Doe v. Scott

321 F. Supp. 1385, 1971 U.S. Dist. LEXIS 14814

• Court: District Court, N.D. Illinois
• Decided: January 29, 1971
• Docket: Civ. A. 70 C 395
• Status: Published

Opinions

MEMORANDUM OPINION

SWYGERT, Chief Circuit Judge.

This is an action for declaratory and injunctive relief brought to declare that the Illinois abortion statute¹ is violative of the United States Constitution for one or more .reasons.² After a three-judge district court was convened the parties were ordered to restrict their arguments to the allegations that the statute is unconstitutionally vague and unconstitutionally invades the privacy of pregnant women. Oral argument was heard, and the case is now before us on a multiplicity of motions including cross-motions of plaintiffs and defendants for summary judgment.

Plaintiffs Doe and Roe, suing anonymously on behalf of themselves and all other women similarly situated, assert that they were unable to obtain legal, medically safe abortions in Illinois because their physicians reasonably believed that they could not perform such an operation upon the plaintiffs without fear of prosecution by defendant law enforcement officials pursuant to the challenged statute. Plaintiff Doe, a woman of means, subsequently had a successful abortion performed in Great Britain, while plaintiff Roe, who is indigent, was compelled to bear an unwanted child since the option of a foreign abortion was economically foreclosed. Plaintiffs Danforth, Fields, Wynn and Zuspan, all licensed physicians, sue on behalf of themselves, and all other similarly situated physicians, alleging that the existence of the challenged statute interferes with and adversely affects their ability to conduct their medical practices with proper regard for their patients’ best interests. Intervening plaintiff Poe is a high school girl who was pregnant as a result of a forcible rape and sues anonymously by her mother as next friend, asserting the same claims as Doe and Roe.³

The principal defendants are William J. Scott, Attorney General of the State of Illinois, and Edward V. Hanrahan, State’s Attorney of Cook County, Illinois. Both are law enforcement officials of the State of Illinois who are charged with enforcing its laws, including the challenged statute. Intervening defendant Heffeman is a licensed physician who has been granted leave to appear herein as guardian ad, litem, for those conceived but not yet born.

Defendant Scott asserts that he is not a proper party to this action. Although the Illinois statutes do not make the attorney general the chief prosecutor pursuant to the state’s criminal statutes, the leading Illinois case clothes his office with the same authority as attorneys general at the common law. In Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915), the Illinois Supreme Court held that, although the state legislature may confer powers additional to those inherent in the common law office of attorney general, it may not deprive the office of any of its historical powers and duties as chief legal representative of the state.⁴ The court further stated, “[A]t common law the Attorney General was the law officer of the crown and its chief representative in the courts.” ⁵ Furthermore, the attorney general has conceded that he is required to represent the people of the state before the supreme court in all matters in which their interests are apparent and to assist in the prosecution of any criminal trial when he believes the people’s interest requires it.⁶ Indeed, the overlap of the powers and duties of the state’s attorneys of the several counties and the attorney general is such that it appears that, where their powers are concurrent, either officer may initiate appropriate proceedings in the name of the state if the other has not acted.⁷ We hold, therefore, that the attorney general is a proper party defendant in this action.

Defendants challenge the standing of the plaintiffs to raise the claims which they assert. The female plaintiffs allege that the operation of the statute deprived them of their asserted right to terminate unwanted pregnancies in the state of their residence. They assert that they have been injured either by having been forced to bear unwanted children or by having to travel to foreign states to obtain abortions by qualified medical personnel. We have no doubt that, “On the basis of plaintiffs’ substantive contentions, * * * there * * * exists a ‘nexus between the status asserted by the [female plaintiffs] and’the claim(s) (they present).’” ⁸ The standing requirements of Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), are thus satisfied by the litigative posture of the female plaintiffs. Moreover, the physician-plaintiffs have standing to raise the claims of their patients even if we assume that no independent claim of theirs could withstand a motion for judgment on the pleadings.⁹ All plaintiffs thus have standing to raise the claims which they assert.

