Abele v. Markle

342 F. Supp. 800, 1972 U.S. Dist. LEXIS 14134

Opinions

LUMBARD, Circuit Judge.

In Connecticut, statutes prohibit all abortions,¹ all attempts at abortion,² and all aid, advice and encouragement to bring about abortion,³ unless necessary to preserve the life of the mother or the fetus. These statutes are challenged by Dorothy Doe, pregnant, married, and a Connecticut resident, and by numerous female physicians, nurses, and medical counseling personnel residing and practicing in Connecticut.⁴ We

think that by these statutes Connecticut trespasses unjustifiably on the personal privacy and liberty of its female citizenry.

Footnotes

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4a Accordingly we hold the statutes unconstitutional in violation of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.⁵

The decision to carry and bear a child has extraordinary ramifications for a woman. Pregnancy entails profound physical changes. Childbirth presents some danger to life and health.⁶ Bear ing and raising a child demands difficult psychological and social adjustments. The working or student mother frequently must curtail or end her employment or educational opportunities. The mother with an unwanted child may find that it overtaxés her and her family’s financial or emotional resources. The unmarried mother will suffer the stigma of having an illegitimate child. Thus, determining whether or not to bear a child is of fundamental importance to a woman.

The Connecticut anti-abortion laws take from women the power to determine whether or not to have a child once conception has occurred. In 1860, when these statutes were enacted in their present form,⁷ women had few rights. Since then, however, their status in our society has changed dramatically. From being wholly excluded from political matters, they have secured full access to the political arena.⁸ From the home, they have moved into industry; now some 30 million women comprise forty percent of the work force. And as women’s roles have changed, so have societal attitudes. The recently passed equal rights statute⁹ and the pending equal rights amendment demonstrate that society now considers women the equal of men.

The changed role of women in society and the changed attitudes toward them reflect the societal judgment that women can competently order their own lives and that they are the appropriate decisionmakers about matters affecting their fundamental concerns. Thus, surveying the public on the issue of abortion, the Rockefeller Commission on Population and the American Future found that fully 94% of the American public favored abortion under some circumstances and the Commission itself recommended that the “matter of abortion should be left to the conscience of the individual concerned.” Similarly, the Supreme Court has said, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The state has argued that the statutes may be justified as attempts to balance the rights of the fetus against the rights of the woman. While the Connecticut courts have not so construed the statutes,¹⁰ we accept this characterization as one fairly drawn from the face of the statutes. Nevertheless we hold that the state’s interest in striking this balance as it has is insufficient to warrant removing from the woman all decisionmaking power over whether to terminate a pregnancy.

The state interest in taking the determination not to have children from the woman is, because of changing societal conditions, far less substantial than it was at the time of the passage of the statutes. The Malthusian specter, only a dim shadow in the past, has caused grave concern in recent years as the world’s population has increased beyond all previous estimates. Unimpeachable studies have indicated the importance of slowing or halting population growth.¹¹ And with the decline in mortality rates, high fertility is no longer necessary to societal survival.¹² Legislative and judicial responses to these considerations are evidenced by the fact that within the last three years 16 legislatures have passed liberalized abortion laws ¹³ and 13 courts have struck down restrictive antiabortion statutes similar to those of Connecticut.¹⁴ In short, population growth must be restricted, not enhanced and thus the state interest in pronatalist statutes such as these is limited.¹⁵

Moreover, these statutes restrict a woman’s choice in instances in which the state interest is virtually nil. The statutes force a woman to carry to natural term a pregnancy that is the result of rape or incest. Yet these acts are prohibited by the state at least in part to avoid the offspring of such unions. Forcing a woman to carry and bear a child resulting from such criminal violations of privacy cruelly stigmatizes her in the eyes of society. Similarly, the statutes require a woman to carry to natural term a fetus likely to be born a mental or physical cripple. But the state has less interest in the birth of such a child than a woman has in terminating such a pregnancy. For the state to deny therapeutic abortion in these cases is an overreaching of the police power.

Balancing the interests, we find that the fundamental nature of the decision to have an abortion and its importance to the woman involved are unquestioned,, that in a changing society women have been recognized as the appropriate decisionmakers over matters regarding their fundamental concerns, that because of the population crisis the state interest in these statutes is less than when they were passed and that, because of their great breadth, the statutes intrude into areas in which the state has little interest. We conclude that the state’s interests are insufficient to take from the woman the decision after conception whether she will bear a child and that she, as the appropriate decisionmaker, must be free to choose. What was considered to be due process with respect to permissible abortion in 1860 is not due process in 1972.¹⁶

The essential requirement of due process is that the woman be given the power to determine within an appropriate period after conception whether or not she wishes to bear a child. Of course, nothing prohibits the state from promulgating reasonable health and safety regulations surrounding abortion procedures.

In holding the statutes unconstitutional, we grant only declaratory relief to this effect as there is no reason to be lieve that the state will not obey our mandate.¹⁷

NEWMAN, J, concurs in the result with a separate opinion.

