Margaret S. v. Edwards, Civ. A. No. 78-2765.

• Decision Date: 03 March 1980
• Docket Number: Civ. A. No. 78-2765.
• Citation: 488 F. Supp. 181
• Parties: MARGARET S., on her own behalf and on behalf of all others similarly situated; Dr. Roy Wood, Dr. Calvin Jackson, and Dr. Duncan McKellar, on their own behalf and on behalf of all others similarly situated; and Clinical Leasing Services, Inc., d/b/a Delta Women's Clinic, Orleans Women's Clinic and Causeway Medical Suite v. Edwin W. EDWARDS, Governor of the State of Louisiana; William J. Guste, Jr., Attorney General of the State of Louisiana; William Cherry, M.D., Secretary of the State of Louisiana Health and Human Resources Administration; all of the above in their individual and official capacities.
• Court: U.S. District Court — Eastern District of Louisiana

488 F. Supp. 181

MARGARET S., on her own behalf and on behalf of all others similarly situated; Dr. Roy Wood, Dr. Calvin Jackson, and Dr. Duncan McKellar, on their own behalf and on behalf of all others similarly situated; and Clinical Leasing Services, Inc., d/b/a Delta Women's Clinic, Orleans Women's Clinic and Causeway Medical Suite v. Edwin W. EDWARDS, Governor of the State of Louisiana; William J. Guste, Jr., Attorney General of the State of Louisiana; William Cherry, M.D., Secretary of the State of Louisiana Health and Human Resources Administration; all of the above in their individual and official capacities.

Civ. A. No. 78-2765.

United States District Court, E. D. Louisiana.

March 3, 1980.

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George M. Strickler, New Orleans, La., Judith Levin, Janet Benshoof, New York City, Wayne G. Hawley, Cleveland, Ohio, John Wilson Reed, New Orleans, La., Stephen Landsman, Cleveland, Ohio, for plaintiffs.

Michael R. Connelly, Baton Rouge, La., Louis M. Jones, Ronald Davis, New Orleans, La., for defendants.

Sidney M. Bach, New Orleans, La., for intervenor Dr. Okpalobi.

Lane Carson, New Orleans, La., James Bopp, Jr., Indianapolis, Ind., Robert E. Winn, New Orleans, La., for intervenors Dr. Moorman, Carr, Gaudin & Richey, amici curiae.

Nadine Taub, Newark, N. J., for American Public Health, amicus curiae.

Leo Pfeffer, New York City, for American Humanist Ass'n, amicus curiae.

OPINION

ROBERT F. COLLINS, District Judge.

This case presents a constitutional challenge to a recently enacted Louisiana statute regulating abortion. La.Rev.Stat.Ann. §§ 40:1299.35.1 et seq. (West Supp.1979). In approaching the issues presented in this case, this Court thinks that the following quotation from the landmark decision of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) is relevant:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Roe, 410 U.S. at 116, 93 S.Ct. at 708-09.

This Court earnestly seeks to accomplish this task. In pursuing this quest, the Court is bound by decisions of the United States Supreme Court and the jurisprudence which has evolved in this area.

I.

Margaret S.,¹ a single resident of New Orleans, Louisiana, brought suit in August, 1978 on behalf of herself and all those similarly situated seeking declaratory and injunctive relief against the operation of a Louisiana abortion statute, La.Rev.Stat. Ann. §§ 40:1299.35.1 et seq. (West Supp. 1979) (the Act). As a single, pregnant woman desirous of obtaining an abortion, Margaret S. alleged that the statute deprived her of fundamental constitutional rights, including her right to due process of law, equal protection, privacy, and the free exercise of religion, in violation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution.

Dr. Roy C. Wood, Dr. Calvin Jackson, and Dr. Duncan McKellar, physicians licensed to practice in Louisiana, sued to represent all present and future Louisiana physicians who "desire to give full, safe, and adequate medical advice and treatment to their patients" but who allegedly would be restricted in their medical practice and threatened with criminal prosecution under the Act. They allege that the Act is vague, over-broad, a denial of equal protection and due process of law, and violative of their rights under the First, Ninth, and Fourteenth Amendments.

