Petition — John C. Greco v. Orange Memorial Hospital Corporation

| SEP 19 1975

———w

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. %5-432

JOHN C. GRECO

Petitioner

v.

ORANGE MEMORIAL HOSPITAL CORPORATION, ET AL.

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES R. (RON) WEDDINGTON

709 W. 14th

Austin, Texas 78701

Counsel for Petitioner

SUBJECT INDEX

Page

ESE PICT CCC TT TEER ECCT PCC ET EE 2

EE EST ae en ere 2

es sd wwe ee hke ee wena Oe a ees 2

rr 2

ae nase bina dae eee 3

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I.

Il.

III.

The Decision Below Conflicts With the Decisions of

Other Courts of Appeals as to the Proper Interpretations

as bin a6 sadca bone 4 es 5

Review and Reversal of the Decision Below is Necessary

to Effectuate This Court’s Decisions in Roe Vs. Wade and

I a ch ae ge ae ered as st 8

Review is Necessary in Order to Settle Recurring

Problems Concerning the Application of Burton V.

Wilmington Parking Authority Beyond the Area of Racial

Discrimination 9

De owen hae ehodkseacusel 15

EE CS cudeeeeakeekiseucudaeesc toes sbueneauns Al

CITATIONS

CASES:

Page

Ascherman v. Presbyterian Hosp. of Pac. Med. C., Inc.

ee Oe ee ee ee ae oe ed ee ord 10

Burton v. Wilmington Parking Authority, 365 U.S.715 __.

a or ei rs a Re a a a he le ele Oe 6,7,10

Christhilf v. Anapolis Emergency Hospital Ass’n., 496

oi es Nee chia wae 8 6

Doe v. Bellin Memorial Huspital, 479 F. 2d 756 (7th Cir.

ee ee ee en ie tan ease ke 6h kt 10

Duffield v. Charleston Area Medical Center, Inc., 503

fh, Pe 2. pick cb beee $oea0 408 6

Fortin v. Darlington Little League, Inc., 514 F. 2d

rele. eek eee e Betas a es ob e's 7

Gilmore v. City of Montgomery, Alabama, 417 U.S 456 (1974)

Grafton v. Brooklyn Law School, 478 F.2d 1137 (. id Cir. 9

i tein wesc eee eee Cee ee a aia 7,10

Griffin v. County School Board of Prince Edward County,

Pr rn. «ce eceeneenaeseeseeaeds 9

Hall v. St. Helena Parish School Board, 368 U.S. 515 (1962)

O’Neill v. Grayson County War Memorial Hospital 472 F. 2d

i ee ne een ee eee keke 4 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO.

JOHN C. GRECO

Petitioner

VS.

ORANGE MEMORIAL HOSPITAL CORPORATION, D.B.

CAMPBELL, B.W. BRIGGS, T.O. CHARLTON, N.A.

ADAMSON, FRANK W. HUSTMYRE, S. MALCOM

VAUGHAN, JOHN MAGNESS, RICHARD E. JACKSON,

Individually and as Members of the Board of Directors of

Orange Memorial Hospital Corporation; JAMES P. CLOUD,

D.H. POLLOCK, GEORGE L. EASTMAN, Jr., CHARLES

CRIM, HOWARD C. WILLIAMS, WILBUR R. CLEAVES,

ROBERT C. KEE, JOHN E. BARNES, OSCAR R. GRIFFIN,

DAVID BENNETT, R.A. INGRAM, C.B. SHADDOCK,

HOMER C. STUNTZ, R.J. FISETTE, M.F. HARRIS, Individ-

ually and as Members of the Medical Staff of Orange Memorial

Hospital; JAMES B. JONES, Individually and as a Member of

the Board of Directors of Orange Memorial Hospital Corpora-

tion and as a Member of the Medical Staff of Orange Memorial

Hospital; BESS B. SCHOFIELD, Individually and as Orange

Memorial Hospital Administrator; and the COUNTY COM-

MISSIONERS OF ORANGE COUNTY, TEXAS

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, John C. Greco, respectfully prays that a Writ

of Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit entered in

this proceeding on May 29, 1975.

Opinion Below

The opinion of the Court of Appeals is reported at 513 F.2d.

873 and is reprinted in the appendix hereto. The opinion of the

District Court for the Eastern District of Texas is printed at 374

F.Supp.227.

Jurisdiction

The judgment of the Court of Appeals for the Fifth Circuit

was entered on May 29, 1975. A timely petition for rehearing

en banc was denied on June 26, 1975. (515 F.2d.1183), and

this petition for certiorari was filed within ninety days of that

date. This Court’s jurisdiction is inyeked under 28 U.S.C. Sec.

1254(1).

Questions Presented

I. Whether the actions of a hospital medical staff and board

of directors which deny access to a staff doctor and his patients

for the purpose of performing abortions constitute “state

action” or “action under color of state law” when the hospital

was built on county property, using county funds, is owned by

the county and is leased by the county to a non-profit

corporation for one dollar a year.

II. Whether the trial court erred in dismissing the cause of

action against those defendants who are members of the

medical staff of Orange Memorial Hospital and whose decision

to forbid the performance of abortions within the hospital was

adopted by the hospitai board of directors.

Statutory Provisions Involved

United States Code Title 42:

Section 1983 Civil Action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, or any state or territory, subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

