Petition — Singleton v. Wulff

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Supreme Court, U. S.

‘ FitED

MAY 6 1975

MICHAEL RUvAi CL

SUPREME COURT OF THE UNITED STATES

TITTTTTT TTT Tee TERM, 1975

No. 24-1393

THOMAS E. SINGLETON,

Petitioner,

vs.

GEORGE J. L. WULFF, JR., M.D.,

and

MICHAEL FREIMAN, M.D.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Joun C. DanrortH

Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

(314) 751-3321

Counsel for Petitioner

MICHAEL L. BOICOURT

Assistant Attorney General

Of Counsel

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KELLY PRESS, INC., 201 South Eighth Street, Columbia, Missouri Dial 449-4163

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Statutory provisions involved ..............-eseeeees

FEE REEL OE OEE HOP OOTP OT

Reasons for granting the writ ...............eceeeees

I. The Court of Appeals Erroneously Held That the

Respondent-Physicians Had Standing to Assert

the Unconstitutionality of Section 208.152(12),

RSMo Supp. 1973, and, in So Doing, Rendered a

Decision in Conflict with the Opinions of the Su-

preme Court on the Matter of Standing ..........

The Court of Appeals Erroneously Determined

That It Had Jurisdiction to Examine the Merits

of This Case, Reaching the Constitutionality of a

State Statute, Because the District Court Was Giv-

en No Opportunity Itself to Examine the Consti-

tutionality of Section 208.152, nor Was the Peti-

tioner Ever Given an Opportunity to Defend the

Constitutionality of That Statute, And, to That

Extent, the Determination by the Court of Ap-

peals, on the Merits, That the Statute Was Uncon-

stitutional So Departs From the Accepted and

Usual Course of Judicial Proceedings as to Call

For an Exercise of the United States Supreme

Court’s Power of Supervision ..................

Ill. The Court of Appeals Erroneously Held Section

IV.

208.152(12), RSMo Supp. 1973, to Be Unconsti-

tutional, and, in Doing So, the Court of Appeals

Passed upon a Legal Issue Which Has Not Here-

tofore Been Determined in The United States Su-

preme Court but Which Should Finally Be Settled

Sy ee GED oS. béd00b0cc0ceduueaseactueen

The Court of Appeals Erroneously Held That the

State Must Provide Medical Payments for Non-

Therapeutic Abortions If It Provides Medical Pay-

ments for Pregnancies Carried to Term or for

Therapeutic Abortions Because the Effect of That

Holding Is to Condition the Receipt of Federal

Medicaid Funds upon State Subsidization of Non-

Therapeutic Abortions Which Result Coerces the

State into Making Payments for Non-Therapeutic

Abortions in Contradiction to the Expressed Pub-

lic Policy of the State of Missouri and Thereby

Interferes with A Power Reserved to the State by

the Tenth Amendment to the United States Con-

Aiecdebaevensevevedhensbedsedsencasedes

i RARER al ee EAD cel am see ene Ao Rl ee ee 20

Appendix 1 (Opinion and Judgment of Court of Ap-

ED bcducatectveschedacneencucdscteceedeness

Appendix 2 (Opinion and Judgment of District

DE ‘iuad0e cos 0ubuee ees webs eeeeeesedoudens

CITATIONS

CASES

Page

Association of Data Processing Service Organizations

v. Camp, 397 U.S. 150 (1970) ........... cece ween 7

Bandy v. U.S., 396 F.2d 929; cert. den. 393 U.S. 1004

task hditi Wass SedinShdee de oc 00 on sok 6s cececsta 13

Barlow v. Collins, 397 U.S. 159 (1970) .............4.. 8

Barrows v. Jackson, 346 U.S. 249 (1953) ............. 9

Bruska v. Missouri, 332 F.Supp. 275 (E.D.Mo. 1971);

GENE, GES UTE. BERD CEBTE) occ ccccccccccccccccss 16

Doe v. Bolton, 410 U.S. 179 (1973) ......... 2, 8, 15, 19, 20

Doe v. Scott, 321 F.Supp. 1385 (N.D.IIl. 1970), vacated

GD Ws Se EE So WeewSsceccccicsescccoccces 8

Equal Opportunity Commission v. Standard Forage

and Azel Co., Inc., 496 F.2d 1392 (5th Cir. 1974) .. 12

Eureka-Carlisle Company v. Rottman, 398 F.2d 1015

SE ED ic vvncuc cdevsceweséeeuecencesoees 12

Fitts v. U.S., 376 F.2d 516 (10th Cir. 1967) ............ 12

Flast v. Cohen, 392 U.S. 83 (1968) ................ 7, 8, 23

Gardner v. Myers, 491 F.2d 1184 (8th Cir. 1974) ....... 13

Geduldig v. Aiello, —— U.S. ——, 94 S.Ct. 2485 (1974) . 16

Giordano v. United States, 394 U.S. 310 (1969) ........ 12

Gonzalez v. Automatic Employees Credit Union, -—

U.S. ——, 42 L.Ed.2d 249 (1974) ............... 6, 11

Griswold v. Connecticut, 381 U.S. 479 (1965) .......... 9

Holiday Magic, Inc. v. Warren, 497 F.2d 687 (7th Cir.

DED Wcbacud cdGbCeNbcddb tévececddchetsessseees 11

Johnson v. Robinson, —— U.S. ——, 94 S.Ct. 1160

| | BPPPPPPPPTTTTTITOTTIITITIT rrr TTT TTT 16

CASES

Page

Klein v. Nassau County Medical Center, 347 F.Supp.

GBS CER B. Se WAGED 60 cc00senecnescadeeneeenee 9

Kahan v. Shevlin, —— U.S. ——, 94 8.Ct. 1734 (1974) . 15

N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) .......... i)

Nyberg v. The City of Virginia, 495 F.Supp. 1342 (8th

oe Peer ee 8

Ohio Municipal Judges Association v. Davis, 411 U.S.

UGE (1DTS) 2. nncccvccsccccccccesvcscccssusenss 15

Roe v. Wade, 410 U.S, 113 (1973) .......... 2, 8, 15, 19, 20

San Antonio Independent School District v. Rodriguez,

OR! BE eee 15

Tileston v. Ullman, 318 U.S. 44 (1943) ................ 9

Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974) ........ 8

Wulff v. Singleton, 508 F.2d 1211 (8th Cir. 1972) ...... 15

MISCELLANEOUS

US. Comst. ant TEE ..cccvcccssscecceseceuseuaueean 12

US, Const, GUM. Boo cccccsessescuceunnseemeee 3

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SP UGG. © BRE ccnccccccesescnuenceucueeuseee

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> Cray & TERS CORED cc nccccccevaccssansnneee 7

a, FY PT 13

Section 208.152, RSMo Supp. 1973 . .2, 7, 8, 9, 10, 11, 12,13

Section 208.156, RSMo Supp. 1969 ................6. 7

IN THE

SUPREME COURT OF THE UNITED STATES

No.

THOMAS E. SINGLETON,

Petitioner,

vs.

GEORGE J. L. WULFF, JR., M.D.,

and

MICHAEL FREIMAN, M_.D.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner, Thomas E. Singleton, respectfully prays

that a writ of certiorari be issued to review the judgment

and opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on December

31, 1974.

OPINION BELOW

The opinion of the Court of appeals, reported at 508

F.2d 1211 (8th Cir. 1974), appears in the Appendix hereto.

The opinion of the District Court for the Eastern District

of Missouri also appears in the Appendix hereto. That

opinion is reported at 380 F.Supp. 1137 (E.D.Mo. 1974).

The judgment of the Court of Appeals for the Eighth

Circuit was entered on December 31, 1974. A timely peti-

tion for rehearing, requested by the respondents, was denied

on January 9, 1975. On March 26, 1975, Justice Harry A.

Blackmun, Associate Justice of the Supreme Court of the

United States and Circuit Judge of the United States Court

of Appeals for the Eighth Circuit, entered an order extend-

ing the time to file petition for writ of certiorari to and in-

cluding May 8, 1975, and this petition for certiorari was

filed within that extended time period. This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether there is a logical nexus between the status

of respondent-physicians and the claims they seek to have

adjudicated sufficient to confer standing on them to chal-

lenge the constitutionality of Section 208.152, RSMo Supp.

1973.

2. Whether the Court of Appeals acted in excess of

its jurisdiction when it proceeded to determine on the merits

the constitutionality of Section 208.152, RSMo Supp. 1973.

3. Whether the decisions of the Supreme Court in

Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179,

compel the conclusion thai a state must make Medicaid

payments to eligible welfare recipients for non-therapeutic

abortions.

4. Whether a state statute which provides medical as-

sistance payments, as a family planning service, but ex-

cludes non-therapeutic abortions as a medical expense which

the state will pay for as a family planning service, con-

stitutes invidious discrimination if the state does provide

medical assistance for pregnancies carried to term and for

therapeutic abortions.

5. Whether a state may be compelled, given the re-

striction on federal power embodied in the Tenth Amend-

ment to the United States Constitution, to choose between

the equally objectionable alternatives of denying all Med-

icaid payments connected with pregnancy, thereby becom-

ing ineligible to receive federal Medicaid grants, or of

paying eligible welfare recipients Medicaid for non-thera-

peutic abortions contrary to the public policy of the state.

