Jurisdictional Statement — Roe v. Wade

FILED

NOV 14 1970

70-40 |7

In THE E. ROBERT SEAVER, CLER

SUPREME COURT OF-THE UNITED STATES

OcTOBER TERM, 1970

No. OE 4

Mary Dog, et al, etc.,

Appellants,

=,

—VvV.—

ARTHUR K. Botton, Attorney General

of the State of Georgia, et al, etc.,

Appellees. 7

On APPEAL FROM THE UNITED STATES District Court

For THE NORTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

Y Marcie Pirts HAMES REBER F. BOuULT, JR.

210 Brighton Road, N. E. CHARLES MorcGaN, JR.

Atlanta, Georgia 30309 5 Forsyth Street, N. W.

Atlanta, Georgia 30303

Attorneys for Appellants 5

Of Counsel: :

ELIZABETH ROEDIGER RINDSKOPF 'TOBIANE SCHWARTZ

GALE M. SIEGEL 153 Pryor Street, S. W.

551 Forrest Road, N. E. Atlanta, Georgia 30303 ;

Atlanta, Georgia 30312

November 17 ,1970

_

SUPREME COURT OF THE UNITED STATES

Mary DoE; PETER G. BouRNE; :

RoBerT HATCHER; LILLas L. JAMES;

James WATERS; CORBETT TURNER; a”

NewTon Lonc; EDWARD LEADER;

WILLIAM H. Biacers; GEORGE VIOLIN;

Patricia S. SMITH; JENNIE WILLIAMS;

JupiTH BouRNE; SUZANNE DUNAWAY;

Joyce Parks; Lou Ann Ir1on; Mary

Lone; J. Emmett HERNDON; SAMUEL L.

WILLIAMS; EUGENE PICKETT; RICHARD

Devor; DONALD DAUGHTRY; JUDITH

ZORACH and KAREN WEAVER, residents

of the State of Georgia;

PLANNED PARENTHOOD ASSOCIATION OF

AtianTA, Inc., a Georgia corporation;

and GEORGIA CITIZENS FOR HOSPITAL

AporTIon, Inc., a Georgia corporation,

for and on the behalf of all persons and

organizations similarly situated,

Appellants, Civit ACTION’

” r No. 13676

ArTHUR K. BOLTON, as

Attorney General of the

State of Georgia;

Lewis R. SLATON as

District Attorney of

Fulton County, Georgia;

and HERBERT T. JENKINS, as

Chief of Police of the

City of Atlanta, Georgia,

Appellees, J

JURISDICTIONAL STATEMENT

le ccicsleed icseieeineemenite

Page

ee eee 1

Jurisdiction ...... ........0....0........

Questions Presented... ... ............... 3

Statement ofthe Case ....—-«s—s_w—«| s—s—i ws ws. 4

The Questions Are Substantial ..-s—s—s—i«s“(‘(‘é‘é#(WCW#iC¥(C(‘(“ 6.

I. The Three-Judge Court Should Have Enjoined

Future Enforcement of Those Provisions of the

Georgia Abortion Statute Which It Declared

Unconstitutional Because an Injunction Was

Necessary to Effectuate the Declaratory Judg-

ment and to Prevent Irreparable Injury to Im-

“ portant Federal Rights to 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 or Fear Prose-

cution If They Provide the Medical Services

They Deem Needed .

II. The Three-Judge Court Should Have Declared

the Procedural Provisions of the Georgia Abor-

tion Statute and Its Further Requirement That

Abortions May Be Performed Only at Accred-

ited Hospitals Unconstitutional Facially or in

Operation as Violative of Constitutional Guar-

antees of Due Process and Equal Protection .. 15

III. Appellant-Physicians, Nurses, Social Workers,

Ministers, and Family Planning and Abor-

tion Counseling Organizations Have Sufficient

“Standing” and “Collision of Interest” to Chal-

lenge the Georgia Abortion Statute .... 22

Conclusion .. oo 25

APPENDIX:

Opinion of the United States District Court,

Northern District of Georgia

Judgment of the United States District Court,

Northern District of Georgia

Amended Judgment of the United States District

Court, Northern District of Georgia .—-_—-_—.._le

Notice of Appeal to the Supreme Court of

the United States... ld

Amended Notice of Appeal to the =~

Court of the United States... ___. ates ebeees4 le

Text of the Georgia Abortion Statute,

Ga. Code § 26-1201-03 ................. .... Uf

Map of Georgia ..

TABLE OF AUTHORITIES

Page

Babbitz v. McCann, 310 F. Supp. 293

(E. D. Wis. 1970), appeal dismissed

39 U.S.L.W. 3144 (Oct. 12, 1970) | 3,11

Baker v. Carr, 369 U.S. 186 (1962) oo... 28

City of Greenwood v. Peacock, 384 U.S. 808 (1968) 12, 13

Doe v. General Hospital of the District of Columbia,

No. 24,011 (D.C. Cir. 1970) .. oe 19

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

1970), appeal docketed, Hodgson v.

Randall, 39 U.S.L.W. 3115 No. 728

(U.S. Sept. 9, 1970) ........- 6 ees _ 12

Dombrowski v. Pfister, 380 U.S. 479 (1965) 13, 14, 24

Evans v. Cornman, 398 U.S. 419 420 (1970) 2

Epperson v. Arkansas, 393 U.S. 97 (1968) 24

Flast v. Cohen, 392 U.S. 83 (1966) 28

Gardner v. California, 393 U.S. 367 (1969) ... 20

Goldberg v. Kelley, 397 U.S. 254 (1970) | .. 2

Griswold v. Connecticut, 381 U.S. 479 (1965) 8,11, 21

Griffin v. Illinois, 351 U.S. 12 (1956) 20

Gunn v. University Committee to End the War,

399 U.S. 383 (1970)... «.. - 3

Harman v. Forennius, 380 U.S. 528 (1960) 17

Hodgson v. Minnesota, Minn. , (1970)

appeal docketed, 39 U.S.L. W. 3115 No. 729

(U.S. Sept. 22,1970) ......... ere 12

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

iv

Mitchell v. Donovan, 398 U.S. 427 (1970) .......... 3

Moore v. Fidelity & Deposit Co., 272 U.S. 317 (1926). 2

Persons v. State, 93 Ga. App. 314 SE 2d (1956) . .._ 23

Poe v. Ullman, 367 U.S. 497 (1961) .............. 23

Roe v. Wade, 314 F. Supp. 1127 (N. D. Tex. 1970),

Appeal docketed, 39 U.S.L.W. 3151 No. 808

(U.S. Oct.6,1970) 2.0.0.0... 00. 11, 12

Shapiro v. Thompson, 394 U.S. 618 (1969) __. 17

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) ..............0.... 18

Simkins v. Moses H. Cone Memorial Hospital

323 F. 2d (4th Cir. 1963), cert. denied,

376 U.S. 938 (1964) ..................... : an Te

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942)

Smith v. California, 361 U.S. 147(1959) .......... 16

State v. Belous, 71 Cal. 2d 996, 458 P. 2d

194, 80 Cal. Rptr., 354 (1969), cert. denied,

397 U.S.915 (1970)... eres ° |

Sterling v. Constantin, 287 U.S. 378 (1932) ......... 3

United Public Workers of America-v. Mitchell,

330 U.S. 75 (1947) ........ Levwsstscp oe

United States v. Jefferson County Bd. of Educ.,

372 F. 2d 836 (1966), aff'd en banc,

380 F. 2d 385 (5th Cir.), cert. denied,

389 U.S. 840 (1967) .......... pee aes hae 21

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) ea eetveveas .. .11,19

BLEED THROUGH

—_

Vv

White v. State, 114 Ga. App. 437, SE 2d (1966) 23

Whitus v. Georgia, 385 U.S. 545 (1967)... 21

Zwickler v. Koota, 389 U.S. 241 (1967). BB

United States Constitution

First Amendment Spa eese ......1,18

Ninth Amendment . eae sansesae 1

Fourteenth Amendment a _ 1

Statutes:

28 U.S.C. § 1253. | oo... 2,8

98 U.S.C. § 1343 | 4

28 U.S.C. § 2201 1

28 U.S.C. § 2202 . 1

28 U.S.C. § 2281 | 1, 12, 13

28 U.S.C. § 2283 13

28 U.S.C. § 2284 oo 1,12

42 U.S.C. § 1983 ake ....1,12

Ga. Code § 26-801 13

Ga. Code § 26-1201 2,3

Ga. Code § 26-1202 _. 2,3, 22

Ga. Code § 26-1203 , 2,3

Ga. Code § 26-3201 13

~ Ga. Code § 84-916 | 6,13

Move PENAL Cove §,230, 3 (Proposed

Official Draft; 1962) .. | 7,10, 11,12

Unirorm Aportion Act (Second Tentative Draft) 10

vi

Miscellaneous:

Fisher, Criminal Abortion, ABORTION IN

America 3-6 (1967) .. «6. en, g

213 J.A.M.A. 359 (July 20,1970) ooo... 10

JOINT COMMISSION ON HOSPITAL ACCREDITATION,

ACCREDITED HospItTaLs, Jan. 1,1970....... . 18

Leavy and Charles, California’s New Therapeutic

Abortion Act, 15 U.C.L.A. L. Rev. 1,5 (1967) . 18

M. Calderone, ABORTION IN THE UNITED STATES

180 (1958) .......... rs 9

Rochat, Tyler & Schoenbucher; An Epidemiological

Analysis of Abortion in Georgia, U.S. DEPaRT-

MENT OF HEALTH, EDUCATION AND WELFARE, PUB-

LIC HEALTH SERVICE Report, (98th Annual

Meeting, American Public Health Assoc., Hous-

ton, Texas, Oct. 26-30,1970) ............... 9, 21

STANDARDS FOR HOSPITAL ACCREDITATION,

introduction (Dec. 1965) ...... 18

In THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1970

No. .........

Mary DoE, et al, etc.,

Appellants,

— Vv. —

ARTHUR K. Botton, Attorney General

of the State of Georgia, et al, etc.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

For THE NORTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinions of the United States District Court for

the Northern District of Georgia are not yet reported.

The opinion of the Court dated July 31, 1970, is set out in

the Appendix, pp. la-15a. The judgment of the Court

dated August 24, 1970, is set out in the Appendix, pp.

1b-3b. The amended judgment dated October 13, 1970, is

set out in the Appendix, pp. 1c-4c.

JURISDICTION

This action was brought under the first, ninth, and four-

teenth amendments of the Constitution of the United

States and 42 U.S.C. § 1983. Jurisdiction was conferred

by 28 U.S.C. §§ 1343, 2201, 2202, 2281 and 2284.

Appellants brought this class action on April 16, 1970,

seeking a declaratory judgment that the Georgia abor-

tion statute, Ga. Code §§ 26-1201-03 et seq., was uncon-

stitutional and seeking injunctive relief against its en-

forcement. A Motion for Temporary Restraining Order

was denied on May 4, 1970. A statutory three-judge dis-

trict court was convened and heard oral argument on

June 15, 1970. By opinion dated July 31, 1970, judgment

dated August 24, 1970, and amended opinion dated

October 13, 1970, portions of Ga. Code § 1202 were de-

clared unconstitutional. The court, however, refused to

enjoin future enforcement of said Code sections. In its

original opinion, judgment, and amended opinion the

court denied declaratory and injunctive relief as to the

remainder of said statute, holding it to be a valid exercise

of state authority, additionally, the district court granted

a motion to dismiss all plaintiffs except Mary Doe, there-

by denying any declaratory and injunctive relief to

doctors, nurses, social workers, ministers, and counsel-

lors. This appeal is from the denial of injunctive relief

and denial of relief from the remainder of the statute and

to the dismissed plaintiffs. Notice of Appeal was filed in

the United States District Court for the Northern District

of Georgia on September 18, 1970), (Appendix, pp. 1d-

2d). An Amended Notice of Appeal was filed November 3,

1970, (Appendix, pp. le-2e).

