Byrn v. New York City Health & Hospitals Corp.

• Decision Date: 24 February 1972
• Citation: 38 A.D.2d 316,329 N.Y.S.2d 722
• Court: New York Supreme Court — Appellate Division
• Parties: Robert M. BYRN, as Guardian Ad Litem, etc., Respondent, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al., Appellants, et al., Defendants.

Page 722

329 N.Y.S.2d 722

38 A.D.2d 316

Robert M. BYRN, as Guardian Ad Litem, etc., Respondent, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Feb. 24, 1972.

J. Lee Rankin, Corp. Counsel (James Nespole, New York City, Leonard Bernikow and Yvette Harmon, New York City, of counsel), for appellant New York City Health & Hospitals Corp.

Louis J. Lefkowitz, Atty. Gen. (Joel Lewittes, New York City, of counsel), appellant in person.

Hahn, Hahn & Ford, Brooklyn (Thomas J. Ford, Brooklyn, of counsel), for respondent.

Nancy Stearns, New York City, Rhonda Copelon Schoenbrod, Brooklyn and Kenneth Norwick, New York City, for intervenors.

Thomas J. Dillon, Jamaica, for Supreme Anchor Club of America, Inc., amicus curiae.

Marilyn Elaine Meadors, Edith M. Novack, and K. Randett Walster, New York City, for New Women Lawyers and The Women's National Abortion Action Coalition, amici curiae.

Carol Bellamy, New York City, for National Organization for Women, New York, amicus curiae.

Elizabeth Holtzman and Edith M. Vovack, New York City, for Women's Rights Committee of the New Democratic Coalition, amicus curiae.

Greenbaum, Wolff & Ernst, New York City (Harriet F. Pilpel, Frederic S. Nathan, Nancy F. Wechsler and Ruth Jane Zuckerman, New York City, of counsel), for Citizens Committee for Children of New York, Inc., Citizens Union of the City of New York, Clergy and Lay Advocates for Hospital Abortion Performance (formerly Clergy Consultation Service), Committee on Public Affairs of the Community Service Society of New York, Federation of Jewish Philanthropies of New York, Federation of Protestant Welfare Agencies, Inc., The New York Chapter of the National Organization for Women, New York State Council of Churches, New York Urban Coalition, Inc., Planned Parenthood Federation of America, Inc., Planned Parenthood of New York City, Inc., State Communities Aid Association (formerly State Charities Aid Association) and Women's City Club of New York, amici curiae.

Before RABIN, P.J., and LATHAM, SHAPIRO, GULOTTA and CHRIST, JJ.

CHRIST, Justice.

Pursuant to an ex parte order of the Supreme Court, Queens County, entered December 3, 1971, the plaintiff, Robert M. Byrn, was appointed guardian ad litem for the infant 'Roe' and all similarly situated members of a class of unborn infants of less than 24 weeks' gestation scheduled for abortion in public hospitals under the operation and control of the defendant New York City Health and Hospitals Corporation (hereinafter called Hospitals Corporation). The purpose of the appointment was to commence this action for a judgment declaring that subdivision 3 of section 125.05 of the Penal Law is unconstitutional and for a permanent injunction restraining the defendant Hospitals Corporation from performing abortional acts other than those necessary to preserve the life of the female. By order to show cause dated December 3, 1971, the guardian moved for a preliminary injunction pending the trial of the action, restraining the above-mentioned Hospitals Corporation from proceeding with abortions other than those necessary to preserve the life of the female. The Hospitals Corporation cross-moved for a change of venue and to vacate the guardianship order.

The cross motion was denied and the motion for a preliminary injunction was granted in an order entered January 7, 1972, the Special Term holding that the guardian had established a strong likelihood that he would ultimately succeed in proving that his wards had a constitutionally-protected right to live, that they would be irreparably damaged if a preliminary injunction were denied and that a balancing of the equities was clearly in favor of the unborn infants. The action was set down for an early trial and the guardian was required to give a $5,000 undertaking. Defendants Hospitals Corporation and Attorney General have appealed and the preliminary injunction and the trial have been stayed pending determination of the appeals.