STATUTORY PROVISIONS INVOLVED

Section 208.152(12), RSMo Supp. 1973:

‘*Benefit payments for medical assistance may be

made on behalf of those eligible needy persons who are

unable to provide for it in whole or in part, with any

payments to be made on the basis of the reasonable cost

of the care or reasonable charge for the services as de-

fined and determined by the division of welfare unless

otherwise hereinafter provided, for the following:

> > 6

(12) Family planning services as defined by fed-

eral rules and regulations; provided, however, that

such family planning services shall not include abor-

tions unless such abortions are medically indicated.’’

Title 28, U.S.C. Section 1291:

‘*The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts

of the United Sta‘es, the United States District Court

for the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands, ex-

cept where a direct review may be had in the Supreme

Court... .’’

Title 28, U.S.C. Section 2281:

‘‘An interlocutory or permanent injunction re-

straining the enforcement, operation or execution of

any State statute by restraining the action of any of-

ficer of such State in the enforcement or execution of

such statute or of an order made by an administrative

board or commission acting under State statutes, shall

not be granted by any district court or judge thereof

upon the ground of the unconstitutionality of such

statute unless the application therefor is heard and

determined by a district court of three judges under

section 2284 of this title. .

STATEMENT OF THE CASE

On November 2, 1973, respondent-physicians filed a

three-count complaint against petitioner Singleton, then

designated as Chief of Bureau of Medical Services, Division

of Welfare, Missouri State Department of Public Health

and Welfare, and the Stete Board of Registration of the

Healing Arts. Only Count II pertained to petitioner Single-

ton. In Count II, respondent-physicians challenged the valid-

ity under the United States Constitution of Section

208.152(12), RSMo Supp. 1973. That statutory section ex-

cluded non-medically indicated abcrtions from the range

of medical assistance benefit payments, for family planning

services, available to eligible needy persons. The complaint

requested that the statutory section be declared in violation

of the United States Constitution and that the enforcement

thereof be permanently enjoined.

On December 12, 1973, respondent-physicians pro-

pounded four interrogatories to petitioner Singleton, which

were answered on January 15, 1974 (except Interrogatory

No. 4 to which objection was made).

On December 14, 1973, the petitioner Singleton’s Mo-

tion to Dismiss was mailed for filing to the Clerk of the

United States District Court for the Eastern District of

Missouri. Petitioner Singleton stated four reasons why the

complaint should be dismissed, including the following:

‘*(2) That the plaintiff doctors do not possess the

required standing to litigate the constitutional issues

raised.’’

Attached to respondent-physicians’ Memorandum in

Opposition to Appellee Singleton’s Motion to Dismiss, filed

on February 18, 1974, are affidavits from each of the re-

spondent-physicians.

The statutory three-judge court entered its Order and

Judgment supported by a Memorandum on May 31, 1974,

dismissing Count II of the Complaint on the ground that

respondents lacked standing to challenge Section

208.152(12).

Seventeen days thereafter, on June 17, 1974, respondent-

physicians filed a ‘‘ Motion for Leave of Court to Add Parties

Plaintiff’’, which was overruled on June 24, 1974.

Respondent-physicians duly filed their notice of appeal

to the United States Court of Appeals for the Eighth Cir-

cuit on June 28, 1974.

On or about July 6, 1974, petitioner Singleton filed with

the Court of Appeals his Motion to Dismiss Appeal on the

ground that under 28 U.S.C. § 1253, appeal from a final

order of a three-judge district court must be made to the

United States Supreme Court. This motion was overruled

on July 18, 1974.

The United States Court of Appeals for the Eighth

Circuit issued its opinion reversing the decision of the

District Court on December 31, 1974. The Court of Appeals

found it had appellate jurisdiction pursuant to the United

States Supreme Court’s decision in Gonzalez v. Automatic

Employees Credit Union, 42 L.Ed.2d 249, —— U.S. ——

(1974), that the respondent-physicians had standing to ad-

judicate the constitutionality of the state statute in ques-

tion; that the Court of Appeals had jurisaiction to reach the

merits of the constitutionality of the state statute in ques-

tion even though the petitioner had never filed an answer

in the three-judge District Court below nor had an oppor-

tunity to brief or argue the constitutionality of the state

statute under attack, and that the state statute in question

was facially unconstitutional.

' The respondent-physicians filed a motion for rehear-

ing, asking for clarification and an award of attorneys’ fees,

on January 6, 1975. The Court of Appeals denied the motion

for rehearing on January 9, 1975.

On January 31, 1975, the Court of Appeals denied pe-

_titioner’s request for stay of mandate. Mandate issued on

“February 5, 1975.

Justice Blackmun granted petitioner an extension of

time to file writ of certiorari to and including May 8, 1975,

on March 26, 1975.

REASONS FOR GRANTING THE WRIT

The Court of Appeals erroneously held that the respond.

ent-physicians had standing to assert the unconstitutionality

of Section 208.152(12), RSMo Supp. 1973, and, in so doing,

rendered a decision in conflict with the opinions of the

Supreme Court on the matter of standing.

The three-judge District Court was correct in its de-

termination that the posture of respondents in asserting

the unconstitutionality of the state statute in question satis-

fied neither the standing requirement of Flast v. Cohen, 392

U.S. 83, 192 (1968), that there be a logical nexus between

the status asserted Uy the complainant and the claim sought

to be adjudicated, nor the requirement of Association of

Data Processing Service Organizations Inc. v. Camp, 397

U.S. 150, 153 (1970), that the interest sought to be pro-

tected by the complaining party be within the zone of in-

terests meant to be protected or regulated by the constitu-

tional guaranty relied upon.

As emphasized by the District Court, Section 208.152

provides for the payment of medical assistance benefits ‘‘on

behalf of those eligible needy persons who are unable to

provide for it in whole or in part .. . .”’ Not only are pay-

ments made on behalf of eligible persons, but only the wel-

fare recipient is granted a right to a hearing if the wel-

fare recipient's claim for medical reimbursement is denied.

A doctor is not granted a right of appeal. See Title 45, Code

of Federal Regulations, Public Welfare, Chapter II, Section

205.10 (revised as of October 1, 1973), and Section 208.156,

RSMo 1969. Therefore, eligible needy persons are the in-

tended beneficiaries of Section 208.152; eligible needy per-

sons are the people hurt by the operation of any restriction

placed on the payment of medical assistance benefits be-

cause they are not provided the needed cost reimbursement;

and welfare recipients are the ones given a statutory right

to appeal adverse determinations. In determffing the exist-

ence of standing, it is entirely appropriate that the Court

consider whether the complainants asserting standing are

the intended beneficiaries of the statute in controversy.

Barlow v. Collins, 397 U.S. 159, 164-165 (1970).

Furthermore, respondent-physicians lack the kind of

direct threat of personal detriment which is necessary to

sustain their standing to challenge the constitutionality

of Section 208.152 under Flast. This fact can be demon-

strated on the basis of the very cases which the Court of

Appeals cited in pages 3 through 5 of its opinion, which is

appended hereto. For instance, in Doe v. Scott, 321 F.Supp.

1385 (N.D.IIL 1970), vacated 410 U.S. 950 (1973), Roe v.

Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179

(1973), the plaintiff-physicians were subject to the provi-

sions of criminal anti-abortion statutes and, therefore, had

the requisite direct threat of personal detriment to sustain

their standing. In Nyberg v. The City of Virginia, 495

F.Supp. 1342 (8th Cir. 1974) and Word v. Poelker, 495

F.2d 1349 (8th Cir. 1974), regulations had been adopted the

effect of which was to prohibit substantially and directly

the granting of abortions, thus having a direct effect on

a woman’s right under Roe v. Wade, supra, to obtain an

abortion and having a direct effect on a physician’s right

to practice medicine by performing abortions.

In the instant case, however, respondent-physicians are

not subject to any criminal sanctions by the operation of

Section 208.152, nor does Section 208.152 operate in such

a manner as to prohibit respondent-physicians from per-

forming abortions. Section 208.152 does not in any manner

prohibit doctors from being paid for their services. The

only effect that Section 208.152 has on respondent-phy-

sicians is to create some uncertainty as to the source of

payment for abortion services rendered by them. No direct

interest exists sufficient to create a logical nexus, under

Flast, between the status asserted by respondents and the

claimed unconstitutionality of the statute. In holding that

the respondent-physicians have standing to assert the un-

constitutionality of the state statute, the Court of Appeals

contributed to an unwarranted and unjustified erosion of

the Article III restrictions on federal courts’ jurisdiction.

Likewise, the respondents cannot establish standing

on the basis that they are representing the rights of their

patients. Not having standing in their own right to chal-

lenge Section 208.152, respondents may not bring this action

on behalf of their patients to protect their patients’ funda-

mental rights. Tileston v. Ullman, 318 U.S. 44, 46 (1943).

The general rule under Tileston, that only those per-

sons having constitutional rights should be able to assert

those rights in the federal courts, can be avoided only

where the complaining parties have clear and obvious

standing on their own behalf as, for example, being sub-

ject to criminal prosecution, Griswold v. Connecticut, 381

U.S. 479, 481 (1965), or where the parties whose rights are

to be represented cannot advance those rights on their

own behalf as in Barrows v. Jackson, 346 U.S. 249, 257

(1953), and N.A.A.C.P. v. Alabama, 357 U.S. 449, 459

(1958). In the instant case, as discussed above, the respond-

ents do not have standing in their own right, are not sub-

ject to prosecution by reason of the existence of Section

208.152, and therefore cannot acquire standing under the

exception of Griswold v. Connecticut, supra. Also, the in-

digent women which Section 208.152 was intended to bene-

fit are fully able to advance their own rights. For example,

in Klein v. Nassau County Medical Center, 347 F.Supp.