1

. Conn.Gen.Stat. 53-30 provides :

§ 53-30. Abortion or miscarriage

Any woman who does or suffers anything to be done, witli intent thereby to produce upon herself miscarriage or abortion, unless necessary to preserve her life or that of her unborn child, shall be fined not more than five hundred dollars or imprisoned not more than two years or both.

2

. Conn.Gen.Stat. 53-29 provides:

§ 53-29. Attempt to procure miscarriage Any person who gives or administers to any woman, or advises or causes her to take or use anything, or uses any means, with intent to procure upon her a miscarriage or abortion, unless the same is necessary to preserve her life or that of her unborn child, shall be fined not more than one thousand dollars or imprisoned in the State Prison not more than five years or both.

3

. Conn.Gen.Stat. 53-31 provides:

§ 53-31. Encouraging the commission of abortion

Any person who, by publication, lecture or otherwise or by advertisement or by the sale or circulation of any publication, encourages or prompts to the commission of the offenses described in section 53-29 or 53-30, or who sells or advertises medicines or instruments or other devices for the commission of any of said offenses except to a licensed physician or to a hospital approved by the state department of health, or who advertises any so-called monthly regulator for women, shall be fined not more than five hundred dollars or imprisoned not more than one year or both.

4

. The original plaintiffs in this suit were the present plaintiffs and other women of child-bearing age. The district judge dismissed their complaint and refused to convene a three-judge court on the ground that the plaintiffs lacked sufficient standing to present a justiciable case within the meaning of Article III, § 2 of the United States Constitution. On appeal, this court held that pregnant women and medical personnel desiring to give advice and aid regarding abortions liad standing to challenge the Connecticut statutes. Abele v. Markle, 452 F.2d 1121 (2 Cir. 1971). Leave was granted for any plaintiff to file an amended complaint alleging pregnancy. The three-judge court was then convened. Peggy Poe filed an amended complaint alleging that she was pregnant and seeking interlocutory relief against the enforcement of the statute. On February 18, 1972, a hearing was held and interlocutory relief denied solely on the ground that plaintiffs had failed to show irreparable injury warranting such relief. Peggy Poe subsequently had an abortion in New York, thus mooting her case. Dorothy Doe thereupon filed affidavits alleging her pregnancy and desire to receive an abortion in Connecticut. Since then the parties have filed briefs stating their positions.

. Plaintiffs have argued that the statutes are unconstitutionally vague. Though the statutes sweep broadly to their desired end of prohibiting abortions, they define with sufficient particularity the prohibited conduct. Accordingly we reject plaintiffs’ vagueness argument. United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971).

5

. The three statutes must be considered together as they are all part of the statutory scheme. It would be a futile exercise to recognize the right of the mother to an abortion, and then deny her the means to vindicate that right by prohibiting her competent professional advice and treatment.

6

. Substantially greater than abortion in the first three months of pregnancy. YWCA v. Kugler, 342 F.Supp. 1048, 1972 ; People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 360-362, 458 P.2d 194, 200-201 (1969), cert. denied 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970) ; Tietze, Morality with Conception and Induced Abortion, 45 Studies in Family Planning 6-8 (Population Council Sept. 1969) ; L. Lader, Abortion 4 (1966).

7

. 1860 Conn.Pub.Acts, ch. LXXI.

Connecticut’s first anti-abortion statute appeared in 1821. 1821 Conn.Stat., tit. 22, § 4. The statute made it a crime to “administer . . . any deadly poison or other noxious or destructive substance, with an intention . . . thereby to murder, or thereby to cause or procure the miscarriage of any woman, then being quick with child . . . .” The maximum penalty¹ was life imprisonment. No statute made it unlawful for the mother to abort herself.

The 1821 statute was replaced in 1830 with a law making it a crime to “administer to any woman, then being quick with child, any medicine . . . or other thing, with an intention thereby to procure the miscarriage of any such woman, or to destroy the child of which she is pregnant; or use . . . any instrument ... to procure such miscarriage, or to destroy such child.” 1835 Conn.Stat., tit. 21, § 15. The penalty prescribed was from seven to ten years.

The 1830 statute was carried forward with insignificant changes into the 1854 compilation, 1854 Conn.Stat.', tit. VI, § 19 and was superseded by the 1860 enactment.

8

. U.S.Const. Amend. XIX, adopted in 1920.

9

. 42 U.S.C. §§ 2000e to 2000e-15. See also Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) ; cf. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

10

. The statutes, infrequently considered by the Connecticut courts, have been construed as advancing two distinct legislative goals: inhibition of promiscuous sexual relationships by prohibiting escape from unintentional pregnancy, and the protection of pregnant women from the dangers of nineteenth century surgery. State v. Carey, 76 Conn. 342, 352, 56 A. 632, 630 (1904). However laudable a purpose the goal of reducing the frequency of promiscuous sexual relationships may have been considered one hundred years ago, it does not amount to a compelling interest today in the face of changed moral standards. Moreover, advances in medical science since 1860 have made abortion in tlie early stages of pregnancy no more dangerous than childbirth. Only a narrowly drawn statute prohibiting abortions endangering the life of the pregnant woman would be justified in light of a legislative intent to protect the woman’s health. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.E'd.2d 508 (1967).

