Baird v. Bellotti

Decision Date28 April 1975
Docket NumberCiv. A. No. 74-4992-F.
Citation393 F. Supp. 847
PartiesWilliam BAIRD et al., Plaintiffs, v. Francis BELLOTTI, Attorney General of the Commonwealth of Massachusetts, et al., Defendants, Jane Hunerwadel, Defendant-Intervenor.
CourtU.S. District Court — District of Massachusetts

COPYRIGHT MATERIAL OMITTED

Roy Lucas, Washington, D. C., Joan C. Schmidt, Boston, Mass., for plaintiffs.

Kenneth Behar, Asst. Atty. Gen., Boston, Mass., for defendant Quinn.

John V. Mahoney, II, Boston, Mass., for D. A. Garrett Byrne.

Mary T. Welby, Brian A. Riley, Mary Laura Russell, Robert Reynolds, Boston, Mass., for intervenors, Parents.

John Reinstein, Roger Stokey, Goodwin, Procter & Hoar, Boston, Mass., for Amici Curiae, Civil Liberties Union-Planned Parenthood.

George G. Burke, Dedham, Mass., Philip A. Rollins, New Bedford, Mass., Matthew H. Ryan, Jr., Springfield, Mass., John P. S. Burke, Salem, Mass., John M. Callahan, Northampton, Mass., John J. Droney, East Cambridge, Mass., A. Stanley Littlefield, Brockton, Mass., William T. Buckley, Worcester, Mass., for defendants district attorneys.

Before ALDRICH, Senior Circuit Judge, JULIAN, Senior District Judge, and FREEDMAN, District Judge.

OPINION

ALDRICH, Senior Circuit Judge.

This is an action brought as a class action, to enjoin, as unconstitutional on its face, the enforcement of a Massachusetts statute, Mass.G.L. c. 112, § 12P, enacted to take effect November 1, 1974, by Mass.Acts 1974, c. 706. The statute makes it a criminal offense to perform an abortion upon a minor without the consent of both parents as well as that of the minor, with certain exceptions, the most important being that the parents' refusal may be overruled by a superior court judge "for good cause shown." The pertinent paragraph reads as follows.

"Section 12P(1). If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother."

Standing.

Plaintiffs are William Baird; Mary Moe I, hereinafter Mary Moe;1 Parents Aid Society, Inc., hereinafter Parents Aid, and Gerald Zupnick. Defendants are Francis Bellotti, Attorney General of the Commonwealth;2 Garrett Byrne, district attorney for the County of Suffolk, and the district attorneys of all other counties in Massachusetts. Intervening defendants are Kathleen Roth et al., whom we permitted to intervene on behalf of, and as representatives of, Massachusetts parents having unmarried minor daughters who are, or who might become,3 pregnant. No evidence or stipulation was introduced as to any intervenors except Jane Hunerwadel. To be consistent, n. 1, ante, we must dismiss as to all the others. Mrs. Hunerwadel has three minor daughters, one in her teens, none pregnant as far as she knows. Like defendants, she does not know the identity of Mary Moe, and represents her only in the general sense that she may represent parents of all nubile minor females in Massachusetts who may, in their opinion unwisely or improperly, wish to have an abortion without informing them.

Plaintiff Mary Moe is an unmarried minor residing at home with her parents in Massachusetts. At the time of the institution of the action she was 16 years of age and about 8 weeks pregnant.4 She has not informed her parents of her condition, and does not wish to. Her father had told her, in connection with the pregnancy of a contemporary friend, that if that happened to her he would evict her and kill her boy friend. She did not know how far to believe this, except that she felt certain he would take some physical action against the boy. The boy, also 16, was a three-months acquaintance with whom she is no longer associating. Her relations with and affection for her family are "average good." There was no sexual instruction, no one caring to initiate the subject. There is no religious factor. She knew vaguely about contraception, but had no access to materials, and "didn't care to wait until she was 18." Her reasons for not informing her parents were in part apprehension of what might happen to her as a result of their learning she had had intercourse, in part the fear of what would happen to her boy friend, and in part the desire to spare her parents' feelings. She did confide in her older sister. Pregnancy would not have kept her from attending school.5

