Rodos v. Michaelson, Civ. A. No. 750167.

• Decision Date: 10 June 1975
• Docket Number: Civ. A. No. 750167.
• Citation: 396 F. Supp. 768
• Parties: Dr. J. Jerry RODOS et al. v. Julius C. MICHAELSON, in his official capacity as Attorney General of the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

396 F. Supp. 768

Dr. J. Jerry RODOS et al. v. Julius C. MICHAELSON, in his official capacity as Attorney General of the State of Rhode Island.

Civ. A. No. 750167.

United States District Court, D. Rhode Island.

June 10, 1975.

COPYRIGHT MATERIAL OMITTED

Milton Stanzler and Richard A. Boren of Abedon, Stanzler, Biener, Skolnik & Lipsey, Bruce M. Selya, Providence, R. I., for plaintiffs.

Julius C. Michaelson, Atty. Gen., for Rhode Island, Providence, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

Plaintiffs, nineteen doctors and two women seeking abortions, bring this action for declaratory and injunctive relief against the Attorney General of the State of Rhode Island to challenge § 11-23-5 of the Rhode Island General Laws, which was enacted on or about May 21, 1975 to take effect upon passage. Section 11-23-5 provides:

"11-23-5. Willful killing of unborn child. The willful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, or, the administration to any woman pregnant with a quick child of any medication, drug, or substance whatever, or, the use of any instrument or device or other means, with intent thereby to destroy such child, unless the same be necessary to preserve the life of such mother, shall in the event the death of such child be thereby produced, be deemed manslaughter.

In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.

`Quick Child' — For the purposes of this section `quick child' shall mean an unborn child whose heart is beating, who is experiencing electronically-measurable brain waves, who is discernibly moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of usual medical care and facilities available in this state."

Plaintiffs Jane Doe and Rebecca Roe (both pseudonyms) also seek certification as class representatives for all women similarly situated.

The matter is presently before the Court on plaintiffs' motion for a temporary restraining order and to convene a three-judge court. A hearing was held on June 2, 1975 and continued on June 6. At the hearing Dr. Andrew Blazar, one of the named plaintiffs, testified and was cross-examined by the defendant. Dr. Blazar testified that, as a specialist in obstetrics and gynecology, he is on the staff of the Women's and Infants' Hospital, commonly referred to by its former name, "Women's Lying-In," and in that capacity he has examined plaintiffs Jane Doe and Rebecca Roe and is familiar with their medical histories. Each seek to have their pregnancy terminated at Women's Lying-In. According to Dr. Blazar, Jane Doe as of June 2 was approximately 19 weeks pregnant and Rebecca Roe as of June 6 was approximately 17 weeks pregnant. Dr. Blazar acknowledged that even the best medical judgment on this question is subject to a margin of error of approximately one week in either direction. Plaintiff Doe was originally scheduled to have her pregnancy terminated by "hypertonic saline infusion" approximately ten days earlier.¹ This procedure has been performed at Women's Lying-In to terminate pregnancies of approximately 16 to 19 weeks. The hospital does not perform abortions beyond 20 weeks. Shortly after § 11-23-5 was enacted, the hospital staff collectively and Dr. Blazar individually determined to suspend all abortions by saline infusion, for the first time in twenty months, because they fear prosecution under this new law. No saline procedures have been performed at the hospital since that time.

Justiciability

In making his argument that injunctive relief is inappropriate, the defendant suggests that plaintiffs' fear of prosecution is unreasonable and speculative at best.

"Although the exact time in the chronology of the pregnancy when the fetus becomes `viable' may vary, the medical evidence reveals that viability, at its earliest, occurs substantially beyond the seventeenth week. L. Hellman & J. Pritchard, Williams Obstetrics, 493 (14th ed., 1971), cited with approval, Roe v. Wade, 410 U.S. 113 at 160, fn. 60, 93 S.Ct. 705, 35 L.Ed. 2d 147. Thus, there can be no fear on the part of the physicians that prosecution will necessarily follow the abortion of a seventeen week old fetus since that fetus would, according to the medical literature, be incapable of surviving the trauma of birth with the aid of usual medical care and facilities available in the state."

