Roe v. Rampton ( 1975 )

ORDER DENYING INJUNCTIVE RELIEF AND ORDER OF ABSTENTION AND DISMISSAL WITH ACCOMPANYING OPINIONS

For the reasons set forth in the separate opinions which follow, this court, on November 22, 1974, denied temporaryinjunctive relief and now enters its order abstaining and dismissing the above-entitled action to allow the state courts to decide the questions, including the determination of a class action, presented by this case.

It is therefore ordered that this case be and it is herewith dismissed.

ALDON J. ANDERSON, District Judge.

On November 4, 1974, plaintiff in the above-entitled matter filed a class action for injunctive and declaratory relief seeking a ruling that Utah Code Ann. § 76-7-304(2) (1974) contravenes the Fifth and Fourteenth Amendments to the United States Constitution in that it is overbroad in its regulation of abortions in the State of Utah, constitutes an invasion of her privacy, invalidly regulates her relationship with her physician, and, if complied with, would force her to incriminate herself under provisions of the Utah adultery or fornication statutes.

On November 7, 1974, plaintiff filed a motion for a temporary restraining order with an accompanying memorandum. On November 8, 1974, the trial court signed an order to show cause for temporary restraining order. On November 12, 1974, at 9 a. m., oral arguments were heard and the trial court denied the motion for a temporary restraining order. At 3:30 p. m., on November 12, 1974, the trial court heard plaintiff’s motion for a reconsideration of the court’s earlier ruling denying the temporary restraining order. After evidence and testimony were received and oral argument was heard, the trial court reserved the question of injunctive relief for determination by the three-judge court.

The parties stipulated to the facts in the case and agreed that the matter be finally submitted, together with the request for temporary injunctive relief, to the three-judge court on November 21, 1974. The three-judge court composed of Honorable David T. Lewis, Chief Judge of the United States Court of Appeals for the Tenth Circuit, Honorable Willis W. Ritter, Chief Judge of the United States District Court for the District of Utah, and Honorable Aldon J. Anderson, Associate Judge of the United States District Court for the District of Utah, was duly convened on November 21, 1974, and the matter was presented. On November 22, 1974, pursuant to an order agreed upon by Chief Judge Lewis and Judge Anderson, with Chief Judge Ritter dissenting, a minute entry was entered denying preliminary injunctive relief, reserving for subsequent determination the other issues raised by the pleadings.

FACTS

Plaintiff Mary Roe is seventeen years of age. At the time this action was filed and at the time of the hearing she was in her first trimester of pregnancy. Preliminary injunctive relief was denied on the last day of her first trimester and she has now passed into the second trimester. She desires to have an abortion but has been advised by her physician that under the provisions of Utah Code Ann. § 76-7-304(2) (1974) he is obligated to notify her husband prior to performing an abortion upon her. Plaintiff is married but separated and estranged from her husband and a divorce is pending. Since the date of their initial separation plaintiff states she has had no sexual relationship of any kind with her husband. She claims the child she is bearing is not the child of her estranged husband. Plaintiff is unwilling to allow the doctor to inform her estranged husband of the abortion she seeks, and without complying with the notice provision of the Utah statute the physician is unwilling to perform the abortion. I agreed with Chief Judge Lewis that preliminary injunctive relief should be denied. My reasons are set forth herein. I also find that these facts make this an appropriate ease for the federal court to abstain and allow the state courts an opportunity to construe or limit the scope of the statute under question.

PRELIMINARY INJUNCTION

Under the circumstances of this case, plaintiff had the burden to make a prima facie case showing (1) a reasonable likelihood of prevailing on the merits, that is, a reasonable probability that she would ultimately be entitled to the relief sought, and (2) irreparable injury if the specific injunctive relief sought was not granted. Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969).

IRREPARABLE INJURY

The prime requisite for temporary injunctive relief is a showing by the applicant that irreparable injury of a substantial nature is threatened by the conduct against which the restraint is sought. See Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2nd Cir. 1967); 7 Moore, Federal Practice ¶ 65.04 (2d ed. 1974). Plaintiff argues that irreparable injury is found in the instant case by the increasing physical risks inherent in having an abortion in the second trimester of pregnancy as compared to the physical risks in the first trimester, or in not being able to secure an abortion at all. The facts, however, show that this is not the measure of irreparable injury in this case. Plaintiff is not deprived from obtaining the abortion she seeks, in either the first or second trimester of pregnancy, except by her own decision. She wants a secret abortion and has directed the physician not to notify her husband of her desire. Her physician is willing to perform the abortion, but will not do so without giving her husband notice in conformity with the provisions of the Utah statute herein cited. Irreparable injury, therefore, is measured, not by any increased physical risks or even the likelihood of not being able to have an abortion, but by the injury to plaintiff of having her husband know of the abortion. Under these circumstances notification to a husband of a desired abortion does not justify a conclusion of irreparable injury.

