Petition — Fitzgerald v. Porter Memorial Hospital

Buy sve Court, U. &

FIiLesE D

1976

IN THE

Supreme Court of the Unit

October Term, 1975

“No. 75-3203

EVELYN FITZGERALD, BRUCE FITZGERALD, DEBRA GREEN-

ER, MICHAEL GREENER, GAIL ATHA, BARBARA STAFFELD,

CHARLES STAFFELD, DIANA ARNETT, CHARLES ARNETT,

PAULETTE THOMAS, THOMAS THOMAS, HENRY FARAG, DON-

NA FARAG, SUSAN CHUBBS, BRUCE CHUBBS; and on behalf of all

other persons similarly situated,

AK, JR., CLERK

Petitioners,

VS.

PORTER MEMORIAL HOSPITAL; ARTHUR S. MALASTO, in his

capacity as Administrator of Porter Memorial Hospital; and

MAURICE MASON, JAMES W. CHESTER, WARREN H. CANRIGHT,

and JAMES J. CRANDALL, individually and in their capacities as

members of the Board of Trustees of Porter Memorial Hospital.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

IVAN E. BODENSTEINER

Indiana Civil Liberties Union

606 Indiana

Valparaiso. Indiana

46383

Atterney fer Petitioners

”

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

OPINIONS BELOW .

JURISDICTION . , :

QUESTION PRESENTED FOR REVIEW

CONSTITUTIONAL PROVISIONS INVOLVED .

STATEMENT OF THE CASE :

REASONS FOR ALLOWANCE OF THE WRIT.

CONCLUSION .

APPENDIX:

Fitzgerald v. Porter Memorial

Hospital, 523 F.2d 716 (7th Cir.

1975). :

Seventh Circuit Order of

November 21, 1975, concerning

plaintiffs' Petition for Re-

hearing. <r. ee es

Judgment and Memorandum

Opinion of District Court.

.: 2S

DA WwW WwW WW bd

. 18

ii

TABLE OF AUTHORITIES

Association of Data Processin

Service Organisation v. Camp,

Board of Managers of Arkansas

Training School for Boys v.

George, ; G t ‘

ToCTS re

Borden's Farm Products C any v.

Baldwin, 293 U.S. 104 pany oe 9

Coalition for the Environment v.

Volpe, 504 F.2d 156 (Sth cir.

LOTS Pe thay ae ee rr -

Equal Employment Opportunity Com-

mission v. Standar orge and

Axle Company, inc., 456 F.2d

1392 (sch ae err a 8

Eureka-Carlisle Company v. Rottman,

398 F.2d I015 7Lbth Cir. 1968) . 8

Ex Parte National Enameling and

pemepsng CO. 201 U.S. 5%

Fitzgerald v. Porter Memorial

Hospital, 523 F.2d 716 (7th

a SE Se a a ea 2

Hammond v. Schappi Bus Line, 275 U.S. .

ae ae cs as a es es we ee ae ee

Hormel v. Helvering., 312 U.S. 552

¢)) > ee P os 6

13

14

an ee eng een we guerre

1 eee QE re nee — eee — -

iii

Hurwitz v. Directors Guild of

Pmer ice, Fae, , 304 F.2d 67

, cert. dented,

385 U. s. 971 (1966) . .

K-2 Ski C any v. Head Skit Gom-

pany; > “306 ms ” fees =

Levin v. Mississippi River Fuel

~ Corporation, ae U.S. 162 (1966).

Mercury Motor Express, Inc. v.

Srivke. G75 F.2d 1086 (th

i ee ge eee en ee

Roe v. Ferguson, 515 F.2d 279

.. 8 Sap) 2p)

Swann v. Charlotte Mecklenbur

Board of Education, 489 Fa

966 (4th cir. 1974) .....

t r.

Thomas v. Shaw, _ F.2d aa aad

= |

Turner v. “ae of Memphis, 369

; (L961) ;

Wulff v. St leton, 508 F.2d 1211

t cert. granted,

95 S. Ct. "2655 (1975)

STATUTES

28 U.S.C. §1254(1)

28 U.S.C. §1343(3) and (4)

42 U.S.C. §1983

15

15

16

17

15

16

iv

OTHER AUTHORITIES

Rule 19(1)(b) of Rules of the Supreme

Court of the United States ... 3

9 Moore's Federal Procedure, §110.25

5 (oe Oh. See cs ke ee at eee

ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

EVELYN FITZGERALD, BRUCE FITZGERALD,

DEBRA GREENER, MICHAEL GREENER, GAIL

ATHA, BARBARA STAFFELD, CHARLES STAF-

FELD, DIANA ARNETT, CHARLES ARNETT,

PAULETTE THOMAS, THOMAS THOMAS, HENRY

FARAG, DONNA FARAG, SUSAN CHUBBS, BRUCE

CHUBBS; and on behalf of all other per-

sons similarly situated,

Petitioners,

vs.

PORTER MEMORIAL HOSPITAL; ARTHUR S.

MALASTO, in his capacity as Administra-

tor of Porter Memorial Hospital; and

MAURICE MASON, JAMES W. CHESTER, WARREN

H. CANRIGHT, and JAMES J. CRANDALL,

individually and in their capacities as

members of the Board of Trustees of

Porter Memorial Hospital,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

2

Petitioners, Evelyn Fitzgerald,

Bruce Fitzgerald, Debra Greener, Mich-

ael Greener, Gail Atha, Barbara Staf-

feld, Charles Staffeld, Diana Arnett,

Charles Arnett, Paulette Thomas, Thomas

Thomas, Donna ees ¢ Henry Farag, Susan

Chubbs, Bruce Chubbs, individual iy and

on behalf of all other persons similarly

situated, respectfully pray that this

Court issue a Writ of Certiorari to

review and reverse the judgment of the

United States Court of Appeals for the

Seventh Circuit in Fitzgerald v. Porter

Memorial Hospital, . t r.

, entered on September 26, 1975,

affirming the decision of the United

States District Court for the Northern

District of Indiana (Hammond Division)

in Fitzgerald v. Porter Memorial Hos-

pital, No. 74- (September I0,

1974).

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Seventh Cir-

cuit (hereinafter Seventh Circuit) was

reported at 523 F.2d 716 (7th Cir. 1975)

and may be found at pages A-l through

A-13 of the Appendix. An order denying

petitioners’ petition for rehearing and

suggestion for en banc determination was

entered on November 21, 1975. This

order may be found at page A-14 of the

Appendix. The opinion of the District

Court may be found at pages A-15 through

A-17 of the Appendix.

ee ere ey, Se

3

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1)

and Rule 19(1)(b) to review a decision

of the Seventh Circuit which decided an

important question of federal law which

has not been, but should be, settled by

this Court and to exercise its supervi-

sory powers over lower federal courts.

