Abele vs. Markle records

The Abele vs. Markle court case challenged whether Connecticut's anti-abortion law was constitutional. The civil case was argued before the United States District Court for the District of Connecticut, the United States Court of Appeals for the Second Circuit, and the United States Supreme Court from March 2, 1971 to April 26, 1973. The following historical note is split into four sections: Connecticut's Anti-Abortion Legislation, Laws, and Reform Efforts, 1821-1969; Civil Action No. 14291, 1971-1972; Civil Action No. B-521, 1972-1973; and Final Court Ruling and Aftermath of Abele vs. Markle, 1973-1977.

Connecticut's Anti-Abortion Legislation, Laws, and Reform Efforts, 1821-1969

The Abele vs. Markle abortion case was one part of the women's liberation movement of the 1960s and 1970s. Prior to the 1960s and 1970s several anti-abortion laws had been enacted by the Connecticut General Assembly. In 1821 the state legislature enacted a law that prohibited the causing of a miscarriage by "poison." The law only applied in cases "when a woman died or suffered grievous harm through the abortionist's recklessness or negligence."¹ The law was amended in 1830 to also include "administering any medicine or using any instrument with intent to cause the miscarriage of a woman quick with child."² In 1860 the state legislature passed one of the strictest anti-abortion laws in the United States. The law permitted the prosecution of women who solicited abortions; allowed an abortion to be performed on her; or performed an abortion on herself. The penalty if convicted under the anti-abortion law of 1860 was a felony punishable up to two years in prison and/or a $1,000 fine.³ The Connecticut anti-abortion law was enforced until ruled unconstitutional on April 26, 1973.

The repeal and reform of anti-abortion laws started to gain momentum in the early to mid-1960s. In 1965, the United States Supreme Court ruled 7-2 in Griswold v. Connecticut that Connecticut's law banning contraceptive devices "infringed on married couples' right to privacy."⁴ The Connecticut General Assembly Judiciary Committee held a public hearing on Senate Bill (SB) 69 on February 21, 1967. SB 69 would have reformed the anti-abortion law to allow women to legally have an abortion if they became pregnant due to rape. The committee heard from two speakers during the hearing and tabled the bill on March 2, 1967. The Judiciary Committee on April 14, 1969 held a public hearing on House Bill (HB) 5490 to consider a bill promoted by the Connecticut Medical Society that "would have allowed abortions when the mental or physical health or live of the mother is threatened by pregnancy; when an infant might be born with incapacitating physical deformity or mental deficiency; or in cases of incest and rape."⁵ The Connecticut House of Representatives, after two hours of debate, on May 9, 1969 voted 89 to 69 against considering the abortion reform legislation.

Civil Action No. 14291, 1971-1972

New Haven women's liberation activists group, which had been meeting since 1968, began to follow the abortion debates both in the Connecticut General Assembly and around the country. The women's liberation activists soon realized that a lawsuit could be a good organizing vehicle around the issue of abortion. The group enlisted lawyer Catherine Roraback; set out to recruit plaintiffs; began holding open discussions about abortion with other women; and started preparing their arguments.⁶ During the recruitment of plaintiffs the "legislatures of New York and Hawaii had legalized abortion, and federal courts in Wisconsin and Washington, D.C., had found anti-abortion laws unconstitutional."⁷ In 1971, the United States Supreme Court heard the first round of oral arguments in Roe v. Wade which challenged Texas's anti-abortion law.

The Abele vs. Markle lawsuit was filed with 858 plaintiffs' on March 2, 1971. Originally titled Women vs. Connecticut the case was known after initial filing with the United States District Court District of Connecticut as Abele, for the first listed plaintiff Janice Abele, and Markle, for State's Attorney Arnold Markle.⁸ In the lawsuit the plaintiffs' requested a three-judge District Court panel hear the case. United States District Court Judge T. Emmett Clarie on May 14, 1971 ruled the plaintiffs' lacked standing to bring suit, denied the request for a three-judge District Court panel, and dismissed the lawsuit because the Connecticut Supreme Court was hearing two criminal cases on the constitutionality of performed abortions. The case was appealed by the plaintiffs' to the United States Court of Appeals for the Second Circuit. On December 13, 1971 the appeals court "affirmed in part, reversed in part, and remanded for further proceedings" the District Court's dismissal finding that pregnant women and medical personnel who counsel or perform abortions had Article III standing to bring suit. The court remanded the case back to the District Court for further proceedings before a three-judge panel.

The case was heard before Circuit Court Judge J. Edward Lumbard, District Court Judge Jon O. Newman, and District Court Judge T. Emmett Clarie. In February 1972 lawyers for the plaintiffs' filed several affidavits on behalf of pregnant women seeking temporary restraining orders for "interlocutory relief against the enforcement of the [abortion] statute." On April 18, 1972 the three-judge court ruled 2-1 that Connecticut's anti-abortion statutes unconstitutional. Judge Lumbard wrote the opinion for the majority finding "the statutes unconstitutional in violation of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment."⁹ Judge Newman concurred with the opinion of the majority but wrote a separate opinion. Judge Clarie dissented arguing the majority opinion "leaves the State of Connecticut with no law or control in this area of human relationships."¹⁰ The State of Connecticut appealed the ruling of the three-judge District Court to the United States Court of Appeals for the Second Circuit.