The dissent’s statement: “I see nothing in Roe v. Wade or Doe v. Bolton that permits the woman’s right to an abortion in the first trimester to be conditioned upon a showing of ‘irreparable injury’ ” is an inaccurate characterization of the denial of preliminary injunctive relief and this discussion of irreparable injury. While it is correct that irreparable injury is not a condition precedent to obtaining an abortion in the first trimester of pregnancy, it is also a fact that the Supreme Court decisions, referred to by the dissent, do not provide a woman with an unconditional right to a “secret” abortion during any trimester of pregnancy. Irreparable injury, therefore, is discussed only to help determine whether or not preliminary injunctive relief should issue pending a determination of whether plaintiff is entitled to a “secret” abortion.

The only other matter discussed by the dissent which bears upon irreparable injury is the observation that the provision of the Utah abortion statute in question requires the plaintiff, under the circumstances of this case, to incriminate herself. This argument suggests that plaintiff could be subject to prosecution under the Utah statutes making adultery or fornication misdemeanors if she requested an abortion from her physician, her physician notified her husband, and her husband could convince a prosecutor to file an adultery suit. This case should not be decided by such a remote, hypothetical causal chain. The dissent has overlooked Rule 27 of the Utah Rules of Evidence, adopted by the Supreme Court of Utah effective July 1, 1971, which provides a physician-patient privilege in prosecutions of misdemeanors. The infrequent prosecution under the adultery and fornication statutes, the fact that a physician’s testimony concerning plaintiff’s pregnancy in such a trial would be privileged under Rule 27 of the Utah Rules of Evidence, the privilege against self incrimination which would protect plaintiff from testifying against herself, and the unknown identity of the plaintiff’s unlawful impregnator eliminate any reasonable likelihood of prosecution for adultery.

SUBSTANTIAL LIKELIHOOD OF PREVAILING ON THE MERITS

The Supreme Court in Roe v. Wade, 410 U.S. 113, 154-55, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) held that a right to an abortion is fundamental and can therefore be regulated only on the basis of a compelling state interest. In this regard, the Court found that a state has two important and legitimate interests: (1) in protecting maternal health and (2) in protecting the life or potential life of the fetus. However, neither of these interests can be “compelling” throughout the entire pregnancy. During the first trimester of pregnancy, the Supreme Court has held that neither interest is sufficiently compelling to justify an interference with an abortion decision of the woman and her physician. During the second trimester, the interest in maternal health increases and the state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. During the third trimester, the fetus becomes viable and the interest in protecting it increases, which allows the state to reasonably regulate abortion, taking into account both interests.

In the first trimester of pregnancy “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” Roe v. Wade, supra at 163, 93 S.Ct. at 732. The Supreme Court’s observations on “medical judgment” from Doe v. Bolton, 410 U.S. 179, 192, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973) are also relevant:

We agree with the District Court, 319 F.Supp. [1048] at 1058, that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

With this constitutional backdrop, the statute in question, Utah Code Ann. § 76-7-304 (1974), provides:

Considerations by physician — Notice to minor’s parents or guardian or married woman’s husband. — To enable the physician to exercise his best medical judgment, he shall:

(1) Consider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,

(a) Her physical, emotional and psychological health and safety,

(b) Her age,

(c) Her familial situation.

(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married.

Weighing the constitutional considerations provided by the Supreme Court decisions cited above against the Utah statute in question, I am unable to conclude that there is a substantial likelihood that plaintiff will prevail on the merits of this suit. This conclusion is based upon an appraisal of the merits of the case and several theories that would allow a construction of the questioned statute in a manner that would avoid a constitutional confrontation.

