519 F.2d 1315 (4th Cir. 1975), 74-2322, Hallmark Clinic v. North Carolina Dept. of Human Resources

Docket Nº:74-2322.
Citation:519 F.2d 1315
Party Name:HALLMARK CLINIC and Harold R. Hoke, M.D., Appellants, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES et al., Appellees.
Case Date:August 04, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1315

519 F.2d 1315 (4th Cir. 1975)

HALLMARK CLINIC and Harold R. Hoke, M.D., Appellants,



No. 74-2322.

United States Court of Appeals, Fourth Circuit

August 4, 1975

Argued May 7, 1975.

Roy Lucas, Washington, D.C. (Adam Stein, Chapel Hill, N.C., on brief), for appellants.

William F. O'Connell, Asst. Atty. Gen., N.C. Dept. of Justice (Rufus L. Edmisten, Atty. Gen., N.C. Dept. of Justice, on brief), for appellees.

Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.

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Hallmark Clinic, and its proprietor, Harold R. Hoke, M.D., successfully obtained an injunction, pursuant to 42 U.S.C. Sec. 1983 restraining enforcement of a regulation 1 of the North Carolina Department of Human Resources which required any abortion clinic not associated with a hospital to enter into an emergency transfer agreement with a hospital which could be reached by transfer of clinic patients within fifteen minutes. In granting the injunction, the three-judge federal district court characterized the regulation as a "thinly disguised effort to evade Roe and Doe," Hallmark Clinic v. North Carolina Department of Human Resources, 380 F.Supp. 1153, 1158 (E.D.N.C.1974), but declined to award attorneys' fees to the prevailing parties. The plaintiffs-appellants appeal only from that part of the lower court's decision which refused to award them counsel fees. The defendants do not appeal from any part of the order.

Subsequent to the Supreme Court decisions 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), the North Carolina General Assembly enacted a new statute 2 concerning the performance of abortions in the state which legalized the performance of abortions by licensed doctors in a clinic or hospital certified as suitable by the Department of Human Resources. The North Carolina Medical Care Commission, statutorily charged with the implementation of certification, promulgated a regulation upon the recommendation of an ad hoc committee of experts in the field. That regulation, which was disapproved and voided by the district court, apparently committed the award of transfer privileges to the sole discretion of the hospital authorities. Hallmark Clinic was provisionally certified to operate...

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