Petition — Poelker v. Doe
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IN THE
SUPREME COURT OF THE UNITED STATES. ,
OCTOBER TERM, 1974 rr OF TE om
JOHN H. POELKER, Mayor of the City of
St. Louis, Missouri,
and
R. DEAN WOCHNER, M.D., Director of Health and Hospitals,
and Acting Commissioner of Hospitals of the
City of St. Louis, Missouri,
Petitioners,
VS.
JANE DOE, and a Class,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Eighth Circuit
-
LARK L. KOEHR
City selor of the City of St. Louis,
te of Missouri
GENE P. FREEMAN
Deputy City Counselor of the City of
St. Louis, State of Missouri
Room 314, City Hall
1200 Market Street
St. Louis, Missouri 63103
314-453-3366
Attorneys for Petitioners
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
SB:
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INDEX
Page
ED iss podeceedh s sckbeeheN eee aeens 2
IE GE IID 5 oc cc cd wccccescccccccceen 3
Questions Presented for Review .................... 3
Positive Law Provisions Involved ................... 4
ee aides s chide sens shee ee ke . 10
PD GD So ccwedse chcctscdc'evessaees 5 10
Facts Material to Questions Presented ............. 10
Reasons for Granting a Writ of Certiorari ............ 23
DS Ge TD onc cht eee sccccscccses 23
II. Appellate Abuse of Discretion .............. 27
1. Overturning District Court’s Findings ...... 27
2. Court of Appeals Initiation of Petitioner May-
or’s Convictions of “Bad Faith” and Imposition
of Punishment by Levying “Attorney Fees” .. 33
III. Justiciability, Standing and Mootness .......... 39
IE. 6 iy oe 056 oa bk nee N UNE NS SE EEE ERE 53
Appendices
District Court Memorandum and Order, filed March 22,
ee a sedan dance dda daede ee A-1l
Court of Appeals Opinion, filed June 4, 1974 .......... A-11
Court of Appeals Order, denying petition for rehearing
and rehearing en banc, entered June 27, 1974 ...... A-18
District Court Memorandum and Order, filed January 13,
POT ECT OTe Teer Tee TT Le A-19
Court of Appeals Opinion, filed April 14,1975 ......... A-27
Court of Appeals Order, denying petition for rehearing and
for rehearing en banc, and in response to motion for
rehearing en banc, modifying opinion filed April 14,
rm, GUI Te We SD 6k vee acasctecsosenaess A-40
Court of Appeals Order, in response to motion of appellees,
amending opinion filed April 14, 1975, as revised by
order of May 7, 1975, and granting appellees right to
file a second petition for rehearing and rehearing en
banc entered June 2, 1975, with opinion by Van Ooster-
hout, senior Circuit Judge, concurring in part and dis-
PEE 9 6:44.60 bene 94n5¥06s5ane 68% bane 68 A-44
Court of Appeals Order, denying second petition for re-
hearing and rehearing en banc, entered June 24,1975 A-54
District Court Order, entering judgment on mandate of
Court of Appeals issued July 8, 1975, pursuant to opin-
ion filed April 14, 1975, as modified on May 7, 1975,
and June 2, 1975, entered August 8, 1975 .......... A-55
District Court Memorandum and Order, filed August 8,
POPP OPC T re. Meee TORE HT eer ep rer A-56
Notice of Appeal of Jane Doe, et al., plaintiffs, filed Au-
Pe es Sa 80 4b odo e cae be cdtenskesauben A-60
Court of Appeals Clerk’s acknowledgement of filing of Ap-
peal, dated August 22, 1975, and notice of probable
hearing October 13, 1975, in St. Paul, Minnesota .. . . A-62
Charter of the City of Saint Louis, Missouri, Table of Con-
EP rr Per ry oon Meare er eS A-65
Article XVIII, Civil Service, of the Charter of the City of
<n eked eens abe ces ae dee ern eeees A-67
——
iii
TABLE OF AUTHORITIES CITED
Cases
Abele v. Markle, 452 F2d 1121 (C.A. 2nd 1971) ...... 49
Alyeska Pipeline Service Co. v. Wilderness Society, — U.S.
—, 95 S.Ct. 1612, 44 L.Ed.2d 141 (S.Ct. 1975) ... .34, 38
Bailey v. Patterson, 369 US 31 (S.Ct. 1962) ........... 46
Baker v. Carr, 369 US 186 (S.Ct. 1962) .............. 45
Barlow v. Collins, 397 US 159 (S.Ct. 1970) ............ 50
Birdwell v. Hazelwood School District, 491 F2d 490 (C.A.
rane. Sarr ere eee 33
Commissioner of Internal Revenue v. Duberstein, 363 US
oe ne eee eeu ns hehe Chee s 4S EER 32
Crossen v. Breckenridge, 446 F2d 833 (C.A. 6th, 1971) .. 50
Doe v. Bolton, 410 US 179 (S.Ct. 1973) ... .24, 25, 27, 35, 37
Doe v. Poelker, 497 F2d 1063 (C.A. 8th, 1974) ........ 31
Doe v. Poelker, 515 F2d 541 (C.A. 8th, 1975) ....... 26, 27
Flast v. Cohen, 392 US 83 (S.Ct. 1968) .............. 41
Golden v. Zwickler, 394 US 103 (S.Ct. 1969) ..... 42, 44, 45
Indiana Employment Division v. Burney, 409 US 540 (S.
FF a ee eer eT eT re ee ee err ee 46
Linda R.S. v. Richard D., 410 US 614 (S.Ct. 1973) ..... 46
North Carolina v. Rice, 404 US 244 (S.Ct. 1971) ...... 45
Parke-Davis and Co. v. Stromsodt, 411 F2d 1390 (C.A.
i eee ee eee. eee kh ee 33
Pendergrass v. New York Life Insurance Co., 181 F2d 136
i nn i ee een ohhh ehaeensoenebebe se 32
iv
Poe v. Menghini, 339 F. Supp. 986 (D. Kan. 1972) ...... 51
Roe v. Ferguson, — F2d —, April 28, 1975, No. 74-
2908 CA. GR, TVED +c csccesecessacss ses 36
Roe v. Norton, — F2d —, July 31, 1975, No. 74-1874
CA. Bee, TOUED ceccidenvccceweusetesseesse 37
Roe v. Wade, 410 U.S. 113 (S.Ct.
1973) .....24, 25, 27, 35, 37, 45, 46, 47, 48, 49, 50, 51, 52
Toledo Scale Co. v. Computing Scale Company, 261 US
te, Perret re 39
Traux v. Raich, 239 US 33 (S.Ct. 1915) .............. 51
United Public Workers v. Mitchell, 330 US 75 (S.Ct. 1947) 40
United States v. Raines, 362 US 17 (S.Ct. 1960) ....... 41
United States v. 12 200-Ft. Reels, 413 U.S. 123 (S.Ct.
IOTED ow ccccccccvevessecesceseseel tat 38
United States v. United States Gypsum Co., 333 US 364
GCe. BOG ... scsesddescestcuestie 32
United States v. Vuitch, 402 US 62 .................. 25
Universal Oil Products Co. v. Root Refining Co., 328 US
S7S Gt. FRG ooo 6nccceessess ee 38, 39
Vaughan v. Atkinson, 369 US 527 (S.Ct. 1962) ........ 39
Word v. Poelker, 495 F2d 1349 (CA. 8th, 1974) ..... 35, 37
Wulff v. Singleton, 508 F2d 1211 (C.*. 8th, 1974), cert.
gr. 43 LW 3674, June 24, 1975 .............. 35, 36, 37
Statutes and Court Rules
Charter of the City of St. Louis, Article XVIII ........ 24
Federal Rules of Civil Procedure, Rule 52(a) . . .28, 29, 32, 33
a
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974
a
JOHN H. POELKER, Mayor of the City of
St. Louis, Missouri,
and
R. DEAN WOCHNER, M.D., Director of Health and Hospitals,
and Acting Commissioner of Hospitals of the
City of St. Louis, Missouri,
Petitioners,
VS.
JANE DOE, and a Class,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
Te the United States Court of Appeals
fur the Eighth Circuit
The petitioners John H. Poelker and R. Dean Wochner, re-
spectfully pray that a writ of certiorari issue to review the judg-
ments and opinions of the United States Court of Appeals for
the Eighth Circuit entered in the proceedings between these
petitioners and respondent in such court.'
' For simplicity, the parties are throughout identified by their
present status of petitioners and respondent.
OPINIONS BELOW
A. There are three Memoranda and Orders of the United
States District Court, Eastern District, Eastern Division, which
at this date, through publisher's oversight and recency are not
yet reported. However, each is herewith presented in the sep-
arate Appendix; these are:
1. Jane Doe, et al. v. John H. Poelker, Mayor of the City
of St. Louis, Missouri, et al., Case No. 73C-565(A),
entered on March 22, 1974;
2. Jane Doe, et al. v. John H. Poelker, Mayor of the City
of St. Louis, Missouri, et al., Case No. 73C-565(A),
entered on January 13, 1975; and
3. Jane Doe, et al. v. John H. Poelker, Mayor of the City
of St. Louis, Missouri, et al., Case No. 73C-565(A),
entered on August 8, 1975.
B. There is an opinion of the Court of Appeals for the Eighth
Circuit entered on June 4, 1974, reversing the District Court
in A-1 above, reported officially as Jane Doe, et al. v. John H.
Poelker, etc., et al, 497 F.2d 1063. This opinion is included
in the Appendix.
C. There is an opinion of the Court of Appeals for the Eighth
Circuit filed April 14, 1975, reversing the District Court in A-2
above: there are also two substantial modifications of this opin-
ion by subsequent orders entered: May 7, 1975, and June 2,
1975. The case is reported as Jane Doe, et al. v. John H. Poel-
ker, etc., et al., 515 F.2d 541, as the opinion finally evolved
after the modifications. The opinion and each successive opin-
ion modifying order are included in the Appendix.
JURISDICTION
A final judgment dated and entered by the Court of Appeals
on April 14, 1975, is sought to be reveiwed.
The Court of Appeals entered an interiocutory judgment re-
versing a judgment of the District Court and remanding the
case for trial on June 4, 1974. Timely petitions for rehearing
and rehearing en banc were denied by the Court of Appeals’
order made on June 27, 1974.
A final judgment of the Court of Appeals, reversing the Dis-
trict Court and remanding for limited purposes was dated and
filed on April 14, 1975. Timely petitions for rehearing and
rehearing en banc were denied by the Court of Appeals’ order
of May 7, 1975; and such order, in response to said petitions,
substantially modified the opinion and judgment of April i4,
1975. Upon petitioners’ timely motion for further amendment
of the opinion and judgment as modified, the Court of Appeals
again substantially modified its opinion and judgment on June
2, 1975, and granted petitioners the right to file second peti-
tions for rehearing and rehearing en banc. Timely second peti-
tions for rehearing and rehearing en banc were filed and denied
by the Court of Appeals’ order entered on June 24, 1975.
The Supreme Court's sound judicial discretion for issuance of
a writ of certiorari is invoked under its jurisdiction conferred
by 28 U.S.C. Section 1254(1). This petition for certiorari was
filed within 90 days of the effective date of the judgment, June
24, 1975.
QUESTIONS PRESENTED FOR REVIEW
1. Whether a woman's Federal constitutional privacy rights
regarding abortion requires a municipally staffed and operated
hospital to furnish medical personnel and facilities to comply
A
anttie
with her request for an abortion based on her financial distress
within her first trimester of pregnancy where no medical in-
dications exist.
2. Whether the Fifth Amendment Due Process Clause of
the United States Constitution and Rule 52(a) of the Federal
Rules of Civil Procedure prohibit a Court of Appeals from
finally reversing a District Court’s well-found findings and sub-
stituting its own contrary Complaint constructions and factual
conclusions, and then, for the first time, on such appeal relying
thereon, levying punitive substantial “attorney fees” for “bad
faith,” without there having occurred any trial of any of such
issues or conclusions in the District Court.
3. Whether Article III of the Federal Constitution requiring
a case or controversy bars a Court of Appeals’ judgment in
favor of a woman pregnant at the time of filing suit for personal
relief, and as sole representative of a class, claiming a constitu-
tional right to an hysterectomy and an abortion by a munici-
pality, where she secretly procures an abortion within five (5)
days of filing and prior to summons of one defendant and be-
fore the case is heard by the District Court.
POSITIVE LAW PROVISIONS INVOLVED
The Constitution of the United States
Article III:
Section 1. The judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and estab-
lish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall,
at stated Times, receive for their Services, a Compensation,
‘%
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—_ an
which shall not be diminished during their Continuance
in Office.
Section 2. The Judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which
shall be made, under their Authority;—to all Cases affect-
ing Ambassadors, other public Ministers and Consuls;—
to all Cases of admiralty and maritime jurisdiction;—to
Controversies between two or more States;—between a
State and Citizens of anot ier State;—between Citizens of
different States;—between Citizens of the same State claim-
ing Land under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens
or Subjects.
Amendments to the United States Constitution:
First Amendment:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Fifth Amendment, providing in applicable part:
* * * nor be deprived of life, liberty, or property, without
due process of law;
Seventh Amendment:
In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than ac-
cording to the rules of the common law.
Ninth Amendment:
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.
Tenth Amendment:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.
a» Von
can control or interfere with the rights of conscience; that
no person shall, on account of his religious persuasion or
belief, be rendered ineligible to any public office of trust
or profit in this state, be disqualified from testifying or
serving as a juror, or be molested in his person or estate;
but this section shall not be construed to excuse acts of
licentiousness, nor to justify practices inconsistent with the
good order, peace or safety of the state, or with the rights
of others.
The Constitution of the State of Missouri, 1945 | Missoun Statutory Provisions
Article I, Bill of Rights Section 197.032, Revised Statutes of Missouri, Laws 1973.
In order to assert our rights, acknowledge our duties,
and proclaim the principles on which our government is
founded, we declare:
* *- * * * * *.
Section 2. Promotion of general welfare—anatural rights
of persons—equality under the law—purpose of govern-
ment. That all constitutional government is intended to
promote the general welfare of the people; that all persons
have a natura! right to life, liberty, the pursuit of happiness
and the enjoyment of the gains of their own industry; that
all persons are created equal and are entitled to equal rights
and opportunity under the law; that to give security to these
things is the principal office of government, and that when
government does not confer this security, it fails in its chief
design.
a * * * + * *
Section 5. Religious freedom—liberty of conscience and
belief—limitations. That all men have a natural and inde-
feasible right to worship Almighty God according to the
dictates of their own consciences; that no human authority
POA ENE OT a APT Bk pee ee -
197.032. Hospitals and medical personnel may refuse
abortions—no denial of public benefits for such refusal—
civil action, when
1. No physician or surgeon, registered nurse, practical
nurse, midwife or hospital, public or private, shall be re-
quired to treat or admit for treatment any woman for the
purpose of abortion if such treatment or admission for
treatment is contrary to the established policy of, or the
moral, ethical or religious beliefs of, such physician, sur-
geon, registered nurse, midwife, practical nurse or hospital.
No cause of action shall accrue against any such physician,
surgeon, registered nurse, midwife, practical nurse or hos-
pital on account of any such refusal to treat or admit for
treatment any woman for abortion purposes.
2. No person or institution shall be denied or discrim-
inated against in the reception of any public benefit, assist-
ance or privilege whatsoever or in any employment, public
or private, on the grounds that they refuse to undergo an
abortion, to advise, consent to, assist in or perform an
abortion.
—
3. Any person who shall deny or discriminate against
another for refusal to perform or participate in an abor-
tion shall be liable to the party injured in an action at law,
suit in equity or other redress.
Charter of the City of St. Louis”
Article XVIII, Civil Service:
Sec. 3, (n) Removals and demotions.—For removals,
demotions and decreases in pay in the cases of employes
whose service rendered is below satisfactory standards, de-
signed to promote the efficiency of the service. Such action
shall be effective only after written notice to, with right of
appeal in, the employes affected, and after such investi-
gation as is appropriate to insure that the action taken is
on the sole ground of merit and fitness.
Sec. 16. Racial, political and religious discrimination.
—No recommendation or question under the authority of
this article shall relate to the race, political or religious
opinions, affiliations or service of any person. No person
shall be appointed to a position in the classified service
hereunder, nor be demoted, re-employed, promoted, re-
moved, increased or reduced in compensation, nor in any
other way be favored or discriminated against in any mat-
ter within the purview of this article, because of his race,
political or religious opinions, affiliations or service.
