Doe v. Bolton – Oral Argument – December 13, 1971

Media for Doe v. Bolton

Audio Transcription for Oral Reargument – October 11, 1972 in Doe v. Bolton

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Warren E. Burger:

We will hear arguments next in number 40, Mary Doe against Bolton.

Mrs. Hames, you may proceed whenever you are ready.

Margie Pitts Hames:

Mr. Chief Justice and may it please the Court.

This is an appeal from a decision of the Northern District of Georgia and also a three-judge court which declared portions of the Georgia Abortion Statute unconstitutional that upheld certain procedural requirement and refused in issuing injunction in support of the declaratory judgment.

The parties here included Mary Doe, a pregnant woman, a married pregnant woman, doctors, nurses, ministers, social workers and family planning and abortion council organization.

They found this action as a class action seeking to represent members of their various classes.

The District Court below found that the right of privacy included the right to terminate an unwanted pregnancy and that the statute which limited the reasons therefore was unduly unrestricted and overly broad.

The District Court found that Mary Doe and her class was entitled to declaratory relief.

The physicians even though they were found to have standing and other parties were said to have insufficient collision of interest.

This question was brought to this Court also.

This case stands on jurisdictional grounds similar to the Roe versus Wade case which has just been argued except that no plaintiff in this case had pending from the prosecutions outstanding against them.

It is our position that the jurisdiction of this Court is much like the case in Wisconsin versus Constantineau where that case –-The statute in that case outrighted against the third parties rights.

Excuse me, these are class actions too?

Margie Pitts Hames:

Yes, Your Honor they are.

The statute in Wisconsin versus Constantineau outright against the third parties rights and sure you would recall that with the posting of the alcoholic case.

The criminal penalty there ran against the bartender who sold alcoholic beverages so that the woman, that posted party would never have an opportunity to assert her right, that was a woman in the case, in the defense of the criminal action against the bartender.

Here we have a like situation of the third parties rights.

Mary Doe who would never have an opportunity, we say adequately to assert her constitutional rights in the defense of the doctor’s criminal prosecution.

Georgia like Texas, it is not a crime for a woman to submit to an abortion or to abort herself.

Would she be guilty of a conspiracy to perform that abortion?

Margie Pitts Hames:

I cannot cite you a case expressed but it is my recollection that the Georgia Courts have held that she would not be so guilty.

Her husband or her paramour could have been charged but to my recollection is not going to charge against the woman as a conspirator.

Mrs. Hames, the hospital here was not named as a defendant, was it?

Margie Pitts Hames:

No, Your Honor, it was not.

Any reason for that?

Margie Pitts Hames:

The hospital was not thought to be an indispensable party since the hospital abortion committee was a statutory committee created by the statute or the abortion statute.

It was our opinion that under the Georgia law dealing with the attorney general in his powers which gave him powers over our board’s committee and commissions as to matters of law that this was sufficient to bring that interest into operation.

Also, the abortion committee is a revolving committee and it would involve the various doctors from time to time.

Most hospitals in Georgia have their staff members sit on the abortion committee so that it changes from month to month or from day to day even.

So that it was felt that bringing the State Attorney General in as a defendant in the case would be sufficient to raise the state statutory abortion committee in the exercise of a statutory authority given to them.

Margie Pitts Hames:

Mary Doe was a 22-year-old woman.

She was married and pregnant at the time that this action was filed.

Her reasons for abortion were several.

She had three previous children.

Two of whom had been taken from her custody by state authorities because of her inability to care for them.

And the third she had placed with adopted parents at birth.

She applied to the public hospital for an abortion which she was eligible for free medical care.

Her application there was denied.

She later planned through her private physician to a private hospital abortion committee where her abortion application was approved.

She did not obtain the abortion, however because she did not have the cash to deposit entire hospital bill in advance.

The Georgia statute is —

Is there a real Mary Doe or is it?

Margie Pitts Hames:

Yes, Your Honor there is and found in the original file which has been sent up to this Court.

This is sealed affidavit which is signed in Mary Doe’s real name.

It was signed and filed with the Court originally in the proceeding.

She was present at the hearing of this case and we offered to have her testify and disclose her identity and the Court did not deem that necessary.

We found that in the fictitious name to protect her then not to be involved in embarrassment but that originally, in fact they do not follow in this Court.

Warren E. Burger:

Notice in the record that the state has removed her other three children or at least two of them from her custody because she was unable to care for them.

Was that over her objections or with her consent or just no opposition?

Margie Pitts Hames:

It was not with her consent Your Honor.

As I recall, that was for the protection of her children.

Warren E. Burger:

Removed under the Braham Welfare Provision?

Margie Pitts Hames:

Yes, Your Honor.

Yes.

Mr. Chief Justice.

Our major contingent here or appeal here is directed primarily at the procedural requirements less standing by the District Court below.

Our statute does provide that right as a ground for abortions.

Also, a fetal malformation endangered to the life of the woman or serious and permanent danger to her health.

