Michael Benson v. Daniel McKee, in his official capacity as Governor for the State of Rhode Island ( 2022 )

May 4, 2022
Supreme Court
No. 2020-66-Appeal.
(PC 19-6761)
(Concurrence and Dissent
begins on Page 26)
Michael Benson et al. :
v. :
Daniel McKee, in his official :
capacity as Governor for the State of
Rhode Island, et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2020-66-Appeal.
(PC 19-6761)
(Concurrence and Dissent
begins on Page 26)
Michael Benson et al. :
v. :
Daniel McKee,1 in his official :
capacity as Governor for the State of
Rhode Island, et al.
Present: Suttell, C.J., Goldberg, and Robinson, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme
Court on January 27, 2022, on appeal by the plaintiffs, Michael Benson; Nichole
Leigh Rowley; Nichole Leigh Rowley, as parent and next friend of Baby Roe; Jane
Doe; Jane Doe, as parent and next friend of Baby Mary Doe; and Catholics for
Life, Inc., dba Servants of Christ for Life (collectively plaintiffs).2 The plaintiffs
1
Consistent with Rule 25(d) of the Superior Court Rules of Civil Procedure,
defendants Gina Raimondo and Nicholas A. Mattiello have been substituted with
Governor Daniel McKee and Speaker of the House of Representatives Joseph
Shekarchi, respectively, as their current successors in office.
2
We divide the plaintiffs into three categories, in alignment with the types of
claims they assert. First, Michael Benson, Nichole Leigh Rowley, and Jane Doe
will be classified as “the adult plaintiffs”; second, Baby Roe and Baby Mary Doe
-1-
appeal from a Superior Court judgment following the grant of a motion to dismiss
pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure brought
by the defendants—Daniel McKee, in his official capacity as Governor for the
State of Rhode Island; Dominick J. Ruggerio, in his official capacity as President
of the Rhode Island Senate; Joseph Shekarchi, in his official capacity as Speaker of
the Rhode Island House of Representatives; Peter F. Neronha, in his official
capacity as Attorney General for the State of Rhode Island; and Francis McCabe,
in his official capacity as Clerk of the Rhode Island House of Representatives
(collectively defendants).
The plaintiffs contend on appeal, essentially, that the trial justice committed
reversible error by (1) dismissing their claims based on lack of standing; (2)
reaching the merits of the case; and (3) shifting the burden of proof to plaintiffs.3
For the reasons stated in this opinion, we affirm the judgment of the Superior Court
in all respects.4
will be identified as “the unborn plaintiffs,” despite having been born since the
commencement of this action; and, third, Catholics for Life, Inc., dba Servants of
Christ for Life will be referred to as “SOCL.”
3
We have endeavored to articulate plaintiffs’ arguments from their appellate briefs
and to simplify the substance of their contentions.
4
We gratefully acknowledge the amicus briefs submitted by the American Civil
Liberties Union of Rhode Island in support of defendants, and the Thomas More
Society in support of plaintiffs.
-2-
The case before us involves a monumentally controversial issue as reflected
in a deep and enduring societal divide. This Court appreciates the sensitive nature
of the controversy surrounding the issue of the right to abortion, and we
acknowledge the genuine concerns of the parties and amici in this case.5
Facts and Travel
In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court
recognized that “the right of personal privacy includes the abortion decision” and
declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not
include the unborn.” Roe, 410 U.S. at 154, 158. Following Roe, the United States
District Court for the District of Rhode Island declared unconstitutional Rhode
Island’s criminal-abortion statute that prohibited abortions, except when necessary
to preserve the life of the mother. See Women of Rhode Island v. Israel, No. 4605,
slip op. at 3, 4 (D.R.I. Feb. 7, 1973); Rhode Island Abortion Counseling Service v.
Israel, No. 4586, slip op. at 3, 4 (D.R.I. Feb. 7, 1973); see also Doe v. Israel, 358
F. Supp. 1193, 1195-96 (D.R.I. 1973). See generally Compiler’s Notes to
G.L. 1956 §§ 11-3-1–11-3-5 (Reenactment of 2002). That statute, among other
5
See Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of
Pennsylvania, 505 U.S. 833, 850 (1992) (“Men and women of good conscience
can disagree, and we suppose some always shall disagree, about the profound
moral and spiritual implications of terminating a pregnancy, even in its earliest
stage.”); see also Roe v. Wade, 410 U.S. 113, 116 (1973) (“We forthwith
acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigorous opposing views, even among physicians, and of the
deep and seemingly absolute convictions that the subject inspires.”).
-3-
things, criminalized the acts of “[p]rocuring, counseling, or attempting
miscarriage[,]” § 11-3-1, as enacted by G.L. 1872, ch. 228, § 3, as well as any
“[a]dvertising or selling services or drugs to procure miscarriage.”6 Section 11-3-4,
as enacted by P.L. 1915, ch. 1219, § 2.
6
This was the first iteration of Rhode Island’s criminal-abortion statute, which
included five sections, all of which were declared unconstitutional, as discussed
supra. Three of these sections were procedural in nature and expanded on the
criminalizing sections. See G.L. 1956 §§ 11-3-2, 11-3-3, and 11-3-5, all
invalidated by Women of Rhode Island v. Israel, No. 4605, slip op. at 3, 4 (D.R.I.
Feb. 7, 1973); Rhode Island Abortion Counseling Service v. Israel, No. 4586, slip
op. at 3, 4 (D.R.I. Feb. 7, 1973). The first and fourth sections, prior to invalidation
as set forth herein, criminalized abortion by providing:
“11-3-1. Procuring, counseling, or attempting
miscarriage.—Every person who, with the intent to
procure the miscarriage of any pregnant woman or
woman supposed by such person to be pregnant, unless
the same be necessary to preserve her life, shall
administer to her or cause to be taken by her any poison
or other noxious thing, or shall use any instrument or
other means whatsoever or shall aid, assist or counsel any
person so intending to procure a miscarriage, shall if the
woman die in consequence thereof, be imprisoned not
exceeding twenty (20) years nor less than five (5) years,
and if she do not die in consequence thereof, shall be
imprisoned not exceeding seven (7) years nor less than
one (1) year: provided that the woman whose miscarriage
shall have been caused or attempted shall not be liable to
the penalties prescribed by this section.” (Enacted by
G.L. 1872, ch. 228, § 3.)
“11-3-4. Advertising or selling services or drugs to
procure miscarriage.—Every person who knowingly
advertises, prints, publishes, distributes or circulates, or
knowingly causes to be advertised, printed, published,
-4-
Soon after, the Rhode Island General Assembly hastily enacted another
criminal-abortion statute set forth in the same chapter and title as the first version,
designated as §§ 11-3-1 through 11-3-3, maintaining the same language, but
inserting new language in §§ 11-3-4 and 11-3-5 (the criminal-abortion statute). See
P.L. 1973, ch. 15, § 2. This version of § 11-3-4 declared that “human life
commences at the instant of conception and that said human life * * * is a person
within the * * * meaning of the fourteenth amendment of the constitution of the
United States[.]” Section 11-3-4, as enacted by P.L. 1973, ch. 15, § 2. The United
States District Court again found these sections unconstitutional on their face, see
distributed or circulated, any pamphlet, printed paper,
book, newspaper, notice, advertisement or reference
containing words or language giving or conveying any
notice, hint or reference to any person, or to the name of
any person, real or fictitious, from whom, or to any place,
house, shop or office where, any poison, drug, mixture,
preparation, medicine, or noxious thing, or any
instrument or means whatsoever, or any advice,
direction, information or knowledge, may be obtained for
the purpose of causing or procuring the miscarriage of a
woman pregnant with child, or who knowingly exhibits,
advertises or sells to be used for such purpose any
poison, drug, mixture, preparation, medicine, noxious
thing, instrument or means whatsoever, or who, with or
without any charge therefor, gives to any person any
advice, information, instruction or direction for the
purpose of causing or assisting in any such miscarriage,
shall be punished by imprisonment for not more than two
(2) years, or by a fine of not more than one thousand
dollars ($1,000), or by both.” (Enacted by P.L. 1915, ch.
1219, § 2.)
-5-
Doe, 358 F. Supp. at 1199, and the United States Court of Appeals for the First
Circuit agreed with that decision. See Doe v. Israel, 482 F.2d 156, 159 (1st Cir.
1973).
Undaunted, in 1975 the Legislature enacted another abortion-related statute,
G.L. 1956 § 11-23-5, as enacted by P.L. 1975, ch. 231, § 1 (the quick child
statute), criminalizing the willful killing of an unborn “quick child[,]” defined as
“an unborn child whose heart is beating, who is experiencing electronically-
measurable brain waves, who is discernibly moving, and who is so far developed
and matured as to be capable of surviving the trauma of birth with the aid of usual
medical care and facilities available in this state.” Section 11-23-5(c), as enacted
by P.L. 1975, ch. 231, § 1. After a successful challenge in federal court in which
the statute was declared unconstitutional, the case ultimately was dismissed on
appeal in the circuit court due to lack of standing. See Rodos v. Michaelson, 396 F.
Supp. 768, 778 (D.R.I. 1975), rev’d, 527 F.2d 582, 584, 585 (1st Cir. 1975).7
Similarly, in 1997 the General Assembly enacted a new statute to prohibit
partial birth abortion. See G.L. 1956 chapter 4.12 of title 23, as enacted by P.L.
7
It is noteworthy, however, that while declining to issue a substantive ruling, the
First Circuit pointed to “[a]n alleged flaw [in] that the legislature provided an
exception from the statutory restrictions only if an abortion [was] ‘necessary to
preserve the life of such mother,’ when the Supreme Court had said the exception
must apply to ‘life and health [of the mother]’”—an obviously unconstitutional
provision. Rodos v. Michaelson, 527 F.2d 582, 584 (1st Cir. 1975) (quoting Roe,
410 U.S. at 164-65).
-6-
1997, ch. 76, § 2. A year later, the United States District Court for the District of
Rhode Island declared that statute unconstitutional, and the circuit court affirmed
that decision. See Rhode Island Medical Society v. Whitehouse, 66 F. Supp. 2d 288,
294-95 (D.R.I. 1999), aff’d, 239 F.3d 104 (1st Cir. 2001).
In 2019 the General Assembly enacted the Reproductive Privacy Act, G.L.
1956 chapter 4.13 of title 23 (the RPA), effectively granting a right to abortion in
line with Roe, and repealing certain statutes otherwise prohibiting abortion in this
state that were flatly unconstitutional.8 See P.L. 2019, ch. 27, §§ 1–2, 4–7. The
plaintiffs initiated this action in the Superior Court on June 19, 2019, seeking to
halt the passage of House Bill 5125 Substitute B, which later became the RPA; the
trial justice denied plaintiffs’ request for injunctive relief. Upon passage, plaintiffs
filed an amended complaint seeking to challenge the General Assembly’s authority
to enact the RPA, and also seeking a declaration of their legal rights and status
under certain statutes that were repealed by the RPA. In response, defendants filed
a motion to dismiss pursuant to Rule 12(b)(6), which the trial justice granted. The
plaintiffs timely appealed.
8
The statutes repealed by the RPA included the criminal-abortion statute and the
quick child statute, as well as G.L. 1956 chapter 4.8 of title 23; chapter 4.12 of title
23; and G.L. 1956 chapter 18 of title 27. See P.L. 2019, ch. 27, §§ 2, 4–7. As
discussed supra, the criminal-abortion statute and chapter 4.12 of title 23 had
already been declared unconstitutional by the federal court. See Rhode Island
Medical Society v. Whitehouse, 66 F. Supp. 2d 288, 294-95 (D.R.I. 1999), aff’d,
239 F.3d 104 (1st Cir. 2001); see also Doe v. Israel, 358 F. Supp. 1193, 1195-96
(D.R.I. 1973).
-7-
Standard of Review
“The sole function of a motion to dismiss is to test the sufficiency of the
complaint.” Gannon v. City of Pawtucket, 200 A.3d 1074, 1077 (R.I. 2019)
(quoting Narragansett Electric Company v. Minardi, 21 A.3d 274, 277 (R.I.
2011)). “When we review the grant of a motion to dismiss pursuant to Rule
12(b)(6), we apply the same standard as the hearing justice.” Chase v. Nationwide
Mutual Fire Insurance Company, 160 A.3d 970, 973 (R.I. 2017) (quoting Tri-
Town Construction Company, Inc. v. Commerce Park Associates 12, LLC, 139
A.3d 467, 478 (R.I. 2016)). “A motion to dismiss may be granted only when it is
established beyond a reasonable doubt that a party would not be entitled to relief
from the defendant under any set of conceivable facts that could be proven in
support of its claim.” Id. (quoting Tri-Town Construction Company, Inc., 139 A.3d
at 478).
Under this standard, this Court confines its review “to the four corners of the
complaint, assume[s] that the allegations set forth are true, and resolve[s] any
doubts in favor of the [complainant].” Chase, 160 A.3d at 973 (quoting Tri-Town
Construction Company, Inc., 139 A.3d at 478). “There is, however, a narrow
exception for documents the authenticity of which are not disputed by the parties;
for official public records; for documents central to plaintiffs’ claim; or for
documents sufficiently referred to in the complaint.” Id. (quoting Alternative
-8-
Energy, Inc. v. St. Paul Fire and Marine Insurance Company, 267 F.3d 30, 33 (1st
Cir. 2001)).
Analysis
The plaintiffs allege that at this stage of litigation an “identifiable trifle is
enough for standing,” quoting Kenneth C. Davis, Standing: Taxpayers and Others,
35 U. Chi. L. Rev. 601, 613 (1968), and that all of these plaintiffs have claims of
status and constitutional guarantees. The plaintiffs also claim that the trial justice
erroneously reached the merits. In the alternative, they contend that the General
Assembly did not have the constitutional authority to enact the RPA after (1) the
repeal of the continuing powers clause in article 6, section 10 of the Rhode Island
Constitution, which, they argue, stripped the General Assembly of its plenary
powers,9 and (2) based on the restrictive language concerning abortion set forth in
article 1, section 2 of our constitution, which includes the state’s constitutional
guarantees of equal protection and due process, but provides that “[n]othing in this
section shall be construed to grant or secure any right relating to abortion or the
funding thereof.” R.I. Const., art. 1, § 2; see R.I. Const., art. 6, § 10, repealed by
2003 R.I. Acts & Resolves 189-193.
9
Article 6, section 10 of our constitution, which was repealed in 2003, stated,
“Continuation of previous powers. The general assembly shall continue to
exercise the powers it has heretofore exercised, unless prohibited in this
Constitution.” R.I. Const., art. 6, § 10, repealed by 2003 R.I. Acts & Resolves 189-
193.
-9-
The defendants argue that plaintiffs are without standing to bring these
claims because they do not allege an injury-in-fact and have failed to present some
legal hypothesis that would entitle them to real and articulable relief.10 The
defendants claim that the General Assembly had the authority to enact the RPA
because the repeal of the continuing powers clause in the state constitution is of no
moment to the Legislature’s authority to enact law. They also contend that a
careful reading of article 1, section 2 clearly reveals that the restrictive sentence
upon which plaintiffs rely does not restrain the General Assembly from enacting
the RPA because that sentence is confined to article 1, section 2.
In deciding whether a party has standing to maintain a claim, we “examine
the complaint to determine if plaintiffs are entitled to relief under any conceivable
set of facts. This analysis requires our resolution of the overarching issue in this
case—whether the Court is confronted with a justiciable controversy.” McKenna v.
Williams, 874 A.2d 217, 225 (R.I. 2005). Thus, in order to obtain judicial review,
“[t]he plaintiffs must have standing to bring this action[.]” Id. Nevertheless, we
address the meaning of article 1, section 2 of our state constitution on a limited
basis. In so doing, we are not concerned with the subject matter of the RPA—
abortion—but are singularly confronted with the question of the General
10
Although Baby Doe and Baby Mary Roe have been born since initiation of this
action, defendants have not argued that those plaintiffs’ claims are moot, mainly
because they argue that the case is not ripe.
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Assembly’s constitutional authority to enact the RPA. “We shall undertake this
analysis as the final interpreter of the Rhode Island Constitution and state law.” Id.(citing Wigginton v. Centracchio, 787 A.2d 1151, 1154 (R.I. 2001)).
As a preliminary matter, we pause to address plaintiffs’ contention that the
trial justice improperly imposed upon them a higher burden of proof. We disagree.
In her bench decision, the trial justice correctly articulated the proper burden of
proof for a motion to dismiss pursuant to Rule 12(b)(6). We also note that
plaintiffs’ argument that the trial justice could not reach the merits in the context of
this case is misplaced. See Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule
12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of
law.”).11 Lastly, plaintiffs suggest that the trial justice erroneously failed to
consider or apply federal law; they are mistaken.
A
Standing
A party who lacks standing to pursue a cause of action cannot prevail under
any conceivable set of facts. See Cruz v. Mortgage Electronic Registration
Systems, Inc., 108 A.3d 992, 996 (R.I. 2015) (“Standing is a threshold inquiry into
11
See Gliottone v. Ethier, 870 A.2d 1022, 1025 (R.I. 2005) (“[W]e have said many
times that in situations in which our own case law is sparse in the area of civil
procedure, we shall consult the precedents in the federal courts since our Superior
Court Rules are patterned after the federal rules.”) (quoting Kelvey v. Coughlin,
625 A.2d 775, 776 (R.I. 1993)).
- 11 -
whether the party seeking relief is entitled to bring suit.”) (quoting Narragansett
Indian Tribe v. State, 81 A.3d 1106, 1110 (R.I. 2014)). In order for a case to be
justiciable, a party must have “standing to bring suit” and present “some legal
hypothesis which will entitle the plaintiff to real and articulable relief.” Key v.
Brown University, 163 A.3d 1162, 1168 (R.I. 2017) (second quote quoting N & M
Properties, LLC v. Town of West Warwick, 964 A.2d 1141, 1145 (R.I. 2009)).
Simply put, a plaintiff must have suffered injury-in-fact to have standing to
commence a suit. Id. The plaintiff’s injury must be “concrete and particularized[,]
* * * not conjectural or hypothetical.” Id. at 1169 (quoting N & M Properties, LLC,
964 A.2d at 1145).
In addressing the question of standing, “the court must focus on the party
who is advancing the claim rather than on the issue the party seeks to have
adjudicated.” Key, 163 A.3d at 1168 (quoting N & M Properties, LLC, 964 A.2d at
1145). The plaintiff must “demonstrate a personalized injury distinct from that of
the community as a whole.” Id. at 1169 (quoting N & M Properties, LLC, 964 A.2d
at 1145). Critically, “generalized claims alleging purely public harm are an
insufficient basis for sustaining a private lawsuit.” Watson v. Fox, 44 A.3d 130,
136 (R.I. 2012). The parties bringing the action “must demonstrate that [they]
ha[ve] a stake in the outcome that distinguishes [their] claims from the claims of
the public at large.” In re 38 Studios Grand Jury, 225 A.3d 224, 233 (R.I. 2020)
- 12 -
(quoting Watson, 44 A.3d at 136); see United States v. Hays, 515 U.S. 737, 743
(1995) (“The rule against generalized grievances applies with as much force in the
equal protection context as in any other.”). “[S]tanding is generally limited to
those plaintiffs asserting their own rights, not the rights of others.” Mruk v.
Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 535 (R.I. 2013).
The Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9
(the UDJA), “vests the Superior Court with the power to declare rights, status, and
other legal relations whether or not further relief is or could be claimed.” Key, 163
A.3d at 1168 (quoting N & M Properties, LLC, 964 A.2d at 1144); see § 9-30-1.
“At the outset, when confronted with a UDJA claim, the inquiry is whether the
Superior Court has been presented with ‘an actual case or controversy.’” Key, 163
A.3d at 1168 (quoting N & M Properties, LLC, 964 A.2d at 1144). “A declaratory-
judgment action may not be used ‘for the determination of abstract questions or the
rendering of advisory opinions,’” Sullivan v. Chafee, 703 A.2d 748, 751 (R.I.
1997) (quoting Lamb v. Perry, 101 R.I. 538, 542, 225 A.2d 521, 523 (1967)), “nor
does it ‘license litigants to fish in judicial ponds for legal advice.’” Sullivan, 703
A.2d at 751 (quoting Goodyear Loan Company v. Little, 107 R.I. 629, 631, 269
A.2d 542, 543 (1970)).
The three categories of plaintiffs before this Court have set forth individual
claims. Additionally, each plaintiff seeks a declaration that the RPA is void under
- 13 -
the Rhode Island Constitution, as well as an injunction to suspend the RPA’s
operation. Because plaintiffs’ standing under the UDJA is dependent upon
standing for the underlying claims, we limit our review to those underlying claims.
1
The Adult Plaintiffs
The adult plaintiffs’ claims may be summarized as alleged voter suppression
and deprivation of the right to vote. The adult plaintiffs argue that they have
standing because they are “asserting a plain, direct and adequate interest in
maintaining the effectiveness of their votes, * * * not merely a claim of the right,
possessed by every citizen, to require that the Government be administered
according to the law[,]” quoting Baker v. Carr, 369 U.S. 186, 208 (1962). (Internal
quotation marks, citations, and emphasis omitted.)12 These plaintiffs contend that
they specifically pled that “Defendants wrongly ‘suppressed’ their negative vote
against Defendants’ passage and signing of the RPA.” Viewing the allegations in
their pleadings in the light most favorable to the adult plaintiffs, we are of the
opinion that they lack standing to bring this action under any conceivable set of
facts. The adult plaintiffs merely assert that they had the right to vote against
12
The plaintiffs cite to several federal cases to support their contentions; however,
these cases are not applicable to the facts and allegations in plaintiffs’ action. See
Gill v. Whitford, 138 S. Ct. 1916, 1929-30 (2018) (vote dilution claim based on
partisan gerrymandering); Reynolds v. Sims, 377 U.S. 533, 568 (1964) (dilution
claims based on legislative apportionment); Baker v. Carr, 369 U.S. 186, 187-88,
208 (1962) (same).
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passage of the RPA and were deprived of that right. However, no member of the
public—other than elected legislators—was afforded an opportunity to vote for or
against its enactment. We know of no authority to suggest that a general election
or referendum was mandated in this instance, nor do the adult plaintiffs provide us
with any authority.
In Burns v. Sundlun, 617 A.2d 114 (R.I. 1992), this Court was faced with a
similar set of facts. In Burns, the plaintiff claimed that he had been denied the
“right to vote on the establishment of off track betting and the extension of an
existing gambling activity[,]” which he argued must have been decided by a public
referendum, as required by G.L. 1956 § 41-10-2 (1990 Reenactment). Burns, 617
A.2d at 115, 116. We determined that this alleged injury was “shared by each and
every registered voter in the State of Rhode Island” and that “[t]he plaintiff ha[d]
failed to allege his own personal stake in the controversy that distinguishe[d] his
claim from the claims of the public at large.” Id. at 116. The same reasoning
applies to the case at bar.
The adult plaintiffs do not assert a particular injury that distinguishes them
from other voters, save for the purported deprivation of an opportunity to vote
against passage of the RPA, which they suggest, with no citation to authority,
required voter approval. The adult plaintiffs have not been treated or placed in a
different position, because no other registered voters were afforded the right to
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vote on the passage of the RPA. At best, this is a generalized grievance shared
with the public at large, because there was no general election or referendum
where anyone cast a vote. Indeed, in their prayer for relief, plaintiffs requested
“[a] declaration that Plaintiffs, and all the citizens of Rhode Island, have a right to
vote, for or against, the establishment of a new fundamental ‘right’ to abortion (and
the funding thereof) in the State of Rhode Island.” (Emphasis added.) The adult
plaintiffs therefore acknowledge that their claims are identical to those of the
voting public. Accordingly, the trial justice correctly found that the adult plaintiffs
lacked standing in this case.13
2
The Unborn Plaintiffs
The unborn plaintiffs essentially claim that (when this action commenced)
they were “persons” under the UDJA because they fall within the language of
§ 11-3-4 of the criminal-abortion statute, as enacted by P.L. 1973, ch. 15, § 2,
declaring that “human life commences at the instant of conception and that said
human life * * * is a person * * *.” Additionally, Baby Mary Doe claims that she
also falls within the definition of “quick child” under § 11-23-5(c), as enacted by
P.L. 1975, ch. 231, § 1. The unborn plaintiffs argue that, when the General
13
The plaintiffs also allege that the RPA amends the Rhode Island Constitution,
and, thus, they were entitled to vote on that issue. We disagree and further address
this argument infra.
- 16 -
Assembly in 2019 repealed these statutes, upon which statutes they base their
standing, they were stripped of their legal rights and status and suffered harm. See
P.L. 2019, ch. 27, §§ 2, 4 (repealing the criminal-abortion statute and the quick
child statute). They are mistaken.
The United States Supreme Court in Roe held that “the word ‘person,’ as
used in the Fourteenth Amendment, does not include the unborn.” See Roe, 410
U.S. at 158. This Court has acknowledged that “state constitutional and statutory
law is subordinate to * * * ‘the [United States] Constitution[.]’” McKenna, 874
A.2d at 237 (quoting Testa v. Katt, 330 U.S. 386, 391 (1947)). Accordingly, the
unborn plaintiffs fail to assert a legally cognizable and protected interest as persons
pursuant to these repealed statutes, which are contrary to the United States
Constitution as construed by the United States Supreme Court.
Furthermore, with regard to the unborn plaintiffs’ standing as a “person”
under § 11-3-4, before the RPA was enacted, the entirety of the criminal-abortion
statute—which, in part, prohibited the “[p]rocuring, counseling, or attempting
miscarriage”—was declared unconstitutional under the United States Constitution
by the United States District Court for the District of Rhode Island. Doe, 358 F.
Supp. at 1196; see also § 11-3-1, as enacted by P.L. 1973, ch. 15, § 2, and later
amended by P.L. 1974, ch. 118, § 3. Therefore, at the time the RPA was enacted,
the unborn plaintiffs had no legal rights or status under chapter 3 of title 11. With
- 17 -
respect to Baby Mary Doe’s standing under the quick child statute—which
criminalized the willful killing of an unborn “quick child”—this criminal statute
did not afford private citizens any legal rights. See § 11-23-5, as enacted by P.L.
1975, ch. 231, § 1. Thus, this statute did not provide Baby Mary Doe with any
“legally cognizable” claim. See McKenna, 874 A.2d at 226.
Lastly, the unborn plaintiffs failed to allege any concrete and actual (or
imminent) injury at the time they sought judicial relief. See Key, 163 A.3d at 1169.
There was no suggestion in their pleadings that the unborn plaintiffs were in
danger or somehow threatened as potential crime victims. In fact, each was born
during the pendency of this case. Accordingly, we conclude that, because the
unborn plaintiffs lacked standing, their claims were properly dismissed.
3
The Servants of Christ for Life
The corporate plaintiff, the SOCL, alleges claims that are derivative from
those of the unborn plaintiffs, as well as its own injury to “its ‘legal relations’ and
‘status’ as advocates for the unborn.” With respect to the derivative claims,
because we have determined that the unborn plaintiffs lack standing, these
derivative claims similarly fail. Turning to the SOCL’s individual claim to its right
to advocate for the unborn, this is a disqualifying abstract injury. See Sullivan, 703
A.2d at 751 (“A declaratory-judgment action may not be used ‘for the
- 18 -
determination of abstract questions[.]’”) (quoting Lamb, 101 R.I. at 542, 225 A.2d
at 523). The SOCL has failed to show that it has suffered any injury or is in
imminent danger of harm. See Key, 163 A.3d at 1169. Without question, the
SOCL may continue to advocate for the unborn, but not in the context of this case.
Because plaintiffs have not provided any authority supporting their contentions, the
SOCL is without standing in this action.
4
Substantial Public Interest
The plaintiffs claim that, even if they cannot establish an injury-in-fact, the
substantial-public-interest exception operates to confer standing. We disagree.
Although plaintiffs’ contentions implicate an important question as they challenge
the Legislature’s authority to enact laws, their substantive claims with respect to
the constitutionality of the RPA itself are not a matter of substantial public interest
because this question has been answered by the United States Supreme Court.
B
The General Assembly’s Authority to Enact the RPA
Because we are mindful of the critical public importance that attaches to a
direct challenge to the General Assembly’s constitutional authority to enact
legislation, we briefly turn to that specific issue. Cf. McKenna, 874 A.2d at 230(“Although the foregoing holdings [based on standing] are determinative of the
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issues before this Court, we are mindful of the public importance that attaches to
such a direct challenge to an official’s title to office [in accordance with the state
constitution].”).
1
Repeal of Article 6, Section 10
“In November of 2004, the electorate of the State of Rhode Island approved
the so-called separation of powers amendments. These amendments ushered in
four fundamental changes to the Rhode Island Constitution and, for the first time in
[the state’s] history, clearly and explicitly established three separate and distinct
departments of government.” In re Request for Advisory Opinion from House of
Representatives (Coastal Resources Management Council), 961 A.2d 930, 933
(R.I. 2008). Relevant to the case at bar, “[a]rticle 6, section 10 [of the state’s
constitution], which had vested broad ‘continuing powers’ in the General
Assembly, was repealed[.]” Id. However, “the separation of powers amendments
did not, either explicitly or implicitly, limit or abolish the power of the General
Assembly in any other area where we have previously found its jurisdiction to be
plenary.” Id. at 935-36 (footnotes omitted). This is settled law.
“The General Assembly possesses the broad and plenary power to make and
enact law, ‘save for the textual limitations that are specified in the Federal or State
Constitutions.’” East Bay Community Development Corporation v. Zoning Board
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of Review of Town of Barrington, 901 A.2d 1136, 1150 (R.I. 2006) (alteration
omitted) (quoting Cherenzia v. Lynch, 847 A.2d 818, 822 (R.I. 2004)). “In the
areas where the General Assembly possesses plenary power, ‘all * * *
determinations are left to the General Assembly’s broad discretion to adopt the
means it deems “necessary and proper” in complying with the constitutional
directive.’” In re Request for Advisory Opinion from House of Representatives
(Coastal Resources Management Council), 961 A.2d at 938 (brackets and
emphasis omitted) (quoting City of Pawtucket v. Sundlun, 662 A.2d 40, 56 (R.I.
1995)).
Despite the repeal of article 6, section 10, the broad power and prerogative
to enact and repeal law that pertains to the health and safety of its constituents
remains with the General Assembly. See generally G.L. 1956 title 23, governing
“Health and Safety.” Next, we look to the question of whether a restraint of the
Legislature’s power to enact or repeal laws concerning abortion resides in article 1,
section 2 of the Rhode Island Constitution.
2
Article 1, Section 2
In 1986 the Rhode Island Constitutional Convention, through Resolution 86-
00032 (Sub. A), as amended, revised article 1, section 2 of the state’s constitution
to include the due process and equal protection language of the Fourteenth
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Amendment to the United States Constitution. See State of Rhode Island
Constitutional Convention, Report of the Citizens Rights Committee on Individual
Rights, Res. 86-00032, Jan. Sess., at 6 (1986) (unpublished). “The drafters’
rationale for adding a parallel yet independent equal-protection clause was
presumably to protect the citizens of this state should the federal judiciary adopt a
more narrow interpretation of the Fourteenth Amendment.” Providence Teachers’
Union Local 958, AFL-CIO, AFT v. City Council of City of Providence, 888 A.2d
948, 956 (R.I. 2005) (citing Report of the Citizens Rights Committee, at 6).
Significantly, however, the drafters inserted a sentence declaring that “[n]othing in
this section shall be construed to grant or secure any right relating to abortion or
the funding thereof.” R.I. Const., art. 1, § 2.
“This Court has said that, in construing constitutional amendments, our
chief function is to give effect to the intent of the framers.” In re Request for
Advisory Opinion from House of Representatives (Coastal Resources Management
Council), 961 A.2d at 935. When the language in a provision of the constitution is
“free from ambiguity, the[] [words] are to be given their plain, ordinary, and
usually accepted meaning.” Id. “The historical context of a constitutional
provision also is important in ascertaining its meaning, scope and effect.” Viveiros
v. Town of Middletown, 973 A.2d 607, 611 (R.I. 2009). Importantly, “state
constitutional and statutory law is subordinate to the constitutional powers of the
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federal government, and ‘the Constitution and the laws passed pursuant to it are the
supreme laws of the land, binding alike upon states, courts, and the people[.]’”
McKenna, 874 A.2d at 237 (quoting Testa, 330 U.S. at 391).
A plain reading of article 1, section 2 reveals that the language in the last
sentence is clear and unambiguous. First, it is confined to that section of the
constitution; it reads, “[n]othing in this section shall be construed to grant or secure
any right relating to abortion or the funding thereof.” R.I. Const., art. 1, § 2
(emphasis added). Second, this sentence employs the term “construed[,]” which
connotes a judicial function, defined by Black’s Law Dictionary as “[t]o analyze
and explain the meaning of (a sentence or passage) .” Black’s Law Dictionary 393 (11th ed. 2019); see In re
Request for Advisory Opinion from House of Representatives (Coastal Resources
Management Council), 961 A.2d at 935. Construing provisions in the state’s
constitution is the function of this Court, and we have not been called upon to do
so in the context of this case. But in no way has the General Assembly been
prohibited from enacting the legislation at issue in the case at bar. The General
Assembly enacts law; it does not interpret or construe the constitution—that is the
function of this Court. See McKenna, 874 A.2d at 225 (providing that this Court is
“the final interpreter of the Rhode Island Constitution and state law”).
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We pause to note that at the close of the 1986 Constitutional Convention, the
public voted to approve and ratify or reject fourteen proposed constitutional
amendments by way of referendum. See Rhode Island Constitutional Convention
1986, Voters’ Guide to Fourteen Ballot Questions for Constitutional Revision.
Ballot Question No. 8,14 the proposed amendment to article 1, section 2, was
approved.15 Notably, Ballot Question No. 14,16 an amendment effectively banning
14
Ballot Question No. 8 stated,
“Shall free speech, due process and equal protection
clauses be added to the Constitution? Shall the state or
those doing business with the state be prohibited from
discriminating against persons solely on the basis of race,
gender or handicap? Shall victims of crime have
constitutionally endowed rights, including the right to
compensation from perpetrators? Shall individual rights
protected by the state constitution stand independent of
the U.S. Constitution?” Rhode Island Constitutional
Convention 1986, Voters’ Guide to Fourteen Ballot
Questions for Constitutional Revision, Ballot Question
No. 8, “Rights of the People.”
15
The votes cast for the “Rights of the People” ballot question across the state
resulted in 160,137 to approve this amendment and 115,731 to reject it. See
Official Count of the Ballots Cast (Board of Elections, 1986).
16
Ballot Question No. 14 stated,
“To the extent permitted by the U.S. Constitution, shall
all persons, including their unborn offspring, without
regard to age, health, function or condition of
dependency, be endowed with an inalienable and
paramount right to life; and to the extent permitted by the
U.S. Constitution, shall abortion be prohibited, except
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abortion in Rhode Island, was also on the ballot in 1986. The question failed.17
The submission of these two distinct questions to the voters convinces us that
article 1, section 2 prohibits the drawing of any inferences concerning the right to
abortion or its funding arising from the due process and equal protection provisions
of the state constitution. We are of the opinion that the enactment of the RPA did
not amount to a constitutional amendment requiring a referendum. We also
reiterate that, because plaintiffs do not show an actual and personal stake in the
outcome, we make no substantive ruling relative to their claims.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record in this case may be remanded to the Superior Court.
Justice Lynch Prata and Justice Long did not participate.
that justified medical procedures to prevent the death of a
pregnant woman shall be permitted? Shall the use of
government monies to fund abortions be prohibited by
the Constitution?” Rhode Island Constitutional
Convention 1986, Voters’ Guide to Fourteen Ballot
Questions for Constitutional Revision, Ballot Question
No. 14, “Paramount Right to Life/Abortion.”
17
The votes cast for the “Paramount Right to Life/Abortion” ballot question across
the state resulted in 102,633 to approve this amendment and 197,520 to reject it.
See Official Count of the Ballots Cast (Board of Elections, 1986).
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Justice Robinson, concurring in part and dissenting in part. I am able to
concur in the portion of the majority’s opinion which holds that the plaintiffs in
this case lack standing.1 However, in accordance with my long-held and emphatic
belief that this Court should not opine on issues concerning which we need not
opine, it is my opinion that our holding that the instant plaintiffs lack standing
should be the end of the matter.2 See Grady v. Narragansett Electric Co., 962
A.2d 34, 42 n.4 (R.I. 2009) (Robinson, J.) (referencing “our usual policy of not
opining with respect to issues about which we need not opine”); see also Salvatore
v. Palangio, 247 A.3d 1250, 1258 n.7 (R.I. 2021) (Robinson, J.) (citing Grady);
IDC Clambakes, Inc. v. Carney as Trustee of Goat Island Realty Trust, 246 A.3d
927, 935 n.6, 936 n.8 (R.I. 2021) (Robinson, J.) (same); Mondoux v. Vanghel, 243
A.3d 1039, 1045 n.3 (R.I. 2021) (Robinson, J.) (same); La Gondola, Inc. v. City of
Providence, by and through Lombardi, 210 A.3d 1205, 1221 (R.I. 2019)
(Robinson, J.) (same); Rhode Island Industrial-Recreational Building Authority v.
1
I agree with my respected colleagues that none of the named plaintiffs has
standing to pursue this case. However, I do not subscribe to the entirety of the
language in the majority’s opinion that leads to that dispositive holding.
2
I acknowledge that there are exceptional occasions when this Court may
appropriately opt to overlook the standing requirement and that, due to the
exigency of unusual circumstances, I have, on at least one instance in the past,
advocated (unsuccessfully) in favor of invoking that exception. See In re Review
of Proposed Town of New Shoreham Project, 19 A.3d 1226, 1229 (R.I. 2011)
(mem.) (Flaherty, J., with whom Robinson, J. joins, dissenting). However, it is my
decided opinion that the instant case is not an appropriate one for invoking that
exception.
- 26 -
Capco Endurance, LLC, 203 A.3d 494, 507 n.5 (R.I. 2019) (Robinson, J.) (same);
North Kingstown School Committee v. Wagner, 176 A.3d 1097, 1101 (R.I. 2018)
(Robinson, J., dissenting) (same); State v. Peltier, 116 A.3d 150, 157 (R.I. 2015)
(Robinson, J., concurring in part and dissenting in part) (same and contending that
the majority “disregarded our strong and oft articulated policy favoring judicial
restraint”); State v. Rodriguez, 996 A.2d 145, 153 (R.I. 2010) (Robinson, J.,
concurring) (citing Grady). Accordingly, I respectfully but most definitively
dissent from any portion of the majority’s opinion that addresses any issue other
than the standing issue.3 I see no reason in the instant case for addressing such
important and controversial issues when there is no necessity to do so. See, e.g.,
Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452
A.2d 931, 934 (R.I. 1982) (“As we conclude that [the petitioner] lacks standing to
maintain this action, we do not reach any other questions raised by the petition.”).
3
I wish to be clear that by this dissent I express no view whatsoever as to the
majority’s substantive discussion of those other issues. I am vigorously dissenting
from the fact that the majority has chosen to address those weighty issues.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Michael Benson et al v. Daniel McKee, in his official
Title of Case capacity as Governor for the State of Rhode Island, et
al.
No. 2020-66-Appeal.
Case Number
(PC 19-6761)
Date Opinion Filed May 4, 2022
Justices Suttell, C.J., Goldberg, and Robinson, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa E. Darigan
For Plaintiffs:
Thomas M. Dickinson, Esq.
Diane Messere Magee, Esq.
For Defendants:
Attorney(s) on Appeal
Michael W. Field
Assistant Attorney General
Andrea M. Shea
Special Assistant Attorney General
SU-CMS-02A (revised June 2020)