Statement of the Case

The facts of this case have never been seriously disputed. In

1954 the voters of Orange County, Texas authorized the

issuance of $1,762,000.00 in hospital bonds. This money was

combined with a Hill-Burton Grant of $1,250,000.00 and was

used to erect the original hospital building on land which had

been donated to Orange County by private individuals. In later

years more land was donated to the County by private

individuals and the county commissioners, without the explicit

approval of the voters, issued approximately $670,000.00

worth of hospital time warrants so that additions could be made

to the original building. The application for a hospital license

and the application for Hill-Burton Funds was submitted by the

County of Orange as owner and operator of the proposed

hospital. In 1957, however, the County of Orange entered into

a lease agreement with the Orange Memorial Hospital Corpora-

tion, a non-profit corporation. Under the terms of the lease, the

County continued to own the land, the hospital buildings and

the equipment within it. However, under the terms of the lease

the corporation would take over the operation and maintenance

of the hospital. The original lease was for five years, and has

been renewed to this date. The payments under the lease are

$1.00 per year. In order to retire the debt from the bonds and

the time warrants, the citizens of Orange County pay 8 “ff of

every tax dollar toward tiat purpose. The Corporation is

exempt from all taxation and under the provisions of the lease

agrees to the following: (1) to operate the hospital as a

non-profit institution and to furnish to the general public

medical and surgical care subject to such terms and regulations

as the lessee may prescribe; (2) to carry out the assurances

required of the lessor in order to obtain federal funds and to

relinquish possession of the hospital in the event it fails to

adequately comply; (3) to have all equipment and supplies

inventoried, in a manner approved by lessor, and to dispose of

worthless, damaged, or worn out equipment only with the prior

approval of the Commissioners Court; (4) to be responsible for

the expense of the day to day operation and maintenance of the

hospital; (S) to make additions to the hospital with the written

consent of lessor and at its own expense; (6) to keep all

appropriate insurance in effect; (7) to submit an annual audit

to lessor and to furnish any information which lessor feels is

necessary to inform the people of Orange County about the

operation and financial condition of the institution; (8) to

accept indigent patients certified by the lessor subject to the

prior obligation to receive emergency cases. The lessee is given

an option to purchase the hospital during the term of the lease

and an unlimited option to renew the lease for additional 5 year

periods as indicated earlier. The lessor reserves the right through

its County Health Office to advise the lessee that an indigent is

being kept in the hospital for a longer period of time than

necessary, and that the lessor shall no longer be liable for

expenses. The lessor-county specifically indicates in the lease

that the lessee “has undertaken ‘o relieve lessor of the

responsibility and expense of operating a hospital.”

The lessee-Orange Memorial Hospital Corporation was

chartered as a non-profit, tax exempt, private corporation for

the purpose of supporting charitable and educational under-

takings including the operation and maintenance of the hospi-

tal, and the general promotion of the health of the community.

The corporation consists of life and advisory members. Life

membership is obtained by contributing $1000.00 to the

corporation. Any citizen and qualified voter of Orange County

who owns taxable property may become an advisory member

by attending the annual meetings of the corporation. The

direction and management of the affairs of the corporation is

vested in the board of directors composed of 9 persons. Five

members of the board must be life members and four members

are elected from the advisory group.

It was conclusively established at the trial in the District

Court and has never been seriously questioned that there are no

practical or medical reasons for the hospital’s refusal to admit

elective abortion patients. Plaintiff has never asked any Court to

require any individual doctor, nurse or other person to assist

him in performing the elective abortions on his patients. The

hospital has available beds and personnel and medical proce-

dures almost identical in nature to elective abortions are

regularly performed within the hospital.

Shortly after this Court’s decision in the abortion cases in

January of 1973, the Plaintiff admitted several of his patients

for elective abortion procedures. The medical staff, consisting

of all the doctors who held staff privileges at the hospital met

and decided that the policy of Orange Memorial Hospital should

be that elective abortions would not be allowed. The Board of

Directors of Orange Memorial Hospital Corporation adopted the

decision of the medical staff and after that time, the Plaintiff's

patients were refused admittance when he sought to admit them

for purposes of an elective abortion. Plaintiff then filed suit in

the United States District Court for the Eastern District of

Texas, Beaumont Division, against the Corporation, the Board

of Directors, the medical staff and the county commissioners of

Orange County, all in their individual and official capacities.

Plaintiff asked for declaratory and injunctive relief against the

hospital’s policies on behalf of himself and his patients and

asked for monetary damages for the lost income he had suffered

and the damage to his practice. The District Court also

dismissed those Defendants who we:e members of the medical

staff. After trial, the District Court entered a judgment

dismissing the entire cause of action and issued a memorandum

opinion in which the Court stated that the Plaintiff had

standing to bring the suit, that were Orange Memorial Hospital a

public hospital within the meaning of Title 42, Section 1983

that the hospital would have to admit patients for elective

abortions but that Orange Memorial Hospital was in effect a

private hospital for purposes of the Civil Rights Act and hence

no cause of action was permissable under Title 42, Section

1983, United States Code. Plaintiff appealed to the United

States Court of Appeals for the Fifth Circuit where the

judgment of the District Court was affirmed. Although Plaintiff

was appealing both the decision to dismiss the medical staff

from the law suit and the decision that Orange Memorial

Hospital is not a public hospital for purposes of 42 U.S.C. Sec.

1983, the Court of Appeals did not reach the question of the

dismissal of the medical staff in its opinion. Plaintiff still

maintains his position that the Defendants who are members of

the medical staff should not have been dismissed since under

the by-laws of the corporation it is at least open to dispute as to

whether the medical staff or the board of directors has

jurisdiction over purely medical matters within the hospital.

Reasons for Granting the Writ

I. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF OTHER COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF 42 U.S.C. Sec. 1983.

Since this Court stated in Burton v. Wilmington Parking |

Authority, 365 U.S. 715, 722 (1961), that “only by sifting

facts and weighing circumstances can a nonobvious involvement

of the State in private conduct be attributed its true signifi-

cance,”” the various courts of appeals have grappled uncertainly

with situations involving government ownership or subsidy to

entities operated by otherwise private groups. In dealing with

hospitals, the courts of appeals have reached widely divergent

results. This is most dramatically illustrated in the conflict

between decisions of the Sixth Circuit and the Fifth Circuit in

the present case. In O'Neill v. Grayson County War Memorial

Hospital, 472 F.2d. 1140 (1973), the Sixth Circuit held that the

due process provision of the Fourteenth Amendment was

applicable to a hospital which is almost identical to the hospital

in the present case. In O'Neill, hospital facilities were owned by

the County and leased to a foundation for the sum of $1.00 per

year. The foundation agreed to fulfill all duties and responsi-

bilities incident to the maintenance and operation of the

hospital and agreed to assume the obligations and agreements

that the County governing body had made with the United

States in securing Hill-Burton Funds. These provisions are

identical to those contained in the lease between the County

Commissioners of Orange County and the Orange Memorial

Hospital Corporation in the present case. The only difference in

the two cases is that while in O’Neill the agreement between the

County and the Foundation required that the Board of

Directors of the Foundation shall at all times contain at least

one member from each of the County’s magisterial districts; in

the present case the agreement between the County and the

Corporation provides that there shall be at least four directors

of the Corporation elected from the members of the general

public whose only qualifications are that they be qualified

voters and own taxable property within the County.

The Fourth Circuit has required even less in finding state

action where hospitals are concerned. In Duffield v. Charleston

Area Medical Center, Inc. 503 F. 2d. 512 (1974) and in

Christhilf v. Anapolis Emergency Hospital Ass'n, Inc. , 496 F.2d.

74 (1974) the Fourth Circuit held that where a hospital had

received funds for capitol expenditures from the County and

from the Hill-Burton program, action taken against a staff

physician was action under color of state law.

In Fortin v. Darlington Little League, Inc., 514 F. 2d. 344

(1975) the First Circuit found that the action of the Little

League organization in excluding girls was state action. This

decision was reached in view of the fact that the Little League

organization was granted almost exclusive use of city recre-

ational facilities.

