Kennan v. Nichol

• Decision Date: 27 April 1971
• Docket Number: No. 71-C-118.,71-C-118.
• Citation: 326 F. Supp. 613
• Parties: Alfred L. KENNAN, M.D., et al., Plaintiffs, v. Gerald C. NICHOL, Individually and as District Attorney, Dane County, State of Wisconsin, his agents, assistants, and all those acting in concert or cooperation with him to enforce Wisconsin Statutes 940.04(1) and (5), Defendants.
• Court: U.S. District Court — Western District of Wisconsin

326 F. Supp. 613

Alfred L. KENNAN, M.D., et al., Plaintiffs, v. Gerald C. NICHOL, Individually and as District Attorney, Dane County, State of Wisconsin, his agents, assistants, and all those acting in concert or cooperation with him to enforce Wisconsin Statutes 940.04(1) and (5), Defendants.

No. 71-C-118.

United States District Court, W. D. Wisconsin.

April 27, 1971.

David C. Pappas and Charles P. Dykman, Madison, Wis., for plaintiffs Alfred L. Kennan, M.D., and Adrienne H. Campbell; Prof. George Bunn, Madison Wis., of counsel.

Percy L. Julian, Jr., Madison, Wis. for plaintiffs Smirnoff and Bashore.

Mary V. Bowman, Asst. Atty. Gen., Howard B. Hickman, Asst. Dist. Atty., Madison, Wis., for defendants.

OPINION AND TEMPORARY RESTRAINING ORDER

JAMES E. DOYLE, District Judge.

Plaintiffs attack Sections 940.04(1) and (5) of the Wisconsin Statutes, contending that they violate the Constitution of the United States. Section 940.04(1) provides that any person, other than the mother, who intentionally destroys the life of an unborn child may be punished by fine or imprisonment or both. Section 940.04(5) excepts from the prohibition a "therapeutic abortion," which it defines. For the purposes of subsections (1) and (5), an unborn child is defined as "a human being from the time of conception until it is born alive."

In verified pleadings filed April 26, 1971, plaintiffs Kennan, Smirnoff, and Bashore, allege that on April 19, 1971, at the direction of the defendant district attorney and pursuant to a search warrant issued by a judge of a state court of Wisconsin, police entered the medical offices occupied by plaintiff Kennan in connection with his specialized practice in the performance of abortions, in which office plaintiffs Smirnoff and Bashore were employed as social workers, and that the police seized a number of pieces of equipment and files and records. They allege that on April 19 and 20, the defendant made public statements threatening their imminent arrest under Section 940.04(1). They allege that on April 21, 1971, the defendant caused a criminal prosecution to be initiated against them by causing to be filed in a state court criminal complaints against them alleging violations of Section 940.04(1).

A complaint was filed in this court by the plaintiff Kennan on April 20, 1971, alleging that he was threatened with a criminal prosecution in the state court under the anti-abortion statute and asserting its unconstitutionality under the United States Constitution. On April 20, I entered an order to the defendant district attorney to show cause on April 26 why he should not be restrained from enforcing Section 940.04(1) against Kennan. On April 26, 1971, an amended complaint was filed by plaintiff Kennan, and another by plaintiff Campbell, and on April 26, 1971, plaintiffs Smirnoff and Bashore moved for leave to intervene, were granted leave in the absence of objection, and filed a complaint.

In her verified complaint, plaintiff Campbell alleges that she is a married woman living in this district and bearing an unquickened child by her husband, that she and her husband do not wish to have the child, that she was scheduled to have an abortion on May 3, 1971, at the offices of the plaintiff Kennan in the city of Madison in this district, that she cannot afford to go to New York or elsewhere out of state where abortions can be performed legally, and that the criminal prosecution against plaintiff Kennan and the seizure of the medical equipment are preventing her from obtaining the abortion in this district. She undertakes to sue on behalf of a class consisting of members similarly situated.

By affidavit, plaintiff Kennan alleges that the effect of the seizure of the records and equipment in his office is to prevent him from continuing to perform abortions, and that there are over 300 females for whom appointments for the performance of abortions are presently scheduled.

For the purpose of deciding the motion for a temporary restraining order, and for no other purpose, I find the facts to be as I have summarized them above.

In Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis.1970), a three-judge court consisting of Circuit Judge Kerner and District Judges Reynolds and Gordon, entered judgment declaring that Sections 940.04(1) and (5) violate the Constitution of the United States. My understanding is that this declaratory judgment has not been reversed or modified by any appellate court. In the same action, the same three-judge court later in 1970 enjoined the district attorney of Milwaukee County and a judge of a county court of Milwaukee County from continuing or initiating prosecutions under Secs. 940.04(1) and (5). 320 F.Supp. 219. On April 19, 1971, the Supreme Court of the United States vacated this injunctive judgment and remanded the case to the three-judge court in the Eastern District of Wisconsin for reconsideration in light of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed.2d 669 (1971); and Samuels v. Mackell and Fernandez v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

In view of the declaratory judgment by the three-judge court in Babbitz, and also in view of a similar decision with respect to a similar Illinois statute by a three-judge United States District Court in Doe v. Scott, 321 F.Supp. 1385, 1390 (N.D.Ill.1971), appeal pending, Supreme Court Docket Nos. 1522, 1523, I conclude that plaintiffs here enjoy a reasonably good chance for ultimate success in this lawsuit on the merits, if it eventuates that a federal three-judge court is free to pass, and does pass, upon the federal constitutional contention.

I find that jurisdiction in this court is present. 28 U.S.C. § 1343(3); 42 U.S.C. § 1983.

The principal question, with respect to the availability of temporary injunctive relief, is whether the plaintiffs have a reasonably good chance ultimately to persuade a federal three-judge court that it should not abstain from acting on the merits of their constitutional claim, and from granting appropriate relief if they prevail on the merits. This question of abstention is rendered unusually difficult by reason of the opinions and orders entered by the Supreme Court of the United States on February 23, 1971, in Younger v. Harris, No. 2; Boyle v. Landry, No. 4, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Samuels v. Mackell, Nos. 7 and 9; Perez v. Ledesma, No. 60, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, No. 41, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; and Byrne v. Karalexis, No. 83, 401 U.S. 216, 91 S.Ct. 777, ...