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Brief for Appellee

Brief for Appellee

In the Supreme Court of the United States
No. 78–18, 1971 Term

Jane Roe, John Doe, Mary Doe, and James Hubert Hallford, M.D. Appellants,
vs.
Henry Wade, District Attorney of Dallas County, Texas Appellee.

On Direct Appeal from the United States District Court for the Northern District of Texas

Brief for Appellee
STATEMENT OF THE CASE

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

1 A. 11 (The Statutes in issue are commonly referred to as the Texas Abortion Laws and are set out verbatim, infra, at pp. 5–6).

2 A. 12.

3 A. 16·

4 A 16–17.

5 A. 17.

6 A 22–23.

7 A. 36.

8 A 28.

9 A. 30. (These cases are still pending.)

10 A. 12–13, 19–20, 31, 34.

11 A. 14, 20–21, 34.

12 A. 13, 20–21 34.

13 A. 37–39.

14 A. 40–41.

15 A. 42–46.

16 A. 47–49.

17 A. 40, 48.

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

STATUES IN ISSUES

The Texas Abortion Laws and the statutes in issue are contained in the Texas Penal Code and consist of the following:

Article 1191. Abortion

If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use toward her any violence or means whatsoever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary for not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By "abortion" is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth shall be caused.

Art. 1192. Furnishing the Means

Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

Art. 1193. Attempt at Abortion

If the means used shall fail to produce and abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means was calculated to produce that result, and shall be fined not less that one hundred nor more than one thousand dollars.

18 A. 48.

19 A. 47–48.

20 50, 59–60.

21 A. 56–60. (an alias affidavit)

22 A. 51–55.

23 A 61–72.

24 A 73, 74.

25 A. 75–110.

26 A. 77.

27 A. 124–126.

28 A. 111–132.

29 A. 127–129.

30 A. 133, 134, 135.

31 A. 136–138.

32 A. 139–140. (The Court of Appeals has taken no further action in these cases).

33 A. 124.

34 A. 124

35 A. 125–126.

36 A. 126.

Art. 1194 Murder in Producing Abortion

If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.

Art. 1196. By Medical Advice

Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.37

QUESTIONS PRESENTED

In Appellee's opinion the questions presented may be precisely stated as follows:

  1. Whether appellants Jane Roe, and John and Mary Doe, present a justiciable controversy in their challenge to the Texas abortion laws?
  2. Whether the court should enjoin the enforcement of the Texas abortion laws as to appellant Hallford in the light of pending state criminal charges?
  3. Did the district court err in refusing to enjoin future enforcement of the Texas abortion laws after declaring such laws unconstitutional?
  4. Whether this court can consider plenary review of an entire case when a lower court grants declaratory relief holding a state statue unconstitutional, but refuses to enjoin future enforcement of such statute, and the appeal to this court is from that portion of the judgment denying injunctive relief?
  5. Whether articles 1191, 1192, 1193, 1194 and 1196 of Texas penal code are void on their face because of unconstitutional overbreadth and vagueness?
  6. Whether the constitution of the United States guarantees a woman the right to abort an unborn fetus?
  7. Whether the state of Texas has a legitimate interest in preventing abortion except under the limited exception of "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother?"

SUMMARY OF ARGUMENT

Appellant Jane Roe has not presented a justiciable controversy admitting of specific relief for this Court in her challenge to the Texas Abortion Laws. She has not shown that she has sustained or is immediately in danger of sustaining some direct injury as a result of enforcement of the Texas Abortion Laws. Any cause of action that she may have had is not established by the record and has been mooted by the termination of her pregnancy.

Appellants John and Mary Doe's cause of action is based on speculation and conjecture and they also have shown they have sustained or are immediately in danger of sustaining some direct injury as a result of enforcement of the Texas Abortion Laws essential to standing and a justiciable controversy.

Appellant Hallford is under indictment in two cases for violation of the statutes he attacks in the controversy before the Court. The Court should abstain from exercising jurisdiction under the principles enunciated in Younger v. Harris, etc. Appellant Hallford is not entitled to assert a cause of action on behalf of his patients in the physician-patient relationship.

For a federal court to grant injunctive relief against the enforcement of a state statute, there must be a clear and persuasive showing of unconstitutionally and irreparable harm. The lower court can divorce injunctive and declaratory relief under its equity power and declare a statute unconstitutional, yet refuse to enjoin the enforcement of such statute.

Once a federal court has assumed jurisdiction of a cause, it may properly assume jurisdiction of the entire controversy and render a decision on all questions presented and involved in the case. If this Court determines that is has jurisdiction to consider the denial of injunctive relief to Appellants by the lower court, it may consider the constitutionality of the Texas Abortion Laws determined to be unconstitutional by the Court below.

The Texas Abortion Laws are not violative of the Constitution of the United States as being unconstitutionally vague and overbroad. United States v. Vuitch is decisive of the issues in the case as to vagueness and overbreadth.

37 The omitted article, Article 1195, concerns destruction of the vitality or life of a child in a state of being born and before actual, birth, which such child would otherwise have been born alive.

Though the right of "marital privacy" and "personal privacy" are recognized, they have never been regarded as absolute. The "right to privacy" is a relative right that, in the matter of abortion, is not attached to an express right guaranteed under the Constitution of the United States. The right to life of the unborn child is superior to the right of privacy of the mother.

The state has a legitimate, if not compelling, interest in prohibiting abortion except under limited circumstances. In the light of recent findings and research in medicine, the fetus is a human being and the state has an interest in the arbitrary and unjustified destruction of this being.

ARGUMENT

I. Appellants Jane Roe, John and Mary Doe, have not presented a justiciable controversy in their challenge to the Texas abortion laws

A. Justiciability and standing Article III of the Constitution of the United States limits the judicial power of Federal Courts to "cases" and "controversies." This has been construed by the courts to prohibit the giving of advisory opinions. Flast v. Cohen, 392 U.S. 83 (1968); Bell v. Maryland, 378 U.S. 226 (1964); United States v, Fearful, 365 U.S. 146 (1961). There must be a real and substantial controversy admitting of specific relief as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Aetna Life Insurance Company v, Hayworth, 300 U.S. 227 (1937); accord, Public Service Commission of Utah v. Wycoff Company, 344 U.S. 237 (1952); Baker v. Carr, 369 U.S. 186 (1962); Golden v. Zwickler, 394 U.S. 103 (1969). Correctively, a party challenging a statute as invalid must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the statue's enforcement before a three-judge court or any Federal court can entertain the action, Frothingham v. Mellon38 262 U.S. 447 (1923); Ex parte Levitt, 302 U.S. 633 (1937); Fairchild v. Hughes 258 U.S. 126 (1922); Poe v. Ullman, 367 U.S. 497 (1961). In a per curiam opinion this Court stated in Ex Parte Levitt:

"It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." (Emphasis added). 302 U.S. at 634.

In Flask v. Cohen, supra, this Court gave careful consideration to the nexus between standing and justiciability and stated that "Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability." 392 U.S. at 98–99. Most probably, the best known decision of this Court on standing is Frothingham v. Mellon, supra, in which Mrs. Frothingham claimed that she was a taxpayer of the United States and sued to restrain payments from Treasury to the several states which chose to participate in a program created by the Maternity Act of 1921. She claimed that Federal government lacked power to appropriations would cause an unconstitutional increase in her future taxes. After considerations of the interest of an individual taxpayer, remoteness, and other issues, this Court finally stated that its power to declare statutes unconstitutional exists only where the statute is involved in a justiciable case, and that to present such a case the plaintiff "must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that suffers in some indefinite way in common with the people generally." 262 U.S. at 488. See, Cramp v. Board of Public Instruction, 368 U.S. 278 (1961); Baker v. Carr, supra; National Association for the Advancement of Colored People v. Button, 271 U.S. 415 (1963).

A Review and analysis of the decisions on standing indicated they are not easy to reconcile on the facts. It is frequently stated that to have standing a party must be able to demonstrate injury to a legally protected right or interest. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1937); Alabama Power Company v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).

38 This case is usually referred to as Massachusetts v. Mellori.

39 A. 16.

40 A. 17.

B. Standing of Appellants John and Mary Doe Applying the standards of justiciability and standing stated above, an examination of the cause of action asserted by Appellants John and Mary Doe discloses they do not have standing. In their Complaint they contend they are a childless married couple and Mary Doe was not pregnant at the time.39 Their cause of action is based upon their fear of contraceptive failure resulting in pregnancy to Mary Doe at a time when they are not properly prepared to accept the responsibilities of parenthood and upon the advice of their physician to avoid pregnancy until her health condition improves.40 The record is wholly lacking in proof of these contentions. The lower court properly and correctly denied standing to these Appellants upon finding they failed to allege facts sufficient to create a present controversy.41

Initially, it may be states that neither Appellants Doe nor Roe can be prosecuted under the Texas Abortion Laws for securing an abortion or for attempted abortion. Gray v. State, 178 S.W. 337 (Tex. Crim. 1915); Shaw v, State, 165 S.W. 930 (Tex. Crim. 1914). Appellants John and Mary Doe's cause of action is based upon speculation that these Appellants will not at that time be prepared for parenthood and, further, that Appellant Mary Doe's health condition at that time will be impaired by pregnancy. These speculative fears cannot support a caused of action. See, Younger v. Harris, 401 U.S. 37 (1971); Golden v. Zwickler, supra. For a court to decide the merits of Appellants John and Mary Doe's cause of action would result in giving an advisory opinion upon a hypothetical state of facts contrary to Federal Constitutional limitations and this Court's holding in Flask v. Cohen, supra, and cases cited, supra, at p. 9.

C. Standing of Appellant Jane Roe Appellant Jane Roe occupies a more unique position in regard to standing. She filed her Amended Complaint in the District Court on April 22, 1970,42 and an "alias affidavit" on May 21, 1970.43The only support in the record for her contentions and allegations giving rise to her cause of action is found in her Amended Complaint and her "alias affidavit." The affidavit filed after the commencement of her action indicates she did not desire an abortion at the time of its filing.44 This affidavit further shows that Appellant Roe had been pregnant for several months prior to its filing.45 The hearing was held before the three-judge panel on July 22, 1970,46 some four and one-half (4 and a half months after the filing of her Original Complaint47 and on November 3, 1971, some twenty (20) months will have expired since the filing of said Original Complaint. There is no indication in the record the Appellant Jane Roe was pregnant at the time of the hearing on July 22, 1970, and it can be reasonably concluded that she is not now pregnant.48

The argument that Appellant Jane Roe has not presented a justiciable controversy to give her standing is not intended to be fictitious or spurious. If her statements in her affidavit did not moot her cause of action, resort may be had to Golden v. Zwickler; supra, wherein this Court stated:

"The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed '[w]hen this action was initiated.' The proper inquiry was whether a 'controversy' requisite to relief under the Declaratory Judgement Act existed at the time of the hearing on remand." 394 U.S. at 108.49

Golden v. Zwickler indicated that this Court should consider an issue as to standing at the time it reviews the case and not when the suit was filed. This is supported to some extent by Bryan v. Austin. 354 U.S. 933 (1957), wherein Plaintiffs sought to have a South Carolina statute declared unconstitutional and, pending appeal, the statute in question was repealed. In a per curiam opinion this Court stated that the repeal of the statute in issue after the decision of the District Court rendered the cause moot. Atherton Mills v. Johnston, 259 U.S. 13 (1922), involved a suit for injunctive relief to prevent the discharge of a minor employee because of the Child Labor Act of 1919, which was challenged as being invalid. While the case was on appeal, the minor employee involved became of age. This Court held that the case became moot by the lapse of time and the case could not be considered by the Court.

