Brief for Appellant

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Brief for Appellant

In the Supreme Court of the United States
October Term, 1970
No. …..



Roy Lucas
The James Madison Constitutional Law Institute
Four Patchin Place
New York, N.Y. 10011

Norman Dorsen
School of Law, New York University
Washington Square South
New York, N.Y. 10003

Linda N. Coffee
2130 First National Bank Building
Dallas, Texas 75202

Sarah Weddington
3710 Lawton
Austin, Texas 78731

Roy L. Merrill, Jr.
Daugherty, Bruner, Lastelick & Anderson
1130 Mercantile Bank Building
Dallas, Texas 75201

Attorneys for Appellants


Citation to Opinions Below


Statutes Involved

Questions Presented

Statement of the Case

The Questions Are Substantial


  1. The three-judge court should have enjoined future enforcement of the Texas anti-abortion laws, which the court had declared unconstitutional, because an injunction was necessary in aid of the court's jurisdiction, proper to effectuate the declaratory judgment, and needed to prevent irreparable injury to important federal rights of the class of pregnant women who are or will be seeking abortions, and the class of physicians who are forced to reject such women as patients out of a reasonable fear of prosecution
  2. A married couple, and others similarly situated, have standing to challenge the Texas anti-abortion laws, because said laws have a present and destructive effect on their marital relations, they are unable to utilize fully effective contraceptive methods, pregnancy would seriously harm the woman's health, and such a couple could not obtain judicial relief in sufficient time after pregnancy to prevent irreparable injury



Appellants bring this direct appeal from a judgment entered June 17, 1970, by a statutory three-judge United States District Court for the Northern District of Texas. The judgment appealed from granted these Appellants (Plaintiffs below) a declaration that the Texas anti-abortion statues were unconstitutional on their face, by reason of overbreath affecting fundamental individual rights, and that provisions in the statue suffered from unconstitutional uncertainty. However, the judgment denied a permanent injunction which had been sought as necessary in aid of the District Court's jurisdiction to enjoin future enforcement of the statute declared invalid. Appellants submit this Statement to show that this is a direct appeal over which this Court has jurisdiction, and that the appeal presents important and substantial federal questions which merit plenary review.


The June 17, 1970, opinion of the statutory three-judge United States District Court for the Northern District Texas is not yet reported. The text of the decision is set out in the Appendix, infra, at 7a.


(i) On March 3, 1970, Appellant Jane Roe filed her original complaint,1 basing jurisdiction on 28 U.S.C. § 1343 (3) (1964 ed.), and complementary remedial statutes, 28 U.S.C. § 1983 (1964 ed.). On the same day Appellants John and Mary Doe filed a complaint predicting federal jurisdiction on the same statutes. On March 23, 1970, the District Court granted leave for Appellant James H. Hallford, M.D., to intervene as a party-plaintiff, on the basis of a complaint alleging a class action and the same jurisdictional grounds set out above. Subsequently, on April 22, 1970, Appellant Jane Roe amended her complaint to sue "on behalf of herself and all others similarly situated" (App. at 8a n. 1). Appellants John and Mary Doe also amended their complaints to asserts a class action (Id.). All Appellants, from their respective position as married couples, pregnant single women, and practicing physicians asked that the Texas antiabortion statutes2 be declared unconstitutional on their face, and for an injunction against future enforcement of the statutes. A statutory three-judge United States District Court was requested and convened pursuant to 28 U.S.C. §§ 2281, 2284 (1964 ed.).

(ii) The final judgment of the statutory three-judge District Court, granting Appellants' request for a declaratory judgment, but denying any injunctive relief, was entered on June 17, 1970 (App. at 4a). On Monday, August 17, 1970, all Appellants filed with the United States District Court for the Northern District of Texas notices of appeal to this Court (App. at 1a), pursuant to 28 U.S.C. § 2101 (b) (1964 ed.), and SUP. CT. RULES 11, 34 (July 1, 1970 ed.), 398 U.S. 1015, 1021, 1045 (1970 ed.). A protective appeal to the United States Court of Appeals for the Fifth Circuit was noticed on July 23, 1970, by Appellant Hallford (App. at 23a), and on July 24, 1970, by Appellant Jane Roe (App. at 21a).

(iii) Jurisdiction of this Court to review by direct appeal the three-judge District Court's final judgment denying a permanent injunction is conferred by 28 U.S.C. § 1253 (1964 ed.).

(iv) Cases which sustain the jurisdiction of this Court are: Evans v. Cornman, 398 U.S. 419, 420 (1970); Goldberg v. Kelly, 397 U.S. 254, 261 (1970); Carter v. Fury Comm'n of Greene County, 396 U.S. 320, 328, (1970); Moore v. Ogilivie, 394 U.S. 814, 815–16 (1969); Williams v. Rhodes, 393 U.S. 23, 26–28 (1968); Dinis v. Volpe, 389 U.S. 570 (1968) (per curiam); Hale v. Bimco Trading Co., 306 U.S. 375, 376–78 (1939).


2A TEXAS PENAL CODE art. 1196, at 436 (1961):

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

2A TEXAS PENAL CODE art. 1191, at 429 (1961):

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 towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary 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 thereof be caused.

2A TEXAS PENAL CODE art. 1192, at 433 (1961):

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

2A TEXAS PENAL CODE art. 1193, at 434 (1961):

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

2A TEXAS PENAL CODE art. 1194, at 435 (1961):

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

1 The complaint and all other documents referred to in this Jurisdictional Statement are part of the record on appeal.

2 The statutes, set out verbatim, infra, at 4–5, are 2A TEXAS PENAL CODE arts. 1191–1194, 1196, at 429–36 (1961).


I. Whether the Three-Judge Court Should Have Enjoined Future Enforcement of the Texas Anti-Abortion Laws, Which the Court Had Declared Unconstitutional, Where an Injunction was Necessary in Aid of the Court's Jurisdiction, Proper to Effectuate the Declaratory Judgment, and Needed to Prevent Irreparable Injury to Important Federal Rights of the Class of Pregnant Women Who Are or Will be Seeking Abortions, and the Class of Physicians Who are Forced to Reject such Women as Patients Because of a Reasonable Fear of Prosecution.

