Doe v. Rampton
| Decision Date | 07 September 1973 |
| Docket Number | No. C 217-73.,C 217-73. |
| Citation | 366 F. Supp. 189 |
| Parties | Jane DOE, on behalf of herself and all other persons similarly situated, Plaintiff, v. Honorable Calvin L. RAMPTON, Individually and in his capacity as Governor of the State of Utah, and Honorable Vernon B. Romney, Individually and in his capacity as Attorney General of the State of Utah, Defendants. |
| Court | U.S. District Court — District of Utah |
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David S. Dolowitz, Salt Lake City, Utah, for plaintiff.
William T. Evans, Salt Lake City, Utah, for defendants.
OPINION
Plaintiff herein sues on behalf of herself, and others similarly situated, for the purpose of obtaining an abortion. A three judge court was convened. Plaintiff is 11 to 15 weeks pregnant, dependent upon public medical assistance, and has the advice and consent of her physician to have the abortion. She seeks a declaratory judgment and injunctive relief against enforcement of a series of recently enacted Utah statutes regulating abortions, claiming invalidity, essentially as violative of her Ninth and Fourteenth Amendment rights of privacy and liberty. The challenged statutes, Section 302(3), 303, 304, 305, 306, 307, 308, 309, 310, 311, 313, 314, 315, 316, 317, 318, and 319 of Title 76, Chapter 7, Utah Code Annotated 1953, are attached as an appendix.
From conception until the end of the first trimester of pregnancy, the decision whether or not to procure an abortion, and the effectuation of that decision, rests with the pregnant woman and her physician. During this period the state has no compelling interest which overrides the woman's Ninth and Fourteenth Amendment rights of privacy and liberty and justifies regulation of the abortion decision. After this period and until the end of the second trimester of pregnancy, the state's right to regulate the abortion decision, based upon a compelling interest in the health of the pregnant woman, is limited to regulations reasonably related to maternal health, for example, regulations concerning the qualifications of the physician and the medical standard of the facilities involved. After the second trimester of pregnancy, at the stage of viability of the fetus, the state may regulate the abortion decision for the purpose of protecting the fetus, and this regulation may include prohibition of abortions except where necessary to preserve the life or health of the mother. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Each of the Utah statutes contested here may apply at any stage of pregnancy: thus, they all affect plaintiff and she has standing to challenge each of them. She presents a justiciable controversy as to each of them and abstention is not warranted.
Each of these statutes imposes burdensome regulations upon the decision whether or not to have or perform an abortion at any stage of pregnancy, thus they violate the constitutional rules stated above:
Section 76-7-302(3) is too broad a regulation and invalid because it might apply in any trimester of pregnancy, and because it prohibits abortions performed to preserve the mental health of the mother.
Section 76-7-303 is invalid because, in the first two trimesters of pregnancy, it imposes impermissibly upon the judgment of the physician whether to perform an abortion, and, in the third trimester it discriminates against poor persons and prohibits abortions to preserve the mother's mental health.
Section 76-7-304 is invalid because it subjects exercise of the individual right of privacy of the mother, in all abortions at all stages of pregnancy, to the consent of others.
Section 76-7-305 is invalid because it burdens the decision of a woman and her doctor, in all abortions at all stages of pregnancy, with a court proceeding and subjects the decision to judicial scrutiny.
Section 76-7-306 is invalid because it is broad enough to make an abortion impossible to obtain or to perform in any trimester of pregnancy — surely the state may not, as Utah attempts to do in Section 76-7-302, provide that every woman who desires an abortion in Utah must seek the services of a physician licensed and regulated by the state and that the majority of women who desire an abortion in Utah must seek the facilities of a state licensed and regulated hospital, and then provide, as in this section, that all such physicians and hospitals may deny their services and facilities to every such woman in every circumstance.
Sections 76-7-307 and 76-7-308 are invalid because they subject to action by third parties the right of the woman and her physician at all stages of pregnancy to decide upon and carry out an abortion.