The Second Circuit’s opinion in Grafton v. Brooklyn Law

School, 478 F. 2d. 1137 (1973) indicates that while mere

receipt of funds from a governmental entity would not be

enough to place the action of an otherwise private organization

within the realm of state action, that anything more would

subject the entity to the requirments of the Fourteenth

Amendment. In Grafton, the Court was dealing with a situation

where the land for the Law School was obtained at an auction

held by the City of New York which was restricted to

non-profit organizations which planned to use the land to

construct an educational facility. The Court held that this was

not enough for purposes of 42 U.S.C. 1983, but that “‘we need

not decide what the result would be if New York City had not

only given the land, but constructed the buildings and leased

them to the Law School, a situation that would demand

consideration of how far Burton v. Wilmington Parking

Authority 365 U.S. 715 (1961) applies beyond the area of

racial discrimination.” 479 F. 2d. 1142. In considering the

situation now existing in Orange County where a pregnant

woman desiring an abortion is forced to pay 8%¢ out of every

tax dollar to the County for the retirement of the debt on the

hospital and yet is excluded from the hospital, a footnote

contained in Grafton is particularly appropope. “[There] is a

peculiar offensiveness when citizens are required to pay taxes

‘for purposes whence they or their children are excluded.’” 478

F. 2d. at 1142.

In reaching its decision the Fifth Circuit in the present case

stated that there were two differences between the present

situation and that found in Burton and other cases where state

action had been found. First, the situation in the present case

does not involve racial discrimination. None of the First, Sixth

or Fourth Circuit opinions cited above involved racial discrim-

ination. Second, the Fifth Circuit opinion relied heavily on the

fact that the County in the present case did not seek to

influence hospital policy as regards abortions. However, in none

of the conflicting cases by other circuits did the governmental

entity have any policy concerning the alleged constitutional

infringement.

Il. REVIEW AND REVERSAL OF THE DECISION BELOW

IS NECESSARY TO EFFECTUATE THIS COURT'S

DECISIONS IN ROE VS. WADE AND DOE VS. BOLTON.

In deciding the abortion cases this Court raised to the

constitutional level of other rights guaranteed by the

Fourteenth Amendment the right of a woman in consultation

with her physician to have an abortion. However, as was

established without objection at the trial in the District Court,

before many women can exercise that Constitutional right.

hospital facilities must be available. As the Plaintiff testified.

many of his patients who are obese, have high blood pressure or

other medical complications or who are very young, require the

facilities of a complete hospital even when the abortion is

performed in the first trimester. The Plaintiff further testified

that the nearest hospital which would take abortion patients

was 90 miles away in Houston, Texas and that the 90 mile trip

would represent a hardship for many of his indigent patients.

No general study of hospital ownership and operation in

Texas is available. However, the Texas State Department of

Health, Hospital Licensing Division publishes a directory of the

licensed hospitals of Texas. Out of 576 licensed hospitals in the

state, 292 are owned or operated by corporations or non-profit

associations. Another 50 hospitals are listed as being owned by

churches. Even this is not a true reading of the number of

hospitals available to those desiring elective abortions, since

Orange Memorial Hospital is listed in the directory as being

owned and operated by the County of Orange. It is not known

how many hospitals are owned by some governmental entity

and leased to a non-profit association. When one realizes that

not all hospitals maintain obstetrical facilities and do all types

of surgery, the facilities that are available to 2 woman and her

doctor for use in carrying out her Constitutional right to have

an abortion if she chooses are very limited indeed.

The Florida State Plan for Construction of Hospitals,

published by the Division of Community Hospitals and Medical

Facilities lists 353 hospitals. Of these 109 are owned by

non-profit associations and 17 are owned by churches. All of

these institutions have received or will receive state funds to aid

them in construction of facilities.

9

Plaintiff does not have the resources to make a detailed study

of the hospitals in every state. However, the statistics related

above and the large number of cases involving hospitals which

are Operated by a private board of directors but receive

substantial state aid indicate that the problem faced by the

Plaintiff and his patients is a recurring one and one which has a

great effect on the rights of those women who seek abortions.

This Court’s decision on abortion, like its decision on

desegregation, is extremely unpopular in some quarters of the

na: on. The decision of the Court below opens the opportunity

for serious mischief on the part of local governments. The

practice of turning over essentially governmental operations to

private individuals in order to avoid the mandates of our

Constitution has reached a high art following this Court’s

decisions in the area of desegregation. This Court has uniformly

struck down such attempts. Hall v. St. Helena Parish School

Board, 368 U.S. 515 (1962); Griffin v. County School Board of

Prince Edward County, 377 U.S. 218 (1964); Gilmore v. City of

Montgomery, Alabama, 417 U.S. 556 (1974). Constitutional

rights do not exist in a vacuum. This Court should make it clear

to governmental officials that they cannot avoid the difficult

and sometimes unpopular decisions required by our

Constitution simply by transferring facilities constructed with

the tax dollars of citizens into so-called private institutions.

Ill. REVIEW IS NECESSARY IN ORDER TO SETTLE

RECURRING PROBLEMS CONCERNING THE APPLI-

CATION OF BURTON VS. WILMINGTON PARKING

AUTHORITY BEYOND THE AREA OF RACIAL

DISCRIMINATION.

It is obvious from the Fifth Circuit’s opinion in this case that

were Orange Memorial Hospital refusing to admit black people

as patients, the Court would have found the requisite state

action for purposes of 42 U.S.C. Section 1983. While it has for

some time been evident to the students of the Federal Courts

that many Courts of Appeal were applying a different standard

depending on whether the Plaintiff was a member of a racial

minority or was claiming some other Constitutional right, it has

only been recently that the Courts have candidly expressed this

double standard. It is expressed in the opinion of the Court

below and is likewise expressed in Doe v. Bellin Memorial

Hospital, 479 F. 2d. 756 (7th Cir. 1973); Grafton v. Brooklyn

10 | 1]

Law School, 478 F. 2d. 1137 (2nd Cir. 1973) and Ascherman v.

Presbyterian Hosp. of Pac. Med. C.; Inc., 507 F. 2d. 1103 (9th

Cir. 1974).

Other Courts have specifically refused to apply a double

standard.

Conclusion

‘“‘Whereas we are cognizant of the concern expressed in the

Place opinion for the ‘ever increasing attempts to get into | For these reasons a Writ of Certiorari should issue to review

Federal Court by labelling real or imagined wrongs as | the judgment and opinions of the Fifth Circuit.

deprivations of civil rights’ which may never have been }

anticipated by the drafters of 42 U.S.C. Section 1983, we | Respectfully submitted,

find nothing in the language of that statute nor in the

Supreme Court’s Decisions thereunder which permits the JAMES R. (RON) WEDDINGTON

recognition or nonrecognition of state action to be in any | 709 West 14th Street

way governed by the nature of the Constitutional rights Austin, Texas 78701

asserted in a complaint under Section 1983.” O'Neill v. | Attorney for Petitioner

Grayson County War Memorial Hospital, 472 F. 2d.

