Doe v. Poelker, 75-1069
| Citation | 515 F.2d 541 |
| Decision Date | 02 June 1975 |
| Docket Number | No. 75-1069,75-1069 |
| Parties | Jane DOE, et al., Appellants, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and R. DeanWochner, M.D., Director of the Department of Health and Hospitals and ActingHospital Commissioner of the City of St. Louis, Missouri, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frank Susman, Susman, Schermer, Willer & Rimmel, St. Louis, Mo., for appellants.
Eugene P. Freeman, Deputy City Counselor, St. Louis, Mo., for appellees.
Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge. *
Jane Doe, 1 a pregnant resident of St. Louis, Missouri, at the time the lawsuit was filed, brought this civil rights class action under 42 U.S.C. § 1983 against John H. Poelker, the Mayor of St. Louis, and Dr. R. Dean Wochner, the Director of the Department of Health and Hospitals and Acting Hospital Commissioner of St. Louis, (hereinafter referred to collectively as "the city") seeking, in her broadly worded complaint, declaratory and injunctive relief
against the existence, application, implementation and enforcement of express and implied policies, rules, regulations, procedures and practices barring, thwarting, limiting and infringing upon the utilization of the personnel, facilities and services of the general, public hospitals of the City of St. Louis, Missouri . . . for the performance of abortions.
The jurisdiction of the federal court was based on 28 U.S.C. § 1343.
On March 22, 1974, the district court 2 sustained a motion by the city and dismissed the complaint for lack of standing and mootness. On appeal this Court reversed and remanded for further proceedings. Doe v. Poelker, 497 F.2d 1063, 1067 (8th Cir. 1974).
Accordingly, a trial to the court was held on November 25, 1974, and on January 13, 1975, the court issued a memorandum and order finding for the city and dismissing the complaint with prejudice. The trial judge appears to have agreed with Doe that there is a city policy prohibiting abortions, but he never considered the constitutionality of such a policy because he felt that Doe had failed to establish that the policy had been applied to her. Instead, it was his opinion that Doe had merely been refused an abortion by certain physicians at the city hospital's obstetrics-gynecology clinic because of their own personal moral and ethical beliefs on that subject. We reverse.
The incidents giving rise to this litigation occurred during August, 1973. Doe, the mother of two who was in severe financial straits and who had reason to fear that her husband might be sent to prison, suspected she might be pregnant. She had had five prior miscarriages. She went to the gynecology clinic at Max C. Starkloff Hospital, owned and operated by the city, and was examined by a third-year medical student assigned to the hospital. Although the student did not recall the conversation, Doe testified that she asked him at that time if she could obtain an abortion at the city hospital and that he had responded that it could not be done because it was against hospital policy. Doe returned to the clinic six days later for the results of the laboratory pregnancy test, and when informed by another medical student who was examining her that the result was positive she requested an abortion at the hospital. The student indicated that he had personal convictions against abortions and that he knew of no one at the city hospital to whom to refer Doe. However, an appointment was made for the next day at the obstetrics clinic.
At that clinic Doe was seen by Dr. William J. Ott, at that time the chief resident from St. Louis University in the obstetrical service at the city hospital. She told Dr. Ott that she desired an abortion. Dr. Ott, having strong personal beliefs on the subject, refused to consider it and refused to give her even a written statement as to her state of pregnancy. Instead he referred her to another physician at the clinic, Dr. Ziad Abu Dalu, who saw her that same day and the next. Both times Doe requested an abortion at city hospital and Dr. Abu Dalu refused, telling her "that we couldn't do one at City Hospital." Dr. Abu Dalu does have personal convictions against abortions, but did not elaborate them to Doe. Subsequent to the filing of this lawsuit, Doe was aborted at a private clinic in St. Louis.