I

Plaintiffs contend that the Illinois abortion statute must be adjudged unconstitutionally vague. We agree. The statute prohibits all abortions except those “performed by a physician * * * in a licensed hospital or other licensed medical facility because necessary for the preservation of the woman’s life.” ¹⁰ Plaintiffs point to the italicized language as the basis for their assertion that the statute is invalid under the due process clause of the fourteenth amendment because of its imprecision. It is clear that, as the Supreme Court has said:

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. * * * “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its applieation, violates the first essential of due process of law.” ¹¹

The question thus becomes whether men of ordinary intelligence must guess at the meaning of the words, “necessary for the preservation of the woman’s life.”

We note at the outset that these words, or substantially identical ones, have convinced some courts that they are incapable of certain interpretation,¹² and other courts have disagreed.¹³ If courts cannot agree on what is the essential meaning of “necessary for the preservation of the woman's life” and like words, we fail to see how those who may be subject to the statute’s proscriptions can know what it prohibits. On the issue of vagueness, we are in agreement with the reasoning of People v. Belous ¹⁴ and Roe v. Wade.¹⁵ One need not inquire in great depth as to the meaning of such words as “necessary” and “preserve” to conclude that the holdings of those cases are correct. “Necessary” has been characterized as vague by the United States Supreme Court¹⁶ and has been similarly described by other courts.¹⁷ It is “a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, proper, or conducive to the end sought.” ¹⁸

The word “preserve” is similarly susceptible of so broad a range of connotations as to render its meaning in the statute gravely amorphous, since it may mean anything from maintaining something in its status quo to preventing the total destruction of something.¹⁹ The treating physician who believes an abortion is medically or psychiatrically indicated thus finds himself threatened with becoming a felon as well as with the possibility of losing his right to practice his profession if he errs in the legal interpretation of a penal statute, the words of which have not been sufficiently definite for courts to agree on their meaning.²⁰ This is precisely the kind of situation that the void-for-vagueness doctrine is intended to prevent.

II

Aside from the fact that the statute is vague, its practical effect is to make abortion unavailable to women unless there is a.reasonable certainty that death will result from a continuation of pregnancy. This practical effect of the statute constitutes an intrusion on constitutionally protected areas too sweeping to be justified as necessary to accomplish any compelling state interest. These protected areas are women’s rights to life, to control over their own bodies, and to freedom and privacy in matters relating to sex and procreation.

The Supreme Court has long recognized that a person possesses a fundamental, constitutionally protected right to privacy and freedom in certain personal and intimate matters, especially those pertaining to the home and family.²¹ This right was developed and applied by the Supreme Court to strike down a state’s birth control statute in Griswold v. Connecticut.²² The Court there held that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy.” ²³ Griswold set out in broad terms the right of married couples to be free from governmental intrusion into their intimate affairs:

We cannot distinguish the interests asserted by the plaintiffs in this case from those asserted in Griswold. In both, “[t]he essence of the interest sought to be protected * * * is the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.”²⁴ It is as true after conception as before that “there is no topic more closely interwoven with the intimacy of the home and marriage than that which relates to the conception and bearing of progeny.” ²⁵ We believe that Griswold and related cases establish that matters pertaining to procreation, as well as to marriage, the family, and sex are surrounded by a zone of privacy which protects activities concerning such matters from unjustified governmental intrusion.²⁶

We do not agree with the defendants that the choice whether to have a child is protected before conception but is not so protected immediately after conception has occurred.²⁷ A woman’s interest in privacy and in control over her body is just as seriously interfered with by a law which prohibits abortions as it is by a law which prohibits the use of contraceptives. The majority of courts which have considered the question have so held, concluding that a woman has a fundamental interest in choosing to terminate a pregnancy. In People v. Belous, supra, the California Supreme Court struck down that state’s abortion statute, holding:

The fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a “right of privacy” or “liberty” in matters related to marriage, family, and sex ²⁸

In United States v. Vuitch, supra, a single district court judge struck down a portion of the District of Columbia abortion statute, saying:

There has been, moreover, an increasing indication in decisions of the Supreme Court of the United States that as a secular matter a woman’s liberty and right of privacy extends to family, marriage and sex matters and may well include the right to remove an unwanted child at least in early stages of pregnancy. * * * Matters have certainly reached a point where a sound, informed interest of the state must affirmatively appear before the state infringes unduly on such rights.²⁹

More recently, in Babbitz v. McCann,³⁰ and in Roe v. Wade, ³¹ three-judge courts found that the. right to choose whether to bear a child was fundamental and struck down state abortion statutes.