496, 498 (E.D.N.Y. 1972), all plaintiffs were pregnant at

the time they became plaintiffs; all plaintiffs had applied

at different times for an abortion; all plaintiffs asserted

that they could not afford abortions; all plaintiffs up to

the time they filed suit had been unable to obtain an abor-

tion; and all plaintiffs alleged that they were indigent.

The failure of the Court of Appeals to interpret cor-

rectly and adhere to the standing decisions of the Supreme

Court justifies the grant of certiorari to review the judg-

ment below, and, upon review of that judgment, the Su-

preme Court should reverse the Court of Appeals and declare

that the District Court correctly held the respondent-

physicians had no standing to assert the unconstitutionality

of Section 208.152.

The Court of Appeals erroneously determined that it

had jurisdiction to examine the merits of this case, reaching

the constitutionality of a state statute, because the District

Court was given no opportunity itself to examine the con-

stitutionality of Section 208.152, nor was the petitioner ever

given an opportunity to defend the constitutionality of that

statute, and, to that extent, the determination by the Court

of Appeals, on the merits, that the statute was unconstitu-

tional so departs from the accepted and usual course of

judicial proceedings as to call for an exercise of the United

States Supreme Court’s power of supervision.

When the District Court dismissed Count II of the re-

spondent’s complaint for their lack of standing to assert

the unconstitutionality of Section 208.152(12), RSMo 1973

Supp., the respondents appealed that order of dismissal to

the Court of Appeals. On the record before the Court of

Appeals it was clear that the petitioner had never answered

the respondents’ complaint; that the constitutionality of the

state statute had never been placed at issue in the District

Court; that the District Court had never conducted a hear-

ing or other inquiry into the constitutionality of the state

statute on its face or as applied; that the District Court had

not ruled upon the constitutionality of that state statute;

and that the petitioner had never had an opportunity to

brief or argue the constitutional merits of Section 208.152.

Nevertheless, the Court of Appeals, once it found that the

respondents had standing, proceeded to reach the merits.

In doing so, the Court of Appeals acted in excess of its juris-

diction.

In effect, the Court of Appeals took unto itself original

jurisdiction to determine the constitutionality of a state

statute which issue had not been properly before, nor de-

cided, by the District Court from which the appeal was

taken.

Exclusive original jurisdiction is conferred upon three-

judge district courts when a state statute or administrative

order is challenged, a state officer is named as a party de-

fendant, injunctive relief is sought, and it is claimed that

the state statute or administrative order is contrary to the

United States Constitution. Holiday Magic, Inc. v. Warren,

497 F.2d 687 (7th Cir. 1974) ; Title 28, U.S.C. § 2281. All of

those elements were present in Count II of the Complaint

filed by the respondents in the District Court. However, in

the instant case, the District Court never considered the

allegations containing those elements but ordered the dis-

missal of the lawsuit because the respondents had insuf-

ficient standing to sue. Although the entire three-judge

court ordered the dismissal of Count II, a single judge

could have entered an order dismissing the case for lack

of standing. Gonzalez v. Automatic Employees Credit

Union, —— U.S. ——, 42 L.Ed.2d 249 (1974). To that ex-

tent, the Court of Appeals was correct in finding that it

had jurisdiction of the respondents’ appeal from the order

dismissing Count II of respondents’ complaint. However,

a single-judge District Court could not have passed on

those allegations of Count IT qualifying the complaint for

a three-judge District Court pursuant to Title 28, U.S.C.

§ 2281. Therefore, the Court of Appeals did not have juris-

diction to review the substance of respondents’ Count II.

Article III of the United States Constitution grants

unto Congress the power to establish and proscribe the

jurisdiction of federal courts. Congress has provided that:

‘*The courts of appeal should have jurisdiction of

appeals from all final decisions of the district courts

of the United States, the United States District Court

for the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands, ex-

cept where a direct review may be had in the Supreme

Court.’’ Title 28, U.S.C. § 1291.

Hence, the Courts of Appeal have only appellate and no

original jurisdiction. The constitutionality of Section

208.152, RSMo Supp. 1973, was not appealed to the Court

of Appeals because the issue had never been determined by

the District Court. Therefore, the Court of Appeals acted

in excess of its jurisdiction when it reached the merits of

this case because it did not have the requisite original juris-

diction to make such a determination.

It is well recognized that a Court of Appeals should

not reach on appeal the merits of an issue on which a Dis-

trict Court has not ruled. Equal Opportunity Commission

v. Standard Forage and Azel Co., Inc., 496 F.2d 1392 (5th

Cir. 1974) ; Eureka-Carlisle Company v. Rottman, 398 F.2d

1015, 1019 (10th Cir. 1968) ; and Fitts v. U.S., 376 F.2d 516

(10th Cir. 1967). It is even more fundamental that consti-

tutional questions should not be considered for the first

time on appeal. Giordano v. United States, 394 U.S. 310,

312-313 (1969) ; Bandy v. U.S., 396 F.2d 929, 930; cert. den.

393 U.S. 1004 (1968); Gardner v. Myers, 491 F.2d 1184,

1190 (8th Cir. 1974).

Once the Court of Appeals determined that the re-

spondent-physicians had the requisite standing to sue, that

court should have remanded the matter to the three-judge

District Court for proceedings consistent with the Court of

Appeals’ finding. Present in Count II of the complaint

which would then be before the three-judge District Court

were all the elements necessary to invoke the jurisdiction

of such a court pursuant to Title 28, U.S.C. § 2281. The

petitioner would then have been afforded an opportunity

to file his answer defending the constitutionality of Section

208.152 on its face or as applied, and to present evidence

and legal arguments to the District Court to assist that

court in making a fully informed determination as to the

constitutionality of that state statute.’ As the matter now

stands, the Court of Appeals has abrogated the entire con-

1 For example, Section 208.152 excludes non-medically

indicated abortions as a family planning service which will

be publicly funded. Absent a District Court record the Court

of Appeals could not have known whether abortion may or

may uot have been funded under a different category. Pro-

posed federal regulations, not yet promulgated but printed

at Vol. 39, Federal Register No. 237, would exclude all

abortions from family planning services for which the fed-

eral government share is 90 percent. However, abortions

would still qualify as a physician’s service, the federal share

of which is 60 percent. The Court of Appeals had no way of

knowing the intricacies of how Section 208.152 was ap-

plied or if it absolutely prohibited medical assistance pay-

ments for abortion. Absent a defense by the petitioner and

an evidentiary hearing by the court of original jurisdiction,

the Court of Appeals had an insufficient record on which

to base a constitutional decision.

gressional scheme of federal court jurisdiction. Certainly,

if the District Court had made a determination concerning

the constitutionality of the state statute, appeal should

properly have been taken to the United States Supreme

Court. It is entirely illogical to assume that a Court of

Appeals could step into the case on the peripheral issue of

standing and render a decision concerning the constitu-

tionality of the state statute which decision has been re-

served by Congress solely tw a three-judge District Court

and, on appeal, to the United States Supreme Court.

Because the action of the Court of Appeals in reaching

the merits of this case constitutes such a drastic departure

from the accepted and usual course of judicial proceedings,

the United States Supreme Court should exercise its power

ms supervision and grant certiorari to review the judgment

low.

The Court of Appeals erroneously held Section

208.152(12), RSMo Supp. 1973, to be unconstitutional, and,

in doing so, the Court of Appeals passed upon a legal issue

which has not heretofore been determined in the United

States Supreme Court but which should finally be settled

by this court.

There is no constitutional requirement that a state pro-

vide financial assistance for voluntary abortion as a condi-

tion of providing benefits for other medical treatment re-

lating to pregnancy.

The opinion below announces a legal proposition as

follows:

‘*. . . the statute here provides medical payments if

the pregnancy is carried to term or for therapeutic

abortion but not if a non-therapeutic abortion is per-

formed. This classification is a clear violation of the

Equal Protection Clause of the Fourteenth Amend-

men ?

Wulff v. Singleton, 508 F.2d 1211, 1215 (8th Cir. 1972).

Page 8 of the opinion appended hereto.

We submit that there is no support whatsoever in the

decisions of this Court for a holding that a state cannot

finance necessary medical procedures unless it also agrees

to finance procedures which are purely optional. Roe v.

Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179

(1973), go no further than holding that voluntary abortion

may not be made the subject of criminal sanctions when

timely performed. It is quite another thing to say that a

state must give financial assistance to an abortion simply

because an indigent person chooses to have one.

The Equal Protection Clause prohibits only invidious

discrimination. It does not enjoin differential treatment

based on a reasonable classification in support of valid

policy.

Thus a state may provide that local schools are to be

financed substantially by local property taxes in spite of

the wide variation of the taxing resources of the several

districts. San Antonio Independent School District v. Rod-

riguez, 411 U.S. 1 (1973).

A state may permit in-term salary increases for judges

of some courts which are denied to other judges. Ohio Mu-

nicipal Judges Association v. Davis, 411 U.S. 144 (1973).

Widows may be afforded tax exemptions which are not

available to widowers. Kahn v. Shevlin, —— U.S. ——, 94

S.Ct. 1734 (1974).

A state may exclude disabilities due to normal preg-

nancy in a disability insurance program while covering

other disabilities of comparable duration including dis-

ability through abnormal pregnancy conditions. Geduldig

v. Aiello, —— U.S. ——, 94 S.Ct. 2485 (1974).

