Appendix — Poelker v. Doe

APPENDIX

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 75-442

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR CERTIORARI! DOCKETED SEPTEMBER 20, 1975

PETITION GRANTED JULY 6, 1976

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 75-442

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

APPENDIX

TABLE OF CONTENTS

I es Si cia wecetcccbecescs l

Complaint for Declaratory Judgment and Injunctive Relief 6

Marshal’s Return of Service ....................-00. 13

Defendant's Joint Answer ........................

68, See

Answers to Interrogatories by Defendant Poelker ......

Eee Oe. 8... ceccecunueap eee ee

Smee Ne. 2 2... ec vesnccs suns s eee ee

Bae FOR. D ... cc vevonseuseue eee

Eumeet Me. 6 .....cccwcessseceneen ee

Bae Me. 5 .....+sccuseeeds onan

Plaintiff's Motion for Summary Judgment ............

Affidavit of Plaintiff Jane Doe, ExhibitA ............

Preliminary Memorandum of Authorities Submitted on Be-

half of Plaintiff in Support of Her Motion for Summary

a ee

Answers to Interrogatories by Defendant Wochner ......

Seer

ok Pee t—s—

8, See

Memorandum and Order Filed January 13, 1975 Is Printed

in Petition for Certiorari at Page A-19ff

Motion for Special Orders to Preserve, Guarantee and Ef-

fectuate Appellees’ Rights to Fair Hearing and Due Proc-

ess of Law Filed in U.S. Court of Appeals for the Eighth

Cisculs Agel} ©, 1076 «2.0 csccussecsebeeee

Appellant's Reply to Appellees Motion ..............

Per Curiam Opinion of the United States Court of Appeals

Sar the Bist Closed... so sidics spss ese

54

PE ee

In the United States District Court

Eastern District of Missouri

Eastern Division

Jane Doe,

Plaintiff,

ie \ No. 73-C-565-(A).

John H. Poelker, Mayor, et al.,

Defendants. |

DOCKET ENTRIES

1973 Proceedings

Aug. 17 Complaint for declaratory judgment and injunctive

relief filed and summons issued.

Sept. 4 Marshal's returns to service of summons / complaint /

interrogatories on defts filed (executed 8-20-73 John

H. Poelker; 8-28-73 R. Dean Wochner, M.D.)

Sept. 21 Defts’ joint answer filed.

Oct. 4 Deft John H. Poelker’s answers to plff's interrogs

filed.

Oct. 5. Piff's motion for summary judgment, with attached

aff. of plff, Jane Doe, and preliminary memorandum

of authorities in support of said motion, filed. Oral

argument requested.

Oct. 10 Answers to plff’s interrogs by deft R. Dean Wochner,

M.D., Director of Health and Hospitals, and Acting

Hospital Commissioner of the City of St. Louis, Mo,

filed.

Aug.

Defts’ motion to dismiss plff's complaint filed.

Memo and Order filed. Motion of defts. to dismiss

for lack of standing is sustd. Cause dismissed. CC to

attys by Ct. Clk.

Notice of appeal of plff fr Memo & Order of 3-22-74

fid. Copy of appeal sent to attorneys for defendants.

Memorandum & Order—tid. cause dismissed with

prejudice.

Piff's Notice of Appea!-—fid.

Memo and Order—fid. no attorney's fees allowed to

piff.

Order—fid that prohibiting abortions is unconstitu-

tional & that Defts’ change their policy on non-

therapueutic abortions. Copies sent to attorney's.

Piff's Notice of Appeal—fid.

GENERAL DOCKET

United States Court of Appeals

for the Eighth Circuit

Eastern District of Missouri

Jane Doe,

Appellant.

VS.

John H. Poelker, Mayor of the City of Coss Me.

St. Louis, Missouri, and R. Dean 74-1232.

Wochner, M.D., Director of the De-

partment of Health and Hospitals

and Acting Hospital Commissioner

of the City of St. Louis, Missouri,

Appellees.

Date Proceedings Filed

Apr. 8 Motion of appellees for special orders to pre-

serve appellees’ rights to fair hearing, etc. Orig

& 5 copies)

Appearance for appellees.

Apr. 11 Reply of appellant to Motion of appellees for

Special Orders, etc.

June 4 Opinion by J. Ross (Pr.Pub.)

10

15

GENERAL DOCKET

United States Court of Appeals

for the Eighth Circuit

Eastern District of Missouri

Jane Doe, et al..

Appellants,

VS.

John H. Poelker, Mayor of the City

Case No.

of St. Louis, Missouri and R. Dean ¢ reget

Wochner, M.D., Director of the ’ .

Dept. of Health and Hospitals and

Acting Hospital Commissioner of

the City of St. Louis, Missouri,

Appellees. -

1975 Proceedings Filed

Apr. 14 Opinion by Judge Ross (printed, published) 12

May 7 Order: (printed, published): petition for rehear-

ing and suggestions for rehearing en banc are

denied: pages 11 and 14 are withdrawn and re-

placed by new pages 11 and 14, attached hereto

and by reference made a part hereof 16

June 2 Order: Pages revised by this Court's order of

May 7 1975 (12, 13 and 14 of this court's

opinion) withdrawn and pages 12 to 20 inclu-

sive, the original of which new pages are at-

tached and by reference made a part hereof.

Because of the change in substance of the attor-

neys fee portion of the opinion made necessary

— se

by Alyeska Pipeline, the appellees are given an

additional 14 days to file a second petition for

rehearing en banc. Such petition shall be lim-

ited solely to the changes made in the section of

the opinion relating to attorneys’ fees, after the

ruling on which, the appellee may. if it so de-

sire, renew its request for stay of mandate pend-

ing appeal.

GENERAL DOCKET

United States Court of Appeals

for the Eighth Circuit

Eastern District of Missouri

Jane Doe, et al., .

Appellants,

VS.

John H. Poelker, Mayor of the City

of St. Louis, Missouri, and R. Dean +

Wochner, M.D., Director of De-

partment of Health and Hospitals

and Acting Hospital Commissioner

of the City of St. Louis, Missouri,

Appellees. |

Case No.

75-1648.

Date Proceedings

1976

Jan. 5 Per curiam opinion (Printed, Published).

24

Filed

In the United States District Court for the Eastern

District of Missouri, Eastern Division

Jane Doe, )

Plaintiff,

VS.

John H. Poelker, Mayor of the City |

of St. Louis, Missouri, |

and Cause No. 73C 565(A)

R. Dean Wochner, M.D., Director |

of the Department of Health and |

Hospitals and Acting Hospital |

Commissioner of the City of St.

Louis, Missouri, |

Defendants. |

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

(Filed August 17, 1973)

Comes now plaintiff and for her cause of action states:

I. Jurisdiction

1. Plaintiff invokes the jurisdiction of this Court under the

First, Fourth, Fifth, Ninth and Fourteenth Amendments to the

United States Constitution; under United States Code, Title 28,

Chapter 85, Section 1343; under United States Code, Title 28,

Chapter 151 (Declaratory Judgments), Sections 2201 and 2202;

and under United States Code, Title 42, Chapter 21, Section

1983.

—

2. The defendants are residents of and are to be found within

this federal judicial district and division.

3. This is an action for a declaratory judgment and perma-

nent injunction against the existence, application, implementa-

tion and enforcement of express and implied policies, rules, reg-

ulations, 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, namely, Starkloff Memorial Hospital located

at 1515 Lafayette within the City of St. Louis, Missouri and

Homer G. Phillips Hospital located at 2601 Whittier within the

City of St. Louis, Missouri, for the performance of abortions.

Il. Parties

4. Plaintiff, Jane Doe, is a citizen of the United States and a

resident and taxpayer of the City of St. Louis, Missouri and was

so at all times hereinafter mentioned. Plaintiff's true identity is

contained in a sealed Affidavit which is in the possession of

plaintiff's counsel. Said Affidavit has been prepared to protect

plaintiff from undue embarrassment and harassment and is avail-

able to the Court at its order and convenience.

5. Plaintiff resides with her husband and their two children,

both of whom are over seven years of age.

6. Plaintiff's husband is unemployed and faces possible con-

viction and imprisonment as a result of a recent felony arrest.

Plaintiff and her husband cannot afford the expense of another

child and plaintiff's consequential loss of employment. Plaintiff

and her family are in severe, financial straits and plaintiff is the

holder of a City of St. Louis hospital clinic card.

7. Since 1965 plaintiff has incurred a minimum of five mis-

carriages and is presently pregnant and within the first trimester

of said pregnancy.

—_

8. During the month of August, 1973, plaintiff on two sep-

arate Occasions requested an abortion at said Starkloff Memo-

rial Hospital but was refused the same by physicians of the ob-

stetrical staff and employees of said hospital, acting within the

course and scope of their position and employment.

9. Said refusals were based upon the stated policy of said

hospitals, as expressed by said physicians, the same being a

blanket prohibition against performing abortions.

10. Plaintiff suffers from cervical, fibroid tumors and polyps,

a retroverted uterus and trichomycosis. On both occasions she

was advised by said hospital, staff physicians to seek an abor-

tion elsewhere and then return to said hospital for an hysterec-

tomy, involving the permanent removal of plaintiff's uterus, ovi-

ducts and ovaries, a procedure recommended by said hospital,

staff physicians based upon her medical and physical condition.

1i. The ordinary and routine medical procedure in plaintiff's

situation is to perform the abortion and hysterectomy in one

surgical procedure, rather than two separate and distinct pro-

cedures, thereby greatly reducing the danger and risk of mor-

tality and morbidity to plaintiff.

12. Plaintiff brings this cause of action on her own behalf

and on behalf of the entire class consisting of pregnant, women

residents of the City of St. Louis, Missouri desiring to utilize

the personnel, facilities and services of the general, public hos-

pitals within the City of St. Louis, Missouri, for the medical

termination of said pregnancy. Said class of pregnant, women

residents is so numerous that joinder of all members is imprac-

tical. There exists substantial questions of law and fact com-

mon to the class and the claims of plaintiff are typical of the

claims of the class. Plaintiff will fairly and adequately repre-

sent the interests of the class.

