. Supp. 123 (D.P.R.

1988) (infant may not maintain claim under 42 U.S.C. § 1983 for

prenatal injuries); Harman v. Daniels, 525 F. Supp. 798 (W.D. Va.

1981) (fetus has no cause of action under 42 U.S.C. § 1983 or under

the Constitution); Civic Awareness of America, Lid. v. Richardson, 387

F. Supp. 1086 (E.D. Wis. 1975) (taxpayers lack standing to sue on

behalf of fetuses), aff'd, 532 F.2d 756 (7th Cir.), cert. denied, 429

U.S. 829 (1976); Poole v. Endsley, 371 F. Supp. 1379 (N.D. Fla.

1974) (fetus not a child for purposes of Social Security Act and has no

cause of action under Section 1983 or Fourteenth Amendment), aff'd in

part & remanded on other grounds, 516 F.2d 898 (Sth Cir. 1975).

'Conflating two separate issues, petitioner argues that the State's

interest in potential life mecessanly confers the status of legal

personhood on the fetus. See Cert. Pet. 60-62. Once again,

petitioner’s confusing argument is presented with citations that, when

examined, do not support his position. Snapp v. Puerto Rico, 458 U.S.

592 (1982), the primary case petitioner relies on, has absolutely nothing

to do with abortion and, in any case, stands for exactly the opposite of

what petitioner asserts. In Snapp this Court held that the common law

approach to parens patriae standing that petitioner advocates here

has relatively little to do with the concept of parens patriae

Standing that has developed in American law. That concept does

not involve the State stepping in to represent the interests of

particular citizens who, for whatever reason, cannot represent

themselves. In fact, if nothing more than this is involved -- 1.e., if

the state is only a nominal party without a real interest of its own -

-then it will not have standing under the parens patriae doctrine.

Snapp, 458 U.S. at 600.

25

fetus is a “person” turns on “when the life of a human

being commences [which] is, fundamentally a question of

fact." Cert. Pet. 30. Petitioner then launches into a

lengthy and often unintelligible discussion of alleged "recent

scientific discoveries" (based in large part on materials

never submitted in the courts below). Apparently, this

exposition is designed to demonstrate that life begins at

conception, although petitioner’s repeated focus on late

term abortions suggests he is advancing a somewhat more

modest claim. See, e.g., Cert. Pet. 56-57.

In any case, petitioner’s argument is fatally flawed in at

least two respects. First, petitioner never explains why the

legal question of whether a fetus is a “person” under the

Fourteenth Amendment turns on whether life begins at

conception. Second, petitioner’s factual assertions,

whatever they may be worth, go not to the issue of when

life begins, in terms of what characteristics a fetus must

possess to be deemed human, but rather to what

characteristics a fetus possesses. The proferred evidence

does not prove that life begins at conception, but merely

begs the question. In other words, the fact that an eight-

week old fetus has fingers is not probative, for example,

unless we know that fingers are what define human life.

Petitioner’s factual assertions cannot answer this

"difficult question of when life begins" precisely because it

is a metaphysical issue whose philosophical and theological

components necessarily frustrate consensus.

When those trained in the respective disciplines of

medicine, philosophy, and theology are unable to arrive

at any consensus, the judiciary, at this point in the

development of man’s knowledge, is not in a position

to speculate as to the answer.

Roe, 410 U.S. at 159.

In fact, there is no consensus in the scientific

community that life begins at conception. See, e.g.,

Declaration of Michael V.L. Bennett, paras. 2-9 (May 15,

1990), filed in Doe v. Ada, No. 90-00013 (D. Guam), App.

4a-8a.'* See also Webster, 492 U.S. at 571 & n.16

(Stevens, J., concurring in part and dissenting in part) ("the

intensely divisive character of the national debate over

abortion reflects the deeply held religious convictions of

many participants in the debate. . . . No fewer than 67

religious organizations submitted their views as amicus

curiae on either side of [the] case"). In hearings before

Congress on the so-called "Human Life Bill," for example,

the National Academy of Sciences stated that "[dJefining the

time at which the developing embryo becomes a person

must remain a matter of moral or religious value." App.