Sec. 22. Violations of civil service provisions.—. \ny per-
son who shall willfully or through culpable negligence vio-
late or conspire to violate any provision of this article
or of any ordinance made pursuant theretofore which no
other punishment is provided herein, shall be guilty of a
misdemeanor, and, upon conviction thereof in any court
2 Article XVIII, is reproduced in full in the Appendix.
‘ —
of competent jurisdiction, shall be punished by a fine of
not less than one hundred dollars and not more than five
hundred dollars or by imprisonment for not to exceed six
months, or both, in the discretion of the court. The con-
viction of any employe of any such offense shall operate
automatically to terminate his service and to vacate his
position. Any employe so removed from the service shall
not be reinstated, reemployed or reappointed, or in any
other manner re-enter the service of the City of St. Louis
for a period of five years from the date of such conviction,
and the comptroller and any other fiscal officers respon-
sible for payment of any compensation to such person are
hereby charged with notice thereof. Nothing in this sec-
tion shall be construed to supplant or in any way affect
any prosecution that may be elected to be initiated under
any other provision of law relating to the nonfeasance, mal-
feasance or misfeasance of public officers.
Federal Rules of Civil Procedure
Rule 52, findings by the court:
(a) Effect. In all actions tried upon the facts without
a jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule
58; and in granting or refusing the interlocutory injunc-
tions the court shall similarly set forth the findings of fact
and conclusions of law which constitute the grounds of
: its action. Requests for findings are not necessary for pur-
: poses of review. Findings of fact shall not be set aside un-
less clearly erroneous, and due regard shall be given to the
Opportunity of the trial court to judge of the credibility
of the witnesses. The findings of a master, to the extent
that the court adopts them, shall be considered as the find-
Sane he ae ee
were
=—
ings of the court. If an opinion or memorandum of deci-
sion is filed, it will be sufficient if the findings of fact and
conclusions of law appear therein. Findings of fact and
conclusions of law are unnecessary on decisions of motions
under Rules 12 or 56 or any other motion except as pro-
vided in Rule 41(b).
STATEMENT OF THE CASE
Jurisdiction Below
The United States District Court’s jurisdiction was predicated
upon claims based upon the First. Fourth, Fifth, Ninth, and
Fourteenth Amendments of the United States Constitution as-
serted under United States Code, Title 28, Chapter 85, Section
1343, Title 28, Chapter 151, Sections 2201 and 2202, and
Title 42, Chapter 21, Section 1983.
The United States Court of Appeals’ jurisdiction was
grounded upon its statutory powers according to United States
Code, Title 28, Chapter 81, Section 1291, and Federal Rules of
Appellate Procedure, Rule 4(a).
Facts Material to Questions Presented
This case was filed on August 17, 1973, in the District Court
(E.D., E.D., Mo.) by the respondent as a sole plaintiff claiming
to represent a too numerous class to join of pregnant women
residents of St. Louis. The only named defendants were the
Mayor of St. Louis and the City’s Director of Health and Hos-
pitals.
At the time of the filing, and for a period of a year thereafter,
the respondent intentionally withheld from the petitioners her
identity and all factual matters from which the truth or falsity
ee ee ee ——
on De Eel. aa
of the Complaint’s averments could be determined. Because of
the respondent’s principal attorney's express refusal to permit
civil rule discovery without protective orders, petitioners, on
September 21, 1973, moved for an order, with reasonable limi-
tations which might appear proper, requiring submission to dis-
covery according to the Federal Rules of Civil Procedure.
The Complaint upon filing, after recitation of the jurisdic-
tional grounds for the suit (see above), and an explanation of
the failure to identify the respondent so as to avoid “embarrass-
ment and harassment,” claimed respondent was a married
woman with a family, in her first trimester of pregnancy, who
could not afford the expense of another child and consequent
loss of employment because of the family’s “severe financial
Straits.” That she suffered certain reproductive organ difficulties
which necessitated an hysterectomy which properly should be
simultaneously done with the abortion she desired. She further
claimed that she had gone twice in August of 1973 to one of the
two hospitals of the City of St. Louis and was there advised by
the hospital staff physicians to get an abortion elsewhere and
then return for the hysterectomy which they recommended be
done. She claimed such physicians expressed to her their re-
fusal to abort her because of a stated hospital policy of a blanket
prohibition of abortions. The claim was made that the petitioner
Mayor, being the chief executive officer exercising control over
the petitioner Director of Health and Hospitals and the City
hospitals, on many occasions stated that abortion would not be
allowed, and because of his high position, his statements were
largely responsible for the existing situation of prohibiting abor-
tions.
The stated claim for bringing the action was her (and the
class she claimed to represent) desire to utilize the personnel,
facilities and hospital “for the termination of said pregnancy,”
and that such policies, rules, regulations, procedures, and prac-
tices interfere with and deprive her and “her respective physician
—=
of the right of privacy within the patient-physician relation-
ship,” and also deprive her of right as a woman “to determine for
herself whether to bear children and maintain her marital
privacy” as guaranteed by the Fourth, Fifth, Ninth, and Four-
teenth Amendments to the United States Constitution.
The relief prayed for in the Complaint was a declaratory
judgment that any City policies, etc. barring, thwarting, limiting,
and infringing upon the utilization of the personnel, facilities,
and services of the City’s hospitals for abortions, are violative
of her and the class’s constitutional rights; and for a “permanent
injunction” to restrain petitioners and their agents from enforc-
ing such policy, etc., against respondent or the class, so as to
avoid “irreparable harm and injury to plaintiff and said class.”
(This latter prayer for injunctive relief was stricken by respond-
ent on October 1!, 1974.)
By a pre-filing agreement between the respondent and the
American Civil Liberties Union, the corporation procured at
its expense an abortion of respondent five days after the suit
was filed (e.g., Aug. 22, 1973), furnished four attorneys of rec-
ord to file and prosecute suit, and agreed to assume all costs,
attorneys fees and other expenses of the litigation. Such abor-
tion was done in secret (all other matters of adversary interest
occurring after suit were currently broadcast to the news media
by the A.C.L.U. attorneys of record or occasionally by others
of such organization). The District Court and the petitioners
first learned of the abortion six (6) months later on February
25, 1974; again by remarks to the media by respondent's at-
torney. At the time of the respondent’s abortion, one of the
petitioners, the Director of Health and Hospitals, had not been
summoned.
Petitioners made answer on September 21, 1973, without
benefit of discovery, and besides denials of the Complaint’s cru-
cial allegations, set up such general matters of defense thought
endian a
—
appropriate in their condition of factual uncertainty existent at
the time.
On October 5, 1973, at a time petitioners were awaiting
judicial relief to accomplish discovery on the allegations of the
Complaint, the respondent moved for summary judgment upon
a claim that the pleadings then filed (petitioner Mayor had
answered interrogatories Oct. 4, 1973) and an annexed affidavit
of respondent, demonstrated that no materia! issues existed.
This affidavit was made the day before it was filed on October
4, 1973, and the jurat was supplied by one of the respondent's
attorneys of record. The affidavit tracted the Complaint’s con-
clusionary allegations of fact, but added (par. 8) that she had
been advised by a private physician “that the ordinary and
routine medical procedure in her situation is to perform the
abortion and hysterectomy in one surgical procedure, rather
than two separate and distinct procedures, * * *” (emphasis
added). Finally, the affidavit ended (par. 9) with the statement:
9. The present and real threat by defendants to imple-
ment and enforce the policy herein challenged deters said
plaintiff from receiving medical care in a manner bene-
ficial for her health and safety and in a manner consistent
with the highest standards of medical practice.
The affidavit, so far as it positively states that petitioner was
then in need of an hysterectomy and simultaneous abortion was
materially false, and deceptive to both the District Court and
petitioners, and could hardly not be known as false by the attor-
neys for respondent who were also agents of the A.C.L.U. which
had accomplished the abortion of petitioner over two months
prior pursuant to the aforesaid agreement.
In response, petitioners, in their situation of respondent's de-
vised ignorance, in order to protect against the threat of sum-
mary judgment, reminded the Court by motion of their existing
= =
discovery disability and consequent incapacity to oppose the
respondent’s motion with any contrary factual matters, and
again asked for discovery on respondent and denial of her motion
for summary judgment. The Court did not, at the time, rule
on the matters.
As a result of the knowledge learned as beforesaid on or about
February 22, 1974, petitioners on February 25, 1974, moved
the District Court for an order requiring petitioner to disclose
whether her claimed pregnancy had been aborted and her re-
productive organs had been removed, permanently barring fur-
ther pregnancy. On the same day (Feb. 25, 1974) respondent’s
attorney in response to an oral instruction from the Court, filed
a letter admitting the abortion of respondent on August 22,
1973, but making no mention of the hysterectomy claimed to
have been required. Concomitantly the petitioners moved the
Court to dismiss this action. By memorandum order filed March
22, 1974, the District Court granted petitioners’ motion on the -
grounds of the respondent’s lack of personal and representative
standing and the mootness resulting from the abortion before
the case could be heard,
Respondent appealed the District Court’s judgment to the
Court of Appeals for the Eighth Circuit on March 26, 1974.
On appeal respondent did not formally present any questions
to the Court of Appeals but argued “The Inappropriateness of
Dismissal for Lack of Standing” and importuned the Court to
decide the case in her favor on the basis that the policy (then of
undefined import and unknown application to respondent)
“* * * intruded into the decision-making privacy of the woman
and the medical personnel of these [City’s] institutions. * * *”
The Court reversed and remanded on the basis that pregnancy
at time of filing but not at time of hearing was sufficient for both
personal and representative standing, and non-pregnancy before
hearing at the trial level did not render the claims of respondent
fe ton ae DL” (ee,
Pe ee ee ee Ee ee ee ere eee
—
moot. Petitioners’ timely rehearing and rehearing en banc peti-
tions were denied.
After the Court of Appeals’ reversal and remand, the Dis-
trict Court held a pre-trial conference to consider and dispose
of matters delaying trial. At this time, upon the Court's ex-
pression of intent to order discovery on the respondent, her
attorneys agreed to an oral deposition setting. Also at this
time in response to respondent's attorneys’ inquiry, the Court
informed both parties’ attorneys that the Complaint would be
construed as not raising any issue concerning the staffing prac-
tices or procedures at the City’s hospitals; but that the Com-
plaint could be amended or a new suit filed so as to put such
matters in issue. In the history of the case the Complaint was
never so amended and the trial court, at the trial following,
consistently ruled that evidence of the respondent attempted to
be offered on such matters was beyond the scope of the issues
formed by the pleadings and was inadmissible to prove such a
claim. The petitioners relied on these rulings and confined
their defense and proof to the issues tried by the District Court.
(T. 57-58).*
After deposing the respondent on August 28, 1974, thereby
first learning of the factual contentions of the respondent (ex-
cept of the abortion learned earlier), petitioners filed for sum-
mary judgment supported by affidavits of each medical person
and their Division superior of City Hospital No. |, gynecological
and obstetrical service, who had treated the respondent, and the
complete medical documentary record of the hospital regard-
ing the respondent. These contradicted ine claims, affidavit
and deposition of the respondent. The Court, on November
20, 1974, denied both the respondent's and petitioners’ motions
for summary judgment and ordered trial on November 25,
1974.
* References to typewritten transcript of the trial.
=
Upon trial without a jury on November 25, 1974, the case
was presented in less than a full day, with a long noon recess
(to accommodate respondent) and an early afternoon adjourn-
ment.
Respondent, through the Mayor and Doctor Wochner (Di-
rector of Health and Hospitals and Acting Hospital Commis-
sioner) established that the policy or rule, existing for years pur-
suant to Missouri State law against abortion other than to save
a mother’s life, was directed to be continued to Doctor Woch-
ner by the Mayor sometime in May 1973 after his election in
April of that year. As understood by the Mayor and Doctor
Wochner, the question of jeopardy to the mother’s life was a
medical decision to be determined by the patient’s attending
physician. Intensive discussions were Occurring between them
up to the time this suit was filed regarding the legal, medical
and moral questions of the policy, and that litigation was going
on in the State with attendant great public uncertainty. The
Mayor has deep moral feelings against non-therapeutic abortions
which was communicated to Doctor Wochner, but he (Woch-
ner) believes abortion service ought to be given at the City’s
hospitals. (T. 6, 7, 10, 20-26). Because of the continuing
discussions and the Mayor's feelings, Doctor Wochner did not
implement the installation of such service. (T. 30-31). Doctor
Wochner had weekly or biweekly conferences with his hospital
medical cabinet at which the status of these discussions was
reported, but the only person he informed in writing regarding
such policy was the president of his medical staff. No general
directive was made. (T. 26-27). The working physicians and
medical students, of City Hospital No. 1, gynecology and ob-
stetrics Division No. 2, service, who came in personal contact
with respondent, were not informed of such policy, nor was
the chief of their said Division. And each testified that it was
not a factor in their treatment of her. (T. 49, 50, 85, 91-95,
101, 104, 108, 113-119). Further, neither of the hospitals by-
laws dealt with abortion. (T! 39).
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The respondent’s evidence demonstrated that the City’s hos-
pitals have an organic medical staff. Private physicians are not
allowed to admit or treat patients in them. Each hospital pa-
tient is a patient of the City treated by City hospital physicians.
The City’s hospitals are also medical instructional institutions
having teaching relations with the two medical schools in St.
Louis, namely, St. Louis University, a Jesuit, Catholic institu-
tion, and Washington University (formerly sectarian but is now
nondenominational). Medical schoo! teaching professors are
furnished as staff instructors in many of the services of the City’s
hospitals and in some services medical students receive some
of their clinical instruction. (T.31-33.) The Ob-Gyn service at
City Hospital No. | is staffed by physicians and attended by
medical students affiliated with St. Louis University Medical
School. (T. 33.) Respondent attempted to prove the physicians
at City Hospital No. 1, practicing in Gyn-Ob Division No. 2,
were prohibited through their affiliation with St. Louis Uni-
versity Medical School from performing non-therapeutic abor-
tions at the Hospital before medical students. However, the
Court overruled such attempts and admitted the personal pro-
fessional, ethical, moral and religious views of such physicians
as material to their theoretical interpretation and execution of
the contested claimed policy. (T. 57-58.)
The proof relating to respondent's factual relations was pro-
vided by her medical record kept by the Hospital (Resp. Ex.
No. 2), the testimony of the Hospital medical personnel who
treated her there, and her account of the same occurrences.
The medical record and the medical personnel agreed tliat
she had a long history of treatment at the Hospital starting in
1963 when she was 17 years old. Immediately relevant to this
suit she made a visit on August 7, 1973, at age 26, to the Gyn
Clinic compla‘aing of vaginal infection about which she had
visited the Clinic about a month before. She also stated she
thought she was pregnant and, if @o, wanted to know the fetal
age for a possible abortion with “Planned Parenthood.” (T. 86;
Exhibit No. 2.) Examination by a third-year medical student
(under general supervision) indicated suspected pregnancy, va-
ginal infection, some small polyps in her cervical canal, and
retroverted uterus. Her general condition of health was good.
Routine laboratory tests were ordered including a pregnancy
test; and she was given a future appointment to Gyn for August
13, 1973, to learn the outcome of the tests. She was also given
medicine for the infection. No medical indications for abor-
tion were observed (T. 85). She did not indicate she wanted an
abortion at the City Hospital (T. 88).
On August 13 1973, respondent returned to the Gyn Clinic
where she again was treated by another third-year St. Louis
University medical student. She was immediately told the test
specimen of August 7, indicated she was pregnant. Whereupon
she became very distraught saying because of the possibility of
her husband going to prison she wanted a hysterectomy and an
abortion (T. 96). The student then consulted with a physician
superior who directed that she be given an appointment at the
Obstetrics Clinic (T. 94). Because of her upset condition he
gave her an appointment to the Ob Clinic for the next day, Au-
gust 14, 1975. He found no medical indications for abortion
or hysterectomy (T. 91, 94-95), and that, at the time, he was
unaware of any City hospital policy against abortion (T. 97).
He advised respondent that, under health circumstances, he
knew of no physician at the hospital who would perform an
abortion for the reasons she related (T. 96-97).
On August 14, 1973, she returned to the OB Clinic of the
Hospital and was there received by a staff physician who initiated
a usual past history investigation when the respondent inter-
rupted to ask if such was necessary since she was there only
for the purpose of securing a statement of the length of gestation
for possible cessation at another facility (T. 101). He told her
that because of his personal ethical, professional, moral and
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religious beliefs, where she had no medical indications for abor-
tion (T. 102 and 104), he would not give her such a statement
to be used for abortion, but would refer her to another physician
(whose beliefs he did not know) who might give her the state-
ment she desired (T. 102). He, too, was unaware at that time
of any City hospital policy against abortions. (T. 107-108).
Immediately, respondent was referred to Dr. Ziad Abu Dalu,
a graduate of the medical school of the University of Cairo,
Egypt, who on the occasion was affiliated with St. Louis Uni-
versity since 1972, and a resident physician at the City Hospital
(T. 110). During Doctor Dalu’s initial interview of her she
told him of her personal reasons for wanting to abort her child,
amongst which he remembered was the possibility of her hus-
band going to jail. She told him she had been to “Planned
Parenthood” and had been asked to pay $175 for an abortion
which she couldn’t afford and, therefore, wanted the abortion
from City Hospital (T. 112-113). He told her “we couldn’t do
one at City Hospital and I didn’t explain to her my personal
reason or otherwise.” (T. 113). He testified that the reason he
told her this was because in his medical judgment an abortion
was not medically justified under her circumstances (T. 113,
118-119). He was aware of the University policy regarding
abortions but not of a policy of the City (T. 118-119, 123). He
gave her the certificate of fetal age she had requested (T. 116-
117); such certificate was later tendered to the abortion clinic
for the August 22, 1973, abortion, and procured from its rec-
ords (T. 79 and 82; Exhibit B). Respondent appeared again at
the Hospital OB Clinic the next day (August 15, 1973) and was
immediately referred to Doctor Dalu on her claim of bleeding
from the vagina. He found her claim to be false (T. 114).
