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tire trend of mind received its im- was written, that
petus was the attitude toward the
nonrehabilitable sick.

The killing center is the reductio

ad absurdum of all health planning Intellectuals today, of course, bristle

based only on rational principles self-righteously at the “camel's nose in

and economy and not on human comthe tent” thesis. They insist that firm

passion and divine law. To be sure, intellects have no difficulty drawing a line when small beginnings exceed their

American physicians are still far

from the point of thinking of killing bounds. In believing this they miss the stark lesson of the ripening of the Ger

centers, but they have arrived at a man medical profession for Nazi ex

danger point in thinking, at which

likelihood of full rehabilitation is ploitation. They also forget Judge Car

considered a factor that should dedozo's famous reminder of “the ten

termine the amount of time, effort dency of a principle to expand itself

and cost to be devoted to a particuto the limit of its logic.” (Nature of the Judicial Process. P. 51).

lar type of patient on the part of The major historical questions we

the social body upon which this demust confront are, where were the firm

cision rests. At this point Ameri

cans should remember that the intellects when German medicine began its calamitous descent into bar

enormity of a euthanasia movement barism? What lassitude enveloped the

is present in their midst. body of German medicine when the German euthanasia movement took Since 1949, when A. wrote the above, hold in the nineteen twenties, ten years we have in fact progressed to killing before Hitler's ascendency? Despite centers. Hundreds of thousands of unthe clear-cut warning from the history born children are being killed yearly of the Third Reich and the German in abortariums. The movement for medical profession, are we

we in the euthanasia of the already born is galUnited States retracing their demonic loping along at great speed. Killing retrogression wherein killing super- has become the major prevalent medisedes healing?

cal procedure of the medical profession German medicine, at least, had the A's paper should be read by everyexcuse of not knowing the magnitude one who can read. Our debt to him is of what was to befall them. Are we immense. His prescient grasp of the incapable of learning from history's need to rescue the German lesson for explicit lesson? Can we not see that posterity is literally clairvoyant. That what happened there is now happening he has become a leading spokesman here in an inexorable sequence? against abortion and euthanasia should

A. made clear when the above paper become an exemplar for all. HR



The Ohio Decision on Abortion

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

THIS IS ANOTHER in a series of of the action early in September, cases which have been and are being 1970, eight to ten weeks pregnant filed 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. $$1331-1343, Title 28 U.S.C. of Ohio, the Prosecuting Attorney $82201 and 2202, Title 28 U.S.C. of Lucas County, Ohio, wherein this $$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 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 vioto 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 who are affected by the Ohio statute District of Ohio, and a motion to 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. Steinberg 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 enforcedence 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 inconflict, since it involves policy con- definite. This same contention has siderations which are properly legis- been raised in a number of cases, inlative, 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 distinguish 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.

57-782 0 - 76 - 11

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

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).

W.D. 1970). which is nowhere expressly men

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