6a. Likewise, Joseph Boyle, M.D., the Chair of the Board

of Trustees of the American Medical Association, testified

that the question of whether human life begins at conception

goes “far beyond the realm of medical science and into

social, religious, philosophical, ethical, and moral

concerns." App. 7a."

“The Bennett Declaration was submitted by respondent in the courts

below and made part of the record. See App. la-3a.

‘Petitioner concedes that there is no consensus in the scientific

community for the view that life begins at conception, but he insists that

scientists who do not share this belief are merely “inject[ing] their

personal religious, moral and social bias [sic] into their answer." Cert.

Pet. 26. With all due respect, it is petitioner’s view that “the human is

biologically complete at conception,” id., that reveals a profound

confusion of science and _ religion. Cunously, in his original

certification in support of his application for temporary restraints,

petitioner did not mention any “scientific” evidence at all, but instead

expressed his opposition to abortion largely in terms of his religious

27

ll. THE NEW JERSEY SUPREME COURT’S

DECISION CONFORMS WITH THE DECISIONS

OF EVERY APPELLATE COURT TO CONSIDER

THE ISSUE.

A. No State Appellate Court Has Ever Held That A

Man May Prevent A Woman From Obtaining

An Abortion.

Since this Court’s decision in Roe v. Wade, literally

dozens of cases brought by husbands or putative boyfriends

have sought to prevent women from exercising their mght to

choose abortion. To respondent’s knowledge, every case

has rejected the precise arguments petitioner makes here,

and has held that a man does not have the right to a court

order enjoining a woman from exercising her abortion

right. This has been true in cases where the man seeking

the court order was the woman’s husband, see Conn v.

Conn, 525 N.E.2d 612 (Ind. Ct. App.), aff'd & opinion

adopted, 526 N.E.2d 958 (Ind.), cert. denied, 488 U.S.

955 (1988); Coleman v. Coleman, 57 Md. App. 755, 471

A.2d 1115, cert. denied, 298 Md. 353, 469 A.2d 1274

(1984); Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128

(1974); Meyers v. Lewis, No. 111440 (Mich. App. Sept.

15, 1988), appeal denied, No. 841469 (Mich. Sept. 22,

1988), cert. denied, 488 U.S. 967 (1988); Steinhoff v.

Steinhoff, No. 10549/88 (N.Y. Sup. Ct. June 29, 1988);

Anderson v. Anderson, No. 8821320 (Minn. Dist. Ct. July

8, 1988); Hayes v. Hayes, No. 85-CI-04460 (Tex. Dist. Ct.

Mar. 27, 1985), as well as where the man was not the

woman’s husband but claimed to be responsible for the

woman’s pregnancy, see Doe v. Smith, 527 N.E.2d 177

(Ind. 1988), cert. denied, 429 U.S. 919 (1989); Doe v.

beliefs. See Apx. Vol. I, at 18-19.

28

Roe, No. 88-1629 (N.Y. Sup. Ct. Sept. 14, 1988), appeal

dismissed as moot, 552 N.Y.S.2d 75 (App. Div. 1990);

Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57

(Ch. Div. 1977); Jones v. Smith, 278 So.2d 339 (Fla.

i973), cert. denied, 415 U.S. 958 (1974); Pagel v. Roe,

No. 83-765 (Wis. Ct. App. Apr. 21, 1983); Yozie v.

Munson, No. 82/19 56 S (Conn. Super. Ct. Sept. 28,

1982). See also Przybyla v. Przybyla, 87 Wis. 2d 441, 275

N.W.2d 112 (Ct. App. 1978) (woman’s exercise of right to

terminate her pregnancy without consent of husband cannot

support recovery by husband for intentional infliction of

emotional distress).