II. Whether a Married Couple, and Others Similarly Situated, Have Standing to Challenge the Texas Anti-Abortion Laws, Where Said Laws Have a Present and Destructive Effect on their Marital Relations, They are Unable to Utilize Fully Effective Contraceptive Methods, Pregnancy Would Seriously Harm the Woman's Health, and Such a Couple Not Obtain Judicial Relief in Sufficient Time After Pregnancy to Prevent Irreparable Injury.


Appellants brought three actions on behalf of three variously situated classes of Plaintiffs.

John and Mary Doe, a childless married couple, sued on behalf of themselves and all others similarly situated. Mary Doe has a neural-chemical disorder which renders pregnancy a threat to her physical and mental health, although not to her survival. Her physician has so advised her, and has also advised against using oral contraceptives. The alternate means of contraception used by John and Mary Doe is subject to a significant risk of failure. In such event, Mary Doe would like to, but legally could not, obtain a therapeutic abortion in a suitable medical facility in Texas. The probability of contraceptive failure in the class represented by Mary Doe is unquestionably high, when the size of the class is considered. Also, the limitations of judicial relief for a pregnant woman seeking an abortion are well known.3 For Mary Doe and others in her positions, a pre-pregnancy ruling on the validity of the Texas anti-abortion laws was the only ruling that could grant her the relief she would be seeking. Any other decision would simply be too late to prevent irreparable injury. Accordingly, John and Mary Doe brought an action for declaratory and injunctive relief against the present effect of the Texas statutes on their marital relations, and the inevitable future effect the statutes would have, in the certain event that a member of the class would become pregnant and not qualify for a legal abortion in Texas.

Jane Roe, an unmarried pregnant woman, also brought an action of the same nature, on her own behalf and for all others similarly situated. Jane Roe had been unable to obtain a legal abortion in a medical facility in Texas, because her survival was not threatened by continued pregnancy, and no hospital would perform the abortion, in light of the Texas anti-abortion statutes.4 Jane Roe was financially unable to journey to another jurisdiction with less restrictive laws on abortion, and according had no recourse other than continuing an unwanted pregnancy, or risking her life and health at the hands of a non-medical criminal abortionist.

3 The period between pregnancy detection, which normally occurs after the fourth week, and the safest time for a therapeutic abortion, before the twelfth week, leaves little time for judicial deliberation. With the notable exception of the Seventh Circuit, courts have declined to render a decision on behalf of a pregnant woman in the limited time available. In the present case, the first complaint was filed March 3, 1970, and followed after fifteen full weeks by a decision in the merits, June 17, 1970. Compare Doe v. Randall, 314 F. Supp. 32 (D. Minn. 1970) (nearly five weeks between decision and complaint); Doe v. Randall, Doe v. Lefowitz, 69 Civ. 4423 (S.D.N.Y. Dec. 12, 1969) (per curiam) (preliminary injunction denied until all factual materials developed by deposition); and California v. Belous, 71 Cal. 2d—, 458 P. 2d 194, 80 Cal. Rptr. 354 (1969) (argument March 3, 1969; decision September 5, 1969); with Doe v. Scott, No. 18382 (7th Cir. Mar. 30, 1970) (per curiam), rev'g 310 F. Supp. 688 (N.D. Ill. Mar. 27, 1970) (order entered in three days where pregnancy caused by rape).

4 While Texas does not punish the woman who persuades a physician to abort her, the anti-abortion statutes impose a felony sanction of up to five years for physician. 2A TEXAS PENAL CODE art. 1191, at 429 (1961). Moreover, the physician risks cancellation of his license to practice. 12B TEXAS CIV. STAT. art. 4505, at 541 (1966); id. art. 4506, at 132 (Supp. 1969–70). Also, the hospital can lose its operating license for permitting an illegal abortion with its facilities. 12B TEXAS CIV. STAT. art. 4437f, § 9, at 216 (1966).

James H. Hallford, M.D., intervened as a Plaintiff, representing himself and other licensed Texas physicians similarly situated. Dr. Hallford's interest was twofold. As a physician, he is requested by patients, on a regular and recurring basis, to arrange for medically induced abortions in hospitals or other appropriate clinical facilities. This he cannot do, for several reasons. The Texas anti-abortion statues are unclear in their potential application to the situations in which patients request abortions. Consequently, both physician and hospital must exercise special caution to avoid prosecution. Also, the potential sweep of the statutes is so drastic that the only clear case of legal abortion is one in which the patients is near to certain death. These cases are rare; hence the typical patient's case will be legally uncertain, or of certain illegality. To avoid the realistic possibility of severe penal and administrative sanctions, the physician must turn away typical patient. Since the conscientious physicians knows full well that such a patient may seek out an incompetent non-medical abortionist, thereby endangering her life or health, he will continually be forced by the statute to breach his professional duty of care to the patient.5 To rectify this invasion of the physician-patient relationship, Dr. Hallford brought this action to enjoin future enforcement of the Texas anti-abortion statutes, against himself, or against any other physician similarly situated.

Dr. Hallford's second interest in bringing the action was to seek relief against two indictments outstanding against him on abortion charges6 Under Texas law, a physicians charged with abortion is presumed guilty, if the State is able to establish the fact of the abortion. The physician, in such a case, must admit complicity in the act, waive his privilege against self-incrimination, and defend on the basis that the abortion was "procured or attempted by medical advice for the purpose of saving the life of the [woman]." 2A TEXAS PENAL CODE art. 1196, at 436 (1961). Decisions such as Veevers v. State, 354 S.W. 2d 161 (Tex. Ct. Crim. App. 1962), hold that the Article 1196 exception is an affirmative defense, which the physician must raise and prove. In numerous respects, this settled state-law practical deprives a physician of essential constitutional rights. Moreover, state practice invades the privacy of physician and patient by exposing intimate and confidential associations to the public glare of a criminal trial. In addition, the possibility of conviction carries with it the revocation of the physician's license before appeal. These elements of state practice render defense to criminal abortion charges a wholly inadequate means of vindicating the physician's constitutional rights. Accordingly, Dr. Halliford brought the present actions filed by Jane Roe, John Doe, and Mary Doe. The cases were consolidated, and argued together.