QUESTION PRESENTED FOR REVIEW

The petitioners present the fol-

lowing question for review by this Court:

Whether the Seventh Circuit erred in de-

ciding a constitutional issue of first

impression and of grave importance with-

out the benefit of an evidentiary hear-

ing.

CONSTITUTIONAL PROVISIONS INVOLVED

On the merits, this action touches

on questions involving the First, Fourth,

Fifth, Ninth and Fourteenth Amendments

to the United States Constitution. How-

ever, the limited question presented for

review is essentially one of procedure

rather than substance.

STATEMENT OF THE CASE

A. Nature of the Case

This is an action brought pursuant

to 42 U.S.C. §1983 by pregnant women and

4

their husbands seeking injunctive relief

and damages for violation of rights se-

cured to them by the First, Fourth, Fifth,

Ninth, and Fourteenth Amendments to the

United States Constitution. Jurisdiction

is based on 28 U.S.C. §1343(3) and (4).

Petitioners challenge the policy of de-

fendant Porter Memorial Hospital that

prohibits the presence of any non-medi-

cal person in the delivery room during

the birth of a child. Other defendants

are the administrator of the hospital

and the members of the hospital board of

trustees.

B. Statement of the Facts

Petitioners are pregnant women and

their husbands who have taken a compre-

hensive course of study in and have prac-

ticed various techniques and exercises

which are a requisite part of the LaMaze

Psycho-prophylactic Method of childbirth.

This method requires a serious com-

mitment on the part of those participat-

ing. Both husbands and wives must at-

tend a series of classes that include

lectures, films, question and answer per-

iods, instruction in controlled breathing

and rekaxation techniques, and discus-

sions on pregnancy and childbirth re-

lated topics. This advanced instruction

and training serve to prepare the couples

for the events that occur during preg-

nancy, labor, and delivery and enable

them to function as a team during labor

and delivery, with the husband supplying

>, and emotional support to his

wife.

5

Petitioners are prepared to offer

evidence to prove their contentions,

1) that the presence of the husbands in

the hospital delivery room is a well-

accepted medical practice; 2) that the

a -prophylactic (or prepared) child-

irth methods with the lack of or lesser

amounts of anaesthesia are safe and de-

sirable for both mother and baby.

Accordingly, petitioners attempted

to have the husbands present for the de-

liveries of their children but were de-

nied this opportunity by defendant hos-

pital's policy prohibiting the presence

in the delivery room of any non-medical

personnel.

C. Proceedings Below

On August 9, 1974, petitioners

filed their complaint and motion for a

temporary restraining order in the Uni-

ted States District Court for the Nor-

thern District of Indiana, Hammond Di-

vision. A hearing on the motion for a

temporary restraining order was held on

August 20, 1974.

At this hearing defendants filed a

motion to dismiss the complaint and to

dismiss the petition for a temporary

restraining order.

On September 10, 1974, District

Court Judge Allen Sharp entered an order

dismiss the complaint accompanied by

a memoran opinion in which con-

cluded that the petitioners lacked

stancing to sue.

6

Petitioners filed a notice of ap-

peal to the Seventh Circuit Court of

Appeals on October 9, 1974. Oral argu-

ment was heard on April 14, 1975. On

September 26, 1975, the Seventh Circuit

affirmed the lower court's dismissal of

the action in an opinion by Judge (now

Justice) Stevens which dealt with the

merits of the case.

[ October 10, 1975, petitioners

filed a petition for rehearing and —

gestion for en banc determination. s

petition was denied by the Seventh Cir-

ot in an order entered on November 21,

75.

REASONS FOR ALLOWANCE OF THE WRIT

The Seventh Circuit has decided a

constitutional issue of first impres-

sion and grave importance without the

benefit of either an evidentiary hearing

or a full record. The constitutional

issues invoived in this case had not

been considered by the lower court which

dismissed the case for lack of standing.

The dismissal, just two weeks after the

action was filed, has deprived the pe-

titioners of the opportunity to present

relevant and necessary evidence for a

proper determination of the merits.

It is a well-settled principle that

a court of appeals will not consider on

appeal the merits of an issue on which

the district court has not ruled. Hor-

mel v. Helvering, 312 U.S. 552 (194T).

Reviewing a decision of the Board of

—

7

Tax Appeals, this Court discussed the

correctness of an appellant court's de-

ciding issues not raised in the lower

court stating:

Ordinarily an appellate

court does not give con-

sideration to issues not

raised below. For our procedural

scheme contemplates that

parties shall come to issue

in the trial forum vested

with authority to determine

questions of fact. This is

essential in order that par-

ties may have the opportun-

ity to otter all a evidence

they believe relevant to the

issues which the trial tri-

bunal Is alone competent to

decide; it is Sauatis essen-

n order that litigants

may not be surprised on ap-

eal by final decision there

of issues upon which the

have had no opportunity to

introduce evidence.

Id. at 556 (emphasis added). The Court

went on to state that the rules of prac-

tice and procedure are devised to pro-

mote the ends of justice, not to defeat

them. Id. at 557. In essence, this

age rule has been esteblished to al-

ow the litigants an opportunity to pre-

sent the issues at the trial level ac-

companied by appropriate evidence.

The scope of review problem gener-

ally arises in cases where an issue is

8

presented for the first time on appeal,

even though there has been a trial in

the lower court on other issues. Such

was the situation in Hormel and the

principle set forth has been subsequent-

ly followed in several circuits. Equal

Employment Opportunity Commission v.

Stonderd rarRe and Axle Company, Inc.,

. (5th Cir. LSE K-2 Ski

Company v. Head Ski Company, 506 F.2d

G71 (th Cir. 1974) Eureka-Carlisle Com-

any v. Rottman, 398 F.2d I015 (Sth Cir.

Foes) In Eureka, the court stated,

ordinarily an appellate

court will not consider a

question of law or fact

which was not presented to,

considered, or decided by

the trial court.

Id. at 1610. In addition, courts have

held that a court of appeals does not

sit as a fact finder, Thomas v. Shaw,

497 F.2d 123 (5th Cir. 19/74); and that

a court of appeals does not sit to ren-

der advisory opinions or decisions on

abstract legal propositions, Swann v.

Charlotte-Mecklenburg Board of Educa-

tion, 489 F.2d 966 Crh Cir. 1974).

Despite the fact that these cases

represent situations in which a trial

was held, the rationale for not con-

sidering a new issue on appeal is equ-

ally applicable to situations where a

trial has not yet been held, as in the

present case. A court of appeals should

not consider an issue that has not been

presented to a trial court, for whatever

9

reason, because it deprives the parties

of the opportunity to present relevant

evidence that could have a profound im-

pact on the outcome.