First, the challenged subsection 2 of the Utah statute which provides for notice to be given, if possible, to the husband of a woman securing an abortion might be sustained as a valid provision intended to provide the physician with relevant information concerning the woman’s physical, emotional, psychological or familial situation in order for him to exercise his best medical judgment. The statute, admittedly, is awkwardly drafted as a provision to supply relevant medical data to the physician since it does not require the doctor to receive or even seek any information apart from merely notifying the husband of the abortion decision. It was acknowledged at the hearing by plaintiff’s counsel that “in all probability” a consultation with the husband would have some medical significance in determining the psychological profile of the woman. (Transcript at 21.) I am unable to say that this provision does not contemplate that in the notification process that some relevant information, albeit minimal, would be exchanged. Even if no relevant information were exchanged in the notification process, the mere observation by the doctor of the reaction of the husband or parents to the abortion decision would provide insight into the psychological or familial setting into which the woman would return following the abortion. The requirement “to notify, if possible” is minimal. No spousal or parental consent is required. The abortion decision is left to the woman and her physician, as is constitutionally required. A reasonable construction of the provision would allow it to be sustained as providing at least some relevant insight into the woman’s present or future health.

Second, the notification provision of the Utah statute could be justified since a husband or parents have a recognized interest in the abortion decision being contemplated. The nature of the husband’s interest has been recognized and explained by commentators and courts alike.

In Brodie, Marital Procreation, 37 Oregon L.Rev. 245, 246 (1972) it states:

One of the rights of marriage is the right to procreate. In Meyer v. Nebraska, the Supreme Court spoke of the due process “right of the individual ... to marry, establish a home and bring up children. . .” In Skinner v. Oklahoma, the Court stated that “[mjarriage and procreation are fundamental to the very existence and survival of the race,” and proceeded to use and equal-protection argument as the basis for striking down legislation authorizing the sterilization of certain criminals. An equally positive description is found in the approval of a legislative divorce in the 1888 case of Maynard v. Hill where marriage was called “the foundation of the family and of society, without which there would be neither civilization nor progress.”

The case of Doe v. Doe, Mass., 314 N.E.2d 128 (1974) decided by the Supreme Court of Massachusetts states:

We are deeply conscious of the husband’s interest in the abortion decision, at least while the parties are living together in harmony. Surely that interest is legitimate. Surely, if the family life is to prosper, he should participate with his wife in the decision. But it does not follow that he must have an absolute veto, or that his veto, reasoned or unreasoned, can be enforced by the Commonwealth.

The United States District Court for the Southern District of Florida in the case of Coe v. Gerstein, 376 F.Supp. 695, decided April 17, 1974, sitting as a three-judge court, observed:

We recognize that the interest of the husband in the embryo or fetus carried by his wife, especially if he is the father, is qualitatively different from the interest which the mother may have in her health and the interest of the viable fetus in its potential life. The interest which a husband has in seeing his procreation carried full term is, perhaps, at least equal to that of the mother. The biological bifurcation of the sexes, which dictates that the female alone carry the procreation of the two sexes, should not necessarily foreclose the active participation of the male in decisions relating to whether their mutual procreation should be aborted or allowed to prosper. It may be that the husband’s interest in this mutual procreation attaches at the moment of conception.

The Supreme Court expressly recognized in footnote 67 in Roe v. Wade, supra, that an interest in the father was not ruled out by its decision:

Neither in this opinion nor in Doe v. Bolton, 410 U.S. 179 [93 S.Ct. 739, 35 L.Ed.2d 201], do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision.

The nature of the interest in the family of a minor is also well established and stated concisely by the Court in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1943):

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.

An abortion operation is different and easily distinguished from other operations in which an absolute right to the control of one’s body might he argued. A husband is a partner to his wife’s pregnancy and has an interest in the future posterity and fruits of the marriage relationship. The marriage contract contemplates the making of a home and the raising of a family — basic goals of tremendous importance to society. The Supreme Court has not yet considered whether or not a husband's consent may be required before an abortion may be performed on his wife. This question is also not before this court. The Utah statute in question would merely provide the husband with notification of the abortion decision. I believe that the husband should have the right to be advised concerning any significant action affecting the family life. Even though not presently given a right to determine with his wife whether an abortion should be had, the husband being apprised of a contemplated abortion should have an opportunity to consult with her. It is socially and constitutionally naive to consider the abortion decision as solely a woman’s concern.

