Doe v. Doe

• Decision Date: 03 July 1974
• Citation: Doe v. Doe, 314 N.E.2d 128, 365 Mass. 556 (Mass. 1974)
• Parties: , 62 A.L.R.3d 1082 John DOE v. Jane DOE et al. 1
• Court: Supreme Judicial Court of Massachusetts

Page 128

314 N.E.2d 128

365 Mass. 556, 62 A.L.R.3d 1082

John DOE v. Jane DOE et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 13, 1974.

Decided July 3, 1974.

Mark I. Berson, Greenfield (Burton Winer and Herbert H. Hodos, Greenfield, with him), for plaintiff.

Paula W. Gold, Boston (Peter M. Wendt, New Jersey and Judith E. Rubenstein, San Diego, Cal., with her), for defendant.

Neil L. Chayet, Guardian ad litem, pro se.

Charles P. Kindregan, amicus curiae, pro se.

William A. Lynch, amicus curiae, pro se, submitted a brief.

Katherine Allen and Eileen L. Shaevel, for Center for Women's Legal Studies, and John H. Henn, for Civil Liberties Union of Massachusetts, joined in a brief.

James C. Heigham, Boston, for Crittenton Hastings House of the Florence Crittenton League, amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

An estranged husband sought declaratory and injunctive relief against his pregnant wife, who intended to procure an abortion over his objection. After argument a majority of the court on March 14, 1974, ordered entry of a decree declaring that an abortion might be performed on her, without the consent of her husband, by the defendant physician or any other duly licensed physician. We now state our reasons.

The husband's bill was filed in the county court on March 5, 1974. On March 8 a single justice of this court ordered the appointment of a guardian ad litem for the unborn child and, after hearing, granted the husband's prayers for temporary relief, restraining the wife and the physician from proceeding with the planned abortion. On March 12 the single justice filed findings of fact, the wife filed a demurrer, an answer, an exception to the appointment of a guardian ad litem, and a motion to supplement the findings of fact, and the single justice reserved and reported the case to the full court. Briefs were submitted by the husband, the wife, and various friends of the court, and the guardian ad litem filed a report. We heard argument on March 13, and the following day we issued an order vacating the decree of the single justice, directing entry of a decree granting the wife's prayers for declaratory relief, and stating, 'A rescript and opinions of the full court will follow.' Presumably the abortion was promptly performed.

We summarize the evidence, which was largely undisputed. The husband, then twenty-seven years of age, married the wife, then twenty-three years of age, on April 17, 1973, and they lived together in this Commonwealth as husband and wife. The husband is employed as a truck driver, earning $200 a week. Before the marriage, in 1972, the wife had a child by another man. She first became pregnant by her husband in June, 1973, and suffered a miscarriage in August, 1973. About November 12 she again became pregnant by her husband. This pregnancy was a wanted pregnancy on the part of both husband and wife.

The husband and wife separated late in January, 1974. Early in February, the husband told the wife that he did not want to support the child, and that to avoid responsibility for the child he did not want his name on the birth certificate as the father. Thereafter the wife, notwithstanding her previously expressed sentiments against abortion, told her husband that she wished to terminate the pregnancy, saying she did not think she could handle two children and did not want the second child. The husband objected and brought this suit. He testified that he was willing to support the child and to assume custody and that he had considered arrangements for its care, including day care by the wife's sister. The wife testified that she did not think either her husband or her sister was capable of taking care of a child and that if prevented from having an abortion she would never consent to having custody given to her husband.

Medical testimony indicated that the wife's general health was good. Her first pregnancy was normal and resulted in the birth of a normal child. At the time of our order she was about eighteen weeks along in her pregnancy. The fetus was not viable. There was little risk of serious injury to her health in a saline abortion performed before twenty-eight weeks of gestation have elapsed. There was likewise little risk of serious injury in carrying the pregnancy to normal delivery.

