Hallmark Clinic v. North Carolina Dept. of Human Res.

• Citation: 380 F. Supp. 1153
• Decision Date: 30 August 1974
• Docket Number: Civ. No. 74-27-Civ-5.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: HALLMARK CLINIC and Harold R. Hoke, M.D., Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES et al., Defendants.

380 F. Supp. 1153

HALLMARK CLINIC and Harold R. Hoke, M.D., Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES et al., Defendants.

Civ. No. 74-27-Civ-5.

United States District Court, E. D. North Carolina.

Heard May 27, 1974.

Decided August 30, 1974.

COPYRIGHT MATERIAL OMITTED

Roy Lucas, Washington, D. C., and Adam Stein, Charlotte, N. C., for plaintiffs.

William F. O'Connell, Raleigh, N. C., Asst. Atty. Gen., North Carolina Dept. of Justice, for defendants.

Before CRAVEN, Circuit Judge, and McMILLAN and DUPREE, District Judges.

CRAVEN, Circuit Judge:

This lawsuit, a descendant of Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973), seeks to annul one regulation in North Carolina's program for licensing abortion clinics. The plaintiffs are Hallmark Clinic, a first-trimester abortion clinic in Charlotte, North Carolina, and its proprietor, Harold R. Hoke, M.D. Defendants are the North Carolina Department of Human Resources and various state officials charged with enforcing the licensing program. Because the challenged regulation is applied state-wide and plaintiffs ask injunctive relief, a three-judge court was convened under 28 U.S.C. § 2281. Jurisdiction exists by virtue of 28 U.S.C. § 1343(3) and 42 U. S.C. § 1983, as well as 28 U.S.C. § 1331.

The North Carolina legislature responded to Roe and Doe by enacting a new abortion statute. Retaining criminal penalties for performing or procuring abortions, N.C.Gen.Stat. §§ 14-44 and 14-45, the General Assembly specified exceptions under which legal abortions may be performed:

§ 14-45.1. When abortion not unlawful. — (a) Notwithstanding any of the provisions of G.S. 14-44 and G.S. 14-45, it shall not be unlawful, during the first 20 weeks of a woman's pregnancy, to advise, procure, or cause a miscarriage or abortion when the procedure is performed by a physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Human Resources to be a suitable facility for the performance of abortions.

(b) Notwithstanding any of the provisions of G.S. 14-44 and G.S. 14-45, it shall not be unlawful, after the twentieth week of a woman's pregnancy, to advise, procure or cause a miscarriage or abortion when the procedure is performed by a physician licensed to practice medicine in North Carolina in a hospital licensed by the Department of Human Resources, if there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman.

. . . . . .

(f) Nothing in this section shall require a hospital or other health care institution to perform an abortion or to provide abortion services.

To carry out its duties under section (a) of the new statute, the Department of Human Resources formulated standards for certifying abortion facilities.¹ The resulting regulations allow abortions to be performed in licensed hospitals without additional certification. Freestanding clinics (defined as clinics that are neither attached to nor operated by licensed hospitals) may be certified only to perform abortions during the first twelve weeks of pregnancy. To qualify for certification, a clinic must comply with detailed requirements relating to such things as physical plant, staff, medical equipment, diagnostic procedures, post-operative care, counseling services, and housekeeping.

Dr. Hoke applied for certification in November 1973. Representatives of the Department of Human Resources inspected the clinic and reported that it complied with all regulations but one. That regulation, paragraph III.B.8.b under the heading of Emergency Back-Up Services, required a "`Transfer Agreement' with a local hospital and emergency transportation service to assure the patient access to hospital care within 15 minutes."² Because Hallmark Clinic was only one block from the Charlotte Memorial Hospital, where Dr. Hoke held courtesy staff privileges, the Department granted him provisional certification, allowing him to operate for 90 days without a transfer agreement. The hospital was less cooperative. In mid-December Dr. Hoke was told that his request for a transfer agreement would be presented to the executive committee sometime in January. At about the same time, though, the hospital summarily revoked Dr. Hoke's staff privileges.³

