Opposition — Poelker v. Doe

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 75-442

JOHN H. POELKER, Mayor of the City of St. Louis, Missouri,

and

R. DEAN WOCHNER, °".D., Director of the Department of Health and

Hospitals and Acting Hospital Commissioner of the

City of St. Louis, Missouri,

Petitioners,

vs

JANE DOE, et al.,

Respondents.

RESPONDENTS’ BRIEF

“In Opposition to Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit”

FRANK SUSMAN

SUSMAN, SCHERMER, WILLER & RIMMEL

7733 Forsyth Boulevard—Suite 1100

St. Louis, Missouri 63105

(314) 725-7300

Attorneys for Respondents

St. Louls Law Printing Co., Inc., 812 Olive Street 63191 314.231.4477

a

TABLE OF CONTENTS

The Questions Presented for Review .................. 1

EEE ee l

TEE Cheb once ceacereoccccccccces l

III. Respondents’ Standing ...................55. I

eee eee e ncn cccusccccsccecs

A. Chronology of Pleadings .....................

2

2

@. Cipemetony GF Facts .... 2. ccc cece ccc cccees 3

CES. eee ce eeeecdesececcccocecce 7

8

DUT MEGWEGR RG GOCcESSe soccer cecccccseccece

I. The Appellate Court Correctly and Properly Re-

versed the District Court’s Decision and Awarded

Judgment to the Respondents on the Merits ...... 8

A. The Factual Pattern of the Exclusion of Abor-

tions as Medical Procedures Performed Within

the Confines of the Public Hospitals of the City

of St. Louis, Missouri, Was Clearly Within the

Scope of Respondents’ Pleadings ........... 8

EELS EES EET OCTET ETE TET 11

C. The Fashioning of Appropriate Relief ....... 19

II. The Appellate Court Correctly and Properly

Awarded Attorneys’ Fees on the Basis of “Bad

Faith” to Respondents’ Counsel ............... 24

III. The Appellate Court Correctly and Properly Ruled

That Respondent Doe Had Standing and the Issue

of Standing Is Herein Untimely Raised ........ 28

EEE EEE 34

TABLE OF CITATIONS

Cases

Alyeska Pipeline Service Co. v. Wilderness Society, et al.,

ae We SD 4605040160650 0000 08neReE Ne 24, 26

Castro, et al. v. Beecher, et al., 459 F.2d 725 (1st Cir.

ED the & th oy ah oleae ar aaa eee aoa eae 21

Chance, et al. v. The Board of Examiners, et al., 458 F.2d

Cf 0. a ee ee er ee 21

Cisneros, et al. v. Corpus Christi Independent School Dis-

trict, et al., 467 F.2d 142 (Sth Cir. 1972), cert. denied,

GaP Gas Ge GED. on cannanenciscnncechwamuses 20

Crossen, et al. v. Attorney General of the Commonwealth

of Kentucky, 344 F.Supp. 587 (E.D.Ky. 1972) ..... 31, 32

Crossen, et al. v. Breckenridge, etc., et al., 446 F.2d 833

(6th Cir. 1971), vacated and remanded on other grounds,

GaP Was CE GPS 6 nce es cetesnscesncdacsens 30, 31

Doe, et al. v. Bolton, etc. et al., 410 U.S. 179

— rerrerrc erry. 10, 11, 13, 14, 16, 17, 22, 30, 33

Doe, et al. v. General Hospital of the District of Columbia,

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

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

Se ME 6 0inbe kd den Laren ee iadeie 15, 25

Doe, et al. v. Hale Hospital, et al., 500 F.2d 144 (ist Cir.

1974), cert. denied, 420 U.S. 907 (1975) .......... 16, 25

Doe, et al. v. Israel, etc., 482 F.2d 157 (1st Cir. 1973) .. 32

Doe v. Mundy, et al., 514 F.2d 1179 (7th Cir. 1975) 16, 23, 25

Doe v. Poelker, etc., et al., 497 F.2d 1063 (8th Cir. 1974) 2

Doe, et al. v. Poelker, etc., et al., 515 F.2d 541 (8th Cir.

SD nob eh nb 088 468k eee eee 2

iii

Eisenstadt, etc. v. Baird, 405 U.S. 438 (1972) .......... 13

Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir.

SY <wlcthiale eter by ame eee eae Oa es 21

Griggs, et al. v. Duke Power Co., 401 U.S. 424 (1971)... 21

Griswold, et al. v. Connecticut, 381 U.S. 479 (1965) .... 13

Hathaway v. Worcester City Hospital, et al., 475 F.2d 701

(Ist Cir. 1973), stay denied, 411 U.S. 929 (1973) 14, 16, 32

McCabe v. Nassau County Medical Center, et al., 453 F.2d

f Loe Sa errrrrr rrr str rts 15

The Moore Company of Sikeston, Missouri, et al. v. Sid

Richardson Carbon & Gasoline Company, 347 F.2d 921

(8th Cir. 1965), cert. denied, 383 U.S. 925 (1966) .... 33

Nelson, et al. v. Heyne, et al., 491 F.2d 352 (7th Cir. 1974),

cert. denied, 417 U.S. 976 (1974) ......... 2.2.2... 19

Newman, et al. v. State of Alabama, et al., 349 F.Supp.

ee A AE, GED 0 oo we Kn cdeunesennsesduetes 19

Nyberg, et al. v. The City of Virginia, et al., 495 F.2d

1342 (8th Cir. 1974), cert. denied, 419 U.S. 891

GSE. kdecnuccccteccsussuvsesaweates 2, 15, 16, 22, 25

O'Connor v. Donaldson, 95 S.Ct. 2486, 45 L.Ed.2d 396

Pre rrrrerrrr iT rrr rer Ts Tree 19

Orr, et al. v. Koefoot, et al., 377 F.Supp. 673 (D.Neb.

PED oc cvtddneddnnedcadetedcceeuasesecvencets 16, 25

Roe v. Arizona Board of Regents, et al., 534 P.2d 285

GREER. GRRE TEPER ccccccesscceseseoceccs 16, 23, 25

Roe, et al. v. Ferguson, et al., 515 F.2d 279 (6th Cir.

BEE onde unktedenn kes udeensseceecnnckeeeneen 27

Roe, et al. v. Norton, et al., — F.2d — (2nd Cir. 1975),

reversing on other grounds, 380 F.Supp. 726 (D.Conn.

ED 6 AehGCi ee eeeeeecessndessosUbesssacseues 27

iV

Roe, et al. v. Wade, etc., 410 U.S. 113

I 10, 11, 13, 14, 16, 17, 18, 22, 30, 32, 33, 34

Santiago v. Colon, et al. (Unreported, D.P.R., No. 74-362,

FE, Gy GD Se oe eusneedcscccdevunceeenvacdas 16, 25

Wallace v. Debron Corporation, 494 F.2d 674 (8th Cir.

te Ucsivecunand sn deaendansceen selene aeons 21

Welsch, et al. v. Likins, et al., 373 F.Supp. 487 (D.Minn.

Dt nuda diced eee aesueneeneennekn Renee 19

Wulff, et al. v. Singleton, etc., 508 F.2d 1211 (8th Cir.

ery 27

Wyatt, et al. v. Stickney, etc., et al., 344 F.Supp. 373

ee ee ee ee ae 19

Statutes

Missouri Revised Statutes, Section 197.032 ........... 23

Other Authorities

Faculty Manual of St. Louis University (Revised September

ED séckilerd edad cknaaiaei nen eesheseduneer 6

The Alan Guttmacher Institute, Provisional Estimates of

Abortion Need and Services in the Year Following the

1973 Supreme Court Decisions: United States, Each State

and Metropolitan Area, New York, 1975 ........... 35

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 75-442

JOHN H. POELKER, Mayor of the City of St. Louis, Missouri,

and

R. DEAN WOCHNER, M.D., Director of the Department of Health and

Hospitals and Acting Hospital Commissioner of the

City of St. Louis, Missouri,

Petitioners,

VS.

JANE DOE, et al.,

Respondents.

