Jurisdictional Statement — Roe v. Wade

Supreme Court brief1973

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Text

Jane Rox, Jonn Doz, and Mary Dos,

Appellants,

Jamzs Hupert Hatirorp, M.D.,

Appellant-Intervenor,

——

Henry Wapz,

Appelles.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHEEN DISTRICT OF TEXAS

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INDEX

Citation to Opinions Below

Jurisdiction

Statutes Involved

Questions Presented

Statement of the Case

The Questions: Are Substantial

PAGE

Introduction

I. The Three-Judge Court Should Have Enjoined

Future Enforcement of the Texas Anti-Abor-

tion Laws, Which the- Court Had Declared

Unconstitutional, Because an Injunction Was

Necessary in Aid of the Court’s Jurisdiction,

Proper to Effectuate the Declaratory Judg-

ment, and Needed to Prevent Irreparable In-

jury to Important Federal Rights of the Class

of Pregnant Women Who Are or Will Be Seek-

ing Abortions, and the Class of Physicians Who

Are Forced to Reject Such Women as Patients

Out of a Reasonable Fear of Prosecution ........

Il. A Married Couple, and Others Similarly Situ-

ated, Have Standing to Challenge the Texas

Anti-Abortion Laws, Because Said Laws Have

PAGE

a Present and Destructive Effect on Their

Marital Relations, They Are Unable to Utilize

Fully Effective Contraceptive Methods, Preg-

nancy Would Seriously Harm the Woman’s

Health, and Such a Couple Could Not Obtain

Judicial Relief in Sufficient Time After Preg-

nancy to Prevent Irreparable Injury ............... 30

ConcLusion 33

APPENDIX:

Notice of Appeal to the Supreme Court of the

United States From the United States District

Court, Filed August 17, 1970 la

Judgment of the United States District Court,

Granting Declaratory Judgment, and Denying

Injunction, Entered June 17, 1970 4a

Decision of United States District Court, Filed

June 17, 1970 14

Notice of Protective Appeal to the United States

Court of Appeals for the Fifth Circuit, Filed

July 24, 1970, by Appellant Jane Roe .................. 21a

Notice of Protective Appeal to the United States

Court of Appeals for the Fifth Circuit, Filed

July 23, 1970, by Appellant James H. Hallford,

M.D. 23a

PAGE

TaBLE oF AUTHORITIES

Constitutional Provisions:

United States Constitution—

Amendment I 9, 12, 14, 27

Amendment IV 9,14

Amendment VIII 9,19

Amendment IX ‘ 9, 10, 14, 20

Amendment XIV 9, 14, 15, 19

Article III 32

STATUTES :

N.Y. Penal Law $125.05(3), at 79 (McKinney Supp.

1970-71) 17

2B Texas Civ. Stat. art. 4437f, at 212 (1966)... 7

2B Texas Civ. Stat. arts. 4505-06, at 541 (1966), at 132

(Supp. 1969-70) 7

A Texas Penal Code arts. 1191-94, at 429-35 (1961) ..3, 4, 5,

passim

A Texas Penal Code art. 1196, at 436 ( 1961) ....3, 4, passim

8 U.S.C. $1253 (1964 ed.) .... 3, 13

8 U.S.C. §1343(3) (1964 ed.) 2

8 U.S.C. $2101 (1964 ed.) 3

8 U.S.C. §2201 (1964 ed.) 2

8 U.S.C. §2281 (1964 ed.) 3

8 U.S.C. $2283 (1964 ed.) 25, 26, 27, 29

8 U.S.C. §2284 (1964 ed.)

2U.S.C. $1983 (1964 ed.)

PAGE

Cases:

Baggett v. Bullitt, 377 U.S. 360 (1964) yt

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

July 6, 1970) 16

Barrows v. Jackson, 346 U.S. 249 (1953) 0

California v. Belous, 71 Cal. 24 ——, 458 P.2d 194,

80 Cal. Rptr. 354 (1969), cert. denied, 397 U.S. 915

(1970) 6, 11, 18, 19

Carter v. Jury Comm’n of Greene County, 396 U.S. 320

(1970) 3

Catching v. State, 364 S.W.2d 691 (Tex. Ct. Crim. App. _

1962) : 8

Dinis v. Volpe, 389 U.S. 570 (1968) (per curiam) ........ 3

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

Ga. July 31, 1970) (per curiam) 20, 21

Doe v. Lefkowitz, 69 Civ. 4423 (S.D.N.Y. Dec. 12, 1969)

(per curiam) (unreported) 6

Doe v. Randall, 314 F. Supp. 32 (D. Minn. May 19,

1970), rehearing denied, 314 F’. Supp. 36 (D. Minn.

July 1, 1970) (per curiam), appeal docketed sub nom.

Hodgson v. Randall, 39 U.S.L.W. 3115 (U.S. Sept..-21,

1970) (No. 728, Oct. 1970 Term) 6, 13, 3

Doe v. Scott, No. 18382 (7th Cir. Mar. 30, 1970) (per

curiam), rev’g 310 F. Supp. 688 (N.D. Ill. Mar. 27,

1970) 6

Dombrowski v. Pfister, 380 U.S. 479 (1965) -....... 12, 23, 24,

25, 26, B

Evans v. Cornman, 398 U.S. 419 (1970) 3

PAGE

Fletcher v. State, 362 S.W.2d 845 (Tex. Ct. Crim. App.

1962) 8

Goldberg v. Kelly, 397 U.S. 254 (1970) 7 3

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

Hale v. Bimco Trading Co., 306 U.S. 375 (1939) ....3, 25, 26

Hodgson v. Minnesota, 39 U.S.L.W. 3115 (U.S. Sept.

21, 1970) (No. 729, Oct. 1970 Term), on appeal from

No. 42652 (Minn. Sup. Ct. July 20, 1970), denying

prohibition to No. 23789 (Minn. Dist. Ct., Ramsey

County June 29, 1970) 13

Keyishian v. Board of Regents, 385 U.S. 589 (1967) .... 24

Loving v. Virginia, 388 U.S. 1 (1967) 19

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

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

(U.S. June 20, 1970) (No. 297, Oct. 1970 Term) ....11, 13,

19, 20

Meyer v. Nebraska, 262 U.S. 390 (1923) 11

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

485 (N.D. Calif. 1970) 16

Mitchell v. Donovan, 398 U.S. 427 (1970) (per curiam) 13

Moore v. Ogilvie, 394 U.S. 814 (1969) | 3, 31

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........... 11

Planned Parenthood Ass’n of Phoenix v. Nelson, Civ.

No. 70-334 PHX (D. Ariz. Aug. 24, 1970) (per

curiam) (unreported) 20

Prince v. Massachusetts, 321 U.S. 158 (1944) 11

Rockefeller v. Catholic Medical Center, 397 U.S. 820

(1970) (per curiam) 13

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

(N.D. Tex. June 17, 1970) (per curiam) ............ 7a, passim

Shively v. Board of Medical Examiners, No. 590333

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

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

Rptr. 217 (1968) 19

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

(1942) 11, 19

Stanley v. Georgia, 394 U.S. 557 (1969) 11

State v. Hallford, Nos. C-69-2524-H & C-69-5307-IH

(Tex. Crim. Ct., Dallas County 1969) 9

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

1970) 16

Toilet Goods Ass’n v. Gardner, 360 F.2d 677 (2d Cir.

1966) 31

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

269 (S.D.N.Y. 1970) 20, 21

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

1969), ques. of juris. postponed to merits, 397 US.

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

923 (1970) 11, 13, 21

United States v. W. T. Grant Co., 345 U.S. 629 (1953) .. 31

Veevers v. State, 354 S.W.2d 161 (Tex. Ct. Crim. App.

1962) 9

Williams v. Rhodes, 393 U.S. 23 (1968)

Willingham v. State, 33 Tex. Crim. 98, 25 S.W. 424

(1894)

qwickler v. Koota, 389 U.S. 241 (1967)

Books:

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

(1958)

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

ed. 1966)

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

ronment (1970)

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

(1958)

Taussig, F., Abortion: Spontaneous and Induced

(1936)

Articles and Commentary:

Brewer, Dombrowski v. Pfister: Federal Injunctions

Against State Prosecutions in Civil Rights Cases—A

New Trend in Federal-State Judicial Relations, 34

PAGE

Fordham L. Rev. 71 (1965) 27, 28

Clark, Tom C., Religion, Morality, and Abortion: A

Constitutional Appraisal, 2 Loyola Univ. (L.A.) L.

Rev. 1 (1969) 11, 22

Federal Anti-Injunction Statute and Declaratory

Judgements in Constitutional Litigation, The, Note,

83 Harv. L. Rev. 1870 (1970)

Federal Injunctions Against State Actions, Comment,

35 Geo. Wash. L. Rev. 744 (1967) 27, 28

PAGE

Fisher, Criminal Abortion, in Abortion in America 3

(H. Rosen ed. 1967) 16

George, Current Abortion Laws: Proposals and Move-

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

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

spectives in Biology & Med. 1 (1966) 16

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

World 127 (R. Hall ed. 1970) 17

Stickgold, Variations on the Theme of Dombrowski v.

Pfister; Federal Intervention in State Criminal Pro-

ceedings Affecting First Amendment Rights, 1968

Wis. L. Rev. 369 4A

Tietze, Clinical Effectiveness of eaenaities Meth-

ods, 78 Am. J. Obst. & Gynec. 650 (1959) ................ om ae

‘Pietze, Therapeutic Abortions in the United States,

101 Am: J. Obst. & Gynec. 784 (1968) 15

Other Authorities:

J.A.M.A., 213 :1242 (Aug. 24, 1970) 17

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

1962) 17, 18

Sup. Ct. Rules (July 1, 1970 ed.) 3

Uniform Abortion Act (2d Tent. Draft, 1970) ........ 18

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

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

1969) 15

In THE

Supreme Court of the Anited States

Ocroper Term, 1970

oe ;

JaNE Ror, Jonn Dor, and Mary Doz,

Appellants,

JaMEs Husert Hauurorp, M.D.,

Appellant-Intervenor,

Vv -

Henry Wape,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

JURISDICTIONAL STATEMENT

Appellants bring this direct appeal from a judgment

entered June 17, 1970, by a statutory three-judge United

States District Court for the Northern District of Texas.

The judgment appealed from granted these Appellants

(Plaintiffs below) a declaration that the Texas anti-abor-

tion statutes were unconstitutional on their face, by reason

of overbreadth affecting fundamental individual rights, and

that provisions in the statute suffered from unconstitu-

tional uncertainty. However, the judgment denied a perma-

nent injunction which had been sought as necessary in aid

of the District Court’s jurisdiction to enjoin future enforce-

ment of the statute declared invalid. Appellants submit this

—

Statement to show that this is a direct appeal over which

this Court has jurisdiction, and that the appeal presents

important and substantial federal questions which merit

plenary review.

Citation to Opinions Below

The June 17, 1970, opinion of the statutory three-judge

United States District Court for the Northern District of

Texas is not yet reported. The text of the decision is set

out in the Appendix, infra, at 7a.