A state may furnish textbooks or transportation to

public school pupils without providing equivalent services

for those who attend non-public schools, in spite of the con-

stitutional permission for such aid. Bruska v. Missouri, 332

F.Supp. 275 (E.D.Mo. 1971); aff’d. 405 U.S. 1050 (1972).

The federal government is not required to provide vet-

erans’ benefits to conscientious objectors who elect alter-

nate service. Johnson v. Robinson, —— U.S. ——, 94 S.Ct.

1160 (1974), decided under the ‘‘due process’’ analogy to

the Equal Protection Clause.

In the above cases this Court has sustained differential

treatment which is incidental to the effectuation of valid

government policy. The details of the particular policy sit-

uations are not appropriate for discussion at this point. It

is sufficient to say that there are valid reasons why a state

may decide that, although voluntary abortions are per-

missible within certain time limits, the state does not choose

to give positive assistance to the abortion process. Quite

aside from the conviction that abortion is undesirable and

to be discouraged, the state has a proper interest in the al-

location of limited resources and facilities. The contrary

holding of the Court below is in conflict with the approach

of this Court in numerous cases, and an unwarranted inter-

ference with state policy. The conflict between the deci-

sion of the Court below and the decisions of this Court in

equal protection matters justify the grant of certiorari to

review the judgment below which judgment involves an

issue which has not yet been determined by this Court but

which should be.

ES ee re

The Court of Appeals erroneously held that the state

must provide medical payments for non-therapeutic abor-

tions if it provides medical payments for pregnancies car-

ried to term or for therapeutic abortions because the ef-

fect of that holding is to condition the receipt of federal

medicaid funds upon state subsidization of non-therapeutic

abortions which result coerces the state into making pay-

ments for non-therapeutic abortions in contradiction to the

expressed public policy of the State of Missouri and thereby

interferes with a power reserved to the state by the Tenth

Amendment to the United States Constitution.

The Court of Appeals held that it was an unconstitu-

tional classification for the State of Missouri to make Med-

icaid payments for pregnancies carried to term and for

therapeutic abortions if Medicaid payments were not also

made for non-therapeutie abortions. In effect, the decision

of the Court of Appeals gave the State of Missouri one of

two equally unsatisfactory options: either the State of

Missouri must refuse to pay for all medical assistance con-

nected with pregnancies at the expense of millions of dol-

lars in federal Medicaid grants; or the State must make

Medicaid payments for non-therapeutice abortions contrary

to the public policy of Missouri.

Title 42, U.S.C. § 1396 conditions a federal grant to a

state for medical assistance programs upon the submission,

by the state, of an approved state plan for medical assist-

ance. Title 42, U.S.C. § 1396 a.(10) (A) requires the state

plan to provide for making medical assistance available to

all eligible individuals. Title 42, U.S.C. § 1396 d.(a) (5) de-

fines medical assistance as including physicians services.

The term ‘‘physicians services’’ is defined by Title 22,

U.S.C. § 1395 x.(q) as meaning ‘‘. . . professional services

performed by physicians, including surgery, consultation,

and home, office, and institutional calls... .’’ In amplifica-

tion of federal statutory language, Title 45, C.F.R. § 249.10,

provides:

‘*(a) State Plan Requirements.—A State plan for

medical assistance under title XIX of the Social Se-

curity Act must:

(1) Specify that at least the first five items of

medical and remedial care and services as set forth in

paragraph (b) (1) through (5) of this section will be

provided to the categorically needy.

(b) Federal Financial Participation.—Subject to

limitations in paragraph (c) of this section Federal

financial participation is available and expenditures

for medical or remedial care and services under the

State plan which meet the following definitions:

(5) Physicians’ services, whether furnished im the

office, the patient’s home, a hospital, a skilled nursing

home or elsewhere. ‘Physicians’ services’ are those

services provided, within the scope of practiec of ‘iis

profession as defined by State law, by or under the

personal supervision of an individual licensed under

State law to practice medicine or osteopathy.’’

Petitioner Singleton has been administering the Divi-

sion of Family Services of the Department of Socia! Serv-

ices, in accordance with instructions passed on by federal

administrators, on the premise that should the state plan

fail to provide for prenatal services for eligible individuals

choosing to carry a pregnancy to term, or if the state re-

fused to pay for such services contrary to its state plan,

that the State of Missouri would cease to be eligible for

federal Medicaid grants. Using the present fiscal year as a

basis, this would cost the State of Missouri approximately

66 million dollars a year.

The decision by the Court of Appeals in conjunction

with the provisions of Title XIX of the Social Security Act,

and the rules and regulations promulgated thereunder, con-

stitutes an unwarranted and unconstitutional intrusion by

the federal courts and Congress into the internal affairs

of the sovereign State of Missouri. The effect, m toto, of

the Court of Appeals opinion and the statutes discussed

above is to force the State of Missouri to fund publicly

non-therapeutic abortions, against the public policy of the

state as announced by its Legislature, because refusal to

do so would forfeit all federal Medicaid grants.

The coercive nature of the Court of Appeals opinion,

when combined with federal law and regulations, affirm-

atively conditioning the receipt by the State of Missouri

of 66 million dollars in Medicaid funds upon the giving of

non-therapeutic abortions, should not be tolerated in a

federal system of government with powers and rights re-

served to the states as independent political entities by

reason of the Tenth Amendment to the United States Con-

stitution.

There can be no doubt that the overall coercive effect

of the Court of Appeals opinion and the federal Social

Security Law will force the State of Missouri to abandon

a long and deeply held internal policy totally against the

concept of abortion except as necessary to save the wife or

the mother. Prior to Roe, supra, and Doe, supra, the public

policy of Missouri as expressed in statutory sections clearly

demonstrated that abortion was against the public policy

of the state. That position has not changed. Very recently,

the State of Missouri became the first state in the union

to pass a resolution requesting Congress to initiate those

actions necessary to the creation of a constitutional amend-

ment taking abortion out from under the protection of the

United States Constitution. Certainly, it is contrary to the

Tenth Amendment if the federal government can induce,

by the threatened termination of the entire Medicaid pro-

gram in Missouri, the State to subsidize abortions contrary

to the public policy created by the State Legislature.

The opinion by the Court of Appeals does not logically

follow the decisions of this court in Roe, supra, and Doe,

supra. It is a much different thing to say that a doctor

cannot be legally prosecuted for performing an abortion

requested by a pregnant woman than to say, as the Court

of Appeals has done, that states must subsidize the abortion

process with public funds.

The question of whether a state must publicly subsi-

dize non-therapeutic abortions for eligible Medicaid recipi-

ents is one which has not been determined by the Supreme

Court but which should be brought before this Court for

final determination.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Cireuit.

Respectfully submitted,

Joun C. Danrortu

Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

(314) 751-3321

Counsel for Petitioner

MICHAEL L. BOICOURT

Assistant Attorney General

Of Counsel

APPENDIX 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1484

GEORGE J. L. WULFF, JR., M.D. ont}

MICHAEL FREIMAN, M.D.,

A ppellants . Appeal from the

VB. United States

; District Court

THOMAS E. SINGLETON, Chief of f ¢5, the Eastern

Bureau of Medical Services, Division | pjictrict of

of Welfare, State Department of mee aby

Public Health and Welfare,

Appellee. /

OO Eeeeeee=SQ===eeeeeee

Submitted: December 13, 1974

Filed: December 31, 1974

Before MATTHES, Senior Circuit Judge, ROSS and

STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This appeal from the order of a statutory three-judge

district court dismissing plaintiffs’ cause of action for

lack of standing raises troublesome questions of jurisdic-

tion and procedure as well as a question cuncerning state

interference with the abortion decision. The three-judge

court opinion is reported as Wulff v. State Board of Regis-

tration for Healing Arts, 380 F. Supp. 1137 (E.D. Mo.

1974). We reverse.

Appellants, Missouri licensed medical doctors, brought

a three count complaint for declaratory and injunctive

relief against the Missouri State Board of Registration

for the Healing Arts and against Thomas E. Singleton

in his capacity as Chief of the Bureau of Medical Services.

The complaint challenged the constitutionality of state

statute regarding welfare benefits, claiming that the statu-

tory wording

is vague and uncertain, deprives plaintiffs and their

patients of the right to privacy, deprives plaintiffs

of their right to practice medicine according to the

highest standards of medical practice, deprives plain-

tiffs’ patients of the fundamental right of -a woman

to determine for herself whether to bear children,

infringes upon plaintiffs’ right to render and their

patients’ right to receive safe and adequate medical

advice and treatment, deprives plaintiffs and their

patients of the equal protection of the law and due

process of law, and constitutes state interference with

the abortion decision, all of which is in violation of

the United States Constitution.

380 F. Supp. 1137, 1139.

The three-judge court dismissed Count II of the com-

plaint for lack of standing by the medical doctors to chal-

lenge the constitutionality of the statute. See Wulff, supra

at 1144. Appeal was filed in this court.!

I. APPELLATE JURISDICTION

The portal question we have goes to the propriety of

an appeal to this court from an order entered by a district

court of three judges.”

1 The appeal concerns only Count II of the complaint. Appellants do

not challenge the district court’s ruling on Counts I and DIL

That inquiry has been settled for us in the instant case

by the United States Supreme Court’s recent decision in

Gonzalez v. Automatic Employees Credit Union, No. 73-858

(filed December 10, 1974), 43 Law Week 4025.