RESPONDENTS’ BRIEF

“In Opposition to Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit”

THE QUESTIONS PRESENTED FOR REVIEW

I. Did the Appellate Court Correctly and Properly Decide

the Merits in Reversing the District Court’s Decision?

Il. Did the Appellate Court Correctly and Properly Award

Respondents’ Attorneys’ Fees on the Basis of “Bad Faith”?

III. Did the Appellate Court Correctly and Properly Decide

That Respondent Doe Had Standing and Has the Issue of Stand-

ing Been Untimely Herein Raised?

STATEMENT OF THE CASE

A. Chronology of Pleadings.

On August 17, 1973 respondents filed in said cause No.

73C565(A) their “Complaint for Declaratory Judgment and

Injunctive Relief”, seeking to obtain the free and ready avail-

ability of abortions within the confines of the St. Louis City

public hospitals for women eligible for treatment there.

On March 22, 1974 the District Court entered its ““Memo-

randum and Order” dismissing said cause for lack of respon’

ents standing necessary to pursue the same, as a result of

respondent Doe then no longer being pregnant. “Notice of Ap-

peal” to the Eighth Circuit was duly filed by respondents on

March 26, 1974 and the matter briefed and orally argued by

both parties. On June 4, 1974 respondents were held to have

standing and this cause was “reverse(d) and remand(ed) to the

district court for further proceedings consistent with the views

expressed in this opinion and in our opinion in Nyberg v. City

of Virginia, 495 F.2d 1342 (8th Cir. 1974).” Doe v. Poelker,

etc., et al., 497 F.2d 1063, 1967 (8th Cir. 1974). Rehearing

en banc was denied on June 27, 1974 and a request for stay

was denied by this Honorable Court on July 18, 1974 (Cause

No. A-1320).

On remand, a trial was held on November 25, 1974 and on

January 13, 1975 the District Court entered its “Order” and

“Memorandum and Order” dismissing said cause with prejudice.

“Notice of Appeal” to the Eighth Circuit again was duly filed

by respondents on January 20, 1975. On April 14, 1975 this

cause was reversed upon the merits. The policy of petitioners

as to a blanket prohibition against abortions and the staffing

policies of the city hospitals were all declared unconstitutional.

Doe, et al. v. Poelker, etc., et al., 515 F.2d 541 (8th Cir. 1975).

Rehearing en banc was denied on May 7, 1975 and again

denied on June 14, 1975. A request for stay was denied by

the Honorable Harry A. Blackman on August 5, 1975 and a

similar request for stay was denied by the Honorable Lewis F.

Powell, Jr. on August 26, 1975.

Petitioners’ writ of certiorari was docketed on September 20,

1975.

B. Chronology of Facts.

Respondent Doe on August 7, 1973 was a resident of St.

Louis, Missouri, twenty-six years of age and, although married,

had been separated from her husband since February 1, 1974.

(R. 62). She had two children at that time, a daughter seven

years of age and a son nine years of age. (R. 62). She had no

medical insurance coverage (R. 62-63) and held a city hos-

pital clinic card. (R. 65).

Prior to August 7, 1973, her husband had been arrested and

charged with a crime. (R. 63). Additionally, she had experi-

enced five prior miscarriages. (R. 63; Pls. Ex. 2).

Jane Doe suspected she was again pregnant in late July of

1973 because of a missed menses. (R. 64). She first visited the

gynecological clinic of City Hospital on August 7, 1973. (R. 65).

Although she could not recall the name of the “physician” (R.

66), she specifically requested an abortion at the city hospital.

(R. 65-66). She was informed that an abortion was not possible

because it was contrary to hospital policy. (R. 67). The “phy-

sician” referred her instead to the obstetrical clinic at city hos-

pital and an appointment for August 13, 1973 was made. (R.

67).

The “physician” on this first visit of August 17, 1973, was

Stephen Pandol, then a third year medical student at St. Louis

University. (R. 83). His testimony does not contradict that of

Jane Doe. (See, Pls. Ex. 2).

Jane Doe appeared at the appointment made for August 13,

1973, at the obstetrical clinic of City Hospital (R. 67) and spoke

with Mr. Gregory Totel, a then third year medical student at

St. Louis University. (R. 90). Mr. Totel stated to Jane Doe

the positive results of her pregnancy tests (R. 93-94) and she

requested an abortion at City Hospital. (R. 94). He found no

medical indications for an abortion (R. 91) and such reasons,

if existent, would have been “severe diabetes, a patient with a

severe heart condition, something of that type.” (R. 95). Mr.

Totel indicated he had “personal convictions against the per-

formance of abortions.” (R. 95). He knew of no one at City

Hospital to whom to refer Jane Doe,

“(simply because all the people on our service for one

reason or another did not engage in abortions . . . [for

either] (p)ersonal or religious {reasons|.” (Bracketed ma-

terial supplied). (R. 97). (See, also, Pls. Ex. 2).

On August 14, 1973, she returned and spoke on that occa-

sion with Dr. William J. Ott, from whom she again requested

an abortion. (R. 68). Dr. Ott was then serving as chief resi-

dent from St. Louis University to the obstetrical service at City

Hospital. (R. 99-100). Dr. Ott, because of his personal beliefs

against abortion, even refused to provide her with a written

statement as to her state of pregnancy. (R. 102). Jane Doe

stated to him her desire for an abortion. (R. 104). Dr. Ott

further stated that he had received similar requests from patients

desiring abortions at City Hospital and his response to such pa-

tients had always been the same. (R. 105-106). Dr. Ott re-

ferred respondent Doe to Dr. Ziad Abu Dalu. (R. 102). Dr.

Ott’s medical opinion was that Jane Doe evidenced “no medical

indications for termination of pregnancy” (R. 104); but as he

stated, “as the professional theories and education applied to

me there are no indications for termination of pregnancy.” (R.

109). Lastly, Dr. Ott testified that all medical students at City

Hospital are students at St. Louis University. (R. 107).

— po

The last physician seen by Jane Doe was Dr. Ziad Abu Dalu,

who was the physician to whom Dr. Ott referred her. (R. 69).

She told Dr. Abu Dalu she desired an abortion at City Hos-

pital and he responded it could not be done there. (R. 69, 112,

113). Dr. Abu Dalu saw Jane Doe again on August 15, 1973

and basically the conversation of the prior day was repeated. (R.

71, 72).

Dr. Abu Dalu found no “medical reasons” to justify an abor-

tion for this patient (R. 113) and such reasons would be “(s)evere

sickness of the paitent, severe debilitating diseases that might

affect the mother’s healt or jeopardize her life.” (R. 120). He

further did not refer he: .o another physician for the abortion

“(b)ecause I wouldn't discuss it with any other physician. It’s

a matter of belief and a privacy between a doctor and a patient

and I wouldn't push it to any other physician. It’s unethical.”

(R. 120-121). Dr. Abu Dalu admitted he would refer any other

“medical or surgical procedures” which he was “unable or un-

willing to perform” to another physician. (R. 122-123).

Jane Doe was aborted on August 22, 1973 at the facilities of

Reproductive Health Services, a private medical clinic. (R. 74:

Pls. Ex. 4).

There was vague and illusive testimony during trial about an

cbstetrical-gynecological service at City Hospital operated by

Washington University, although contrary to petitioner Woch-

ner’s statement that the service is staffed exclusively by St.

Louis University. (R. 33). Dr. Frank Ostapowicz, Section Head

of the Obstetrics and Gynecological Service at St. Louis Uni-

versity, referred to the same as existing “maybe in name only.”

(R. 41). Mr. Totel referred to the “theoretical existence” of an-

other staffed service (R. 97), but knew of no physicians associ-

ated with the Washington University service. (R. 98). Finally.

in the nine months of service spent by Dr. Abu Dalu practicing

in the obstetrical-gynecological department of City Hospital, he

—

saw only physicians “known to (him) to be associated with St.

Louis University.” (Parenthetical material supplied). (R. 124).

Respondent Doe’s medical record indicates confirmed cervical

fibroid tumors, polyps, vaginitis, erythema, trichomycosis and

an extremely retroverted uterus. (Pls. Ex. 2).