Respondent’s testimonial version of the same occurrences
was markedly different in several material respects. She claimed,
contrary to the medical personnel, that she initially went to the
Hospital to secure an abortion there. Whereas, the medical rec-
=<
ords made at the time and introduced by respondent clearly
recite that her initial purpose was to determine pregnancy and
fetal age for use at another facility (T. 36, 64-66; Exhibit 4).
She also attributed the physicians refusal to abort her as being
based by them on a City policy against abortions (T. 67, 70 and
72). She attributed to Doctor Dalu advice that he would per-
form an hysterectomy on her at the Hospital after she was
aborted elsewhere (T. 73). Whereas, none of the City physicians
found any medical reasons for removal of her reproductive
organs (Exhibit 2).
The District Court found that each medical student and
physician who examined respondent at the City Hospital found
no medical reason for aborting her and that such medical de-
cision was based upon the opinion of the medical person unin-
fluenced by any policy of the City regarding abortions; and that
none of them knew of any such City policy. The Court declared
Section 197.032, Revised Statutes of Missouri, to confer the
right upon these physicians (inter alia) to be free from any
lawful coercion to perform abortions in the City’s hospitals
against his personal beliefs, and that the respondent did not
challenge the physicians’ actions under such statute. The Dis-
trict Court recognized a qualified Federal constitutional right
of respondent to an abortion, but declared she had no right to
demand that the City’s physicians accede to her wish or the
City so accede, where no medical reasons existed. The Court
found no design or purpose of the City to deny respondent any
of her Federal constitutional rights.
The respondent appealed such decision to the Court of Ap-
peals (C.A. 8th Cir.). The points raised before the Court were:
1, whether the District Court erred in ruling that the Com-
plaint did not put in issue the City’s procurement of physicians
from a religious denominational medical school; 2, if the Dis-
trict Court erred in so construing the Complaint, whether the
proof established a violation of respondent's Federal constitu-
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7
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tional privacy rights regarding abortion because of the procure-
ment of a medical staff possessed of professional beliefs against
non-medically indicated abortion; and 3, whether, if respond-
ent prevails, attorney fees on the basis of her acting as a “pri-
vate attorney general” ought to be awarded.
Petitioners vigorously defended against these contentions
pointing out that respondent utterly failed to even point out or
isolate any “clearly erroneous” findings of the District Court, and
was asking for a trial de novo at the appellate level. The failure
of respondent’s proof within the issues framed by orders and
rulings of the District Court was also urged; and the lack of an
unlimited right in the respondent to demand an abortion con-
trary to the decision of the physicians was argued.
The Court of Appeals, determined that the District Court
erred in construing the Complaint to exclude the issue of medical
staff procurement, and held that the proof established that the
City’s Mayor, through the combination of his policy against non-
therapeutic abortions and the physician procurement practice,
denied the respondent her constitutional rights regarding abor-
tion. The Court also found that reasonable attorney fees for the
appellate stages of the litigation were $3,500, and awarded such
sum to the respondent for acting as a private attorney general
in securing the Federal constitutional rights denied by the Mayor;
further, the Court ordered the District Court to determine and
award reasonable attorney fees on the same basis to respond-
ent, against the petitioners, for the trial phase of the case. In-
junctive relief was awarded against the petitioners, requiring
them to secure physicians who have no objections to performing
non-therapeutic abortions.
Petitions for rehearing and for rehearing en banc were filed
by petitioners which, while being denied, resulted in first modifi-
cation of the Court’s judgment striking the injunctive relief
and substituting the same declarations of immediate constitu-
tional duty as declaratory relief.
—
Thereafter, in due time, petitioners moved the Court to
strike its award of attorney fees as unauthorized because the
Federal statutes sued on, did not authorize such awards. At
this time the respondent moved the Court to allow such fees on
the basis of the “bad-faith” of petitioner Mayor Poelker. Such
fees were so allowed by a second modification of the judgment.
At the time of such order of modification, a right to file a second
petition for rehearing and rehearing en banc was granted peti-
tioners. Such second petitions were made and denied.
Upon remand to the District Court a hearing was held to
determine the amount of reasonable attorney fees to be awarded
according to the mandate. The District Court, applying the
guidelines of a case cited as to be followed by the Court of Ap-
peals, found the sum of $9,317.50 as a reasonable fee for the
trial stage services, but on stipulated evidence showing no agree-
ment to pay any fees by respondent, did not adjudge such sum
against the Mayor. The respondent has appealed this judgment
to the Court of Appeals.
—
REASONS FOR GRANTING A WRIT OF CERTIORARI
I. Abortion on Demand
This case presents the clear-cut question of whether a woman
has a Federal constitutional right to demand that a municipality
abort her pregnancy contrary to the medical opinions of its
municipal hospital staff physicians treating her. This question
has not been ruled by this Court, and due to the overwhelmingly
common practice of great urban public hospitals of providing
their own publicly employed physicians and the consequent
massive incidence of the problem, the question is of great and
immediate National importance calling for settlement by this
Court. Because the question occurs in a governmental setting,
resolution must necessarily deal with not only the Federal con-
stitutional privacy rights of women, but implicates a State's
social structure of the Family so far as a municipality is presented
with law and factual aspects of such institution to which it must
routinely accommodate, and the most fundamental civil rights
of publicly employed persons, grounded in the Federal and
State constitutions and State statutory enactments.
The Court of Appeals opinions sanction such an abortion
demand (albeit couched in less stark terminology) but utterly
fail to deal with the inescapable implications of its decision,
and more, grossly castigates and severely punishes a public
official for recognizing and raising such matters for the Court's
resolution. Fidelity to public office impels our giving this Court
opportunity to redress matters and give controlling future di-
rection.
To appreciate the reach and practical effect of the Court of
Appeals opinions it is vital to recognize that most very large,
urban, municipally-owned general hospitals are organized as
complete, self-sufficient medical treatment facilities. Private
—
practitioner physicians have no patient admission arrangement
with the hospital and are not allowed to practice in the hospital.
Such public hospital has its own, full-time organic staff of
physicians who are in the employ of the city and commonly
processed through civil service procedures just as are other
categories of municipal employees. This is the situation here.
(T. 31-53: see Charter of St. Louis, Art. XVIII.)
Entrance to such a hospital by the patient is not through a
physician. The patient makes the first contact with the hospital
itself. Normally such entrance is made through the hospital’s
various clinics or the emergency room service. The patient is
assigned according to his health needs to a category of medical
and hospital administration service where he then encounters the
physicians associated with that service. Charges for these
physicians’ services are made by and owing to the hospital (i.e.,
the city) and not to any physician that might have performed
them. His compensation is a legislatively determined salary.
(T. 31-32)
The physician chiefs of these various services not only per-
form an administrative function at the hospital, but customarily
perform a teaching or instructional role respecting the lesser
experienced physicians and medical students from a medical
school having an arrangement with the city. This dual function
gives rise to a dual position; other than the treatment hospital
role, the chief will normally also have a professorial position
with the medical school (or schools) so associated. (T. 41.)
This Court, in the context of State criminal law statutes, made
plain that a woman's right regarding an abortion of her preg-
nancy is a limited one—not absolute. (Roe v. Wade, 410 US.
113, Le. 154 (S.Ct. 1973), and Doe v. Bolton, 410 U.S. 179,
lc. 189 (S.Ct. 1973).) Such right essentially is to be able to
secure the services of duly accredited physicians who, free from
State interference or criminal sanctions, consult with her to be
=
advised of her particular health circumstances as they affect
the medical decision of whether to perform an abortion on
her.* The ultimate decision is not ithe woman’s but the physician
she has consulted with. (Roe v. Wade, supra, l.c. 163 and 164.)
The range of considerations may be practically unlimited,
but those that may be relied upon by the physician in making
his “abortion decision” have not been mandated by this Court.
(Roe v. Wade, supra, l.c. 163; Doe v. Bolton, supra, l.c. 192;
United States v. Vuitch, 402 U.S. 62, l.c. 71-72.) The physi-
cian, if in fact he is to make the decision and not the woman,
must be free to exercise his “best clinical judgment.” While the
Court has recognized an expended scope to the physician’s health
considerations theretofore limited by State criminal statutes,
it has likewise refrained from imposing a constitutional scheme
of medical vulues and left such matters to the realm of the
science and art of medicine.
The Court of Appeals has ignored this all important role
the physician plays in the constitutional plan for the operation
of the woman's limited rights in the abortion privacy rights
area. The Court of Appeals presupposes that the range of
valid medical considerations that may properly enter into the
“abortion decision” of the physician are equivalent to or define
a woman's right to be aborted. This is to say: she has a right
to be aborted by an attending physician because the range is
so all-encompassing there is no real possibility that she can't
assert one or more as subjectively important to preserve her
health. This entirely motivates the judgmental function of the
physician and shifts the causitive factor to the “wish” or “desire”
of the woman as repeatedly mentioned by the Court of Appeals.
+ It appears to be arguable whether the length of gestation is a
considerable factor at all where preservation of maternal health is
presumably a constant valid medical consideration at all periods, and
is sO broadly inclusive as to have no practical limitations whatever.
= =
That this is so is abundantly demonstrated by the Court of
Appeals centering its attack upon the ethical and presumed
religious views of the physicians treating the respondent. (Doe
v. Poelker, 515 F.2d 541, lc. 543-544 (C.A. 8th Cir. 1975.)
In inspecting this aspect of its reasoning it is crucial to keep
in mind that the City hospital physician staff of the Gyn-Ob
Departments were admittedly not assembled in any way or time
relationship to the Supreme Court's decisions regarding abortion,
but were the product of long existing cooperation between the
City and St. Louis University Medical School.* On appeal re-
spondent expressly admitted this which was never really in dis-
pute. (See: Appellants’ [respondent's] Statement, Brief and
Argument, p. 18.) Neither this Mayor nor his predecessors
played a direct or indirect role in physician procurement. (T.
31-32.) The Court of Appeals opinions make clear that a
woman going to the City’s hospital after having determined to
be aborted, must be supplied with a physician to carry out her
decision. Such a legal conclusion is explicit in the Court's
remark (Doe v. Poelker, supra, 515 F.2d lc. 544):
* * * Likewise, it is clear that the staffing procedure
effectively foreclosed any possibility that a pregnant woman
could ever find a staff physician who would agree to per-
form an abortion in the city hospital unless her life or health
was in severe danger. * * * (Emphasis supplied.)
Again, the express declaration of the Court of Appeals that the
“method of staffing” is unconstitutional and directing that the
City “* * * obtain the services of responsible physicians and
other necessary personnel whose views on abortion do not pro-
hibit them from providing an abortion * * *,” positively inter-
jects the City into the “abortion decision” by requiring an
ethical, moral and religious test of physicians so as to meet the
_° The other local medical school, Washington University was
similarly involved, but through the years reduced its participation
So as to adequately staff its private University associated hospitals.
—
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—
demand of the woman to be aborted (Doe v. Poelker, supra,
515 F.2d l.c. 546). Contrary to the teachings of Roe v. Wade
and Doe v. Bolton, supra, the woman is vested with a right to
“shop” the medical staff so as to find a compliant physician
who will abort her for any “health” reason she asserts. And
the City is required to insure that they are available to be found.
The Court has disqualified the present physicians from prac-
ticing regarding the health of City hospital pregnant patients
strictly because their medical views are influenced by their
ethical professional views, or their moral opinions, or their
religious beliefs. This is a new, novel and startling intrusion
into the practice of medicine and, if practiced by the State out-
side the context of judicial coercion, would be most certainly
within the prohibitions denounced by this Court in Roe v. Wade,
supra, 410 U.S. Lc. 163, and Doe v. Bolton, supra, 410 U.S.
l.c. 216. The Court of Appeals has effectively intruded where
all others are barred. There hardly, at *his time, need be a
labored exposition of the fundamental United States First and
Fifth Amendments’ constitutional violation implications for such
physicians and the City is dealing with them. The Court of
Appeals has rejected the truth that it is just as valid a medical
position to believe that non-therapeutic abortion is medically un-
sound.
The institutionalization of “abortion on demand” is certainly
contrary to the reasonable import of this Court in Roe v. Wade
and Doe v. Bolton, and expressly so declared by the Chief Jus-
tice in his concurring opinion. (Roe v. Wade, supra, |. c. 207.)
II. Appellate Abuse of Discretion
1. Overturning District Court’s Findings.
Petitioners seek Supreme Court review (under its Rule 19 (b)
superintending powers) of this case on the basis that the Court
of Appeals, in its adjudicatory powers departed so far from
=
common standards of fairness and impartiality of judicial prac-
tice that, in order to preserve important public rights in this
litigation and to preserve future judicial regularity through
precedent, intervention by this Court is required.
Nothing need be said to add to the Court's history of in-
sistence upon fairness and impartiality in the judicial process
according to the requirements delineated for due process of law
as declared through the Fifth Amendment (and Fourteenth) of
the Constitution of the United States, and formally recognized
by Rule 52(a), Federal Rules of Civil Procedure. We urge that
the appellate record of this case most forcibly brings these prin-
ciples to the fore for application once again.
An examination in some detail of the Court of Appeals’
first opinion (April 14, 1975) gives a clear exposition of the
manner that Court totally vitiated an adversary trial, rendering
nugatory the District Court's findings and assessment of the
believability and accuracy of the witnesses and documents; and
thereafter, finally reversing, granting injunctive relief it later
had to withdraw; and severely convicting and punishing the
petitioner Mayor on the untried issue of “bad-faith” after being
obliged to abandon an earlier attorney fees award on a “private
attorney general” basis.
An impossible impediment the Court of Appeals logically
first had to overcome before it could disagree with the findings
of the District Court and then finally reverse, involved the inclu-
sion of issues raised by the Complaint. The District Court's
findings and judgment, reviewed according to the construction
placed on the Complaint by the District Court and so tried by
it, were unassailable. The evidence amply supports the findings
and the trial court had seen and heard the sources at the hear-
ings as to better determine truth upon conflicts. To overcome
this, the Complaint had to be reconstructed to permit appellate
trial de novo.
eh ET
\
— =
The District Court, shortly before trial, upon respondent's
attorneys’ inquiry," ruled that as the Complaint stood, attempted
proof by respondent into the professional ethics, morality, or
religious beliefs of the physicians at the Gyn-Ob Department of
City Hospital No. 1, or physicians respondent was treated by,
would only be material to the Complaint for the limited question
of whether the so-called “Mayor's” City abortion policy in fact
biased or interfered with the personal medical opinions of the
City physicians and medical personnel who had treated the re-
spondent. Evidence going to proof of staffing with physicians
of a certain medical, ethical, moral or religious belief was ruled
beyond the scope of the Complaint.’
The uncontroverted record showed that the attacked policy
continued by the Mayor and which petitioner Wochner did noth-
ing substantial to enforce, was not the cause for the City phy-
sicians refusing to accede to the respondent's request to be
aborted. As a consequence, “clearly erroneous” findings, under
‘he trial court's construction of the Complaint were nonexistent.
At appeal, the respondent had failed to point out any erron<
ous findings (clear or otherwise) of the District Court, and e:-
tacked the aforesaid construction of the Complain( arguing the
physicians’ medical school affiliation as an interference with her
constitutional rights.
The Court of Appeals, without averting to the lawful scope
of review commanded by Rule 52(a), Federal Rules of Civil
Procedure, first isolated the crucial findings of the District Court
regarding the refusal of the physicians to abort respondent, then
6 And after they had shortly before first seen the City physicians’
and medical students’ affidavits (supporting summary judgment mo-
tion of petitioners) disclaiming any knowledge of the City’s abortion
policy and attributing their refusal to abort respondent to an absence
of medical indications.
* The Court offered to permit the respondent to amend the Com-
plaint so as to include such issue, but this was never done.
=
substituted its ipse dixit findings to the effect that the “Mayor's
policy” in combination with the staffing of physicians from a
Catholic medical school, was unconstitutional in violation of
respondent's rights. For the most part such substituted findings
are merely supported by the Court of Appeals gratuitous asser-
tions that such conclusions are “strongly indicated,” “strongly
suggest(ed],” “indicated,” or “stripped of all rhetoric.”
The underlying legal basis for this appellate trial de novo
is relegated to a footnote declaration (slip opinion, April 14,
1975, p. 5, footnote 4; Appendix) that the words in the Com-
plaint “procedures and practices,” are broad enough to raise
an issue of whether the City’s past history of physician pro-
curement was a means to denying non-therapeutic abortions.
