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

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 we 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

was written, that

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

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 on Abortion

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

THIS IS ANOTHER in a series of cases which have been and are being filed in various courts throughout the United States attacking the constitutionality of state statutes forbidding abortions. This particular action was brought under Title 28 U.S.C. §§1331-1343, Title 28 U.S.C. §§2201 and 2202, Title 28 U.S.C. §§2281 and 2284, and Title 42 U.S.C. §1983. The plaintiffs seek a declaratory judgment that Ohio's abortion statute, Section 2901.16 Ohio Rev. Code (1), is unconstitutional under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States. They also seek injunctive relief against the enforcement of the statute. Hence a three judge court was convened to hear and determine the matter.

The plaintiffs claim that each of them represents a class of persons who are affected by the Ohio statute complained of. One plaintiff is a physician specializing in obstetrics and gynecology; one is a psychiatrist; one is a social worker; one is a minister of religion; and the final one is a young woman, married but separated from her husband, the mother of one child born in wedlock, and at the time of commencement

of the action early in September, 1970, eight to ten weeks pregnant with another child conceived in wedlock.

The defendants named in the amended complaint are the Governor and Attorney General of the State of Ohio, the Prosecuting Attorney of Lucas County, Ohio, wherein this Division of the District Court sits, and the Chief of Police of the City of Toledo, the county seat of Lucas County.

The amended complaint seeks a declaratory judgment that Section 2901.16 Ohio Rev. Code is in violation of the rights of the plaintiffs under the six amendments to the Constitution listed above and for injunctive relief.

A motion for a temporary restraining order was heard and overruled by the single judge of the Western Division of the Northern District of Ohio, and a motion to intervene as a party defendant on behalf of the unborn child of the plaintiff Mary Doe, and the class of unborn children of the women of the class represented by Mary Doe, filed by Homer Schroeder, M.D., was granted by this single judge.

Dr. Schroeder also filed a motion to be appointed as Guardian ad

Litem for the unborn child, and motions for leave to file briefs amicus curiae were filed by a group of some forty organizations and individuals supporting the plaintiffs, and by the Ohio Right to Life Society, Inc. supporting the defendants. Various other motions were filed, including motions by all of the defendants except the intervening defendant Schroeder to dismiss the complaint, and a motion of the plaintiffs to dismiss the intervening defendant Schroeder.

The motions to dismiss were overruled, as were the motion to appoint a guardian ad litem for the unborn child and children, and the other technical motions. The two principal motions for leave to file briefs amicus curiae were granted.

The case was submitted upon the evidence offered at the hearing on the motion for a temporary restraining order, certain stipulations, the deposition of John F. Hillabrand, M.D., the briefs, and arguments of counsel.

The evidence indicated that the plaintiffs Steinberg and Fitzgerald had been consulted by the plaintiff Mary Doe. When Dr. Steinberg examined her on October second, she appeared to be eight to ten weeks pregnant, but he testified that another doctor might think she was twelve to fourteen weeks pregnant.

THE HON. MR. WEICK is an Appellate Judge in U.S. Dist. Ct., Northern Dist. Ohio, Western Div.

THE HON. MR. YOUNG is a Trial Court Judge in U.S. Dist. Ct., Northern Dist. Ohio, Western Div.

He also testified that she was in normal normal physical condition, and that her previous pregnancy had been normal, with no complications. He further testified that at that stage of her pregnancy, abortion would present less hazard to life than to carry the child to term, but this situation would not continue, as the hazards of abortion increase later in pregnancy.

The plaintiff psychiatrist, Dr. Fitzgerald, testified that Mary Doe had a serious defect in her ability to make judgments about people and situations; that her daydreams influenced her more than the actual facts; that she was moderately depressed and withdrawn; that she was seriously disturbed, and presented gross or serious defects in her ego-functioning; that she could become a child-battering mother; and that she irrationally rejected the alternative to abortion of carrying the child to term and then consenting to adoptive placement. However, he did not predict that she would either die or kill herself if this pregnancy were carried to term, although it would do her grave psychological harm. He stated that the likelihood of great damage coming to the infant from neglect or abuse were high indeed. It was his conclusion that in such states as California or Colorado, Mary Doe could receive therapeutic approval for abortion on psychiatric and medical grounds.

The evidence revealed that Mary Doe was a welfare recipient in Wood County, Ohio, adjacent to Lucas County. She is twenty-one

years old.

Both of the plaintiff doctors testified that they believed they would be violating the Ohio abortion statute if they advised the plaintiff Mary Doe to seek an abortion outside the State of Ohio, although it was stipulated in evidence that no physician had ever been prosecuted in Lucas County for a violation of Section 2901.16 Ohio Rev. Code as an aider and abettor on the ground that he counseled or procured an abortion, nor had any minister or social worker. It was also stipulated that no such prosecutions had ever been threatened, nor had any of the plaintiffs ever been warned by any law enforcement authorities.