In Borden's Farm Products Company

v. Baldwin, 293 U.S. 194 (1934), on an

appeal from a three-judge district court

which dismissed, on a motion equivalent

to a demurrer, a bill brought to enjoin

enforcement of a provision of the New

York Agriculture and Markets Law, this

Court remanded the case for a trial on

the merits. In declining to decide the

underlying substantive issues, this

court stated:

~ The factual basis of this

contention is disputed and

there are no findings dis-

closing it. ... For the

present purpose, it is suf-

ficient to say that these

arguments . .. lie outside

the range of judicial notice

. . But the case is not

before us upon evidence, or

upon determination of fact

based on evidence, as the

complaint was dismissed

solely in the view that it

failed to state a cause of

action and the motion for

injunction accordingly fell

without findings being made

. . . . the decision of this

appeal should not turn on

other facts which are the

proper subjects of evidence

10

and of determinations of

fact by the trial court.

Id. at 208 (emphasis added). Consider- |

ing the circumstances of the Borden case

in light of the then recent expansion of

governmental regulation and the conse-

quent increase in allegations of consti-

tutional violations, this Court referred

to a prior decision, Hammond v. Schappi

Bus Line, 275 U.S. 164, 170-72 (15275

and stated:

ll

The principles set forth in Borden

are directly applicable to the case at

bar. A dismissal before a trial on the

merits in this instance prevents the

introduction of evidence on novel and

important constitutional questions. The

decision by the court of appeals on the

constitutional merits was made without

the benefit of the identification and

clarification of the issues by the trial

court. Petitioners in this case have

been denied the opportunity to present

important evidence that is essential to

We held that before the ques- support the allegations of constitutional

tions of constitutional law, violations set forth in the complaint.

both novel and far-reaching These plaintiffs are pe got to offer

importance, were passed upon and indeed, are entitled to present such

by this court, "the facts evidence-1 Judge Sprecher referred to

essential to their decision

should be definitely found

by the lower courts upon

adequate evidence."

lplaintiffs are prepared to

offer evidence concerning: (1) the ex-

tent to which the psychoprophylactic

method of childbirth is an accepted and

commonly practiced medical procedure;

(2) the alternative precautions against

infection or invasion of privacy that

might easily be employed by the Hospital

short of a comple’~e ban on fathers in the

delivery room; (3) the uniqueness of psy-

choprophylactic childbirth techniques

when compared with other more traditional

medical procedures; (4) the efficacy of

the hospital's claims of lack of changing

facilities and unavoidable privacy inva-

sions in a hospital — ‘s) —

in light of the physical plant; (5) the

nla a acceptance of the LaMaze technique by

physicians practicing at Porter Memorial

293 U.S. at 123. Hospital itself; (6) in Judge Sprecher's

293 U.S. at 210. The ‘concurring opinion

of Justices Stone and Cardozo stated the

same principle in a similar manner:

We are in accord with the

view that it is inexpedient

to determine grave consti-

tutional questions upon a ;

demurrer to a complaint, or

upon equivalent motion, if

there is a reasonable like-

lihood that the production

of evidence will make the

12

the impropriety of the Seventh Circuit's

decision on the merits when he stated

that the majority “has bowed to the ex-

pertise of the medical profession without

the benefit of an evidentiary hearing"

on the basis of a state interest that "is

so noncompelling as to be virtually non-

existent." Fitzgerald v. Porter Memorial

Hospital, 523 Fog 716, 722, 724 (7th

Cir. 197

" 5) (Sprecher, dissenting). In

the case at bar, there exists a genuine

dispute as to the underlying facts which

must first be settled by the trial court

before a proper determination of the con-

stitutional issues can be made. The

Eighth Circui. Court of Appeals, in a

suit by an environmental organization and

individuals to enjoin a development pro-

ject until an impact statement had been

filed, refused to consider the merits

when the appeal was from a motion to dis-

miss for lack of standing. Coalition for

the Environment v. Volpe, 504 F.2d 156

(8th Cir. 1974). The Yoipe court held

that the only issue presented to the re-

viewing court for determination was that

of standing. Because of the trial

court's decision on the standing issue,

it simply did not reach any of the other

issues and therefore, it is not proper

for the reviewing court to decide issues

not treated by the trial court. Id.

words, "the magnitude of the importance

of the presence of the expectant father."

Fitzgerald v. Porter Memorial Hospital,

; ; t r.

(Sprecher, J., dissenting).

13

We treat arguments con-

cerning the substantive al-

legations only as they re-

late to the question of

standing and do not reach

the issues: .. . These

questions are best dealt

with in the first instance

by the trial court.

Id. at 162. The situation in Volpe is

identical to the present case. Because

of the adverse ruling on the standing

issue, petitioners were not allowed to

present their case. Upon review, the

only question that should have been

considered by the,Seventh Circuit was

that of standing. Once the court had

determined that standing did exist, the

case should have been remanded, as in

Volpe, to the district court for a trial

on the merits.

2The only issue plaintiffs

raised on the appeal to the Seventh Cir-

cuit was that of standing. (See p. l

of Brief of Appellants filed In the

Seventh Circuit.) Plaintiffs' brief

dealt with the merits of the constitu-

tional question only to the extent that

it was necessary to establish that the

rights asserted were arguably within

the zone of interests protected to

satisfy the standing requirements as

set forth in Association of Data Pro-

ceasing Service organization v. Camp,

14

Cases dealing with interlocutory

appeals present the same basic issue.

The general rule is that where an inter-

locutory appeal is taken, the appellate

court will not go any further into the

merits of the case than is necessary to

decide the matter upon appeal. 9 Moore's

Federal Procedure, §110.25 1 (2d e

s Court has held that upon an

interlocutory order, "[i]t was not in-

tended that the cause as a whole should

be transferred to the appellant court."

Ex Parte National Enameling and St in

ompany, 301 U.S. 156 71508) The Fichth

Circuli

cuit has held that upon an interlocu-

tory appeal it is improper to consider

grave constitutional questions where

there exists reasonable likelihood that

further eee oo “ee help ro wie

the issues. Board of Managers of Ar-

kansas Training School for Boys v. Geor

policy arguments that an appellant court

should not decide issues that have not

been presented to a trial court are equ-

ally applicable whether there has been

a trial on other issues or whether there

has been no trial at all. Where the in-

troduction of evidence would be helpful

to clarify the issues, the appellate

court should not decide the merits with-

out the benefit of a record below.

The general rule in both instances

is not without exception. This Court

has held that where the point is so

clear that nothing would be gained by

remanding the issue even rn the

opinion does not decide it, effective

15

judicial administration requires that

the matter be disposed of on appeal.