In Gonzalez appellant took his appeal directly to the

Supreme Court from a three-judge court order dismissing

the complaint for lack of standing. The court observed

that when the basis of decision by a three-judge court is

lack of standing, the case is such that ‘‘a single judge could

have declined to convene a three-judge court’’ or ‘‘the

three-judge court could have dissolved itself, leaving final

disposition of the complaint to a single judge.’’ Gonzalez

at 4028 (footnote omitted). The Court went on to say:

We hold, therefore, that when a three-judge court

denies a plaintiff injunctive relief on grounds which,

if sound, would have justified dissolution of the court

as to that plaintiff, or a refusa! to request the conven-

tion of a three-judge court ab imitio, review of the

denial is available only in the Court of Appeals.

43 Law Week 4025, 4028-29. This court has jurisdiction

in the instant case.

Il. STANDING

The district court found that there was no logical nexus

between the status of appellant-physicians and the claims

they sought to have adjudicated. Flast v. Cohen, 392 US.

83 (1968). We disagree.

This court made clear in Nyberg v. City of Virginia,

495 F.2d 1342 (1974), cert. denied, 95 S.Ct. 169:

We think that the Supreme Court in Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and

Doe v. Bolton, 410 U.S. 179. 93 S.Ct. 739, 35 L.Ed.2d

201 (1973) has clearly paved the way for physicians

to assert their constitutional rights to practice medi-

cine, which now includes the right to advise and per-

form abortions. * * *

Clearly the claims of medical doctors to ‘‘freely prac-

tice medicine according to the highest medical stand-

ards without arbitrary outside restraints’’ are in-

extricably bound up with the privacy rights of women

who seek abortions, YWCA v. Kugler, 342 F. Supp.

1048, 1055 (D.N.J. 1972). This is sufficient to present

a justifiable controversy and confer standing on the

physicians who bring this action. See Griswold v. Con-

necticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965) ; Abele v. Markle, 452 F.2d 1121, 1125 (CA2

1971); stay granted, 409 U.S. 908, 93 S.Ct. 212, 34

L.Ed.2d 169 (1972), remanded for consideration in

light of Roe and Doe, 410 U.S. 951, 93 S.Ct. 1417, 35

L.Ed.2d 683 (1973); Doe v. Turner, 361 F.Supp. 1288,

1289 (D.Iowa 1973) (3 judge court); Freeman & Bass,

P. A. v. State of N.J. Com’n of Invest., 359 F.Supp.

1053, 1059 (D.N.J. 1973); cf. O’Shea v. Littleton, 414

U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Further-

more, the practical effect of the stringent limitation on

the use of hospital facilities for performing abortions

is to arbitrarily bar the physicians from activities that

directly affect their economic interests. Abele v. Mar-

kle, supra, 452 F.2d at 1125; see also, Data Processing

Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d

184 (1970); Epperson v. Arkansas, 393 U.S. 97, 89

S.Ct. 266, 21 L.Ed.2d 228 (1968).

We reiterated the same thought more succinctly in Word

v. Poelker, 495 F.2d 1349, 1350 (8th Cir. 1974), where

we said:

It is now clear from the decisions in Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and

Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed2d

201 (1973) that a sweeping regulation of the abortion

decision and its implementation raises clear questions

of constitutional dimension regarding a medical doc-

tor’s right to practice. Doe v. Bolton, supra at 188,

93 S.Ct. 739; Roe v. Wade, supra at 165 of 410 U.S., 93

S.Ct. 705.° °°.

See Orr v. Koefoot, 377 F. Supp. 673, 678 (D. Neb. 1974) ;

Poe v. Menghini, 339 F. Supp. 986, 990 & note 8 (D. Kan.

1972); Doe v. Scott, 321 F. Supp. 1385, 87-88 (N.D. IIl.

1970); see also Wounded Knee Legal Defense/Offense

Committee v. F.B.I., No. 73-1908 (8th Cir., filed November

7, 1974), slip opinion at 6.

The statute in question interferes with the doctor-

patient relationship as it relates to the abortion decision.

It injects unnecessarily restrictive rules upon a consti-

tutionally protected decision of doctor and patient as

surely as did the statutes in the above cited cases. The

statute interferes with the appellants’ practice of medicine

both professionally and monetarily.

We think that there is no question that (1) appellants

allege that the challenged acts have caused them ‘‘injury

in fact, economic or otherwise’’ and (2) ‘‘the interests

sought to be protected by the complainant is arguably

within the zone of interests to be protected or regulated

by the statute or constitutional guarantee in question.’’

Association of Data Processing Service Organizations, Inc.

v. Camp, 397 U.S. 150, 152-53 (1970). To hold otherwise

in light of the authority cited above would defy logic.

These medical doctors have standing to pursue this action.

Ill. THIS COURT’S JURISDICTION TO REACH THE

MERITS |

We are urged by appellants to reach the merits of

this case rather than remand to the three-judge court. This

question is not without its difficulty. There is little direct

authority for the propriety of our reaching the merits.

Nevertheless, we are satisfied that under the circumstances

of this case and in the interest of judicial economy and

logic we should now address the merits of this controversy.

Of course, the three-judge court has not determined

the merits. This court is not generally a court of original

jurisdiction. Even so, there is authority for the proposition

that when a case is properly before a Court of Appeals,

the court has the power ‘‘to do what plainly ought to be

done.’’ Mercury Motor Express, Inc. v. Brinke, 475 F.2d

1086, 1091 (5th Cir. 1973), citing 9 Moore’s Federal Prac-

tice § 110.25[1] (2d ed. 1972).

In reaching the merits of a case which was before the

court pursuant to an interlocutory appeal under 28 U.S.C.

§ 1292(b) this court said:

We adhere to the proposition that it would be im-

proper to consider ‘‘grave constitutional questions’’

where there exists ‘‘ reasonable likelihood’’ that further

proceedings could help clarify the issues. Borden’s

Farm Products Co. v. Baldwin, 293 U.S. 194, at 213,

55 S. Ct. 187, 79 L.Ed. 281. However, in the present

proceeding no further pleadings or evidence is neces-

sary for ‘‘refinement or clarification of the issues.”’

United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538,

91 L.Ed. 1877; United States v. Fabro, Inc., M.D. Ga.,

206 F. Supp. 523. And we should dispose of all con-

troversies ‘‘as expeditiously as is consistent with

proper judicial administration.’’ Turner v. City of

Memphis, 369 U.S. 350, 82 S. Ct. 805, 7 L.Ed.2d 762.

- ee -

oe te eae

Board of Managers of Ark. Tr. Sch. for Boys v. George,

377 F.2d 228, 231 (8th Cir. 1967). In addition, Mr. Justice

Clark in writing for the Supreme Court has indicated that

effective judicial administration requires disposal of the

case on appeal rather than remanding, where the point

to be decided is clear. Levin v. Mississippi River Fuel

Corporation, 386 U.S. 162, 170 (1967), 87 S. Ct. 927, 932.

it might be argued that the above authority, though

persuasive, should not apply in the instance of an appeal

to the Court of Appeals from a statutory three-judge court.

The Supreme Court has made it clear that the three-

judge court mandate must be construed quite narrowly.

‘*Congress established the three-judge court apparatus for

one reason: to save state and federal statutes from im-

provident doom, on constitutional grounds, at the hands of

a single federal district judge.’’ Gonzalez, supra 43 Law

Week 4027.

For this court to get to the heart of the matter and

dispose of this case on the merits will not conflict with

the policy behind the statute. Indeed, we think this case

is particularly proper for disposition in this court since

‘*twhile § 2281 calls for three judges to enjoin a statute

‘upon the ground’ of its ‘unconstitutionality,’ we [the Su-

preme Court] have held that three judges are not in fact

necessary where the unconstitutionality of the statute is

obvious and patent * * *.’’ Gonzalez, supra at 4027, foot-

note 14, citing Bailey v. Patterson, 369 U.S. 31 (1962).

The statute in question is obviously unconstitutional,

and it is our view that the case might well have been de-

cided by one federal judge. See generally Roe v. Norton,

380 F. Supp. 726, 728 (D. Conn. 1974). Accordingly, we

choose to make final determination of this case.

IV. MERITS

The statute before the court states:

Benefit payments for medical assistance may be made

on behalf of those eligible needy persons who are un-

able to provide for it in whole or in part, with any

payments to be made on the basis of the reasonable

cost of the care or reasonable charge for the services

as defined and determined by the division of welfare

unless otherwise hereinafter provided, for the follow-

ing:

Family planning services are defined by federal rules

and regulations provided, however, that such family

planning services shall not include abortions unless

such abortions are medically indicated.

As in Word v. Poelker, supra 495 F.2d 1349, 1350,

the issue in this case concerns the facial constitutionality

of the statute viewed against the glare of the Supreme

Court’s decisions in Roe v. Wade, Doe v. Bolton, and the

precedent which has developed as a result of those cases.

We find it unnecessary to review again Roe and Doe

or what this court has said in applying those cases. Suffice

it to say that the statute here provides medical payments

if the pregnancy is carried to term or for therapeutic

abortions but not if a non-therapeutic abortion is per-

formed. This classification is a clear violation of the Equal

Protection Clause of the Fourteenth Amendment.

There is ample case authority for the holding that a

welfare payments statute which places special regulation

on abortion but not upon other medical procedures cannot

stand in light of the Supreme Court decisions. Doe v.

Rose, 499 F.2d 1112 (19th Cir. 1974) ; Doe v. Westby, F.