1. Jurisdiction. The wife argues that this court lacks jurisdiction over this case, citing G.L. c. 209, § 6 (suits between husband and wife). Apart from that statute, however, suits in equity may be maintained between husband and wife 'where there exists some recognized ground of general equity jurisdiction or some controversy over property rights, as distinguished from a mere debt or contractual obligation.' Charney v. Charney, 316 Mass. 580, 582--583, 55 N.E.2d 917, 919 (1944). Compare Purple v. Purple, 354 Mass. 770, 239 N.E.2d 16 (1968). We have rejected 'the formula that equity protects only property rights' and recognized 'the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction.' Kenyon v. Chicopee, 320 Mass. 528, 532--534, 70 N.E.2d 241, 243--244 (1946).

Although we think there is no lack of jurisdiction in this case, there is a serious question whether its subject matter is within the general principles of equity jurisprudence. Compare Mark v. Kahn, 333 Mass. 517, 519--520, 131 N.E.2d 758 (1956), with White v. Thomson, 324 Mass. 140, 142--143, 85 N.E.2d 246 (1949). There are 'personal rights of such delicate and intimate character that direct enforcement of them by any process of the court should never be attempted.' Kenyon v. Chicopee, supra, 320 Mass. at 534, 70 N.E.2d at 245. This objection has more force with respect to injunctive relief than with respect to declaratory relief. The practical impact of existing legal uncertainties on doctors and hospitals is such that clarification is in the public interest, and the same considerations which bear on the propriety of equitable relief also bear on the substantive rights of the parties. Assuming that at least declaratory relief is proper, therefore, we turn to the substantive questions presented.

2. Constitutional rights of the husband. The husband contends that he has a fundamental right, guaranteed by the Constitution of the United States, to determine that his child shall not be aborted, citing the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). It is true that in various contexts the Supreme Court has declared that certain interests associated with the marital relationship give rise to rights guaranteed by the Federal Constitution. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). These and other cases formed the basis for the court's recognition of a right of privacy in Roe v. Wade, 410 U.S. 113, 152--154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). But all those cases involved a shield for the private citizen against government action, not a sword of government assistance to enable him to overturn the private decisions of his fellow citizens. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). We find no basis for the husband's assertion that the Constitution enables him to summon the Commonwealth to help him in a dispute with his wife.

3. Statutory rights. The husband does not claim support for his position from any statute of the Commonwealth. Nor could he. Our statute on abortion, like the traditional statutes of most States, is a criminal statute, forbidding an abortion unless performed 'in good faith and in an honest belief that it is necessary for the preservation of the life or health of the woman' (emphasis supplied). Kudish v. Board of Registration in Medicine, 356 Mass. 98, 99--100, 248 N.E.2d 264, 266 (1969), ² interpreting G.L. c. 272, § 19. The statute was rendered inoperative for the purposes of the present case by the decision in Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Women of the Commonwealth v. Quinn, Civil Action No. 71--2420--W (D.Mass. Feb. 21, 1973).

In other States, recent statutes have dealt in various ways with the issue now before us. The Am. Law Inst., Model Penal Code, § 230.3 (Proposed Official Draft, 1962), the Uniform Abortion Act (1971), and the statutes of many States make no mention of the husband's consent. See Roe v. Wade, 410 U.S. 113, 140, 146, n. 40, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 182, 205--207, 93 S.Ct. 739, 35 L.Ed.2d 147 (1973). Statutes in some States provide for the consent of the husband. ³ In several of those States the husband's consent is given effect only where the wife is a minor or incompetent. ⁴ In several his consent is required only if the parties are living together or is dispensed with in cases of separation or abandonment. ⁵

In neither Roe v. Wade nor Doe v. Bolton did the Supreme Court 'discuss the father's rights, if any exist in the constitutional context, in the abortion decision.' No paternal rights had been asserted in either of the cases, and the governing 'statutes on their face take no cognizance of the father.' The court found it unnecessary to 'decide whether provisions' recognizing the father in certain circumstances 'are constitutional.' 410 U.S. at 165, n. 67, 93 S.Ct. 705. In lower courts statutes...