495 F.2d 1342 (8th Cir. 1974), 73-1686, Nyberg v. City of Virginia

Docket Nº:73-1686.
Citation:495 F.2d 1342
Party Name:George W. NYBERG et al., Plaintiffs-Appellees, v. The CITY OF VIRGINIA et al., Defendants-Appellants.
Case Date:February 19, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1342

495 F.2d 1342 (8th Cir. 1974)

George W. NYBERG et al., Plaintiffs-Appellees,


The CITY OF VIRGINIA et al., Defendants-Appellants.

No. 73-1686.

United States Court of Appeals, Eighth Circuit.

February 19, 1974

Submitted Dec. 12, 1973.

Rehearing and Rehearing En Banc Denied June 3, 1974.

Page 1343

O. C. Adamson, II, Minneapolis, Minn., for defendants-appellants.

Newton S. Friedman, Duluth, Minn., for plaintiffs-appellees.

Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge. [*]

STEPHENSON, Circuit Judge.

The single issue to be decided in this case is the constitutionality of a resolution adopted by the municipal hospital at Virginia, Minnesota. 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 compelled to hold the resolution unconstitutional. We therefore affirm.

The Virginia Municipal Hospital is a public hospital operated by the City of Virginia, Minnesota through a hospital Commission. The Commission adopted Resolution 2606 on February 5, 1973 and reaffirmed the resolution on February 19, 1973. 1

Appellants sought relief pursuant to 28 U.S.C. §§ 1331, 1343 and the Civil Right Acts, 42 U.S.C. §§ 1981, 1983, and 1985 claiming that the resolution was an encroachment of their constitutionally guaranteed rights.

The District Court dismissed the Nybergs, the Arpis, Melodie Wilson and James E. Williams, leaving the two physicians, Doctors Mock and Tietz with standing to bring the action. The City of Virginia was dismissed as a party defendant by the court.

Resolution No. 2606 was declared by the court to be null and void and further:

Defendants are permanently enjoined from attempting to enforce Resolution No. 2606 or any similar resolution or regulation and are required and mandated to make the Virginia Municipal Hospital facilities available to any duly licensed physician within a period of 30 days from date hereof for the performance of female abortions within and subject to the rules and principles stated in Roe v. Wade, 410 U.S. 153 (113) at p. 164 (93 S.Ct. 705, 35 L.Ed.2d 147) (1973). 2

The members of the hospital commission and the hospital administrator appeal.

Page 1344

Appellants initially contend that the appellee-doctors have no standing to bring this action. Standing, of course, entails

such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

We think that the Supreme Court in 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) has clearly paved the way for physicians to assert their constitutional rights to practice medicine, which now includes the right to advise and perform abortions. Justice Blackmun writing for the Court in Roe v. Wade, supra at 163, of 410 U.S. at 732 of 93 S.Ct. stated:

For the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, 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.

The opinion states further at 165, 93 S.Ct. at 733:

(This) decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.

The impact of the court's discussion cannot be fairly said to limit standing to sue in abortion cases to pregnant women. Neither can these opinions be read so narrowly as to accord standing only to a physician threatened with criminal prosecution. See Doe v. Bolton, supra at 188-189 of 410 U.S., 93 S.Ct. 739. Clearly the claims of medical doctors to 'freely practice medicine according to the highest medical standards without arbitrary outside restraints' are inextricably bound up with the privacy rights of women who seek abortions. YWCA v. Kugler, 342 F.Supp. 1048, 1055 (D.N.J.1972). This is sufficient to present a justiciable controversy and confer standing on the physicians who bring this action. See Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); stay granted, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972), remanded for consideration in light of Roe and Doe, 410 U.S. 951, 93 S.Ct. 1417, 35 L.Ed.2d 683 (1973); Doe v. Turner, 361 F.Supp. 1288, 1289 (D.Iowa 1973) (3 judge court); Freeman & Bass, P.A. v. State of N.J. Com'n of Invest., 359 F.Supp. 1053, 1059 (D.N.J.1973); cf. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Furthermore, the practical effect of the stringent limitation on the use of hospital facilities for performing abortions is to arbitrarily bar the physicians from activities that directly affect their economic interests. Abele v. Markle, supra, 452 F.2d at 1125; see also, Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

Turning to the merits, we find the focal point to be whether a public hospital can deny its facilities to doctors and their patients who seek...

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