Brief for Appellant

In the remainder of this Jurisdictional Statement, Appellants will show that the questions presented are substantial, and merit plenary review by the full Court. Because of the novelty and complexity of the issues, and the limited function of a Jurisdictional Statement, this showing will not undertake to develop all arguments in depth.

I. The three-judge court should have enjoined future enforcement of the Texas anti-abortion laws, which the court had declared unconstitutional, because an injunction was necessary in aid of the court's jurisdiction, proper to effectuate the declaratory judgment, and needed to prevent irreparable injury to important federal rights of the class of pregnant women who are or will be seeking abortions, and the class of physicians who are forced to reject such women as patients out of a reasonable fear of prosecution

A. The subject matter of the merits involves important and substantial federal constitutional questions. On the merits, Appellants argued successfully that decisions by this Court, construing the First, Fourth, Ninth, and Fourteenth Amendments supported a claim that the Texas anti-abortion statutes swept too broadly and thereby invaded rights protected by the Constitution (Pay out 5a, 6a, 12a-16a).¹⁹ Moreover, the statues in question were held to be so vague and indefinite as to violate the Fourteenth Amendment due process guarantee of reasonably specific legislation (App. at 5a, 6a, 16a-18a). That guarantee is particularly significant where, as here, important personal rights are at stake, and an impermissibly vague statute operates to inhibit a wide range of constitutionally protected conduct.²⁰

Ultimately, the substantive question presented is whether a State may enact a felony statute to punish a physician, a woman, and her husband, with five years in state prison, where the couple requests, and the physician performs, a therapeutic surgical procedure to abort a pregnancy which the couple did not want, but were unable to prevent.²¹ Under Griswold v. Connecticut, 381 U.S. 479 (1965), it is clear that a husband and wife²² are constitutionally privileged to control the size and spacing of their family by contraception. The failure of contraception, however, is commonplace.²³ Authoritative estimated are that between 750,000 and 1,000,000 births each year are unwanted.²⁴ These are in addition to the 200,000 to 1,000,000 unwanted pregnancies which are estimated to end in abortion induced outside of the clinical setting.²⁵ Taken together, some 950,000 to 2,000,000 unwanted births plus non-clinical abortions occur yearly. Accordingly, one must conclude that restrictive anti-abortion statutes, such as the Texas law in question here, drastically affect the conduct of literally millions of American citizens.

The national significance of the issues in this case can be also be inferred from increased activity within the medical profession, and in the legislatures. On June 25, 1970, the House of Delegates of the American Medical Association voted to permit licensed physicians to perform abortions in hospitals, with sole additional qualification that two other physicians can be consulted.²⁶ Physicians were cautioned, however, not to violate existing state statues, forty-seven of which are far more restrictive.²⁷ Three states in 1970—New York, Alaska, and Hawaii—removed, for the most part, any criminal penalties which might previously have been imposed upon physicians for performing abortions in appropriate medical facilities.²⁸ From 1967 to 1970, twelve states had adopted therapeutic abortion statutes similar to that of the Model Penal Code's 1962 Proposed Official Draft. More recently, on August 4, the Commissioner on Uniform State Laws issued a Second Tentative Draft of a Uniform Abortion Act. The Act sanctioned abortions by licensed physicians "within 24 weeks after the commencement of the pregnancy; or of after 24 weeks …" under the circumstances set out in the Model Penal Code proposal.

These developments bear witness to the importance of the issues presented here.

While policy-making and legislative bodies have debated the issue of abortion, courts, confined to the constitutional framework, have been asked to resolve the questions of individual and legislative power which are presented here. Although the questions framed in this case have not been decided³⁰ by this Court, numerous federal and state decisions attest to the substantiality of the federal questions. Moreover, the sometimes sharp divisions in the courts below illustrate further the need for a decision at this level. In showing that the Court has jurisdiction, and that the questions are substantial, Appellants will outline the divisions among lower courts.