The jurisdiction of the Supreme Court to review the

district court’s denial of an injunction by direct appeal

is conferred by 28 U.S.C. § 1253. The following decisions

sustain the jurisdiction of the Supreme Court to review

the judgment on direct appeal in this case: Evans v.

Cornman, 398 U.S. 419, 420 (1970); Goldberg v. Kelly,

397 U.S. 254, 261 (1970); Moore v. Fidelity & Deposit

Co. 272 U.S. 317, 321 (1926) and Sterling v. Constantin,

287 U.S. 378 (1932).’

STATUTE INVOLVED

The statute in question is Ga. Code §§ 26-1201-03 here-

after referred to as the Georgia abortion statute. Due to

the length of the statute, it is set out in the Appendix, pp.

1f-4f. Those sections of the statute declared unconstitu-

tional by the district court are italicized.

QUESTIONS PRESENTED

1. Whether the three-judge court should have enjoined

future enforcement of those provisions of the Georgia

abortion statute which it declared unconstitutional in

order to effectuate its declaratory judgment and to pre-

vent irreparable injury to the rights of the class of preg-

nant women who seek safe abortions and the class of

1The recent line of cases defining the Court’s jurisdiction under 28

U.S.C. § 1253 does not affect this case. Mitchell v. Donovan, 398 U.S.

427 (1970), involved an action in which plaintiffs originally asked

for injunctive relief to get names on a 1968 ballot. On final determi-

nation after the election, the court held that because plaintiffs re-

quested injunctive relief only as to the 1968 election there was no

case or controversy and declined to issue a declaratory judgment. On

appeal this Court ruled that the order appealed from was no more

than a denial of a declaratory judgment. Gunn v. University Com-

mittee to End the War, 399 U.S. 383 (1970) also involved only a

declaratory judgment. There the district court indicated plaintiffs

were entitled to an injunction but postponed action pending the next

session of the legislature. Thus, there was no order or judgment

granting or denying an injunction. The present case is also dis-

tinguishable from Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis.

1970), appeal dismissed, 39 U.S. L.W. 3144 (October 12, 1970). There

the three-judge district court issued a declaratory judgment but

declined to issue an injunction. The defendant, against whom no

injunction was issued, was the appellant. Had the plaintiff below,

whose request for injunctive relief was denied, appealed that de-

cision, the Supreme Court would have had jurisdiction. Here plain-

tiffs’ request for temporary restraining order and prayer for injunc-

tive relief were expressly denied (Opinion dated July 31, 1970,

p. 14-a, and Judgment dated August 24, 1970, p. 3-b). This is

an “appeal ... from an order... denying . . . an interlocutory or

permanent injunction . . . ” 28 U.S.C. § 1253.

4

physicians who are forced to refuse such women this

medical service because of a reasonable fear of prose-

cution.

2. Whether the remaining sections of the Georgia abor-

tion statute, as to which the three-judge court denied de-

claratory and injunctive relief, and which by allowing

abortions only when a doctor finds it “necessary” and

only after cumbersome procedures without due process

standards (1) infringe upon the right of appellant-physi-

cians and members of their class to practice their profes-

sion without unreasonable state interference; (2) fail to

provide sufficient warning as to the conduct proscribed;

and (3) infringe upon the right of appellant Mary Doe

and members of her class to decide when to bear children

in violation of constitutional guarantees of due process

and equal protection.

3. Whether appellant-physicians, nurses, social work-

ers, ministers, and family planning and abortion counsel-

ling organizations have sufficient “collision of interest”

to challenge the Georgia abortion statute.

STATEMENT OF THE CASE

Mary Doe’ is a 22 year old woman who was approxi-

mately eleven weeks pregnant at the time the complaint

was filed in this case. Mrs. Doe and her husband were

unemployed, their marriage had been unstable, and dur-

ing the pendency of this suit, her husband abandoned her.

Mrs. Doe sought to terminate her pregnancy because she

was emotionally and economically unable to care for and

support another child. She is the mother of three other

children; her third child was placed with adoptive par-

2 The facts set forth herein are taken from the complaint, unless other-

wise specified, which was taken as true. The court allowed this

action to be prosecuted in this. fictitious name so as to avoid em-

barrassment to the plaintiff. Even though the time passed in which

Mrs. Doe could have been safely aborted, the court proceeded to

resolve the issues on behalf of the class and did not require the

substitution of another pregnant plaintiff.

- |

ents at birth and the other two children were removed

from her custody by state authorities because of her in-

ability to care for them.

Mrs. Doe applied for an abortion at Grady Memorial

Hospital in Atlanta.’ After a period of three weeks, she

was notified that her application had been denied by the

hospital’s abortion committee because she did not come

within one of the three reasons specified in the Georgia

abortion statute. This class action was filed in the United

States District Court on April 16, 1970, seeking injunc-

tive and declaratory relief based on the unconstitution-

ality of the statute. Mrs. Doe’s application for temporary

relief was denied by order dated May 4, 1970.*

Appellant-physicians who are obstetricians, gynecolo-

gists, psychiatrists, medical school professors and general

practitioners of medicine, brought this action on their

behalf and on behalf of members of their profession, seek-

ing to declare the statute an unconstitutional infringe-

ment on the practice of their profession and the physi-

cian-patient relationship, and further asserted the statute

unconstitutionally vague in violation of due process re-

quirements. Appellant-physicians are regularly called

upon by their patients to perform or arrange for medi-

cally induced abortions. Appellants desired to perform or

arrange this medical service for their patients, but felt

constrained from doing so because of the lack of clarity

of the Géorgia abortion statute, its criminal sanctions

against abortions not authorized by its terms, and the re-

8This is the public hospital which furnishes free medical care to

indigent residents of Atlanta.

4A subsequent application for an abortion through private physicians

to a private hospital was approved, but Mrs. Doe did not have funds

with which to pay her hospital bill in advance so she was unable to

obtain an abortion at the private hospital. (Answers to interrogato-

ries filed June 15, 1970.) Also, she was financially unable to travel to

some other state which has less restrictive interpretation of abortion

limitations. Her remaining alternatives were to continue her preg-

nancy or risk her life and health at the hands of a non-medical

criminal abortionist. .

lated threat of revocation or suspension of their license

to practice medicine.°

Defendants below raised the issue of “standing” and

“justiciability” of the controversy as to the physicians,

nurses, ministers, social workers, and organizations. The t

court found that all plaintiffs had standing, but that only |

Mary Doe had sufficient “collision of interest” to present

a justiciable controversy.

As to the merits of Mary Doe’s class action, the three- |

:

judge court held that “the concept of personal liberty

embodies a right to privacy which apparently is also :

broad enough to include the decision to abort a preg- }

nancy.” (Appendix, p. 1la). The court ruled that (rea-

sons for an abortion may not be proscribed, but that the

quality of the decision as well as the manner of its exe-

cution are properly within the realm of state control...” )

(Appendix, p. 13a). Thus, the portion of the statute which

allowed only three reasons for abortion (impairment of

health of the woman, rape, or fetus malformation) was

declared unconstitutional but the remainder of the stat-

ute was declared to be a “proper exercise of state power.”

The remainder of the statute is basically the procedural

steps for obtaining an abortion and provisions as to who

can perform abortions and where abortions may be per-

formed.

Appellants assert here that the statute as revised by

the court below remains as a barrier to the constitutional

rights asserted and will obstruct and interfere with such

rights unless declaratory and injunctive relief is granted

to all plaintiffs.

THE QUESTIONS ARE SUBSTANTIAL

EE I

This appeal presents important federal questions which

have not been resolved by this Court. The three-judge

court’s refusal to grant injunctive relief against enforce-

5Ga. Code § 84-916.

RLEED THROUGH

7

ment of portions of a statute declared facially unconsti-

tutional raises important issues for enforcement and vin-

dication of constitutional rights. This Court has not in

recent years considered the propriety of injunctive relief

against future enforcement of criminal statutes except in

the area of first amendment rights. Appellants claimed

an infringement on such rights, and a decision of this

Court is needed to clarify the availability of injunctive

relief based on first amendment and other constitutional

rights.

Defense of criminal prosecutions in the state courts by

physicians is a wholly inadequate means of determining

the rights of physicians to perform abortions and the

rights of women to decide when to have children. Due to

inherent time limitations of pregnancy, there is no time

to have the correctness of a physician’s decision reviewed

prior to performing the act sone tra in criminal lia-

bility, and such would be an un rkable procedure in

any event. Thus, appellant-physicians and members of

Mary Doe’s class need to have the questions presented

in this case resolved.

The substantive issues here are of national import and

affect the lives and health of thousands of people each

year. This case involves some issues raised in four other

cases which have been docketed in this Court, but be-

cause an entirely different and more modern abortion

statute’ is involved in this case, oral argument and a

plenary review by the Court is warranted. Because of the

limited function of the Jurisdictional Statement and the

complexity of issues, appellants will not attempt to de-

velop all arguments in depth but will show the questions

presented are substantial.

6The Georgia statute is modeled after the American Law Institute

Movet Penar Cope § 230.3, et seq. (Proposed Official Draft 1962).

The other cases involve the older statutes which permitted abortions

only to “save” or “preserve the life” of the woman. See n. 11-13 for

other cases docketed in this Court.

I

THE THREE JUDGE COURT SHOULD HAVE EN.-

JOINED FUTURE ENFORCEMENT OF THOSE PRO-

VISIONS OF THE GEORGIA ABORTION STATUTE

WHICH IT DECLARED UNCONSTITUTIONAL BE-

CAUSE AN INJUNCTION WAS NECESSARY TO EF-

FECTUATE THE DECLARATORY JUDGMENT AND

TO PREVENT IRREPARABLE INJURY TO IMPOR-

TANT FEDERAL RIGHTS TO THE CLASS OF PREG-

NANT WOMEN WHO ARE OR WILL BE SEEKING

ABORTIONS AND THE CLASS OF PHYSICIANS

WHO ARE FORCED TO REJECT SUCH WOMEN AS

PATIENTS OR FEAR PROSECUTION IF THEY PRO-

VIDE THE MEDICAL SERVICES THEY DEEM

NEEDED.

A. The subject matter of this appeal involves substan-

tial federal constitutional questions.

On the merits below, appellant Mary Doe argued suc-

cessfully that the concept of personal liberty included the

right to privacy in deciding when to bear children and

that the right to plan one’s family included the right to

terminate an unwanted pregnancy. The court based its

decision primarily on Griswold v. Connecticut, 381 U.S.