Reverend Robert Brungs, S.J., a Jesuit priest and teacher at

St. Louis University identified “plaintiffs’ exhibit no. 3” as the

existing “Faculty Manual of St. Louis University” (Revised Sep-

tember 1968). The exhibit provides on page 34 as follows,

“(3) Causes of Termination of Tenured Appointment or of

Non-Tenured Contracts During the Contract Period

The University may institute procedures for the termina-

tion of tenured appointments or current contracts on the

basis of the following causes:

(e) A grave offense in the discharge of University re-

sponsibilities, which is clearly against well-established prin-

ciples of Catholic morality.'*

'4 It should be noted that the offense must be committed

during the discharge of University responsibilities. There is no

reference here to the private and personal life of the faculty

member. Examples of a grave offense committed in the dis-

charge of University responsibilities would be the encourage-

ment of sexual license in a student organization by its faculty

moderator or the performance before students by a member of

the Medical Faculty of an operation that, by Catholic standards,

is clearly and gravely immoral.”

Reverend Brungs testified that “By Catholic standards . . . the

performance of an abortion before students by a member of the

medical faculty (is) a clearly and gravely immoral act”. (R. 58,

59). Dr. Ostapowicz similarly testified (R. 52) and indicated its

application to the medical school faculty. (R. 50. “St. Louis

_—

University is a Jesuit institution” (R. 54) and as the District

Court noted, “(i)t’s certainly admitted St. Louis University is a

Catholic institution”. (R. 14).

INTRODUCTION

Petitioners’ Writ for Certiorari (Pet.) is a last ditch, frenetic

effort by them to deny to the indigent women in the City of St.

Louis, Missouri, free and ready access to the facilities, personnel

and services of the public hospitals for the purposes of abortion.

Petitioners have chosen to ignore the unanimous line of iden-

tical public hospital cases previously decided and in so choosing,

confess their inability to distinguish the same from the situation

at bar.

Petitioners have consistently chosen to attack respondents’

counsel in splenetic fashion throughout the course of these

proceedings. Within their “Petition” they unwarrantedly and

falsely accuse respondents’ counsel of intentionally withholding

evidence (Pet. 10, 32, 40), of procuring respondent Doe’s abor-

tion at their expense (Pet. 12), of trying the case in the news

media (Pet. 12), and of filing a false affidavit (Pet. 13, 32, 40).

Petitioners further attribute to respondents’ counsel motivations

which have no basis in fact or reality. (Pet. 15, 31, 32). All of

petitioners’ emotional and hysterical polemics cannot alter the

fundamental constitutional rights of respondents which the Ap-

pellate Court has resolutely protected.

ARGUMENT

I

The Appellate Court Correctly and Properly Reversed the

District Court’s Decision and Awarded Judgment to the Re-

spondents on the Merits.

This is not, as petitioners would have this Honorable Court

believe, a question of abortion on demand. (Pet. 23). Not a

single abortion has been performed in the St. Louis public hos-

pitals between January 1, 1973 and October 16, 1975. The

factors creating this abhorent condition were the expressed policy

of petitioner Poelker and the staffing policies of the City Hos-

pitals. Both of these issues were clearly presented, briefed, ar-

gued and decided in this cause.

A. The factual pattern of the exclusion of abortions, as medi-

cal procedures performed within the confines of the public hos-

pitals of the City of St. Louis, Missouri, was clearly within the

scope of respondents’ pleadings.

Paragraph 3 of respondents’ “Complaint for Declaratory

Judgment and Injunctive Relief”, filed August 17, 1973, suc-

cinctly although encompassingly, declared,

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

manent injunction against the existence, application, im-

plementation and enforcement of express and implied poli-

cies, 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 fhe City of St. Louis, Missouri, namely, Stark-

loff 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.”

In no manner did respondents at any time indicate or imply

that the entire thrust of their action was to void the unwritten

oral statements of petitioner Poelker, directing that abortions

not be performed within the public hospital facilities of St. Louis,

Missouri unless medical indications necessary to preserve the

life of the patient were indicated.

In fact, the evidence at trial was directed in main to the

staffing policies at Starkloff Memorial Hospital, as well as to

petitioner Poelker’s personal fiat. The issue was the non-per-

formance of abortions, not petitioner Poelker’s religious views.

It is clear that the District Court in its “Memorandum and

Order” managed to sidestep entirely the policy of petitioner

Poelker, thereby avoiding any confrontation with and ruling

upon said policy. The District Court accomplished this evasion

by indirectly finding, although not directly stating, that the

policy never applied to respondent Doe but finding, rather, that

she was refused an abortion by each and every examining

physician or medical student for alternative reasons. 515 F.2d

at p. 542. Thus, while relying exclusively upon these alternative

reasons for the denial of the abortion to justify its decision, the

District Court simultaneously refused to recognize or to accept

these declinations made to respondent Doe as a basis of her

claims.

The District Court stated repeatedly,

“THE COURT: We're not dealing with that. You're deal-

ing with a policy. If you think under the pleading in the

lawsuit I have that we’re going to get into the staffing of

those hospitals, you’re just wrong. We're dealing here with

the policy, and if you think that this Court under the plead-

ings that you have got here—if you want those things, if

—

that’s what you're trying to accomplish, and that’s what I

assumed that you were trying to do, you’ve got another

lawsuit. Now, there’s testimony in addition to that by one

of the people you've got here that one of the sections down

there is staffed by Washington University people. Now, you

indicated in my office sometime that you wanted to do

this. I can tell you in my judgment this lawsuit does not

attack the staffing of those hospitals, does not require them

to staff them in a particular way. This pertains only to a

policy that’s laid down by the Mayor of the City.” (R. 58).

“THE COURT: There’s no need to argue that. We've

been down that before. I so indicated in the office that I

don’t understand them (the pleadings) to be so broad. I

didn’t understand that’s what you even were asking for

originally and I, in my judgment, if that’s what you're after,

that’s a different ball game. . . . You're going to have to do

that in another lawsuit, in my opinion.” (Parenthetical ma-

terial supplied). (R. 60-61).

Respondents from the beginning, since August 17, 1973,

sought to challenge the systematic exclusion of all abortions, the

rights to which were guaranteed by Roe, et al. v. Wade, etc., 410

U.S. 113 (1973) and Doe, et al. v. Bolton, etc., et al., 410 U.S.

179 (1973); regardless of the specific nature assumed by the

various guises of restrictive encumbrances generated by petition-

ers. A reading of Rule of Civil Procedure No. 8(f) that, “(a)Il

pleadings shall be so construed as to do substantial justice” fur-

ther supports respondents’ contention. Petitioners ha’ adequate

notice from the pleadings and throughout the course of this cause

as to the ultimate relief sought by respondents. Petitioners on

no occasion claimed surprise during trial. To have required addi-

tional litigation to achieve the result, which is constitutionally

demanded herein, would have produced substantial justice for

neither party.

As the Appellate Court noted,

“From exchanges which occurred during the trial it appears

that the district judge thought the complaint was not broad

enough to cover an attack on the staffing of the OB-GYN

clinic. We disagree. The complaint specifically mentions

‘procedures and practices’ which thwart the performance of

abortions as being under attack. The manner of staffing a

hospital is certainly a ‘procedure and practice’ of that hos-

pital. And, of course, any complaint must be read in the

light of Fed.F.Civ.P. 8(f), which states that ‘(a)II plead-

ings shall be so constructed as to do substantial justice.’ ”

“The city can hardly complain that it was surprised by

the staffing issue in view of the broad wording of the com-

plaint. It certainly knew that the gravamen was an attack

on everything the city did which had the effect of keeping

abortions from being performed in its hospitals. And when

Doe put on evidence relating to staffing, the city did not

ask for a continuance or attempt to offer any contrary evi-

dence of its own.” 515 F.2d at p. 543 at fn. 4.

B. The merits.

Briefly, the merits may be stated as follows. On January

22, 1973 this Honorable Court rendered its historic decisions

recognizing the constitutional right of women to terminate preg-

nancy in consultation with their physician. Roe, supra and Doe,

supra. It is difficult to recall another decision of modern times

which has had such a profound and intimate effect upon the

lives of so many citizens of our country. Ironically, it was this

very right which was invidiously being denied to women, par-

ticularly to indigent women, of the City of St. Louis, Missouri.

