Janice ABELE et al., Plaintiffs, v. Arnold MARKLE, State‘s Attorney for New Haven County, et al., Defendants.
Civ. No. 14291.
United States District Court, D. Connecticut.
April 18, 1972.
342 F. Supp. 800
Daniel Schaefer, Asst. Atty. Gen., George D. Stoughton, Chief Asst. State‘s Atty., Hartford, Conn., for defendants.
Peter Tyrrell, Waterbury, Conn., and Joseph P. Nucera, Bridgeport, Conn., amicus curiae, for defendants.
Before LUMBARD, Circuit Judge, and NEWMAN and CLARIE, District Judges.
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.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-
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 considеrs 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
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 laws13 and 13 courts have struck down restrictive anti-abortion statutes similar to those of Connecticut.14 In short, population growth
Moreover, these statutes restrict a woman‘s choice in instances in which the state interest is virtually nil. The statutes force a woman to cаrry 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-
NEWMAN, J., concurs in the result with a separate opinion.
NEWMAN, District Judge (concurring in the result):
I fully agree with Judge Lumbard‘s conclusion that the plaintiffs are entitled to a judgment declaring the Connecticut abortion statutes unconstitutional, but my reasons for reaching that conclusion cover somewhat less ground. Moreover, having found the statutes unconstitutional, I would grant plaintiff Doe injunctive relief.
I
The essential contention of plaintiff Doe is that the Connecticut abortion statutes unconstitutionally invade her privacy in matters of family and sex. While the Constitutional basis for this claim is imprecise, there can be no doubt after Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), that the Supreme Court recognizes a Constitutionally protected zone of privacy in these matters, founded on either the Ninth Amendment1 or the “penumbras” of the First, Third, Fourth, Fifth and Ninth Amendments as incorporated by the Fourteenth Amendment2, or the concept of liberty protected by the Fourteenth Amendment alone3.
Having recognized a right to privacy in family and sexual matters, however, the Court has not created an immunity against all state regulation of these subjects. Rather the Court has required the demonstration of a subordinating state interest sufficient to justify the invasion of privacy. Before there can be consideration of whether the state interest does justify the invasion of privacy, there must be a determination of what state interest is being advanced by these statutes.
In this case the State suggests the 1860 General Assembly, which enacted the statutes here challenged, was seeking to advance three state interests: protecting the health of the mother, protecting the morals of the mother, and protecting the life of the unborn child. Determining whether these were the state interests is not an easy task, because of the paucity of relevant materials. These statutes contain no legislative findings, nor are there available legislative committee hearings or reports, or floor debate. Since ascertainment of the state interest is an important step in determining whether or not the state may invade an area of personal liberty entitled to a high order of protection, the inquiry as to what state interest was being advanced by the 1860 General Assembly must proceed with some caution, and a clear demonstration of the requisite state interest should be required. Consideration must be given to (a) the evils that were perceived as requiring legislation in 1860, (b) the background of the Connecticut statutes, (c) the text of the statutes, (d) relevant judicial interpretation of these statutes, and (e) contemporary materials from other states pertinent to the same type of statutes.
(a). A scholarly analysis of Nineteenth Century abortion legislation by
(b). Early Connecticut statutes prohibited any person from administering any poison (1821) and later administering any medicine or using any instrument (1830) with intent to cause the miscarriage of а woman quick with child8. Prior to 1860, it was not a crime in Connecticut for a woman to cause her own miscarriage. The statutes challenged in this suit were enacted in 18609. A mother‘s doing or suffering anything to be done with intent to produce a miscarriage or abortion was prohibited, the “quick with child” limitation of prior law was eliminated, and an exception
(c). The text of the 1860 statutes provides only slight guidance as to the state interest being advanced. There is perhaps some significance in the fact that the statutes do not define as a crime taking the life of an unborn child. Compare
(d). Only one decision of the Connecticut Supreme Court, State v. Carey, 76 Conn. 342, 56 A. 632 (1904), sheds any light on the purpose of the Connecticut abortion statutes, but it is especially instructive. The issue in Carey was whether the trial court had erred in failing to instruct the jury in the trial of an abortionist that the testimony of the consenting mother should be considered with the caution normally applied to the testimony of an accomplice. Resolution of this question required the court to make several observations about the pur-
Clear evidence that this reasoning in fact led to the court‘s conclusion is the following passage:
“The criminal intent and moral turpitude involved in the violation by a woman of the restraint put upon her control over her own person is widely different from that which attends the man who, in clear violation of law, and for pay or gain of any kind, inflicts an injury on the body of a woman endangering health and perhaps life.”
