Henrie v. Derryberry

• Decision Date: 02 April 1973
• Docket Number: Civ. A. No. 70-C-211.
• Citation: 358 F. Supp. 719
• Parties: Florence HENRIE et al., Plaintiffs, and Dr. Sarah G. Allison, Ph.D., et al., Intervenors, v. The Honorable Larry DERRYBERRY, Attorney General of the State of Oklahoma, et al., Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

358 F. Supp. 719

Florence HENRIE et al., Plaintiffs, and Dr. Sarah G. Allison, Ph.D., et al., Intervenors, v. The Honorable Larry DERRYBERRY, Attorney General of the State of Oklahoma, et al., Defendants.

Civ. A. No. 70-C-211.

United States District Court, N. D. Oklahoma.

April 2, 1973.

Pat Malloy, A. F. Ringold and Gene Mortenson, Tulsa, Okl., for plaintiffs and intervening plaintiffs.

Gary M. Bush, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, and Paul C. Duncan, Asst. Atty. Gen., with him on the briefs), for defendant Larry Derryberry.

Andrew B. Allen, Asst. Dist. Atty. for District 14, Tulsa, Okl. (S. M. Fallis, Jr., Dist. Atty. for District 14, Tulsa, Okl., with him on the brief), for defendant S. M. Fallis, Jr. Ronald Stockwell, for defendant Frank Grayson, formerly District Attorney for District 13.

Sam Harris, Asst. Dist. Atty., in the County of Delaware, District 13, filed a supplemental brief.

Before HOLLOWAY, Circuit Judge, BARROW, Chief District Judge, and EUBANKS, District Judge.

HOLLOWAY, Circuit Judge.

MEMORANDUM OPINION AND ORDER

This suit challenges the constitutionality of the Oklahoma criminal abortion statutes and related laws. We have withheld our decision pending the Supreme Court opinions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, decided on January 22, 1973.

Under these decisions we hold that the Oklahoma criminal abortion statutes appearing in 21 O.S.1971 §§ 861 and 862, prohibiting procuring an abortion and submitting to or soliciting one to attempt abortion, are unconstitutional under the Fourteenth Amendment and grant declaratory relief as to their invalidity. We deny injunctive relief, being satisfied that it is unnecessary and inappropriate.

We do not hold invalid the Oklahoma criminal statute prohibiting the procuring of destruction of an unborn quick child, 21 O.S.1971 § 714. Instead we feel there is a substantial possibility that the constitutionality of that statute may be preserved by an interpretation of it by the Oklahoma Courts which is permissible and in harmony with the Supreme Court decisions. In order that the State Courts may construe the State statute in the light of the recent Supreme Court decisions, we abstain from interpreting the statute and deciding its constitutionality.

Relief is sought against other statutes regulating professional conduct and declaring the procuring, aiding and abetting of a criminal abortion to be unprofessional. See 59 O.S.1971 §§ 503 and 509. Since the State Board and members thereof charged with enforcement of these statutes were not joined as parties, we conclude that there is no case or controversy between the parties before us concerning these statutes. Likewise we have no genuine case or controversy before us as to the validity of 21 O.S. 1971 §§ 713 or 863 which deal with wilful killing of a quick child by injury to the mother and concealing the stillbirth or death of a child. Accordingly, we grant no relief as to these statutes.

Following trial to the three-judge court convened to hear this suit under 28 U.S.C. § 2281 et seq., we determined that we should withhold our decision until the Supreme Court's opinions in the abortion cases were rendered. We stayed our decision and notified the parties of this determination. On consideration of those opinions and briefs which the parties have subsequently submitted concerning them, we now enter this memorandum opinion and order which will serve as our findings of fact and conclusions of law under Rule 52 F.R. Civ. P., and our judgment.

The Parties, Standing and Justiciability

1. Intervenors Allison, Hladky and Wolf. This suit was originally commenced by W. J. Bryan Henrie, D.O., now deceased, seeking declaratory and injunctive relief against enforcement of various Oklahoma abortion statutes. Shortly thereafter the court permitted Sarah Allison, John B. Wolf and Frank Hladky to intervene and join the challenge to the constitutionality of the Oklahoma abortion statutes, for themselves and for others similarly situated.

Dr. Allison is a psychologist employed by the Tulsa Guidance Clinic and Tulsa County Juvenile Court. Dr. Hladky is a practicing psychiatrist and is the Director of the Tulsa Psychiatric Foundation. Reverend Wolf is the Minister of the All Souls Unitarian Church at Tulsa. We earlier determined that these intervenors could properly maintain their claims as class actions on behalf of themselves and others similarly situated.