=

13. Defendant, John H. Poelker, is the duly elected and act-

ing mayor of the City of St. Louis, Missouri, in said capacity

is the chief executive officer of the same and as such exercises

control and authority, both express and implied, over the Di-

rector of Health and Hospitals, the Health Commissioner and

the general, public hospitals of said City, all of whom have a

role in the existence, application, implementation and enforce-

ment of the said policies, rules, regulations, procedures and

practices herein challenged. Said defendant has on numerous

past occasions publicly stated that the medical procedure of

abortion will not be allowed in said city’s general, public hos-

pitals and the force and weight of his office and statements are

largely responsible for the existing situation.

14. Defendant, R. Dean Wochner, M.D., is the duly ap-

pointed and acting Director of the Department of Health and

Hospitals and Acting Hospital Commissioner of the City of St.

Louis, Missouri and in said capacities is the principal and chief

medical official of the same, having the authority and responsi-

bility of creating, defining, applying, implementing and enforcing

all said city’s medical policies, rules, regulations, procedures

and practices affecting the operation of said city’s general, pub-

lic hospitals, including those herein challenged.

Ill. Causes of Action

15. Said express and implied policies, rules, regulations, pro-

cedures and practices herein challenged:

a. Interfere with and deprive plaintiff and her respec-

tive physician of the right to privacy within the patient-

physician relationship and infringe upon said right, the

same being protected and guaranteed by the First, Fourth,

Fifth, Ninth and Fourteenth Amendments to the United

States Constitution;

—

b. Interfere with and deprive plaintiff of her right to ob-

tain and receive reasonable, medical services according to

the highest standards of medical practice, the same being

protected and guaranteed by the First, Fourth, Fifth, Ninth

and Fourteenth Amendments to the United States Consti-

tution;

c. Interfere with and deprive plaintiff of the fundamental

rights of a woman to determine for herself whether to bear

children and to maintain her marital privacy in matters

respecting marriage, family, sex and procreation, the same

being protected and guaranteed by the Fourth, Fifth, Ninth

and Fourteenth Amendments to the United States Consti-

tution;

d. Interfere with and deprive plaintiff of the right to

receive safe and adequate medical advice and treatmert

pertaining to the decision of whether to carry a pregnancy

to term, the same being protected and guaranteed by the

First, Fourth, Fifth, Ninth and Fourteenth Amendments to

the United States Constitution:

e. Interfere with and deprive plaintiff of the equal pro-

tection of the laws by treating similarly situated classes

differently and discriminatorily with no compelling justifi-

cation for said classification, the same being protected and

guaranteed by the Fourteenth Amendment to the United

States Constitution; and

f. Interfere with and deprive plaintiff of due process of

law by arbitrarily denying her the medical procedure of

abortion without justification or cause, thereby subjecting

her life and liberties to increased possibility of loss.

=

V. Relief Prayed

Wherefore, plaintiff prays this Court:

16. Issue a declaratory judgment holding that any and all

express or implied policies, rules, regulations, 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 per-

formance of abortions are in violation of the constitutional rights

of plaintiff and the class of women similarly situated, as pro-

tected and guaranteed by the First, Fourth, Fifth, Ninth and

Fourteenth Amendments to the United States Constitution.

17. Issue a permanent injunction restraining defendants, their

agents, employees, appointees and successors from applying, im-

plementing and enforcing or threatening to apply, to implement

or to enforce said policies, rules, regulations, procedures and

practices herein challenged in derogation of the rights of plain-

tiff and said class, inasmuch as plaintiff and said class have no

clear nor adequate remedy at law and the continued acts of de-

fendants, if not restrained, will continue to cause irreparable

harm and injury to plaintiff and said class.

18. Issue such other and further orders and relief as to the

Court may seem meet and proper and to tax all costs herein to

defendants.

FRANK SUSMAN, of the American

Civil Liberties Union of Eastern Missouri

Attorney for Plaintiff

705 Olive

St. Louis, Missouri 63101

(314) 621-2030

=

RICHARD D. BARON, of the American

Civil Liberties Union of Eastern Missouri

Attorney for Plaintiff

8011 Clayton Road

St. Louis, Missouri 63117

(314) 862-2525

GENE SCHULTZ, of the American

Civil Liberties Union of Eastern Missouri

Attorney for Plaintiff

4355 Maryland

St. Louis, Missouri 63108

(314) 652-6491

BURTON W. NEWMAN, of the American

Civil Liberties Union of Eastern Missouri

Attorney for Plaintiff

705 Olive Street

St. Louis, Missouri 63101

(314) 621-2030

EE

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US™ 285 (Ea 7 1-7

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In the United States District Court

Eastern District of Missouri

Eastern Division

(Title Omitted in Printing)

DEFENDANTS’ JOINT ANSWER

(Filed September 21, 1973)

Come now the defendar*® and make their joint Answer, re-

spectfully stating and inforraing the Court as follows, to wit:

1. Admissions and Denials

1. Deny paragraph 1.

2. Admit paragraph 2.

3. Deny paragraph 3.

4. Defendants are without knowledge or information sufficient

to form a belief as to the truth of the averments in paragraphs

4. 5, 6, 7, 8, 9, 10, 11, 12.

5. Defendants deny paragraph 13; and answer further that

defendant Poelker being Mayor of the City of St. Louis is the

chief executive officer of such City and has State of Missouri

statutory, Charter of St. Louis, and City of St. Louis ordinance,

duties, responsibilities, rights, privileges and authority as such

laws provide.

6. Defendants admit that defendant R. Dean Wochner, M.D.,

is the duly appointed and acting Director of Health and Hospitals

and is acting Hospital Commissioner of the City of St. Louis, but

deny the remainder of the allegations of paragraph 14; and

—

answer further that defendant Wochner as the occupant of said

offices has such duties, responsibilities, rights. privileges and

authority as the laws of the State of Missouri, the Charter and

ordinances of the City of St. Louis provide for such offices.

7. Deny paragraph 15 and each of its dependent paragraphs

a, b, c, d, e, and f.

Il. Further Defenses

8. The performance of abortions for reasons other than for

the physiological grave injury or life of the mother is felonious

under the laws of the State of Missouri, and against the public

policy of such state: and the validity of such legal status of the

laws of the State of Missouri is presently under litigation in the

courts of the United States separate and apart from this action.

9. The hospitals of the City of St. Louis were created and

exist for the care and treatment of the sick, injured, and those

requiring medical services as recognized under the laws of the

State of Missouri, the City of St. Louis, and within the public

policy of the State and City.

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.

11. Abortion, for reasons other than to safeguard the mother

from grave physiological bodily injury or death, has never been

within those medical services rendered by the hospitals of the

City of St. Louis and has been both illegal (as aforesaid) and

outside of, contrary to and prohibited by medical policies and

judgment of the medical authorities of such hospitals.

12. The City and its inhabitants, acting through duly em-

powered representatives, has the right to make reasonable de-

terminations as to what medical services shall be supplied in

—

the public hospitals of such City: and abortion, other than

to protect the mother from grave physiological injury or death,

is a medical procedure which lawfully can and has been reason-

ably excluded from such services given by the City’s hospitals.

13. The plaintiff, and any of her class, has no legal right to

require the City of St. Louis to abort her or their pregnancies

under circumstances where there is no grave threat to her

physiological safety or life.

14. To require the City of St. Louis to abort the plaintiff,

or anv members of her class, under circumstances violative of

the aforesaid laws, public policy and medical judgment, through

the assertion or claim of a United States constitutional right

would be a violation of the Ninth and Tenth Amendments of

the United States Constitution, and a resulting deprivation of

the individual, distributive and collective rights of the people

of the State of Missouri and the inhabitants of the City of St.

Louis to due process of law under the Fifth and Fourteenth

Amendments of the United States Constitution.

15. The plaintiff, and any members of the purported class,

have a clear and adequate remedy at law.

16. The plaintiff. and any members of the purported class,

have failed to state a Federal claim for which relief can be

cranted.

17. Plaintiff, and any members of the purported class are

not entitled to injunction to protect against irreparable harm

since plaintiff and such class have the present capacity and

ability to secure such medical services for abortion at other

medical service facilities or institutions which are performing

abortions for women under plaintiff's aiieged circumstances.

18. The State of Missouri has enacted “House Committee

Substitute for House Bills Nos. 731 and 793,” a true copy of

which is attached hereto and made a part hereof by reference as

—

Defendant's Exhibit No. 1. Such statute provides that no pub-

lic hospital of the State of Missouri shall be required 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 such public hospital. By force and right

conferred by such statute the City of St. Louis in the operation

of its public hospitals (including the Max C. Starkloff Memorial

Hospital), has determined that abortions other than to save

the life of the mother shall not be performed in its hospitals:

as a consequence, neither the plaintiff nor any other pregnant

woman desiring an abortion for reasons other than to save her

life, have any right to have such abortion performed in the City

Hospitals of the City of St. Louis.

19. The United States Government, in all its departments

and through all its officials, is required, to respect and regard

as a rule of decision the positive law of the State of Missouri,

namely, “House Committee Substitute For House Bills Nos.

731 and 793." to accord due process of law to the State of

Missouri and the City of St. Louis in deciding any alleged right

of plaintiff to coerce the violation of such statute by Federal

action in accordance with the Fifth and Fourteenth Amendments

ty the United States Constitution, and according to the modalities

of Title 28, Sections 2281 through 2284, inclusive.

20. The plaintiff is governed by the provisions of “House

Committee Substitute For House Bills Nos. 731 and 793,”

and the State of Missouri has reserved to itself and not delegated

to the United States in accordance with the Ninth and Tenth

Amendments of the United States Constitution, the right to

determine whether abortions shall or shall not be performed in

the public hospitals of the City of St. Louis, a municipal cor-

poration and political subdivision of the State of Missouri.

21. The adjudication of the merits of the issues raised in this

action cannot be made without the presence as a party the City

—_—

of St. Louis, a municipal corporation, the State of Missouri,

and the husband of the plaintiff.

22. Principles of Federal-State relations, comity, and Federal

abstention militate against resolution of the plaintiff's claims by

this Court.

23. Plaintiff has an adequate and sufficient remedy at law.

24. Plaintiff has failed to exhaust adequate and sufficient

remedies existent in the State Courts of the State of Missouri.

25. Plaintiff's claims are not properly within the scope or

purview of the rights and relief to be afforded under 42 U.S.C.

1983.

26. Neither the Court nor the defendants have any present

basis upon which to evaluate the plaintiff's standing as a fit

subject of the equitable powers of this Court.

27. Plaintiff is not properly a representative of a class of

persons entitled to maintain this action.

