Roe v. Rampton

opinion. an the result and filed LEWIS, Judge, Before RIT- Chief TER, Judge, Ritter, Judge, Chief District dis- District and AN- Chief DERSON, Judge. opinion. District filed sented stipulated parties to the facts in RE- INJUNCTIVE DENYING ORDER agreed that matter be the and the case OF ABSTEN- ORDER LIEF AND together finally submitted, re- with the WITH DISMISSAL AND TION temporary quest injunctive relief, to for OPINIONS ACCOMPANYING 21, three-judge on the court November sepa- forth the set reasons For the three-judge composed court court, follow, this on opinions which rate Lewis, of Chief Honorable David T. temporary- 1974, 22, denied November Judge Ap- the United Court of of States enters its or- now injunctive and relief peals Circuit, the for Tenth Honorable dismissing abstaining the and der Ritter, Judge of the W. Chief Willis the state to allow action above-entitled District Court for the United States including questions, to decide courts Utah, of and Aldon District Honorable action, class determination Judge Anderson, J. Associate of by presented this case. for United States District Court case ordered that this therefore It is duly Utah, District of convened was dismissed. herewith it is and was November matter presented. 1974, pur- 22, On November ANDERSON, District ALDON J. agreed upon by to an Chief suant order Judge. Judge Judge Anderson, Lewis and with 4, 1974, plaintiff On November Judge dissenting, Chief Ritter minute matter filed a class action above-entitled entry denying preliminary entered was declaratory injunctive relief for reserving injunctive relief, for subse- seeking ruling Ann. that Code § quent issues determination the other (1974) 76-7-304(2) contravenes by pleadings. raised Amendments Fifth and Fourteenth FACTS Constitution the United States regulation of in its abor- is overbroad Mary years Roe is seventeen Plaintiff Utah, tions in of constitutes the State age. At was the time action reg- invalidly privacy, of her an invasion hearing filed and at the time of she relationship physi- her ulates her with pregnancy. was in her trimester cian, complied with, and, if would force Preliminary injunctive denied relief was provi- her to under incriminate herself day on the last of her first trimester adultery sions the Utah fornication passed into second and she has now statutes. abor- trimester. desires have an She physi- 7, plaintiff has been 1974, tion but advised her filed On November provisions restraining temporary cian under of Utah or- motion for a 76-7-304(2) is accompanying he Code Ann. memorandum. § der with an obligated notify prior 8, 1974, her husband the trial November court On performing signed her. an an order to show cause tem- separated restraining porary is married Plaintiff but order. On November arguments estranged m., di- husband and a her a. oral were pending. vorce is Since the the trial denied mo- date heard and court separation plaintiff restraining temporary states their initial tion for a order. relationship p. m., she had no sexual At 3:30 on November plaintiff’s with husband. claims trial kind her She court heard motion bearing the child child she is for a reconsideration of the court’s ear- estranged ruling denying temporary of her husband. Plaintiff lier unwilling straining the doctor to inform allow order. After evidence and tes- estranged timony argument of the abortion received and oral were complying heard, seeks, she the trial without court reserved the question Utah statute notice relief for determi- unwilling three-judge nation court. agreed Judge injury, therefore, the abortion. I with Chief measured, preliminary injunctive physical Lewis that increased risks or even the My being should be denied. reasons are set likelihood of not able to have an abortion, forth herein. find injury also these but appropriate having facts make this an ease for her husband know of the abor- the federal court to abstain and allow tion. Under these circumstances notifi- opportunity the state courts to con- cation to a husband of a desired abor- scope strue or limit justify of the statute tion does not a conclusion of ir- question. reparable under injury. The dissent’s statement: “I see noth- ing in Roe v. Wade or Doe PRELIMINARY v. Bolton INJUNCTION permits right that the woman’s to an case, Under circumstances of this abortion in the first trimester to be con- plaintiff pri- had the burden to make a showing ‘irreparable ditioned a showing (1) ma facie case a reasonable ” injury’ is an inaccurate characteriza- merits, prevailing likelihood of on the preliminary tion injunc- of the denial of is, probability that a reasonable that she tive relief and irrepa- this discussion of ultimately be entitled to the relief injury. rable While it is correct ir- that sought, irreparable injury (2) if the reparable injury is not a condition specific injunctive sought precedent obtaining an in granted. Seaborg, Crowther v. F.2d 415 pregnancy, trimester of is 437, (10th 1969). Cir. Supreme also a fact that the Court deci- sions, by referred dissent, do not IRREPARABLE INJURY provide a woman with an unconditional prime requisite temporary The in- during any to a “secret” abortion junctive showing by appli- relief is a pregnancy. Irreparable trimester of in- irreparable injury cant that of a sub- jury, therefore, only help is discussed by stantial is threatened the con- nature preliminary determine whether or not against duct which the restraint pending relief should issue sought. Capital City v. See Gas Co. plaintiff determination of whether is en- Phillips Co., Petroleum 373 F.2d titled to a “secret” abortion. (2nd 1967); Moore, Cir. Federal 1974). (2d Practice 65.04 ed. Plain- ¶ The other matter discussed argues injury irreparable tiff upon irrepa the dissent which bears found in injury instant case increas- rable is the observation that ing physical having risks inherent of the Utah abortion preg- question abortion in requires the second trimester of plaintiff, under nancy compared physical case, risks the circumstances of this to in trimester, being in the first argument or in not sug criminate herself. This gests able to secure an abortion at all. subject The could be facts, however, prosecution show that this is not the under the Utah statutes irreparable injury making measure of adultery or fornication misde deprived case. Plaintiff is not from requested ob- if meanors she an abortion taining seeks, physician, the abortion she physician from either her her noti pregnan- the first or husband, second trimester of fied her and her husband could cy, except by prosecutor her own adultery decision. She convince a to file an wants a secret abortion and has directed suit. This case should not decided physician notify remote, not to hypothetical such a causal willing of her desire. Her chain. The dissent has overlooked Rule abortion, but will not do Evidence, adopt 27 of the Utah Rules of giving so without Supreme her husband notice ed Utah effec conformity provisions July 1, 1971, provides phy tive Irreparable sician-patient privilege Utah statute prosecutions herein cited. prose- infrequent Court’s observations of misdemeanors. judgment” Bolton, adultery “medical from Doe and fornica- cution under physician’s statutes, 93 S.Ct. the fact that concerning preg- testimony plaintiff’s L.Ed.2d 201 are also relevant:

