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Brief for Appellant

The Questions Are Substantial

The present appeal presents important and unresolved federal questions which have not been but should be determined by this Court. A district court's refusal to enjoin present and future enforcement of a statute declared facially unconstitutional raises important issues for the vindication by federal courts of rights guaranteed by the Constitution. Decisions by this Court have not in recent years clarified the propriety of federal injunctive relief against state criminal statutes outside the pristine speech area of the First Amendment. A decision by this Court is needed, particularly where, as here, the injunction was sought by some Appellants who were total strangers to any pending prosecutions, and by one Appellant for whom defense of state court prosecution would be a wholly inadequate means of vindicating his federally protected rights.

¹² See Griswold v. Connecticut, 381 U.S. 479 (1965).

¹³ See Skinner v. Oklahoma, 316 U.S. 535 (1942); Stanley v. Georgia, 394 U.S. 557 (1969).

¹⁴ See, e.g., McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis.) (per curiam), appeal docketed, 38 U.S.L.W, 3524 (U.S. June 20, 1970) (No. 297, Oct. 1970 Term); United States v. Vuitch, 305 F. Supp. 1032 (D.D.C. 1969), ques, of juris. postponed to merits, 397 U.S. 1061, further juris. questions propounded, 399 U.S. 923 (1970); California v. Belous, 71 Cal. 2d—, 458 P. 2d 194, 80 Cal. Rptr. 354 (1969), cert denied 397 U.S, 915 (1970).

¹⁵ 2A TEXAS PENAL CODE art 1196, at 36 (1961).

¹⁶ (1) United States v. Vuitch, No. 84, arises under a differently worded felony abortion statute, however, and poses numerous alternate grounds for affirmance other than the central questions presented here, of overbreadth and vagueness.

(2) McCann v. Babbitz, No. 297, was decided at the federal district court level on grounds virtually the same as those below in the present case. It appears in McCann, however, that the appeal was taken by the State solely from the granting of a declaratory judgment for Dr. Babbitz. No appeal was taken from denial of an injunction, as 28 U.S.C. § 1253 (1964 ed.), would seem to require, and as this Court twice held last Term, Mitchell v. Donovan, 398 U.S. 427 (1970) (per curiam), vacating 300 F. Supp. 1145 (D. Minn. 1969), with directions enter a fresh judgment of dismissal, to enable appellants to appeal to the Eighth Circuit; Rockeller v. Catholic Medical Center; 397 U.S. 820 (1970) (per curiam).

(3) Hodgson v. Randall, No. 728, is an appeal from a three-judge federal court decision refusing to enjoin state court prosecution of a physician who sought federal relief before performing a hospital therapeutic abortion for German measles indications, and long before the state indictment.

(4) Hodgson v. Minnesota, No. 729, involves the same subject matter as No. 728, and is an appeal from the Supreme Court of Minnesota's denial of a writ of prohibition to a state trial court which had upheld the constitutionality of an abortion statute, where unconstitutionality was the defense to the charges.

¹⁷ See cases cited in not 31–37, infra, and accompanying text.

In addition, the substantive issues in the case, which will surely be raised for further review by Appellee, are novel issues of profound national import, affecting the lives of many thousands of American citizens each year. Further, the same issues are presented in four appeals already docketed,¹⁶ a variety of conflicting decisions in the lower courts,¹⁷ and a host of pending actions in federal and state lower courts.

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Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972Brief for Appellant - Brief For Appellant, Table Of Contents, Jurisdiction, Statutes Involved, Questions Presented, Statement Of The Case