Mootness deprives a federal court of its judicial power since no case or controversy exists. Mechling Barge Lines, Inc., v. United States, 368 U.S. 3224 (1961); Local No. 8–6 v. Missouri, 361 U.S. 363 (1960); Flast v. Cohen, supra; Parker v. Ellis, 362 U.S. 574 (1960).

41 A. 124.

42 A. 10.

43 A. 56.

44 "At the time I filed the lawsuit I wanted to terminate my pregnancy by means of an abortion…" (A. 57) and "I wanted to terminate my pregnancy because…" (A. 57).

45"Each month I am barely able to make ends meet" (A. 58).

46 A. 77.

47 Docket Entries in CA-3–3690–B (A-1).

48 The Court may desire to take judicial notice of this fact.

49 This case was reversed and remanded with direction to enter a new judgment dismissing the complaint.

D. Class action aspects It is questionable whether the requirements of Rule 23, Fed. Rules Civ. Proc., have been complied with in connection with Appellants Roe and John and Mary Doe's attempt to bring their suits as class actions. These Appellants have alleged the prerequisites required in Rule 23 (a),50 but have not designated whether their actions are (b) (1) or (b) (2) actions under Rule 23. Again, the record is wholly void of any showing of the propriety of class action relief and the only other mention of this aspect of the case is found in the lower court's judgment as follows:

"(1) Plaintiff Jane Roe, plaintiff-intervenor James Hubert Hallford, M.D. and the members of their respective classes have standing to bring this lawsuit." (A. 124).51

The 1966 amendments to Rule 242 require the judgment in a (b) (1) or (b) (2) class action to include and describe those whom the court finds to be members of the class. In a Rule 23 (b)(3) class action the 1966 amendments require the judgment include and specify or describe those to whom notice was directed, as required by Rule 23 (c) (2), and who have not requested exclusion, and who are found by the court to be members of the class.

In Hall v. Beals, 396 U.S. 45 (1969), this Court had before it on direct appeal a case involving new residents of the State of Colorado, who had moved into the State four (4) or five (5) months prior to the November, 1968 presidential election. They were refused permission to vote because of a Colorado statute imposing a six (6) months residency requirement. They commenced a suit as a class action challenging the constitutionality of the statute. A three-judge court upheld the constitutionality of the statute. Thereafter, the election was held, and the State statute was amended to reduce the residency requirement for a presidential election to two (2) months. This Court, in a per curiam opinion, held that, aside from the fact that the election had been held, the case was rendered moot by the amendment to the statute that reduced the residency requirement to two (2) months, and under which the Appellants could vote, since the case had lost its character as a present, live controversy, notwithstanding that the Appellants had denominated their suit as a class action and had expressed opposition to residency requirements in general. In Golden v. Zwickler, supra, a distributor of anonymous handbills criticizing a congressman's voting record sought a declaratory judgment concerning the constitutionality of a New York statute which penalized the distributor of anonymous literature in connection with an election campaign. While the case was pending, the congressman left the House of Representatives and accepted a term as a justice on the Supreme Court of New York. The United States District Court held that the distributor was nevertheless entitled to a declaratory judgment because a genuine controversy had existed as the commencement of the action. This Court held there was no "controversy" of "sufficient immediacy and reality" to warrant a declaratory judgment and, in addition, stated as follows:

"It is not enough to say, as did the District Court, that nevertheless Zwickler has a 'further and far broader right to a general adjudication of unconstitutionality… [in] [h]is own interest as well as that of others who would with like anonymity practice free speech in a political environment.…' The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance." (Emphasis added). 394 U.S. at 118.

See, Burrows v. Jackson, 346 U.S. 249 (1953).

The Federal Constitution limitation in Article III cannot be extended or limited by asserting a "class action" under Rule 23. Rule 82, Fed. Rules Civ. Proc., in referring to the preceding rules, including Rule 23, provides in part that "These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein… "

II. This court should refuse declaratory and injunctive relief to Appellant James Hubert Hallford, M.D.

50 A. 12, 19.

51 Appellant Hallford's Complaint makes no mention of class action relief. (A. 24–35).

52 A. 73.

53 A. 74.

54 A. 22, 36.

55 A. 34.

56 A. 34 (it is submitted that Appellant Hallford reserved this right in the event the pending cases were set for trial).

In Indictment No. 2023 A, Appellant James Hubert Hallford stands charged by the State of Texas with performing an abortion on Frances C. King,52 and in Indictment No. 556 J with performing an abortion on Jane Wilhelm.53 He sought and obtained leave to intervene in Appellant Roe's action54 seeking a permanent injunction against the enforcement of the Texas Abortion Laws,55 but reserving a right to make an application for an interlocutory injunction.56 In reality, Appellant Hallford is seeking to avoid criminal prosecution in the criminal cases pending against him.

Historically there has been great reluctance by the federal courts to interfere in the operations of a state court. Stefanelli v. Minard, 342 U.S. 117 (1951). General principles should be enough to show that an independent federal action is not an appropriate means to raise what should be a state court defense, but this does not stand alone. A statute almost as old as the Republic, the Anti-Injunction Act of 1793, has, with some variations in language over the years, provided that a court of the United States "may not grant an injunction to stay proceedings in a State court …" 28 U.S.C. 2283. This statute is no happenstance. It is a "limitation of the power of federal courts dating almost from the beginning of our history and expressing an important Congressional policy—to prevent friction between state and federal courts" Oklahoma Packing Co. v. Oklahoma & Elec. Co., 309 U.S. 4 (1940).

Appellant Hallford's Complaint allegations do not justify the conclusion that any criminal charges have been brought against him in bad faith or under any conditions that would place his case within Dombrowski's "special circumstances." Dombrowski v. Pfister, 380 U.S. 479 (1965). There is no relationship worthy of note in the allegations contained in Paragraph 14 of this Complaint57 to Dombrowski's "special circumstances." He appears to indicate that the State of Texas must negate the exception provided in Article 1196, supra,58 and that he cannot offer medical testimony to bring him within the purview of the exception.

In Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281 (1970), the railroad obtained a state injunction against a union's picketing and the union sought and obtained in the Federal District Court an injunction against the enforcement of the state court injunction. The Court of Appeals for the Fifth Circuit affirmed the Federal District Court's judgment and, on certiorari, this Court reversed and remanded stating as follows:

"First, a federal court does not have inherent power to ignore the limitations of Section 2283 and to enjoin state court proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy, or whether it is ousted from jurisdiction for the same reason that the state court is." (Omitting authority). 398 U.S. at 294.-295.

The above principle of federal abstention is further enunciated in Spinally Motor Sales Co., Inc., v. Dodge, 295 U.S. 89 (1935); Cameron v. Johnson, 390 U.S. 611 (1968); Shaw v. Garrison, 293 F. Supp. 937 (E.D. La. 1968); City of Greenwood v. Peacock, 384 U.S. 8080 (1966).

Most recently, this Court has announced certain guidelines on the subject of federal court interference with pending state criminal proceedings in what is sometimes referred to as the "February 23rd Decisions." Younger v. Harris, supra, Samuels v. Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Perez v, Ledesma, 401 U.S. 82 (1971); Bryne v. Karalexis, 401 U.S. 216 (1971). These cases very strongly indicate the availability of federal injunctive relief against pending state criminal prosecutions has been severely curtailed even in the area of First Amendment rights of expression. Thus, federal interference, even to the extent of granting preliminary restraining orders and convening three-judge courts is by far the exception rather than the rule.

The above cases further indicate that, independent of any obstacles posed by the federal anti-injunction statute, the primary prerequisite to federal court intervention in the present context, is a showing or irreparable injury. Even irreparable injury is insufficient unless it is "both great and immediate." In Younger v. Harris, supra, this Court stated as follows:

"Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable' in the special legal sense of that term. Instead, the threat to the Plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." 401 U.S. at 46.

Accord, Byrne v. Karalexis, supra.

57 A. 30.

58 See Article 1196, supra, at p. 6 containing the exception "procured or attempted by medical advice for the purpose of saving the life of the mother."

Samuels v. Mackell, supra, considered declaratory relief prayed for in relation to the federal court's reluctance to interfere with pending state criminal proceedings and this Court stated:

"We therefore hold that, in cases where the state criminal prosecution was begun prior to the federal suit, same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should be denied as well.…Ordinarily, however, the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction." (Emphasis added). 401 U.S. at 73.

Nor can Appellant rely upon his patients' rights, which a statute supposedly threatens. See Glisten v. Ullman, 318 U.S. 44 (1943); accord, Golden v. Zwicker, supra; Burrows v. Jackson, supra.

Applying the guidelines set forth in Youngerv. Harris, supra, and the other "February 23rd Decisions," this Court can properly conclude Appellant Hallford has not suffered, nor under the present state of the record, will suffer both great and immediate irreparable injury of the nature required to authorize federal injunctive or declaratory relief. His case is precisely the type to which this Court was addressing itself in the recent pronouncements condemning, except in very limited circumstances, federal court equitable injunctive and declaratory interference with pending state criminal prosecutions.

III. The United States District Court did not err in refusing to enjoin future enforcement of the Texas abortion laws after declaring such laws unconstitutional.

This Court has been unwaivering in holding that a three-judge court cannot consider an action for injunctive relief under 28 U.S.C. 2281 on its merits without a preliminary showing of irreparable harm and no adequate legal remedy. In Spielman Motor Sales Co. Inc., v. Dodge, supra, a suit requesting a three-judge court to rejoin a New York district attorney from instituting criminal prosecutions against certain defendants under an alleged unconstitutional state statute, this court affirmed the lower court's dismissal of the action and stated:

"The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional…To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." 295 U.S. at 95.

In Mayo v. Lakeland Highlands Canning Co., Inc., 309 U.S. 310 (1940), a suit was brought before a three-judge court seeking to enjoin the Florida Agriculture Commission from enforcing an alleged unconstitutional state statute. This Court reversed the lower court's disposition on the merits and made the following observation:

"The legislation requiring the convening of a court of three judges in cases such as this was intended to insure that the enforcement of a challenged statute should not be suspended by injunction except upon a clear and persuasive showing of unconstitutionality and irreparable injury." 309 U.S. at 318–319.

Accord, Beal v. Missouri Pacific Railroad Corporation, 312 U.S. 45 (1961); Douglas v. City of Jeannette, 319 U.S. 157 (1943); Bryne v. Karalexis, supra; Dyson v, Stein, supra; Samuels v. Mackell, supra; Younger v. Harris, supra.

The lower court cited Dombrowski v. Pfister, supra, and Zwickler v. Koota, 389 U.S. 241 (1967), as authority for the court to divorce injunctive and declaratory relief,59 In Powell v. McCormick, 395 U.S. 486 (1969), this Court held that a court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. 395 U.S. at 504. See, United Public Workers v. Mitchell, 330 U.S. 75 (1947).

IV. This court can consider plenary review of the entire case when a lower court grants declaratory relief holding a state statute unconstitutional, but refuses to enjoin future enforcement of such statute, and the appeal to this court is from that portion of the judgment denying injunctive relief.

59 A. 121, 122.

Should this Court determine that it has jurisdiction to consider the propriety of injunctive relief in this case, it can properly assume jurisdiction of this entire controversy and render a decision on all questions involved in this case, including the constitutionally of the Texas Abortion Laws. Appellee joins Appellants in requesting this Court reach the issue of the Constitutionality of the Texas Abortion Laws. Appellee is in a somewhat awkward procedural position in that it lost on the merits in the lower court as to declaratory relief and neither the grant nor the refusal of a declaratory judgment, without more, will support a direct appeal to this Court under 28 U.S.C. 1253. Mitchell v. Donovan, 398 U.S. 427 (1970); Gunn v. University Committee, 399 U.S. 383 (1971). Appellee has the avenue of appeal to the Fifth Circuit.60 Should this Court in the present case hold that the lower court properly grant declaratory relief but improperly denied injunctive relief, it then might bed faced, at least indirectly, with the consideration and decision of the same constitutional issues that are being directly raised by the Appellee in the Court of Appeals for the Fifth Circuit.