479 (1965), without adopting either the majority view of

the penumbral zone of privacy created by several funda-

mental guarantees or the conturring opinion concept of

personal liberty preserved by the ninth amendment. The

statute, insofar as it specified reasons for which an abor-

tion was permitted, was declared overbroad by the court

stating:

This the State may not do, because such ac-

tion unduly restricts a decision sheltered by the

‘éonstitutional right of privacy. (Appendix p.

13a)

i. on an a oe Bike ot Mle be eee Ol

The constitutional right of privacy which includes a

right to terminate an unwanted pregnancy presents a

substantial federal constitutional question of national

import and importance. Appellants assert that the judg-

ment below, insofar as it recognizes the right of privacy,

should be affirmed and this right accorded constitutional

status by this Court.

The status of abortion as a criminal act has resulted in

a state and national health problem of immense propor-

tions. Because termination of pregnancy by physicians

has virtually been prohibited by law, women have turned

to self-induced “coat hanger” abortions or placed them-

selves in the untrained hands of illegal abortionists. In

Georgia alone, there were 205 reported deaths from ille-

gal abortion in the years 1950 to 1969,’ and a number of

these occurred after Georgia had adopted what is char-

acterized as a “liberal” abortion statute. Since these abor-

tions are illegal and subject those performing them to

imprisonment for up to ten years there is no way to

determine accurately the number of deaths per year they

cause, much less to establish the number of women risk-

ing such death. Researchers in this area estimate that in

the United States 200,000 to 1,000,000 abortions are ille-

gally induced each year.* Additionally there are authori-

tative estimates of 750,000 to 1,000,000 unwanted children

born each year. The multitude of psychological, emo-

tional, economic, and sociological problems resulting to

the unwilling parents and unwanted children could not

possibly be discussed here, but these problems must be

TRochat, Tyler & Schoenbucher, An Epidemiological Analysis of

Abortion in Georgia, in U.S. Department or HEALTH, EDUCATION

AND WELFARE, Pusiic HEALTH Service Report (98th Annual Meet-

ing, American Public Health Assoc., Houston, Texas; Oct. 26-30,

1970), Table 1.

8For estimates, see Fisher, Criminal Abortion, in ABORTION IN

AMERICA 3-6 (1967); M. CALDERONE, ABORTION IN THE UNITED STATES

1970), Table 1.

10

recognized as part of the impact of our abortion laws.

One must conclude that abortion statutes, such as the

Georgia statute, affect the conduct, health, and happiness

of literally millions of Americans each year.

The national significance of the issues involved in this

case may be seen from activities in three major areas.

First, the position of the medical profession has changed

in an effort to rid our country of this health problem. On

June 25, 1970, the House of Delegates of the American

Medical Association adopted a policy permitting licensed

physicians to perform abortions in hospitals or an ap-

proved clinical setting upon consultation with two other

physicians.’ The Executive Board of the American Col-

lege of Obstetricians and Gynecologists in August, 1970,

similarly adopted a more liberal policy permitting the

performance of an abortion based on the decision of a

physician or his patient. If the decision is based on a

physician’s recommendation then another physician is to

be consulted; if the procedure is done on the request of

the woman nothing other than her written request is

necessary under this new policy.

Secondly, several state legislatures have amended the

abortion statutes on their books, most of which had been

enacted in the mid-nineteenth century and allowed abor-

tions only to preserve the life of the mother. Since 1967

twelve states, including Georgia, adopted abortion stat-

utes similar to the provisions of the 1962 Draft of the

Move. Pena Cope, and in 1970, Alaska, Hawaii, and

New York removed substantially all limitations on abor-

tions by physicians during the early stages of pregnancy.

Recently the Commissioners on Uniform State Laws is-

sued a Second Tentative Draft of a UNIFORM ABORTION

Act which would allow abortions by licensed physicians

“within 24 weeks after the commencement of pregnancy,

9213 J.A.M.A. 359 (July 20, 1970).

OOS Ls ee << a. -— ~se a

11

or if after 24 weeks . . .” for the reasons permitted under

the MopEL PENAL Cope.

The third area involves recent litigation in state and

lower federal courts of the constitutionality of state abor-

tion statutes. The Supreme Court of California, in State

v. Belous, 71 Cal. 2d 996, 458 P. 2d 194, 80 Cal. Rptr. 354

(1969), cert. denied, 397 U.S. 915 (1970), was the first

court to recognize the constitutional status of a “funda-

mental right of the woman to choose whether to bear

children . . .” finding this right in the line of Supreme

Court cases such as Griswold, supra, Loving v. Virginia,

388 U.S. 1, 12 (1967), and Skinner v. Oklahoma ex rel.

Williamson, 316 U.S. 535, 536, 1942), which recognized a

“ ‘right of privacy’ or ‘liberty’ in matters related to mar-

riage, family and sex.” In Babbitz v. McCann,” a federal

three-judge court recognized that a woman had a “basic

right reserved to her under the ninth amendment to de-

cide whether she should carry or reject an embryo which

had not yet quickened.” Another three-judge court, in

Roe v. Wade, ruled the Texas abortion statute unconsti-

tutional on the ground that such statutes “deprive single

women and married couples of their right, secured by the

Ninth Amendment, to choose whether to have children.”

These specific holdings, together with similar comments

in United States v. Vuitch:2 and in numerous other lower

court decisions, illustrate the national significance of the

fundamental constitutional rights being claimed in this

case.

Although this Court will probably hear argument of

the Vuitch case this term, and three other cases remain

10310 F. Supp. 293 (E.D. Wis. 1970) (per curiam), appeal dismissed,

39 U.S.L.W. 3144 (October 12, 1970), for lack of jurisdiction under

28 U.S.C. § 1253.

11314 F, Supp. 1127 (N.D. Tex. 1970), appeal docketed 39 U.S.L.W.

3151, No. 808 (U.S. Oct. 7, 1970).

12305 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).

12

on the docket (Roe and two cases involving the Minne-

sota abortion statute’), it is unlikely that a decision in

any of those cases will dispose of the issues involved in

this case. The cases presently docketed all involve older

type abortion statutes which permit abortions only to

“save” or “preserve” the life of the woman, while the

Georgia abortion statute is patterned after the MopEL

PENAL Cope provisions allowing abortions on the basis of

other limited factors. Nor do any of the docketed cases

involve, as does this case, a partial invalidation of an

abortion statute where the reasons for allowing an abor-

tion have been stricken but the procedural mechanisms

for leg’ ‘ly reaching such decision have been left intact.

Because of these unique features, a decision in this case

will be important not only to the citizens of Georgia and

the other eleven states having versions of the MopEL

PENAL Cope abortion statute but also as guidance to state

legislatures throughout the nation in this developing area

of constitutional rights.

B. The three-judge court should have enjoined the

future enforcement of those portions of the Georgia

abortion statute which it declared unconstitutional.

This action was brought under 28 U.S.C. §§ 2281-84

and 48 U.S.C. § 1983. There was no pending state court

proceeding against any of the plaintiffs below. An injunc-

tion was denied, however, “on the same basis as such a

prayer would be denied were a state proceeding actually

in progress. ...” The court relied upon City of Greenwood

v. Peacock, 384 U.S. 808, 828 (1968); the quotation ex-

cerpted by the court is

the vindication of defendant’s federal rights is

left to the state courts except in the rare situa-

tions where it can be clearly predicted . . . that

18 Doe v. Randall, 314 F. Supp. 32 (D. Minn. 1970), appeal docketed

sub nom, Hodgson v. Randall, 39 U.S.L.W. 3115, No. 728 (U.S. Sept. 22,

1970); and Hodgson v. Minnesota, Minn. , (1970),

appeal docketed, 39 U.S.L.W. 3115, No. 729 (U.S. Sept. 22, 1970).

ee. eee =I owIiciu

13

those rights will inevitably be denied by the

very act of bringing the defendant to trial in the

state court.

Reliance on this excerpt is misplaced since the Peacock

case involved the removal of pending state criminal prose-

cutions. Certainly federal courts do not enjoin pending

state court proceedings except in very limited circum-

stances because they are expressly prohibited from doing

so by the anti-injunction statute, 28 U.S.C. § 2283. But

that statute proscribes injunctions “to stay proceedings in

a state court.” Thus, as this Court has recognized, if there

is no state court proceeding the anti-injunction statute is

inapplicable.”

Congress clearly intended the federal courts to have

power to declare state statutes unconstitutional and to

enjoin “the enforcement, operation or execution”” there-

of except in the circumstances to which the anti-injunc-

tion statute applies. And this Court has recognized that

“Congress imposed the duty upon all levels of the federal

judiciary to give due respect to a suitor’s choice of a

federal forum for the hearing and decision of his federal

constitutional claims.””*

14 Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2 (1965). Since there

were no pending state court proceedings in this case appellants did

not have to fit within any exception to the anti-injunction statute.

However, it should be pointed out that, as in Dombrowski, first

amendment rights of free speech and expression are involved in this

case in addition to what may be a first amendment based right of

privacy. Appellant physicians, nurses, ministers, social workers and

counselling organizations alleged that the abortion statute interfered

with their counselling women who sought their professional help

in obtaining safe, speedy, and adequate medical abortions. Since

abortions for economic, social, and many physical and emotional

reasons were prohibited by Georgia law, counselling persons as to

where such an abortion could be obtained and assisting in arrange-

ments was a possible violation of the criminal conspiracy statute,

Ga. Code § 26-3201 or could make them an accessory under Ga. Code

§ 26-801.

1528 U.S.C. § 2281.

16 Zwickler v. Koota, 389 U.S. 241, 248 (1967).

14

In view of this duty and the fact that the three-judge

court did honor appellants’ choice of a forum to the

extent of granting declaratory relief on the merits of

their asserted constitutional rights, it is inconsistent

with sound judicial policy for the court to have failed to

resolve the question with finality. If as the three-judge

court’s quotation suggests, the vindication of the federal

rights of persons in the classes represented by appellants

is to be left to the state courts, then it should not be done

piecemeal. If despite all reasonable expectations state

officials undertake to prosecute a physician for violation

of those portions of the Georgia abortion statute declared

unconstitutional by the federal court, the court cannot

then leave the matter to resolution by the state courts

without making a mockery of the judgment won by ap-

pellants in the federal forum of their choice.

Where, as here, no state criminal prosecution is pend-

ing or immediately threatened, potential friction in

federal-state relations is at a minimum. Where the

federal court has, in a novel and complex area of constitu-

tional adjudication, declared a state statute unconstitu-

tional, its failure to enjoin enforcement of the invalid

statute simply invites friction.

Even in situations in which potential federal-state fric-

tion is at its greatest, as in Dombrowski, this Court has

required enjoining state criminal prosecutions where

special circumstances indicate that an erroneous initial

application of constitutional statutes by the state will

result in irreparable injury to important federal rights.

The ephemeral time span which pregnant women have

in which to exercise their constitutional right of privacy

is a similarly important special circumstance” justify-

17 Reference is made to the petition of Jane Roe to Intervene in this

case (September 15, 1970). She was denied an abortion at Georgia

Baptist Hospital because she did not come within the reasons pre-

scribed by the hospital. The court ruled that the hospital’s adoption

Note 17 Continued on page 15.

BLEED THROUGH

—,

15

ing a coercive order by the federal courts to preclude the

possibility of irreparable injury resulting from the delay

inherent in allowing an initial state determination.

Il.

