Wulff v. State Board of Registration for Healing Arts

• Citation: 380 F. Supp. 1137
• Decision Date: 31 May 1974
• Docket Number: No. 73 C 731(A).,73 C 731(A).
• Parties: George J. L. WULFF, Jr., M. D., and Michael Freiman, M. D., Plaintiffs, v. The STATE BOARD OF REGISTRATION FOR the HEALING ARTS and Thomas E. Singleton, Chief of Bureau of Medical Services, Division of Welfare State Department of Public Health and Welfare, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

380 F. Supp. 1137

George J. L. WULFF, Jr., M. D., and Michael Freiman, M. D., Plaintiffs, v. The STATE BOARD OF REGISTRATION FOR the HEALING ARTS and Thomas E. Singleton, Chief of Bureau of Medical Services, Division of Welfare State Department of Public Health and Welfare, Defendants.

No. 73 C 731(A).

United States District Court, E. D. Missouri, E. D.

May 31, 1974.

Frank Susman, Susman, Willer & Rimmel, St. Louis, Mo., for plaintiffs.

John D. Danforth, Atty. Gen., and Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, Mo., for defendant Thomas E. Singleton.

Albert J. Stephan, Jr., St. Louis, Mo., for defendant Missouri State Bd. of Registration for the Healing Arts.

Before WEBSTER, Circuit Judge and MEREDITH and HARPER, District Judges.

MEMORANDUM

This matter is before the Court on motion of defendant, State Board of Registration for the Healing Arts (hereinafter referred to as State Board), to dismiss Counts I and III of the plaintiffs' complaint, and on motion of defendant, Thomas E. Singleton, to dismiss Count II of plaintiffs' complaint. Counts I and III name the State Board as defendant and Count II names Thomas E. Singleton as defendant.

Plaintiffs, George J. L. Wulff, Jr. and Michael Freiman, are physicians licensed by the State of Missouri, engaging in the practice of obstetrics and gynecology. Defendant, State Board, is an administrative board created by Missouri state statutes charged with the licensing of physicians. The State Board has the power to revoke or suspend a physician's license for unprofessional and dishonoraable conduct under RSMo 334.100. Defendant, Thomas E. Singleton, is the Chief of the Bureau of Medical Services, Division of Welfare, State Department of Public Health and Welfare, for the State of Missouri. In his capacity as Chief of the Bureau of Medical Services, Singleton oversees the applications, approvals, denials and payments of claims for payment and reimbursement of medical expenses arising from or related to the procedure of abortion for women eligible for Missouri State Medicaid assistance.

The plaintiffs' complaint for declaratory judgment and injunctive relief alleges jurisdiction in this Court under 28 U.S.C. §§ 1343, 2201, 2202, 2281, 2284 and 42 U.S.C. § 1983, and prays for the convening of a three-judge court under 28 U.S.C. § 2281, and for declaratory and injunctive relief in all three counts of their complaint.

Plaintiffs allege that the statutory wording "but excluding abortion" contained in RSMo 431.061¹ (Count I), "shall not include abortions unless such abortions are medically indicated" contained in RSMo 208.152 (Count II) and "pregnancy" contained in RSMo 431.061 (Count III) are unconstitutional. Plaintiffs allege that the above statutory wording in each count is vague and uncertain, deprives the plaintiffs and their patients of the right to privacy, deprives plaintiffs of their right to practice medicine according to the highest standards of medical practice, deprives plaintiffs' patients of the fundamental right of a woman to determine for herself whether to bear children, infringes upon plaintiffs' right to render and their patients' right to receive safe and adequate medical advice and treatment, deprives plaintiffs and their patients of the equal protection of the law and due process of law, and constitutes state interference with the abortion decision, all of which is in violation of the United States Constitution.

The contentions relied upon by the defendant State Board to sustain its motion to dismiss Counts I and III may be summarized as follows:

(1) Plaintiffs failed to state a claim upon which relief can be granted.

(2) The State Board is not a proper party defendant.

(3) Plaintiffs failed to allege the existence of a "controversy".

(4) Plaintiffs failed to allege enforcement by the State Board of the challenged statute and therefore the court should abstain from interpreting the state statute.

(5) There is relief available to plaintiffs in state courts and agencies.