28. Plaintiff has not demonstrated or shown irreparable

harm or the threat thereof if Federal injunctive relief is denied.

29. All qualified natural persons have an inalienable nat-

ural right to participate in the institution of marriage, which

no government has any lawful right to deny or substantially

interfere with.

30. All natural persons have a natural and inalienable right

to the preservation, continuance of and protection of the in-

stitution of marriage, and no government has any lawful right

to disparage, deny and substantially interfere with.

31. Marriage has an unalterable nature required by its ends

and purposes which cannot be substantially changed, altered,

denied or interfered with without destroying the institution

—

itself and the rights of persons of the society and state in which

they exist.

32. Marriage is an institution essentially composed of a

tripartite relationship of the State, a male as husband and a

female as wife; each party assumes essential legal and natural

obligations and duties, and is possessed of certain rights and

privileges which cannot be abrogated without destroying the

relationship, and in consequence the institution.

33. Marriage has as a part of its essential nature a union of

a male as husband and a female as wife in spiritual and physi-

cal union employing their respective faculties for the begetting

and nurture of children in a family, for perfection of the mem-

bers of the family, the propagation of the human race, the

continuance of the family and the state, and for the welfare

and mutual protection of the individual members of the state,

and the state.

34. The aforesaid institution of marriage in its essential

nature antedates the Common Law of England and was in-

corporated into such Common Law from inception as pos-

sessed of said Judeo-Christian precepts and characteristics,

such institution with its essential nature was a part of the

Colonial Law of England in the United States prior to separa-

tion, and was later included within the highest positive law of

the United States through recognition of inalienable natural

rights of persons and institutions by the Declaration of Inde-

pendence of the United States, later adopted Constitution of

the United States and all amendments thereto, and in the tra-

ditions and fundamental principles of inalienable natural rights

of persons, in the United States and each State of the United

States at all times including the present.

35. The people of the United States, and the people of the

several States of the United States, have by force of the appli-

cation of the Ninth Amendment and the operation of the Tenth

_—_ =

Amendment to the United States Constitution, reserved to

themselves and have not delegated to the United States, its

departments or officials the power to substantially alter, change,

modify or degrade the institution of marriage, by interfering

with or negating one of the essential attributes of such insti-

tution as it is recognized, established and obtains under the

law, traditions and fundamentals of the several States of the

Nation and the positive and common law of the several States.

including the State of Missouri.

36. The people of the United States, and particularly the

people of the State of Missouri, have a natura! right, and a

United States Constitutional right, to have the Government of

the United States, including its judiciary, protect, conserve and

guard the institution of marriage in its essential character afore-

said, and to not disturb, negate and destroy such institution

by purporting to grant to a female within such institution a

unilateral, unconditional right to decide whether to bear chil-

dren resulting from such marriage, and to carry out through

abortion her negative decision.

37. For the Government of the United States to purport to

grant such right to such a female as aforesaid, including plain-

tiff, is a fundamental violation of the natural rights of the

people of the United States and particularly the people of the

State of Missouri, and of the Constitution of the United States

by asserting powers prohibited by Article IX of the Amend-

ments of said Constitution and not delegated but reserved by

the people according to Article X of the Constitution.

38. For the Government of the United States to purport to

grant such right to such female as aforesaid, including plaintiff,

is a fundamental violation of the distributive and individual

natural rights of a male as husband in the marriage relation-

ship and in violation of his individual and distributive rights

as a person entitled to the protection of the laws of the State

=

of Missouri and powers of the people reserved by the Ninth

Amendment and non-delegated pursuant to the Tenth Amend-

ment; and such violations deny each such male the guarantee

of due process of law under the Fifth and Fourteenth Amend-

ments of the United States Constitution.

39. For the United States Government to so alter the in-

stitution of marriage in its essential nature and character would

be a purported amendment of the Constitution of the United

States by a method or way unauthorized by said Constitution

and particularly Article V thereof, in violation of said Ninth

and Tenth Amendments of the United States Constitution and

a violation of the distributive individual rights of the people

of Missouri, and persons, particularly the husband in each

marriage existent of the State of Missouri, to due process of

law under the Fifth and Fourteenth Amendments of the United

States Constitution.

Wherefore, defendants having made good and sufficient an-

swer, they pray that the plaintiff's case be dismissed and de-

fendants be allowed to go hence with their costs herein ex-

pended.

Respectfully submitted,

JACK L. KOEHR

City Counselor

EUGENE P. FREEMAN

Deputy City Counselor

Attorneys for Defendants

Room 314, City Hall

1200 Market Street

St. Louis, Missouri 63103

453-3366

(Affidavit of service omitted in printing.)

—=— —

Defendants’ Exhibit No. 1

First Regular Session

[Truly Agreed to and Finally Passed]

House Committee Substitute for

HOUSE BILLS NOS. 731 & 793

77th General Assembly

AN ACT

Relating to abortions

Be it enacted by the General Assembly of the State of Missouri,

as follows:

Section 1. No physician or surgeon, registered nurse, prac-

tical nurse, midwife or hospital, public or private, shall be

required to treat or admit for treatment any woman for the

purpose of abortion if such treatment or admission for treat-

ment is contrary to the established policy of, or the moral,

ethical or religious beliefs of, such physician, surgeon, regis-

tered nurse, midwife, practical nurse or hospital. No cause of

action shall accrue against any such physician, surgeon, regis-

tered nurse, midwife, practical nurse or hospital on account

of such refusal to treat or admit for treatment any woman for

abortion purposes.

Section 2. No person or institution shall be denied or dis-

criminated against in the reception of any public benefit, as-

sistance 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.

—

Section 3. Any person who shall deny or discriminate

against another for refusal to perform or participate in an

abortion shall be liable to the party injured in an action at

law, suit in equity or other redress.

In the United States District Court

Eastern District of Missouri

Eastern Division

(Title omitted in printing)

ANSWERS TO INTERROGATORIES

(Filed October 4, 1973)

Comes now, John H. Poelker, Mayor of the City of St. Louis,

Missouri, and makes his answers to written interrogatories served

with the Complaint and Summons on August 20, 1973.

Respective of the designations identifying the plaintiff's ques-

tions, I answer stating as follows, to wit:

1. City Hospital rules and regulations exemplified by “by-

laws,”

a.

i) Max C. Starkloff Hospital; adopted March 1972;

ii) Homer G. Phillips Hospital; adopted April 29, 1968,

and revised May 26, 1971.

b.

i) Max C. Starkloff Hospital:

—=

“PART II—RULES AND REGULATIONS

“E. General Rules Regarding Abortions and Sterilizations

“If an operation to accomplish sterilization is recom-

mended by the physician for medical indications, the re-

corded opinion of a knowledgeable consultant should be

obtained.

“If sterilization is requested by the patient and the physi-

cian agrees, consultation is not necessary.

“A valid permission for a sterilization procedure for a

married patient requires the written consent of the spouse

when available.

“Whenever the married patient claims dissertion or for

reasons of mental incompetency a notarized affidavit will

be submitted in lieu of the spouse’s written consent.

“In all cases where sterilization is performed primarily

or results from an indicated operation, it is important that

the patient understand that restoration of fertility is unlikely.

“Therapeutic abortion (the removal with legal justifica-

tion of the human fetus from its mother prior to viability)

will be performed only for medical reasons or indications.

“Prior to the performance of a therapeutic abortion, two

consultants must agree in writing that the medical indica-

tions justify such procedure.”

ii) Homer G. Phillips Hospital:

“Article III, Section 4. Committees

“6. The Abortion and Sterilization Committee consists

of the Chief of Ob-Gyn, a member of his Department and

one additional member of the Medical Staff. It reviews

related problems réferred by members of the Medical Staff.

— .

It reviews the compliance of the staff with the performance

of abortions or sterilizations only as set forth in the rules

and regulations.”

“Rules and Regulations (p. 10)

“21. Therapeutic abortion, the removal with legal justi-

fication of the human fetus from its mother prior to vi-

ability, and procedures designed solely to prevent future

pregnancies shall be performed only under the following

circumstances:

a. Adequate medical reason or justification must

be documented.

b. Two consultants, one of whom must be the Chief

of the Ob-Gyn Service or his deputy must agree in

writing that the medical indications justify such pro-

cedure.

c. The consultants must be members of the Medical

Staff.

d. Whenever the medical indication for the thera-

peutic abortion or sterilization involves a specialty

other than Ob-Gyn, one additional consultant from

that specialty shall be added. All consultants must

agree.

e. The request for therapeutic abortion or steriliza-

tion procedure must be signed by the patient or her

guardian if she is a minor and by her spouse if he is

available and be notarized.

“These provisions do not apply when sterilization is an

incidental result of the surgical treatment of a serious di-

sease.”

2. None. (I am relying upon a statement made personally to

me on September 21, 1973, by Dr. R. Dean Wochner, Director

= —

of Health and Hospitals, and Acting Commissioner of Hospitals,

of the City of St. Louis.)

3. a) It is my understanding that the laws of the State of

Missouri prohibiting abortions other than to save the life of the

mother, are incorporated in and reflected by like rules, regula-

tions and requirements of all of the State of Missouri medical

licensing boards for physicians and hospitals, and these would

prohibit the City’s medical personnel from legally and ethically

performing abortions contrary to such laws and regulations in

the City’s hospitals.

b) Pregnancy not being considered an illness, for the City to

commit any significant part of its medical resources to termina-

tions of pregnancies through abortion, would work to cause a

consequent reduction of care, treatment and services to other

persons suffering from illnesses due to such allocation of the

limited medical resources of personnel facilities, medicines, etc.,

available.

c) The City annually assesses a broad range of sociological

(including medical) needs of its inhabitants, and within its fi-

nancial capabilities and allocates for the relief of such needs,

municipal funds through budget appropriations; the current

allocation of municipal funds for the City’s hospitals do not in-

clude any recognition of any requirement to provide non-thera-

peutic abortions, since such abortions have never before been

considered a legal or an ethical medical procedure which ought

to be provided for by expenditure of public funds; to employ the

resources of various kinds required to the performance of such

abortions would be a diversion and misuse in violation of the

appropriations for the City’s hospitals.

d) Performance of any significant number of non-therapeutic

abortions at the present time when there has been no provision

for the accommodation of the hospital staff, facilities or resources

to such use, and there exists no arrangements for the accommo-

=m 2) a=

dation of the other usual and continuing functions of the hos-

pital to such a change, would be disruptive and would cause an

adverse interference with the normal medical operations of the

City’s hospitals.