In September, 1969 the Supreme Court of California became the first appellant court to recognize the constitutional stature of a "fundamental right of the woman to choose whether to bear children.…"³¹ The Belous court found thisright implicit in this Court's "repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex."³²

More recently, three different decisions by statutory three-judge federal courts have invalidated restrictions on access to medical abortion in Wisconsin and Georgia, as well as in the present case from Texas. The first, McCann v. Babbitz,³³ recognized in that jurisdiction a woman's

"basic right reserved to her under the ninth amendment to decide whether she should carry or reject an embryo which has not yet quickened." 310 F. Supp. at 302

McCann grew out of the prosecution of a physician, but the three-judge court had no difficulty holding that a physician has standing to assert the rights of pregnant patients.³⁴

The second recent federal decision is the present case, Roe v. Wade,³⁵ declaring the Texas anti-abortion statutes unconstitutional on the similar ground that

"they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children."

A third federal decision, Doe v. Bolton,³⁶ followed Belous, McCann, and Roe, holding:

"[T]he concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy.

"…[T]he reasons for an abortion may not be proscribed…"

Numerous lower courts have followed this lead, in both federal and state disputes.³⁷ In addition, three-judge courts have been requested and/or convened in a number of states to consider questions quite similar to those raised here.³⁸ The convening of a statutory court, of course, requires that the questions presented be "substantial."³⁹

Scholarly commentary also recognizes that these issues are tremendous national importance, and "substantial" in the sense of warranting determination by this Court. Retired Justice Clark addressed himself to the applicability of Griswold in the abortion context more than a year ago.⁴⁰ According to Justice Clark's analysis,

"Griswold's act⁴¹ was to prevent formation of the fetus. This, the Court found, was constitutionally protected. If an individual may prevent conception, why can he not nullify that conception when prevention fails?"⁴²

To examine Justice Clark's hypothetical question in full constitutional context, and to decide the propriety of injunctive relief in this case, the Court should not probable jurisdiction, and set the matter down for full briefing and argument.

B. Having determined the merits in appellants' favor, the three-judge court should have enjoined future enforcement of the invalid. Not only do the substantive issues in this case involve important federal questions, but the remedy following judgment also presents a novel point of which this Court has not clearly ruled.

Although no state proceedings were pending or imminently threatened against Appellants Jane Roe, John Doe, and Mary Doe, or members of their respective classes, the District Court declined to grant any injunctive relief whatever. This denial of necessary relief is contrary to decisions by this Court, and has the probable effect of inviting federal-state friction, rather than lessening such untoward interaction. Moreover, the denial of injunctive relief to Dr. Hallford was equally improper, as he had requested an injunction against the commencement of any future prosecutions. As to charges then pending against Dr. Hallford, an injunction would have been proper in addition, for reasons which shall appear more fully hereinafter

Relying entirely on Dombrowski v. Pfister, 380 U.S. 479 (1965), the three-judge court recognized a "federal policy of non-interference with state criminal prosecutions [which] must be followed except in cases where 'statutes are justifiably attacked on their face as abridging free expression,' or where statutes are justifiably attacked 'as applied for the purpose of discouraging protected activities.'" 380 U.S. at 489–90. The quote from Dombrowski, however, was not pertinent, for Appellants' principal thrust was not against pending prosecutions, but against any future enforcement and effects of the challenged statutes. The pregnant Plaintiff, Jane Roe, for example, could never be prosecuted under Texas law regardless of the number of abortions she underwent, but the statute, unless enjoined, would have the effect of keeping her from obtaining an abortion.

For the most part, Appellants were strangers to any existing or contemplated prosecutions. Their chief controversy was over the drastic impact of the statutes on their lives, not any possibility of imminent enforcement. In Dombrowski, the appellants were actively threatened with prosecution, and an injunction would necessarily have abated that threat by operating directly on law officers who stood ready to go forward with existing indictments. Accordingly, "special circumstances" were necessary to justify the conclusion ultimately reached.