The Court of Appeals on May 9, 1972 granted the State of Connecticut a temporary stay of execution. The case was then sent back to the three-judge District Court which on May 10 granted the plaintiffs' an injunction "halting any arrests or prosecution under the state's 112-year old abortion laws."¹¹ The granting of the injunction to the plaintiffs' allowed the state to appeal directly to the United States Supreme Court. However, Governor Thomas J. Meskill on May 13, 1972 signed a proclamation convening a special session of the Connecticut General Assembly because "It is essential to the public interest that new legislation be promptly enacted so that the rights of unborn children be protected."¹²

The Connecticut General Assembly at the time was considering several abortion bills from giving women the power of choice; to protecting the mother's life; and a complete ban on abortions. Governor Meskill backed a bill that contained much of the same language as the law which had been ruled unconstitutional by the District Court. The Joint Committee on Public Health and Safety on May 19, 1972 held a public hearing on the abortion bills before the legislature. Representative Francis Collins spoke before the committee on his and Governor Meskill's behalf. Collins urged the committee "to strongly reaffirm the most basic right of all human beings - the right to be."¹³ After eight hours of testimony the committee met in closed session for another hour. The committee recommended a new anti-abortion bill be passed. The new bill was based off the previous anti-abortion law which was found unconstitutional by the court in April. The only new language added was a preamble which discussed the legislative intent of the law. The state legislature debated; added no amendments; and passed the bill on May 22, 1972. Governor Meskill signed the anti-abortion bill into law, Public Act No. 1, on May 23, 1972.

Civil Action No. B-521, 1972-1973

The plaintiffs' lawyers filed on May 26, 1972 a motion for contempt, to enforce injunction and for other relief against the new law. On May 31, 1972 the Chief Judge of the U.S. Circuit Court convened the same three-judge court that heard the previous case.¹⁴ The three-judge court ruled 2-1 on September 20, 1972 that the new anti-abortion law was unconstitutional. Judge Jon Newman wrote the opinion for the majority finding "that a fetus is not a person within the meaning of the fourteenth amendment."¹⁵ Judge Clarie wrote the dissenting opinion in which he argued it was not the decision of the court but the legislature in deciding the legality of abortion in Connecticut. The three-judge District Court on September 22, 1972 denied the State of Connecticut's petition to stay the execution of the judgment. On September 27, 1972 the state appealed the decision of the District Court to United States Supreme Court Justice Thurgood Marshall who denied the request on October 3.¹⁶ The state then requested Supreme Court Chief Justice Warren Burger review Justice Marshall's ruling.¹⁷ The stay was granted by the Chief Justice on October 16, 1972.

The United State Supreme Court in October 1972 was hearing oral arguments in abortion cases from Georgia and Texas. In November and December the plaintiffs' asked the Supreme Court to vacate the stay and filed a motion for an expedited appeal. On January 22, 1973, the United States Supreme Court ruled 7-2 in Roe v. Wade (Texas) and Doe v. Bolton (Georgia) that both states anti-abortion laws were unconstitutional. The Supreme Court on February 26, 1973 vacated the Abele vs. Markle judgment in Civil No. B-521 and remanded the case back to the District Court "for further consideration in light of Roe v. Wade."¹⁸ The earlier case, Civil No. 14291, was remanded back to the District Court "for consideration of the question of mootness." The State of Connecticut then requested a rehearing before the Supreme Court. Attorney General Robert K. Killian on the reason for requesting a rehearing said, "The abortion question is in a state of considerable confusion…because there is no precedent in the history of the case before the Supreme Court."¹⁹ The state filed a petition for rehearing before the Supreme Court on March 21, 1973. Attorney General Killian on the filing of the petition said, "We filed the petition for a rehearing because we feel strongly that the Supreme Court has not yet considered the impressive amount of medical and scientific evidence present in the Connecticut case."²⁰ The appeal by the State of Connecticut was supported by 14 other states and did not seek to overturn Roe v. Wade but instead put forward the argument that life began at conception. On April 16, 1973 the Supreme Court denied the State of Connecticut's petition for rehearing and remanded the case back to the District Court.

Final Court Ruling and Aftermath of Abele vs. Markle, 1973-1977

On April 26, 1973 the three-judge District Court held a hearing and issued a final ruling on the case. The court in its ruling stated, "To avoid any misunderstanding as to the meaning of our decision and to bring finality to this controversy, the judgment of this court will declare Public Act No. 1 to be unconstitutional and will enjoin the defendants from enforcing it. This means that Public Act No. 1 is null and void. This litigation is ended."²¹ On May 14, 1973 Attorney General Killian in a letter to Governor Meskill about the case said, "It is our opinion that the United States Supreme Court has already made its position irrevocably clear on the issues involved. For this reason, and subject to your concurrence or disapproval, we do not intend to file a further appeal."²² In early October of 1973 the Public Health Council passed regulations drafted by the Department of Health governing legal abortions.²³ On February 22, 1974 the Connecticut General Assembly's Regulations Review Committee did not approve or reject the regulations on abortion therefore allowing them to be approved by default.²⁴ The regulations took effect on February 25, 1974.

Two months after the District Court ruling in Abele vs. Markle the women's liberation movement, that originally launched the anti-abortion lawsuit in 1971, filed a lawsuit against the Connecticut Welfare Department. The lawsuit challenged the welfare department's new policy, which eliminated payments to doctors that requested special approval to perform abortions, to only paying if it saved the life of the mother. The case, known as Maher v. Roe, was argued from 1973 to 1977 when the United States Supreme Court ruled that states did not have to pay for the abortions of welfare recipients "except in cases of medical need."²⁵