The opinion of the court was delivered by: BIGGS
This suit, which names 1250 persons, among others, as plaintiffs, was brought as a class action and attempts to set up a dozen or more classes or subclasses pursuant to Rule 23, Fed. R. Civ. Proc., 28 U.S.C., and presents difficult and puzzling questions of procedural and substantive law. On June 22, 1971, in a memorandum opinion, 321 F. Supp. 1109, 1110, we decided that we would not then apply the doctrine of abstention but warned, however, that should it appear at a later date that "abstention then might be appropriate", the defendant District Attorney could renew his motion to abstain. The District Attorney has in effect done so. Following the recent decisions of the Supreme Court, note 9, infra, and the case of Dr. King referred to hereinafter, we concluded that the question of abstention should be reexamined and that the standing of the plaintiffs to maintain the suit at bar should be scrutinized as well. Accordingly, on July 20, 1971 argument was had on these two issues. We now conclude that we should abstain from a decision of this litigation for the reasons set out below.
Insofar as we have been able to ascertain the constitutionality of the Pennsylvania abortion statutes, respectively, 18 P.S. § 4718 and § 4719, set out below
has never before been directly challenged. The statutes seemingly have been accepted as constitutional.
There are, however, presently pending before the Supreme Court of Pennsylvania two appeals which do challenge the constitutionality of the abortion statutes as follows:
(1) In Commonwealth v. Page, a motorcycle mechanic, was indicted on September 30, 1968 and was tried in the Court of Common Pleas of Centre County, Criminal Division, at No. 353 -- 1968, for aborting, without death, two (unmarried) pregnant women pursuant to 18 P.S. § 4718. He pleaded guilty and was sentenced to imprisonment. Thereafter, in a proceeding brought under the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., the statute was declared unconstitutional on the ground of vagueness and Page was released. Certiorari was granted by the Supreme Court of Pennsylvania at its No. 95, January Term 1971,
and the case was continued "Generally" on December 8, 1970 by stipulation of counsel pursuant to Rule 83 of the Rules of the Supreme Court of Pennsylvania,
"pending disposition of similar cases presently pending before the Supreme Court of the United States."
Rule 83 provides that counsel for the parties without notice to or order by the Supreme Court can have a case continued only twice "from one argument list to another". Page's appeal is presently on the November 1971 argument list (Eastern District, Philadelphia) and could be disposed of by the Supreme Court of Pennsylvania this year.
(2) In Commonwealth v. King, at No. 37, March Term 1968, in the Court of Common Pleas of Allegheny County (Criminal Division), Dr. Benjamin A. King, a medical doctor, was tried and convicted on a charge of abortion resulting in death in violation of 18 P.S. § 4719, and was sentenced to imprisonment. He appealed to the Superior Court and at No. 493, April Term 1970, that Court on September 2, 1970 certified his appeal to the Supreme Court of Pennsylvania.
In his brief on his appeal to the Superior Court, King raises the issue of vagueness of Section 4719. King's appeal is on the September 1971 argument list (Western District, Pittsburgh, and could be disposed of by the Supreme Court of Pennsylvania this year.
An examination of the records, insofar as we have been able to obtain them, in Page and King,7 demonstrates, we believe, that every substantial constitutional issue raised or which can be raised by the plaintiffs in the instant case can be adjudicated by the Supreme Court of Pennsylvania in the appeals of Page and King, presumedly consolidated for argument.
Of course neither Page nor King are parties to the instant suit and have not requested any relief pursuant to its prayers. While recent decisions
of the Supreme Court of the United States have limited to some degree, we believe, the reach of a Section 2281 Three-Judge Court in granting relief, no decision of the Supreme Court which has been cited to us or which our own research has disclosed is on all fours with the instant case. Younger was distinguished from Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), in Mr. Justice Black's majority opinion on the ground of harassment.
See Younger, supra, 401 U.S. at 42, 91 S. Ct. 746, but compare Mr. Justice Brennan's opinion concurring in the result at 56, 91 S. Ct. at 755 and the concurring opinion of Mr. Justice Stewart at 55, 91 S. Ct. 746. Cf. Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964), where piecemeal adjudication and protracted delays were abhored. This was the University of Washington loyalty oath case involving First Amendment rights of freedom of speech. First Amendment rights are invoked here but the Supreme Court of Pennsylvania without more ado might declare the statutes unconstitutional as was done in Page and in Berman v. Duggan.
Or the Supreme Court of Pennsylvania might put an interpretation upon the statutes which might render moot some or all of the plaintiffs' contentions. Zwickler v. Koota, 389 U.S. 241, 248-249, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967).
The decision as to constitutionality of the Pennsylvania abortion statutes might well turn on the word "unlawfully". We have found no other state statute like it in its bald simplicity. The cases presently pending in the Supreme Court of the United States or likely to come before it in all probability cannot be based on any statute similar to the Pennsylvania statute sub judice. See for example the statute before the Supreme Court of the United States in Vuitch.12 The Supreme Court of Pennsylvania is or will be as aware of this fact as are we.
We point out that a decision by this court declaring the Pennsylvania abortion statutes unconstitutional would not be binding on the Supreme Court of Pennsylvania. See United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7 Cir. 1970) and Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 459-460, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945). If we were to hold these Pennsylvania statutes unconstitutional and the Supreme Court of Pennsylvania should, after putting a gloss upon them, declare them to be constitutional, an awkward and probably unworkable situation would arise, whether in Philadelphia County alone or throughout Pennsylvania.
Chaos might ensue.
Comity considerations here are very strong and policy seems to be as important here as comity without regard to the anti-injunction statute, 28 U.S.C. § 2283. See again Mr. Justice Stewart's concurring opinion in Younger v. Harris, supra, 401 U.S. at 55, 91 S. Ct. 746.
We conclude that we should presently abstain for a reasonable time from deciding the case at bar.
The issue of standing of the various plaintiffs to maintain the suit presents questions and issues of great moment and of great difficulty. See again Younger, supra, at 42-51, 91 S. Ct. 746. In view of our decision respecting abstention, we will refrain from adjudicating them at this time. We will retain jurisdiction, however, of this case for what we deem to be an appropriate length of time.
An order will be entered in conformity with ...