nancy in under Rule 27 nation which would lawful unknown sonable likelihood of dence, adultery. testifying impregnator identity privilege a trial would be against against eliminate Utah Rules protect plaintiff prosecution for herself, plaintiff’s un- self incrimi- privileged and the of Evi- rea- woman’s light al, psychological, familial, and the tors being ical We F.Supp. agree judgment may attending physician all ^[1048] relate to health. This allows age with the District factors— —relevant patient. physical, exercised in the All these fac- the room he Court, the well- the med- emotion- judg-

needs make his best medical operates LIKELIHOOD OF SUBSTANTIAL ment. And it room that disadvantage, THE MERITS benefit, PREVAILING ON for the not the pregnant woman. Wade, Supreme v. Court in Roe backdrop, this the With constitutional 113, 154-55, question, statute in Utah Ann. Code § right to (1973) held that a (1974), provides: 76-7-304 and can abortion is fundamental an regulated only basis physician therefore be on the Considerations —Notice compelling guardian In this of a regard, state interest. parents to or or minor’s the Court found that a state enable married woman’s husband.—To legitimate important interests: physician two med- the to exercise best (1) protecting maternal health and judgment, ical shall: he potential protecting (2) in the life or (1) all relevant to Consider factors However, life of the fetus. neither well-being upon the of the woman “compelling” these interests can performed the whom abortion is to be throughout pregnancy. the entire Dur- including, to, but limited ing pregnancy, the the first trimester of (a) psy- physical, Her emotional and Supreme in- Court has held that neither chological safety, health and compelling justi- sufficiently terest is fy de- an interference with an abortion (b) age, Her physician. cision of the woman and her (c) Her familial situation. During trimester, inter- the second possible, parents (2) Notify, if and the est maternal health increases guardian upon may regulate proce- the woman whom or state regulation performed, if she the abortion is to be dure to the extent that reasonably preservation the wom- minor or the husband of relates to the is a protection Dur- if married. an, maternal health. she is and ing trimester, be- the third fetus Weighing considera- the constitutional protect- viable and the interest in comes Supreme de- provided Court tions increases, it which allows the against the Utah cisions cited above abortion, taking reasonably regulate into question, I unable to con- am statute interests. account both likeli- clude that there a substantial prevail pregnancy will In trimester of hood that attending physician, This conclusion in consultation merits of this suit. “the determine, appraisal patient, of merits with his is free based regulation by State, that, and several theories that without the case questioned patient’s preg- judgment, construction of the his medical allow a nancy that would avoid should Roe v. statute a manner be terminated.” Wade, supra confrontation. at S.Ct. at 732. constitutional Brodie, Procreation, challenged 2 of In Marital subsection 37 Or First, egon provides for no- L.Rev. it states: given, possible, the hus- if tice to be rights marriage One is the securing an abortion band of a woman procreate. Meyer In Ne- v. might provision as a valid be sustained braska, spoke physician provide intended to process “right the due of the individu- concerning information relevant marry, al ... establish emotional, psychologi- physical, woman’s bring up home and .” children. him in order for cal or familial situation Oklahoma, In Skinner the Court judgment. to exercise his best medical “[mjarriage procrea- stated that awkwardly admittedly, statute, very tion are fundamental exis- provision supply relevant drafted race,” tence survival of the medical data to the since proceeded equal-protection to use and require the doctor to receive does not argument striking as the basis apart information even seek legislation authorizing down the steri- notifying merely the husband lization of certain An criminals. acknowledged abortion decision. equally positive description is found hearing by plaintiff’s at the counsel legislative approval divorce probability” “in all a consultation with Maynard in the 1888 case of v. Hill would have some medical marriage where was called “the foun- significance determining psycho- family society, dation of the and of logical (Tran- profile of the woman. without which there would be neither script 21.) say I am unable to progress.” civilization nor contemplate does Doe, Mass., The case of Doe v. 314 N. process in the notification that some rel- by Supreme E.2d 128 decided information, minimal, evant would albeit Court Massachusetts states: exchanged. Even if no relevant in- deeply of the hus- are conscious We exchanged formation were in the notifi- deci- in the abortion interest band’s process, by cation the mere observation parties sion, liv- are at least while the the doctor of the reaction the hus- harmony. Surely ing together parents band or decision abortion legitimate. Surely, if the interest is insight provide psycho- into the family prosper, he should life is to logical setting or familial into which the deci- participate his in the wife following would return woman the abor- that he not follow But it does sion. requirement notify, tion. The “to if veto, or that an absolute must have possible” spousal pa- is minimal. No or veto, can unreasoned, or his reasoned required. rental consent The enforced the Commonwealth. decision left the woman and her Court for The District United States physician, constitutionally in the of Florida District Southern quired. A reasonable construction F.Supp. Gerstein, case of Coe v. would allow to be sus- sitting April 17, as a decided providing tained as least some at rele- three-judge court, observed: insight vant into the woman’s or future health. recognize the interest We embryo or fetus provision of in the Second, the notification especially wife, if he is justified carried since his could be the Utah statute recognized father, qualitatively different parents have a or a husband being mother from the interest which decision in the abortion interest may inter- and the have in her health contemplated. of the hus- nature potential recognized fetus in its the viable est of interest has been band’s which a husband life. The interest explained and courts commentators seeing procreation carried has in alike. is, perhaps, equal full term at least notification of the abortion decision. biological that of the mother. The bi- believe that the husband should have the sexes, concerning furcation of the sig- which dictates be advised carry pro- affecting that the family female alone nificant action life. sexes, though presently given right creation the two should not Even necessarily partic- foreclose the active to determine with his wife whether ipation of the male in had, decisions relat- abortion should be the husband being procrea- apprised to whether their mutual contemplated abor- tion should be aborted or should opportunity allowed have an to con- prosper. be that the sult with socially husband’s her. It is and consti- procreation tutionally interest in this mutual at- naive to consider the abortion conception. solely taches the moment decision as a woman’s concern. expressly recog Legislature recognized That the Utah Wade, nized in footnote in67 Roe v. su parents an interest in the husband or pra, that an interest in the father was is evi- a minor the area of abortion not ruled out its decision: Leg- ways. First, in several denced opinion Neither in this nor in v.Doe islature included the abortion statute Bolton, 410 [93 Chapter part Crimi- 201], do we discuss fa- Against entitled, nal “Offenses Code rights, ther’s if exist in the con- Family.” family contemplates A a hus- context, stitutional in the abortion de- married, par- band if the woman is cision. mi- if woman is an unmarried ents The nature of the interest in the fam- Second, predecessor nor. 76-7-304’s § ily of a minor is also well established (§ Abortion 76-7-304 the 1973 Utah concisely by and stated the Court in strong Statute) concern for showed Massachusetts, Prince v. such an in these words: “Inas- interest 166, 64 S.Ct. 88 L.Ed. 645 persons inter- much as various have an (1943): through est an unborn child bearing ..” The new 76-7-304 custody, § cardinal with us that It is title, by physician— “Considerations child and nurture of the reside care guardian parents or Notice to minor’s primary parents, whose provides or married woman’s husband” prepara- include and freedom function recognized persons to the same notice obligations the state can nei- tion for the old statute to have interest supply ther nor hinder. Although in it is ar- the unborn child. operation An is differ guable purpose of the notice distinguished easily from other ent and operations provision question limited under in an absolute which introductory phrase regarding the body might ar the control of one’s he judgment physician, best medical gued. partner A is a to his husband Legislature likely it is more that the pregnancy an interest wife’s and has only with the health and concerned posterity the future marriage and fruits of well-being mother, but also with marriage relationship. The protection providing at least some making contemplates the of a contract parents under of the husband or interest appropriate family raising home and of a —ba Further, circumstances. goals importance of tremendous sic majority of the 1974 statute retains a society. Supreme yet The has not Leg- provisions of the 1973 statute. considered husband's whether or portions those islature modified may required consent be before an abor thought necessary to render statute may performed tion be on his wife. it this court struck constitutional after question This is also not before this argued year. Third, may it be question last down court. The statute in merely provide Legislature require no- did not that the