These were the reasons that the Court declared unconstitutional however, there were other good reasons –- good and sufficient reasons for an abortion.

The requirement said unless standing are the residency requirement that the woman’s doctor have at least two consultants who concur on his opinion and approval by hospital abortion committee of at least three more doctors and the accredited licensed hospital provision.

Margie Pitts Hames:

This accreditation requirement is by the joint commission on hospital accreditation of Chicago, Illinois Corporation which is a private organization.

There are other many reporting requirements and miscellaneous provisions left in the statute but I wish to direct the court’s attention to the hospital abortion committee, the accreditation and residency requirement.

It is the appellant’s contention that it is not necessary to debate to fetal life problem in this case because if the District Court below recognized, this statute is aimed at protecting the health of women.

Judge Smith in delivering the opinion of the Court found that the whole thrust of the present Georgia Statute is to treat the problem as a medical one.

The only compelling state interest however that has been asserted by the state, is the interest in preserving fetal life and then taking this approach to the statute, the state finds itself in a very inconsistent position we feel, that is affirming that fetuses from the moment of conception have the right to develop and be born and yet having abandoned such right as to those fetuses the product of rape or which may like to be malformed or those which may endanger the life or health of the woman.

Further the state is in the inconsistent position of financing a family planning program which daily distributes –.

Excuse me.

Under this statute though, does the fetus have collective right?

May that be afforded?

Margie Pitts Hames:

Yes, Your Honor.

Without more, whether or not involving health of the mother?

Margie Pitts Hames:

That is correct.

Right both forceful and statutory which is girls 13 years and younger in Georgia.

That is by specific provision I gather?

Margie Pitts Hames:

Yes, that is one of the exceptions.

I will always model after the Model Penal Code of American Law Institute version.

The further inconsistency involves the financing of the family planning program which distributes further Department of Public Health, the intrauterine contraceptive device which substantial medical opinion has destroyed the product of conception or prevent implantation of the fertilize egg or embryo.

We feel that if the state has such an unfettered interest in fetal life, that these are very inconsistent provisions.

Thus it is our contention that the statute must be viewed as a health of the woman directive purpose statute.

I would point out that abortion is not a new medical procedure.

Of course we have heard a lot about it in the last few years.

But it is one that has been extensively performed throughout the history of our country and of course illegally.

Because of the abortion statutes, the great majority of abortion had been performed by unskilled person, those at least equipped to take care of the health problems.

Doctors, because it is a crime, have not been performing abortion.

Abortion Statutes however, had not stopped the abortions.

They have not served their purpose or they are not reaching the purpose of protecting fetal life.

The fact is a valid purpose.

To ascend that these statutes do protect fetal life is to ignore the actual fact.

In our brief and in the many amici brief filed in this case, there is extensive citation to statistics about illegal abortion and the admission of patient or septic abortions that is the incomplete abortion in the hospital which show that illegal abortions are being performed.

What we are actually talking about is getting abortion out of the illegal arena into the health service arena.

Margie Pitts Hames:

And this is the purpose of this litigation.

I would point out that illegal abortion and the complications there from is the largest single cause of maternal mortality in the United States.

Therefore abortion statute have resulted and one of our notions, largest health problems.

It is our contention that the procedural requirements less standing by the Court below had virtually manipulated out of existence the right to terminate an unwanted pregnancy as recognized by the court.

The decision below characterizes the decision to terminate an unwanted pregnancy as a personal-medical decision.

In commenting about the procedural requirement, the hospital abortion committee, the limitation to the accredited hospital, the Court said that the state has an interest in the quality of healthcare to be administered to its citizen.

But this is not to imply that the present procedures are the best means of control.

The present seems to be unnecessarily cumbersome and possibly a due process hazard.

This was the observation on the court in a footnote and it is our contention that these procedures are so cumbersome, counseling and time consuming as to the date, Mary Doe and members of her class and doctors and members of their class of various rights.

Of course there is an inherent time factor in pregnancy and this must be a factor considered.

First trimester, abortions are safer than late abortions.

Therefore it is imperative that the right to terminate an unwanted pregnancy be efficiently exercised.

Mortality and complications for late abortions are three times greater after 12 weeks.

And it is only about the sixth or the eighth week that pregnancy test actually become accurate or the degree of accuracy is such that to predict whether one is pregnant or not.

So that we actually have about 12 weeks —

Does the record assume that?

Margie Pitts Hames:

Does the record?

I am sorry.

Does the record disclose that it is medically established that pregnancy tests are not very accurate until after six weeks?

Margie Pitts Hames:

No, Your Honor.

We were not permitted to introduce our evidence at the hearing that was — we have many witnesses to testify that various aspect of abortion and pregnancy.

I am sure that this Court can take judicial notice on many medical intricacies which would disclose that this is fact.

Well, I am asking if it is an established medical fact.

Margie Pitts Hames:

Yes, it is.

From my recollection, from my understanding that this is accepted procedure that a pregnancy is not easily detectable until after the sixth week and accuracy is about the eighth week.

