Motion — United States v. Vuitch

Supreme Court brief1971

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In THE -

Supreme Court of the Hnited Spite sovs, eer

Ocroser Term, 1969

No nian 4

—<

Unsrrep States or AMERICA,

Appellant,

—versus—

Mian Vorrcu, M.D.,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO AFFIRM

t ee Srrnick

1511 K Street, N.W.

Washington, D. C. 20005

JosePH L. NELuIs

1819 H Street, N.W.

Washington, D. C. 20006

Roy Lucas

26 West 9th Street

New York, N. Y. 10011

Attorneys for Appellee.

TABLE OF CONTENTS

Motion to Affirm

Citation to Opinions Below

Jurisdiction

Statute Involved

Questions Presented

Statement of the Case

The Questions Are Not Substantial

Introduction

I. D.C. Code §22-201, Which Forbids a Physi-

cian to Interrupt Pregnancy Unless “Neces-

sary for the Preservation of the Mother’s Life

or Health” Is Unconstitutionally Vague and

Indefinite, Because It Provides No Warning

to the Physician, Jury, or Judge of What

Physical, Mental, or Social Conditions May

Be Taken into Account When Assessing Neces-

sity

Il. D.C. Code §22-201 Deprives Physicians and

Their Patients of Rights Protected by the

First, Fourth, Fifth, and Ninth Amendments,

and Is Neither Narrowly Drawn nor Sup-

ported by Any Overriding and Compelling

Governmental Interest

Pag

A. The Rights to Give and Receive Medical

Advice and Treatment %

B. The Right of Privacy a -)

C. The Right to Choose Whether and When

to Bear and Raise Children

D. Insufficiency of Governmental Interests .

ConcLusion

TaBLeE oF AUTHORITIES

Cases:

Adamson v. California, 332 U.S. 46 (1947) ....

Application of the President and Directors of George-

town College, Inc., 331 F.2d 1010 (D.C. Cir.), cert.

denied, 377 U.S. 978 (1964) ;

Aptheker v. Secretary of State, 378 U.S. 500 (1964) ...

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

Babbitz v. McCann, 306 F. Supp. 400 (E.D. Wis.) ..

Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966) .. §

Bolling v. Sharpe, 347 U.S. 497 (1954)

Boyd v. United States, 271 U.S. 104 (1926) ..

Brotherhood of Railway Trainmen v. Virginia, 377

U.S. 1 (1964) 21,0

California v. Belous, 71 Cal.2d 996, 458 P.2d 194, 80

Cal. Rptr. 354 (1969), cert. denied, 397 U.S. —

(1970) 4, 5, 6, 16, 17,2

California v. Robb, Nos. 149005 & 159061 (Calif. Mun.

Ct. Orange Cty. Jan. 9, 1970) 6

Champlin Refining Co. v. Corporation Comm'n, 286

US. 210 (1932)

Connally v. General Construction Co., 269 U.S. 385

(1926)

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421

(1952)

Ferguson v. Skrupa, 372 U.S. 726 (1963)

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

Griswold v. Connecticut, 381 U.S. 479 (1965) 4, 8,11,

12, 21, 22, 25, 26, 28,

29, 32, 33, 34, 35, 36

Hall v. Lefkowitz, 305 F. Supp. 1030, 69 Civ. 4284

(S.D.N.Y., filed Sept. 30, 1969)

Jacobson v. Massachusetts, 197 U.S. 11 (1904)

Keyishian v. Regents, 385 U.S. 589 (1967)

Kovaes v. Cooper, 336 U.S. 77 (1949)

Kudish v. Board of Registration, —— Mass. ——, 248

N.E.2d 499, cert. denied, 393 U.S. 952 (1968)

Lanzetta v. New Jersey, 306 U.S. 451 (1939)

Leary v. United States, 395 U.S. 6 (1967)

Linder v. United States, 268 U.S. 5 (1925)

Lochner v. New York, 198 U.S. 45 (1905)

Loving v. Commonwealth, 388 U.S. 1 (1967)

LSCRRC v. Wadmond, 299 F. Supp. 117 (S.D.N.Y.

1969)

Lynd v. Rusk, 389 F.2d 940 (D.C. Cir. 1967)

PAGE

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) %

Meyer v. Nebraska, 262 U.S. 390 (1923) 25, %

Moretti v. New Jersey, 52 N.J. 182, 244 A.2d 499,

cert. denied, 393 U.S. 952 (1968) 6

Musser v. Utah, 333 U.S. 95 (1948) 16

NAACP v. Alabama, 357 U.S. 449 (1958) -.......... ae

NAACP v. Button, 371 U.S. 415 (1963) ............ 9, 19, 21, 30

Olmstead v. United States, 277 U.S. 438 (1928) ....22, 23, 3

Phillips v. Borough of Folcroft, 305 F. Supp. 766 (E.D.

Pa. 1969) 7

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ....25, 26,27

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

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

Shively v. Board of Medical Examiners, No. 590333

(Cal. Super. Ct., San Fran. Cty., Sept. 24, 1968)

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

P.2d 65, 55 Cal. Rptr. 217 (1968) 5

Skinner v. Oklahoma, 316 U.S. 535 (1942) .............. 24, 26, 27

Slochower v. Board of Higher Educ., 350 U.S. 551

(1956) 2

Stanley v. Georgia, 394 U.S. 557 (1969) 22, 2%

State v. Murphy, 27 N.J.L. 112 (Sup. Ct. 1858) .......... . 8B

State v. Gedicke, 43 N.J.L. 86 (Sup. Ct. 1881) ......... aa ae

Terry v. Ohio, 392 U.S. 1 (1968) 26

Tot v. United States, 319 U.S. 463 (1943) 14

Union Pac. Ry. v. Botsford, 141 U.S. 250 (1891) ......... 3%

PAGE

United Mine Workers v. Illinois State Bar, 389 U.S.

217 (1967) 21, 30

United States v. Boyd, 305 F. Supp. 1032 (D.D.C. 1969) 3

United States v. Evans, 333 U.S. 483 (1948) 0... 8

United States v. Freund, 290 Fed. 411 (D. Mont. 1923) 20

United States v. Gainey, 380 U.S. 63 (1965) 0000. =14

United States v. Guest, 383 U.S. 745 (1966) ................30, 32

United States v. Jackson, 390 U.S. 570 (1968) .......... 3

United States v. Laub, 385 U.S. 475 (1967) cw... 30

United States v. Nicholas, 97 F.2d 510 (2d Cir. 1938) . 20

United States v. O’Brien, 391 U.S. 367 (1968) ................ 21

United States v. One Package, 86 F.2d 737 (2d Cir.

1936) 20

United States v. Reese, 92 U.S. 214 (1875) uw. «868

United States v. Romano, 382 U.S. 136 (1965) ........ im =

Williams v. United States, 78 U.S. App. D.C. 147, 138

F.2d 81 (1943) 16, 18, 38

Willner v. Committee on Character and Fitness, 373

U.S. 96 (1963) 20

Youngs Rubber Corp. v. C. I. Lee & Co., 45 F.2d 103 (2d .

Cir. 1930) 20

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) ........ 17,18

Zemel v. Rusk, 381 U.S. 1 (1965) 30

Constitutional Provisions:

United States Constitution

First Amendment 2, 19, 20

Fourth Amendment 2,19

Fifth Amendment 2, 3, 18, 19, 20

ane

PAGE

Eighth Amendment i

Ninth Amendment 2, 19, 28, 31, 33, 34

Fourteenth Amendment 5, 6, 4

Federal Statutes:

18 U.S.C. §3731 9

38 Stat. 785, as amended, 40 Stat. 1130 ........... Sie |

State Statutes:

Ala. Code tit. 14, §9 (1958) 1

D.C. Code §22-201 (1967 ed.) 2, 3, 7, 15,19

N.J. Stat. §2A :87-1 6

Other Authorities:

Aigler, Legislation in Vague or General Terms, 21

Mich. L. Rev. 831 (1923) 1

Amsterdam, The Void for Vagueness Doctrine, 109

U. Pa. L. Rev. 67 (1960) 1

Bates, J., & E. Zawapzx1, Crmminat Axsortion 3 (1964) #

Beaney, The Griswold Case and the Expanding Right

to Privacy, 1966 Wis. L. Rev. 979 22

Black’s Law Dictionary 1181 (4th ed. 1967) .................... 7

Calderone, M., AsortTion in THE Unirep States #4

(1958) 9

Clark, Religion, Morality, and Abortion: A Constitu-

tional Appraisal, 2 Loyala Univ. (L.A.) L. Rev. 1

(1969) 4, 9, 23,41

Collings, Unconstitutional Uncertainty—An Appraisal,

40 Corn. L.Q. 195 (1955) 1

PAGE

Decker & Hall, Treatment of Abortion Infected With

Clostridium Welchii, 95 Am. J. Obst. & Gynec. 394

(1966) 40

Douglas, Toxic Effects of the Welch Bacillus in Post-

abortal Infections, 56 N.Y. State J. Med. 3673

(1956) 37, 40

Ehrlich, P.,. The Population Bomb (1968) 42

Emerson, Nine Justices in Search of a Doctrine, 64

Mich. L. Rev. 219 (1965) 4, 30

Foerster, Mora & Amiot, Doomsday: Friday, 23 No-

vember, A.D. 2026, 132 Science 1291 (1960)

Franklin, The Ninth Amendment, 40 Tul. L. Rev. 487

(1966) 22, 33

Freund, The Use of Indefinite Terms in Statutes, 30

Yale L.J. 437 (1921) 7

George, Current Abortion Laws: Proposals and Move-

ments for Reform, 17 W. Res. L. Rev. 371 (1966) .. 7

Gross, The Concept of Privacy, 42 N.Y.U. L. Rev. 34

(1967) 22

Guttmacher, Therapeutic Abortion: The Doctor’s Di-

lemma, 21 J. Mt. Sinai Hosp. 111 (1954) ou... 10

Haacensen, C. & W. Lioyp, A Hunprep Years or

Mepicine (1943) 37

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

Health 1933 (1967) 10

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

Health 1933 (1967) 36

viii

PAGE

Hall, Commentary in Anortion AND THE Law 228 (D. ©

Smith ed. 1967)

Havser, P. (ed.), THe Porputation DiemmMa (1963) __

Holmes, The Contagiousness of Puerperal Fever

(1843)

Inman & Vessey, Investigation of Deaths from Pulmo-

nary and Cerebral Thrombosis and Embolism in

Women of Child-bearing Age, 2 Brit. Med. J. 193

(1968)

Kaplan & Chez, The Economics of Population Growth,

103 Am. J. Obst. & Gynec. 133 (1969)

Kauper, Penumbras, Peripheries, Emanations, Things

Fundamental and Things Forgotten: The Griswold

Case, 64 Mich. L. Rev. 235 (1965)

Kelly, Clio and the Court: An Illicit Love Affair,

[1965] Sur. Cr. Rev. 119

Kuzzeman, S., & S. Kaurman, Inrertiurry mv Women

301 (1966)

Knapp, Platt & Douglas, Septic Abortion, 15 Obst. &

Gynec. 344 (1960)

Kolblova, Legal Abortion in Czechoslovakia, 196 J.A.

