Cases from Below: In the Superior Court of Alaska: Doe v Roe

In the Superior Court of Alaska, Third Judicial District, Anchorage


Hon. Raymond Dawkins, presiding


Doe v Roe


On a writ of Replevin

Denial of writ


          The petition before me is one of the most creatively bizarre ever to have passed before this bench. One John Doe contracted, in writing, with one Jane Roe for a child (names masked to preserve privacy). Artificially inseminated with his sperm, she agreed to carry the fetus to term, thereafter waiving all parental rights for the sum of $50,000, $25,000 having been duly paid at conception, remainder due at birth. Doe has agreed to pay all medical costs during pregnancy, plus an income of $3,000/month, prorated. The contract has no opt out clause with associated compensation for either party; Roe is contractually obligated to provide a child to which Doe assumes all parental rights and obligations.


          One month into pregnancy, Roe decided to abort. She informed Doe of her intent, precipitating the present plea. Doe requests a writ of replevin ancient in common law. This writ demands distraint of property pending determination of ownership and potential return of property to its rightful owner. It is a writ of right in which ownership is, or can be, forever determined by a jury. Crucially for my disposition today, Constitutional protection of reproductive choice would minimally require jury trial if this writ were to proceed.


          Doe requests property constraint to the Court given the “unusual nature of gestation,” which would effectively place the fetus under Court protection until birth. He claims that the contractual creation of the fetus places in him an indestructible property right in its gestation and term, voidable only in the interest of the mother’s health. Roe has made no health claim, so Doe says.  Issuing writ would otherwise, Doe claims, enjoin the right to abort, as under writ a defendant is charged with the preservation of challenged property pending jury verdict.


          Here a tour de force of arcane common law: issuing an ancient writ is to nullify a modern Constitutional right–for trial date, process, and outcome would likely place this woman beyond the window for a safe abortion. In itself this is sufficient reason to reject the writ, for the defendant most likely cannot prevail in outcome even with merit. Doe claims that voluntary contractual obligation, duly formed in law, is waiver of what amounts to otherwise an absolute right to abortion under the present facts at plea (Roe v Wade, 410 US 113 [1973]; Planned Parenthood v Casey, 505 US 833 [1992]; Stenberg v Carhart [2000]); contract places Roe in assumed jeopardy of enforcement at law, one avenue of which is the present writ of replevin mandating jury trial.


          The realities of pregnancy preclude this jury defense of reproductive right. This Court cannot enable a defense which is no defense. Beyond this, plaintiff provides no evidence that the ancient writ of replevin has, or can be, applied to the distraint of humans in this State; nor has similar relief been codified by statute in Alaska. The proposed use of writ is moribund throughout the United States, perhaps last affirmed during the institution of slavery (e.g., von Frank, Albert J., 1998, The trials of Anthony Burns: freedom and slavery in Emerson’s Boston, Harvard University Press). While Roe, on evidence presented at plea, may be unable to fully return the $25,000 provided at conception, Constitutional law has long held that Courts may not enforce positive action amounting to continued employment to resolve failed contract (Clyatt v US, 197 US 207 [1905]; Bailey v State of Alabama, 219 US 219 [1911]). This Court cannot comprehend how forcing pregnancy to term is not a forced positive action on Roe; the offended party, here Doe, may request only damages in the form of money (Clyatt v US, 197 US 207 [1905]; Bailey v State of Alabama, 219 US 219 [1911]). There is thus no need to delve into the mysteries of the absorption of ancient common law into modern jurisprudence; nor need to impose real psychic distress onto the defendant to that end. The application petitioner would evoke died during the Civil War.


          Writ denied.


Hon. Raymond Dawkins

Third Judicial District, Anchorage

Superior Court of Alaska


Case trajectory: Associate Justice Rachel Colleen Whitehead, having oversight over the 9th Circuit, which includes Alaska, issues a stay against the Superior Court’s judgement, requesting emergency, expedited hearing before the Suzuki Court.


Hearing granted, 5-4

For: Cabrales, Scalia, Suzuki, Thomas, Whitehead

Against: Breyer, Mitland, Souter, Young


Case heard on a writ of mandamus and writ of certiorari as Doe v Dawkins, not against Roe, but on the issue of State and Judicial oversight of human distraint and reproductive property rights.

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