Defendant's Supplemental Memorandum at 2.

Defendant has thus raised the question whether there is a "live and acute" controversy between the parties. The statute in question, unlike the one before the Supreme Court in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), "is recent and not moribund." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In addition, there is no question that plaintiffs Doe, Roe, and all other women approximately 16 to 19 weeks' pregnant are presently unable to secure an abortion at Women's Lying-In² as a result of the doctors' position on § 11-23-5. There can be little doubt that each woman's decision to obtain an abortion is being thwarted by the new Rhode Island enactment, however reasonable or unreasonable the doctors' fear of prosecution thereunder might be. Thus, as to plaintiffs Doe and Roe, the "`logical nexus between the status asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S. 83, at 102, 88 S. Ct. 1942, 20 L.Ed.2d 947 and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present" and their standing to challenge § 11-23-5 is thereby demonstrated.³Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Doe v. Israel, 358 F.Supp. 1193, 1197-1198 (D.R. I.1973), stay denied, 482 F.2d 156 (1st Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 772. See Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Women's Liberation Union of Rhode Island, Inc. v. Israel, 379 F.Supp. 44, 46 (D.R.I.1974), aff'd, 512 F.2d 106 (1st Cir. 1975).

Furthermore, plaintiff doctors' fear of prosecution can hardly be termed unreasonable or merely speculative in this case although no doctor has yet been prosecuted or threatened with prosecution under this statute. It is difficult to detect any difference between the position of these plaintiffs and the plaintiff-physicians in Doe v. Bolton, supra, wherein the Supreme Court stated at 410 U.S. 188, 93 S.Ct. at 745:

"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 directly 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."

As alleged in the Complaint, plaintiff physicians are all on the staff of Women's and Infants' Hospital and specialize in obstetrics and gynecology. They assert that § 11-23-5 applies to prohibit certain abortions performed by them at Women's Lying-In prior to the third trimester of a woman's pregnancy.

While the Complaint suffers some-what from the conclusory nature of its allegations, Dr. Blazar's testimony revealed the basis of the asserted fear of prosecution. Although he was not aware of a case where a nineteen-week old fetus had survived, the gestational age of a fetus cannot conclusively be determined prior to termination and is always subject to a margin of error. In addition, he stated that he was unable to determine at what point in pregnancy § 11-23-5 would apply, based on the definition of "Quick Child" within the statute.⁴ Furthermore, the hypertonic saline infusion technique eliminates the ability to provide life-support services to the fetus after it is removed from the womb so as to offset an underestimate in gestational age. Thus, were he to terminate a woman's pregnancy by saline infusion, Dr. Blazar could not with certainty eliminate the possibility that fetal development had been underestimated and that the fetus fell within the definition of "Quick Child" under the statute. But by the earliest point for making such a determination, the fetus would have been destroyed and medical aid, whether "usual" or "extraordinary," would be unavailing. At the same time, Dr. Blazar stated that, in his medical judgment, no other medical procedure which can be used to terminate a 16 to 24-week pregnancy, such as a hysterotomy, even approximates the safety to the pregnant woman of saline infusion, and he therefore would not prescribe an alternate procedure. He could only recommend that Jane Doe seek an abortion out of the State. See note 1 supra.

Although defendant suggested in his brief, quoted supra at page 771, that any fear of prosecution for termination of a seventeen-week pregnancy would be unreasonable,⁵ upon questioning of the Court the defendant specifically declined to state that the termination of an estimated nineteen-week pregnancy could never fall within the purview of § 11-23-5 and cited the same possibility of error that caused Dr. Blazar to fear prosecution under the statute and to refuse to perform any abortions after the fifteenth week. Certainly the doctor is not required to expose himself to prosecution for manslaughter in the event that he underestimates gestational age before the Court can recognize the existence of a justiciable controversy. Doe v. Bolton, supra, 410 U.S. at 188, 93 S.Ct. 739.

Three-Judg...