4. Yes.

a) On May 21, 1973, at my office in City Hall, Mr. Philip

Sutin, a reporter of the Post-Dispatch newspaper, asked me what

action the City might take in reference to abortions as a result of

a United States Court decision which occurred on May 18, 1973,

holding that the State of Missouri laws on abortion were uncon-

stitutional. As best I can recall, my response was in substance

that it was my intention to maintain the policy at City hospitals

which excludes the performance of abortions for other than

therapeutic purposes. This statement was reported on in the

Post-Dispacth, commencing that day (5-21-73) and repeatedly

thereafter. Further, thereafter, in the course of meetings with

representatives of the various news media and other persons

having some interest in the subject, | have many times and at

various places, repeated the substance of my aforesaid answer

to Mr. Sutin. I have made the same substantive statement (as

later herein recounted) to Dr. R. Dean Wochner, Director of

Health and Hospitals (and Acting Hospital Commissioner), and

the City Counselor, Honorable Jack L. Koehr, in the course of

my discussions of the question of the performance of abortions

in the City hospitals, with these City officials.

I cannot recall, and have no means to establish, the exact

dates. wording, times and places, identities and addresses of

persons, and to whom, when I repeated the above statement to

others (except as noted). But to answer as fully as possible, I

attach the following exhibits, namely:

Exhibit 1; a true copy of a letter sent by me to a Mr.

Thomas A. Watters of 4494 Lindell Boulevard, St. Louis,

Missouri;

=~

Exhibit 2; a news release of my office dated Thursday,

May 24, 1973;

Exhibit 3; a news release of my office dated Thursday,

July 26, 1973;

Exhibit 4; a true copy of a letter I sent by me to a Mrs.

B. Albrecht of 5231 Bancroft Avenue, St. Louis, Missouri,

dated August 28, 1973;

Exhibit 5; a true copy of a letter by me to a Mrs. Pene-

lope Fiedler of 10647 Mentz Hill Acres, St. Louis, Mis-

souri 63128, dated Septem»er 4, 1973.

These exhibits give a truthful representative idea of my utter-

ances. The letters to private persons are representative of such

correspondence with a number of persons varying between one

hundred (100) and one hundred and fifty (150) who wrote to

me on the subject expressing agreement or disagreement with

my statement. Further, tape recordings were made of my news

conferences with representatives of the media; however, these

are kept for only a week (not transcribed) and routinely erased,

and therefore are not available at this time after erasure.

Before I became Mayor, I have no direct recollection of com-

menting on the question of abortions in City hospitals; however,

I am sure that if I was asked I declared my personal opposition

to performing abortions (i.e., non-therapeutic).

5. Yes.

6. On May 19, 1973, at an hour unknown, by telephone I

called Doctor Wochner from my office in City Hall to him at

his office (1625 South 14th Street, St. Louis, Mo.). The occa-

sion for the phone call was the fact that the day before (as re-

ported by the news media) a United States Court in Kansas City

had ruled that the State of Missouri laws prohibiting non-thera-

peutic abortions were unconstitutional and there were con-

temporaneous news media accounts of statements of the At-

—_—

torney General of Missouri and Doctor Wochner, as Director

of Health and Hospitals of the City of St. Louis, about the effect

of the Court's rulings on the respective areas of interest. I under-

stood Doctor Wochner’s remarks in the media to mean that he

was going to commence the offering of non-therapeutic abortion

services in the City’s hospitals. The statements of the Attorney

General were to the effect that an appeal would be made from

the Court's ruling and therefore the case was not final and binding

in Missouri. I discussed the situation with Doctor Wochner and

made clear to him my opposition to changing the policy and

regulations prohibiting non-therapeutic abortions in the City’s

Hospitals. At the time we agreed to meet on the subject at my

office on May 24, 1973, and to have Mr. Koehr, the City Coun-

selor, present for clarification of the legal status of the law relat-

ing to abortions in the City’s hospitals.

On May 24, 1973, a meeting was held in my office (exact

hour unknown) between Doctor Wochner, Mr. Koehr, and me.

as previously arranged. At this meeting the City Counselor ex-

plained initial consideration showed that the legal situation

regarding the rights of the City to prohibit or the duty to make

available non-therapeutic abortions in its hospitals was un-

settled or not fixed. I instructed the City Counselor to continue

his research and consideration of the question. I instructed Doc-

tor Wochner to make no change in the City’s position regarding

non-therapeutic abortions, but to consult with his medical staff

to develop and report to me his recommendations for suggested

changes which would be occasioned if the United States Supreme

Court and the Federal Court in Kansas City decisions are de-

termined to require the performance of such abortions in the

City’s hospitals. A news release was made, exemplified by

Exhibit 2, above.

On July 18, 1973, 1 convened another meeting in my office

(exact hour unknown) betwen Doctor Wochner and Mr. Koehr.

The principal reason for the meeting was to discuss the merits

—

of two Aldermanic Board Bills which had been passed and sent

to me for approval. These Broad Bills were No. 58 and 59,

respectively, relating to licensing abortion clinics, and regulat-

ing abortions performed in the City. I considered Doctor Woch-

ner’s views and recommendations, and Mr. Koehr’s legal opinion

resulting from his office’s research and consideration of legal

authorities; also, incidental to the exchange between us at the

meeting, I again reiterated my previous opposition to the per-

formance of non-therapeutic abortions at the City’s hospitals

unless required by law.

Acting upon the advice of my medical and legal officers, I

approved Board Bill No. 58, and disapproved Board Bill No.

59, on July 26. A news release, stating my reasons was on such

date made, and is exemplified by Exhibit 3, above.

These are three instances in which I gave any instructions

on the question of the performance of non-therapeutic abortions

in the City’s hospitals. Doctor Wochner is the only person I

have given such instructions. Any other statements made by

me in this regard, if made, are at this time unknown and would

have been of a most casual nature and would have been con-

sistent with the context and instructions explicitly set out fore-

going for the three (3) instances; no orders or instructions were

given to others.

Other than as recorded in the exhibits attached, I cannot

accurately recount the exact wording of my remarks or state-

ments.

The identity and location of the persons involved (i.e., Ques.

“c.”) are set out above.

/s/ JOHN H. POELKER

~~

State of Missouri |

City of St. Louis {**

Bef sre me, on this 4th day of October, 1973, John H. Poel-

ker, of lawful age, being first duly sworn, upon his oath, did

say that he is the Mayor of the City of St. Louis, Missouri, and

a defendant in the above-styled case to which the foregoing

instrument relates, and he did further state that his answers in

such instrument are true to the best of his knowledge, infor-

mation and belief.

Subscribed and sworn to before me, this 4th day of October,

1973.

EDGAR L. ESKER

Notary Public

(Seal)

My Commission expires: 11-19-75.

Exhibit No. 1

May 23, 1973

Mr. Thomas A. Watters

4494 Lindell Boulevard

St. Louis, Missouri 63108

Dear Mr. Watters:

Thank you for taking the time to express your concern with

respect to the stand I have taken against abortions.

The recent Supreme Court ruling was not a mandate which

forces all health institutions to make abortion services available.

Rather, it was a ruling which gives health centers a choice to

make such a service available or not as is seen fit.

—

My decision not to allow abortions to be performed in our

two city hospitals is firstly a moral concern which not only

reflects my own belief that it is wrong to take the life of another

human being, but also the belief of the vast majority of the

citizens of Saint Louis. This decision against abortions also

reflects the practical reasoning that the tax dollars of our citi-

zens could be better spent for programs that will improve our

city rather than destroy life.

I am sorry that you are not in agreement with the stand taken

by the City of Saint Louis, but I would hope that you can

understand the reasoning which prompted this decision.

Kind regards.

Sincerely,

Mayor

jv

Exhibit No. 2

From Mayor John H. Poelker

Room 200 City Hall

453-3201

FOR IMMEDIATE RELEASE: Thursday, May 24, 1973

As a result of my conferences today with Dr. R. Dean

Wochner, Director of Health & Hospitals, and Mr. Jack L.

Koehr, City Counselor, we have arrived at the following two

conclusions:

(1) I have asked the City Counselor to research legal decisions

in other states which touch on the question of public responsi-

bility to provide abortions along with other medical services.

=

(2) I have asked Dr. Wochner to develop, in consultation with

his medical staff, a report on what changes would be recom-

mended in the medical staff by-laws in view of the court de-

cisions affecting Missouri's anti-abortion laws. Dr. Wochner,

who would have to approve such changes in the medical staff

by-laws, will consult with me before any such by-law changes

are adopted.

Exhibit No. 3

From Mayor John H. Poelker

Room 200 City Hall

453-3201

FOR IMMEDIATE RELEASE: Thursday, July 26, 1973

Mayor John H. Poelker today announced that he would

continue to oppose abortions in municipal hospitals, but at the

same time signed into a law a measure setting up standards for

privately operated abortion clinics and hospitals.

The Mayor approved a recently passed aldermanic bill (Board

Bill 58) which requires private clinics and hospitals to obtain

Board of Public Service permits to assure proper sanitary and

professional standards for institutions performing abortion serv-

ices. This action was taken on the recommendation of Dr.

R. Dean Wochner, Director of Health and Hospitals.

Also acting upon the recommendation of Dr. Wochner, Mayor

Poelker disapproved a second proposal (Board Bill 59) which

sought to further regulate clinics and hospitals providing abor-

tion services.

Dr. Wochner in his recommendation for a veto on the second

measure said that he agreed with certain provisions of the bill

_—

such as pre-counseling before an abortion and quarterly reports

to the Health Commissioner, but he disagreed with the provision

of the proposal which permitted abortions to be conducted in

clinics up to 17 weeks. Dr. Wochner in a letter to Mayor

Poelker said, “It is my opinion that if any procedures are per-

formed after the first trimester (or approximately 12 weeks) they

should be performed in a hospital and not in an out-patient

facility.”

Dr. Wochner also informed the Mayor in his veto recom-

mendation that some of the detailed list of requirements for

specific equipment and supplies goes “far beyond what is

medically appropriate and comes close to constituting prohibi-

tion through regulation.”