It would be helpful at the outset to trace briefly the legal history of abortion and its regulation in New York through the years. It is generally believed that abortion of a quick child was a high crime at common law (see, e.g., Evans v. People, 49 N.Y. 86, 88), although one commentator has argued persuasively that, in fact, it was not; that abortion was a purely ecclesiastical offense punishable only by spiritual penalties and that the secular crime of abortion was created by the imagination of Sir Edward Coke who felt strongly that abortion after quickening should be punished and that the purely spiritual penalties of the ecclesiastical courts would not deter the people from it (see, generally, Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a fourteenth-Century Common-Law Liberty? 17 New York Law Forum 335 (1971)).

Whatever the merits of that controversy, New York, by the Laws of 1829, enacted penal provisions making abortion a crime (Rev.Stat. of N.Y., part IV, ch. I, tit. 2, § 9). Every person who administered to a woman pregnant with a quick child any medicine, drug or substance, or used any instrument or other means, with intent to destroy the child, unless it shall have been necessary to preserve the life of the woman, was guilty of manslaughter in the second degree. Procurement of a miscarriage, unless necessary to preserve the life of the mother, was made a misdemeanor (Rev.Stat. of N.Y., part IV, ch. I, tit. 6, § 21).

Preservation of the life of the woman remained the sole justifiable ground for abortion under New York penal statutes and was carried over into subdivision 3 of section 125.05 in the completely revised Penal Law enacted by chapter 1030 of the Laws of 1965, which became effective on September 1, 1967. In the meantime, however, the winds of change had begun to gather force. As indicated in the excellent survey by Professor Richard G. Denzer in his Supplementary Practice Commentary on subdivision 3 of section 125.05 of the Penal Law (McKinney's Cons.Laws of N.Y., Book 39, Pocket Part) 49 of the 52 American jurisdictions (the 50 states, the District of Columbia and Puerto Rico) had criminal abortion statutes in 1965 limiting legal abortions to the single purpose of preserving the life of the prospective mother. In Alabama, Massachusetts and the District of Columbia, preservation of the mother's health was also a ground of justification.

In 1962, however, the American Law Institute published its Model Penal Code and presented an abortion statute extending the justifiable reasons for abortion to include risk of grave impairment of the mother's physical or mental health, risk of bearing a child with a grave physical or mental defect, and pregnancy resulting from rape, incest or other felonious intercourse. From 1966 through 1970, 13 sister states (Arkansas, California, Colorado, Delaware, Georgia, Kansas, Maryland, Mississippi, New Mexico, North Carolina, Oregon, South Carolina and Virginia) amended their abortion statutes along the lines suggested in the Model Penal Code. In 1970, Hawaii legalized all abortions of a nonviable fetus performed by a licensed physician.

In January, 1968 Governor Rockefeller appointed an eleven-member Commission under the leadership of Charles W. Froessel, retired judge of the Court of Appeals, to study New York's abortion law. The Froessel Commission issued its report in March, 1968. All Commission members agreed that abortion to preserve the mother's life is justifiable but a substantial majority found this single ground too limited. It was the majority's view that this lone justification prevented many doctors from practicing what they believed to be good medicine. Many doctors and hospitals had admitted a growing use of 'psychiatric indication' of threatened suicide to justify abortions, even though the actual suicide rate of pregnant women was a fraction of that of nonpregnant women 'of the same age'. Many abortions had been performed on women who had contracted rubella in the first trimester of pregnancy, even though the disease had threatened only the health of the child and not the life of the mother.

The majority found that even if the lowest estimates were used, approximately 200,000 abortions were performed in the United States each year and that the restrictive law created an abortion 'racket' operated by doctors without regard for the law or by untrained persons using the most primitive of instruments under the most unsanitary conditions. They also found that the restrictive law unfairly discriminated against the poor, who could not travel to other jurisdictions for safe and legal abortions or pay the price of competent but unethical doctors in this State for either the illegal operation or the 'psychiatric indication' to bring it within the color of the law.

While many individuals and groups had urged the adoption of an 'abortion on request' statute, the majority of the Froessel Commission recommended that abortion be justified only when certain conditions were satisfactorily demonstrated. Those conditions were: (1) to preserve the life of the woman; (2) to prevent grave impairment of the physical or mental health of the woman; (3) where the woman had a permanent physical or mental condition which would render her incapable of caring for the child if it were born; (4) where there was a substantial risk that the child, if born, would be so grossly malformed or have such serious physical or mental abnormalities as to be permanently incapable of caring for himself; (5) where the pregnancy resulted from rape in the first degree; (6) where the pregnancy resulted from incest; (7) where the pregnancy began while the woman was unmarried and under 16 years of age and she remained unmarried at the time of the abortional act; and (8) where the woman already...