683 preg- having given pregnancies in the case of a tice to be nant, unwanted who desire 18-year-old pregnancies. woman be- unmarried abort terminate said technically has reached .” she Our cause considerations must be plaintiff’s majority. specific broader than facts as long possible as there are class action defending a constitutional attack In implications respecting all women with scrutiny on a statute under the strict pregnancies.1 unwanted analysis, a state must show an interest has failed to meet the asserting “compelling” nature. In requirement preliminary dual for a in- interests, limited to state only states are not junction in this case. Plaintiff has purposes those interests or de- irreparable shown injury neither nor a title, preamble, scribed in or text substantial likelihood of success may statute, but raise interests reasons, joined merits. For these I plausibly logically are also denying preliminary injunctive the order purposes implicit in the statute. It is relief. attorney gener- deemed sufficient if the defending al raises interests in ABSTENTION constitutionality of the statute. See Gunther, In Foreword: Search of Evolv- permissible only Abstention is Changing Doctrine on a Court: A narrowly special circumstances, limited Equal Protection, Model for a Newer 86 special but one of the circumstances is 1, (1972). Harv.L.Rev. The state ar- challenged when the state sus gued the husband’s case interest ceptible its of a construction the state before this court. We are therefore not modify courts would avoid or precluded weighing seriously question. federal constitutional Harri “compelling husband’s interest NAACP, 176-77, son v. 360 U.S. computation despite state interest” S.Ct. 3 L.Ed.2d 1152 In contrary argument raised in connection MacMullan, Lake Carriers’ Ass’n v. limiting introductory phrase with the 498, 511, L. S.Ct. the text of the statute. am unable involving (1972), Ed.2d 257 a case say at time that the husband’s in- challenge Michigan’s constitutional “compelling terest is not a inter- Watercraft Pollution Control Act of est” which would sustain the notifica- 1970-in which the Court sanc under attack. abstention, quoted tioned the Court Har Forssenius, man v. Considering only presented the facts 1177, 14 as fol by plaintiff’s might argued case, lows : the husband here has no interest father, resolution of the because he is not the Where federal consti- with a pending question dependent upon, divorce there tutional be no future may materially relationship familial by, to consider. altered We must consider the determination of an uncertain issue of husband’s interest in law, case, however, proper state this on abstention be because the attack unnecessary the statute is made in order to avoid friction in the' form of a plaintiff purporting relations, class represent federal-state action—the to interference important up functions, with “a class made of women state tenta- only plaintiff’s being requisites 1. if Even woman circumvent facts were to of the considered, by secretly merely the court is concerned about statute precedent might alleging pregnancy that if to her be set it were to that by pregnant by rule that a woman was conceived who was one one other than her hus- factually other than her husband was band? If a valid not interest the husband exists, under the Utah statute and would it should not be defeated an ex therefore infidelity. being pa/rte representation spousal secure an abortion given notification without her husband. to Would this allow a entering a abstain from de- questions court should of state on decisions tive problem claratory judgment. The premature ad- basic law, constitutional and interpretation of a state stat- here judication. . The doctrine is . . exceptional which, circum- contemplates ute absent that deference adjudication to is stances, should left and court to state So, too, sponsibility of the state courts. law where the issue made declaratory or it is desirable to issue uncertain. advisory of an an- and comments views three-judge Following rationale, a fore-guess ticipatory nature as a year abstained last in our circuit court pending presently matters before Judges Holloway, case. in an abortion United States. con- Eubanks considered Barrow and deciding deny injunctive However, in stitutionality criminal of the Oklahoma abstain, the mem- relief and thereafter related laws abortion statutes necessarily had to bers the court have D.C., Derryberry al., et et Henrie al. areas consider some unsettled They F.Supp. found it neces- field of abortion and I consider provisions uncon- of the abortion several summary, sary express, largely regarding however, ; stitutional disagree agree areas I in which prohibiting de- Oklahoma my particular Brothers where the child, quick that court struction posture requires of this case it. said: recognize must, however, We accept I the claim do lim- to construe or of the courts State is a rational connection be- that there it statute so as to save its consti- statutory requirement that tween the tutionality. Id. at 726. notify of the the doctor the husband Abstention most State ^[*] appropriate law uncertain -X ^[*] where, Federal ^{[*] [*]} susceptible courts is here, -X- form the abortion. wife’s medical tor’s duty impending judgment to exercise his considered abortion and as to whether If it necessary the doc- per- or even for the to consult desirable doctor of a construction would avoid appar- modify is not with the husband that fact is- federal constitutional nor is there ent on the statute’s face Id. sue. it. in this record to establish evidence apparent there are accept way as desirable Nor do possible constructions statutory duty be the it should question which avoid a would constitu notify doctor the husband I, therefore, tional confrontation. duty, if such it This wife’s condition. for the abstain state courts to decide the imposed be, lies with the wife and when including questions, the determination project the doctor would seem action, presented by of a class this case. family very personally him into a situa- professional to his com- unrelated LEWIS, Judge (concurring). Chief patient. a burden mitment to his Such my judges might Each to his will- fellow act as a deterrent well length ingness operation, chosen to write in this at some “chilling and has case arrived at different con were this effect” established reasoning testimony expert might clusion bound the ex well invalidate opposite subject spectrum treme and Thus I ends the statute. consider concerning regard. agonizing faulty the emotional and to be in this subject Judge However, I do not deem this factor de- abortion. Anderson joined Here, earlier me in of the has with an order terminative case. denying willing injunctive temporary stipulated to to that doctor was plaintiff agree notify husband, join and I the wife’s now absent with and Judge willing- holding objection. me, Anderson in To the doctor’s leading my plaintiff prime factor date statute as a here ness was seeks grant and to deny relief. immediate relief vote to as re- quested. certainly prepared I am entirely premise reject I 2. say interest, that a husband has no ac- legal significance any attaches to tual, legal otherwise, or in his wife’s plaintiff became that she the claim abortion. her hus pregnant other than someone informa this volunteered band. She Judge RITTER, (dis- turn, Chief who, District had no tion to her doctor senting) . obligation statutory that infor to reveal anyone. no violation I see mation to plaintiff age The child is a under the doctor-patient relation the confidential 18, separated from her husband regard any ship side effect in this nor against whom she has filed for divorce. prosecution state law. under of criminal relationship She had has no sexual with Every who receives unmarried woman her separation, husband since the initial her doctor an must admit to an abortion and he is not the father. in violation of state law. earlier act She is in the first trimester of her adultery Here, is no the revelation abortion, pregnancy, desires an has re- question basic different. The more quested physician perform her it, has to reveal whether woman he, judgment, his best medical be- marriage all and the fact of her Su lieves performed the abortion should be preme settled this matter. In Court has physical the interest of her and men- Bolton, 179, 93 Doe v. willing tal health. He it, specifically it was unwilling but prosecution to risk as a held the woman’s familial situation felon1 for violation of Section 76-7- proper was a medical consideration in 304(2), Utah (1974), Code Annotated the formation of considered medical a and has told per- he will not judgment. form informing the abortion without husband of her intent to obtain it. She nothing Finally, find 3. has directed her doctor not to inform Court decision that her husband. negatives legal way a husband’s interest Legislature The Utah requires in the abortion of his wife. To the con that “No performed recognized question trary, this been this state without the concurrence of the High pending cases Court and attending physician, based on his best have submitted that issue for considera judgment.” medical Section 76-7-303 require tion. The Utah statute does Code Annotated operation. the husband to consent to the requires only now, Legislature that he And has added notified her intent requirement, abortion. If another have an “To enable the any legal husband has interest to exercise his best medical wife, abortion of his judgment, such interest must Notify, he shall . . if begin knowledge possible, parents guardian of the situation. or requires and, Utah statute woman no more whom the abortion is to be me, performed, it would be a constitutional anom if she is a minor or the hus- aly requirement to hold woman, that such band if she is married.” patently Section 76-7-304(2). unconstitutional so as to invali- “Any person performs, (Laws procures 1974), who 76-7-314 of Utah 76- §§ supplies 3-203, (Laws 1973). the means for an abortion other 76-3-301 of Utah chapter than guilty physician may authorized violation also be basis felony degree”, subject disciplinary unprofessional the second for action prison up years to a term of to fifteen or a conduct. See Utah Code Ann. §§ up $10,000. fine of Utah Code Ann. 58-12-35 and § 58-1-25. phrase: phy- “To will heart, enable She feel in her as did Hes- Note the judg- Prynne,2 best to exercise his medical ter sician Notify,” ment, . etc. he shall . severity puri- “whole dismal of the remotely was offered tend- evidence No tanic code of law.” She “underwent anything at all the husband to show * * * agony an if as her heart physician. supply to could assist On flung had been into street for contrary, as we shall see. spurn trample upon.” them all to and judges of this court have Two (pp. Emphasis added.) 60 and 63-64. plaintiff on denied ground: appears plaintiff “It is grim obtaining ges- deprived “The abor- beadle now made a good except way, with tion she own ture his staff. ‘Make seeks deci- way, people, King’s make sion has direct- .... name!’ ‘Open passage, and, prom- ed the to inform her cried he. hus- I Prynne ye, ise Mistress band abortion. Under shall set desired woman, man, these where circumstances court does not and child * * * sight irreparable inju- have a fair believe a conclusion of of her ry justified.” past from this till time an hour me- is blessing righteous A ridian. From this “Order” dissent Colony Massachusetts, where including out, reasons hereinafter set iniquity dragged out into the the reason that the statement of the along sunshine! Come Madam Hes- stipulated incomplete, facts to is mis- your ter, and show scarlet letter leading, legally and insufficient. place!” 63.) (p. the market judges girl say, These has the “key” to obtain an abortion. She has a “ key key special all to her own —a ‘Truly, friend; and methinks legislature hell, brand of which the gladden your heart, your must after cunningly contrived for her. sojourn and troubles in the wilder- bright sunlight It is as ness,’ townsman, clear on a said the ‘to find day yourself, length, summer’s what the in- a land where a situation as iquity will do. The out, punished is searched suing girl presuma- divorce, sight him for people; in the of rulers and ” bly making support godly the usual England.’ demands: here our New money, property settlement, (P- 71.) and find-