Essentially, the federal questions raised by each individual Plaintiff were raised by all. The complaints charged that the Texas anti-abortion statutes deprived physicians and patients of rights protected by the First, Fourth Fifth, Eighth, Ninth and Fourteenth Amendments, as construed by this Court in decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965).7 Defendants interposed objections to the standing of each Plaintiff, the propriety of adjudications versus abstention, the ripeness of the dispute for present decision, and the propriety of injunctive relief

A statutory three-judge court, convened in response to Plaintiffs' request for injunctive relief from the Texas anti-abortion statutes, granted a declaratory judgment that the statutes were unconstitutionally vague and overbroad.

After dealing with the jurisdictional questions of standing,8 ripeness,9 and abstention,10 raised by the Defendants, the three-judge court stated:

[T]he Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children

5 If prior cases on abortion prosecutions in Texas are a reliable index, patients who are turned away by physicians have recourse only to an assortment of quacks. See, e.g., Fletcher v. State, 362 S.W. 2d 845 (Tex. Ct. Crim. App. 1962) (non-physician using crude techniques in "cottage on the river"; hysterectomy necessary to prevent girl's death); Catching v. State, 364 S.W. 2d 691 (Tex. Ct. Crim. App. 1962) (non-physician; police found "tool box containing several catheters, a knitting needle, and other items").

6State v. Hallford, Nos. C-69–2524–H & C-69–5307–IH (Tex. Crim. Ct., Dallas County).

7 In the brief on the merits, Appellants will more fully elaborate this complex substantive constitutional point. For purposes of this Statement, however, it is sufficient to not that Griswold has been applied in the abortion context by numerous state and federal courts. See cases cited in notes 31–37, infra, and accompanying text.

8 Jane Roe, the pregnant Plaintiff, and Dr. Hallford, had standing because they "occupy positions vis-à-vis the Texas Abortion Laws sufficient to differentiate them from the general public." App. at 9a Also, on authority of Griswold, Dr. Hallford had standing to raise the "rights of his patients, single women and married couples, as well as rights of his own." App. at 9a n. 3. John and Mary Doe, however, were held to lack standing. App. at 5a.

9 The district court was "satisfied that there presently exists a degree of contentiousness between Roe and Hallford and the defendant to establish a 'case of actual controversy'. ." App. at 10a

10Zwickler v. Koota, 389 U.S. 241, 248–49 (1967), was sufficient authority to preclude abstention. App. at 11a.

11See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Prince v. Massachusetts, 321 U.S. 158 (1944), all cited by the district court. App. at 13a.

Reliance was placed on decisions by this Court establishing "[r]elative sanctuaries for such 'fundamental' interests [as] the family,11 the marital couple,12 and the individual."13 Further precedent was found in similar decisions by other federal and state courts,14 as well as a major treatment of Griswold in the abortion setting by Retired Justice Tom C. Clark, see Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 LOYOLA UNIV. (L.A.) L. REV. 1 (1969).

Not only were the statues overbroad, and not justified by a narrowly drawn compelling State interest, but the language of the statutes was unconstitutionally vague. Although a physician might lawfully perform an abortion "for the purpose of saving the life of the [pregnant woman],"15 the circumstances giving rise to such necessity were far from clear. The district court detailed a few of the more apparent ambiguities:

How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death that would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years? These questions simply cannot be answered.

App. at 71a.

After finding the Texas anti-abortion statues unconstitutional on two grounds, the district court considered the propriety of injunctive relief. Acting on the assumption that Dombroski v. Pfister, 380 U.S. 479 (1965)

controlled, the court refused to enjoin any present or future enforcement of the statutes. Appellants have brought this appeal to review the denial of injunctive relief.


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

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

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

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

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

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

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

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

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

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

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


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

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

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

18See cases cited in not 38, infra.

19 In particular, Appellants relied upon the reasoning of Griswold v. Connecticut, 381 U.S. 479 (1965), where this Court invalidated a state law prohibiting use of contraceptive devices, because the law swept too broadly and invaded "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." 381 U.S. at 485.

20 The most reliable estimates hold that fewer than 10,000 hospital therapeutic abortions are performed yearly, in states where there has been no abortion law reform. See Tietze, Therapeutic Abortions in the United States, 101 Am. J. OBST. and GYNEC. 784, 787 (1968). These constitute a minute proportion of all unwanted pregnancies which face American couples each year. Those excluded from hospitals have two alternatives: continuation of unwanted pregnancy, or extra-hospital, probably illegal, induced abortion.

21 The woman is not an accomplice under Texas law, but other participants, including her husband, are fully liable. See Willingham v. State, 33 Tex. Crim. 98, 25 S.W. 424 (1894) (woman neither principal nor accomplice).

22Griswold was silent on the more significant problem of access by unmarried persons to contraceptives. A result of non-access, and failure, is the birth of over 100,000 illegitimate children yearly to girls age nineteen or younger. See U.S. Bureau of the Census: Statistical Abstract of the United States: 1969, Table 59, at 50 (90th ed. 1969).

Outside of the state judiciary in Massachusetts, authorities have uniformly held the Griswold rationale applicable to litigants who had not entered into the marriage contract. Compare Baird v. Eisenstadt, — F. 2d—, No. 7578 (1st Cir. July 6, 1970) (invalidating Massachusetts statute which outlawed distribution of contraceptives to the unmarried), Mindel v. United States Civil Service Comm'n, 312 F. Supp. 485 (N.D. Calif. 1970) (reinstating postal clerk who had been dismissed for cohabitation without benefit of marriage), and the present case, Roe v. Wade, — F. Supp.—, Civ. No. 3–3690–B (N.D. Tex. June 17, 1970) (per curiam) (Texas anti-abortion statutes "deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children.", with Sturgis v. Attorney General, 260 N.E. 2d 687, 6900 (Mass.1970) (directly contrary to federal decision Baird).