The requirement that a physician have two consultants and then presents the case to the abortion committee.

It is un-civic, an unsuited procedure for medical treatment.

Again, has it not been followed through years in accredited hospital?

Margie Pitts Hames:

There are many committees in hospitals or that have committees and they have other kinds of committees but these do not make decisions about constitutional right on whether or not, it would be exercised and in the hospital abortion committee being a statutory committee is beyond of the state government, we can contend and would be different from an administration committee from which it is —

As I understood, you are arguing this as being unduly cumbersome and the response is, is it not the fact that this has been a routine in accredited hospitals all over the countries for many, many years?

Margie Pitts Hames:

It is my understanding that the accreditation standards of the joint Commission do not require appointment of abortion or other committees.

This is a practice that has developed and grown up and I think it grew up prior to the American Law Institute specifically as to abortion and it was to relieve doctors from the responsibility of making this decisions solely and they were afraid of assuming that responsibility because of the criminal sanctions imposed by law.

Therefore they have their hospitals constitute abortion committee.

They would have to share the responsibility for such a decision.

The operations of committees or the hospitals, of course, would be an internal matter for hospital and it might be possible that a committee, that a hospital could continue to have a committee to govern abortions in that hospital.

However, it is our contention that the right to terminate a pregnancy should not be controlled by statutory committee from which there is no appeal, where there is no opportunity for a hearing, the woman is never seen by the members of the committee.

She is never told where her abortion was denied.

And her doctor at many times is not even permitted to come and present her case.

If this committee,we feel is not a vehicle which could properly, determine this constitutional right.

We feel that it is as the court said below in medical-personal decision that many factors in deciding whether or not to have an abortion are personal like your desire to have only two children on the family size.

Your economic status is a matter of personal knowledge.

This is not a matter that can be effectively presented to a committee.

A doctor could not possibly present all these matters to a Hospital Abortion Committee.

We feel that this committee is just an improper vehicle for determining the right to terminate an unwanted pregnancy.

Additionally, there is a problem of the doctor and he feels that his patient should have an abortion.

She wants an abortion but he must submit his decision not only to concurrence of two more consultants but to the hospital abortion committee.

These are his competitors, his professional competitors.

There are doctors in his community who decide what he will do in his medical practice.

It is the position of the doctors that this infringes their right to practice medicine in accordance with their best medical judgment.

It permits the committee to substitute their judgment, their religious or personal views for those, of his and the decision rates between himself and his patient.

Unless that that argument would be true about the maintenance of professional standards generally in the medical profession would it not?

Disciplinary proceedings and everything else?

Is there a way those who pass upon malpractice or the lack of professional confidence or ethical judgment on the part of doctors are his competitors?

Margie Pitts Hames:

That is true but then could he have some voice in arriving at the standards of his profession and that the application of his professional standards would not be designed as application of the abortion committees on personal views.

I think that these are matters that are better left to the profession.

I would think that the medical profession can develop its standards, the American College of Obstetricians and Gynecologists has taken a policy that when an abortion is requested by a woman and there are no contra-medical indications then the abortion would be performed without even the necessity of the consultant, where it is recommended by the doctor then the American College recommends that the doctor have a consultant on that decision.

I think that the profession can develop standards and that this is where it should be controlled rather than by hospital abortion committee sitting in a quasi-judicial situation.

I would point out that the hospital (Inaudible) Georgia requirement limits abortions in Georgia and then as many women access to abortion services, 105 of Georgia’s candidates have no accredited hospital.

So that those women who are dependent upon their county hospital for free medical service are denied by virtue of this hospital accreditation requirement.

There —

You mean those counties have no hospitals at all?

Margie Pitts Hames:

There are 284 hospitals and I have not made the comparison to see.

Only abortions that only been found in 22 counties in Georgia.

But is it not possible that some of these counties to which you refer do not have hospitals at all?

Margie Pitts Hames:

Yes, it is possible Your Honor that some 8 or 10 or the smaller, less populated hospital counties could have that.

Well if that is alright in Georgia with the large number of counties you have, I think you have more counties than others do, do you not?

Margie Pitts Hames:

Down the lane we do.

You are far better developed than many other states.

I just question your general statement about the denial of relief?

Margie Pitts Hames:

One further thing as to hospitals.

The New York experience has shown that abortion in clinics is a relatively safe — is a safe procedure.

Early abortions are not required to be performed in hospitals.

And if we have this requirement or did not have the limitation to accredit the hospitals in Georgia then we can have abortion clinics in the more rural areas.

This Georgia legislation is relatively recently?

Margie Pitts Hames:

It was adopted in 1968, April of 1968.

May I declare, that the relief that you are asking, you have got a declaratory judgment bearing some provisions to declare the statute unconstitutional?

Margie Pitts Hames:

That is correct.

You are asking a declaratory judgment declaring the entire statute unconstitutional?

Margie Pitts Hames:

Yes.