1140, 1144 (6th Cir. 1973)

In applying the double standard, the various courts of

Appeals have added a further requirement that not only must

the state be involved in a symbiotic relationship with the

otherwise private entity, but that the state must be involved

with the very practice or action that is compiained of. This

extra requirement was first enuncizied in Doe v. Bellin

Memorial Hospital, supra. That opinion attempted to justify the

extra requirement by drawing words out of context from

Burton v. Wilmington Parking Authority. However, there is

nothing to indicate that the Parking Authority in any way

supported, required or urged its tenant to discriminate against

black people.

If there is to be a double standard in our Federal Courts |

concerning the enforcement of Constitutional rights, then this

Court should enunciate that standard clearly for all to hear.

Logic dictates that if a hospital, school or other institution can

discriminate against those women who desire to exercise their

Constitutional right to an abortion, then that same institution

or entity can discriminate against black people. Depending upon

where one lives, such is not the case and such a state of affairs is

extremely frustrating to those who seek out the Courts for help

in obtaining their Constitutional rights. If the law is truly to be

colorblind then this Court should put an end to the double

standard.

APPENDIX

Al

Opinion Filed May 29, 1975

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

CIVIL ACTION NO. 74-2102.

JOHN C. GRECO

Plaintiff-Appellant

Vv.

ORANGE MEMORIAL HOSPITAL

CORPORATION et al.,

Defendants-Appellees.

Before GEWIN, BELL and CLARK,

Circuit Judges

GEWIN, Circuit Judge:

The plaintiff-appellant, Dr. John C. Greco, a licensed

physician authorized to practice obstetrics and gynecology,

joined the staff of the Orange Memorial Hospital in 1960. In

early 1973 after the United States Supreme Court invalidated

the Texas criminal abortion statute, the appellant began to

perform elective abortions. Eight elective abortions were per-

formed by Dr. Greco in Orange Memorial Hospital before the

hospital’s board of directors adopted a motion of the medical

staff to prevent further use of the hospital’s facilities for the

performance of non-therapeutic abortions. Following the insti-

tution of this policy six of Dr. Greco’s patients who desired

non-therapeutic abortions were denied admission to the

hospital.

Facts stipulated by the parties indicate that surgical proce-

A2

dures technically indistinguishable from elective abortions are

performed in Orange Memorial Hospital and that the hospital’s

facilities are adequate to accommodate patients seeking elective

abortions. Dr. Greco filed suit against the Orange Memorial

Hospital Corporation, its board of directors and medical staff,

and the Commissioners Court of Orange County, seeking

declaratory and injunctive relief, as well as damages, for their

allegedly unconstitutional policy. Prior to trial the district court

ordered the damage claim severed and held in abeyance pending

resolution of the other issues presented. The court found the

board of directors ultimately responsible for hospital policy and

dismissed the medical staff from the case. Subsequent to the

presentation of Dr. Greco’s evidence the court dismissed the

remaining defendants holding that absent a showing of “state

action” the court was without the subject matter jurisdiction

required by 42 U.S.C. § 1983 and the Fourteenth Amendment -

to hear the case.! We agree with the district court in all respects

and affirm. The opinion of the district court is reported in 374

F.Supp. 227 (E.D.Tex. 1974).

Dr. Greco raises two questions on appeal: (1) whether the

district court erroneously decided that the actions of the

hospital staff and the board of directors did not constitute

“state action”’, or “action under color of law”; (2) whether the

district court erroneously dismissed the cause of action against

the medical staff. The appellees present a cross specification of

error contending that the district court erroneously found that

Dr. Greco had standing to bring the suit.

Addressing first the question of standing, we find that in the

circumstances Dr. Greco had standing to litigate on behalf of his

patients who were allegedly deprived of constitutional rights by

the Orange Memorial Hospital’s restrictive abortion policy, and

on his own behalf because of his individual economic and

liberty interest. Dr. Greco’s personal stake in this litigation is

primarily his right to practice medicine free from the imposition

of arbitrary restraints, and the physician’s interest in the

context of this case is inextricably bound up with the right to

privacy of the patients seeking an abortion. The existence of

such a personal interest in the controversy is assurance enough

of the adversarial character of the litigation necessary to sharply

1. See, Parish v. National Collegiate Athletic Association, 506 F.2s 1028, 1031

(Sth Cir. 1975).

A3

focus the issues for this court.2 See Nyberg v. City of Virginia.

495 F.2d 1342, 1344 (8th Cir. 1974); Shaw v. Hospital

Authority of Cobb County. 507 F.2d 625 (Sth Cir. 1975): Roe

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

YWCA v. Kugler, 342 F.Supp. 1048, 1055 (D.N.J. 1972). See

generally, standing to assert Constitutional Jus Tertii, 88

Harv.L.Rev. 423 (1974).

The difficult questions on this appeal are those presented by

Dr. Greco. He asserts essentially that Orange Memorial Hospital

and Orange County are engaged in a symbiotic relationship, that

Orange County has delegated its authority to the hospital

corporation, and that the hospital is performing a public

function, all of which indicate that the hospital should be

subject to constitutional restrictions. Dr. Greco takes specific

issue with the district court’s construction of Moose Lodge No.

107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627

(1972) and Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th

Cir. 1973) to the effect that he must show that Orange County

is involved in the very activity challenged in order to prove

“state action.” He argues that the evidence shows the state to

be a joint participant in the operation of the private entity and

that the state is perforce involved in the challenged activity.

In order to provide the proper perspective for addressing

these questions we must delve more deeply into the factual

background of the Orange Memorial Hospital and, once

ascertained, perceive the facts cf this case in the context of the

legal morass of the ever evolving state action doctrine.

The history of the hospital’s creation was stipulated by the

parties. In 1954 land on which the hospital is located was

donated to Orange County by private individuals. In the same

year county voters authorized the issuance of $1,762,000.00 in

hospital bonds. The local money was combined with a

Hill-Burton grant of $1,250,000.00 in order to erect the original

hospital building. In later years more land was donated to the

2. The district court stated its conclusion on the issue of standing as follows:

This Court is in agreement with the reasoning of the Court in Young

Women’s Christian Association of Princeton, N. J. v. Kugler, that the

plaintiff physician has standing to litigate any deprivations of the

constitutional rights of his pregnant women patients. Further, he has

standing to litigate on his own behalf because he has suffered some, albeit

small, economic loss and because the hospital rule may infringe on his

right to practice medicine.