Jurisdiction

(i) On March 3, 1970, Appellant Jane Roe filed her origi-

nal complaint,’ basing jurisdiction on 28 U.S.C. §1343(3)

(1964 ed.), and complementary remedial statutes, 28 U.S.C.

§2201 (1964 ed.) ; 42 U.S.C. $1983 (1964 ed.). On the same

day Appellants John and Mary Doe filed a complaint

predicating federal jurisdiction on the same statutes. On

March 23, 1970, the District Court granted leave for Ap.

pellant James H. Hallford, M.D., to intervene as a party-

_ plaintiff, on the basis of a complaint alleging a class action

and the same jurisdictional grounds set out above. Subse-

quently, on April 22, 1970, Appellant Jane Roe amended

her complaint to sue “on behalf of herself and all others

similarly situated” (App. at 8a n. 1). Appellants John and

Mary Doe also amended their coniplaints to assert a class

action (Jd.). All Appellants, from their respective posi-

tions as married couples, pregnant single women, and prac-

ticing physicians asked that the Texas anti-abortion stat-

1The Complaint and all other documents referred to in this

Jurisdictional Statement are part of the record on appeal.

utes’ be declared unconstitutional on their face, and for an

injunction against future enforcement of the statutes. A

statutory three-judge United States District Court was

requested and convened pursuant to 28 U.S.C. $§2281, 2284

(1964 ed.).

(ii) The final judgment of the statutory three-judge Dis-

trict Court, granting Appellants’ request for a declaratory

judgment, but denying any injunctive relief, was entered

on June 17, 1970 (App. at 4a). On Monday, August 17,

1970, all Appellants filed with the United States District

Court for the Northern District of Texas notices of appeal

to this Court (App. at la), pursuant to 28 U.S.C. §2101(b)

(1964 ed.), and Sup. Cr. Routes 11, 34 (July 1, 1970 ed.),

398 U.S. 1015, 1021, 1045 (1970). A protective appeal to

the United States Court of Appeals for the Fifth Circuit

was noticed on July 23, 1970, by Appellant Hallford (App.

at 28a), and on July 24, 1970, by Appellant Jane Roe

(App. at 21a).

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

the three-judge District Court’s final judgment denying a

permanent injunction is conferred by 28 U.S.C. $1253 (1964

ed.).

(iv) Cases which sustain the jurisdiction of this Court

are: Evans v. Cornman, 398 U.S. 419, 420 (1970) ; Goldberg

v. Kelly, 397 U.S. 254, 261 (1970); Carter v. Jury Comm’n

of Greene County, 396 U.S. 320, 328 (1970); Moore v.

Ogilvie, 394 U.S. 814, 815-16 (1969); Williams v. Rhodes,

393 U.S. 23, 26-28 (1968); Dinis v. Volpe, 389 U.S. 570

(1968) (per curiam) ; Hale v. Bimco Trading Co., 306 U.S.

375, 376-78 (1939). ‘

*The statutes, set out verbatim, infra, at 4-5, are 2A Texas

Pewat Cope arts. 1191- 1194, 1196, at 429-36 (1961).

Statutes Involved

2A Texas Pena Cone art. 1196, at 436 (1961):

“Nothing in this chapter applies to an abortion pro.

cured or attempted by medical advice for the purpose

of saving the life of the mother.”

2A Texas Penat Cope art. 1191, at 429 (1961):

“If any person shall designedly administer to a preg.

nant woman or knowingly procure to be administered

with her consent any drug or medicine, or shall use

towards her any violence or means whatever externally

or internally applied, and thereby procure an abortion,

he shall be confined in the penitentiary not less than

two nor more than five years; if it be done without her

consent, the punishment shall be doubled. By ‘abortion’

is meant that the life of the fetus or embryo shall be

destroyed in the woman’s womb or that a premature

birth thereof be caused.”

2A Texas Pena Cops art. 1192, at 433 (1961):

“Whoever furnishes the means for procuring an

abortion knowing the purpose intended is an accom-

plice.”

2A Texas Penat Cope art. 1193, at 434 (1961):

“Tf the means used shall fail to produce an abortion,

the offender is nevertheless guilty of an attempt to

produce abortion, provided it be shown that such means

were calculated to produce that result, and shall be

fined not less than one hundred nor more than one

thousand dollars.”

—

9A Texas Penat Cope art. 1194, at 435 (1961) :

“Jf the death of the mother is occasioned by an abor-

tion so produced or by an attempt to effect the same

it is murder.”

Questions Presented

L Whether the Three-Judge Court Should Have En-

joined Future Enforcement of the Texas Anti-Abortion -

Laws, Which the Court Had Declared Unconstitutional,

Where an Injunction was Necessary in Aid of the Court’s

Jurisdiction, Proper to Effectuate the Declaratory Judg-

ment, and Needed to Prevent Irreparable Injury to Im-

portant Federal Rights of the Class of Pregnant Women

Who Are or Will be Seeking Abortions, and the Class of

Physicians Who are Forced to Reject such Women as

Patients Because of a Reasonable Fear of Prosecution.

II. Whether a Married Couple, and Others Similarly

Situated, Have Standing to Challenge the Texas Anti-

Abortion Laws, Where Said Laws Have a Present and

Destructive Effect on their Marital Relations, They are

Unable to Utilize Fully Effective Contraceptive Methods,

Pregnancy Would Seriously Harm the Woman’s Health,

and Such a Couple Could Not Obtain Judicial Relief in

Sufficient Time After Pregnancy to Prevent Irreparable

Injury.

Statement of the Case

Appellants brought three actions on behalf of three vari.

ously situated classes of Plaintiffs.

John and Mary Doe, a childless married couple, sued on

behalf of themselves and all others similarly situated. Mary

Doe has a neural-chemical disorder which renders preg.

nancy a threat to her physical and mental health, although

not to her survival. Her physician has so advised her, and

has also advised against using oral contraceptives. The

alternate means of contraception used by John and Mary

Doe is subject to a significant risk of failure. In such event,

Mary Doe would like to, but legally could not, obtain g

therapeutic abortion in a suitable medical facility in Texas,

The probability of contraceptive falure jn the class repre.

sented by Mary Doe is unquestionably high, when the size

of the class is considered. Also, the limitations of judicial

relief for a pregnant woman seeking an abortion are well

known.’ For Mary Doe and others in her position, a pre-

* The period between pregnancy detection, which normally occurs

after the fourth week, and the safest time for a therapeutic abor-

tion, before the twelfth week, leaves little time for judicial delibera-

tion. With the notable exception of the Seventh Circuit, courts

have declined to render a decision on behalf of a pregnant woman

in the limited time available. In the present case, the first com-

plaint was filed March 3, 1970, and followed after fifteen full weeks

by a decision on the merits, June 17, 1970. Compare Doe v. Randall,

314 F. Supp. 32 (D. Minn. 1970) (nearly five weeks between deci-

sion and complaint); Doe v. Lefkowitz, 69 Civ. 4423 (S.D.N.Y.

Dec. 12, 1969) (per curiam) (pre!iminary injunction denied until

all factual materials developed by deposition) ; and California v.

Belous, 71 Cal. 2d ——, 458 P.2d 194, 80 Cal. Rptr. 354 (1969)

(argument March 3, 1969 ; decision September 5, 1969) ; with Doe

v. Scott, No. 18382 (7th Cir. Mar. 30, 1970) (per curiam), rev’g

310 F. Supp. 688 (N.D. Ill. Mar. 27, 1970) (order entered in three

days where pregnancy caused by rape).

pregnancy ruling on the validity of the Texas anti-abortion

laws was the only ruling that could grant her the relief she

would be seeking. Any other decision would simply be too

late to prevent irreparable injury. Accordingly, John and

Mary Doe brought an action for declaratory and injunctive

relief against the present effect of the Texas statutes on

their marital relations, and the inevitable future effect the

statutes would have, in the certain event that a member of

the class would become pregnant and not qualify for a legal

abortion in Texas.

Jane Roe, an unmarried pregnant woman, also brought

an action of the same nature, on her own behalf and for all

others similiarly situated. Jane Roe had been unable to

obtain a legal abortion in a medical facility in Texas, be-

cause her survival was not threatened by continued preg-

nancy, and no hgpital would perform the abortion, in light

of the Texas anti-abortion statutes.‘ Jane Roe was finan-

cially unable to journey to another jurisdiction with less

restrictive laws on abortion, and accordingly had no re-

course other than continuing an unwanted pregnancy, or

risking her life and health at the hands of a non-medical

criminal abortionist.

James H. Hallford, M.D., intervened as a Plaintiff, repre-

senting himself and other licensed Texas physicians simi-

larly situated. Dr. Hallford’s interest was twofold. As a

4 While Texas does not punish the woman who persuades a physi-

cian to abort her, the anti-abortion statutes impose a felony sanction

of up to five years for the physician. 2A Texas PENAL Cope art.

1191, at 429 (1961). Moreover, the physician risks cancellation of

his license to practice. 12B Texas Civ. Siar. art. 4505, at 541

(1966) ; id. art. 4506, at 132 (Supp. 1969-70). Also, the hospital

ean lose its operating license for permitting an illegal abortion

bones its facilities. 12B Texas Crv. Srar. art. 4437f, §9, at 216

(1966).

physician, he is requested by patients, on a regular ang

recurring basis, to arrange for medically induced abortions

in hospitals or other appropriate clinical facilities. This

he cannot do, for several reasons. The Texas anti-abortion

statutes are unclear in their potential application to the

situations in which patients request abortions. Conse.

quently, both physician and hospital must exercise special

caution to avoid prosecution. Also, the potential sweep of

the statutes is so drastic that the only clear case of legal

abortion is one in which the patient is near to certain death

These cases are rare; hence the typical patient’s case will

be legally uncertain, or of certain illegality. To avoid the

realistic possibility of severe penal and administrative sane.

tions, the physician must turn away the typical patient.

Since the conscientious physician knows full well that such

a patient may seek out an incompetent non-medical abor.

tionist, thereby endangering her life or health, he will con.

tinually be forced by the statute to breach his professional

duty of care to the patient.’ To rectify this invasion of the

physician-patient relationship, Dr. Hallford brought this

action to enjoin future enforcement of the Texas anti-

abortion statutes, against himself, or against any other

physician similarly situated.

Dr. Hallford’s second interest in bringing the action was

to seek relief against two indictments outstanding against

*If prior cases on abortion prosecutions in Texas are a reliable —

index, patients who are turned away by physicians have recourse

only to an assortment of quacks. See, e.g., Fletcher v. State, 362

8.W.2d 845 (Tex. Ct. Crim. App. 1962) (non-physician using crude

techniques in “cottage on the river”; hysterectomy necessary to

prevent girl’s death) ; Catching v. State, 364 S.W.2d 691 (Tex. Ct.

