365 Mass. 556, 314 N.E.2d 128 (1974)
The husband, then twenty-seven years of age, married the wife, then twenty-three years of age, on April 17, 1973.1 They lived together in this Commonwealth as husband and wife.2 The husband is employed as a truck driver, earning $200 a week.3 Before the marriage, in 1972, the wife had a child by another man.4
She first became pregnant by her husband in June, 1973, and suffered a miscarriage in August, 1973.5 About November 12 she again became pregnant by her husband.6 This pregnancy was a wanted pregnancy on the part of both husband and wife.7
The husband and wife separated late in January, 1974.8 Early in February, the husband told the wife that he did not want to support the child, and that to avoid responsibility for the child he did not want his name on the birth certificate as the father.9 Thereafter the wife, notwithstanding her previously expressed sentiments against abortion, told her husband that she wished to terminate the pregnancy, saying she did not think she could handle two children and did not want the second child.10 The husband objected and brought this suit.11
He testified that he was willing to support the child and to assume custody and that he had considered arrangements for its care, including day care by the wife’s sister.12 The wife testified that she did not think either her husband or her sister was capable of taking care of a child and that if prevented from having an abortion she would never consent to having custody given to her husband.13
The husband’s bill was filed in the county court on March 5, 1974.14 On March 8 a single justice of this court ordered the appointment of a guardian ad litem for the unborn child and, after hearing, granted the husband’s prayers for temporary relief, restraining the wife and the physician from proceeding with the planned abortion.15 On March 12 the single justice filed findings of fact, the wife filed a demurrer, an answer, an exception to the appointment of a guardian ad litem, and a motion to supplement the findings of fact, and the single justice reserved and reported the case to the full court.16 Briefs were submitted by the husband, the wife, and friends of the court, and the guardian ad litem filed a report.17 Argument occurred on March 13, and the following day the court issued an order vacating the decree of the single justice and directing entry of a decree granting the wife’s prayers for declaratory relief.18 Presumably the abortion was promptly performed.19
Medical testimony indicated that the wife’s general health was good.20 Her first pregnancy was normal and resulted in the birth of a normal child.21 At the time of the order she was about eighteen weeks along in her pregnancy.22 The fetus was not viable. There was little risk of serious injury to her health in a saline abortion performed before twenty-eight weeks of gestation have elapsed.23 There was likewise little risk of serious injury in carrying the pregnancy to normal delivery.24
Whether the Supreme Judicial Court has jurisdiction over a suit between husband and wife for declaratory and injunctive relief concerning a planned abortion?25
Suits in equity may be maintained between husband and wife where there exists some recognized ground of general equity jurisdiction or some controversy over property rights, as distinguished from a mere debt or contractual obligation.26 The court has rejected the formula that equity protects only property rights and recognized that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction.27
Yes. The husband filed his bill in the county court on March 5, 1974, seeking declaratory and injunctive relief against his pregnant wife who intended to procure an abortion over his objection.28 On March 8 a single justice ordered the appointment of a guardian ad litem for the unborn child and granted temporary relief restraining the wife and physician.29 On March 12 the single justice reserved and reported the case to the full court after the wife filed a demurrer and exception to the guardian appointment.30
Although the wife argued lack of jurisdiction citing G. L. c. 209, § 6, the court determined that declaratory relief is proper because the case presents personal rights of a delicate character where clarification serves the public interest.31
The evidence established that the parties married on April 17, 1973, lived together in the Commonwealth, and that the wife was approximately eighteen weeks pregnant with a nonviable fetus at the time of the order.32
The Supreme Judicial Court has jurisdiction to entertain the suit for declaratory relief.33
Whether the husband possesses a fundamental right under the Constitution of the United States to prevent his wife from obtaining an abortion?34
Interests associated with the marital relationship give rise to rights guaranteed by the Federal Constitution.35 Those cases involved a shield for the private citizen against government action, not a sword of government assistance to enable him to overturn the private decisions of his fellow citizens.36
No. The husband contended that he has a fundamental right, guaranteed by the Constitution of the United States, to determine that his child shall not be aborted, citing the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut.37 The court examined precedents such as Meyer v. Nebraska, Pierce v. Society of Sisters, Skinner v. Oklahoma ex rel. Williamson, Griswold v. Connecticut, Loving v. Virginia, and Roe v. Wade that recognize rights of privacy in the marital relationship.38 All those cases involved a shield for the private citizen against government action, not a sword of government assistance to enable him to overturn the private decisions of his fellow citizens.39
