Opposition Brief — J. M. v. V. C.

q Bupreme Court, U.S,

af 3

No. 92-1934

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1992

>

J.M., INDIVIDUALLY,

Petitioner,

—against—

V.C., et al.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

RESPONDENT?’S BRIEF IN OPPOSITION

FRANCES FARBER- WALTER LENORA LAPIDUS

(Counsel of Record) SIMON HELLER

STRYKER, TAMS & DILL The Center for Reproductive

Two Penn Plaza East Law and Policy

Newark, New Jersey 07105 120 Wall Street, 18th Floor

(201) 491-9500 New York, New York 10005

(212) 514-5534

Attorneys for Respondent

COUNTERSTATEMENT OF THE QUESTIONS

PRESENTED

1. Does petitioner have standing to raise claims on

behalf of the fetus?

2. Are petitioner’s constitutional rights under the

Fourteenth Amendment implicated in the absence of state

governmental action?

3. May a state court prohibit a woman from obtaining an

abortion prior to fetal viability?

4. Does a man have a constitutional right to interfere

with a woman’s decision to have an abortion?

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

Fourteenth Amendment?

il

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTIONS

tis ee aw A abe bdsn ns useavns i

TABLE OF AUTHORITIES ...................... iv

COUNTERSTATEMENT OF JURISDICTION ......... l

A. Petitioner Has No Standing To Raise

Claims On Behalf Of The Fetus ............. l

B. Petitioner’s Constitutional Rights

Under The Fourteenth Amendment Are Not

Implicated Because There Is No

ee 3

COUNTERSTATEMENT OF THE CASE ............ 4

REASONS THE PETITION SHOULD BE DENIED ...... 8

I. THIS COURT'S PRIOR DECISIONS ARE

DISPOSITIVE AND WERE PROPERLY

APPLIED BY THE NEW JERSEY

Dg 8

A. Every Woman has a Constitutional

Right To Decide Whether Or Not To

Terminate Her Pregnancy .............. 9

B. A Man Does Not Have A Constitutional

Right to Interfere With A Woman’s

Decision To Have An Abortion .......... 12

C. A Fetus Is Not A "Person" Within

The Meaning Of The Fourteenth

Ok ck cu cdc wenn: 14

ill

Il. THE NEW JERSEY SUPREME COURT'S

DECISION CONFORMS WITH THE DECISIONS

OF EVERY APPELLATE COURT TO CONSIDER

Sek ER ce eer es bee Ko 19

A. No State Appellate Court Has Ever

Held That A Man May Prevent A Woman

From Obtaining An Abortion ............ 19

B. Every Federal Court To Address The

Issue Has Held That Husband Notice Or

Consent Requirements For Women Seeking

Abortion Are Unconstitutional ........... 20

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) ......... 2

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

UE Gy SU 5 nas se Oe e's ee Oe 20

Bigelow v. Virginia, 421 U.S. 809 (1975) ............. 12

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

cert. denied, 449 U.S. 1081 (1981) .............. 2

Califano v. Aznavorian, 439 U.S. 170 (1978) .......... 12

Charles v. Carey, 627 F.2d 772 (7th Cir. 1980) ......... 21

City of Akron v. Akron Center for Reproductive Health,

Ne a a ae 15

Civic Awareness 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) ........ 17

Cael Mee Ces, TP GS. 2 CRG) ck eh eee es 3

Colautti v. Franklin, 439 U.S. 379 (1979) ............. 15

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

denied, 298 Md. 353, 469 A.2d 1274 (1984) ....... 19

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

to | ge PAE Ne Caner eer ere eee ee ee ee ere ae 2

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

Vv

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

ee, NO UP. BOS CEDOO) 6 6 eh ce eee seen ees 19

Coen even, SEP U.S. TIO CEFTO) . ss ee ees eas 3

Crandall v. Nevada, 73 U.S. (6 Wall) 35 (1869) ........ 12

Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970) (three

judge-court), modified on other grounds,

gk Ne, 2th eae ae ea ea ewer 2,12

Doe v. Deschamps, 461 F. Supp. 682 (D. Mont. 1976)... . 21

Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128 (1974) ... 4,19

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

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

I NE es 6 Van aha ea ee eae 20

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

aE COD a a oe ew ON Se kA ee 20

Edwards v. California, 314 U.S. 160 (1941) ........... 12

Equitable Life Ins. Soc’y v. Brown, 187 U.S. 308 (1902) .. 4

Eubanks v. Brown, 604 F. Supp. 141 (W.D. Ky. 1984) ... 21

Ex Parte Virginia, 100 U.S. 339 (1880) .............. 11

Gleitman v. Cosgrove, 49 N.J. 22 (1967) ............. 1]