And then you want us to?

Margie Pitts Hames:

Yes, Your Honor.

And then you want us to order and issue and injunction against all future enforcement statute?

Margie Pitts Hames:

That is correct or other application of the law meaning by abortion committees of hospitals.

Yes.

And as I understand it, you are arguing the constitutional rights of Mary Doe and the physicians here?

Margie Pitts Hames:

That is correct.

Am I correct in not detecting any constitutional argument on behalf of your other plaintiffs, your registered nurses, your counselors and the rest?

Margie Pitts Hames:

As to the nurses, we would say that they still have a controversy or a need for relief because they too are not permitted to practice their professions.

Of course, they would not be independently performing abortion but would be assisting doctors so that there is.

As to the ministers and other counselors and social workers who wish to counsel abortion based under the decision below which said that abortion are obtainable for any reason.

Margie Pitts Hames:

They would not now fear the prosecution under the conspiracy statute, the aiding and abetting statute for counseling abortion.

There is no really real relief needed here.

Well, but this may be needed, but are you making a constitutional argument on behalf of the nurses, counselors, and ministers and what have you?

Margie Pitts Hames:

On behalf of the nurses, yes, Your Honor and as to the counselors, it is our contention that they had a sufficient collision of interest for the declaratory relief that have been granted as to them.

Well do I detect that you are not making an constitutional argument with respect to that?

It is only a need for declaratory relief, is that not a state law?

Margie Pitts Hames:

We occupy a position similar to Texas as to declaratory relief.

We have a statute in Georgia which says that equity will not interfere in the administration of criminal laws.

Yes, criminal laws.

This has recently been construed in 1968 to prohibit a declaratory judgment and equitable relief as to a criminal statute.

So that there is no alternative to go into state court for declaratory relief and this is the only forum in which we contend that plaintiffs to assert their right.

Well, I still do not whether you are making a constitutional argument?

Margie Pitts Hames:

Yes, we are making a constitutional argument for everyone in the —

With respect to all?

Margie Pitts Hames:

With respect to including the First Amendment argument which was made below as to counseling abortion.

Where, I did not get that in your brief.

I will be glad if you straighten that out.

Margie Pitts Hames:

Thank you.

Potter Stewart:

Mrs. Hames, just before you sit down, perhaps you made this clear with yourself, but it is not very clear to me.

You are appealing here because while you want at least a partial victory by way of a declaratory judgment, you were denied of injunction and that is what technically giving you a right to appeal directly to this Court, the denial of the injunction.

You are arguing now that you should have wholly had a complete victory on the merits of the entire statute, should have been stricken and also that an injunction should have issued.

And I am asking you in that connection, that second connection whether the Georgia authorities had disregarded or manifested an intent to disregard the Federal District Courts’ declaratory judgment of the invalidity of the substantive part of this statute?

Margie Pitts Hames:

No Mr. Justice, there has been no manifestation.

Potter Stewart:

You were here I think in the argument of the previous case where that was true and apparently in Texas.

Margie Pitts Hames:

Yes, I think the need for injunctive relief arises from the fact that out of the 24 appellate decisions on abortion in Georgia, 13 of those have involved doctors so that there — we have a history of prosecution of doctors in Georgia.

Additionally, the law has continued to be in force and abortions are being denied for unknown reasons by the hospital abortion committee that presents a very real need for injunctive relief at —

No.

Do I understand it correctly that no hospital abortion committee has said we are denying this because we are not going to follow the District Court judgment in this case?

Margie Pitts Hames:

We do not know why they are denying the abortions but are not required to disclose and they do not disclose.

And you said a 24 Appellate Decision 13 involved doctor?

Margie Pitts Hames:

Yes, Your Honor.

What did the other 13 involved?

Margie Pitts Hames:

Contractors.

The other 11?

Margie Pitts Hames:

Yes, abortionists, illegal abortionist.

Non-physician?

Margie Pitts Hames:

Yes, non-physician.

I see.

Margie Pitts Hames:

Thank you.

Warren E. Burger:

Mrs. Beasley.

Dorothy T. Beasley:

Mr. Chief Justice and may it please the Court.

The very knot of the argument before this Court and the issue facing this Court is the value which is to be placed on fetal life.

The state in this case takes the position that fetal life is to be protected, that it is a protectable interest.

The question is whether there should be no value placed on it so that a woman may, in her own decision and with her own doctor determine without any intervention by the state that she may abort a pregnancy after she has conceived and is carrying a live human fetus.

Or rather on the other hand, the state itself may protect the interest of that fetus in any regard.

The Court below determines that the state interest or the state was attempting to go too far in protecting the fetal life.

But that it could protect to some degree because it could prohibit those abortions which were not necessary in the best critical judgment of the physician taking into consideration that not only medical factors but really everything involved in the particular case.

The woman’s economic position, her family physician, and so on.

But at any rate, the Court did indicate that the state had an interest in protecting fetal life at least to that extent.