Although accused of “judicial legislation” by many, this

Honorable Court in Roe, supra, was explicit and exacting as to

what states may and may not do to regulate the area of abortion.

This Honorable Court very early in its decision stated,

—=—

“The State has a legitimate interest in seeing to it that abor-

tion, like any other medical procedure, is performed under

circumstances that insure maximum safety for the patient.

. . the State retains a definite interest in protecting the

woman's own health and safety when an abortion is pro-

posed at a late state of pregnancy.” 410 U.S. at p. 150.

This Honorable Court continued,

“As we have intimated above, it is reasonable and appro-

priate for a State to decide that at some point in time an-

other interest, that of health of the mother or that of poten-

tial human life, becomes significantly involved.” 410 U.S.

at p. 159.

“With respect to the State’s important and legitimate

interest in the health of the mother, the ‘compelling’ point,

in the light of present medical knowledge, is at approxi-

mately the end of the first trimester. This is so because of

the now established medical fact, referred to above at p.

149, that until the end of the first trimester mortality in

abortion may be less than mortality in normal childbirth.

It follows that, from and after this point, a State may regu-

late the abortion procedure to the extent that the regulation

reasonably relates to the preservation and protection of

maternal health.” . . .

“This means, on the other hand, that, for the period of

pregnancy prior to this ‘compelling’ point, the attending

physician, in consultation with his patient, is free to deter-

mine, without regulation by the State, that, in his medical

judgment, the patient’s pregnancy should be terminated. If

that decision is reached, the judgment may be effectuated

by an abortion free of interference by the State.” 410 U.S.

at p. 163.

Later, this Honorable Court repeated itself so as to make

its dictates crystal clear,

—

“To summarize and to repeat:

(a) For the stage prior to approximately the end of the

first trimester, the abortion decision and its effectuation

must be left to the medical judgment of the pregnant

woman's attending physician.

(b) For the stage subsequent to approximately the end

of the first trimester, the State, in promoting its interest in

the health of the mother, may, if it chooses, regulate the

abortion procedure in ways that are reasonably related to

maternal health.

(c) For the stage subsequent to viability, the State in

promoting its interest in the potentiality of human life may,

if it chooses, regulate, and even proscribe, abortion ex-

cept where it is necessary, in appropriate medical judg-

ment, for the preservation of the life or health of the

mother.” 410 U.S. at pp. 164-165.

Petitioners through the admitted, prohibitive policies and

practices in regard to abortions, within the publicly, maintained

and publicly, financed hospitals of the City of St. Louis, had

impermissibly intruded into the decision-making privacy of the

indigent woman. This Honorable Court unequivocably denied

to the state or those acting in its behalf the right to dictate

medical policy and procedure in the constitutionally protected

area of abortion, a right the petitioners had blatantly usurped.

Petitioners through their arbitrarily, imposed and continued

policies and practices had attempted to dictate to respondent

and her class, personal decisions in regard to procreation and

sexual mores, retained and guaranteed to them by constitutional

mandates. See: Griswold, et al. v. Connecticut, 381 U.S. 479

(1965); Eisenstadt, etc. v. Baird, 405 U.S. 438 (1972); Roe,

supra; and Doe, supra. This flagrant imposition of the moral

=

values of some upon all was constitutionally impermissible and

its continued force and effect was intolerable.

As so aptly noted in Hathaway v. Worcester City Hospital,

et al., 475 F.2d 701 (ist Cir. 1973), stay denied, 411 U.S.

929 (1973), the Court of Appeals, in voiding a city hospital

policy of forbidding its facilities to be used for sterilization

procedures, held,

“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 fu-

ture fetuses cannot rival its interest in preserving an actual

fetus, 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 protect-

ing the health and life of the mother who, as here, cares

for others whom the state might otherwise be compelled

to provide for. Yet whatever health regulations might be

appropriate to vindicate that interest, and on the present

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

and Doe that a complete ban on a surgical procedure re-

lating to the fundamental interest in the pregnancy deci-

sion is far too broad when other comparable surgical pro-

cedures are performed.”

“Doe therefore requires that we hoid the hospital’s unique

ban on sterilization operations violative of the Equal Pro-

tection Clause of the Fourteenth Amendment.”

“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

procedures. We are merely saying, consistent with the

Supreme Court's reasoning in Shapiro with regard to wel-

=

fare payments that once the state has undertaken to pro-

vide general short-term hospital care, as here, it may not

constitutionally draw the line at medically indistinguish-

able surgical procedures that impinge on fundamental

rights.” 475 F.2d at p. 706. See, also, McCabe v. Nassau

County Medical Center, et al., 453 F.2d 698 (2nd Cir.

1971).

Similarly, is Doe, et al. v. General Hospital of the District of

Columbia, et al., 313 F.Supp. 1170 (D.D.C. 1970), affirmed,

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

C.C. 1970), in which the Appellate Court held that public hos-

pitals could not constitutionally deny abortions to women seek-

ing them. In Nyberg, et al. v. The City of Virginia, et al., 495

F.2d 1342 (8th Cir. 1974), cert. denied, 419 U.S. 891 (1974),

the Eighth Circuit noted,

“The resolution prohibits the use of hospital facilities for

the performing of any abortion which is not necessary to

preserve the life of the mother. Because we find that the

resolution unduly restricts what the United States Supreme

Court has held to be a fundamental right, we are com-

pelled to hold the resolution unconstitutional.” 495 F.2d

at p. 1343.

“The language of Roe v. Wade and Doe v. Bolton ex-

pressed the plain view that the abortion decision and its

implementation is a fundamental right of personal liberty

embraced with the Due Process Clause of the Fourteenth

Amendment and is thereby protected from undue infringe-

ment by the State. In other words, absent compelling cir-

cumstances of state interest, regulation of ‘certain funda-

mental rights,’ including abortion is unconstitutional.” 495

F.2d at pp. 1344-1345.

_~—

“The trial court here, as did the First Circuit in Hathaway,

felt required to hold that an outright ban on nonthera-

peutic abortions (Hathaway dealt with a municipal hospi-

tal’s ban on sterilization operations) was unconstitutional

under the teachings of Doe and Roe. We agree.”

“The record in this case demonstrates no compelling

circumstances which would mandate this hospital’s abor-

tion restricting rules. Nothing on this record indicates that

the performance of abortions will interfere with the nor-

mal hospital routine or require further staff and facilities.

The ban on all abortions other than those to save the

mother’s life serves neither the hospital nor the state. Doe

v. Bolton, supra at 198 .. .”

“The sweeping hospital resolution in question here cannot

withstand the constitutional parameters framed by Doe and

Roe. It would be a nonsequitur to say that the abortion

decision and its effectuation is an election to be made by

the physician and his patient without interference by the

state and then allow the state, through its public hospitals,

to effectively bar the physician from using state facilities

to perform the operation.” 495 F.2d at p. 1346.

The validity of a policy, practice, statute or ordinance, which

results in the arbitrary exclusion of the medical procedure of

abortion from the general field of medical services provided,

is patently and constitutionally defective. In addition to Nyberg

and other cases cited supra, the identical question has been

similarly and unanimously answered in Doe, et al. v. Hale

Hospital, et al., 500 F.2d 144 (1st Cir. 1974), cert. denied,

420 U.S. 907 (1975); Doe v. Mundy, et al., 514 F.2d 1179

(7th Cir. 1975); Santiago v. Colon, et al., (Unreported, D.P.R.

No. 74-362, Aug. 6, 1974); Orr, et al. v. Koefoot, et al., 377

F.Supp. 673 (D.Neb. 1974); and Roe v. Arizona Board of

Regents, et al., 534 P.2d 285 (Ariz.Ct.App. 1975).

—=— =

Respondents did not contend that the staffing of the ob-

stetrical and gynecological department of City Hospital by St.

Louis University medical school faculty and students was

originally designed to foreclose abortions to patients. Never-

theless, abortions without exception have been excluded partially

by reason of physicians’ personally held moral or religious beliefs

and by reason of requiring a degree of medical justification for

abortion, inconsistent with the degree permitted by the United

States Supreme Court in Roe, supra, and Doe, supra. The pre-

January, 1973 effect of such staffing as to an unusually low rate

of sterilizations performed can also be statistically demonstrated.