23 If a married couple is to have private control over numbers and spacing of children, induced abortion is absolutely necessary as a backstop to contraceptive failure. For compilation of contraceptive failure rates according to method used, see P. EHRLICH AND A. EHRLICH, POPULATION RESOURCES ENVIRONMENT 218–19 and TABLE 9–1 (1970); N. EASTMAN AND L. HELLMAN, WILLIAMS OBSTETRICS 1068–75 (13th ed. 1966); Hardin, History and Future of Birth Control, 10 PERSPECTIVES IN BIOLOGY & MED. 1, 7–13 (1966); Tietze, Clinical Effectiveness of Contraceptive Methods, 78 AM. J. OBST. AND GYNEC. 650 (1959).

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

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

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

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

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

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

24 The most recent scholarly examination of unwanted birth magnitudes will appear in a forthcoming issue of SCIENCE. A summary of these findings by Dr. Charles F. Westoff of Princeton University's Office of Population Research, analyzing in 1965 National Fertility Study, appeared in the N.Y. Times, Oct. 29, 1969, at 25, col. 3.

25 Secret induced abortions are inherently incapable of quantification. Nonetheless, one can be certain that the number is very high. For estimates, see Fisher, Criminal Abortion, in ABORTION IN AMERICA 3–6 (H. Rosen ed. 1967); M. CALERONE (ed.), ABORTION IN THE UNITED STATES 180 (1958); P. GEBHARD et al., PREGNANCY, BIRTH AND ABORTION 136–37 (1958); F. TAUSSIG, ABORTION: SPONTANEOUS AND INDUCED 25 (1936); Regine, A Study of Pregnancy Wastage, 13 MILBANK MEM. FUND QUART. No. 4, at 347–65 (1935).

26See N.Y. Times, June 26, 1970, at 1, col. 1. The statement has not yet been published in an official A.M.A. document. A recent issue of the J.A.M.A. noted that only 26 physicians had resigned from the body because of new policy. 213 J.A.M.A. 1242 (Aug. 24, 1970).

27 For analysis of abortion laws in the United States prior to the most recent changes, See Lucas, Laws of the United States, in I ABORTION IN A CHANGING WORLD 127 (R. Hall ed. 1970); George, Current Abortion Laws: Proposals and Movements for Reform, 17 W. RES. L. REV. 371 (1966).

28See, e.g., N.Y. PENAL LAW § 125.05(3), at 79 (McKinney Supp. 1970–71).

29See MODEL PENAL CODE § 230.3(2) (Proposed Official Draft, 1962). The states are Arkansas, New Mexico, North Carolina, Oregon, South Carolina, and Virginia.

On least eight occasions this Court has declined to review state court decisions which involved restrictive anti-abortion laws.

The eight denials are: Mucie v. Missouri, 398 U.S. 938 (June 1, 1970), denying cert, to 448 S.W. 2d 879 (Mo. 1970) (manslaughter abortion conviction where patient died); California v. Belous, 397 U.S. 915 (Feb. 24, 1970), denying cert. to 71 Cal. 2d —, 458 P. 2d 194, 80 Cal. Rptr. 354 (1969) (statute repealed after prosecution commenced); Molinaro v. New Jersey, 396 U.S. 365 (Jan. 19, 1979) (per curiam), dismissing appeal from 54 N.J. 246, 254 A. 2d 792 (1969) (defendant jumped bail after appeal filed); Knight v. Louisiana Bd. of Medical Examiners, 395 U.S. 933 (June 2, 1969), denying cert. to 252 La. 889, 214 So. 2d 716 (1968) (per curiam) (federal questions not properly raised and preserved); Morin v. Garra, 395 U.S. 935 (June 2, 1969), denying cert. to 53 N.J. 82 (1968) (per curiam) (same); Moretti v. New Jersey, 393 U.S. 952 (Nov. 18, 1968), denying cert. to 52 N.J. 182, 244 A. 2d 499 (1968) (conspiracy conviction; abortion to have been performed by barber); Fulton v. Illinois, 390 U.S. 953 (Mar. 4, 1968), denying cert, to 84 Ill. App. 2d 280, 228 N.E. 2d 203 (1967); Carter v. Florida, 376 U.S. 648 (Mar. 30, 1964), dismissing appeal from 150 So. 2d 787 (Fla. 1963).

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

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

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

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

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

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

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

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

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

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

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

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

31California v. Belous, 71 Cal. 2d —, —. 458 P. 2d 194, 199, 80 Cal. Rptr. 354, 359 (1969), cert denied, 397 U.S. 915 (1970). Belous, a state court appeal of a conspiracy conviction of a physician, involved a statute worded almost identically to that in the present case.

One year earlier, a California trial court had ruled that the Eighth and Fourteenth Amendments prohibited license revocation proceedings against physicians who had performed hospital approved abortions on patients exposed in early pregnancy to German measles. The opinion of the trial court, however, simply enumerated those Amendments among various conclusions of law, without supporting the conclusions with any attempt at reasoned analysis. Nonetheless, the result, and the factual similarities between that and the present case, are of interest. See Shively v. Board of Medical Examiners, No. 590333 (Calif. Super, Ct., San Fran. County Sept. 24, 1968) (not reported), on remand from 65 Cal. 2d 475, 421 P. 2d 65, 55 Cal. Rptr. 217 (1968) (granting physicians' motions for discovery, without reference to merits).

32 71 Cal. 2d at —, 458 P. 2d at 199, 80 Cal. Rptr. at 359, citing, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536 (1942).

33 310 F. Supp. 293 (E.D. Wis. 1970) (per curiam), appeal docketed, 38 U.S.L.W. 3524 (U.S. June 20, 1970) (No. 297, Oct. 1970 Term).