Throughout this litigation, petitioner has cited not even

one case in conflict with the New Jersey Supreme Court’s

decision below. This case and the foregoing authorities

were correctly decided, and there is no reason to disturb

this clear and unbroken line of precedent.

B. Every Federal Court To Address The Issue Has

Held That Husband Notice Or _ Consent

Requirements For Women Seeking Abortion Are

Unconstitutional.

Just as State courts have consistently held that men do

not have a right to court orders enjoining their wives or

girlfriends from having abortions, since this Court’s

decision in Danforth invalidating Missouri’s requirement of

spousal consent for abortion, to respondent’s knowledge

every federal court to address the issue has struck down

related statutory requirements of husband notice or consent

for abortion. See, e.g., Planned Parenthood v. Casey. 947

F.2d 682, 709-15 (3d Cir. 1991) (invalidating husband

notice requirement), aff'd, 60 U.S.L.W. 4795 (U.S. June

29, 1992); Charles v. Carey, 627 F.2d 772 (7th Cir. 1980)

(same); Eubanks v. Brown, 604 F. Supp. 141, 148 (W.D.

29

Ky. 1984) (same); Planned Parenthood v. Board of Medical

Review, 598 F. Supp. 625, 637 (D.R.I. 1984) (same);

Scheinberg v. Smith, 482 F. Supp. 529 (S.D. Fla. 1979),

aff'd in part, vacated in part, & remanded, 659 F.2d 476

(Sth Cir. Unit B Oct. 1981), on remand, 550 F. Supp. 1112

(S.D. Fla. 1982); Doe v. Deschamps, 461 F. Supp. 682,

686 (D. Mont. 1976) (same); Wolfe v. Schroering, 541

F.2d 523 (6th Cir. 1976) (invalidating husband consent

requirement even in second trimester).

Plainly, the decision of the New Jersey Supreme Court

was fully in accord with these federal decisions. Once

again, petitioner cites no contrary authority, nor provides

any reason for departing from this consistent line of cases.

30

CONCLUSION

For the foregoing reasons, the petitions for a writ of

certiorari should be denied.

July 23, 1992 Respectfully submitted,

Deborah A. Ellis Frances Farber-Walter

NOW Legal Defense and (Counsel of Record)

Education Fund Judith Taub

99 Hudson Street Stryker, Tams & Diil

New York, NY 10013 Two Penn Plaza East

(212) 925-6635 Newark, NJ 07105

(201) 491-9500

On Behalf of the

ACLU-NJ

Andrew Dwyer

Lynn M. Paltrow

Center for Reproductive

Law and Policy

120 Wall Street,

10th Floor

New York, NY 10005

(212) 514-5534

Attorneys for Respondent

APPENDIX

la

Frances Fraber-Walter, Esq.

STRYKER, TAMS & DILL

Two Penn Plaza East

Newark, New Jersey 07150

On Behalf of the ACLU of New Jersey

Attorneys for Defendant V.C.

X

: SUPERIOR COURT

J. M., Individually and OF NEW JERSEY

as guardian ad litem CHANCERY DIVISION

of his unborn child,

DOCKET NO.

Plaintiff, MON-C-66-92

VS. Appellate Docket

Nos. AM-742-91TS,

V.C., W.M.C., JOSEPH M-3884-91, M-3886-91

BLOW and RICHARD

ROE, fictitious

names of real Supreme Court

individuals who Docket No. 35,000

are employees and

agents of the defendant Civil Action

corporation

: CERTIFICATION OF

Defendants. : ANDREW DWYER IN

X OPPOSITION TO

PLAINTIFF’S

MOTION FOR

RECONSIDERATION

.

ca

ANDREW DWYER hereby certifies as follows:

1. I am co-counsel for defendant in this case and am

familiar with the facts and proceedings herein.