THE THREE-JUDGE COURT SHOULD HAVE DE-

CLARED THE PROCEDURAL PROVISIONS OF THE

GEORGIA ABORTION STATUTE AND ITS FURTHER

REQUIREMENT THAT ABORTIONS MAY BE PER-

FORMED ONLY AT ACCREDITED HOSPITALS UN-

CONSTITUTIONAL FACIALLY OR IN OPERATION

AS VIOLATIVE OF CONSTITUTIONAL GUARAN-

TEES OF DUE PROCESS AND EQUAL PROTECTION.

A. As a result of the three-judge court’s judgment,

the Georgia abortion statute is so vague and am-

biguous in its terms that it fails to provide sufficient

warning of the conduct proscribed thereby violat-

ing basic elements of due process guaranteed by the

fourteenth amendment.

The statute is set forth in full in the Appendix at pp.

1f-4f and the portion* declared unconstitutional is itali-

cized. Excepted from the criminal abortion penalties,

under the statute as revised by the court below, are those

abortions “performed by a physician duly licensed to

practice medicine and surgery . . . based upon his best

clinical judgment that an abortion is necessary . . . oa

(Emphasis added.) Prior to the court’s revision, the

statute read “. . . based upon his best clinical judgment

that an abortion is necessary because: . . .” one of the speci-

fied reasons was present, i.e., danger to the life or serious

| Note 17 Continued from page 14.

: of standards or reasons was unconstitutional. See Amended Judg-

ment, Appendix p. 3c. Another suit was filed, Polly Poe v. Fulton-

DeKalb Hospital Authority Civ. No. 14223 (N.D. Ga. Oct. 7, 1970),

alleging denial of an abortion and failure to advise the reason for

which it was denied. The injunctive relief requested would prevent

multiple suits to enforce the court’s decision.

16

and permanent injury to the woman’s health; fetal mal-

formation; or rape. Now the test for obtaining an abor-

tion is that a physician must decide an abortion is

“necessary” based upon his best clinical judgment. Thus

the statute as revised by the court is more restrictive,

more ambiguous, and more vague now than it was before.

A physician could reasonably fear that an abortion per-

formed by him for economic, family, emotional or other

reasons, good and sufficient to the physician and his

patient, might not be considered sufficiently “necessary”

under the truncated statute to avoid a criminal prosecu-

tion. A statute which places one in peril of his life or

liberty may not constitutionally require one to guess at

its meaning and the conduct proscribed. Eg., Smith v.

California, 361 U.S. 147, 151 (1959).

B. The procedural provisions of the Georgia abortion

statute declared constitutional by the three-judge

court are so costly, time consuming, cumbersome

and devoid of fairness as to deny Mary Doe and

members of her class the right to decide when to

bear children in violation of the right of privacy

and in violation of the due process and equal pro-

tection guarantees of the United States Constitu-

tion.

Assuming that the district court correctly held that

“the decision [to have an abortion is] sheltered by the

Constitution .. .” (Appendix p. 13a), the decision may

not be so encumbered with procedural requirements that

it becomes an empty right or one exercisable only by the

wealthy, the educated, the sophisticated, or the persistent

who relentlessly pursue their rights. Again, reference

must be made to the time limitations on safely terminat-

ing a pregnancy. Pregnancy test results are reliable only

after approximately eight weeks,”* yet an abortion must

18 Physicians measure pregnancy from the first day of the last men-

strual period.

-.:s | sere er Tees

TS " ‘ weirs Sanaa et TTS so si

SLE oe fo a WIA

*

%

5

ee

i

a

«

17

be performed within the first twelve weeks if the safest

methods are to be used. Thus, a woman has only about

four weeks in which to put together the magic procedural

combination under the Georgia abortion statute. This

combination requires the woman: (1) to show that she

is a resident of Georgia; (2) to convince her physician

an abortion is “necessary”; (3) to obtain the opinions of

two other physicians who agree that an abortion is

“necessary”; (4) to get the decision approved by a ma-

jority of a hospital’s abortion committee (a minimum of

three members), although there are no standards limit-

ing the committee’s discretion; and (5) to arrange to

have the abortion performed in a hospital accredited by

the Joint Commission on Accreditation of Hospitals.

Since there is no statutory provision for the woman to

appear and be heard at a meeting of the hospital abortion

committee, her proposing physician must, as a practical

matter, become her advocate and present reasons suffi-

cient to convince a majority of the hospital abortion

committee of the need for the abortion. Such advocacy

usually requires that the proposing physician and his

consultants write extensive requests, reports, and de-

tailed charts since again, in practice, it is difficult for the

six physicians involved to meet together for a discussion

of each case. A more burdensome process can hardly be

imagined.” Cf. the unconstitutionality of cumbersome

procedures where other rights are involved, eg., voting,

Harman v. Forsennius, 380 U.S. 528, 539-44 (1960);

19 Without extensive argument, appellants contend that residency is

not a rational prerequisite for determining if one needs a medical

‘service. Cf. Shapiro v. Thompson, 394 U.S. 618 (1969). Such a limita-

tion prevents emergency treatment for a visitor in Georgia who is

unable to return to her home state for such service.

20 Hospital abortion committees are composed of staff members in the

OB-GYN specialty, i.e., one’s professional competitors, posing a

serious conflict of interest problem. Also, in the smaller cities, it is

sometimes impossible to have three committee members and three

consultants.

18

parades and demonstrations, Shuttlesworth v. City of

Birmingham, 394 U.S. 147 (1969).

Considering the limitations of time in which a mean-

ingful decision must be made, this statutory scheme is

completely lacking in procedural due process. As stated

above, the woman involved has no right to appear before

the hospital abortion committee and be heard, nor does

she have a recognized right Of appeal from its decision.

An action in the courts provides no adequate remedy

since that decision is subject to the delays of further

appeal. In this regard, it should be pointed out that

neither the American Medical Association nor the

American College of Obstetricians and Gynecologists

policy statements require the approval of a committee,

much less the approval of a statutory hospital abortion

committee. '

A final procedural roadblock to obtaining a legal abor-

tion, which was left in the statute by the three-judge

court, is the requirement that abortions be performed

only in licensed, accredited hospital facilities. The

Georgia Department of Health issues licenses to hos-

pitals, but accreditation is granted only by the Joint Com-

mission on Accreditation of Hospitals, a private organi-

zation located in Chicago, Illinois. Of the 214 licensed

hospitals in Georgia, only 83 have been accredited.”

Licensed hospitals are permitted to perform general

types of surgery. Accredited hospitals are required to

maintain, in addition to operating room facilities, a

radiology department and facilities for emergency care

of mass casualties,” neither of which is relevant to abor-

tion services. This artificial and medically unnecessary

statutory limitation on the facilities in which abortions

21JorinT COMMISSION ON HOSPITAL ACCREDITATION, ACCREDITED Hos-

PITALS, Jan. 1, 1970.

22STANDARDS FOR HOSPITAL ACCREDITATION, introduction (Dec. 1965),

as discussed in Leavy and Charles, California’s New Therapeutic

Abortion Act, 15 U.C.L.A.L. Rev. 1, 5 (1967).

BLEED THROUGH

—

19

may be obtained further encumbers the right of many

residents of Georgia to seek a termination of pregnancy.

This additional procedural burden is especially true of

indigent women who depend upon the public hospital in

the county of their residence but who are unfortunate

enough to live in the 103 Georgia counties without an

accredited hospital. See map of Georgia which shows

counties with accredited hospitals Appendix p. lg.

The foregoing procedures are costly, involve great ex-

penditure of time by the woman and her physicians and

are so burdensome and devoid of fairness as to deprive

appellants of basic due process. The actions of hospital

abortion committees constitute state action because they

are delegated decision making authority under the statute

to decide whether an abortion will be performed.

C. The procedural provisions of the Georgia abortion

statute declared constitutional by the three-judge

court have had the effect in operation of denying

equal access to medical services to poor and Negro

| citizens in violation of the equal protection guaran-

ties of the United States Constitution.

On its face the Georgia statute makes no distinction on

the basis of a patient’s race, economic status, or social

position. Yet, as applied, this statute has systematically

come to deny safe medical abortion services to the poor

and to the non-white residents of Georgia. Appellants

assert that there is a duty on behalf of cities, counties,

states, and other governmental bodies which furnish

other health services to the indigent to also make abor-

tion services available to the indigent. See Doe v. General

Hospital of the District of Columbia, No. 24,011 (D.C.

Cir. 1970); and United States v. Vuitch, supra, 305 F.

Supp. at 1035, where such a duty was “declared” even

though the court recognized that appropriations would

20

have to be made. Observance of such a duty is not only

being neglected in Georgia, it is being seriously impeded

by the remaining requirements of the Georgia abortion

. Statute.

Abortion services have for some time been available to

the rich woman; she could travel to other countries and

today may travel to New York, California or some other

state which has a less restrictive abortion law. And under

the Georgia abortion statute, she could usually find with-

out difficulty private physicians and pyschiatrists who

would make the necessary examinations to support a

finding that termination of pregnancy was necessary to

her psychic health. It goes without saying that the ma-

jority of women do not enjoy such affluence. Some wom-

en lack adequate means to travel to the next county.

Such lack of funds, however, controls their access to

medical services. The requirement of the Georgia abor-

tion statute that abortion be performed only in accredited

hospitals, discussed above, has totally removed the possi-

bility of the less expensive office or clinical abortion

facilities in the state.”

This creates a situation not unlike having a right to

appeal a criminal conviction but not enough funds to pay

for a transcript of the trial proceedings necessary to as-

sert such right. Cf. Gardner v. California, 393 U.S. 367

(1968); Griffin v. Illinois, 351 U.S. 12, 18 (1956). As the

Court stated in Griffin “there can be no equal justice

where the kind of trial a man gets depends on the amount

of money he has.” 351 U.S. at 18-19. Similarly when Geor-

gia had granted a right to terminate an unwanted preg-

nancy, it may not constitutionally encumber that right

2%In this regard the three-judge court observed that the State had an

interest in preventing establishment of/“abortion mills by the oc-

casional opportunistic or unethical pradfitioner.” Surely the court is

not referring to specialized medical facilities but rather illegal or

non-medical facilities because it will certainly be appropriate to

have specialized facilities for this as for other medical services.

21

with complicated procedures that in practice are avail-

able only to the wealthy or the educated.

Not only are the poor people denied equal access to

abortion services in Georgia, but statistics also show that

whites receive by far the greater number of hospital abor-

tions. During 1968, beginning with enactment of the

present Georgia abortion statute in April, 69 whites as

compared with only 4 Negroes received abortions; in

1969, the ratio was 147 whites to 21 Negroes; and in 1970

through June, 192 whites compared to 28 Negroes re-

ceived abortions.” Thus, Negro women have received

only 11.5 percent of the hospital abortions since enact-

ment of the new law although Negroes represent 28.5

percent of the population. These figures should’ be con-

sidered in conjunction with a racial breakdown of deaths

resulting from illegal abortions. Of the 205 reported

deaths from 1950 to 1969, 143 or approximately 70 per-

cent were Negro women and during the period 1965 to

1969, 88 percent (22 of 25 deaths) were Negro women.”

Thus, while the number of legal abortions are increasing,

Negro women are receiving a disproportionately small

share and at the same time maternal mortality for Negro

women is increasing. Even though the statute may not

facially deny equal protection or equal access to medical

care, these statistics demonstrate such a denial in fact.”

