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was written, that

tire trend of mind received its impetus was the attitude toward the nonrehabilitable sick.

The killing center is the reductio ad absurdum of all health planning based only on rational principles and economy and not on human compassion and divine law. To be sure, American physicians are still far from the point of thinking of killing centers, but they have arrived at a danger point in thinking, at which likelihood of full rehabilitation is considered a factor that should determine the amount of time, effort and cost to be devoted to a particular type of patient on the part of the social body upon which this decision rests. At this point Ameri

should remember that the enormity of a euthanasia movement is present in their midst.

cans

Intellectuals today, of course,

bristle self-righteously at the "camel's nose in the tent" thesis. They insist that firm intellects have no difficulty drawing a line when small beginnings exceed their bounds. In believing this they miss the stark lesson of the ripening of the German medical profession for Nazi exploitation. They also forget Judge Cardozo's famous reminder of “the tendency of a principle to expand itself to the limit of its logic.” (Nature of the Judicial Process. P. 51).

The major historical questions we must confront are, where were the firm intellects when German medicine began its calamitous descent into barbarism? What lassitude enveloped the body of German medicine when the German euthanasia movement took hold in the nineteen twenties, ten years before Hitler's ascendency? Despite the clear-cut warning from the history of the Third Reich and the German medical profession, are in the United States retracing their demonic retrogression wherein killing supersedes healing?

German medicine, at least, had the excuse of not knowing the magnitude of what was to befall them. Are we incapable of learning from history's explicit lesson? Can we not see that what happened there is now happening here in an inexorable sequence?

A. made clear when the above paper

we

Since 1949, when A. wrote the above, we have in fact progressed to killing centers. Hundreds of thousands of unborn children are being killed yearly in abortariums. The movement for euthanasia of the already born is galloping along at great speed. Killing has become the major prevalent medical procedure of the medical profession

A's paper should be read by everyone who can read. Our debt to him is immense. His prescient grasp of the need to rescue the German lesson for posterity is literally clairvoyant. That he has become a leading spokesman against abortion and euthanasia should become an exemplar for all. HR

PAUL C. WEICK
DON J. YOUNG

The Ohio Decision ɔn Abortion

From Child and Family, Vol 10, No. 1, 1971

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THIS IS ANOTHER in a series of of the action early in September, ases which have been and are being 1970, eight to ten weeks pregnant

iled in various courts throughout with another child conceived in wedThe United States attacking the con- lock. stitutionality of state statutes for- The defendants named in the bidding abortions. This particular amended complaint are the Governor action was brought under Title 28 and Attorney General of the State U.S.C. $$1331-1343, Title 28 U.S.C. of Ohio, the Prosecuting Attorney $ $2201 and 2202, Title 28 U.S.C. of Lucas County, Ohio, wherein this $ $2281 and 2284, and Title 42 U.S.C. Division of the District Court sits,

$1983. The plaintiffs seek a declara- and the Chief of Police of the City a tory judgment that Ohio's abortion of Toledo, the county seat of Lucas : statute, Section 2901.16 Ohio Rev. County. Code (1), is unconstitutional under The amended complaint seeks a the First, Fourth, Fifth, Eighth, declaratory judgment that Section

Ninth, and Fourteenth Amendments 2901.16 Ohio Rev. Code is in vio.. to the Constitution of the United lation of the rights of the plaintiffs

States. They also seek injunctive under the six amendments to the relief against the enforcement of Constitution listed above and for inthe statute. Hence a three judge junctive relief. court was convened to hear and de- A motion for a temporary retermine the matter.

