Young Women's Christian Ass'n of Princeton, NJ v. Kugler

• Decision Date: 29 February 1972
• Docket Number: 431-70.,Civ. A. No. 264-70
• Citation: 342 F. Supp. 1048
• Parties: YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF PRINCETON, NEW JERSEY et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, Defendant. Joanne ABRAMOWITZ, et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

342 F. Supp. 1048

YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF PRINCETON, NEW JERSEY et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, Defendant.

Joanne ABRAMOWITZ, et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, et al., Defendants.

Civ. A. Nos. 264-70, 431-70.

United States District Court, D. New Jersey.

February 29, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

No. 264-70:

Roy Lucas, New York City, and Richard I. Samuel, Newark, N. J., for plaintiffs.

George F. Kugler Jr., Atty. Gen. of New Jersey, by Barry H. Evenchick, Deputy Atty. Gen., for defendant.

No. 431-70:

Rita L. Murphy, Laura Jane Kahn, Jeffrey E. Fogel, Newark, N. J., for plaintiffs Hannah Borenstein, Gail Burt, Frances M. Catrambone, Emmillie Fox, Ursula Good, Mary Ann Hamilton, Margaret Holmes, Barbara Jackson, Marguerite Joralemon, Irene Montgomery, Joanne Noonan, Martha Paravati, Marilyn Speziale, Alberta Thomas, Betty Thomas, Deborah Tripp, Mercedes Valle, Mary Wright and Anna Marie Zangari.

Ann Marie Boylan, pro se.

Nadine Taub, Newark, N. J., for all other plaintiffs; Nancy Stearns, Newark, N. J., of counsel.

George F. Kugler, Jr., Atty. Gen. of New Jersey, by Barry H. Evenchick, Deputy Atty. Gen., for defendants George F. Kugler, Jr. and Lloyd W. McCorkle.

Lowenstein, Sandler, Brochin, Kohl & Fisher, Newark, N. J., for defendant Newark Beth Israel Medical Center.

Planned Parenthood Federation of America, Inc., by Hannoch, Weisman, Stern & Besser, Newark, N. J.; Greenbaum, Wolff & Ernst, New York City, of counsel, amici curiae in support of plaintiffs in No. 264-70.

New Jersey Right to Life Committee, Christian Action Foundation, New Jersey Catholic Conference, by Stephen J. Foley, Asbury Park, N. J., amici curiae in opposition in both cases.

Before FORMAN, Circuit Judge, and BARLOW and GARTH, District Judges.

OPINION

FORMAN, Circuit Judge.

Two cases raising numerous constitutional challenges to the New Jersey abortion and related statutes are presented for disposition here. Plaintiffs in the first suit, Y.W.C.A. v. Kugler, No. 264-70 (Y.W.C.A.), are nine physicians, two of whose licenses have been revoked following prosecution under the challenged statutes; three women appearing for themselves and on behalf of the membership of the New Jersey Branch of the Women's International League for Peace and Freedom; and one woman appearing for herself and on behalf of the Young Women's Christian Association of Princeton, New Jersey. George F. Kugler, Jr., the Attorney General of the State of New Jersey, is named as defendant. Plaintiffs contend that N.J.S.A. 2A:87-1¹ and 45:9-16² deprive physicians and women of constitutional rights guaranteed by the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments. Jurisdiction is invoked under 28 U.S.C. ?? 1331, 1343, 2201, 2202, 2281, 2284 and 42 U.S.C. ? 1983.

Plaintiffs in the second suit, Abramowitz v. Kugler, No. 431-70 (Abramowitz), are approximately 1200 women, appearing for themselves and on behalf of all other New Jersey women similarly situated and allegedly suffering violations of their constitutional rights. In addition to the Attorney General of the State of New Jersey, plaintiffs name as defendants Lloyd W. McCorkle, Commissioner of Institutions and Agencies of the State of New Jersey, and Newark Beth Israel Medical Center.³ Plaintiffs claim that N.J.S.A. 2A:87-1,⁴ 2A:87-2,⁵ 2A:170-76⁶ and 45:9-16⁷ violate the rights of women under the First, Fourth, Fifth, Ninth, Fourteenth and Nineteenth Amendments to the Constitution. Jurisdiction is invoked under the foregoing Amendments and under 28 U.S.C. ?? 1331, 1343, 2201, 2202, 2281, 2284, 42 U.S.C. ? 291 et seq. (the Hill-Burton Act), 42 U.S.C. ? 1396 et seq. (Medicaid), and 42 U.S.C. ? 1983.