Supp.—, No. 745017 (W.D. S.D., filed September 24,

1974); Roe v. Norton, 380 F. Supp. 726 (D. Conn. 1974) ;

Doe v. Wohigemuth, 376 F. Supp. 173 (W.D. Pa. 1974) ;

Doe v. Rompton, 366 F. Supp. 189 (D. Utah 1973); Klein

v. Nassau Co. Medical Center, 347 F. Supp. 496 (E.D. N.Y.

1972); see also Doe v. Hale Hospital, 500 F.2d 144 (lst

Cir. 1974).

The control meted out by this statute does not give

proper consideration to the conflicting constitutional in-

terests involved. Word, supra at 1351. It is further invalid

since the welfare parent and her physician are discrimi-

nated against by reason of the patient’s poverty. Compare,

e.g., Klein, supra.

We declare RSMo 208.152(12) to be unconstitutional

on its face. Injunctive relief should be unnecessary. We

assume that the state will abide by the ruling of this court

and that medical assistance payments will be made on a

nondisparate basis to those eligible needy persons who

elect to carry their pregnancy to term or who receive

therapeutic abortions and also to those who elect non-

therapeutic abortions.

Reversed.

A true copy.

Attest:

CLERK, U. 8S. COURT OF APPEALS,

EIGHTH CIRCUIT.

APPENDIX 2

UNITED STATES DISTRICT COURT

E. D. Missouri, E. D.

May 31, 1974.

GEORGE J. L. WULFF, JR., M.D., and.

MICHAEL FREIMAN, M_D.,

Plaintiffs,

vs.

The STATE BOARD OF REGISTRA-

TION FOR the HEALING ARTS >No. 73 C 731(A).

and THOMAS E. SINGLETON,

Chief of Bureau of Medical Services,

Division of Welfare State Depart-

ment of Public Health and Welfare,

Defendants...

MEMORANDUM

This matter is before the Court on motion of defendant,

State Board of Registration for the Healing Arts (herein-

after referred to as State Board), to dismiss Counts I and

III of the plaintiffs’ complaint, and on motion of defendant,

Thomas E. Singleton, to dismiss Count II of plaintiffs’

complaint. Counts I and III name the State Board as de-

fendant and Count IIT names Thomas E. Singleton as de-

fendant.

Plaintiffs, George J. L. Wulff, Jr. and Michael Frei-

man, are physicians licensed by the State of Missouri, engag-

ing in the practice of obstetrics and gynecology. Defendant,

State Board, is an administrative board created by Missouri

state statutes charged with the licensing of physicians. The

State Board has the power to revoke or suspend a physi-

cian’s license for unprofessional and dishonorable conduct

under RSMo 334.100. Defendant, Thomas E. Singleton, is

the Chief of the Bureau of Medical Services, Division of

Welfare, State Department of Public Health and Welfare,

for the State of Missouri. In his capacity as Chief of the

Bureau of Medical Services, Singleton oversees the applica-

tions, approvals, denials and payments of claims for pay-

ment and reimbursement of medical expenses arising from

or related to the procedure of abortion for women eligible

for Missouri State Medicaid assistance.

The plaintiffs’ complaint for declaratory judgment and

injunctive relief alleges jurisdiction in this Court under 28

U.S.C. §§ 1343, 2201, 2202, 2281, 2284 and 42 U.S.C. § 1983,

and prays for the convening of a three-judge court under

28 U.S.C. § 2281, and for declaratory and injunctive relief

in all three counts of their complaint.

Plaintiffs allege that the statutory wording ‘‘but ex-

cluding abortion’’ contained in RSMo 431.061' (Count I),

‘*shall not include abortions unless such abortions are medi-

cally indicated’’ contained in RSMo 208.152 (Count I1)

and ‘‘pregnancy’’ contained in RSMo 431.061 (Count IIT)

are unconstitutional. Plaintiffs allege that the above statu-

tory wording in each count is vague and uncertain, deprives

the plaintiffs and their patients of the right to pn.acy,

deprives plaintiffs of their right to practice medicine ac-

cording to the highest standards of medical practice, de-

prives plaintiffs’ patients of the fundamental right of a

woman to determine for herself whether to bear children,

infringes upon plaintiffs’ right to render and their patients’

SLAM. BPinore, westmens of covestn conditions ond Gissasse eutiortecd,

ment of a municipal health department, or any public or private

> bak enstading chertion: '

(2) Veneral

(3) or substance abuse including those referred to in chapter

195, RSMo

right to receive safe and adquate medical advice and treat-

ment, deprives plaintiffs and their patients of the equal

protection of the law and due process of law, and constitutes

state interference with the abortion decision, all of which

is in violation of the United States Constitution.

The contentions relied upon by the defendant State

Board to sustain its motion to dismiss Counts I and III

may be summarized as follows:

(1) Plaintiffs failed to state a claim upon which

relief can be granted.

(2) The State Board is not a proper party de-

fendant.

(3) Plaintiffs failed to allege the existence of a

**controversy’’.

(4) Plaintiffs failed to allege enforcement by the

State Board of the challenged statute and therefore

the court should abstain from interpreting the state

statute.

(5) There is relief available to plaintiffs in state

courts and agencies.

The grounds relied upon by defendant Singleton to

sustain his motion to dismiss Count II may likewise be

summarized as follows:

(1) The declaratory relief prayed for does not

constitute a ‘‘case or controversy ripe’’ for determina-

tion by this Court.

(2) Plaintiffs lack standing to litigate the con-

stitutional questions presented.

(3) Injunctive relief cannot be granted in that the

plaintiffs are not susceptible to irreparable harm by

virtue of enforcement of the challenged statute.

(4) Plaintiffs have not exhausted administrative

remedies.

(5) Plaintiffs could not personally suffer harm

for which relief can be granted under 42 U.S.C. § 1983.

COUNT I

[1] RSMo 431.061 (see Footnote 1), which plaintiffs

seek to attack in Counts I and III, was enacted in 1971 by

the Missouri General Assembly as Section 1 of House Bill

73 and must be read and construed in connection with

RSMo 431.062? and 431.063, which were Sections 2 and 3

of House Bi’! 73. Mitchem v. Perry, 390 S.W.2d 600, 603

(Mo.App. 1965). When so read and construed it is apparent

that RSMo 431.061 only relates to minors’ ability to con-

tractually bind themselves to pay for medical treatment

for pregnancy, venereal disease and drug abuse. It is true

that under RSMo 431.061(1) the treatment for pregnancy

to appointmen examination, test or other medical Le

aun to te parents, legal or any person.

3 431.063. Minor’s consent , when

for which an unmarried minor may contractually bind her-

self excludes abortions. The effect of this exclusion is simply

to leave the law unchanged as it relates to contracts for

abortion. That is to say that a minor may not be held con-

tractually liable for the cost of receiving an abortion unless

she ratifies the debt contracted after she reaches majority.

RSMo 431.060. This does not constitute a prohibition against

giving abortions to minors.

[2] Neither the statute under attack, RSMo 431.061,

nor the two statutes enacted as part of the same bill (RSMo

431.062 and 431.063) provide any sanctions for the perform-

ance of an abortion on an unmarried minor without parental

consent. In fact, Missouri does not in light of Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v.

Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973),

and Rodgers v. Danforth, Civ. No. 18360—2 (W.D.Mo.),‘

affirmed 1973, 414 U.S. 1035, 94 S.Ct. 534, 38 L.Ed.2d 327,

at this time have sanctions for abortions performed on

adults or minors as long as the abortionist is a licensed

physician.

Plaintiffs contend in their affidavits filed in opposi-

tion to the defendants’ motions to dismiss that they fear

reprisals from the defendant State Board, in that the State

Board may discipline them under RSMo 334.100 based

upon their past performances of abortions and anticipated

future performances of abortions upon unmarried minors,

without parental consent, on a non-emergency basis. RSMo

334.100 provides, in part, that a licensee may be placed on

probation or the license suspended or revoked when a physi-

cian is found guilty of unprofessional or dishonorable con-

duct. That statute then continues, stating:

‘Without limiting the foregoing general language,

* See Appendix.

the following specifications shall be deemed unprofes-

sional and dishonorable conduct within the meaning

of this section:

‘*(3) Committing an unlawful abortion;’’

As pointed out above, since the decisions in Wade, Bol-

ton and Rodgers, supra, and the failure of the Missouri

Legislature to enact a statute within permissible limits of

those cases, Missouri no longer has any prohibition against

abortion, when it is performed by a physician. Therefore,

any abortion performed by a licensed physician is not

an unlawful abortion. What plaintiffs seek in reality is a

declaratory judgment by this Court that the performance

of an abortion by a licensed physician on an unmarried

minor without parental consent on a non-emergency basis

is not unprofessional and dishonorable conduct under RSMo

334.100.

In order for this Court to rule on the constitutionality

of the statutory wording ‘‘ but excluding abortion’’ in RSMo

431.061 under the Declaratory Judgment Act, 28 U.S.C.

§ 2201, as prayed for in plaintiffs’ complaint, there must

exist an ‘‘actual controversy’’ between the parties and

without such actual controversy this Court is without power

to grant declaratory relief. Maryland Casualty Co. v. Pacific

Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826

(1941). In Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct.