Of course, the determination that women have a fundamental interest in choosing whether to terminate pregnancies does not establish that the Illinois statute is unconstitutional. The critical issue is whether the state has a compelling interest in preventing abortions in the early stages of pregnancy except where the death of the woman is reasonably certain.³² A statute which requires a woman to risk physical and emotional harm short of death when a therapeutic abortion would remove that risk does not bear scrutiny as a health measure for the benefit of women.

Moreover, a statute which forces the birth of every fetus, no matter how defective or how intensely unwanted by its future parents, displays no legitimately compelling state interest in fetal life, especially when viewed with regard for the countervailing rights of pregnant women. We do not believe that the state has a compelling interest in preserving all fetal life which justifies the gross intrusion on a woman’s privacy which is involved in forcing her to bear an unwanted child. We therefore rule that during the early stages of pregnancy — at least during the first trimester — the state may not prohibit, restrict or otherwise limit women’s access to abortion procedures performed by licensed physicians operating in licensed facilities.

In holding that the state has not shown sufficient justification to permit us to uphold its abortion statute in its entirety, we are in agreement with the court’s statement in Babbitz v. McCann:

The defendants urge that the state’s interest in protecting the embryo is a sufficient basis to sustain the statute. Upon a balancing of the relevant interests, we hold that a woman’s right to refuse to carry an embryo during the early months of pregnancy may not be invaded by the state without a more compelling public necessity than is reflected in the statute in question.³³

Accordingly, the Illinois abortion statute, Illinois Revised Statutes, Chapter 38, Section 23-1, is unconstitutional because it is impermissibly vague and unduly infringes women’s right to privacy insofar as it restricts or prohibits the performance of abortions during the first trimester of pregnancy by licensed physicians in a licensed hospital or other licensed medical facility,

ORDER

1. The foregoing opinion shall stand as findings of fact and conclusions of law.

2. The motion of plaintiffs for summary judgment is hereby granted, and the motion of defendants for summary judgment is hereby denied.

3. The motion of defendant Scott to dismiss this action as against him is hereby denied.

4. All other motions presently outstanding are hereby denied to the extent not expressly granted herein or mooted by or subsumed in the foregoing opinion or this order.

It is therefore ordered, adjudged and decreed:

1. That the Illinois abortion statute, Illinois Revised Statutes, Chapter 38, Section 23-1, be and the same is hereby declared to be violative of the Constitution of the United States and is null and void insofar as it restricts or prohibits the performance of abortions during the first trimester of pregnancy by licensed physicians in a licensed hospital or other licensed medical facility.

2. That the defendants, their officers, agents, servants, employees, and attorneys, and those persons who act in active concert or participation with them be and the same are hereby permanently enjoined, without bond, from executing or enforcing, or threatening to execute or enforce, the Illinois abortion statute, Illinois Revised Statutes, Chapter 38, Section 23-1 against physicians licensed to practice medicine and surgery in all its branches performing abortions during the first trimester of pregnancy in a licensed hospital or other licensed medical facility.

1 . Ill.Rev.Stat., cli. 38, § 23-1 (1969),

2 . Jurisdiction is based upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281 and 2284.

3 . On March 23, 1970, Poe moved for leave to intervene and for the issuance of a temporary restraining order enjoining the defendants from attempting to enforce the Illinois statute against Poe’s physician for terminating her pregnancy. On March 27 Poe was allowed to intervene, but her request for a restraining order was denied. On March 30 the Court of Appeals for the Seventh Circuit issued the temporary restraining order requested by Poe.