34 The standing of a physician to assert a patient's rights along with his own follows from Griswold v. Connecticut, 381 U.S. 479, 481 (1965), and Barrows v. Jackson, 346 U.S. 249, 257 (1953). On this standing point, lower court decisions involving abortion laws all agree. See also Planned Parenthood Ass'n of Phoenix v. Nelson, Civ. No. 70–334 PHX (D. Ariz. Aug. 24, 1970) (per curiam); Doe v. Bolton,— F. Supp. —, Civ. No. 13676 (N.D. Ga. July 31, 1970) (per curiam); United States ex rel. Williams v. Follette, 313 F. Supp. 269, 273 (S.D.N.Y. May 12, 1970).

35 — F. Supp. —, Civ. No. 3–3690–B (N.D. Tex. June 17, 1970) (per curiam).

36 — F. Supp. —, Civ, No. 13676 (N.D. Ga July 31, 1970) (per curiam).

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

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

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

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

37See, eg., State v. Munson (S.D. 7th Jud. Cir., Pennington County Apr. 6, 1970) (Clarence P. Coper, F.) (recognizing the woman's "' private decision whether to bear her unquickened child'"); State v. Ketchum (Mich. Dist. Ct. Mar 30, 1970) (Reid, F.) ("the statute as written infringes on the right of privacy in the physician-patient's right to safe relationship, and may violate the patient's right to safe and adequate medical advice and treatment"); Commonwealth v. Page, Centre County Leg. J. at 285 (Pa. Ct. Comm. Pl., Centre County July 23, 1970) (Campbell, P.F.) ("the abortion statute interferes with the individual's private right to have or not to have children."); People v. Gwynne, No. 176601 (Calif. Mun. Ct., Orange County Aug. 13, 1970) (Schwab, F.); People v. Gwynne, No. 173309 (Calif. Mun. Ct., Orange County June 16, 1970) (Thomson, F.); People v. Barksdale, No. 33237C (Calif. Mun. Ct., Alameda County Mar. 24, 1970) (Foley, F.); People v. Robb, Nos. 149005 and 159061 (Calif, Mun. Ct., Orange County Jan. 9, 1970) (Mast, F.); People v. Anast, No. 69–3429 (Ill. Cir. Ct., Cook County, 1970) (Dolezal, F.) (holding the Illinois abortion statute "unconstitutional (1) for vagueness; and (2) for infringing upon a woman's right to control her body."); cf. United States v. Vitch, 305 F. Supp. 1032 (D.D.C. 1969), ques. of juris. postponed to merits, 397 U.S. 1061, further juris. questions propounded, 399 U.S. 923 (1970); United States ex rel. Williams v. Follette, 313 F. Supp. 269, 272–73 (S.D.N.Y. 1970) (questions substantial, but habeas petitioner-physician remitted to state courts).

38See, e.g., Gwynne v. Hicks, Civ. No. 70–1088–CC (C.D. Calif., filed May 18, 1970); Arnold v. Sendak, IP 70–C-217 (S.D. Ind., filed Mar. 29, 1970); Corkey v. Edwards, Civ No. 2665 (W.D.N.C., filed May 12, 1970); YMCA of Princeton v. Kugler; Civ. No. 264–70 (D.N.J., filed Mar. 5, 1970); Hall v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y. 1969), dismissed as moot Op. No. 36936 (S.D.N.Y. July 1, 1970) (per curiam) (statute repealed); Benson v. Johnson, Civ. No. 70–226 (D. Ore., filed Aug. 4, 1970); Doe v. Dunbar, Civ. No. C-2402 (D. Colo., filed July 2, 1970); Henrie v. Blankenship, Civ. No. 70–C-211 (N.D. Okla., filed July 6, 1970); Planned Parenthood Ass'n of Phoenix v. Nelson, Civ. No. 70–334 PHX (D. Ariz. Aug. 24, 1970) (per curiam); Ryan v. Specter, Civ. No. 70–2527 (E.D. Pa., filed Sept. 14, 1970); Doe v. Rampton, Civ. No. 234–70 (D. Utah, filed Sept. 16, 1970).

39Idlewild Bon Voyage Corp. v. Epstein, 370 U.S. 713, 715 (1962) (per curiam).

40 Tom C. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 LOYOLA UNIV. (L.A.) L. Rev. 1–11 (1969).

41 Although it is a minor point, Griswold was the Executive Director of Planned Parenthood in the Griswold case. It was the physician, the late Dr. Buxton of the Yale Medical School who had examined the patients and the prescribed contraceptive devices.

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

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

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

42 Clark, supra, not 40, at 9.

43 28 U.S.C. § 2283 (1964 ed).

44 While Dombrowski did not clarify the thorny definitional problems surrounding the concept of a "proceeding" in a state court, the Court did hold that at least an indictment must be returned. The federal complaint came before the indictments in Dombrowski, and was held to relate back where a district court erroneously dismissed the complaint. An almost identical situation in the abortion context is before this Court in Hodges v. Randall, No. 728, docketed Sept. 21, 1970, where law enforcement authorities secured the dismissal of a federal action for want of a case or controversy, and proceeded within two days to obtain an indictment against a physician who had been a federal plaintiff.

45 380 U.S. at 484 n. 2.

46Hale teaches that strangers to state proceedings may secure federal injunctive relief against a state statute, even though the effect of the federal decision may be to confuse cases pending at the same time before the highest court of the state. Hale affirmed a three-judge court decision enjoining enforcement of a Florida statute although "the injunction in effect stayed proceedings in the Supreme Court of Florida." 306 U.S. at 376.

47 28 U.S.C. § 2283 (1964 ed.).