ings wronged fight that he her. He will back, families, and the friends and ac- “ good Sir, ‘Now, our Massachusetts quaintances up will choose sides. * * * magistracy great in their fray, atmosphere Into this al- mercy they heart, and tenderness of ready highly charged, girl’s physi- Prynne doomed have Mistress to stand drops news, explosive cian no.t less than space of three on the hours pregnant by TNT: “Your wife is anoth- platform pillory, and then and er man and wants an abortion.” thereafter, for the remainder of her inevitable, immediate, result life, natural to wear mark of shame terribly catastrophic, ” destructive. 72.) (p. her bosom.’ knowledge us, Common tells and the woman, published such news outrage, methinks, proceedings, “There no can be court is ferreted out against spread through our common far and wide nature —whatever delinquencies newspapers be the sensational individual and broadcast- outrage flagrant —no more ers. than House, Hawthorne, Letter, Inc. Nathaniel The Scarlet New York: Random

687 persons virtuous of wise and for number culprit his face to hide forbid sitting capable less of who should be of this shame; the essence it was as erring judgment woman’s 64.) (p. punishment to do.” disentangling heart, of mesh and its very sages rigid of “wronging good evil, nature of and than open lay Prynne her aspect force her towards whom Hester woman daylight 74.) (p. broad her face.” now turned secrets heart’s multi- presence a of such in the and price has to This is the 75.) (p. tude.” pay The Utah statute for her abortion. right give up of it. She must her exacts privacy. her at- called had voice which “The and reverend that of the right was privacy tention of which is the This clergy- Wilson, the eldest John famous held United was States great like Boston, scholar of a

man in the Fourteenth Amend “founded pro- contemporaries his personal liberty most of concept and ment’s of fession, and of kind a man and withal action”, and which restriction attribute, how- genial spirit. enough last This to en the Court held “is broad developed carefully ever, had been less compass a woman’s decision whether was, gifts, and intellectual than his pregnancy.” not to Roe v. terminate truth, than matter of shame rather a 113, page 153, Wade, at 93 S. 410 U.S. self-congratulation There him. 727, with 705, page at L.Ed.2d 147 Ct. grizzled stood, of a border (Emphasis added.) he skullcap, his while his locks beneath right privacy of of which This is eyes, shaded gray accustomed Baird, in Eisenstadt v. the Court said winking, light study, like were 1029, 438, page 453, at 92 S.Ct. infant, in the una- of Hester’s those (1972): page 31 L.Ed.2d 349 like He looked dulterated sunshine. engraved portraits darkly right any- privacy which “If the means prefixed ser- thing, right individual, volumes of we to old see it is the of the right mons; than single, more and had no married or to be from un- free have, portraits governmental of those one warranted intrusion did, step forth, fundamentally meddle he now and affect- into matters so guilt, pas- question ing person of human with a as the decision whether anguish.” (pp. 74-75.) beget sion and to bear or child.” right