Crim. App. 1962) (non-physician; police found “tool box contain-

ing several catheters, a knitting needle, and other items”).

him on abortion charges.’ Under Texas law, a physician

charged with abortion is presumed guilty, if the State is

able to establish the fact of the abortion. The physician, in

such a case, must admit complicity in the act, waive his

privilege against self-incrimination, and defend on the basis

that the abortion was “procured or attempted by medical

advice for the purpose of saving the life of the [woman].”

9A Texas Penat Cope art. 1196, at 436 (1961). Decisions

such as Veevers v. State, 354 S.W.2d 161 (Tex. Ct. Crim.

App. 1962), hold that the Article 1196 exception is an af-

firmative defense, which the physician must raise and

prove. In numerous respects, this settled state-law prac-

tice deprives a physician of essential cofistitutional rights.

Moreover, state practice invades the privacy of physician

and patient by exposing intimate and confidential associa-

tions to the public glare of a criminal trial. In addition,

the possibility of conviction carries with it the revocation

of the physician’s license before appeal. These elements of

state practice render defense to criminal abortion charges

a wholly inadequate means of vindicating the physician’s

constitutional rights. Accordingly, Dr. Hallford brought

the present action as a Plaintiff-Intervenor in the main

actions filed by Jane Roe, John Doe, and Mary Doe. The

cases were consolidated, and argued together.

Essentially, the federal questions raised by each individ-

ual Plaintiff were raised by all. The complaints charged

that the Texas anti-abortion statutes deprived physicians

and patients of rights protected by the First, Fourth, Fifth,

Eighth, Ninth, and Fourteenth Amendments, as construed

by this Court in decisions such as Griswold v. Connecticut,

*State v. Hallford, Nos. C-69-2524-H & C-69-5307-IH (Tex.

Crim. Ct., Dallas County).

381 U.S. 479 (1965).' Defendants interposed objections tp

the standing of each Plaintiff, the propriety of adjudication

versus abstention, the ripeness of the dispute for present

decision, and the propriety of injunctive relief.

A statutory three-judge court, convened in response to

Plaintiffs’ request for injunctive relief from the Texas anti.

abortion statutes, granted a declaratory judgment that the

statutes were unconstitutionally vague and overbroad.

After dealing with the jurisdictional questions of stand.

ing,® ripeness,’ and abstention,” raised by the Defendants,

the three-judge court stated:

“(T]he Texas Abortion Laws must be declared uncon.

stitutional because they deprive single women and mar.

ried couples of their right, secured by the Ninth

Amendment, to choose whether to have children” (App.

at 12a).

* In the brief on the merits, Appellants will more fully elaborate

this complex substantive constitutional point. For purposes of this

Statement, however, it is sufficient to note that Griswold has been

applied in the abortion context by numerous state and federal

courts. See cases cited in notes 31-37, infra, and accompanying

text.

* Jane Roe, the pregnant Plaintiff, and Dr. Hallford, had stand-

ing because they “occupy positions vis-a-vis the Texas Abortion

Laws sufficient to differentiate them from the general public.” App.

at 9a. Also, on the authority of Griswold, Dr. Hallford had standing

to raise the “rights of his patients, single women and married

couples, as well as rights of his own.” App. at 9a n. 3. John and

Mary Doe, however, were held to lack standing. App. at 5a.

° The district court was “satisfied that there presently exists a

degree of contentiousness between Roe and Hallford and the defen-

dant to establish a ‘case of actual controversy’... .” App. at lla

10 Zwickler v. Koota, 389 U.S. 241, 248-49 (1967), was sufficient

authority to preclude abstention. App. at lla.

Reliance was placed on decisions by this Court establishing

“[rJelative sanctuaries for such ‘fundamental’ interests

(as) the family,” the marital couple,* and the individ-

ual.” Further precedent was found in similar decisions

by other federal and state courts,” as well as a major treat-

ment of Griswold in the abortion setting by Retired Justice

Tom C. Clark, see Clark, Religion, Morality, and Abortion:

A Constitutional Appraisal, 2 Loyota Univ. (L.A.) L. Rev.

1 (1969).

Not only were the statutes overlggpad, and not justified

by a narrowly drawn compelling State interest, but the

language of the statutes was unconstitutionally vague.

Although a physician might lawfully perform an abortion

“for the purpose of saving the life of the [pregnant

woman],” * the circumstances giving rise to such necessity

were far from clear. The district court detailed a few of

the more apparent ambiguities:

“How likely must death be? Must death be certain if

the abortion is not performed? Is it enough that the

woman could not undergo birth without an ascertain-

11 See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer

y. Nebraska, 262 U.S. 390 (1923) ; Prince v. Massachusetts, 321 US.

158 (1944), all cited by the district court. App. at 13a.

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

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

Georgia, 394 U.S. 557 (1969).

4 See, ¢.g., McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis.)

(per curiam), appeal docketed, 38 U.S.L.W. 3524 (U.S. June 20,

1970) (No. 297, Oct. 1970 Term) ; United States v. Vuitch, 305

F. Supp. 1032 (D.D.C. 1969), ques. of juris. postponed to merits,

397 U.S. 1061, further juris. questions propounded, 399 U.S. 923

(1970) ; California v. Belous, 71 Cal. 24 ——, 458 P.2d 194, 80 Cal.

Rptr. 354 (1969), cert. denied, 397 U.S. 915 (1970).

9A Texas PenaL Cove art. 1196, at 436 (1961).

ably higher possibility of death than would normally

be the case? What if the woman threatened suicide if

the abortion was not performed? How imminent mug

death be if the abortion is not performed? Is it suf.

ficiént if having the child will shorten the life of the

woman by a number of years? These questions simply

cannot be answered.” App. at 17a.

After finding the Texas anti-abortion statutes unconsti.

tutional on two grounds, the district court considered the

propriety of injunctive relief. Acting on the assumption

that Dombrowski v. Pfister, 380 U.S. 479 (1965) controlled,

the court refused to enjoin any present or future enforce.

ment of the statutes. Appellants have brought this appeal

to review the denial of injunctive relief.

The Questions Are Substantial

The present appeal presents important and unresolved

federal questions which have not been but should be de-

termined by this Court. A district court’s refusal to enjoin

present and future enforcement of a statute declared fa-

cially unconstitutional raises important issues for the vin-

dication by federal courts of rights guaranteed by the

Constitution. Decisions by this Court have not in recent

years clarified the propriety of federal injunctive relief

against state criminal statutes outside the pristine speech

arca of the First Amendment. A decision by this Court

is needed, particularly where, as here, the injunction was

sought by some Appellants who were total strangers to any

pending prosecutions, and by.one Appellant for whom de-

fense of state court prosecution would be a wholly inade-

quate means of vindicating his federally protected rights.

In addition, the substantive issues in the case, which will

surely be raised for further review by Appellee, are novel

issues of profound national import, affecting the lives of

many thousands of American citizens each year. Further,

the same issues are presented in four appeals already

docketed,’® a variety of conflicting decisions in the lower

courts,’” and a host of pending actions in federal and state

lower courts.”

16 (1) United States v. Vuitch, No. 84, arises under a differently

worded felony abortion statute, however, and poses numerous alter-

nate grounds for affirmance other than the central questions pre-

sented here, of overbreadth and vagueness.

(2) McCann v. Babbitz, No. 297, was decided at the federal

district. court level on grounds virtually the same as those below

in the present case. It appears in McCann, however, that the appeal

was taken by the State _— from the granting of a declaratory

judgment for Dr. Babbitz. No appeal was taken from the denial

of an injunction, as 28 U.S.C. §1253 (1964 ed.), would seem to

require, and as this Court twice held last Term, Mitchell v. Dono-

van, 398 U.S. 427 (1970) (per curiam), vacating 300 F. Supp.

1145 (D. Minn. 1969), with directions to enter a fresh judgment

of dismissal, to enable appellants to appeal to the Eighth Circuit;

Rockefeller v. Catholic Medical Center, 397 U.S. 820 (1970) (per

curiam ).

(3) Hodgson v. Randall, No. 728, is an appeal from a three-judge

federal court decision refusing to enjoin state court prosecution

of a physician who sought federal relief before performing a hos-

pital therapeutic abortion for German measles indications, and long

before the state indictment.

(4) Hodgson v. Minnesota, No. 729, involves the same subject

matter as No. 728, and is an appeal from the Supreme Court of

Minnesota’s denial of a writ of prohibition to a state trial court

which had upheld the constitutionality of an abortion statute,

where unconstitutionality was the only defense to the charges.

See cases cited in notes 31-37, infra, and accompanying text.

18 See cases cited in note 38, infra.

: Introduction

In the remainder of this Jurisdictional Statement, Ap.

pellants will show that the questions presented are sub.

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

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

limited function of a Jurisdictional Statement, this show.

ing will not undertake to develop all arguments in depth.

The Three-Judge Court Should Have Enjoined Future

Enforcement of the Texas Anti-Abortion Laws, Which

the Court Had Declared Unconstitutional, Because an

Injunction Was Necessary in Aid of the Court’s Jurisdic.

tion, Proper to Effectuate the Declaratory Judgment,

and Needed to Prevent Irreparable Injury to Important

Federal Rights of the Class of Pregnant Women Who

Are or Will Be Seeking Abortions, and the Class of Physi-

cians Who Are Forced to Reject Such Women as Patients

Out of a Reasonable Fear of Prosecution.

A. The Subject Matter of the Merits Involves Important

and Substantial Federal Constitutional Questions:

On the merits, Appellants argued successfully that deci-

sions by this Court, construing the First, Fourth, Ninth, ©

and Fourteenth Amendments supported a claim that the

Texas anti-abortion statutes swept too broadly and thereby

invaded rights protected by the Constitution (App. at Sa,

6a, 12a-16a).** Moreover, the statutes in question were held

In particular, Appellants relied upon the reasoning of Gris.

wold v. Connecticut, 381 U.S. 479 (1965), where this Court invali-

dated a state law prohibiting use of contraceptive devices, because

+ pregnancies which faée American couples each year. Those ex-

to be so vague and indefinite as to violate the Fourteenth

Amendment due process guarantee of reasonably specific

legislation (App. at 5a, 6a, 16a-18a). That guarantee is par-

ticularly significant where, as here, important personal

rights are at stake, and an impermissibly vague statute

operates to inhibit a wide range of constitutionally pro-

tected conduct.”

Ultimately, the substantive question presented is whether

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

a woman, and her husband, with five years in state prison,

where the couple requests, and the physician performs, a

therapeutic surgical procedure to abort a pregnancy which

the couple did not want, but were unable to prevent.”

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

clear that a husband and wife* are constitutionally priv-

the law swept too broadly and invaded “a relationship lying within

the zone of privacy created by several fundamental constitutional

guarantees.” 381 U.S. at 485.

The most reliable estimates hold that fewer than 10,000 hos-

pital therapeutic abortions are performed early, in states where

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

Abortions in the United States, 101 Am. J. Osst. & Gynec. 784, 787

(1968). These constitute a minute proportion of all unwanted

cluded from hospitals have two alternatives: continuation of un-

wanted pregnancy, or extra-hospital, probably illegal, induced

abortion. -

"The woman is not an accomplice under Texas law, but other

participants, including her husband, are fully liable. See Willing-

ham v. State, 33 Tex. Crim. 98, 25 S.W. 424 (1894) (woman

neither principal nor accomplice).