Though not directly in point, Public Service Commission of Utah v. Wycoff Co., supra, lends support to the premise that a federal court has the right, power, and authority to decide and determine the entire controversy and all the issues and questions involved in a case of which it has properly acquired jurisdiction. Accord, Just v. Chambers, 312 U.S. 383 (1941), Florida Lime and Avocado Growers v. Jacobson, 362 U.S. 73 (1960); cf, Hartford Accident & Indemnity Company v. Southern Pacific Company, 273 U.S. 207 (1927); British Transport Commission v. United States, 354 U.S. 129 (1957). In Sterling v. Constantin, 287 U.S. 378 (1932); this Court stated that:

"As the validity of provisions of the state constitution and statutes, if they could be deemed to authorize the action of the Governor, was challenged, the application for injunction was properly heard by three judges. Straton v. St. Louis S. W. R. Co., 282 U.S. 10, 75 L. Ed. 135, 51 S.Ct. 8. The jurisdiction of the District Court so constituted, and of this Court upon appeal, extends to every question involved, whether of state or federal law, and enables the *court to rest its judgment on the decisions of such of the questions as in its opinion effectively dispose of the case." (Omitting authority). 287 U.S. at 393–394.

V. Articles 1191, 1192, 1193, 1194 and 1196 of the Texas Penal Code are not unconstitutional on their face because of overbreath and vagueness.

The possible vagueness of state abortion statutes which allow for such a procedure only when the life, or in some cases, health, of the expectant mother is threatened has recently come under judicial scrutiny in a number of instances. One author, in commenting on the decision of the California Supreme Court in People v. Belous, 71 Cal. Rptr. 354, 458 P. 2d 194 (1969), cert. denied, 397 U.S. 915 (1970), stated as follows:

"In attempting to define the phrase 'necessary to preserve … life …' the California Supreme Court first examined the isolated words of the statute, and concluded that no clear meaning of 'necessary' and 'preserve' could be ascertained. It is not surprising that a seriatim examination of the words convinced the court that the phrase was vague. Necessity is a relative concept and must refer to a particular object to be meaningful. Nor can the word 'preserve' be understood out of context. In the abstract, such words are not just vague, they are meaningless. Taken in context, however, these words do have meaning. The object of the necessity in this statute is 'to preserve life.' The term is defined by its object—life." 118 U. Penn. L. Rev. 643, 644 (1970).

There is some inherent vagueness in many homicide laws, such as laws which define justifiable homicide as self-defense, or those which differentiate between first- and second-degree murder. The courts, like society, however, have learned to live with a certain element of inevitable vagueness in all laws and have learned to apply it reasonably. See, Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General Construction Company, 269 U.S. 385 (1926). In order for a statute to be unconstitutionally vague, it must be so vague and lacking in standards so as to compel men of ordinary intelligence to guess as its meaning. Adderley v. Florida, 385 U.S. 39 (1967); Cameron v. Johnson, supra.

60 Appellee has appealed to the United States Court of Appeals for the Fifth Circuit (A. 135) and this appeal is being held in abeyance pending a decision of this Court (A. 139–140).

A number of three-judge panels have been convened recently to consider the constitutionality of abortion laws which allowed for the performance of such operations only when the life of the mother was threatened by continuance of the pregnancy. While one such court, in dealing with such a law in Wisconsin, did hold the statute to be unconstitutional on other grounds, it said that whatever vagueness existed in the law was not sufficient, of itself. for a declaration of unconstitutionality. Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970). The court observed:

"We have examined the challenged phraseology and are persuaded that it is not indefinite or vague. In our opinion, the word 'necessary' and the expression 'to save the life of the mother' are both reasonably comprehensible in their meaning." 310 F. Supp. at 297.

Accord, Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (E.D. La.1970).

In United States v. Petrillo, 332 U.S. 1 (1947), this Court said:

"[That] there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense, Robinson v, United States, 324 U.S. 282, 285, 286, 89 L. Ed. 944, 946, 947, 65 S.Ct. 666. It would strain the requirement for certainty in criminal law standards too near the breaking point to say that it was impossible judicially to determine whether a person knew when he was willfully attempting to compel another to hire unneeded employees." (Omitting authority). 332 U.S. at 7–8.

See Jordan v. DeGeorge, 341 U.S. 223 (1951); United States v. Ragen, 314 U.S. 513 (1942); United States v. Wurzback, 280 U.S. 396 (1930).

This court below did not have the advantage of this Court's decision in United States v. Vuitch, 402 U.S. 62 (1971), at the time it handed down its decision in this case. In Vuitch this Court reversed the decision of a district court judge who had found that the District of Columbia abortion law was unconstitutionally vague. The exception clause in Vuitch stated in part "unless the same were done as necessary for the preservation of the mother's life or health."61 Though this Court directed its attention to the word "health," its holding should be dispositive of the case at bar in that the exception clause is less certain of meaning that the exception found in the Texas Abortion Laws. This Court in Vuitch further disposed of the contention of the physician that once an abortion is performed he is "presumed guilty."

VI. The Constitution of the United States does not guarantee a woman the right to abort an unborn fetus.

A. The interest of marital privacy One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswoldv. Connecticut, 381 U.S. 479 (1965), was found to be violated by Connecticut's statute forbidding the use of contraceptives. This law interfered with the most private aspect of the martial relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom.

Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The new media publicize the events that occur when a family is victimized by criminals though they seek seclusion. Time v. Hill, 385 U.S. 374 (1967). The family may not practice polygamy,62 may not prohibit schooling for a child,63 or prohibit the child's labor,64 or expose the community or a child to communicable disease.65 In Gleitmanv. Cosgrove, 49 N.J. 22, 227 A. 2d 689 (1967), the unborn child's right to live came into conflict with family privacy. The Gleitmans contended that their doctor failed to warn that Mrs. Gleitman was suffering from German measles and this failure deprived the family of the opportunity of terminating the pregnancy. They alleged the child was born with grave defects as a result of the doctor's omission. The court stated as follows:

"The right to life is inalienable in our society….

61 22 D C Code 201.

62Reynolds v. United States, 98 U.S. 145 (1879).

63Prince v. Massachusetts, 321 U.S. 158 (1944).

64 Id.

65 Id.

We are not faced here with the necessity of balancing the mother's life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of a single human life to support a remedy in tort." 227 A. 2d at 693.

B. Physician-patient relationship Proponents of abortion-on-demand assert that antiabortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.

In Jones v. Jones, 208 Misc. 721, 144 N.Y.S. 2d 820 spout. 1955), the court stated (concerning an unborn child) as follows:

"…became a patient of the mother's obstetrician, as well as the mother herself. In so holding, I can think of the infant as a third-party beneficiary of the mother-doctor contract or perhaps a principal for whom the mother acted as agent." 144 N.Y.S. 2d at 826.

As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. Sylvia v. Gobeille, 101 R.I. 76, 220 A. 2d 222 (1966); Seattle-First National Bank v. Rankin, Wash. 2d 288, 367 P. 2d 835 (1962). It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. See Wasmuthv. Allen, 14 N.Y. 2d 391, 200 N.E. 2d 756, 252 N.Y.S. 2d 65 (1964), appeal dismissed, 379 U.S. 11 (1964); Barksy v. Board of Regents, 347 U.S. 442 (1954). Appellant's contentions of intrusion upon physicians-patient relationship are not self-sustaining and must be associated with and connected to a violation of some basic right.

C. The interests of the woman Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a "stop and frisk" though it constitutes an intrusion upon his person,66 or a person may be required to submit to a vaccination,67 and a blood sample may forcibly be extracted from the body of an individual arrested for suspicion of driving while intoxicated.68 A woman has been required to submit to a blood transfusion necessary to preserve her life in order that her small child shall not be left without a mother.69 The "right of privacy" is a highly cherished right—however one which is nowhere expressly mentioned in the Constitution of the United States or its amendments. Numerous examples in tort and criminal law indicate the right to privacy is a relative right.70 A woman cannot in privacy, even though she harm no other person, legally utilize or even posses certain forbidden drugs, such as LSD or heroin. The right to privacy was considered a mere relative right by the framers of the Constitution. Had they not considered the right to privacy a mere relative right, they would have carefully defined additional protection for the small portion of the right to privacy protected by the guarantee against unreasonable search and seizure. In Katz v. United States, 389 U.S. 347 (1967), referring to searches and seizures, stated that the Fourth Amendment to the Constitution of the United States cannot be translated into a general constitutional "right of privacy." See, Lewis v. United States, 385 U.S. 206 (1966).

When the "right of privacy" is attached to an "express right" such as the "right of freedom of religion" a very strong constitutional basis exists for upholding the "right"—except when in conflict with the most basic and fundamental of all rights—the "right to life." In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A. 2d 537 (1964), cert. denied, 377 U.S. 985 (1964), the New Jersey Supreme Court was asked to decide just such an issue—a conflict between the mother's privacy and the life of the unborn child. The issue was whether the rights of a child in utero were violated by the pregnant woman's refusal on religious grounds to submit to a blood transfusion necessary preserve the lives of both the mother and the unborn child. The Court's finding favored the right to life of the unborn child over the pregnant woman's freedom of religion and stated:

"The blood transfusions (including transfusions made necessary by the delivery) may be administered if necessary to save her life or the life of the child, as the physician in charge at the time may determine." 201 A. 2d at 538.

66Terry v. Ohio, 392 U.S. 1 (1968).

67Jacobson v, Massachusetts, 197 U.S. 11 (1905).

68Schmerber v. California, 384 U.S. 757 (1966).

69Application of President and Directors of Georgetown, Col., 331 F. 2d 1000 (D.C. Cir, 1966), cert. denied, 377 U.S. 978 (1964).

70 See Tort Law limitations on the Right of Privacy as outlined in Prosser on Torts, 3rd Edition, 1964, Chapter.

D. The human-ness of the fetus The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as "a blob of protoplasm" and feel it has not right to life until it has reached a certain stage of development.71 On the other hand, the opponents of liberalization maintain the fetus is human from the time of conception, and so interruption of pregnancy cannot be justified from the time of fertilization. It most certainly seems logical that from the stage of differentiation, after which neither twinning nor recombination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us.

The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy.72* Modern obstetrics has discarded as unscientific the concept that the child in the womb is but tissue of the mother. Dr. Liley, the New Zealand pediatrician, who perfected the intra-uterine transfusion, has said:

"Another medical fallacy that modern obstetrics discards is the idea that the pregnant woman can be treated as a patient alone. No problem in fetal health or disease can any longer be considered in isolation. At the very least two people are involved, the mother and her child." Liley, H.M.I.: Modern Motherhood, Random House, Rev. Ed. 1969.

Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health, (see appellants brief pp. 94–98) thus completely ignoring the developing human being in the mother's womb.

The court has also abandoned that concept in Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S. 2d 696 (1953), wherein the court stated:

"We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.

"The mother's biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe the conditions under which life will not continue." 125 N.Y.S. 2d at 697.

It is our task in the next subsections to show how clearly and conclusively modern science—embryology, fetology, genetics, perinatology, all of biology—establishes the humanity of the unborn child. We submit that the data not only shows the constitutionality of the Texas legislature's effort to save the unborn from indiscriminate extermination, but in fact suggests a duty to do so. We submit also that no physician who understands this will argue that the law is vague, uncertain or overbroad for he will understand that the law calls upon him to exercise his art for the benefit of his two patients: mother and child.

