A closely divided Maryland Court of Appeals refused yesterday to decide whether a husband has a legal right to stop his wife from having an abortion.
Acting in the case of Chris Allen Fritz, a Hagerstown man who had sought an injunction in September to block his wife's planned abortion, the high court ruled 4-3 that the issue was moot since the wife, Bonny Ann Fritz, obtained the abortion while the case was being reviewed in a lower court.
R. Martin Palmer Jr., attorney for Chris Fritz, said yesterday that if the court made its decision solely on the question of whether the case is moot and did not debate the merits, he has no right of appeal.
In September Bonny Fritz, became pregnant and decided to have an abortion. Her husband objected, and she separated from him. Chris Fritz sought an injunction in Washington County Circuit Court, arguing that, as husband and father of the unborn child, he had a right to participate in the abortion decision.
Judge Daniel Moylan issued an injunction on Sept. 17, forbidding the abortion without the husband's written consent. Bonny Fritz and the clinic where she planned to have the abortion immediately appealed to the Maryland Court of Special Appeals, where a single judge suspended the injunction pending a full hearing. The next day, the suspension of the injunction was overridden by the Maryland Court of Appeals, the state's highest tribunal, when it agreed to hear the case at the husband's request.
Bonny Fritz meanwhile had obtained the abortion during the brief period the injunction had been suspended.
With the issue thus moot, the Court of Appeals said yesterday, it could not decide the merits of the case unless "we are persuaded that there exists an urgency of establishing a rule of future conduct in matters of important public concern, which is both imperative and manifest . . . We are not persuaded at this time that the present case falls within such category."
But Judge Marvin H. Smith, one of the three dissenting judges, protested that intense public interest in the issue and the likelihood of similar incidents occurring justified making an exception to the court's general rule against intervening in moot issues.
Smith, with Judges Harry A. Cole and Rita C. Davidson agreeing, said the "type of issue here presented well exemplifies the exception to the mootness rule . . . It is the kind of issue which is likely to recur without sufficient time for regular briefing and argument." Also, Smith argued that "public importance or public interest" was demonstrated in the case by the extensive media coverage and the unusually large public turnout at the court of appeals hearing in September.
Yesterday's ruling, written by Judge John C. Eldridge, with Judges Lawrence F. Rodowsky, James F. Couch and Chief Judge Robert C. Murphy concurring, ordered the original case dismissed.
Barbara Mello, the American Civil Liberties Union attorney who represented Bonny Ann Fritz, said she believes the court was "probably right" to declare the issues in the case moot. "But I still have a sense of incompleteness," she added.