# Griswold was silent on the more significant problem of access

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

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

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

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

(90th ed. 1969).

Outside of the state judiciary in Massachusetts, authorities have

wiformly held the Griswold rationale applicable to litigants who ~

ileged to control the size and spacing of their family by

contraception. The failure of contraception, however, jg

commonplace.” Authoritative estimates are that betwee,

750,000 and 1,000,000 births each year are unwanted™

These are in addition to the 200,000 to 1,000,000 unwanted

pregnancies which are estimated to end in abortions ip.

duced outside of the clinical setting.** Taken together, some

had not entered into the marriage contract. Compare Baird y,

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

validating Massachusetts statute which outlawed distribution of

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

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

postal clerk who had been dismissed for cohabitation without

benefit of marriage), and the present case, Roe v. Wade, —— R,

Supp. ——, Civ. No. 3-3690-B (N.D. Tex. June 17, 1970) (per

curiam) (Texas anti-abortion statutes “deprive single women

and married couples of their right, secured by the Ninth Amend.

ment, to choose whether to have children.”), with Sturgis v. Attor.

ney General, 260 N.E.2d 687, 690 (Mass. 1970) (directly contrary

to federal decision in Baird).

28 Tf a married couple is to have private control over numbers

and spacing of children, induced abortion is absolutely necessary -

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

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

A. ExsRuicH, PopuLaTION REsouRCEs ENVIRONMENT 218-19 & Table

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

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

Control, 10 PERSPECTIVEs IN BioLocy & MED. 1, 7-13 (1966) ; Tietze,

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

Gynec. 650 (1959).

7*The most recent scholarly examination of unwanted birth

magnitudes will appear in a forthconting issue of Scrence. A

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

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

tio.al gd Study, appeared in the N.Y. Times, Oct. 29, 1969,

at 25, col. 3.

28 Secret induced abortions are inherently incapable of quantif-

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

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

in America 3-6 (H. Rosen ed. 1967) ; M. CaLDERONE (ed.), ABOR

TION IN THE UNITED States 180 (1958); P. Gespuarp et al., Prec

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

_ earns

950,000 to 2,000,000 unwanted births plus non-clinical abor-

tions occur yearly. Accordingly, one must conclude that

restrictive anti-abortion statutes, such as the Texas law in

question here, drastically affect the conduct of literally

millions of American citizens.

The national significance of the issues in this case can

also be inferred from increased activity within the medical

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

House of Delegates of the American Medical Association

yoted to permit licensed physicians to perform abortions

in hospitals, with the sole additional qualification that two

other physicians be consulted.** Physicians were cautioned,

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

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

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

part, any criminal penalties which might previously have

been imposed upon physicians for performing abortions in

appropriate medical facilities.* From 1967 to 1970, twelve

states had adopted therapeutic abortion statutes similar

to that of the Mopet Penat Copr’s 1962 Proposed Official

§SponTaNEOUS AND INvUcED 25 (1936); Regine, A Study of Preg-

nancy Wastage, 13 Mu.pank Mem. Funp Quart. No. 4, at 347-65

(1935).

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

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

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

2 the body because of new policy. 213 J.A.M.A. 1242 (Aug. 24,

1970).

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

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

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

Current Abortion Laws: Proposals and Movements for Reform,

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

* See, e.g., N.Y. PENAL Law §125.05(3), at 79 (McKinney Supp.

1970-71).

Draft.” More recently, on August 4, the Commissioners on

Uniform State Laws issued a Second Tentative Draft of a

Unnrorm Asortion Act. The Act sanctioned abortions by

licensed physicians “within 24 weeks after the commence.

ment of the pregnancy; or if after 24 weeks . . . ” under

the circumstances set out in the Mone, Prenat Cone pro.

posal,

These developments bear witness to the importance of

the issues presented here.

While policy-making and legislative bodies have debated

the issue of abortion, courts, confined to the constitutional]

framework, have been asked to resolve the questions of

individual privacy and legislative power which are pre.

sented here. Although the questions framed in this cage

have not been decided” by this Court, numerous federal

* See Move. Prenat Cope §230.3(2) (Proposed Official Draft,

en The states are Arkansas, California, Colorado, —

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

Careline, and Virginia.

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

state court decisions which involved restrictive anti-abortion laws.

The eight denials are: Mucie v. Missouri, 398 U.S. 938 (June 1,

1970), denying cert. to 448 S.W.2d 879 (Mo. 1970) (manslaughter

abortion conviction where patient died); California v. Belous,

397 U.S. 915 (Feb. 24, 1970), denying cert. to 71 Cal. 2d —,

458 P.2d 194, 80 Cal. Rptr. 354 (1969) (statute repealed after

prosecution commenced) ; Molinaro v. New Jersey, 396 U.S. 365

(Jan. 19, 1970) (per curiam), dismissing appeal from 54 N.J. 246,

254 A.2d 792 (1969) (defendant jumped bail after appeal filed);

Knight v. Louisiana Bd. of Medical Examiners, 395 U.S. 933 (June

2, 1969), denying cert. to 252 La. 889, 214 So.2d 716 (1968) (per

curiam) (federal questions not properly raised and preserved);

Morin v. Garra, 395 U.S. 935 (June 2, 1969), denying cert. to 58

N.J. 82 (1968) (per curiam) (same) ; "Moretti v. New Jersey, 393

U.S. 952 (Nov. 18, 1968), denying cert. to 52 N.J. 182, 244 A.2d 499

(1968) (conspiracy conviction; abortion to have been performed

by barber) ; Fulton v. Illinois, 390 U.S. 953 (Mar. 4, 1968), denying

and state decisions attest to the substantiality of the fed-

eral questions. Moreover, the sometimes sharp divisions

in the courts below illustrate further the need for a decision

at this level. In showing that the Court has jurisdiction,

and that the questions are substantial, Appellants will out-

line the divisions among lower courts.

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

came the first appellate court to recognize the constitu-

tional stature of a “fundamental right of the woman to

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

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

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

lated to marriage, family, and sex.” *

cert. to 84 Ill. App.2d 280, 228 N.E.2d 203 (1967); Carter v.

Florida, 376 U.S. 648 (Mar. 30, 1964), dismissing appeal from

150 So.2d 787 (Fla. 1963).

" California v. Belous, 71 Cal. 24 ——, ——, 458 P.2d 194, 199,

80 Cal. Rptr. 354, 359 (1969), cert. dented, 397 U.S. 915 (1970).

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

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

present case.

One year earlier, a California trial court -had ruled that the

Eighth and Fourteenth Amendments prohibited license revocation

proceedings against physicians who had performed hospital ap-

proved abortions on patients exposed in early pregnancy to German

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

those Amendments among various conclusions of law, without sup-

ing the conclusions with any attempt at reasoned analysis.

Nonetheless, the result, and the factual similarities between that

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

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

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

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

discovery, without reference to merits).

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

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

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

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

More recently, three different decisions by statutory

three-judge federal courts have invalidated restrictions oy

access to medical abortion in Wisconsin and Georgia, as

well as in the present case from Texas. The first, McCany

v. Babbitz,* recognized in that jurisdiction a woman’s

“basic right reserved to her under the ninth amendment

to decide whether she should carry or reject an embryo

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

McCann grew out of the prosecution of a physician, but

the three-judge court had no difficulty holding that

physician has standing to assert the rights of pregnant

patients.”

The second recent federal decision is the present case,

Roe v. Wade,* declaring the Texas anti-abortion statutes

unconstitutional on the similar ground that ;

“they deprive single women and married couples of their

right, secured by the Ninth Amendment, to choose

whether to have children.”

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

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

1970 Term).

*“ The standing of a physician to assert a patient’s rights along

with his own follows from Griswold v. Connecticut, 381 U.S. 479,

481 (1965), and Barrows v. Jackson, 346 U.S. 249, 257 (1953). On

this standing point, lower court decisions involving abortion laws

all agree. See also Planned Parenthood Ass’n of Phoenix v. Nelson,

Civ. No. 70-334 PHX (D. Ariz: Aug. 24, 1970) (per curiam);

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

31, 1970) (per curiam) ; Roe v. Wade, —— F. Supp. ——, Civ. No.

3-3690-B (N.D. Tex. June 17, 1970) (per curiam) ; United States

ex rel. Williams v. Follette, 313 F. Supp. 269, 273 (S.D.N.Y. May

12, 1970).

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

1970) (per curiam).

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

McCann, and Roe, holding:

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

privacy which apparently is also broad enough to in-

clude the decision to abort a pregnancy.

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

scribed. ...”

Numerous lower courts have followed this lead, in both

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

have been requested and/or convened in a number of states —

«___ F. Supp. ——, Civ. No. 18676 (N.D. Ga. July 31, 1970)

(per curiam ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Mast, J.); People v. Anast, No. 69-3429 (Ill. Cir. Ct., Cook

County, 1970) (Dolezal, J.) (holding the Illinois abortion statute

“gneonstitutional (1) for vagueness; and (2) for infringing upon

a woman’s right to control her body.”) ; cf. United States v. Vuttch,

305 F. Supp. 1032 (D.D.C. 1969), ques. of juris. postponed to

merits, 397 U.S. 1061, further juris. questions propounded, 399

US. 923 (1970) ; United States ex rel. Williams v. Follette, 313 F.

Supp. 269, 272-73 (S.D.N.Y. 1970) (questions substantial, but

habeas petitioner-physician remitted to state courts).

to consider questions quite similar to those raised here*

The convening of a statutory court, of course, requires that

the questions presented be “substantial.” *

Scholarly commentary also recognizes that these issues

are of tremendous national importance, and “substantig]”

in the sense of warranting determination by this Conrt,

Retired Justice Clark addressed himself to the applies.

bility of Griswold in the abortion context more than a year

ago.” According to Justice Clark’s analysis,

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

This, the Court found, was constitutionally protected

If an individual may prevent conception, why can he’

not nullify that conception when prevention fails?”’*

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

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

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

filed May 12, 1970) ; YWCA of Princeton v. Kugler, Civ. No. 26470

(D.NJ., filed Mar. 5, 1970) ; Hall v. Lefkowitz, 305 F. Supp. 10%

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

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

No. 70-226 (D. Ore., filed Aug. 4, 1970) ; Doe v. Dunbar, Civ. Ne

C-2402 (D. Colo., filed July 2, 1970); Henrie v. Bla

Civ. No. 70-C-211 (N.D. Okla., filed July 6, 1970) ; Planned Parent.

hood Ass’n of Phoeniz v. Nelson, Civ. No. 70-334 PHX (D. Arie

Aug. 24, 1970) (per curiam) ; Ryan v. Specter, Civ. No. 70-2581

(E.D. Pa., filed Sept. 14, 1970) ; Doe v. Rampton, Civ. No. 204-0

(D. Utah, filed Sept. 16, 1970).