Levin v. Mississippi River Fuel Corpor-

ation, ere no

Issue remains to be solved, and it is

clear under prior decisions and the un-

disputed facts of the case what the out-

come will be, there is no reason not to

dispose of the case. Turner v. City of

Memphis, 369 U.S. 350, 353 (1961). Pe-

titioners do not — against expedi-

tious disposition of cases when it is

consistent with proper judicial admin-

istration. Petitioners do contend, how-

ever, that the current case simply does

not fit this exception. This is a case

of first impression and grave constitu-

tional ortance. It would be a seri-

ous mistake for the appellate court to

decide the merits of the constitutional

questions without the benefit of a hear-

ing -- especially when a balancing of

competing interests is necessary. The

constitutional issue in the case at bar

is not clear; it has not been resolved

by prior decisions; and essential to its

proper determination is a resolution of

the dispute as to the underlying facts

by a trial court. For these reasons,

e Levin - Turner exception does i.ot

apply to the present case. Referring

to the exception, the Second Circuit

stated, "[s]Juch an exception serves the

obvious interest of economy of litiga-

tion, . .. [but] it is the rare case

that contains no triable issue of fact."

Hurwitz v. Directors Guild of American

Tneerporate. 364 F.2d 67, 70 (2d Cir.

) cert. denied, 385 U.S. 971 (1966).

The present Case is not such a rare

16

situation.

Finally, this Court has before it

now a case, Wulff v. Singleton, 508 F.2d

1211 (8th Cir. 1975) cert. granted, 95

S.Ct. 2655 (1975), which, a¥thoush it

includes a ee a a court question,

expressly presents the question, "Whether

the Court of Appeals acted in excess of

its jurisdiction when it proceeded to

determine on the merits the constitution-

ality of [a Missouri statute]." 95 S.Ct.

at 2655. Im Wulff, the Eighth Circuit

Court of Appeals overruled the three-

judge district court's dismissal for lack

of standing, and then proceeded to decide

the constitutional issues. Referring to

the appropriateness of deciding the sub-

stantive questions, the court stated that,

"(this question is not without its diffi-

culty. There is little direct authority

for the propriety of our reaching the

merits." 508 F.2d at 1214. Proceeding

to the merits, the court relied primarily

on the policy arguments of judicial econ-

omy and the proposition that a court of

appeals has the power "to do what plainly

ought to be done."" Mercury Motor Express,

Inc. v. Brinke, 475 F.2d TOBe- LOSI CoEh

Cir. 1973). The Wulff court held that

the statute in question was obviously

unconstitutional, therefore not requiring

a determination by a three-judge court.3.

3What was so obvious to the

Eighth Circuit Court of Appeals, raised

considerable doubt in the Sixth Circuit

when the identical issue was presented.

Roe v. Ferguson, 515 F.?d 279 (6th Cir.

17

By granting certiorari, this Court now

has the opportunity to decide whether

or not the Court of Appeals exceeded its

jurisdiction by ruling on the merits.

1975). Im Roe v. Ferguson, a statute

wo ok to the one hetd invalid in Wulff

was challenged. The district court

found that the Ohio statute was in con-

flict with the Social Security Act and,

therefore, invalid. Reversing the lower

court's holding, the Sixth Circuit Court

of appeals remanded the case for a con-

vening of a three-judge court to deter-

mine the constitutional issues. The

court stated,

[W]e find ourselves,

therefore, in disagreement

with the Eighth Circuit's

ruling in Wulff v. Single-

ton [citation suittedy" that

the unconstitutionality of

this type of statute is so

“obvious and patent" as to

obviate the need for a three-

judge court.

Id. at 284. The fact that these two cir-

cuits disagree on the clearness of the

constitutional issue suggests the in-

herent danger of expanding the circuit

courts' jurisdiction over issues that

have not yet been presented at the trial

level where classification of the ques-

tion within the particular context would

assist their proper determination. This

disagreement points out the need for an

evidentiary hearing.

18

Essentially the same issue is an .

sented in the case at bar, with the

exception that the three-judge court

provision is not involved. The general

rule that appellate courts will not

consider issues not presented to the

lower courts is applicable because:

1) the case presents a grave constitu-

tional question of first impression;

and 2) there exists a genuine dispute

as to the material facts. It would be

unfair to the parties involved to de-

prive them of an opportunity to present

evidence in support of their claims.

Petitioners seek to have the Seventh

Circuit Court of Appeals decision on the

merits of the constitutional claims

reversed and remanded to the district

court for an evidentiary hearing.

—

APPENDIX

CONCLUSION

For the foregoing reasons, a Writ

of Certiorari should be issued to review

the judgment and order of the Seventh

Circuit.

uaa?

Respectfully submitted,

IVAN E. BODENSTEINER

Attorney for Plaintiffs

Indiana Civil Liberties

Union

606 Indiana Avenue

Valparaiso, Indiana 46383

SS,

A-1

3n the

Gnited States Court of Appeals

For the Seventh Circuit

No. 74-1949

Evetyn Frrzceratp, Bruce FirzceraLp, DesraA GREENER,

MicuageL Greenrr, Gaw AtHaA, Karen Scott, Grorrrey

Scott, Barsara Srarrerp, CHARLES STAFFELD, DANA

Arnett, CHARLES ARNETT, PAULETTE THOMAS, THOMAS

THomas, Henry Farac, Donna Farac, ELEANoR KrrKLaNp,

Atrrep KirKLAND, Susan Cuusss, Bruce Cuvusss; and on

behalf of all other persons similarly situated,

Plaintiff s-Appellants

vs.

Porter Memoria HospitaL; ArtHur S. Matasto, Admin-

istrator of Porter Memorial Hospital; Boarp or TrusTEEs

oF Porter Memoria HosprraL; Maurice Mason; James W.

Cuester; Warren H. Canricut; James J. Cranpat, indi-

vidually and in their capacities as members of the Board.

Defendants-Appellees

On Appeal from the United States District Court for the

Northern District of Indiana (Hammond Division)

No. 74-204 H

ALLEN SHarp, Judge.

LRoJeD Aprit 14, 1975 — Decipep SerremsBer 26, 1975

Before Castie, Senior Circuit Judge, Stevens and

SprecHer, Circuit Judges.

Stevens, Circuit Judge. This appeal presents the ques-

tion whether a mother, her husband, or their doctor has a

74-1949 A-2

constitutional right to have the father present during the

birth of a child.

Porter Memorial Hospital, a public hospital, maintains

and enforces a policy “prohibiting the presence of any

person or persons in the Delivery Rooms located in the

Obstetrics Ward other than members of the Medical Staff

and Nursing Staff.” Plaintiffs are married couples who

have completed training courses in the psychoprophylactic

or LaMaze method of childbirth.? At the time of the filing

of the complaint herein, each couple but one was either

expecting the birth of a child or had recently given birth

at Porter Memorial Hospital.* In each case, the Hospital

had either indicated that, pursuant to the above-quoted

policy, it would not permit the husband to be present in

the delivery room or actually prevented the husband from

participating in the delivery. Plaintiffs brought suit

against the Hospital, the members of the board of direc-

tors and the Hospital administrator under 42 U.S.C.

