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MCGARVEY v. MAGEE-WOMENS HOSP.

March 17, 1972

Richard N. McGARVEY, M.D., Guardian Ad Litem for Baby Boy Doe and Baby Girl Roe, individually and as members of a class of conceived but unborn children, Plaintiffs,
v.
MAGEE-WOMENS HOSPITAL, a Pennsylvania Corporation, Defendants


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge.

 We are faced with two motions in this litigation which seek to enjoin a hospital from permitting the use of its facilities for the performance of abortions. The first is a motion that we dismiss the complaint for lack of jurisdiction because the action complained of was not carried out under color of state authority.

 The second is for judgment on the pleadings alleging failure of the complaint to state a cause of action because unidentified embryos or fetuses are not persons or citizens within the meaning of the Fourteenth Amendment or the so called Civil Rights Act.

 The plaintiff, guardian ad litem for a class of conceived but unborn children, filed a complaint alleging that such children were citizens of the United States and the Western District of Pennsylvania. He averred that Magee-Womens Hospital was a corporation, acting under color of the statutes of Pennsylvania which had, since 1968, through its officers and employees used its facilities for the termination of the lives of unborn children in violation of the Fourteenth Amendment to the Constitution of the United States, *fn1" and in violation of the Civil Rights Act, 42 U.S.C.A. ยง 1981 et seq. *fn2" Plaintiff alleged that the unborn children have been deprived of their lives without due process of law and have therefore obviously been denied their civil rights and that the action will continue unless enjoined. The defendant answered that unborn children are not persons or citizens within the meaning of either the Fourteenth Amendment or the Civil Rights Act and therefore even though the hospital may be permitting the use of its facilities for the carrying out of abortions there is no requirement that due process be considered.

 The plaintiff does not condemn abortion as such. He contends that abortion is the taking of life and he demands some form of judicial process that insures review of the merits of an abortion, i.e., whether the abortion is rational and right and just in each instance considering all of the results which might flow from it. He is not certain whether trial by jury is the right process or trial by the court without a jury or trial by some administrative agency. He is not certain whether an immediate appeal from a decision should exist or where it should go. He is not certain who would present evidence in such a proceeding on behalf of the fetus, whether a guardian presumably appointed by the Court, would be represented by counsel or not, whether the state would appoint counsel for the guardian in every case and pay counsel, whether counsel would seek a medical opinion and whether the state would pay for such opinion and the court appearance of the physician which would necessarily follow. Of course the appointment of counsel for an indigent mother seeking an abortion might be required as well and the lawyers, both appointed, might find a legal battle inevitable while gestation went on apace. Perhaps a jury trial would be required before the pregnancy became advanced but we need not examine all the problems here. The plaintiff demands an injunction against the hospital. He wants to establish the right to judicial process. Presumably the form can be worked out in due time.

 We deny the motion to dismiss for lack of jurisdiction and proceed to consider the motion for judgment on the pleadings.

 The answer to the problem is whether a fetus is a person or citizen within the contemplation of the Constitution and the Act of Congress already mentioned.

 The plaintiff in his brief phrases the question this way, "Where the life of an unborn child is threatened by the act of another, is it a legal person as to whom judicial action can be taken for its protection?"

 The inaccuracy in this question is caused by the use of the word "can." The plaintiff argues in this proceeding that judicial action must be taken for the protection of the unborn child. There is no doubt that action can be taken and has been taken in many instances to protect the life of an unborn child, see for example, Raleigh Fitkin-Paul Morgan Memorial Hospital, etc. v. Anderson, 42 N.J. 421, 201 A. 2d 537 (1964), cert. denied, 377 U.S. 985, 84 S. Ct. 1894, 12 L. Ed. 2d 1032 (1964) where a court ordered a blood transfusion to save an unborn child in spite of the mother's religious scruples.

 The question causes one to pause because of the moral problems inherent in it arising out of our religious teaching. It appears to be widely held at this point in history however in this country where people are numerous that abortion, if not favored, is at least condoned where the mother wants it, requests it and has some plausible reason upon which to base her decision. This is especially true where the fetus has not reached the approximate age of 24 weeks, i.e., has not quickened. Less than a month ago in Byrn v. New York City Health and Hospitals Corp., 38 A.D.2d 316, 329 N.Y.S. 2d 722 (1972), the appellate division of the New York Supreme Court upheld New York State's so called "24-week" abortion law. The New York act passed in 1970 permits an abortion by a licensed physician when necessary to preserve a woman's life or, as a matter of course, upon request within 24 weeks after the commencement of pregnancy. The act was challenged by a guardian ad litem on behalf of all unborn infants, scheduled for abortion in New York City hospitals, as violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment. The hospitals denied that a 24 week old fetus was a "person" within the meaning of the Fourteenth Amendment and argued that a woman's right to choose whether to bear a child could not be restricted by law absent a compelling state interest. The court found no indication that the framers of the Constitution had ever intended to protect "fetal life" when the Constitution was drafted.

 Nor have we been cited authority that the framers of the Constitution contemplated fetal life or thought of unborn children as persons for purposes of constitutional protection or that Congress had fetal life in mind when it drafted the Civil Rights Act. That act adopted after the Civil War was intended to secure to minority races the equal protection of the law, Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1969). We are not aware of any mention in the debates preceding that act which would indicate the intention of Congress to protect unborn children.

 Congress has had ample occasion to consider and reflect upon the question in recent years. In 1953 it amended the District of Columbia abortion statute of 1901 to permit abortion when performed by a licensed physician to protect a mother's life or health. In United States v. Vuitch, 402 U.S. 62, 91 S. Ct. 1294, 28 L. Ed. 2d 601 (1971) the Supreme Court had occasion to pass upon that statute which had been attacked as unconstitutionally vague. Nowhere in the majority opinion, the dissenting opinion or the three concurring opinions was there any inference that fetal life was entitled to constitutional protection. The majority opinion stated:

 
"When Congress passed the District of Columbia Abortion Law in 1901 and amended it in 1953, it expressly authorized physicians to perform such abortions as are necessary to preserve the mother's 'life or health.' Because abortions were authorized only in more restrictive circumstances under previous District of Columbia Law, the change must represent a judgment by Congress that it is desirable that women be able to obtain abortions needed ...

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