2. When defendant appealed to the New _ Jersey

Supreme Court, seeking to lift the temporary restraints

imposed on her and to dismiss the complaint, we submitted

in support of her appeal, inter alia, the Declaration of

Michael V.L. Bennett. Because of the emergent

circumstances of this case, we did not previously submit

this declaration to this Court or the Appellate Division. A

true and correct copy of the Bennett Declaration is attached

hereto.

3. The Bennett Declaration was originally submitted

in support of plaintiff's motion for summary judgment in

Doe v. Ada, No. 90-00013 (D. Guam) (sub nom. Guam

Soc’y of Obstetricians & Gynecologists v. Ada). This case

is a challenge to Guam’s criminal abortion statute, and my

office represents the plaintiffs who are challenging the law.

The district court granted our motion and enjoined the

Statute, and its decision was recently affirmed by the Ninth

Circuit. See Guam Soc’y of Obstetricians & Gynecologists

v. Ada, No. 90-00013 (D. Guam Aug. 23, 1990), Aff'd,

No. 90-16706 (9th Cir. Apr. 16, 1992).

4. The Bennett Declaration is relevant in this case,

because it explains why the question of when life begins

turns on religious, moral and philosophical considerations,

such that it cannot be determined by "scientific" evidence

alone.

5. In the New Jersey Supreme Court, plaintiff moved

to strike this declaration (as well as another declaration

submitted by defendant). The Court, however, denied this

3a

motion in it entirety. Therefore, the Bennett Declaration is

properly part of the record and before this Court.

6. I hereby certify that the foregoing statements made

by me are true. I am aware that if the foregoing statements

made by me are willfully false, | am subject to punishment.

/s/

ANDREW DWYER

DATED: April 21, 1992

4a

IN THE UNITED STATES DISTRICT COURT OF

GUAM FOR THE TERRITORY OF GUAM

MARIA DOE, on behalf of ) CIVIL ACTION

herself and all others ) NO. 90-000123

similarly situated, ef. al, )

)

Plaintiffs, ) DECLARATION

VS. ) OF MICHAEL V.L.

) BENNETT

JOSEPH F. ADA, et. al.,

Defendants.

eZ ew ee

1. I am a Professor and Chairperson of Neuroscience

at the Albert Einstein College of Medicine in the Bronx,

New York. I am a member of the National Academy of

Sciences. Attached to this Declaration as Exhibit A is a

copy of my curriculum vitae, which includes a list of some

of my publications. I am submitting this Declaration in

support of plaintiffs’ motion for summary judgment and

permanent injunction against Public Law 30-134 ("the

Act").

2. There is no scientific consensus that a human life

begins at conception, at a given stage of fetal development,

or at birth. The question of "when a human life begins"

cannot be answered by reference to scientific principles like

those with which scientists predict planetary movement.

The answer to that question will depend on_ each

individual’s social, religious, philosophical, ethical and

moral beliefs and values. These answers do not represent

any "scientific" truth, because they are based upon values

Sa

and beliefs, not upon science alone.

3. The only “consensus” that may be said to exist

among scientists on the question of when a human life

begins is that science alone cannot answer that question.

This is demonstrated by the response of the scientific

community when in 1981 a United States Senate

subcommittee held hearings on a bill to declare "that

present day scientific evidence indicates a_ significant

likelihood that actual human life exists from conception."

See The Human Life Bill: Hearings Before the

Subcommittee on Separation of Powers of the Senate

Committee of the Judiciary, 97th Cong., Ist Sess. (1981)

[hereinafter Hearings]. As distinguished scientists testified,

science alone does not provide the answer to this question.

4. For example, Dr. Leon Rosenberg, then Chairman

of the Department of Human Genetics, Yale University

Medical School testified:

When does this potential for human life become

actual? As a scientist, I must answer I do not

know. Moreover, I have not been able to find a

single piece of scientific evidence which helps me

with that question.

Not surprisingly, a great deal has been spoken and

written on the subject. Some people argue, as you

have heard, that life begins at conception. . .