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 3,10

Harman v. Daniels, 525 F. Supp. 798 (W.D. Va. 1981) ... 17

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

vi

ee Ae SED. yoo ck be ks ae ee eee eee 20

Hummel v. Reiss, 129 N.J. 118 (1992) ............... 11

In re D.K., 204 N.J. Super. 205, 497 A.2d 1298 (Ch. Div.

ee re re ee Me, z

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

S00 ee EN th ae ee eae ere ke 15

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

ae Os ee os hoe be a ee eo eee ele 20

Kelly v. Gregory, 125 N.Y.S. 2d 696 (1953) ........... 1]

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

Ee A. Saath Doe p MEA BORIMNC AD aye ORE ane Ment a, ARE Nt, ct te A 2

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

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

cert. denied, 488 U.S. 967 (1988) ............... 19

Pagel v. Roe, No. 83-765 (Wis. Ct. App. Apr. 21, 1983) .. 20

Palmore v. Sidoti, 466 U.S. 429 (1984) .............. 11

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........ 3

Planned Parenthood v. Board of Medical Review,

ee ©. ee. Gare Cais POOR 55k i eee cs 21

Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991),

ge oy go i See, OC. . * 6 Se ar rar passim

Planned Parenthood of Central Missouri et al. v. Danforth,

og ee Eh ee Crea eee 20

Vil

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) 15

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

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

gk ee | a 1,17

Przybyla v. Przylyla, 87 Wis. 2d 112 (Ct. App. 1978) .... 20

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ........... 3

Roe v. Wade, 410 U.S. 113 (1973) ............... passim

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

Pe NU 0 ie ike wn KES oA we is ke od

Ruiz Romero v. Gonzalez Caraballo, 681 F. Supp. 123

Eh MEER es kage eh ae ee le 17

UNE ©; OR RAS Ue Pe CUT a) ike eck oe ew ee 2

Santosky v. Kramer, 455 U.S. 745 (1982) ............. 3

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.

PRs Ge WO CRED ino ke kes ee a ses ve

Shapiro v. Thompson, 394 U.S. 618 (1969)... ......... 3

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

Skinner v. Oklahoma, 316 U.S. 535 (1942) ............ 3

Smith v. Brennan, 3) N.J. 353, 157 A.2d 497 (1960) ..... 1]

Snapp v. Puerto Rico, 458 U.S. 592 (1982) ........... 17

eo

Vill

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 3

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

ec ae ot ea es ee 19

Thornburgh vy. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) ................. 15

United States v. Guest, 383 U.S. 745 (1966) .......... 12

Woe v. Bear, No. H-79-1866 (S.D. Tex. May 5, 1980) .... 2

Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976) ....... 21

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

Se OS a ae ee 20

Zbaraz v. Quern, No. 77-C-4522 (N.D. Ill. May 15, 1978) . 2

quem v. Tee, Bee Um EPA CISZ2) ow. oi cc eee 4

Statutory Provisions and Rules:

EN in! rd ok ke ack a 4 le Hc Sk kA ae Ws 8

Miscellaneous:

Susan Goldberg, Of Gametes and Guardians: The Impropriety

oj Appointing Guardians Ad Litem fhmbertase66rW ash. L.

ccocghud Me, A | RAIN ARAD ESS ap ADD ne 2

anal al

l

Respondent, V.C., submits this brief in Opposition to the

petition for a writ of certiorari filed by petitioner, J.M. The

petition seeks review of the judgment of the New Jersey

Supreme Court which dismissed petitioner's appeal on the

ground that the appeal did not present any substantial

constitutional question and the issues raised were governed by

this Court’s decision in Planned Parenthood y. Casey, 112

S.Ct. 2791 (1992). See Order, NJ. Sup. Ct., March 11, 1993.

App. Vol. I at A-221, 222.'

