Crossen v. BreckenridgeCrossen v. Breckenridge
- Reporters:
- ,
- Before:
- Edwards, Miller, Kent, William E. Miller
This appeal arises from the dismissal of a complaint challenging the constitutionality of the Kentucky anti-abortion statute,
I.
The district court‘s opinion concludes that it was without jurisdiction to act in the case. Apparently this conclusion was reached because the trial judge was of the view that the complaint sought only an advisory opinion and therefore did not present a ‘case or controversy,’ and that the plaintiffs lacked standing. Of course, the statutes requiring a three-judge court in certain cases,
The parties on appeal have viewed the decision of the district court substantially as we have stated it, for both sides have briefed as the only issue for decision the question whether the complaint presented a case or controversy within the constitutional jurisdiction of the federal courts. For the reasons set out below, we hold that the appellants Crossen and Craddock have standing, and have presented a case or controversy to the district court. Whether this is also true as to appellant Scott must be determined on remand as indicated below. Although the district court purported to rule, as we hold erroneously, only on the lack of a federally cognizable claim, we shall not so limit our decision. Rather, in our view, the allegations of the complaint giving rise to Article III jurisdiction, are also sufficient to invoke the jurisdiction of a three-judge court. Consequently, it is proper to treat the present appeal as also arising from a denial of a motion to convene the statutory court.3 See Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967); Idlewild Bon .voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962).
II.
The district judge held that the complaint sought an advisory opinion and was thus not cognizable in federal court. In particular, he held that appellant Crossen was not in position to ask for a declaratory judgment before any violation of the statute was consummated.4 This view of ‘case or controversy’ we think, is too narrow. The case or controversy requirement places two limitations on Article III courts. The first is that courts may not encroach on areas reserved to the other branches of government, and the second is that courts may decide only those cases ‘presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’ Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). An actual controversy is supplied by plaintiffs with a ‘personal stake and interest,’ Barlow v. Collins, 397 U.S. 159, 164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), arrayed against persons with adverse legal interests in a sufficiently immediate adversary context to warrant declaratory relief. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Neither violation of the statute nor the pendency of a prosecution is a sine qua non for a declaratory judgment action challenging the constitutionality of a state criminal statute. See Epperson v. Arkansas, 393 U.S. 97, 101-102, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), in which the Supreme Court decided a constitutional challenge to a state statute prohibiting the teaching of evolution in public schools in the absence of a record of any prosecutions under the statute. (But cf. Doe v. Randall, 314 F.Supp. 32 (D.Minn.1970) (three-judge court)). Nor is this a case in which there is an apparent state policy of non-enforcement of a criminal statute making its ‘mere existence * * * insufficient grounds to support a federal court‘s adjudication of its constitutionality * * *.’ Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961).5 Nor do we think that the Constitution requires litigants to subject themselves to the possible harm of a criminal prosecution before seeking relief from an allegedly unconstitutional statute, see Pierce v. Society of Sisters, etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), when actual interference with protected rights is alleged or shown. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
In deciding whether there is a case or controversy frequently the issue of standing must be decided. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Standing ‘concerns, apart from the ‘case’ or ‘controversy’ test, the question whether the interest sought to be protected by the complaintant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). As was also said by the Supreme Court: ‘* * * when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.’ Flast v. Cohen, supar, 392 U.S. at 99-100, 88 S.Ct. at 1952. In deciding which appellants in the present action are properly before the district court, the Flast case teaches that we are to look to the substantive issues ‘to determine whether there is a logical nexus between the status asserted (by an appellant) and the claim sought to be adjudicated.’ Flast v. Cohen, supra, 392 U.S. at 102, 88 S.Ct. at 1953.
III.
The substance of the complaint of the two female appellants, pregnant and non-pregnant, is that the statute deprives them of a fundamental right of marital and bodily privacy under the
Appellant Pozzuto, on behalf of herself and all other similarly situated married women, alleges that she is not pregnant but may desire to terminate furure pregnancies and would be unable to obtain a medical abortion performed by a physician. It does not appear that this appellant presented more than a hypothetical case to the district court. Her only connection with the asserted right of marital privacy is that she may become pregnant in the future. This is not a sufficient nexus to distinguish her from any other woman capable of bearing children. No injury is alleged, actual or threatened, other than the hypothetical possibility that she may be denied an abortion should she become pregnant. Accordingly we hold that appellant Pozzuto does not have standing to challenge the Kentucky abortion statute under the federal Constitution. See Doe v. Dunbar, supra, 320 F.Supp. 1297, 1300 (D.C.olo. 1970) (three-judge court). Similarly, we find that the appellant, Women‘s Liberation Group of Lexington, lacks standing to maintain the action as no facts are alleged to establish a logical nexus between this group or any of its members and the asserted constitutional claim.
