Doe v. Burk

Mr. Justice GUTHRIE

delivered the opinion of the court.

This appeal directly submits to this court the question of the constitutionality of our Abortion Law, being §§ 6-77, 6-78, and 6-105, W.S.1957, 1973 Cum.Supp. Copies of these statutes are included in the attached appendix.

In light of the decisions of the Supreme Court of the United States, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, rehearing denied 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, rehearing denied 410 U.S. 959, 93 S.Ct. 1410, 35 L.Ed.2d 694, our course is firmly directed insofar as it touches the question of the constitutionality of §§ 6-77 and 6-78. The primacy of the Supreme Court of the United States in constitutional areas is firmly embedded in our law by judicial decision and in our own State Constitution, Art. 1, § 37, and Art. 21, § 24.

Plaintiff Doe in a class action for herself and others similarly situated filed her petition alleging that she was in the fourteenth week of her pregnancy and had applied for therapeutic abortion to her physician, who had refused to perform this because of his fear of prosecution under these sections of the abortion law. She prayed for an injunction against the officials who might institute prosecution and for a declaratory judgment that these sections are unconstitutional. The trial court in its judgment held that insofar as these sections applied to women in the first and second trimesters of pregnancy they were violative of plaintiffs’ rights under the due process clause of the Fourteenth Amendment of the United States Constitution and the right of privacy under the First, Fourth, Ninth, and Fourteenth Amendments of the United States Constitution, and were of no force and effect as they applied to this plaintiff or any other person in her class during the first and second trimesters; and enjoined the attorney general and county attorney from prosecuting plaintiff, her doctor, medical consultants, or anyone else involved with the plaintiff in obtaining relief by way of an abortion. This judgment also included the same holding insofar as it affects § 6-105, but refused to pass upon the question of the constitutionality as it affected women in the third trimester. Both parties appealed from this judgment.

The constitutionality of the first two mentioned sections has passed from our hands because in Wade, 93 S.Ct. at 709-710, the court directs attention to the similarity between our statutes and the Texas Statutes, Arts. 1191-1194 and 1196 of the State’s Penal Code, Vernon’s Ann.P.C., leaving us no room for decision.

We see no logical reason why these statutes should not also be held unconstitutional and void in their application to all women. This answer lies in the case of McFarland v. City of Cheyenne, 48 Wyo. 86, 42 P.2d 413, 416-419. That case recognizes the principle that a statute may be upheld as to one class embraced therein but further recognizes the rule that “courts incline towards treating a penal statute as void in its entirety whenever one section or clause is clearly unconstitutional,” 6 R.C.L. 132; and further that “If the invalid portion is severable from the remainder, and constitutes but an incidental or unimportant part of the law, the remainder may stand,” but that if it is not severable and the main purpose of the law would fail then the entire statute must be declared unconstitutional, 42 P.2d at 416. For these rea*645sons both §§ 6-77 and 6-78 must fall and we hold there is no basis for the trial court’s failure to so hold that they were unconstitutional in their application to all such persons.

The regulation of abortions in this State is beyond the power of the courts and is solely a matter for the legislature, which must, of course, give heed to the pronouncements of the United States Supreme Court, particularly the summary appearing in Roe v. Wade, supra, 93 S.Ct. at 732-733.

We are, however, faced with a substantial question insofar as the lower court held and the appellants assert the unconstitutionality of § 6-105, W.S.1957, 1973 Cum. Supp. The petition of the appellants in no manner sets out any detrimental effect upon plaintiff or the class she represents by application of this section — merely alleging that these three statutes “are in pari mate-ria” and must stand or fall as one unit. In their brief they assert that because these statutes are a unit they must fall and that to enforce the same would restrict the individual’s right to a medically safe abortion. Plaintiff Doe is not a physician nor does she assert that any of the people she represents are physicians. There is no contention she is a publisher, seller, or distributor of medicine or nostrums or that she has ever sought such medicines or nostrums.

The parties in the lower court apparently proceeded upon the theory that § 6-105 was in pari materia with those declared invalid. We, however, will not necessarily decide this nor are we forced to a decision as to whether the “in pari materia rule” is one of construction solely. The title of the bill reenacting and amending this clause concerns itself with “Family Planning and Birth Control”. — -not abortions. This in itself would raise a question as to whether it was in pari materia. It may be suggested that this section could conceivably be the subject of attack upon another basis if asserted by a proper party.

We have several times held that parties must show an adverse effect upon their rights before this court will recognize a claim of unconstitutionality, Johnson v. Schrader, Wyo., 507 P.2d 814, 818, and Powers v. City of Cheyenne, Wyo., 435 P.2d 448, 452, rehearing denied 436 P.2d 961, and cases cited therein. There is an equally compelling reason for a failure to consider this because this matter was treated apparently incidentally by the parties in their brief and argument. We have recognized that constitutional questions should not be considered unless they be specifically phrased and completely argued, Miller v. Board of County Commissioners of County of Natrona, 79 Wyo. 502, 337 P.2d 262, 271, and Salt Creek Transp. Co. v. Public Service Commission of Wyoming, 37 Wyo. 488, 263 P. 621, 622.

This matter is remanded to the district court for the entry of a declaratory judgment, declaring §§ 6-77 and 6-78, W.S.1957, unconstitutional and void and of no force or effect, and that reference to the unconstitutionality of § 6-105 be and the same is hereby ordered stricken from such judgment.

Affirmed as modified.