It is obvious that since January 22, 1973, petitioners had con-

tinued to deal and to play their hand on this issue with a

“stacked deck”, by perpetuating the staffing policies.

To have permitted this situation to continue would not only

have foreclosed the public hospital facilities and barred indigent

women from their constitutional rights; but would have served

to encourage other public hospital facilities to accomplish

similarly through this mode of indirection what they had failed,

when attempted, to achieve directly.

One salient fact belies all of petitioners’ arguments. Not a

single abortion had “been performed at the St. Louis public

hospitals since January | of 1973 to date”. (R. 31). Judicial

notice and common knowledge as to the prevalence of abortion

dramatically illustrated the scope of the problem.

Petitioner Poelker, Mayor of the City of St. Louis, testified

that petitioner Wochner served as his appointee. (R. 3). Prior

to and since April 5, 1973, petitioner Poelker, through petitioner

Wochner, had enforced the policy that no abortions be per-

formed within the city public hospitals unless “the life of the

mother is in danger”. (R. 6). One such reason for adoption of

the policy by petitioner Poelker was “my own personal con-

viction that abortion is murder”. (R. 10). Both petitioners

= —

Poelker and Wochner testified that the policy was enforced

despite the fact that no investigations, studies or surveys were

ever made in regard to: the possibility of providing abortions

and the cost factors involved (R. 11, 28); the availability of

appropriate facilities (R. 12, 28); the availability of trained,

experienced or willing personnel (R. 12, 28, 29); the availability

of arranging with a private medical facility to handle City

Hospital patients (R. 13); or the effect of providing abortions

on existing services presently offered (R. 39, 40). But for the

directions of petitioner Poelker, petitioner Wochner, Director

of Health and Hospitals for the City of St. Louis and Acting

Hospital Commissioner for the City of St. Louis (R. 19, 22-23)

would have provided abortions within the public hospital facili-

ties. (R. 31).

The public hospital facilities did and do provide prenatal

care, postnatal care, childbirth and delivery services, mis-

carriage treatment, dilitations and curettages (D’s and C’s),

hysterectomies and hysterotomies. (R. 29). Petitioner Wochner

further stated that the cost of providing early abortions was less

than the cost of providing childbirth services (R. 30, 31).

Respondents contended that the burden in this cause has

been misplaced by the District Court. Petitioners had admitted

throughout this cause the existence of the policy, the staffing

of the obstetrical and gynecological service and the results, as

evidenced in the very number of abortions performed. At the

very least, the existence of the policies dissuaded significant

numbers of indigent women from even seeking or requesting

abortions at the public hospital facilities.

This Honorable Court in Roe, supra, placed upon petitioners

the burden of justifying the arbitrary and capricious infringe-

ment, which had been in blanket effect for over two years.

“Where certain ‘fundamental rights’ are involved, the

Court has held that regulation limiting these rights may be

aw 19 =

justified only by a ‘compelling state interest, . . . and that

legislative enactments must be narrowly drawn to express

only the legitimate state interests at stake.” 410 U.S. at p.

155.

Petitioners never sought to justify their position and, in fact,

their testimony set out, infra, negates any rational justification.

Rather, petitioners sought to avoid any direct confrontation with

the merits or with the validity of their actions.

C. The fashioning of appropriate relief.

The fashioning by the Appellate Court of appropriate relief,

to include a positive duty upon petitioners to make every and

all reasonable efforts to obtain willing physicians and, in each

and every other manner, to offer the medical, abortion services

to women who desire them, consistent with the manner that

other similar or corresponding medical services are provided,

was not unique. Medical treatment has been mandated under

related circumstances to effect compliance with constitutional

guarantees. See: e.g., Wyatt, et al. v. Stickney, etc., et al., 344

F.Supp. 373 (M.D.Ala. 1972); Newman, et al. ». State of Ala-

bama, et al., 349 F.Supp. 278 (M.D. Ala. 1972); Welsh, et al.

v. Likins, et al., 373 F.Supp. 487 (D.Minn. 1974); Nelson, et al.

v. Heyne, et al., 491 F.2d 352 (7th Cir. 1974), cert. denied,

417 U.S. 976 (1974); and O’Connor v. Donaldson, 95 S.Ct.

2486, 45 L.Ed. 2d 396 (1975).

The fact that the arrangement of staffing the obstetrical-

gynecological department by St. Louis University personnel was

instituted prior to January 22, 1973 did not excuse its continu-

ation; when the patent and obvious effect was to deny to respond-

ents’ class the right to constitutionally, protected medical serv-

ices. The pre-existing nature of such circumstances has never

justified its continuance, after the effective date of laws defining

newly created, legal rights or status.

=

In a school desegregation case, Cisneros, et al. v. Corpus

Christi Independent School District, et al., 467 F.2d 142 (Sth

Cir. 1972), cert. denied, 413 U.S. 920 (1973), the Fifth Cir-

cuit Court of Appeals held that the previously accepted concept

of neighborhood schools would not justify the continued segre-

gation of Mexican-American students, although they lived in a

self-imposed neighborhood, known as the Mexican “corridor”,

and although the pattern of segregation was not statutorily man-

dated.

“(W)e think it clear today beyond peradventure that the

contour of unlawful segregation extends beyond statutorily

mandated segregation to include the actions and policies of

school authorities which deny to students equal protection

of the laws . . .” 467 F.2d at p. 147.

Similarly, the contour of the invasion of respondents’ rights ex-

tends beyond the mere facially void edict of petitioner Poelker;

and includes the actions and policies of both petitioners, which

have accomplished the total exclusion of all abortion procedures

from within the confines of the city’s public hospitals. Although

Cisneros, supra, dealt with racial segregation, its principles are

equally applicable to the segregational exclusion imposed in this

cause upon the class of respondents desiring to terminate their

pregnancies and to receive constitutionally permitted and guar-

anteed medical services within the public hospitals.

“We therefore hold that the . . . segregation that exists

. is unconstitutional—not de facto, not de jure, but

unconstitutional.” 467 F.2d at p. 149.

The school district in Cisneros, supra, had argued that, “in the

absence of a malevolent motive, de facto and not de jure segre-

gation exists” but the Appellate Court disposed of this conten-

tion by stating, “ ‘the factor of malevolent motivation is farther

from the core of invidiousness that condemns explicit . . . dis-

crimination than are the odious effects produced.’ ” 467 F.2d at

p. 150.

oe

Respondents suggest that the standard by which all of peti-

tioners’ “express and implied policies, rules, regulations, pro-

cedures and practices barring, thwarting, limiting and infringing

upon the utilization of the personnel, facilities and services”

(“Complaint”, para. 3) of the public hospitals for the perform-

ance of abortions should be measured, is no less than that em-

ployed to gauge employment discrimination. The for: of dis-

crimination exercised herein by petitioners was total, irrepurable

and arbitrary.

As this Honorable Court stated in the oft-cited Griggs, et al.

v. Duke Power Co., 401 U.S. 424 (1971), regarding employ-

ment policies neutral on their face but discriminatory in prac-

tice,

“(G)ood intent or absence uf discriminatory intent does

not redeem . . . procedures . . . that operate as ‘built-in

headwinds’ for minority groups . . .” 401 US. at p. 432.

The staffing procedures of the city public hospitals may be

viewed as analogous to the “disparate effect” cases, premised

upon Griggs, supra, and which have been widely accepted by

various Circuit Courts of Appeais. See e.g.: Wallace v. Debron

Corporation, 494 F.2d 674 (8th Cir. 1974); Gregory v. Litton

Systems, Inc., 472 F.2d 631 (9th Cir. 1972); Castro, et al. v.

Beecher, et al., 459 F.2d 725 (1st Cir. 1972) and Chance, et al.

Vv. The Board of Examiners, et al., 458 F.2d 1167 (2d Cir.

1972).

