Brief for Appellee

Appellant Jane Roe instituted an action, suing on behalf of herself and all others similarly situated, contending she was an unmarried pregnant female who desired to terminate her pregnancy by "abortion" and that she was unable to secure a legal abortion in the State of Texas because of the prohibitions of the Texas Penal Code, Articles 1191, 1192, 1193, 1194, and 1196.₁ She further contends she cannot afford to travel to another jurisdiction to secure a legal abortion.₂

Appellants John and Mary Doe instituted their action, suing on behalf of themselves and all others similarly situated, contending they were a childless married couple and that Appellant Mary Doe's physician had advised her to avoid pregnancy because of a neural-chemical disorder.₃ They further contend their physician has further advised against the use of birth control pills and, though they are now practicing an alternative method of contraception, they understand there is nevertheless a significant risk of contraceptive failure.₄ They contend that should Appellant Mary Doe become pregnant, she would want to terminate such pregnancy by abortion and would be unable to do so in the State of Texas because of the above prohibitory statutes.₅

Appellant James Hubert Hallford, M.D., filed his Application for Leave for Intervene in Appellant Roe's action₆ and his Application was granted.₇ He contends he is in the active practice of medicine and contends of the Texas Abortion Laws are a principal deterrent to physicians and patients in their relationship in connection with therapeutic hospital and clinical abortions.₈ Appellant Hallford was under indictment in two (2) cases in Dallas County, Texas, charged with offense of abortion in violation of the Statutes in issue.₉

In substance, Appellants contended in their Complaints filed in the lower court that (1) the Texas Abortion Laws are unconstitutionally vague and uncertain on their face, (2) they deprive a woman of the "fundamental right to choose whether and when to bear children," (3) they infringe upon a woman's right to personal privacy and privacy in the physician-patient relationship, (4) they deprive women and their physicians of rights protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States.₁₀

Appellants sought declaratory relief that the Texas Abortion Laws were unconstitutional in violation of the Constitution of the United States and injunctive relief against the future enforcement of such Statutes.₁₁ They prayed that a three-judge court be convened to hear and determine their causes of action.₁₂

Appellee Henry Wade filed his Answer to Appellant Roe's Complaint₁₃ his Motion to Dismiss the Complaint of Appellants John and Mary Doe₁₄ and his Answer to Appellant Hallford's Complaint.₁₅ The State of Texas was granted leave to respond to the Appellants' Complaints and filed its Motion to Dismiss all Complaints and its alternative plea for Judgment on the Pleadings.₁₆ Both Motions to Dismiss challenged the standing of Appellants John and Mary Doe₁₇ and the State of Texas' Motion to Dismiss challenged the standing of Appellants Roe and Hallford.₁₈ In addition, the State of Texas' Motion to Dismiss asserted that Appellants (1) failed to state a claim upon which relief may be granted, (2) failed to raise a substantial Constitutional question, (3) failed to show irreparable injury and the absence of an adequate remedy at law, and (4) Appellant Hallford's Complaint was barred by 38 U.S.C. 2283.₁₉

In the course of proceeding in the lower court, Appellants filed their Motions for Summary Judgment.₂₀ In support of Appellant Jane Doe's Motion for Summary Judgment, she filed her affidavit₂₁ and an affidavit of one Paul Carey Trickett, M.D.₂₂ Appellant Hallford Filed his affidavit in support of his Motion for Summary Judgment₂₃ and annexed copies of the indictments pending against him.₂₄

The cases were consolidated and processed to a hearing before the Honorable Irving L. Goldberg, Circuit Judge, and the Honorable Sarah T. Hughes and W.M. Taylor, Jr., District Judges.₂₅ Neither the Appellants nor the Appellee offered any evidence at such hearing₂₆ and arguments were presented by all parties. The Court tendered its Judgment₂₇ and Opinion₂₈ on June 17, 1970.

Appellants filed Notice of Appeal to this Court pursuant to the provisions of 28 U.S.C. 1253.₂₉ Appellants Roe and Hallford and Appellee Wade filed Notice of Appeal to the United State Court of Appeals for the Fifth Circuit.₃₀ Appellants filed their Motion to Hold Appeal to Fifth Circuit of Appellee Wade in Abeyance Pending Decision by the Supreme Court of the United States₃₁, which Motion was granted.₃₂

The lower court found that Appellants Roe and Hallford and the member of their respective classes₃₃ had standing to bring their lawsuits, but Appellants John and Mary Doe had failed to allege facts sufficient to create a present controversy and did not have standing.₃₄ That court held the Texas Abortion Laws unconstitutional in that they deprived single women and married persons of the right to choose whether to have children in violation of the Ninth Amendment to the Constitution of the United States and that such Laws were void on their face for unconstitutional overbreadth and vagueness.₃₅ The court denied Appellants' applications for injunctive relief.₃₆