Nelson v. Planned Parenthood Center of Tucson, Inc.

• Court: Arizona Court of Appeals
• Writing for the Court: HOWARD; HATHAWAY; KRUCKER; HOWARD; HATHAWAY, C.J., and KRUCKER
• Citation: Nelson v. Planned Parenthood Center of Tucson, Inc., 505 P.2d 580, 19 Ariz.App. 142 (Ariz. App. 1973)
• Decision Date: 03 January 1973
• Docket Number: No. 2,CA-CIV,2
• Parties: Gary K. NELSON, The Attorney General of the State of Arizona, et al., Appellants and Cross-Appellees, v. PLANNED PARENTHOOD CENTER OF TUCSON, INC., et al., Appellees and Cross- Appellants, and D. E. Clark, M.D.; Neil C. Clements, M.D.; John M. Gillette, M.D.; William L. Martin, M.D.; Wallace W. McWhirter, M.D.; the Arizona Right To Life Committee, an Arizona corporation, and Arizona Public Health Association, Amici Curiae. 1302.

Page 580

505 P.2d 580

19 Ariz.App. 142

Gary K. NELSON, The Attorney General of the State of Arizona, et al., Appellants and Cross-Appellees, v. PLANNED PARENTHOOD CENTER OF TUCSON, INC., et al., Appellees and Cross- Appellants and D. E. Clark, M.D.; Neil C. Clements, M.D.; John M. Gillette, M.D.; William L. Martin, M.D.; Wallace W. McWhirter, M.D.; the Arizona Right To Life Committee, an Arizona corporation, and Arizona Public Health Association, Amici Curiae.

No. 2 CA-CIV 1302.

Court of Appeals of Arizona, Division 2.

Jan. 3, 1973.

As Modified on Rehearing Jan. 30, 1973.

Rehearing Denied Feb. 20, 1973.

Review Denied March 20, 1973.

Gary K. Nelson, Atty. Gen. by John S. O'Dowd, Asst. Atty. Gen., Rose Silver, Pima County Atty. by John R. Neubauer, Deputy County Atty., Tucson, for appellants and cross-appellees.

Murphy, Vinson & Hazlett by John U. Vinson, Tucson, for appellant and cross-appellee Bloom.

Miller, Pitt & Feldman, P.C. by Stanley G. Feldman, Elaine S. Pollock, Tucson, for appellees and cross-appellants.

Merchant, Lohse & Bloom by William A. Riordan, Tucson, for amici curiae.

Sullivan, Mahoney & Tang, Phoenix, Associate Counsel for amici curiae.

Paul G. Rees, Jr., Tucson, for amicus curiae Ariz. Public Health Assn.

HOWARD, Judge.

Appellants were the defendants in an action filed in the Superior Court of Pima County wherein appellees sought a declaratory judgment under A.R.S. § 12--1831 et seq., adjudicating the following sections of Arizona Revised Statutes, relating to abortion, to be void for unconstitutionality under the Constitutions of the United States and the State of Arizona:

' § 13--211. . . .

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

§ 13--212. . . .

A woman who solicits from any person any medicine, drug or substance whatever, and takes it, or who submits to an operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless it is necessary to preserve her life, shall be punished by imprisonment in the state prison for not less than one nor more than five years.

§ 13--213. . . .

A person who wilfully writes, composes or publishes a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception, or who offers his services by a notice, advertisement or otherwise, to assist in the accomplishment of any such purposes, is guilty of a misdemeanor.'

Appellee Planned Parenthood Center of Tucson, Inc., is a nonprofit corporation organized pursuant to the laws of the State of Arizona and is actively engaged in providing family planning services in the metropolitan area of Tucson, Arizona; appellees Herbert Pollock, John McEvers, Max Costin, Nathaniel Bloomfield, Arnold Lilien, Louis Brunsting, Stuart Edelberg, Damon Raphael, Robert Oliver and David Trisler, are physicians licensed to practice medicine within the State of Arizona and are practicing the specialty of obstetrics and gynecology within Pima County, Arizona.

A 'Jane Doe' was a plaintiff in the trial court when the action was commenced. 'Jane Roe' was later substituted for Jane Doe and prior to the conclusion of the trial it was stipulated that Jane Roe had obtained an out-of-state abortion.

