Doe v. Dunbar

• Decision Date: 22 December 1970
• Docket Number: Civ. A. No. C-2402.
• Citation: 320 F. Supp. 1297
• Parties: Susan DOE et al., Plaintiffs, v. Duke DUNBAR, Attorney General for the State of Colorado, and Mike McKevitt, District Attorney for the 2d Judicial District, Floyd Marks, District Attorney for the 17th Judicial District, Defendants.
• Court: U.S. District Court — District of Colorado

320 F. Supp. 1297

Susan DOE et al., Plaintiffs, v. Duke DUNBAR, Attorney General for the State of Colorado, and Mike McKevitt, District Attorney for the 2d Judicial District, Floyd Marks, District Attorney for the 17th Judicial District, Defendants.

Civ. A. No. C-2402.

United States District Court, D. Colorado.

December 22, 1970.

Howard B. Gelt and Richard D. Lamm, Henry W. Toll, Jr., Charles Frederickson, and Tom Lamm, Denver, Colo., for plaintiffs.

Duke W. Dunbar, Atty. Gen., of Colo., pro se.

John P. Moore, Deputy Atty. Gen., and Eugene C. Cavaliere, Asst. Atty. Gen., Denver, Colo., for Duke Dunbar.

James D. McKevitt, Dist. Atty., for the Second Judicial District, pro se.

Tom Casey, Deputy Dist. Atty., Denver, Colo., for Mike McKevitt.

Floyd Marks, Dist. Atty., for the 17th Judicial District, pro se.

Harlan R. Bockman, Asst. Dist. Atty., Commerce City, Colo., for Floyd Marks.

Before LEWIS, Chief Circuit Judge, ARRAJ and CHILSON, District Judges.

MEMORANDUM OPINION AND ORDER

ARRAJ, District Judge.

Plaintiffs brought this action seeking a declaration that Colorado's abortion statute is unconstitutional and a permanent order enjoining defendant officials from enforcing the statute. Because a substantial question was raised concerning the constitutionality of a state statute, a three-judge court was convened pursuant to 28 U.S.C. § 2281 (1964). Defendants have moved to dismiss on two grounds: this court lacks jurisdiction because there is no case or controversy within the meaning of Article III of the Constitution and the amended complaint fails to state a claim for injunctive relief.

I.

In order properly to frame the parties' arguments concerning the case or controversy requirement of Article III, it is first necessary to describe Colorado's abortion statute and the relationship to it of the several groups of plaintiffs in this action.

Colorado's therapeutic abortion act, Colo.Rev.Stat.Ann. § 40-2-50 et seq. (Supp.1967), provides a single procedure for the legal termination of pregnancies in Colorado. A woman desirous of obtaining an abortion must apply to a special hospital board consisting of three physician-members entrusted with deciding whether an applicant is entitled to an abortion on one of the grounds specified in the statute. If all of the board members certify in writing that she is so entitled, a woman may then have an abortion performed in an accredited hospital by a licensed physician using accepted medical procedures. The grounds for obtaining a justified medical termination include the following: the pregnancy resulted from rape; continuation of the pregnancy, in the opinion of the board, is likely to result in the death of the woman, the serious impairment of her physical health, or the serious and permanent impairment of her mental health (this must be confirmed in writing by a psychiatrist); or the child is likely to be born physically deformed or mentally retarded. The statute further provides that any person who intentionally ends or pretends to end a pregnancy other than by live birth or the procedure provided in the statute is guilty of a felony punishable by not less than three nor more than ten years in the state penitentiary and by a fine not exceeding $2,000.

Plaintiffs in this action are women and doctors who reside in Colorado. Three of the Does, Alice, Joan and Mary, allege that they have attempted in the past to obtain abortions in Colorado, have been told by doctors that they could not qualify under Colorado law and therefore obtained either illegal abortions in Colorado or legal abortions outside the state. Alice, Joan and Mary are not now pregnant and do not seek damages for any harm which may have occurred in the past. They join in the present action on behalf of themselves and others who have been or may become pregnant. Jane and Susan Doe are unmarried women who were in the eighth week of pregnancy when this suit was filed. Each alleges that she asked a Colorado physician to perform an abortion and that the physician refused on the ground that to do so would violate Colorado law.