The non sequitur that the Federal Rules of Civil Procedure
(Rule 8(f)) provide that pleadings shall be construed to do
substantial justice is cited without attempt at justifying its ap-
plication against petitioners. The fairness (e.g., “substantial
justice”) owing to the petitioners is passed over with a boot-
Strap observation that they “could hardly complain” of sur-
prise “in view of the broad wording of the [CJomplaint, [ajnd
when Doe [respondent] put on evidence relating to staffing,
the City [i.e., petitioners] did not ask for a continuance or at-
tempt to offer any contrary evidence of its own.”
The gross unfairness of this treatment is substantiated by
the fact that it would be impossible to “complain” about the
Court of Appeals’ reconstruction of the Complaint in the trial
court before it occurred; and the “evidence” thus created by
the Court of Appeals, was at the trial stage admitted for an-
other purpose and excluded for the purpose seized upon by
the appellate court. The potential logic of the petitioners in
the trial court asking for a continuance or offering contrary
evidence (when the District Court had not only at pre-trial
conference excluded such issue as a matter for trial, but also
faithfully adhered to such ruling throughout the trial (T. 58
-—--
—
and 60)) is nonexistent, and presents no unusual phenomenon
because it was not done.
This reconstruction of the Complaint by the Court of Ap-
peals is mystifying when it is considered that the same court,
with the full original record before it; entertaining extended
oral argument; failed itself to see such additional meaning of
the two words “procedure and practice” in the Complaint on
the prior appeal, and itself then construed the meaning and
reach of the Complaint just as the District Court did. (See:
Jane Doe, et al. v. John H. Poelker, etc., et al., 497 F.2d
1063 (C.A. 8th, 1974).) All of the interrogatories, memo-
randa, and the brief of the respondent in the first appeal, also
construed such language as singularly referring to the Mayor's
statement against non-therapeutic abortions as the “policy”
attacked. It was only after respondent foresaw her nonsuit
on such issue shortly before trial that the “staffing” issue was
attempted to be raised.
The hiatus of any proof of a “combination” of the Mayor's
policy with the “staffing procedures” relied on by the Court of
Appeals as a denial of a constitutional right is patent and
stark. (See: Doe v. Poelker, slip opinion, April 14, 1975, p.
6; Appendix.) Here a failure of the respondent's mere prom-
ise of later proof is utilized to adopt a far reaching conclusion
(T. 61);* similarly, the grossly conjectured finding that the
policy and staffing procedure were effective to thwart respond-
ent (and other women) from securing abortions, is not sus-
tainable on the ground that abortions were not performed.
The Mayor's “policy” is but a continuation of a command
respective of Missouri law, and the “staffing” procedure ante-
dated any question of abortion.
All of this is given devastating impact when it is recalled
from the record that the respondent, as a litigational strategy,
* Contrary to the respondent's promise, no such evidence was later
produced.
ote 99 ce
attempted to withhold the facts of this case from petitioners
and took the positive step of filing a false affidavit deceiving
the District Court and the petitioners; and continued such
strategy until forced to make disclosures. Opposed to this
conduct of the respondent we invite a comparison with peti-
tioners’ acts throughout.
Rule 52(a), Federal Rules of Civil Procedure, set the pa-
rameters within which the Court of Appeals should have pro-
ceeded. This rule commands that the District Court’s findings
ought not to have been set aside unless clearly erroneous, and
that due regard was to be given to the trial judge’s oppor-
tunity to judge the credibility of the witnesses. The Court of
Appeals had no warrant to try the case de novo. United States
v. United States Gypsum Co., 333 U.S. 364, lc. 395. The
efficacy of the District Court’s inferences from undisputed basic
facts (e.g., denial of abortion was a matter of independent
judgment of the physicians) was to be respected by the Court
of Appeals. Commissioner of Internal Revenue v. Duberstein,
363 U.S. 278, lc. 291. The Court of Appeals was required
to indulge the District Court the presumption that its findings
were correct and it was the duty of the respondent to clearly
demonstrate error in such findings. A reconstruction of the
Complaint, after trial, does not satisfy this duty. Possibly no
fairer statement of the position of an appellate court on re-
view can be made than that of the Court of Appeals itself in
Pendergrass v. New York Life Insurance Co., 181 F.2d 136,
Le. 138 (C.A. 8th, 1950):
The entire responsibility for deciding doubtful fact
questions in a nonjury case should be, and we think it
is, that of the district court. The existence of any doubt
as to whether the trial court or this Court is the ultimate
trier of fact issues in nonjury cases is, we think, detri-
mental to the orderly administration of justice, impairs
the confidence of litigants and the public in the decisions
ee eee, Sen
of the district courts, and multiplies the number of ap-
peals in such cases. * * *
The Court of Appeals has, until late, consistently adhered to
its foregoing view of the meaning of the Rule 52(a) and ex-
pressly declared that it has no discretion to try a case de novo;
Parke-Davis and Co. v. Stromsodt, 411 F.2d 1390 (C.A.
8th, 1969); Birdwell v. Hazelwood School District, 491 F.2d
490 (C.A. 8th, 1974)
This appellate course completely voided an adversary trial
conducted below and put the Court of Appeals in the posi-
tion of, once having materially changed the issues of a trial
completed on another basis, trying the case anew without
according petitioners any opportunity to meet such markedly
changed situation.
2. Court of Appeals initiation of petitioner Mayor’s con-
viction of “bad-faith” and imposition of punishment by levy-
ing “attorney fees.”
Any question of petitioner Mayor's “bad-faith” and punish-
ment therefor first arose and was decided against petitioner
in the Court of Appeals. The issue was never raised in the
District Court, no trial of such matters was there had and
the District Court awarded judgment for the petitioners,
against the respondent with prejudice. The Court of Appeals
in its original opinion of April 14, 1975, on respondent’s
suggestion in her brief, granted an allowance to her against
Mayor Poelker of $3,500 for the “appellate portion” of the
litigation, and also made an award in her favor against the
Mayor for trial attorney fees, in an amount to be determined
on remand of the outright reversal of the District Court. The
settled basis for these awards was the appellate court’s con-
clusion, that under its “equitable powers” such fees could be
=
awarded because the respondent» had acted as a “private at-
torney general.” The Court specifically rejected respondent's
suggestion of the alternative ground of bad faith. (See: slip
opinion, April 14, 1975, p. 13, footnote 8; Appendix.)
Since there existed no statutory authorization for these Court
of Appeals awards, and the matter was one not litigated below,
petitioners moved the Court to strike such findings and the
awards based on them, suggesting the applicability of the recent
case of this Court, Alyeska Pipeline Service Co. v. Wilderness
Society, — U.S. —, 95 S.Ct. 1612, 44 L.Ed.2d 141 (S.Ct.
1975), as controlling.” The respondent concomitantly moved
the Court to deny the motion and sustain the awards on the sug-
gested bases of “willful violation of court orders” and the “bad-
faith” of petitioner Mayor Poelker.
In response to petitioners’ motion, the Court of Appeals again
modified its opinion striking the awards of attorney fees on the
basis of private attorney general but adopted the respondent's
Suggestion to make the same awards on the basis of “bad-faith.”
(See: Order, June 2, 1975; Appendix. )'°
We urge that these judicial acts are without authority and
constitute a flagrant abuse of discretion.
* This was the second occasion petitioners were required to move
the Court of Appeals to correct erroneous awards against them.
Prior, on oral argument (second appeal) before Div. No. 2, upon
one of the judges initiation of discussion of the nature of mandatory
injunctive relief to be awarded against petitioners, petitioners there
pointed to the record showing that the respondent had stricken her
prayer for such relief and called upon her attorney to concede the
same which he did. None-the-less, in its judgment (slip opinion April
14, 1975; Appendix) the Court made such an award of injunctive
relief. On petition for rehearing, the Court, en banc, on May 7, 1975,
modified the divisional opinion so as to eliminate the terms “injunctive
relief” at each occurrence and substitute therefor the words “declara-
tory relief.” (See: Order, May 7, 1975; Appendix. )
'” Presumably because of a total lack of any foundation in the
record for conjecturing “willful violation of court orders” (suggested
by respondent), the Court makes no mention of such basis.
Me A A OS eel
= =
The stated ground for the conviction of petitioner Poelker of
“bad-faith” and making the several awards as punishment, is the
Court's supposition that the law was so clear after the United
States Supreme Court decided Roe v. Wade (supra) and Doe v.
Bolton (supra) in 1973, and the Court of Appeals had decided
Word v. Poelker, 495 F.2d 1349 (C.A. 8th Cir., 1974) and
Wulff v. Singleton, 508 F.2d 1211 (C.A. 8th Cir., 1974), that
any defense against the respondent's claims (as reconstructed
by the Court of Appeals) was frivolous and insubstantial,
demonstrating “a wanton, callous disregard for the constitutional
rights of indigent pregnant women continuing long after those
rights had been clearly enunciated by the Supreme Court in Roe
v. Wade, supra, and Doe v. Bolton, supra.”
This is an untenable position. Neither Roe v. Wade nor Doe
v. Bolton decided that municipal hospitals must furnish women
“wishing” or “desiring” non-therapeutic abortions with physicians
and facilities to carry out their wish. These Supreme Court de-
cisions dealt strictly with the resolution of a woman’s personal
right as measured against the State’s rights under the criminal
law. (The correlative rights of physicians were, of course, dealt
within the same context.) These Roe and Doe opinions simply
do not address the issue of municipal provision of physicians
to perform abortions for either indigent women or women with
means. It would have been more understandable if the Court
of Appeals had reasoned from these cases by analogy to decide
this case recognizing that the Supreme Court has not decided
the question presented here; however, even such a course could
not jurisprudentially excuse the Court of Appeals’ abuse here
because the issue was mot the meaning of Roe and Doe but the
petitioner's “bad-faith” in not interpreting these cases as the
Court of Appeals ultimately did! At the very least it can be
said that reasonable men can differ on the application of Roe v.
Wade and Doe v. Bolton to the present case. And if this be so
it is manifestly unjust to convict a litigant for seeing the situa-
tion differently than the Court of Appeals.
—<_
The Court of Appeals cites as additional evidence of peti-
tioner’s bad-faith its decision in Wulff v. Singleton, 508 F.2d
1211 (C.A. 8th Cir., 1974), as instructive of the law applicable
to this situation and to be presumed known to the Mayor. The
observation is as follows (slip opinion, April 14, 1975, pp. 8-9;
Appendix), viz.:
In the recent decision in Wulff v. Singleton, supra, 508
F.2d at 1215, the state of Missouri had by statute prohib-
ited medicade payments to women receiving welfare bene-
fits who had undergone nontherapeutic abortions while, at
the same time, providing such payments to women wel-
fare recipients who carried their pregnancies to term. This
Court stated: “This classification is a clear violation of the
Equal Protection Clause of the Fourteenth Amendment.”
There is no practical distinction between that case and this
one. (Emphasis added. )
As can be seen, the Wulff v. Singleton case involved construc-
tion of Title XIX of the Social Security Act; that is, Federally
provided funds administered by the State. Not the question of
whether the Federal or State government were constitutionally
required to provide such funds for “indigent women.” As a
consequence, the analogy is rather distant from the case of
whether a municipality must recruit compliant physicians for
pregnant women “desiring” abortions. Further, the force of the
Court of Appeals’ reasoning is all but destroyed by the express
disagreement other United States Courts of Appeals have had
with Wulff v. Singleton. In Roe v. Ferguson, — F.2d —, the
Court of Appeals for the Sixth Circuit (Slip opinion, filed April
28, 1975, in No. 74-2195), at pages 9-10 of its opinion stated
in part:
We find ourselves, therefore, in disagreement with the
Eighth Circuit’s ruling in Wulff v. Singleton, 508 F.2d
1211 (8th Cir. 1974), that the unconstitutionality of this
type of statute is so “obvious and patent” as to obviate
the need for a three-judge court.
=
The Second Circuit has also lately disagreed with the holding
of Wulff v. Singleton. In Roe v. Norton, — F.2d —, (slip opin-
ion, decided July 31, 1975, in No. 74-1874), the Court ob-
served that Roe v. Wade, supra, and Doe v. Bolton, supra, did
not deal with the question of a State’s right to restrict payments
for abortions under social welfare programs such as Medicaid,
and “despite lower court decisions holding such restrictions un-
constitutional, it cannot be said that this issue has been put to
rest by the Supreme Court.” The Court (C.A. 2d Cir.) stated
it agreed with the Sixth Circuit and disagreed with the Eighth
Circuit on this question. Emphasis is added to the lack of
“foreseeability” of the law applicabie to Mayor Poelker by the
Supreme Court's granting certiorari in W«/* v. Singleton, supra
(cert. granted 43 L.W. 3674, June 23, 1975).
Moreover, the District Court’s twice granting judgment for
petitioners is destructive of the Court of Appeals’ postulate that
the law was so “clear” or “clearly enunciated” or “clear dictates
of the Supreme Court” that petitioner Poelker was in “bad-
faith” in not adhering to it or in defending against the respond-
ent’s claims.
The reliance of the Court of Appeals on the several cases
litigated in Missouri as a demonstration of the Mayor's ad-
judicated “bad-faith” also fails upon objective inspection. Word
v. Poelker, 495 F.2d 1349 (C.A. 8th Cir. 1974) and this case
are cited to sustain such found history of “obstinancy.” Of course,
the Court’s characterization of the Mayor’s conduct is the very
matter disputed here; but the case of Word v. Poelker (supra),
merely involved the City’s defense of an ordinance regulating
(e.g., not prohibiting) abortion clinics. This could not, with
accuracy, be considered as evidence of a:
wanton, callous disregard for the constitutional rights of
indigent pregnant women continuing long after those rights
had been clearly enunciated by the Supreme Court in Roe
v. Wade, supra, and Doe v. Dalton, supra * * *
— peo
as found by the Court (see: slip opinion modification Order,
June 2, 1975, p. 13).
Mr. Chief Justice Burger in United States v. 12 200-Ft. Reels,
413 U.S. 123, lc. 127, gave pointed warning against too easy
extension of a rule to new dissimilar situations:
* * * The seductive plausability of single steps in a chain
of evolutionary development of a legal rule is often not
perceived until a third, fourth, or fifth “logical” extension
occurs. Each step, when taken, appeared a reasonable step
in relation to that which preceded it, although the aggre-
gate or end result is one that would never have been seri-
ously considered in the first instance. This kind of gestative
propensity calls for the “line drawing” familiar in the ju-
dicial, as in the legislative process: “thus far but not be-
yond.”
The law declared by the Supreme Court does not seem, in
rational application, to warrant the conviction of Mayor Poelker
of bad faith and authorize such a severe condemnation and
punishment.
It is clear and beyond cavil, that actual “bad-faith” practiced
by a litigant in the course of litigation can be, and properly
ought to be, punished. (Alyeska Pipeline Service Co. v. Wilder-
ness Society (supra); and citations therein.) However, this laud-
able rule, under the perceived applications authorized by this
Court, is not a device permitting arbitrary conviction and punish-
ment without notice or hearing and capricious imposition for
having a differing opinion in a new and very passion evoking
field, or defending according to well recognized juridical norms.
The Supreme Court gave cogent evidence of the true mean-
ing of the rule in Universal Oil Products Co. v. Root Refining
Co., 328 U.S. £75 (S.Ct. 1964). There the Court equated
“bad-faith” with contempt. The same gravamen of the offense
— i
is illustrated in the earlier case: Toledo Scale Co. v. Computing
Scale Co., 261 U.S. 399 (S.Ct. 1923). Particularly, in the
Universal Oil Products Co. v. Root Refining Co. case the Court
demonstrates its meticulous insistence that due process of law
be accorded a person prospectively considered for punishment
for “bad-faith.”
Here we respectfully urge there are no facts relating to the
conduct of the Mayor which could fairly be assayed as equiva-
lent to a contemptuous disregard of the law; or an ignoring of
anyone's rights under “ancient law” such as in Vaughan v. At-
kinson, 369 U.S. 527 (S.Ct. 1962). Rather, there exists a good
faith difference of opinion as to the law of this case, and an
honest defense to contrary claims so that the matter can be re-
solved according to due process. In convicting petitioner Mayor
Poelker of bad-faith and levying a fine upon him as “attorney
fees” in the course of an appellate proceeding, the Court of
Appeals has deprived him of that most fundamental right under
the Fifth Amendment to the United States Constitution—due
process of law.
III. Justiciability, Standing and Mootness
Petitioners respectfully urge that the justiciable case or con-
troversy requirements of Article III, of the United States Con-
stitution, fully sustain the District Court's final determination
of mootness under the facts of this case.
The salient facts material to this question are simple and
uncontested. The respondent filed her suit on August 17, 1973,
against the two petitioners, for a mandatory injunction requir my
petitioners as the primary executive officers having control over
the City’s hospitals, to cause to be simultaneously performed
on her an hysterectomy operation and an abortion of her preg-
=
nancy, and for a declaration of law of like settlement for all
similarly situated members of a class."'
