486 U.S. 1308 (1988)

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U.S. Supreme Court

DOE v. SMITH , 486 U.S. 1308 (1988)

486 U.S. 1308

John DOE
No. A-954.

June 15, 1988.

Justice STEVENS, Circuit Justice.

Applicant has filed an application with me as Circuit Justice to enter an order enjoining Jane Smith from obtaining an abortion of their unborn child. For the reasons hereinafter stated, the application is denied.

Applicant initiated proceedings seeking this relief from the Elkhart, Indiana, Superior Court on May 31, 1988. After granting a temporary restraining order without notice, the Superior Court held an evidentiary hearing, made detailed findings of fact, conclusions of law, and filed a written opinion. The findings recite, in part:

    "5) That the unrebutted testimony from both the parties is that the Plaintiff is the natural father of the unborn child of the mother.

    "7) That the child was conceived in April of 1988 during a liaison between the mother and the father, which commenced in February or March and terminated shortly after conception.

    "8) That at the time conception occurred, the father was separated from his wife of six months, and upon leaving the Defendant he became reunited with his first wife.

    "9) That the father has two children, one his biological issue, with his first wife.

* * * * *

    "12) That the father has been sporadically employed at low- paying jobs for the last eighteen months.

    "13) That the mother has testified she is physically, emotionally and economically unwilling to bear the child.

    "14) That the parties mutually agree that there is no foreseeable possibility of their reuniting in any way."

In his opinion, the trial judge stated, in part:

    "While the Court has carefully weighed the testimony, it is apparent that although the Plaintiff has expressed a legitimate and apparently sincere interest in the unborn fetus, his interest would not be sufficient to outweigh the Constitutionally protected right of the Defendant to abort her child. It would appear from the Danforth decision that in order to require the mother to carry a child to term against her wishes, the father must demonstrate clear and compelling reasons justifying such actions. In this case, the father has failed to do so. Reviewing the undisputed facts presented in this Cause, the Court is unable to find that the interests of the Plaintiff outweigh the interest of the Defendant. It is significant that, among other facts, the evidence discloses the parties are not married, that there is no suggestion they will ever reunite, that the Plaintiff is able to father other children and, in fact, has other children, and that the Plaintiff has showed substantial instability in his marital and roman- [486 U.S. 1308 , 1310]

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