Now, if the Court of course said well, you can have an abortion in any event whether it is necessary or not then of course it would be consistent with the argument that is made by the appellants.

However, they said the state does have an opportunity to control those abortions which are not necessary.

They may prohibit them, period.

I think a great mistake has been made by that Court and by appellants in saying that the purpose of the statute is single.

That is there is only a help measure.

In the first place it is in the Criminal Code.

As a separate bill, it was introduced to amend a part of the criminal code.

The original bill or the original statute in 1876 was a criminal action.

And it speaks of the unborn child.

It does not speak of a thing or an organism but it speaks of protecting the unborn child and that is at least one of the interests of the state in the statute.

I submit that there are three, if you read the whole statute in its entirety.

Dorothy T. Beasley:

Number one and the underlying reason is the protection of fetal life from wanting or arbitrary destruction simply upon the convenience or the desire of the woman who is bearing it.

Secondly, of course the state is interested in protecting women who are going to undergo a very serious procedure at any stage and that is the abortion procedure and that of course is indicated by the very serious procedure that is set out by not only having her own physician think that she could have one but in getting consultants and also approved by the hospital abortion committee and requirement to be done in the hospital which by the way has certainly been the position of the American Life Association and House of Delegates in 1967 which was just one year prior to the time this statute was enacted and has, in my understanding at least, been in the position of the American College of Obstetricians and Gynecologists in their standards and in their latest standard with regard to abortions as I read it and of course this is not before the court.

And I just make them aside for a moment to say that that is one of the troubles with this case.

It is facial attack on the constitutionality statute and all the statistics and what the doctors think on one side or on the other and whether the abortions are safer than child birth and so on are not really before any court because they were not introduced into evidence in the court below.

So they are not part of the record.

Now certainly the appellants tried to present evidence and in the only hearing that was held before the Lower Court which nearly lasted about two hours at the most, there was an argument but both sides came prepared to present evidence and of course in order to attack the constitutionality as to its effect or its operation in Georgia or its applicability, I submit that we would need a fuller record and that is an attack on the face of the statute.

It cannot be supported without looking at these further facts unless we can say that the state has no interest whatsoever in protecting fetal life.

And I think that the interest which the fetus has as human fetus in this instance becomes broader as time goes on.

I think the state has a greater obligation to protect that fetal life today than it did in 1876.

And for this reason, it is more protectable now than it ever was before.

There are more methods now that can be used to protect them including blood transfusion and surgery while it is still in the womb.

Now this I think has been brought to the Court’s attention in some degree that has filed by the physician.

But at any rate there are more possible ways now for example, the very growth of the science of Fetology which is of course the treatment of the fetus before it is born.

So, its development, it has been created and its development up to the period of birth is such now than it can be protected by the state and so I think there is a greater duty upon the state to do so.

Now the question which I think comes here with regard to these exceptions is the balancing of competing interests.

The state certainly takes no position that the woman has a constitutional right to abortion.

We have not been shown where that right emanates from.

If it emanates from the considerations which was given in the Griswold case, I think it is erroneous because in that case, there was not the introduction of another entity.

A person has a right to be let alone, certainly.

But not when another person is involved or another per human entity is involved.

The same thing with the marriage relationship, here a third entity is involved and the state says you may not indiscriminately dispose off or discontinue the life of that third entity except in various special circumstances.

Now this is where we get to the competing interest and the balancing of the interest which by the way think was a statement in recognition that former Mr. Justice Clark made in his law review article about the state being in the position to balance imputing interests.

I would say if you have a fetus growing in the woman on one side and a woman that she does not want it, you got a class of interest there.

Now, the state has taken a position where we are not going to prohibit all abortions because we understand that there are circumstances in which a woman should be able to destroy that fetus because her interest is superior.

And there are three broad reasons now that are given in our statute of course which was struck out by the Court below so that we cannot here really argue those although we attempted to bring an appeal here which was denied for lack of jurisdiction and our appeal is awaiting, its further pursuit in the Fifth Circuit.

Well, Mrs. Beasley, I do not see why you cannot argue that here.

Your position is that the Court was right in not issuing an injunction and you can support that position by the arguments you want.

You are the appellee, you are not the appellant.

Dorothy T. Beasley:

Thank you very much.

Underlying the exceptions or the reasons for the exception in the statute is the broad principle of self-preservation.

Dorothy T. Beasley:

We recognize that a human being has a right ultimately of self-defense and I think that these exceptions are manifestations of that.

We allow a woman to abort a fetus, if it is a product of rape.

Now that has been construed in our state, it will also include incest.

This is the product of course in that situation of an unwarranted, uninvited attack on her.

And to require her to bear that child is almost a punishment or at least she would often require regard it as a punishment so here she can defend herself from that fetus by destroying it.

Secondly, as far as the fetus which is gravely malformed and will be permanently malformed or deficient, the state recognizes, I think the very practical exception because it recognizes that in most cases, she is the one who is going to have to raise that child and the state is not now in a position where it can automatically taking all of these children and of course it would be a great deal of heart break to her and so it would involve her own well-being and the state says, in these circumstances, science is not enough developed so that we can correct these deformities.