Mayor Poelker said he had reached the decision to continue

to oppose abortions in municipally financed hospitals because:

(1) the City Counselor's Office had been unable to find any

specific applicable court case which required a public institu-

tion to provide abortion services; and (2) because the State

Legislature approved, and Governor Bond has signed, a measure

which states, “No physician or surgeon, registered nurse, prac-

tical nurse, mid-wife or a 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 con-

trary to the established policy of, or the moral ethics or religious

beliefs of such physician, surgeon, registered nurse, practical

nurse, midwife or hospital.”

The Mayor said, “Although I have previously, publicly and

clearly stated that I am personally opposed to abortion, I be-

lieve I have acted responsibly on the basis of the law and the

public need, I believe it to be unwise public policy to provide

abortion services in our institutions when we are frankly not

adequately meeting all the medical requirements of our com-

munity in our hospitals because of budget limitations.”

—

Mayor Poelker said that abortions would continue to be per-

formed in city hospital institutions at the physician's discretion

when such action was necessary to save the life of the mother.

The Mayor's announcement, in effect, prohibits most abor-

tions in the city’s public institutions while on the other hand

approves certain medical health and professional standards for

private institutions and clinics which may wish to provide such

services under the terms of a recently rendered court decision.

Exhibit No. 4

August 28, 1973

Mrs. B. Albrecht

5231 Bancroft Avenue

St. Louis, Missouri

Dear Mrs. Albrecht:

Thank you for your letter. The real issue before the courts

would appear to be whether or not we are required by law to

use tax dollars to perform abortion service.

It is my opinion that abortion is not only morally wrong, but

that the tax dollars of our citizens could be better used for pro-

grams that will enhance and improve our city rather than to

destroy life.

Again, I very much appreciate your letter of support. You

have given me added encouragement to continue in my strong

stand against abortion.

Kind regards,

Sincerely

MAYOR

jv

—_—

Exhibit No, 5

September 4, 1973

Mrs. Penelope Fiedler

10647 Mentz Hill Acres

Saint Louis, Missouri 63128

Dear Mrs. Fiedler:

Thank you for your very kind words in support of my stand

against abortion.

My decision not to allow abortions to be performed in our

two city hospitals is a moral concern which reflects not only

my own strong belief that it is wrong to take the life of another

human being, but the belief of the vast majority of the citizens

of Saint Louis as well.

This decision against abortions also reflects the practical rea-

soning that the tax dollars of our citizens could be better spent

for programs that will enhance and improve our city rather

than to destroy life.

Again, thank you for your support in this controversial issue.

You have given me added encouragement to continue in this

Strong stand against abortion.

Kind regards.

Sincerely

MAYOR

REM ‘als

_—

United States District Court

Eastern District of Missouri

Eastern Division

(Title omitted in printing)

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

(Filed October 5, 1973)

Come now plaintiff, Jane Doe, and pursuant to Rule 56 of

the Federal Rules of Civil Procedure moves for summary judg-

| ment against defendants as prayed in her Complaint, inasmuch

as the pleadings heretofore filed and the Affidavit marked “Ex-

hibit A” and attached hereto, show that there are no genuine

issues as to any material facts and that plaintiff is entitled to

judgment as a matter of law.

FRANK SUSMAN

SUSMAN WILLER & RIMMEL

Attorneys for Plaintiff

705 Olive Street—Suite 1212

St. Louis, Missouri 63101

(314) 621-2030

(Affidavit of service omitted in printing)

Exhibit “A”

AFFIDAVIT OF PLAINTIFF, JANE DOE

Comes now Affiant, Jane Doe, and states that she submits

this Affidavit in support of “Plaintiff's Motion for Summary

—_

Judgment” to which it is attached as “Exhibit A” and made a

part thereof. Said Affiant further states:

1. She is a citizen of the United States and a resident and

taxpayer of the City of St. Louis, Missouri and was so at all

times hereinafter mentioned. Plaintiff's true identity is con-

tained in a sealed Affidavit which is in the possession of plain-

tiffs counsel, Said Affidavit has been prepared to protect plain-

tiff from undue embarrassment and harassment and is available

to the Court at its order and convenience.

2. She resides with her husband and their two children, both

of whom are over seven years of age and under sixteen years

of age.

3. Her husband is unemployed and faces possible conviction

and imprisonment as a result of a recent felony arrest. She and

her husband cannot afford the expense of another child and

plaintiff's consequential loss of employment. She and her family

are in severe financial straits and she is the holder of a City of

St. Louis hospital clinic card.

4. Since 1965 she has incurred a minimum of five miscar-

riages and at the time of filing this cause was pregnant and

within the first trimester of said pregnancy.

5. During the month of August, 1973, she on two separate

occasions requested an abortion at said Starkloff Memorial Hos-

pital but was refused the same by physicians of the obstetrical

staff and employees of said hospital, acting within the course

and scope of their position and employment.

6. Said refusals were based upon the stated and admitted

policy of said hospitals, as expressed by said physicians, the

same being a blanket prohibition against performing abortions,

= =

7. She suffers from cervical, fibroid tumors and polyps, a

retroverted uterus and trichomycosis. On both occasions she

was advised by said hospital, staff physicians to seek an abor-

tion elsewhere and then to return to said hospital for an hys-

terectomy, involving the permanent removal of her uterus, ovi-

ducts and ovaries, a procedure recommended by said hospital,

staff physicians based upon he: medical and physical condition.

8. She has been advised by a private physician that the or-

dinary and routine medical procedure in her situation is to

perform the abortion and hysterectomy in one surgical pro-

cedure, rather than two separate and distinct procedures, thereby

greatly reducing the danger and risk of mortality and morbidity

to her.

9. The present and real threat by defendants to implement

and to enforce the policy herein challenged deters said plain-

tiff from receiving medical care in a manner beneficial for her

health and safety and in a manner consistent with the highest

standards of medical practice.

-s Jane Doe

City of St. Louis

State of Missouri

On this 4th day of October, 1973, personally appeared be-

fore me, an adult female, who being first duly sworn upon

her oath did state that she is the plaintiff in the above encap-

tioned cause, that the above and foregoing Affidavit and the

statements contained therein are true to the best of her knowl-

edge, information and belief and that she executed the same

as her free act and deed and in the pseudonym of “Jane Doe.”

—_—

Subscribed and sworn to before me on the day and year last

above written.

Burton W. Newman

Notary Public

My Commission Expires: June 26, 1976.

(Seal)

In the United States District Court for the Eastern

District of Missouri, Eastern Division

(Title omitted in printing)

PRELIMINARY MEMORANDUM OF AUTHORITIES

Submitted on Behalf of Plain @ in Support of Her

Motion for Summary Judgment

(Filed October 5, 1973)

In recent years, numerous suits have been filed seeking to

compel both public and private hospital institutions to allow

and to offer the medical procedures of sterilization and abor-

tion, although the medical institution had adopted policies re-

fusing to provide the same. The factual and legal context of the

sterilization cases is totally analogous to those involving abortion.

Cases requiring hospitals to provide sterilizations include

Chrisman v. Sisters of St. Joseph (Civil No. 70-430 [D.Ore.

July 22, 1972]); Taylor v. St. Vincents Hospital (Civil No. 1090

[D.Mont. Oct. 27, 1972]); McCabe v. Nassau County Medical

Center, 453 F.2d 698 (2nd Cir. 1971), and Hathaway v. Wor-

— a ee

ee

M68 an

cester City Hospital, 475 F.2d 701i (1st Cir. 1973). As so

aptly noted in Hathaway, supra, at page 706,

“The state interests, recognized by Roe as legitimate, are

far less compelling in this context. Whatever interest the

state might assert in preserving the possibility of future

fetuses cannot rival its interest in preserving an actual fe-

tus, which was found sufficiently compelling to outweigh

the woman's interest only at the point of viability. The state

maintains of course a significant interest in protecting the

health and life of the mother who, as here, cares for oth-

ers whom the state might otherwise be compelled to pro-

vide for. Yet whatever health regulations might be appro-

priate to vindicate that interest, and on the present record

we need not decide the issue, it is clear under Roe and

Doe (410 U.S. 113 [1973] and 410 U.S. 179 [1973]) that

a complete ban on a surgical procedure relating to the

fundamental interest in the pregnancy decision is far too

broad when other comparable surgical procedures are per-

formed.” (Parentheses supplied ).

“In so holding, we are not mandating the city or state to

maintain this hospital, or to retain its present size, staff or

facilities. The hospital is not required to perform all kinds

of non-therapeutic or even all therapeutic surgical proce-

dures. We are merely saying, consistent with the Supreme

Court’s reasoning in Shapiro with regard to welfare pay-

ments, that once the state has undertaken to provide gen-

eral short-term hospital care, as here, it may not constitu-

tionally draw the line at medically indistinguishable surgical

procedures that impinge on fundamental rights.”

Similarly, in cases directly on point requiring public hospitals

to offer abortions the federal courts have had little difficulty in

requiring the same. Doe v. General Hospital of District of Co-

lumbia, 313 F.Supp. 1170 (D.D.C. 1970), affirmed, 434 F.

—=_

2d 423 (D.C.C. 1970), and 434 F.2d 427 (D.C.C. 1970),

and Nyberg v. The City of Virginia, — F.Supp. — (D.Minn.

Aug. 9, 1973). In Nyberg, supra, Judge Neville succinctly

ordered,

“Resolution No. 2606 (prohibiting abortions in the city’s

public hospital) takes no consideration of the separate tri-

mesters of the pregnancy period and is devoid of any ap-

parent awareness of the varying degrees to which public

interests may be imposed upon a pregnant woman in op-

position to her private interests. There can be no other

conclusion but that Resolution No. 2606 flies directly in

the face of the holdings in Roe v. Wade and Doe v. Bolton,

supra, and it therefore must be declared null and void.

The administrators of the hospital will not be ordered to

set up procedures to provide abortion services solely upon

the demand of a pregnant woman without an accompany-

ing doctor's request. That situation is not contemplated in

either Wade 410 U.S. at 153 or Bolton 410 U.S. at 189.

Neither will the court impose its lay opinion upon the

hospital administrators by setting out specific and detailed

procedures by which abortion services will be provided.

Rather, medical techniques are best left to those who are

professionally trained. However, the court does not merely

strike down Resolution No. 2606, but requires the hospital

administrators to take positive steps within a period of 30

days from date hereof to provide abortion services and

facilities to licensed physicians in keeping with the rule

quoted above.