956, 959, 22 L.Ed.2d 113 (1969), the Supreme Court said:

‘‘*?T)}he federal courts established pursuant to

Article III of the Constitution do not render advisory

opinions. For adjudication of constitutional issues ‘‘con-

crete legal issues, presented in actual cases, not abstrac-

tions,’’ are requisite. This is as true of declaratory

judgments as any other field.’ United Public Workers

of America v. Mitchell, 330 U.S. 75, 89, [67 S.Ct. 556,

564, 91 L.Ed. 754] (1947). ‘‘The difference between

an abstract question and a ‘‘controversy’’ contemplated

by the Declaratory Judgment Act is necessarily one of

degree, and it would be difficult, if it would be possible,

to fashion a precise test for determining in every case

whether there is such a controversy. Basically, the ques-

tion in each case is whether the facts alleged, under

all the circumstances, show that there is a substantial

controversy, between parties having adverse legal in-

terests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment.’ Maryland

Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,

273, [61 S.Ct. 510, 512, 85 L.Ed. 826] (1941).’’

[3, 4] From the foregoing, it is clear that the ingredi-

ents necessary to sustain a complaint for declaratory judg-

ment are: (a) a substantial controversy; (b) between parties

having adverse legal interests; and (c) the controversy must

possess ‘‘immediacy and reality.’’ The plaintiffs here do

not claim that they have ever been threatened with dis-

ciplinary action by the State Board or that disciplinary

action by the State Board is even likely. The most that

can be said of the plaintiffs is that they feel uneasy or

inhibited in performing abortions on minors without pa-

rental consent. The mere possibility or even probability

that the plaintiffs may sometime in the future be adversely

affected by a disciplinary action of the State Board not

yet threatened does not create an ‘‘actual controversy”’

which is a prerequisite created by the clear language of

the Declaratory Judgment Act. Garcia v. Brownell, 236

F.2d 356 (9th Cir. 1956), cert. denied, 362 U.S. 963, 80

S.Ct. 880, 4 L.Ed.2d 878 (1960).

COUNT II

In Count II plaintiffs challenge the constitutionality

of the statutory wording, ‘‘shall not include abortions

unless such abortions are medically indicated,’’ contained

in RSMo 208.152(12). The pertinent portions of RSMo

208.152 are as follows:

‘*Benefit payments for medical assistance may be made

on behalf of those eligible needy persons who are unable

to provide for it in whole or in part, with any payments

to be made on the basis of the reasonable cost of the

care or reasonable charge for the services ds defined

and determined by the division of welfare unless other-

wise hereinafter provided, for the following:

‘*(12) Family planning services are defined by federal

rules and regulations provided, however, that such

family planning services shall not include abortions

unless such abortions are medically indicated.’’

[5] As established by the above statute, the medical

reimbursements for medical assistance in the area of ‘‘ medi-

cally indicated’’ abortions are made on behalf of those

eligible needy persons who are unable to provide for it in

whole or in part. Since the medical payments are made

‘‘on behalf’’ of the needy individual, there can be no argu-

ment but that the welfare recipient is the intended bene-

ficiary of this statutory section. It is the welfare recipients

and not their physicians who by Federal! Title 45, Public

Welfare Chapter II, Social Rehabilitation Services (Federal

part 205.10(a)(5) are granted a right to a hearing if their

claims for medical reimbursement assistance are denied

and it is the welfare recipients who are afforded the right

to appeal such decisions through the administrative process

required by federal regulation and established under RSMo

208.156. This raises the question as to whether the plain-

tiffs have standing to litigate the constitutionality of the

statute here in question.

Plaintiffs state in their affidavits filed in opposition

to defendant Singleton’s motion to dismiss that they have

provided and anticipate providing abortions to welfare pa-

tients who are eligible for Medicaid payments for medical

assistance, and that those patients who have submitted

applications for such payments have been refused and that

they anticipate future refusals by defendant Singleton based

upon the challenged language in RSMo 208.152. Plaintiffs

further state that such refusals by defendant Singleton

deter plaintiffs from the practice of medicine in the manner

they consider to be most expert and beneficial to their pa-

tients.

Plaintiffs cite Doe v. Scott, 321 F. Supp. 1385 (N.D.

Ill. 1970); Roe v. Wade, supra, and Doe v. Bolton, supra,

as authority for their contention that they have standing

to litigate the constitutionality of RSMo 208.152. Doe v.

Scott, supra, was an action for declaratory and injunctive

relief brought to declare an Illinois criminal abortion statute

unconstitutional. The plaintiff-physicians in Scott alleged

that the existence of the [illinois criminal abortion statute

interfered with and adversely affected their ability to con-

duct their medical practices with proper regard for their

patients’ best interests. The district court in Scott, 321

F.Supp. lc. 1387-88 held:

‘*(T he physician-plaintiffs have standing to raise the

claims of their patients even if we assume that no

independent claim of theirs could withstand a motion

for judgment on the pleadings.’’

The court in Scott cited Griswold v. Connecticut, 381

U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and

Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97

L.Ed. 1586 (1953), as supporting authority for its decision

that the plaintiff-physicians had standing to raise the

claims of their patients with respect to the constitutionality

of the Illinois abortion statute.

In Griswold v. Connecticut, supra, the appellant-physi-

cian had been convicted as an accessory for giving informa-

tion and medical advice on how to prevent conception in

violation of a Connecticut statute making it a crime for

any person to use any drug or article i: prevent conception.

In relation to the appellant-physici .a’s standing, the Su-

preme Court said, 381 U.S. 1. c. 481, 85 S.Ct. 1. ¢. 1679:

‘‘We think that appellants have standing to raise

the constitutional rights of the married people with

whom they had a professional relationship. Tileston v.

Ullman, 318 U.S. 44 [63 S.Ct. 493, 87 L.Ed. 603], is

different, for there the plaintiff seeking to represent

others asked for a declaratory judgment. In that situa-

tion we thought that the requirements of standing

should be strict, lest the standards of ‘case or contro-

versy’ in Article III of the Constitution become blurred.

Here those doubts are removed by reason of a criminal

conviction for serving married couples in violation of

an aiding-and-abetting statute. Certainly the accessory

should have standing to assert that the offense which

he is charged with assisting is not, or cannot constitu-

tionally be a crime.”’

In Barrows v. Jackson, supra, a white defendant who

was a party to a racially restrictive covenant was being

sued for damages by the covenantors because she had con-

veyed her property to Negroes. The defendant was allowed

to raise the issue that enforcement of the covenant violated

the rights of prospective Negro purchasers to equal protec-

tion of the law, although no Negro was a party to the suit.

The Supreme Court said, 346 U.S. 1. ¢. 255-256, 73 S.Ct. 1. ¢.

1034:

‘‘Ordinarily, one may not claim standing in this

Court to vindicate the constitutional rights of some

third party. Reference to this rule is made in varied

situations. See Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 149-154 [71 S.Ct. 624, 636-639,

95 L.Ed. 817] (concurring opinion). The requirement

of standing is often used to describe the constitutional

limitation of the jurisdiction of this Court to ‘cases’ and

‘controversies’. See Coleman v. Miller, 307 U.S. 433,

464 [59 S.Ct. 972, 986, 83 L.Ed. 1385] (concurring

opinion). Apart from the jurisdictional requirement,

this Court has developed a complementary rule of self-

retraint for its own governance (not always clearly

distinguished from the constitutional limitation) which

ordinarily precludes a person from challenging the con-

stitutionality of state action by invoking the rights of

others. See Ashwander v. Tennessee Valley Authority,

297 U.S. 288, 346-348 [56 S.Ct. 466, 482-483, 80 L.Ed.

688] (concurring opinion). The common thread under-

lying both requirements is that a person cannot chal-

lenge the constitutionality of a statute unless he shows

that he himself is injured by its operation. This prin-

ciple has no application to the instant case in which

respondent has been sued for damages totaling $11,600,

and in which a judgment against respondent would

constitute a direct, pocketbook injury to her.’’

The Supreme Court went on to say in relation to its rule

on standing, |. c. 257, 73 S.Ct. 1. ¢. 1035:

‘‘This is a salutary rule, the validity of which

we reaffirm. But in the instant case, we are faced with a

unique situation in which it is the action of the state

court which might result in a denial of constitutional

rights and in which it would be difficult if not impos-

sible for the persons whose rights are asserted to pre-

sent their grievance before any court. Under the pecu-

liar circumstances of this case, we believe the reasons

which underlie our rule denying standing to raise an-

other’s rights, which is only a rule of practice, are out-

weighed by the need to protect the fundamental rights

which would be denied by permitting the damages

action to be maintained. Cf. Quong Ham Wah Co. v.

Industrial Acc. Comm., 184 Cal. 26, 192 P. 1021, 12

A.L.R. 1190.

Roe v. Wade, supra, and Doe v. Bolton, supra, the

other two cases relied upon by plaintiffs in the instant case

to support their contention that they have standing, are

somewhat similar in that they both attack the constitution-

ality of state criminal abortion statutes. In Roe v. Wade,

supra, the Supreme Court held that plaintiff-physician in

Wade was under indictment for violating the Texas crimi-

nal abortion statute and the Supreme Court dismissed his

complaint and remitted him to his defenses in the state

criminal proceedings against him where he could raise the

constitutionality of the statute under which he was charged.

In Doe v. Bolton, supra, the plaintiff-physicians alleged that

the Georgia criminal abortion statute chilled and deterred

them from prac icing their profession. The Supreme Court

in holding that the plaintiff-physicians had standing said,

410 U.S. 1. c. 188, 93 S.Ct. 1. ¢. 745:

‘‘(T]}he physician-appellants, who are Georgia-licensed

doctors consulted by pregnant women, also present a

justiciable controversy and do have standing despite

the fact that the record does not disclose that any one

of them has been prosecuted or threatened with prose-

cution, for violation of the State’s abortion statutes.