§ 1983* and the First, Fourth, Ninth, and Fourteenth

Amendments to the Constitution,’ on behalf of themselves

and other similarly-situated persons, challenging the con-

1 Affidavit of Administrator Arthur S. Malasto, see n. 6, infra.

? As plaintiffs lained in their brief to this court,

method requires a serious commitment on the part of those

participati Husbands and wives must attend a series of classes

tion and training serve to the

take place during pregnancy, and delivery, and enable them

to function as a team during labor and delivery, with the husband

supplying physical and emotional support to his wife.”

3 Al all of the plaintiffs have had their children, the case is not

moot. In , iy ~ FA US. 113, 125, the Supreme oat See

its 7 ides ac c justi-

yw ag oy of rte mar . It y could be ‘capable of

‘ under color of any statute, ordinance, regula-

oe of any State or Territory, subjects, or

—~_ay-y - 7-8 Pe A tates or other

fos - - of =

immunities secured e Constitution

eee PTT bet linble in an action at law, suit

pag gr Se

Juriediction wes claimed under 38 USC. § 1965(3). There is no dis-

:

|

4

ee een Dente

A-3 74-1949

stitutionality of the Hospital’s policy and seeking in-

junctive and declaratory relief and damages.

The district court held a hearing on plaintiffs’ applica-

tion for a temporary restraining order at which the plain-

tiffs introduced the testimony of one physician and the

affidavits and letters of others explaining the LaMaze birth

method and its benefits for both mother and child. Defen-

dants countered with the affidavit of defendant Malasto,

Hospital Administrator, wherein he explained that the

Hospital had recently considered, but rejected, a change

in the exclusionary policy and set forth reasons for con-

tinuing the rule.’ Motions to dismiss both the complaint

for failure to state a claim and the petition for a tempora-

ry restraining order were filed.

On September 10, 1974, the district court, in an un-

reported memorandum opinion and order granted the mo-

tion to dismiss.’ No ruling was rendered on the request

* Malasto stated:~

aed ee nS Ge male end masiationn of Fuster Mamestel Hee-

one p presence any person or persons

the Deli Rooms ted in the Obstetrics Ward other than

members the Medical Staff and N Staff. That on June

y Kang My By ef , CO < .

e Board Trustees to change the foregoing prohibi-

tion by allowing the attendance of the spouses in the rooms where

their wives were giving birth. This recommendation was rejected

by the Medical Staff in its meeting on said date.

“The Board of Trustees, in its meeting held on July 9, 1974,

resolved to continue the policy of not permitting fathers in the de-

li room at any time.

t the Obstetrics Ward in Porter Memorial Hospital contains

in addition to the deli That ingress and to

very rooms. egress

wee aoe 2 ee Se ee ee Cee © 6 one

is imminent. SSak Cage bate eae case > eow te pelle eine

the corridor the said three (3) delivery rooms. That the

said corridor is off-limits to all persons other than attending physi-

cians and members of the Nursing Staff and obstetrics patients.

“A diagram showing the corridor and its rooms is at-

tached hereto and made a part hereof and labeled bit 1.

are facili

it had jurisdiction under 28 U.S.C. § 1343(3).

Fe is a “m cor-

poration” within the meaning of Monroe v. Pape, US. 167, and

74-1949 A-4

for certification of the suit as a class action. The court

found that the Hospital was not denying the plaintiffs

access to its facilities or totally prohibiting a medically

approved operation and that plaintiffs did not have stand-

ing to assert the rights of their physicians. From this

order plaintiffs appeal.’

I.

Plaintiffs characterize the right they assert as an aspect

of the “right of marital privacy.” The source of its con-

stitutional protection is either the so-called penumbra of

various provisions of the Bill of Rights’ or the word

“liberty” in the Due Process Clause of the Fourteenth

Amendment.’®

It is somewhat unfortunate that claims of this kind tend

to be classified as assertions of a right to privacy. For

t (Continued)

= of Kenosha v. Bruno, 412 US. 507, and, thus, immune to suit

er § 1983. Clearly the individual defendants could be sued under

that provision, however, and it Ly the action could be maintained

against the Hospital directly er the Fourteenth Amendment, via

28 USC. 1331. See Calvin v. Conlisk, No. 74-1289, at 11 (7th Cir.,

June 30, 1975); H v. Bd. of Junior College District No. 515, No.

74-1915, at .... (7th Cir., Sept. ...., 1975).

® Defendants argue initially that the district court order must be

affirmed because plaintiffs have failed to allege an essential precondition

to the right they seek to assert, “the right to have fathers present at

attending physician.” (Complaint, para. X.5). As defendants point out,

nowhere in the complaint do plaintiffs specifically allege that their

ror ag had, or would have, consented but for the policy of the

tal, to the presence of the fathers in the delivery room. Thus,

they argue that it would be inappropriate for us to reach the consti-

tutional question presented

We think a fair of the complaint indicates, however, that it

is the policy of Porter Memorial and not any hesitancy on

Hospital

the part of plaintiffs’ doctors which has prevented the husbands from

being t in the delivery room. In su phs 18(c) and (d)

i is alleged that plaintiffs Bruce Fitzgerald and chael Greener were

sO ex

* children. Moreover, in su ph 18(e), plaintiffs allege that the

Obstetrical Committee of tal voted

t in birth

of his child. Wille Gis sesemmeniation wes teter selected ty the

staff and Board of Trustees, it is clear that there were i-

who would have delivered the Scott baby at Porter

the father’s . Thus, we conclude that the con-

squarely presented by this

A-5 74-1949

the group of cases that lend support to plaintiffs’ position

do not rest on the same privacy concept that Brandeis

and Warren identified in their article in the 1890 Edition

of the Harvard Law Review." These cases do not deal

with the individual’s interest in protection from unwar-

ranted public attention, comment, or exploitation. They

deal, rather, with the individual’s right to make certain

unusually important decisions that will affect his own,

or his family’s, destiny. The Court has referred to such

decisions as implicating “basic values,”"* as being “funda-

mental,”"* and as being dignified by history and tradi-

tion."* The character of the Court’s language in these

cases brings to mind the origins of the American heritage

of freedom — the abiding interest in individual liberty

that makes certain state intrusions on the citizen’s right

to decide how he will live his own life intolerable. Guided

on & Brandeis, “The Right to Privacy”, 4 Harv. L. Rev. 193

12 “In my view, the proper constitutional in this

whether this Connecticut statute infringes a.’ De Process Clause

of the Fourteenth Amendment because the enactment violates basic

values ‘implicit in the concept of ordered liberty,’ Palko v. Con-

necticut, 302 U.S. 319, 325.” Griswold v. Connecticut, 381 US. 479,

500 (Harlan, J., concurring).