48 A decision by this Court on the propriety of injunctive relief, however, is necessary for guidance of lower courts in similar future controversies. Otherwise, the law of the district courts would be final law in all cases where the merits were correctly resolved, but an injunction improperly denied. In addition, as commentators have frequently observed, this Court has not resolved a sufficient variety of cases concerning the parameters of 28 U.S.C. § 2283 (1964 ed.), to provide answers to questions such as those presented here. The criteria for commencement of "proceedings in a State court," for example, are uncertain, as is the relevance of a State proceeding brought after a federal complaint. Also, the extent to which the anti-injunction statute affects declaratory judgments is in dispute, as well as the availability of injunctions against future prosecutions where one or more indictments is outstanding, or prosecutions threatened. Similarly, the availability of injunctive relief against prosecutions which threaten to inhibit wide areas of constitutionally protected conduct outside the First Amendment context is uncertain. For a more comprehensive review of the need for further guidelines from this Court in these areas, see Stickgold, Variations on the Theme of Dombrowskiv. Pfister: Federal Intervention in State Criminal Proceedings Affecting First Amendment Rights, 1968 WIS. L. REV. 369; Brewer, Dombrowski v. Pfister: Federal Injunction Against State Prosecution in Civil Rights CasesA New Trend in Federal-State Judicial Relations, 34 FORDHAM L. REV. 71 (1965); Note, The Federal Anti-Injunctions Statute and Declaratory Judgments in Constitutional Litigations, 83 HARV L. REV. 1870 (1970); Comment, Federal Injunctions Against State Actions, 35 GEO. WASH. L. REV. 744 (1967).

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

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

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

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

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

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

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

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

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

49 Taken together, Dombrowski, 380 U.S. at 484 n. 2, and Hill v. Martin, 296 U.S. 393, 403 (1935), suggest that a "proceeding" begins at some time after indictment. Respectable authorities argue that the indictment or information is an administrative act, done ex parte and in secrecy; hence, no "proceeding" exists until trial or arraignment, when both parties are first before a "State court." See Brewer, supra note 48, at 92; Comment, 35 GEO. WASH. L. REV. at 766–67.

50 381 U.S. 479 (1965).

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

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

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

51 Friendly, F., in Toilet Goods Ass'n v. Gardener, 360 F. 2d 677, 684 (2d Cir. 1966), aff'd, 387 U.S. 167, 170 (1967).


For the reasons set out in this Jurisdictional Statement, the Court should note probable jurisdiction, and set the case down for plenary consideration with briefs on the merits and oral argument.

Respectfully submitted,

The James Madison Constitutional Law Institute
Four Patchin Place
New York, N.Y. 10011

Norman Dorsen
School of Law
New York University

Washington Square
New York, N.Y. 10003

Linda N. Coffee
2130 First National Bank Building
Dallas, Texas 75202

Sarah Weddington
3710 Lawton
Austin, Texas 78731

Roy L. Merrill, Jr.
Daugherty, Bruner, Lastelick and Anderson
1130 Mercantile Bank Building
Dallas, Texas 75201

Attorneys for Appellants

Brief for Appellants

views updated Jun 27 2018

Brief for Appellants

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

NO. 8


William T. Coleman Jr.,
George E. C. Hayes,
George M. Johnson,
William R. Ming Jr.,
Constance Baker Motley,
James M. Nabrit Jr.,
Frank D. Reeves,
John Scott,
Jack B. Weinstein, of Counsel.
Robert L. Carter,
Thurgood Marshall,
Spottswood W. Robinson III,
Charles S. Scott,
Counsel for Appellants.

Table of Contents

Opinion Below


Questions Presented

The Law of Kansas and the Statute Involved

Statement of the Case

Specifications of Error

Summary of Argument


  1. The State of Kansas in affording opportunities for elementary education to its citizens has no power under the Constitution of the United States to impose racial restrictions and distinctions
  2. The court below, having found that appellants were denied equal educational opportunities by virtue of the segregated school system, erred in denying the relief prayed



The opinion of the statutory three-judge-District Court for the District of Kansas (R. 238-244) is reported at 98 F. Supp. 797.


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. 250). Probable jurisdiction was noted on June 9, 1952 (R. 254). Jurisdiction of this Court rests on Title 28, United States Code, §§ 1253 and 2201 (b).


  1. Whether the State of Kansas has power to enforce a state statute pursuant to which racially segregated public elementary schools are maintained.
  2. 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.


All boards of education, superintendents of schools and school districts in the state are prohibited from using race as a factor in affording educational opportunities in the public schools within their respective jurisdictions unless expressly empowered to do so by statute. Knox v. Board of Education, 54 K. 152, 25 P. 616 (1891); Cartwright v. Board of Education, 73 K. 32, 84 P. 382 (1906); Rowles v. Board of Education, 76 K. 361, 91 P. 88 (1907); Woolridge, et al. v. Board of Education, 98 K. 397, 157 P. 1184 (1916); Thurman-Watts v. Board of Education, 115 K. 328, 222 P. 123 (1924); Webb v. School District, 167 K. 395, 206 P. 2d 1066 (1949).

Segregated elementary schools in cities of the first class are maintained solely pursuant to authority of Chapter 72-1724 of the General Statutes of Kansas, 1949, which reads as follows:

"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, Kans.; 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. (G. S. 1868, Ch. 18, § 75; L. 1879, Ch. 81, § 1; L. 1905, Ch. 414, § 1; Feb. 28; R. S. 1923, § 72-1724.)"


Appellants are of Negro origin and are citizens of the United States and of the State of Kansas (R. 3-4). Infant appellants are children eligible to attend and are now attending elementary schools in Topeka, Kansas, a city of the first class within the meaning of Chapter 72-1724, General Statutes of Kansas, 1949, hereinafter referred to as the statute. Adult appellants are parents of minor appellants and are required by law to send their respective children to public schools designated by appellees (R. 3-4). Appellees are state officers empowered by state law to maintain and operate the public schools of Topeka, Kansas.

For elementary school purposes, the City of Topeka is divided into 18 geographical divisions designated as territories (R. 24). In each of these territories one elementary school services white children exclusively (R. 24). In addition, four schools are maintained for the use of Negro children exclusively (R. 11, 12). These racial distinctions are enforced pursuant to the statute. In accordance with the terms of the statute there is no segregation of Negro and white children in junior and senior high schools (R. 12).