Appellees alleged that except for the risk of criminal prosecution the appellee Planned Parenthood Center of Tucson, Inc., would refer some of its clients to licensed physicians, when medically justified, in order that abortions could be performed on them to terminate pregnancy, although the procedures were not necessary to save the lives of such pregnant women. These clients would include women who might be suffering from diseases which would present either a substantial risk that the fetus would be born with grave birth defects or would prevent them from adequately caring for the children after birth. Their complaint also alleged that appellee Planned Parenthood Center of Tucson, Inc., if it were not for the risk of criminal prosecution, would afford its services, where medically justified, by means of notices, advertisements and otherwise to assist its clients in procuring abortions and preventing conception.

It was further alleged that the ten named physicians, except for the risk of criminal prosecution under the abortion statutes, would respectively perform or arrange for the performance of abortions on pregnant women, where medically indicated, even though such procedures might not be necessary to save the lives of such women.

The question as to whether a justiciable controversy existed has been previously answered in the affirmative by this court. Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 497 P.2d 534 (1972).

The trial court, in a memorandum opinion, held that a fetus is not a person entitled to Fourteenth Amendment rights and does not have constitutionally protected rights; that A.R.S. § 13--211 is overbroad and violates the fundamental right of marital and sexual privacy of women guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution; and that A.R.S. § 13--211 also violates the constitutional rights of physicians who attend to the medical needs of pregnant women because it denies each physician his right to practice medicine in a manner which permits him to fulfill his professional ethical obligation to his patient. It entered a declaratory judgment in favor of the appellees and against the appellants and enjoined appellants from enforcing the provisions of Arizona's abortion statutes against appellees and their patients, present or prospective. Appellees cross-appeal from that part of the judgment which limited the injunctive relief to them.

At the outset we observe that the concern of both appellants and appellees is motivated by the highest of moral considerations and one should not question the good intentions of either side. Abortion is at once a moral, medical, legal, sociological, philosophical, demographic and psychological issue, not readily amenable to one-sided thinking.

The thrust of appellees' attack against the abortion statutes appears in their opening brief:

'Plaintiffs do not claim that the Legislature is without power to regulate abortion; Plaintiffs freely admit that the Legislature has the power to regulate such matters as the persons by whom the procedure may be performed, the places at which it may be performed, (arguably) the stage of pregnancy at which it may be performed, and (more arguably) some of the reasons which would justify performance.' ¹

They specifically attack these statutes on the following constitutional grounds: (1) A.R.S. § 13--211 is vague and indefinite; (2) the statutes violate the right of personal privacy and the right to recommend, give and receive medical treatment; (3) the statutes are an invalid exercise of the police power because there is no sufficient state interest. (This contention seems to conflict with appellees' admission that the state has a right to regulate the matter of abortion.); (4) the statutes are overbroad; (5) the statutes constitute an establishment of religion; and (6) they discriminate against women having a low economic status.

Appellees commence their argument with a major premise with which we do not agree. They argue that since our abortion statutes are modeled upon and adopted from California law, we should adhere to the legislative history of the California statutes as set forth in People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969). In considering the constitutionality of the California abortion statutes the California court remarked that abortion before quickening had not been a crime at common law and that abortion statutes were enacted primarily to protect the mother's life. Ergo, appellees contend that Arizona's abortion statutes must be reviewed in the light of that legislative intent. Since we have no legislative history in this state, we do not know what the legislature had in mind in 1901 when the original abortion statutes were enacted. Our review of history, however, leads us to the conclusion that there is a twofold reason for the Arizona abortion laws: To embody the belief in the right to life and the necessity of preserving human life even when the existence of 'human life' is problematic to some degree, and to protect the health and life of pregnant women by keeping them from incompetent abortionists and restraining them from attempting dangerous, self-induced abortions.

Thus we see the destruction of the fetus treated as grounds for the death penalty under ancient Assyrian laws. T. J. Meek, 'The Middle Assyrian Laws,' in ancient Near Eastern Texts, 2d ed., pp. 181, 184--185 (J. B. Pritchard Edition Princeton Unversity Press). Philo, a Jewish philosopher from Alexandria, wrote in the first century that one should die who kills an unborn child if it has been 'shaped and all the limbs had their proper qualities, for that which answers to this description is a human being * * * like a statue lying in a studio requiring nothing more than to be conveyed outside.' Philo, De Spec Legibus 3--108--10. Henry Brockton (1216--1272), sometimes known as the 'Father of the Common Law' wrote:

'If there is anyone who has struck a pregnant woman or have given poison to her, whereby he has caused an abortion, if the fetus be already formed or animated, and especially if animated, he commits a homicide.' Twiss, ed. 11 Legibus et Consuetudinibus Angliae, 278 (1879).

We do find an indication of the intent of our state legislators when the abortion statutes were enacted in 1901 as shown by A.R.S. § 13--1695...