The court does not purport to require individuals to par-

ticipate in the providing of abortion services in contra-

vention of their religious or moral convictions. The relief

granted goes only so far as to require that facilities at this

public institution be provided for abortion services for

those doctors and their women patients who have a right

to them and request them.” (Parentheses supplied).

se Aen ee ee ee ee a ee ee . ee

—_ wo

The present issue is ripe for summary judgment, inasmuch as

plaintiff has alleged the unconstitutionality of a policy by de-

fendants, admitted by them in paragraphs 10, 11 and 12 of

their “Joint Answer”.

FRANK SUSMAN

SUSMAN WILLER & RIMMEL

Attorneys for Plaintiff

705 Olive Street—Suite 1212

St. Louis, Missouri 63101

(314) 621-2030

(Affidavit of service omitted in printing )

In the United States District Court

Eastern District of Missouri

Eastern Division

(Title omitted in printing)

ANSWERS TO INTERROGATORIES

(Filed October 10, 1973)

Comes now, R. Dean Wochner, M.D., Director of Depart-

ment of Health and Hospitals, and Acting Hospital Commis-

sioner, of the City of St. Louis, Missouri, and makes his an-

swers to written interrogatories served with the Complaint and

Summons on August 28, 1973.

Respective of the designations identifying the plaintiff's ques-

tions, I answer stating as follows, to wit:

1. City Hospital rules and regulations exemplified by “by-

laws,”

a)

i) Max C. Starkloff Hospital; adopted March 1972;

ii) Homer G. Phillips Hospital; adopted April 29,

1968, and revised May 26, 1971.

b)

i) Max C. Starkloff Hospital:

“Part II—Rules and Regulations

“E. General Rules Regarding Abortions and Steriliza-

tions

“If an operation to accomplish sterilization is recom-

mended by the physician for medical indications, the

recorded opinion of a knowledgeable consultant

should be obtained.

“If sterilization is requested by the patient and the

physician agrees, consultation is not necessary.

“A valid permission for sterilization procedure for

a married patient requires the written consent of the

spouse when available.

“Whenever the married patient claims dissertion or

for reasons of mental incompetency a notarized affi-

davit will be submitted in lieu of the spouse’s written

consent.

“In all cases where sterilization is performed pri-

marily or results from an indicated operation, it is

important that the patient understand that restoration

of fertility is unlikely.

“Therapeutic abortion (the removal with legal justi-

fication of the human fetus from its mother prior to

viability) will be performed only for medical reasons

or indications.

oe cee oe

—

“Prior to the performance of a therapeutic abortion,

two consultants must agree in writing that the medical

indications justify such procedure.”

c) The legal authority adopting such hospital rules is

the Hospital Commissioner in office at the time of adop-

tion. The rule or rules are usually developed by the medical

staff of the respective hospital and submitted to the Hos-

pital Commissioner for his consideration. Herbert R.

Domke, M.D., was Acting Hospital Commissioner from

August 24, 1966, to January 9, 1971; and R. Dean

Wochner, M.D., was appointed Acting Hospital Commis-

sioner on January i0, 1971, and has held such office to

the present. The foregoing set out rules are referable to

the times these Hospital Commissioners (Acting) held

Office.

d) Each person of the whole medical staff is obligated

to obey such rules; specification of each person would in-

volve the names and addresses of a great number of per-

sons. (Same will be supplied if desired.)

2. None.

3. The technical competence and supporting facilities to

perform the medical procedure of abortion exist at both of the

City’s general hospitals. However, the determination of whether

the hospitals ought to or could perform abortions for the general

public would depend upon a multiplicity of medical administra-

tive factors, some known and others unknown, such as: the

number to be performed: the period in the pregnancy term the

operations would be performed; the complicating other physical

ailments of the patients; the medical complications resulting

irom the abortion itself; the extent of the redeployment of the

personnel and facilities for performance of abortions and the

resulting effect on other services: the additional budgetary fac-

tors; and provision for and application of psychiatry services

would have to be accommodated.

—_— —

4. Yes.

5. a) Mayor A. J. Cervantes; Mayor John H. Poelker; each

at the time was Mayor of the City of St. Louis and had the

address of that office. Mayor Poelker presently occupies such

Office.

»)

i) Mayor Cervantes

On February 23, 1973, the news media gave very

prominent treatment to certain comments of mine

regarding the relation of the United States Supreme

Court decisions relating to abortion. On February 24,

1973, I received a letter from Mayor Cervantes. A

true copy of such letter is hereto attached as a part

of this document, identified as Exhibit 1, and is in-

tended as part of my answer to this question.

ii) Mayor Poelker

On May 19, 1973, Mayor Poelker, understanding

from news media reports of the day prior that I was

about to institute performance of non-therapeutic

abortions in the City’s hospitals, called me on the

telephone at my office and made clear to me that

non-therapeutic abortions were not to be performed

in the City’s hospitals. I cannot recall the Mayor's

exact words but they occurred within the context of

the legal implications of a decision of the United

States District Court in Kansas City the day before.

On May 24, 1973, I attended a meeting with the

Mayor at his office between us and the City Counselor,

Honorable Jack L. Koehr. This meeting was called

to clarify the legal situation regarding abortions in

Missouri and the City’s legal rights and obligations

regarding the same in its hospitals. During the course

ee

ee ee ee <

er

ste TD sit

of the discussions the Mayor again made clear through

words I cannot now recall that I was not to offer

non-therapeutic abortions in the City’s hospitals.

On July 18, 1973, the Mayor again convened a

meeting in his office between we three participants

of the May 24, 1973, meeting. The specific occasion

for the meeting was to consider and advise the Mayor

regarding two Board of Aldermen bills relating to

abortions. The Mayor was considering the merits of

approval or disapproval of these bills. During the

course of our discussions the Mayor again reiterated

his opposition to the performance of non-therapeutic

abortions in the City’s hospitals.

c) The times and place of the Mayors’ orders or directives

to me is included in my answers to subparagraph “b)” of this

question “5.”

6. Yes.

7. a) I have repeatedly related the sense of the two Mayors’

remarks to me to the medical professional and administrative

officers of the City’s hospitals and laboratories. This would

occur when we were assembled at meetings of the “medical

cabinet’ composed of the persons occupying the offices here-

after detailed in Exhibit No. 2. One specific occasion was on

July 30, 1973, when I wrote a letter to Dr. L. V. Mulligan,

Medical Director of City Hospital (i.e., Max C. Starkloff Hos-

pital). The full text of the letter and the subject matter is best

gathered from a true copy of my letter and its attachment set

out as Exhibit No. 3 of these answers.

b) I cannot recall the exact wording of my statements; how-

ever, my answer to question “7, a)” above gives the fair and

truthful sense of each of my statements to all of my subordinates

—

on any occasion when I discussed the subject with them. The

context is likewise fairly disclosed by such answer.

c) See Exhibit No. 2.

d) The Mayors as set out foregoing and no other person.

/8/ R. Dean Wochner, M.D.

State of Missouri a

City of St. Louis

Before me, on this 10th day of October, 1973, R. Dean

Wochner, M.D., of lawful age, being first duly sworn, upon his

oath, did say that he is the Director of Department of Health

and Hospitals, and Acting Hospital Commissioner, of the City

of St. Louis, Missouri, and a defendant in the above-styled case

to which the foregoing instrument relates, and he did further

state that his answers in such instrument are true to the best

of his knowledge, information and belief.

Subscribed and sworn to before me, this 10th day of October,

1973,

John J. Fitz Gibbon

Notary Public

My Commission Expires July 10, 1974.

—_ ~o

Exhibit No. 1

Office of the Mayor City of Saint Louis, Missouri

Alfonso J. Cervantes, Mayor

February 24, 1973

R. Dean Wochner, M.D.

Director of Health and Hospitals

1625 South 14th Street

Saint Louis, Missouri 63104

Dear Dr. Wochner:

1 am hereby issuing to you as the Director of Health and Hos-

pitals in the City of Saint Louis, an Executive Order to sus-

pend all plans to provide Abortion Services, as described in your

announcement of yesterday.

Until such time that it is determined by our Law Department,

in consultation with the U.S. District Attorney's Office, the pre-

cise effect of the United States Supreme Court ruling on the

operations of public hospitals, we will not provide new services

for abortions in our hospitals.

I would ask that you contact the law Department Monday,

and provide them with information that you might have that

would assist them.

Sincerely

s A.J, Cervantes

Mayor

= §0

Exhibit No, 2

City of Saint Louis

Department of Health and Hospitals

Office of the Director

1625 South 14th Street @ St. Louis, Missouri 63104

John H. Poelker R. Dean Wochner, M.D.

Mayor Director

Departmental Cabinet:

Dr. Louis Alvarez ~—~Snodgrass Laboratory

1606 Grattan Avenue

Dr. Helen Bruce —-Room 3, Municipal Courts Bldg.

Dr. Bernard Friedman —Koch Hospital

Koch, Missouri

Dr. Valgard Jonsson — Room 3

Municipal Courts Bidg.

Dr. Virginia Larsen — Chronic Hospital

5700 Arsenal Street

Dr. Manuel Menendez -——Homer G. Phillips Laboratory

2601 North Whittier

Dr. Eugene Mitchell —Homer G. Phillips Hospital

2601 North Whittier

Dr. Leo Mulligan —Home: 665 South Skinker Blvd.

St. Louis, Mo. 63105

Mr. John Noble —Homer G. Phillips Hospital

2601 North Whittier

Mr. John O’Shaughnessy— Chronic Hospital

5700 Arsenal Street

—_

Mr. Lambert Padberg — Hospital Commissioner's Office

1625 South Fourteenth Street

Mr. Thomas Purcell — Koch Hospital—Koch, Missouri

Mr. James Sullivan —~S§t. Louis City Hospital

1515 Lafayette Avenue

Exhibit No. 3

July 30 1973

Memo to: Dr. L. V. Mulligan

Medical Director

City Hospital

From: R. Dean Wochner,M. D.

Director of Health and Hospitals

Re: Approval of Staff By-Laws

This is to indicate my approval of the changes in the by-laws of

the St. Louis City Hospital Medical Staff which were adopted

on June 25, 1973. These changes consisted of deletion of refer-

ence to abortions in the previous set of by-laws rules and regu-

lations, in keeping with recent court decisions.