M.A. 371 (1966)

Lucas, Abortion Laws in the United States, in Asos-

Trion: Lecat, Mepicat, Sociar, anp Rexiciovs As-

pects (R. Lucas ed. 1970)

Lucas, Federal Constitutional Limitations on the En

forcement and Administration of State Abortion

Statutes, 46 N.C.L. Rev. 730 (1968)

Mehland, Combatting IWegal Abortion in the Socialist

Countries of Ewrope, 13 World Med. J. 84 (1966) ... 39

Means, The Law of New York Concerning Abortion

and the Status of the Foetus, 1664-1968: A Case of

Cessation of Constitutionality, 14 N.Y.L.F. 411

(1968) 37

Modern Medicine, Nov. 3, 1969, at 18 11

Moritz & Thompson, Septic Abortion, 95 Am. J. Obst.

& Gynec. 46 (1966) 40

Niswander, Medical Abortion Practices in the United

States, 17 W. Res. L. Rev. 403 (1965) 10

Note, Constitutional Aspects of Present Criminal Abor-

tion Law, 3 Valpr. U.L. Rev. 102 (1968) .........

Note, 62 Harv. L. Rev. 77 (1948)

Note, The Supreme Court—1964 Term, 79 Harv. L. -

Rev. 56 (1965) 22

Note, The Uncertain Renaissance of the Ninth Amend-

ment, 33 U. Chi. L. Rev. 814 (1966) 22, 33

Pilpel, Birth Control and a New Birth of Freedom, 27

Ohio St. L.J. 679 (1966) 22

Redlich, Are There “Certain Rights ... Retained by

the People?,” 37 N.Y.U. L. Rev. 787 (1962) ................ 33

Reid, Assessment and Management of the Seriously

I Patient Following Abortion, 199 J.A.M.A. 805

(1967) . HH

6 Revisers’ Notes, pt. IV, ch. 1 tit. 6, §28 at 75 (1828) .. 37

Ross, H., Aseptic Surcican Tecuniqvue Wire Especiuy, ©

ReveRENce To GynazcotocicaL Operations (1835) 3

Rossi, A Behavioral Scientist Looks at Abortion in

Axsortion mx 4 Cuancine Worn (R. Hall ed. 1970) .41, 4

Rostow, The Democratic Character of Judicial Re.

view, 66 Harv. L. Rev. 193 (1952) 21

Semmetweis, I, Toe Artiotocy, Concert, anp Pro-

PHYLAXxIx oF CuitppieTH Fever (1861) a

Shenoi, Massive Removal of Small Bowel During Crim-

inal Abortion, 2 Brit. Med. J. 929 (1966) WW.

Studdiford & Douglas, Placental Bacteremia: A Sig-

nificant Finding in Septic Abortion Accompanied by

Vascular Collapse, 71 Am. J. Obst. & Gynec. 842

(1956) : )

Sutherland, Privacy in Connecticut, 64 Mich. L. Rev.

' 283 (1965) 3

Symposium—Comments on the Griswold Case, 64

Mich. L. Rev. 197 (1965) 22, 3

Tietze, Abortion in Europe, 57 Am. J. Pub. Health

1923 (1967) 39

Tietze, Abortion Laws and Abortion Practices in

Europe (1969) 39, 4

Tietze, Maternal Mortality Associated With Legal

Abortion, Proceedings of the Fifth International

- Conference on Planned Parenthood 24 (Oct. 1955)

(Tokyo) ’

Face

Tietze, Mortality With Contraception and Induced

Abortion, 45 Studies in Family Planning 6 (1969) .11, 39

Tietze & Lewit, Abortion, 220 Scientific American 3

(Jan. 1969) 39

Tussman & ten Broek, The Equal Protection of the

Laws, 37 Calif. L. Rev. 341 (1949) 31

Taompson, W., & D. Lewis, Porutation Prosiems

(1965) 42

US. Burzav or tHE Census, Statistical Abstract of

the United States: 1969, Table 11, at 12 (90th ed.) ... 41

In THE

Supreme Court of the United States

Ocroser Tram, 1969

No. 1155

Unrrep States or America,

Appellant,

—versus—

Miran Vorrcx, M.D.,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

—<———

MOTION TO AFFIRM

Appellee, pursuant to Rule 16, moves that the final judg-

ment and decree of the District Court be affirmed on the

ground that the questions presented are so unsubstantial

as not to warrant further argument.

Citation to Opinions Below

The decision below of the United States District Court

for the District of Columbia, Gesell, J., is reported as

United States v. Vuitch, 305 F. Supp. 1032 (D.D.C. 1969),

appeal docketed, 38 U.S.L.W. 3303 (U.S. Feb. 5, 1970) (No.

1155, October 1969 Term).

Jurisdiction

Appellant’s Statement adequately states the jurisdi,

tional basis for this appeal, t.e., 18 U.S.C. $3731.

Statute Involved

D.C. Copz §22-201, at 19 (1967 ed.) provides:

“Whoever, by means of any instrument, medicine.

drug or other means whatever, procures or produce,

or attempts to procure or produce an abortion or mis.

carriage on any woman, unless the same were dom

as necessary for the preservation of the mother’s life

or health and under the direction of a competent ji.

censed practitioner of medicine, shall be imprisoned in

the penitentiary not less than one year or not more thn

ten years....”

Questions Presented

I. Whether D.C. Code §22-201, which forbids a phys-

cian to interrupt pregnancy unless “necessary for th

preservation of the mother’s life or health” is unconstity.

tionally vague and indefinite, where the statute provides m

warning to the physician, jury, or judge of what physical,

mental, or social conditions may be taken into account wha

assessing necessity.

If. Whether D.C. Code §22-201 deprives physicians and

their patients of rights protected by the First, Fourth,

Fifth, and Ninth Amendments, and is neither narrowly

drawn nor supported by any overriding and compelling

governmental interest.

Statement of the Case

Appellee Milan Vuitch, M.D., a licensed and practicing

physician in the District of Columbia, was charged by

indictment with violation of D.C. Cope $22-201, a statute

of 1901 vintage. Appellee moved at pretrial to dismiss the

indictment, contending that the statute was unconstitutional

on various grounds. Upon the receipt of extensive briefs

and oral argument, the district court, Gesell, J., granted

this motion. The court held the statute to be unconstitu-

tionally vague and indefinite. 305 F. Supp. at 1034. More-

over, the court recognized that certain Fifth Amendment

questions existed because the physician was “presumed

guilty,” 305 F’. Supp. at 1034, and that “the statute unques-

tionably impinges to an appreciable extent on significant

constitutional rights of individuals.” Jd.

It is from this decision, invalidating the statute on its

face and as applied against physicians as a class, that the

government has taken this direct appeal.*

*A companion case, United States v. Boyd, 305 F. Supp. 1032,

1035-36 (D.D.C. 1969) (not appealed), grew out of a completely

urelated incident involving a nurse’s aide, and has no bearing

upon this appeal although Appellants have discussed that “un-

related” case in their Statement, pp. 2-3.

*The Jurisdictional Statement does not challenge the lower

court’s holding that the statute is severable and may be validly

applied to prohibit all abortions done by non-physicians. 305 F.

Supp. at 1035; see, e.g., United States v. Jackson, 390 U.S. 570,

rp gl Thus, the question of severability is not at issue in

The Questions Are Not Substantial

The decision below is so manifestly correct as not ty

warrant further argument before it is affirmed by thi,

Court.

Introduction

The constitutionality of abortion laws has been mnch jp

the minds of judges and commentators even before the

landmark decision of California v. Belous, and the pres

ent case.

Professor Emerson at Yale suggested in December of

1965 that the Griswold case would open the way “for an at

tack upon significant aspects of the abortion laws.”* Re

tired Justice Tom C. Clark, writing in 1969, fully agreed’

Recognizing that “[if] the medical profession is to be ae.

corded complete protection, it will have to come through

the judicial system,”* Justice Clark suggested that, con.

stitutionally, “until the time that life is present, the State

cannot interfere with the interruption of pregnancy throngh

an abortion performed in a hospital or under appropriate

clinical conditions.” ’ Other commentators have taken a like

view.®

*71 Cal.2d 996, 458 P.2d 194, 80 Cal. Rptr. 354 (1969), cert.

denied, 397 U.S. —— (1970).

*Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L.

Rev. 219, 232 (1965).

5 Clark, Religion, Morality, and Abortion: A Constitutional Ap-

ae 2 Loyola Univ. (L.A.) L. Rev. 1 (1969) [hereinafter

rk].

* Clark, p. 7.

7 Td. at 8.

®* Imcas, Federal Constitutional Limitations on the Enforcement

and Administration of State Abortion Statutes, 46 N.C.L. Rev.