The state cannot help enough in these circumstances and therefore we regard it as an exception and allow you to defend yourself against the circumstances which will arise if you have to bear and keep this child.

The third one of course is the preservation of her own life or her own health.

And of course it has been construed not judicially but as a matter of factors that help here includes mental health.

Now —

Do you say that the first one you mentioned, which was the third one under the statute, pregnancy resulting from forcible statutory rape also include by construction includes pregnancy resulting from incest?

Dorothy T. Beasley:

Yes, I did and I say this only from an observation of the reports that has been collected by the Georgia Department Public Health to whom all abortions of course are reported. That again is not in the record because there was no evidence presented.

However, particularly since the period of the Court decision.

The reasons that are reported in by the physicians that are performing abortions, have been expanded so that not only have you got rape and incest separate and not only do we have for mental problems or physical problems so that a maternal –you also have economic and social now being given as a separate category and reason.

So that brings me to the point that an injunction is not needed also.

Yes, but it incidentally, I gather that the Court has said that is the correct interpretation of this statue?

Dorothy T. Beasley:

That is right but no one has brought the matter to the attention of the Georgia Courts and I would dispute.

Would you say this has happened since this Court’s decision though, do you not?

That is it, so it is the effect of he decision, is it not?

Dorothy T. Beasley:

As far as the social and economic things are concerned.

I think your question as to the rape or incest as suggested before, I am not certain of that but I think it would because the Court decision would make no distinction or broaden it necessarily.

Well, the statute does not mention incest.

Dorothy T. Beasley:

That is correct but —

Clearly, it does not mention economic or social conditions –-

Dorothy T. Beasley:

Clearly.

— and now if abortions are taking place based upon those extra statutory reasons, I would suppose that this has began to happen since this case was decided by the District Court?

Dorothy T. Beasley:

Yes, indeed, it has happened since then and I think that is one of the very reasons why no injunction would be necessary.

In the first place, the parties against the —

Well, does it have to say the Court to the extent of the judgment below, affirmed that Georgia accepted and it was not prosecuted on the statute?

Dorothy T. Beasley:

Until it has changed, otherwise but if the state of course takes position that the statute is constitutional as it was written.

Yes, but my (Inaudible) was that the judgment below were to be affirmed?

Dorothy T. Beasley:

If the judgment below were to be affirmed, certainly, there is no indication that the state and the District Attorneys and the hospital abortion committees would not follow the mandate of this Court as has been done.

No prosecutions have been brought despite the fact of the reporting of these other extra statutory abortions.

My assumption is relied on the judgment below and the positions I gather — that performing abortions and relying on the judgment has (Inaudible)

Dorothy T. Beasley:

Yes, indeed.

And so there would be no purpose for an injunction because it is being abate of a declaratory judgment.

Moreover, an injunction against anyone of the defending parties would really lead nowhere because the Attorney General of course does not want to bring prosecutions in the first place and has no connection whatsoever with the hospital abortion committee despite what the Court below believed.

Another suit as a matter of fact was instituted last year against the Fulton and DeKalb Hospital authority, a body of politic and corporate doing business with Grady Memorial Hospital.

And that is where you get the abortion committee in the hospital.

And the attorney general has not idea what the abortion committee in this particular case did or how much it knew and that again is one of the great problems with this case.

We now no facts.

There are no facts in this case.

No established facts.

Why would the three-judge court did not commit with the introduction of those?

Dorothy T. Beasley:

The Court apparently believed that it was not necessary because they were going to consider as a facial attack only.

And I think the Court made a mistake in that circumstance.

I think they have confused these two things.

One, whether you need facts to establish a justiciable controversy and two, whether you need facts and a concrete circumstance in order to decide facial unconstitutionality.

And I think they jumped to the second situation and said well, we are going to just look at the statute anyway and so the facts do not matter.

And I would submit that, that is a wrong circumstance even the —

Do you say there is, there was, or was there a case of controversy?

Dorothy T. Beasley:

I say there was not.

There was not a case of controversy.

The Attorney General, the District Attorney of Fulton County, and the Chief of Police of the City of Atlanta had no case or controversy whatsoever with Mary Doe or any of the doctors or nurses or organizations or ministers or counselors.

Well, let us say a person alleges that she is pregnant and has tried to get an abortion, and has been refused?

Dorothy T. Beasley:

I think the controversy is with the, whoever the denied the abortion.

That is it may have been the committee.

I think that that will have to –- They will have to an important party.

But let us assume that their refusal to abort is wholly consistent with the law?

And that the refusal was precisely what the law required them to do, then where was the controversy?

Dorothy T. Beasley:

I think you would indeed have a case of controversy there.

With the Attorney General?

Dorothy T. Beasley:

No sir, not with the attorney general, with those who were implementing the law.

The attorney general would be interested and would undoubtedly as required by law.