% Idlewild Bon Voyage Corp. v. Epstein, 370. U.S. 718, 7

(1962) (per curiam). ;

*°Tom C. Clark, Religion, Morality, and Abortion: A Constile

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

“| Although it is a minor point, Griswold was the Executive Dt

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

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

examined the patients and prescribed contraceptive devices.

42 Clark, supra note 40, at 9.

To examine Justice Clark’s hypothetical question in the full

constitutional context, and to decide the propriety of in-

junctive relief in this case, the Court should note probable

jurisdiction, and set the matter down for full briefing and

argument.

B. Having Determined the Merits in Appellants’ Favor,

the Three-Judge Court Should Have Enjoined

Future Enforcement of the Invalid Statutes:

Not only do the substantive issues in this case involve

important federal questions, but the remedy following judg-

ment also presents a novel point on which this Court has

not clearly ruled.

Although no state proceedings were pending or immi-

nently threatened against Appellants Jane Roe, John Doe,

and Mary Doe, or members of their respective classes,

the District Court declined to grant any injunctive relief

whatever. This denial of necessary relief is contrary to

decisions by this Court, and has the probable effect of in-

viting federal-state friction, rather than lessening such

untoward interaction. Moreover, the denial of injunctive

- gelief to Dr. Hallford was equally improper, as he had

requested an injunction against the commencement of any

future prosecutions. As to charges then pending against

Dr. Hallford, an in; ion would have been proper in ad-

dition. for “which shall appear more fully herein-

after.

Relying entirely on Dombrowski v. Pfister, 380 U.S. 479

(1965), the three-judge court recognized a “federal policy

of non-interference with state criminal prosecutions

[which] must be followed except in cases where ‘statutes

are justifiably attacked on their face as abridging free ex-

pression,’ or where statutes are justifiably attacked ‘as ap.

plied for the purpose of discouraging protected activities”

380 U.S. at 489-90. The quote from Dombrowski, however,

was not pertinent, for Appellants’ principal thrust was not

against pending prosecutions, but against any future en.

forcement and effects of the challenged statutes. The preg.

nant Plaintiff, Jane Roe, for example, could never be pros.

ecuted under Texas law regardless of the number of abor.

tions she underwent, but the statute, unless enjoined, would

have the effect of keeping her from obtaining an abortion,

For the most part, Appellants were strangers to any

existing or contemplated prosecutions. Their chief contro.

versy was over the drastic impact of the statutes on their

lives, not any possibility of imminent enforcement. In

Dombrowski, the appellants were actively threatened with

prosecution, and an injunction would necessarily have

abated that threat by operating directly on law officers

who stood ready to go forward with existing indictments, |

Accordingly, “special circumstances” were necessary to

justify the conclusion ultimately reached.

If, however, Dombrowski had been purely a challenge

to quantifiable and recurring effects of a state criminal

statute, without the pendency of criminal charges, the case

would have been different. This is shown by the ease with

which this Court has reversed lower courts that refused

declaratory and injunctive relief against loyalty oath stat-

utes backed by criminal sanctions. See Keyishian v, Board

of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377

U.S. 360, 365-66 (1964). Injunctive relief against the stat-

ute in Dombrowski would have presented no special prob-

lem, if the statute had been a loyalty oath backed by the

very same criminal penalties, and no indictments had been

waiting in the wings.

Dombrowski falls in the middle ground between (1) in-

junctive actions which are filed and completed prior to

the commencement of any state criminal proceedings, and

(2) actions which are filed after “proceedings in a State

court,” “* are underway. The Dombrowski case itself was

filed but not completed before State proceedings began.“*

Hence, while Dombrowski acknowledged that “(28 U.S.C.

§2283 (1964 ed.) ], and its predecessors do not preclude in-

junctions against the institution of state court proceed-

ings, but only bar stays of suits already instituted,” ** this

Court nonetheless required “special circumstances” to jus-

tify interference with a criminal proceeding begun shortly

after the federal complaint was filed.

The present case lies chronologically in the earliest of

the categories, (1), because, as to the bulk of relief sought

against future enforcement of the anti-abortion statute,

state proceedings have never been contemplated. Appel-

lants were thus in the same position as petitioners con-

testing a joyalty oath that was backed by criminal sanc-

tions. Their entitlement to: an injunction against future

enforcement should have followed as a matter of course.

Put another way, Appellants were “strangers to [any pend-

ing] state court proceedings.” Hale v. Bimco Trading Co.,

898 U.S.C. §2283 (1964 ed.).

“ While Dombrowski did not clarify the thorny definitional prob-

lems surrounding the concept of a “proceeding” in a state court,

the Court did hold that at least an indictment must be returned.

The federal complaint came before the indictments in Dombrowski,

and was held to relate back where a district court erroneously dis-

missed the complaint. An almost identical situation in the abortion

context is before this Court in Hodgson v. Randall, No. 728,

docketed Sept. 21, 1970, where law enforcement authorities secured

the dismissal of a federal action for want of a case or controversy,

and proceeded within two days to obtain an indictment against a

physician who had been a federal plaintiff.

* 380 U.S. at 484 n. 2:

306 U.S. 375, 378 (1939) (Frankfurter, J.).“* The fact of

pending prosecutions against other physicians, or against

Dr. Hallford based upon alleged past conduct, had no

bearing on Appellants’ request for prospective injunctive

relief.

Accordingly, the three-judge court should have under.

taken an inquiry as to the propriety of injunctive relief

without reference to Dombrowski v. Pfister, and without

any greater concern for hypothetical federal-state friction

than exists in the ordinary case where state judicial ma.

chinery has not entered the controversy. Indeed, denial of

injunctive relief was an open invitation for Texas authori-

ties to maintain existing enforcement policies. Should this

have occurred against Dr. Hallford, or any other physician

member of the class he represented, a federal injunction

would have been sought from the district court as “neces-

sary in aid of its jurisdiction, or to protect or effectuate

its” *’ declaratory judgment invalidating the statute. A

confrontation between federal and state judiciary might

then have ensued. To avoid such a possibility, the three-

judge court should have enjoined future enforcement of the

statute on June 17, 1970, when it ruled the statute invalid.

In other words, an injunction ab initio would have pre-

vented federal-state conflict, and enhanced the very policy

the three-judge court thought it was following by denying

the injunction.

** Hale teaches that strangers to’ state proceedings may secure

federal injunctive relief against a state statute, even though the

effect of the federal decision may be to confuse cases pending at

the same time before the highest court of the state. Hale affirmed

a three-judge court decision enjoining enforcement of a Florida

statute although “the injunction in effect stayed proceedings in

the Supreme Court of Florida.” 306 U.S. at 376.

‘7 28 U.S.C. §2283 (1964 ed.).

A further reason for having granted the injunction was

to avoid irreparable injury to individuals in the class of

Jane Roe, and to physicians deterred by the ongoing pos-

sibility that the State might continue to enforce the statute

until the controversy was determined by this Court. With-

out a coercive order on record, Texas law enforcement

authorities are free to ignore the declaratory judgment

rendered below, because the judgment is subject to possible

reversal here. It requires no argument to show that a

declaratory judgment by this Court ends the controversy,“

but such judgments at the district court level carry much

less practical import.

“A decision by ae Court on the propriety of injunctive relief,

however, is necessary for guidance of lower courts in similar future

controversies. Otherwise, the law of the district courts would be

final law in all cases where the merits were correctly resolved, but

an injunction gt hecte’f denied. In addition, as commentators

have frequently observed, this Court has not resolved a sufficient

variety of cases concerning the parameters of 28 U.S.C. §2283

(1964 ed.), to provide answers to questions such as those presented

here. The criteria for commencement of “proceedings in a State

court,” for example, are uncertain, as is the relevance of a State

proceeding brought after a federal complaint. Also, the extent, to

which the anti-injunction statute affects declaratory judgments is

in dispute, as well as the availability of-injunctions against future

prosecutions where one or more indictments is outstanding, or

prosecutions threatened. Similarly, the availability of injunctive

relief against prosecutions which threaten to inhibit wide areas of

constitutionally protected conduct outside the First Amendment

context is uncertain. For a more comprehensive review of the

need for further guidelines from this Court in these areas, see

Stickgold, Variations on the Theme of Dombrowski v. Pfister: Fed-

eral Intervention in State Criminal Proceedings Affecting First

Amendment Rights, 1968 Wis. L. Rev. 369; Brewer, Dombrowsks

v. Pfister: Federal Injunctions Against State Prosecutions in Civil

Rights Cases—A New Trend in Federal-State Judicial Relations,

34 Forpuam L. Rev. 71 (1965) ; Note, The Federal Anti-Injunction

Statute and Declaratory Judgments in Constitutional Litigation,

83 Harv. L. Rev. 1870 (1970); Comment, Federal Injunctions

Against State Actions, 35 Geo. Was. L. Rev. 744 (1967).

’

Appellant Dr. Hallford sought not only an injunction

against future enforcement of the Texas anti-abortion

statutes, but also an injunction to bar the commencement

of State proceedings against him based upon two out.

standing indictments. This request for injunctive relief

presents several substantial questions which merit review

by this Court.

Assuming that the district court improperly denied an

injunction directed generally against future enforcement

of the anti-abortion laws, one question is whether that

injunction, if entered, should cover the commencement of

prosecution under the aforesaid indictments. Whether a

bare indictment, returned frem the secrecy of a grand jury,

alone constitutes a “proceeding in a State court” is an open

question.” If there is no “proceeding,” as this Court found

in Dombrowski, the degree of irreparable injury needed to

justify an injunction must apparently be considered none-

theless. Here, unlike Dombrowski, law enforcement an-

thorities have not to date gone forward with prosecutions;

hence the degree of friction between state and federal

judicial systems is considerably lessened.

Also here, as in Griswold v. Connecticut,” and unlike

Dombrowski, the permissible range of leeway for State

regulation of marital and personal privacy is small. While

* Taken together, Dombrowski, 380 U.S. at 484 n. 2, and Hill v.

Martin, 296 U.S. 393, 403 (1935), suggest that a “proceeding”

begins at some time after indictment. Respectable authorities argue

that the indictment or information is an administrative act, done

ex parte and in secrecy; hence, no “proceeding” exists until trial

or arraignment, when both parties are first before a “State conrt.”

See Brewer, supra note 48, at 92; Comment, 35 Gro. Wasz. L. Rev.

at 766-67.

5° 381 U.S. 479 (1965).

ata

government may regulate many facets of speech coupled

with conduct, there is much doubt whether government can

so intrude into the domain of privacy. Thus, to allow any

prosecution at all of Dr. Hallford is to permit the State

to invade the privacy of physician and patient in an area

where the district court concluded that the State had little

business at all.

If one assumes that 28 U.S.C. §2283 (1964 ed.), is prima

facie a bar to an injunction on Dr. Hallford’s behalf, the

further question remains whether, notwithstanding $2283,

an injunction would be “necessary in aid of [the three-

judge court’s] jurisdiction,” or “to protect or effectuate”

the outstanding declaratory judgment. On this theory,

since the court had jurisdiction to grant an injunction on

behalf of all parties, it would be incongruous to exclude

Dr. Hallford. indeed,-the alleged patients who were

aborted, according to the two indictments, might be able

to enjoin the compulsion of process against them in order

to protect their privacy.