Several courts have already faced constitutional ques-

tions similar to those presented in this action. The first,

a lower court in California, ruled on September 24, 1968,

that the pre-1967 felony abortion statute in that state vio-

lated the Eighth and Fourteenth Amendment rights of cer-

tain patients. Their physicians had been charged with un-

professional conduct.’ They had performed hospital-

approved therapeutic abortions on patients who had been

exposed to the German measles virus.

One year later the Supreme Court of California ren-

dered its decision in California v. Belous.” A close reading

of Judge Peter’s opinion reveals four separate grounds

for the decision: (1) facial unconstitutional uncertainty ;*

(2) unconstitutional abridgement of the woman’s right to

choose whether to bear children,” if (a) the statute were

construed to require “certainty of death,” or (b) if the

statute were construed to “prohibit an abortion, where

death from childbirth although not medically certain, would

be substantially certain or more likely than not”; (3) un-

constitutional uncertainty if the statute were construed to

mean “‘substantially or reasonably’ necessary to pre-

730 (1968); Note, Constitutional Aspects of Present Criminal

Abortion Law, 3 Valpr. U.L. Rev. 102 (1968).

*Shiveley v. Board of Medical Examiners, No. 590333 (Cal.

Super. Ct., San Fran. Cty., Sept. 24, 1968) (not reported), on

remand from 65 Cal.2d 475, 421 P.2d 65, 55 Cal. Rptr. 217 (1968)

(granting physicians’ motions for discovery).

#71 Cal.2d 996, 458 P.2d 194, 80 Cal. Rptr. 354 (1969).

"71 Cal2d at 1003, 458 P.2d at 197, 80 Cal. Rptr. at 357.

*71 Cal.2d at 1005, 458 P.2d at 199, 80 Cal. Rptr. at 359.

*71 Cal.2d at 1012, 458 P.2d at 203, 80 Cal. Rptr. at 363.

serve” * the woman’s life; and (4) a Fourteenth Amend.

ment violation because of “[t]he delegation of decision.

making power to a directly involved individual ... .”™

Declaratory judgment actions involving state abortion

statutes are pending before three-judge federal courts in

several states.” ;

This epidemic of judicial activity in the abortion ama

recognizes that the medical profession is unable to work

with the vagueness and potential sweep of the statutes

which regulate abortion, and no other surgery, in the

states and the District of Columbia. The statute in the Dis.

trict, moreover, is unique. Its wording, which appears in

871 Cal.2d at 1012, 458 P.2d at 204, 80 Cal. Rptr. at 364. .

1°71 Cal.2d at 1015, 458 P.2d at 206, 80 Cal. Rptr. at 366.

7 See, e.g., Hall v. Lefkowitz, 305 F. Supp. 1030, 69 Civ. 42%

(S.D.N.Y., filed Sept. 30, 1969) (before Friendly, J., and Wen-

feld & Tyler, DJ.J.); Babbitz v. McCann, 306 F. Supp. 4,

say E.D. Wis.) (before Kerner, J., and Reynolds & Gordon,

California v. Robb, Nos. 149005 & 159061 (Calif. Mun (&

Orange Cty. Jan. 9, 1970), has recently invalidated the current

California abortion statute in a criminal prosecution of a phys-

cian. The decision rests upon numerous grounds, including the

right of a woman to decide whether to bear children, the

presence of economic discrimination in violation of the equal pro

tection clause of the Fourteenth Amendment.

In June of 1969, the Supreme Judicial Court of Massachusetts

sustained its abortion statute over a challenge of vaguenes

Kudish v. Board of Registration, —— Mass. ——, 248 NE2

264 (1969) (not appealed). se

Similarly, Moretit v. New Jersey, 52 N.J. 182, 244 A.2d 4%,

cert. denied, 393 U.S. 952 (1968), upheld the abortion law of that

state over a vagueness challenge. The New Jersey law, however,

prohibits abortions performed “maliciously or without lawful jw

tification,” N.J. Stat. §2A :87-1, and the abortion in that case was

to have been performed by an inspector for the State Board of

Barber Examiners.

only one other state abortion law,” is vague and restrictive

of the physicians’ and patients’ rights who must attempt

to operate within its uncertain peripheries.

D.C. Code §22-201, which forbids a physician to in-

terrupt pregnancy unless “necessary for the preservation

of the mother’s life or health” is unconstitutionally

vague and indefinite, because it provides no warning to

the physician, jury, or judge of what physical, mental,

or social conditions may be taken into account when

assessing necessity.

The Legal Standard

A vast body of case law exists on the problem of un-

constitutional uncertainty.” This doctrine has, moreover,

several complementary, and several competing strands. The

test most frequently articulated has been that

“a statute which either forbids or requires the doing

of an act in terms so vague that men of common in-

telligence must necessarily guess at its meaning and

* Ata. Cope tit. 14, §9 (1958). See generally George, Current

Aborticn Laws: Proposals and Movements for Reform, 17 W.

Res. L. Rev. 371 (1966); Lucas, Abortion Laws in the United

States, in AporTiION: LxcaL, Mepican, Sociuat, and RE.iciovs

Aspzcts (R. Lucas ed. 1970) (in press).

™ See generally Amsterdam, The Void for Vagueness Doctrine,

109 U. Pa. L. Rev. 67 (1960); Collings, Unconstitutional Uncer-

tainty—An Appraisal, 40 Corn. L.Q. 195 (1955); Aigler, Legis-

lation in Vague or General Terms, 21 Mich. L. Rev. 831 (1923) ;

Freund, The Use of Indefinite Terms in Statutes, 30 Yale LJ.

437 (1921) ; Note, 62 Harv. L. Rev. 77 (1948).

differ as to its —* violates the first 7

of due process .

This is partly because

“it would certainly be dangerous if the legislature cou

set a net large enough to catch all possible offender

and leave it to the courts to step inside and say who

could be rightfully detained and who should be set at

large.” ™

Clearly, “[vJague laws in any area suffer a constitutional

infirmity,” * be they of common law antiquity,” adminis.

trative,“ or criminal.* Furthermore, statutes challenged

for vagueness which impinge upon sensitive human rights

are to be closely scrutinized. Griswold v. Connecticut dealt

with “a right of privacy older than the Bill of Rights ..."*

and that right is invoked again here, as well as the right

to give medical advice, which is more nearly a facet of pure

freedom of speech. Thus, “[p]recision of regulation must

as v. General Construction Co., 269 U.S. 385, 391

1 United States v. Reese, 92 U.S. 214, 221 (1875).

22 Ashton v. Kentucky, 384 U.S. 195, 200 (1966) (ancient com-

mon law offense of “criminal libel” void for uncertainty).

3 Lanzetta v. New Jersey, 306 U.S. 451, 454-55 (1939) ; Champ.

lin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 2424

(1982). See also United States v. Evans, 333 U.S. 483 (1948), a in

which the statute had been passed in 1917; and Giaccio v.

sylvania, 382 U.S. 399 (1966), in which the statute had bee

passed in 1860.

™ See, e.g., Keyishian v. Regents, 385 U.S. 589 (1967).

5 Lanzetta v. New Jersey, 306 U.S. 451 (1939).

*¢ 381 U.S. 479, 486 (1965).

—

.e in an area so closely touching our most

be the touchston”s.” *” |

precious freedons never ruled on a vagueness challenge to

This Court ha:, but the invalidity of the language follows

asimilar statutes of the difficulties a physician must face

from an analysi:

i ing it.

arene Statute in Practice

Vagueness of the . 3 legal commentary have recognized the

Both medical ‘American abortion laws. Retired Justice

ueertainty of -emarked:

i nine simmabet Of abortions pikionla, shyel-

“The increasreased dangers of liability for incorrectly

cians to inc; g statute ..... [DJoctors face an uncer-

interpretinghen performing an abortion. This uncer-

tain fate Wieontinue unless the legislatures or courts

tainty will Gef from liability.” *

provide rel:

; ‘Tietze, perhaps internationally the most

Christopher ° ‘ 2 P :

iiawiedeable Authority on abortion practices and statis-

ties, commented

“The appli cation of these laws, however, varies greatly

between loc#lities and between hospitals.” *

NAACP v. Button, 371 US. 415, 438 (1963).

* Clark, p. 7.

*® Tietze, Mater™@l Mortality Associated With Legal Abortion,

Proceedings of the Fifth International Conference on Planned

Parenthood 24 (Oct. 1955) (Tokyo); see also M. CaLpERONE,

Azortion in THE UNITED STATES , 52 (1958):

“[NJecessity aS @ sine qua non of performing an abortion . . .

leaves the doctor’s position perilous and uncertain. * * * The

current laws provide no accurate criteria by which the doc-

tor can govern his actions.”

Similarly, a 1967 study concluded: oe

“Abortion policies vary not only from hospital to hoe

pital but also from service to service within the s

hospital. They also vary widely from doctor to do

on the same service of the same hospital.”” =

And, as Dr. Alan F’. Guttmacher indicated is a8 oO

“(t]he doctor’s dilemma lies in the phrase ‘p:

life of the woman.’”™ If “preserving life” Lede

standard, then “preserving health” only —e

“doctor’s dilemma.”

Appellants have urged that “the statute may Re »

plied without ambiguity, to doctors who do not exercise

medical judgment at all...” (J.S., at 6). Yet sucha

formulation would Sadi the ambiguity of the statute,

for a jury would be left to determine whether the physi

cian had, indeed, exercised a “medical judgment.” Many

physicians consider a woman’s personal desire not to bk

compelled to have further children as sufficient justifies

tion for abortion. A study conducted by the journal Modem

Medicine in fact showed that 51% of American physician,

and 61.4% of physicians in the District of Columbia agreed

without qualification that abortion should be available to

any woman capable of giving legal consent upon = ovn

* Hall, Abortion in American Hospitals, ot Am. J. Pe

1933, 19385 (1967). Dr. Hall continues:

“The victim of all this confusion is, of course, the

female .... [S]he must find Doctor X in hospital Y

policy Z in order to have it done.” Td.