From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each parent, is really unlike either.73

71 This is given variously as from 12 weeks to 28 weeks of intrauterine life, and some apparently feel it has no life at all until after full-term delivery.

72 Gairdner, Douglas: Fetal Medicine: When Is To Practice It, J. Obster, and Gynec. Brit. Commonwealth, 75:1123–1124, Dec. 1968.

* The citations in this and the following are according to Medical Journal Practice.

73 Ingelman-Sundberg, Axel, and Wirsen, Cloes: A Child Is Born: The Drama of Life Before Birth, photos by Lennart Nilsson, Dell Publishing Co., New York, 1965. Arey, Leslie B.: Developmental Anatomy, 6th Ed. Philadelphia W.B. Saunders Co. 1954 Chap. II IV. Patten, Bradley M.: Human Embryology, 3rd Ed. McGraw-Hill Book Co. New York, 1968 Chap. VII.

About seven to nine days after conception, when there are already several hundred cells of the new individual formed, contact with the uterus is made and implantation begins. Blood cells begin at 17 days and a hear as early as 18 days. This embryonic heart which begins as a simple tube starts irregular pulsations at 24 days, which, in about one week, smooth into a rhythmic contraction and expansion.74 It has been shown that the ECG on a 23 mm embryo (7.5 weeks) presents the existence of a functionally complete cardiac system and the possible existence of a myoneurol or humor regulatory mechanism. All the classic elements of the adult ECG were seen.75 Occasional contractions of the heart in a 6 mm (2 week) embryo have been observed as well as tracing exhibiting the classical elements of the ECG tracing of an adult in a 15 mm embryo (5 weeks).76

Commencing at 18 days the developmental emphasis is on the nervous system even though other vital organs, such as the heart, are commencing development at the same time. Such early development is necessary since of the nervous system integrates the action of all other systems. By the end of the 20th day the foundation of the child's brain, spinal cord and entire nervous system will have been established. By the 6th week after conception this system will have developed so well that it is controlling movement of the baby's muscles, even though the woman may not be aware that she is pregnant. By the 33rd day the cerebral cortex, that part of the central nervous system that governs motor activity as well as intellect may be seen.

The baby's eyes begin to form at 19 days. By the end of the first month the foundation of the brain, spinal cord, nerves and sense organs is completely formed. By the 28 days the embryo has the building blocks for 40 pairs of muscles situated from the base of its skull to the lower end of its spinal column. By the end of the first month the child has completed the period of relatively greatest size increase and the greatest physical change of a lifetime. He or she is ten thousand times larger than the fertilized egg and will increase its weight six billion times by birth, having in only the first month gone from the one cell state to millions of cells.78

Shettles and Rugh describes this first month of development as follows:

"This, then, is the greatest planning period, when out of apparently nothing comes evidence of a well integrated individual, who will form along certain well tried patterns, but who will, in the end, be distinguishable from every other human being virtue of ultra microscopic chromosomal difference." Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra at p. 35.

By the beginning of the second month the unborn child, small as it is, looks distinctly human. Yet, by this time the child's mother is not even aware that she is pregnant.79

As Shettles and Rugh state:

"And as for the question, 'when does the embryo become human?' The answer is that is always had human potential, and no other, from the instant the sperm and the egg came together because of its chromosomes." (Emphasis in original). Id at p. 40.

74 Ingelman-Sunberg, Axel and Wirsen, Cloes: A Child Is Born: The Drama of Life Before Birth, supra.

75 Arey, Leslie B.: Developmental Anatomy, supra. Patten, Bradley M.: Human Embryology, supra. Rugh, Robert, and Shettles, Landrum B., with Ronald N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, Harper and Row, New York 1971. Straus, Rueben, et al: Direct Electrocardiographic Recording of A Twenty-Three Millimeter Human Embryo, The American Journal of Cardiology, September 1961, pp. 443–447.

76 Marcel, M.P., and Exchaquet, J.P.: L'Electrocardiogramme Du Foetus Human Avec Un Ca De Double Rythne Auriculair Verifie, Arch. Mal. Couer, Paris 31: 504, 1938.

77 Arey, Leslie B.: Developmental Anatomy, supra. Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra. Flannagan, G.L.: The First Nine Months Of Life, Simon and Schuster, 1962.

78 Arey, Leslie B.: Developmental Anatomy, supra. Patten, Bradley M.: Human Embryology, supra. Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra. Ingelman-Sundberg, Axel, and Wirsen, Cloes: A Child Is Born: The Drama Of Life Before Birth, supra. Flannagan, G.L.: The First Nine Months Of Life, supra.

79 Ingelman-Sundberg, Axel, and Wirsen, Cloes: A Child Is Born: The Drama Of Life Before Birth, supra.

80 Arey Leslie B.: Developmental Anatomy, supra.

81 Arey Leslie B.: Developmental Anatomy, supra. Patten Bradley M.: Human Embryology, supra. Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra. Marcel, M.P., and Exhaquet, J.P.: L'Electrocardiogramme Du Foetus Human Avec Un Cas De Double Rythme Auriculaire Verife, supra. Flannagan, G.L.: The First Nine Months of Life, supra.

At the end of the first month the child is about 1/4 of an inch in length. At 30 days the primary brain is present and the eyes, ears, and nasal organs have started to form. Although the heart is still incomplete, it is beating regularly and pumping blood cells through a closed vascular system.80 The child and mother do not exchange blood, the child having from a very early point in its development its own and complete vascular system.81

Earliest reflexes begin as early as the 42nd day. The male penis begins to form. The child is almost 1/2 inch long and cartilage has begun to develop.82

Even at 5 1/2 weeks the fetal heartbeat is essentially similar to that of an adult in general configuration. The energy output is about 20% that of the adult, but the fetal heart is functionally complete and normal by 7 weeks. Shettles and Rugh describe the child at this point of its development as a 1–inch miniature doll with a large head, but gracefully formed arms and legs and an unmistakably human face.83

By the end of the seventh week we see a well proportioned small scale baby. In its seventh week, it bears the familiar external features and all the internal organs of the adult, even though it is less an inch long and weighs only 1/30th of an ounce. The body has become nicely rounded, padded with muscles and covered by a thin skin. The arms are only as long as printed exclamation marks, and have hands with fingers and thumbs. The slower growing legs have recognizable knees, ankles and toes.84

The new body not only exists, it also functions. The brain in configuration is already like the adult brain and sends out impulses that coordinate the function of the other organs. The brain waves have been noted at 43 days.85 The heart beast sturdily. The stomach produces digestive juice. The liver manufactures blood cells and the kidney begins to function by extracting uric acid from the child's blood.86 The muscles of the arms and body can already be set in motion.87

After the eighth week no further primordia will form; everything is already present that will be found in the full term baby.88 As one author describes this period:

"As human face with eyelids half closed as they are in someone who is about to fall asleep. Hands that soon will begin to grip, feet, trying their first gentle kicks." Rugh, Roberts, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra at p. 71.

From this point until adulthood, when full growth is achieved somewhere between 25 and 27 years, the changes in the body will be mainly in dimension and in gradual refinement of the working parts.

The development of the child, while very rapid, is also very specific. The genetic pattern set down in the first day of life instructs the development of a specific anatomy. The ears are formed by seven weeks and are specific, and may resemble a family pattern.90 The lines in the hands start to be engraved by eight weeks and remain a distinctive feature of the individual.91

The primitive skeletal system has completely developed by the end of six weeks.92 This marks the end of the child's embryonic (from Greek, to swell or teem within) period. From this point, the child will be called a fetus (Latin, young one or off spring).93

82 Arey, Leslie B.: Developmental Anatomy, supra. Patten, Bradley M.: Human Embryology, supra.

83 Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra at p. 54.

84 Arey Leslie B.: Developmental Anatomy, supra. Patten Bradley M.: Human Embryology, supra. Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra. Ingelman-Sundberg, Axel, and Wirsen, Cloes: A Child Is Born: The Drama Of Life Before Birth, supra.

85 Still, J.W.:J. Washington Acad. Sci, 59:46, 1969.

86 Flannagan, G.L.: The First Nine Months Of Life, supra. Gesell, Arnold: The Embryology of Behavior, Harper and Bros. Publishers, 1945, Chap. IV, V, VI, X.

87 Hooker, Davenport: The Prenatal Origin of Behavior, Univ. of Kansas Press, 1952.

88 Rugh, Robert, and Shettles, Landrum B., with Richard N. Einhorn: From Conception To Birth: The Drama of Life's Beginnings, supra at p.71.

89 Arey, Leslie B.: Developmental Anatomy, supra. Potter, Edith: Pathology Of The Fetus And Infant, Year Book Publishers Inc., Chicago, 1961.

90 Streeter, Geo. L.: Developmental Of The Auricle In The Human Embryo, Contributions to Embryology, Vol. XIII No. 61, 1921.

91 Miller, James, R.: Dermal Ridge Patterns: Tecnique For Their Study In Human Fetuses, J. Pediatric, Vol. 73, No. 4, Oct. 1969, pp. 6114–616.

92 Arey, Leslie B.: Developmental Anatomy, supra. Patten, Bradley M.: Human Embryology, supra.

93 Patten, Bradley M.: Human Embryology, supra.

94 Hooker, Davenport: The Prenatal Origin of Behavior; supra.

In the third month, the child becomes very active. By end of the month he can kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth, press his lips tightly together.94 He can swallow and drinks the amniotic fluid that surrounds him. Thumb sucking is first noted at this age. The first respiratory motions move fluid in and out of his lungs with inhaling and exhaling respiratory movements.

The movement of the child has been recorded at this early stage by placing delicate shock recording devices on the mother's abdomen and direct observations have been made by the famous embryologist, Davenport Hooker, M.D. Over the last thirty years, Dr. Hooker has recorded the movement of the child on film, some as early as six weeks of age. His films show that prenatal behavior develops in an orderly progression.

The prerequisites for motion are muscles and nerves. In the sixth to seventh weeks, nerves and muscles work together for the first time.97 If the area of the lips, the first to become sensitive to touch, is gently stroked, the child responds by bending the upper body to one side and making a quick backward motion with his arms. This is called a total pattern response because it involves most of the body, rather than a local part. Localized and more appropriate reactions such as swallowing follow in the third month. By the beginning of the ninth week, the baby moves spontaneously without being touched. Sometimes his whole body swings back and forth for a few moments. By eight and a half weeks the eyelids and the palms of the hands become sensitive to touch. If the eyelid is stroked, the child squints. On stroking the palm, the fingers close into a small fist.98

In the ninth and tenth weeks, the child's activity leaps ahead. Now if the forehead is touched, he may turn his head away and pucker up his brow and frown. He know his full use of his arms, and can bend the elbow and wrist independently. In the same week, the entire body becomes sensitive to touch.99

The twelfth week brings a whole new range of responses. The baby can now move his thumb in opposition to his fingers. He now swallows regularly. He can pull up his upper lip, the initial step in the development of the sucking reflex.100 By the end of the twelfth week, the quality of muscular response is altered. It is no longer marionette-like or mechanical—the movements are now graceful and fluid, as they are in the newborn. The child is active and the reflexes are becoming more vigorous. All this is before the mother feels any movement.101

Every child shows a distinct individuality in his behavior by the end of the third month. This is because the actual structure of the muscles varies from baby to baby. The alignment of the muscles of the face, for example, follow an inherited pattern. The facial expressions of the baby in his third month are already similar to the facial expressions of his parents.102

Further refinements are noted in the third month. The fingernails appear. The child's face becomes much prettier. His eyes, previously far apart, now move closer together. The eyelids close over the eyes. Sexual differentiation is apparent in both internal and external sex organs, and primitive eggs and sperm are formed. The vocal cords are completed. In the absence of air they cannot produce sound; the child cannot cry aloud until birth, although he is capable of crying long before.103

95 Flannagan, G.L.: The First Nine Months Of Life, supra. Hooker, Davenport: The Prenatal Origin of Behavior; supra

96 Hooker, Davenport: The Prenatal Origin of Behavior; supra. Hooker, Davenport: Early Human Fetal Behavior With A Preliminary Note On Double Simultaneous Fetal Stimulation, Proceedings of the Association for Research in Nervous and Mental Disease, Baltimore The Williams and Wilkins Co., 1954. Gesell, Arnold, M.D., Amatruda, C.S., M.D.: Developmental Diagnosis, P.S. Hoeber, 1958 pp. 8–9.