What was said by Mr. Justice White in his concurring

opinion in Griswold v. Connecticut, supra, 381 U.S. at

503, is equally applicable to the abortion statute here:

[T]he clear effect of these statutes as enforced,

is to deny disadvantaged citizens of Connecticut,

25 Rochat, n. 7 supra, at Table 8.

261d. at Table 1.

27 Concerning the use of statistics to show exclusion of Negroes in the

South in other contexts see, e.g., Whitus v. Georgia, 385 U.S. 545,

552 n. 2 (1967); United States v. Jefferson County Bd. of Educ., 372

F.2d 836, 887 (1966), aff'd en banc, 380 F.2d 385 (5th Cir.), cert.

denied, 389 U.S. 840 (1967).

those without either adequate knowledge or re-

sources, to obtain private counselling, access to

medical assistance and up-to-date information in

respect to proper methods of birth control.... In

my view, the statute with these effects bears a

substantial burden of justification when attacked

under the Fourteenth Amendement. (Citations

omitted. )

The Georgia abortion statute denies women of Georgia

access to needed medical services and its procedural re-

quirements impose undue burdens upon those who seek

to avail themselves of their right to decide when to bear

children. In so doing it contravenes the due process and

equal protection guarantees” of the fourteenth amend-

ment. It should be declared unconstitutional and its en-

forcement enjoined.

Il.

APPELLANT-PHYSICIANS, NURSES, SOCIAL

WORKERS, MINISTERS, AND FAMILY PLANNING

AND ABORTION COUNSELLING ORGANIZATIONS

HAVE SUFFICIENT “STANDING” AND “COLLISION

OF INTEREST” TO CHALLENGE THE GEORGIA

ABORTION STATUTE.

The court ruled that all plaintiffs had “standing” to

bring the action contesting the constitutionality of the

Georgia abortion statute, noting the possibility that if

% Other equal protection considerations are involved in Ga. Code

$ 26-1202(e) which permits a hospital to elect not to perform abor-

tions. It is recognized that individual doctors should have this right,

as a matter of conscience, but hospitals are fictitious legal entities

and not having’ a conscience as such can lay no claim to exemption

for that reason. Public or quasi-public hospitals occupy “state

action” status and have an equal protection “duty.” Private hospitals

receiving Hill-Burton or Medicaid funds would likewise be subject

to equal protection responsibilities, cf. Simkins v. Moses H. Cone

Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied 376

U.S. 938 (1964).

— .

23

/

social workers, ministers, etc., counseled obtaining an

abortion not permitted under the statute they could be

prosecuted for conspiracy. However, in the absence of a

pending prosecution or immediate threat of prosecution

against the doctors, social workers, ministers, and other

parties desiring to counsel abortions, the court held that

there was no adequate “collision of interests” or “exigent

adversity” to give the challenge of these parties to the

statute the requisite justicibility.

Appellants urge that the reliance of the district court

on Poe v. Ullman, 367 U.S. 497 (1961) and United Public

Workers of America v. Mitchell, 330 U.S. 75 (1947) in

reaching its conclusion was not well founded. Both of

those cases involved statutes as to which a long history of

failure by the state to seek prosecutions showed the ab-

sence of any real threat of enforcement and therefore the

absence of any real controversy between the parties. The

Georgia abortion statute, however, has not been a dead

formality on its books. Numerous persons have been

prosecuted and convicted under the abortion statute that

preceded the 1968 Georgia statute.” And under Ga. Code

§ 26-801, one who intentionally counsels a crime or other-

wise aids and abets in its commission is made a party

thereto subject to conviction for such action. In the cir-

cumstances of an actual history of state enforcement of

its abortion statutes, appellants who desire, in the per-

formance of their professions, to counsel abortions have

“such a personal stake in the outcome of the con-

troversy as to assure that concrete adverseness

which sharpens the presentation of issues upon

which the court so largely depends for illumina-

tion of difficult constitutional questions.” Baker

». Carr, 369 U.S. 186, 204 (1962), as cited in

Flast v. Cohen, 392 U.S. 83, 99 (1968).

29See for example, White v. State, 114 Ga. App. 437 151 S.E.2d 832

(1966); Persons v. State, 93 Ga. App. 314 91 S.E.2d 358 (1956).

24

f

In any event, a failure of the state actively to prosecute

appellants and members of their classes who desire to

counsel abortion does not alleviate their fear of prosecu-

tion for doing so. As this Court stated in Dombrowski:

So long as the statute remains available to the

State the threat of prosecution of protected ex-

pression is a real and substantial one. 380 U.S.

at 494.

So in this case, the real and substantial threat of prose-

cution for counseling abortions gave appellants a mean-

ingful adversity” adequate to place their claim in the

context of controversy necessary for judicial resolution.

Further, as to the physicians, extensive encroachment on

their rights to practice their profession without state in-

terference has already been discussed and this presents

concrete adverseness assuring adequate presentation of

the issues.

Here an important issue as to justiciability or collision

of interest is raised. This Court should review the deci-

sion below and lay to rest the uncertainty which arises

out of Poe and Mitchell.

This Court found.no lack of adversity in Epperson v. Arkansas,

393 U.S. 97 (1968) although, as Justice Black pointed out, the

statute which was there said to impose a risk of prosecution had

never been enforced against anyone in its forty year existence.

25

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, ‘

Marcle Pitts HAMES REBER F.. BOULT, JR.

210 Brighton Road, N. E. CHARLES MorcaN, JR.

Atlanta, Georgia 30309 5 Forsyth Street, N. W.

Atlanta, Georgia 30303

Attorneys for Appellants

Of Counsel:

ELIZABETH ROEDIGER RINDSKOPF TOBIANE SCHWARTZ

Gat. SEIGEL 153 Pryor Street, S. W.

551 Forest Road, N. E. Atlanta, Georgia 30303

Atlanta, Georgia 30312

‘h

APPENDIX

APPENDIX “A”

OPINION OF UNITED STATES District CouRT GRANTING

DECLARATORY JUDGMENT AND DENYING INJUNCTIVE RELIEF

JULY 31, 1970

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Mary Doe, et al, :

Plaintiffs

vs.

ArTHuUR K. BOLTON, as Crvit ACTION

Attorney General of the

State of Georgia; P NUMBER 13676

Lewis R. SLATON, as District

Attorney of Fulton County,

Georgia; and HERBERT T.

JENKINS, as Chief of Police

of the City of Atlanta,

Defendants J

PER CURIAM.

a

This is an action for declaratory and injunctive relief

brought pursuant to 28 U.S.C.A. §2201 and 2202, and 42

US.C.A. §1983 and 28 U.S.C.A. §1343. It is a class action

attacking Ga. Code Ann. §26-1201, et seq. (1969) Geor-

gia’s “Abortion Act.”

2-a

Plaintiffs claim to represent four sub-classes: pregnant

women, single or married, wishing legal abortions; li-

censed physicians who wish to perform or counsel per.

formance of legal abortions; registered nurses who desire

to participate in performing or counsel performance

legal abortions; and ministers and social workers who

wish to be free to advise abortion in counselling pregnant

women.

Plaintiffs seek an order declaring Georgia’s Abortion

Statute unconstitutional and enjoining its enforcement

on various grounds:

(1) the Statute is unconstitutionally vague and indefi-

nite on its face and as applied, failing to provide suffi-

cient warning of the conduct proscribed, in violation of

the Due Process Clause of the Fourteenth Amendment to

the United States Constitution;

(2) Georgia’s Abortion Statute unconstitutionally

abridges a woman’s right to decide to terminate an un-

wanted pregnancy, in restricting that fundamental lib-

erty without an overriding compelling state interest;

(3) the Statute unconstitutionally restricts the right

of the physicians, nurses, ministers and social workers to

practice their professions;

(4) Georgia’s Abortion Statute produces discrimina-

tion against poor and non-white women in violation of

the Equal Protection Clause of the Fourteenth Amend-

ment to the United States Constitution.

PENDING MOTIONS

Arthur K. Bolton, sued in his official capacity as At-

torney General of Georgia has moved for an order dis-

missing the claim against him on the ground that no relief

_—

3-a

could be granted against him since he is not charged gen-

erally with the enforcement, application or administra-

tion of the Georgia criminal statutes.

As plaintiffs observe, Article VI, § X, Par. II of the

Georgia Constitution, Ga. Code Ann. §2-4502 (1933) re-

quires the Attorney General to represent the State in any

civil or criminal case when required by the Governor.

Furthermore, he may be required to give the Governor

advisory opinions on the abortion statute. Ga. Code Ann.

§40-1602 (1933). Finally, the Attorney General is head

of the Department of Law, which is vested with authority

and jurisdiction in all matters of law relating to govern-

mental departments, boards and agencies. Ga. Code Ann.

§40-1614 (1943). The Attorney General has sufficient

connection with enforcement of the statutes attacked to

justify retaining him as a party.’ See Arneson v. Denny,

95 F.2d 993 (W.D. Wash. 1928); Jackson v. Colorado,

294 F. Supp. 1065, 1072 (D. Colo. 1968); James v. Al-

mond, 170 F. Supp. 331, 341-342 (E.D. Va. 1959); Inter-_

national Longshoremens’ & W. U. v. Ackerman, 82 F.

Supp. 65, 124 (D. Haw. 1948), rev’d on other grounds 187

—-F.2d 860 (9th Cir. 1951); Revins v. Prindable, 39 F. Supp.

| 708, 710 (E.D.Ill. 1941). Accordingly, that motion is

_ denied.

The Attorney General has also objected to interroga-

tories which plaintiffs served for answer by a witness,

Roger Rochat, M. D. In view of the disposition of this case

made below, no ruling on this motion is necessary.

The motion of Ferdinand Buckley, Esquire, for recon-

sideration of the revocation of his appointment as guar-

dian ad litem will be dealt with in connection with the

discussion under MERITS below.

1 The Court is also aware that the Attorney General regularly inter-

prets State criminal laws and decisions in published opinions and

circulars to State judges and law enforcement officers.

4a

The motion of the National Legal Program on Health

Problems of the Poor to submit a brief as amicus curiae

is granted.

The defendant Lewis R. Slaton, District Attorney of

Fulton County, filed motions seeking orders requiring

disclosure of plaintiff’s identity, granting a continuance

for discovery for a reasonable time thereafter, and re.

quiring plaintiff to submit to a physical and mental ex-

amination. In view of the reasons for which it is held that

the complaint of this plaintiff presented a justiciable con-

troversy, these motions are directed toward obtaining in-

formation which is not relevant to the case. Accordingly,

they are denied.

JURISDICTION

A. Substantial Constitutional Question.

A three-judge court was convened pursuant to 28

U.S.C.A. § 2281 and 2284. Such action is proper where

plaintiffs attack the constitutionality of a state statute,

raising a substantial constitutional question, and seek

equitable relief against its enforcement. Idlewild Bon

Voyage Liquor Corp. v. Epstein, 370 U. S. 713, 715

(1962).

Plaintiffs here attack the constitutionality of Ga. Code

Ann. § 26-1201 et seg. (1969) on the grounds that it in-

fringes rights protected by various Amendments to the

United States Constitution. They seek an injunction

against enforcement. In light of recent cases on the sub-

ject of the Constitutional right to an abortion, this Con-

stitutional question appears substantial. See Roe v.