Sections 76-7-309 and 76-7-310 are invalid because they might apply in any trimester, and because, regardless of the trimester in which they are applied, they unduly interfere with the professional judgment of the doctor involved.
Section 76-7-311 is invalid because it threatens every woman who has an abortion, at any stage of pregnancy and for any reason, with termination of parental rights without due process of law.
Section 76-7-313 is invalid because it would prevent, at all stages of pregnancy, women from seeking, and doctors from offering to perform, abortions.
Section 76-7-314 is invalid because it would limit exercise of the right to an abortion by the poor in all trimesters, for reasons having no apparent connection to health of the mother or child. The State may not so use its Medicaid program to limit abortions. Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972), aff'd sub nom. Ryan v. Klein, 412 U.S. 924, 93 S.Ct. 2747, 37 L.Ed.2d 151 (1973); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973).
Section 76-7-315 is invalid because it subjects the abortion decision to public scrutiny by making the details of every abortion a matter of public record and thus chills exercise of the right of privacy in the abortion decision.
Sections 76-7-316, 76-7-317, and 76-7-318 fall with the invalid provisions for which they provide enforcement and penalties.
Section 76-7-319 is invalid because it attempts to make applicable to therapeutic abortions provisions which are invalid as heretofore set forth.
Defendants raise the question whether any part of these statutes is severable and may be preserved. It is clear, and the Court finds, that the overriding purpose and dominant effect of these statutes is the wholly improper one of making the obtaining or performing of an abortion in Utah extremely burdensome or impossible in every case. Each and every challenged part of these statutes was intended to and does contribute, when each statute is read as a whole, to that improper purpose and effect. In that situation, the Court is neither obliged nor free to scrutinize the minutiae of these statutes to cull out those parts that, given a strained interpretation, might be thought to have an independent constitutionality. The Court cannot and will not edit these statutes in order to alter the legislative purpose, to do so would result in the Court exercising the legislature's constitutional power to legislate — this is a clear violation of the doctrine of separation of powers. We find all of the statutes and portions of statutes contested herein invalid in toto.
In view of the foregoing, it is unnecessary to determine whether this is a proper class action or what the proper class may be. Plaintiff has standing to challenge each of the contested provisions, and we find each invalid. The enforcement of each will be restrained.
APPENDIX
Sections 301 through 320, Title 76, Chapter 7, Utah Code Annotated 1953.
76-7-301. Definitions. — As used in this part:
(1) The word "abortion" means the termination of human pregnancy with an intent other than to produce a live birth or to remove a dead fetus, and includes all procedures undertaken to kill a live fetus and includes all procedures undertaken to produce a miscarriage.
(2) The word "physician" means a medical doctor licensed to practice medicine and surgery in all branches thereof in this state, or a physician in the employment of the government of the United States who is similarly qualified.
(3) The word "hospital" means a general hospital licensed by the state department of health according to Utah Code Annotated 1953, Title 26, chapter 15, and includes a clinic or other medical facility to the extent that such clinic or other medical facility provides equipment and personnel sufficient in quantity and quality to provide the same degree of safety to the pregnant woman and the fetus as would be provided for the particular medical procedures undertaken by a general hospital licensed by the state department of health. It shall be the responsibility of the state department of health to determine if such clinic or other medical facility so qualifies.
76-7-302. Circumstances under which abortion authorized. — An abortion may be performed in this state only under the following circumstances:
(1) If performed by a physician; and
(2) If performed ninety days or more after the commencement of the pregnancy, it is performed in a hospital; and
(3) If performed when the fetus is sufficiently developed to have any reasonable possibility of survival outside its mother's womb, the abortion is necessary to save the life of the pregnant woman or to prevent serious and permanent damage to her physical health.
76-7-303. Medical reasons required for abortion. — No abortion may be performed in this state unless, in the best clinical judgment of the pregnant woman's attending physician, there is sufficient medical reasons therefor. If the abortion is performed within the first ninety days of commencement of pregnancy, such medical reason shall be sufficient if in the attending...
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