11

. Presidental Commission on Population Growth and the American Future (hereinafter Rockefeller Report) ; D. H. Meadows, D. L. Meadows, J. Randers, IV. Behrens III, The Limits to Growth (1972).

12

. Rockefeller Report at Galley 1-4.

“Reproductive decisions should be freely made in a social context without pronatalist pressures — the heritage of a past when the survival of societies with high mortality required high fertility. The proper mission for government in this matter is to ensure the fullest opportunity for people to decide their own future in this regard, based on the best available knowledge; then the demographic outcome becomes the democratic solution.”

13

. Four states allow abortion upon a woman’s request, 11 Alaska Stat. § 11.15.060; Hawaii Stat. tit. 25, § 453-16; New York Penal Law, McKinney’s Consol.Laws c. 40, § 125.05 (1971 Supp.) ; Wash.Rev.Code Ann. § 9.02.060 (1971 Supp.) and 12 others allow abortion if the pregnancy presents a danger to the physical or mental healtli of the mother or is a result of rape or incest, 41 Arkansas Stat., § 304; California Health and Safety Code §§ 25950-55 (West Supp.1971) ; Colorado 1971 Session Laws, art. 6, § 40-6-101; 24 Del.Code Ann. § 1790; 29 Ga.Code Ann. § 9925a (1971 Supp.) ; 21 Kan.Stat. Ann. § 3407 (1971 Supp.) ; 43 Md.Code Ann. § 137 (1971 Supp.) ; N.M.Stat. 40A-5-1 (1971 Supp.) ; N.C.Gen.Stat. § 14 — 45.1 (1971 Supp.) ; Or.Rev.Stat. § 435.415; S.C.Code Ann. § 16-87 (1971 Supp.) ; Va.Code 18.1-62.1 (1971 Supp.).

14

. Eight decisions are reported. YWCA v. Kugler, 342 F.Supp. 1048 (D.N.J.1972) ; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971) , app. docketed sub nom. Hanrahan v. Doe, 39 U.S.L.W. 3438; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970) prob. juris, postponed to hearing on the merits, 402 U.S. 941, 91 S.Ct. 1614, 29 L.Ed.2d 109 (1971) ; Roe v. Wade, 314 F.Supp. 1217 (N.D.Tex.1970), prob. juris, postponed to hearing on the merits, 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed.2d 108 (1971) ; Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wisc.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1971) ; People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970) ; People v. Barksdale, 1 Crim.L.Bull. 9526 (Cal.Dist.Ct. of App. July 2, 1971) ; State v. Barquet, 262 So.2d 431 (Fla.Sup.Ct., Feb. 14, 1972) . The remainder have been cited to us by the xdaintiffs. People v. Robb, No. 149005, 159061 (Munic.Ct Orange County, Cal. Jan. 9, 1970) ; Florida v. Sachs (Alachua County Court of Record Dec. 10, 1971) ; Commonwealth v. Page, No. 19-353 (Penn.Ct. of Common Pleas, Centre County, Nov. 27, 1970) ; State v. Ketchum (Mich.Dist.Ct. March 30, 1970) ; South Dakota v. Munson (Cir.Ct. Pennington Cty., April 20, 1970). See also Poe v. Menghini, 339 F.Supp. 986 (D.Kan.1972) (striking down abortion statute that required all abortions to be approved by three physicians and to be performed in state accredited hospitals) ; McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (D.W.Pa.1972) (holding fetus not a “person” within 14th Amendment and hence lacks standing to bring suit enjoining abortions performed in hospital).

15

. Rockefeller Report at Galley 1-1.

“In the brief history of this nation, we have always assumed that progress and ‘the good life’ are connected with population growth. In fact, population growth has frequently been regarded as a measure of our progress. If that were ever the case, it is not now. There is hardly any social problem confronting this nation whose solution would be easier if our population were larger. Even now, the dreams of too many Americans are not being realized; others are being fulfilled at too high a cost. Accordingly, this Commission has concluded that our country can no longer afford the uncritical acceptance of the population growth ethic that ‘more is better.’ And beyond that, after two years of concentrated effort, we have concluded that no substantial benefits would result from continued growth of the nation’s population.”

16

. “Due process has not been reduced to any formula ; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society . . . The balance ... is struck . . . having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.” Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting).

17

. The state has argued that since the constitutionality of these statutes is sub judice before the Connecticut Supreme Court of Eri’ors and Appeals, we should abstain from action in the instant case. We decline to do so. None of the plaintiffs here are parties to the state actions nor would they be bound by the Connecticut court’s decision. Neither have they been subjected to state criminal prosecutions. Yet there is a sufficient controversy between the parties to satisfy the requirements of Article III, § 2 of the Constitution. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).