Wade, F. Supp. (N. D. Tex., No. 3-3690-B,

June 17, 1970); Doe v. Randall, F. Supp. ———

(D. Minn., No. 3-70-Civ.-97, May 19, 1970); Doe v. Scott,

(N.D. Ill, No. 70-C-395, March

—— F. Supp.

5-2.

27, 1970); Babbitz v. McCann, 310 F. Supp. 293 (E.D.

Wis. 1970); United States v. Vuitch, 305 F. Supp. 1032

(D.D.C. 1969), app. docketed, No. 1155 (February 5,

1970); California v. Belous, 71 Cal. 2d 991, 458 P.2d 194

(1969), cert. den. 397 U.S. 915 (1970).

B. Justiciability.

Standing

By motion to dismiss, Lewis R. Slaton, District At-

torney of Fulton County, contends that all plaintéffs other

than Mary Doe lack standing to maintain this action. The

basis for the claims of these plaintiffs is that because they

are not free. to perform or counsel the obtaining of abor-

tions, they are unconstitutionally restricted in the prac-

tice of their professions.

There are certainly instances in which any of these

plaintiffs would have standing to claim a constitutional

right to practice his profession, and infringement thereof.

For instance, few would dispute that a social worker

being prosecuted for conspiracy because he (or she)

counselled obtaining an abortion, and referred the client

to a physician for the abortion, would have standing to

seek a declaratory judgment of his (or her) asserted

constitutional right and infringement thereof. See Gris-

wold v. Connecticut, 381 U. S. 479 (1965).

But absent prosecution or indictment, that these plain-

tiffs do have standing is more difficult to see. Whether

their claim is otherwise justiciable is irrelevant. Flast v.

Cohen, 392 U. S. 83, 100 n. 21 (1968). The sole issue is

whether there is a logical link between the status they

assert (physician, nurse) and the claim they seek adjudi-

cated, or between their status and both the type of enact-

ment attacked and the nature of the constitutional in-

fringement alleged. 392 U. S. at 102.

6-a

Under either test, all the plaintiffs have standing. As

physicians, nurses, ministers or social workers they at.

tack a criminal statute potentially applicable to them, on

the grounds that it unconstitutionally restricts their right

to practice. Accordingly, the motion to dismiss for lack

of standing is denied.

Collision of Interests

Article III of the United States Constitution limits the

jurisdiction of the federal courts to cases and contro-

versies. And it is well established that in actions for

declaratory judgments, a District Court may not render

an advisory opinion on the constitutionality of a state

statute. Rather there must be “exigent adversity,” an

actual controversy in which the constitutionality of the

statute is drawn into question in a truly adversary con-

text. See Golden v. Zwickler, 394 U. S. 103, 108 (1969),

Poe v. Ullman, 367 U.S. 497 (1961); United Public Work-

ers of America v. Mitchell, 330 U. S. 75, 89 (1947).

Most akin to the instant case is Poe v. Ullman, 367 U.

S. 497 (1961). There, a married couple, a married woman

and their physician sought a declaratory judgment that

Connecticut’s statutes prohibiting the use of contracep-

tive devices and the giving of medical advice in the use

of such devices violated plaintiffs’ Fourteenth Amend-

ment rights, depriving them of life and liberty without

due process of law. None of the plaintiffs had been in-

dicted or prosecuted under the statutes. There had been

only one recorded prosecution for violation of the statutes

in the seventy-five years since their enactment, and that

single instance occurred twenty years before the de-

claratory judgment action was brought. The Supreme

Court suggested that the lack of a pending prosecution or

immediate threat of such prosecution against the partic-

ular plaintiffs made the claims non-justiciable, citing

United Public Workers of America v. Mitchell, 330 U. S.

7-a

15 (1947). 367 U. S. at 501. But the Justices went on to

find that the lack of recorded prosecutions, the unchal-

‘Jenged, open, ubiquitous public sales of contraceptive

devices showed a deeply embedded State policy against

enforcement, amounting to a tacit agreement not to

prosecute violators of the statutes. The majority there-

fore held:

“It is clear that the mere existence of a state

penal statute would constitute insufficient

grounds to support a federal court’s adjudica-

tion of its constitutionality in proceedings

brought against the State’s prosecuting officials

if real threat of enforcement is wanting.” 367

U. S. at 507.

However, these three cases seem precedent for the

proposition that in the absence of a pending or threatened

indictment or prosecution of the particular plaintiffs .

bringing a declaratory judgment action, a federal court

cannot consider the constitutionality of the challenged

criminal statute.

However in 1968, the Supreme Court decided Epper-

son v. Arkansas, 393 U. S. 97 (1968), in which a public

school teacher argued that the Arkansas statute prohibit-

ing the teaching of evolution was unconstitutional. There

was no pending or threatened indictment or prosecution

against the teacher. There was no record of any prosecu-

| tions under the challenged statute. The teacher’s dilemma

was solely that (1) the new biology textbooks she was

supposed to use in the approaching term contained a

chapter on evolution, and (2) her action for adeclaratory -

judgment in state court, granted on the trial level, had

been reversed by the Arkansas Supreme Court. The

United States Supreme Court majority reached the

merits and reversed the decision of the Arkansas Su-

preme Court in an opinion which summarily brushed

aside the question of justiciability. 393 U.S. at 101-102.

8-a

Apparently, then, the majority felt that the appeal pre.

sented a “substantial controversy .. . of sufficient im.

mediacy and reality.” Golden v. Zwickler, 394 U. S. 103,

108 (1969).

In the instant case, the plaintiffs Mary Doe alléges that

having properly applied to the Abortion Committee of

Grady Memorial Hospital for a legal therapeutic abor-.

tion allowed by Ga. Code Ann. § 26-1202 (1969), she was

denied an abortion solely on the grounds that her present

situation did not come within the terms of Ga. Code Ann.

§ 26-1202(a) (1) (1969). .

Georgia’s Abortion Act defines a criminal abortion as

the act performed by a person who administers a sub-

stance or uses an instrument or other means with intent

to produce a miscarriage or abortion. Ga. Code Ann.

§ 26-1201 (1969). However, Ga. Code Ann. § 26-1202(a)

establishes three circumstances under which an abortion

shall not be considered a criminal abortion. And Ga.

Code Ann. § 26-1202(b)(1969) prescribes procedure

which must be followed if an abortion is to be authorized

by or performed under 1202(a).

Ga. Code Ann. § 26-1202(b) (1969) provides in relev-

ant part:

“No abortion is authorized or shall be per-

formed under this section unless each of the

following conditions is met:

* * *

(6) The performance of the abortion has been

approved in advance by a committee of the medi-

cal staff of the hospital in which the operation is

to be performed. This committee must be one

established and maintained in accordance with

the standards promulgated by the Joint Com-

mission on the Accreditation of Hospitals, and

—

9-a

its approval must be by a majority vote of a

membership of not less than three members of

the hospital’s staff; the physician proposing to

perform the operation may not be counted as a

member of the committee for this purpose.

Thus, the denial of plaintiff’s application for an abor-

tion, on the grounds alleged, was not the decision of a

private physician declining to render professional serv-

ices, occasioned by the mere existence of Georgia’s Abor-

tion Act. The statute confers upon the hospital committee

power to grant or deny abortions. A decision denying an

application for abortion on the ground that the woman’s

situation does not fall within one of the three enumer-

ated exceptions is an exercise of that power, which alleg-

edly violated plaintiff's constitutional rights. To this

extent then, this staute has been invoked against the

plaintiff Mary Doe, causing an alleged constitutional

deprivation. Here, there has been actual interference with

a claimed constitutional right by the decision of a body

which the State has vested with power to grant or deny

-legal abortions. These circumstances put plaintiff and the

defendants on opposite sides of a very real and lively con-

troversy, amendable to judicial resolution.

Accordingly, it appears that Mary Doe’s complaint, in

this context, presents a justiciable controversy. Since the

claims of the other plaintiffs do not stand in such a pos-

ture, the Attorney General’s motion to dismiss must be

granted to that extent.

C. Exhaustion.

There is no merit to the defendant Slaton’s motion to

dismiss for failure to exhaust state remedies. It does not

appear that there are any administrative remedies for

the denial by a hospital committee of an application for

an-abortion. And however desirable such a requirement

10-a

might be for orderly judicial administration, there is no

requirement that a litigant in federal court exhaust state

judicial remedies, where he is asserting a claim in pro.

ceedings other than habeas corpus involving a subject

over which the federal and state courts have concurrent

jurisdiction. As will appear below, the instant case does

not involve granting injunctive relief.

: THE MERITS

Plaintiff asserts that certain cases leading up to and

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

establish a Constitutional right to privacy broad enough

to eneompass the right of a woman to terminate an un-

wanted pregnancy in its early-stages, by obtaining an

abortion. See Stanley v. Georgia, 394 U. S. 557 (1969);

Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Okla.

homa, 316 U. S. 535 (1942); Olmstead v. United States,

277 U.S. 438, 478 (1928) (dissenting opinion of Mr. Jus-

tice Brandeis); Pierce v. Society of Sisters, 268 U. S. 510

(1925); Meyer v. Nebraska, 262 U. S. 390 (1923). While

the Court agrees that the breadth of the right to privacy

encompasses the decision to terminate an unwanted preg-

nancy, we are unwilling to declare that such a right re

poses unbounded in any one individual. Rather, we are of

the view that although the state may not unduly limit

the reasons for which a woman seeks an abortion, it may

legitimately require that the decision to terminate her

pregnancy be one reached only upon consideration of

more factors than the desires of the woman and her abil-

ity to find a willing physician.

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

Supreme Court held that the decision to use contracep-

tive devices is an aspect of a relationship lying within a

penumbral zone of privacy created by several fundamen-

tal constitutional guarantees, and that a state law forbid-

ding the use of such devices unduly invades that area of

ll-a

rotected freedoms with maximum destructive effect

pon that relationship. 381 U.S. at 485. In a concurring

pinion, Mr. Justice Goldberg differed with the majority

nly to the extent of stipulating that the right to marital

rivacy is encompassed in his concept of personal liberty

ause of the Ninth Amendment, rather than because of

numbral emanations of specific constitutional guaran-

For whichever reason, the concept of personal liberty

embodies a right to privacy which apparently is also

broad enough to include the decision to abort a preg-

nancy.” Like the decision to use contraceptive devices,

the decision to terminate an unwanted pregnancy is shel-

tered from state regulation which seeks broadly to limit

the reasons for which an abortion may be legally ob-

tained. However, unlike the decision to use contraceptive

devices, the decision to abort a pregnancy affects other

interests than those of the woman alone, or even husband

and wife alone.

Once conception takes place and an embryo forms, for

better or for worse the woman carries a life form with

the potential of independent human existence.’ Without

2 We see no connection between this theory and the claimed unlimited

right of a woman “to use her body in any way she wishes” read into

Griswold by some. There are obvious limitatiéns to the latter such as

self abuse, e.g. disease, drugs, suicide, etc. and the rights of others in

which the state clearly has an interest. Any such theory in its ulti-

mate is flatly rejected.

8 This view of the impact of conception on the decision not to have

children implies that the distinction between a quick and unquick

fetus, and even that between embryo and fetus is not relevant here.