If, however, Dombrowski had been purely a challenge to quantifiable and recurring effects of a state criminal statute, without the pendency of criminal charges, the case would have been different. This is shown by the ease with which this Court has reversed lower courts that refused declaratory and injunctive relief against loyalty oath statutes backed by criminal sanctions. See Keyishian v. Board of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360, 365–66 (1964). Injunctive relief against the statute in Dombrowski would have presented no special problem, if the statute had been a loyalty oath backed by the very same criminal penalties, and no indictments had been waiting in the wings.

Dombrowski falls in the middle ground between (1) injunctive actions which are filed and completed prior to the commencement of any state criminal proceedings, and (2) actions which are filed after "proceedings in a State court,"⁴³ are underway. The Dombrowski case itself was filed but not completed before State proceedings began.⁴⁴ Hence, while Dombrowski acknowledged that "[28 U.S.C. § 2283 (1964 ed.)], and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted,"⁴⁵ this Court nonetheless required "special circumstances" to justify interference with a criminal proceeding begun shortly after the federal complaint was filed.

The present case lies chronologically in the earliest of the categories, (1), because, as to the bulk of relief sought against future enforcement of the anti-abortion statute, state proceedings have never been contemplated. Appellants were thus in the same position as petitioners contesting a loyalty oath that was backed by criminal sanctions. Their entitlement to an injunction against future enforcement should have followed as a matter of course. Put another way, Appellants were "strangers to [any pending] state court proceedings." Hale v. Bimco Trading Co., 306 U.S. 375, 378 (1939) (Frankfurter, F.).⁴⁶ The fact of pending prosecutions against other physicians, or against Dr. Hallford based upon alleged past conduct, had no bearing on Appellant's request for prospective injunctive relief.

Accordingly, the three-judge court should have undertaken an inquiry as to the propriety of injunctive relief without reference to Dombrowski v. Pfister, and without any greater concern for hypothetical federal-state friction than exists in the ordinary case where state judicial machinery has not entered the controversy. Indeed, denial of injunctive relief was an open invitation for Texas authorities to maintain existing enforcement policies. Should this have occurred against Dr. Hallford, or any other physician member of the class he represented, a federal injunction would have been sought from the district court as "necessary in aid of its jurisdiction, or to protect or effectuate its"⁴⁷ declaratory judgment invalidating the statute. A confrontation between federal and state judiciary might then have ensued. To avoid such a possibility, the three-judge court should have enjoined future enforcement of the statute on June 17, 1970, when it ruled the statute invalid. In other words, an injunction ab initio would have prevented federal-state conflict, and enhanced the very policy the three-judge court thought it was following be denying the injunction.

A further reason for having granted the injunction was to avoid irreparable injury to individuals in the class of Jane Roe, and to physicians deterred by the ongoing possibility that the State might continue to enforce the statute until the controversy was determined by this court. Without a coercive order on record, Texas law enforcement authorities are free to ignore the declaratory judgment rendered below, because the judgment is subject to possible reversal here. It requires no argument to show that a declaratory judgment by this Court ends the controversy,⁴⁸ but such judgments at the district court level carry much less practical import.

Appellant Dr. Hallford sought not only an injunction against future enforcement of the Texas anti-abortion statutes, but also an injunction to bar the commencement of State proceedings against him based upon two outstanding indictments. This request for injunctive relief presents several substantial questions which merit review by this Court.

Assuming that the district court improperly denied an injunction directed generally against future enforcement of the anti-abortion laws, one question is whether that injunction, if entered, should cover the commencement of prosecution under the aforesaid indictments. Whether a bare indictment, returned from the secrecy of a grand jury, alone constitutes a "proceeding in a State court" is an open question.⁴⁹ If there is no "proceeding," as this Court found in Dombrowski, the degree of irreparable injury needed to justify an injunction must apparently be considered nonetheless. Here, unlike Dombrowski, law enforcement authorities have not to date gone forward with prosecutions; hence the degree of friction between state federal judicial systems is considerably lessened.