*1 Guttmacher, Therapeutic Abortion: The Doctor's Diletma,

21 J. Mt. Sinai Hosp. 111 (1954). See also Niswander, Medical

Abortion Practices in the United States, 17 W. Res. L. Rev. &,

411-419 (1965). '

request to a competent physiqjan.” The sphere of medical

t, in such a case, then narrows to the medical

question of whether reasons exist for not performing the

requested abortion, a circumstance which is exceedingly

rare (and unregulable by the blunderbuss of a criminal

statute) in this day when abortion in early pregnancy is

seven times safer than its alternative—childbirth.”

In no sphere of medicine other than abortion does a

eriminal statute impose such a burden upon a physician,

and in no other sphere of medical practice is treatment

restricted by criminal law to those instances in which it is

“necessary for the preservation of the mother’s life or

health.” The Court might consider the impact on the lives

of all citizens if a penal statute prohibited gall bladder

surgery, kidney stone removal, the prescription of contra-

ceptives,* use of antibiotics, vaccination,” or even the tak-

ing of aspirin “unless necessary for the preservation of

the life or health” of the patient. There are and never

have been such laws or practices, outside of the quite dif-

ferent realm of drug regulation. It is from this area that

Appellant has drawn Linder v. United States, 268 U.S. 5

" Modern Medicine, Nov. 3, 1969, at 18-24. An additional 118%

nationally and 11.2% in the District agreed to the proposition,

but with some qualification.

* See Tietze, Mortality With Contraception and Induced Abor-

tion, 45 Studies in Family Planning 6 (1969), and other authori-

ties cited in note 67, infra.

“ Griswold v. Connecticut, 381 U.S. 479 (1965), at least implies

that such a requirement would violate the patient’s right of

privacy, but Connecticut, for obvious reasons, made no such

contention.

* Jacobson v. Massachusetts, 197 U.S. 11 (1904), has even held

that a State may compel vaccination over the stringent religious

objections of an unwilling patient.

(1925), and Boyd v. United States, 271 U.S. 104 (199

on which great reliance is placed (J.S., at 7). “api

Linder and Boyd involved the question of a physiciay)

dispensing “hard” narcotics (i.e. morphine and cocaine),

The statute required that this be done “in the course of

his [the physician’s] professional practice only.”™ This

Court found in Linder that “[w]hat constitutes bona fie

medical practice must be determined upon consideration of

evidence and attending circumstances.” 268 U.S. at ig

This was not a decision, as Appellant states, that “th

statute was subject to an absolute defense of good faith

belief by the physician that the drugs were “PPro

for treatment of the addict” (J.S., at 7).

In several respects Linder and Boyd are inappotile

and inapplicable. Trafficking in hard narcotics is socially

reprehensible conduct, for which statutory standards. af

specificity need not be so stringent. Abortion, like ‘COD.

traception, however, involves sensitive individual right,

see Griswold v. Connecticut, 381 U.S. 479, 482 (1965), and

most frequently the “intimate relation of husband and wile

and their physician’s role in one aspect of that relation”

Privacy in family planning is today a value which gover

ment promotes. Moreover, the problem of hard nareotie

is susceptible to much sharper analysis than that of aber.

tion. One can separate out the physician who help m

addict withdraw from one who feeds a habit for profit

With abortion, however, there is no such line, and th

statute has not drawn an intelligible point of demareatia.

Many physicians believe that a woman’s unwillingness to

be forced through pregnancy is a sufficient health problem

Harrison Narcotic Law, 38 Stat. 785, as amended, 40 Stat

1130.

to justify abortion. The statute, taken with a defense of

good faith, is no guarantee of acquittal before a jury of

laymen with a different view. What is evident in the Gov-

emment’s attack on the District Court’s decision is that it

insists upon the doctor’s bearing of the burden of proof of

innocence, #.¢., that he in fact used medical judgment.

Moreover, a jury must agree with what he conceived to

be medical justification for the treatment involved before

acquitting him. Such is the very essence of the constitu-

tinal fault in this statute and other statutes like it. On

any analysis of this vague requirement, altogether lacking

acceptable standards, there will never be an instance in

which a physician is able to defend his actions successfully

where the evidence shows an exercise of medical judgment

which the Government seeks to challenge.

Additionally, the requirement of consultation (which

question the Government here contends should be sub-

mitted to a jury) before performing the operation, or as

the Government puts it, the requisite exercise of medical

jadgment, causes the burden to shift to the defendant to

prove that his action was necessary to preserve the mother’s

life or health and leaves the defendant on the horns of a

desperate dilemma. If he fails to come forward (as is his

constitutional right), the jury will be left without proof

won which even to speculate as to whether or not medical

jadgment was exercised. If he does come forward and

the jury is left to speculate on his medical judgment, he

could well be convicted of providing acceptable medical

treatment ‘mite which a lay jury could totally disregard

for any number of speculative reasons. In effect, there-

fore, the doctor-defendant would seriously risk conviction

no matter whether he chose to come forward or remain

silent. Aside from the unsatisfying prospect that a jar

should pass on medical judgment (which is the sole fum

tion of the physician after diagnosis and consultation) the

theory which the Government would ask the Court top

prove here would convict the defendant whether or no

he takes the stand if the jury should believe that the madi.

cal judgment he exercised was, in its opinion, inadequate,

A statute having such an effect is fatally defective; »

found by the District Court, and as underscored by this

Court’s decisions in Tot v. United States, 319 U.S48

(1943) ; United States v. Gainey, 380 U.S. 63 (1965) ; Uovited

States v. Romano, 382 U.S. 136 (1965) ; and Leary v. United

States, 395 U.S. 6 (1967). As the District Court point

out, this Court has long since left behind the ancient theoty

that legislators may compel presumptions, the effect of

which are to deny an accused his constitutional rights,

It is the patient’s entire life-setting which is ideally taken

into account today, not simply whether a disease will lead

to his or her death or disability. It is largely because of

this civilized progress in medicine that the statute has

become increasingly vague through the years. Life ha

become more than survival. It has been seen to contains

spectrum of conditions, matters of degree which contribute

to the quality of existence, rather than the bare fact of

survival. Health has come to embrace the entire sphere of

physical and mental well-being.

Ultimately the question is one of law for this Court to

resolve. Based on the available evidence, and this Courts

reading of the statute, a decision must be reached m

whether Appellee, other physicians, and their patients wil

be consigned to living under the regime of this statute,

The expression challenged for vagueness is:

“necessary for the preservation of the mother’s life or

health....” D.C. Copz §22-201.

(a) Vaguenese of “life”

The very term “life” is susceptible to widely differing in-

terpretations. Does it mean immediate survival? probable

survival for a period of days? weeks? months? years? Is

“life” equivalent to longevity? Does a patient’s “life” en-

compass her physical and mental “health”? the “quality of

life”? her overall well-being? her desire and life plan to be

no longer burdened with additional children? These are

common concerns in medicine, but the statute does not speak

to these very realistic human problems, and no set of jury

instructions, however well phrased by a trial judge, could

lead a jury through the maze of these issues to a fortified

conclusion as to a physician’s guilt or innocence.

Also, who is to decide what constitutes the concept of a

woman’s “life”? she? her husband? the physician? a jury of

twelve laymen? one or more judges? Ultimately this ques-

tion will go to a jury on conflicting evidence, without statu-

tory guidance, subject to an uncertain degree of judicial

review. Should a physician and his patient be required to

take this very great risk on no more guidance than the

statute provides?

(b) Vagueness of “health”

As Judge Gesell noted below:

“The word ‘health’ is not defined and in fact remains

80 vague in its interpretation and the practice under

the act that there is no indication whether it includes

varying degrees of mental as well as physical health.”

305 F. Supp. at 1034.

16 se ay

vagy

be Me

A 1943 decision delivered by then Associate Justice Ar

of the Court of Appeals for this Circuit found that. his

provision of the statute “is a broad exception without: prs

cise limits.” Williams v. United States, 78 U.S. App. Df

147, 150, 138 F.2d 81, 84 (1943). Compare Musser v: igh

333 U.S. 95, 97 (1948) (“acts injurious to public moray’

may include “almost any act which a judge and jury might

find at the moment a to his or its notions of wha

was good for health [ete.] ....”). 1 Ta

Indeed, preservation of “health” could mean relief {fom

any burden upon the woman and her family. On the other

hand, a more rigid construction could mean only tele

from a pregnancy which would make the woman an absolite

broken physical wreck at the end of pregnancy. The stat

ute, and a “good faith” defense, however, do not provide

the physician with any knowledge of which meaning a 0:

and jury will adopt; yet his personal liberty and the right

to practice his profession depend entirely upon the -

acceptance or rejection of that defense. x

On its face, and even more seriously when taken in ém-

nection with the other terms, “preservation” or “preserve”

fet

can bear many meanings. Does it mean to keep alive ani,

if so, for how long? Or does it mean to keep free from

harm or injury? serious injury? how serious? at

Is “preserve” synonymous with “save,” and, if 80, -

not “save” have too wide a range of meanings to be u

** California v. Belous, 71 Cal.2d 996, 1003, 458 P.2d in

80 Cal. Rptr. 354, 358 (1969), found the term

vague for use in a criminal abortion statute.

a statute affecting such important interests as those of the

physician and patient? Or, is “preserve” a much broader

notion, meaning maintain, protect, safeguard, enrich? The

statute and the cases are silent. Again, the question goes

to the lay jury, without guidelines.

(d) Vagueness of “necessary” *

The first three difficult terms are joined by a fourth

“necessary.” How necessary? Why necessary? Necessary

to what end? The lawyer’s standard dictionary states that

the word “necessary”

“must be considered in the connection in which it is

used, as it is a word susceptible of various meanings.

It may import absolute physical necessity or inev-

itability, or it may import that which is only con-

venient, useful, appropriate, suitable, proper, or con-

ducive to the end sought.” Brack’s Law Dictionary

1181 (4th ed. 1967).