97 Arey, Leslie M.: Developmental Anatomy, supra.

98 Hooker, Davenport: Early Human Fetal Behavior With A Preliminary Note On Double Simultaneous Fetal Stimulation, supra. Hooker Davenport: The Prenatal Origin of Behavior; supra. Flannagan, G.L.: The First Nine Months Of Life, supra. Hooker, Davenport: The Origin Overt Behavior, Ann Arbor, Univ. of Michigan Press, 1944.

99 Hooker, Davenport: The Prenatal Origin of Behavior, supra.

100 Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

101 Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra. Hooker, Davenport: The Origin Overt Behavior; supra

102 Flannagan, G.L.: The First Nine Months Of Life, supra. Still J.W.: J. Washington Acad. Sci., supra. Gesell, Arnold: The Embryology of Behavior, supra.

103 Arey, Leslie M.: Developmental Anatomy, supra. Flannagan, G.L.: The First Nine Months Of Life, supra. Patten, Bradley M.: Human Embryology, supra. Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

104 Hellman, L.M., et al.: Growth And Development Of The Human Fetus Prior To The 20th Week of Gestation, Am. J. Obstet. and Gynec. Vol. 103, No. 6, March 15, 1969, pp. 789–800.

From the twelfth to the sixteenth week, the child grows very rapidly.104 His weight increases six times, and he grows to eight to ten inches in height. For this incredible growth spurt the child needs oxygen and food. This he receives from his mother through the placental attachment—much like he receives food from her after he is born. His dependence does not end with expulsion into the external environment.105 We now know that he placenta belongs to the baby, not the mother, as was long thought.106

In the fifth month, the baby gains two inches in height and ten ounces in weight. By the end of the month he will be about one foot tall and will weigh one pound. Fine baby hair begins to grow on his eyebrows and on his head and a fringe of eyelashes appear. Most of the skeleton hardens. The baby's muscles become larger his mother finally perceives his many activities.107 The child's mother come to recognize the movement and can feel the baby's head, arms and legs. She may even perceive a rhythmic jolting movement—fifteen to thirty per minute. This is due to the child his coughing.108 The doctor can now hear the heartbeat with is stethoscope.109

The baby sleeps and wakes just as it will after birth.110 When he sleeps he invariably settles into his favorite position called his "lie." Each baby has a characteristic lie111 When he awakens he moves about freely in the buoyant fluid turning from side to side, and frequently head over heel. Sometimes his head will be up and sometimes it will be down. He may sometimes be aroused from sleep by external vibrations. He may wake up from a loud tap on the tub when his mother is taking a bath. A loud concert or the vibrations of a washing machine may also stir him into activity.112 The child hears and recognizes his mother's voice before birth.113 Movements of the mother, whether locomotive, cardiac or respiratory, are communicated to the child.114

In the sixth month, the baby will grow about two more inches, to become fourteen inches tall. He will also begin to accumulate a little fat under his skin and will increase his weight to a pound and three-quarters. This month the permanent teeth buds come in high in the gums behind the milk teeth. Now his closed eyelids will open and close, and his eyes look up, down and sideways. Dr. Liley of New Zealand feels that the child may perceive light through the abdominal wall.115 Dr. Still has noted that electroencephalographic waves have been obtained in forty-three to forty-five day old fetuses, and so conscious experience is possible after this date.116

In the sixth month, the child develops a strong muscular grip with his hands. He also starts to breathe regularly and can maintain respiratory response for twenty-four hours if born prematurely. He may even have a slim change of surviving in an incubator. The youngest children known to survive were between twenty to twenty-five weeks old.117 The concept of viability is not a static one. Dr. Andre Hellegers of Georgetown University states that 10% of children born between twenty weeks and twenty-four weeks gestation will survive.118 Modern medical intensive therapy has salvaged many children that would have been considered non-viable only a few years ago. The concept of an artificial placenta may be a reality in the near future and will push the date of viability back even further, and perhaps to the earliest stages of gestation.119 After twenty-four to twenty-eight weeks the child's chances of survival are much greater.

105 Arey, Leslie M.: Developmental Anatomy, supra. Patten, Bradley M.: Human Embryology, supra.

106 Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

107 Arey, Leslie M.: Developmental Anatomy, supra.

108 Flannagan, G.L.: The First Nine Months Of Life, supra. Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

109 Arey, Leslie M.: Developmental Anatomy, supra. Flannagan, G.L.: The First Nine Months Of Life, supra.

110 Petre-Quadens, O., et al.: Sleep In Pregnancy: Evidence Of Fetal Sleep Characteristics, J. Neurologic Science, 4:600–605, May, June, 1967.

111 Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

112 Flannagan, G.L.: The First Nine Months Of Life, supra.

113 Wood, Carl: Weightlessness: Its Implications For The Human Fetus, J. Obstetrics and Gynecology of the British Commonwealth, 1970 Vol. 77, pp. 333–336. Liley, Albert W.: Auckland MD To Measure Light And Sound Inside Uterus, Medical Tribune Report, May 26, 1969.

114 Wood, Carl: Weightlessness: Its Implications For The Human Fetus, supra.

115 Liley, Albert W.: Auckland MD To Measure Light And Sound Inside Uterus, supra.

116 Still, J.W,: Washington Acad. Sci., supra.

117 Flannagan, G.L.: The First Nine Months Of Life, supra.

118 Monroe, Canadian Medical Association's Journal, 1939. Hellegers, Andre. M.D.: National Symposium On Abortion, May 15, 1970, Prudential Plaza, Chicago, Illinois.

119 Zapol, Warren, and Kolobow, Theodore: Medical World News, May 30, 1969. Alexander, D.P.; Britton, H.G.; Nixon, D.A.; Maintenance Of Sheep Fetuses By An Extra Cororeal Circuit For Periods Up To 24 Hours, Am. J. Obstet. and Gynec, Vol. 102, No. 7, Dec. 1968, pp. 969–975.

120Fetology: The Smallest Patients, The Sciences, published by the New York Academy of Sciences, Vol.8 No. 10, Oct. 1968, pp. 11–15. Gairdner, Douglas: Fetal Medicine: Who Is To Practice It, supra.

This review has covered the first six months of life. By this time the individuality of this human being should be clear to all unbiased observers. When one views the present state of medical science, we find that the artificial distinction between born and unborn has vanished. The whole thrust of medicine is in support of the motion that the child in its mother is a distinct individual in need of the most diligent study and care, and that he is also a patient whom science and medicine treat just as they do any other person.

This review of the current medical status of the unborn serves us several purposes. Firstly, it shows conclusively the humanity of the fetus by showing that human life is a continuum which commences in the womb. There is no magic in birth. The child is as much a child in those several days before birth as he is those several days after birth. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, maturity and old age. Dr. Arnold Gesell points out in his work that no king ever had any other beginning than have had all of us in our mother's womb.121 Quickening is only a relative concept which depends upon the sensitivity of the mother, the position of the placenta, and the size of the child.*

VII. The state of Texas has a legitimate interest in prohibiting abortion except by medical advice for the purpose of "saving the life of the mother."

There seems little argument necessary if one can conclude the unborn child is a human being with birth but a convenient landmark in a continuing process—a bridge between two stages of life. The basic postulates from which the Appellees' arguments proceed are : (1) the pregnant woman has a right of control over her own body as a matter of privacy guaranteed to her by the Constitution of the United States; and (2) this right cannot be interfered with by the state since the state cannot demonstrate any compelling interest to justify its intrusion. The contrary position is the state's interest in preventing the arbitrary and unjustified destruction of an unborn child—a living human being in the very earliest stages of its development. Whatever personal right of privacy a pregnant woman may have with respect to the disposition and use of her body must be balanced against the personal right of the unborn child to life.

Whatever the metaphysical view of it is, or may have been, it is beyond argument the legal concepts as to the nature and rights of the unborn child have drastically changed, based on expanded medical knowledge, over the last 2,500 years.

In addition to the provisions of 22 D C Code 201,122 the Congress of the United States has clearly indicated a firm general policy of the Federal government against abortion: 18 U.S.C. 1461 provides in part as follows:

"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; and—

Every article, instrument, substance, drug medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

…." (Emphasis added).

121 Gesell, Arnold: The Embryology Of Behavior, supra. *If the court is interested in the actual medical history on nineteenth century legislative opposition to abortion, it may consult the American Medical Association, 1846–1951 Digest of Official Actions (edited F.J.L. Blasingame 1959), p. 66, where a list of the repeated American Medical Association attacks on abortion are compiled. It will be seen that the great medical battle of the nineteenth century was to persuade legislatures to eliminate the requirement of quickening and to condemn abortion from conception, see Isaac M. Quimbly Introduction to Medical Jurisprudence, Journal of American Medical Association, August 6, 1887, Vol. 9, p. 164 and H.C. Markham Foeticide and Its Prevention, ibid. Dec. 8, 1888, Vol. 11, p. 805. It will be seen that the Association unanimously condemned abortion as the destruction of "human life", American Medical Association, Minutes of the Annual Meeting 1859, The American Medical Gazette 1859, Vol. 10, p. 409.

122 The District of Columbia abortion statute in issue in United States v. Vuitch

It most seriously argued that the "life" protected by the Due Process of Law Clause of the Fifth Amendment includes the life of the unborn child. Further, it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but still in the womb of its mother. If it is a denial of equal protection for a statute to distinguish between a thief and an embezzler under a statute providing for the sterilization of the one and not the other,123 then it is surely a denial of equal protection for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother.

In Katz v. United States, supra, this Court, after concluding that the Fourth Amendment cannot be translated into a general constitutional "right to privacy" and after making reference to other forms of governmental intrusion,124 stated that "… the protection of a person's general right to privacy—his right to be let alone by other people—is, like the protection of his property and his very life, left largely to the law of the individual States." 389 U.S. at 352. Compare Kovacs v. Cooper, 336 U.S. 77 (1949).

If it be true the compelling state interest in prohibiting or regulating abortion did not exist at one time in the stage of history, under the result of the findings and research of modern medicine, a different legal conclusion can now be reached. The fact that a statute or law may originally have been enacted to serve one purpose does not serve to condemn it when the same statute, with the passage of time, serves a different but equally valid public purpose. See McGowan v. Maryland, 366 U.S. 420 (1961).

123Skinner v. Oklahoma, 316 U.S. 535 (1942).

124 Note 5 at page 510.

CONCLUSION

For the reasons above stated Appellee submits that the appeal from the judgment of the lower court denying injunctive relief to the appellants should be affirmed; that this Court consider plenary review of this entire case and reverse the judgment of the court below declaring Articles 1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code unconstitutional and enters its order accordingly.