And, privacy is the constitutionally protect- by which was held other eminent characters “The ed States Court for the United chief ruler surrounded whom the distinguished dignity Rampton, District of Doe were (D.Utah, 1973). F.Supp. belonging period there We to a when the mien predecessors authority pos- declared the to this statute were felt forms 76-7-303, 76-7-304, and 76-7- Divine institu- Sections sess the sacredness of good (1973), They doubtless, Ann. 305 Utah Code were, tions. quired just, sage. But, men, the consent of the husband or out of parents abortion, family, to an “unconstitutional human it would whole easy totally same have been to select void.” privacy Judge: “Accordingly, mother, Lewis, in all abor- Chief' by my brothers, agree stages pregnancy, all tions at to the con- the reasons stated 80S, 305, 307, 308, 311, F.Supp. sent of others.” 366 at 193. sections Anderson, Judge: majori- totally “I are unconstitutional concur with the and 316 ty striking following F.Supp. part at 199. sections: invalid.” 304, 305, 307, 308, Judge: Hitter, and all of “Section 76-7-304 invalid subjects F.Supp. individual at 200. because exercise of the 314 and 316.” any person regard three-judge feder- notification of The decision to the decision to an abortion. should have been fol- al court district attempt principle de- This statute is an to effectuate of stare lowed here on the indirectly not be done what could direct- cisis. ly. by Legislature attempt The the of legislature has at The state require the State of Utah to the consent tempted, in under considera the section persons of other than the doctor and his must, physician tion, he to inform a patient to the struck abortion was down judgment, best clinical exercise his being constitutionally as invalid. Doe v. notify parents or of the a wom Rampton, F.Supp. (D.Utah, 366 an abortion. On the face who seeks an challenged 1973). The at- is an of is clear that noti this statute it tempt indirectly to do what was declared requirement fication is without ra directly. could not be done is not in tional basis and sense con Supreme regard The held in Court by physician nected with the exercise the first trimester: judgment. of his best It medical is real ly attempt physician by period preg- an inform the “. . for the of nancy judgment prior ‘compelling’point, law what shall his medical to this attending physician based on which are the factors non-medical in consulta- applies abortions, patient, in nature. to all tion with at is free to deter- stages pregnancy. all mine, regulation by State, without the judgment, pa- that in his medical the clearly This is unconstitutional and pregnancy tient’s should be terminat- preg- void in the first two trimesters of reached, ed. If that decision is nancy Supreme under the decision of the judgment may by be effectuated an Wade, 113, Court in Roe v. free of interference 705, (1973). S.Ct. 35 L.Ed.2d 147 (emphasis added) State.” 410 U.S. at 76-7-304(2), Section Utah An- 163, Code 93 S.Ct. at 732. (1974), notated regulation creates an overbroad regard The Court stated to the sec- constitutionally protected ond trimester: right, right is, privacy respect impor- to the “With State’s right encompasses priva- both the legitimate tant and interest cy of the woman decide to have an mother, ‘compelling’ health of the regulation abortion on her own without light point, in of approximately medical right the State and her to a doctor- knowledge, is at patient relationship regulation free of end of the first trimester by in the exercise of State this con- that, It follows from and after this stitutionally protected right. Doe v. may regulate point, a State the abor- Bolton, 191-200, U.S. procedure tion extent that the (1973). 35 L.Ed.2d 201 regulation reasonably relates Supreme preservation protection The Court of the United of mater- regulating Examples permissible States held that in the exer- nal health. constitutionally protected right regulation cise of a state quirements in this area are re- qualifications which is fundamental nature as to the regula- case, person is true in the instant is to who “compel- abortion; on the must be basis as to the licensure of that ling interest,” person; facility state as to which the Any regulation procedure performed, is, S.Ct. at 728. of this is to be “narrowly hospital, may fundamental interest must be whether it must express legitimate place drawn to be a clinic or some other stake,” status; less-than-hospital state interests at 410 U.S. at as to the li- censing facility 93 S.Ct. at 728. There no and the com- like.” pelling requir- state interest at stake in 410 U.S. at 93 S.Ct. at 732. their provisions of 76-7- consciences dictated Section legislature. (1974), 304(2), Code Annotated Utah her- require to incriminate saying Justices What the are is: We out the If her carries self. think this situation neither side has informs that statute and directives of right position its force on the oth- estranged desires husband that she er side. posi- abortion, he will in a then be protects bring charges against her tion to woman; and what Justices pursuant pro- admission, to the her own say quite clear: There is a fundamen- or Section visions of Section 76-7-103 right, personal woman, tal basic 76-7-104, Code Annotated to decide to have a whether when the fact be made He would aware child. expecting the child she integrity upon relies of The Court clearly con- not to be trary own. This the doctor and the natural solicitude of provisions Fifth and to the of the mother for her babe. Amendments to the Constitu- Fourteenth The old abortion drastic law was a America. tion of the United of States rights constitutional invasion of the of Among the other vices of this beings, namely, women, human who were stages all are that all abortions and go through pregnan- compelled to with a pregnancy to ob- woman, in order of cy, involuntary form which is a servi- of abortion, her tain an surrender must tude. privilege doctor-patient of confidentiali- something wrong terribly And there is against privilege ty, her and as well compulsory pregnancy society in a about protected the Fifth self-incrimination supposed to where men and women are to the Con- Fourteenth Amendments and right choice, of have freedom and Nothing of the United stitution States. constitutionally guaranteed. privacy, clearly more unconstitutional could be Supreme utterly in these decisions Court void. The and forcing anything anybody. is not grievously in- Plaintiff has been most is a of freedom The decision declaration jured, not at all her own choos- and independence choice—-a declaration of my brothers, ing. on this I am afraid to year, And to me that seems women. gone legislature court, one bet- have good point mighty of view nothing or I see in Roe v. ter. Wade landing being the 355th since the permits Bolton that the woman’s Doe v. right Massachusetts, eve and the Puritans trimes- to an abortion in the first signing anniversary of the of the 200th showing to be conditioned ter Independence. the Declaration “irreparable injury”. All that the Su- high time learned the lessons It is we preme she, requires Court is that Village the