In light of the above, the questions presented in this

case, both on the merits, and with respect to relief, are

substantial, novel, and hitherto unresolved by this Court.

Accordingly, the Court should note probable jurisdiction,

and set the case down for plenary review.

Il.

A Married Couple, and Others Siznilarly Situated,

Have Standing to Challenge the Texas Anti-Abortion

Laws, Because Said Laws Have a Present and Destructive

Effect on Their Marital Relations, They Are Unable to

Utilize Fully Effective Contraceptive Methods, Preg.

nancy Would Seriously Harm the Woman’s Health, and

Such a Couple Could Not Obtain Judicial Relief in Suff.

cient Time After Pregnancy to Prevent Irreparable

Injury.

A further aspect of the judgment below is presented on

this appeal. In one part of the lower court’s opinion is

the holding that “Dr. Hallford has standing to raise the

rights of his patients, single women and married couples,

as well as rights of his own” (App. at 9a n. 3). Yet, the

judgment states that “[pJ]laintiffs John and Mary Doe

failed to allege facts sufficient to create a present contro-

versy and therefore do not have standing” (App. at 5a).

Accordingly, both declaratory and injunctive relief were

denied as to John and Mary Doe.

John and Mary Doe alleged a present impact of the

Texas anti-abortion laws on their marital relations which,

when considered in light of their assertion of the interests

of a class, created a present controversy over a future right

to relief in the event Mary Doe or another class member

became pregnant.

This Statement has already pointed out, supra at 6-7,

that the judicial machinery is not equipped to grant relief

toa party such as Mary Doe after she becomes pregnant.

The only meaningful relief must be forthcoming prior to

the twelfth week of pregnancy. While twelve weeks is a

lengthy period of time, pregnancy is rarely detected before

the fourth week, and often not until considerably later, de-

pending upon the degree of medical sophistication of the

patient.

Based upon an assumed size of the class represented by

Mary Doe, and the known failure rate of the contraceptive

she used, it would not be speculative to assume that one

or more members of the class would be or become pregnant

during the litigation. To assume to the contrary, as the

district court did, was not only medically unsound, but

served to elevate “ripeness” requirements to an unneces-

sarily high point, namely a point which deprived the entire

class of the relief sought simply because no class member

stepped forward as pregnant. Indeed, Jane Roe, the preg-

nant plaintiff, won a judgment which proved meaningless

to her, because it was too late.

Ample precedent, moreover, could have been found to

conclude that a present controversy existed between the

Does and Apjilelle: s. Not only should the lower court have

considered “‘‘the jaardship of denying judicial relief,’””

but the dilemma faced by the class of Mary Does when they

become pregnant is “‘capable of repetition, yet evading

review’... .” Moore v. Ogilvie, 394 U.S. 814, 816 (1969).

The situation, admittedly difficult if one ignores its unique-

ness, is nonetheless one in which the “mere possibility of

[recurrence] . . . serves to keep the case alive.” United

States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). To the

* Friendly, J., in Toilet Goods Ass’n v. Gardner, 360 F.2d 677,

684 (2d Cir. 1966), aff'd, 387 U.S. 167, 170 (1967).

extent that the lower court, almost without discussion, re.

jected the standing of John and Mary Doe for want of ap

Article III case or controversy, the court erred. To the

Does the case was and is a very real one. There was never

an absence of adversity. The relief requested had signif.

icant meaning for the Does throughout, and the denial of

that relief could provide harmful precedent for similar

situations. Accordingly, this Court should reverse the de.

termination below, after noting jurisdiction to consider the

claim by John and Mary Doe that they too were entitled

to declaratory and injunctive relief.

CONCLUSION

For the reasons set out in this Jurisdictional Statement,

the Court should note probable jurisdiction, and set the

case down for plenary consideration with briefs on the

merits and oral argument.

Respectfully submitted,

Roy Lucas

The James Madison Constitutional

Law Institute

Four Patchin Place

New York, N. Y. 10011

Norman Dorsen

School of Law

New York University

Washington Square

New York, N. Y. 10003

Linpa N. CorFzE

2130 First National Bank Building

Dallas, Texas 75202

Saran WEDDINGTON

3710 Lawton

Austin, Texas 78731

Roy L. Merri, JR.

DavuGHERTY, Bruner, LASTELICK

& ANDERSON

1130 Mercantile Bank Building

Dallas, Texas 75201

Attorneys for Appellants

APPENDIX

Notice of Appeal to the Supreme Court of the United

States From the United States District Court,

Filed August 17, 1970

In THE

UNITED STATES DISTRICT COURT

For tHe Nortuern District or Texas

Datuas Division

Civil Actions Nos.

3-3690-B and 3-3691-C

JANE Roz,

Plaintiff,

—Y,=

Henry WADE,

Defendant,

—Y.—

James Husert Hatirorp, M.D.,

Intervenor.

—

Joun Dore and Mary Dog,

Plaintiffs,

Henry WabDE,

Defendant.

~—~-

Before GotpBerc, Circuit Judge, Hucues and Taytor, Dis-

trict Judges.

Notice is hereby given that Jane Roe, Plaintiff, John Doe,

Plaintiff, and Mary Doe, Plaintiff, as well as James Hubert

Hallford, M.D., Intervenor, Appellants, hereby appeal to

the Supreme Court of the United States from that part of

the final judgment entered in the above causes on the 17th

day of June, 1970, in favor of Defendant Henry Wade,

and Responding Party Defendant, State of Texas, wherein

the Court denied all injunctive relief prayed for by said

Plaintiffs and Intervenor.

Notice is also given that John Doe and Mary Doe, Plain.

tiffs, Appellants, hereby appeal to the Supreme Court of

the United States from that part of the final judgment en.

tered in the above cause on the 17th day of June, 1970 in

favor of Defendant, Henry Wade, and Responding Party

Defendant, State of Texas, wherein the Court denied the

standing of John Doe and Mary Doe to attack the constitu.

tionality of the Texas Abortion Laws, Articles 1191, 1192,

1193, 1194 and 1196, Texas Penal Code.

This appeal is taken pursuant to Title 28, U.S.C., See

tion 1253.

The Clerk will please prepare a transcript of the record

in these causes, for transmission to the Clerk of the Su-

preme Court of the United States, and include in said

transcript the following:

A. All pleadings of the parties in these causes including

all briefs in support of the Plaintiffs’ and Intervenor’s

pleadings.

B. The court reporter’s transcription of the proceed-

ings before the Court.

(, All evidentiary items on file in this cause including

depositions, stipulations and request for admissions and

replies thereto, if any.

D. All orders of the Court.

The following questions are presented by this appeal:

A. Whether the Plaintiffs John Doe and Mary Doe had

standing to challenge the constitutionality of Articles 1191,

1192, 1198, 1194, and 1196, Texas Penal Code?

B. Whether the Plaintiffs and Intervenor were entitled

to a permanent injunction restraining Defendant Henry

Wade from enforcing Articles 1191, 1192, 1193, 1194, and

1196, Texas Penal Code?

By Laspa N. Corrzz

Attorney for Plaintiffs John Doe,

Mary Doe and Jane Roe

2130 First National Bank Bldg.

Dallas, Texas 75202

748-1211

By Frep Bruner

Attorney for Intervenor

James Hubert Hallford, M.D.

1130 Mercantile Bank Bldg.

Dallas, Texas 75201

Judgment of the United States District Court, Granting

Declaratory Judgment, and Denying Injunction,

Entered June 17, 1970

In THE

UNITED STATES DISTRICT COURT

For tHe NortHern District or Trxas

Dauias Division

Civil Action 3-3690-B

Jane Roz,

Plaintif,

—V.—

Henry Wapz,

Defendant,

—_—vV.—

James Husert HauiForp, MLD., .

Intervenor.

Civil Action 3-3691-C

Joun Dor and Mary Dog,

Plaintiffs,

—_—V—

Henry Wabe,

Defendant.

JUDGMENT

This action came on for hearing on motions for summary

judgment before a three-judge court composed of Irving

L. Goldberg, Circuit Judge, Sarah T. Hughes and W. M.

Taylor, JT-, District Judges. The defendant in both cases

is Henry Wade, District Attorney of Dallas County, Texas.

In one action plaintiffs are John and Mary Doe, husband

and wife, and in the other Jane Roe and James Hubert

(Hallford] M.D., intervenor.

The case having been heard on the merits, the Court, upon

consideration of affidavits, briefs and arguments of counsel,

finds as follows:

Findings of Fact

(1) Plaintiff Jane Roe, plaintiff-intervenor James

Hubert Hallford, M.D. and the members of their respective

classes have standing to bring this lawsuit.

(2) Plaintiffs John and Mary Doe failed to allege facts

sufficient to create a present controversy and therefore do

not have standing.

(3) Articles 1191, 1192, 1193, 1194 and 1196 of the Texas

Penal Code, hereinafter referred to as the Texas Abor-

tion Laws, are so written as to deprive single women and

married persons of the opportunity to choose whether to

have children.

(4) The Texas Abortion Laws are so vaguely worded as

to produce grave and manifold uncertainties concerning

the circumstances which would produce criminal liability.

Conclusions of Law

(1) This case is a proper one for a three-judge court.

(2) Abstention, concerning plaintiffs’ request for a de-

' daratory judgment, is unwarranted.

(3) The fundamental right of single women and married

persons to choose whether to have children is protected

by the Ninth Amendment, through the Fourteenth Amend.

ment.

(4) The Texas Abortion Laws infringe upon this right,

(5) The defendant has not demonstrated that the in.

fringement of plaintiffs’ Ninth Amendment rights by the

Texas Abortion Laws is necessary to support a compelling

state interest.

_ (6) The Texas Abortion Laws are consequently void on

their face because they are unconstitutionally overbroad, |

(7) The Texas Abortion Laws are void on their face

because they are vague in violation of the Due Process

Clause of the Fourteenth Amendment.

(8) Abstention, concerning plaintiffs’ request for an in-

junction against the enforcement of the Texas Abortion

Laws is warranted.

It is therefore ORDERED, ADJUDGED and DECREED that: (1)

the complaint of John and Mary Doe be dismissed; (2) the

Texas Abortion Laws are declared void on their face for

unconstitutional overbreadth and for vagueness; (3) plain.

tiffs’ application for injunction be dismissed.

Dated this the 17 day of June, 1970.

/s/ Irvine L. GoLpBERc

United States Circuit Judge

/s/ Saran T. HucHes

United States District Judge

/s/ Wuutam M. Tayvor, Jr.

United States District Judge

_: -

Decision of United States District Court,

Filed June 17, 1970

In THE

UNITED STATES DISTRICT COURT

For THE NORTHERN Dusrsicr or TEXxAs

Datuas Division

Civil Action 3-3690-B

— ——

Jane Rog,

Plaintiff,

Vv.