The eight doctor-plaintiffs practice medicine in Colorado. In the regular course of their practices, seven of the doctors continuously receive requests for abortions and do perform two or three abortions each month in accordance with the requirements of the Colorado therapeutic abortion act. They assert that but for the statute they would perform many more abortions each month. The eighth doctor is a psychiatrist who does not himself perform abortions but who continuously receives requests to confirm, as required by statute, that continuation of certain pregnancies will result in serious and permanent impairment of mental health. The psychiatrist claims that there are no accepted medical standards for making such a judgment.

The United States Supreme Court has described the case or controversy doctrine as expressing two limitations upon the power of Article III courts. The first limitation is based upon the policy of separation of powers and prohibits us from treading in areas preserved for other branches of government. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The second is that Article III courts may decide only those questions "presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Id. Defendants do not contend that the issues raised in this litigation are political. They do argue, however, that the interests of the plaintiffs in the constitutionality of Colorado's abortion statute are merely hypothetical since none of the plaintiffs alleges that he or she has engaged in conduct prohibited by the statute or that any of the defendants has threatened prosecution or has prosecuted any of the plaintiffs for violation of the statute. For these reasons, defendants maintain, the suit is abstract; it lacks that "exigent adversity" which Article III requires.

The adversity requirement may be described as a prohibition against rendering advisory opinions. Flast v. Cohen, supra, at 96-97, 88 S.Ct. at 1950-1951. Whether the problem presented here be discussed as one of standing or of ripeness, two confusingly similar aspects of the case or controversy requirement, our inquiry is whether the relationship of the parties to the issues is sufficiently definite to make judicial resolution appropriate. The fact that this is a declaratory judgment action does not mean that the Article III requirements are less rigorous. Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1960). We agree with defendants that the interests of Alice, Joan and Mary Doe are hypothetical. The sole connection they assert with this litigation is the fact that they may in the future become pregnant. This does not distinguish their interest from that of every other woman in Colorado who is capable of bearing children. These plaintiffs do not complain that they have been injured, nor does it appear that there is any present threat of injury to them from enforcement of the Colorado abortion statute. The psychiatrist's situation is similar. He does not allege that he has performed or intends to perform abortions or that but for the Colorado statute he would do so. It is therefore difficult to imagine how he would be injured by enforcement of the act. As to these persons, any decision we might render would surely be advisory.

Defendants appear to recognize that seven of the doctor-plaintiffs and the women who are now pregnant do have a stronger interest in this litigation than do those plaintiffs mentioned above, but they point out that none of the plaintiffs is engaged in conduct proscribed by the statute or is threatened with prosecution which it would be appropriate for this court to enjoin. Defendants' argument is, in effect, that one who wishes to challenge the constitutionality of criminal legislation must first disobey the law and run the risk of prosecution in order to question the validity of the law. The Supreme Court has not, to our knowledge, ever adopted such a harsh and absolute requirement. In fact, the court has held by necessary implication that it is not deprived of jurisdiction on direct appeal merely because the plaintiff in a declaratory judgment action has not disobeyed the challenged statute or has not been directly threatened with prosecution. Epperson v. Arkansas, 393 U.S. 97, 101-102, 89 S. Ct. 266, 21 L.Ed.2d 228 (1968). The scope of the court's holding in Epperson is difficult to ascertain because the majority does not discuss the case or controversy problem. Nevertheless, the fact that the court decided the case on its merits can mean no less than that a specific and immediate threat of enforcement is not a constitutional requirement in a declaratory judgment action.

While the many Supreme Court decisions which both defendants and plaintiffs have cited may not be entirely reconcilable, we can discern several considerations which the court has taken into account in judging whether there exists a case or controversy within the meaning of Article III. While there need not be a threat of immediate prosecution, it should nevertheless not appear that the state maintains a policy of non-prosecution which might render any decision unnecessary and even inappropriate. Compare Poe v. Ullman, 367 U. S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), with Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); but see Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Furthermore, there should not be any substantial question concerning the scope or meaning of the statute in question or the manner of its enforcement, lest a decision prior to prosecution for specific acts take on an abstract or hypothetical character. United Public Workers of America v. Mitchell, 330 U. S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Finally the Supreme Court has taken into account the...