He would file a brief.

What if the doctor refuses an abortion because he is afraid of criminal prosecution, I supposed one effective way to avoid resolve a controversy is to enjoin the person who might prosecute.

Dorothy T. Beasley:

And that is not the attorney general.

Then who is it?

Dorothy T. Beasley:

It would be the district attorney.

He is one of the appellees here?

Dorothy T. Beasley:

Yes, he is one of the appellees Mr. Justice.

It is the same thing as the chief of police?

Dorothy T. Beasley:

That is indeed correct.

Of course the chief of police would not bring a prosecution and there were no prosecutions or threats.

Well, I know but is there not a case that a woman who has been refused of abortion and because a doctor is afraid of being prosecuted, do you not have a controversy of the law enforcement officers who are enforcing the law?

Dorothy T. Beasley:

Yes, you may but there was not enforcement during which was threatened or impending.

Well, here with conduct pursuant to the law though namely refusal of an abortion?

Dorothy T. Beasley:

But we do not know that it was pursuant to the law.

You are assuming I believe another circumstance that there was compliance with the law.

What did the complaint allege?

Dorothy T. Beasley:

It alleged that that was the reason but again they also stated that they did not know —

When do you decide defending, after a trial or on the basis of complaint?

Dorothy T. Beasley:

I am sorry I did not hear your question.

When do you decide defending after a trial?

Dorothy T. Beasley:

No sir, I think it must appear in the –- as the case proceeds.

Let as assume the facts are true as alleged by the complaint, a case of controversy?

Dorothy T. Beasley:

I think there are not enough facts there.

No.

No case of controversy.

Not with these defendants.

Warren E. Burger:

We will see you after lunch.

Dorothy T. Beasley:

Thank you.

Warren E. Burger:

You may proceed Mrs. Beasley.

Dorothy T. Beasley:

Thank you Mr. Chief Justice.

We were seeking, I think when we started our case of controversy and I think that is very clear that a case of controversy would exist with a hospital of abortion committee and all the constitutional questions which are sought to be raised and argued in this case could be brought there.

I think also that —

Suppose if your requirement to satisfy and show the threat would then conclude that it would be beyond the confidence of the three-judge court and the decree.

Dorothy T. Beasley:

That is correct if there were a threat.

But here we have enough case of controversy and a threat of course, would involved the anti-injunction statute I think rather than whether it could by —

Well, a threat to make it a case upon this?

Dorothy T. Beasley:

A threat might.

If the proper price were involved but here for example we do not have as far as we know we do not have Mary Doe’s doctor.

Someone who was taking any action and even in the cases which the Court recently has considered about the facial constitutionality for some criminal statutes, there was an actual case of controversy or not even with regard to the —

Well, Mary Doe was real?

Dorothy T. Beasley:

I do not know.

I thought it was considered?

Dorothy T. Beasley:

No sir.

We know no facts about her at all.

We assume that since there is an affidavit concerning it that those facts may very well be true but we have had no opportunity to see whether there are other facts.

As I remember your colleague on the other side answered that there was an offer of proof to the District Court that she was real.

And that he said that was not necessary.

Dorothy T. Beasley:

That is correct.

That means he accepted that he accept the fact that this was a real human being.

Dorothy T. Beasley:

The Court below accepted as far as I know the statements that were made in allegation as being true.

So that no proof was submitted, no interrogatories were answered.

We had no opportunity to find out.

But it was.

But the plaintiff expressed her willingness and then offered just to show this, is that correct?

Dorothy T. Beasley:

Yes, through counsel.

That is correct.

I understand she was in the courtroom?

Dorothy T. Beasley:

That is what counsel informs us as correct.

She was not pointed out.

She did not stand up in Court for example and indicate herself to the Court but we just understand that she was there, we do not know who she was.

There was a courtroom full of people.

So we could not follow up to see it in any way.

But once it is accepted, what difference does it make to the case if any?

Dorothy T. Beasley:

Pardon.

I am sorry.

Once that is accepted as a fact, why will that make any difference to the case?

Dorothy T. Beasley:

If her allegations are accepted?

If the proffer, the Court said that the proffer proof was unnecessary then why do we need to be concerned about whether she is a fictitious or a real person?

Dorothy T. Beasley:

Because it was not a complete divulgence of the facts surrounding her circumstance.

For example, we do not know that the hospital abortion committee knew as much about her as in her allegations.

We do not know the real reason for which they denied her of the abortion.

Particularly since she was assertedly granted the approval of another hospital abortion committee which again makes her situation somewhat moot because she did —

If you should boost on with what your point of there is no case of controversy.

You can see that the remedy given was proper?

Dorothy T. Beasley:

No sir, Mr. Justice Douglas, we think that the statute itself in total does not render any lack of Due Process or Equal Protection on its face to any of these plaintiffs or anyone else.

We think that the statute is a constitutional one as of writ —

So you lose on that, you think the remedy given was improper?