Massachu- and Salem physician, have she should decides Bay Colony. They than have more setts an abortion. today. Three antiquarian interest for us clearly see the United Let us what enough. years long hundred telling Supreme Court us: States country people This is a free in which provisions The court should find the There can make their own decisions. nothing 76-7-304(2), An- Code Utah Section Supreme in what the said notated unconstitutional and void a woman that forces to have an abortion and their enforcement should be nothing there is that forces a doctor and strained. perform an abortion. THE FROM COURT’S DISSENTING Supreme All the Court held is that IN C 74-344 ABSTENTION doctor, woman and her permitted an action for and trimester, This is are their follow declaratory as authorized in this hav- consciences matter without jurisdiction, rights, privileges if it should. The take to secure U.S.C. § legislature judiciary cannot, as the the Fifth established immunities and ap- measure, may, avoid a because it Amendments Fourteenth proaches plain- the confines of the constitu- Constitution. United States by, pass it injunction cannot because to restrain the tion. We tiff seeks an doubts, agents, employees, and is doubtful. With whatever defendants, their applying, difficulties, en- with whatever a case in office from successors attended, it, forcing implementing we must decide if it be Code brought (1974), 76-7-304(2) no more before us. We have hereinafter Ann. § right juris- provision notice-requirement to decline the exercise of called usurp given, For which is than to statutes. diction anti-abortion of Utah’s given. above, that which is one discussed believe the reasons notice-requirement con- the other would be treason to the Questions overreaching may occur, which stitution. an invalid constitutes gladly privacy, avoid; we would but we cannot interference with regulate is, unlawfully attempts the rela- avoid them. All we can do to exer- judgment, tionship and her cise our best and conscien- between tiously duty. our in violation Wade, holdings supra, in Roe v. Court’s plaintiff and In the case the Bolton, supra, and forces v.Doe Attorney an Assistant General of the may plaintiff tend to take actions which properly the of Utah were before State in violation of the to incriminate her litigate Court, prepared to the constitu- Fifth and Fourteenth Amendments. tionality pro- notice-requirement However, my each of fellow vision. My joined earlier in an two associates judges chose to “decline the exercise injunctive denying temporary re- order jurisdiction given” and, in ef- which join in the and now lief to fect, plaintiff, was en- invited who holding that should abstain tering preg- the second trimester of her entering declaratory judgment. a nancy, pursue claim to her constitutional My dissenting from the de- reasons for regard I am in state courts. In this nial of set forth are Douglas persuaded stat- that Justice has my above. shall now set forth reasons I ed the better view: dissenting for from the of absten- order tion. courts, I think the federal created Congress, today by the First are a ha Although opinions of a number of rights ven can sometimes ad where Supreme Court, United States dispassionately judicated even more Appeals Courts of and federal district At least Con than in tribunals. state approve the courts so-called “abstention gress provided since in its wisdom whereby doctrine” federal courts refuse (18 470) the lower Stat. that 1875 adjudicate constitutionality guardian should federal courts state until state have statutes courts rights. in federal . . . And pass opportunity been afforded an appropriate my no more view there is them, upon does I believe that this case adjudication of that tribunal for present proper not for absten- a context Federal District Court issue than the tion. intermeddling in . is not This In case of Cohens 1821 the famous creating affairs nor needless state 264, 403, v. Virginia, 5 L.Ed. Wheat. pro authoritative friction. It is an stated, 257, Chief Marshall with Justice beginning of con nouncement at the a singular force: days troversy which saves countless litigation slow, painful, costly true, It is most this court will separate . jurisdiction lawsuits . . individual not take if it should not: Creasy, equally true, Martin v. 79 S. but it must J., judicial (Douglas, dis- court should exercise its Ct. dissenting merely 228-29, a cretion to suit be- dismiss part), it. a court could entertain cause State (1959).] my associates case This is so because discretion based In the availability remedy a law solely state that because on believe seem court, challenged practical in federal in State would for all courts has been upon purposes repeal called first be Act of 1875. This should courts state gave juris- give construction a some Act to the federal courts the law disagree they However, possessed might diction theretofore so it. save litigant in- up why should be abstention could not tie that State about making by requiring voked, which construc- a claim as about as well give might bring to the its courts he suit redress own jurisdiction precise- provision in order notice-requirement courts. That jurisdiction ly hear constitu- it. save challenge to tional local action Judge no- that the Anderson believes placed of the vast limitations basis may tice-requirement have the Civil state action War may justification and also medical valid . . amendments parents’ interest protect father’s explicitly Judge regret my inability Lewis to make clear in the fetus. alleged justification, majority jects medical of this Court that its flagrant alleged protection opinion not the is in contradiction but case, how- In this interest. unbroken course decisions husband’s ever, estranged against years. seventy-five Court for pending was action was a divorce whom Douglas dissenting opin- Justice plaintiff’s child. father N.A.A.C.P., ion in Harrison v. 167, he interest to see what is difficult 179-81 and 79 S.Ct. perhaps fetus, except have the use of criticises as a a shield or existence as raise its in abstention doctrine cases arise proceedings. in divorce sword Rights under His Civil Act. criti- Judge clearly applicable my “Ab cism is to Anderson believes that asso- narrowly permissible present in in the ciates’ abstention case: stention is .”, special . limited circumstances . by The rule invoked the Court to re- Judge “a Lewis believes that whereas quire the Federal District to ., exception absent state statute . . keep litigation hands off this until the left is circumstances, to and al should be state court has construed these laws responsibility the state courts.” of judge-made rule. was fashioned It (Emphasis added.) However, Justice in 1941 in the of decision Railroad Frankfurter, concurring in the result Co., Commission of Pullman Texas v. dissenting ra but from abstention 312 U.S. 496 L.Ed. [61 tionale Com in Alabama Public Service 971], as a device to avoid needless Railway, mission Southern friction under Federal Constitu- 341, 360-61, L.Ed. 71 S.Ct. tion where a resolution of state law 1002, stated: might adjudica- questions make those unnecessary. time, very