The statute gives no indication as to which of the possible

meanings of “necessary” applies, nor the factors which may

permissibly be taken into account. The judge and jury are

permitted to consider any factors they choose. A statute

which permitted only “necessary” noise was recently struck

down by a district court in Pennsylvania.” This Court in

Yu Cong Eng v. Trinidad has described the term “neces-

sary” as one of “great indefiniteness,” 271 U.S. at 517,

"California v. Belous, 71 Cal.2d 996, 1003, 458 P.2d 194, 198,

eae Rptr. 354, 358 (1969), found this term to be too indefinite

_" Phillips v. Borough of Folcroft, 305 F. Supp. 766 (E.D. Pa.

1969) (J. 8. Lord, III, J.).

“271 U.S. 500 (1926) (Taft, C.J.).

“a vague requirement and one objectionable in a crim

ne! ” 271 U.S. at 518. It is indeed.

° e * e & } »

In sum, the terminology of the statute provides almoet

guidance to the conscientious physician who seeks to con

sider the overall circumstances and well-being of a womm

faced with an unwanted pregnancy. The uncertainty of the

words in isolation is multiplied by their usage together i

the statute. This vagueness is further compounded by the

fact that physicians in the District of Columbia have th

burden of proving necessity and good faith if they shou

be charged with unjustifiable abortion.” It is evidence

by the medical and legal commentary cited. Its effect has

been to produce differing interpretations from physician ty

physician, and hospital to hospital, as well as inherent dis

crimination against the poor woman who cannot purchas

the information and psychiatric help sufficient to obtains

favorable “interpretation.” *

For the reasons stated, the statute is plainly unconstit.

tional for its failure to meet the specificity requirements

of the due process clause of the Fifth Amendment.

“1 See Williams v. United States, 78 U.S. App. D.C. 147, 18

F.2d 81 (1943).

42 Appellee has also raised and intends to preserve the contentio

that the statute violates the equal protection concept embodied in

the Fifth Amendment by its impact on excluded classes of patients

é.c., the poor patient and the woman who cannot persuade a —

that continued pregnancy endangers her “health.” See,

Sharpe, 347 U.S. 497 (1954). These points will be is

greater depth by the brief on the merits, should this be necessary.

Il.

D.C. Code §22-201 deprives physicians and their pa-

tients of rights protected by the First, Fourth, Fifth,

and Ninth Amendments, and is neither narrowly drawn

nor supported by any overriding and compelling gov-

ernmental interest.

Not only does Appellee challenge the vagueness of the

statute, but also its substantive validity under the First,

Fifth, and other amendments to the United States Con-

stitution. This Court may hold that the statute is not un-

certain and that it bears one or another construction which

will sustain it. However, it is most unlikely that the statute,

as written and re-enacted, can be construed to permit an

abortion, in clinical surroundings, of a woman in good

health, who has had contraceptive failure, or did not for

some reason utilize contraceptives. Such a woman is the

individual whose request for an abortion, in the very early

stages of pregnancy, is most frequent.

Even assuming that this Court enjoins the statute for

vagueness, the further question of overbreadth should be

reached and decided. This has been the practice of the

Court in a wide variety of cases, particularly where free-

dom of association“ was at issue, as it is here. “[It] would

farnish a definitive ruling on a point of federal law for...

future guidance .. . ”“* of the parties. A final “definitive

ruling” on the federal questions raised hereinafter would

avoid costs and delay, prevent continued litigation on the

substantive issues, and conserve judicial time and resources.

“See, e.g., NAACP v. Button, 371 U.S. 415 (1963).

“ISCRRC v. Wadmond, 299 F. Supp. 117, 128 (8.D.N.Y. 1969)

(Friendly, J.).

- %

A. The Rights to Give and Receive Medical a

The present action has First Amendment

namely the right of the physician to provide

formation, followed by treatment, for his patients, an

right of the patient to receive same. The right of s com

petent licensed physician to give medical advice can't

characterized as free expression alone,“ or when viewed.

an aspect of the physician-patient relationship, it become

part of the freedom of association between physician a1

patient. The First Amendment has long been held to ae

cord presumptive protection for the “freedom to associate

and privacy in one’s associations.” NAACP v. Alabama, 3

U.S. 449, 462 (1958). This has been the case with the mar-

———

“ Similarly, it is an aspect of the physician’s general libay

under the Fifth Amendment to practice his chosen profession fre

from unconstitutional restraint. See Willner v. Committes w

Character and Fitness, 373 U.S. 96, 102-03 (1963); Slochower s.

Board of Higher Educ., 350 U.S. 551 (1956) ; Birnbaum v,

371 F.2d 672 (2d Cir. 1966); see also United States v. .

290 Fed. 411 (D. Mont. 1923), invalidating a Prohibition at

which restricted the amount of alcohol a physician could prescribe:

“Tt is an extravagant and unreasonable attempt to subordinate

the judgment of the attending physician to that of Congren,

in respect to matters with which the former alone is competat

to deal, and infringes upon the duty of the physician to

scribe in accord with his honest judgment, and upon the

of the patient to receive the benefit of the judgment of the

physician of his choice.”

With respect to the prescription of contraceptives, moreover,

physicians received considerable pootestion te meee ee

to the point that the various Comstock acts took the path of deme

tude See, eg., United States v. Nicholas, 97 F.2d 510 (2d Ce.

1938) (L. Hand, J.) ; United States v. One Package, 86 F.2d 781

(2d Cir. 1936) (A. Hand, J.) ; Youngs Rubber Corp. v. C. I. La

& Co., 45 F.2d 103 (2d Cir. 1930) (Swan, J.).

tal relationship,“ and that of attorney and client.“ The

relationship between physician and patient is no different;

it promotes the fundamental purpose of maintaining the

health and well-being of the American people.

The advice aspect of medical practice is but one part

of Appellee’s claim, for medical treatment involving in-

terruption of the unwanted pregnancy may be what the

patient ultimately requests, and the criminal statute pro-

seribes.

“[W]hen ‘speech’ and ‘nonspeech’ elements are com-

ooh rralinwnle Ava geet oc tage

portant governmental interest . . . must appear. .

United States v. O’Brien, 391 US. 367, 376 (1968).

The nature of this interest has been described by “a variety

of descriptive terms: compelling; substantial; subordinat-

ing; paramount; cogent; strong.” 391 U.S. at 376-77 (cita-

tions omitted).

Before discussing the possible State interests which have

been offered to compel a woman to bear and raise children

against her will, Appellee will examine various other rights

of constitutional dimension which the challenged statutes

curtail.

“See Griswold v. Connecticut, 381 U.S. 479, 486 (1965), describ-

ing the “marriage relationship” as

“an association that promotes a way of life, not causes; a har-

mony in living, not political faiths; a bilateral loyalty, not

commercial or social projects. Yet it is an association for as

noble a purpose as any involved in our prior decisions.”

“See NAACP v. Button, 371 U.S. 415 (1963) ; Brotherhood of

Railway Trainmen v. Virginia, 877 U.S. 1 (1964); United Mine

Workers v. IUinois State Bar, 389 U.S. 217 (1967).

B: The Right of Privacy or

The antecedents and progeny of Griswold v. Comets

381 U.S. 479 (1965), offer generalized support for applying

& presumptive constitutional right of privacy to encompass

the right of a woman to have an abortion, in the «

stages of pregnancy, when contraception failed or was no

used.

Griswold is not an isolated decision confined to its tal

but is one in a continuing line of cases involving varie

aspects of personal privacy and family autonomy.” Most

recently this Court recognized a “fundamental . . . right to

be free, except in very limited circumstances, from

wanted governmental intrusions into one’s privacy.” Stes

ley v. Georgia, 394 U.S. 557, 564 (1969) (Marshall, J).

Indeed, the Stanley case is of special importance, for there

a majority of the Court embraced with approval the very

significant language from Mr. Justice Brandeis’ diswent

in Olmstead v. United States:

“The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness. They

recognized the significance of man’s spiritual natan,

of his feelings and of his intellect. They knew that only

a part of the pain, pleasure and satisfactions of life

are to be found in material things. They sought to

~ Commentary on the Griswold case has been extensive. De

ticularly noteworthy materials include: Kelly, Clio and the Court:

An Illicit Love Affair [1965] Sup. Cr. Rev. 119; Gross, The Con

cept of Privacy, 42 N.Y.U. L. Rev. 34 (1967) ; Pilpel, Birth Conn

and a New Birth of Freedom, 27 Ohio St. LJ. 679 (1966) ; Frank

lin, The Ninth Amendment, 40 Tul. L. Rev. 487 (1966) ;

The Griswold Case and the Expanding Right to Privacy, 1966

L. Rev. 979; Symposium—Comments on the Griswold

Mich. L. Rev. 197 (1965) ; Note, The Uncertain Renaissance a

Ninth Amendment, 33 U. Chi. L. Rev. 814 igre! N 4

Supreme Court—1964 Term, 79 Harv. L. Rev. 56, 162-65 (

- protect Am«

. emotions Ssricans in their beliefs, their i

_ against thend their sensations. They erred, as

the most co Government, the right to be

valued bY Smprehensive of rights and the right most

7 (D.C. Cit-) Grgetown College, Inc., 381 F.2d 1010, 1016-

377 US. 978 (19, banc) (dissenting opinion), cert. denied,

~The District 64).

strued, gives l'4¢ Columbia abortion law, if strictly con-

_? _ nem ttle consideration to a~woman’s feelings,

Seaman and emotions. It impinges severely upon

ii irreparabl™ life plan, and her marital relationship

It is a first order invasion of her privacy

Retired Justie consequences.

concept of prive

ning beyond thé°® Tom C. Clark has suggested that the

[A Tborti acy should include control over family plan-

on. . ;

cepa, stage of contraception. He wrote:

privacy is | falls within that sensitive area of privacy

decision. Ga] relation. One of the basic values of this

the fetus. birth control, as evidenced by the Griswold

triswold’s act was to prevent formation of

why can hephis, the Court found, was constitutionally

has failed? an individual may prevent contraception,

The prot ecti not nullify that conception when prevention

family context

over fifty yearon of various rights in the marital and

eo Clark; 7 a firm origins in decisions dating back

A first and recent example, Loving v. Comme '

