Chrisman v. Sisters of St. Joseph of Peace

• Decision Date: 21 November 1974
• Docket Number: No. 72-3087,72-3087
• Citation: 506 F.2d 308
• Parties: Barbara Ann CHRISMAN, Plaintiff-Appellant, v. SISTERS OF ST. JOSEPH OF PEACE, an Oregon Corporation doing business as Sacred Heart General Hospital et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 308

506 F.2d 308

Barbara Ann CHRISMAN, Plaintiff-Appellant, v. SISTERS OF ST. JOSEPH OF PEACE, an Oregon Corporation doing business as Sacred Heart General Hospital et al Defendants-Appellees.

No. 72-3087.

United States Court of Appeals, Ninth Circuit.

Nov. 21, 1974.

Charles O. Porter (argued), Eugene, Or., for plaintiff-appellant.

Frank E. Nash (argued), King, Miller, Anderson, Nash & Yerke, portland, Or., for defendants-appellees.

Before WRIGHT and SNEED, Circuit Judges, and JAMESON, District Judge.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

In deciding this appeal, we hold that the district court correctly dismissed an action under 42 U.S.C. 1983 ¹ and 28 U.S.C. 1343 ² for declaratory judgment, equitable relief and damages brought against a private hospital because of its refusal to permit sterilization of a woman patient. We dispose of the matter on jurisdictional grounds and need not consider all issues raised by the plaintiff-appellant.

The action was instituted by a 23-year old married woman against the defendants who do business as Sacred Heart General Hospital in Eugene, Oregon. Also joined were the hospital administrator and physicians who were members of the hospital's sterilization committee. It was alleged that the denial of the request of the plaintiff for a tubal ligation following birth of her second child was motivated primarily by religious beliefs. After Sacred Heart Hospital refused permission, the plaintiff had been transported across the city to the Eugene Hospital where the surgery was performed. The defense asserted that refusal at Sacred Heart Hospital was based on good medical practice and not religious reasons. ³

The trial judge before whom the cause was tried empaneled a jury to decide by special verdict the question whether the denial of sterilization was motivated primarily by medical or religious considerations. The jury being unable to reach a verdict, the trial judge entertained and granted a defense motion for judgment of dismissal pursuant to Rule 50(b), Fed.Rules Civ.Proc. ⁴ We affirm, concluding that dismissal was proper since the court lacked jurisdiction to grant the relief sought by the plaintiff.

The complaint for equitable relief was properly dismissed for three reasons: (a) the district court lacked power to compel the defendants to do a sterilization procedure in their hospital, (b) the defendants' alleged actions were not taken under 'color of state law,' as required by 28 U.S.C. 1343, and (c) the issue is mooted by the plaintiff's having had her tubal ligation elsewhere.

I. POWER TO GRANT EQUITABLE RELIEF

Appellant's claim for writ of mandamus and injunction was based on her assertion that the defendants acted under color of state law since the hospital received so-called Hill-Burton construction funds, ⁵ enjoyed some state tax exemption and was generally under state regulation.

But this argument has been seriously limited by action of Congress to prohibit courts from using receipt of Hill-Burton funds as the basis for compelling an individual or hospital to perform any sterilization procedure if the performance of such procedure is prohibited by the hospital on the basis of religious beliefs or moral convictions. ⁶ Section 401(b) was clearly intended by Congress to prevent suits such as that advanced by Appellant. ⁷ In Taylor v. St. Vincent's Hospital, 369 F.Supp. 948, 950 (D.Mont.1973), the court held in a case in which the defendant hospital had refused on religious grounds to perform a sterilization, 'By its plain language this Act prohibits any court from finding that a hospital which receives Hill-Burton funds is acting under color of state law.' See also Watkins v. Mercy Medical Center, 364 F.Supp. 799 (D.Idaho 1973).

It has long been held that Congress has the power to modify and alter the jurisdiction which it has conferred on inferior courts of the United States. Cary v. Curtis, 44 U.S. (3 How.) 236, 11 L.Ed. 376 (1844).

The Supreme Court has consistently upheld restrictions placed on the ability of the inferior courts to issue injunctive relief with respect to designated causes of action. In Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 582, 82 L.Ed. 872 (1938), the Court upheld a limitation on the power of the district courts to grant injunctions in labor disputes: 'There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States' citing Kline v. Burke Construction Co., 260 U.S. 226, 233, 43 S.Ct. 79, 67 L.Ed. 226 (1922). ⁸

Appellant argues that 401(b) is constitutionally infirm as a violation of the Establishment Clause. The contention lacks merit. Plaintiff fails to distinguish between action taken to preserve the 'government('s) neutrality in the face of religious differences' ⁹ and action which affirmatively prefers one religion over another. ¹⁰

Here Congress sought to retain its neutrality in the debate over the morality of voluntary sterilizations by preventing the reception of federal health program funds from being used as a basis for compelling a hospital to perform such surgery against the dictates of its religious or moral beliefs. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Supreme Court held that South Carolina could not require, as a condition of receiving unemployment benefits, that a Seventh-Day Adventist submit herself for employment which required her to work on Saturdays in violation of her religious beliefs. The Court stated that:

In holding as we do, plainly we are not fostering the 'establishment' of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits . . . reflects nothing more than the government obligation of neutrality in the face of religious differences.

Sherbert, supra at 409, 83 S.Ct. at 1797. The Court also noted that 'It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege,' at 404, 83 S.Ct. at 1794.

The Court has recognized the danger that government action might 'run afoul of the Establishment Clause' but has stressed that this

. . . danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses 'we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion.'

Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972).

Here Congress quite properly sought to protect the feedom of religion of those with religious or moral scruples against sterilizations and abortions. The need of denominational hospitals for such protection was recognized in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In striking down the Georgia criminal abortion statute, the Court ruled that a mandatory abortion screening committee was not required as a means of protecting the rights of individual physicians and denominational hospitals, since their religious and moral beliefs were protected by Georgia laws which permitted them to refuse to perform abortions:

And the hospital itself is otherwise fully protected. Under (Georgia law) the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further a physician or any other employee has a right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital.

Doe v. Bolton, 410 U.S at 197-198, 93 S.Ct. at 750.

Similarly, the court in Watkins v. Mercy Medical Center, supra, held that 401(b) properly permitted denominational hospitals to refuse to perform sterilizations since 'To hold otherwise would violate the religious rights of the hospital.' 364 F.Supp. at 803. In Doe v. Bellin Memorial Hospital, 479 F.2d 756, 759-760 (7th Cir. 1973), the court held that 'There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions.'

However, application of 401(b) does not dispose of this issue since appellant cites, in addition, the enjoyment by the hospital of tax exemptions, its regulation by the state and its performance of a public function as grounds for holding that it acted under color of state law with respect to 42 U.S.C. 1983.

II. COLOR OF STATE LAW

To state a cause of action under 1983, it is essential that the defendant has acted under color of state law, Adickes v. S. H. Kress & Co.,398 U.S. 144, 188, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring opinion). There is no 'precise formula' for determining the threshold at which the reception of aid or regulation by the state cloaks private actions with the color of state law, Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). However, under the decisions of this circuit, it seems clear that the involvement of the state in the actions of these defendants does not rise to the level of significance required to state a cause of action under 1983.

Here, the defendants received since 1961 approximately 13 percent of their construction funds from the state and from federal agencies. Additionally, they were licensed by the state but were not compelled by state regulations to perform sterilizations on request.

Action under 1983 has been permitted only when there has been significant involvement of the state in the specific activity complained of. In holding that the provision of a liquor license and 'pervasive' regulation of private...