Respectfully submitted,

Crawford C. Martin
Attorney General of Texas

Henry Wade
Criminal District Attorney
Dallas County Government Center
Dallas County, Texas

John B. Tolle
Assistant District Attorney
Dallas County Government Center
Dallas, Texas 75202

Nola White
First Assistant Attorney General

Alfred Walker
Executive Assistant

Robert C. Flowers
Assistant Attorney General

Jay Floyd
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas, 78711
Attorney for Appellee

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Brief for Appellees

Brief for Appellees

In the Supreme Court of the United States October Term, 1952

OLIVER BROWN, MRS. RICHARD LAWTON, MRS. SADIE EMMANUEL, ET AL., appellants,
VS.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL., appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

BRIEF FOR APPELLEES

Harold R. Fatzer, Attorney General, Paul E. Wilson, Asst. Attorney General, Counsel for the State of Kansas, State House, Topeka, Kansas, Peter F. Caldwell, Counsel for the Board of Education of Topeka, Kansas. 512 Capitol Federal Bldg., Topeka, Kansas.

Table of Contents

  1. Preliminary Statement
  2. Opinion Below
  3. Jurisdiction
  4. Questions Presented
  5. The Statute
  6. Statement of the Case
  7. Summary of Argument
  8. Argument
    1. Does a statute which permits but does not re-quire cities of more than 15,000 population to maintain separate school facilities for colored and white students violate the Fourteenth Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities?
    2. Background of Segregation in Kansas
    3. The Kansas Decisions
    4. The Controlling Principles
    5. The Prospect
    6. The District Court's finding of Fact No. VIII is insufficient to establish appellants right to injunctive relief and to require reversal of the judgment below
  9. Conclusion

I. PRELIMINARY STATEMENT

The issue presented by this case is whether the Fourteenth Amendment to the Constitution of the United States is violated by a statute which permits boards of education in designated cities to maintain separate elementary school facilities for the education of white and colored children.

At the outset, counsel for the appellees desire to state that by appearing herein they do not propose to advocate the policy of segregation of any racial group within the public school system. We contend only that policy determinations are matters within the exclusive province of the legislature. We do not express an opinion as to whether the practice of having separate schools of equal facility for the white and colored races is economically expedient or sociologically desirable, or whether it is consistent with sound ethical or religious theory. We do not understand that these extra-legal questions are now before the Court. The only proposition that we desire to urge is that the Kansas statute which permits racial segregation in elementary public schools in certain cities of the state does not violate the Fourteenth Amendment to the Constitution of the United States as that amendment has been interpreted and applied by this Court.

II. OPINION BELOW

The opinion of the three-judge District Court below: (R-238-244) is reported at 98 Fed. Supp. 797.

III. JURISDICTION

The judgment of the court below was entered on August 3, 1951 (R. 247). On October 1, 1951, appellants filed a petition for appeal (R. 248), and an order allowing the appeal was entered (R. 251). Probable jurisdiction was noted on June 9, 1952 (R. 254). Jurisdiction of this Court rests on Title 28 U. S. C. Sec. 1253 and 2201 (b).

IV. QUESTIONS PRESENTED

1. Does a statute which permits but does not require cities of more than 15,000 population to maintain separate school facilities for colored and white students, violate the Fourteenth Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities?

2. Is a general finding of the trial court that segregation is detrimental to colored children and deprives them of some benefits they would receive in a racial integrated school sufficient to entitle the individual colored plaintiffs to an injunction prohibiting the maintenance of an existing system of segregated schools, and to require reversal of a judgment denying such relief?

V. THE STATUTE

The statute under attack in the present litigation is section 72-1724, General Statutes of Kansas of 1949, which is quoted hereafter:

"Powers of board; separate schools for white and colored children; manual training. The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of such city under its charge and control and of the board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas; no discrimination on account of color shall be made in high schools, except as provided herein; to exercise the sole control over the public schools and school property of such city; and shall have the power to establish a high school or high schools in connection with manual training and instruction or otherwise, and to maintain the same as a part of the public school system of said city."

VI. STATEMENT OF THE CASE

The appellants here, who are plaintiffs below, are Negro citizens of the United States and the State of Kansas, who reside in Topeka, Shawnee County, Kansas. The infant plaintiffs are children of common school age. The defendants below and appellees herein are the duly constituted governing body and certain administrative officers of the public school system of Topeka, Kansas. The State of Kansas has intervened in the District Court to defend the constitutionality of the state statute under attack.

Acting pursuant to the authority conferred by G. S. 1949, 72-1724, supra, the appellee, Board of Education, many years ago created within the city of Topeka, which is one school district, eighteen school areas, and now maintains in each of said areas a kindergarten and elementary school for white children only. (R. 24.) At the same time the present Board of Education of Topeka and prior boards of education, acting under same statutory authority, have established and operated in said city four elementary schools in the same grades for Negro children. Negro children may attend any one of said elementary schools that they or their parents may select. It was stipulated in the Court below that the Negro schools are located in neighborhoods in which the population is predominantly Negro. (R. 31.) The stipulation also indicates that at the time the action was brought, the enrollment in the eighteen white schools was 6,019, as compared to 658 students enrolled in the four Negro schools. (R. 37.)

The administration of the entire Topeka school system is under the Board of Education, and the same administrative regulations govern both the white and Negro schools. The Court found specifically that there is no material difference in the physical facilities in colored and white schools; that the educational qualifications of the teachers and the quality of instruction in the colored schools are not inferior to, but are comparable with those in the white schools; and that the courses of study followed in the two groups of schools are identical, being that prescribed by state law. (R. 245.) Also, it was found that colored students are furnished transportation to the segregated schools without cost to the children or their parents. No such transportation is furnished to the white children in the segregated schools. (R. 246.)

VII. SUMMARY OF ARGUMENT

1. The Kansas statute which permits cities of the first class to maintain separate grade school facilities for colored and white students does not per se violate the Fourteenth Amendment to the Constitution of the United States.

The Court below found facilities provided for Negro children in the city of Topeka to be substantially equal to those furnished to white children. The appellants, in their specifications of error and in their brief, do not object to that finding. Under those circumstances and under authority of the decisions of the Supreme Court of the United States, the inferior federal courts, and the courts of last resort in numerous state jurisdictions, and particularly the decisions of the Kansas Supreme Court, the appellants herein are not denied equal protection of the laws by virtue of their being required to attend schools separate from those which white children are required to attend.

The decision of the court below should be affirmed.

2. Irrespective of the question of the constitutionality of the Kansas statute, the trial court's findings of fact are insufficient to establish appellants' right to injunctive relief and to require reversal of the judgment below. The only finding of fact relied upon by appellants is Finding of Fact No. VIII. That finding is couched in general language and in effect simply shows that segregation in the public schools has a detrimental effect upon colored children and a tendency to retain or retard their educational and mental development and to deprive them of some of the benefits they would receive in a racially integrated school system. The finding does not specifically show that any of the appellants have actually and personally suffered by reason of segregation in the public schools of Topeka nor that the mental development of any of the appellants in this case has been retarded; and the finding does not even purport to show discrimination against the appellants and in favor of any other students in the Topeka school system. It no where discusses the effect of segregation upon children of any race other than colored children. Therefore, the District Court's Finding of Fact No. VIII fails to show either that the appellants have suffered any personal harm, or that they are being deprived of benefits or subjected to detriments which do not equally apply to other students in the Topeka school system. Thus, the appellants have failed to secure findings of fact sufficient to entitle them to injunctive relief or to a reversal of the judgment below.

VIII. ARGUMENT

1. Does a statute which permits but does not require cities of more than 15,000 population to maintain separate school facilities for colored and white students violate the Fourteenth Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities?

Appellees contend that only a negative answer to this question is possible.

Background of segregation in Kansas A meaningful examination of any statute must necessarily be made in the light of its context. In Plessy v. Ferguson, 163 U.S. 357, the Court comments:

"So far, then, as a conflict with the 14th Amendment is concerned, the case reduces itself to the question of whether the statute … is a reasonable regulation, and with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order."

Therefore, we deem it proper to pause briefly to examine the origins and attitudes of the people of the State of Kansas.

The birth of the State of Kansas was an incident of the intersectional struggle that culminated in the war between the states. Located midway between the north and the south, the territory of Kansas was coveted by both the proslavery and free-state elements. The Kansas-Nebraska Act which announced the principle of "squatter sovereignty" formally opened the territory for settlement and resulted in migration of large numbers of people from both the north and the south. In these early settlers were reflected the diverse attitudes and cultures of the regions from which they came. While the free-state elements from the north gained political ascendency, there remained in Kansas people who, in good faith, believed that the welfare of both the colored and the white races required that they live apart from one another. Migration following the war between the states followed the same pattern. While the greatest number came from Illinois, Ohio, Indiana and other northern states, a considerable segment of the population had its origin in Kentucky, Tennessee and Missouri. (Clark & Roberts, People of Kansas, 1936, p. 18.)

The early legislatures were faced with the task of reconciling the divergent attitudes of the settlers from such varied cultural backgrounds.

The Wyandotte Constitution, under which the State of Kansas was admitted to the Union, provided for a system of public education specifically requiring the legislature to "encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools and schools of a higher grade, embracing normal, preparatory, collegiate and university departments." (Const., Art. 6, Sec. 1.) It is significant that an effort was made in the Wyandotte convention to obtain a constitutional requirement for the separate education of Negro children. The proposal was defeated, not because of objection to the intrinsic policy of segregation, but because the dominant faction in the constitutional convention believed that the power to govern the public schools and to classify students therein should rest with the legislature. At no time was doubt expressed that the constitutional provision adopted at Wyandotte would preclude classification of students on the basis of color (Wyandotte Constitutional Convention, Proceedings and Debates, 1859, pp. 171 to 174).

As early as 1862 the power to classify students was exercised by the enactment of section 18, article 4, chapter 46, Compiled Laws of 1862, applying to cities of not less than 7,000 inhabitants. That statute provided:

"The city council of any city under this act shall make provisions for the appropriation of all taxes for school purposes collected from black or mulatto persons, so that the children of such persons shall receive the benefit of all moneys collected by taxation for school purposes from such persons, in schools separate and apart from the schools hereby authorized for the children of white persons."

Chapter 18, Laws of 1868, entitled "An Act to Incorporate Cities of the First Class" authorized the organization and maintenance of separate schools for the education of white and colored children in cities of over 15,000 population. In 1876 the laws of the state pertaining to the common schools were codified and embodied in one comprehensive statute. (Chapter 122.) Article X of this chapter related to the public schools and cities of the first class, and provided that all cities of more than 15,000 inhabitants shall be governed thereby. The provision of the law of 1868 authorizing the maintenance of separate schools for white and colored children was omitted from that section and was thus deemed to have been repealed by implication. However, in 1879 a statute was passed (Laws of 1879, Chapter 81) amending the law relating to cities of the first class and specifically authorizing the boards of education therein to organize and maintain separate elementary schools for the education of white and colored children. The section was again amended by Laws of 1905, Chapter 414, and now appears without further change in G. S. 1949, 72-1724, quoted above.

Two features of the Kansas statute should be emphasized. In the first place, we invite the court's attention to the fact that the statute is permissive only and does not, as may be inferred from appellants' brief, require any board of education to maintain separate schools for colored children.