Delta Women's Clinic (Delta), with locations in both New Orleans and Baton Rouge, and Orleans Women's Clinic offer gynecological services that include sterilization, first trimester abortions, and abortions subsequent to the first trimester. Causeway Medical Suite offers similar services, but does not perform abortions after the first trimester. All allege that the Act, by "subjecting . . . facilities which provide abortion services to regulation and criminal prosecution should they fail to comply with any of the Act's provisions," deprives them of their right to privacy and to due process of law under the Constitution of the United States.

Dr. T. C. A. Okpalobi, d/b/a Gentilly Medical Clinic for Women (Gentilly), filed suit September 6, 1978 as a plaintiff-intervenor. After adopting all the claims set out in the original complaint, he focuses on La.Rev.Stat.Ann. §§ 40:1299.35.9, .10 (West Supp.1979). He alleges that these sections violate his right to equal protection and due process of law and that they conflict with La.Rev.Stat.Ann. § 15:476 (West 1967) because of their intrusive effect upon traditional patient-physician confidentiality.

On January 8, 1979, the Court certified this suit as a class action, with Margaret S. II and Dr. Roy C. Wood as named representatives of their respective classes.² Trial was held in October and November, 1978. Final arguments were heard December 13, 1978. Final post-trial briefs were filed March 5, 1979.

II.

Jurisdiction in this case is founded on 28 U.S.C. § 1331(a) (1976)³ and 28 U.S.C. § 1343(3) (1976).⁴

III.

Two threshold issues must be addressed: "first, whether the plaintiffs allege `injury in fact,' that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Article III jurisdiction, and, second, whether, as a prudential matter, the plaintiffs are proper proponents of the particular legal rights on which they base their suit." Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). The Court must decide whether each class or group of plaintiffs satisfies this criteria.

A.

Margaret S. II: Margaret S. II, a thirty year old single woman and a mother of six children, intervened as a party plaintiff during her second trimester of pregnancy. She stated that she could not obtain and could not afford to obtain an abortion in a hospital. As a single, pregnant woman, Margaret S. II had a concrete interest in challenging the Act. Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 712-13, 35 L.Ed.2d 147 (1973) (Roe). Almost every section of the Act would affect either her decision to obtain an abortion or her ability to do so. The Court holds that Margaret S. II has standing to pursue this litigation, that she presents a justiciable controversy, and that the termination of her pregnancy has not rendered her case moot. Roe, 410 U.S. at 125, 93 S.Ct. at 712.

B.

Dr. Roy Wood, Dr. Calvin Jackson, Dr. Duncan McKellar, and Dr. T. C. A. Okpalobi: All four physicians present a justiciable controversy and have standing to sue on their own behalf:

The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (Doe).⁵

The physicians also have an "individual economic and liberty interest . . . in the right to practice medicine free from the imposition of arbitrary restraints . . .." Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 875 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975). Furthermore, they have standing to assert the rights of their patients, such as Margaret S. II. See Singleton v. Wulff, 428 U.S. 106, 113-18, 96 S.Ct. 2868, 2873-76, 49 L.Ed.2d 826 (1976). See also Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965) (stressing confidentiality and the professional relationship).

C.

Delta Women's Clinic, Orleans Women's Clinic, and Causeway Medical Suite: The clinics present a justiciable controversy since they, as well as the physicians, are threatened with criminal sanctions for failure to comply with certain provisions of the Act.⁶ They may also suffer certain financial injuries.⁷ There is some debate, however, as to whether the clinics also have standing to assert their patients' claims. These corporate-plaintiffs "are another step removed."⁸ It is arguable that the corporate-plaintiffs do not share the confidential relationship with their clients that the doctors they employ share with their patients. Since the issues in this case are adequately represented by Margaret S. II and the physicians, the Court finds it unnecessary⁹ to decide whether the corporate-plaintiffs have standing to sue.¹⁰

IV.

The Court has certified this case as a class action pursuant to Fed.R.Civ.P. 23. Two subclasses were identified, one of women and one of physicians, whose respective representatives are Margaret S. II and Dr. Roy C. Wood.¹¹ Because the original order was conditional, the Court now affirms its conclusion that this suit was properly brought and certified under Fed.R. Civ.P. 23(b)(2).

V.

In Roe, the Supreme Court concluded that the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153, 93 S.Ct. at 727. The constitutional right of privacy,¹² "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon State action,"¹³ involves...