As you know, however, Mayor Poelker has directed that he

does not want abortions to be performed in the public hospitals

“except when it is deemed necessary to save the life of the

mother”. I am continuing to discuss this matter with the Mayor

in an effort to define a limited set of expanded circumstances

under which abortions might be performed I am particularly

concerned about the situations in which the mother’s health is

threatened by the pregnancy, but in which the physician cannot

—_

be certain that life itself is in jeopardy. I shall keep you in-

formed of any further developments.

RDW:gp

cc—-Dr. Gaetano Bazzano, President

Medical Staff

Enclosure—Approved Minutes of 6/25 meeting

D. General Rules Regarding Surgical Care (Cont. )

1. Except in severe emergencies, the preoperative diagnosis and

required laboratory tests must be recorded on the patient's

medical record prior to any surgical procedure. If not re-

corded, the operation shall be cancelled. In any emergency

the practitioner shall make at least a comprehensive note re-

garding the patient's condition prior to induction of anes-

thesia and start of surgery.

tv

A patient admitted for dental or podiatric care is a dual re-

sponsibility of the dentist or podiatrist and a physician mem-

ber of the medical staff.

3. Written, signed, informed, surgical consent shall be obtained

prior to the operative procedure except in those situations

wherein the patient's life is in jeopardy and suitable signa-

tures cannot be obtained due to the condition of the pa-

tient. In emergencies involving a minor or unconscious pa-

tient in which consent for surgery cannot be immediately

obtained from parents, guardian or next of kin, these cir-

cumstances should be fully explained on the patient's medi-

cal record. A consultation in such instances may be desir-

able before the emergency operative procedure is undertaken

if time permits.

—

4. The anesthetist shall maintain a complete anesthesia record

to include evidence of pre-anesthetic evaluation and post-

anesthetic follow-up of the patient's condition,

we)

. In any surgical procedure with unusual hazard to life there

must be a qualified physician present and scrubbed,

6. All specimens removed at the operation shall be sent to the

hospital pathologist who shall make such examination as he

may consider necessary to arrive at a tissue diagnosis. His

authenticated report shall be made a part of the patient's

medical record.

E. General Rules Regarding Abortions and Sterilizations

If an operation to accomplish sterilization is recommended by

the physician for medical indications, the recorded opinion of

a knowledgeable consultant should be obtained.

If sterilization is requested by the patient and the physician

agrees, consultation is not necessary.

A valid permission for a sterilization procedure for a married

patient requires the written consent of the spouse when available.

Whenever the married patient claims dissertion or for rea-

sons of mental incompetency a notorized affidavit will be sub-

mitted in lieu of the spouse's written consent.

In all cases where sterilization is performed primarily or re-

sults from an indicated operation, it is important that the pa-

tient understand that restoration of fertility is unlikely.

Memorandum and Order of District Court filed January 13,

1975, is printed in the petition for certiorari at pp. A-19-A-26.

an Gian

Memorandum and order of District Court allowing no at-

torney's fees filed August 8, 1975, is printed in the petition for

certiorari at pages A-56-A-59.

Order filed August 8, 1975, that prohibiting abortions is

unconstitutional, etc., is printed in the petition for certiorari at

page A-S5S.

In the United States Court of Appeals

for the Eighth Circuit

Jane Doe,

Appellant-Plaintiff,

vs.

John H. Poelker, Mayor of the City of |

St. Louis, Missouri, and R. Dean No. 74-1232

Wochner, M.D., Director of the De-

partment of Health and Hospitals and

Acting Hospital Commissioner of the

City of St. Louis, Missouri,

Appellees-Defendants. }

|. Motion for Special Orders to Preserve, Guarantee and

Effectuate Appellees’ Rights to Fair Hearing

and Due Process of Law

(Filed April 8, 1974)

Come now Appellees and respectfully move this Honorable

Court for special orders pursuant to Rule 2, of Appellate Pro-

cedure, or otherwise through the power of the Court, efficient to

—_ a

protect Appellees’ rights against having matters and things de-

cided upon appeal against them upon a record of the District

Court in a state of incompletion as to some matters foreign to

the basis for judgment of the District Court due to the Appellees’

legal and actual inability to learn of the truth of such matters

and contest them because of the acts of the Appellant and the

manner of disposition by the District Court. As grounds for

such orders the Court is respectfully advised of the following,

to wit:

1. The Complaint in this case, filed on August 17, 1973,

failed to disclose the identity of the plaintiff (here Appellant)

or any other significant allegation of fact or circumstance from

which Defendants (e.g., here Appellees) could make discovery

as to the claims made by Plaintiff. Such failure was alleged by

Plaintiff's attorneys to be deliberate and intentional at paragraph

4, page 2 of the Complaint. (Copy of Complaint attached hereto

as: Appellees’ Motion I, Exhibit No. 1.)

2. On August 22, 1973, unknown to the Appellees (or the

District Court), Appellant was aborted (per admission).

3. Appellees, on September 21, 1973, did state and inform

the District Court, by motion and suggestions, of Defendants in-

ability to learn any material fact or matters about the Plaintiff

or the circumstances alleged in the Complaint, and as a result

thereof were precluded from making informed pleading response,

preparation for trial, or to defend themselves upon trial, or there-

after. (Copy of Defendants’ Joint Motion for Order Disclosing

Identity of Plaintiff and Submission to Discovery, attached hereto

as: Appellees’ Motion 1, Exhibit No. 2, A; and copy of Sugges-

tions in Support of Defendants’ Joint Motion for Order Disclos-

ing Identity of Plaintiff and Submission to Discovery, attached

hereto as Appellees’ Motion |, Exhibit No. 2, B.)

4. On September 21, 1973, Appellees did state and advise the

District Court by motion and suggestions of the absence of

— =

necessary and indispensable parties required to defend certain

positive and common law of the State of Missouri in opposition

to the claims of the Complaint, which were to be, and were, set

up in the contemporaneously filed Defendants’ Joint Answer.

(Copy of Defendants’ Joint Motion for Order on Plaintiff to

Join Necessary and Indispensable Parties, attached hereto as:

Appellees’ Motion I Exhibit No. 3, A; and copy of Memorandum

in Support of Defendants’ Motion to Order Joinder, attached

hereto as: Appellees’ Motion |, Exhibit No. 3, B.)

5. On September 21, 1973, Appellees did make and file in

the District Court their Defendants’ Joint Answer, making such

admissions and denials as their, plaintiff caused, limited knowl-

edge permitted, and did further set up said defenses based upon

existent Missouri law. (Copy of Defendants’ Joint Answer at-

tached hereto as: Appellees’ Motion I, Exhibit No. 4.)

6. On October 5, 1973, Appellant did file a motion for sum-

mary judgment claiming that “no genuine issues as to any ma-

terial facts” existed and attached an affidavit of Appellant in

support essentially reciting the matters, without particularizing

detail, claimed in the Complaint and without traversing any

defenses of the Answer, and swearing to the following:

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 beneficial

for her health and safety and in a manner consistent with

the highest standards of medical practice.

The jurat to the foregoing affidavit (including paragraph 9

quoted) was affixed on October 4, 1973, attesting to the fact

that the Appellant (i.e., “Plaintiff’) swore to the truth of the

stated matters as of such date. (Copy of Plaintiff's Motion for

Summary Judgment attached hereto as: Appellees’ Motion I,

Exhibit 5, A; and copy of Affidavit of Plaintiff, Jane Doe, at-

tached hereto as: Appellees’ Motion 1, Exhibit 5, B.) Further,

ee ey

—=

the said jurat was made by a “Burton W. Newman” and a Burton

W. Newman is an attorney of record for appellant in this case.

(See: Complaint, Answer and affidavit jurat. )

7. That at the time of the filing of the aforesaid affidavit

(Appellees’ Motion |, Exhibit No. 5, B) the Appellees had no

specific knowledge of, about, or concerning the allegations of

the Complaint (formally denied by Answer) or of the affidavit

of Jane Doe, and through the failure and refusal of the attorneys

for Jane Doe to disclose the identity of Doe or other significant

factual matters so as to permit ordinary discovery concerning

her claims, and due to the pendency of the Appellees’ motion to

compel disclosure and permit discovery, Appellees were without

lawful means to learn of the truth or falsity of any alleged facts

represented to the Court of, about, or concerning Appellant, and

were thus and thereby deprived, prohibited and foreclosed from

receiving a fair hearing and just determination of the Appel-

lant’s motion for summary judgment which the Court did not

rule upon and at this time has done no legal injury to Appellees.

8. Appellees, in opposition to Appellant's motion for summary

judgment, timely filed with the District Court a memorandum

of suggestions in opposition to such Appellant’s motion, pointing

out the existence of material factual issues and the unfairness

and impossibility due to the aforesaid existing situation with

regard to making any factual counter proof in opposition to the

motion for summary judgment. (Copy of Defendants’ Memor-

andum in Opposition to Motion for Summary Judgment attached

hereto as: Appellees’ Motion I, Exhibit No. 6.)

9. At the time of the filing of Appellant’s motion for sum-

mary judgment, the affidavit thereto attached, taken in considera-

tion of all the other pleadings and suggestions of the Appellant

(e.g., see prayer for injunction of Complaint) had the reasonable

and most probable effect of misleading the District Court as to

material facts of the case, and did so mislead the Appellees, in

that the reasonable and fair intendment of the affidavit (absent

— 58 —

other knowledge) was that the Appellant was at the date of Oc-

tober 5, 1973, pregnant, and that such pregnancy was then

seriously complicated by other related bodily illnesses which re-

quired immediate medical attention, and that such purported

factual matters were known to and asserted by the Appellant's

attorneys of record in the case. Further, at such time (presum-

ably unknown to the Court, and absolutely unknown to the Ap-

pellees) Appellant and Appellant’s attorneys positively knew (if

an admission of February 25, 1974, by Appellant's attorney is

accorded credence) that Appellant was not pregnant in that an

abortion had been committed on August 22, 1973, on her per-

son and that she did not need or require and was incapable of

utilizing the medical services of the City hospitals of the City

of St. Louis and for the Court to so order and adjudge that the

Appellees cause such medical services to be rendered to Appel-

lant would be a physical impossibility and an objective legal

nullity. Appellant’s attorneys did nothing to correct or modify

the aforesaid false understandings induced in the Court and

Appellees as aforesaid.