Also here, as in Griswold v. Connecticut,⁵⁰ and unlike Dombrowski, the permissible range of leeway for State regulation of marital and personal privacy is small. While government may regulate many facets of speech coupled with conduct, there is much doubt whether government can so intrude into the domain of privacy. Thus, to allow any prosecution at all of Dr. Hallford is to permit the State in invade the privacy of physician and patient in an area where the district court concluded that the State had little business at all.

If one assumes that 28 U.S.C. § 2283 (1964 ed.), is prima facie a bar to an injunction on Dr. Hallord's behalf, the further question remains whether, notwithstanding § 2283, an injunction would be "necessary in aid of [the three-judge court's] jurisdiction," or "to protect or effectuate" the outstanding declaratory judgment. On this theory, since the court had jurisdiction to the grant an injunction on behalf of all parties, it would be incongruous to exclude Dr. Hallford. Indeed, the alleged patients who were aborted, according to the two indictments, might be able to enjoin the compulsion of process against them in order to protect their privacy.

In light of the above, the questions presented in this case, both on the merits, and with respect to relief, are substantial, novel, and hitherto unresolved by this Court. Accordingly, the Court should not probable jurisdiction, and set the case down for plenary review.

II. A married couple, and others similarly situated, have standing to challenge the Texas anti-abortion laws, because said laws have a present and destructive effect on their marital relations, they are unable to utilize fully effective contraceptive methods, pregnancy would seriously harm the woman's health, and such a couple could not obtain judicial relief in sufficient time after pregnancy to prevent irreparable injury.

A further aspect of the judgment below is presented on this appeal. In one part of the lower court's opinion is the holding that "Dr. Hallford has standing to raise the rights of his patients, single women and married couples, as well as rights of his own" (App. at 9a n.3). Yet, the judgment states that "[p]laintiffs John and Mary Doe failed to allege facts sufficient to create a present controversy and therefore do not have standing" (App. at 5a). Accordingly, both declaratory and injunctive relief were denied as to John and Mary Doe.

John and Mary Doe alleged a present impact of the Texas anti-abortion laws on their marital relations which, when considered in light of their assertion of the interests of a class, created a present controversy over a future right to relief in the event Mary Doe or another class member became pregnant.

This statement has already pointed out, supra at 6–7, that the judicial machinery is not equipped to grant relief to a party such as Mary Doe after she becomes pregnant. The only meaningful relief must be forthcoming prior to the twelfth week of pregnancy. While twelve weeks is a lengthy period of time, pregnancy is rarely detected before the fourth week, and often not until considerably later, depending upon the degree of medical sophistication of the patient.

Based upon an assumed size of the class represented by Mary Doe, and the known failure rate of the contraceptive she used, it would not be speculative to assume that one or more members of the class would be or become pregnant during the litigation. To assume to the contrary, as the district court did, was not only medically unsound, but served to elevate "ripeness" requirements to an unnecessarily high point, namely a point which deprived the entire class of relief sought simply because no class member stepped forward as pregnant. Indeed, Jane Roe, the pregnant plaintiff, won a judgment which proved meaningless to her, because it was too late.

Ample precedent, moreover, could have been found to conclude that a present controversy existed between the Does and Appellees. Not only should the lower court have considered "'the hardship of denying judicial relief,'"⁵¹ but the dilemma faced by the class of Mary Does when they become pregnant is "'capable of repetition, yet evading review' …" Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The situation, admittedly difficult if one ignores its uniqueness, is nonetheless one in which the "mere possibility of[recurrence] …serves to keep the case alive." United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). To the extent that the lower court, almost without discussion, rejected the standing of John and Mary Doe for want of an Article III case or controversy, the court erred. To the Does the case was and is a very real one. The was never an absence of adversity. The relief requested had significant meaning for the Does throughout, and the denial of the relief could provide harmful precedent for similar situations. Accordingly, this Court should reverse the determination below, after noting jurisdiction to consider the claim by John and Mary Doe that they too were entitled to declaratory and injunctive relief.