388 U.S. 1, 12 (1967) (alternate ground of decision)... o

cifically held that the due process clause of the Four i

Amendment protects “[t]he freedom to marry .

sf ths otal parcial tights exaidial 4s cad

of happiness by free men.” Loving stands for the rp i

tion that “the right to marry” is protected by the da

process clause although not specifically mentioned. in the

Bill of Rights. The decision must lend further support

to arguments that other important interests associated

with marriage and the family are protected from rary

government intrusion. '

Associated with the right to marry is the right to rais

children, if one chooses, without arbitrary nta,

interference. A unanimous Court indeed has held that “th

right to have offspring” is a constitutionally protected

“human right” which cannot be taken away by a diserim.

inatory statute requiring the sterilization of some persons

convicted of crime, but not of others similarly situated

Skinner v. Oklahoma, 316 U.S. 535, 586 (1942). Again, the

right to have offspring is not mentioned in the Bill of

Rights. However, the Skinner Court, composed of Justices

Douglas (author of the opinion), Black, Reed, Frankfurter,

Murphy, Byrnes, Roberts, Jackson, and Chief Justice Har-

lan Fiske Stone (the latter two wrote concurring opinions)

had no difficulty holding that this right was protected

by the Constitution. Moreover, these members of ‘the

Court had all disassociated themselves from the economic

substantive due process school of thought found in the

much criticized and overruled opinion of Lochner v. New

York, 198 U.S. 45 (1905).

‘Assuming, then, that the right to have offspring enjoys

constitutional presumption of protection, should not a

ee ae

Constitution ?

Farther cases upholding rights associated with the family

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

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

which were subsequently reaffirmed in Griswold v. Con-

necticut, 381 U.S. 479, 483 (1965). A unanimous Court in

Pierce recognized a right to send one’s children to private

school. This right was derived from “the liberty of parents

and guardians to direct the upbringing and edueation of

children under their control.” 268 U.S. at 53435. The

Pierce Court, moreover, included Justices who rejected the

economic due process formula of Lochner, namely Justices

Brandeis, Holmes, and Stone. On the basis of Pierce, is it

not reasonable to argue that parents also should have a

right to determine how many children whose “upbringing

and education” they will direct? Not dissimilar to Pierce

was Meyer, a 7-2 decision invalidating a State statute

which prohibited the teaching of German to pupils below

the eighth grade. The Meyer Court found that the due

process clause included “the right . . . to marry, establish

a home and bring up children.” 262 U.S. at 399. Again,

the decision is not objectionable as a manifestation of eco-

nomic due process because it was joined by Justice Bran-

deis, among others, who rejected the Lochner scheme. The

dissents, moreover, by Justices Holmes and Sutherland,

rested on the assumption that the State had a substantial

interest in assuring that foreign-born students and stu-

dents of alien parentage had considerable training in the

English language before being exposed to other languages.

Taken together, the Griswold, Stanley, Loving, Skinner,

Pierce, and Meyer decisions all illustrate that the Cong,

tution protects certain privacy and family interests fy

government intrusion unless a compelling substantial ;

tification exists for the legislation.” Appellee nd

that the right of a patient to determine whether to, haye

additional children, and if not then to terminate a

myn seat og eh 2H aly a

protection in the setting of this case.

C. The Right to Choose Whether and When

to Bear and Raise Children

In addition to the decisions upholding rights asia

with personal and family privacy, an overlapping body of

precedent extends significant constitutional protection to

the citizen’s sovereignty over his or her own body.

reuonttn lect

and unquestionable authority of law. As well said by

Judge Cooley, ‘The right to one’s person may be said

to be a right of eomplete immunity: to be let alone.”

Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891),

quoted in Terry v. Ohio, 392 U.S. 1, 8-9 (1968).

See also Poe v. Ulimen, 367 U.S. 497, 551-52 (1961) (ae

Justice Harlan, dissenting) :

‘27

This right, like all rights, has limits, as illustrated by

Jacobson v. Massachusetts, 197 U.S. 11 (1904). There this

Court upheld a compulsory vaccination law, but only to

avoid “great dangers” and to protect “the safety of the

general public.” 197 U.S. at 29. The lengths to which the

Court went, however, to justify a shot in the arm point up

| the degree to which personal autonomy is entitled to pro-

tection.

In marital and family matters relating to procreation,

this Court has consistently recognized and sustained the

individual’s rights, and has done so on a constitutional

plane. “The freedom to marry .. . ,” Loving v. Common-

wealth, 388 U.S. 1, 12 (1967) ; “the right to have offspring,”

Skinner v. Oklahoma, 316 U.S. 535, 536 (1942); and “the

liberty of parents and guardians to direct the upbringing

and education of children under their control,” Pierce v.

Society of Sisters, 268 U.S. 510, 534-35 (1925), are all pro-

tected constitutional rights, embedded in American law,

as is the right, at least of a married woman, to use contra-

ceptives.

These rights, however, do not complete the set. Without

a right to respond, a woman is at the mercy of possible

contraceptive failure, particularly if she is unable or un-

willing to utilize the most effective contraceptives. When

pregnancy begins, she is faced with a governmental man-

date compelling her to serve as an incubator for months,

and finally as an ostensibly willing mother for up to twenty

or more years. Often she must forego a career or further

education, and endure economic and social hardships.

Under the present law she is given no other choice. Con-

tinued pregnancy is compulsory, unless she can persuade

the authorities that she is potentially suicidal, or that he

“health” is otherwise endangered. 3

THe.

Without the right to obviate contraceptive failure, ¢

rights of privacy or family rights would be largely dilz

For this reason this Court should take the same positions

California v. Belous, and recognize the constitutional y

lidity of the “fundamental right of the woman to choo

whether to bear children . .” TL Cal. 2d at 1008

P24 at 199, 80 Cal. Rptr. at 359. a

The Distinction Between Personal and Economic

Rights Under the Due Process Clause and the —

Relevance of the Ninth Amendment as an Aid

to Construction:

Appellee’s position is by no means an assertion that

courts ought “to roam at large in the broad expanses of

policy and morals,” nor that this Court should “sit asa

superlegislature to weigh the wisdom of legislation nor to

decide whether the policy which it expresses offends the

public welfare.” ** Here, as in Griswold, the position is

that there are certain sacred rights associated with ind.

vidual privacy and the marital relation. These rights have

already been held to include the rights to marry, have ehil-

dren, not have children (by use of contraceptives), and

raise children. Appellee claims that these rights also in

clude the right not to have children in the case where preg-

51 Adamson v. California, 332 U.S. 46, 90 (1947) (dissenting

opinion of Mr. Justice Black). See also Griswold v. Connecticut,

381 U.S. 479, 507 (1965) (Black, J., dissenting) ; id. at 527 (Stew.

art, J., dissenting) ; Ferguson v. Skrupa, 372 U.S. 726, 730 (1968).

-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).

* 29

ancy can be terminated in its early stages by means of

an induced or therapeutic abortion. This is by no means a

novel claim in light of the lines of decision discussed above.

Two distinctions can be made which limit the scope of

the principle asserted: first, that there are constitutional

justifications for treating “personal” rights differently

from purely “economic” rights in cases arising under the

due process clause, and second, that there are even weight-

jer considerations for treating “privacy” and “marital”

rights with great solicitude in order to protect these most

important areas from legislative experimentation. Griswold

recognized these distinctions. Writing for the majority

Mr. Justice Douglas reaffirmed the proposition that the

Court does not

“sit as a super-legislature to determine the wisdom,

need and propriety of laws that touch economic prob-

lems, business affairs, or social conditions.” 381 U.S.

at 482.

However, the Court recognized an important distinction

where the challenged statute

“operates directly on an intimate relation of husband

and wife and their physician’s role in one aspect of that

relation.” 381 U.S. at 482.

That is precisely the type of situation presented by this

case, and the kind of circumstance envisioned by the con-

curring opinion in Griswold by Mr. Justice Goldberg:

“I quite agree with Mr. Justice Brandeis that... ‘a.

State may .. . serve as a laboratory; and try novel

social and economic experiments . . -’ I do not believe

that this includes the power to experiment with the

fundamental liberties of citizens ....” 381 U.S. at 496.

It is apparent, moreover, that Justices Holmes,

Stone, Jackson, Frankfurter, and Reed also took this pou

tion. They consistently rejected an economic due ;

ready been discussed at length. "

In addition, there are more recent expressions whieh

indicate a different standard for testing “legislatim

[which] touches upon fundamental individual and persotal

rights essential to maintaining the independence, integrity,

and private development of a citizen in a highly organized,

yet democratic society.” The several “right to travel?

cases recognized a right which is nowhere spelled out in the

Constitution or Bill of Rights, as do decisions ‘hid

broadly protect freedom of “association” far beyond th

mere articulation of ideas and into the sphere of organise

action.”

8° Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L

Rev. 219, 224 (1965). Professor Emerson suggests that this “a

tinction is. . . 8 fundamental one,” éd., and analyzes cases whic

can be explained on such a basis. E.g., Aptheker v. Seoretary of

State, 378 U.S. 500 (1964).

“Eg. Aptheker, supra; Shapiro v. , 394 va 618

(1969); United States v. Laub 7385 US . 475 (1967) ; Zand

Rusk, 381 U.S. 1 (1965) ; Lynd v v. Rusk usk, 389 F.2d 940

(D.C.

1967); see United States v. Guest, 383 U.S. 745, 757-59 ‘aah

(Stewart, J.) :

“The Constitutional right to travel . . . occupies a postin

fundamental to the concept of our Federal Union. * * * [That

right finds no explicit mention in the — The reasoa,

it has been suggested, is that a right so elem was ¢0n-

solved fvuh tae bughiniing to be... nocenieny::.s7 a

have agreed that the right exists.” é

55 See, e.g., United Mine Workers v. Illinois State Bar, 389 US

217 (1967) ; Brotherhood of Railroad Trainmen v. Varina,

U.S. 1 (1964); NAACP v. Button, 371 U.S. 415 (1963).