374 F Supp. at 232.

As

county by private individuals and the county commissioners,

without the explicit approval of the voters, issued approxi-

mately $670,000.00 worth of hospital time warrants so that

additions could be made to the original building. The county

owns both the land and the building which houses the Orange

Memorial Hospital. Orange County citizens pay eight and

one-half cents of every tax dollar to retire the bonds and time

warrants.

In 1957 Orange Memorial Hospital, under the auspices of the

non-profit hospital corporation, opened its doors to the public.

Daily operating expenses are assumed by the hospital corpora-

tion and paid with funds generated by the hospital’s services.

To-date income from patients has been sufficient to defray all

expenses. The corporation leases the land and hospital building

from the county for one dollar per year and is exempt from all

taxation, state, local, and federal. The term of the lease between

the county and the hospital corporation is for a period of 5

years, and the lease may be renewed for 5 year terms

indefinitely. Under the provisions of the lease the hospital

corporation agreed to the following: (1) to operate the

hospital as a non-profit institution and to furnish to the general

public medical and surgical care subject to such terms and

regulations as the lessee may prescribe; (2) to carry out the

assurances required of the lessor in order to obtain federal funds

and to relinquish possession of the hospital in the event it fails

to adequately comply;3 (3) to have all equipment and supplies

inventoried, in a manner approved by lessor, and to dispose of

worthless, damaged, or worn out equipment only with the prior

approval of the Commissioners Court; (4) to be responsible for

the expense of the day to day operation and maintenance of the

hospital; (S$) to make additions to the hospital with the written

consent of lessor and at its own expense; (6) to keep all

3. The Hospital Survey and Construction Act (Public Law 725, 79th Congress)

Tit. 42 US.C.A. § 291 et seq. provides generally for conditions upon which

federal assistance is available for the construction of hospitals. For example,

29le requires that laborers engaged in construction of the facility be paid

wages not less than those prevailing on similar work in the particular

locality. No condition is imposed with respect to the performance or

nonperformance of elective abortions.

Federal financial assistance does not bring an otherwise private facility

within the parameters of 42 U.S.C. § 1983 and the Fourteenth Amendment.

See, e. g., Barrett v. United Hospital, 376 F Supp. 791, 800—01 (S.D.N_Y.

1974).

AS

appropriate insurance in effect; (7) to submit an annual audit

to lessor and to furnish any information which lessor feels is

necessary to inform the people of Orange County about the

operation and financial condition of the institution; (8) to

accept indigent patients certified by the lessor subject to the

prior obligation to receive emergency cases. The lessee is given

an option to purchase the hospital during the term of the lease

and and unlimited option to renew the lease for additional 5

year periods as indicated earlier. The lessor reserved the right

through its County Health Office to advise the lessee that an

indigent is being kept in the hospital for a longer period of time

than necessary, and that the lessor shall no longer be liable for

expenses. The lessor-county specificaily indicates in the lease

that the lessee “has undertaken to relieve lessor of the

responsibility and expense of operating a hospital.”

The lessee-Orange Memorial Hospital Corporation was

chartered as a non-profit, tax exempt, private corporation for

the purpose of supporting charitable and educational under-

takings including the operation and maintenance of the

hospital, and the general promotion of the health of the

community. The corporation consists of life and advisory

members. Life membership is obtained by contributing

$1000.00 to the corporation. Any citizen and qualified voter of

Orange County who owns taxable property may become an

advisory member by attending the annual meetings of the

corporation. The direction and management of the affairs of the

corporation is vested in the board of directors composed of 9

persons. Five members of the board must be life members and

four members are elected from the advisory group. The by-laws

of the corporation do not precisely define the relationship

between the board of directors and the medical staff but do

indicate that the board is the ultimate authority in determining

hospital policy. The board is authorized to receive and consider

recommendations of the medical staff.4

4. For example, Article IX §§ 1, 2, 9 of the Hospital Corporation's By-Laws

provide that:

SECTION |

The Board of Directors shall appoint a Medical Staff of the Orange

Memorial Hospital Corporation which shall, subject to the approval of the

Board of Directors of the Corporation, adopt its own By-Laws. Such

By-Laws shall not be inconsistent with the By-Laws of the Corporation,

and shall include a provision for review of decisions concerning

A6é

The district court correctly held that a private hospital is

subject to the provisions of 42 U.S.C. §19835 and the

Fourteenth Amendment® only if its activities are significantly

affected with state involvement.’ Section 1983 and the

5.

6.

7.

qualifications and privileges of members of the Medical Staff and

applicants for membership, including the right of the individual

practitioner to be heard upon request. at cach step of the process.

SECTION 2

The Medical Staff shall have the authority to evaluate the professional

competence of staff members, and applicants for staff membership: and

shall be responsible for making appropriate recommendations to the

Board of Directors concerning the appointment. reappointment. granting

of privileges. and curtailment of privileges of members, and as

appropriate. applicants for membership on the professional staff.

SECTION 9

The Board of Directors shall be kept informed of the recommendations

generated from the Medical Staffs peer review of the clinical practice.

and utilization review functions. The Chief of the Medical Staff shall be

requested periodically (at regularly scheduled meetings of the Board of

Directors) to provide the Board with a verbal briefing concerning these

functions.

The Civil Rights Act of 1871 (42 USCA. § 1983) states in pertinent part:

Every person, who, under color of any statute, ordinance, regulation,

custom, or usage. of any State .. . subjects, or causes to be subjecied, any

citizen...to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable .. . in an action at

law, suit in equity .. ..

Section | of the Fourteenth Amendment states in pertinent part:

No State shall make or ‘enforce any law which shall abridge the privileges

or immunities of citizens of the United States: nor shall any State deprive

any person of life, liberty, or property, without due process of law: nor

deny to any person within its jurisdiction the equal protection of the

laws.

Two elements must be proved in order to recover under § 1983: (1)

deprivation of a constitutional right by a defendant, (2) acting under color

of law, See Smith v. Young Men’s Christian Ass'n of Montgomery, 462 F.2d

634, 647 (Sth Cir. 1972): Hathaway v. Worcester City Hospital, 475 V.2d

701, 705 (ist Cir. 1973), and discussion of Dr. Greco’s standing to bring

this suit, in text, supra. Generally speaking the label “state action” and

“under color of law” are perceived as alternative ways of expressing the

same legal principle. Note, State Action: Theories for Applying

Constitutional Restrictions to Private Activity, 74 Col. L-.Rev. 656, n. 4

(1974) (hereinafter cited as State Action: Theories): Parish v. National

Collegiate Athletic Association, 506 F.2d 1028, 103! n. 6 (Sth Cir. 1975).