straining order was heard and overThe plaintiffs claim that each of ruled by the single judge of the .! them represents a class of persons Western Division of the Northern I who are affected by the Ohio statute District of Ohio, and a motion to si complained of. One plaintiff is a intervene as a party defendant on

physician specializing in obstetrics behalf of the unborn child of the and gynecology; one is a psychia- plaintiff Mary Doe, and the class of trist; one is a social worker; one is unborn children of the women of a minister of religion; and the final the class represented by Mary Doe, one is a young woman, married but filed by Homer Schroeder, M.D., was separated from her husband, the granted by this single judge. mother of one child born in wedlock, Dr. Schroeder also filed a motion and at the time of commencement to be appointed as Guardian ad Litem for the unborn child, and He also testified that she was in motions for leave to file briefs normal physical condition, and that amicus curiae were filed by a group her previous pregnancy had been of some forty organizations and in- normal, with no complications. He dividuals supporting the plaintiffs, further testified that at that stage and by the Ohio Right to Life So- of her pregnancy, abortion would ciety, Inc. supporting the defend- present less hazard to life than to ants. Various other motions were carry the child to term, but this filed, including motions by all of the situation would not continue, as the defendants except the intervening hazards of abortion increase later defendant Schroeder to dismiss the in pregnancy. complaint, and a motion of the The plaintiff psychiatrist, Dr. plaintiffs to dismiss the intervening Fitzgerald, testified that Mary Doe defendant Schroeder.

had a serious defect in her ability The motions to dismiss were over- to make judgments about people and ruled, as were the motion to appoint situations; that her daydreams ina guardian ad litem for the unborn fluenced her more than the actual child and children, and the other facts; that she was moderately detechnical motions. The two princi- pressed and withdrawn; that she pal motions for leave to file briefs was seriously disturbed, and preamicus curiae were granted.

sented gross or serious defects in The case was submitted upon the her ego-functioning; that she could evidence offered at the hearing on become a child-battering mother; the motion for a temporary restrain- and that she irrationally rejected ing order, certain stipulations, the the alternative to abortion of carrydeposition of John F. Hillabrand, ing the child to term and then conM.D., the briefs, and arguments of senting to adoptive placement. Howcounsel.

ever, he did not predict that she The evidence indicated that the would either die or kill herself if plaintiffs Steinberg and Fitzgerald this pregnancy were carried to term, had been consulted by the plaintiff although it would do her grave psyMary Doe. When Dr. teinberg ex

chological harm. He stated that the amined her on October second, she

likelihood of great damage coming appeared to be eight to ten weeks

to the infant from neglect or abuse pregnant, but he testified that an

were high indeed. It was his conother doctor might think she was

clusion that in such states as Calitwelve to fourteen weeks pregnant. fornia or Colorado, Mary Doe could

receive therapeutic approval for THE HON. MR. WEICK is an Appel- abortion on psychiatric and medical late Judge in U.S. Dist. Ct., Northern

grounds. Dist. Ohio, Western Div.

The evidence revealed that Mary THE HON. MR. YOUNG is a Trial

Doe was a welfare recipient in Court Judge in U.S. Dist. Ct., North

Wood County, Ohio, adjacent to ern Dist. Ohio, Western Div.

Lucas County. She is twenty-one years old.

The question of standing is conBoth of the plaintiff doctors testi- sidered in Roe v. Wade, 314 F. Supp. fied that they believed they would be 1217 (N.D. Texas 1970), and Doe v. violating the Ohio abortion statute Bolton, F. Supp.

(N.D. if they advised the plaintiff Mary Georgia 1970). Both cases resolved Doe to seek an abortion outside the the question favorably to parties State of Ohio, although it was stipu- who stood in the positions of the lated in evidence that no physician plaintiffs here. We accept the conhad ever been prosecuted in Lucas clusions in these cases, and hold County for a violation of Section that the plaintiffs herein have 2901.16 Ohio Rev. Code as an aider proper standing to maintain this and abettor on the ground that he action. Cf. Flast v. Cohen, 32 U.S. counseled or procured an abortion, 83 (1968). nor had any minister or social The problem of abstention was worker. It was also stipulated that considered and abstention denied in no such prosecutions had ever been the case of Babbitz v. McCann, 310 threatened, nor had any of the plain- F. Supp. 293 (E.D. Wis. 1970) app. tiffs ever been warned by any law dis. 39 U.S.L.W. 3144 (Oct. 12 enforcement authorities.

