Orr v. Koefoot

• Citation: 377 F. Supp. 673
• Decision Date: 21 August 1974
• Docket Number: Civ. No. 73-L-286.
• Parties: G. William ORR and Marvin L. Dietrich, Plaintiffs, v. Robert KOEFOOT, Individually and as a member of the Board of Regents, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

377 F. Supp. 673

G. William ORR and Marvin L. Dietrich, Plaintiffs, v. Robert KOEFOOT, Individually and as a member of the Board of Regents, et al., Defendants.

Civ. No. 73-L-286.

United States District Court, D. Nebraska.

June 12, 1974.

As Amended August 21, 1974.

Lawrence I. Batt, Omaha, Neb., for plaintiffs.

Flavel A. Wright, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for defendants.

MEMORANDUM

RICHARD E. ROBINSON, Senior District Judge.

This matter comes before the Court after having been tried to the Court without a jury. The jurisdiction of this Court is based upon 28 U.S.C. §§ 1343 and 1331. The plaintiffs, alleging that their constitutional rights have been violated by the members of the Board of Regents of the University of Nebraska, seek redress under 42 U.S.C. § 1983.

FINDINGS OF FACT

The College of Medicine of the University of Nebraska has established a Medical Center at Omaha, Nebraska, for the purpose of providing clinical medical education to medical students, interns and residents, and continuing medical education to practicing physicians in the State of Nebraska. As a part of its function the Medical Center also, of course, performs valuable medical services in the Omaha community and the State of Nebraska by providing patient care, consultation and research.

The plaintiffs, Drs. Orr and Dietrich, are physicians and instructors with the College of Medicine on the staff of the University Medical Center. Both plaintiffs specialize in obstetrics and gynecology. Dr. Orr is a tenured professor, Dr. Dietrich is, untenured. Prior to July 14, 1973, both Dr. Orr and Dr. Dietrich were "full-time" clinical faculty members on the University staff. As full-time faculty members the plaintiffs were not permitted to practice medicine outside of the University Medical Center and its affiliated hospitals, except under limited circumstances. Other "part-time" or "volunteer" faculty members were, however, permitted to engage in outside private practice, while maintaining a teaching relationship with the Medical Center.

Prior to January 22, 1973, the University Medical Center, in compliance with the, then existing, Nebraska law, Pt. I, ch. 6, § 39 1873 Neb.Laws; Pt. I, ch. 2, § 6 1873 Neb.Laws, permitted abortions to be performed only when that procedure was "necessary to preserve the life of the mother." However, on the above-mentioned date the Supreme Court of the United States issued its decisions in the cases of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 1973, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 1973, substantially liberalizing the law of abortion, and making the decision to have an abortion a private matter between the expectant mother and her consulting physician for at least the first trimester of pregnancy, Roe v. Wade, supra at 163. The former Nebraska "abortion" statutes were, subsequently declared unconstitutional, Doe v. Exon, Civil No. 71-L-199 D.Neb., filed Apr. 22, 1971.

Prior to the Court's decisions in Roe and Doe, the number of abortions performed at the Medical Center to preserve the life of the mother were limited by the administrators of the Hospital and the Ob/Gyn Department.¹ This had the effect of permitting approximately fifteen 15 abortions per week. The limitation was felt necessary due to a shortage of qualified staff personnel to handle the volume of patients admitted to the Ob/Gyn Department.

After January 22, 1973, abortions were performed at the Medical Center according to the medical needs of the expectant woman upon the advice and counsel of her physician, in compliance with the guidelines established by the Court in Roe. During this period the demand for abortions rose,² and the limitation of fifteen 15 abortions per week was abandoned. A subsequent limitation was, however, imposed which permitted approximately thirty 30 abortions per week. The additional workload on the Ob/Gyn Department was met by improving the system of health care delivery at the Medical Center.

Aside from the students, interns, residents and practicing physicians who chose to be educated in the abortion procedures, the plaintiffs were the only two physicians on the staff of the Ob/Gyn Department who performed abortions other than those required to preserve the life and health of the mother.

On May 18th, a regularly scheduled meeting of the University Board of Regents was held. At that meeting the subject of the Medical Center's policy toward abortion was raised and each of the Regents had an opportunity to express his views. It was decided at that meeting that a special meeting of the Board of Regents should be held on June 7, 1973, to obtain more information on the abortion question.