A three-judge court was convened pursuant to 28 U.S.C. ? 2284, in both cases, which were consolidated for purposes of a hearing and all further proceedings. Briefs were filed and oral arguments were presented. Plaintiffs seek summary judgment on requests for a declaratory judgment that the statutes respectively challenged are unconstitutional, and seek injunctions against their operation and enforcement. In addition, two of the plaintiff-physicians in Y.W.C.A. seek expungement of criminal records resulting from their convictions under the statute, and the return of their medical licenses, by order of this court.

Permission to appear as amici curiae was granted to the Planned Parenthood Federation of America, the New Jersey Right to Life Committee, the Christian Action Foundation and the New Jersey Catholic Conference, on all of whose behalf briefs were submitted.

I. STANDING

Defendants first contend that plaintiffs lack standing because they have not shown the existence of a case or controversy sufficient to invoke the jurisdiction of the court, and the issues raised are of a political and social, rather than a legal, nature and should properly be left to the state legislature for resolution.

Article III, sec. 2 of the Constitution, which limits judicially cognizable issues to those involving an actual "case" or "controversy," is the source of the standing requirement and, although outwardedly simple, reflects principles fundamental to the operation of our judicial system:

"In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine."⁸

In addition, the standing requirement reflects a judicial rule of self-restraint, designed to avoid passing upon prematurely raised or ill-defined controversies involving constitutional questions.⁹

Since the passage of the Declaratory Judgments Act in 1934,¹⁰ it has been said that the Act "intended to liberalize conceptions of justiciability".¹¹ It was not, however, intended to enlarge the jurisdiction of the courts,¹² and has in no way diminished the necessity of a party seeking a declaratory judgment to establish a case or controversy and thus, the standing requisite to the maintenance of a suit. This is manifest from the language of the statute itself¹³ and from the Supreme Court's exposition of the prerequisites to a declaratory judgment:

"Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."¹⁴

Expressing these principles in another way, the Court has stated that:

"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court

so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)."¹⁵

These principles have been reaffirmed in Golden v. Zwickler:¹⁶

"No federal court, whether this Court or a district court, has `jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N. Y. & P. S. S. Co. v. Commissioners of Immigration, 113 U.S. 33, 39 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)." (Emphasis supplied).

Examining the allegations of plaintiff-physicians in Y.W.C.A. in light of these principles it is clear that they have fulfilled both constitutional and judicially formulated standing requirements. They allege that the abortion statute is vague on its face and as applied in violation of the specificity requirement of the Fourteenth Amendment; that it deprives physicians of the right to practice medicine according to the highest standard of medical practice, and that it violates the rights of physicians and their women patients to privacy in their physician-patient relationships, as guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

As a result of prosecutions under the statute, two of the plaintiff-physicians have lost their licenses to practice medicine and one was incarcerated at the time this action was commenced. In addition, all allege that they have been forced to turn away patients seeking advice and information about the possibility of obtaining abortions.

In light of these circumstances, Tileston v. Ullman,¹⁷ emphasized by defendants to oppose standing, is clearly distinguishable. In Tileston, a physician challenged Connecticut's contraceptive statutes as violative of his patients' constitutional rights, but failed to allege any violation of his own personal or property rights. On the basis of these allegations it was held that no case or controversy existed as to him. In the present case, on the contrary, physicians have fully alleged past, present and continuing violations of their own liberties. Nor is this court persuaded by the reasoning applied in Doe v. Randall,¹⁸ where the court held that no case or controversy had been presented by a physician who had performed an abortion, but against whom no indictment had been returned. The fact of prior prosecutions under the abortion statute, and the allegations of...