Principled justification, moreover, exists for making this

distinction.” The Constitution grants plenary power to

the legislative branch to regulate commerce and to levy

taxes for the general welfare. It grants no such power to

the courts for appraising economic legislation. On the

other hand, the Constitution grants considerable power to

the courts for the purpose of protecting certain basic

human rights. And, the Constitution grants no such power

to the legislative branch for the purpose of experimenting

with basic human rights because thse rights are to be

protected rather than subjected to legislative regulation.

It follows, therefore, in light of the due process clause

and the Ninth Amendment (discussed below), that the judi-

ciary is charged with the protection of those rights in the

Bill of Rights and other non-economic fundamental rights

which have not been enumerated, such as those associated

with the relation and the family, particularly where federal

governmental action is present, as here.

Significantly, the text of the Constitution does not pro-

hibit the courts from protecting basic human rights which

are not enumerated. The draftsmen of the Bill of Rights

could certainly have used language to limit the courts

to protecting only those rights which were specifically

named. The very opposite was done, however, by the ex-

pansive language of “rights” “not enumerated,” “privi-

leges and immunities,” and “due process of law.” These

n of the Laws, 37 Calif. L. Rev. 341, 371-73 (1949)

(similar dichotomy suggested for equal protection setting).

(

latter terms, morever, were written against the backg

Seen eennnae nae a

land, 17 U.S. (4 Wheat.) 316, 407 (1819), that: -

Like ies Hae d's «CRUG

expounding . . . intended to endure for ages rn ome

and eonsequentiy to e adapted to the various a

in human affairs.” “ae

Similarly, Mr. Justice Brandeis wrote:

“Clauses guaranteeing to th. individual

against specific abuses of power, must have a simils

capacity of adaptation to a changing world .... Th

progress of science in furnishing the Government

means of espionage is not likely to stop with

tapping. Ways may some day be developed by wiih

the Government . . . will be enabled to expose to a jury

the most intimate occurrences of the home . - Can

it be that the Constitution affords no protection agi

such invasions of individual security ?” is

Olmstead v. United States, 277 U.S. 438, 472, 474 se

(dissenting opinion).

Finally, what was said by Mr. Justice Stewart in a pl

Griswold decision may be aptly paraphrased to apply ine

present context:

“The Constitutional right [of marital privacy] .

cupies a position fundamental to the concept of 4

Federal Union. * * * [T]hat right finds no explicit

mention in the Constitution. The reason, it has bem

suggested, is that a right so phaser was conetived

from the beginning to be .. . necessary... .”

United States v. Guest, 383 U.S. 745, 757-58 (1966). ‘oe

it be that a right of marital privacy, or personal privacy or

sutonomy, occupies a lesser position than a right to travel

from state to state?

One basic purpose of the first nine amendments could not

have been to render the courts helpless in the face of gov-

emment intrusion upon personal and marital privacy.

What has been said concerning the due process clause and

the distinction between personal and economic rights finds

farther support in the Ninth Amendment, as recognized

in the Griswold concurrence by Mr. Justice Goldberg,

Chief Justice Warren, and Justice Brennan.”

Justice Goldberg summarized his interpretation of the

Ninth Amendment as follows :*

“J do not mean to imply that the Ninth Amendment is

applied against the State by the Fourteenth. Nor do

I mean to state that the Ninth Amendment constitutes

an independent source of rights protected from in-

fringement by either the State or the Federal Govern-

* Post- and pre-Griswold discussions of the Ninth Amendment

have surveyed its history in the convention and the courts. They

point to the accuracy of Mr. Justice Goldberg’s interpretation, as

contrasted with that of the dissents. See generally Note, The Un-

certain Renaissance of the Ninth Amendment, 33 U. Chi. L. Rev.

814 (1966) ; Franklin, The Ninth Amendment, 40 Tul. L. Rev. 487

(1966) ; Symposium—Comments on the Griswold Case, 64 Mich.

L, Rev. 197, 207, 227-28, 254-55, 268-71 (1965); Redlich, Are

There “Certain Rights . . . Retained by the People?,” 37 N.Y.U.

L. Rev. 787 (1962).

“The Note cited above, 33 U. Chi. L. Rev. at 825, reaches the

same conclusion after an exhaustive study of the Ninth Amend-

ment:

“In summary, whether one reads the history of the ninth as

foreclosing the ‘imperfect enumeration’ theory, or as attempt-

ing to avoid future definitional problems, the amendment

clearly remains a rule of construction with the purpose of

obviating the possibility of interpreting the first eight amend-

ments as exclusive. It is not, as its history indicates, either

& source or a summary of those unenumerated rights.”

ment. Rather, the Ninth Amendment shows a ‘beli¢

of the Constitution’s authors that fundamental rights

exist that are not expressly enumerated and an intent

that the list of rights included there not be —_

exhaustive.” 381 U.S. at 492.

No specific constitutional provision covers the richie

marry, raise children, travel, attend private school, tp

dress as one chooses, to pursue one’s chosen profession

or a host of rights which might someday be invaded by

legislatures. The framers could hardly be expected tp

undertake the herculean task of listing all personal rights

which might be regarded as of equal stature to those mor

specifically spelled out. Therefore, it appears, they enacted

the Nine Amendment.

Recognition of the rights being asserted on this apped

would not usher in a vast increase in judicial power. What

has been said pertaining to Griswold applies here:

“Griswold v. Connecticut is a reaffirmation of 9 power

long exercised by the Court in protecting fundamental

rights. It required no judicial roving at large to reach

the conclusion that the freedom of the marital relation.

ship is a part of the bundle of rights associated with

home, family, and marriage—rights supported by prec.

edent, history, and common understanding. For a court

to find that these rights are fundamental, whether

because they are deeply written in the tradition and

conscience of our people, are part of the concept of

ordered liberty, are implicit in the notion of a fre

society, or emanate from the totality of the constitr

tional order, involves no immodest or startling exer-

cise of judicial power. The decision operates within

a narrow sphere. In exercising its power in Griswold

to protect a fundamental personal liberty, the Court,

far from advancing to a new milepost on the high road

to judicial supremacy, was treading a worn and fa-

miliar path.”

Kauper, Penumbras, Peripheries, Emanations, Things Fum-

damental and Things Forgotten: The Griswold Case, 64

Mich. L. Rev. 235, 258 (1965). And, as Professor Suther-

land suggested, “[i]f anyone rebels at the thought of en-

trusting this power to the nine Justices, he may well con-

sider for a little while to whom he would prefer to entrust

it; this ean be a sobering experience.” Sutherland, Privacy

in Connecticut, 64 Mich. L. Rev. 283, 288 (1965).

Accepting, then, that Appellee, physicians similarly sit-

uated, and their patients are rightfully asserting funda-

mental rights of constitutional dimension, it is necessary to

evaluate the competing interests of the government.

Two governing principles must be satisfied to sustain

this statute: Its provisions must be (1) narrowly drawn,

and (2) supported by compelling governmental interests.

As outlined in the majority and concurring opinions in

Griswold :

“a ‘governmental purpose to control or prevent activities

constitutionally subject to state regulation may not be

achieved by means which sweep unnecessarily broadly

and thereby invade the area of protected freedoms.’

NAACP v. Alabama, 377 U.S. 288, 307.” 381 U.S. at

-. #€ * * * & ‘

“Tn a long series of cases this Court has held that where

fundamental personal liberties are involved, they may

not be abridged by the States simply on a showing

that a regulatory statute has some rational relat

ship to the effectuation of a proper state purpose

‘Where there is a significant encroachment upon 'pey.

sonal liberty, the State may prevail only upon showing

a subordinating interest which is compelling.’ Bat

v. Little Rock, 361 U.S. 516, 524.” arta

(concurring opinion of Goldberg, J.). st

D. Insufficiency of Governmental Interests ea

Whether the District’s abortion statute, with its poten

tially drastic sweep, can be independently justified as pry.

moting public health in 1970 is not even a close question.

The statute clearly does not generate a more healthy femal

population. Rather, it creates “a public health problem af

pandemic proportions” * by denying to women the oppor.

tunity to obtain safe medical treatment in controlling thei

personal reproduction.”

Although Appellants have not sought to support the sat

ute as a compelling (or even rational) public health megs.

ure, this appears to be the principal — ever

brought forward for such laws.

All available evidence from the last century indicat

that the dangers of abortional surgery, and no other em-

sideration, provoked the statutes against abortion. In feet,

5° Hall, Abortion in American Hospitals, 57 Am. J. Pub. Ha

1933, 1934 (1967).

* Some will contend that women themselves, not the s

create their own public health quandries by refusing the role

compulsory motherhood and seeking non-medical abortion eae

resort. But that is a bootstrap contention which the State not

make. The statute itself must be said to create the health

for its very terms foreclose access to safe medical abortion in}

if not most cases of pregnancy. As shall be shown, infra, |

abortion is safer than childbirth, and permissive abortion practice,

of necessity, would enhance the ‘public health, not the contrary. —

Jeg SS es

a statute was proposed in New York in 1828 which would

have criminally punished “any surgical operation . . . unless

itappear that the same was necessary for the preservation

dflife....”™

In 1828 all surgery which involved insertion of instru-

ments into body cavities was highly dangerous because of

ueontrollable infection and pain-induced shock. Abortion,

which would have involved the insertion of unclean instru-

ments into the uterine cavity, was accordingly a fright-

fully dangerous procedure at that time. It was 1884 before

Sir Joseph Lister’s aseptic techniques™ gained widespread

acceptance in New York City circles,” and only much later,

1934, before curettage was routinely used in hospital treat-

ment of incomplete abortion.“ Effective antibiotics came

into use after 1942 to inaugurate a new era in medicine

and surgery.”

