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Law School Case Brief

Doe v. Doe - 365 Mass. 556, 314 N.E.2d 128 (1974)


Suits in equity may be maintained between husband and wife where there exists some recognized ground of general equity jurisdiction or some controversy over property rights, as distinguished from a mere debt or contractual obligation. The formula that equity protects only property rights is rejected and it is recognized that the true rule is that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction.


Both husband and wife actively pursued the pregnancy. However, although the wife discovered that she was pregnant, two months later, the parties had separated and the husband informed the wife he did not want to support the child and that he did not want his name on the birth certificate of the child as the father. The wife decided that she wished to terminate her pregnancy as she already had a child and was not sure she could handle two children on her own. The husband sought declaratory and injunctive relief against the wife to prevent her from procuring an abortion over his objection.


Should the Court grant injunctive relief to the husband to prevent his estranged wife's abortion?




The court found that the husband did not have an enforceable right to prevent the wife's abortion. The court found that equity protected personal rights by injunction upon the same conditions that it would protect property rights by injunction and that the court at least had jurisdiction to enter a declaratory judgment. The court observed that the state could not interfere with the abortion decision, before the fetus was viable, except in ways reasonably related to maternal health because a woman had a right to personal privacy in her decision of whether or not to terminate her pregnancy. The court concluded that the state could not come to the husband's assistance with authority it did not itself possess. 

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