United States District Court, Northern District of Illinois, Eastern Division
June 8, 1981
JANE DOE, ETC., ET AL., PLAINTIFFS,
TYRONE C. FAHNER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Jane Doe, as mother and next friend to Mary Doe and as grandmother and
friend to Baby Boy Doe, has brought this individual and class action
attacking the constitutionality of Ill.Rev.Stat. ch. 38, §§ 81-27,
81-28 and 81-31(a). Those sections of the Illinois Abortion Law treat
the situation in which a live birth occurs during an attempted voluntary
After an emergency hearing when suit was initially filed, on May 9,
1981 this Court:
(1) certified classes of both plaintiffs*fn1 and
defendants after hearing argument on the applicability
of the criteria established by Fed.R.Civ.P. ("Rule")
(2) entered a ten-day temporary restraining order
against enforcement of the statutes.
While the TRO was in effect the Court conducted a hearing on plaintiff's
application for a preliminary injunction. Following the hearing the TRO
was extended to May 29 to permit the Court to render its decision.
Before the TRO had expired and while the Court's opinion and decision
were in preparation, plaintiffs' counsel informed the Court of the
unfortunate death of Baby Boy Doe. That poses a serious question as to
the continued existence of a justiciable controversy. There is of course
no longer a possibility of juvenile court proceedings as to the child
— the focal point of the challenged statutes and of plaintiffs'
attack — so that the claim of the named plaintiffs is moot. Thus
the threshold issue that must be dealt with is that of possible mootness
of the class action aspect of this litigation.
Once certified, a class acquires an independent legal status separate
from that of its named representative and the interest she asserts. Sosna
v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). In
Sosna and other cases the Supreme Court has established a three-step
analysis for ascertaining the viability of a class action after the claim
of the named representative becomes moot:
(1) It must be determined whether a "live
controversy" remains between the unnamed class members
and the defendants. Sosna, 419 U.S. at 401-02, 95
S.Ct. at 558. This is an Article III jurisdictional
issue: the question whether a "case" or "controversy"
(2) It must be determined whether the remaining
controversy is an appropriate one for passing on
constitutional questions. This is a policy
consideration usually, but not necessarily, controlled
by the "capable of repetition, yet evading review"
standard. Id. at 399-400, 95 S.Ct. at 557; Franks v.
Bowman Transportation Co., 424 U.S. 747, 756 n.8, 96
S.Ct. 1251, 1260 n.8, 47 L.Ed.2d 444 (1976).
(3) It must be determined whether the named
plaintiff can continue "fairly and adequately [to]
protect the interests of the class" (the Rule 23(a)
standard). Sosna, 419 U.S. at 403, 95 S.Ct. at 559.
Courts have not been forced to treat with the first step of the
analysis in any depth. Typically there have been other existing and
identifiable class members in the same situation as the named plaintiff.
See, e. g., Gerstein v. Pugh, 420 U.S. 103
, 110 n.11, 95 S.Ct. 854, 861
n.11, 43 L.Ed.2d 54 (1975) (class of pretrial detainees); Sosna (class of
persons resident in Iowa for less than one year wishing to commence
marriage dissolution actions). In contrast the plaintiff classes
certified by this Court are prospective in nature, for there is no
evidence of any now-living infant who has survived an attempted
abortion. While it is clear that defendants continue to intend to enforce
the challenged statutes if the situation again arises, every litigation
requires present real adversaries to meet the need for Article III
Sosna is perhaps the most instructive precedent on that point. There
the District Court certified a class consisting of (419 U.S. at 397, 95
S.Ct. at 556):
those residents of the State of Iowa who have resided
therin for a period of less than one year and who
desire to initiate actions for dissolution of marriage
or legal separation, and who are barred from doing so
by the one-year durational residency requirement
embodied in Sections 598.6 and 598.9 of the Code of
When the named plaintiff's claim became moot the Court found a continuing
live controversy because "it is clear that they [Iowa officials] will
enforce it against those persons in the class that appellant sought to
represent. . . ." (419 U.S. at 400, 95 S.Ct. at 558).
True enough, the Sosna court found Article III satisfied without
actually ascertaining whether any people residing within the state of
Iowa for less than one year wanted to seek marital dissolutions. But the
parties there had stipulated "that there were in the State of Iowa
`numerous people in the same situation as plaintiff'" (419 U.S. at 397,
95 S.Ct. at 556). Implicit in the Court's statement about Iowa's
continuing readiness to enforce its statute was the concept that unnamed
class members were actively affected by the challenged statute. Indeed
that is the clear tenor of the Court's opinion (419 U.S. at 402, 95
S.Ct. at 558):
Our conclusion that this case is not moot in no way
detracts from the firmly established requirement that
the judicial power of Art. III courts extends only to
"cases and controversies" specified in that Article.
There must not only be a named plaintiff who has such
a case or controversy at the time the complaint is
filed, and at the time the class action is certified
by the District Court pursuant to Rule 23, but there
must be a live controversy at the time this Court
reviews the case. SEC v. Medical Committee for Human
Rights [404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560]
supra. The controversy may exist, however, between a
named defendant and a member of the class represented
by the named plaintiff, even though the claim of the
named plaintiff has become moot.
In effect the very nature of the class affected by the statute
compelled the conclusion as a matter of human experience that there were
substantial numbers of real though unidentified class members at all
times — a kind of judicial notice obviating the need for proof.
Gerstein too reflected the same notion (420 U.S. at 111 n.11, 95 S.Ct. at
Moreover, in this case the constant existence of a
class of persons suffering the deprivation is
certain. The attorney representing the named
respondents is a public defender, and we can safely
assume that he has other clients with a continuing
live interest in the case.
Most recently, in United States Parole Commission v. Geraghty,
445 U.S. 388
, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), the Court
spoke to the same effect:
It is clear that the controversy over the validity of
the Parole Release Guidelines is still a "live" one
between petitioners and at least some members of the
class respondent seeks to represent. This is
demonstrated by the fact that prisoners currently
affected by the guidelines have moved to be
substituted, or to intervene, as "named" respondents
in this Court.
This Court's reading of Sosna, Gerstein, and Geraghty (and the same is
true of all other class action mootness cases) is supported by
fundamental principles of justiciability under Article III. At the core
of federal courts' concern about mootness is their felt need to limit
themselves "to questions presented in an adversary context and in a form
historically viewed as capable of resolution through the judicial
process." Flast v. Cohen, 392 U.S. 83
, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d
947 (1968). No class that is entirely prospective in nature can
adequately fulfill the adversary role necessary to present a "case" or
"controversy" under Article 111.*fn2
And the very nature of
the problem posed by this case, dealing as it does with the rarity of a
live birth during a voluntary abortion proceeding, precludes the kind of
assumption about current class members that underpins the other cases
finding a "live" controversy.
This Court finds no present "case" or "controversy," as required by
Article III, between the defendants on the one hand and either the named
plaintiffs or the plaintiff classes on the other. Accordingly this action
must be and is dismissed under Fed. R.Civ.P. 12(h)(3).