Justice Brennan is of the view that “under color of law” is more restrictive

than the concept of “state action.” Adickes v. Kress & Co., 398 US. 144,

90 S.Ct. 1598, 26 L.Ed.2d 142, 184—85 (1970 opinion of Brennan, J.).

Se ee ree meee Sam ws

DS ag NE tt

+ = SO ee wee. emer. -— te eee +

A7

Fourteenth Amendment do not preclude invidious discrim-

nation by private parties. Civil Rights Cases, 109 U.S. 3, 11, 3

S.Ct. 18, 21, 27 L.Ed. 835, 841 (1883).8 The problem in state

action cases is that demarcation of the spheres, public and

private, is a dynamic process, and the boundaries between the

two shift and are adumbrated by the various factual situations

which are presented for review.? As the court in Burton v.

Wilmington Parking Authority said, “Only by sifting facts and

weighing circumstances can the nonobvious involvement of the

State in private conduct be attributed its true significance.” ! 0

8. The Civil Rights Cases not only articulate the dichotomy between state and

private action. but also illustrate the confusion which sometimes arises in

the analysis of state action problems regarding the question of Congressional

power to legislate against private discriminatory conduct. See generally.

State Action, Congressional Power and Creditors’ Rights: Burke and Reber

and Essay on the Fourteenth Amendment, 46 S.Cal.L.Rev. 1005, 1011

(1973) (hereinafter cited State Action, Congressional Power and Creditors’

Rights). For examples of decisions discussing the scope of Congressional

power see, Griffin v. Brickenridge. 403 U.S. 88, 95 S.Ct. 1790, 29 L.Ed.2d

338 (1971); United States v. Guest, 383 US. 745, 86 S.Ct. 1176, 16

L.Ed.2d 239 (1966).

9. See, e. g., James V. Pinnix, 495 F.2d 206, 209 (Sth Cir. 1974). Wimbish v.

Pinnellas Co., Fla., 342 F.2d 804(Sth Cir. 1965). Compare Doe v. Bellin

Mem. Hosp., 479 F.2d 756 (7th Cir. 1973) with Jackson v. Statler

Foundation, 496 F.2d 623 (2d Cir. 1974). See generally, State

Action: Theories at 656—57.

The concepts of state action developed primarily in cases involving

racial discrimination. The broad pronouncements articulated by the

courts in some of these decisions are in the process of being more

precisely defined, particularly in litigation free from racial overtones. See,

e. g., Jackson v. Metropolitan Edison Co., ----U.S.--, 95 S.Ct. 449, 42

L.Ed.2d 477 (1974); James v. Pinnix, 495 F.2d 206, 209 (Sth Cir. 1974)

(“Some state involvement in the Reitman-Mvose Lodge sense may be

present here but it is simply not enough, given the nonracial nature of the

case, to constitute state action.”). See also, Black, The Supreme Court

1966 Term: Foreward: “State Action”, Equal Protection and California's

Proposition 14, 81 Harv.L.R. 69, 70 (1967) (hereinafter cited as Supreme

Court 1966 Term); State Action, Congressional Power and Creditors’

Rights. Compare, The Reemergence of the “State Action” Requirement

in Race Relations Cases, 22 Cath.U.L.R. 39 (1972).

10. 365 US. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed. 2d 45, 50 (1961).

Because the virtue of the right to equal protection of the laws could lie

only in the breadth of its application, its constitutional assurance was

reserved in terms whose imprecision was necessary if the right were to be

enjoyed in the variety of individual-state relationships which the

A8&

It is enlightening, however, to consult the substantial body of

“state action” case law for illustrations of the kind and degree

of state involvement which justify the imposition of Consti-

tutional! restraints upon an ostensibly private entity.

Generally speaking, questions of “state action” arise when

the state has involved itself in the activity under scrutiny or

when a private entit, has of its own volition assumed a state or

public function. See generally, State Action: Theories; State

Action, Congressional Power and Creditors’ Rights; State

Action and the Burger Court, 60 Va.L.Rev. 840 (1974); Case

Note, 43 Fordham L.Rev. 288 (1974); The Reemergence of the

“State Action” Requirement in Race Relations Cases, 22

Cath.U.L.R. 39 (1972); Developments in the Law: Academic

Freedom, 81 Harv.L.Rev. 1045, 1056-64 (1968). A state’s

involvement may be manifested in multifarious ways. For

example, the state may sanction or seek to enforce the claims of

private parties,!! may give financial assistance to private

institutions,!2 may regulate the activities of private organi-

zations,!3 or may employ private parties to promote state

interests.!4 On the other hand, the state may not be involved at

all. A private party may assume a governmental character by

participating in activities such as those described in Terry v.

Amendment was designed to embrace. For the same reason, to fashion

and apply a precise formula for recognition of state responsibility under

the Equal Protection Clause is an “impossible task” which “This Court

has never attempted.”

Id. (citation omitted).

11. See, e. g., Shelley v. Kraemer, 334 US. 1, 68 S.Ct. 836, 92 L.Ed. 1161

(1948); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830

(1967); Brantley v. Union Bk. & Trust Co., 498 F.2d 365 (Sth Cir. 1974).

12. See. e. g., Smith v. YMCA, 462 F.2d 634 (Sth Cir. 1972); Hammond v.

University of Tampa, 344 F.2d 951 (Sth Cir. 1965); Grafton v. Brooklyn

Law School, 478 F.2d 1137 (2d Cir. 1973).

13. See e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92S. Ct. 1965, 32 L.

Ed.2d 627 (1972). Grafton v. Brooklyn Law School, 478F .2d 1137 (2d

Cir. 1973).

14 See, e. g., Derrington v. Plummer, 240 F.2d 922 (Sth Cir. 1956).

A9

Adams!5 or Marsh v. Alabama.!© The instant appeal involves

some aspects of both state involvement and the assumption of a

public function by private parties. Under neither approach do

we feel that the circumstances warrant imposition of consti-

tutional restrictions upon Orange Memorial Hospital.

Orange County gives the hospital corporation financial

support to the extent that a publically owned building and the

land upon which it is situated are leased for the nominal sum of

one dollar per year. The hospital corporation is a non-profit,

charitable, tax exempt, organization explicitly dedicated to

maintaining the facility and to promoting community health

care. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81

S.Ct. 856, 6 L.Ed.2d 45 (1961) involved a somewhat similar but

not identical situation. The Authority, in order to make bond

financing of its parking facility practicable by ensuring income

in addition to parking fees, entered into long term lease: with

commercial tenants, including the Eagle Coffee Shoppe. The

Eagle Coffee Shoppe, at its own behest, adopted a policy of

racial discrimination, refusing to serve blacks. The Court

emphasizing the facts that the parking facility was publically

owned, that the restaurant’s premises constituted physically and

financially integral parts of the State’s parking project, that

upkeep and maintenance of the building were public

responsibilities, that the lease provisions enabled the State to

demand that Eagle provide nondiscriminatory service, and that

the restaurant was locaied in a building devoted to public

purposes, found a degree of state participation in the Eagle’s

discriminatory action which was precluded by the Fourteenth

Amendment.!7 The Court observed that the mutually bene-

ficial relationship between the Authority and Eagle infused the

respective projects with attributes of a joint venture. 18 Absent

close scrutiny one might argue that Burton v. Wilmington

Parking Authority controls the instant appeal. There are,

however, significant differences in the two sets of

circumstances.