In the second place, it is again pointed out that the statute applies only to cities of the first class. Cities of the first class in Kansas include those cities having a population of more than 15,000 persons. Presently there are 12 cities in the state so classified. The special provision affecting only these communities may be accounted for by reference to the fact that the Negro population of Kansas is largely urban. According to the 1950 census, less than four percent of the total population of Kansas belongs to the Negro race. However, more than ninety percent of this colored population lives in cities classified as urban. Sixty percent of the total colored population live in the three largest cities of Kansas City, Wichita and Topeka, and at least thirty-five percent of this total live in Kansas City alone. Thus, in enacting a school segregation statute applicable only to cities of the first class the Kansas legislature has simply recognized that there are situations where Negroes live in sufficient numbers to create special school problems and has sought to provide a law sufficiently elastic to enable Boards of Education in such communities to handle such problems as they may, in the exercise of their discretion and best judgment, deem most advantageous to their local school system under their local conditions.

The Kansas decisions The Supreme Court of Kansas has uniformly held that the governing bodies of school districts in the state may maintain separate schools for colored children only when expressly authorized by statute. Board of Education v. Tinnon, 26 Kan. 1 (1881); Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616 (1891); Cartwright v. Board of Education, 73 Kan. 302, 84 Pac. 382 (1906); Rowles v. Board of Education, 76 Kan. 361, 91 Pac. 88 (1907); Woolridge, et al., v. Board of Education, 98 Kan. 397, 157 Pac. 1184 (1916); Thurman-Watts v. Board of Education, 115 Kan. 328, 22 Pac. 123 (1924); Webb v. School District, 167 Kan. 395, 206 Pac. 2d 1066 (1949).

The rationale of each of these cases is expressed in Thurman-Watts v. Board of Education, supra, as follows:

"The power and duty of the school board are derived exclusively from the statutes. The school board has no greater power than is conferred on it by the statutes."

It is significant that in each of the cases cited above, the court expressly recognized or conceded that the legislature has power to classify students in the public schools on the basis of color. Illustrative of this attitude is the following statement from Board of Education v. Tinnon, supra, appearing on p. 16 of the reported decision:

"For the purpose of this case we shall assume that the legislature has the power to authorize the board of education of any city or the officers of any school district to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools notwithstanding the Fourteenth Amendment to the Constitution of the United States;"

In each of the subsequent cases where the power to segregate was denied by reason of the absence of statutory authority, the court specifically recognized that the legislature had such authority to confer. (See cases above cited.)

The question of the constitutionality of a statute, antecedent to but substantially like the one here under attack, was squarely presented to the Supreme Court of Kansas in the case of Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. That was a proceeding in the nature of mandamus brought against the board of education of the city of Topeka by a colored resident. In the action he sought to compel the board of education to admit his child to a school maintained for white children only. In an exhaustive opinion the court found that the statute which permitted the policy of racial segregation to be valid and not in violation of the Fourteenth Amendment to the Constitution of the United States. The court relied specifically on the decision of the Supreme Court of the United States in the case of Plessy v. Ferguson, supra, and held that where facilities are equal, the mere fact of separation of races within a school system does not constitute a violation of the Fourteenth Amendment to the Constitution of the United States.

Quoting with approval from the New York case of People, ex rel., Cisco v. School Board, 161 N. Y. 598, 56 N. E. 81, 48 L. R. A. 115, the Court said:

"The most that the constitution requires the legislature to do is to furnish a system of common schools where each and every child may be educated; not that all must be educated in any one school, but that it shall provide or furnish a school or schools where each and all may have the advantages guaranteed by that instrument. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the constitution to deprive it of the right to so provide. It was the facilities for and the advantages of an education that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being obtained."

And the court found merit in the quoted portion of the decision in the Massachusetts case of Roberts v. City of Boston, 5 Cush. 198:

"It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compeling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under thier superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment."

Consistent with its finding that the statute did not violate the equal protection guarantee of the Fourteenth Amendment, the Court said on page 689: "The design of the common-school system of this state is to instruct the citizen, and where for this purpose they have placed within his reach equal means of acquiring an education with other persons, they have discharged their duty to him, and he has received all that he is entitled to ask of the government with respect to such privileges."

Finally on page 292 the court holds:

"The act of the legislature of 1879 providing for the education of white and colored children in separate schools in cities of the first class except in the high school is, therefore, in all respects constitutional and valid."

At the same time the Kansas court has always insisted that facilities must be equal for all groups. Particularly significant is the case of Williams v. Parsons, 79 Kan. 202, decided in 1908. There objection was made that the school provided for colored children was located in such close proximity to the railroad tracks that such location produced an undue hazard to the children attending the school. The court stated, at page 209:

"Having power to maintain separate schools in cities of the first class, the duty rests upon the board of education therein to give equal educational facilities to both white and colored children in such schools. This requirement must have a practical interpretation so that it may be reasonably applied to varying circumstances. … Where the location of a school is such as to substantially deprive some of the children of the district of any educational facilities, it is manifest that this equality is not maintained and the refusal to furnish such privileges, where it is practicable to do so, is an abuse of discretion for which the courts will afford a remedy."

A later expression of the Supreme Court of Kansas is found in Graham v. Board of Education, 153 Kan. 840, decided in 1941. There the court said on page 842:

"The authorities are clear that separate schools may be maintained for the white and colored races if the educational facilities provided for each are equal, unless such separation is in contravention of a specific state law."

Again on p. 846 the court comments with reference to the rule expressed in Reynolds v. Board of Education, supra:

"The defendants cite the case of Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. The rules of law set out in that case are sound and are applied in this case."

These cases demonstrate that the Supreme Court of Kansas has never doubted that G. S. 1949, 72-1724, and its antecedent statutes is without the scope of the prohibitions imposed on the legislature by the Fourteenth Amendment to the Constitution of the United States.

The controlling principles The position taken by the Supreme Court of Kansas in the cases cited, supra, is sustained by the weight of the decisions of this Court in Plessy v. Ferguson, supra, and Gong Lum v. Rice, 275 U.S. 78; and in numerous decisions of the inferior federal courts and the appellate courts in other states.

Appellants suggest that the Plessy case is not applicable to the situation before us. Admittedly, the question presented in the Plessy case arose out of segregation of white and colored races in railroad cars and not segregation in the public schools. However, the decision of the Court rises above the specific facts in issue and announces a doctrine applicable to any social situation wherein the two races are brought into contact. In commenting upon the purpose and the limitations of the Fourteenth Amendment the Court makes the following statement:

"The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced." (p. 554.)

Certainly this language refutes appellants' contention that the Plessy case has no application to these facts.

Appellants further state that Gong Lum v. Rice "is irrelevant to the issues in this case." This statement appears to justify a brief examination of the facts in the Gong case. Those facts may be summarized as follows:

The Constitution and statutes of the State of Mississippi provided for two school systems in each county. One system was for "white" children and the other system for "colored" children. Plaintiff sought to have his child who was a citizen of Chinese extraction admitted to the school maintained for white students in the county where she lived. She was refused admission by the school authorities. The Supreme Court of the United States unanimously affirmed the decision of the Supreme Court of Mississippi, refusing to grant a Writ of Mandamus to compel the school authorities to admit the Chinese-American citizen to the white school.

The opinion by Chief Justice Taft includes the following statement (pp. 85–86): "The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question it would call for very full argument and consideration but we think that it is the same question which has been many times decided to be within the constitutional power of the state legislature to settle without intervention of the federal courts under the Federal Constitution."

To support this proposition the Court cites sixteen cases decided by federal courts and state courts of last resort, including Plessy v. Ferguson, supra.

We do not believe that appellants suggest that the rights of the Negro citizens differ from the rights of the Mongolian citizen, Martha Lum. If such an idea is advanced herein, this Court should have no more difficulty in disposing of that contention than it did of that phase of the Gong case where it seemed to be contended that a yellow child had different rights than a Negro child. The Court simply held that children of all races have equal rights but that those rights are not infringed upon when the state provides that the different races shall be educated in separate schools of equal facility.

Appellants further contend that whatever force the Plessy and Gong-Lum cases may have had has been overcome by the recent decisions of Sweatt v. Painter, 339 U.S. 629, and McLaurin v. Oklahoma, 339 U.S. 637. Appellees concede that if there has been any change in the attitude of this Court as to the constitutionality of the separate but equal doctrines as it affects segregation, it must be found in these two cases. Thus, we have examined them carefully. But we find no statement therein that would cause us to believe the Court intended to reverse or modify its earlier decisions. In the Sweatt case, the Court held that a Negro prospective law student could not be denied admission to the renowned University of Texas Law School—"one of the nation's ranking law schools" (p. 663), and be compelled to accept instruction in a new school of perhaps questionable worth, inferior as to faculty, plant and student body. The McLaurin case only found that a Negro graduate student, who had successfully compelled his admission to the University of Oklahoma to do graduate work in education, was still being denied equal rights when he was segregated inside the university as to his seat in class, in the library and in the dining hall. Unquestionably, these cases sustain the position that equal facilities must be provided. However, that point is not at issue in this case.

We think the Sweatt case has no greater significance than the following expression of the Court's attitude indicates:

"This case and McLaurin v. Oklahoma State Regents … present different aspects of this general question: To what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the court." (p. 631.)

Squarely in point is the following statement:

"We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, requires affirmance of the judgment below. Nor need we reach the petitioner's contention that Plessy v. Ferguson should be re-examined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See, supra, pg. 631." (pp. 635–636.)

And in the McLaurin case the significance of the special situation is noted by the Court:

"Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained.

"It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think is irrelevant. There is a vast difference—a constitutional difference between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar … Appellant having been admitted to a state-supported graduate school, he must receive the same treatment at the hands of the state as students of other races." (pp. 641, 642.)

In the Sweatt and McLaurin cases the Court specifically refused to consider the issue of constitutionality of racial separation in schools of equal facility in view of contemporary knowledge and held only that where the State did not furnish equal facilities for one race, the students of that race were being denied equal protection of the laws. Appellees contend that this refusal by the Court to review the Plessy and Gong-Lum doctrines in its later decisions can only be interpreted to support the view that those cases still stand as expressions of the rule established by the Supreme Court upon the question of racial segregation within the public schools.

Notable among decisions since the Sweatt and McLaurin cases are Carr v. Corning, 182 F. 2d 14; Briggs v. Elliott, 98 F. Supp. 529; and Davis v. County School Board, 103 F. Supp. 337, the latter two cases now pending before this Court on appeal. Carr v. Corning involved the public school system of the District of Columbia. There the Court noted a fact that we deem most significant with respect to the original meaning and intent of the Fourteenth Amendment. It was pointed out that in the same year that Congress proposed the amendment, federal legislation was enacted providing for segregation of the races in the public schools in the District of Columbia.

"We are not unmindful of the debates which occurred in Congress relative to the Civil Rights Act of April 9, 1866, the Fourteenth Amendment, and the Civil Rights Act of March 1, 1875. But the actions of Congress, the discussion in the Civil Rights Cases, and the fact that in 1862, 1864, 1866 and 1874 Congress, as we shall point out in a moment, enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia, conclusively support our view of the Amendment and its effect." (p. 17.)

Here we note the parallel situation in the State of Kansas. There the State, through its Legislature, ratified the Fourteenth Amendment in 1867, and only one year later legislation providing for separation of the races in the public schools of first class cities was enacted. (L. 1868, ch. 18.)

An examination of all the cases in American jurisdictions supporting the appellants' position would become repetitious and tedious. Thus, we refrain from an exhaustive survey. We believe the comment of Circuit Judge Parker in Briggs v. Elliott, supra, aptly summarizes the law and its justification:

"One of the great virtues of our constitutional system is that, while the federal government protects the fundamental rights of the individual, it leaves to the several states the solution of local problems. In a country with a great expanse of territory with peoples of widely differing customs and ideas, local self government in local matters is essential to the peace and happiness of the people in the several communities as well as to the strength and unity of the country as a whole. It is universally held, therefore, that each state shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the federal Constitution, how it shall exercise the police power, i.e., the power to legislate with respect to the safety, morals, health and general welfare. And in no field is this right of the several states more clearly recognized than in that of public education." (p. 532.)