Henry WADE,

Defendant,

—_—V.—

James Husert Hawirorp, M.D.,

Intervenor.

—_—<—>—

Civil Action 3-3691-C

Joun Dor and Mary Doz,

Plaintiffs,

—_—V.—

Henry WaDE,

Defendant.

—<>>—

Before Gotpperc, Circuit Judge, and HucHEs and TayYLor,

District Judges.

Ke -

Per CuniaM:

Two similar cases are presently before the Court on

motions for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure. The defendant in both

cases is Henry Wade, District Attorney of Dallas County,

Texas. In one action plaintiffs are John and Mary Doe,

and in the other Jane Roe and James Hubert Hallford,

M.D., intervenor.’

From their respective positions of married couple, single

woman, and practicing physician, plaintiffs attack Articles

1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code,

\ 2 On March 3, 1970, plaintiff Jane Roe filed her original complaint

\. in CA-3-3690-B under the First, Fourth, Fifth, Eighth, Ninth, and

Fourteenth Amendments to the United States Constitution. She

alleged jurisdiction to be conferred upon the Court by Title 28

United States Code, Sections 131 [sic], 1343, 2201, 2202, 2281, and

2284 and by Title 42, United States Code Section 1983. On April

22, plaintiff Roe amended her complaint to sue “on behalf of her-

self and all others similarly situated.” :

On March 23, James Hubert Hallford, M.D., was given leave to

intervene. Hallford’s complaint recited the same constitutional and

jurisdictional grounds as the complaint of plaintiff Roe. According

to his petition for intervention, Hallford seeks to represent “himself

and the class of people who are physicians, licensed to practice

medicine under the laws of the State of Texas and who fear future

prosecution.” :

On March 3, 1970, plaintiffs John and Mary Doe filed their

original complaint in CA-3-3691-C. The complaint of plaintiffs

Doe recited the same constitutional and jurisdictional grounds as —

had the complaint of plaintiff Roe in CA-3-3690[B] and, like Roe,

plaintiffs Doe subsequently amended their complaint so as to assert

a class action.

Plaintiffs Roe and Doe have adopted pseudonyms for purposes

of anonymity.

2 Article 1191 Abortion

If any person shall designedly administer to a pregnant woman

or knowingly procure to be administered with her consent any drug

or medicine, or shall use towards her any violence or means what

ever externally or internally applied, and thereby procure an abor-

tion, he shall be confined in the penitentiary not less than two nor

hereinafter referred to as the Texas Abortion Laws. Plain-

tiffs allege that the Texas Abortion Laws deprive married

couples and single women of the right to choose whether to

have children, a right secured by the Ninth Amendment.

Defendant challenges the standing of each of the plain-

tiffs to bring this action. However, it appears to the Court

that Plaintiff Roe and plaintiff-intervenor Hallford occupy

positions vis-a-vis the Texas Abortion Laws sufficient to

differentiate them from the general public. Compare Pierce

y. Society of Sisters, 268 U.S. 510 (1925), and Griswold v.

Connecticut, 381 U.S. 479 (1965),* with Frothingham v. Mel-

lon, 262 U.S. 447 (1923). Plaintiff Roe filed her portion of

the suit as a pregnant woman wishing to exercise the as-

more than five years; if it be done without her consent, the punish-

ment shall be doubled. By “abortion” is meant that the life of the

fetus or embryo shall be destroyed in the woman’s womb or that a

premature birth thereof be caused.

Article 1192 Furnishing the Means

Whoever furnishes the means for procuring an abortion knowing

the purpose intended is guilty as an accomplice.

Article 1193 Attempt at Abortion

If the means used shall fail to produce an abortion, the offender

is nevertheless guilty of an attempt to produce abortion, provided

it be shown that such means were calculated to produce that result,

and shall be fined not less than one hundred nor more than one

thousand dollars.

Article 1194 Murder in Producing Abortion

If the death of the mother is occasioned by an abortion so pro-

duced or by an attempt to effect the same it is murder.

Article 1196 By Medical Advice

Nothing in this chapter applies to an abortion procured or at-

— by medical advice for the purpose of saving the life of the

er.

*By the authority of Griswold, Dr. Hallford has standing to

raise the rights of his patients, single women and married couples,

as well as rights of his own.

10a

serted constitutional right to choose whether to bear th

child she was carrying. Intervenor Hallford alleged in his

portion of the suit that, in the course of daily exercise of his

duty as a physician and in order to give his patients accogg

to what he asserts to be their constitutional right to choose

whether to have children, he must act so as to render

criminal liability for himself under the Texas Abortion

Laws a likelihood. Dr. Hallford further alleges tHat Article

1196 of the Texas Abortion Laws is so vague as to deprive

him of warning of what produces criminal liability in that

portion of his medical practice and consultations involving

abortions.

On the basis of plaintiffs’ substantive contentions,‘ it ap.

pears that there then exists a “nexus between the status

asserted by the litigant[s] and the claim[s] [they pre.

sent].” Flast v. Cohen, 392 U.S. 83, 102 (1968).

Further, we are satisfied that there presently exists a

degree of contentiousness between Roe and Hallford and

the defendant to establish a “case of actual controversy” as

required by Title 28, United States Code, Section 2201.

Golden v. Zwickler, 394 U.S. 103 (1969).

Each plaintiff seeks as relief, first, a judgment declaring

the Texas Abortion Laws unconstitutional on their face

and, second, an injunction against their enforcement. The

nature of the relief requested suggests the order in which

the issues presented should be passed upon.’ Accordingly,

we see the issues presented as follows:

*“tI)n ruling on standing, it is both appropriate and necessary

to look to the substantive issues * * * to determine whether there

is a logical nexus between the status asserted and the claim sought

to be adjudicated.” Flast v. Cohen, 392 U.S. 83, 102 (1968).

* Zwickler v. Koota, 389 U.S. 241, 254 (1967); Cameron ¥.

Johnson, 390 U.S. 611, 615 (1968).

_—_

lla

L Are plaintiffs entitled to a declaratory judgment

that the Texas Abortion Laws are unconstitutional on

their face?

IL. Are plaintiffs entitled to an injunction against the

enforcement of these laws?

Defendants have suggested that this Court should ab-

stain from rendering a decision on plaintiffs’ request for

a declaratory judgment. However, we are guided to an op-

posite conclusion by the authority of Zwickler v. Koota,

980 U.S. 241, 248-249 (1967) :

“The judge-made doctrine of abstention * * * sanctions

stances.’ * * * One of the ‘special circumstances’ * * °

is the susceptibility of a state statute of [sic] a con-

struction by the state courts that would avoid or modify

the constitutional question.”

The Court in Zwickler v. Koota subsequently quoted from

United States v. Livingston, 179 F. Supp. 9, 12-13 (E.D.

§.C. 1959) :

“Regard for the interest and sovereignty of the state

and reluctance needlessly to adjudicate constitutional

issues may require a federal District Court to abstain

from adjudication if the parties may avail themselves

of an appropriate procedure to obtain state inter-

pretation of state laws requiring construction. * * *

The decision in [Harrison v. N.A:A.C.P., 369 U.S.

167], however, is not a broad encyclical commanding

automatic remission to the state courts of all federal

constitutional questions arising in the application of

12a

state statutes. * * * Though never interpreted by a

state court, if a state statute is not fairly subject to

an interpretation which will avoid or modify the fed.

eral constitutional question, it is the duty of a federa]

court to decide the federal question when presented

to it. Any other course would impose expense and

long delay upon the litigants without hope of its bear.

ing fruit.” *

Inasmuch as there is no possibility that state question

adjudication in the courts of Texas would eliminate the

necessity for this Court to pass upon plaintiffs’ Ninth

Amendment claim or Dr. Hallford’s attack on Article 119%

for vagueness, abstention as to their request for declara-

tory judgment is unwarranted. Compare Chicago v. Atchi-

son T. & S.F.R. Co., 357 U.S. 77, 84 (1958), with Reetz vy.

Bozanich, 38 U.S.L.W. 4170, —— U.S. —— (1970).

On the merits, plaintiffs argue as their principal con-

tention’ that the Texas Abortion Laws must be declared

unconstitutional because they deprive single women and

married couples of their right, secured by the Ninth Amend-

ment,’ to choose whether to have children. We agree.

The essence of the interest sought to be protected here

is the right of choice over events which, by their character

and consequences, bear in a fundamental manner on the

privacy of individuals. The manner by which such interests

* 389 U.S. at 250-251. (Citations omitted.)

* Aside from their Ninth Amendment and vagueness arguments,

plaintiffs have presented an array of constitutional arguments.

However, as plaintiffs conceded in oral argument, these additional

arguments are peripheral to the main issues. Consequently, they

will not be passed upon.

*“The enumeration in the Constitution, of certain rights shall

not be construed to deny or disparage others retained by the

people.” .

are secured by the Ninth Amendment is illustrated by the

coneurring opinion of Mr. Justice Goldberg in Griswold v.

Connecticut, 381 U.S. 479, 492 (1965) :

“[TJhe Ninth Amendment shows a belief of the, Con-

stitution’s authors that fundamental rights exist that

are not expressly enumerated in the first eight amend-

ments and intent that the list of rights included there

not be deemed exhaustive.” * * °

“The Ninth Amendment simply shows the intent of the

Constitution’s authors that other fundamental personal

rights should not be denied such protection or dis-

paraged in any other way simply because they are not

specifically listed in the first eight constitutional

amendments.” (Emphasis added.)°®

Relative sanctuaries for such “fundamental” interests

have been established for the family,” the marital couple,”

and the individual.”

* At 492 the opinion states: “In determining which rights are

fundamental, judges are not left at large to decide cases in light

of their personal and private notions. Rather, they must look to

the ‘traditions and [collective] conscience of our people’ to deter-

mine whether a principle is ‘so rooted [there] . . . as to be ranked

as fundamental.’ Snyder v. Massachusetts, 291 U.S. 97, 105. The

inquiry is whether a right involved ‘is of such a character that it

cannot be denied without violating those “fundamental principles

of liberty and justice which lie at the base of all our civil and

political institutions... .”’ Powell v. Alabama, 287 U.S. 45, 67.”

% Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.

Nebraska, 262 U.S. 390 (1923); and Prince v. Massachusetts, 321

US. 158 (1944).

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

Connecticut, 381 U.S. 479 (1965) ; and Buchanan v. Batchelor, ——

F. Supp. —— (N.D. Tex. 1970).

2 Skinner v. Oklahoma, 316 U.S. 535 (1942); and Stanley v.

Georgia, 394 U.S. 557 (1969).

14a

Freedom to choose in the matter of abortions has been

accorded the status of a “fundamental” right in every cage

coming to the attention of this Court where the question

has been raised. Babbite v. McCann, —— F. Supp. ——

(E.D. Wis. 1970); People v. Belous, 80 Cal. Rptr. 354, 458

P.2d 194 (Cal. 1969) ; State v. Munson, —— (South Dakotg

Cireuit Court, Pennington County, April 6, 1970). Accord,

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

The California Supreme Court in Belous stated:

“The fundamental right of the woman to choose whether

to bear children follows from the Supreme Court’s and

this Court’s repeated acknowledgment of a ‘right of

privacy’ or ‘liberty’ in matters related to marriage,

famtily, and sex.” 458 P.2d at 199.