COUNTERSTATEMENT OF JURISDICTION

This Court does not possess jurisdiction to review the

judgment of the New Jersey Supreme Court. First, petitioner

lacks standing to assert the interests of the fetus, because a

fetus is not a "person" with independent legal rights under the

Constitution. Further, petitioner’s assertion that this case

implicates his own constitutional rights is frivolous, because

the rights 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

petition.

A. 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 14-19. The conclusion necessarily follows that “an

unborn child and persons acting in behalf of an unborn child

may not assert the deprivation of any rights or privileges

secured by -the Amendment." Poole v. Endsley, 371 F. Supp.

‘All citations to materials in the appendix refer to Petitioner's

Appendices submitted with the Petition for a Writ of Certiorari and are

cited as "App. Vol. ___, at A-__."

2

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 388 (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 behalf of the fetus); In 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 and denied standing to

individuals seeking to intervene to challenge a woman’s right

to choose abortion. 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 the fetus is not a "person" under the

Fourteenth Amendment, petitioner has no standing to raise any

alleged constitutional rights of the fetus, and these claims are

*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

consideration 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.

not properly before this Court.

B. Petitioner’s Constitutional Rights Under The

Fourteenth Amendment Are Not _ implicated

Because There Is No State Action

The alleged federal questions raised by the petition

concern petitioner’s rights under the Fourteenth Amendment of

the United States Constitution. See Cert. Pet. 2, 3. 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 right

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 rights

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

governmental action affirmatively discriminating against or

interfering with the autonomy of private individuals.’ This,

however, is not such a case.

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

parental nights 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 unmarried

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):

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

parents from sending their children to private schools).

4

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 mghts petitioner describes

"involve[] a shield for the private citizen against governmental

action, not a sword of governmental 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, 130

(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 entirely 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 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 9, 1992, petitioner

filed a complaint in- the Superior Court of New Jersey,

EE

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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 asserted claims on his own behalf

and sought to be appointed "guardian ad litem" for the fetus.

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.

Respondent, V.C., moved on notice to dissolve the

restraints and dismiss petitioner’s complaint for failure to state

a claim upon which relief could be granted. On March 19,

1992, 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) continued the restraints imposed on V.C. The

Court did not decide that the fetus had standing, nor that

petitioner had shown a likelihood of success on the merits.

Rather, the Court stated it might hold, after a plenary hearing,

that the fetus is a "person" with rights protected under both the

federal and New Jersey Constitutions.

On March 20, 1992, respondent 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 23, 1992, 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 this individual action; but also (2)

6

denied V.C.’s motion for leave to appeal the trial court’s order

her motion to dismiss the complaint in its entirety; and (3)

granted V.C.’s motion for leave to appeal the trial count’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, to give petitioner a chance to bring an application for

emergent relief to the New Jersey Supreme Court.

Both sides sought leave to appeal to the Supreme Court of

New Jersey on an emergent basis. Respondent 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 concluding "that under current

law, plaintiff's proffer of proofs would not realistically assist

or inform the court in its determination of the legal issues

properly before it,” App. Vol. I, at A-177, 178, the New Jersey

Supreme Court unanimously: (1) granted respondent’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 respondent's

motion to lift the stay of the Appellate Division’s order

dissolving the temporary restraints entered by the trial 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 his individual complaint and

dismissed as moot his motion for summary reversal on that

issue.

—s aaa

7

On March 25, 1992 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.

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 6, 1992

and his motion for reconsideration in the trial court was denied

on May 12, 1992. On May 18, 1992, petitioner filed a notice

of appeal from the trial court order entered on March 19, 1992

dismissing his individual complaint.

On June 22, 1992, petitioner filed two separate but nearly

identical petitions for certiorari with this Court, one allegedly

on behalf of himself as an individual and one allegedly on

behalf of the fetus, represented by petitioner as "guardian ad

litem." Petitioner sought this Court’s review of his claim as an

individual -- the same claim raised herein -- even though that

claim was still pending on appeal in the Appellate Division.

In this Court, petitioner argued that the New Jersey Supreme

Court’s decision in this case was final as to both his claim as

guardian ad litem for the fetus, and his claim as an individual.

Simultaneously, petitioner argued in state court, that the New

Jersey Supreme Court never reviewed petitioner’s individual

claim at all, so that he could continue to re-litigate these

issues. This Court denied both petitions for writs of certiorari

on October 5, 1992.

