On October 30, 1970 argument was had on a motion by the defendant, District Attorney of Philadelphia County, Arlen Specter, Esquire, to dismiss
the complaint on the ground inter alia2 that this court should abstain from deciding the issues presented at the present time, which involve the so-called Pennsylvania abortion statutes, 18 P.S. §§ 4718 and 4719. Plaintiffs seek to enjoin the enforcement of these Pennsylvania statutes on the grounds that they are unconstitutional in light of the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the Constitution of the United States. Plaintiffs also seek an "interlocutory injunction" pending the hearing and determination of the prayers for permanent relief. It is clear to this court that substantial constitutional issues are raised in respect to the Pennsylvania statutes cited supra and that a three-judge court was properly convened and has jurisdiction of the persons and of the subject matter of this litigation. Cf. n. 2, supra.
As to the issue of abstention the following appears from the amended complaint, from the transcript of the hearing of October 30, 1970, or from public records and material of which we are entitled to take judicial notice. In Commonwealth v. Page, decided on September 21, 1970 by the Court of Common Pleas of Centre County, 18 P.S. § 4718
was held to be unconstitutional on the ground the statute was void for vagueness, indefiniteness, and ambiguity on it face. An appeal was taken to the Supreme Court of Pennsylvania and was listed for argument at the session of that Court commencing January 4, 1971. However, by stipulation of counsel for the parties the hearing of the appeal before the Supreme Court was postponed "Generally". Cf. Rule 83, Rules of the Supreme Court of Pennsylvania. We assume that this postponement was because United States v. Vuitch, No. 84 of the October Term 1970 was pending and was to be argued on Tuesday, January 12, 1971 before the Supreme Court of the United States. In Vuitch, however, the Supreme Court postponed probable jurisdiction at 397 U.S. 1061, 90 S. Ct. 1497, 25 L. Ed. 2d 683, and at 399 U.S. 923, 90 S. Ct. 2235, 2236, 26 L. Ed. 2d 789, did so again, but the case was set down for hearing on the merits and also for argument on three discretionary points as to whether the Court should proceed to hear and adjudicate the case or refer it back to the Court of Appeals of the District of Columbia Circuit "as a matter of sound judicial administration * * * because the case involves the validity of a statute the application of which is confined to the District of Columbia." If the latter course be pursued by the Supreme Court and the matter were to be referred back to the Court of Appeals for the District of Columbia Circuit, a considerable length of time could elapse before final determination of the merits of the case by the Supreme Court. Moreover, since the statute is one of the District of Columbia,
the effect of the decision might throw substantial light only on that statute. Vuitch5 has as its principal issue whether the phrase "[an abortion] necessary for the preservation of the mother's life or health" is unconstitutionally vague on its face. The Pennsylvania statutes
do not contain language in any wise similar to the phrase last quoted and consequently other issues are or may be raised, perhaps not cognizable in terms of Vuitch.7
In Berman et al. v. Duggan et al., No. 723 January Term 1971, in the Court of Common Pleas of Allegheny County, 18 P.S. § 4718 was declared to be unconstitutional on the ground of vagueness. The constitutionality of 18 P.S. § 4719 was not adjudicated. But many constitutional issues asserted in the case at bar were not before the Allegheny County court. Upon inquiry, we are not informed as to whether an appeal will be taken in Berman.
On consideration of all of the operational facts and the law we conclude that this court should not abstain from deciding the issues presented or such one or more of them as may be proper and necessary. The circumstances of the instant case present an analogy to Baggett v. Bullitt, 377 U.S. 360, 375-378, 84 S. Ct. 1316, 1324-1326, 12 L. Ed. 2d 377 (1964).
If it shall appear at a later point by reason of change of circumstances that abstention might then be appropriate the defendant may renew his motion to abstain.
As we have indicated seemingly substantial constitutional questions are presented. See n. 3 cited to the text in Dixon v. Attorney General of Commonwealth of Pa., 313 F. Supp. 653, 654 (E.D. Pa. 1970). The Supreme Court has taken the position that constitutional questions should not be decided except on a full record. Honeyman v. Hanan, 300 U.S. 14, 25-26, 57 S. Ct. 350, 81 L. Ed. 476 (1937), and Villa v. Van Schaick, 299 U.S. 152, 155-156, 57 S. Ct. 128, 81 L. Ed. 91 (1936). The record here is far from full and an adjudication of the issues presented is clearly impossible without an adequate record.
The complaint is designed to set up a class action or class actions cognizable under Rule 23, Fed. R. Civ. Proc., 28 U.S.C. and it appears that several classes or subclasses of plaintiffs may exist but of this we cannot be sure until an adequate record is completed on final hearing. It would be fruitless at the present time to try to pass on such questions.
(1) Defendant's motion to dismiss is denied.
(2) The trial of the case on the merits will be advanced to such date as this court or a judge thereof shall order and shall be consolidated with the hearing of the prayer for a preliminary injunction,*if that prayer be pressed, ...