Dorothy T. Beasley:

If this Court decides that the restrictions that were made on the statute are correct and a declaratory judgment should issue, we would think that would indeed be proper and that an injunction would not be necessary.

Do you think an injunction would be proper in light of 1983?

Dorothy T. Beasley:

We think not because we find no necessity and of course injunction is extraordinary legal relief.

Injunction against anyone of these appellees would do nothing as far as the enforcement that is not already being done as far as the statute is concerned.

If you would construe that the word inequity in 1983 is allowing injunction in some case?

Dorothy T. Beasley:

There may be situation in which an injunction would be appropriate but not in this circumstance where there is no –- Well, if the Court considers that there is a case of controversy there still would not be a need for an injunction.

Of course injunction being a discretionary type of thing and the Court below finding no necessity for one, we think that was a correct finding by the Court and so there should be no necessity for this Court to direct —

The declaratory decree would not be proper under 1983?

Dorothy T. Beasley:

Yes sir.

And that of course, suppose the Court could in the interest of effectuating its declaratory judgment and of some later time issuing an injunction, is it not?

Dorothy T. Beasley:

Yes sir if it became necessary.

If there were indications of the declaratory judgment were not being otherwise made or effectuated?

Dorothy T. Beasley:

Yes, indeed.

I think that there would be a continuing opportunity to do so.

Potter Stewart:

We do not have here, any question of the application of 2283.

There was no pending state?

Dorothy T. Beasley:

No sir.

Potter Stewart:

Of any kind, was it simply criminal?

Dorothy T. Beasley:

No Mr. Justice Stewart, there were nothing at all as far as those are concerned.

Not even a threat.

And I think that is one of the reasons that makes it so different from the Wisconsin versus Constantineau case where there was something actually done.

It was conduct there taken on behalf of the officials of the state in that case the chief of police, I believe it was, which we do not have here at all.

I would like to point out one other thing though.

We were mentioning to the Court the purposes of the statute.

I think one of the other purposes of it.

I think there are primarily three being to protect fetal life and of course the health of the mother and having to go through this procedure and also to protect doctors who are going to perform therapeutic abortions.

The procedure is set out and they are protected.

And if they stay within those wide protections that are given in statutes.

The procedure that is given and the District Attorney has no basis on which to refer an indictment against them and of course the burden would be on him to show that the abortion was not necessary.

So I think the statute is also to protect the doctors so that they can operate with regard to therapeutic abortions.

Thurgood Marshall:

Well, if the doctor is already protected, you do not have any criminal prosecution to any other operations, do you?

Dorothy T. Beasley:

That is correct.

Thurgood Marshall:

In Georgia?

Dorothy T. Beasley:

No, it is not.

Not that I know of.

Thurgood Marshall:

Then why then he ask for protection on abortions?

Dorothy T. Beasley:

Because abortions —

Thurgood Marshall:

Because Abortion Statute is there?

Dorothy T. Beasley:

That is right.

Then —

Dorothy T. Beasley:

One other point I would like to make and that is this.

In another area, the state does recognize fetal life as being human life and that but that is with regard to fetal death certificates which are required to be filed when there is a fetal death.

And that portion of the statute which deals with (Inaudible) arrangements and so on and vital records, the distinction is made between life, birth, and fetal death.

Life, birth is regarded as situation where a product of conception that whatever stage it occurs is expelled or extracted from a mother’s womb and there is evidence of life which means –- and some examples are given in the statute; voluntary muscle movement or heartbeat or something that indicates breathing or movement.

Sone independent activity in that fetal life and that is regarded as a life birth.

A fetal death is regarded as that type of extraction where there is no evidence of life.

So I think in that instance too, the state carries forward this consistent concept and attitude towards pre-birth children and that they are indeed human life that needs to be recorded and that should be very carefully watched before there is any destruction of it.

And I think that in closing, I would like to just say that we looked at a criminal defendant and say before he is going to be condemned, his guilt must be proved beyond a reasonable doubt.

Now, we look that at an unborn child and say can we now at least limit the destruction of his life to these certain circumstances or see as an innocent human life allowed to be extinguished without any regard whatsoever.

Thank you.

Warren E. Burger:

Thank you Mrs. Beasley.

Mrs. Hames you have one minute left if you have something that you want to cover.

Margie Pitts Hames:

Just a few things Mr. Chief Justice.

All of the defendants in this case did file motion to dismiss which the Court treated as motion for summary judgment and the judgment of the Court specifies that in page 87 of the appendix.

We have not designated constitutional basis for our case but I would like to say that we contend that the procedure requirements infringe Due Process and Equal Protection and that the right of privacy as enunciated in Griswold of course is their basic reliance.

I would commend to the Court the Article of Professor Miens(ph) also which goes into the abortion, common-law of abortion and point out that in Georgia, abortion before quickening was only a misdemeanor beginning in 1876 and prior to that then, it was not crime at all.

Thank you Mr. Chief Justice.

Warren E. Burger:

Thank you Mrs. Hames.

The case is submitted.