And since the Court does not postulate the existence of a new being

with federal constitutional rights at any time during gestation, the

motion of Mr. Ferdinand Buckley for reconsideration of the order

revoking his appointment as guardian ad litem for the embryo (or

fetus) is denied. Mr. Buckley’s motion to intervene in such capacity

is also denied. However, he has the Court’s appreciation for his par-

ticipation in this litigation as amicus curiae.

12-a

positing the existence of a new being with its own iden.

tity and federal constitutional rights, we hold that once

the embryo has formed, the decision to abort its develop.

ment cannot be considered a purely private one affecting

only husband and wife, man and woman.

A potential human life, together with the traditional

interests in the health, welfare and morals of its citizenry

under the police power, grant to the state a legitimate

area of control short of an invasion of the personal right

of initial decision.

The whole thrust of the present Georgia statute‘ is to

treat the problem as a medical one. Such approach is rea-

sonable and seemingly sound inasmuch as medical prac-

titioners are in the best position by virtue of training to

judge concurrently the basis as well as the risk inherent *

in such a decision. In this respect, the state moreover has

a legitimate interest in seeing to it that the decision—

personal and medical—is not one undertaken lightly and

without careful consideration of all relevant factors,

whether they be emotional, economic, psychological, fa-

milial or physical. For example, the legislature might

require any number of conditions such as consultation

with a licensed minister or secular guidance counselor as

well as the concurrence of two licensed physicians or any

system of approval related to the quality and soundness

of the decision in all its aspects. It certainly has a clear

right to circumscribe a decision made by a woman alone

or by a woman and a single physician and to guard against

the establishment of transient “abortion mills” by the

occasional opportunistic or unethical practitioner and the

concomitant dangers to his patrons and the public. Such

controls and requirements, so long as they do not restrict

the reasons for the initial decisions and do not violate the

4 Apparently patterned after the American Law Institute, Model Penal

Code §230.3 (Proposed Official Draft, 1962).

13-a

Due Process and Equal Protection Clauses of the Four-

teenth Amendment, are properly within the sphere of

legislative discretion. In that respect, where abortions

may be obtained only from licensed physicians and sur-

geons, and only after psychiatric consultation, the mere

fact that physicians and psychiatrists are more accessible

to rich people than to poor people, making abortions more

available to the wealthy than to the indigent, is not in

itself,a violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitu-

tion. Cf. Dandridge v. Williams, 397 U. S. 471 (1970);

MacQuarrie v. McLaughlin, 294 F. Supp. 176 (D. Mass.

1968), aff'd 394 U. S. 456 (1969).

Moreover, there is an overriding interest in the manner

of performance as well as the quality of the final decision

to abort. Obvious need for control through licensing, sani-

tation requirements and proper medical standards in the

execution of a legal abortion are examples. Again such

decisions address themselves to legislative decision based

upon informed judgment.

Having decided that the reasons for an abortion may

not be proscribed, but that the quality of the decision as

well as the manner of its execution are properly within

the realm of state control, the present statute must be

examined in such light.

Rather than regulating merely the quality of the deci-

sion to have an abortion, and the manner of its perform-

ance, the Georgia statute also limits the number of

reasons for which an abortion may be sought. This the

State may not do, because such action unduly restricts a

decision sheltered by the Constitutional right to privacy.

See Griswold v. Connecticut, 381 U. S. 479 (1965); Cali-

fornia v. Belous, 71 Cal. 2d 991, 458 P. 2d 194 (1969),

cert. den. 397 U. S. 915 (1970). The question becomes a

atter of statutory overbreadth. =

, . | |

14a

Based upon the above, the court finds the following

portions of George Code §26-1202 to be in violation of the

constitutional rights of petitioner:

A. Section (a) beginning with the word “because” on

line 5 and through subsection (a) (3) in its entirety,

B. Section (b) subsection (3) beginning with the word

“because” on line 6 and through the end. of said

subsection.

C. Section (b) subsection (6) in its entirety.

D. Section (c) in its entirety.

There being no showing to the contrary, the court fur-

ther finds the remainder of said Code §26-1202 to con-

stitute a proper exercise of state power within the context

of this opinion.*

An appropriate formal declaratory judgment may be

presented upon request of any party.

ABSTENTION

It is recognized that there is no pending state court

proceeding against which the injunction prayed by plain-

tiff would operate. Nevertheless, the request for injunc-

tive relief is denied, on the same basis as such a prayer

would be denied were a state = actually in

progress:

“... the vindication of the defendant’s federal

rights is left to the state courts except in the

rare situations where it can be clearly predicted

.. that those rights will inevitably be denied by

5 It is not thereby implied that those provisions constitute the only or

best means of state control. On the whole, the present system appears

unnecessarily cumbersome, a potential hazard under due process and

equal protection considerations.

_

15-a

the very act of bringing the defendant to trial in

the state court.” City of Greenwood v. Peacock,

384 U. S. 808, 828 (1968).

However under the authority of Zwickler v. Koota, 389

U. S. 241 (1967), the Court has proceeded to issue the

declaratory relief, in spite of its unwillingness to broadly

enjoin future prosecutions under the Act. Accordingly,

plaintiff's request for a declaratory judgment is hereby

granted. Judgment shall issue in the form described

above.

IT IS SO ORDERED.

This the 31 day of July, 1970.

LEwIs R. Morcan

United States Circuit Judge

SipneEy O. SMITH, JR.

United States District Judge

ALBERT J. HENDERSON

United States District Judge

APPENDIX “B” |

JUDGMENT OF UNITED STATEs District Court

GRANTING DECLARATORY JUDGMENT AND

DENYING INJUNCTIVE RELIEF

Aucust 24, 1970

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Mary Doe, et al,

Plaintiff

vs.

Crvit ACTION

ARTHUR K. Botton, as Attorney

General of the State of Georgia; > NuMBER 13676

Lewis R. SLaTon, as District

Attorney of Fulton County,

Georgia; and HERBERT T. JENKINS,

as Chief of Police of the City

of Atlanta,

Defendants

4

JUDGMENT

The action came on for hearing on defendants’ motions

to dismiss on June 15, 1970, before a three-Judge Court

composed of Lewis R. Morgan, United State Circuit

Judge, Sidney O. Smith, Jr., and Albert J. Henderson, Jr.,

United States District Judges. s

_—

2-b

Plaintiffs’ request to introduce evidence in proof of

allegations of the complaint was denied; defendants’ mo-

tions to dismiss were treated as motions for summary

judgment, argument was heard on the Court’s jurisdic-

tion and the constitutional issues raised. The Court issued

its opinion on July 31, 1970.

Having determined that a substantial constitutional

question was raised, one which created a justiciable con-

troversy between plaintiff Mary Doe and the defendants,

over which question this Court has jurisdiction and which

it does not abstain from exercising; and

Having granted plaintiff Mary Doe’s request for a de-

claratory judgment and denied her request for injunctive.

relief,

Judgment is hereby entered as follows:

1. The following portions of the Criminal Code of

Georgia, § 26-1202’, are declared to be in violation of the

constitutional rights of Petitioner Mary Doe, within the

context of the aforesaid opinion:

A. Section (a) beginning with the word “because” on

line 5 and through subsection (a) (3) in its entirety.

B. Section (b) subsection (3) beginning with the word

“because” on line 6 _— the end of said

subsection. ‘=

C. Section (b) subsection (6) in its entirety.

D. Section (c) in its entirety.

2. The remainder of the said section 26-1202 of the

Criminal Code of Georgia is declared to constitute a

1 It is the intention of this Court that our decision reach the codifica-

tion of identical provisions of Ga. Code Ann. §26-9925a and corre-

sponding provisions enumerated above if such codification has any

force as law.

3-b

proper exercise of state power, within the context of tj

court’s opinion.

IT IS THEREFORE ORDERED, that the complaint

all plaintiffs except Mary Doe be dismissed; that t

above sections of the Georgia Abortion Statute are

clared void on their face for unconstitutional ove

breadth; that plaintiffs’ application for injunction be d

missed; costs of this cause are taxed against defendants

The request for stay of this order pending any appe

is denied.

IT IS SO ORDERED.

This the 24th day of August, 1970.

FOR THE PANEL.

Srpney O. SMITH, JR.

United States District J

APPENDIX “C”

AMENDED JUDGMENT OF UNITED STATES DisTRICT COURT

OctToser 13, 1970

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Mary Dog, et al :

Crv1t ACTION

vs.

> NuMBER 13676

ArTtHUR K. BOLTON, as

Attorney General of the

State of Georgia; et al

Since the Court’s opinion of July 31, 1970, several mo-

tions have been filed necessitating this opinion and order.

MOTION OF AMICUS CURIAE

Ferdinand Buckley filed a motion on September 3,

1970, to alter or amend the Court’s judgment of August

25, 1970, to rule on several of his earlier motions and

prayers. Accordingly, that judgment is hereby amended

in the following (See FN) respect:

Mr. Buckley’s motion for reconsideration of the order

revoking his appointment as guardian ad litem for the

embryo (or fetus), and his motion to intervene in any

representative capacity on behalf of the embryo or fetus

is denied. This ruling makes it unnecessary, and the

Court declines, to rule on the prayers in the answer and

counterclaim Mr. Buckley filed before revocation of his

appointment as guardian ad litem.

2-c

MOTIONS OF JANE ROE

Jane Roe petitions for leave to intervene as a plaintiff

moves for a temporary restraining order, and asks that

the Court clarify and enforce its opinion of July 31, 1970,

Said petition, and accordingly also the motion and the

request are denied for two reasons.

First, the Court is informed by counsel for all cop.

cerned that Georgia Baptist Hospital has reconsidered

its earlier decision and subsequently granted Jane Roe’s

application for an abortion. Said action renders the peti-

tion of Jane Roe moot, there now being no sufficient

collision of inierests between Jane Roe and the defend.

ants.

Second, Jane Roe’s petition to intervene makes it clear

that her controversy was with Georgia Baptist Hospital,

and only tangentially with the defendants in this case.

Under such circumstances there is no showing that Mary

Doe—representing the class of pregnant women denied

abortions because of the Georgia statute attacked—could

not adequately represent the tangential interest of Jane

Roe in this action. See Allen Calculators, Inc. v. National

Cash Register Co., 322 U. S. 137, 141 (1944); Durkin »,

Pet Milk Co., 14 F.R.D. 374 (W.D. Ark. 1953).

In spite of the above, the motion presents an aspect of

the case which justifies some amplification of the pre-

vious declaratory judgment. The court concludes that

this should be done by way of amendment sua-sponte.

Rule 60(b)(6); Klapcott v. United States, 335 U. S. 601

(1948); Bros. Incorporated v. W. E. Grace Mfg. Co., 320

F.2d 594 (5th Cir. 1963).

The problem relates to the role and function of the

“abortion committees” in the several hospitals. Ga. Code

§ 26-1202(5). The thrust of the original opinion was to

carry out the apparent intent of the Georgia legislature

_—

3-c

by making the ultimate decision on individual abortions

a medical one. However, in line with constitutional prin-

ciples, the ultimate decision cannot be restricted to the

three reasons stated in the statute. This left the abortion

committee free to decide whether an abortion was

“necessary” on the broader medical basis, namely, the

totality of circumstances surrounding each patient.