I have no quarrel with anyone’s ideas on this

matter so long as it is clearly understood that they

are personal beliefs based on personal judgments

and not scientific truths.

Id. at SO.

6a

5. Dr. Rosenberg then explained the reason science

alone cannot answer the question -- the inability to test the

hypothesis by the scientific method:

The scientific method depends on two essential

things -- a thesis or idea and a means of testing

that idea. Scientists have been able to determine,

for instance, that the Earth is round or that genes

are composed of DNA because, and only because,

experiments could be performed to test these ideas.

Without experiments there is no science, no way to

prove or disprove any idea. I maintain that

concepts such as humanness are beyond the

purview of science because no idea about them can

be tested experimentally.

ld.

6. The National Academy of Sciences was equally

emphatic:

It is the view of the National Academy of Sciences

that the statement in [Senate Bill S. 158] cannot

Stand up to the scrutiny of science. This section

reads: "The congress finds that present day

scientific evidence indicates a significant likelihood

that actual human life exists from conception."

This statement purports to derive its conclusions

from science, but it deals with a question to which

science can provide no answer. The proposal in S.

158 that the term "person" shall include "all human

life" has no basis’ within’ our _ scientific

understanding. Defining the time at which the

developing embryo becomes a person must remain

a matter of moral or religious value.

7a

Id. at 74. See also id. at 1035-36 (statement of Joseph

Boyle, M.D., chairman of the board of trustees of the

American Medical Association) (there is no scientific

consensus that a human life begins at conception; that

question goes "far beyond the realm of medical science and

into social, religious, philosophical, ethical, and moral

concerns").

7. Science can indeed provide valuable information

and can answer concrete questions regarding prenatal

development by identifying, for example, the stages of fetal

brain development. But the question of when a human life

truly begins calls for a conclusion as to. which

characteristics define the essence of human life.

8. Many other physicians and scientists made these

observations at the 1981 hearings. See, e.g., id. at 68

(statement of Robert H. Ebert, M.D., President of Milbank

Memorial Fund, Caroline Shields Walker, Professor of

Medicine Emeritus, Harvard University) (whether a human

life begins at conception is not a medical or scientific

question, but a philosophical and religious question that

“can be debated endlessly and has to do with how one

defines a person and ’self’"); id. at 69-70 (statement of

Sherman M. Mellinkoff, M.D., Dean of the UCLA School

of Medicine) (same); id. at 71 (statement of Arno G.

Motuisky, M.D., Professor or Medicine and Genetics,

University of Washington) (same); id. at 113-14 (statement

of Dr. Jessica G. Davis, Director, Child Development

Center, Chief, Division of Genetics, North Shore

University Hospital) (same). The subcommittee also

received hundreds of letters from scientists and physicians

across the country echoing Dr. Rosenberg’s views. See

8a

e.g., Hearings app. 414, 669, 716, 718."

9. Science cannot define the essential attributes of

human life any more than science can define such concepts

as love, faith or trust. Hearings at SO. This United States

Supreme Court was indisputably correct when it observed

in Roe v. Wade, 410 U.S. 113, 159 (1973), that the

question of when human life begins cannot simply be

referred to an expert discipline for resolution.

10. While science cannot tell us which biological

attributes establish the existence of a human being, science

can tell us when certain biological attributes can be

detected. For example, it is not until sometime after

twenty-eight weeks of gestation that the fetal brain has the

capacity to carry on the same range of neurological activity

as the brain in a full-term newborn. Fetal brain

development is obviously a long and incremental process.

Brain cells in the neocortex, the portion of the brain in

which the processes we call thought, emotion and

consciousness occur, must be sufficiently developed to

permit this kind of neurological activity to take place.