The respondent, five (5) days after the filing of suit caused
herself to be aborted (according to admission of counsel). No
disclosure of such fact was made until six (6) months thereafter.
The record is silent as to the occurrence of an hysterectomy as
claimed to be simultaneously required by the Complaint.
At the time of the abortion of respondent on August 22, 1973,
R. Dean Wochner, M.D., the second named petitioner, had not
been served with a summons or the Complaint, and, of course,
no responsive pleadings were required of either petitioner and
no issues were as yet framed for trial.
The physiological fact of the abortion absolutely rendered
the Complaint’s prayer for respondent’s personal abortion in-
junctive relief nugatory to try, and impossible for the Court to
enforce, or the petitioners to obey. The only reason this ano-
malous status of the case did not timely appear was because of
the respondent’s imposed secrecy, her refusal to submit to dis-
covery and a deceptive and false affidavit she filed.
Upon challenge, these facts argue irresistibly against the re-
spondent's Federal standing to sue. At the threshold, the words
of Mr. Justice Reed, spoken for the United States Supreme Court
in United Public Workers v. Mitchell, 330 U.S. 75, l.c. 89, are
appropriate:
As is well known the federal courts established pur-
suant to Article III of the Constitution do not render ad-
visory opinions. For adjudication of constitutional issues
“concrete legal issues, presented in actual cases, not ab-
stractions,” are requisite. This is true of declaratory judg-
ments as any other field.
'! The likelihood of many women existing locally to satisfy such
a class appears to be negligible, if not nonexistent.
—_—
And in United States v. Raines, 362 U.S. 17, lc. 21, the reitera-
tion was couched:
This Court, as in the case with all federal courts, “has
no jurisdiction to pronounce any statute, either of a State
or of the United States, void, because irreconcilable with the
Constitution, except as it is called upon to adjudge the legal
rights of litigants in actual controversies. In the exercise
of that jurisdiction, it is bound by two rules, to which it
has rigidly adhered, one, never to anticipate a question of
constitutional law in advance of the necessity of deciding it;
the other never to formulate a rule of constitutional law
broader than is required by the precise facts to which it is
to be applied.” Liverpool, N.Y. & P. S. S. Co. v. Commis-
sioners of Emigration, 113 US 33, 39, 28 L ed 899, 901,
5 S$ Ct 352.
Standing to sue is a rational concept grounded in the impera-
tives of Article III of the Constitution and not a formal rule for
administration of the Federal courts. As a substantive matter,
going to jurisdiction, it must exist at each stage and through-
out litigation of a case, although its aspects may vary or change
during the progression of the case. As was said in Flast v.
Cohen, 392 US. 83, lc. 98, “Standing is an aspect of justici-
ability. . . .” Determinations of Federal standing focus upon
the status and character of the litigant and not the claims sought
to be adjudicated. Or as put by Mr. Chief Justice Warren for
the Court in Flast v. Cohen (392 U.S. 99):
The fundamental aspect of standing is that it focuses on
the party seeking to get his complaint before a federal
court and not on the issues he wishes to have adjudicated.
The “gist of the question of standing” is whether the party
seeking relief has “alleged such a personal stake in the
outcome of the controversy as to assure that concrete ad-
verseness which sharpens the presentation of issues upon
—_— =
which the court so largely depends for illumination of dif-
ficult constitutional questions.” Baker v. Carr, 369 US
186, 204, 7 L Ed 2d 663, 82 S Ct 691 (1962). In other
words, when standing is placed in issue in a case, the ques-
tion is whether the person whose standing is challenged is
a proper party to request an adjudication of a particular
issue and not whether the issue itself is justiciable. Thus,
a party may have standing in a particular case, but the
federal court may nevertheless decline to pass on the merits
of the case because, for example, it presents a political
question. A proper party is demanded so that federal
courts will not be asked to decide “ill-defined controver-
sies Over constitutional issues,” United Public Workers v.
Mitchell, 330 US 75, 90, 91 L Ed 754, 768, 67 S Ct 556
(1947), or a case which is of a “hypothetical or abstract
character,” Aetna Life Insurance Co. v. Haworth, 300 US
227, 240, 81 L Ed 617, 621, 57 S Ct 461, 108 ALR
1000 (1937).
A generalized grievance or hypothetical vindication interest of
a party is not enough to raise a constitutional duty for a Fed-
eral adjudication.
Further, it is abundantly clear that where the standing as-
pect of justic‘ability of a plaintiff ceases, the duty of a Federal
court is clear. The case must be dismissed. Such a situation was
squarely before the United States Supreme Court in Golden v.
Zwickler, 394 US 103, where the plaintiffs relation to claims
sought to be enforced (even though without any voluntary act
of his own—contrary to the case here) changed to destroy
standing. There the sequence of events unmistakably demon-
Strate that standing must exist throughout and not merely at the
time of the filing of the Compiaint. In the words of the Court
(394 U.S. 108):
The District Court erred in holding that Zwickler was
entitled to declaratory relief if the elements essential to
on 63 an
that relief existed “[w]Jhen this action was initiated.” The
proper inquiry was whether a “controversy” requisite to
relief under the Declaratory Judgment Act existed at the
time of the hearing on the remand. We now undertake that
inquiry.
“[T])he federal courts established pursuant to Article III
of the Constitution do not render advisory opinions. For
adjudication of constitutional issues, ‘concrete legal issues,
presented in actual cases, not abstractions, are requisite.
This is as true of declaratory judgments as any other field.”
United Public Workers of America v. Mitchell, 300 US
75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947). “The
difference between an abstract question and a ‘controversy’
contemplated by the Declaratory Judgment Act is neces-
sarily one of degree, and it would be difficult, if it would
be possible, to fashion a precise test for determining in
every case whether there is such a controversy. Basically,
the question in each case is whether the facts alleged, under
ali the circumstances, show that there is a substantial con-
troversy between parties having adverse legal interests of
sufficient immediacy and reality to warrant the issuance of
a declaratory judgment.” Maryland Casualty Co. v. Pa-
cific Coal & Oil Co., 312 US 270, 273, 85 L Ed 826, 828,
61 S Ct 510 (1941). (Emphasis added.)
At the conclusion of its opinion the Court again stresses this
continuing requirement of standing in stated (394 U.S. 110):
We conclude that Zwickler did not establish the exist-
ence at the time of the hearing on the remand of the ele-
ments governing the issuance of a declaratory judgment,
and therefore that the District Court should have dismissed
his complaint. We accordingly intimate no view upon the
correctness of the District Court’s holding as to the con-
Stitutionality of the New York statute. The judgment of
the District Court is reversed, and the case is remanded
—_
with direction to enter a new judgment dismissing the com-
plaint. (Emphasis added. )
For the sake of concentration on the precise issue, since the
respondent was pregnant at the time of the filing of her Com-
plaint, it would appear that, at least as to this factor, she was
possessed of standing at that time to seek an adjudication of
her claims of infringements of personal constitutional rights as
a pregnant woman seeking certain relief. Her personally sought
redress was for a judicially coerced surgical operation upon her
body for the removal of claimed diseased organs and destruc-
tion of the fetus in her uterus. Declaratory relief was incidental
to and dependent upon such injunctive vindication.
riowever, the respondent caused her own abortion on Au-
gust 22, 1973, at such early pre-trial time, she thereby com-
pletely obviated that “personal stake in the outcome of the con-
troversy” and the quality of “sufficient immediacy and reality”
to warrant any justifiable relief from the District Court. Of
course, objectively the Court could not enforce her abortion:
this she accomplished on her own. No judgment imposing such
a duty on the petitioners to cause her abortion could have any
real personal meaning for the respondent—her claimed legal re-
lationship toward the petitioners had been irretrievably changed
by her own doing. As far as her litigant status was concerned,
the legal effect of her act in procuring an abortion was to de-
stroy all possibility of ever establishing on hearing the fact of
pregnancy upon which her claims depended. The effect could
hardly be different in substance than a failure of proof on trial.
Just as in Golden v. Zwickler (394 U.S. 103, l.c. 109) where
the Court pointed out that the situation giving rise to the com-
plaint was most unlikely to ever reoccur (e.g., a judge resigning
and again standing for election as a Congressman), here the
respondent’s pregnancy was past, and according to the recitals
of her Complaint (p. 3, para. 11), the concomitant hysterectomy
—_—
she had determined upon, forever destroyed any future possi-
bility of reoccurrence.
It will be noted that the Supreme Court in Roe v. Wade,
supra, cited Golden v. Zwickler, 394 U.S. 103, as particular
authority in support of its determination that Roe’s case was
possessed of the attributes of a Constitutional “case or con-
troversy” and she was possessed of standing as late as May 21
(e.g., the day before trial), (410 U.S. 124). The patent holding
in Golden v. Zwickler is the necessity of the existence of such
a controversy at the time of the hearing—not at the time of
filing. There can be no question whatever that Golden pre-
sented a case or controversy at the time of the filing, yet the
decision of the Court was premised upon his standing at the time
of the hearing—not the time of filing. (Golden v. Zwickler,
supra, 394 U.S. 108 and 394 U.S. 110.) The litigant was held
to have lost his admitted filing standing (i.e., “status”) at the
time of the hearing, and the case, in consequence, having lost
its Constitutional case or controversy posture thereby.
It would appear just as compelling that when respondent
lost her personal standing the class aspect of the suit was like-
wise vacated. Initially, respondent was the sole representative of
a very nebulous class. Her person with its attendant personal
characteristics gave justiciability to the suit. Once her status
was changed, namely: no longer being pregnant and wanting
an abortion and needing an hysterectomy, the case was without
that “concrete adverseness” required for adjudicating the claims
according to constitutional requirements of justiciability. Baker
v. Carr, 369 U.S. 186, lc. 204. As the Court instructed in
Baker v. Carr (369 U.S. 208) justiciability demands more than
“* * * merely a claim of ‘the right, possessed by every citizen
to require that the Government be administered according to
law * * *’.” The corollary is, of course, “* * * federal courts
are without power to decide questions that cannot affect the
rights of the litigants before them.”’ North Carolina v. Rice, 404
—_— =
U.S. 244, 246. Of late the United States Supreme Court has
had occasion to point out that the alleged rights of a class can-
not survive a circumstance which renders the only party litigant’s
claim moot. /ndiana Employment Division v. Burney, 409 U.S.
540. (See also: Linda R. S. v. Richard D., 410 U.S. 614, and
Bailey v. Patterson, 369 U.S. 31.)
The question of Federal standing has been the subject of
United States Supreme Court consideration in the late abortion
case of Roe v. Wade, 410 U.S. 113. There the Court con-
sidered the status of justiciability and standing of each party
appellant according to their several, separate situations. Fur-
ther, it is crucial to note that the Court makes a fundamental
legal distinction in its analysis between irial standing and appel-
late review standing.
At the Court's division “A” of its opinion (410 U.S. 124) the
Court first addressed appellant “Jane Roe’s” standing. The Court
reviewed the significant sequence of the progress of the litiga-
tion with respect to her and concluded as a matter of fact that
she was pregnant at the time of the hearing before the trial
court. The unquestionable fact of this observation is established
by the following quotations of the Court’s opinion (410 U.S.
124):
A. Jane Roe. Despite the use of the pseudonym, no sug-
gestion is made that Roe is a fictitious person. For pur-
poses of-her case, we accept as true, and as established, her
existence; her pregnant state, as of the inception of her
suit in March 1970 and as late as May 21 of that year
when she filed an alias affidavit with the District Court; and
her inability to obtain a legal abortion in Texas. —
Viewing Roe’s case as of the time of its filing, and there-
after until as late as May, there can be little dispute that it
then presented a case or controversy and that, wholly apart
from the class aspects, she, as a pregnant single woman
— =
thwarted by the Texas criminal abortion laws, had stand-
ing to challenge those statutes. Abele v. Markle, 452 F2d
1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446
F2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F
Supp 986, 990-991 (Kan 1972). See Truax v. Raich,
239 US 33, 60 L Ed 131, 36S Ct 7 (1915). Indeed, we
do not read the appellee's brief as really asserting anything
to the contrary. The “logical nexus between the status as-
serted and the claim sought to be adjudicated.” Flast v.
Cohen, 392 US at 102, 20 L Ed 2d 947, and the necessary
degree of contentiousness, Golden v. Zwickler, 394 US
103, 22 L Ed 2d 113, 89 S Ct 956 (1969), are both
present. (Emphasis added. )
It can fairly be pointed out that in its canvass of the facts, the
Court found that on May 21, 1970, which was the day before
the trial hearing of May 22, 1970, Roe filed an affidavit of her
pregnancy. The Court, absent any question about the matter,
properly concluded it incredible that she was aborted over night
especially where the trial record is silent regarding such a mat-
ter and the Court observes “Indeed, we do not read the ap-
pellee’s brief as really asserting anything to the contrary * * *.”
(410 U.S. 124.)
After so fixing the factual context of Roe’s situation at (and
after) the trial hearing, the Court then turned to a consideration
of her appellate standing. The immediate cause of this inquiry
was the appellee’s suggestion that (410 U.S. 124) “Roe’s case
must mow be moot because she and all other members of her
class are no longer subject to any 1970 pregnancy.” (The case
was argued December 13, 1971, and reargued October 11,
1972.) After pointing out that “(t]he usual rule in federal cases
is that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is initi-
ated * * *” (410 U.S. 125, emphasis added), the Court pointed
out that pregnancy, because of its relatively limited duration,
_—~
normally would not exist until the “appellate” process is com-
pleted. Because of this inexorable fact of life, the Court ob-
served (410 U.S. 125) that “* * * If that termination makes
a case moot, pregnancy litigation seldom will survive much be-
yond the trial stage, and appellate review will be effectively de-
nied * * *.” (Emphasis added.) For this reason, coupled with
the normal biological phenomenon that the same woman re-
peatedly experiences pregnancy, the Court applied the “Con-
tinuing Controversy Doctrine” to demonstrate the existence of
standing and “non-mootness” at the appellate review stage. The
familiar apothegm—‘“capable of repetition, yet evading re-
view”—is declared for emphasis, and four cases are recited as
supportive.
In addition to the fact that the Court is speaking strictly
about standing at the appellate stage, several other observa-
tions are pertinent. It will be noted that the buttressing au-
thorities cited by the Court each concern the question of
“mootness” or “standing” only at the appellate stage. (410
U.S. 125.) No question of “trial standing” or “trial mootness”
was raised by the parties. Further, the decisional history of
the “continuing controversy” exception relates to the appellate
stage and not pre-trial situations. This is readily apparent
from the long (and numerous) line of decisions dealing with
the exception and its logical purpose. And, besides the Court
expressly saying that it is dealing with mootness at the appel-
late stage, as before pointed out, at another part of its opinion
when sua sponte discussing trial stage standing, it first finds
the fact to be that Roe was pregnant at trial and cites prior
decisions each requiring the actual status af trial to be as is-
suably pleaded in the Complaint as a basis for relief.
Here the doctrine of “continuing controversy” has no ra-
tional application. The question here is not respondent's ap-
pellate standing but her trial standing. There is no basis for
or possibility of, “trial” of her Complaint as a pregnant liti-
— 49 —
gant. This was absolutely foreclosed by her own voluntary
act—before trial. The support of the United States Supreme
Court points out for the pregnancy of Roe at trial by her affi-
davit is, of course, nonexistent here. As a matter of fact the
opposite is true for the respondent's affidavit (in support of
her motion for summary judgment) filed here, although at the
time (October 5, 1973) apparently neither the District Court
or petitioners noticed the absence of any positive recital of
pregnancy such as was contained in the Complaint because
of its otherwise false and deceptive nature.
Because of their use by the United States Supreme Court
in the context of trial standing, the decisions cited in Roe v.
Wade (410 U.S. 124) can be profitably referred to.
The first case cited is Abele v. Merkle, 452 F.2d 1121,
lc. 1125. This case markedly illustrates that in the context
of contesting a claimed right to personal abortion, a woman
must at least be pregnant. There the Court of Appeals said:
Accordingly, we hold that non-pregnant female plaintiffs
in this category do not show a sufficient nexus or present
a sufficiently concrete issue in an adversary setting to
give them standing, and we affirm the district court's
dismissal of the complaint as to plaintiffs claiming stand-
ing solely on the basis of their child-bearing age.
At the outset the Court framed the issue of standing of the
appellant lay women as a capacity to “present” a justiciable
case. (See: 452 F.2d 1124, para. 1-3.) After reciting the
controlling principles of “standing” and noting that none of
this class of women were pregnant (according to their Com-
plaint and affidavits), the Court ordered that the trial court's
dismissal be affirmed with leave to amend the Complaint, only
to women who are pregnant. Ir this context it is helpful to
be reminded that courts do not adjudicate pleadings but cases,
and this was the actual effect accomplished.
Citation of this case in Roe v. Wade, in the context of the
Supreme Court's finding that “Jane Roe” was pregnant at trial,
leaves no room for inference that the Supreme Court considered
pregnancy at filing sufficient basis for standing where an abor-
tion thereafter voluntary occurs before trial.