At the June 7th meeting the Regents heard and questioned the Chancellor of the Medical Center and the Chairman of the Ob/Gyn Department. At the conclusion of the meeting the Board passed the following resolution:

"No abortion except to protect the health and life of the mother or to meet the minimum requirements of a conservative medical teaching program shall be performed on or prescribed for any woman on the University of Nebraska premises. . . . And, that such University shall not admit any patient for the purpose of performing an abortion nor allow the performance of an abortion therein except as provided above and that the University of Nebraska . . . shall inform any person requesting an abortion of its policy not to participate in abortion procedures except as provided in this motion and that the Chancellor of the University of Nebraska Medical Center submit guidelines to this Board by June 23, 1973, for limiting abortions to the extent herein required."

University of Nebraska Board of Regents Official Minutes June 7, 1973.

The Chancellor concluded that the "minimum requirements of a conservative medical teaching program" called for fifteen 15 abortions per week. The Chancellor's suggested limitation was, strictly speaking, only a limitation on non-therapeutic abortions. If a sixteenth 16th therapeutic abortion was required in a given week, the Sixteenth 16th procedure would be permitted under the recommended policy. If, however, Fifteen 15 therapeutic and non-therapeutic abortions had already been performed in a given week, admission to the University Medical Center would not be granted for the performance of an additional non-therapeutic abortion.

At the regularly scheduled meeting of the Board of Regents on June 23, 1973, the Chancellor's recommended formula was approved. Additionally, the Board of Regents passed a resolution providing that any full-time member of the Ob/Gyn Department who performed abortions outside of the Medical Center would be "subject to termination procedures" and such act would "be cause for termination". Furthermore, a special fund under the direction of a Committee appointed by the Chancellor, subject to the approval of the Board, was set up to handle professional fees obtained from the performance of abortions at the Medical Center. The effect of these additional resolutions is disputed, since it is uncertain whether or not these resolutions altered the terms of the, then, existing employment contracts between the plaintiffs and the Board of Regents.

As a result of the resolutions of June 7th and 23rd the plaintiffs sought a change in employment status from "geographic" full-time to 75% part-time.³ At the July 14th meeting of the Board of Regents their applications for permanent change in status, approved by the Chancellor, the Dean of the College of Medicine, and the Chairman of their department, were presented to the Board. Their applications were approved, however, their change in status was granted only for the temporary period of Ninety 90 days.

In early August, 1973, the plaintiffs opened their private obstetric and gynecological clinic. At their private clinic the plaintiffs provided the full spectrum of Ob/Gyn services to their patients, including the performance of non-therapeutic abortions. In the months subsequent to the establishment of this clinic the number of abortion patients seeking admission to the Medical Center declined below the Fifteen 15 per week which was deemed necessary to meet "the minimum requirements of a conservative medical teaching program."

On October 12, 1973, at the regular meeting of the Board of Regents the plaintiffs renewed their request for permanent part-time employment status. At this time they were again supported in their application by the Chancellor, the Dean, and the Chairman of their department. Furthermore, the Board was informed that the plaintiffs had adequately and professionally discharged their obligation to the University throughout the period of their part-time status. An executive session was held by the Board after which the plaintiffs' application was denied, thereby returning them to full-time employment status. This, of course, had the effect of prohibiting them from practicing medicine outside of the University Center and affiliated hospitals. As a result of this Board action the plaintiffs filed this suit and obtained a temporary restraining order against the Board preserving the status quo and prohibiting the Board from discharging the plaintiffs from employment pending the present action.

As an additional finding of fact, this Court finds that the plaintiffs are highly competent and qualified specialists in the field of obstetrics and gynecology with expertise in the area of high risk pregnancy and interuterine transfusion. Such expertise is, apparently, unique to the State of Nebraska. The Court hastens to add that, though these plaintiffs have been subjected to a good deal of adverse publicity and reprisal because of their stand on the abortion issue, the uncontroverted evidence in this case establishes that these plaintiffs are competent and professional medical practitioners of unimpeached ethics.

ISSUES

The plaintiffs filed this §...