In light of the total absence of justification offered by peti-

tioners for the staffing procedures, the validity of the same

could not be sustained. The rationale of the then existing situa-

tion, as amply demonstrated by both the testimony of petitioner

Poelker and of petitioner Wochner, set forth supra, not only

was less than “compelling”, but bordered on the non-existent.

=

The District Court in its “Memorandum and Order” cited

Roe, supra, Doe, supra, and the opinion of the Appellate Court

in Nyberg, supra, to reach its conclusion that,

“In effect, plaintiff is asking this Court to hold that the

City of St. Louis must provide someone to take care of

any woman who requests an abortion at one of its hospitals.

Such a holding would be clearly contrary to established

constitutional principles and this Court will issue no order

designed to have such an effect.” (A. 25).

With due respect, respondents suggest that the District Court

misinterpreted the true meanings of Roe, Doe and Nyberg,

supra, and chose to apply an interpretation far stricter than

that intended by this Honorable Court or by the Eighth Circuit,

respectively. Respondents suggest that the passages cited by the

District Court were mere reaffirmations of this Honorable

Court’s principle in Roe, supra, that,

“This means, on the other hand, that, for the period of

pregnancy prior to this, ‘compelling’ point, the attending

physician, in consultation with his patient, is free to deter-

mine, without regulation by the State, that, in his medical

judgment, the patient’s pregnancy should be terminated.”

410 US. at p. 163.

The right of a hospital not to admit or to treat a patient or any

specific patient is only again a reaffirmation of the same prin-

ciple, more explicitly stated in Doe, supra, that,

“Roe v. Wade, supra, sets forth our conclusion that a preg-

nant woman does not have an absolute constitutional right

to an abortion on her demand.” 410 US. at p. 189.

It is one matter to acknowledge the right of medical institu-

tions and medical personnel to make independent, concurring

opinions as to the advisability of performing any specific and

individual request for an abortion; and, on the other hand, to

exaggerate out of proportion that right into the principle that

~ ——

ene Or ne ee 2 eee

—_— pn

all abortion requests can be denied in arbitrary fashion by a

policy with the inevitable effect of excluding any physician will-

ing to perform a non-therapeutic abortion.

The issue of Missouri Revised Statute, Section 197.032,

raised by the District Court in its “Memorandum and Opin-

ion” (A-22) and by petitioners (Pet. 7) was adequately dealt

with in Doe v. Mundy, etc., et al., 514 F.2d 1179, 1182 (7th

Cir. 1975), where the Appellate Court stated,

“First, defendants argue that since the hospital’s pol-

icy was promulgated under an enabling state statute, the

plaintiffs are attempting to enjoin operation of the stat-

ute itself without convening of the three-judge court re-

quired by 28 U.S.C. § 2281. The statute, Wis. Stat.

§ 140.42, reads in its relevant part:

‘(1) No hospital shall be required to admit any pa-

tient or to allow the use of the hospital facilities

for the purpose of performing a sterilization proce-

dure or removing a human embryo or fetus.’

Defendants’ argument must fail because plaintiffs do not

seek state-wide injunctive relief against the operation of

a statute; they seek only to enjoin the enforcement of

one hospital’s rule. Although the conclusion that the

statute is unconstitutional may logically follow from the

ruling of the District Court, this result does not mean

a three-judge court is required. Our conclusion is sup-

ported by McCrimmon v. Daley, 418 F.2d 366, 368-369

(7th Cir. 1969), which held that the granting of injunc-

tive relief against the operation of a city ordinance pro-

mulgated under a state enabling statute did not require

the convening of a three-judge court..”

Similarly is Roe v. Arizona Board of Regents, et al., 534 P.2d

285, 288 (Ariz.Ct.App. 1975), and the Appellate Court's

discussion of the same issue below at 515 F.2d at pp. 545-

546 at fn. 7.

II

The Appellate Court Correctly and Properly Awarded At-

torneys’ Fees on the Basis of “Bad Faith” to Respondents’

Counsel.

Petitioners erroneously claim that the Appellate “Court spe-

cifically rejected respondent’s suggestion of the alternative

ground of bad faith” (Pet. 34). This is simply untrue. The

Appellate Court on April 14, 1975, stated,

“However, in light of our determination that attorneys’

fees are to be awarded under the ‘private attorney gen-

eral’ theory, we need not and do not decide whether or

not the actions of the city underlying this litigation and

during the course of it call for application of this second

exception.” (A-37 at fn. 9).

The question of “bad faith” was reserved and not rejected by

the Appellate Court. The Appellate Court had more than

ample and uncontroverted evidence on which to base its de-

termination of bad faith, only a minor portion of which it set

forth in the record. Manifestly, there is no clear abuse of

discretion to justify in any manner the setting aside of such

award. The Appellate Court refused to reconsider said award

en banc on June 14, 1975. The Appellate Court in its assess-

ment of attorneys’ fees and costs against only petitioner Poel-

ker, deliberately excluded petitioner Wochner from liability

for the same; having determined that “bad faith” had not

been displayed by the latter. 515 F.2d at p. 548 at fn. 9.

This Honorable Court in Alyeska Pipeline Service Co. Vv.

Wilderness Society, et al., 421 U.S. 240 (1975), recognized

the clear and specific exception to the general principle therein

set forth,

“Also, a court may assess attorneys’ fees for the ‘willful

disobedience of a court order . . . as part of the fine to

a

be levied on the defendant, Toledo Scale Co. v. Com-

puting Sale Co., 261 U.S. 399, 426-428 (1923),’ Fleisch-

mann Distilling Corp. v. Maier Brewing Co., supra, at

718; or when the losing party has ‘acted in bad faith,

vexatiously, wantonly, or for oppressive reasons. . .

F. D. Rich Co., 417 U.S. at 129 (citing Vaughan v.

Atkinson, 369 U.S. 527 (1962)); cf. Universal Oil Prod-

ucts Co. v. Root Refining Co., 328 U.S. 575, 580 (1946).

These exceptions are unquestionably assertions of in-

herent power in the courts to allow attorneys’ fees in

particular situations, unless forbidden by Congress, . . .”

421 U.S. at pp. 258-259.

_ Petitioner Poelker was found to have “acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.” The actions

of petitioner Poelker were directly contrary to a host of unani-

mous and identical, federal court decisions, in two of which this

Honorable Court had denied certiorari and one of which arose

within the Eighth Circuit. See, e.g.: Doe, et al. v. General Hos-

pital of the District of Columbia, et al., 313 F.Supp. 1170

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

affirmed, 434 F.2d 427 (D.C.C. 1970); Nyberg, et al. v. The

City of Virginia, et al., 495 F.2d 1342 (8th Cir. 1974), cert.

denied, 419 U.S. 891 (1974); Doe, et al. v. Hale Hospital, et al.,

500 F.2d 144 (Ist Cir. 1974), cert. denied, 420 U.S. 907

(1975); Doe v. Mundy, et al., 514 F.2d 1179 (7th Cir. 1975);

Santiago v. Colon, et al. (Unreported, D.P.R., No. 74-362, Aug.

6, 1974); Orr, et al. v. Koefoot, et al., 377 F.Supp. 673 (D.

Neb. 1974); and Roe v. Arizona Board of Regents, et al., 534

P.2d 285 (Ariz.Ct.App. 1975).

Petitioner Poelker unequivocally testified at trial that the

reason for adoption of his policy was “my own personal convic-

tion that abortion is murder.” (R. 10). Petitioner Poelker fur-

ther testified the policy was enforced despite the fact that no

investigations, studies or surveys were ever made as to: the possi-

_— =

bility of providing abortions and the cost factors involved (R.

11, 28); the availability of appropriate facilities (R. 12, 28);

the availability of trained, experienced or willing personnel (R.

12, 28, 29); the availability of arranging with a private medical

facility to handle city hospital patients (R. 13); or the effect of

providing abortions on existing services presently offered (R.

39, 40). To restate, but for the directions of petitioner Poelker,

petitioner Wochner would have provided abortions within the

public hospital facilities. (R. 31).