The fact that the subcommittee itself could not reach

agreement on the question further highlights the inability to find the

answer in scientific truth. The Human Life Bill -- S. 158: Report by

the Subcommittee on Separation of Powers, Senate Committee on the

Judiciary, 87th Cong., Ist Sess. 39, 41 (1981) (minority view of

Senator Baucus) ("If the Hearings on S. 158 held by the Separation of

Powers Subcommittee were conclusive on any point it is that in 1981

there remains no consensus among scientists, philosophers and

theologians on the question of when life begins."). Indeed, the current

~ Commissioner of the Food and Drug Administration, Frank E. Young,

M.D., stated in 1981 that “science and medicine cannot unequivocally

establish the time in the continuum of development where human life

begins"; the decision is “in part moral, ethical, philosophical and

religious." Hearings app. at 781.

9a

11. At about twenty-eight weeks of gestation, brain

development is marked by the sudden emergence of

dendritic spines in the neocortex. Dendritic spines are

essential components in the brain’s cellular circuitry.? One

study has indicated that neocortical cells possess no

dendritic spines as late as 24 to 27 weeks of gestation.’ It

is also at that time that large-scale neocortical

synaptogenesis (the development of neural connections

between brain cells in the neocortex) begins,‘ although

limited synaptogenesis may begin as early as 19 to 22

weeks of gestation> Some primitive motor activities such

as swallowing and spontaneous movement of limbs, begin

between eight and thirteen weeks of gestation.° However,

the thalamocortical connections which are prerequisites for

neocortical reception of bodily sensation do not begin to

develop until approximately 22 or 23 weeks.’

*

+

M. Flower, Neuromaturation and the Moral Status of Human

Fetal Life in Abortion Rights and Fetal Personhood 71, 77 (Doerr &

Prescott ed. 1989) (emphasis in original) (forthcoming).

. D.P. Purpura, Morphogenesis of Visual Cortex in the Preterm

Infant in Growth and Development of the Brain, 33, 46 (M.A.B.

Brazier ed. 1975) (examining the visual cortex).

: Id. 45-46.

. Molliver, Kostovic & Van Der Loos, The Development of

Synapses in Cerebral Cortex of the Human Fetus, 50 Brain Research

403-07 (1973).

Flower, supra n.1 at 75.

: Kostovic & Goldman-Rakic, Transient Cholinesterase

Staining in the Mediodorsal Nucleus of the Thalamus and _ its

Connections in the Developing Human and Monkey Brain, 219 Journal

of comparative Neurology 431-47 91983); Kostovic & Rakic,

Development of prestriate Visual Projections in the Monkey and Human

10a

12. In addition, regular patterned’ electro-

encephalograms (EEGs) with characteristics of an adult

EEG appear at approximately 30 weeks.* Of course, the

fact that the fetus develops the bare biological capacity for

crucial neurological processes does not necessarily mean

that these neurological processes actually begin to occur in

this period. Indeed, the cerebral cortex is relatively

nonfunctional even in normal newborns.”

13. The neurobiological data indicate that the fetus

lacks the physical capacity for the neurological activities we

associate with human thought until sometime after 28 weeks

gestation. In other words, the capacity for the human

thought process as we know it cannot exist before that time.

Thus, although people may have different views as to

whether the capacity for human thought is relevant to status

as a human being, the argument that a fetus should have the

Status of a born person because science shows that a fetus is

able to think is false.

14. The Act’s finding that human life begins at the

moment of conception cannot draw support from science or

scientific evidence. The Act’s legislative findings

represents the philosophical or religious judgment that

human life begins at conception, and cannot be justified as

legislation that merely restates a scientific fact.

Fetal Cerebrum Revealed by Transient cholinesterase Staining, 4

Journal of Neuroscience 25-42 (1984).

. Flower, supra n. | at 79.

: Shewmon, Capron, Warwick & Schulman, The Use of

Anencephalic Infants as Organ Donors: A Critique, 261 Journal of

American Medical Association 1773-18 (1989).

lla

WHEREFORE, I respectfully request that the Court

grant plaintiff's Motion for Summary Judgment and

Permanent Induction.

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on May 15, 1990 [s/

Michael V.L. Bennett