Doe v. Israel

• Decision Date: 16 May 1973
• Docket Number: Civ. A. No. 5153.
• Citation: 358 F. Supp. 1193
• Parties: Jane DOE et al. v. Richard ISRAEL, Attorney General of the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

358 F. Supp. 1193

Jane DOE et al. v. Richard ISRAEL, Attorney General of the State of Rhode Island.

Civ. A. No. 5153.

United States District Court, D. Rhode Island.

May 16, 1973.

Charles G. Edwards, Edwards & Angell, Richard W. Zacks, Rhode Island Affiliate American Civil Liberties Union, Providence, R. I., Janice Goodman, Bellamy, Goodman, Kelly & Ross, New York City, Nancy Stearns, Center for Constitutional Rights, New York City, for plaintiffs.

W. Slater Allen, Jr., Asst. Atty. Gen., Dept. of the Atty. Gen. for the State of Rhode Island, Providence, R. I., for defendant.

Joseph P. Witherspoon, Austin, Tex., Francis Boyle, Moore, Virgadamo, Boyle & Lynch, Ltd., Newport, R. I., for intervenor-Constitutional Right to Life Committee.

Thomas I. Emerson, Professor of Law, Yale Law School, New Haven, Conn., court appointed amicus.

Guy J. Wells, Bruce M. Selya, Providence, R. I., on behalf of certain doctors.

Greenbaum, Wolff & Ernst, New York City; Harriet F. Pilpel, Frederic S. Nathan, Nancy F. Wechsler, Eve W. Paul, New York City, of counsel, amicus for plaintiffs by Planned Parenthood Federation of America, Inc.

OPINION

PETTINE, Chief Judge.

This action challenges the constitutionality of the abortion statute enacted by the Rhode Island legislature in March of 1973. Plaintiffs originally sought injunctive and declaratory relief against the Rhode Island Criminal Abortion Statute (73-S 287 Substitute "A"), R.I. G.L. § 11-3-1 et seq.¹ The claim for injunctive relief has been dropped, and plaintiffs now seek only a declaration that this statute is unconstitutional.

Following the decisions by the United States Supreme Court in the abortion cases, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), a three-judge United States District Court declared unconstitutional the prior Rhode Island criminal abortion statute which had prohibited abortions except when necessary to preserve the life of the mother and which prohibited abortion counseling.² Women of Rhode Island v. Israel, C.A. No. 4605 (D.R.I. Feb. 7, 1973); Rhode Island Abortion Counseling Service v. Israel, C.A. No. 4586 (D.R.I. Feb. 7, 1973).

The present legislative product at issue is an attempt by the Rhode Island lawmakers to infuse constitutionality into its heretofore unconstitutional statute by declaring that human life begins at the moment of conception and that such life is a person within the meaning of the Fourteenth Amendment to the United States Constitution.

Such legislative declarations, defendant argues, take the Rhode Island statute outside of the ambit of Roe v. Wade, supra, and Doe v. Bolton, supra. The prologue to the law under question here recites that the United States Supreme Court acknowledged the appropriateness of state regulations in terminating pregnancy and safeguarding and protecting human life, and the non-absolute character of the right of privacy. The defendant's position is that the Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra, never addressed the issues at stake in this controversy.

Plaintiffs sue on behalf of themselves and as representatives of the class of all other women similarly situated who are now or may hereafter be prevented from obtaining a legal abortion in Rhode Island because termination of their pregnancies is not necessary to preserve their lives.

Findings of Fact

Mary Roe, Jane Doe and Sally Smith, all United States citizens and residents of Rhode Island, testified or stated by affidavit that they were pregnant on March 26, 1973, the date on which this complaint was filed and that they desired to terminate their pregnancies in Rhode Island by a physician licensed in this state. Prior to the court hearing of this case, Mary Roe, mother of eight children and Jane Doe, mother of two children, obtained abortions in New York. Mary Roe's abortion was performed on March 31, 1973. Jane Doe had completed her plans to go to New York on March 22, 1973, though her pregnancy was terminated after the commencement of this action. Sally Smith, did not appear at the trial. None needed to terminate her pregnancy to save her life.