Respondent, V.C., filed a Motion for Summary

Affirmance of the trial court’s dismissal of petitioner’s claim

as an individual in the Appellate Division on July 31, 1992.

On September 21, 1992 the Appellate Division granted

8

respondent’s motion, dismissed petitioner’s appeal, and ruled

that "the determination presented for review [was] summarily

affirmed." N.J. Super. Ct. App. Div., Sept. 21, 1992, App. Vol.

I at A-185.

On November 4, 1992, petitioner filed a Notice of Appeal

to the New Jersey Supreme Court. Respondent filed a Motion

for Summary Affirmance or for Dismissal of the Appeal on

December 21, 1992. On March 11, 1993 the New Jersey

Supreme Court dismissed the appeal, holding the appeal failed

to raise any substantial constitutional question and "is governed

by current law. Planned Parenthood v. Casey." Order N.J.

Sup. Ct., March 11, 1993, App. Vol. I at A-221, 222.

REASONS THE PETITION SHOULD BE DENIED

The petition should be denied because it fails 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

reaffirmed in Casey, 112 S.Ct. at 2804, Roe v. Wade, 410 U.S.

113 (1973), and its progeny clearly protect the right of every

woman, including respondent, to choose to terminate her

pregnancy prior to viability. These factors provided the basis

for this Court’s denial of petitioner’s two prior petitions for

writ of certiorari, and because petitioner here raises no new

issues or questions that warrant review, certiorari should again

be denied.

I. THIS COURT’S PRIOR DECISIONS ARE

DISPOSITIVE AND WERE PROPERLY APPLIED

BY THE NEW JERSEY SUPREME COURT.

9

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 dismiss petitioner’s appeal was in error because it

was based on this Court’s decision in Roe v. Wade, which, in

petitioner’s view, did not directly decide the question of when

human life begins, and whether fetuses are entitled to

constitutional protection. See Cert. Pet. at 10. The petition, in

large part, consists of purported evidence* intended to prove

that life begins at conception. However, because this Court

has clearly held that the Constitution protects a woman’s right

to choose to terminate her pregnancy prior to viability, and that

a fetus is not entitled to constitutional protection, the New

Jersey Supreme Court’s reliance on Casey, 112 S. Ct. 2791, is

correct and this petition should be denied.

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, 410 U.S. at

153. In Casey, this Court reaffirmed this right stating, "the

essential holding of Roe v. Wade should be retained and once

again reaffirmed." Casey, 112 S.Ct. at 2804.

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, 112 S.Ct. at 2817.

Holding that "[t]hese matters, involving the most intimate

and personal choices a person may make in a lifetime, choices

central to personal dignity and autonomy, are central to the

“This evidence was not presented below and is not part of the record.

10

liberty protected by the Fourteenth Amendment,” Casey, 112

S.Ct. at 2807, this Court reiterated Roe’s protection of a

woman’s right to choose abortion:

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, 112 S.Ct. at 2812.

In Casey, this Court made clear that prior to viability, a

State may not prevent a woman from obtaining an abortion.

Although this Court recognized that "the State has legitimate

interests from the outset of the pregnancy in protecting the

health of the woman and the life of the fetus," id. at 2804,

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." /d.° Therefore, "[rlegardless of whether exceptions

are made for particular circumstances, a State may not prohibit

any woman from making the intimate decision to terminate her

‘If petitioner's claims are accepted, not only would women be deprived

of the right to abortion, but many forms of contraception would be

iliegal as well, since such a finding would effectively reverse this

Court’s decision in Griswold v. Connecticut. 381 U.S. 479 (1965) (the

decision to use contraception is a fundamental right).

*Even after viability, a State that chooses to regulate abortion must

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

Casey, 112 S. Ct. at 2821, 2822. 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 or "[w]here conception is not

the result of voluntary conduct, in instances of rape and its equivalent.”

Cert. Pet. 63, n. 91; see also Cert. Pet. 62-63.

ee

1]

pregnancy before viability." Jd. at 2821.

By seeking a court order absolutely prohibiting V.C. from

having an abortion, petitioner would completely obliterate the

constitutionally protected right to privacy recognized in Roe

and reaffirmed in Casey. If a state can not ban abortions prior

to viability, clearly a state court can not enjoin a woman from

obtaining an abortion upon the application of an individual

who disagrees with her choice.’

Nevertheless, petitioner argues that the woman’s interest

in terminating her pregnancy is outweighed by the fetus’ right

to life. Cert. Pet. 49-50.* However, because the fetus is not

recognized as a "person" and because every woman is free to

choose abortion prior to viability, petitioner’s claims must fail.

The New Jersey Supreme Court properly applied this Court’s

precedent in lifting the restraints imposed on V.C. and

dismissing petitioner's appeal. Accordingly, the petition for a

'The injunction petitioner sought below constituted state action even

though the operative state actor was a court, 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).

"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). Lower

Courts have consistently held that an injunction prohibiting a woman

from having an abortion constitutes State action. See, e.g., Rothenberger

v. Doe, 149 N.J. Super. 478, 374 A.2d 57, 59 (Ch. Div. 1977).

“Petitioner also asserts that New Jersey courts hold that life begins at

conception, but each of the cases he cites as authority are either

preempted by Roe, see Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d

(1967); Smith v. Brennan, 157 A.2d 497 (1960); Kelly v. Gregory, 125

N.Y.S. 2d 696 (1953), or misinterpreted see Hummel v. Reiss, 129 N.J.

118 (1992) (concerning claims of wrongful life). See Cert. Pet 36, 37.

12

writ of certiorari should be denied.’

B. A Man Does Not Have A Constitutional Right to

Interfere With A Woman’s Decision To Have An

Abortion.

Petitioner contends that the New Jersey Supreme Court’s

decision somehow conflicts with the decisions of this Court

that recognize rights of a father to procreation, parenting,

companionship, and equal protection. See Cert. Pet. at 54-60.

However, none of these asserted rights can possibly be

"Because petitioner's requested relief in the courts below prohibited

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

violated respondent’s constitutional right to travel. See Califano v.

Aznavorian, 439 U.S. 170, 176 (1978); Crandall v. Nevada, 73 U.S. (6

Wall.) 35 (1868). This Court recognized long ago that inherent in the

nature of our federal union was the freedom to travel from state to state

in search of a better life or to exercise a legal right. Edwards y.

California, 314 U.S. 160 (1941). "The right to interstate travel is a right

that the Constitution itself guarantees . . . [and] is a right secured against

interference from any source whatever, whether governmental or

private." United States v. Guest, 383 U.S. 745, 759-60 n. 17 (1966).

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

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

that the nght 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 towards 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) (citations omitted).

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, and in dismissing petitioner's appeal, the

New Jersey Supreme Court properly applied this Court’s decisions

protecting the right to travel.

—————————————————————

13

implicated in this case, because there is no governmental

action that interferes with petitioner’s interests. See supra at

3-4. Moreover, none of these rights gives a man authority to

prevent a woman from obtaining an abortion. Even 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 can not 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 held in Casey, a State can not prohibit or

unduly burden a woman’s choice to have an abortion prior to

fetal viability. 112 S.Ct. at 2804. Neither, can a state permit a

third party to exercise a veto over the woman’s decision. /d.

at 2831. In striking down Pennsylvania’s husband notification

requirement, this Court in Casey held,

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. at 2831.

Distinguishing the very cases petitioner relies on here, see

Cert. Pet. at 55 n. 85, 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 interest . . . and

the mother’s interest 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

14

woman is carrying will have a far greater impact on the

mother’s liberty than on the father’s." Casey, 112 S.Ct. at

2830. For this reason, this Court held, the Constitution

protects women from undue state interference with their

abortion decision, “even when that interference is enacted into

law for the benefit of their spouses." /d.

If a State can not compel a woman to notify her husband

of her abortion decision, a fortiori a non-spouse can not be

permitted to veto that choice. The injunction 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 and dismissing petitioner's frivolous

appeal, the New Jersey Supreme Court merely followed

binding precedent.

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

Of The Fourteenth Amendment.

Petitioner's entire argument is premised on the invalid

assumption that a fetus is a child, and therefore a father has

standing to protect the fetus’ interests. Unless the Court

accepts petitioner's claim that an embryo becomes a human

being with full constitutional rights and protections upon the

moment of fertilization, petitioner's whole argument fails. A

large portion of the petition is devoted to alleged medical

findings, most of which materials were never presented below.

