Montalvo v. Colon

• Decision Date: 18 June 1974
• Docket Number: Civ. No. 1113-73.
• Citation: 377 F. Supp. 1332
• Parties: Doctor Angel Acevedo MONTALVO and Julia de Jesus Ortiz, Plaintiffs, v. Hon. Rafael Hernandez COLON, Governor of the Commonwealth of Puerto Rico, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

377 F. Supp. 1332

Doctor Angel Acevedo MONTALVO and Julia de Jesus Ortiz, Plaintiffs, v. Hon. Rafael Hernandez COLON, Governor of the Commonwealth of Puerto Rico, et al., Defendants.

Civ. No. 1113-73.

United States District Court, D. Puerto Rico.

June 18, 1974.

Santos P. Amadeo, Rio Piedras, P. R., for plaintiffs.

Dept. of Justice, Commonwealth of Puerto Rico, through Jaime Rodriguez Lecoeur, Old San Juan, P. R., for defendants.

Before COFFIN, Circuit Judge, and TOLEDO and PESQUERA, District Judges.

OPINION

PER CURIAM.

Plaintiff Julia de Jesus Ortiz,¹ a citizen of the Commonwealth of Puerto Rico, is a forty year old woman who has borne eleven children, of whom nine are alive. At the commencement of this suit she was approximately one month pregnant. Plaintiff Dr. Angel Acevedo Montalvo is Mrs. Julia de Jesus Ortiz' personal physician. Respondents are the Governor, the Secretary of Justice, and the Police Superintendent of the Commonwealth of Puerto Rico. Plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, claiming that certain provisions of the criminal laws of Puerto Rico which deal with abortions are in violation of the Constitution of the United States in light of the recent Supreme Court decisions in 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 complaint alleges that plaintiff Mrs. de Jesus Ortiz wishes to have an abortion and that Dr. Acevedo is willing to perform such an abortion upon her but that they fear criminal prosecution if they proceed. The criminal statutes in question are 33 L.P.R.A. §§ 1051-1054, which provide:

"It is hereby prohibited, except in the case of therapeutic prescription by a physician duly authorized to practice medicine in Puerto Rico, for the purpose of preserving health or life, to prescribe, advise, or induce abortion, or to practice abortion on a pregnant woman. (33 L.P.R.A. § 1051)

"Every person who, in violation of the provisions of section 1051 of this title, may furnish, prescribe, or administer to a pregnant woman, by oral, rectal, or vaginal injections, any drug, substance or medicinal, therapeutics, or opotherectic agent, or who uses any surgical instrument, or mechanical agent with the intention or purpose of causing abortion, or practicing an abortion, shall be guilty of a felony, and, upon conviction shall be punished by imprisonment . . . . (33 L.P.R.A. § 1052)

"Every person who provides, supplies, or administers to any woman, or forces any such woman to take any medicine, drug or substance, or uses or employs any instrument or other means whatever with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, and every person who helps to commit any such act shall be punishable by imprisonment in the penitentiary for from two to five years. (33 L.P.R.A. § 1053)

"Every woman who solicits of any person any medicine, drug or substance whatever, and takes the same, or who submits to any operation, or to any other surgical intervention, or any other means, with the intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary for from two to five years." (33 L.P.R.A. § 1054)

The complaint further alleges that the abortion is not required because of any known medical risk associated with the pregnancy, but because Mrs. de Jesus Ortiz "does not want to have any more children". In an amendment to the original complaint it is asserted that subsequent to the filing of this action, Dr. Acevedo has been approached by other women who desire to have an abortion under circumstances similar to those of Mrs. de Jesus Ortiz.

I. Justiciability

After this action had been instituted plaintiffs were advised by counsel for defendants that no criminal prosecutions would result from performance of an abortion upon Mrs. de Jesus Ortiz. Defendants accordingly argue that this case is not justiciable, for lack of a live case or controversy.

It is clear that as of the commencement of this suit plaintiffs possessed the requisite standing to challenge the Commonwealth's abortion statutes. See Roe v. Wade, supra, Doe v. Bolton, supra. Indeed, we do not understand defendants to seriously contest this point. But it is the contention of defendants that once plaintiffs had received formal assurance that they would be subject to no criminal liability they thereupon lost their standing, or the case was rendered moot.

The reason given by the defendants for their assurance to the plaintiffs is that an abortion performed upon Mrs. de Jesus Ortiz would be "therapeutic" and thus exempt from liability under the provisions of 33 L.P.R.A. § 1051. To the extent that this point coincides with the merits of this controversy we will postpone its consideration to our discussion of the merits. At this juncture our concern is only with the question of whether, despite defendants' assurance, plaintiffs have "established that `personal stake in the outcome of the controversy', Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), that insures that `the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution', Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) . . . ." Roe v. Wade, supra, at 123, 93 S.Ct. at 712.

The assurance of no prosecution given in this case was an individualized ad hoc decision, perhaps easily arrived at in light of Mrs. de Jesus Ortiz' age and number of children. We are referred to no written statement of policy, criteria, or long standing custom, with which the assurance given here is consistent. Nor could it be argued that prior to the issuance of the promise not to prosecute, plaintiffs' fears of possible criminal penalties were fanciful. To accept without question the proposition that by virtue of a prosecutorial decision not to prosecute, made after a civil rights action of this type has been initiated, a federal court can always be deprived of jurisdiction, does not appeal to us. And, as the Chief Justice has said, referring to the statute at issue in Roe v. Wade, "no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion."²

We need not decide this issue. Whatever the effect of defendants' assurance upon Mrs. de Jesus Ortiz, Dr. Acevedo retains his standing, and confers upon this suit a continuing adversary nature. As the Supreme Court said in Doe v. Bolton:

"We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." 410 U. S. at 188, 93 S.Ct. at 745.

It is alleged in the amended complaint that Dr. Acevedo has been in professional contact with other women who desire abortions but are deterred by the abortion statutes. Furthermore, this kind of recurring situation can be anticipated in a physician's practice of his profession. The impact of the abortion statutes upon a physician like Dr. Acevedo is thus a continuing one, and is not obviated by an isolated ad hoc promise of immunity. We therefore find this case justiciable.

II. Abstention

Defendants also suggest that this court abstain and wait until the Supreme Court of the Commonwealth has had an opportunity to construe the Puerto Rican abortion statutes in the light of Roe v. Wade and Doe v. Bolton. While we find this question to be one not free from all doubt, we conclude that abstention would be unwarranted. We are fully cognizant of the admonishment of Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970), that federal courts not intervene needlessly in matters which could be resolved by adjudication in the courts of the Commonwealth. But we also recognize that this case deals with extremely important rights whose exercise is unusually dependent upon temporal considerations. The right to privacy which is associated with the decision to terminate a pregnancy is a right which is effectively lost through even minor delay. As in cases involving freedom of speech, abstention in this kind of case may involve "high costs", cf. Druker v. Sullivan, 458 F.2d 1272, 1274 (1st Cir. 1972). "Because of the delay caused by the abstention doctrine, it is particularly disfavored in First Amendment or civil rights cases . . . .", Marin v. University of Puerto Rico, 346 F.Supp. 470, 478 (D.P.R.1972), see also Mayor of the City of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), Boggett v. Bullitt, 377 U.S. 360, 379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), McNeese v. Bd. of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), Tomas Torres Cintron v. State Bd. of Education, (No. 764-72, D.P.R.1974). We therefore think it incumbent upon us, under all of the circumstances, to deal with this important and sensitive issue at this time, and to resolve some of the doubt which now surrounds this question.³ Cf. Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973).⁴

III. Applicability of Roe v....