The physician is the one against whom these criminal

statutes directly operate in the event he procures an

abortion that does not meet the statutory exceptions

and conditions. The physician-appellants, therefore,

assert a sufficiently direct threat of personal detri-

ment. They should not be required to await and under-

go a criminal! prosecution as the sole means of seeking

relief.’’

In the instant case, the plaintiff-physicians have not

been convicted as accessories to a criminal offense as the

plaintiff-physician was in Griswold v. Connecticut, supra.

The plaintiff-physicians here do not present a unique situa-

tion such as was presented to the court in Barrows v. Jack-

son, supra, and they are not being sued for damages as in

Barrows, where a judgment against them would constitute

a direct pocketbook injury. Also in Barrows, the Supreme

Court felt it would be difficult if not impossible for the

Negroes whose rights were being asserted by the defendant

therein to present their grievance before any court. This

is not the situation here for in the instant case the persons

whose rights the plaintiffs are really asserting (their pa-

tients who are eligible to receive Medicaid payments) have

a statutory right to a hearing before a state agency as stated

above where they can present their grievance and if not

satisfied they can carry their grievance on to the appropriate

court. Neither are the plaintiff-physicians herein subject

to the direct operation of any criminal anti-abortion statute

as the plaintiff-physicians were in Roe v. Wade, supra,

and Doe v. Bolton, supra, and, therefore, cannot assert a

sufficiently direct threat of personal detriment as the plain-

tiff-physicians in those cases could. The only possible detri-

ment the plaintiffs in the instant case can suffer under

their contentions in Count II is the possibility that their

patients who are eligible for medical assistance under RSMo

208.152 will not be able to pay for the services the plaintiffs

have rendered to them in giving them an abortion operation.

Keeping in mind that it is the welfare recipient in

whose behalf medical assistance payments under RSMo

208.152 are made and that it is the welfare recipients and

not their physicians who have a right to a hearing if their

medical assistance claims are denied, and that the plaintiff-

physicians are not prohibited from performing abortions,

this Court finds that the standing requirement of Flast v.

Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968),

that there be a logical nexus between the status asserted

by the plaintiffs and th~ claim they seek to have adjudi-

eated is not satisfied b: the litigative posture of the plain-

tiff-physicians herein, and, therefore, they lack standing

to challenge the constitutionality of the statute in question

here. This is not to say that the issue the plaintiffs bring

to this Court is not justiciable, but is only to say that these

plaintiffs are not the proper parties to request an adjudica-

tion. Flast v. Cohen, supra.

COUNT III

[6] Plaintiffs contend that the word ‘‘pregnancy”’ in

RSMo 431.061 is vague and ambiguous and jf it is inter-

preted, construed and applied to exlude the giving, pre-

scribing and providing of contraceptive devices to minors

without parental consent then it would be subject to all of

the constitutional defects alleged in Count I.

It is apparent from the plaintiffs’ pleadings in Count

III that the plaintiffs do not present an actual controversy

in Count III as required under the Declaratory Judgment

Act. Therefore, this Court’s reasoning in relation to Count I

and the law applied there equally applies here in Count TTI.

In view of this Court’s findings it is not necessary to

discuss the defendants’ remaining contentions.

Accordingly, for the reasons above stated, the motion

of the defendant, State Board, to dismiss Counts I and III

for lack of controversy, and the motion of defendant Single-

ton to dismiss Count IT for lack of standing, are sustained.

The Clerk of the Court will prepare and enter the proper

order dismissing the case.

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

MISSOURI WESTERN DIVISION

Filed May 18, 1973

SAMUEL L. RODGERS, M. D.,

et al.,

Plaintiffs,

vs. | Civil Action

JOHN C. DANFORTH, Attorney No. 18980-

General of the State of

Missouri, et al.,

Defendants.

MEMORANDUM OPINION AND JUDGMENT

This complaint attacked the constitutionality of Mis-

souri criminal abortion statutes. The basic statute, Section

559.100, Missouri Revised Statutes, 1959, as amended, de-

elares the production of all miscarriages and abortions

a felony ‘‘unless the same is necessary to preserve her

(the mother’s) life or that of an unborn child,’’ with dif-

ferent penalties for the death of a ‘‘quick’’ and ‘‘unquick”’

foetus. The complaint sought both declaratory and injunc-

tive relief.

Because of the prayer for injunctive relief, a three-

judge federal court was convened under the provisions

of Title 28, U.S.C. Section 2281.

A motion to intervene was filed by ‘‘Baby Doe’’ and

an M.D. on behalf of all unborn children ‘‘who will or may

be adversely affected by the action before this court.’’

The defendant named in the origina! complaint was

the Attorney General of Missouri, in his official capacity,

and later, by an amended complaint, the Prosecuting At-

torney of Jackson County, Missouri, was added as a party de-

fendant, who was made the class representative of all prose-

euting attorneys in Missouri, by subsequent court order.

The Court then granted the motion of the defendants

to dismiss this action on the sole grounds of abstention,

and ordered the cause dismissed without prejudice. The

plaintiffs appealed this judgment to the Supreme Court.

While the appeal was pending, that Court decided

the cases of Roe v. Wade, 410 U.S. 113, 93 S.Cf. 705, 35

L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93

S.Ct. 739, 35 L.Ed.2d 201 (1973), and remanded this case

to this Court ‘‘for further consideration in light of’’ these

two cases.

After the remand, the defendants filed an answer deny-

ing the existence of a justiciable controversy and alleging

that the attacked statutes are justified by compelling state

interests, to-wit: the protection of human life and the

protection of potential human life. The answer requested

a jury trial under either Rule 38 or 39, Federal Rules of

Civil Procedure.

The plaintiffs filed a motion for summary judgment

based on affidavits of two of the plaintiffs who are medical

doctors, and a third person who is Executive Director of

Suicide Prevention, Inc., a United Fund agency in St. Louis.

The denfendant Attorney General has filed lengthy

suggestions in opposition to the motion for summary judg-

ment, accompanied by the affidavit of an M.D. which con-

troverts affidavits filed by plaintiffs as to the ‘‘chilling

effect’’ of Missouri abortion stetutes on the practice of

their profession by doctors in Missouri.

The argument of the Attorney General of Missouri is

that in Roe v. Wade, supra, the Supreme Court did not

determine ‘‘whether an unborn child is human life’’; that

this is a question of fact which can only be determined by

triers of the fact after hearing evidence from expert wit-

nesses; that if human life exists from the moment of con-

ception the State has a compelling interest to protect this

life; and that summary judgment cannot be granted when

such an issue of fact exists.

This Court finds that the teachings of Roe v. Wade,

supra, completely contradict this argument. The opinion

stated that the ‘‘existence of life from the moment of con-

ception’’ is the official belief of the Catholic Church, of

many non-Catholics, and ‘‘a view strongly held .. . by

many physicians.’’

But, the opinion states, ‘‘ We need not resolve the diffi-

cult question of when life begins.’’ No statement could be

clearer. Whether life begins at conception, at quickening,

at viability, or at birth (the alternatives discussed in the

opinion), the Court held that resolution of this question

would not affect the decision.

The defendants’ prayer for trial of the factual issue

of ‘‘when life begins’’ is denied.

The lack of justiciable controversy issue raised by the

answer is fully discussed and ruled upon in the case of

Doe v. Bolton, supra. That case holds:

‘*We conclude, however, that the physician-appel-

lants, who are Georgia-licensed doctors consulted by

pregnant women, also present a justiciable controversy

and do have standing despite the fact that the record

does not disclose that any of them has been prosecuted,

or threatened with prosecution, for violation of the

State’s abortion statutes.’’

Four of the plaintiffs in this case are eminent Missouri-

licensed obstetricians and gynecologists, and their standing

as plaintiffs, under the teachings of Doe v. Bolton cannot

be questioned.

In Roe v. Wade the Court quoted from the Texas statute

it found unconstitutional and stated, ‘‘Similar statutes are

in existence in a majority of the States.?’’ Footnot 2 lists

‘*Mo.Rev. § 559.100 (1969).’’

There can be no question that this Missouri statute re-

ferred to in that opinion is unconstitutional under the teach-

ings of the two Supreme Court cases which we were man-

dated to consider. The other two statutes attacked are based

upon the validity of § 559.100 and must similarly be held

unconstitutional. The plaintiffs’ motion for summary judg-

ment will be granted.

In both Roe v. Wade and Doe v. Bolton the Supreme

Court affirmed the lower court’s granting of a declaratory

judgment and denial of injunctive relief, stating in both

cases that the Court would assume that the state prose-

cutorial authorities would give full recognition and credence

to the Court’s judgment as to the unconstitutionality of

the State statute.

In this case the defendant Attorney General has not

given ‘‘full recognition’ or ‘‘credence’’ to the ruling of

the Supreme Court. It does not appear that a declaratory

judgment in this case, in view of the Attorney General’s

publicly stated position, will suffice to guarantee the con-

stitutional rights of pregnant women and their consulting

doctors as decided by the Supreme Court, and, it is therefore

Ordered that the defendant Attorney General of the

State of Missouri, and the defendant class of all Prosecuting

Attorneys in the State of Missouri be, and they hereby are,

enjoined from instituting any criminal prosecutions, com-

plaints for warrants, or complaints for search warrants

under, or by authority of, unconstitutional Sections

542.380(3), 559.100, or 563.300, Revised Statutes of Missouri,

1969. Costs taxed to defendant Attorney General in his

official capacity.

(s)

Floyd R. Gibson, Circuit Judge

(s)

Elmo B. Hunter, District Judge

(s)

William R. Collinson, District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.