Equity by denies tions its nature Since if, the rule has on balance of considerations of Pullman case been inequi- greatly expanded. equity, indeed relevant to it would been grant éxtraordinary pres- rem- extended far as to make the table so to litigation injunction. edy courts ence federal court of Federal always equity question this acted on state law a convenient of have excuse requiring for equitable never the federal court hold doctrine. But was litigation equity hand its while a second a doctrine a federal of rights, privileges This is a undertaken state court. these and immuni- ; delaying years there, tactic that involve ties and hold him to account inevitably of time and that doubles submit . . tri- . that there no litigation. fitted, equal of bunal justice the cost used so where When exact likely widespread, it dilutes stature would be more to be met- temper, moderation, making ed Courts, out in se- the Federal District verity, be, always if need but accord- secondary ad- tribunals them fact, great to the law and as that justice Fed- under the ministration of Cong. tribunal of the Constitution.” eral Constitution. Globe, Cong., 42d 1st Sess. 476 respect, all due this case With plain It seems to me that it was the inappro- to me to be the most seems priate duty provide District Court’s one of all which to withhold appellees, remedy, if the who invoked the hand of Federal District jurisdiction that court’s under Congress has ordained in the Court. Rights Act, proved charge Civil their Rights . . . “Ev- Civil Act appellants, that the under the color of person any ery who, under color of Virginia statutes, deprived had subjects, . . or causes . rights them civil secured any subjected, citizen the United Federal Constitution. person or States other ... * -x- * * * * rights deprivation any give needWe not—we should . secured the Constitution not— policy deference to a state that seeks (is suit) subjected laws paramount to undermine federal law. 1983; . . and has .”42 U.S.C. § duty expressly failWe given “original ju- the District Courts Congress enjoined by on the federal risdiction” of actions “to redress judiciary Rights in the Civil Acts any deprivation, under color of State when we do so. law, . ... my secured the Constitution of the In the join case associates by any abstaining deciding United Act Con- they States what gress providing rights equal solely believe to be matter retaining citizens . .” jurisdiction U.S.C. law. Without whatsoever, they § latter section was invoked here. dismiss the case and Congress litigate From the time when invite the her consti- implemented the Fourteenth Amend- courts, give tutional claim in state but comprehensive ment Rights get Civil her no assurance expe- that she can thought Act of the 1871 ditious determination of in her claim prevailed They ignore that federal are the courts state courts. the facts unique plaintiff beginning are to be tribunals which was her second preserve rights utilized to pregnancy the civil trimester of and that people. Representative Dawes, in litigation state court would take time— bill, perhaps great the debate on the 1871 asked a deal of time. In the proper “what is method of thus upon case we are not called securing the free and anything undisturbed en- decide like “a constitutional joyment Looking rights?” challenge Michigan’s of these Watercraft Pol- eventually to the Act which 1970”, became lution Control Act of discussed remedy answered, Judge law he “The first opinion. Anderson in his In such proposed delay obtaining this bill resort to a case a in a decision on courts the United States. Is that a especially merits crucial. place proper in Here, however, which to find redress we were called wrongs? If be particular there decide whether woman can power to call into the courts during have an in against United States an offender pregnancy trimester of without

