Jane DOE et al., Appellants (Plaintiffs below), v. John BURK, County Attorney for County of Natrona, et al., Appellees (Defendants below).
No. 4222.
Supreme Court of Wyoming.
Aug. 28, 1973.
513 P.2d 643
Before PARKER, C. J., and McEWAN, GUTHRIE, MCINTYRE, and McCLINTOCK, JJ.
Mr. Justice GUTHRIE delivered the opinion of the court.
This appeal directly submits to this court the question of the constitutionality of our Abortion Law, being
In light of the decisions of the Supreme Court of the United States, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), rehearing denied 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), rehearing denied 410 U.S. 959, 93 S.Ct. 1410, 35 L.Ed.2d 694, our course is firmly directed insofar as it touches the question of the constitutionality of
Plaintiff Doe in a class action for herself and others similarly situated filed her petition alleging that she was in the fourteenth week of her pregnancy and had applied for therapeutic abortion to her physician, who had refused to perform this because of his fear of prosecution under these sections of the abortion law. She prayed for an injunction against the officials who might institute prosecution and for a declaratory judgment that these sections are unconstitutional. The trial court in its judgment held that insofar as these sections applied to women in the first and second trimesters of pregnancy they were violative of plaintiffs’ rights under the due process clause of the
The constitutionality of the first two mentioned sections has passed from our hands because in Wade, 93 S.Ct. at 709-710, the court directs attention to the similarity between our statutes and the Texas Statutes, Arts. 1191-1194 and 1196 of the State‘s Penal Code, Vernon‘s Ann.P.C., leaving us no room for decision.
We see no logical reason why these statutes should not also be held unconstitutional and void in their application to all women. This answer lies in the case of McFarland v. City of Cheyenne, 48 Wyo. 86, 42 P.2d 413, 416-419 (1935). That case recognizes the principle that a statute may be upheld as to one class embraced therein but further recognizes the rule that “courts incline towards treating a penal statute as void in its entirety whenever one section or clause is clearly unconstitutional,” 6 R.C.L. 132; and further that “If the invalid portion is severable from the remainder, and constitutes but an incidental or unimportant part of the law, the remainder may stand,” but that if it is not severable and the main purpose of the law would fail then the entire statute must be declared unconstitutional, 42 P.2d at 416. For these rea
The regulation of abortions in this State is beyond the power of the courts and is solely a matter for the legislature, which must, of course, give heed to the pronouncements of the United States Supreme Court, particularly the summary appearing in Roe v. Wade, supra, 93 S.Ct. at 732-733.
We are, however, faced with a substantial question insofar as the lower court held and the appellants assert the unconstitutionality of
The parties in the lower court apparently proceeded upon the theory that
We have several times held that parties must show an adverse effect upon their rights before this court will recognize a claim of unconstitutionality, Johnson v. Schrader, Wyo., 507 P.2d 814, 818 (1973), and Powers v. City of Cheyenne, Wyo., 435 P.2d 448, 452 (1967), rehearing denied 436 P.2d 961 (1968), and cases cited therein. There is an equally compelling reason for a failure to consider this because this matter was treated apparently incidentally by the parties in their brief and argument. We have recognized that constitutional questions should not be considered unless they be specifically phrased and completely argued, Miller v. Board of County Commissioners of County of Natrona, 79 Wyo. 502, 337 P.2d 262, 271 (1959), and Salt Creek Transp. Co. v. Public Service Commission of Wyoming, 37 Wyo. 488, 263 P. 621, 622 (1928).
This matter is remanded to the district court for the entry of a declaratory judgment, declaring
Affirmed as modified.
Mr. Justice McEWAN (concurring in part and dissenting in part).
I agree with the holding as it applies to
§ 6-77. Criminal abortion.—Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman; or with like intent uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be imprisoned in the penitentiary not more than fourteen years. (Laws 1890, ch. 73, § 31; R. S. 1899, § 4969; C. S. 1910, § 5808; C. S. 1920, § 7086; R. S. 1931, § 32-222; C. S. 1945, § 9-223.)
§ 6-78. Soliciting miscarriage.—Every woman who shall solicit of any person any medicine, drug or substance or thing whatever, and shall take the same, or shall submit to any operation or other means whatever, with intent thereby to procure a miscarriage (except when necessary for the purpose of saving the life of the mother or child), shall be fined not more than five hundred dollars and imprisoned in the county jail not more than six months; and any person who, in any manner whatever, unlawfully aids or assists any such woman to a violation of this section, shall be liable to the same penalty. (Laws 1890, ch. 73, § 32; R. S. 1899, § 4970; C. S. 1910, § 5809; C. S. 1920, § 7087; R. S. 1931, § 32-223; C. S. 1945, § 9-224.)
§ 6-105. Advertising drug or nostrum for procuring abortion or miscarriage.—Whoever prints or publishes any advertisement of any drug or nostrum with intent to obtain utilization of such drug or nostrum for procuring abortion or miscarriage; or sells or gives away, or keeps for sale or gratuitous distribution, any newspaper, circular, pamphlet, or book containing such advertise
GUTHRIE
Justice