On March 22, 1951, appellants instituted the instant action seeking to restrain the enforcement, operation and execution of the statute on the ground that it deprived them of equal educational opportunities within the meaning of the Fourteenth Amendment (R. 2-7). In their answer, appellees admitted that they acted pursuant to the statute, and that infant appellants were not eligible to attend any of the 18 white elementary schools solely because of their race and color (R. 12). The Attorney General of the State of Kansas filed a separate answer for the specific purpose of defending the constitutional validity of the statute in question (R. 14).

Thereupon, the court below was convened in accordance with Title 28, United States Code, § 2284. On June 25–26, a trial on the merits took place (R. 63 et seq.). On August 3, 1951, the court below filed its opinion (R. 238-244), its findings of fact (R. 244-246), and conclusions of law (R. 246-247), and entered a final judgment and decree in appellees' favor denying the injunctive relief sought (R. 247).


The District Court erred:

  1. In refusing to grant appellants' application for a permanent injunction to restrain appellees from acting pursuant to the statute under which they are maintaining separate public elementary schools for Negro children solely because of their race and color.
  2. In refusing to hold that the State of Kansas is without authority to promulgate the statute because it enforces a classification based upon race and color which is violative of the Constitution of the United States.
  3. In refusing to enter judgment in favor of appellants after finding that enforced attendance at racially segregated elementary schools was detrimental and deprived them of educational opportunities equal to those available to white children.


The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone. The State of Kansas has no power thereunder to use race as a factor in affording educational opportunities to its citizens.

Racial segregation in public schools reduces the benefits of public education to one group solely on the basis of race and color and is a constitutionally proscribed distinction. Even assuming that the segregated schools attended by appellants are not inferior to other elementary schools in Topeka with respect to physical facilities, instruction and courses of study, unconstitutional inequality inheres in the retardation of intellectual development and distortion of personality which Negro children suffer as a result of enforced isolation in school from the general public school population. Such injury and inequality are established as facts on this appeal by the uncontested findings of the District Court.

The District Court reasoned that it could not rectify the inequality that it had found because of this Court's decisions in Plessy v. Ferguson, 163 U.S. 537 and Gong Lum v. Rice, 275 U.S. 78. This Court has already decided that the Plessy case is not in point. Reliance upon Gong Lum v. Rice is mistaken since the basic assumption of that case is the existence of equality while no such assumption can be made here in the face of the established facts. Moreover, more recent decisions of this Court, most notably Sweatt v. Painter, 339 U.S. 629 and McLaurin v. Board of Regents, 339 U.S. 637, clearly show that such hurtful consequences of segregated schools as appear here constitute a denial of equal educational opportunities in violation of the Fourteenth Amendment. Therefore, the court below erred in denying the relief prayed by appellants.


I. The State of Kansas in affording opportunities for elementary education to its citizens has no power under the Constitution of the United States to impose racial restrictions and distinctions While the State of Kansas has undoubted power to confer benefits or impose disabilities upon selected groups of citizens in the normal execution of governmental functions, it must conform to constitutional standards in the exercise of this authority. These standards may be generally characterized as a requirement that the state's action be reasonable. Reasonableness in a constitutional sense is determined by examining the action of the state to discover whether the distinctions or restrictions in issue are in fact based upon real differences pertinent to a lawful legislative objective. Bain Peanut Co. v. Pinson, 282 U.S. 499; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61; Asbury Hospital v. Cass County, 326 U.S. 207; Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580; Dominion Hotel v. Arizona, 249 U.S. 265.

When the distinctions imposed are based upon race and color alone, the state's action is patently the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government. Yick Wo v. Hopkins, 118 U.S. 356; Skinner v. Oklahoma, 316 U.S. 535. A racial criterion is a constitutional irrelevance, Edwards v. California, 314 U.S. 160, 184, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction. Buchanan v. Warley, 245 U.S. 60; Morgan v. Virginia, 328 U.S. 373. Only because it was a war measure designed to cope with a grave national emergency was the federal government permitted to level restrictions against persons of enemy descent. Hirabayashi v. United States, 320 U.S. 81; Oyama v. California, 332 U.S. 633. This action, "odious," Hirabayashi v. United States, supra, at page 100, and "suspect," Korematsu v. United States, 323 U.S. 214, 216, even in times of national peril, must cease as soon as that peril is past. Ex Parte Endo, 323 U.S. 283.

This Court has found violation of the equal protection clause in racial distinctions and restrictions imposed by the states in selection for jury service, Shepherd v. Florida, 341 U.S. 50; ownership and occupancy of real property, Shelley v. Kramer, 334 U.S. 1; Buchanan v. Warley, supra; gainful employment, Takahashi v. Fish and Game Commission, 334 U.S. 410; voting, Nixon v. Condon, 286 U.S. 73; and graduate and professional education. McLaurin v. Board of Regents, supra; Sweatt v. Painter, supra. The commerce clause in proscribing the imposition of racial distinctions and restrictions in the field of interstate travel is a further limitation of state power in this regard. Morgan v. Virginia, 328 U.S. 373.

Since 1940, in an unbroken line of decisions, this Court has clearly enunciated the doctrine that the state may not validly impose distinctions and restrictions among its citizens based upon race or color alone in each field of governmental activity where question has been raised. Smith v. Allwright, 321 U.S. 649; Sipuel v. Board of Education, 332 U.S. 631; Sweatt v. Painter, supra; Pierre v. Louisiana, 306 U.S. 354; Hill v. Texas, 316 U.S. 400; Morgan v. Virginia, supra; McLaurin v. Board of Regents, supra; Oyama v. California, supra; Takahashi v. Fish and Game Commission, supra; Shelley v. Kraemer, supra; Shepherd v. Florida, supra; Cassell v. Texas, 339 U.S. 282. On the other hand, when the state has sought to protect its citizenry against racial discrimination and prejudice, its action has been consistently upheld, Railway Mail Association v. Corsi, 326 U.S. 88, even though taken in the field of foreign commerce. Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28.

It follows, therefore, that under this doctrine, the State of Kansas which by statutory sanctions seeks to subject appellants, in their pursuit of elementary education, to distinctions based upon race or color alone, is here attempting to exceed the constitutional limits to its authority. For that racial distinction which has been held arbitrary in so many other areas of governmental activity is no more appropriate and can be no more reasonable in public education.