The husband and wife had separated late in January, 1974, after the pregnancy was initially wanted by both, and the wife decided to terminate it because she did not think she could handle two children.40 The court found no basis for the husband’s assertion that the Constitution enables him to summon the Commonwealth to help him in a dispute with his wife.41
The husband does not possess a fundamental right under the Constitution of the United States to prevent his wife from obtaining an abortion.42
Related opinions on this issue
Justice Hennessey dissented in part from the majority opinion.43 He concurred with the denial of injunctive relief.44 He dissented from the determination that the husband has no legal rights.45
He would have declared that the husband has fundamental rights here and that the wife has a duty to forbear the abortion.46 He argued that in the circumstances of this case the father’s rights were dominant because the woman’s health was not a factor, the husband was willing to assume custody, and the wife’s assertions were not supportable by contrast.47 Justice Hennessey would have declared that the wife has a duty to forbear the abortion even while denying the injunction. The Wade and Bolton cases expressly reserve the question of the father’s rights and are not directly controlling.48
Justice Reardon dissented, maintaining that the husband’s interest in the birth of his child is a legitimate and judicially cognizable natural right rooted in the Massachusetts Constitution and common law.49 He emphasized that the right of privacy recognized in Roe v. Wade and Doe v. Bolton protects against state intrusion, not against enforcement of private interests between husband and wife.50
Justice Reardon concluded that on the facts presented the balance of perceptible interests falls in favor of the potential father because the injury to the husband is permanent while the wife’s burden after birth could be assumed by the husband.51
Whether any statute of the Commonwealth grants the husband rights with respect to the abortion decision?52
The statute on abortion is a criminal statute forbidding an abortion unless performed in good faith and in an honest belief that it is necessary for the preservation of the life or health of the woman.53 The statute was rendered inoperative for the purposes of the present case by the decision in Roe v. Wade.54
No. The husband does not claim support for his position from any statute of the Commonwealth.55 The court noted that the Commonwealth’s abortion statute, G. L. c.
272, § 19, is a criminal statute that was rendered inoperative by Roe v. Wade.56 In other states recent statutes have dealt with spousal consent, but the husband advanced no such statutory claim here.57 The court observed that statutes in some states provide for the consent of the husband, yet in several the consent is given effect only where the wife is a minor or the parties are living together.58
No statute of the Commonwealth grants the husband rights with respect to the abortion decision.59
Whether the common law recognizes an enforceable right in the husband to prevent the abortion of a nonviable fetus?60
Recognition of an enforceable right in the husband to prevent the abortion would raise serious constitutional questions. Roe v. Wade recognized a right of personal privacy broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. During the first trimester the attending physician in consultation with his patient is free to determine that the pregnancy should be terminated.61
No. Before the 1973 decisions in Roe v. Wade and Doe v. Bolton there was little occasion for the development of legal doctrines with respect to the civil rights of the parties to the abortion decision.62 After those decisions, recognition of an enforceable right in the husband would raise serious constitutional questions. The Supreme Court recognized a right of personal privacy broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.63 The court declined to fashion a rule of decision recognizing an enforceable right in the husband at least where the fetus is not viable.64
The husband and wife had separated, the fetus was not viable at eighteen weeks, and the court concluded that some things must be left to private agreement rather than court order.65
The common law does not recognize an enforceable right in the husband to prevent the abortion of a nonviable fetus.66
Related opinions on this issue
Justice Hennessey dissented from the court’s determination that the husband has no legal rights.67 He would have declared that the husband has fundamental rights and that the wife has a duty to forbear the abortion.68 He noted that the Wade and Bolton cases are not directly controlling and that the father’s rights are familial rights about as old as civilization itself.69
Justice Hennessey concluded that justice to the husband required forbearance by the wife even though injunctive relief was denied because of enforcement difficulties.70
Justice Reardon dissented, arguing that the common law and natural law recognize the interest of a parent in his child even before birth.71 He pointed to custody presumptions, adoption consent requirements, tort remedies for injuries to unborn children, and pretermitted child statutes as evidence that the parental interest precedes birth.72
Justice Reardon would have granted the injunction because the husband stood ready to assume all responsibility after birth and the injury to the husband is unmistakably permanent.73