1970). See also, Doe v. Bolton, The only other evidence in the

supra.
There was

no proof that
case was the deposition of Dr. Hil- prosecution of any of the plaintiffs
labrand offered by the defendants. was commenced or even threatened.
This concerned the development of Plaintiffs are therefore not entitled
unborn children from conception to to injunctive relief. The prayer for
birth. It also offered statistical evi- injunction restraining the enforce-
dence that the risk of maternal mor- ment of the statute is therefore
tality was far higher from abortions denied.
performed even under clinical condi- This then requires a resolution of
tions than from carrying the child the merits of the plaintiffs' request
until natural childbirth. This testi- for declaratory relief, to which we
mony is, of course, in square conflict now address ourselves.
with that of the plaintiff Steinberg, The plaintiffs' first contention is
but it is unnecessary for the pur- that Section 2901.16 Ohio Rev. Code
poses of this opinion to resolve this is unconstitutionally vague and in-
conflict, since it involves policy con- definite. This same contention has
siderations which are properly legis- been raised in a number of cases, in-
lative, rather than judicial, concerns. volving statutes of different states.

This case presents threshold ques- There are differences in language tions of the right to injunctive re- among all of the various statutes lief, standing of the plaintiffs to that have been brought before the maintain the action, and the doc- courts, and by using the same sort trine of abstention. These problems of hairsplitting semanticism that have been considered in other simi- the plaintiffs have employed in argular cases.

ment, it would be possible to dis

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57-782 0.76 - 11

tinguish the Ohio statute from the The words of the Ohio statute, taken others. It does not appear to us, in their ordinary meaning, have however, that there is sufficient dif- over a long period of years proved ference in substance among the vari- entirely adequate to inform the pubous statutes involved in other cases lic, including both lay and profesto make it desirable to use so nar- sional people, of what is forbidden. row and limited an approach to the The problem of the plaintiffs is not problem. It seems preferable to take that they do not understand, but a stand with one group or the other that basically they do not accept, its of the divided authorities.

proscription. Abortion statutes have been held The second contention of the unconstitutionally vague in the cases plaintiffs and those amicus curiae of California v. Belous, 71 Cal. 2d who support their position is that 996, 80 Cal. Rptr. 354 (1969), 458 the Ohio abortion statute deprives P. 2d 194, cert. denied, 397 U.S. 915 them of the right of privacy which (1970); United States v. Vuitch, is supposedly protected by several 305 F. Supp. 1032 (D.D.C. 1969), amendments to the Constitution of prob. juris. noted, 397 U.S. 1061 the United States. The arguments (1970); and Roe v. Wade, 314 F. and authorities cited go on at inSupp. 1217 (N.D. Texas 1970). Con- ordinate length, but when the metrary holdings are found in Babbitz ringue is sluiced away, they come v. McCann, supra and Rosen v. The down to the contention that the deLouisiana State Board of Medical cision of the Supreme Court in Examiners, F. Supp.

Griswold v. Connecticut, 381 U.S. (E.D. La. New Orleans Div. 1970). 479 (1965), which recognized the The question was raised, but not right.of marital privacy by voiding decided, in Doe v. Bolton, supra. a statute preventing dissemination

We believe that the better reason- of contraceptive information and deing is found in those cases which vices, must by extension protect the hold that there is no unconstitutional right to destroy the product of convagueness in the abortion statutes ception after it has taken place. which they consider. It appears to Again the authorities are divided, us that the vagueness which dis- some courts accepting the plaintiffs' turbs the plaintiffs herein results view, and others refusing to do so. from their own strained construc- The majority of this Court do not tion of the language used, coupled accept the plaintiffs' contentions as with the modern notion among law constitutionally valid, but believes review writers that anything that is that the cases which do accept them not couched in numerous paragraphs have not been based on a proper of finespun legal terminology is too legal or factual understanding. The imprecise to support a criminal con- plaintiffs' contentions seek to extend viction. See Davis v. Toledo Metro- far beyond the holding in the Grispolitan Housing Authority, 311 F. wold case this "right of privacy,” Supp. 797 (N.D. Ohio W.D. 1970). which is nowhere expressly men

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