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 this opinion.