Abele v. Markle

• Citation: 351 F. Supp. 224
• Decision Date: 20 September 1972
• Docket Number: Civ. No. B-521.
• Court: U.S. District Court — District of Connecticut
• Parties: Janice ABELE et al. v. Arnold MARKLE et al.

351 F. Supp. 224

Janice ABELE et al. v. Arnold MARKLE et al.

Civ. No. B-521.

United States District Court, D. Connecticut.

September 20, 1972.

Marilyn P. A. Seichter, Hartford, Conn., Catherine G. Roraback, Ann C. Hill, Co-counsel, New Haven, Conn., Kathryn Emmett, Bridgeport, Conn., Marjorie Gelb, West Hartford, Conn., Barbara Milstein, New Haven, Conn., Nancy Stearns, New York City, for plaintiffs.

Daniel Schaefer, Asst. Atty. Gen., George D. Stoughton, Chief Asst. State's Atty., Hartford, Conn., for defendants.

Peter Tyrrell, Waterbury, Conn., and Joseph P. Nucera, Bridgeport, Conn., amicus curiae, for defendants.

Before LUMBARD, Circuit Judge, and CLARIE and NEWMAN, District Judges.

MEMORANDUM OF DECISION

NEWMAN, District Judge:

The issue in this case is the constitutionality of Connecticut's recently enacted law prohibiting all abortions except those necessary to save the physical life of the mother.¹ Public Act No. 1, May 1972, special session. The case is an outgrowth of previous litigation before the same judges who comprise this Court. Our prior decision, rendered on April 18, 1972, declared unconstitutional §§ 53-29, 53-30, and 53-31 of the Connecticut General Statutes, statutes enacted in 1860 that had prohibited abortions subject to virtually the same exception as the present statute and had also prohibited advice and devices concerning abortions. Abele v. Markle, 342 F.Supp. 800 (D.Conn.1972). Plaintiffs in this and the earlier litigation are several hundred women including doctors, nurses, social workers and others who wish to advise concerning abortions, and pregnant women who wish to have an abortion. Defendants in both cases are the state attorney general and the state's attorneys, the latter having jurisdiction to prosecute for violations of the challenged statute.

After our earlier decision, the Connecticut General Assembly met in a special session and on May 23, 1972, enacted Public Act No. 1. Thereafter plaintiffs filed in the prior case a motion to enjoin the enforcement of the new statute.² On May 31, 1972, the Chief Judge of this Circuit designated the three judges who had heard the prior case to be members of a new three-judge district court, pursuant to 28 U.S.C. § 2284, to hear the constitutional challenge to the new statute. Believing that this challenge should be heard in a separate case, we ordered that the motion papers be considered a complaint and filed with a new case number.³ A hearing was subsequently held at which both sides presented witnesses. In addition various documents and photographs have also been presented and considered, and we have had the benefit of helpful briefs by amici curiae supporting both sides.

The substantive provisions of the 1972 legislation prohibiting abortions are quite similar to the 1860 statutes. However, the 1860 exception which had permitted an abortion when necessary to preserve the life of the woman or that of the unborn child has been limited in the new statute to an abortion "necessary to preserve the physical life of the mother." The maximum penalties which had been two years for the woman, five years for performing an abortion, and one year for encouraging an abortion have all been set at five years. More significantly, while the former statutes made no explicit reference to the state interest they were purporting to advance, the first section of the 1972 legislation reads as follows:

"The public policy of the state and the intent of the legislature is to protect and preserve human life from the moment of conception . . . ."⁴

Thus the Connecticut General Assembly has expressed its judgment, in the text of the challenged statute, that the life of a fetus should be protected.⁵ That specification of legislative purpose raises the constitutional question of whether the state has power to advance such a purpose by abridging almost totally the constitutionally protected right of a woman to privacy and personal choice in matters of sex and family life.

The existence of a woman's constitutional right to such privacy has been set forth by the Supreme Court. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965). Indeed, Baird may have anticipated the outcome of cases such as this when the Court observed:

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S. at 453, 92 S.Ct. at 1038 (second emphasis added).

In any event, the woman's right exists, and there is no question that the statute here challenged is a direct abridgement of her right. It is not a regulation of the manner in which abortions may be performed, such as in appropriate medical facilities or by appropriate medical personnel. It is an absolute prohibition. And the prohibition applies to every case of a pregnant woman with the sole exception of an abortion necessary to preserve the woman's life.

Griswold illustrates two approaches to the constitutional issue posed by this case. The opinion of Justice Douglas appears to posit the right of marital privacy as an absolute right, totally immune from state abridgement. The opinions of Justices Harlan, White and Goldberg, however, all concede that the right may be abridged if the state can demonstrate that its regulation is founded upon a sufficiently compelling state interest.

It may well be that the right of a woman to decide whether or not to carry to term the fetus within her is a right immune from total governmental abridgement. Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Supreme Court has observed that the Meyer and Pierce decisions "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (emphasis added). The right to an abortion is of even greater concern to the woman than the right to use a contraceptive protected in Griswold v. Connecticut, supra, for contraception is not the only means of preventing pregnancy, whereas abortion is the only means of terminating an unwanted pregnancy. The significance of the woman's right might be discounted somewhat if she simply changed her mind after a deliberate decision to become pregnant. But the significance of the right is extremely high if pregnancy results because the woman is ignorant, or because through no fault of her own a contraceptive device has failed, and the significance is at the utmost when pregnancy results because the woman has been raped. The statute before us abridges the woman's right in all of these situations.

However, since most members of the majority in Griswold sought to apply the compelling state interest test, we are obliged to do the same.⁶ Normally that would require making the difficult judgment as to whether the state interest asserted is sufficiently compelling to justify abridgement of the woman's constitutional right. But there are two distinguishing aspects of this case that require consideration before the state interest can be weighed against the woman's right. The first concerns the nature of the rights possessed by the fetus for whose benefit the state interest is asserted. The second concerns the nature of the state interest being asserted.

A. The initial inquiry is whether the fetus is a person, within the meaning of the fourteenth amendment, having a constitutionally protected right to life. If it is, then a legislature may well have some discretion to protect that right even at the expense of someone else's constitutional right. But if the fetus lacks constitutional rights, the question then becomes whether a legislature may accord a purely statutory right at the expense of another person's constitutional right.

Our conclusion, based on the text and history of the Constitution and on cases interpreting it, is that a fetus is not a person within the meaning of the fourteenth amendment. There is nothing in the history of that amendment nor in its interpretation by the Supreme Court to give any support whatever to the contention that a fetus has constitutional rights. In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L. Ed.2d 601 (1971), the Supreme Court answered a void-for-vagueness attack upon a District of Columbia abortion statute by construing the statute to permit abortions to protect not only the mother's life and physical health but her mental health as well. If a fetus was a person with a fourteenth amendment right not to be deprived of life except by due process of law, it is inconceivable that the Court would have resolved a doubtful question of statutory construction by enlarging the situations in which such a life could be extinguished. Moreover, while Vuitch did not rule on either the constitutional right of the fetus or the constitutional right of the woman, the decision casts not the slightest doubt on the validity of a statute permitting an abortion to protect a woman's mental health. Surely the Court would have withheld even tacit approval of abortions in such circumstances if the consequence was the termination of a life entitled to fourteenth amendment protection.

No decision has come to our attention holding that a fetus has fourteenth amendment rights. The issue was squarely faced by at least two of the courts that have...