693 will pletely in Watercraft case before ple, but it is most was state ter law period stention it often jurisdiction especially in stention siana L.Ed.2d 440 ion). Spector on the ice 152, abstention unwary. Ct. quiring es, ers, Service Justice One obtaining v. and creates Minerals, grounds 508, suits, dismissed the use of 89 L.Ed. have a decade. See interference. McLaughlin, 14 L.Ed.2d 692 State merits.) He would the doctrine v. case abstention), brings unconscionable doctrine caused litigation, Douglas’ experience with ab O’Connor, was ordered. increases the costs good policy this Court. extraordinary Pollution L.Ed. 573 that it necessitates Board of Medical Examin in the federal courts Inc., a decision 411, 423, principal (1964) (concurring opin as moot 101 procedural traps for the in its wake. him to In the doctrine is the scrap 381 U.S. 323 United Spector Motor Serv In this undermines federal 340 U.S. Control U.S. England eight (1965), (1951) (decision costs of the the doctrine prolonged reexamine civil on the merits Spector Motor abstain abstain consequences. States (decision 101, case a years after rights For exam 602, Act and time kept the the case multiple v. Loui 65 S.Ct. 85 S.Ct. for al in in the delay delay ease, com Lei cas ab re S. beginning and rights delays court”, expeditious stention. ing trimesters the plaintiff nancy. Because the interests of the change during courts, there lief should be claim lay claim would create “the uable federal U.S. lost in the the abstention upon careful consideration of 312 U.S. pra, circumstances”, judication 389 19 L.Ed.2d of each case. Railroad In 643, 645, 1324-1327, on delay U.S. adjudication inherent in the abstention must whether valuable might 360, there should this to initiate danger present ease, Here, necessitated her second trimester of 241, Comm’n v. adjudication in be invoked Court. nowas absence 85 L.Ed. 971]. court rights 375-379, pregnancy, be lost 12 L.Ed.2d 377 issued, 444] temporary federal 248 at the time of the second process ^[496] the State Baggett that valuable federal see federal of her constitutional proceedings adjudication might Even minimal feasible alternative [88 have been no (1967), Zwicker v. by requiring Pullman at 500 rights might “because of 84 S.Ct. danger only and expeditious the absence and because of in the federal S.Ct. v. court, plaintiff substantially Bullitt, lost [61 391, Co., in state “special (1964); absten process danger of her Koota, preg- hear- third 1316, facts S.Ct. 395, val- 377 ad ab- su de- be expeditious adjudication in absence of County In the recent case of Harris Thus, the federal court.” Court Moore, et Commissioners Court al. proceeded should have decide 95 S.Ct. plaintiff’s claim on the merits. (1975), which the applied reviewed and doc- abstention above, For the reasons stated I believe trine, the Court said: in this im- that abstention case was an warned, proper repeatedly however, exercise of discretion from which We have delays dissent. that because inherent

Case Details

Case Name: Roe v. Rampton

Court Name: District Court, D. Utah

Date Published: Mar 18, 1975

Citation: 394 F. Supp. 677

Docket Number: C 74-344

Court Abbreviation: D. Utah