That the Utah Legislature recognized an interest in the husband or parents of a minor in the area of abortion is evidenced in several ways. First, the Legislature included the abortion statute in part 3 of Chapter 7 of the Utah Criminal Code entitled, “Offenses Against the Family.” A family contemplates a husband if the woman is married, or parents if the woman is an unmarried minor. Second, § 76-7-304’s predecessor (§ 76-7-304 in the 1973 Utah Abortion Statute) showed a strong concern for such an interest in these words: “Inasmuch as various persons have an interest in through an unborn child ..” The new § 76-7-304 bearing the title, “Considerations by physician— Notice to minor’s parents or guardian or married woman’s husband” provides notice to the same persons recognized by the old statute to have an interest in the unborn child. Although it is arguable that the purpose of the notice provision under question is limited by the introductory phrase regarding the best medical judgment of the physician, it is more likely that the Legislature was concerned not only with the health and well-being of the mother, but also with providing at least some protection to the interest of the husband or parents under appropriate circumstances. Further, the 1974 statute retains a majority of the provisions of the 1973 statute. The Legislature modified only those portions thought necessary to render the statute constitutional after this court struck it down last year. Third, it may be argued that the Legislature did not require notice to be given in the case of a pregnant, unmarried 18-year-old woman because technically she has reached her majority.

In defending a constitutional attack on a statute under the strict scrutiny analysis, a state must show an interest of a “compelling” nature. In asserting state interests, states are not limited to only those interests or purposes described in the title, preamble, or text of the statute, but may raise any interests which plausibly and logically are also purposes implicit in the statute. It is deemed sufficient if the attorney general raises such interests in defending the constitutionality of the statute. See Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 47 (1972). The state argued the husband’s interest in its case before this court. We are therefore not precluded from seriously weighing the husband’s interest in the “compelling state interest” computation despite any contrary argument raised in connection with the limiting introductory phrase in the text of the statute. I am unable to say at this time that the husband’s interest is not a “compelling state interest” which would sustain the notification provision under attack.

Considering only the facts presented by plaintiff’s case, it might be argued that the husband here has no interest because he is not the father, and with a divorce pending there may be no future familial relationship to consider. We must consider the husband’s interest in this case, however, because the attack on the statute is made in the' form of a class action — the plaintiff purporting to represent “a class made up of women having unwanted pregnancies who desire to abort and terminate said pregnancies. .” Our considerations must be broader than plaintiff’s specific facts as long as there are possible class action implications respecting all women with unwanted pregnancies.¹

The plaintiff has failed to meet the dual requirement for a preliminary injunction in this case. Plaintiff has shown neither irreparable injury nor a substantial likelihood of success on the merits. For these reasons, I joined in the order denying preliminary injunctive relief.

ABSTENTION

Abstention is permissible only in narrowly limited special circumstances, but one of the special circumstances is when the challenged state statute is susceptible of a construction by the state courts that would avoid or modify the federal constitutional question. Harrison v. NAACP, 360 U.S. 167, 176-77, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). In Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 511, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 (1972), a case involving a constitutional challenge to Michigan’s Watercraft Pollution Control Act of 1970- in which the Supreme Court sanctioned abstention, the Court quoted Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965) as follows :

Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. . . . The doctrine . contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.

Following this rationale, a three-judge court in our circuit abstained last year in an abortion case. Judges Holloway, Barrow and Eubanks considered the constitutionality of the Oklahoma criminal abortion statutes and related laws in Henrie et al. v. Derryberry et al., D.C., 358 F.Supp. 719 (1973). They found several of the abortion provisions unconstitutional ; however, regarding the Oklahoma statute prohibiting the destruction of a quick child, that court said:

We must, however, recognize the right of the State courts to construe or limit the statute so as to save its constitutionality. Id. at 726.

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Abstention by the Federal courts is most appropriate where, as here, the State law is uncertain and susceptible of a construction that would avoid or modify the federal constitutional issue. Id.

It is apparent that there are possible constructions of the provision in question which would avoid a constitutional confrontation. I, therefore, would abstain for the state courts to decide the questions, including the determination of a class action, presented by this case.

1 . Even if only plaintiff’s facts were being considered, the court is concerned about the precedent that might be set if it were to rule that a woman who was pregnant by one other than her husband was not factually under the Utah statute and would therefore secure an abortion without notification being given to her husband. Would this allow a woman to circumvent the requisites of the Utah abortion statute merely by secretly alleging to her physician that the pregnancy was conceived by one other than her husband? If a valid interest in the husband exists, it should not be defeated by an ex pa/rte representation of spousal infidelity.