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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 423 U.S. 1000

## Text

| 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
Ds 8, oe kn Sk be me eeeeoneeeds 5

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.).

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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.

Al5

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1066%3A1. Public record. Not legal advice.