Coleman v. Coleman

GILBERT, Chief Judge. “PER CURIAM ORDER This cause coming on for hearing before this Court and counsel having been heard and arguments considered, it is this 8th day of February, 1984, by the Court of Special Appeals, for reasons to be set forth in an opinion to follow, ORDERED that the Order of the Circuit Court for Montgomery County (Frosh, J.) dated January 13,1984, be, and it is hereby affirmed. Costs to be paid by appellant. Mandate to issue forthwith.” We now explain why we affirmed the trial court. In the Circuit Court for Montgomery County, Donald Paul Coleman filed a paper writing titled, “Petition to Preclude Termination of Life of Preborn,” 1 and thereby triggered the instant controversy.

The objective of the petition was to prevent Constance Jean Coleman from having a fetus aborted. A “Temporary Restraining Order” was issued by Judge Stanley B. Frosh on January 6,1984. The judge, however, after hearing testimony on January 13, 1984, dissolved the temporary restraining order and denied injunctive relief to the husband. ⁷⁵⁸ The wife did not expressly acknowledge to the trial judge or to this Court that she was pregnant at the time the husband filed his petition. The husband testified, however, that the wife was pregnant, and he introduced into evidence report No. S23815, dated January 3, 1984, from the Washington Adventist Hospital Lab which revealed that Constance Coleman had a “Positive” reaction to “Preg.

Test (HCG).” A subsequent report from Convenient Medical Care, filed by the wife in this Court and bearing the date of January 16, 1984, states that the wife was not pregnant on that date. That report further discloses that the wife’s “uterus” was “4-6 week size.” We infer from the two reports that the wife was pregnant when the petition was filed, but we do not know when the pregnancy was terminated. It is obvious, however, that it ended on or before January 16, 1984. Since the pregnancy has terminated, this case would ordinarily be moot.

Hagerstown Reproductive Health Services v. Fritz, 295 Md. 268 , 454 A.2d 846 (1983). We think that because the subject is one that will likely arise again and again, the public interest will be best served if we address the merits of the matter, thus affording some guidance to litigants and trial courts. District 1199E, National Union of Hospital and Health Care Employees, Division of R.W.D.S.U., AFL-CIO v. The Johns Hopkins Hospital, 293 Md. 343 , 444 A.2d 448 (1982); Mules v. Maryland Racing Commission, 30 Md.App. 533 , 353 A.2d 664 (1976). The husband urges upon us a hexad of reasons why we should, in effect, depart from the pathway so clearly marked by the United States Supreme Court.

We shall discuss each of the husband’s reasons in the order in which he has posited them. I. “The respondent should be enjoined from taking the life of the preborn child of the parties under Section 20-208 of the Health General Article.” ⁷⁵⁹ The husband suggests that § 20 208(a) of the Health— General Article may somehow be controlling with respect to abortions in situations similar to that now before us. Section 20-208(a) provides, in pertinent part: “(a) No person shall terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth, except that a physician licensed by the State of Maryland may terminate a human pregnancy or aid or assist or attempt a termination of a human pregnancy if said termination takes place in a hospital accredited by the Joint Commission for Accreditation of Hospitals and licensed by the State Board of Health and Mental Hygiene and if one or more of the following conditions exist: (1) Continuation of the pregnancy is likely to result in the death of the mother; (2) There is a substantial risk that continuation of the pregnancy would gravely impair the physical or mental health of the mother; (3) There is substantial risk of the birth of the child with grave and permanent physical deformity or mental retardation; (4) The pregnancy resulted from a rape committed as a result of force or bodily harm or threat of force or bodily harm and the State’s Attorney of Baltimore City or the county in which the rape occurred has informed the hospital abortion review authority in writing over his signature that there is probable cause to believe that the alleged rape did occur.” The Supreme Court in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), made clear that the interest of the several States in regulating abortion procedures does not become compelling until “approximately the end of the first trimester” of the pregnancy. 410 U.S. at 163 , 93 S.Ct. at 732 . Until that time the woman is permitted to consult with a physician of her choice and to decide, without State interference, whether to have an abortion.

Id. at 163 , 93 S.Ct. at 732 . See also City of Akron v. Akron Center for ⁷⁶⁰ Reprod. Health, Inc., - U.S. -, 103 S.Ct. 2481 , 78 L.Ed.2d 687 (1983). “From approximately the end of the first trimester of pregnancy, the State ‘may regulate the abortion procedure to the extent reasonably necessary as it relates to the preservation and protection of maternal health.’ Roe, 410 U.S. at 163 , 93 S.Ct. at 731 .” City of Akron,-U.S. at-, 103 S.Ct. at 2493 . Any reading of Health-General Art. § 20-208(a) discloses that it conflicts with the decisions of the Supreme Court in Doe v. Bolton, 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973), as well as Roe v. Wade, supra, and City of Akron, supra, in that the Maryland statute fails to delineate between terminating the pregnancy during the first trimester and any subsequent time.

Because of that failure, Health-General Art. § 20-208(a) is unconstitutional insofar as it conflicts with the decisions of the Supreme Court of the United States. II. “Petitioner has the right under the Ninth Amendment of the United States Constitution to take up for and defend his preborn child, including the right of that preborn child to receive interim shelter and nutrients and the right of his preborn child to be born.” The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Building upon the structure of the Ninth Amendment, the husband superimposes what he perceives to be the common law. The common law commands, he says, quoting 1 W. Blackstone, Commentaries * 447, that “[t]he duty of parents to provide for the maintenance of their children is a principle of natural law.... By begetting ... [the children, the parents] have entered into a voluntary obligation ... [to preserve the life] they have bestowed, ....

And ⁷⁶¹ thus the children will have the perfect right of receiving maintenance from their parents.” The husband notes in addition, that 1 W. Blackstone, Commentaries * 126 declares, “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.” The argument made by the husband contains several “built in” defects. First, the United States Constitution does not provide, as does that of Maryland, for a retention unto the people of their rights at common law, as they existed in July 4, 1976. See Constitution of Maryland, Declaration of Rights, Art. 5. “Whether a clause in the Constitution is to be restricted by the common law as it existed when the Constitution was adopted depends on the terms and the nature of the clause.” United States v. Wood, 299 U.S. 123, 142 , 57 S.Ct. 177, 183 , 81 L.Ed. 78 (1936). The Federal Constitution, therefore, is not necessarily interpreted in light of the English common law.

Second, not all States have a system of law based on the Common Law of England. Some States are considered “Code States,” and Louisiana law is bottomed on the Napoleonic Code. Furthermore, whatever federal common law exists does so “untrammeled by state court decisions,” O’Brien v. Western Union Telegraph Co., 113 F.2d 539, 541 (1940). The husband’s contention, if adopted, would place the citizens of a common law State in a different class than those in code States and federal decisions on a different footing than State decisions.

Third, the Supreme Court, the final arbiter of what the Constitution says and means, has stated flatly that the Ninth and the Fourteenth Amendments yield a privacy right in the woman, and it has not decreed that a father’s right to defend his unborn child is paramount, at least during the first trimester. Fourth, at common law, life began “in contemplation of law as soon as an infant is able to stir in the mother’s womb,” 1 W. Blackstone, Commentaries * 129, and abortion ⁷⁶² before quickening, that is “the