Id., at 352-353, 56 A. at 636 (emphasis added). Plainly the court saw Section 53-29 as a statute that protected the mother from an injury that endangered her health and perhaps even her life. Nothing in the court‘s opinion gives any recognition to the idea that the unborn child was a life entitled to the protection of the statute. Since the objective of every abortion is to destroy the fetus and the objective is almost always achieved, the court could not possibly have been referring to the unborn child when it characterized Section 53-29 as a statute that “perhaps” endangers life.
Furthermore, in contrasting the crimes of the mother and the abortionist, the court gave its view of the purposes underlying Section 53-30:
“The public policy which underlies this legislation is based largely on protection due to the woman—protection against her own weakness as well as the criminal lust and greed of others.”
Id. at 352, 56 A. at 636. In the context of the court‘s opinion, protecting the woman “against her own weakness” means protecting her own health and perhaps life against the risk of a dangerous operation to which she might be tempted to submit. Protecting her against the “greed of others” apparently refers to the greed of the abortionist for “pay or gain of any kind.” But protecting her from the “criminal lust”13 of others most likely refers to a totally different purpose—deterring fornication. The only way the statute can protect her from the lust of others is by warning her not to engage in sexual relations on pain of having to bear any child that might be conceived. This pur-
Thus the Connecticut Supreme Court, from a perspective far more relevant to an understanding of 1860 legislative thinking than the present, viewed the major interest underlying the abortion statutes as protection of the health of the mother. An additional interest may have been protection of the morals of the mother. And the court, by reasoning necessary to support the precise holding of the case, assumed that the statutes were not designed to protect the life of the unborn.
(e). Contemporary materials from other states that might shed light on the purposes of their Nineteenth Century abortion statutes are scarce. Professor Means’ exhaustive analysis of the history of the New York legislation demonstrates that protection of the mother‘s health was the purpose of that state‘s laws. Means, 14 N.Y.L.F. 411, supra. The same conclusion was reached by the old New Jersey Supreme Court, only nine years after that state‘s statute was enacted15.
With all these considerations in mind the question to be faced is whether the state interests being advanced in 1860 are today sufficient to justify the invasion of the mother‘s liberty. I agree with Judge Lumbard that protecting the mother‘s health, which plainly was a state interest in 1860 and may well have provided a valid state interest for these statutes when enacted, will not furnish a subordinating state interest today, when the mother‘s life is exposed to less risk by abortion than by childbirth16.
The second justification advаnced by the state, protecting the mother‘s morals, may well have been an objective in 1860. This justification apparently proceeds from the premise that if abortion is prohibited, the threat of having to bear a child will deter a woman from sexual intercourse. Protecting the morals of the mother thus turns out to mean deter-
That leaves the state‘s third justification, protecting the life of the unborn child. Judge Lumbard is willing to assume this was a purpose of the 1860 legislature and finds it constitutionally insufficient. Judge Clarie concludes it was in fact a purpose of the 1860 legislature and finds it constitutionally sufficient. With deference, I am persuaded that protecting the life of the unborn child was most likely not a purpose of the 1860 legislature. At a minimum it has not been shown with sufficient certainty that this was the legislature‘s purpose as to warrant a weighing of this purpose against the mother‘s constitutionally protected rights. Whether a fetus is to be considered the sort of “life” entitled to the legal safeguards normally available to a person after birth is undeniably a matter of deep religious and philosophical dispute. If the Connecticut legislature had made a judgment on this issue and had enacted laws to accord such protection to the unborn child, the constitutionality of such laws would pose a legal question of extreme difficulty, since the legislative judgment on this subject would be entitled to careful consideration. Cf. Byrn v. New York City Health and Hospitals Corp., 329 N.Y.S.2d 722 (App.Div., 2d Dept., 1972), upholding a permissive abortion statute and concluding that the degree of protection to be accorded an unborn child is appropriately a matter for legislative determination. Since that legislative determination has not been shown to have been made, I think it is inappropriate to decide the constitutional issue that would be posed if such a legislative justification was before us.