18“These decisions make it clear that only personal ts that

be deemed ‘fundamental’ or ‘implicit > the ~t, of cutuet

liberty’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included

= this guarantee of personal privacy.” Roe v. Wade, 410 U.S. 113,

“The language and history of the Ninth Amendment reveal that the

Framers of the Constitution believed that there are additional

14 “We deal with a right of oy ae than the Bill of Rights—

Griswold v. Connecticut, 381 US. 479, 486.

“Judici -restraint will not, I be bro bout

the ‘due Ea .' area i 4 Fe a 2 ton

formula advanced my BLACK, and now in part espoused

ART. eee ne sahteved i Gils aves, os in

played in establishing

479, 501 (Harlan, J., concurring).

18 “Tf the right of pri means it is the t

chbush uupend & chaie, ts ts Ole tab eco eon ue

intrusion into matters so fundamentally a person as the

74-1949 A-6

by history, our tradition of respect for the dignity of

individual choice in matters of conscience and the re-

straints implicit in the federal system, federal judges

have accepted the responsibility for recognition and pro-

tection of these rights in appropriate cases. But can it

fairly be said that this is such a case?

As we understand plaintiffs’ argument, there are three

aspects of their asserted right that make it worthy of

constitutional protection. It arises out of the marital rela-

tionship; the birth of a child is an extremely lnportant

event; in their judgment, and in the judgment of a

respectable segment of the medical profession, the LaMaze

procedure is safe and, indeed, a more beneficial obstetrical

procedure than traditional practices which deny the father

the right to be present when the delivery takes place in

a hospital. Neither individually nor collectively do these

facts justify judicial review of the rule which has been

adopted by the professional staff of the defendant hos-

pital.

Although plaintiffs’ claim is advanced only in the name

of “marital privacy,” we are persuaded that, if valid, it

could be asserted with equal force by unwed parents and

perhaps also by other persons about to undergo serious

medical procedures.” Respect for the private aspects of

the institution of marriage were heavily emphasized in

Justice Douglas’ opinion for the Court in Griswold v. Cou-

necticut, 381 U.S. 479. But neither the conception that

produced Griswold, nor its progeny, is narrowly limited

to marital rights. For Justice Douglas drew support for

the Court’s holdings from its earlier recognition of the

parents’ right to educate their children in schools of their

choice,’ the right to study the German language,** and the

right to select one’s associates.'’ And the Griswold holding

16If the right plaintiffs assert does exist, surely it is not confined

to the husband and wife. An unwed mother may have the same need

for emotional support, and the same interest in a superior medical pro-

cedure, as a wife. Indeed, any patient about to undergo serious surgery

might also assert a constitutionally interest in the companion-

ship of his choice during the time of stress, or, indeed, in the surgical

procedure of his choice. Plaintiffs make no such expansive claim, but

a fair analysis of their position requires concern about the consequences

of adopting the rule they espouse.

17 Pierce v. Society of Sisters, 268 US. 510.

18 Meyer v. Nebraska, 262 US. 390.

WNA-ACP. v. Alabama, 357 US. 449, 462.

A-7 74-1949

that husband and wife may decide whether or not to use

contraceptives has subsequently been extended to accord

a comparable right to unmarried individuals.” Finally,

the constitutio rotection given to the pregnant wom-

an’s right to decide whether or not to bear her child is

clearly not dependent on respect for the institution of

marriage; it respects the individual’s interest in a decision

which, by any standard, is certainly of fundamental im-

portance and implicates basic values.

Plaintiffs ask us to hold that their decision to use the

LaMaze method of child birth is entitled to he respect

and may not be frustrated by a public hospital’s rule.

The birth of a child is an event of unequalled importance

in the lives of most married couples. But deciding the

question whether the child shall be born is of a different

magnitude from deciding where, by whom, and by what

method he or she shall be delivered. In its medical aspects,

the obstetrical procedure is comparable to other serious

hospital procedures. We are not persuaded that the mar-

ried partners’ special interest in their child gives them

any greater right to determine the procedure to be fol-

lowed at birth tha: that possessed by other individuals

in need of extraordinary medical assistance.

Plaintiffs do not contend that they have a right to have

the husband present without the consent of the attending

physician. Implicitly, therefore, they acknowledge that

their asserted right is subordinate to the dictates of sound

medical practice. Having implicitly admitted that individ-

ual doctors may find valid medical reasons for excluding

the father in individual cases, they must equally recognize

that hospitals may also assume that the number of cases

in which exclusion is appropriate is sufficiently large to

justify the development of facilities and procedures in

which the presente of the husband would be objection-

able.** More importantly, the valid medical reasons for

exclusion in individual cases requires us equally to recog-

nize that the dispute within the medical profession as to

20 Eisenstadt v. Baird, 405 US. 438.

21 Administrator Malasto’s affidavit states that permitting fathers to

be in the deli room given the physical set-up at

4 NE ayy 4% St OA - 7 A

74-1949 A-8

the propriety and safety of permitting the husband to be

present during the routine birth” is not one that should

be resolved by substituting our judgment for the profes-

sional judgment of the staff of defendant hospital.

We hold that the so-called right of marital privacy does

not include the right of either spouse to have the husband

present in the delivery room of a public hospital which,

for medical reasons, has adopted a rule requiring his ex-

clusion. 7

Plaintiffs also argue that the hospital rule improperly

restricts the rights of their physicians to practice medi-

cine.” They rely on Doe v. Bolton, 410 U.S. 179, and other

22 Compare J. Morton, “Fathers in the Delivery Room —an -

tion Standpoint,” Topics 103 (Jan. 1966); S. Olds & L. Witt,

“New Man in the Room —the Father,” Today’s Health 52

(Oct. 1970); N. Sehgal, Potential for Problems Husbands

are in the Delivery Room,” Resident and Staff Physician 33 (March,

1973); C. Shu, Husband-Father in Delivery Room,” Hospitals, JAHA.

90 (Sept. 17, 1973), with e.g., Int’l Childbirth Education Association, “Hus-

bands in the Delivery Room” (1971)

It ay all ies are in accord Lg gm 7 | —

in refusing to change x plain

mn FR A BP in their ef in Support of

into delivery room uniform.”

oe 8 > Se See Fee mote dispute, rather than

oS a ution t te, which concerns us, no pur-

pose w be served by remanding the case to the district court for

a hearing.

0 The Cisteics court 26 net seach Gis contention, Oe 8 ue Se

that the not possess requisite standing assert

right of absent doctors. The district court relied on the fact that

Barrows v. Jackson, 346 US. 249. Recent decisions of the Court sug-

gest, however, that whenever one

lationship asserts injury to himself and to the ts the other

party to such a selationshi he may assert the rights of the absent

partner. As the Court i in Griswold v. Connecticut, 381 US.

479, 481,

“The ts of husband and wife, pressed here, are likely to be

dined adversely affected unless those rights are considered in

a suit involving those who have this kind of confidential relation

to them.”

