This is a proceeding wherein pursuant to an ex parte order of the Supreme Court, Queens County, entered 3 December 1971, the plaintiff, RMB, was appointed guardian ad litem for the infant ‘R’ and all similarly situated members of a class of unborn infants of less than 24 weeks’ gestation scheduled for abortion in public hospitals under the operation and control of the defendant New York City Health and Hospitals Corporation.
The purpose of the appointment was to commence this action for a judgment declaring that subdivision 3 of section 125.05 of the Penal Law is unconstitutional and for a permanent criminal injunction restraining the defendant Hospitals Corporation from performing abortional acts other than those necessary to preserve the life of the female.
By order to show cause dated 3 December 1971, the guardian moved for a preliminary injunction pending the trial of the action, restraining the above-mentioned Hospitals Corporation from proceeding with abortions other than those necessary to preserve the life of the female.
The Hospitals Corporation cross-moved for a change of venue and to vacate the guardianship order.
The cross motion was denied and the motion for a preliminary injunction was granted in an order entered 7 January 1972. The Special Term holds that the guardian had established a strong likelihood that he would ultimately succeed in proving that his wards had a constitutionally-protected right to live, that they would be irreparably damaged if a preliminary injunction were denied and that a balancing of the equities was clearly in favor of the unborn infants. The action was set down for an early trial and the guardian was required to give a $5,000 undertaking. Criminal Defendants Hospitals Corporation and Attorney General have appealed and the preliminary injunction and the trial have been stayed pending determination of the appeals.
In the case at bar, the guardian ad litem contends that the amended statute violates the constitutional rights of his wards and that the child En ventre sa mere is a person protected by the Fifth and Fourteenth Amendments of the Federal Constitution and, as such, cannot be deprived of life without due process or denied the equal protection of New York’s laws.
The appellants contend, on the other hand, that the order appointing the guardian was improper, that a fetus of less than 24 weeks’ gestation is not a person within the constitutional protections and that a woman has a constitutional right to choose whether to bear a child, which may not be restricted in the absence of a compelling state interest.
CPLR 1201 provides that ‘a person shall appear by his guardian ad litem if he is an infant and has no guardian of his property, parent, or other person having legal custody or if he is an infant and the court so directs because of a conflict of interest or for other cause.
CPLR 1202 provides that the court in which an action is triable ‘may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of a relative, friend or a guardian or committee of the property’ and that notice of a motion for appointment of a guardian ad litem for a person shall be served upon the guardian of his property or upon his committee or, if he has neither, upon the person with whom he resides.
The appellants argue that a fetus is not a ‘person’ and has no rights which a guardian can protect until it is born alive. Moreover, the appellants argue that the guardian should not have been appointed without notice to the prospective mothers and the putative fathers of the unborn children. It should be noted that there is a manifest conflict of interest between the mother and the fetus about to be terminated. The father’s consent to the abortion is not required under the statute and the reasonable inference is that he is either in accord with the mother’s wishes or, at least, not effectively opposed. Sex crimes were in question.
A court is not required to wait for the natural guardians to appear before appointing a guardian ad litem if to do so would constitute a danger to the infant’s interests as held in Trippe v Trippe, Matter of Thomas and Matter of Beyer.
There can be no doubt that the question presented by this action is of a common or general interest to many persons and that those who might be made parties are very numerous. It is impractical to bring them all before the court. In such a case, one or more may sue or defend for the benefit of all.
It is argued that the guardian has been guilty of gross laches in waiting 18 months after the amendment of the statute before seeking this relief. It is clear, however, that the real parties in interest are the unborn infants within the class and that the guardian is merely the vehicle through which their interests are put before the court.
The argument is made that the guardian has no individual standing to challenge the constitutionality of the statute without a showing that he is personally aggrieved.
The criminal court agrees but finds it irrelevant to the case in its present posture.
The intervenors contend that necessary parties, the pregnant women scheduled for abortion in municipal hospitals, were not before the criminal court. It is true that these women might be affected by a judgment in the action, but large numbers of individuals are generally subject to the effect of an action challenging the constitutionality of a State statute.
The court concludes that the order entered 3 December 1971 appointing the guardian was proper when made.
The substantive question presented is whether a fetus of less than 24 weeks’ gestation is a person within the protection of the Fifth and Fourteenth Amendments of the Federal Constitution.
The court finds no factual issues requiring a trial and the parties so conceded on the argument of the appeal. The medical affidavits submitted by the guardian have not been factually disputed and New York courts have already acknowledged that, in the contemporary medical view, the child begins a separate life from the moment of conception as held in Endresz v. Friedberg, and Kelly v. Gregory.