Because I believe the only interests which the 1860 legislature was seeking to advance are not today sufficient to justify invasion of the plaintiff‘s constitutionally protected rights, I join with Judge Lumbard in holding these statutes unconstitutional.18
In cases under the Establishment Clause, the Court has not upheld statutes because a secular purpose might rationally be postulated; the Court has insisted that there be a demonstration that the legislature in fact acted to achieve a secular purpose. McGowan v. Maryland, 366 U.S. 420, 429-453, 466-511, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). And where statutes are challenged as imposing cruel and unusual punishment or being a bill of attainder, the Court has not avoided these claims by speculating that a non-penal purpose might have existed; it has sought to determine whether in fact the legislative purpose was penal оr non-penal. Trop v. Dulles, 356 U.S. 86, 95-97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); United States v. Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).
Sometimes the Court will consider a legislative purpose that plainly was not contemplated by the legislature, but normally this occurs only when the Court has already found the manifest purpose insufficient and simply goes on to reject the sufficiency of even conjectural purposes. See, e. g., Meyer v. Nebraska, 262 U.S. 390, 403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (rejecting sufficiency of state purpose to limit children‘s mental activities after manifest purpose of promoting English as mother tongue was already rejected). And there may be a few instances where the Court has sustained a statute as achieving a purpose other than the one most likely intended by the legislature. See, e. g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (sustaining legislative discrimination between owner and renter truck advertising on grounds of different traffic hazards, rather than economic assistance). But such cases are extremely rare (Ely, supra, at 1215 n. 31), and when they occur, they uphold legislative economic classifications, not infringements of personal liberty.
In judging the statutes in the present case, the issue is whether the invasion of the mother‘s personal liberty should be weighed against the conjectural purpose of protecting the life of the fetus, once the manifest purpose of protecting the mother‘s health has been found insufficient. No case has been called to our attention that mandates such an adjudicatory process. Once a statute is shown to impair a constitutionally protected freedom, there is no reason to presume that the legislature would want that freedom impaired just because a rational purpose can later be postulated. On the contrary, more respect is shown to a legislature, and to constitutional freedoms, if the only state interest weighed against the impaired freedom is the interest which the legislature sought to advance in enacting the challenged statute. If there can be suggested some other state interest that might justify impairment of the freedom, the legislature should have the opportunity of deciding whether it chooses to advance such an interest. Its affirmative decision might still be unconstitutional, but a reviewing court will then have before it a full development of the competing interests. Such an approach is especially appropriate here, where a purpose that the legislature clearly was advancing was sufficient to supрort the legislation when enacted, but has been rendered insufficient by subsequent factual developments in medicine. In such circumstances, for a court to keep legislation in force by attributing to a legislature a purpose that the legislature most likely did not have is only a subtle but nonetheless substantial usurpation of the legislative function. Such a course would be based on the totally unrealistic assumption that, as to politically sensitive public issues, failure to repeal is the equivalent of a decision to enact.
As to the propriety of injunctive relief, plaintiff must show some equities more substantial than her desire to avoid the expense or inconvenience of defending a criminal prosecution. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). If the abortion of plaintiff Doe required only action on her part, it would be doubtful whether she could sustain her burden. But manifestly that is not the case. She desires to have an abortion performed by competent medical authorities. If she has the constitutional right to an abortion free of the threat of
CLARIE, District Judge (dissenting):
I respectfully disagree and accordingly dissent from the majority opinion. This Court‘s bold assumption of judicial-legislative power to strike down a time-tested Connecticut Stаtute constitutes an unwarranted federal judicial intrusion into the legislative sphere. The state legislature long ago made a basic choice between two conflicting human values. It chose to uphold the right of the human fetus to life over a woman‘s right to privacy and self-determination in sexual and family matters. The legislature has repeatedly refused to alter this decision to the present date.
The majority has reached out and grasped at the nebulous supposition that the protection of fetal life is not the purpose of the Connecticut anti-abortion laws. This assumption is unwarranted. The history of these statutes indicates that they were designed to protect fetal life.
In 1821, the Connecticut legislature adopted the first anti-abortion statute in this country. The legislature in its original treatment of the subject equated abortion with the crime of murder by poison.1 The 1860 amendment for the first time recognized that the mother also was capable of committing a crime by submitting to the abortion. This amendment made it plain that the legislature regarded both the fetus and the woman as the victims of the abortion.