Mrs. Ann Frank was appointed as guardian of the unborn children of the named plaintiffs by the Probate Court of the City of Providence in Rhode Island. In that capacity she sought to intervene urging jurisdiction of the unborn "children" pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 2284, and relying on 42 U.S.C.A. § 1984. The motions of Ann Frank for intervention and for appointment as guardian ad litem were denied by this Court.

Three Rhode Island licensed physicians testified they would have performed abortions on certain of their patients except for the Rhode Island statute.

A number of learned authorities with impressive credentials in general obstetrical practice, surgery, perinatal physiology or fetal research testified for the defendant.³ Exhaustively they gave their opinions as to when life commenced, detailing the commonly used methods of abortion, their varied and impressive experiences with pre-natal life, anatomical recognition of the various members of aborted fetuses, practices used to identify each, and the physiological and psychological results on the mother. In short, they ran the gamut.

I neither summarize nor make any findings of fact as to their testimony. To me the United States Supreme Court made it unmistakably clear that the question of when life begins needed no resolution by the judiciary as it was not a question of fact. As will be discussed infra, I find it all irrelevant to the issues presented for adjudication.

Standing

Defendant contends that plaintiffs lack standing because "Jane Doe can go to neighboring states where her medical problems can be resolved" (Defendant's memorandum, p. 4) and because under the holding of Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed. 2d 696 (1971), and its companion cases, as defendant reads them, pregnant women who are not subject to criminal sanction for obtaining abortions are not proper plaintiffs to challenge criminal abortion statutes. Defendant also argues that plaintiffs have an adequate remedy at law.

In both Roe v. Wade and Doe v. Bolton, supra, the Supreme Court held that pregnant women who are thwarted by their state's criminal abortion laws have presented a case or controversy and have standing to sue. In this case, as in Roe and Doe, supra, we have pregnant women "thwarted by the Rhode Island criminal abortion laws." The Attorney General of Rhode Island, defendant here, has unequivocally stated that violaters of the abortion law will be subject to prosecution, and this threatened enforcement in itself has and will cause injury to plaintiffs and members of their class.

There are no meaningful factual differences nor legal reasons to cause this Court to depart from the unmistakable teachings of Roe v. Wade, supra, that plaintiffs have standing to sue. If the "adequate" remedy at law defendant refers to is monetary damages, it is nothing short of ludicrous to argue, as defendant apparently does, that monetary damages would be an adequate remedy to pregnant women who seek abortions. I hold that plaintiffs have standing to undertake this litigation and that they have presented a justiciable controversy.

Need for a Three-Judge Court

When an injunction is sought against the enforcement of a state statute on grounds of unconstitutionality, a three-judge district court is required under 28 U.S.C. § 2281 and 2284. When as here, a declaratory judgment alone is sought against a state statute, the weight of authority is that a single judge has jurisdiction to decide the claim. In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), the Supreme Court found that on the facts of that case a single judge appropriately determined an action solely for declaratory relief, but declined to decide.

"Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court." 372 U.S. 144, 154, 83 S.Ct. 554, 560.

See also Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).

The First Circuit Court of Appeals has read Mendoza-Martinez to allow a single judge to hear a claim for declaratory judgment where there is no claim for injunctive relief. Merced Rosa v. Herrero, 423 F.2d 591 (1st Cir. 1970).

However, dicta by the Supreme Court in Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971) that

"ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid"

complicated the matter. If declaratory and injunctive relief are to be equated in the doctrine that federal courts should not interfere with pending state criminal prosecutions, are they to be equated in terms of the considerations which require the convening of a three-judge court? I think not. As has often been noted, the three-judge court statute should be strictly construed because of the burden it places on the federal judiciary. Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). Moreover, the Supreme Court recently affirmed the constitutionality of a state statute without discussion of three-judge court jurisdiction where a single judge had issued declaratory relief, which was the only relief requested, against the statute and had been reversed by a court of appeals. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973). This Court finds that it may proceed as a single-judge Court to determine the merits of this claim for declaratory relief.

Plaintiffs have urged upon this Court another doctrine that would support consideration of this matter by a single judge. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct....