| COMMUNITY |
| Message Boards Chat Feedback |
| SITE SOURCES |
| Contents Help! Search CNN Networks |
| SPECIALS |
| Quick News Almanac Video Vault News Quiz |
|
Footnotes | Concurring Opinion: Justice Stewart | Dissenting Opinion: Justice Rehnquist
III
IT MIGHT HAVE BEEN PREFERABLE IF THE DEFENDANT, PURSUANT TO OUR RULE 20,
HAD PRESENTED TO US A PETITION FOR CERTIORARI BEFORE JUDGMENT IN THE
COURT OF APPEALS WITH RESPECT TO THE GRANTING OF THE PLAINTIFFS' PRAYER
FOR DECLARATORY RELIEF. OUR DECISIONS IN MITCHELL V. DONOVAN, 398 U.S.
427 (1970), AND GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383 (1970), ARE TO
THE EFFECT THAT SEC. 1253 DOES NOT AUTHORIZE AN APPEAL TO THIS COURT FROM
THE GRANT OR DENIAL OF DECLARATORY RELIEF ALONE. WE CONCLUDE,
NEVERTHELESS, THAT THOSE DECISIONS DO NOT FORECLOSE OUR REVIEW OF BOTH
THE INJUNCTIVE AND THE DECLARATORY ASPECTS OF A CASE OF
THIS KIND WHEN IT IS PROPERLY HERE, AS THIS ONE IS, ON APPEAL UNDER
SEC. 1253 FROM SPECIFIC DENIAL OF INJUNCTIVE RELIEF, AND THE ARGUMENTS AS
TO BOTH ASPECTS ARE NECESSARILY IDENTICAL. SEE CARTER V. JURY COMM'N,
396 U.S. 320 (1970); FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S. 73, 80-81
(1960). IT WOULD BE DESTRUCTIVE OF TIME AND ENERGY FOR ALL CONCERNED
WERE WE TO RULE OTHERWISE. CF. DOE V. BOLTON, POST, P. 179.
IV
WE ARE NEXT CONFRONTED WITH ISSUES OF JUSTICIABILITY, STANDING, AND
ABSTENTION. HAVE ROE AND THE DOES ESTABLISHED THAT "PERSONAL STAKE IN
THE OUTCOME OF THE CONTROVERSY," BAKER V. CARR, 369 U.S. 186, 204 (1962),
THAT INSURES THAT "THE DISPUTE SOUGHT TO BE ADJUDICATED WILL BE PRESENTED
IN AN ADVERSARY CONTEXT AND IN A FORM HISTORICALLY VIEWED AS CAPABLE OF
JUDICIAL RESOLUTION," FLAST V. COHEN, 392 U.S. 83, 101 (1968), AND SIERRA
CLUB V. MORTON, 405 U.S. 727, 732 (1972)? AND WHAT EFFECT DID THE
PENDENCY OF CRIMINAL ABORTION CHARGES AGAINST DR. HALLFORD IN STATE COURT
HAVE UPON THE PROPRIETY OF THE FEDERAL COURT'S GRANTING RELIEF TO HIM AS
A PLAINTIFF-INTERVENOR?
A. JANE ROE. DESPITE THE USE OF THE PSEUDONYM, NO SUGGESTION IS MADE
THAT ROE IS A FICTITIOUS PERSON. FOR PURPOSES OF HER CASE, WE ACCEPT AS
TRUE, AND AS ESTABLISHED, HER EXISTENCE; HER PREGNANT STATE, AS OF THE
INCEPTION OF HER SUIT IN MARCH 1970 AND AS LATE AS MAY 21 OF THAT YEAR
WHEN SHE FILED AN ALIAS AFFIDAVIT WITH THE DISTRICT COURT; AND HER
INABILITY TO OBTAIN A LEGAL ABORTION IN TEXAS.
VIEWING ROE'S CASE AS OF THE TIME OF ITS FILING AND THEREAFTER UNTIL AS
LATE MAY, THERE CAN BE LITTLE DISPUTE THAT IT THEN PRESENTED A CASE OR
CONTROVERSY AND THAT, WHOLLY APART FROM THE CLASS ASPECTS, SHE, AS A
PREGNANT SINGLE WOMAN THWARTED BY THE TEXAS CRIMINAL ABORTION LAWS, HAD
STANDING TO CHALLENGE THOSE STATUTES. ABELE V. MARKLE, 452 F.2D 1121,
1125 (CA2 1971); CROSSEN V. BRECKENRIDGE, 446 F.2D 833, 838-839 (CA6
1971); POE V. MENGHINI, 339 F.SUPP. 986, 990-991 (KAN. 1972). SEE TRUAX
V. RAICH, 239 U.S. 33 (1915). INDEED, WE DO NOT READ THE APPELLEE'S
BRIEF AS REALLY ASSERTING ANYTHING TO THE CONTRARY. THE "LOGICAL NEXUS
BETWEEN THE STATUS ASSERTED ANT THE CLAIM SOUGHT TO BE ADJUDICATED,"
FLAST V. COHEN, 392 U.S.,AT 102, AND THE NECESSARY DEGREE OF
CONTENTIOUSNESS, GOLDEN V. ZWICKLER, 394 U.S. 103 (1969), ARE BOTH
PRESENT.
THE APPELLEE NOTES, HOWEVER, THAT THE RECORD DOES NOT DISCLOSE THAT ROE
WAS PREGNANT AT THE TIME OF THE DISTRICT COURT HEARING ON MAY 22, 1970,
/6/ OR ON THE FOLLOWING JUNE 17 WHEN THE COURT'S OPINION AND JUDGMENT
WERE FILED. AND HE SUGGESTS THAT ROE'S CASE MUST NOW BE MOOT BECAUSE SHE
AND ALL OTHER MEMBERS OF HER CLASS ARE NO LONGER SUBJECT TO ANY 1970
PREGNANCY.
THE USUAL RULE IN FEDERAL CASES IS THAT AN ACTUAL CONTROVERSY MUST EXIST
AT STAGES OF APPELLATE OR CERTIORARI REVIEW, AND NOT SIMPLY AT THE DATE
THE ACTION IS INITIATED. UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36
(1950); GOLDEN V. ZWICKLER, SUPRA; SEC V. MEDICAL COMMITTEE FOR HUMAN
RIGHTS, 404 U.S. 403 (1972).
BUT WHEN, AS HERE PREGNANCY IS A SIGNIFICANT FACT IN THE LITIGATION, THE
NORMAL 266-DAY HUMAN GESTATION PERIOD IS SO SHORT THAT THE PREGNANCY WILL
COME TO TERM BEFORE THE USUAL APPELLATE PROCESS IS COMPLETE. IF THAT
TERMINATION MAKES A CASE MOOT, PREGNANCY LITIGATION SELDOM WILL SURVIVE
MUCH BEYOND THE TRIAL STAGE, AND APPELLATE REVIEW WILL BE EFFECTIVELY
DENIED. OUR LAW SHOULD NOT BE THAT RIGID. PREGNANCY OFTEN COMES MORE
THAN ONCE TO THE SAME WOMAN, AND IN THE GENERAL POPULATION, IF MAN IS TO
SURVIVE, IT WILL ALWAYS BE WITH US. PREGNANCY PROVIDES A CLASSIC
JUSTIFICATION FOR A CONCLUSION OF NONMOOTNESS. IT TRULY COULD BE
"CAPABLE OF REPETITION, YET EVADING REVIEW." SOUTHERN PACIFIC TERMINAL
CO. V. ICC, 219 U.S. 498, 515 (1911). SEE MOORE V. OGILVIE, 394 U.S.
814, 816 (1969); CARROLL V. PRINCESS ANNE, 393 U.S. 175, 178-179 (1968);
UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 632-633 (1953).
WE, THEREFORE, AGREE WITH THE DISTRICT COURT THAT JANE ROE HAD STANDING
TO UNDERTAKE THIS LITIGATION, THAT SHE PRESENTED A JUSTICIABLE
CONTROVERSY, AND THAT THE TERMINATION OF HER 1970 PREGNANCY HAS NOT
RENDERED HER CASE MOOT.
B. DR. HALLFORD. THE DOCTOR'S POSITION IS DIFFERENT. HE ENTERED
ROE'S LITIGATION AS A PLAINTIFF-INTERVENOR, ALLEGING IN HIS COMPLAINT
THAT HE:
"(IN THE PAST HAS BEEN ARRESTED FOR VIOLATING THE TEXAS ABORTION
LAWS AND AT THE PRESENT TIME STANDS CHARGED BY INDICTMENT WITH VIOLATING
SAID LAWS IN THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY, TEXAS
TO-WIT: (1) THE STATE OF TEXAS VS. JAMES H. HALLFORD, NO. C-69-5307-IH,
AND (2) THE STATE OF TEXAS VS. JAMES H. HALLFORD, NO. C-69-2524-H. IN
BOTH CASES THE DEFENDANT IS CHARGED WITH ABORTION . . . ."
IN HIS APPLICATION FOR LEAVE TO INTERVENE, THE DOCTOR MADE LIKE
REPRESENTATIONS AS TO THE ABORTION CHARGES PENDING IN THE STATE COURT.
THESE REPRESENTATIONS WERE ALSO REPEATED IN THE AFFIDAVIT HE EXECUTED AND
FILED IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT.
DR. HALLFORD IS, THEREFORE, IN THE POSITION OF SEEKING, IN A FEDERAL
COURT, DECLARATORY AND INJUNCTIVE RELIEF WITH RESPECT TO THE SAME
STATUTES UNDER WHICH HE STANDS CHARGED IN CRIMINAL PROSECUTIONS
SIMULTANEOUSLY PENDING IN STATE COURT. ALTHOUGH HE STATED THAT HE HAS
BEEN ARRESTED IN THE PAST FOR VIOLATING THE STATE'S ABORTION LAWS, HE
MAKES NO ALLEGATION OF ANY SUBSTANTIAL AND IMMEDIATE THREAT TO ANY
FEDERALLY PROTECTED RIGHT THAT CANNOT BE ASSERTED IN HIS DEFENSE AGAINST
THE STATE PROSECUTION. NEITHER IS THERE ANY ALLEGATION OF HARASSMENT OR
BAD-FAITH PROSECUTION. IN ORDER TO ESCAPE THE RULE ARTICULATED IN THE
CASES CITED IN THE NEXT PARAGRAPH OF THIS OPINION THAT, ABSENT
HARRASSMENT AND BAD FAITH, A DEFENDANT IN A PENDING STATE CRIMINAL CASE
CANNOT AFFIRMATIVELY CHALLENGE IN FEDERAL COURT THE STATUTES UNDER WHICH
THE STATE IS PROSECUTING HIM, DR. HALLFORD SEEKS TO DISTINGUISH HIS
STATUS AS A PRESENT STATE DEFENDANT FROM HIS STATUS AS A "POTENTIAL
FUTURE DEFENDANT, AND TO ASSERT ONLY THE LATTER FOR STANDING PURPOSES
HERE.
WE SEE NO MERIT IN THAT DISTINCTION. OUR DECISION IN SAMUELS V. MACKELL,
401 U.S. 66 (1971), COMPELS THE CONCLUSION THAT THE DISTRICT COURT ERRED
WHEN IT GRANTED DECLARATORY RELIEF TO DR. HALLFORD INSTEAD OF REFRAINING
FROM SO DOING. THE COURT, OF COURSE, WAS CORRECT IN REFUSING TO GRANT
INJUNCTIVE RELIEF TO THE DOCTOR. THE REASONS SUPPORTIVE OF THAT ACTION,
HOWEVER, ARE THOSE EXPRESSED IN SAMUELS V. MACKELL, SUPRA, AND IN YOUNGER
V. HARRIS, 401 U.S. 37 (1971); BOYLE V. LANDRY, 401 U.S. 77 (1971); PEREZ
V. LEDESMA, 401 U.S. 82 (1971); AND BYRNE V. KARALEXIS, 401 U.S. 216
(1971). SEE ALSO DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965). WE NOTE,
IN PASSING, THAT YOUNGER AND ITS COMPANION CASES WERE DECIDED AFTER THE
THREE-JUDGE DISTRICT COURT DECISION IN THIS CASE.
DR. HALLFORD'S COMPLAINT IN INTERVENTION, THEREFORE, IS TO BE DISMISSED.
/7/ HE IS REMITTED TO HIS DEFENSES IN THE STATE CRIMINAL PROCEEDINGS
AGAINST HIM. WE REVERSE THE JUDGMENT OF THE DISTRICT COURT INSOFAR AS IT
GRANTED DR. HALLFORD RELIEF AND FAILED TO DISMISS HIS COMPLAINT IN
INTERVENTION.
C. THE DOES. IN VIEW OF OUR RULING AS TO ROE'S STANDING IN HER CASE,
THE ISSUE OF THE DOES' STANDING IN THEIR CASE HAS LITTLE SIGNIFICANCE.
THE CLAIMS THEY ASSERT ARE ESSENTIALLY THE SAME AS THOSE OF ROE, AND THEY
ATTACK THE SAME STATUTES. NEVERTHELESS, WE BRIEFLY NOTE THE DOES'
POSTURE.
THEIR PLEADINGS PRESENT THEM AS A CHILDLESS MARRIED COUPLE, THE WOMAN NOT
BEING PREGNANT, WHO HAVE NO DESIRE TO HAVE CHILDREN AT THIS TIME BECAUSE
OF THEIR HAVING RECEIVED MEDICAL ADVICE THAT MRS. DOE SHOULD AVOID
PREGNANCY, AND FOR "OTHER HIGHLY PERSONAL REASONS." BUT THEY "FEAR . . .
THEY MAY FACE THE PROSPECT OF BECOMING PARENTS." AND IF PREGNANCY
ENSUES, THEY "WOULD WANT TO TERMINATE" IT BY AN ABORTION. THEY ASSERT AN
INABILITY TO OBTAIN AN ABORTION LEGALLY IN TEXAS AND, CONSEQUENTLY, THE
PROSPECT OF OBTAINING AN ILLEGAL ABORTION THERE OR OF GOING OUTSIDE TEXAS
TO SOME PLACE WHERE THE PROCEDURE COULD BE OBTAINED LEGALLY AND
COMPETENTLY.
WE THUS HAVE AS PLAINTIFFS A MARRIED COUPLE WHO HAVE, AS THEIR ASSERTED
IMMEDIATE AND PRESENT INJURY, ONLY AN ALLEGED "DETRIMENTAL EFFECT UPON
(THEIR) MARITAL HAPPINESS" BECAUSE THEY ARE FORCED TO "THE CHOICE OF
REFRAINING FROM NORMAL SEXUAL RELATIONS OR OF ENDANGERING MARY DOE'S
HEALTH THROUGH A POSSIBLE PREGNANCY." THEIR CLAIM IS THAT SOMETIME IN
THE FUTURE MRS. DOE MIGHT BECOME PREGNANT BECAUSE OF POSSIBLE FAILURE OF
CONTRACEPTIVE MEASURES, AND AT THAT TIME IN THE FUTURE SHE MIGHT WANT AN
ABORTION THAT MIGHT THEN BE ILLEGAL UNDER THE TEXAS STATUTES.
THIS VERY PHRASING OF THE DOES' POSITION REVEALS ITS SPECULATIVE
CHARACTER. THEIR ALLEGED INJURY RESTS ON POSSIBLE FUTURE UNPREPAREDNESS
FOR PARENTHOOD, AND POSSIBLE FUTURE IMPAIRMENT OF HEALTH. ANY ONE OR
MORE OF THESE SEVERAL POSSIBILITIES MAY NOT TAKE PLACE AND ALL MAY NOT
COMBINE. IN THE DOES' ESTIMATION, THESE POSSIBILITIES MIGHT HAVE SOME
REAL OR IMAGINED IMPACT UPON THEIR MARITAL HAPPINESS. BUT WE ARE NOT
PREPARED TO SAY THAT THE BARE ALLEGATION OF SO INDIRECT AN INJURY IS
SUFFICIENT TO PRESENT AN ACTUAL CASE OR CONTROVERSY. YOUNGER V. HARRIS,
401 U.S.,AT 41-42; GOLDEN V. ZWICKLER, 394 U.S.,AT 109-110; ABELE V.
MARKLE, 452 F.2D, AT 1124-1125; CROSSEN V. BRECKENRIDGE, 446 F.2D, AT
839. THE DOES' CLAIM FALLS FAR SHORT OF THOSE RESOLVED OTHERWISE IN THE
CASES THAT THE DOES URGE UPON US, NAMELY, INVESTMENT CO. INSTITUTE V.
CAMP, 401 U.S. 617 (1971); DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150
(1970); AND EPPERSON V. ARKANSAS, 393 U.S. 97 (1968). SEE ALSO TRUAX V.
RAICH, 239 U.S. 33 (1915).
THE DOES THEREFORE ARE NOT APPROPRIATE PLAINTIFFS IN THIS LITIGATION.
THEIR COMPLAINT WAS PROPERLY DISMISSED BY THE DISTRICT COURT, AND WE
AFFIRM THAT DISMISSAL.
Listen to Roe vs. Wade Oral Arguments / Read Full Text of the Decision
|
Sound off on our message boards & chat |
|
© 1998 Cable News Network, Inc.
A Time Warner Company
All Rights Reserved.