Justice Holmes has expressed the following view:

"I must add one general consideration. There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect. (Holmes, J., dissenting opinion, Truax v. Corrigan, 257 U.S. 312, p. 344, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375.)"

It is undoubtedly true that the separate but equal doctrine is susceptible of abuse. In many instances it has resulted in a separate and unequal rule in practice. However, it is the impossibility of equality under such a doctrine, and not the difficulty of administering and applying the same with equality, that would make such a doctrine unconstitutional per se. The situation in Topeka is one where substantial equality has been reached. Such was the finding of the Court below (R. 245) and such is apparently conceded by the appellants (Appellants' Brief, p. 5). These facts, under authority of decisions heretofore reviewed, compel an inescapable conclusion: Neither the statute of Kansas nor the action of the appellee, Board of Education, offends the Fourteenth Amendment to the Federal Constitution.

The prospect At the outset we suggested that the Kansas statute is permissive and that any Board of Education included in the statute may adopt a policy consistent with local conditions and local attitudes. We believe it is significant that under this statute by a process of evolution the people in Kansas communities are arriving at their own solutions to this problem. Under the statute 12 cities are authorized to maintain separate schools for colored students. The files of the State Superintendent of Public Instruction indicate that at the present time, only nine cities exercise the power conferred by statute. Wichita, the largest city in the state, has abandoned segregation only recently. The city of Pittsburg abandoned the policy of segregation only two years ago. Lawrence, seat of the state university, is now in the process of ending the operation of segregated schools.

This account of events not in the record is related to illustrate the wisdom which underlies the Kansas statute. Only those cities where local conditions produce special problems making segregation desirable need adopt the expedient of segregation. In the orderly progress of the community, these special problems are either solved or vanish, and when the need for segregation disappears, its practice may be discontinued. This was the method provided by the legislature of the State of Kansas to achieve the goal of an integrated school system where segregation is not needed. We respectfully suggest to the court that this evolutionary process permitting an autonomous solution in the community is consistent with the purpose and intent of the Fourteenth Amendment.

2. The District Court's finding of Fact No. VIII is insufficient to establish appellants' right to injunctive relief and to require reversal of the judgment below

A. Counsel for Appellants have overstated their case. Appellant has raised and preserved this issue by its third Assignment of Error, to wit:

"The District Court erred:

"………. .

"3. In refusing to enter judgment in favor of plaintiffs, after the court found that plaintiffs suffered serious harm and detriment in being required to attend segregated elementary schools in the City of Topeka, and were deprived thereby of benefits they would have received in a racially integrated school system." (R. 250.)

And by adopting its Assignment of Errors in its Statement of Points to Be Relied Upon (R. 253).

The District Court's Findings of Fact and Conclusions of Law appear at pp. 244 to 247 of the Transcript of the Record.

There is no Finding of Fact which literally and specifically corresponds to the finding mentioned in Appellants' third Assignment of Error.

At page 2 of the Brief for Appellants under the heading Questions Presented, appellants state the second issue, as follows:

"Whether the finding of the court below—that racial segregation in public elementary schools has the detrimental effect of retarding the mental and educational development of colored children and connotes governmental acceptance of the conception of racial inferiority—compels the conclusion that appellants here are deprived of their rights to share equally in educational opportunities in violation of the equal protection clause of the Fourteenth Amendment."

There is no Finding of Fact which literally and specifically corresponds to the finding mentioned in appellants' statement of the second issue.

At page 10 of the Brief for Appellant, counsel state:

"Applying this yardstick, any restrictions or distinction based upon race or color that places the Negro at a disadvantage in relation to other racial groups in his pursuit of educational opportunities is violative of the equal protection clause.

"In the instant case, the court found as a fact that appellants were placed at such a disadvantage and were denied educational opportunities equal to those available to white students.

"… … … … … . .

"Thus, notwithstanding that it had found inequality in educational opportunity as a fact, the court concluded as a matter of law that such inequality did not constitute a denial of constitutional rights, saying: …"

There is no such finding of fact in the Record in this case.

With all respect due to able counsel for appellants we believe that in their zeal for their cause, they have overstated their case. The only existing Finding of Fact which is relied upon by appellants and the only one quoted in their brief is the District Court's Finding of Fact No. VIII, which we quote accurately:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial integrated school system."

We call attention to the fact that the foregoing Finding is couched only in broad and general language; it makes no specific or particular reference to any of the appellants, nor to the grade schools in Topeka, nor to racial groups other than Negroes, nor to inequality of educational opportunities between Negroes and other racial groups. The substance of the finding can be summarized in the following statement: "Generally speaking, segregation is detrimental to colored children, and deprives them of some benefits they would receive in a racial integrated school system."

The Finding of Fact No. VIII cannot be stretched, as counsel for appellants apparently would like to stretch it, into a finding that the appellants in this case have "suffered serious harm in being required to attend segregated elementary schools in Topeka" and that "appellants were placed at such a disadvantage (in relation to other racial groups in [their] pursuit of educational opportunities) and were denied educational opportunities equal to those available to white students."

"B. Elements necessary to entitle appellants to injunctive relief and to a reversal of the judgment in this case. To establish appellants' right to injunctive relief and to reversal of the judgment in this case, the Findings of Fact No. VIII would have to show:

(1) That the appellants have actually suffered personal harm as the result of attending segregated schools in Topeka; and,

(2) Either that appellants are being deprived of benefits which other students in the Topeka school system enjoy, or that appellants are being subjected to detriments to which other students in the Topeka school system are not being subjected, by reason of maintenance of a segregated school system.

The mere showing that appellants may be members of a class which is being discriminated against by reason of a statute is not sufficient to entitle them to injunctive relief, unless appellants can also show that they personally are suffering harm. The Fourteenth Amendment protects only personal and individual rights.

The mere showing that appellants can show that they are being deprived of benefits they would receive under a different system of schools is not sufficient to show that they are being deprived of equal protection of the law, unless appellants can also show that under the existing segregate school system there are others who are not deprived of such benefits.

And finally, the mere showing that segregation is detrimental to appellants is not sufficient to show that they are being deprived of equal protection of the laws, unless they also show that segregation is not similarly detrimental to others in the Topeka school system.

McCabe v. A. T. & S. F. Ry. Co., 235 U.S. 151, 59 Law Ed. 149:

"There is, however, an insuperable obstacle to the granting of the relief sought by this bill. It was filed, as we have seen, by five persons against five railroad corporations to restrain them from complying with the state statute. The suit had been brought before the law went into effect, and this amended bill was filed very shortly after. It contains some general allegations as to discriminations in the supply of facilities and as to the hardships which will ensue. It states that there will be 'A multiplicity of suits,' there being at least 'fifty thousand persons of the Negro race in the state of Oklahoma' who will be injured and deprived of their civil rights. But we are dealing here with the case of the complainants, and nothing is shown to entitle them to an injunction. It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant's need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant—not to others—which justifies judicial intervention." (p. 162.)

Turpin v. Lemon, 187 U.S. 51, 47 Law Ed. 70:

"This is an effort to test the constitutionality of the law, without showing that the plaintiff had been injured by its application, and, in this particular, the case falls without ruling in Tyler v. Registration Court Judges, 179 U.S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206, wherein we held that the plaintiff was bound to show he had personally suffered an injury before he could institute a bill for relief. In short, the case made by the plaintiff is purely academic." (pp. 60, 61.)

Thomas Cusack Co. v. Chicago, 242 U.S. 526, 61 Law Ed. 472:

"He who is not injured by the operation of a law or ordinance cannot be said to be deprived by it of either constitutional right or of property." (p. 530.)

Mallinckrodt Chemical Works v. Missouri ex rel. Jones, 238 U.S. 41, 59 L. ed. 1192:

"As has been often pointed out, one who seeks to set aside a state statute as repugnant to the Federal Constitution must show that he is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures him." (p. 54.)

C. Finding of Fact No. VIII fails to disclose that any of the appellants have been actually and personally harmed by segregation in the Topeka Schools. Finding of Fact No. VIII makes no specific reference to the individual appellants. It expresses only in broad generalities the effect of segregation in the public schools upon colored children as a class. There is no specific finding that segregation has had a personal detrimental effect upon any of the appellants. There is no specific finding that any of the appellants personally has interpreted segregation as denoting inferiority of the Negro group, or that the motivation to learn of any of the appellants has been affected by a sense of inferiority. There is no finding that the educational and mental development of any of the appellants has actually been retained or retarded by reason of segregation in the Topeka schools. In short there is no finding that any of the appellants individually and actually has been harmed by segregation in the Topeka school system.

D. Finding of Fact No. VIII fails to disclose that appellants are being deprived of equal protection of the laws, or that they are being discriminated against by segregation in the Topeka Schools. Denial of equal protection of the laws, or discrimination, logically and necessarily involves at least two persons who are being treated differently. Denial of equal protection must mean denial of protection or opportunity equal to that afforded to someone else. There can be no such thing as "unilateral discrimination."

Since the Finding of Fact No. VIII is limited solely to a statement of the effect of segregation on colored children as a group, and nowhere mentions the effect of segregation upon any other race or group, it cannot reasonably or logically show discrimination or a denial of equal protection of the laws.

Nowhere in the finding has the court disclosed any facts upon which it can be claimed to show discrimination in favor of white children over colored in segregated schools.

It is idle on this appeal to speculate upon what the trial court might have found had it been requested to make additional findings. No request for additional findings was made in the trial court. We therefore refrain from speculating as to whether the court would also have found that segregation was detrimental to white children and impaired their educational and mental development.

E. The District Court did not intend nor consider its Finding of Fact No. VIII to be a finding of discrimination against appellants. The last sentence in Finding of Fact No. VIII summarizes the entire finding. We quote:

"Segregation with the sanction of law, therefore, has a tendency to retain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial integrated school system."

We believe the court intended the finding to mean simply that colored children would be better off in integrated schools than they are in segregated schools. Conceding that that is the meaning of the finding, it does not amount to a finding of actual discrimination against colored children and in favor of white children upon the facts in this case. White children are not permitted to attend integrated schools in Topeka. The mere fact, if it be a fact, that the Topeka school system could be improved so far as education of colored children is concerned, does not prove discrimination against them.

In the opinion of the District Court (R. 238 to 244), 98 F. Supp. 797, no mention is made of Finding of Fact No. VIII. It is clear the District Court did not consider or intend to attach to that finding the same significance which appellants seek to place upon it.

We do not question that if the Finding of Fact No. VIII means everything appellants claim it means, they would be entitled to an injunction and reversal of the judgment, if this court should overrule the "separate but equal doctrine." However, it is clear that the District Court did not intend or consider the finding to mean all the things appellants claim for it. As stated in the Decree of the District Court:

"The Court has heretofore filed its Findings of Fact and Conclusions of Law together with an opinion and has held as a matter of law that the plaintiffs have failed to prove they are entitled to the relief demanded."

IX. CONCLUSION

In view of the authorities heretofore cited, appellees respectfully submit that the judgment of the court below should be affirmed.

Harold R. Fatzer,
Attorney General,

Paul E. Wilson,
Asst. Attorney General,
Counsel for the State of Kansas,
State House, Topeka, Kansas,

Peter F. Caldwell,
Counsel for the Board of Education of
Topeka, Kansas.
512 Capitol Federal Bldg., Topeka, Kansas.

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"Brief for Appellees." West's Encyclopedia of American Law. 2005. Encyclopedia.com. 25 Sep. 2016 <http://www.encyclopedia.com>.

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