Endresz v Friedberg held that a stillborn fetus which died from injuries received En ventre sa mere was not a ‘decedent’ within the meaning of New York’s wrongful death statute. In the majority opinion, Chief Judge Fuld wrote: ‘In other words, even if, as science and theology teach, the child begins a separate ‘life’ from the moment of conception, it is clear that, ‘except’ in so far as is necessary to protect the child’s own rights’, the law has never considered the unborn foetus as having a separate ‘juridical existence’ or a legal personality or identity ‘until it sees the light of day”.
It should be noted that the Endresz was concerned with the legislative intent underlying New York’s wrongful death statute, with problems of causation and damages, and with the rights of the survivors of the unborn child. Moreover, it carved out from the general rule it stated the situation where the law is asked to protect the child’s own interests. In the instant case, we are dealing with rights claimed under the Federal Constitution. Causation and damages are not issues and we are being asked to protect the unborn child’s own rights, not those of others.
In the instant case, it is argued that the mother has a constitutional right to privacy under the Ninth Amendment which includes the right to abort an unwanted child. The exercise of each of these rights threatens the life of the unborn child. An outsider steps in and asks the court to protect the interests of the child.
The criminal court observes at common law that the infant En ventre sa mere was recognized and a legal personality imputed to it as a rule of property for all purposes beneficial to it, but that imputation was regarded as a benevolent fiction granted in anticipation of the child’s birth as held in Drobner v Peters.
Later determinations by the Court of Appeals cannot be explained away on the theory that advanced medical and biological information regarding the unborn child was unknown to it. They reflect instead the view that legal personality is not synonymous with separate and vital existence within the womb; that, depending on the circumstances involved, public policy and other factors, legal personality will be accorded or withheld as these extrinsic considerations demand.
Our criminal law has not uniformly protected the infant En ventre sa mere. The destruction of the unquickened fetus was not manslaughter at common law as held in Evans v People. At common law a pregnant female sentenced to death was executed unless the child had quickened. The same provision exists under our present law.
Under the newly-revised Penal Law, in effect since September, 1967, a ‘person’ is defined as ‘a human being who has been born and is alive’ and conduct causing the death of an unborn child of less than 24 weeks’ gestation is not homicide.
The court has not seen an indication that the framers of the Fifth Amendment intended to include fetal life when they provided that no ‘person’ shall be deprived of life without due process. In construing a constitution or any part of it, a court should look to the law as it existed at the time it was adopted s held in Matrox v United States.
It has been said that our Federal Constitution should be construed with reference to the common law of England as held in Dimick v Schildt and that without reference to that common law, the language of the Federal Constitution could not be safely interpreted. As indicated earlier, it was generally believed at common law that the unborn child was physically a part of the mother and legal personality was accorded to it merely as a fictional device in anticipation of birth.
The court finds that it is unlikely, therefore, that the framers of the Fifth Amendment, dealing with an amendment concerned with criminal trials, the need for indictment, protection against double jeopardy, and loss of life, liberty or property without due process, gave any consideration to whether a child En ventre sa mere was within the protection of that amendment.
The decisive consideration for resolving the instant case is that State statutes come before the court with a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for their provisions. Questions of wisdom, need or appropriateness are for the Legislature and we strike down statutes it has enacted only as a last resort and only when unconstitutionality is shown beyond a reasonable doubt as in Matter of Van Berkel v Power, Paterson v. University of State of N.Y.
The court observes that no such showing has been made in the instant case.
The criminal court opines that subdivision 3 of section 125.05 of the Penal Law is constitutional and violates no right of the unborn children represented by the guardian. A state has broad power to make classifications and, while it may not draw a line which constitutes an invidious discrimination, the test in the end is whether the line drawn is a rational one as in Levy v Louisisana.
As to whether the line in this case could or should have been marked at some other place along the path of gestation is surely arguable, but the court do not think the achievement of viability, the capacity of the fetus to survive outside the womb, is an irrational distinction.
When called upon to determine the validity of a duly-enacted statute, the court is concerned with ‘the powers of government inherent in every sovereignty’ as held in Thurlow v. Massachusetts. The court may interfere with the exercise of that plenary power only to the extent the Constitution requires as held in Poe v Ullman.
It should be noted that the court is not required to weigh and choose between the competing values urged by those who support the law and those who oppose it. The Legislature has made that determination and the court inquires only whether the Federal Constitution permits the choice it made and whether there is a reasonable basis for it.
The court answers both questions in the affirmative in the extent to which fetal life should be protected is a value judgment not committed to the discretion of judges but reposing instead in the representative branch of government as held in Corkey v Edwards.
The court sees no issues of fact requiring a trial.
Accordingly, the order entered 7 January 1972 should be reversed, on the law, without costs. The motion for a preliminary injunction denied and the cross motion to vacate the order appointing the guardian Ad litem granted and the case should be remanded to the Special Term for entry of a judgment in favor of the defendants declaring the rights of the parties in accordance with this opinion.
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