15. 345 US. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953).

16. 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946).

17. Burton v. Wilmington Parking Authority, 365 US. 715, 81 S.Ct. 856, 6

L.Ed.2d 45, 51-2 (1961).

18. Id.

AlO

The most obvious distinguishing factor is that Orange

Memorial Hospital is not accused of racial discrimination. The

doctrine of state action developed primarily in the area of racial

discrimination. See State-Action Theories at 657 and footnote

10. supra. The concepts developed in this area, explicitly

supported by constitutional and legislative mandates. were

necessarily broadly drawn in order to implement Congressional

intent in circumstances of positive and frequent state obfus-

cation and delay. The potentially explosive impact of the

application of state action concepts designed to ferret out

racially discriminatory policies in areas unaffected by racial

considerations has led courts to define more precisely the

applicability of the state action doctrine. See James v. Pinnex,

495 F.2d 206, 209 (Sth Cir. 1974) and footnote 10, supra. See

also Brantley v. Union Bk. & Trust Co., 498 F.2d 365 (Sth Cir.

1974); Calderon v. United Furniture Co., 505 F.2d 950 (Sth

Cir. 1974); Derrington v. Plummer, 240 F.2d 922 (Sth Cir.

1956); Blouin v. Loyola, 506 F.2d 20 (Sth Cir. 1975); Grafton

v. Brooklyn Law School, 478 F.2d 1137, 1142 (2nd Cir. 1973).

Compare, Simkins v. Moses H. Cone Mem. Hosp., 323 F.2d 959

(4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11

L.Ed.2d 659 (1964). The policy of the Orange Memorial

Hospital Corporation does not impinge upon the rights of a

racial group seeking admittance and treatment, but rather

affects primarily only the internal affairs of the facility. A

secondary effect of the corporation’s policy is admittedly to

discriminate against persons seeking to obtain and physicians

desiring to perform elective abortions. We feel, however, that

the interest of the hospital in ordering its internal administrative

affairs outweighs the interest of the people disadvantaged in this

case.

A second factor distinguishing the instant situation from that

described in Burton v. Wilmington Parking Authority is also

noted in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct.

1965, 32 L.Ed.2d 627, 638 (1972):

{[T]here is nothing approaching the symbiotic relationship

between lessor and lessee that was present in Burton, where

the private lessee obtained the benefit of locating in a

building owned by the state-created parking authority, and

the parking authority was enabled to carry out its primary

public purpose of furnishing parking space by advantageously

leasing portions of the building constructed for that purpose

All

to commercial lessees such as the owner of the Eagle

Restaurant.

The symbiotic relationship in Burton v. Wilmington Parking

Authority included an obligation on the part of the Authority

to maintain and repair Eagle’s premises. In addition the

Authority provided the restaurant with heat and electricity. In

contrast, the Orange Memorial Hospital Corporation is ulti-

mately responsible for the daily maintenance, upkeep, and

operation of the facility. The lease requires the lessee to

maintain and operate the hospital at its own expense and to

hold the lessor harmless from any liability incurred in operating

the facility. The lessee is required during the term of the lease

to provide adequate fire, tornado, and explosion insurance and

in the event of any damage to use the proceeds to repair the

hospital.

In addition to the absence of a physical relationship like the

one found between the Authority and the restaurant in Burton

v. Wilmington Parking Authority, there is also no showing of

other “benefits mutually conferred”’ which allows us to charac-

terize the hospital and the county as joint venturers. There are

unquestionably indirect benefits accruing to Orange County by

virtue of the corporation’s operation of the hospital. As the

lease states, the county is relieved of the expense and

responsibility of operating a hospital. There is, however, no

indication, as there was in Burton v. Wilmington Parking

Authority that the benefits accruing to the county were direcily

attributable to the objectionable activities of a joint venturer. In

Burton the financial success of the State’s project depended at

least in part upon the popularity and income of the Eagle

Restaurant. The restaurant owners believed that a policy of

racial discrimination was necessary in order to ensure the

maximum volume of business and the Authority, in its own

interest, acquiesced in this policy. In short, the intimate

physical and financial relationship enjoyed by the Eagle

Restaurant and the Parking Authority in Burton is not present

in this case. The interpendence of the entities, so important to

the decision in Burton, is absent here.

The independence of the Orange Memorial Hospital and

Orange County is also reflected in the absence of a nexus

between the county’s involvement with the Hospital and the

Hospital’s abortion policy presently under scrutiny. As the

court said in Doe v. Bellin Memorial Hospital, 479 F.2d 756,

761 (7th Cir. 1973):

There is no claim that the state has sought to influence

hospital policy respecting abortions, either by direct

regulation or by discriminatory application of its powers or

its benefits. Insofar as action of the State of Wisconsin or its

agents is disclosed by the record, the State has exercised no

influence whatsoever in the decision of the defendants which

plaintiffs challenge in this litigation.

In fact the lease between Orange County and the Hospital

Corporation explicitly provides that the /essee shall prescribe

the terms and regulations of medical care given in the facility.

The record affirmatively shows that the county officials neither

directly nor indirectly participated in the formulation of the

presently disputed hospital policy. See text, infra. See also,

Jackson v. Metropolitan Edison Co.,——U.S.——, 95 S.Ct. 449,

42 L.Ed.2d 477 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S.

163, 92 S.Ct. 1965, 32 L.Ed.2d 627, 639 (1972); Blouin v.

Loyola, 506 F.2d 20 (Sth Cir. 1975); Driscoll v. International

Union of Op. Eng., Local 139, 484 F.2d 682 (7th Cir. 1973);

Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa. 1974).

Finally, we note that in contrast to the situation in Burton v.

Wilmington Parking Authority, the Commissioner’s Court of

Orange County retained no power to amend the hospital

corporation’s decision to prohibit the performance of elective

abortions. The lease explicitly provides that the

Lessee agrees to operate the hospital situated on the above

described property for the duration of this lease as a

non-profit institution, and thereby furnish to the general

public medical and surgical care and treatment, subject to

such terms and regulations as Lessee may prescribe.

(emphasis added)

There is no evidence that in acquiring federal funds or in leasing

the hospital facility the corporation ever accepted a condition

relating to the performance or non-performance of abortions.

Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir.