Nineteenth century judicial commentary showed an acute

awareness of the fact that surgical dangers underlay the

“6 Revisers’ Notes, pt. IV, ch. 1 tit. 6, §28 at 75 (1828). See

, Means, The Law of New York Concerning Abortion and

the Status of the Foetus, 1664-1968: A Case of Cessation of Con-

stitutionality, 14 N.Y.L.F. 411 (1968).

Lister’s findings first appeared in an 1867 issue of The Lancet.

Earlier discoveries along the same lines had been made by Semmel-

weis and Oliver Wendell Holmes, Sr. See generally, Holmes, The

Contagiousness of Puerperal Fever (1843); I. Semmetwens, THE

AsmoLocy, CONCEPT, AND PROPHYLAXIX oF CHILDBIRTH FEVER

(1861); H. Ross, Aseptic SurcicaL TecHNIQUE WITH ESPECIAL

REFERENCE TO GYNAECOLOGICAL OPERATIONS (1835) ; C. HAAGENSEN

& W. Lioyp, A Hunprep Years or Mepicine (1943).

*(C, HaaGensen & W. Luoyp, supra note 62, at 292-93.

“ Douglas, Toxic Effects of the Welch Bacillus in Postabortal

Infections, 56 N.Y. State J. Med. 3673 (1956).

“Id.

statutes.“ A 1943 decision in the District reflected, te

same concern. Williams v. United States, 78 U.S. App. DC,

147, 150, 138 F.2d 81, 84 (1943) (“The dangers of abortion

. come from . . . incompetent, unscrupulous practitioners,

cpeciilik | in aiseber, without antiseptic conditions . +2),

In sum, the statute when enacted in 1901 was probably

a useful public health measure. Today, almost 70 year

later, the statute and its purpose remain virtually m.

changed. It purports to protect the women, however, even

from abortions performed in safe clinical facilities,

While abortion statutes lay on the books for years m

end, the realm of surgery has undergone changes of pro.

found magnitude.

Of special relevance to this appeal is the fact that clinical

abortions today, in early pregnancy, are much safer than

childbirth. Thus, the government’s health interest in pre

venting abortion is not compelling; it is neither reasonable

nor rational; it is wholly non-existent. The public health

interest would be served greatly by permitting pregnant

women to have abortions when they so desire, not by foreing

them into more dangerous courses—pregnancy, or extra.

clinical abortion.

Tietze published a study in September of 1969 v=

summarized the relevant data, as follows:

* See State v. Murphy, 27 N.J.L. 112, 114-15 (Sup. Ct. 1858):

“The design of the statute was not to prevent the procuring of

abortion, so much as to guard the health and life of the mothe

against the consequences of such attempts.”

State v. Gedicke, 48 N.J.L. 86, 96 (Sup. Ct. 1881) :

“[ Abortion] in almost every case endangers the life and beat

of the woman.”

t 2422

“Mortality associated with legal abortion performed in

hospital, at an early stage of gestation: 3 deaths per

100,000 abortions... .”"

“Maternal Mortality from complications of, or associ-

ated with, pregnancy, child-birth, and the puerperium,

excluding induced abortion: 20 deaths per 100,000

pregnancies.” *

“Mortality associated with highly effective contracep-

tion: 3 deaths per 100,000 users per year... .””

Thus, abortion is almost seven times as safe as childbirth.

Yet, abortions are not freely available to most women

who request them. The statute is generally interpreted

by hospitals to prohibit abortion except in a narrow range

of cases, a range which varies from physician to physician

and hospital to hospital. The effect of these wide-ranging

interpretations is to deny abortions to the poor, thus add-

ing a gross factor of statutory discrimination to those

hardships which the government is otherwise trying to

correct.

“ Tietze, Mortality With Contraception and Induced Abortion,

45 Studies in Family Planning 6 (1969) (emphasis in original).

For further substantiation of the safety of early abortion on healthy

women under appropriate medical conditions, see Tietze, Abortion

laws and Abortion Practices in Europe (1969) ; Tietze, Abortion

in Europe, 57 Am. J. Pub. Health 1923 (1967); Tietze & Lewit,

Abortion, 220 Scientific American 3 (Jan. 1969) ; Kolblova, Legal

Abortion in Czechoslovakia, 196 J.A.M.A. 371 (1966); Mehland,

Combatting IUegal Abortion in the Socialist Countries of Europe,

13 World Med. J. 84 (1966).

*Jd., based on the United States “rate of maternal mortality,

a [which] was 18 per 100,000 live births in

“Id., citing Inman & Vessey, Investigation of Deaths from

and Cerebral Thrombosis and Embglism in Women

_ Of Child-bearing Age, 2 Brit. Med. J. 193 (1968).

The statute as implemented, moreover, forces women fp

go elsewhere, often to non-medical practitioners who do ng

operate under conditions of safety. At worst they utilise

coat-hangers and knitting needles. “

The medical literature is replete with discussions of the

public health dangers created by non-medical abortions”

The incidence of death from bungled abortion is no longer

of startling magnitude.” However, severe infection and

irreversible sterility occur with unfortunate frequency."

One can fairly contend that this would all not be the

case but for the inevitable effects of a vague and “

tially sweeping statute.

Viewed in light of the constitutional mandate that a

statute touching fundamental liberties must be narrowly

drawn and supported by a compelling state interest, this

1 See, €.9., Reid, Assessment and Management of the

IU Patient Fo Abortion, 199 J.A.M.A. 805 (1967); _

Massive Removal of Small Bowel During Criminal A ‘ef

Brit. Med. J. 929 (1966); Decker & Hall, Treatment of A

Infected With Clostridium Welchii, 95 Am. J. Obst. & Gynec, 34

(1966) ; Moritz & Thompson, Septic Abortion, 95 Am. J. Obst. & |

Gynec. 46 (1966); Knapp, Platt & Douglas, ‘Septic A i

Obst. & Gynec. 344 (1960) (concerning experience at the New York

Hospital) ; Studdiford & Douglas, Placental Bacteremia: A Signij-

cant Finding in Septic Abortion Accompanied by Vasculer Col

lapse, 71 Am. J. Obst. & Gynec. 842 (1956) (Bellevue Hospital);

Douglas, Toxic Effects of the Welch Bacillus in Post-aboria Is

fections, 56 N.Y. State J. Med. 3673 (1956).

Earlier estimates were of 10,000 deaths per year. J. Barmsé

E. Zawadzki, CRIMINAL ABORTION, 3-4 (1964). With the advest

of anti-biotics, however, 500-1,000 is a more reliable national @

mate today. Hall, Commentary in ABORTION AND THE Law 2

(D. Smith ed. 1967).

2 See, e.g., 8. Kureaman & S. Kavrman, InveRrry a

Women’ 301 (1966): “Induced illegal abortion . . . is one of the

most important causes of subsequent infertility and pelvie disease”

statute cannot be sustained as a public health measure.

Rt is not narrowly drawn to prohibit abortion by non-

medical personnel outside of the clinical setting. Nor is

there a compelling interest, or any health interest what-

sever, for prohibiting abortion in a medical facility. The

operation, it should be recalled, excels its alternative, child-

birth, many times over in terms of safety.

Congress also has neither a compelling nor rational basis

for adopting @ policy in favor of increased population.”

Although Appellants have not strongly contended that

the doctrine of “be fruitful and multiply” supports their

position, abortion statutes have frequently throughout his-

tory been enacted for this very purpose. It is important

to establish not only that increased population is not a

compelling governmental interest, but also that increasing

population, calmly viewed, is a major social problem in the

nation, and the world.

The national population today is over 200 million,” and

that of the world is 3.2 billion.”

“Looking ahead, it is estimated that the world popula-

tion will double yet again by the end of this century,

reaching a total of 6.4 billion in the short period of

30 years. Beyond that, the next doubling could take a

mere 15 years.” **

"Cf. Clark, p. 9: “Procreation is certainly no longer a legitimate

FeamPelling state interest in these days of burgeoning popula-

“U.S. Bureau or tHe Census, Statistical Abstract of the United

States : 1969, Table 11, at 12 (90th ed.).

"Rossi, A Behavioral Scientist Looks at Abortion in ABORTION

tt 4 CHaNaina Wortp (R. Hall ed. 1970) (in press).

"Id.

This geometrical growth rate of population. poses .; ia

for poeta ermal ares

and constructing livable urban environments for ap

ulation which is already in a mass movement to

areas.” ™ do

“With this prospect ahead for the next few generation,

it is scarcely surprising that so many writers view humm

fertility control as the problem of man in the late *

century. 78

This abortion statute intensifies the problem of popula.

tion by largely excluding voluntary abortion as a meam

of regulating family size when contraception failed or was

not used. Only when women have had this option has

population growth sua sponte leveled-off to a small or

negligible rate.”

In sum, the statute in question finds neither compelling

nor rational justification in a governmental policy favoring

increased population. Thus Congress has failed to put

forward a compelling justification for the statute andit

must be found to violate the United States Constitution

Kaplan & Chez, The Economics of Population Growth, 1%

Am. J. Obst. & Gynec. 133, 135 (1969).

8 Rossi, supra note 75. The literature on the burgeoning popule

tion and its consequences is massive. See, ¢.g., P. Enniicu, Tas

PorvuLaTion Boms 2 &- Tompson & D. Lewis, PoruLat

Prositems (1965) ; Hauser (ed.), Toe Porunation Dimou

(1963) ; Foerster, be & hiket Decoder: Friday, 23 November,

A.D. 2026, 132 Science 1291 (1960).

ase)” Tietze, Abortion Laws and Abortion Practices in Europe

CONCLUSION

For the reasons set out, the Motion to Affirm should

be granted.

Respectfully submitted,

JoszrH Srrwick

1511 K Street, N.W.

Washington, D. C. 20005

Joszern L. News

1819 H Street, N.W.

Washington, D. C. 20006

Roy Locas

26 West 9th Street

New York, N. Y. 10011

Attorneys for Appellee.

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