Crossen v. Breckenridge, 446 F.2d 833, is also consistent
with petitioners suggested meaning of standing as explicated in
Roe v. Wade. There the Court of Appeals of the case was within
the frame of a denial of a complaint motion for appointment
of a three-judge court by the District Court which determined a
lack of standing and dismissed the complaint. As a consequence,
the review of the appellate court was directed toward the record
as it existed regarding the status of each party plaintiff at the
time of the dismissal by the District Court. This status was solely
and only discernible through inspection of the complaint since
this was the extent of the record bearing on each appellant's
“personal stake and interest,” (Barlow v. Collins, 397 U.S. 159).
The Court found that a pregnant woman (Pat Croddock) had
standing, and a non-pregnant woman (Fran Pozzuto) lacked
standing saying (446 F.2d 839):
* * * It does not appear that this appellant presented more
than a hypothetical case to the district court. Her only
connection with the asserted right of marital privacy is
that she may become pregnant in the future. This is not a
sufficient nexus to distinguish her from any other woman
capable of bearing children. No injury is alleged, actual or
threatened, other than the hypothetical possibility that she
may be denied an abortion should she become pregnant.
Accordingly we hold that appellant Pozzuto does not have
standing to challenge the Kentucky abortion statute under
the federal Constitution. * * *
The same rule was applied to a women’s rights organization.
Parenthetically it can be noted that the “class status” of the dis-
missed out appellants did not lend justiciability or standing.
—
The third case cited in Roe v. Wade is Poe v. Menghini, 339
F.Supp. 986. This case contains the flat statement that the
only two women involved as plaintiffs, Jane and Sally Poe, are
“* * * at the time this action was commenced, were in need of
abortions * * *” but unable to obtain them. (339 F.Supp. 989).
The trial court (three-judge Dist. Ct.) fully heard the case and
its recital of the facts gives every indication of the pregnancy of
these women at trial hearing. The relief prayed for included
injunctive relief relating to the inability of the women to ~ *cure
a local legal abortion. While the Court did not mandate any
specific relief to insure abortion, its reason was clearly not be-
cause of the absence of pregnancy of the concerned plaintiffs,
but because thie Court, in view of its declarations, felt injunctive
relief to be unnecessary because of the presumption the de-
fendants would comply with the declaration. Consequently, the
case stands for the proposition it was utilized for by the United
States Supreme Court, namely: pregnancy at time of trial ad-
judication is a constitutional requisite for standing and justi-
ciability.
The final case cited on the point by the Supreme Court in
Roe v. Wade, is Truax v. Raich, 239 U.S. 33, appears to be
collaterally cited for its illustration of the approximity and fa-
cility of relief pendente lite to ensure the preservation of liti-
gants’ claimed constitutional rights until adjudication upon trial.
Here, in this case, no temporary relief was prayed—no motion
or other address to the trial court was made, because the actions
of the respondent had rendered the matter hypothetical.
The pronouncements of the United States Supreme Court
in Roe v. Wade, regarding the “Does” is contently equivalent to
the here respondent's status than that of “Jane Roe.” As is ob-
served at “C™ of the opinion (410 U.S. 127) “Mrs. Doe” who
is not pregnant, and her husband asserted essentially the same
claims as Jane Roe, but because of the wife’s non-pregnant
posture, relied upon present fear of future pregnancy without
possibility of legal abortion as their basis for attack on the Texas
=
statutes. The Court determined they lacked standing saying
(410 U.S. 128):
But we are not prepared to say that the bare allegation
of so indirect an injury is sufficient to present an actual
case or controversy. (Emphasis added. )
Respondent, at best, upon trial, could only have proved the
future possibility of pregnancy, and, except for the deception
practiced by respondent in hiding her non-pregnant status, her
allegation of pregnancy in this Complaint could have been
stricken on motion. Moreover, such disparity between proof and
pleading, obviates the latter averment as a significant legal
declaration thereafter.
It would seem to necessarily follow that if the Court of Ap-
peals’ concept of standing were rationally applied, any individual
woman, who was pregnant at any time (after Roe v. Wade) and
claimed to have been illegally denied an abortion would be
vested with standing regardless of her non-pregnant condition
at the time of filing. Such an individual would have the same
claim of “injury” as respondent here and could present at least
an equivalent “status” as the respondent under the Court of
Appeals’ reasoning, and could just as fully benefit by a declara-
tion of her Constitutional rights regarding an abortion even
though it occurred before filing. Such a result is contrary to the.
unquestionable holdings in the cases cited by the Supreme Court
in Roe v. Wade, supra, 410 U.S. 124, as authoritatively pro-
pounding the rule of lack of standing for non-pregnant litigants
claiming Constitutional infringement of rights to abortion, and
is hostile to the generai requirements propounded requisite to
Article III justiciability.
As a consequence of the force of the authorities, it appears
that respondent's standing to litigate in the constitutional sense,
was terminated when she, within five (5) days after filing suit
and before trial, voluntarily caused her pregnancy to be aborted.
and the Court of Appeals was without jurisdiction to do other
than affirm the District Court.
—
CONCLUSION
Petitioners respectfully submit that the necessary legal effect
of the Court of Appeals for the Eighth Circuit decisions here
considered is to establish as a matter of Federal Constitutional
absolute right of a woman to require a City to staff and equip
its hospitals so as to accede to her demand for an abortion re-
gardless of the fact that competent physicians determine that no
medical reason exists for her abortion.
Further, the judicial conduct of the Court of Appeals em-
ployed in reaching its decisions were in violation of the opera-
tive rules for appellate courts and of the principles of fairness
and the precepts of due process of law toward petitioners in ad-
judicating the case and in convicting and punishing by levying
substantial penalties, and were arbitrary and in material abuse
of lawful discretion.
Moreover, because of the absence of a Federal constitutional
justiciable question, consequent upon the respondent’s lack of
standing and mootness of her claims, the Court of Appeals
lacked jurisdiction to do other than to affirm the District Court
in both appeals, and in failing this, acted contrary to Article III
of the United States Constitution.
Therefore, we pray that because of the very important Na-
tional effects of these decisions and the irregularity of the means
employed by the Court of Appeals in reaching them, and the
gross injustice to the petitioners they work, this Honorable Court
ought to grant its writ of certiorari to review the case and declare
the law.
Respectfully submitted ¢ 7 / f get
JACK L. KOEH io © e
City Counselor om | |
EUGENE P. FREEMAN
Deputy City Counselor
Attorneys for Petitioners
APPENDIX
—————- —2_
=<
In the United States District Court
Eastern District of Missouri
Eastern Division
Jane Doe, )
Plaintiff,
VS.
John U. Poelker, Mayor of the
City of St. Louis, Missouri,
and R. Dean Wochner, M. D.,
Director of the Department of
Health and Hospitals and Act-
ing Hospital Commissioner of
the City of St. Louis, Missouri,
Defendants. J
>» No. 73 C 565 (A).
MEMORANDUM AND ORDER
(Filed March 22, 1974)
This matter is before the Court on the motion of the de-
fendants, John H. Poelker, Mayor of the City of St. Louis,
Missouri, and R. Dean Wochner, M.D., Director of the De-
partment of Health and Hospitals and Acting Hospital Com-
missioner of the City of St. Louis, Missouri, to dismiss the
plaintiff's complaint for lack of standing. Defendants’ motion
is based on the defendants’ allegation that the plaintiff has
undergone an abortion operation subsequent to the filing of
her complaint and is no longer pregnant and that, therefore,
plaintiff has no personal standing to continue this action on
behalf of herself or as a representative of a class.
=
Plaintiff, on her own behalf and on behalf of the entire class
of women similarly situated,’ filed this action on August 17,
1973, pursuant to 28 USC 1343, 2201 and 2202 and 42
USC 1983, asking for a declaratory judgment and permanent
injunction against the existence, application, implementation
and enforcement of express and implied policies, rules, regu-
lations, procedures and practices barring, thwarting, limiting
and infringing upon the utilization of the personnel, facilities
and services of the general public hospitals of the City of St.
Louis, Missouri, for the performance of abortions. Plaintiff
contends that such express and implied policies, rules, regu-
lations, procedures and practices are in violation of her con-
stitutional rights and the constitutional rights of the class of
women similarly situated, as protected and guaranteed by the
First, Fourth, Fifth, Ninth and Fourteenth Amendments to
the United States Constitution.
In her complaint plaintiff alleges that she is a resident and
taxpayer of the City of St. Louis, and that during the month
of August, 1973, on two separate occasions she requested an
abortion at Starkloff Memorial Hospital, a public hospital run
by the City of St. Louis. Plaintiff further alleges that physi-
cians of the obstetrical staff at Starkloff Memorial Hospitai
refused to perform an abortion operation on her and that the
refusals were based upon the blanket policy of the public hos-
pitals of the City of St. Louis against performing abortions
except when necessary to save the life of the mother. On
both occasions when the public hospital staff physicians re-
fused to abort the plaintiff, they advised her to seek an abor-
tion elsewhere and then return to the public hospital for a
hysterectomy operation, because she suffers from cervical,
! The class was defined in plaintiff's complaint as consisting of
pregnant women who are sntdonts of the City of St. Louis, Mis-
souri, and who desire to utilize the personnel, facilities and services
of public hospitals within the City of St. Louis, Missouri, for the
medical termination of their pregnancy.
— * po
fibroid tumors and polyps, a retroverted uterus, and tricho-
mycosis.
In defendants’ motion to dismiss they state that they have
reason to believe that plaintiff has had an abortion and is no
longer pregnant, based upon information reported in the press,
radio and television. Defendants argue that when the plaintiff
aborted her pregnancy she lost her standing to bring this action
on her own behalf or on the behalf of the class the plaintiff
purports to represent. What defendants are really saying is that
upon termination of her pregnancy before trial in the District
Court, plaintiff's claim became moot and should be dismissed
for lack of standing. The defendants are correct in their belief
that the plaintiff is no longer pregnant. This Court was informed
by letter dated February 22, 1974, from plaintiff's counsel (the
first paragraph of which letter is attached hereto and marked
Exhibit 1), that the plaintiff's pregnancy was terminated by an
abortion operation on August 22, 1973, which was five days
after the plaintiff filed this action and before the summons in this
case was served on the defendant, R. Dean Wochner, M.D.
(Served August 28, 1973).
This issue presented by defendants’ motion to dismiss which
must be decided is whether the plaintiff, who was pregnant and
had standing on the date she filed her complaint and who termi-
nated her pregnancy by undergoing an abortion operation five
days thereafter, still has standing to proceed in this cause in her
own behalf or on the behalf of the class she purports to repre-
sent.
This Court recognizes that the pregnancy which gave rise to
the present controversy herein has been resolved by the plain-
tiff's termination of her pregnancy, but that the underlying prob-
lem of the blanket policy against abortions in the public hos-
pitals of the City of St. Louis still remains. This allegedly un-
constitutional policy continues to deny abortions to members of
the class plaintiff purports to represent.
—
This Court will first resolve the issue of whether the plaintiff
can ‘ill represent the class of pregnant women she purports to
represent in her class action allegation. In a very straightfor-
ward statement, the Supreme Court in Bailey v. Patterson, 369
U. S. 31, 32-33, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962), while
referring to a group of plaintiffs, said, “They cannot represent
a class of whom they are not a part. McCabe v. Atchison, T. &
S.F.R. Co., 235 U. S. 151, 162-163.”
There is no dispute as to the fact that the plaintiff's pregnancy
was terminated by an abortion operation on August 22, 1973,
and that she is no longer pregnant. Therefore, she is no longer
a member of the class she purports to represent (see Footnote 1 ).
This Court finds that this action should not be maintained as
a class action. The prayer of the complaint is for a declaratory
judgment holding that the policies, rules and regulations of the
St. Louis City Hospitals which restrict the performance of abor-
tions are unconstitutional under the First, Fourth, Fifth and
Ninth and Fourteenth Amendments. The prayer also seeks a per-
manent injunction restraining the defendants from enforcing
said policies, rules and regulations. No damages are requested on
behalf of the plaintiff or on behalf of the class. The determina-
tion of the constitutional question can be made by the Court and
the policies, rules and regulations determined to be constitutional
or unconstitutional, regardless of whether this action is treated
as an individual action or as a class action. No useful purpose
would be served by permitting this case to proceed as a class
action. See /Jhrke v. Northern State Power Company, 459 F. 2d
566, 572 (8th Cir. 1972).
This Court must resolve the question of whether the plaintiff
who had standing on the date she filed her complaint and who
terminated her pregnancy by an abortion operation six days
thereafter, still has standing to proceed in this cause in her own
behalf.
—_.
The plaintiff contends that the Supreme Court in Roe v.
Wade, 410 U. S. 113, 124-125, 93 S. Ct. 705, 35 L. Ed. 147
(1973) unequivocably answered the above question of moot-
ness in the negative and the question of standing in the affirma-
tive. Plaintiff quotes from Roe v. Wade, supra, l.c. 124 and 125,
as follows:
“A. Jane Roe. Despite the use of the pseudonym, no
suggestion is made that Roe is a fictitious person. For pur-
poses of her case, we accept as true, and as established,
her existence; her pregnant state, as of the inception of her
suit in March 1970 and as late as May 21 of that year
when she filed an alias affidavit with the District Court; and
her inability to obtain a legal abortion in Texas.
“+ - * * * * _*
“The appellee notes, however, that the record does not
disclose that Roe was pregnant at the time of the District
Court hearing on May 22, 1970, or on the following June
17 when the court's opinion and judgment were filed. And
he suggests that Roe’s case must now be moot because she
and all other members of her class are no longer subject
to any 1970 pregnancy.
“The usual rule in federal cases is that an actual con-
troversy must exist at stages of appellate or certiorari re-
view, and not simply at the date the action is initiated.
United States v. Munsingwear, Inc., 340 U. S. 36 (1950);
Golden v. Zwickler, supra; SEC v. Medical Committee for
Human Rights, 404 U. S. 403 (1972).
“But when, as here, pregnancy is a significant fact in
the litigation, the normal 266-day human gestation period is
so short that the pregnancy will come to term before the
usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will sur-
vive much beyond the trial stage, and appellate review will
a .
be effect'vely denied. Our law should not be that rigid.
Pregnancy often comes more than once to the same woman,
and in the general population, if man is to survive, it will
always be with us. Pregnancy provides a classic justifica-
tion for a conclusion of nonmootness. It truly could be ‘ca-
pable of repetition, yet evading review.’ Southern Pacific
Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See
Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v.
Princess Anne, 393 U. S. 175, 178-179 (1968); United
States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953).
“We, therefore, agree with the District Court that Jane
Roe had standing to undertake this litigation, that she pre-
sented a justiciable controversy, and that the termination of
her 1970 pregnancy has not rendered her case moot.”
The plaintiff interprets the above quote from Roe v. Wade,
supra, to mean that it is not necessary for the plaintiff to be
pregnant at the time of trial to have standing and that termina-
tion of the plaintiff's pregnancy before trial does not render her
claim moot. This Court does not agree with the plaintiff's in-
terpretation. This Court calls attention to the only paragraph
plaintiff omitted from the Supreme Court's discussion of stand-
ing and mootness in Roe v. Wade, supra, |.c. 124 and 125. This
paragraph is of vital importance to the quote, and is as follows
(lc. 124):
“Viewing Roe’s case as of the time of its filing and there-
after until as late as May” (the court is talking about May
21, 1970, the day before trial when plaintiff Roe filed an
affidavit with the District Court) “there can be little dis-
pute that it then presented a case or controversy and that,
wholly apart from class aspects, she, as a pregnant single
woman thwarted by Texas criminal abortion laws, had
standing to challenge those statutes. Abele v. Markie, 452
F. 2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge,
446 F. 2d 833, 838-839 (CA6 1971); Poe v. Menghini,
—
339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v.
Raich, 239 U. S. 33 (1915). Indeed, we do not read the
appellee's brief as really asserting anything to the contrary.
The ‘logical nexus between the status asserted and the
claim sought to be adjudicated,’ Flast v. Cohen, 392 U. S.
at 102, and the necessary degree of conteniousness, Golden
v. Zwickler, 394 U. S. 103 (1969), are both present.”
(Emphasis added. )
Abele v. Markle, supra, cited in the omitted paragraph, is a
case involving the constitutionality of an abortion statute, where
the Court held that in order to demonstrate Federal standing to
assert a personal claim the plaintiff had to allege and prove that
she was pregnant. In the words of the Court in Abele v. Markle,
supra, l.c. 1125:
“Accordingly we hold that nonpregnant female plain-
tiffs in this category do not show a sufficient nexus or pre-
sent a sufficiently concrete issue in an adversary setting to
give them standing, * * *.”
In Crossen v. Breckenridge, supra, |.c. 829, the Court like-
wise reiterated the crucial element of “personal stake” in the
outcome of the case and controversy, and held that where the
woman was not pregnant, she had no standing. The same
rationale is evident in Poe v. Menghini, see 339 F. Supp., l.c.