1973). The Parking Authority in Burton, on the other hand, was

specifically obligated to operate in a non-discriminatory manner.

We would be less than candid not to acknowledge Orange

County’s limited involvement and interest in the hospital

facility. The lease does obligate the hospital corporation to

Al3

serve the general public, to admit indigent patients, to abide by

the provisions of the Hospital Survey and Construction Act, to

provide the county auditor with a yearly financial report (and

any other information requested), and to obtain county

approval before disposing of hospital property. These factors

are not unusual in the lessor—lessee relationship. The Court in

Jackson v. Metropolitan Edison Company, ——U.S.——, 95 S.Ct.

449, 453, 42 L.Ed.2d 477, 484 (1974) fairly summarizes

Orange Memorial Hospital’s status:

It may well be that acts of a heavily regulated utility with at

least something of a governmentally protected monopoly will

more readily be found to be “state” acts than will the acts of

an entity lacking these characteristics. But the inquiry must

be whether there is a sufficiently close nexus between the

State and the challenged action of the regulated entity so

that the action of the latter may be fairly treated as that of

the State itself.

We do not feel that the nature of Orange County’s involvement

with the hospital facility justifies a finding of state action.

Dr. Greco’s assertion that the instant appeal is governed by

Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265

(1946) and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97

L.Ed. 1152 (1953) is also ill-founded. Recent decisions have

more explicitly defined the applicability of Marsh and Terry

stating that a business is not a state actor merely because the

enterprise is affected with a public purpose. See Jackson v.

Metropolitan Edison Co., ——U.S.——, 95 S.Ct. 449, 42 L.Ed.2d

477, 485 (1974); Central Hardware Co. v. NLRB, 407 U.S. 539,

92 S.Ct. 2238, 33 L.Ed.2d 122, 128—29 (1972); Lloyd Corp. v.

Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

In Marsh, Gulf Shipbuilding Corporation held title to all the

land in the ““company town” and assumed the responsibilities of

providing traditional municipal services, including police

protection, to the residents of the town. Terry involved a

duplicitous county primary scheme designed to disenfranchise

black voters. No such peculiarly governmental function has

been assumed by the Orange Memorial Hospital Corporation.

Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33

L.Ed.2d 131, 143 (1972).

In summary, we find that Orange County is not sufficiently

connected with the Orange Memorial Hospital Corporation’s

activities to imbue those actions with the attributes of the state.

The involvement of the County is not sufficiently related to the

Al4

corporation’s decision to prohibit elective abortions to justify

the imposition of Constitutional restrictions upon the daily

business of the hospital.19 Absent a charge of racial dis-

crimination we are disinclined to press the state action doctrine

and all that it entails into the internal affairs of a hospita!.20

Moreover we do not perceive Orange Memorial Hospital as an

entity exercising peculiarly governmental functions which

19. We are not willing to hold that the district court erred in reaching the

following conclusion:

In the present case the Court finds that the Orange Memorial

Hospital is a private hospital operated by the Orange Memorial Hospital

Corporation, which is a non-profit corporation. The evidence supports

the conclusion that Orange County and the State of Texas have never

sought to regulate or influence the medical policy to be followed within

the hospital and in particular with respect to the performance or

non-performance of elective abortions therein. The County and State

have remained completely neutral on the medical policy of the hospital.

Therefore were not acting under color of state law.

374 F Supp. at 233.

20. In an entirely different context this court sitting en banc has recently dealt

with the state action concept in Fitzgerald v. Estelle, SOS F.2d 1334 (Sth

Cir. 1975). In Fitzgerald a state prisoner petitioned for a writ of federal

habeas corpus claiming that his state trial was unfair, that he was denied the

effective assistance of counsel and that state action was involved. He

buttressed his claims with the assertion that the adjudication of state

criminal cases is a vital and structured function of the state. He argued that

State action was involved because he was prosecuted by a state prosecutor,

in a state court, before a state judge in a state courthouse before a jury

selected according to state law and paid by the state. Indeed he asserted that

from arrest to ultimate release he was in the hands of a state operated

system and that even his privately retained counsel was a crucial part of the

state adjudicatory machinery. These facts were undisputed. We succinctly

concluded:

[the] conclusion that the Fourteenth Amendment state action

requirements is satisfied in every ineffectiveness of retained counsel case

“because the state adjudicatory machinery is inextricably intertwined

with the conduct of an accused person’s retained attorney” reaches far

too far.

S05 F.2d at 1337..

The complaint of Dr. Greco is important and we have tried to give his

arguments and allegations careful consideration. However, all of his

assertions relate only to his alleged right to conduct a certain type of

surgical procedure at one specific hospital. On the other hand, Fitzgerald’s

petition for the Great Writ presented an appealing plea for liberty which had

been abridged by a state prison sentence confining him to a state prison for

a substantial number of years. The claims of Dr. Greco are not nearly so

ominous as those of Fitzgerald.

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might, in the absence of constitutional restrictions, be

employed in derogation of a citizen’s fundamental rights.

Fox the reasons stated we affirm the judgment of the district

court.21

Affirmec.

CLARK, Circuit Judge (concurring):

Despite Judge Gewin’s forceful opinion, I remain convinced

that Orange County and this hospital enjoy precisely the sort of

symbiotic relationship defined in Burton. To their mutual

advantage, the county furnished land, buildings and facilities

while operation and supervision by the hospital board and

medical staff provided the general county community with

health services and provided priority medical care for the

county’s indigent citizens.

However, I still come down on the side of affirming the

dismissal because the particular claim asserted is not actionable.

Doe and Roe teach that a state cannot forbid certain types of

abortions, but they do not create any duty on Orange County’s

part to furnish facilities for such operations. Just as the Eagle

Coffee Shop in Wilmington’s parking garage could not have

been forced to furnish kosher food or serve fish on Friday, so

the Orange County Hospital cannot be compelled to allow its

facilities to be used for elective abortions. Contra, Doe v. Hale

Hospital, 500 F.2d 144 (1st Cir. 1974), and Nyburg v. City of

Virginia, supra

&

21. Dr. Greco’s contention that the medical staff was improperly dismissed

from the suit is, therefore, moot.

Al6

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1974

No. 74—2102

D. C. Docket No. 73—159

JOHN C. GRECO,

Plaintiff—Appellant,

versus

ORANGE MEMORIAL HOSPITAL CORPORATION, ET AL..,

Defendants—Appellees.

Appeal from the United States District Court for the

Eastern District of Texas

Before GEWIN, BELL and CLARK, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Eastern

District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, Ii is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby, affirmed;

It is further ordered that plaintiff—appellant pay to

defendants—appellees, the costs on appeal to be taxed by the

Clerk of this Court.

May 29, 1975

CLARK, Circuit Judge, concurring.

Issued as Mandate: JUL 7, 1975