On February 1, with Hallmark Clinic's provisional certification scheduled to expire on February 10, the hospital notified Dr. Hoke that it would take no action on his request for a transfer agreement until it had decided whether to reinstate his staff privileges. Defendant Wilkerson, Director of the Department's Division of Facility Services, notified Dr. Hoke that the provisional certification would not be extended because the clinic had no transfer agreement. Faced with imminent shutdown, Dr. Hoke filed this action. Judge Dupree issued a temporary restraining order, under which the Hallmark Clinic is currently operating. Dr. Hoke has yet been unable to obtain the required transfer agreement.⁴

On March 22 the Department amended its regulation to provide an alternative to written transfer agreements. Paragraph III.B.8.b now requires:

A written agreement with a licensed North Carolina hospital to facilitate prompt transfer of patients requiring hospital care; or in the absence of a transfer agreement, all physicians operating in a freestanding abortion clinic shall document that they are active members of a licensed hospital's medical staff and shall have verified credentials and adequate admitting privileges. The hospital with which an agreement is executed or which extends staff membership to physicians operating in the abortion facility must normally provide adequate obstetrical and gynecological services but may not be one that excludes abortion patients because of religious, moral or other beliefs. The hospital must be located not more than 15 minutes travel time from the freestanding abortion facility. A provision must be made for adequate emergency transportation between the freestanding abortion facility and the hospital.

The amendment did not improve Dr. Hoke's position. His staff privileges at the Charlotte Memorial Hospital, in force now under order of a federal district court,⁵ are only "courtesy" staff privileges rather than "active" staff privileges as required by the regulation.⁶ He maintains staff membership at one other hospital in Charlotte, but it refuses to accept abortion patients for religious reasons.

Plaintiffs assail the regulation on several grounds. Their leading argument is that Roe and Doe exempted first-trimester abortion facilities from any licensing requirements that do not apply to medical facilities generally. We agree. See Roe v. Wade, 410 U.S. 113, 163-166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); id. at 171, 93 S.Ct. 705 (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 194-195, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974); Hodgson v. Anderson, 378 F.Supp. 1008 (D.Minn.1974) (preliminary injunction; 3-judge court); Coe v. Gerstein, 376 F. Supp. 695 (S.D.Fla.1973) (3-judge court), appeal dismissed for want of jurisdiction, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974). Under Roe and Doe, if North Carolina may regulate the performance of first-trimester abortions at all, it may do so only to the extent that it regulates tonsillectomies and other relatively minor operations. The rule at issue in this case applies only to first-trimester abortions, and it has no counterpart in other areas of medical practice. Nursing homes are the only other facilities required to seek transfer agreements, and their licenses are not conditioned on success: they are only required to make a "concerted effort." Avant dep. at 5. Doctors may perform other medical procedures — including minor surgery and obstetrical delivery, which is considered more dangerous than first-trimester abortion⁷ — away from hospitals, with neither a transfer agreement nor active staff privileges. Wilkerson dep. at 25. That the state is ordinarily willing to leave such matters to the professional judgment of the attending physician strongly suggests that the program for regulating abortion clinics is a thinly disguised effort to evade Roe and Doe. To single out the performance of abortions for special regulation, as North Carolina has done in paragraph III.B.8.b of these regulations, is inherently suspect as an invasion of the right of privacy.

But even if we interpreted Roe and Doe as defendants do, to allow regulation of first-trimester abortion facilities in the interests of health and safety, we would have to hold this particular regulation invalid as a violation of fundamental due process. The Supreme Court long ago held that due process cannot tolerate a licensing system that makes the privilege of doing business dependent on official whim. In Yick Wo v. Hopkins 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886), the Court declared:

For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

In this case it is uncontroverted that the state has placed no limits on the hospital's decision to grant or withhold a transfer agreement, or even to ignore a request for one. Defendant Wilkerson stated in his deposition: "It would be my interpretation that they would be able to deny or grant according to the wishes of the governing body of the hospital." Wilkerson dep. at 12. Dr. Davis, chairwoman of the ad hoc committee that drafted the standards, agreed with his interpretation. Davis dep. at 39. See also Hendricks dep. at 32, 45. It is also undisputed that the Department has suggested no standards to guide the hospital's...