990.
In Roe v. Wade, supra, the Court at pp. 127-129, in dis-
cussing the standing of the Does, who were among the plain-
tiffs, held that where the wife was not pregnant at the time the
cause was filed and based their claim on the fact Mrs. Doe might
become pregnant, the District Court had appropriately dis-
missed their claim for lack of standing.
In Golden v. Zwickler, 394 U. S. 103, 108, 89 S. Ct. 956,
22 L. Ed. 2d 113 (1969) (relied on by the Supreme Court in
Roe v. Wade, supra), the Supreme Court said:
—_—"
“The District Court erred in holding that Zwickler was
entitled to declaratory relief if the elements essential to that
relief existed ‘[wJhen this action was initiated.’ The proper
inquiry was whether a ‘controversy’ requisite to relief under
the Declaratory Judgment Act existed at the time of the
hearing on remand. We now undertake that inquiry.
“(T]he federal courts established pursuant to Article
III of the Constitution do not render advisory opinions. For
adjudication of constitutional issues, “concrete legal issues,
presented in actual cases, not abstractions,” are requisite.
This is as true of declaratory judgments as any other field.’
United Public Workers of America v. Mitchell, 330 U. S.
75, 89 (1947). ‘The difference between an abstract ques-
tion and a “controversy” contemplated by the Declaratory
Judgment Act is necessarily one of degree, and it would be
difficult, if it would be possible, to fashion a precise test
for determining in every case whether there is such a con-
troversy. Basically, the question in each case is whether
the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.’ Mary-
land Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270,
273 (1941).” (Emphasis added. )
The Court went on in Golden v. Zwickler, supra, l.c. 110, to
say that constitutional questions must be presented to the courts
in the context of a specific live grievance, and said:
“No federal court, whether this Court or a district court,
has ‘jurisdiction to pronounce any statute, either of a State
or of the United States, void, because irreconcilable with
the Constitution, except as it is called upon to adjudge the
legal rights of litigants in actual controversies.’ Liverpool,
N.Y. & P.S.S. Co. v. Commissioners, 113 U. §S. 33, 39
—< won
(1885). (Emphasis added.) See also United States v.
Raines, 362 U. S. 17, 21 (1960). The express limitation
of the Declaratory Judgment Act to cases ‘of actual con-
troversy’ is explicit recognition of this principle.”
The application of the above cited cases to the instant fact
situation brings this Court to the conclusion that the plaintiff
herein does not have standing to proceed with her cause of
action because she is no longer pregnant. The plaintiff's claim
is no longer in the context of a specific live grievance as re-
quired by Golden v. Zwickler, supra.
The plaintiff cannot now nor at the time of this case would
be heard show a substantial live controversy of sufficient im-
mediacy and reality to warrant the issuance of 2 declaratory
judgment. This is not to say that the issue the plaintiff brings to
this Court is not justiciable but is only to say that plaintiff is
not a proper party to request an adjudication. Flast v. Cohen,
392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).
This Court finds not only that plaintiff lacks standing but
that the termination of her pregnancy before even service was
had on one of the defendants and before the trial, has ren-
dered her claim moot. Plaintiff contends that the Supreme
Court in Roe v. Wade, supra, l.c. 125, quoted above, is hold-
ing that termination of pregnancy before trial does not render
a plaintiffs claim moot. This is not the case with respect to
the trial court. In Roe, at page 125, the Supreme Court in
discussing the question of “mootness” was referring to the
“appellate process” rather than the trial status of a litigant.
The Court there in effect held that where a plaintiff had stand-
ing at trial a change in her position after judgment (that is,
abortion or coming to full term) should not deprive her of
the right to the appellate process of our courts because “[i]t
truly could be ‘capable of repetition, yet evading review.’”
Roe v. Wade, supra, l.c. 125.
— A-10 —
There are many appellate decisions similar to the Roe case
where situations are involved that made mootness inapplicable
because to do so would prevent appellate courts passing on
the question involved because of the time involved between
the trial in the trial court and the consideration on appeal,
but we are not dealing with that controversy at the trial level,
and such rule has not been applied to the trial courts.
Accordingly, for the above reasons stated, the defendants’
motion to dismiss for lack of standing is sustained.
/s/ Roy W. Harper
U. S. District Judge
Susman Willer & Rimmel
Attorneys at Law
705 Olive Street—Suite 1212
St. Louis, Mo. 63101
February 25, 1974
The Honorable Roy W. Harper
United States District Judge
United States Court and Customs House
1114 Market Street
St. Louis, Mo. 63101
Re: Doe v. Poelker, et al.,
Cause No. 73C 565(A)
Dear Judge Harper:
This letter shall serve to provide the Court with firm au-
thority as to a continuing, justiciable controversy, despite the
termination of plaintiff's pregnancy on or about August 22,
1973 and for the authority as to the proper party defendants.
— A-1l1l —
United States Court of Appeals
For the Eighth Circuit
No. 74-1232
Jane Doe,
Appellant,
Appeal from the
John H. Poelker, Mayor of the City United States Dis-
of St. Louis, Missouri, and R. Dean > trict Court for the
Wochner, M.D., Director of the De- Eastern District of
partment of Health and Hospitals Missouri.
and Acting Hospital Commissioner
of the City of St. Louis, Missouri,
Appellees. |
Submitted: May 17, 1974
Filed: June 4, 1974
Before Bright and Ross, Circuit Judges, and Talbot Smith,
Senior District Judge.*
Ross, Circuit Judge.
This is an action for a declaratory judgment and a permanent
injunction against implementation of the policies, rules, regu-
lations and procedures barring the performance of abortions in
the two public hospitals in the City of St. Louis, Missouri.
From an order dismissing the complaint for lack of standing
and mootness, Doe appeals. For the reasons hereinafter ex-
pressed, we reverse.
* Talbot Smith, Senior District Judge, Eastern District of Mich-
igan, sitting by designation.
— A-12 —
Jane Doe alleged in her complaint, and verified by way of
affidavit, that she was pregnant, was the mother of two chil-
dren, was in severe financial straits, and was suffering from
cervical fibroid tumors and polyps, a retroverted uterus, and
trichomycosis. Twice she consulted staff members at Starkloff
Memorial Hospital, owned and operated by the City of St.
Louis, and was advised that she would require a hysterectomy.
They told her to procure an abortion elsewhere and then re-
turn to the hospital for the hysterectomy. The reasons proffered
by the hospital for the two-operation recommendation was the
hospital's stated policy’ against performing abortions. Doe
thereupon commenced this action against the Mayor of St.
Louis and the Director of the Department of Health and Hos-
pitals on her own behalf and on behalf of the entire class of
pregnant women residents of the City of St. Louis, Missouri,
desiring to utilize the personnel, facilities and services of the
general public hospitals within the City of St. Louis for the
termination of pregnancies.
After the complaint had been filed and service perfected
upon one of the defendants, but before service on the other de-
fendant, Doe procured an abortion from an alternative source.”
' That policy is expressed in the defendants’ joint answer:
10. Abortion, for reasons other than to save the mother from
grave physiological injury or death, is against and contrary
to the laws and public policy of the State and City.
12. [A]bortion, other than to protect the mother from grave
physiological injury or death, is a medical procedure which
lawfully can and has been reasonably excluded from such
services given by the City’s hospitals.
2 This fact was verified to the court by Doe’s counsel. Through-
out the litigation her counsel has sought to protect Doe’s true identity
in order to avoid harassment. However, counsel has assured the
court that Doe remained ready and able for deposition or other dis-
covery procedures. Counsel’s assurances and the fact that Doe her-
self, under her pseudonym signature, has filed an affidavit affirming
the veracity of the relevant facts, permits us to accept as true, her
existence and her pregnant state at the commencement of this action.
See Roe v. Wade, 410 U.S. 113, 124 (1973); Doe v. Bolton, 410
U.S. 179, 187 (1973).
— A-13 —
Defendants thereafter moved the court to dismiss Doe’s com-
plaint for lack of standing.* In granting defendants’ motion,
the court held that, by virtue of the fact that Doe had obtained
an abortion, Doe was no longer a member of the class she pur-
ported to represent. The court then ordered that Doe could not
represent the class of pregnant female residents of St. Louis.
Next, the court determined that although she may have had
standing to proceed on her own behalf on the date she filed
her complaint, her individual case had become moot after she
procured an abortion. Roe v. Wade, 410 U.S. 113 (1973),
and Doe v. Bolton, 410 U.S. 179 (1973), compel a different
result on both standing and mootness.
The question of standing in the federal court is to be con-
sidered in the framework of Article III which restricts the judi-
cial power to “cases” and “controversies.” Association of Data
Processing Service Organizations, Inc. v. Camp, 397 U.S. 150,
151 (1970). In terms of Article III limitations on federal court
jurisdiction, the question of standing is related only to whether
the dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as capable
of judicial resolution. Flast v. Cohen, 392 U.S. 83, 101 (1968).
The prerequisites of standing are a “logical nexus between the
Status asserted and the claim sought to be adjudicated.” Flast
v. Cohen, supra, 392 U.S. at 102, and the necessary degree of
contentiousness, Golden v. Zwickler, 394 U.S. 103, 108 (1969).
These requirements are met on these facts. Plaintiff's injury
and that of her class is her inability to obtain an abortion prior
to fetal viability in St. Lous public hospitals free from regula-
tions other than those that advance interests in maternal health.
The interest sought to be protected is the constitutionally guar-
anteed right to an abortion prior to viability. The defendants
* This motion was brought six months after the filing of the com-
plaint and presumably upon defendants’ first notice that Doe had
obtained an abortion.
=> fri <=
are attempting to regulate that interest by the challenged rules
and policies of the hospital which inhibit and (in effect) pro-
scribe abortions.
This conclusion that Doe has standing is mandated by the
resolution of the identical issue in Roe v. Wade, supra, 410
U.S. at 124, and Doe v. Bolton, supra, 410 U.S. at 187. Each
of the plaintiffs in those actions was, like the plaintiff here, not
shown to have been pregnant at the time of the district court
hearing. Likewise, each of the plaintiffs was, at the relevant
time, precluded from implementing her previability abortion
decision by the challenged statutes and regulations. In Roe,
the Supreme Court said:
Viewing Roe’s case as of the time of its filing and there-
after until as late as May [yet prior to the May 22 district
court hearing], there can be little dispute tnat it then pre-
sented a case or controversy and that, wholly apart from
the class aspects, she, as a pregnant single woman thwarted
by the Texas criminal abortion laws, had standing to
challenge those statutes. . . . The “logical nexus between
the status asserted and the claim sought to be adjudi-
cated,” and the necessary degree of contentiousness are
both present.
Id. at 124 (emphasis supplied and citations omitted). The court
thereupon found that Roe had standing to undertake the liti-
gation. /d. at 125. A similar result was reached in Doe v. Bolton
where it was concluded that Doe’s pregnant state on the date of
the commencement of the action gave her standing to maintain
the action. /d. at 187. Recently, in Doe v. Israel, 482 F.2d 156,
158 (ist Cir. 1973), cert. denied, 42 U.S.L.W. 3627 (May 13,
1974), the First Circuit has said:
In response to questioning defendant essentially suggests
only one: that plaintiffs, no longer being pregnant, have no
sufficient interest or standing. In the light of Roe, this argu-
ment proves too much.
— A-15 —
We consider that defendant's claim of mootness is a
will-o’-the-wisp and assumes the very question at issue.
If a plaintiff has a right to terminate her pregnancy—which
is the legal question before us—the sooner she succeeds in
doing so, the better. We have in mind the trimester trilogy.
on which defendant relies in another connection, and its
effect on viability and the pregnant plaintiffs health. It
seems not only illogical but, to use a polite word, harsh, to
argue that in order to establish her right to an abortion a
woman must decline to have it. (Citation omitted. )
We conclude here that Doe has standing to challenge the
hospital policy. Moreover, since she has adequate standing to
proceed in her own behalf, on the authority of Doe v. Bolton,
supra, 410 U.S. at 188, Doe and her class can be recognized.
Separate and distinct from standing is the doctrine of moot-
ness. That question is also a product of the Article III require-
ment of a case of controversy. North Carolina v. Rice, 404 U.S.
244, 246 (1971). The usual rule in federal cases is that an
actual controversy must exist at all stages of appellate or cer-
tiorari review, and not simply at the date the action is initiated.
SEC v. Medical Committee for Human Rights, 404 U.S. 403,
406 (1972); Golden v. Zwickler, supra, 394 U.S. at 108;
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
However, a case presenting a question that is “capable of repeti-
tion, yet evading review,” is nevertheless amenable to federal
adjudication even though it might otherwise be considered moot.
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515
(1911). As is clear from the Supreme Court's treatment in Roe
and Doe, pregnancy is one of the exceptional situations exempted
from the usual rule.
In Roe, the Court said:
But when, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is
— A-16 —
so short that the pregnancy will come to term before the
usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive
much beyond the trial stage, and appellate review will be
effectively denied. Our law should not be that rigid. Preg-
nancy often comes more than once to the same woman, and
in the general population, if man is to survive, it will al-
ways be with us. Pregnancy provides a classic justification
for a conclusion of nonmootness. It truly could be “capa-
ble of repetition, yet evading review.”
Id. at 125 (citations omitted). The Court accepted as true
Roe’s pregnant state as of the inception of her suit. The Court
did not find, however, that Roe was likewise pregnant at the
time of the trial court’s hearing on May 22, 1970. Yet, based
upon the foregoing reasoning, the Court held that she pre-
sented a justiciable controversy and “the termination of her
1970 pregnancy ha{d] not rendered her case moot.” /d. at 125.
Likewise ip Doe v. Bolton, supra, 410 U.S. at 187, the Court
accepted the plaintiff's pregnant state on the date of the filing
of the complaint and thereupon held, on the basis of the deci-
sion in Roe, that the interim termination of her pregnancy
had not rendered the case moot. To interpret the Supreme
Court’s discussion of mootness, as the district court did here,
to require pregnancy to be established at the time of trial,
would be to permit frustration of the logic announced by the
Supreme Court. Through dilatory tactics opposing counsel
could effectively preclude review of the challenge until abor-
tion or birth terminated the pregnancy. Crowded dockets
could cause the same unfortunate result. Accordingly, we find
that the plaintiff Jane Doe in this case presents a justiciable
controversy and the termination of her pregnancy sometime
after the filing of the complaint, but prior to trial, does not
render her case moot.
For the reasons hereinbefore expressed, we reverse and re-
mand to the district court for further proceedings consistent
am Arh? <=
with the views expressed in this opinion and in our opinion
in Nyberg v. City of Virginia, No. 73-1686 (8th Cir. Feb.
19, 1974).
A true copy.
Attest! ROBERT C. TUCKER
Clerk, U. S. Court of Appeals, Eighth Circuit
(Seal)
— A-18 —
United States Court of Appeals
For the Eighth Circuit
74-1232 September Term, 1973
Jane Doe, 7
Appellant,
vs. Appeal from the United
. States District Court
John H. Poelker, Mayor of the for the Eastern
City of St. Louis, Missouri, et District of Missouri
al.,
Appellees. ~
(Filed June 27, 1974)
The Court having considered petition for rehearing en banc
filed by counsel for appellees and, being fully advised in the
premises, it is now here ordered that the petition for rehear-
ing en banc be, and it is hereby, denied.
Considering the petition for rehearing en banc as a petition
for rehearing, it is now here ordered that the petition for re-
hearing also be, and it is hereby, denied.
June 27, 1974
A True Copy.
Attest! ROBERT C. TUCKER
Clerk, U. S. Court of Appeals, 8th Circuit
(Seal)
— A-19 —
In the United States District Court
Eastern District of Missouri
Eastern Division
Jane Doe, 7
Plaintiff,
VS.
John H. Poelker, Mayor of the City
of St. Louis, Missouri, and R. Dean > No. 73C 565 (A)
Wochner, M. D., Director of the
Department of Health and Hospitals
and acting Hospital Commissioner
of the City of St. Louis, Missouri,
Defendants. ,
MEMORANDUM AND ORDER
(Filed January 13, 1975)
This is an action by plaintiff seeking to have declared as un-
constitutional those rules and regulations of the public hospitals
of the City of St. Louis, Missouri, which prohibit utilization of
city hospital facilities and personnel for the performance of
abortions except for medical reasons.
Plaintiff, suing under the pseudonym of Jane Doe, is a mar-
ried woman who was pregnant at the time of the filing of the
complaint. Defendants are John H. Poelker, Mayor of the
City of St. Louis, Missouri, and R. Dean Wochner, Director of
Health and Hospitals for the City of St. Louis.
