Hagerstown Reproductive Health Services v. Fritz , 295 Md. 268 ( 1983 )

Smith, J.

dissenting:

I agree that we do not sit to decide moot cases or to render advisory opinions on abstract points of law. However, a well understood principle in this State is that when a given set of facts is likely to recur frequently and upon the recurrence the same difficulty which prevented the appeal at hand from being heard in time is likely to again prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot. See statements to that effect in, among other cases, Reyes v. Prince George’s County, 281 Md. 279, 300, 380 A.2d 12 (1977); and Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379 (1954).

The fact that the number of abortions is fast increasing may be gleaned from the testimony of one of the witnesses produced here by the husband who said that he had participated in 60,000 abortions. The first trimester of pregnancy is involved in cases such as the one at bar. Therefore, when another case arises time again will be an important factor if a decision is to be rendered.

It is well and good to say, as it was at oral argument in this case, that courts can expedite cases such as these but the fact remains that time is a factor. On important issues such as this there should be adequate time to brief, to argue, and then for the Court to research and to reflect before announcing its opinion. I submit that the type of issue here presented well exemplifies the exception to the mootness rule announced in cases such as Lloyd. It is the kind of issue which is likely to recur without sufficient time for regular briefing and argument. The public importance or public interest is demonstrated by the unusually large attendance at oral argument, the more than average coverage provided by the press, the fact that radio and television saw fit to have their equipment in the courtroom, and that there were several briefs amici curiae filed in this case.

We have a responsibility to decide such an important legal question in order that parties to potential controversies such as this may know their rights and that trial judges presented with issues such as in this case may know whether they should follow the well publicized opinion of the trial judge here. It should be emphasized, however, for the benefit of those who may not fully understand our role, that we are not a legislature. There is a problem of constitutional law involved here. Thus, our decision would not be based upon our own personal predilections of what might be best or best for the marriage relation but would be based upon our understanding of the decisions of the Supreme Court in matters such as this.

I have no hesitancy in saying that in my view the decision in the trial court in this case runs contrary to the holdings of the Supreme Court under the Constitution of the United States in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Also, I know of no authority for a single appellate judge in this State to stay the order of a trial court.

I am authorized to state that Judges Cole and Davidson concur in the views here expressed.