The only other evidence in the case was the deposition of Dr. Hillabrand offered by the defendants. This concerned the development of unborn children from conception to birth. It also offered statistical evidence that the risk of maternal mortality was far higher from abortions performed even under clinical conditions than from carrying the child until natural childbirth. This testimony is, of course, in square conflict with that of the plaintiff Steinberg, but it is unnecessary for the purposes of this opinion to resolve this conflict, since it involves policy considerations which are properly legislative, rather than judicial, concerns.

This case presents threshold questions of the right to injunctive relief, standing of the plaintiffs to maintain the action, and the doctrine of abstention. These problems have been considered in other similar cases.

The question of standing is considered in Roe v. Wade, 314 F. Supp. 1217 (N.D. Texas 1970), and Doe v. Bolton, — F. Supp. (N.D. Georgia 1970). Both cases resolved the question favorably to parties who stood in the positions of the plaintiffs here. We accept the conclusions in these cases, and hold that the plaintiffs herein have proper standing to maintain this action. Cf. Flast v. Cohen, 32 U.S. 83 (1968).

The problem of abstention was considered and abstention denied in the case of Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970) app. dis. 39 U.S.L.W. 3144 (Oct. 12 1970). See also, Doe v. Bolton, supra. There was no proof that prosecution of any of the plaintiffs was commenced or even threatened. Plaintiffs are therefore not entitled to injunctive relief. The prayer for injunction restraining the enforcement of the statute is therefore denied.

This then requires a resolution of the merits of the plaintiffs' request for declaratory relief, to which we now address ourselves.

The plaintiffs' first contention is that Section 2901.16 Ohio Rev. Code is unconstitutionally vague and indefinite. This same contention has been raised in a number of cases, involving statutes of different states. There are differences in language among all of the various statutes that have been brought before the courts, and by using the same sort of hairsplitting semanticism that the plaintiffs have employed in argument, it would be possible to dis

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tinguish the Ohio statute from the others. It does not appear to us, however, that there is sufficient difference in substance among the various statutes involved in other cases to make it desirable to use so narrow and limited an approach to the problem. It seems preferable to take a stand with one group or the other of the divided authorities.

Abortion statutes have been held unconstitutionally vague in the cases of California v. Belous, 71 Cal. 2d 996, 80 Cal. Rptr. 354 (1969), 458 P. 2d 194, cert. denied, 397 U.S. 915 (1970); United States v. Vuitch, 305 F. Supp. 1032 (D.D.C. 1969), prob. juris. noted, 397 U.S. 1061 (1970); and Roe v. Wade, 314 F. Supp. 1217 (N.D. Texas 1970). Contrary holdings are found in Babbitz v. McCann, supra and Rosen v. The Louisiana State Board of Medical Examiners, F. Supp. (E.D. La. New Orleans Div. 1970). The question was raised, but not decided, in Doe v. Bolton, supra.

We believe that the better reasoning is found in those cases which hold that there is no unconstitutional vagueness in the abortion statutes which they consider. It appears to us that the vagueness which disturbs the plaintiffs herein results from their own strained construction of the language used, coupled with the modern notion among law review writers that anything that is not couched in numerous paragraphs of finespun legal terminology is too imprecise to support a criminal conviction. See Davis v. Toledo Metropolitan Housing Authority, 311 F. Supp. 797 (N.D. Ohio W.D. 1970).

The words of the Ohio statute, taken

in their ordinary

in their ordinary meaning, have over a long period of years proved entirely adequate to inform the public, including both lay and professional people, of what is forbidden. The problem of the plaintiffs is not that they do not understand, but that basically they do not accept, its proscription.

The second contention of the plaintiffs and those amicus curiae who support their position is that the Ohio abortion statute deprives them of the right of privacy which is supposedly protected by several amendments to the Constitution of the United States. The arguments and authorities cited go on at inordinate length, but when the meringue is sluiced away, they come down to the contention that the decision of the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965), which recognized the right of marital privacy by voiding a statute preventing dissemination of contraceptive information and devices, must by extension protect the right to destroy the product of conception after it has taken place.

Again the authorities are divided, some courts accepting the plaintiffs' view, and others refusing to do so. The majority of this Court do not accept the plaintiffs' contentions as constitutionally valid, but believes that the cases which do accept them have not been based on a proper legal or factual understanding. The plaintiffs' contentions seek to extend far beyond the holding in the Griswold case this "right of privacy," which is nowhere expressly men

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