Opinion
No. 77-584.
Argued November 15, 1978. —
Decided December 27, 1978.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM R. MOSER, Circuit Judge. Reversed and remanded, with directions.
For the defendant-appellant there were briefs by Harry F. Peck and Roger Pettit of the Wisconsin Civil Liberties Union, Milwaukee, with oral argument by Harry F. Peck.
For the plaintiff-respondent there were briefs and oral argument by Linda A. Leaf, of Milwaukee.
Before Decker, C.J., Cannon, P.J., and Robert W. Hansen, Reserve Judge.
Plaintiff Patrick Przybyla brings this action for $1,000,000 in compensatory and punitive damages against Michelle Przybyla, who at the relevant times here involved was his wife. The pertinent allegations are:
The present marital status of the parties is unascertainable from the record; however, at the time of conception the parties were husband and wife and at the time of the abortion the parties were separated and a divorce action was pending in the circuit court for Milwaukee county.
3. That the defendant was pregnant with the child of plaintiff; and that on April 22, 1977 she deceitfully terminated this pregnancy via an abortion.
4. That the plaintiff beseeched the defendant not to destroy his child because he desired to be a father and enjoy the companionship, care, custody, and management of his child and family.
5. That the defendant maliciously and deceitfully abused the confidence and trust implicit in a marriage relationship and aborted her pregnancy, thereby denying plaintiff fatherhood, and with deceit, malice, and intent to injure the plaintiff, led the plaintiff to believe she would delay the abortion and consider his pleadings for the life of his child and an opportunity for fatherhood.
6. That through the malicious acts of the defendant, the plaintiff was denied the enjoyment of fatherhood and the companionship and care of his child and family; and that the plaintiff suffered great emotional anguish and mental distress caused by the malicious deceit of the defendant, all to his injury.
Defendant concedes that she was pregnant as alleged and that she procured an abortion on April 22, 1977, in a medically-accepted manner nine weeks after conception without the permission or consent of her husband. Her concession is not disputed by the plaintiff husband. Although the defendant has denied the allegations of paragraphs 4, 5 and 6 quoted above, the parties concede that the issues presented are legal, not factual, and thus may be reached upon summary judgment. Thus, we construe the defendant's position as a concession of the facts as alleged and as supplemented by the moving papers, but a contention that the conceded facts, as a matter of law, do not constitute a claim upon which relief may be granted.
Lawver v. Boling, 71 Wis.2d 408, 413, 238 N.W.2d 514 (1976).
See secs. 802.06(2) and (3), and 802.08, Stats.
The defendant, in furtherance of that position moved for summary judgment denying that an issue of material fact existed and claiming entitlement to judgment as a matter of law. The circuit court denied summary judgment and this appeal followed.
The only facts which we are permitted to consider are those in the record and they postulate the simple question whether a claim for damages resulting from severe emotional distress can arise from a wife's determination to seek an abortion during the first trimester of her pregnancy without the advice, consent or permission of the child's father, her husband, after she falsely misrepresented and deceived him about her intention to seek an abortion.
Sedlet Plumbing Htg. v. Village Court, Ltd., 61 Wis.2d 479, 483, 212 N.W.2d 681 (1973).
We note the absence of any allegation of special financial detriment to the plaintiff or gain to defendant.
Grounding his action upon the fraudulent and intentional misrepresentation of the defendant, the plaintiff contends: "All the factors in Alsteen v. Gehl, 21 Wis.2d 349 (1963) are present in this case for the recovery of damages for the intentional infliction of emotional distress."
Plaintiff's brief, p. 6.
Under the Alsteen rule the plaintiff must demonstrate four factors to recover. The one factor critical to this case is:
2. In addition to being intentional, the defendant's conduct must be extreme and outrageous. The average member of the community must regard the defendant's conduct. . . as being a complete denial of the plaintiff's dignity as a person.
21 Wis.2d 349, 360, 124 N.W.2d 312 (1963).
Defendant's right to obtain an abortion without the consent of her spouse is preserved to her by the United States Constitution as interpreted by the United States Supreme Court in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 69-71 (1976). Because we view that case as directly controlling the issues in this case, our quotation therefrom is unusually lengthy:
In Roe and Doe we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy." Clearly, since the state cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.
We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.
. . .
We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. [Footnotes and citations omitted.]
We hold that the intentional exercise by a woman and her physician of her right to terminate her pregnancy as protected by the United States Constitution, cannot constitute conduct that is so extreme and outrageous that it meets the Alsteen requirement quoted above.
The order of the circuit court is reversed and the action is remanded with directions to enter an order dismissing the complaint upon its merits.
By the Court. — Order reversed and remanded with directions.