The proof of the intervenors showed that there were continuing requests to them for consultation, advice and counsel by women who are pregnant and for various and serious reasons are concerned about the advisability of bearing a child. Each of these parties desires to give advice on the possible option of abortion. Under the Oklahoma statutes restricting abortions, 21 O.S.1971 §§ 861 and 862, the giving of such advice would subject each of these three parties to a very serious risk of criminal prosecution in the event that such advice led to the procurement of an abortion. And in the case of Dr. Hladky, the giving of such advice might well lead to the loss of his license to practice medicine in Oklahoma. See 59 O.S.1971 §§ 503 and 509.

In asserting their challenges to 21 O. S.1971 §§ 714, 861 and 862, the intervenors have a direct threat of personal detriment sufficient to demonstrate standing. Doe v. Bolton, supra, 410 U.S. at 179, 93 S.Ct. 739; Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947. It is their interests that are presently at stake and not merely those of the general public. Moreover the dispute between the parties before us is presented in an adversary context and in a form historically viewed as capable of judicial resolution. Flast v. Cohen, supra at 101, 88 S.Ct. 1942. Therefore we are satisfied that these intervenors have presented the court with an actual case or controversy under Article III of the federal constitution as to §§ 714, 861 and 862. Doe v. Bolton, supra, 410 U.S. at 179, 93 S.Ct. 739; cf. Eisenstadt v. Baird, 405 U.S. 438, 443, 92 S.Ct. 1029, 31 L.Ed.2d 349.

We also believe these plaintiffs have demonstrated the proper standing to assert the rights of the pregnant women they wish to advise. The appropriate nexus is shown by the confidential relationship these intervenors share with the women they wish to counsel. Unless the intervenors may assert such rights, the rights of all concerned may be diluted or adversely affected. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510; see also Eisenstadt v. Baird, supra, 405 U.S. at 444-446, 92 S.Ct. 1029; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131.

We turn to the justiciability of the challenges to 59 O.S.1971 §§ 503 and 509 regulating professional conduct. § 509 defines unprofessional conduct to include "procuring, aiding or abetting a criminal operation or abortion." Coupled with § 503, this statute would permit the Oklahoma Board of Medical Examiners to revoke or suspend the license or certificate to practice of any physician or surgeon engaging in such conduct.

However, the responsibility of enforcement of the statutes is given to the Board of Examiners. Since the Board and its members who enforce these statutes are not joined as parties, the challenge to §§ 503 and 509 is not presented in an adversary context or in a form historically viewed as capable of judicial resolution. Flast v. Cohen, supra, 392 U.S. at 101, 88 S.Ct. 1942. This dispute does not touch the legal relations of parties having the essential adverse legal interests for a justiciable controversy to be present. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617. Thus as to the challenge to the constitutionality of these statutes we do not have a proper case or controversy for federal jurisdiction under Article III. We conclude that we may not properly consider here the constitutionality of 59 O.S.1971 §§ 503 and 509.

2. Dr. Henrie. The original plaintiff in this suit was at one time an osteopathic physician licensed and practicing in Oklahoma. In 1962 he was convicted, apparently under 21 O.S.1971 § 861, of violating the Oklahoma criminal abortion laws. In addition to incarceration, he suffered the loss of his license to practice osteopathy.

Dr. Henrie died subsequent to the trial on the merits. His counsel have moved for substitution of his successors, named in the caption, under Rule 25, F. R.Civ.P. The motion is unopposed and the substitution of his successors is ordered.

While pending criminal proceedings must be abated in the Federal courts upon the death of the defendant, Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200; Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542, this case involves a State conviction which became final before the defendant's death. This subsequent suit which Dr. Henrie instituted was collateral to his earlier State conviction that was already final. In such circumstances we feel that no injunctive or declaratory relief may be granted by this Federal court.

Declaratory judgments are not generally an appropriate means of attacking the validity of State convictions. See Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir.), cert. denied, 386 U.S. 481, 87 S.Ct. 1175, 18 L.Ed.2d 225; Booker v. Arkansas, 380 F.2d 240, 242 (8th Cir.); Morton v. Avery, 393 F.2d 138 (6th Cir.), cert. denied, 393 U.S. 892, 89 S.Ct. 216, 21 L.Ed.2d 172; United States ex rel. Bennett v. Illinois, 356 F.2d 878 (7th Cir.), cert. denied, 384 U. S. 946, 86 S.Ct. 1472, 16 L.Ed.2d 544; see also Sepulveda v. Colorado, 335 F.2d 581 (10th Cir.). Since Dr. Henrie was under no restraint by incarceration, parole or otherwise, see Jones v. Cunningham, 371 U.S. 236, 239-240, 83 S.Ct. 373, 9 L.Ed.2d 285, at the time the action...