II. The court below, having found that appellants were denied equal educational opportunities by virtue of the segregated school system, erred in denying the relief prayed The court below made the following finding of fact:

"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 retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system."

This finding is based upon uncontradicted testimony that conclusively demonstrates that racial segregation injures infant appellants in denying them the opportunity available to all other racial groups to learn to live, work and cooperate with children representative of approximately 90% of the population of the society in which they live (R. 216); to develop citizenship skills; and to adjust themselves personally and socially in a setting comprising a cross-section of the dominant population (R. 132). The testimony further developed the fact that the enforcement of segregation under law denies to the Negro status, power and privilege (R. 176); interferes with his motivation for learning (R. 171); and instills in him a feeling of inferiority (R. 169) resulting in a personal insecurity, confusion and frustration that condemns him to an ineffective role as a citizen and member of society (R. 165). Moreover, it was demonstrated that racial segregation is supported by the myth of the Negro's inferiority (R. 177), and where, as here, the state enforces segregation, the community at large is supported in or converted to the belief that this myth has substance in fact (R. 156, 169, 177). It was testified that because of the peculiar educational system in Kansas that requires segregation only in the lower grades, there is an additional injury in that segregation occurring at an early age is greater in its impact and more permanent in its effects (R. 172) even though there is a change to integrated schools at the upper levels.

That these conclusions are the consensus of social scientists is evidenced by the appendix filed herewith. Indeed, the findings of the court that segregation constitutes discrimination are supported on the face of the statute itself where it states that:" * * * no discrimination on account of color shall be made in high schools except as provided herein * * * " (emphasis supplied).

Under the Fourteenth Amendment equality of educational opportunities necessitates an evaluation of all factors affecting the educational process. Sweatt v. Painter, supra; McLaurin v. Board of Regents, supra. 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. It necessarily follows, therefore, that the court should have concluded as a matter of law that appellants were deprived of their right to equal educational opportunities in violation of the equal protection clause of the Fourteenth Amendment.

Under the mistaken notion that Plessy v. Ferguson and Gong Lum v. Rice were controlling with respect to the validity of racial distinctions in elementary education, the trial court refused to conclude that appellants were here denied equal educational opportunities in violation of their constitutional rights. 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:

"Plessy v. Ferguson, 163 U.S. 537, and Gong Lum v. Rice, 275 U.S. 78, uphold the constitutionality of a legally segregated school system in the lower grades and no denial of due process results from the maintenance of such a segregated system of schools absent discrimination in the maintenance of the segregated schools. We conclude that the above-cited cases have not been overruled by the later case of McLaurin v. Oklahoma, 339 U.S. 637, and Sweatt v. Painter, 339 U.S. 629."

Plessy v. Ferguson is not applicable. Whatever doubts may once have existed in this respect were removed by this Court in Sweatt v. Painter, supra, at page 635, 636.

Gong Lum v. Rice is irrelevant to the issues in this case. There, a child of Chinese parentage was denied admission to a school maintained exclusively for white children and was ordered to attend a school for Negro children. The power of the state to make racial distinctions in its school system was not in issue. Petitioner contended that she had a constitutional right to go to school with white children, and that in being compelled to attend school with Negroes, the state had deprived her of the equal protection of the laws.

Further, there was no showing that her educational opportunities had been diminished as a result of the state's compulsion, and it was assumed by the Court that equality in fact existed. There the petitioner was not inveighing against the system, but that its application resulted in her classification as a Negro rather than as a white person, and indeed by so much conceded the propriety of the system itself. Were this not true, this Court would not have found basis for holding that the issue raised was one "which has been many times decided to be within the constitutional power of the state" and, therefore, did not "call for very full argument and consideration."

In short, she raised no issue with respect to the state's power to enforce racial classifications, as do appellants here. Rather, her objection went only to her treatment under the classification. This case, therefore, cannot be pointed to as a controlling precedent covering the instant case in which the constitutionality of the system itself is the basis for attack and in which it is shown the inequality in fact exists.

In any event the assumptions in the Gong Lum case have since been rejected by this Court. In the Gong Lum case, without "full argument and consideration," the Court assumed the state had power to make racial distinctions in its public schools without violating the equal protection clause of the Fourteenth Amendment and assumed the state and lower federal court cases cited in support of this assumed state power had been correctly decided. Language in Plessy v. Ferguson was cited in support of these assumptions. These assumptions upon full argument and consideration were rejected in the McLaurin and Sweatt cases in relation to racial distinctions in state graduate and professional education. And, according to those cases, Plessy v. Ferguson is not controlling for the purpose of determining the state's power to enforce racial segregation in public schools.

Thus, the very basis of the decision in the Gong Lum case has been destroyed. We submit, therefore, that this Court has considered the basic issue involved here only in those cases dealing with racial distinctions in education at the graduate and professional levels. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Board of Education, supra; Fisher v. Hurst, 333 U.S. 147; Sweatt v. Painter, supra; McLaurin v. Board of Regents, supra.

In the McLaurin and Sweatt cases, this Court measured the effect of racial restrictions upon the educational development of the individual affected, and took into account the community's actual evaluation of the schools involved. In the instant case, the court below found as a fact that racial segregation in elementary education denoted the inferiority of Negro children and retarded their educational and mental development. Thus the same factors which led to the result reached in the McLaurin and Sweatt cases are present. Their underlying principles, based upon sound analyses, control the instant case.


In light of the foregoing, we respectfully submit that appellants have been denied their rights to equal educational opportunities within the meaning of the Fourteenth Amendment and that the judgment of the court below should be reversed.

William T. Coleman Jr.,
Jack Greenberg,
George E. C. Hayes,
George M. Johnson,
William R. Ming Jr.,
Constance Baker Motley,
James M. Nabrit Jr.,
Frank D. Reeves,
John Scott,
Jack B. Weinstein, of Counsel.

Robert L. Carter,
Thurgood Marshall,
Spottswood W. Robinson III,
Charles S. Scott,
Counsel for Appellants.

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