Ae9 74-1949

cases invalidati hospital rules which piaced greater

restrictions on the performance of abortions than on

comparable medical procedures. Those rules impaired the

exercise of a right which the Court had held entitled to

constitutional protection. We have rejected the claim that

the right asserted by ——- in this case is entitled to

such protection, and there is no claim that the hospital’s

exclusionary rule discriminates against obstetrical proce-

dures as opposed to other operations. The argument

advanced by plaintiffs when standing in their doctors’

shoes is no stronger than their own. We are moved, but

not persuaded, by their own interest in companionship and

moral support; we are unmoved, and certainly unper-

suaded, by the argument that the rule is an unconstitu-

tional impairment of the doctors’ right to practice medi-

cine free of unreasonable governmental restraint. Since,

as we have already noted, there is a difference of opinion

within the profession as to the desirability of such a rule,

this is a classie example of the kind of situation in which

individual hospitals should be permitted to make individual

choices, rather than having an inflexible rule imposed upon

all hospitals in the nation by federal judicial decision.

AFFIRMED.

Sprecuer, Circuit Judge, dissenting. Although | concur

in Judge Stevens’ disposition of the jurisdictional, mootness

and standing issues and I have no quarrel with his general

discussion of the right to privacy, | dissent completely

from his conclusion that the right to privacy does not

include the right of expectant parents to have the male

present with the female in the delivery room of a public

hospital in cases where the attending physician has con-

sented to that procedure.

Cf. sueumee: ©. Bad, GS US, G0, 00-00, Friendship Medicat Center,

. v. i of Health, supra n. 11, at 1145-1148. See gen-

— RF Yale 123. 399 (1962) ;; Comment, “dranding , a

. os to

Constitutional Jus Tertii,” 88 Harv. L. Rev. 423 (1974).

:

:

f

f

i

74-1949 A-10

Although the plaintiffs pray on appeal “that this court

should reverse on the standing issue and remand the case

to the district court for a trial on the merits,” Judge

Stevens has bowed to the expertise of the medical profes-

sion without the benefit of an evidentiary hearing. Never-

theless, the record before us includes uncontradicted evi-

dence that under the LaMaze method of childbirth “in the

more than 45,000 cases collected in . . . surveys, there was

not one infection traceable to the practice and not one

malpractice suit.”

The plaintiffs also submitted the affidavit of a Clinical

Professor of Obstetrics and Gynecology at the University

of Chicago School of Medicine who stated that he has

delivered approximately one thousand babies in the past

four years with the fathers present in the delivery room

and it is his opinion:

{1} That... the presence of the father during the

delivery of the infant is beneficial to the mother, the

father, the infant and himself;

{2} That the father’s presence in the delivery room

has an ye vogy A stabilizing effect on the mother,

thereby aiding her in the second stage of labor

(delivery) ;

{3] That the mother’s cooperation during the

second stage of labor helps to enable her to deliver

the baby sooner and more safely because she will be

calmer, and thus able to bear down more intensively,

thus shortening this stage of labor;

(4) That because of this shortened labor, the new-

born will have increased probability of a healthy birth

and a decreased probability of hypoxia (insufficient

oxygen) ;

{5} That the father’s presence in the delivery room

does not create a need for additional personnel in the

delivery room, and that in fact, no greater number

of hospital personnel are in attendance when the

father is present than when he is not;

{6] That there have been no serious incidents at-

tributable to the presence of the father in the delivery

room in my experience;

(7] That I have found no evidence in current

obstetrical literature indicating that the presence of

ene oe

a

a — =

A-11 74-1949

husbands in the delivery room (assuming proper

safeguards are taken) would be hazardous and in fact

the most comprehensive study to date on the subject,

published by the International Childbirth Education

Association in 1968, reported that out of 45,050

husband attended deliveries there were no cases of

puerperal infection traceable to the practice.

The cases establishing fundamental familial and Pe

creative rights are pertinent: Meyer v. Nebraska, 262 U.S.

390 (1923) (parents have right that children study German

language) ; Pierce v. Socicty of Sisters, 268 U.S. 510 (1925)

(parents have right to direct education of children) ; Skin-

ner v. Oklahoma, 316 US. 535 (1942) (person has right

not to be compulsorily sterilized); Griswold v. Uonnec-

ticut, 381 U.S. 479 (1965) (married persons have right to

use contraceptives); Loving v. Virginia, 388 U.S. 1 (1967)

(black and white persons have right to marry each

other); Eisenstadt v. Baird, 405 U.S. 438 (1972) (un-

married persons have right to use contraceptives) ; Stanley

v. /llinois, 405 U.S. 645 (1972) (unmarried father has

custodial rights to his child); Roe v. Wade, 410 U.S. 113

and Doe v. Bolton, 410 U.S. 179 (1973) (person has right

to procure abortion at certain times and under certain

circumstances).

Mr. Justice Cardozo believed that “[e]very human being

of adult years and sound mind has a right to determine

what shall be done with his own body... .” Schloendorff

v. Society of New York Hospital, 211 N.Y. 125, 129, 105

N.E. 92, 93 (1914). Consequently, the informed consent

of the patient is necessary before the doctor deals with

the patient’s body. Canterbury v. Spence, 464 F.2d 772

(D.C. Cir. 1972), cert. dented, 409 U.S. 1064 (1972).

In the present case the patients have expressed their

desire for a | anpuner form of childbirth which is safe

and sanitary for mother and child and imposes a minimum

burden on the hospital. The —- doctors are willing

to perform childbirth in the desired way and in fact the

patients’ claim is conditioned upon the consent of the

attending physician, yet the patients’ desires as to the

manner in which they wish their bodies dealt with has

been frustrated by rejection of the method by “the Medical

Staff” of the defendant hospital.

74-1949 A-12

This problem is the exact one confronted by Mr. Justice

Douglas in his concurring opinion in Doe v. Bolton, 410

U.S. 179 at 219-20:

The right of privacy has no more conspicvous place

than in the physician-patient relationship unless it

be in the priest-penitent relationship.

It is one thing for a patient to agree that her

hysician may consult with another physician about

er case. It is quite a different matter for the State

compulsorily to impose on that physician-patient rela-

tionship another layer or, as in this case, still a third

layer of physicians. The right of privacy—the right

to care for one’s health and person and to seek out

a physician of one’s own choice protected by the Four-

teenth Amendment—becomes only a matter of theory,

not a reality, when a multiple-physician-approval sys-

tem is mandated by the State.

The State licenses a physician. If he is derelict or

faithless, the procedures available to punish him or

to deprive him of his license are well known... .

The good-faith decision of the patient’s chosen physi-

cian is overridden and the final decision passed on

to others in whose seiection the patient has no part.

This is a total destruction of the right of privacy

between physician and patient and the intimacy of

relation which that entails.

The right to seek advice on one’s health and the

right to place reliance on the physician of one’s

choice are basic to Fourteenth endment values.