The District Court in Vwitch wrote:

“There has been * * * an increasing indication in the

decisions of the Supreme Court of the United States

that as a secular matter a woman’s liberty and right

of privacy extends to family, marriage and sex mat-

ters and may well include the right to remove an m-

wanted child at least in early stages of pregnancy.”

305 F. Supp. at 1035.

Writing in [on] Griswold v. Connecticut, supra, and the

decisions leading up to it, former Associate Justice Tom C.

Clark observed:

“The result of these decisions is the evolution of the

concept that there is a certain zone of individual

privacy which is protected by the Constitution. Unless

the State has a compelling subordinating interest that

15a

outweighs the individual rights of human beings, it

may not interfere with a person’s marriage, home,

children and day-to-day living habits. This is one of

the most fundamental concepts that the Founding

Fathers had in mind when they drafted the Constitu-

tion.”

Since the Texas Abortion Laws infringe upon plaintiffs’

fundamental right to choose whether to have children, the

purden is on the defendant to demonstrate to the satisfac-

tion of the Court that such infringement is necessary to

support a compelling state interest.‘ The defendant has

failed to meet this burden.

To be sure, the defendant has presented the Court with

several compelling justifications for state presence in the

area of abortions. These include the legitimate interests

of the state in seeing to it that abortions are performed

by competent persons and in adequate surroundings. Con-

% Religion, Morality, and Abortion: A Constitutional Appraisal,

2 Loyola Univ. L. Rev. 1, 8 (1969). Mr. Justice Clark goes on to

write, “. . . abortion falls within that sensitive area of privacy—

the marital relation. One of the basic values of this privacy is

birth control, as evidenced by the Griswold decision. Griswold’s

act was to prevent formation of the fetus. This, the Court found,

- was constitutionally protected. If an individual may prevent con-

traception [sic], why can he not nullify that conception when pre-

vention has failed?” Id. at 9.

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

mental personal liberties are involved, they may not be abridged

by the States simply on a showing that a regulatory statute has

some rational relationship to the effectuation of a proper state pur-

pose. ‘Where there is a significant encroachment upon personal

liberty, the State may prevail only upon showing a subordinating

interest which is compelling,’ Bates v. Little Rock, 361 U.S. 516,

504.” Griswold v. Connecticut, 381 U.S. 479, 497 (1965) (Con-

curring opinion of Mr. Justice Goldberg). See also Kramer v.

Union Free School District, 395 U.S. 621 (1969).

16a

cern over abortion of the “quickened” fetus may well rank

as another such interest. The difficulty with the Texas

Abortion Laws is that, even if they promote these inter.

ests,"* they far outstrip these justifications in their impact

by prohibiting all abortions except those performed “for

the purpose of saving the life of the mother.” *

It is axiomatic that the fact that a statutory scheme

serves permissible or even compelling state interests will

not save it from the consequences of unconstitutional over-

breadth. E.g., Thornhill v. Alabama, 319 U.S. 88 (1940);

Buchanan v. Batchelor, —— F. Supp. —— (N.D. Tex

1970). While the Ninth Amendment right to choose to

have an abortion is not unqualified or unfettered, a statute

designed to regulate the circumstances of abortions must

restrict its scope to compelling state interests. There is

unconstitutional overbreadth in the Texas Abortion Laws

because the Texas Legislature did not limit the scope of the

statutes to such interests. On the contrary, the Texas

statutes, in their monolithic interdiction, sweep far beyond

any areas of compelling state interest.

Not only are the Texas Abortion Laws unconstitutionally

overbroad, they are also unconstitutionally vague. The

Supreme Court has declared that “a statute which either

forbids or requires the doing of an act in terms so vague

that men of common intelligence must necessarily guess

at its meaning and differ as to its application violates the

4*Tt is not clear whether the Texas laws presently serve the

interests asserted by the defendant. For instance, the Court gathers

from a reading of the challenged statutes that they presently would

permit an abortion “for the purpose of saving the life of the

mother” to be performed anywhere and quite possibly by one other

than a physician.

1* Article 1196.

—

17a

frst essential of due process of law.” Connally v. General

Construction Co., 269 U.S. 385, 391 (1926). “No one may

be required at peril of life, liberty, or property to speculate

as to the meaning of penal statutes. All are entitled to be

informed as to what the State commands or forbids.” Lan-

ztta v. New Jersey, 306 U.S. 451, 453 (1929). See also

Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).

Under this standard the Texas statutes fail the vagueness

test. ‘

The Texas Abortion Laws fail to provide Dr. Hallford

and physicians of his class with proper notice of what

gets in their daily practice and consultation will subject

them to criminal liability. Article 1196 provides:

“Nothing in this chapter applies to an abortion pro-

cured or attempted by medical advice for the purpose

of saving the life of the mother.”

It is apparent that there are grave and manifold uncer-

tainties in the application of Article 1196. How likely must

death be? Must death be certain if the abortion is not

performed! Is it enough that the woman could not under-

go birth without an ascertainably higher possibility -of

death than would normally be the case? What if the woman

threatened suicide if the abortion was not performed?

How imminent must death be if the abortion is not per-

formed? Is it sufficient if having the child will shorten

the life of the woman by a number of years? These ques--

tions simply cannot be answered.

_ The grave uncertainties in the application of Article 1196

and the consequent uncertainty concerning criminal lia-

bility under the related abortion statutes are more than

sufficient to render the Texas Abortion Laws unconstitu-

18a

tionally vague in violation of the Due Process Clause of the

Fourteenth Amendment.

We come finally to a consideration of the appropriateness

of plaintiffs’ request for injunctive relief. Plaintiffs have

suggested in oral argument that, should the Court declare

the Texas Abortion Laws unconstitutional, that decision

would of itself warrant the issuance of an injunction against

state enforcement of the statutes. However, the Court ig

of the opinion that it must abstain from granting the in.

junction.

Clearly, the question whether to abstain concerning an

injunction against the enforcement of state criminal laws

is divorced from concerns of abstention in rendering a de-

claratory judgment. Quoting from Zwickler v. Koota,

“[A] request for a declaratory judgment that a state

statute is overbroad on its fuce must be considered

independently of any request for injunctive relief

against enforcement of that statute. We hold that a

federal district court has the duty to decide the ap-

propriateness and merits of the declaratory request

irrespective of its conclusion as to the propriety of the

issuance of the injunction.” 389 U.S. at 254.

The strong reluctance of federal courts to interfere with

the process of state criminal procedure was reflected in

Dombrowski v. Pfister, 380 U.S. 479, 484-485 (1965) :

“(T]he Court has recognized that federal interference

with a State’s good-faith administration of its criminal

laws is peculiarly inconsistent with our fedggal frame-

19a

work. It is generally to be assumed that state courts

and prosecutors will observe constitutional limitations

as expounded by this Court, and that the mere possi-

bility of erroneous initial application of constitutional

standards will usually not amount to the irreparable

injury necessary to justify a disruption of orderly

state proceedings.”

This federal policy of non-interference with state criminal

prosecutions must be followed except in cases where “stat-

utes are justifiably attacked on their face as abridging free

expression,” or where statutes are justifiably attacked “as

applied for the purpose of discouraging protected activi-

ties.’ Dombrowski v. Pfister, 380 U.S. at 489-490.

Neither of the above prerequisites can be found here.

While plaintiffs’ first substantive argument rests on no-

tions of privacy which are to a degree common to the First

and Ninth Amendments, we do not believe that plaintiffs

can seriously argue that the Texas Abortion Laws are vul-

nerable “on their face as abridging free expression.” “

Further;deliberate application of the statutes “for the pur-

pose of discouraging protected activities” has not been al-

leged. We therefore conclude that we must abstain from

issuing an injunction against enforcement of the Texas

Abortion Laws.

11“'T}he door is not open to all who would test the validity of

state statutes or conduct a federally supervised pre-trial of a state

prosecution by the simple expedient of alleging that the prosecution

somehow affects First Amendment rights.” Porter v. Kimzey, 309

F. Supp. 993, 995 (N.D. Ga. 1970).

20a

ConcLusion

In the absence of any contested issues of fact, we hold

that the motions for summary judgment of the plaintiff Roe

and plaintiff-intervenor Hallford should be granted as to

their request for declaratory judgment. In granting de.

claratory relief, we find the Texas Abortion Laws uncon.

stitutional for vagueness and overbreadth, though for the

_) reasons herein stated we decline to issue an injunction. We

need not here delineate the factors which could qualify the

right of a mother to have an abortion. It is sufficient to

state that legislation concerning abortion must address

itself to more than a bare negation of that right.

21a

Notice of Protective Appeal to the United States Court

of Appeals for the Fifth Circuit, Filed July 24, 1970,

by Appellant Jane Roe

In THE

UNITED STATES DISTRICT COURT

For tHe NortHern District or TExas

Dauuas Division

Civil Action No. 3-3690-B

JANE Roe,

Plaintiff,

—V.—

Henry WabDE,

Defendant,

—_VV.—

James Husert Hattrorp, M.D.,

Intervenor.

—_—-

Civil Action No. 3-3691-C

Joun Dogz and Mary Dog,

Plaintiffs,

Defendant.

22a

Notice is hereby given that Jane Roz, Plaintiff above

named, appeals to the United States Court of Appeals for

the Fifth Circuit from that portion of the final judgment

entered in this action on the 17th day of June, 1970, deny-

ing the injunctive relief prayed for in Plaintiff’s Complaint.

July 24, 1970.

By: Lupa N. CorFse

2130 First National Bank Bldg.

Dallas, Texas 75202

RI 8-1211

Attorney for Plaintiff Jane Roe

_ geipuameaaa

238

Notice of Protective Appeal to the United States Court

of Appeals for the Fifth Circuit, Filed July 23, 1970,

by Appellant James H. Hallford, M.D.

In THE

UNITED STATES DISTRICT COURT

For THE NoRTHEBN District or TEXAS

Dautias Division

Civil Action No. 3-3690-B

—_< >

Jane Roe,

Plaintiff,

_—V

Henry WADE,

Defendant,

—V.—

James Husert HaLLForp, M.D.,

Intervenor.

—_<_>-—

Civil Action No. 3-3691-C

Joun Doz and Mary Dog,

Plaintiffs,

~vV—

Henry WADE,

Defendant.

——

24a

Notice is hereby given that James Husert Hatirogp

M.D., Intervenor and Plaintiff above named, appeals to

the United States Court of Appeals for the Fifth Cirenit

from the final judgment entered in this action on the 17th

day of June, 1970.

July 23, 1970

By Frep Bruner

DavGHErRTY, Bruner, Lasteicx

and ANDERSON

1130 Mercantile Bank Building

Dallas, Texas 75201

742-3941

Attorneys for

Intervenor and Plaintiff,

James Hubert Hallford, MD.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.