From the motion it is apparent that those committees

who have voluntarily adopted the standards promul-

gated by the American College of Obstetricians and

Gynecologists as controlling have placed themselves in

the position of being restricted by the same reasons

stated in the statute.’ What is denied directly cannot be

accomplished indirectly. It follows that the abortion com-

mittees cannot be limited to the stated reasons as the sole

basis for approval of an individual abortion, nor can they

so limit themselves by the adoption of such standards.

Any such action by a hospital committee is declared to

be an unconstitutional exercise of delegated power:

In sum, the statutory processes of approval are left

standing. The patient is required to obtain the approval

of (1) the certifying physician, (2) the two consulting

physicians, and (3) the abortion committee “of the ad-

1The Georgia statute requires the hospital to apply standards pro-

mulgated by the Joint Commission on the Accreditation of Hospitals.

No such restrictive reasons for approval of an abortion are contained

therein. However, the voluntary standards promulgated by the

American College of Obstetricians and Gynecologists in part limit

the grounds for abortion to the three stated statutory reasons: injury

to health of the mother; danger of grave physical or mental defect

to the child; and pregnancy due to rape. Any such limiting restric-

tions, as seen, must fail. Likewise, lack of consent by the husband,

while it may freely be considered by the committee, may not be

automatically established as an absolute bar.

By way 6f additional comment, good faith administration of the

statute as now constituted would prohibit a committee from secretly

restricting abortions to those statutory reasons, which the court has

already deleted. To the contrary, all relevant factors should be con-

sidered and an informed medical judgment made.

+e

mitting hospital. Failure to obtain approval at any 1ével

necessarily precludes abortion on that application. A

majority of the abortion committee shall control its ac.

tion, whether for approval or for disapproval.

To the extent stated herein, the original opinion is

modified.

IT ISSO ORDERED.

This the 13 day of October, 1970.

Lewis R. Morcan

United States Circuit Judge

Srpney O. SMITH, JR.

United States District Judge

ALBERT J. HENDERSON, JR.

United States District Judge

APPENDIX “D”

Notice oF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Mary DoE; PETER G. Bourne; :

RopertT HATCHER; LILias L. JAMES;

James WATERS; CORBETT TURNER;

Newton Lonc; EpwarD LEADER;

Wr1LL1aM H. Biccers; GEORGE VIOLIN;

Patricia S. SMITH; JENNIE WILLIAMS;

JupiTH BOURNE; SUZANNE DUNAWAY;

Jovce Parks; Lou Ann Ir10n; Mary

Lona; J. Emmett Hernpon; SAMUEL L.

WILLIAMS; EUGENE PICKETT; RICHARD

Devor; DONALD DAUGHTRY; JUDITH

ZORACH and KAREN WEAVER, residents

of the State of Georgia;

PLANNED PARENTHOOD ASSOCIATION OF

Atianta, INc., a Georgia corporation;

and GEorGIA CITIZENS FOR HOSPITAL

Azortion, INnc., a Georgia corporation,

for and on behalf of all persons and

organizations similarly situated,

Plaintiffs, Civit ACTION

vs. - No. 13676

ArtHuUR K. BOLTON, as

Attorney General of the

State of Georgia;

Lewis R. SLATON as

Distiict Attorney of

Fulton County, Georgia;

and HERBERT T. JENKINS, aS

Chief of Police of the

City of Atlanta, Georgia ’

2-d

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that, the above named plaj

tiffs, hereby appeal to the Supreme Court of the United

States from judgment in this action dated the 24th day of

August, 1970, in which the plaintiffs’ application for ap

injunction was denied. This appeal is taken pursuant tp

28 U.S.C. sec. 1253. This 18 day of September, 1970,

Attorney for Plaintiffs

s / Marcie Pitts HAMEs

Marcle Pitts HAMES

210 Brighton Road, N. E.

Atlanta, Georgia 30309 —

355-8998

TOBIANE SCHWARTZ

153 Pryor Street, S. W.

Atlanta, Georgia 30303

524-5811

ELIZABETH ROEDIGER RINDSKOPF

551 Forrest Road, N. E.

Atlanta, Georgia 30312

522-9135

BLEED THROUGH

APPENDIX “E”

AMENDED NotIcE OF APPEAL TO THE SuPREME

CouRrT OF THE UNITED STATES

UNITED STATES DISTRICT COURT

NORTHERN DIsTRICT OF GEORGIA

ATLANTA DIVISION

Mary Dor; Peter G. Bourne; :

RoBerT HATCHER; LILLas L. JAMES;

James WATERS; CORBETT TURNER;

Newton Lonc; EpwARD LEADER;

WILLIAM H. BiccEers; GEORGE VIOLIN;

Patricia S. SMITH; JENNIE WILLIAMS;

JupiTH BouRNE; SUZANNE DUNAWAY;

Joyce Parks; Lou ANN IRION; MARY

Lonc; J. EMMETT HERNDON; SAMUEL L.

WILLIAMS; EUGENE PICKETT; RICHARD

Devor; DONALD DAUGHTRY; JUDITH

ZoRACH and KAREN WEAVER, residents

of the State of Georgia;

PLANNED PARENTHOOD ASSOCIATION OF

AtiantA, INc., a Georgia corporation;

and GEorGIA CITIZENS FOR HOSPITAL

AsorTion, INc., a Georgia corporation,

for and on the behalf of all persons and

organizations similarly situated,

Plaintiffs,

vs. > No. 13676

ArtuuR K. BOLTON, as

' Attorney General of the

State of Georgia;

Lewis R. SLATON as

_ District Attorney of

Fulton County, Georgia;

and HERBERT T. JENKINS, as

Chief of Police of the

City of Atlanta, Georgia a

a

Civi ACTION

2-e

AMENDED NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that, the above named plain.

tiffs, hereby appeal to the Supreme Court of the United .

States from judgment in this action dated the 24th day of

August, 1970, as amended by order entered October 13,

1970, in which the plaintiffs’ application for an injune.

tion was denied. This appeal is taken pursuant to 28

U.S.C. sec. 1253. This 30 day of October, 1970.

Attorney for Plaintiffs

s / Marcie Pitts HAMES

MarcIE Pitts HAMES

210 Brighton Road, N.E.

Atlanta, Georgia 30309

355-8998

TOBIANE SCHWARTZ

153 Pryor Street, S.W.

Atlanta, Georgia 30303 ;

ELIZABETH ROEDIGER RINDSKOPF

551 Forest Road, N.E.

Atlanta, Georgia 30312

522-9135

eIEFCEND THR OUGH

_ ———

APPENDIX “F”

Text oF GEORGIA ABORTION STATUTE

Ga. Code § 26-1201. Criminal Abortion

Except as otherwise provided in Section 26-1202, a

person commits criminal abortion when he administers

any medicine, drug or other substance whatever to any

woman or when he uses any instrument or other means

whatever upon any woman with intent to produce a mis- -

carriage Or abortion. (Acts 1968, pp. 1249, 1277.)

96-1202. Exception

(a) Section 26-1201 shall not apply to an abortion per-

formed by a physician duly licensed to practice medicine

and surgery pursuant to Chapter 84-9 or 84-12 of the

Code of Georgia of 1933, as amended, based upon his best

clinical judgment that an abortion is necessary because:

_ (1) A continuation of the pregnancy would en-

danger the life of the pregnant woman or would

seriously and permanently injure her health; or

(2) The fetus would be very likely be born with a

grave, permanent, and irremediable mental or physi-

cal defect; or

(3) The pregnancy resulted from forcible or statu-

tory rape.

(b) No abortion is authorized or shall be performed

under this section unless each of the following conditions

is met:

(1) The pregnant woman requesting the abortion

certifies in writing under oath and subject to the

penalties of false swearing to the physician who

proposes to perform the abortion that she is a bona

fide legal resident of the State of Georgia.

(2) The physician certifies that he believes the

woman is a bona fide resident of this State and that

7

2-f

he has no information which should lead him to

believe otherwise.

(3) Such physician’s judgment is reduced to writ-

ing and concurred in by at least two other physicians

duly licensed to practice medicine and surgery pur-

suant to Chapter 84-9 of the Code of Georgia of 1933;

as amended, who certify in writing that based upon

their separate personal medical examinations of the

pregnant woman, the abortion is, in their judgment

necessary because of one or more of the reasons

enumerated above.

(4) Such abortion is performed in a hospital

licensed by the State Board of Health and accredited

by the Joint Commission on Accreditation of Hos-

pitals.

(5) The performance of the abortion has been

approved in advance by a committee of the medical

staff of the hospital in which the operation is to be

performed. This committee must be one established

and maintained in accordance with the standards

promulgated by the Joint Commission on the Ac-

creditation of Hospitals, and its approval must be by

\ a majority vote of a membership of not less than

three members of the hospital’s staff; the physician

proposing to perform the operation may not be

counted as a member of the committee for this pur-

pose.

(6) If the proposed abortion is considered neces-

sary because the woman has been raped, the woman

makes a written statement under oath, and subject

to the penalties of false swearing, af .the date, time

and place of the rape and the name of the rapist, if

known. There must be attached to this statement a

certified copy of any report of the rape made to any

law enforcement officer or agency and a statement

3-f

by the solicitor general of the judicial circuit where

the rape occurred or allegedly occurred that, accord-

ing to his best information, there is probable cause

to believe that the rape did occur.

(7) Such written opinions, statements, certifi-

cates, and concurrences are maintained in the per-

manent files of such hospital and are available at all

reasonable times to the solicitor general of the judi-

cial circuit in which the hospital is located.

(8) A copy of such written opinions, statements,

certificates, and concurrences is filed with the Di-

rector of the State Department of Public Health

within ten (10) days after such operation is per-

formed.

(9) All written opinions, statements, certificates,

and concurrences filed and maintained pursuant to

Paragraphs (7) and (8) of this subsection shall be

confidential records and shall not be made available

for public inspection at any time.

(c) Any solicitor general of the judicial circuit in which

an abortion is to be performed under this section, or any

person who would be a relative of the child within the

second degree of consanguinity, may petition the superior

court of the county in which the abortion is to be per-

formed for a declaratory judgment whether the perform-

ance of such abortion would violate any constitutional

or other legal rights of the fetus. Such solicitor general

may also petition such court for the purpose of taking

issue with compliance with the requirements of this sec-

tion. The physician who proposes to perform the abortion

and the pregnant woman shall be respondents. The peti-

tion shall be heard expeditiously and if the court ad-

judges that such abortion would violate the constitu-

tional or other legal rights of the fetus, the court shall so

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declare and shall restrain the physician from performing

the abortion.

(d) If an abortion is performed in compliance with

this section, the death of the fetus shall not give Tise to

any claim for wrongful death.

(e) Nothing in this section shall require a hospital to

admit any patient under the provisions hereof for the

purpose of performing an abortion, nor shall any hospital

be required to appoint a committee such as contemplated

under subsection (b) (5). A physician, or any other per.

son who is a member of or associated with the staff of a

hospital, or any employee of a hospital in which an abor-

tion has been authorized, who shall state in writing an

objection to such abortion on moral or religious grounds

shall not be required to participate in the medical pro-

cedures which will result in the abortion, and the refusal

of any such person to participate therein shall not form

the basis of any claim for damages on account of such

refusal or for any disciplinary or recriminatory action

against such person.

26-1203. Punishment

A person convicted of criminal abortion shall be pun-

ished by imprisonment for not less than one nor more

than 10 years. (Acts 1968, pp. 1249-1280.)