While the students and doctors who saw Doe at the clinic were aware of her personal family and financial problems none of them found any "medical reasons" to justify an abortion, defining such reasons as severe sickness of the patient such as "severe diabetes," "severe heart condition" or "something of that type." Doe was suffering from cervical fibroid tumors and polyps, an extremely retroverted uterus and trichomycosis.
The district court impliedly found, and there can be no doubt, that there is an official St. Louis city policy promulgated by the mayor prohibiting the performance of abortions in the city-owned public hospitals for reasons other than to save the mother from grave physiological injury or death. The city admitted as much in its answer to the complaint, and the mayor himself testified that, upon taking office in the spring of 1973, he directed that the existing policy be continued, understanding that it allowed abortions only if the life of the mother was in danger. 3 Additionally, Dr. Wochner stated that such a policy had been given to him by the mayor to carry out.
In addition to the policy, the evidence reveals that there is a "procedure and practice" which operates to bar the performance of abortions at the city's hospitals the method of staffing the obstetrics-gynecology clinic. 4 The clinic, which is provided by the city, at least in part, to care for indigent patients, is staffed entirely by faculty and students from the St. Louis University School of Medicine. That university is a Catholic, Jesuit-operated institution, and its faculty manual calls for the discharge of any faculty member who engages in "(a) grave offense in the discharge of University responsibilities, which is clearly against well-established principles of Catholic morality." One witness, a Jesuit professor at the university, testified that the performance of an abortion by a faculty member would be a "gravely immoral (act) by Catholic standards." As such, of course, it would subject him to discharge.
Dr. Frank Ostapowicz, a professor at the School of Medicine and Chief of Gynecological and Obstetrical services at the city hospital testified by affidavit that he had told the city's Director of Health and Hospitals (Dr. Wochner) that
neither I, those under my direction and supervision, or St. Louis University Medical School with which we were (and are) all associated, would participate in providing abortion services to women who did not have true medically grave reasons which furnished professionally ethical and moral justification for such procedure.
The result of this staffing exclusively from St. Louis University, together with the official policy of the city, is that indigent pregnant women who desire abortions are unable to find a physician at the city OB-GYN clinic who will perform one. 5
The official city policy and the "staffing procedure" were applied to Doe and the other members of her class and successfully prevented them from utilizing the city's hospitals to obtain abortions. Dr. Wochner testified that had it not been for the policy promulgated by the mayor he would have proceeded to implement the providing of abortions at the city's public hospitals. This evidence strongly suggests that had the policy not been extant, Doe could have obtained an abortion at the city hospital. Additionally, there is evidence that Doe was specifically told that she could not have an abortion at the city hospital, again indicating that it was the city policy which prevented the use of these facilities for that purpose. Likewise, it is clear that the staffing procedure effectively foreclosed any possibility that any pregnant woman could ever find a staff physician who would agree to perform an abortion in the city hospital unless her life or health was in severe danger. The conclusion that Doe was not affected by the policy and the staffing procedure simply cannot stand in light of this evidence and the salient fact that, despite a number of requests, not a single abortion has been performed in the St. Louis public hospitals since before the Supreme Court's abortion decisions in January, 1973, to date.
The district court reasoned and the city contends on appeal that no woman has an absolute constitutional right to an abortion on demand and that, therefore, Doe has no right to demand that the clinic doctors at city hospital perform an abortion on her. Regardless of the merits of this argument, we think it misses completely the point of this litigation. Doe does not "demand" an abortion; but, rather, she asks that the city not deny her equal protection of the law by interfering in her decision of whether to bear a child or have an abortion simply because she is indigent and unable to afford private treatment. Stripped of all rhetoric, the city here, through its policy and staffing procedure, is simply telling indigent women, like Doe, that if they choose to carry their pregnancies to term, the city will provide physicians and medical facilities for full maternity care; but if they choose to exercise their constitutionally protected right to determine that they wish to terminate the pregnancy, the city will not provide physicians and facilities for the abortion procedure, even though it is probably safer than going through a full pregnancy and childbirth. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). No rational or legally cognizable basis...
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