The Appellate Court aptly noted in its opinion,

“Nonetheless, we are convinced that an award of at-

torneys’ fees to Doe is proper here under another exception

to the rule which was specifically recognized and reiterated

in Alyeska Pipeline—when the losing party has ‘acted in

bad faith, vexatiously, wantonly, or for oppressive rea-

sons.’ Id. — U.S. —, 95 S.Ct. at 1622 (quoting F. D. Rich

Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct.

2157, 40 L.Ed. 2d 703 1974)) See, e.g., Fowler v.

Schwarzwalder, supra, 498 F.2d at 144 (dictum); Bell v.

School Board, 321 F.2d 494, 500 (4th Cir. 1963).” 515

F.2d at p. 547.

Respondents suggest that to deny the previously awarded at-

torneys’ fees would critically emasculate the recent judgment

of the Appellate Court. The rightful and warranted award of

attorneys’ fees in this cause has produced an effect upon the

officials of St. Louis more sobering than the accompanying judg-

ment or any previous judgment in related abortion actions.

For this Honorable Court to vacate said attorneys’ fees at this

stage of the proceedings would serve as a green light for peti-

tioner Poelker to continue thwarting in dilatory fashion the judg-

ments of this Honorable Court and the Appellate Court. The

utter and total impunity with which petitioner Poelker had oper-

ated in the past could only have been checked and effectively

—

— =

challenged through the proper allowance of attorneys’ fees, upon

the permitted and warranted basis of “bad faith”. Petitioner's

conduct, as manifested by the evidence, the record, his statements

directly and through his counsel and his actions were amply suf-

ficient for the finding by the Appellate Court.

Petitioners blithely choose to ignore the actual bases for the

Appellate Court’s said determination of “bad faith” on the part of

petitioner Poelker and instead attempt to build arguments based

on false premises. Petitioners contend that Wulff, et al. v. Single-

ton, etc., 508 F.2d 1211 (8th Cir. 1974) “involved construction

of Title XIX of the Social Security Act” and “(n)ot the question

of whether the Federal or State government were constitutionally

required to provide such funds for ‘indigent women’ ”. (Pet. 36).

In fact, the only question raised by plaintiffs in Wulff, supra, was

the constitutional issue and the statutory issue of conflict with

Title XIX was never raised nor briefed. Petitioners have dis-

torted the holding in Wulff, supra, a full one hundred eighty de-

crees; after which they proceed to cite additionally Roe, et al. v.

Ferguson, et al., 515 F.2d 279 (6th Cir. 1975), which was spe-

cifically remanded so that the constitutional issue could be de-

termined, and Roe, et al. v. Norton, et al., — F.2d — (2nd

Cir. 1975), reversing on other grounds, 380 F.Supp. 726 (D.

Conn. 1974), which never dealt with the constitutional issue

raised in Wulff, supra. (Pet. 36-37).

After a thorough analysis of the record and petitioner Poelk-

er’s words and actions, the Appellate Court properly concluded

that said petitioner had acted in a manner properly characterized

as “arbitrary”, “obstinately”, “intransigent”, “wanton”, “callous”,

“oppressive”, and “obdurate”. 515 F.2d at pp. 546-548.

— you

Ill

The Appellate Court Correctly and Properly Ruled That Re-

spondent Doe Had Standing and the Issue of Standing Is Herein

Untimely Raised.

The issue of respondent Doe’s standing in the instant cause

was squarely decided in respondents’ favor in the opinion of the

first appeal of this cause reported at 497 F.2d 1063 (8th Cir.

1974), rehearing denied en banc June 27, 1974 and stay denied

by this Honorable Court on July 18, 1974 (Cause No. A-1320).

Petitioners failed to appeal or to seek a writ of certiorari in timely

fashion and the matter is thereby foreclosed at this stage of the

proceedings. Supreme Court Rules 11 and 22.

Even assuming the matter may be raised herein more than one

year after the appellate decision of the issue, the law as to such

standing clearly forecloses petitioners’ arguments on the merits.

Respondent Doe was pregnant on August 17, 1973, as al-

leged in her “Complaint for Declaratory Judgment and Injunc-

tive Relief,” para. 7, filed on August 17, 1973 and as verified in

her “Affidavit of Plaintiff, Jane Doe,” paragraph 4, filed on Oc-

tober 5, 1973. In fact, Respondent Doe on August 17, 1973

was in the last few days of the first trimester of pregnancy. The

inability of respondent Doe to obtain an immediate abortion

would have foreclosed the possibility of obtaining an out-patient

clinical procedure and would have necessitated an in-patient

surgical method involving substantially, increased, risk to her.

Respondent Doe readily admitted that she obtained an abor-

tion on August 22, 1973. The mortality and morbidity of abor-

tion increases with every passing day of gestation. The natural

reticence of potential plaintiffs in actions of this type, to brave

the risk of public disclosure, harassment and censure could not

be ignored; particularly since many of those who utilize the

public hospital facilities are those least able to afford the financial,

energy and time expenses of litigation.

—

Respondents would direct the attention of his Honorable

Court to the recent language in Roe, supra, wherein the specific

issue as to the effect of a pregnancy’s termination on mootness

was answered.

“A. Jane Roe. Despite the use of the pseudonym, no

suggestion is made that Roe is a fictitious person. For pur-

poses of her case, we accept as true, and as established,

her existence; her pregnant state, as of the inception of her

suit in March 1970 and as late as May 21 of that year

when she filed an alias affidavit with the District Court; and

her inability to obtain a legal abortion in Texas.”

“The appellee notes, however, that the record does not

disclose that Roe was pregnant at the time of the District

Court hearing on May 22, 1970, or on the following June

17 when the court’s opinion and judgment were filed. And

he suggests that Roe’s case must now be moot because she

and all other members of her class are no longer subject

to any 1970 pregnancy.”

“The usual rule in federal cases is that an actual contro-

versy must exist at stages of appellate or certiorari review,

and not simply at the date the action is initiated. . . .”

“But when, as here, pregnancy is a significant fact in the

litigation, the normal 166-day human gestation period is

so short that the pregnancy will come to term before the

usual appellate process is complete. If that termination

makes a case moot, pregnancy litigation seldom will survive

much beyond the trial stage, and appellate review will be

effectively denied. Our law should not be that rigid. Preg-

nancy often comes more than once to the same woman,

and in the general population, if man is to survive, it will

always be with us. Pregnancy provides a classic justifica-

tion for a conclusion of nonmootness. It truly could be

=

‘capable of repetition, yet evading review.’ Southern Pa-

cific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

”

“We, therefore, agree with the District Court that Jane

Roe had standing to undertake this litigation, that she pre-

sented a justiciable controversy, and that the termination

of her 1970 pregnancy has not rendered her case moot.”

410 US. at pp. 124-125.

Similarly, is Doe, supra, decided the same day in which it

was noted that the action was filed on April 16, 1970 (410 US.

at p. 184) and held pregnancy on day of filing to be sufficient,

without evidence or notation of pregnancy beyond that date.

“Our decision in Roe v. Wade, ante, p. 113, establishes

(1) that, despite her pseudoym, we may accept as true, for

this case, Mary Doe’s existence and her pregnant state on

April 16, 1970; (2) that the constitutonal issue is substan-

tial; (3) that the interim termination of Doe’s and all other

Georgia pregnancies in existence in 1970 has not rendered

the case moot; and (4) that Doe presents a justiciable con-

troversy and has standing to maintain the action.”

. Doe and her class are recognized... .” 410 US.

at pp. 187-188.

In the District Court’s “Memorandum and Order”, it specif-

ically noted that,

“This Court recognizes that the pregnancy which gave

rise to the present controversy herein has been resolved by

the plaintiff's termination of her pregnancy, but that the

underlying problem of the blanket policy against abortions

in the public hospitals of the City of St. Louis still remains.”

(A-3)

Cases cited by petitioners simply are not applicable nor anal-

ogous. In Crossen, et al. v. Breckenridge, etc., et al., 446 F.2d

—

833 (6th Cir. 1971), vacated and remanded on other grounds,

410 U.S. 950 (1973), is cited by the petitioners as authority

for their position. (Pet. 50). In fact, a close reading of the

related Crossen case demonstrates the absolute correctness of

respondents’ position.

“The case was filed by the plaintiffs on May 13, 1970.