We deal with fundamental rights and liberties, which,

. . . ean be contained or controlled only by discretely

drawn legislation that preserves the “liberty” and

a only those phases of the problem of com-

pelling legislative concern.

o > o

To protect the woman’s right of privacy ... the

control must be through the physician of her choice

and the standards set for his performance.

Although it is true that the prohibition of the husband

from the delivery room is not a deprivation of the magni-

tude of the prohibition of an abortion neither is the

state’s interest in the former of the same magnitude. In

A-13 74-1949

fact, it is so non-compelling as to be virtually non-

existent: the hospital fears that the participating husband

may catch a glimpse of other women in labor and that

it does not have facilities for him to don and doff his

hospital gown. .

Furthermore, the magnitude of the importance of the

pee of the —— father should not necessarily

downgraded. e moment of delivery is a crucial

psychological milestone in the life of the mother. It is

probably equally crucial to those fathers who are allowed

to b» present. In any event, to deny the right of her

mate s presence when she desires it at a critical time is

unnecessarily, and I believe unconstitutionally, cruel to

the expectant mother.

In United States v. Vuitch, 402 U.S. 62 (1971), Mr.

Justice Black said for the Court at 72:

Certainly this construction ape age abortions for

mental health reasons} accords with the general usage

and modern understanding of the word “health,”

which includes psychological as well as physical well-

being. Indeed Webster’s Dictionary, in accord with

that common usage, properly defines health as the

“[s]tate of being ... sound in body [or] mind.”

Viewed in this hight, the term “health” presents no

problem of vagueness. Indeed, whether a particular

operation is necessary for a patient’s physical or

mental health is a judgment that ag = emer are obvi-

ously called upon to make routinely whenever surgery

is considered.

I would reverse and remand for a trial] on the merits.

A true Copy:

Teste:

EEE EEE EEE EEE EEE EEE EEE EEE TEETH EEE EEE HEHEHE EEE HERE EERE ED

Clerk of the Untted States Court of

Appeals for the Seventh Circuit

USCA 4158—The Scheffer Press, Inc., Chicago, Dlinois—9-26-75—250

A-14

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

November 21, 1975

BEFORE

THOMAS E. FAIRCHILD, Chief Judge

Hon. TIUTHER M. SWYGERT, Circuit judge*

Hon. WALTER J. CUMMINGS, Circuit ~~

‘ WILBUR F. PELL, JR., Circuit Judge

Hon, JOHN PAUL STEVENS, Circuit Judge .

"ROBERT A. SPRECHER, Circuit Judge

Hon. PHILIP W. TONE, Circuit Judge

WILLIAM J. BAUER, Circuit Judge

EVELYN FITZGERALD, et al., ) Appeal from

Plaintiffs-Appellees ) the United

) States Dis-

No. 74-1949 vs. ) trict Court

PORTER MEMORIAL HOSPITAL, ) for the Nor-

et al., ) thern Dis-

Defendants-Appellees.) trict of

Indiana,

Hammond Di-

vision.

(74-204 H)

ORDER

On consideration of the suggestion

that the above-entitled cause be reheard

en banc, a majority of the active members

of the Court having voted to deny a re-

hearing en banc,

IT IS ORDERED that the suggestion

that the above-entitled cause be reheard

en banc be, and the same is hereby,

DENIED.

¥Judges Swygert, Pell and Sprecher voted

to grant the rehearing en banc.

os

A-15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

)

EVELYN FITZGERALD, ET AL.

Vv. CIVIL NUMBER

)

)

)

) H 74-204

PORTER MEMORIAL HOSPITAL, )

ET AL. )

)

ORDER

Defendants’ Motion to Dismiss Com-

plaint and Dismiss Petition for Tempor-

ary Restraining Order is GRANTED.

ENTER: September 10, 1974

f8/ Allen Sharp

udge, U. S. District Court

MEMORANDUM

The court assumes jurisdiction pur-

suant to 28 U.S.C. §1343(3) and (4).

Plaintiffs seek to enjoin the en-

forcement of a policy of the Porter Mem-

orial Hospital, a tax supported institu-

tion, and to have the policy declared

invalid. The policy in question excludes

fathers from the delivery room during the

birth of their children. No licensed

physicians have been joined as plaintiffs

in this action. The complaint contains

no allegation that any of the licensed

physicians with staff privileges at Por-

ter Memorial Hospital would consent to

A-16

the presence of a father in the hospital

delivery room during childbirth. Plain-

tiffs allege that this policy is viola-

tive of certain of their constitutional

rights including the right to privacy and

the right to marital privacy as estab-

lished in Griswold v. Connecticut, 381

U.S. 479 (1965); Roe v. Wade, 410 U.S.

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

(1973). Plaintiffs allege that they do

have standing to assert the right to

privacy as defined in the cases cited

above and in the case of Eisenstadt v. |

Baird, 405 U.S. 438 (1972).

et a

Plaintiffs claim standing on the

basis that there is a confidential re-

lationship and that in such a situation,

either party has standing to raise the

rights of the other when there are fun-

damental rights at issue. This is al-

leged under the holdings in Griswold,

supra, and Eisenstadt, supra. However,

the Supreme Court of the United States

has held that, subject to narrow excep-

tions, one may not claim standing to

vindicate the rights of another. Barrows

v. Jackson, 346 U.S. 249, 73 S.Ct. 241 ‘

(1953).

In the instant case, unlike the fac-

tual situation in Roe, supra, Doe, supra,

and Hathaway v. Worchester City Hospital,

475 F.2d Tot (Ist Cir. 1973), the hospital

is not denying the plaintiffs access to

the facilities or the opportunity to have

a certain, medically approved operation

performed; but the hospital has placed

a certain restriction on the personnel

present during the operation. It is

A-17

alleged that such restriction could cur-

tail the effectiveness of a certain type

of childbirth method, the LaMaze method

of psychoprophylactic childbirth. Since

no licensed physicians are included in

this suit, and the plaintiffs have not

alleged that any physician would consent

to the use of the LaMaze method, the

plaintiffs are seeking to assert the

rights of the physician in regard to the

practice of medicine.

The court does not believe that the

plaintiffs, in this instance, fall within

the exception to the general rule which

bars standing to one ~ = age to vindicate

the Constitut: snal rights of a third

party as stated in Barrows, supra. Any

doctor, unlike the third party in Barrows,

could assert his rights under the Consti-

tution without difficulty. Thus, the

lack of a physician as a plaintiff pre-

vents the plaintiffs from asserting the

physician's right with respect to the

medical practice allowed by the defen-

dant hospital.

Thus, for the reasons given above,

the court finds that the particular right

sought to be asserted belongs to a physi-

cian and a patient cannot assert that

right as it affects the medical proce-

dures in a hospital since the hospital is

not denying the patient the opportunity

of having an operation performed, but

only placing certain restrictions upon

the procedure. The defendant's motion

to dismiss is therefore granted.