10. Appellees, being, as aforesaid, totally deprived of and

foreclosed from legal means for learning or discovering the

truth, and in fact without such knowledge of any of the ma-

terial facts of and concerning the Appellant and Appellant's al-

legations, did on February 22, 1974, learn of statements at-

tributed to Appellant's attorneys (or attorney) in the public

news media to the effect that Appellant was not pregnant and

had been aborted. As a consequence, Appellees did on Febru-

ary 25, 1974, file a Motion to Dismiss Plaintiff's Complaint.

(Copy attached hereto as: Appellees’ Motion I, Exhibit No. 7,

A), together with Defendants’ Suggestions on Question of Plain-

tiff's Standing to Sue (copy attached hereto as: Appellees’ Mo-

tion 1, Exhibit No. 7, B), which brought to the Court's notice

the said media hearsay information, the then impossibility of

Appellees to determine the truth or falsity of the information,

and the resulting possibility of the mootness of the case and lack

ety Henn te a

ey

—

of standing of the Appellant. Appellees moved the Court for

an order requiring Appellant to disclose the truth of the Appel-

lant’s condition as to her alleged pregnancy and needs of critical

medical attention.

11. On February 25, 1974, Appellant’s attorneys directed a

letter to His Honor, Roy W. Harper, Judge of the United States

District Court presiding over the Division of the District Court

in which this cause was then pending, which among other things,

disclosed the abortion of Appellant on August 22, 1973. There-

after, the Court sustained Appellees’ motion and dismissed Ap-

pellant’s case on March 22, 1974. (Copy of letter to Judge

Harper's Memorandum and Order of March 22, 1974, with

Exhibit 1 thereof, attached as Appellees’ Motion I, Exhibit

No. 8.)

12. To the date of the filing of this motion Appellees have

been and are presently foreclosed and without legal means unless

relieved by this Court, from discovering the truth about the Ap-

pellant and Appellant's allegations contained in pleadings and

other documents filed in the Courts of the United States and

as a consequence have not had a fair trial or due process of law

in connection therewith.

13. Rule 27, b, of the Federal Rules of Civil Procedures, does

not appear to be adequate to protect the rights of Appellees under

certain contingencies of decision by this Court, the basis for

decision of the District Court, and the unruled upon motion of

Appellees for discovery in the District Court.

Wherefore, Appellees respectfully pray that:

1. This Court enter an order limiting the issue on appeal to

the question of the standing of the Appellant to sue in the Dis-

trict Court or the mootness of the case only; or

2. In denying the order in 1 (one) next above, to order the

Appellant to disclose her identity and residence and submit to

—

discovery as is provided by the Federal Rules of Civil Procedure,

according to such special rules as this Court may determine to

be reasonable and just to both parties; and to fix times to permit

such discovery by Appellees, and to enlarge the record on appeal

to include the fruits of such discovery.

Respectfully submitted,

JACK L. KOEHR

City Counselor

EUGENE P. FREEMAN

Deputy City Counselor

Attorneys for Appellees-Defendants

314 City Hall

St. Louis, Missouri 63103

(Affidavit of service omitted in printing)

In the United States Court of Appeals

for the Eighth Circuit

(Title omitted in printing)

Appellant’s Reply to Appellees’ “Motion for Special Orders to

Preserve, Guarantee and Effectuate Appellees’ Rights

to Fair Hearing and Due Process of Law”

(Filed April 11, 1974)

On April 3, 1974 this Honorable Court, in recognition of the

urgency and gravity of the issues inherent in this cause, issued

an appropriate order accelerating the appellate procedure.

This brief Reply is filed in response to appellees’ “Motion for

Special Orders to Preserve, Guarantee and Effectuate Appellees’

Rights to Fair Hearing and Due Process of Law”, heretofore filed

on or about April 8, 1974.

=~

Appellees’ said “Motion” is a desperate attempt to delay

further and to restrict unduly the appellate process and to fore-

close any possibility of an appellate decision relating to the

merits in said cause. Said “Motion” blatantly and unwarrantedly

accuses appellant's counsel of “misleading the District Court”

(para. 9), claims that appellees “have not had a fair trial or due

process of law” (para. 12) and seeks to limit the options and ju-

risdiction of this Honorable Court during appeal.

Appellees have conveniently ignored the real issue at bar,

i.e., the unconstitutional policy of appellees, admitted to exist

(“Defendants’ Joint Answer”, paras. 10 and 12) and admitted to

be arbitrary in nature (“Answers to Interrogatories” of appellee

Wochner, no. 3).

Appellees have also conveniently chosen to ignore the class

action nature of the suit. At no time during the District Court

proceedings did appellees serve interrogatories upon appellant,

seek to take her deposition, nor file any counter-affidavits to

“Plaintiff's Motion for Summary Judgment”.

Appellees’ “Motion” and the inappropriate relief therein

sought do not enhance the appellate process nor further an

equitable and judicious resolution of the issues at hand.

Wherefore, appellant respectfully prays that appellees’ “Mo-

tion for Special Orders to Preserve, Guarantee and Effec.uate

Appellees’ Rights to Fair Hearing and Due Process of Law”

be overruled forthwith.

FRANK SUSMAN

SUSMAN, SCHERMER, WILLER

& RIMMEL

7733 Forsyth Boulevard, Suite 1100

St. Louis, Missouri 63105

(314) 725-7300

Attorneys for Appellant

(Affiavit of service omitted in printing)

—_—

United States Court of Appeals

for the Eighth Circuit

No. 75-1648

Jane Doe, et al., )

Appellants,

Ve

Appeal from the

John H. Poelker, Mayor of the City of United States Dis-

St. Louis, Missouri, and R. Dean trict Court for t he

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: November 11, 1975

Filed: January 5, 1976

Before Heaney, Webster and Henley, Circuit ‘udges.

Per Curiam.

On June 2, 1975 a panel of this court filed an amended opin-

ion holding that the plaintiffs in this civil rights case, which was

prosecuted as a class action, were entitled to declaratory and

injunctive relief. In addition, the court determined that not-

withstanding the holding of the Supreme Court in Alyeska Pipe-

line Service Co. v. Wilderness Society, 421 U. §. 240 (1975),

plaintiffs were entitled to an award of an attorney's fee against

the defendant, John H. Poelker, Mayor of the City of St. Louis,

Missouri. This court fixed a fee of $3500.00 as compensation

for the services of plaintiffs’ counsel at the appellate level, and

a= 63

remanded the case to the district court with directions to

fix a fee for the services of counsel! in that court. Doe v. Poelker,

515 F.2d 541 (8th Cir. 1975).'

With specific regard to the attorney's fee to be awarded the

court said (515 F.2d at 548):

.. . On remand the district court is directed to deter-

mine attorneys’ fees and to award them to Doe, together

with court costs, against the defendant Poelker for that

portion of the case carried on in that court. This should

be a fair award based on the guidelines listed in Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714, 717-

719 (Sth Cir, 1974).*

Pursuant to the mandate of this court, the district court held

an evidentiary hearing. It found that $9317.50 would be a rea-

sonable fee for the district court services of plaintiffs’ counsel,

but on the basis of a statement appearing in the opinion in the

Johnson case, supra, the district court concluded that no fee

should be allowed since the plaintiffs were not contractually

obligated to pay any fee, fixed or contingent, to their attorney,

An order denying plaintiffs’ application for a fee was entered.

Plaintiffs appeal.

Johnson was an individual and class action brought ultimately

by two Negroes under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e; they claimed racial discrimination in em-

ployment and sought back pay and injunctive relief. The de-

fendant initially objected to the maintenance of the action as a

class suit and also demanded a jury trial on the legal issues pre-

' See also Doe v. Poelker, 497 F.2d 1063 (8th Cir. 1974).

* Senior Circuit Judge Van Oosterhout, a member of the panel,

dissented from so much of the holding as allowed an attorney's fee

at either the appellate or the district court level without a prior find-

of bad faith by the district court.

_

sented by the complaint. The district court upheld the de-

fendant on both ints. Johnson v. Georgia Highway Express,

Inc., 47 F.R.D. 327 (N.D. Ga. 1968). The Court of Appeals

for the Fifth Circuit reversed. Johnson v. Georgia Highway Ex-

press, Inc., 417 F.2d 1122 (Sth Cir. 1969). Thereafter, the

case was tried on the merits, and the plaintiffs prevailed. They

were represented throughout by practicing Georgia lawyers,

some of whom at least were connected with the NAACP, and

by a New York lawyer also associated with the organization

just mentioned. The district court allowed the plaintiffs a sub-

stantial attorneys’ fee which plaintiffs deemed insufficient, and

they appealed.

The Court of appeals was of the opinion that the district court

had not spelled out with sufficient clarity the factors which it

took into consideration in fixing the fee and remanded the case

for reconsideration in the light of twelve specific factors which

the appellate court mentioned.

One of those factors was whether counsel were representing

the plaintiffs on a contingent rather than a fixed fee basis if,

in fact, the parties had made any agreement as to a fee. After

quoting from Clark v. American Marine Corp., 320 F.Supp.

709, 711 (E.D. La. 1970), aff'd, 437 F.2d 959 (Sth Cir.

1971), the court said (488 F.2d at 718):

... In no event, however, should the litigant be awarded

a fee greater than he is contractually bound to pay, if

indeed the attorneys have contracted as to amount.

On the basis of that language the district court reasoned in

the instant case that the obligation of a losing defendant to

pay a judicially imposed attorney's fee to a successful plaintiff

does not exceed in amount the fee that the plaintiff would be

obligated contractually to pay to his lawyer in the absence of

any judicial award, and that where the plaintiff's contractual

obligation to his lawyer is zero, the defendant's obligation with

respect to the court imposed fee is also zero.

mG

We do not think that the language from Johnson, quoted

above, when read in context and in connection with the opin-

ion of the district court in Clark v. American Marine Corp.,

supra, is fairly susceptible to the construction that the court

below evidently placed upon it.

The district court wisely entered his evidentiary findings with

respect to a reasonable fee notwithstanding his conclusion that

such fees could not be awarded. We accept the district court's

determination that in the light of the Johnson factors the sum

of $9317.50 would be a reasonable fee for the services of

plaintiff's counsel in the district court, and we remand the case

with directions to the district court to enier an order awarding

that amount against the defendant Poelker.

Counsel for plaintiffs asks that we award an additional fee

for his services in connection with this appeal. We decline to

do so.

Reversed and remanded.

A true copy.

Attest: Robert C. Tucker

Clerk, U. S. Court of Appeals, Eighth Circuit