. The plaintiffs, an obstetrician, a minister, a preg-

nant woman, a woman having the capacity to become

pregnant and a women’s liberation group, each claimed

standing to attack the statute.” Crossen, et al. v. Attorney

General of the Commonwealth of Kentucky, 344 F.Supp.

587, 588-589 (E.D. Ky. 1972).

Crossen, supra, had originally been dismissed for lack of

standing on October 7, 1970 (see 344 F.Supp. at p. 589), some

147 days after its filing. On June 23, 1971, some 406 days after

filing, the Sixth Circuit Court of Appeals reversed and held,

“At the commencement of the action appellant Craddock

was pregnant and had allegedly beer denied an abortion

. On these facts we find that appellant Craddock has

Standing . . .”

“Appellant Pozzuto, on behalf of herself and all other

similarly situated married women, alleges that she is not

pregnant but may desire to terminate future pregnancies

and would be unable to obtain a medical abortion. . .

we hold that appellant Pozzuto does not have standing

* Crossen, et al. v. Breckenridge, etc., et al., 446

F. 2d 833, 839 (6th Cir. 1971), vacated and remanded

on other grounds, 410 U.S. 950 (1973).

On May 19, 1972, some two years and six days after filing

of suit, the District Court ruled on the merits of the plaintiffs’

claims, including plaintiff Craddock who had been pregnant at

= -_

the initial filing of said cause. Crossen, et al. v. Attorney Gen-

eral of the Commonwealth of Kentucky, 344 F.Supp. 587

(E.D.Ky. 1972).

The First Circuit Court of Appeals has also held that ter-

mination of pregnancy during pendency of District Cour: pro-

c2edings does not render the cause moot, even though plaintiffs

similarly aborted immediately after filing suit and before trial.

“First, defendant says that he has a probability of succeed-

ing on the merits because plaintiffs’ case is moot due to the

fact that after its commencement plaintiffs voluntarily ob-

tained abortions in New York. The fact that a plaintiff

had other available relief does not moot the case, Hatha-

way v. Worcester City Hospital, 1 Cir., 1973, 475 F.2d

701, and defendant does not so claim. Nor, of course,

does defendant dispute the basic Roe rule that the neces-

sarily short duration of a pregnancy does not, in normal

circumstances, create mootness when pregnancy ceases.”

“We consider that defendant’s claim of mootness is a

will-o’-the-wisp and assumes the very question at issue.

If a plaintiff has a right to terminate her pregnancy—which

is the legal question before us—the sooner she succeeds

in doing so, the better. We have in mind the trimester

trilogy, on which defendant relies in another connection,

and its effect on viability and the pregnant plaintiff's health.

See Roe v. Wade, 410 U.S. at 149-150, 93 S.Ct. at 725.

It seems not only illogical but, to use a polite word, harsh,

to argue that in order to establish her right to an abortion

a woman must decline to have it.” Doe, et al. v. /srael,

etc., 482 F.2d 157, 158 (1st Cir. 1973).

Petitioners’ suggestion that respondent Doe should have borne

a child in order to maintain her standing, recalls shades of our

—_—

history when innocence of witchcraft was proven by the drown-

ing of the accused.

In this cause the District Court noted that respondent Doe

had terminated her pregnancy prior to service on petitioner

Wochner. (Pet. 40). The date of service, if diligent, has never

been held a critical time reference. Instead, the filing of the

action is the relevant consideration of timeliness. See, The

Moore Company of Sikeston, Missouri, et al. v. Sid Richardson

Carbon & Gasoline Company, 347 F.2d 921, 922-923 (8th

Cir. 1965), cert. denied, 383 U.S. 925 (1966). Federal Rule

of Civil Procedure No. 3 specifically provides, “A civil action

is commenced by filing a complaint with the court”.

The language of Roe, supra, and Doe, supra, as to standing in

pregnancy cases is not strictly applicable to only the appellate

process. No logical reason exists to so narrowly interpret it nor

does reason support such an interpretation. A close reading be-

lies such a meaning or intent. The language is equally applicable

to all stages of litigation. To hold otherwise would institute an

arbitrary distinction and subject pregnant plaintiffs to the ca-

pricious whims, delays and dilatoriness of courts and opposing

counsel. It should be noted that respondent Doe was 12 weeks

pregnant at time of filing, would have been 19 weeks pregnant

at time of filing for summary judgment on October 5, 1973 and

would have been 39 weeks pregnant and past her expected date

of delivery when the District Court below first learned of her

non-pregnant status; having failed in the interim to decide or

rule on her motion for summary judgment. (A-3).

As so aptly noted in Roe, supra, a normal pregnancy is 38

weeks (410 U.S. at p. 125) and “(m)oreover, the risk to the

woman increases as her pregnancy continues”. 410 U.S. at

p. 150.

How much risk should pregnant plaintiffs be judicially re-

quired to endure? How much risk is too much risk? Should

_—

pregnant plaintiffs be required, in order to assure their stand-

ing, to assume the ever increasing rates of morbidity and mor-

tality until the date of service on defendants, until defendants

file motions, until defendants file an answer, until date of trial,

until date of court judgment or until some other as equally arbi-

trary, indefinite and undeterminable period of time? This Honor-

able Court noted, it is only during the first trimester that “(m)or-

tality rates for women undergoing early abortions, where the

procedure is legal, appear to be as low as or lower than the

rates for normal childbirth.” Roe, supra, 410 U.S. at p. 149.

Petitioners would place respondent Doe and all potential similar

plaintiffs between the Scylla of being foreclosed an abortion

through the dismissal of her suit and the Charybdis of retaining

her standing while increasing the risk to her life.

Petitioners have not cited a single case in which plaintiffs

were held not to have standing when pregnant at time of filing.

Cases denying standing to women on the basis of only a possible

future pregnancy are not analogous nor of the slightest preceden-

tial value.

CONCLUSION

The number of pregnant, indigent women in the City of St.

Louis, Missouri, who have been irreparably damaged through

the denial to them of their fundamental constitutional rights by

the actions of petitioners, is staggering. The principles upheld

by the Appellate Court in its two prior decisions of this cause

have been firmly and unanimously established by all federal

courts ruling upon the identical issues. Petitioners have cited

not a single case to the contrary.

Petitioners should not be allowed through emotionally laden

hysterics nor ill-founded and unmeritorious legal claims to escape

the full and fair impact of the Appellate Court’s judgments.

— san

At a press conference on October 10, 1975, petitioner

Wochner admitted that to date not a single abortion has yet

been performed, despite the fact that the number of patient

inquiries has been 450% of his recent estimate as to the ex-

pected demand. It has been reliably estimated that only 11%

of the need for abortion services is presently being met in Mis-

souri and that 53% of the need is among low and marginal

income wonmicn. THE ALAN GUTTMACHER INSTITUTE,

Provisional Estimates of Abortion Need and Services in the

Year Following the 1973 Supreme Court Decisions: United

States, Each State and Metropolitan Area, New York, 1975.

Accordingly, respondents respectfully pray that petitioners’

“Petition for a Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit” be denied forthwith.

Respectfully submitted

FRANK SUSMAN

SUSMAN, SCHERMER, WILLER

& RIMMEL

7733 Forsyth Boulevard—Suite 1100

St. Louis, Missouri 63105

(314) 725-7300

Attorneys for Respondents

Certificate of Service

I, the undersigned attorney for respondents and a member of

the bar of the United States Supreme Court, do hereby certify

that pursuant to Supreme Court Rule No. 33, I have caused to

be served a true and correct copy of the foregoing “Respondents’

Brief in Opposition to ‘Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit’,” upon

—

each party required to be so served, by depositing said copy in

a United States Postal Service mail box, with first class postage

prepaid and affixed, addressed to Mr. Jack L. Koehr and to

Mr. Eugene P. Freeman, Office of the City Counselor, attorney

for petitioners, St. Louis City Hall, Room 314, 1200 Market

Street, St. Louis, Missouri 63103.

FRANK SUSMAN

SUSMAN, SCHERMER, WILLER

& RIMMEL

7733 Forsyth Bou!evard—Suite 1100

St. Louis, Missouri 63105

(314) 725-7300