However, because the determination of legal "personhood" is

governed by controlling precedent, this alleged medical

evidence is irrelevant.

Petitioner also argues that overruling Roe is consistent

with stare decisis, because new factual findings require

reapplication of those facts to constitutional principles.

However, petitioner has not presented any facts worthy of the

reevaluation of longstanding precedent, much less the reversal

of a long line of cases.

|

15

Finally, petitioner argues that the framers of the

Constitution intended to include fetuses in the 14th

Amendment's definition of "person," and therefore the New

Jersey Supreme Court’s decision is invalid. See Cert. Pet. 38-

45. However, petitioner cites no legal authority supporting this

absurd interpretation.

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 157-8. "[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 v. 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]o 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

16

reproductive autonomy.

Casey, 112 S.Ct. at 2839 (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 2873

(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.

Petitioner argues 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 is a “mixed question of

fact and law." See Cert. Pet. 16. But petitioner can point to no

development in the law that undermines Roe’s holding that a

fetus is not a "person" under the Fourteenth Amendment.

Petitioner argues that stare decisis is “not a bar" to overruling Roe

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

Pet. 15. But in Casey, using a somewhat less simplistic analysis, this

Court cogently observed:

A decision to overrule Roe’s essential holding 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, at 2816.

eS

17

Indeed, lower courts have consistently followed _ this

holding,'' and petitioner cites no contrary authority.!”

"Ruiz Romero v. Gonzalez 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, Ltd. 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 States’s

interest in potential life necessarily confers the status of legal

personhood on the fetus. See Cert. Pet. 45-6. 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 -- i.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.

Indeed, the fact that a state may have a legitimate interest in

something does not confer upon that thing standing to raise claims. For

example, although a state may have an interest in protecting trees, the

trees themselves -- which are not persons -- have no standing to come

into court and no individual has standing to raise claims on behalf of

(continued...)

18

Petitioner argues that overruling Roe is consistent with

stare decisis because whether a fetus is a "person" turns on

when human life begins. Cert. Pet. 12-14. Petitioner then

launches into a lengthy and often unintelligible discussion of

alleged recent developments and discoveries in science and

medicine. 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 mere modest claim. See, e.g., Cert. Pet. 31.'°

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 proffered 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.

'°(._.continued)

trees or to be appointed "guardian ad litem" to represent alleged interests

of trees.

‘Petitioner's reference to a subsequent pregnancy of respondent, see

Petition for Wnt of Certiorari at. 5, 9, is wholly inappropriate and

irrelevant as that pregnancy is not, in any way at issue in this litigation.

19

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 and such a

conclusion, based as it is on philosophical and theological

concerns, can not be drawn from the alleged medical evidence

submitted by petitioner.

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 right 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.), affd & 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,

20

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

Anderson, No. 881320 (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 US.

919 (1989); 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.

1990); Rothenberger v. Doe, 149 N.J. Super. 478, 374 A.2d 57

(Ch. Div. 1977); Jones v. Smith, 278 So.2d 339 (Fla. 1973),

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

'>m having abortions, since this Court’s decision in Planned

renthood of Central Missouri v. Danforth, 428 U.S. 52

(1976), 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, just as

21

this Court did in Casey, 112 S.Ct. 2791. See, e.g., Charles v.

Carey, 627 F.2d 772 (7th Cir. 1980); Eubanks v. Brown, 604

F. Supp. 141, 148 (W.D. Ky. 1984); Planned Parenthood y.

Board of Medical Review, 598 F. Supp. 625, 637 (D.R.I.

1984); Scheinberg v. Smith, 482 F.Supp. 529 (S.D. Fla. 1979),

aff'd in part, vacated in part, & remanded, 629 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); Wolfe v. Schroering, 541 F.2d 523 (6th Cir.

1976).

Plainly, the decision of the New Jersey Supreme Court

was fully in accord with Casey and these other federal

decisions. Once again, petitioner cites no contrary authority,

nor provides any reason for departing from this consistent line

of cases.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully Submitted,

Frances Farber-Walter Lenora Lapidus

(counsel of record) Simon Heller

Stryker, Tams & Dill Center for Reproductive

Two Penn Plaza East Law & Policy

Newark, New Jersey 07105 120 Wall Street

(201) 491-9500 New York, New York

10005

Dated: July 7, 1993 (212) 514-5534