Supplemental Brief for Appellants

The instant case was argued before this Court on December 13, 1971. It is a direct appeal from the decision of a three-judge federal panel declaring the Texas abortion law to be unconstitutional but refusing to grant injunctive relief and denying standing to Appellants Doe.

On June 27, 1972, the case was restored to the calendar for reargument. 40 U.S.L.W. 3617. Reargument is scheduled for October 11, 1972.

Several pertinent decisions have been rendered since the submission of Appellants' original brief. This supplemental brief is submitted to inform the Court of those decisions.

Request for injunctive relief

As to their request for injunctive relief, Appellants would once again point out that the injunction requested was one against future prosecutions only. Appellant Hallford had not requested injunctive relief to prevent continuation of the state criminal charge pending against him.

The continuing situation in Texas

Despite the District Court holding in June, 1970, that the Texas abortion law is unconstitutional, in November, 1971, the Texas Court of Criminal Appeals (Texas' highest criminal court), in Thompson v, State, No. 44,071 (Tex. Ct. Crim. App., Nov. 2, 1971), petition for cert. filed, 40 U.S.L.W. 3532 (U.S. March 20, 1972) (No. 71–1200), rendered a decision which directly contradicted that of the District Court. Without interpreting the abortion statue, the Texas court held that the Texas law was not vague. It specifically did not reach the issue of privacy but held the State has a compelling interest in protecting the fetus through legislation.

Since the District Court refused to grant injunctive relief and since there is now a direct dichotomy between state federal decisions, Texas physicians continue to refuse to perform abortions for fear of prosecution. During the last nine months of 1971, 1,658 Texas women travelled to New York to obtain abortions. Texas women continue to be unable to obtain abortion procedures in Texas and thereby continue to suffer irreparable injury.

Actions regarding abortion

At its 1972 Midyear Meeting, the American Bar Association House of Delegates approved the Uniform Abortion Act as drafted by the National Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). The Uniform Abortion Act allows termination of pregnancy up to twenty weeks of pregnancy and thereafter for reasons such as rape, incest, fetal deformity, and the mental or physical health of the woman.

The Rockefeller Commission on Population and the American Future has recommended that the matter of abortion should be left to the conscience of the individual concerned. Abele v. Markle, 342 F. Supp. 800, 802 (D. Conn. 1972).