In connection with Mary Moe's capacity to represent a plaintiff class, F.R. Civ.P. 23(a)(4), we find, following examination and cross-examination in camera, that she is of average intelligence and awareness; that her emotional age at least corresponds with her chronological age, and that she had made a considered decision, before she learned of her pregnancy, that in case of pregnancy she would seek to abort, and that she was competent to make and effectuate that decision. If relevant, she did not learn of the other plaintiffs until someone else had determined that she was pregnant. We find that she is fairly representative of a substantial class of unmarried minors in Massachusetts who have adequate capacity to give a valid and informed consent, and who do not wish to involve their parents. This, of course, requires standing, but there can be no question of Mary Moe's standing to bring this action. Though the statute does not in terms subject her to criminal liability, its enforcement6 would prevent her, absent violation by someone, from obtaining an abortion without compliance with its terms. Thus, she exhibits "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, thereby demonstrating "a logical nexus . . . between the status asserted by the litigant and the claim she presents . . . ." Flast v. Cohen, 392 U.S. 83, 102, 88 S. Ct. 1942, 1953, 20 L.Ed.2d 947. See Roe v. Wade, ante, 410 U.S. at 124, 93 S.Ct. 705. Abele v. Markle, 2 Cir., 1971, 452 F.2d 1121, 1125.7

Plaintiff William Baird is the founder and director of plaintiff Parents Aid. He describes himself as being, among other things, a pioneer and advocate for the free availability of abortions. He has a strong personal interest in that sense, but no financial or other tangible concern. But cf. Sierra Club v. Morton, 1972, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636; Data Processing Service v. Camp, 1970, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184. Baird claims standing because he wishes to assist Parents Aid, which allegedly, if the statute were in force, would make him an accessory. See Griswold v. Connecticut, 1965, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510. Arguably, this is too remote an interest to confer standing. If any citizen who might like to violate a law may contest it, the doctrine of standing would be meaningless. Cf. Roe v. Wade, ante, 410 U.S. at 128, 93 S.Ct. 705, and cases cited. On the other hand, Baird's contemplated activities are far less speculative than those there found insufficient. As director of Parents Aid, Baird for some time has provided minors with abortion counseling and services, and the mere continuation of this activity, the mere preservation of the status quo, would subject him to criminal liability. Cf. Griswold, ante, 381 U.S. at 481, 85 S.Ct. 1678; Abele, ante, 452 F.2d at 1125. In the light of the unassailable standing of other plaintiffs, however, see post, we do not pass on the question of Baird's standing.

Plaintiff Parents Aid is organized as a Massachusetts non-profit corporation. It provides, through its medical director and supporting personnel, abortions for varying fees, depending upon ability to pay. About 15% it performs without charge. The Society's standing is conferred not only by its direct subjection to criminal liability, but also by the recognition that even general enforcement of the statute against physicians alone would seriously interfere with its ongoing activities. Doe v. Bolton, 1973, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201; Truax v. Raich, 1915, 239 U.S. 33, 38-39, 36 S.Ct. 7, 60 L.Ed. 131.

Plaintiff Gerald Zupnick, a resident of New York, is a physician licensed in Massachusetts, and is Parents Aid's medical director. He works regularly at the latter's place of business two days a week, performing abortions on a fee basis. Dr. Zupnick's standing in this action is beyond question. The statute at issue applies directly to his activities, and although Dr. Zupnick was receiving a substantial income from performing these procedures, we credit his testimony that the threat of prosecution would force him to cease.

We find that Mary Moe, Parents Aid Society, Inc., and Gerald Zupnick have standing, as representative party plaintiffs, and Jane Hunerwadel as intervenor. From the standpoint of their being due and adequate class representatives, we find they have a strong personal interest and are competently and vigorously represented by legal counsel, and we certify this as a valid class action as to all.

Before leaving the question of standing we note that Parents Aid and Dr. Zupnick by hypothesis cannot lawfully, with exceptions too unusual for us to be concerned with, perform abortions upon minors incapable of consenting. Nonetheless, we hold that they do have standing to attack the statute as applied to all minors, at least insofar as it requires the consent of both parents. We find nothing about abortions that requires the minor's interest to be treated differently from other medical and surgical procedures, as to which we find the custom to be to proceed on the consent of one parent.

Controversy.

Defendants contend that there is no "case or controversy" because none of the plaintiffs has been actively, or...

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