Jones v. Smith

• Decision Date: 15 May 1973
• Docket Number: No. 73--560,73--560
• Citation: 278 So.2d 339
• Parties: Mr. JONES, Appellant, v. Mr. SMITH, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 339

278 So.2d 339

Mr. JONES, Appellant, v. Mr. SMITH, etc., et al., Appellees.

No. 73--560.

District Court of Appeal of Florida, Fourth District.

May 15, 1973.

Rehearing Denied May 16, 1973.

Chandler R. Muller and Melvin Pearlman, of Mairs, Wood, Muller & Boroughs, Winter Park, for appellant.

Donald R. Corbett and Gladstone L. Kohloss, Orlando, for appellees.

MAGER, Judge.

This is an appeal from an order denying a claim for injunctive relief seeking to restrain the 'obtaining or aiding in the obtaining of an abortion'. Although pseudonyums are used the parties are real persons.

The primary question presented is whether a potential putative father has the right to restrain the natural mother from terminating a pregnancy resulting from their cohabitation. The appellant, who acknowledges that he is the father of the unborn child, is twenty-seven years old, was formerly married and is the father of a six-year-old daughter by such previous marriage. The appellee-mother is nineteen years old and unmarried and had been dating the appellant for approximately six months during which time the parties were frequently intimate. The appellant in seeking injunctive relief has indicated his desire to marry the appellee and to assume all the obligations financial and otherwise for the care and support of the unborn child; that, notwithstanding such affirmations, the appellee-mother, who has expressed her desire not to marry the appellant, has sought to terminate the pregnancy.

Although the appellant alleged in his complaint below 'that the mother's mental and physical health will not be endangered by bringing the child to term in allowing its natural birth' there is no allegation and proof that the proposed termination of pregnancy does not comply with Florida's newly enacted 'Termination of Pregnancy' law (Chapter 72--196, Laws of Florida, numbered as Section 458.22, Florida Statutes, F.S.A.) It is interesting to note a suggestion by the appellant that his own health would be affected if the pregnancy is terminated; testimony from a psychiatrist examining appellant suggested 'the possibility of him suffering depressing symptoms and depressive reactions in the future'. ¹

The main thrust of the appellant's position is that as a potential putative father he has the 'right' to participate in the decision to terminate the pregnancy.

Because of the time factors involved and in particular the fact that the mother is reaching the end of the first trimester of pregnancy this court has granted an emergency hearing and has expedited its review.

The question presented to this court is a matter of first impression in this state and as best as our research can determine is a matter of first impression in the nation. While the lack of readily available precedent presents some difficulty we, nevertheless, feel that the expressions and observations made by the courts of this state and the Supreme Court of the United States persuasively point to a resolution of the question in favor of the mother. 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).

The recent decisions of the United States Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra, while dealing with the constitutionality of statutes, set forth what we perceive to be the essential and underlying factor in the determination of this appeal. That factor is the 'right of privacy' of the mother. As was observed in Roe v. Wade, the Supreme Court of the United States speaking through Mr. Justice Blackmun, stated:

'This Right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, Is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this cone, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.' (Emphasis added.)

The opinion continues to point out that while the right of personal privacy includes the termination of pregnancy decision 'that this right is not unqualified and must be considered against important state interests in regulation'. The interest of the state in regulating the termination of pregnancies is predicated upon the preservation and protection of the health of the pregnant woman and in the protection of the potentiality of human life. Chapter 72--196 reflects Florida's interest in regulating terminations of pregnancy. We make these observations with regard to the interest of the state, fully recognizing that we are here dealing with the interest of a potential putative father, for the reason that any interest that a natural father may have, whether married or unmarried, would certainly be subservient to the health of the pregnant woman and the potentiality of human life.

But, irrespective of the motivation for the state's interest in the enactment of a termination of pregnancy statute the Supreme Court of the United States has very significantly held that 'for the stage prior to approximately the end of the first trimester, the abortion decision and its affectuation Must be left to the medical judgment of the pregnant woman's attending physician . . .'. The attending physician, in consultation with his patient, is free to determine, Without regulation by the state, that in his medical judgment the patient's pregnancy should be terminated. The initial decision to terminate a pregnancy, then, is one that is Purely personal to the mother and between her and the attending physician, and any unreasonable governmental interference must yield to the mother's right of privacy.

An examination of the Florida abortion statute reveals that apart from the medical reasons for the termination of pregnancy, the only other factors that would qualify the individuality of the mother's decision to terminate would be the consent of the Husband or parents, etc. In this regard Section 3 of Chapter 72--196 provides:

'Section 3. Written requests required

'One of the following shall be obtained by the physician prior to terminating a pregnancy:

(1) The written request of the pregnant Woman and, if she is married, the written consent of Her husband, unless the husband is voluntarily living apart from the wife, or

(2) If the pregnant woman is under eighteen (18) years of age And unmarried, in addition to her written request, The written consent of a parent, custodian, or legal guardian must be obtained, . . .' (Emphasis added.) ²

It is to be noted from the foregoing that a married woman Need not obtained the written consent of her husband if 'the husband is voluntarily living apart from the wife'.

The situation in the case under consideration involves neither a married woman nor a 'husband'. Moreover, the 'consent' of a potential putative father is not included within nor is it required by the terms of the termination of pregnancy law. Therefore, if we were to resolve this question solely on the basis of the applicability of the Florida statute, the appellant would simply have no basis to claim his consent was necessary. ³

As indicated the underlying basis for recognizing a woman's right to terminate her pregnancy during the first trimester is the right of privacy; that right of privacy remains constant except as qualified by the interest of the state Subsequent to the first trimester. (Roe v. Wade, supra.) The right of privacy is a right that is purely Personal to the individual asserting such right. Cf. Santiesteban v. Goodyear Tire & Rubber Company, 5 Cir. 1962, 306 F.2d 9. In Babbitz v. McCann, U.S.D.C.E.D.Wis.1970, 310 F.Supp. 293, 299, the Court observed:

'As long ago as 1891, in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.E. 734 (1891), the court said:

'No right is held more sacred, or is more carefully guarded, by the common law, Than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, 'The right to one's person may be said to be a right of complete immunity to be let alone. '" (Emphasis added.)

See also specially concurring opinion of Mr. Justice Ervin in Walsingham v. State, Fla.1971, 250 So.2d 857; and Young Women's Christian Ass'n of Princeton, N.J. v. Kugler, U.S.D.C.N.J.1972,...