Plaintiff brings this cause of action on her own behalf and
on behalf of the entire class of women who reside in St. Louis
— A-20 —
and desire to utilize the services of the St. Louis public hospitals
in order to obtain abortions. Jurisdiction of this Court is in-
voked pursuant to 28 USC 1343, 2201 and 2202, and 42 USC
1983. Plaintiff contends that on two separate occasions dur-
ing August of 1973 she sought an abortion at Starkloff Mem-
orial Hospital, a public hospital run by the City of St. Louis, but
was refused based upon the hospital’s policy against performing
non-therapeutic abortions. Such policy is alleged to be vio-
lative of various constitutional rights, including the right to
privacy within the patient-physician relationship; the right to
obtain medical services; the right to determine whether to bear
children and maintain marital privacy; the right to receive ade-
quate medical advice pertaining to pregnancy; and the right to
equal protection and due process of law. Plaintiff seeks a
judgment declaring invalid all policies and regulations of the
St. Louis public hospitals which restrict the use of their per-
sonnel, services and facilities for the performance of non-thera-
peutic abortions, and requests that defendants be permanently
enjoined from enforcing such policies.
St. Louis operates two general public hospitals, Max C.
Starkloff Hospital and Homer G. Phillips Hospital, designated
City Hospital Numbers 1 and 2, respectively. The policy re-
garding performance of abortions in the city hospitals in em-
bodied in the hospital by-laws, which provide that abortions
shall be performed only for “medical reasons” (Defendants’
Answer to Plaintiff's Interrogatory No. 1). This policy was in
effect at both St. Louis public hospitals at all times relevant to
this lawsuit, and remains in effect today.
At trial plaintiff testified that she has two children and has
miscarried five times since being married in 1965. In 1973 her
husband was arrested for a felony and faced with possible im-
prisonment. In July, 1973, plaintiff missed her menstrual pe-
riod and on August 7th she went to the gynecology clinic at
St. Louis City Hospital Number 1 to determine if she was
— A-21 —
pregnant. At the clinic she was examined by a third-year medi-
cal student assigned to the hospital. Plaintiff testified that she
inquired about abortion services at that time, although the stu-
dent who examined her had no recollection of such a conversa-
tion. That examination disclosed no medical justification for
an abortion.
On August 13th, plaintiff returned to the gynecology clinic
for the results of her laboratory test. Upon being told she was
pregnant she requested that the hospital perform an abortion.
The medical student who examined her on this occasion testi-
fied that he found nothing to indicate that an abortion should
be performed. He stated at trial that he was not aware of the
city’s policy against abortions, but told plaintiff that he did not
know of anyone at the hospital to refer her to that was not op-
posed to abortion for moral reasons. However, he made an
appointment for her to visit the obstetrics clinic the next day.
On August 14, 1973, plaintiff was interviewed by Dr. Wil-
liam J. Ott at the Starkloff Hospital (City Hospital Number 1)
obstetrics clinic, who told her that her medical condition did
not indicate that an abortion was necessary, and that his per-
sonal beliefs precluded him from performing abortions. Plain-
tiff was examined the same day and again on August 15th by
Dr. Ziad Abu Dalu, who confirmed that there were no medical
reasons to justify termination of her pregnancy and that the
hospital could not comply with her request for an abortion.
Although Dr. Dalu did not discuss his personal beliefs with plain-
tiff at that time, the record discloses that as a member of the
Moslem faith Dr. Dald would refuse to participate in an abor-
tion.
The instant suit was filed August 17, 1973. Subsequently,
on August 22nd, plaintiff procured an abortion at a private
St. Louis abortion clinic.
— A-22 —
Plaintiff now contends that the above policy of the St. Louis
City public hospitals contravenes certain recent court decisions
which deal with the constitutionality of abortion regulation. De-
fendants maintain that such a policy is in violation of neither
express nor judicially established constitutional principles. In
addition, defendants state that continued enforcement of this
policy has since 1973 been supported by Missouri statute, to
wit, RSMo 197.032, which was passed in that year and which
provides in part:
“1. No physician or surgeon, registered nurse, practical
nurse, midwife or hospital, public or private, shall be re-
quired to treat or admit for treatment any woman for the
purpose of abortion if such treatment or admission for
treatment is contrary to the established policy of, or the
moral, ethical or religious beliefs of, such physician, sur-
geon, registered nurse, midwife, practical nurse or hos-
pital. No cause of action shall accrue against any such
physician, surgeon, registered nurse, midwife, practical
nurse or hospital on account of such refusal to treat or
admit for treatment any woman for abortion purposes.”
Plaintiff does not seek to challenge RSMo 197.032 in this
proceeding.
Plaintiff has cited to this Court the recent companion Su-
preme Court case of Roe v. Wade, 410 U. S. 113 (1973), and
Doe v. Bolton, 410 U. S. 179 (1973), which established the
principle that a woman has a qualified right to obtain an abor-
tion, which may override the state’s interest in restricting her
decision during early stages of pregnancy. The Court’s at-
tention is also directed to the subsequent Eighth Circuit Deci-
sion of Nyberg v. City of Virginia, 495 F. 2d 1342 (1974).
In that case the Court was presented with a request from two
duly licensed physicians that they be permitted to use the facili-
ties of the public municipal hospital at Virginia, Minnesota, in
— A-23 —
order to perform abortions on their patients who desired such
services. Although plaintiffs were members of the hospital
staff, they were precluded from performing abortions there by a
hospital resolution similar to that in effect at the St. Louis City
public hospitals.
In Nyberg the Eighth Circuit Court of Appeals first stated
that the abortion procedure was no more complicated than other
surgical procedures which the plaintiff-physicians were per-
mitted to perform at the hospital. In ruling in favor of the
doctors, the Court went on to say at page 1346:
“It would be a nonsequitur to say that the abortion de-
cision and its effectuation is an election to be made by the
physician and his patient without interference by the state
and then allow the state, through its public hospitals, to
effectively bar the physician from using state facilities to
perform the operation.”
Plaintiff now claims that under the authority of these decisions,
a public hospital must be required to provide facilities and per-
sonnel to any woman requesting that such hospital perform an
abortion on her. This Court does not believe that the above
cases were intended to establish such a broad proposition as
that now urged by plaintiff.
In Doe v. Bolton, supra, the Supreme Court invalidated cer-
tain portions of Chapter 26-12 of the Georgia Criminal Code
on grounds that it was over-restrictive of the circumstances under
which a physician could perform an abortion. However, the
Court explained at page 189 that:
“Roe v. Wade, supra, sets forth our conclusion that a
pregnant woman does not have an absolute constitutional
right to an abortion on her demand.” (Emphasis added. )
Furthermore, in Doe the Court let stand section 26-1202(e)
of the Georgia statute which provided as follows:
—_s
“Nothing in this section shall require a hospital to ad-
mit any patient under the provisions hereof for the pur-
pose of performing an abortion, nor shall any hospital be
required to appoint a committee such as contemplated
under subsection (b)(5). A physician, or any other per-
son who is a member of or associated with the staff of a
hospital, or any employee of a hospital in which an abortion
has been authorized, who shall state in writing an objection
to such abortion on moral or religious grounds shall not
be required to participate in the medical procedures which
will result in the abortion, and the refusal of any such per-
son to participate therein shall not form the basis of any
claim for damages on account of such refusal or for any
disciplinary or recriminatory action against such person.”
With regard to this provision, which is very similar to RSMo
197.032, the Supreme Court stated at pages 197-198 of its
opinion:
“Under § 26-1202(e), the hospital is free not to admit
a patient for an abortion. * * * Further, a physician or any
other employee has the right to refrain, for moral or re-
ligious reasons, from participating in the abortion pro-
cedure. * * * § 26-1202(e) affords adequate protection
to the hospital * * *.” (Emphasis added. )
It is, therefore, axiomatic that no physician or other hospital
employee may be compelled to perform an abortion in viola-
tion of his personal beliefs. Nyberg merely held that where a
physician on the staff of a public hospital desired to perform a
non-therapeutic abortion, the state could not place an absolute
bar on that decision. The Court concluded at page 1347 of that
opinion:
“[W]hile we propose to fashion no specific procedures
which must be followed nor to require any individual staff
— A-25 —
members to participate in abortion procedures, we do so
hold that the hospital facilities must be made available for
abortion services, as they are for other medical procedures,
to those physicians and their patients who have a right to
and request such facilities.” (Emphasis added. )
A careful reading of the Nyberg decision discloses that it
falls far short of holding that a hospital, albeit open to the pub-
lic, must be forced to furnish physicians for women desiring to
obtain abortions. The Court was careful to point out that:
“Contrary to the view taken by appellant, Roe and Doe
do not suggest and no hospital need provide facilities for
an abortion merely upon a mother’s demand.” (Emphasis
added.) 495 F. 2d at page 1346, footnote 5.
In the instant case this Court is not presented with a request
from any physician desirous of using the St. Louis City hospital
facilities in order to perform an abortion upon his patient. Nor
is there anything in the record to show that there is any
physician presently on the staff of either public hospital in St.
Louis who is willing to admit the plaintiff as his patient for such
a purpose. To the contrary, all of the medical personnel who
examined plaintiff at Starkloff Hospital stated emphatically that
they hold strong personal beliefs against abortion, and at one
point plaintiff was told that there was no one to refer her to
who was willing to perform such a procedure in the absence of
any medical justification.
In effect, plaintiff is asking this Court to hold that the City
of St. Louis must provide someone to take care of any woman
who requests an abortion at one of its hospitals. Such a holding
would be clearly contrary to established constitutional principles,
and this Court will issue no order designed to have such an
effect.
— A-26 —
This memorandum opinion is adopted by the court as its
findings of fact and conclusions of law, and the clerk of the
Court is directed to prepare and enter the proper order finding
for the defendanis.
/s/ ROY W. HARPER
U. S. District Judge
United States Court of Appeals
for the Eighth Circuit
St. Louis, Mo. 63101
April 14, 1975
Robert C. Tucker, Clerk
Mr. Jack L. Koehr
City Counselor
Room 314, City Hall
1200 Market Street
St. Louis, Missouri 63103
Re: No. 75-1069. Doe v. Poelker.
Dear Sir:
Enclosed herewith, for use of counsel, printed copy of the
opinion of this Court filed today in the above case. Judgment
of this Court in accordance with the opinion is also entered
today.
Very truly yours
/s/ ROBERT C. TUCKER
Clerk
enc.
—_—.
United States Court of Appeals for the Eighth Circuit
No. 75-1069
Jane Doe, et al., )
Appellants,
Appeal from the
John H. Poelker, Mayor of the City | United States District
of St. Louis, Missouri, and R. Dean > Court for the
Wochner, M.D., Director of the De- Eastern District
partment of Health and Hospitals of Missouri
and Acting Hospital Commissioner
of the City of St. Louis, Missouri,
Appellees. _
Submitted: March 14, 1975
Filed: April 14, 1975
Before Van Oosterhout, Senior Circuit Judge, Ross, Circuit
Judge, and Talbot Smith, Senior District Judge.*
Ross, Circuit Judge.
Jane Doe,' a pregnant resident of St. Louis, Missouri, at the
_ * Talbot Smith, Senior District Judge, Eastern District of Mich-
igan, sitting by designation.
! “Jane Doe” is a pseudonym for the actual plaintiff. It has been
utilized throughout this litigation to protect her true identity in order
to avoid harassment due to the controversial nature of subject
matter of this action.
— A-28 —
time the lawsuit was filed, brought this civil rights class action
under 42 U.S.C. § 1983 against John H. Poelker, the Mayor
of St. Louis, and Dr. R. Dean Wochner, the Director of the
Department of Health and Hospitals and Acting Hospital Com-
missioner of St. Louis [hereinafter referred to collectively as
“the city”) seeking, in her broadly worded complaint, declara-
tory and injunctive relief
against the existence, application, implementation and en-
forcement of express and implied policies, rules, regula-
tions, procedures and pract °s barring, thwarting, limit-
ing and infringing upon the « lization of the personnel,
facilities and services of the general, public hospitals of the
City of St. Louis, Missouri . . . for the performance of
abortions.
The jurisdiction of the federal court was based on 28 U.S.C.
§ 1343.
On March 22, 1974, the district court* sustained a motion
by the city and dismissed the complaint for lack of standing
and mootness. On appeal this Court reversed and remanded
for further proceedings. Doe v. Poelker, 497 F.2d 1063, 1067
(8th Cir. 1974).
Accordingly, a trial to the court was held on November 25,
1974, and on January 13, 1975, the court issued a memoran-
dum and order finding for the city and dismissing the com-
plaint with prejudice. The trial judge appears to have agreed
with Doe that there is a city policy prohibiting abortions, but
he never considered the constitutionality of such a policy be-
cause he felt that Doe had failed to establish that the policy had
been applied to her. Instead, it was his opinion that Doe had
merely been refused an abortion by certain physicians at the
* The Honorable Roy W. Harper, Senior United States District
Judge, Eastern District of Missouri.
— A-29 —
city hospital's obstetrics-gynecology clinic because of their own
personal moral and ethical beliefs on that subject. We reverse.
The incidents giving rise to this litigation occurred during
August, 1973. Doe, the mother of two who was in severe finan-
cial straits and who had reason to fear that her husband might
be sent to prison, suspected she might be pregnant. She had
had five prior miscarriages. She went to the gynecology clinic
at Max C. Starkloff Hospital, owned and operated by the city,
and was examined by a third-year medical student assigned to
the hospital. Although the student did not recall the conversa-
tion, Doe testified that she asked him at that time if she could
obtain an abortion at the city hospital and that he had responded
that it could not be done because it was against hospital policy.
Doe returned to the clinic six days later for the results of the
laboratory pregnancy test, and when informed by another medi-
cal student who was examining her ‘hat the results was positive
she requested an abortion at the hospital. The student indicated
that he had personal convictions against abortions and that he
knew of no one at the city hospital to whom to refer Doe. How-
ever, an appointment was made for the next day at the ob-
stetrics clinic.
At that clinic Doe was seen by Dr. William J. Ott, at that
time the chief resident from St. Louis University in the obstetrical
service at the city hospital. She told Dr. Ott that she desired
an abortion. Dr. Ott, having strong personal beliefs on the
subject, refused to consider it and refused to give her even a
written statement as to her state of pregnancy. Instead he re-
ferred her to another physician at the clinic, Dr. Ziad Abu Dalu,
who saw her that same day and the next. Both times Doe re-
quested an abortion at city hospital and Dr. Abu Dalu refused,
telling her “that we couldn't do one at City Hospital.” Dr. Abu
Dalu does have personal convictions against abortions, but did
not elaborate them to Doe. Subsequent to the filing of this law-
suit, Doe was aborted at a private clinic in St. Louis.
—_—s
While the students and doctors who saw Doe at the clinic
were aware of her personal family and financial problems none
of them found any “medical reasons” to justify an abortion,
defining such reasons as severe sickness of the patient such as
“severe diabetes,” “severe heart condition” or “something of
that type.” Doe was suffering from cervical fibroid tumors and
polyps, an extremely retroverted uterus and trichomycosis.
The district court impliedly found, and there can be no doubt,
that there is an official St. Louis city policy promulgated by the
mayor prohibiting the performance of abortions in the city-
owned public hospitals for reasons other than to save the mother
from grave physiological injury or death. The city admitted as
much in its answer to the complaint, and the mayor himself
testified that, upon taking office in the spring of 1973, he di-
rected that the existing policy be continued, understanding that
it allowed abortions only if the life of the mother was in danger.*
Additionally, Dr. Wochner stated that such a policy had been
given to him by the mayor to carry out.
In addition to the policy, the evidence reveals that there is a
“procedure and practice” which operates to bar the performance
of abortions at the city’s hospitals—the-method of staffing the
obstetrics-gynecology clinic.‘ The clinic, which is provided by
* It is noteworthy that this specific directive was ee by
Mayor Poelker several months after the Supreme
decisions were announced on January 22, 1973. Roe v. Wade, 410
U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973).
‘ urna Wem comme Gate Ge oh) 8 spe Se
the district judge thought the com t was not broad enough
cover an attack on the staffing of OB-GYN clinic. Ses
The complaint specifically mentions “procedures and
thwart the performances of abortions as being r attac
manner of staffing a ital is certainly a ‘ ieee ond anita”
of that hospital. And, of course, any complaint must be read in the
light of Fed. R. Civ. P. 8(f), which states that “[ajll pleadings
shall be so construed as to do substantial justice.”
The city can hardly complain that it was surprised by the staffing
issue in view of the broad wording of the complaint. It certainly
—_<
the city, at least in part, to care for indigent patients, is staffed
entirely by faculty and students from the St. Louis University
School of Medicine. That university is a Catholic, Jesuit-operated
institution, and its faculty manual calls for the discharge of any
faculty member who engages in “{aJll grave offense in the dis-
charge of University responsibilities, which is clearly against
well-established principles of Catholic morality.” One witness,
a Jesuit professor at the university, testified that the performance
of an abortion by a faculty member would be a “gravely im-
moral [act] by the Catholic standards.” As such, of course, it
would subject him to discharge.
Dr. Frank Ostapowicz, a professor at the School of Medicine
and Chief of Gynecological and Obstetrical services at the city
hospital testified by affidavit that he had told the city’s Director
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.