The grounds relied upon by defendant Singleton to sustain his motion to dismiss Count II may likewise be summarized as follows:

(1) The declaratory relief prayed for does not constitute a "case or controversy ripe" for determination by this Court.

(2) Plaintiffs lack standing to litigate the constitutional questions presented.

(3) Injunctive relief cannot be granted in that the plaintiffs are not susceptible to irreparable harm by virtue of enforcement of the challenged statute.

(4) Plaintiffs have not exhausted administrative remedies.

(5) Plaintiffs could not personally suffer harm for which relief can be granted under 42 U.S.C. § 1983.

COUNT I

RSMo 431.061 (see Footnote 1), which plaintiffs seek to attack in Counts I and III, was enacted in 1971 by the Missouri General Assembly as Section 1 of House Bill 73 and must be read and construed in connection with RSMo 431.062² and 431.063,³ which were Sections 2 and 3 of House Bill 73. Mitchem v. Perry, 390 S.W.2d 600, 603 (Mo.App.1965). When so read and construed it is apparent that RSMo 431.061 only relates to minors' ability to contractually bind themselves to pay for medical treatment for pregnancy, venereal disease and drug abuse. It is true that under RSMo 431.061(1) the treatment for pregnancy for which an unmarried minor may contractually bind herself excludes abortions. The effect of this exclusion is simply to leave the law unchanged as it relates to contracts for abortion. That is to say that a minor may not be held contractually liable for the cost of receiving an abortion unless she ratifies the debt contracted after she reaches majority. RSMo 431.060. This does not constitute a prohibition against giving abortions to minors.

Neither the statute under attack, RSMo 431.061, nor the two statutes enacted as part of the same bill (RSMo 431.062 and 431.063) provide any sanctions for the performance of an abortion on an unmarried minor without parental consent. In fact, Missouri does not in light of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and Rodgers v. Danforth, Civ. No. 18360-2 (W.D.Mo.),⁴ affirmed 1973, 414 U.S. 1035, 94 S.Ct. 534, 38 L.Ed.2d 327, at this time have sanctions for abortions performed on adults or minors as long as the abortionist is a licensed physician.

Plaintiffs contend in their affidavits filed in opposition to the defendants' motions to dismiss that they fear reprisals from the defendant State Board, in that the State Board may discipline them under RSMo 334.100 based upon their past performances of abortions and anticipated future performances of abortions upon unmarried minors, without parental consent, on a non-emergency basis. RSMo 334.100 provides, in part, that a licensee may be placed on probation or the license suspended or revoked when a physician is found guilty of unprofessional or dishonorable conduct. That statute then continues, stating:

"Without limiting the foregoing general language, the following specifications shall be deemed unprofessional and dishonorable conduct within the meaning of this section:

* * * * * *

"(3) Committing an unlawful abortion;"

As pointed out above, since the decisions in Wade, Bolton and Rodgers, supra, and the failure of the Missouri Legislature to enact a statute within permissible limits of those cases, Missouri no longer has any prohibition against abortion, when it is performed by a physician. Therefore, any abortion performed by a licensed physician is not an unlawful abortion. What plaintiffs seek in reality is a declaratory judgment by this Court that the performance of an abortion by a licensed physician on an unmarried minor without parental consent on a non-emergency basis is not unprofessional and dishonorable conduct under RSMo 334.100.

In order for this Court to rule on the constitutionality of the statutory wording "but excluding abortion" in RSMo 431.061 under the Declaratory Judgment Act, 28 U.S.C. § 2201, as prayed for in plaintiffs' complaint, there must exist an "actual controversy" between the parties and without such actual controversy this Court is without power to grant declaratory relief. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941). In Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969), the Supreme Court said:

"`The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues "concrete legal issues, presented in actual cases, not abstractions," are requisite. This is as true of declaratory judgments as any other field.' United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). `The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)."

From the foregoing, it is clear that the ingredients necessary to sustain a complaint for declaratory judgment are: (a) a substantial controversy; (b) between parties having adverse legal interests; and (c) the controversy must possess "immediacy and reality." The plaintiffs here do not claim that they have ever been threatened with disciplinary action by the State Board or that disciplinary action by the State Board is even likely. The most that can be said of the plaintiffs is...