4 . 270 Ill. at 337-339, 110 N.E. at 143-144.

5 . 270 Ill. at 336, 110 N.E. at 143.

6 . Ill.Rev.Stat. ch, 14, § 4 (1969).

7 . E. g., People ex rel. Kunstman v. Shinsaku Nagano, 389 Ill. 231, 59 N.E.2d 96 (1945); People ex rel. Miller v. Fullenwider, 329 Ill. 65, 160 N.E. 175 (1928). But see People v. Flynn, 375 Ill. 366, 368, 31 N.E.2d 591, 593 (1940).

8 . Roe v. Wade, 314 F.Supp. 1217, 1220 (N.D.Tex.1970) (citing Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed. 2d 947 (1968)).

9 . Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).

10 . Ill.Eev.Stat., eh. 38, § 23-1 (b) (1969) (emphasis added).

11 . Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); accord, Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951); Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

12 . E. g., Roe v. Wade, 314 F.Supp. 1217, 1223 (N.D.Tex.1970); United States v. Vuitch, 305 F.Supp. 1032, 1034 (D.D.C. 1969); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, 197 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970).

13 . E. g., Babbitz v. McCann, 310 F.Supp. 293, 298 (E.D.Wis.1970); Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217, (E.D.La.1970); Steinberg v. Rhodes, 321 F.Supp. 741 (N.D. Ohio, filed Dec. 18, 1970).

14 . 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).

15 . 314 F.Supp. 1217 (N.D.Tex.1970).

16 . Yu Cong Eng v. Trinidad, 271 U.S. 500, 517-518, 46 S.Ct. 619, 70 L.Ed. 1059 (1926).

17 . E. g., Phillips v. Borough of Folcroft, 305 F.Supp. 766, 770-771 (E.D.Pa.1969); Westphal v. Westphal, 122 Cal.App. 379, 382, 10 P.2d 119, 120 (1932).

18 . Black’s Law Dictionary 1181 (4th ed. 1957).

19 . Webster’s Third New International Dictionary 1794 (1961).

20 . The problem faced by a treating physician in Illinois is as described in Roe v. Wade, 314 F.Supp. 1217, 1223 (N.D.Tex. 1970):

How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years? These questions simply cannot be answered.

21 . See, e. g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); and Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

22 . 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

23 . Id. at 484, 85 S.Ct. at 1681.

24 . Roe v. Wade, 314 F.Supp. 1217, 1221 (N.D.Tex.1970).

25 . Babbitz v. McCann, 310 F.Supp. 293, 299 (E.D.Wis.1970).

26 . As former Supreme Court Justice Tom C. Clark has said:

The result of [Griswold and its predecessors] is the evolution of the concept that there is a certain zone of individual privacy which is protected by the Constitution. Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person’s marriage, home, children, and day-to-day living habits. This is one of the most fundamental concepts that the Founding Fathers had in mind when they drafted the' Constitution.

Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola Univ. (L.A.) L.Rev. 1, 8 (1969).

27 . Again, Mr. Justice Clark observed : [A]bortion falls within that sensitive area of privacy — the marital relation. One of the basic values of this privacy is birth control, as evidenced by the Griswold decision. Griswold’s act was to prevent formation of the fetus.

This. the Court found, was constitutionally protected. If an individual may prevent conception, why can he not nullify that conception when prevention has failed?

Id. at 9.

28 . 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 359, 458 P.2d 194, 199 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970).

29 . 305 F.Supp. 1032, 1035 (D.D.C.1969).

30 . 310 F.Supp. 293 (E.D.Wis.1970).

³¹

32 . As the court stated in Roe v. Wade, 314 F.Supp. 1217, 1222 (N.D.Tex.1970): Since the Texas Abortion Laws infringe upon plaintiffs’ fundamental right to choose whether to have children, the burden is on the defendant to demonstrate to the satisfaction of the Court that such infringement is necessary to support a compelling state interest.

See also Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Griswold v. Connecticut, 381 U.S. 479, 497, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).

33 . 310 F.Supp. 293, 301 (E.D.Wis.1970).