Appellant Crossen‘s claim has essentially two aspects. First he alleges that he is unable to pratice medicine to the best of his professional judgment and ability becasuse the contested statute renders him criminally liable for performing a medical operation in terms too vague to inform him of the standard of criminal conduct.6 He secondly alleges that he is deterred and hindered in treating patients asking for abortions, thus claiming an interference with the alleged rights of the pregnant women coming to him. We think that Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) establishes the standing of a doctor to assert the alleged rights of his patients in his own behalf, particularly in view of the fact that there is an actual threat of prosecution for performing an abortion.7 What we have said, supra, concerning the absence of an actual pending prosecution applies equally with respect to the question of standing and the question of justiciability in such a case. Thus we hold theat there is the requisite adversity between appellant Crossen and the appellees so as to raise an ‘actual controversy.’ See Corkey v. Edwards, 322 F.Supp. 1248, 1250 (W.D.N.C1971) (three-judge court).
Appellant Scott, a minister of religion, alleges that he is inhibited in counselling parishioners who seek his advice concernign abortions. It seems that the allegations in the complaint that the statute violates the
IV.
‘When an application for a statutory three-judge court is addressed to a district court, the court‘s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.’ Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). We are persuaded that this case is a proper one for a three-judge court.
The absence of a substantial federal question may be shown when the constitutional claims are clearly without merit or their unsoundness clearly results from previous decisions of the Supreme Court. See California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). That challenges to state antiabortion statutes on federal constitutional grounds may not be characterized as insubstantial or frivolous is evidenced by the many decisions of three-judge courts to which the question has been addressed. Other than the Supreme Court‘s recent ruling in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601, reversing 305 F.Supp. 1032 (D.D.C.1969), on the question of vagueness, there has as yet been no definitive ruling bt that Court on the constitutional bases for such challenges. For examples of three-judge court decisions on the merits of the constitutional issue, see, e.g., Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Dunbar, 320 F.Supp. 1297 (D.Colo. 1970); Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), review granted and question of jurisdiction passed to the hearing on the merits, 402 U.S. 941, 91 S.Ct. 1614, 29 L.Ed.2d 109 (1971); Doe v. Randall, 314 F.Supp. 32 (D.Minn.1970) U.S. appeal pending sub nom. Hodgson v. Randall, 39 U.S.S.W. 3228 (Nov. 24, 1970); Roe v. Wade, 314 F.Supp. 1217 (N.D.Tex. 1970), review granted and question of jurisdiction passed to the 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.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); Babbitz v. McCann, 320 F.Supp. 219 (granting injunction), judgment vacated, 402 U.S. 903, 91 S.Ct. 1375, 28 L.Ed.2d 643.
The complaint formally alleges a basis for equitable relief, and a three-judge court is properly convened to consider the declaratory relief sought independently of the propriety of injunctive relief on the record developed before it. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
Accordingly, the judgment of the district court dismissing the action as to appellants Fran Pozzuto and the Lexington Women‘s Liberation Group is affirmed. The district court‘s judgment of dismissal as to the appellants Crossen, Scott, and Craddock is reversed and the case is remanded as to these parties for further proceedings not inconsistent with this opinion. On remand, the district judge will take appropriate steps to request the Chief Judge of this Court to designate a statutory three-judge court. All remaining issues not resolved in this opinion respecting standing, federal jurisdiction, substantiality, validity of constitutional claims and form of relief as well as the question whether any of the remaining plaintiffs may maintain the action as a class action shall be adjudicated by the court so convened.
Affirmed in part and reversed in part and remanded for further proceedings.
Notes
Abortion or miscarriage. (1) Any person who prescribes or administers to any pregnant woman or to any woman whom he has reason to believe pregnant, at any time during the period of gestation, any drug, medicine or other substance, or uses any instrument or other means, with the intent to procure the miscarriage of that woman, unless the miscarriage is necessary to preserve her life, shall be fined not less than five hundred dollars nor more than one thousand dollars, and confined in the penitentiary for not less than aone nor more than ten years.
(2) If, by reason of the acts described in subsection (1) of this section, the miscarriage of the woman is procured and she does miscarry, causing the death of the unborn child, whether before or after quickening time, the person violating the provisions of subsection (1) of this section shall be confined in the penitentiary for not less than two nor more than twenty-one years.
(3) In any prosecution under subsection (1) or (2) of this section or under K.R.S. 435.040, the consent of the woman to the performance of the operation or the administering of the drug, medicine or other substance shall be no defense, and she shall be a competent witness in the prosecution. For the purpose of testifying she shall not be considered an accomplice.