Prior to 1860, the Connecticut statutes concerned only abortions performed up-
State v. Carey, 76 Conn. 342, 56 A. 632 (1904), has been pointed to as authority for the proposition that the anti-abortion statutes are aimed “largely” at protecting the woman and not the unborn child. Actually, Carey was decided on a completely different issue of law, namely, whether or not the woman is an accomplice to the crime of the abortionist, for the purpose of attacking her credibility. The court reasoned that while the woman could not be an accomplice to the crime of the abortionist, she could be guilty of committing a separate and distinct
The majority‘s seizure of this single, isolated dictum articulated some 68 years ago and their reliance upon it as a main girder to support their position, is not only misplaced, but rises to the level of pedanticism, in light of the evidence of the present legislative purpose. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
The real issue here is whether or not the laws were designed to carry out a compelling state interest. Contrary to the majority‘s holding in this case, I respectfully submit that the Connecticut anti-abortion statutes do protect fetal life as a “compelling subordinating state interest.” Griswold v. Connecticut, 381 U.S. 479, 496-497, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). As such, they are, therefore, a constitutionally valid and a proper exercise of the power of the state. I would uphold these state laws, and deny relief. See, Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970).
Certainly, it is natural for a state to feel a compelling need to protect the human fetus.3 Indeed, it is difficult to imagine a more basic legislative concern than the protection of life itself.
“(I)n view of the varied opinions in medical science, is not the determination of when human life commences better left to the legislature, rather than the courts?” Doe v. Scott, 321 F.Supp. 1385, 1395 (N.D.Ill.1971) (Campbell, J., dissenting).
If there is ever to be any modification as to the stage of fetal development at which the fetus is to be protected as a human being, that decision is one uniquely suited to the legislature.
The case of Griswold, supra, which is relied upon by the majority, decided that the state could not, consistent with the zone of privacy emanating from the Bill of Rights, completely prоhibit the use of contraceptives. The Court ruled that prohibiting contraceptives served no compelling state purpose. However, this decision is not applicable to the facts of the present case. It is one thing to prevent the impregnation of the ovum by the spermatazoa, and quite another to deliberately destroy newly formed human life. Different values are invoked.
The majority cite as an extreme illustration that the Connecticut law proscribes abortions, even in situations where the pregnancy is the result of incest or rape, or where there is a likelihood that the child will be born with a serious mental or physical defect. While it is conceded that such pregnancies and births are often fraught with personal hardship, the proper forum in which to present and test such concerns is the legislature. As Justice Frankfurter wrote for the Court in American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 557, 69 S.Ct. 260, 267, 93 L.Ed. 222 (1949):
“Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophesy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people.” (quoted in Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971)).
The people, acting through thеir legislature, have in effect decreed that this new life is an innocent victim, not an unjust aggressor.
In Steinberg v. Brown, supra, a three-judge court, one judge dissenting, concluded that not only may a state constitutionally protect human life in the fetal stage, but that the fifth and fourteenth amendments, which guarantee that no person shall be deprived of life without due process of law, “impose upon the state the duty of safeguarding” fetal life. 321 F.Supp. at 746-747.
Certainly, the repeated failure of the successive attempts to repeal or liberalize the anti-abortion laws can be attributed realistically, only to a legislative determination to protect fetal life.4 As recently as December 10, 1968, the Legislative Council5 recommended to the legislature that no legislative action should be taken on the proposal to liberalize our present laws on abortion. At page 10 in this report, it stated:
“The Council feels that should an unborn child become a thing rather than a person in the minds of people,
in any stage of its development, the dignity of human life is in jeopardy. The family, too, which is the very basis of our society, would be minimized or perhaps destroyed.”
The aforesaid conclusion by the legislative leaders leaves no room to question, but that their real concern was the protection of fetal life.6
As Justice Cardozo pointed out for the Court in Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937): “Our concern here as often is with power, not with wisdom.” The plain issue in this case is whether or not the state has the power through its legislature to protect what it regards as human life, when such choice is supported by substantial medical, biological, and social justification. Where the state has duly enacted laws to further such purposes, such statutes bear the presumption of constitutionality. See United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); and United States v. Weisenbloom, 168 F.2d 698, 700 (2d Cir. 1948).7 This presumption clearly extends to the validity of the purpose underlying any legislative enactment. See, e. g., Street v. New York, 394 U.S. 576, 590-591, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1961).
It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits. The Connecticut legislature has historically, consistently, and affirmatively expressed its determination to safeguard and respect human life. The action of the majority constitutes an unwarranted federal judicial intrusion into the legislative sphere of state government. The judiciary was never intended nor designed to perform such a function. I would uphold the constitutionality of the challenged state statutes and deny relief.